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1. The Appellant married the Respondent on 02.03.1997 and
registered the same under the Special Marriage Act, 1954.
Thereafter, the marriage was solemnized between the parties on
07.12.2000 under the Hindu rites and customs. Alleging cruelty and
desertion by the Respondent, the appellant filed a suit for dissolution
of marriage on 05.03.2007 before the District Judge, Alipore. The
suit was dismissed, aggrieved by which the Appellant filed an appeal
before the High Court of Calcutta. The Respondent did not appear
before the High Court. However, the High Court dismissed the
appeal filed by the appellant upholding the judgment of the Trial
Court. The allegation made by the Appellant against the
Respondent is that she was insisting on his residing separately from
his parents. Also, the Respondent misbehaved with her in-laws and
that she was frequently leaving the matrimonial home. The
appellant also alleged physical assault by the Respondent when both
of them went to Puri and Shillong for holidays. The Respondent
resisted the Petition filed for dissolution of marriage by denying the
averments made against her. She accused the appellant of adultery
and excessive consumption of alcohol. The Trial Court and the High
Court refused to accept the contentions of the appellant that he is
entitled for divorce by holding that he could not make out a case of
cruelty meted out by the Respondent.
2. It was submitted by Mr. Nikhil Nayyar, learned Senior Counsel
for the Appellant that the Appellant and Respondent have been living
separately for more than 16 years and for all practical purposes the
marriage is dead. He relied upon two judgments of this Court in
Sukhendu Das v. Rita Mukherjee 1 and Munish Kakkar v.
Nidhi Kakkar2 in support of his submission that this Court in
exercise of its power under Article 142 of the Constitution of India
has dissolved marriages when they are totally unworkable and
3. We have requested Mr. Ranjan Mukherjee to assist this Court
as Amicus Curiae on behalf of the Respondent as she did not engage
an Advocate. Mr. Ranjan Mukherjee informed this Court that the
Respondent intends to continue to live with the Appellant. Mr.
Mukherjee informed this Court that he spoke to the Respondent
several times and the Respondent is not convinced that an
unworkable marriage should be put to an end. In Sukhendu Das
v. Rita Mukherjee (supra), this Court considered a similar situation
where the marriage between the parties took place on 19.06.1992
and they were living apart from the year 2000. The Trial Court found
that the husband could not prove cruelty by his wife and that he was
not entitled for decree of divorce. The judgment of the Trial Court
was upheld by the High Court and the same was the subject matter
of challenge before this Court. The Respondent failed to appear
before this Court in spite of notice being served. By holding that
there was an irretrievable breakdown of marriage, this Court
dissolved the marriage between the parties therein by observing that
they had been living separately for more than 17 years and no useful
purpose would be served by compelling them to live together in
4. To do complete justice between the parties, this Court in
Munish Kakkar v. Nidhi Kakkar (supra) put an end to the bitter
matrimonial dispute which lingered on for two decades between the
parties therein.
5. The Appellant is a police officer in the State of West Bengal
and has made allegation of cruelty and desertion against the
Respondent. Though the respondent has insisted that she intends to
live with the Appellant, no meaningful effort has been made by her
for reconciliation. Allegations made by the Respondent relate to
adultery by the Appellant which was the reason for her moving out of
the matrimonial home. In spite of the best efforts made by Mr.
Mukherjee, the Respondent has insisted that she is not willing for
dissolution of the marriage. Mr. Mukherjee has brought to our notice
that the Respondent has to take care of her son who is suffering from
serious ailments.
6. Having scrutinized the material on record and considering
the submissions made by Mr. Nikhil Nayyar and Mr. Ranjan
Mukherjee, learned Amicus Curiae, without commenting on the
merits of the matter, the marriage between the parties is
emotionally dead and there is no point in persuading them to live
together any more. Therefore, this is a fit case for exercise of
jurisdiction under Article 142 of the Constitution of India. The
marriage between the parties is dissolved. The Registry is directed
to prepare a decree accordingly. Taking note of the submissions
made by Mr. Ranjan Mukherjee, we direct the Appellant to pay an
amount of Rs.25 Lakhs (Rupees Twenty-Five Lakhs) to the
Respondent within a period of eight weeks from today. The petition
filed by the Respondent under Section 125 Cr. PC for maintenance
shall be withdrawn by the Respondent on receipt of the amount of
Rs.25 Lakhs. The payment of the aforesaid amount is in full and final
settlement of all claims of the Respondent against the Appellant.
7. The appeal is disposed of accordingly.
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The marriage between the parties is emotionally dead and there is no point in persuading them to live together any more, the Supreme Court remarked while it dissolved a marriage invoking its powers Article 142 of the Constitution.In this case, the husband had filed divorce petition on the ground of cruelty and desertion by wife. The Trial Court dismissed the petition holding that no case...
The marriage between the parties is emotionally dead and there is no point in persuading them to live together any more, the Supreme Court remarked while it dissolved a marriage invoking its powers Article 142 of the Constitution.
In this case, the husband had filed divorce petition on the ground of cruelty and desertion by wife. The Trial Court dismissed the petition holding that no case of cruelty is made out. The High Court also upheld the dismissal.
Before the Apex Court, the husband submitted that they have been living separately for more than 16 years and for all practical purposes the marriage is dead. He referred to two judgments viz. Sukhendu Das v. Rita Mukherjee and Munish Kakkar v. Nidhi Kakkar to submit that the court has, in the past, invoked Article 142 powers to dissolve marriages when they are totally unworkable and irretrievable.
The bench, referring to these judgments noted thus:
"In Sukhendu Das v. Rita Mukherjee (supra), by holding that there was an irretrievable breakdown of marriage, this Court dissolved the marriage between the parties therein by observing that they had been living separately for more than 17 years and no useful purpose would be served by compelling them to live together in matrimony.. To do complete justice between the parties, this Court in Munish Kakkar v. Nidhi Kakkar (supra) put an end to the bitter matrimonial dispute which lingered on for two decades between the parties therein."
In this case, the court noted that the wife has insisted that she is not willing for dissolution of the marriage.
"The marriage between the parties is emotionally dead and there is no point in persuading them to live together any more. Therefore, this is a fit case for exercise of jurisdiction under Article 142 of the Constitution of India", the bench observed.
The bench then declared that the marriage between the parties is dissolved.
Case name: Subhransu Sarkar Vs Indrani Sarkar (Nee Das)
Case no.: CA 5696 of 2021
Coram: Justice L. Nageswara Rao and BR Gavai
Counsel: Sr. Adv Nikhil Nayyar for appellant, Adv Ranjan Mukherjee (Amicus)
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l Appeal Nos.
2436 37 of 1987 etc.
From the Judgment and Order dated 2.4.1983 of the Cus toms, Excise and Gold Control Appellate Tribunal, New Delhi in Appeal No. ED (T)/SB/64/76 D and ED(SB)(T) A. No. 61/76 D in Order Nos.
D 169 and 170 of 1983.
V.C. Mahajan, A. Subba Rao and C.V. Subba Rao for the Appellant.
Soli J. Sorabjee, P.H. Parekh, M.K. Pandit and J.P. Pathak for the Respondent.
The Judgment of the Court was delivered by RANGANATHAN, J.
These are three appeals by the Collector of Central Excise.
Two of them relate to Ahmedabad and one to Bombay.
The Ahmedabad appeals are in the case of M/s Ashoka Mills Ltd. and the Bombay appeal is in the case of M/s Mafatlal Fine Spinning and Manufacturing Co. Ltd. These appeals raise a very interesting question.
88 The assessee respondents are companies manufacturing yarn and cotton fabrics, the manufacture of yarn being a step in the process of.
the manufacture of cotton fabrics.
Cotton fabrics (which expression included all fabrics con taining more than 40% by weight of cotton) were subject to excise duty on an ad valorem basis under item 19 of the tariff in the First Schedule to the Central Excises & Salt Act, 1944 (hereinafter referred to as 'the Act ').
"Yarn, all sorts, not elsewhere specified . . "became liable to duty under item 18E of the First Schedule under the Finance Act, 1972 w.e.f. 17.3.72.
The consequence was that, from 17.3.72, the yarn which was being produced by the appellants became liable to duty under item 18E while the fabric manu factured by them was dutiable under item 19.
The Central Government decided to give two categories of assessees the benefit of the provisions of Rules 96 V & W of the Central Excise Rules: (i) assessees manufacturing woollen yarn; and (ii) assessees manufacturing cotton yarn or yarn falling under item 18E and using the same wholly or partly, in the manufacture of fabrics in their own factory.
These rules appeared in Chapter V of the Rules as Section E. VI, headed "Cotton yarn, woollen yarn, yarn falling under tariff item 18E Special Procedure".
This Section in the rules was inserted by notification No. 110/61 dated 20.4.61 and omitted by notification No. 146/77 dated 18.6.77.
They read thus: "96 V Application to avail of special proce dure , (1) Where a manufacturer who manufactures cotton yarn, yarn falling under item 18E of the First Schedule to the Central Excises & Salt Act, 1944 (1 of 1944) or woollen yarn and in the case of cotton yarn of yarn falling under item 18E of the First Schedule to the Central Excises & Salt Act, 1944 (1 to 1944) uses the whole or part of the yarn manufac tured by him in the manufacture of cotton fabrics in his own factory, makes in the proper form an application to the Collector in this behalf the special provisions contained in this section shall, on such application being granted by the Collector, apply to such manufacturer in substitution of the provisions contained elsewhere than in this section for the period in respect of which the application has been so granted.
(2) Such application shall be made so as to cover a period of not less than six consecutive calendar months, but may 89 be granted for a shorter period in the discre tion of the Collector.
(3) If at any time during such period, the manufacturer does not want to avail himself of the special provisions contained in this section, he shall give a notice in writing to the proper officer of his intention at least one week in advance; and if he fails to give such notice he shall be precluded from avail ing himself of such provisions for a period of 6 months from the date of such failure.
96 W. Discharge of liability for duty on payment of certain Sum, (1) Having regard to the average production of cotton fabrics from one kilogram of cotton yarn or yarn falling under item 18E of the First Schedule to the Central Excises & Salt Act, 1944 (1. to 1944) or the average prevail ing prices of woollen yarn the Central Govern ment may, by notification in the Official Gazette, fix from time to time a rate per square metre of the cotton fabrics produced or per kilogram of the woollen yarn produced, as the case may be, subject to such conditions and limitations as it may think fit to impose, and if a manufacturer whose application has been granted under rule 96V pays a sum calcu lated according to such rate, in the manner hereinafter laid down, such payment shall be a full discharge of his liability for the duty leviable on the quantity of cotton yarn of yarn falling under item 18E of the First Schedule to the Central Excises & Salt Act, 1944 (1 of 1944) manufactured by him and used in the manufacture of fabrics in his factory or the quantity of woollen yarn produced by him: 1.
Provided that if there is an alteration in the rates of duty and/or in the limit of exemption, the sum payable shall be recalcu lated on the basis of the revised rates and/or exemption limit from the date of alteration and liability for duty leviable on the quanti ty of cotton yarn or yarn falling under item 18E of the First Schedule to the Central Excises & Salt Act, 1944 (1 to 1944) used in the manufacture of cotton fabrics or woollen yarn produced shall not be discharged unless differential duty is paid.
90 (a) in the case of such cotton yarn, or yarn falling under item 18E of the First Schedule to the Central Excises & Salt Act, 1944 (1 of 1944) as on the date of clearance of the aforesaid cotton fabrics, and (b) in the case of woollen yarn, as on the date of clearance of such woollen yarn from the factory of the manufacturer; should, however, the amount of duty so recalculated be less than the sum paid, the balance shall be refunded to the manufacturer.
(2) The rate specified under sub rule (1) shall be separately and distinctly notified, and shall be separately and distinctly ap plied, in respect of (i) cotton yarn and (ii) woollen yarn.
(3) The sum payable under sub rule (1) in respect of cotton yarn shall be paid by the manufacturer along with the duty on fabrics in the manner prescribed in rule 52.
Provided that where cotton fabrics are allowed to be removed in bond under rule 96 D from one factory to another (hereinafter referred to as the processing factory) for processing and the cotton fabrics also processed are cleared from the processing factory, the duty payable under sub rule (1) shall be paid by the licencee of the processing factory.
A notification as envisaged by Rule 96V was issued, being notification No. 62/72, on 17.3.72.
It reads as follows: "In pursuance of rule 96 W of the Central Excise Rules, 1944, the Central Government hereby directs that the rate of duty in re spect of yarn containing partly more than 40 per cent by weight of cotton and partly any other fibre or fibres, the wool or silk con tent being less than 40% by weight of such yarn (where such yarn contains wool or silk) and falling under Item No. 18E of the First Schedule to the and of the description specified in column (2) of the Table hereto annexed, shall be the rate specified in the corresponding entry in column (3) of the said Table.
91 THE TABLE section No. Description of yarn Rate (1) (2) (3) Paise per square metre of the fabric made.
Yarn used in making super 20.00 fine fabrics.
Yarn used in making fine fabrics.
12.00 3.
Yarn used in making medium 6.00 fabrics.
Yarn used in making 4.40 medium fabrics.
Yarn used in making coarse fabrics.
2.20 6.
Yarn used in the manufacture 4.40 of cotton fabrics generally described as Malimo type fabrics or fabrics in which warp and weft yarns are connected and fastened together by chain stiches baned against each other.
Yarn used in making embriodery The duty for the in the place in steps or in time being leviable motifs.
on yarn contained in the base fabrics if not already paid.
Yarn used in making fabrics do impregnated or coated with preparation of cellulose derivations or of other artificial plastic materials.
Provided that if the manufacturer elects to avail himself of the special provisions con tained in rule 96 W aforesaid, the procedure set out in that rule in this behalf shall uniformly apply to all the yarn of the de scription specified in the above table and used by him in the production of cotton fab rics in his factory.
92 Explanation: For the purpose of this notification (i) "base fabrics" shall have the same meaning as assigned to it in tariff item No. 19 of the first schedule to the Central Excises & Salt Act, 1944 (1 to 1944) (ii) the average count of yarn in a fabric shall be deemed to be the count of all yarn contained in such fabric.
" Rules 96 V & W, it will be noticed, deal with two items: cotton yarn or yarn falling under item 18E of the First Schedule and woollen yarn.
Normally, under the Schedule to the Act, woollen yarn was being charged to excise duty on an ad valorem basis while cotton and other yarn was being assessed on weight basis.
The rules cited above and the notification referred to, however, provided an alternative, on the application of the assessee.
On a notification being issued and the assessee 's option being exercised, duty on woollen yarn became payable on the basis of weight at the rates prevalent at the time of clearance of the yarn from the factory.
If the rates had gone up in the meantime, the assessee had to pay the differential duty and if the rates had gone down, the assessee would be entitled to a refund.
Thus the assessee was given the option of paying the duty on the woollen yarn on weight basis at the rates prevalent on the date of their clearance.
We are not concerned with this here.
So far as cotton and other yarn is concerned, the duty, in cases governed by a notification and application under this Section, would be levied not on the weight of the yarn manufactured but on the extent of fabric manufactured from such yarn.
Naturally, this duty could be calculated only after the fabric had been manufactured, on the basis of the area of cloth or fabric manufactured.
This would create a doubt whether the duty on yarn under the scheme is payable on the production of yarn or on the date of clearance of the fabrics.
Sub section (3) of section 96 W clears this doubt.
It provides that the duty would be paid along with the duty payable on the fabrics under rule 52.
This clearly shows that it is not the incidence of liability that is shifted but only the collection of the duty.
The purpose of the rules and notifications may be briefly set out thus.
As already mentioned both yarn and fabrics are individual items exigible to duty.
Two levies on the yarn as well as on the cotton fabrics, on different bases, may not only impose an undue burden on 93 the manufacturer but may also unnecessarily complicate the process of collection of duty at two stages.
The Act, there fore, envisages what has been described as a scheme of "compounded levy".
Under this scheme, the excise duty on the yarn is collected only as and when the manufactured goods, namely, cotton fabrics are cleared from the factory and no duty is collected at the stage of the production or manufac ture of yarn.
The duty paid as per this notification is treated as a full discharge of the assessee 's liability for the duty leviable on the yarn used by the assessee for manufacture of fabrics in its factory.
To sum up briefly, rules 96 V and 96 W, together with the notification issued thereunder are concerned only with the issue of the excise duty leviable in respect of yarn and what they seek to achieve are: (a) the alteration of the basis of duty from a rate calculated on the weight of yarn produced to a calculation on the basis of the area of fabric manufactured therefrom; (b) the postponement of the collection of the duty till the point of clearance of the fabrics; and (c) the levy of the duty at rates prevalent not on the date of production of the yarn but on the date of clearance of the fabric.
If the notification of 17.3.1972 had continued in force, there would have been no difficulty in its application.
However, on 24.7.1972, the Government issued Notification No. 169 of 1972, the result of which was that the special procedure referred to above was made inapplicable to the type of yarn manufactured, used for weaving and cleared by the appellants.
The short question in these appeals is as to the effect of this omission in respect of yarn produced after 17.3.72 and cleared for captive consumption before 24.7.72 but lying in various departments at various stages of manufacture or in the form of cotton fabrics not yet cleared as on 24.7.72.
The Department has taken the view that in respect of the yarn manufactured between 17.3.72 and 23.7.72 the assessee is liable to pay the normal duty pay able on yarn under Item 18E so long as the fabrics manufac tured out of such yarn remained uncleared from the factory as on 24.7.72.
On the other hand, the assessee 's contention is that excise duty on yarn is attracted as soon as it is produced and cleared for captive consumption though kept in abeyance and collected, so long as the notification was in force, till the corresponding fabrics were cleared.
The assessee is not liable to pay any higher duty in respect thereof unless one could bring it within the terms of the proviso to the notification.
The short contention is that 94 the proviso applies only in a case where the notification under section 96 W continues to be in force and there is a change in rates under the scheme of compounded levy intro duced by the notification but not where the difference in rates is one between those prevailing on the date of produc tion of yarn under the scheme and the date of clearance of the goods after the abandonment of the scheme.
The Customs, Excise & Gold Control Appellate Tribunal (CEGAT) accepted the contention of the assessee following its earlier decision dated 2.4.1983 in M/s Raipur Manufac turing Co. vs Collector of Central Excise, Ahmedabad, It held that the yarn cleared for captive consumption during the period from 17.3.
1972 to 23.7.
1972 in terms of the special procedure was entitled to the bene fit of the rates fixed under Notification No. 62/72 CE dated 17.3.1972 and that no further duty was payable on that quantity of the yarn.
A consequential refund to the appel lants was directed.
We notice that this order of the Tribu nal was followed by another Bench of the Tribunal in its order dated 20.7.1983 and this decision had been reported much earlier as Crown Spinning & Manufacturing Co. Ltd. vs Collector, The Collector, Central Excise has preferred these appeals.
We have come to the conclusion that the view taken by the Tribunal has to be upheld. 'Yarn ' is an excisable com modity and it is common ground before us that, normally and but for the special procedure and notification, duty thereon is leviable at the point of production and clearance for captive consumption.
On that view, the duty attaches itself at the point of production and clearance of the yarn.
The notification does not alter this position.
it does not shift the incidence of duty from yarn to the woven fabric.
It still talks only of the liability of the yarn to duty and proceeds to provide only for its postponed collection.
If we are right on this, the duty on such yarn produced between 17.3.72 and 24.7.72 has to be determined in accordance with the rates specified in the notification, though such rates may have to be calculated in terms of the area of the fabric cleared on or after 24.7.1972.
The duty cannot be determined at the rates specified for yarn under item 18E as applicable on the dates of clearance of the fabric manufactured by using the yarn.
To hold otherwise would really mean holding that the incidence of duty on the yarn under the notifica tion arises only on the date of clearance of the manufac tured fabric.
This, in our view, is not the effect of the notification.
The proviso to Rule 96 W does not help the revenue.
It only 95 contemplates cases where there is a change in the rates prescribed under the notification between the date of pro duction of the yarn and the date of clearance of the fabric.
In such a case, an assessee may well contend, but for the proviso, that the duty having attached itself on the date of production of the yarn, it has to be calculated only at the rates then prevalent and should not be recalculated at the rates prevalent on the dates of clearance of the fabrics.
The proviso precludes such an argument.
It would be entirely superfluous and redundant if, as contended for by the reve nue, the liability to pay duty on the yarn itself arises only on the date of clearance of the fabrics.
It is intended to provide specifically that it is the intention of the Government that in such a case, the rates prevalent on the date of clearance of the fabric should govern.
The word 'recalculated ' used in the proviso also supports such a conclusion.
This word would be inappropriate if the notifi cation envisaged the levy of duty at the point of clearance of the fabrics, as contended for by the Revenue, for in that event, there would be only one calculation as at that point of time and no question of recalculation would arise.
In other words, the notification grants a concession but only subject to change in these concessional rates that may occur until the fabrics made out of the yarn are cleared.
We do not think that the words of the proviso can be extended to cover a case where the notification itself has ceased to apply by the date of clearance of the fabric.
To apply the proviso to such a case would result in its ap plicability to a totally different situation.
It would involve a comparison of unlikes.
It would mean the substitu tion of one set of rates prescribed in connection with a special procedure on the basis of the area of cloth by another set of rates applicable to yarn in the normal course which is to be worked out on the basis of weight.
This involves a mix up of two totally different schemes of levy of duty on yarn.
We do not think it is correct to place this construction on these provisions.
In our opinion, the normal rates de hors the notification will apply only in respect of yarn produced on or after 24.7.72 and not to yarn produced between 17.3.72 and 23.7.72.
The assessees having paid at the normal rates in respect of the latter period were right ly held entitled to seek a refund.
We may also point out that the best that can be said for the department is that the system of compounded levy ceased only on 24.7.1972.
This means that the normal rules will become applicable.
But the normal duty on yarn, effective from 24.7.72, cannot be retrospectively applied to the yarn which had been authorisedly removed from the spindles for captive consumption prior to that date.
The fact that 96 the clearance of the fabrics made of such yarn was, after.
24.7.72 would be irrelevant in computing such normal duty for, yam.
There is no principle or statutory language that compels an assessee to be deprived of the concessional rate that has been made available to it, under a special proce dure, in respect of the yam produced by it and utilised for captive consumption.
For these reasons, we agree with the view taken by the Tribunal and dismiss these appeals.
We, however, make no order as to costs.
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The department took the view that in respect of the yarn manufactured between 17.3.72 and 23.7.72 the assessee is liable to pay the normal duty payable on yarn under Item 18E so long as the fabric manufactured out of such yarn remained uncleared from the factory as on 24.7.1972.
On the other hand the assessee 's contention was that excise duty on yarn is attracted as soon as it is produced and cleared for captive consumption.
The Customs, Excise & Gold Control Appellate Tribunal (CEGAT) accepted the contention of the assessee and held that the yarn cleared for captive consumption during the period from 17.3.72 to 23.7.72 in terms of the special procedure was entitled to the benefit of the rate fixed under Notification No. 62/72 CE dated 17.3.72 and that no further duty was payable on that quantity of the yarn and a consequential refund to the appellants was directed.
Ag grieved by the order of the Tribunal the department pre ferred these appeals to this Court.
While dismissing the appeals and upholding the view taken by the Tribunal, this Court, HELD: Rules 96 V & W of the Central Excise Rules, deal with two items: cotton yarn or yarn falling under item 18E of the First Schedule and woollen yarn.
Normally, under the schedule to the Act, woollen yarn was being charged to excise duty on an ad valorem basis while cotton and other yarn was being assessed on weight basis.
[92C] Yarn is an excisable commodity and but for the special procedure 87 and notification, duty thereon is leviable at the point of production and clearance for captive consumption.
The duty attached itself at the point of production and clearance of the yarn.
The notification does not alter this position.
It does not shift the incidence of duty from yarn to the woven fabric.
[94E F] The proviso to Rule 96 W does not help the Revenue.
It only contemplates cases where there is a change in the rates prescribed under the notification between the date of pro duction of the yarn and the date of clearance of the fabric.
[94H; 95A] The words of the proviso can be extended to cover a case where the notification itself has ceased to apply by the date of clearance of the fabric.
To apply the proviso to such a case would result in its applicability to a totally different situation.
It would involve a comparison of un likes.
[95E] Crown Spinning & Manufacturing Co. Ltd. vs Collector, , referred to.
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1. The appellant-Bank, a nationalised one, took the ultimate step
against the respondent as an employee in pursuance of departmental
proceedings having found him guilty on various counts inter alia
including breach of duty as a custodian of public money and dishonesty,
fraud or manipulation of documents. The Industrial Tribunal ultimately
upheld the decision of the appellant-Bank but in terms of the impugned
judgment of the Allahabad High Court, five of the charges were found
not proved while qua two of the charges the matter was remitted back to
the Industrial Tribunal with a limited mandate.
2. The said decision was, however, stayed by this Court on 5.3.2019.
3. The respondent was employed with the appellant-Bank as a clerk-
cum-cashier w.e.f. 14.9.1981. The appellant-Bank received a complaint
dated 8.10.1994 from the sister-in-law of the respondent, Smt. Meera
Srivastava, that the respondent had opened and operated a savings
account No. 7882 in the joint name of the respondent and his sister-in-
law by forging her signatures, and encashed a demand draft of Rs.
20,000/- which was issued to her by way of interim relief by Kalyan
Nigam Limited in which her husband was employed as a Junior
Engineer, who had unfortunately passed away in a road accident on
15.4.1994. The respondent was placed under suspension on 5.11.1994 by
the Bank for committing acts of grave misconduct at the Gorakhpur
Branch and he was issued a chargesheet dated 22.3.1995. The charges
“Charge No.1: On 28.9.94 you went to the clearing house
without collecting the outward clearing cheques from Mr. T.K.
Sridhar officer in violation of the specific instructions of the
Branch Manager Mr. R.N. Saxena and thus you committed an
act of wilful insubordination which is a gross misconduct under
para 19.5(e) of the Bipartite Settlement dated 19.10.66.
Charge No.2: You refused to include the outward clearing
cheques for Rs.2,21,161.47 for the day’s clearing on 28.9.94
when Mr. A.K. Chakraborthy and Mr. S.N. Pandey officer
handed over the said cheques at the clearing house before 10.30
a.m., despite the specific instructions given by them, which is
an act of wilful insubordination and is a gross misconduct
under para 19.5(e) of the Bipartite Settlement dated 19.10.66.
Charge No.3: By refusing to include the outward clearing
cheques for Rs.2,21,161.47 for the day’s clearing on 28.9.94,
you caused inconvenience and hardship to the Bank’s
customers concerned and thus acted in a manner prejudicial to
the interests of the Bank, which is a gross misconduct under
para 19.5(j) of the Bipartite Settlement dated 19.10.66.
Charge No.4: You fraudulently and dishonestly opened savings
bank account No.7882 in the joint names of yourself and your
sister-in-law Mrs. Meera Srivastava by forging the signature of
the latter which is an act prejudicial to the interests of the Bank
and a gross misconduct under para 19.5(j) of the Bipartite
Settlement dated 19.10.66.
Charge No.5: You fraudulently and dishonestly withdrew from
the joint account No.7882 a sum of Rs.20,000/- (being the
proceedings of the demand draft issued in favour of Mrs. Meera
Srivastava and credited into the account) in two instalments of
Rs.7,000/- and Rs.13,000/- on 20.5.94 and 13.6.94 respectively
by forging the signature of Mrs. Meera Srivastava in the
withdrawal slip which is an act prejudicial to the interests of the
Bank and a gross misconduct under para 19.5(j) of the Bipartite
Settlement dated 19.10.66.
Charge No.6: By Gheraoing the Branch Manager Mr. R.N.
Saxena along with a few outsiders and staff members, by
threatening and abusing the Branch Manager I unparliamentary
language and by forcibly taking the copy of the suspension
order after searching the Branch Manager’s brief case, table
drawer and his pocket on 9.11.94, you behaved in a riotous,
disorderly and indecent manner which is a gross misconduct
under para 19.5(c) of the Bipartite Settlement dated 19.10.66.
Charge No.7: By erasing i) your own acknowledgement
contained in the duplicate copy of the suspension order dated
5.11.94, ii) the narration made against your name in the
attendance register through application of white fluid, you
tampered with the records of the branch and thus acted in a
manner prejudicial to the interest of the Bank which is a gross
misconduct under para 19.5(j) of the Bipartite Settlement dated
4. The respondent denied the allegations in response to the
chargesheet. An inquiry officer was appointed to adjudicate upon the
charges. It is the appellant’s case that all principles of natural justice
were followed and the respondent was supplied with all
documents/material relied upon by the appellant-Bank. The inquiry
officer concluded the inquiry and submitted the report dated 6.12.1995
opining that all charges stood proved against the respondent.
Consequently, the respondent was served with a show cause notice dated
28.2.1996 by the Disciplinary Authority proposing the punishment of
dismissal from service. The respondent submitted a reply but the
Disciplinary Authority after considering the reply proceeded to uphold
the finding and impose the penalty of dismissal from service vide order
5. The respondent filed an appeal before the appellate authority but
the appellate authority rejected the appeal vide order dated 10.9.1996.
6. The respondent sought to raise an industrial dispute and the
Central Government referred the dispute vide G.O. dated 30.10.2003 to
Kanpur on the issue whether the action of the Management imposing the
penalty of dismissal was justified and legal.
7. The proceedings were contested before the Tribunal and the
Tribunal framed a preliminary issue on the question of fairness of the
domestic inquiry. The Tribunal vide order dated 15.11.2011 decided the
preliminary issue against the appellant as the appellant-
Management/Bank had failed to produce original documents and most
photocopies of the relevant pages were not readable. It was, thus,
concluded that there was violation of the principles of natural justice.
However, the Tribunal granted an opportunity to the appellant-Bank to
prove the charges against respondent by adducing evidence. The Bank
led its evidence by producing five witnesses while the respondent
examined himself. The Tribunal vide award dated 21.2.2013 answered
the reference against the respondent opining that the appellant-
Bank/Management had been successful in establishing all the charges
against the respondent. On the issue of quantum of punishment also it
was held that the same was commensurate to the charges levelled and
proved against the respondent.
8. The appellant sought to assail this order of the Tribunal by filing
writ petition, being WP(C) No. 53458/2013, before the High Court of
Judicature at Allahabad. In terms of the impugned judgment dated
31.5.2018, the said writ petition has been allowed while remitting matter
back in respect of charges 4 & 5. The impugned judgment held that
when the earlier departmental proceedings were found to be violative of
the principles of natural justice then no findings vis-a-vis charges 1, 2, 3,
6 & 7 should have been arrived at, based on the plea that the Bank led
evidence only in respect of charges 4 & 5. In respect of charges 4 & 5 it
was opined that on the request of the respondent the signatures of Mrs.
Meera Srivastava should have been got compared with her admitted
signatures by an expert and then only a correct conclusion could have
been arrived at whether the signatures on the account opening form or the
withdrawal form have been forged by the respondent or not and the
Tribunal should have refrained from acting like an expert. This was so as
fraud was alleged and a degree of investigation should have been a
standard which is resorted to by a criminal court.
9. We may notice at this stage that the inquiry officer had opined that
while observing the admitted signatures in comparison with the
signatures in question from a banker’s eye it could be said that there is
absence of similarity. Mrs. Meera Srivastava’s claim was that even the
account was opened fraudulently without her ever visiting the bank. The
position was the same with respect to two withdrawal slips of Rs.7,000/-
and Rs.13,000/-. Mrs. Meera Srivastava had corroborated this aspect in
her deposition. In the deposition she accepted that both her and the
respondent were members of a joint family but the drafts were given to
the respondent for safe-keeping and when after one and a half month she
asked the respondent to return her draft he refused to do so on one pretext
or the other. Thus, two or three months later she complained to the bank
on learning that the drafts had been encashed at the Branch. On making
the complaint she got her money from the Bank. In her cross-
examination it was never put to her that she had gone to the Bank to open
the account and the account opening form bears her signatures nor was it
put to her that she had gone to the Bank to withdraw the amounts of
Rs.7,000/- and Rs.13,000/-. Her statement was opined to have been
trustworthy by both the inquiry officer and the Industrial Tribunal.
10. It was the submission of the learned counsel for the appellant that
the High Court fell into an error in applying the standards of proof of
criminal proceedings to disciplinary proceedings as the misconduct by an
employee in disciplinary proceedings is to be evaluated on the basis of
probabilities and preponderance of evidence. There was sufficient
evidence to show that the respondent committed fraud and forgery by
manipulating the signatures of the complainant Mrs. Meera Srivastava,
opening an account, operating the account and appropriating the sum of
Rs.20,000/- received through a demand draft as compensation on the
demise of her husband. The respondent took advantage of the
complainant being his sister-in-law. The complainant has given clear and
unequivocal testimony on oath before the Tribunal and nothing had come
out to the contrary in her cross-examination. In fact, regarding this
aspect, it was submitted that there was no material cross-examination and
there is no reason to doubt her testimony.
11. Insofar as the remaining charges are concerned, the documents led
to an irresistible conclusion that even those charges relating to
insubordination, disobeying the orders of the higher authorities, forging
the suspension letters were proved and even by themselves were
sufficient to award the punishment of dismissal from service.
12. Learned counsel for the respondent on the other hand pleaded that
in terms of the impugned judgment charges other than charges 4 & 5
were in any case not proved as no evidence had been led in that behalf
and reliance could not be placed only on documents.
13. It was further submitted that charges 4 & 5 were also not proved
and sought to refer to the judgment of this Court in Lalit Popli v. Canara
Bank1 more specifically para 13, which reads as under:
“13. It is to be noted that under Sections 45 and 47 of the
Evidence Act, the Court has to take a view on the opinion of
others, whereas under Section 73 of the said Act, the Court by
its own comparison of writings can form its opinion. Evidence
of the identity of handwriting is dealt with in three Sections of
the Evidence Act. They are Sections 45, 47 and 73. Both under
Sections 45 and 47 the evidence is an opinion. In the former
case it is by a scientific comparison and in the latter on the
basis of familiarity resulting from frequent observations and
experiences. In both the cases, the Court is required to satisfy
itself by such means as are open to conclude that the opinion
may be acted upon. Irrespective of an opinion of the
Handwriting Expert, the Court can compare the admitted
writing with disputed writing and come to its own independent
conclusion. Such exercise of comparison is permissible under
Section 73 of the Evidence Act. Ordinarily, Sections 45 and 73
are complementary to each other. Evidence of Handwriting
Expert need not be invariably corroborated. It is for the Court
to decide whether to accept such an uncorroborated evidence or
not. It is clear that even when experts' evidence is not there,
Court has power to compare the writings and decide the matter.
[See Murari Lal vs. State of Madhya Pradesh (1980) 1 SCC
14. On having considered the rival submissions of the learned counsel
for the parties, we are of the view that the High Court has fallen into an
error in coming to the conclusion in the impugned judgment and
directing, once again, the matter to be remitted to the Industrial Tribunal
to now seek opinion of a hand writing expert.
15. We would like to emphasise at the threshold that there are certain
inherent legal limitations to the scrutiny of an award of a Tribunal by the
High Court while exercising jurisdiction under Article 226 of the
Constitution of India. We may refer to the judgment of this Court in GE
Power India Ltd. (Formerly Known as M/s. Alstom Projects Ltd.) v. A.
Aziz2. If there is no jurisdictional error or violation of natural justice or
error of law apparent on the face of the record, there is no occasion for
the High Court to get into the merits of the controversy as an appellate
court. That too, on the aspect of an opinion formed in respect of two sets
of signatures where the inquiry was held by an officer of the bank who
came to an opinion on a bare comparison of the signatures that there is a
difference in the same. It has been looked at from the perspective of a
“banker’s eye”. This is, of course, apart from the testimony of the sister-
in-law of the respondent.
16. We have in the course of noting the submissions of the learned
counsel for the parties in the context of the factual matrix recorded in
para 9 that the Inquiry Officer had himself opined while observing the
admitted signatures in comparison with the signatures in question from a
“banker’s eye”, it was not just the ipse dixit of the Inquiry Officer but
was based on the deposition of the sister-in-law of the respondent, Mrs.
Meera Srivastava. The deposition of Mrs. Meera Srivastava was clear
and unambiguous. She was staying in a joint family of which the
respondent was a part. She unfortunately lost her husband in an accident.
The two drafts were received from his employer and those drafts were
kept in custody with the respondent, possibly because he was a banker
and the elder brother of her deceased husband. Instead of extending the
benefits of the same to her, the respondent went on a path of opening an
account jointly in his and his sister-in-law’s name, presenting the drafts,
and drawing the amounts with appropriation of the same to himself. Mrs.
Meera Srivastava had not even visited the bank to sign the account
opening form or the signature cards, nor had she presented the drafts or
signed the encashment vouchers. In fact, it is only when she complained
about not receiving the amount that the bank inquired into it and, at least,
the money was transferred to her. Her cross-examination elicited
nothing, nor for that matter was it put to her in cross-examination that she
had ever visited the bank, opened the account or signed the encashment
vouchers. The relationships in the family were not estranged nor was
there any endeavour to “fix” the respondent by a relative. In our view
this evidence was enough to implicate the respondent.
17. The High Court appears to have applied the test of criminal
proceedings to departmental proceedings while traversing the path of
requirement of a hand writing expert to be called for the said purpose.
This would go contrary to the settled legal position enunciated by this
Court. It would suffice for us to refer to a recent judgment in Ashoo
Surendranath Tewari v. Deputy Superintendent of Police, EOW, CBI 3
where it has been observed while referring to earlier judicial precedents,
that the standard of proof in departmental proceedings, being based on
preponderance of probability, is somewhat lower than the standard of
proof in criminal proceedings where the case has to be proved beyond
reasonable doubt.
18. We may also notice that the High Court has opined that only
charges 4 & 5 could really have been gone into by the Industrial
Tribunal, which required further evidence in its opinion, of a hand
writing expert. So far as the other charges are concerned, a conclusion
was reached that no further evidence was led.
19. In our view this is neither the correct approach nor borne out of the
record. Evidence was led. Even earlier, the material in respect of other
charges emanates from the record of the bank which shows the conduct
of the respondent which are apparent from the manner of framing of the
charges themselves and the material led in support thereof. Thus, even
the aspect of the other charges could not have been brushed aside in the
manner it purports to. On the matter being remitted back, two witnesses
deposed as to these aspects, being MW-3 and MW-4. The respondent
was a clerk-cum-cashier. It is a post of confidence. The respondent
breached that confidence. In fact, the respondent breached the trust of a
widowed sister-in-law as well as of the bank, making it hardly a case for
interference either on law or on moral grounds. The punishment imposed
on the respondent could also hardly be said to be disproportionate. The
conduct established of the respondent did not entitle him to continue in
service.
20. We are, thus, of the view that the impugned judgment dated
31.5.2018 of the High Court is liable to be set aside and the challenge to
the award of the Industrial Tribunal dated 21.2.2013 is repelled.
21. The appeal is accordingly allowed leaving the parties to bear their
own costs.
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In a case of a bank clerk forging signatures to encash a Demand Draft, the Supreme Court held that it is not necessary to call for a handwriting expert in departmental proceedings. The Court upheld the procedure adopted by the inquiry officer to compare the signatures himself, from a "banker's eye".The Supreme Court has held that the test of criminal proceedings ought not to be applied...
In a case of a bank clerk forging signatures to encash a Demand Draft, the Supreme Court held that it is not necessary to call for a handwriting expert in departmental proceedings. The Court upheld the procedure adopted by the inquiry officer to compare the signatures himself, from a "banker's eye".
The Supreme Court has held that the test of criminal proceedings ought not to be applied in departmental proceedings to call for handwriting experts to examine signatures. The Apex Court clarified that the standard of proof in departmental proceedings was based on 'preponderance of probability' and therefore somewhat lower than that of criminal proceedings based on 'proved beyond reasonable doubt'.
A Bench comprising Justices Sanjay Kishan Kaul and M.M. Sundresh allowed an appeal filed by Indian Overseas Bank assailing the order of the Allahabad High Court, which had found five out of seven charges against the respondent-employee to have not been established and with respect to the other charges remitted the matter back to the Industrial Tribunal. It is pertinent to mention herein that the Tribunal had upheld the decision of the Bank to dismiss the respondent from service.
Factual Background
On 14.09.1981 the respondent was appointed as a clerk-cum-cashier at the Indian Overseas Bank ("Bank"). On 08.10.1994, the Bank received a complaint from the sister-in-law of the respondent that he had opened a joint account in their name by forging her signatures and have encashed a demand draft of Rs. 20,000 issued to her by her husband's employer, Kalyan Nigam Limited, as compensation for his demise. The Bank suspended the respondent on 05.11.1994, inter alia, for his gross misconduct and wilful subordination and he was sent a statement of charge on 22.03.1995. An inquiry officer adjudicated the charges following the principles of natural justice and concluded that the charges stood proved. The Disciplinary Authority issued a show cause notice on 28.02.1996 and upon consideration of the response submitted by the respondent dismissed him from service by its order dated 11.05.1996. His appeal was also rejected. Thereafter, the respondent raised an industrial dispute, which was referred to the Industrial Tribunal at Kanpur to adjudicate if the dismissal was justified. On the preliminary issue framed by the Tribunal, it held that the Bank had acted in violation of natural justice but finally it decided the reference against the respondent as the Bank succeeded in establishing the charges. The respondent challenged the award which was quashed by the Allahabad High Court and the matter was remitted back to the Tribunal for adjudication of the 4th and 5th charges (charges with respect to fraud and forgery in opening the joint account and encashing the demand draft).
Submissions made by the appellant
The Senior Counsel appearing on behalf of the Bank argued that the High Court had erred in applying standards of proof adopted in a criminal proceeding to a disciplinary proceeding. The misconduct ought to be established on the 'preponderance of probabilities' and not 'beyond reasonable doubt'. It was contended that there was ample evidence to show that the respondent had indulged in fraud and forgery in opening the joint account and appropriating money from the same. The sister-in-law had given clear and unequivocal testimony in this respect. So far as the charges of insubordination and misconduct there was sufficient evidence to award punishment to the respondent.
Submissions made by the respondent
The Counsel appearing on behalf of the respondent submitted that charges other than the 4th and the 5th had not been proved as no evidence was led in that regard. Referring to Lalit Popli v. Canara Bank (2003) 3 SCC 583, the Counsel argued that the 4th and 5th charges were also not proved as the handwriting was not examined by an expert.
Analysis by the Supreme Court
At the outset, citing GE Power India Ltd. (Formerly known as M/s. Alstom Projects Ltd) v. A. Aziz 2020 SCC OnLine SC 782, the Court observed that under Article 226 of the Constitution of India, the High Court had limited scope to scrutinise the award passed by the Tribunal. Without there being any jurisdictional error or violation of natural justice or error of law apparent on the face of the record, the High Court should not have gotten into the merits of the dispute. Moreso, the inquiry officer had compared two signatures and found them to be different. The Court noted that it has been looked at from the perspective of a "banker's eye". The clear and unequivocal testimony of the sister-in-law and the fact that the same could not be controverted in cross examination, was taken note of. The Court further observed that the sister-in-law neither went to the bank nor presented the draft for encashment. Considering the submission of the Counsels for both the parties, the Court was of the view that there was enough evidence to implicate the respondent. Placing reliance on Ashoo Surendranath Tewari v. Deputy Superintendent of police, EOW, CBI (2020) 9 SCC 636, the Court opined that the High Court had applied the test of criminal proceedings in a departmental processing by calling for an handwriting expert to examine the signatures. The Supreme Court further refuted the findings of the High Court that the Tribunal could have gone into only the 4th and 5th charges because for the other 5 charges no evidence was led by the Bank and even for the 4th and 5th charges the opinion of a handwriting expert was required. Justifying dismissal as the appropriate punishment, the Court remarked -
"The respondent was a clerk-cum-cashier. It is a post of confidence. The respondent breached that confidence. In fact, the respondent breached the trust of a widowed sister-in-law as well as of the bank, making it hardly a case for interference either on law or on moral grounds. The punishment imposed on the respondent could also hardly be said to be disproportionate. The conduct established of the respondent did not entitle him to continue in service."
Case Name: Indian Overseas Bank And Ors. v. Om Prakash Lal Srivastava
Case No. and Date: Civil Appeal No. 267 of 2022 | 19 Jan 2022
Corum: Justices Sanjay Kishan Kaul and M.M. Sundresh
Counsel for the Appellant: Senior Advocate, Mr. Neeraj Kumar Jain, Advocate-on-Record, Mr. Krishan Kumar, Advocates, Mr. Atul Sheopuri and Mr. Nitin Pal.
Counsel for the Respondent: Advocate-on-Record, Mr. Ramjee Pandey, Advocates, Mr. Girijesh Pandey and Mr. Kafeel Ahmad.
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1. The appellant has assailed the correctness of the
judgment and order of the High Court of Tripura dated 9 th
October, 2013 dismissing the appeal of the appellant while
confirming the conviction recorded by the Trial Court
under Section 302/34 of the Indian Penal Code1 and 201
of IPC whereby he was awarded imprisonment for life and
allied sentences to run concurrently.
2. The prosecution story begins with a telephone
message by one Mantu Das (PW-40) informing the Police
Station Kailashahar that huge quantity of blood had been
seen on the Kailashahar-Kumarghat Road near
Shantipur. The said telephone message was received by
Bindhu Bhushan Das (PW-1) whereafter he along with
Sub-Inspector Kajal Rudrapal proceeded for the said
place, after making due entry in the G.D.Register.
3. At the spot, PW-1 not only noticed the blood on the road
side but also found blood-stained vojali (big knife), one
taga (thread) and some broken pieces of glass which could
be said to be of the rear-view mirror of a motor cycle. All
these articles were taken into custody, sealed and recovery
memo prepared. Further investigation was made which led
to visible marks of dragging some heavy article in the
jungle on the side of the road. These marks continued upto
Manu River and thereafter vanished.
4. While the investigation was still being carried out, the
Police Station received information from Arjun Das (PW-7)
that his nephew Kaushik Sarkar was missing since the
previous evening, i.e. 19.06.2007. The said information
was to the effect that Kaushik Sarkar had gone out in the
previous evening on his bike but had not returned. The
Investigating Officer came to the residence of Kaushik
Sarkar at village Mohanpur where he recorded the
statement of his mother (PW-25). She informed that
Kaushik Sarkar had gone out with two friends namely
Indrajit Das (appellant) and one ‘juvenile K’. Both these
persons were called to the police station but they did not
report. The Investigating Officer thereafter went to the
house of the appellant.
5. According to the Investigating Officer, both the accused
confessed before him that they had gone to Fatikroy and
Kanchanbari area on the bike of the deceased Kaushik
Sarkar. On the way they had purchased a bottle of alcohol
and consumed it along with Babul Das. Thereafter, they
started driving towards Kailashahar. At Shantipur, they
got down to answer the call of nature. Kaushik was sitting
on the motor cycle. At that stage, both the accused
assaulted Kaushik Sarkar with the vojalis. They threw the
helmet, purse and two vojalis in the nearby jungle and
dragged the dead body and the motor cycle to the nearby
river and threw them in the river. Then they swam across
the river, went to the house of the appellant and burnt
their blood-stained clothes.
6. The accused ‘juvenile K’ was tried under the provisions
of the Juvenile Justice (Care and Protection of Children)
Act, 2000. The present appellant was tried by the regular
Sessions Court. Upon charge being framed and read out,
he pleaded not guilty and claimed to be tried.
7. The prosecution examined as many as 40 witnesses
and also led documentary evidence which was duly proved
and exhibited. The Trial Court vide judgment dated
19.04.2011 recorded a finding that the prosecution had
fully established the guilt of the appellant beyond
reasonable doubt, and accordingly convicted him of the
offences and sentenced him as recorded earlier.
8. The appellant preferred appeal before the High Court
which has since been dismissed by the impugned
judgment as the High Court was also of the view that the
prosecution had been successful in proving the charges
beyond reasonable doubt.
9. We have heard learned counsel for the parties and
perused the material evidence on record.
10. The present one is a case of circumstantial evidence
as no one has seen the commission of crime. The law in
the case of circumstantial evidence is well settled. The
leading case being Sharad Birdhichand Sarda vs. State
of Maharashtra2. According to it, the circumstances
should be of a definite tendency unerringly pointing
towards the guilt of the accused; the circumstances taken
cumulatively should form a chain so complete that there
is no escape from the conclusion that within all human
probability the crime was committed by the accused and
they should be incapable of explanation on any hypothesis
other than that of the guilt of the accused and inconsistent
with his innocence. The said principle set out in the case
of Sharad Birdhichand Sarda (supra) has been
consistently followed by this Court. In a recent case –
Sailendra Rajdev Pasvan and Others vs. State of
Gujarat Etc.3, this Court observed that in a case of
circumstantial evidence, law postulates two-fold
requirements. Firstly, that every link in the chain of
circumstances necessary to establish the guilt of the
accused must be established by the prosecution beyond
reasonable doubt and secondly, all the circumstances
must be consistent pointing out only towards the guilt of
the accused. We need not burden this judgment by
referring to other judgments as the above principles have
been consistently followed and approved by this Court
time and again.
11. In the above backdrop of the settled legal
propositions, we proceed to deal with the facts,
circumstances and evidence of the present case and find
out as to whether each link of the chain of circumstances
is fully established by the prosecution or not.
12. The basic links in the chain of circumstances starts
with motive, then move on to last seen theory, recovery,
medical evidence, expert opinions if any and any other
additional link which may be part of the chain of
13. First of all, we may record that the prosecution has
not come forward with any motive whatsoever as to why
the appellant along with the co-accused juvenile ‘K’ would
commit the said crime. Even the Trial Court and the High
Court in the absence of any evidence have not been able
to record a finding on the motive for the commission of the
14. The High Court dealt with the aspect of motive in
solitary paragraph no.20, a perusal of which does not
reflect that any motive was noticed but that ‘juvenile K’
was the mastermind behind the crime and that he had
purchased the weapon of assault. This, by nowhere would
constitute a motive.
15. In a case of circumstantial evidence, motive has an
important role to play. Motive may also have a role to play
even in a case of direct evidence but it carries much
greater importance in a case of circumstantial evidence
than a case of direct evidence. It is an important link in
the chain of circumstances. Reference may be made to the
following two judgments on the importance of motive in a
case of circumstantial evidence:
(1) Kuna Alias Sanjaya Behera vs. State of Odisha4; and
(2) Ranganayaki vs. State by Inspector of Police5.
16. Next, in the present case, the dead body has not been
recovered. Only a limb was recovered but no DNA testing
was carried out to establish that the limb was that of the
deceased Kaushik Sarkar. As such the entire case of the
prosecution proceeds on presumption that Kaushik
Sarkar has died. The principle of corpus delicti has
judgments on both sides stating that conviction can be
recorded in the absence of the recovery of the corpus and
the other view that no conviction could be recorded in the
absence of recovery of the corpus. The later view is for the
reason that if subsequently the corpus appears as alive,
someone may have been convicted and sentenced and
suffered incarceration for no crime committed by him. We
are not going into the law on the point. However, we have
just recorded this fact and it may have some relevance or
bearing while considering the other links of the chain of
17. We now deal with the theory of last seen. In the first
information given by Arjun Das (PW-7) in the morning to
the police station, there is no mention that Kaushik left
his house along with the appellant and ‘juvenile K’. Arjun
Das (PW-7) has only stated that his nephew Kaushik had
left in the evening on the motor bike and had not returned.
Although in his statement before the Trial Court he stated
that Kaushik had gone with the appellant and juvenile ‘K’
but when confronted with his statement under Section
161 CrPC and also about the entry in the police records,
he had no explanation for the same.
18. PW-25 is the main witness of the last seen. She is
mother of Kaushik. She has stated that when she
returned from the office around 5 PM on 19.06.2007, she
saw Kaushik going out on the motor bike of his father.
When she inquired from him, he said he was going to
Fatikroy with the appellant and juvenile ‘K’. She further
stated that she followed her son upto the gate and saw the
appellant and ‘juvenile K’ standing at the gate. This
witness in her cross-examination when confronted with
her statement under Section 161 CrPC said that no such
statement is there, although according to her, she had told
the Investigating Officer that she had seen the appellant
and ‘juvenile K’ at her gate.
19. The conviction is based upon, apart from the
prosecution witnesses, on the extra-judicial confession of
the appellant as also ‘juvenile K’. According to both the
confessions, the appellant as also ‘juvenile K’ were waiting
at a culvert near the Fatikroy bazar where Kaushik Sarkar
came on his bike at about half past 5. From there all three
of them left on the bike. However, near the circuit house
he stopped the bike and wanted to check whether his
mother has come home from office. Both of them waited
near the circuit house and Kaushik Sarkar after checking
at home again came back to circuit house from where they
left for Kumarghat. If the extra-judicial confession is to be
accepted, the statement of last seen theory given by the
mother (PW-25) becomes difficult to be given any
credibility. However, even if we ignore the extra-judicial
confession, the statement of PW-25 appears to be an
improvement only to develop the last seen theory.
Inasmuch as neither in the telephone call of Arjun Das
(PW-7) recorded at the police station refers to Kaushik
leaving in the evening along with the appellant and
juvenile ‘K’ nor do the statements of PW-7 and PW-25
under Section 161 CrPC mention the name of the
appellant and juvenile ‘K’ having been seen leaving with
Kaushik from his residence. Two other witnesses were
also examined in support of the last seen theory but they
also do not inspire any confidence.
20. Insofar as the recoveries are concerned which again
is an important link in the chain of circumstances, the
recoveries have been from an open place. The dragging of
some heavy object from the place where the blood-stains
were noticed and ‘vojali’ was recovered, up to the edge of
the river and then recovering the motor bike from the place
from the bed of the river just below where the dragging
marks had come to an end is something quite normal and
expected. It was not a place which could be in the
exclusive knowledge of the appellant.
21. The extra-judicial confession is a weak piece of
evidence and especially when it has been retracted during
trial. It requires strong evidence to corroborate it and also
it must be established that it was completely voluntary
and truthful. In view of the discussion made above, we do
not find any corroborating evidence to support the extra-
judicial confession, rather the evidence led by prosecution
is inconsistent with the same.
22. In view of the discussion made above, we find that the
major links of the chain of circumstances have not been
proved by the prosecution evidence and as such it would
be unjust to uphold the conviction of the appellant. The
appellant would be entitled to benefit of doubt.
Accordingly, the appeal is allowed and the appellant is
acquitted of all the charges. Appellant is in judicial
custody. However, he was granted parole by the State. He
shall be released forthwith.
23. Pending applications, if any, are disposed of.
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The Supreme Court, on Tuesday, reversed a conviction recorded by the Trial Court, affirmed by the Tripura High Court on the ground that major links of the chain of circumstances had not been proved by the prosecution evidence in a case based on circumstantial evidence.
A Bench comprising Justice B.R. Gavai and Justice Vikram Nath was of the opinion that in the facts and circumstances of the present case, where a case based on circumstances evidence was not made out, it would be unjust to uphold the conviction. Considering the same, the Bench noted that the accused is entitled to benefit of doubt. It acquitted the accused of all charges and directed to release him. It is pertinent to note that though, as on Tuesday, the accused was in judicial custody, he has been granted parole by the State.
Background
The police, having been informed that blood was seen on a road, reached the location to find a vojali (big knife), a taga (thread) and some broken pieces of glass which appeared to be of the rear-view mirror of a motorcycle. The police noticed visible marks of dragging some heavy object in the jungle on the side of the concerned road. While they were carrying out their investigation, one Arjun Das informed the police station that his nephew Kaushik Sarkar had been missing since the previous evening. The police recorded the statement of Kaushik’s mother who informed them that on the previous evening he had gone out with two of his friends (including the appellant Indrajit Das). According to the prosecution, the two friends had confessed before the Investigating Officer that they had accompanied the deceased on his bike the evening he went missing. As per the Investigating Officer, the two friends assaulted Kaushik with vojalis and dragged his dead body and the motorcycle to the nearby river and threw them into the river. One of the accused was tried as a juvenile, while Indrajit faced a regular trial. At the trial Indrajit pleaded not guilty and claimed to be tried. The Trial Court convicted him for offences punishable under Section 302, 34 of the Indian Penal Code and sentenced him to life imprisonment and allied sentences to run concurrently. The High Court dismissed the appeal noting that the prosecution has been successful in proving charges beyond reasonable doubt.
In the present case, the dead body has not been recovered. Only a limb was recovered but no DNA testing was carried out to establish that the limb was that of the deceased Kaushik Sarkar. As such the entire case of the prosecution proceeds on presumption that Kaushik Sarkar has died.
Analysis by the Supreme Court
At the threshold, the Court noted that the case is of circumstantial evidence and ought to fulfil the two-fold requirements -
Every link in the chain of circumstances necessary to establish the guilt of the accused must be established beyond reasonable doubt; and All the circumstances must be consistently pointing towards the guilt of the accused
“The basic links in the chain of circumstances starts with motive, then move on to last seen theory, recovery, medical evidence, expert opinions if any and any other additional link which may be part of the chain of circumstances.”
Motive
The Court noted that the prosecution has not established motive as to why the accused had committed the crime. It observed that the Trial Court and the High Court had also not recorded a finding on motive. The Court was of the opinion that motive carries a much greater importance in a case based on circumstantial evidence than one of direct evidence. In this regard, the Court referred to the judgments in Kuna Alias Sanjaya Behera v. State of Odisha (2018) 1 SCC 296 and Ranganayaki v. State of Inspector of Police (2004) 12 SCC 521.
Recovery of body of the deceased
The dead body had not been recovered and the present case was based on the presumption that Kaushik Sarkar had died. No DNA test was carried out for the limb that was recovered. Referring to the principle of corpus delicti the Court stated that there are judgments on both sides - conviction can be recorded in absence of recovery of corpus and no conviction can be recorded in absence of corpus. The reason behind the latter view is that if the corpus is alive then one has to undergo sentence without having committed any offence. The Court recorded that the non-recovery of the corpse would have relevance in considering the links of chain of circumstances.
Last Seen Theory
The Court noted that Kaushik’s mother had stated that upon enquiry he had told her that he was going out with the accused. Following Kaushik to the gate, she had also seen the two friends. However in her cross-examination, she had denied making any such statement, though she conceded that she had told the Investigating Officer that she had seen the accused at her gate.
Extrajudicial Confession
As per the extrajudicial confession of the accused before the Investigating Officer, Kaushik Sarkar met them while they were waiting near a bazar. The Court noted that if the extrajudicial confession was to be accepted then the last seen theory of the mother would fall apart. The Court opined that the statement of the mother was an attempt to develop the last seen theory. Moreover, the Court observed that -
“The extra-judicial confession is a weak piece of evidence and especially when it has been retracted during trial. It requires strong evidence to corroborate it and also it must be established that it was completely voluntary and truthful.”
Recoveries
The recoveries were made from an open place and could not have been in the exclusive and special knowledge of the accused persons.
Case details
Indrajit Das v. State of Tripura| (SC) 152 |Criminal Appeal No. 609 of 2015|28th February, 2023|Justice B.R. Gavai v. Justice Vikram Nath
For Appellant(s) Ms. Madhumita Bhattacharjee, AOR Ms. Urmila Kar Purkayastha, Adv. Ms. Srija Choudhury, Adv. Ms. Piyali Paul, Adv. Ms. Arushi Mishra, Adv.
For Respondent(s) Mr. Shuvodeep Roy, AOR
Indian Evidence Act 1872- Circumstantial Evidence- Every link in the chain of circumstances necessary to establish the guilt of the accused must be established beyond reasonable doubt- All the circumstances must be consistently pointing towards the guilt of the accused- Para 10.
Indian Evidence Act 1872- In a case of circumstantial evidence, motive has an important role to play.It is an important link in the chain of circumstances-The basic links in the chain of circumstances starts with motive, then move on to last seen theory, recovery, medical evidence, expert opinions if any and any other additional link which may be part of the chain of circumstances - Para 12, 15
Indian Evidence Act 1872- Murder trial -principle of corpus delicti- non-recovery of the corpse would have relevance in considering the links of chain of circumstances -Para 16.
Indian Evidence Act 1872 -Extra-judicial confession-The extra-judicial confession is a weak piece of evidence and especially when it has been retracted during trial. It requires strong evidence to corroborate it and also it must be established that it was completely voluntary and truthful - Para 21
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2. The appellant has approached this Court being
aggrieved by the judgment and order dated 19 th September,
2019, passed by the Division Bench of the High Court of
Judicature at Madras, in Writ Petition No.16228 of 2014,
thereby denying the prayer made by the appellant for a
direction to the respondents to vacate the property.
3. The facts, in brief, giving rise to the present
The property in question, being the property con
sisting of vacant land situated at Old No.320, New No.469,
Anna Salai, Nandanam, Chennai 600035, admeasuring
6107 sq.ft. (hereinafter referred to as ‘the said premises”)
was leased to the predecessor of the respondent No.1
Bharat Petroleum Corporation Ltd. (hereinafter referred to
as “the BPCL”), viz., Burmah Shell Oil Storage and Dis
tributing Company of India by the predecessor of the appel
lant, initially for a period of 20 years in the year 1960.
Thereafter, the lease was renewed for another 20 years and
finally for another period of 11 years vide a registered lease
deed dated 23rd April, 1999. The said lease period came to
an end on 31st December, 2009. On the said premises, re
spondent No.1BPCL put up a petrol bunk, which was being
operated by the respondent No.2M/s Vijaya Auto Services,
its licensor.
Before the expiry of the lease period, i.e., 31 st De
cember, 2009, the appellant had issued a notice on 14 th Au
gust, 2008 to respondent No.1BPCL, thereby terminating
the lease. Thereafter, on 20th May, 2009, the appellant is
sued another notice to respondent No.1BPCL to vacate the
said premises. By subsequent notices dated 16 th July, 2009
and 3rd October, 2009, the appellant reiterated its demand.
Since respondent No.1BPCL neither vacated the
said premises nor took steps to formalize a fresh lease
agreement, the appellant approached the Madras High
Court praying for a direction to the respondents to vacate
the said premises.
It appears that, in the meantime, there were some
attempts to settle the matter, as the respondent No.1BPCL
had shown interest in purchasing the property outright.
However, the same did not fructify.
The matter originally was placed before the single
judge of the Madras High Court. On 25 th April, 2019, the
single judge of the Madras High Court passed the following
“With regard to maintainable of the writ
petition, in so far as the relief prayed for
in the writ petition, there is conflict of
judgment passed by this Court reported
in 2001(1) CTC l (W.A.No.2302 of
1999, dated 20.10.2000), 2001 (1)
CTC 10 (W.P.No.20061 of 1998, dated
(W.P.No.29312 of 2014), CDJ 2018
MHC 1772 (W.P.No.14883 of 2015,
dated 22.01.2018) and an unreported
judgment in W.P.No.7432 of 2009,
dated 22.10.2009 on the one hand held
that writ petition is not maintainable, and
the judgment passed by this. Court re
(W.P.No.B,l58 of 2001, dated
(W.P.No.44758 of 2002, dated
(W.A.No.1767 of 2003, dated
Nos. 630 & 657 of 2011, dated
12.12.2013) and unreported judgments
passed by this Court in W.A.Nos.1796 &
1893 of 2014 dated 29.8.2008,
W.P.No.13521 of 2002 dated
4.1.2011, W.A. No. 44 of 2000 dated
21.7.2000 and W.A. No.779 of 2008
dated 23.10.2008 on the other hand,
writ petition is maintainable.
Therefore, Registry is directed to place
this writ petition before the Hon'ble Chief
Justice for assigning the writ petition be
fore the appropriate Division Bench, so
as to decide the maintainability of the wit
petition.”
Pursuant to the aforesaid order, as per the
directions of the learned Chief Justice, the matter was
placed before the Division Bench of the High Court.
A preliminary objection was taken regarding the
maintainability of the writ petition on the ground that the
writ petition involved disputed questions of fact and as
such, was not maintainable.
It was, however, contended on behalf of the
appellant that no disputed questions of law or fact arose for
consideration and as such, in view of the law laid down by
this Court, the writ petition was maintainable.
The Division Bench by the impugned judgment
and order dated 19th September, 2019, held that the relief
claimed by the appellant for a direction to the respondents
to vacate the said premises could not be granted in a
petition under Article 226 of the Constitution of India and
relegated the appellant to the alternate remedy available in
The Division Bench in the impugned judgment
referred to the judgment of this Court in the case of C.
Albert Morris v. K. Chandrasekaran and others1,
wherein this Court has held that once the lease has expired
and the landlord has declined to renew the lease and where
the owner calls upon the erstwhile tenant to surrender
possession, he could no longer assert any right over the site.
The Division Bench also referred to the judgment
of this Court in the case of Hindustan Petroleum
Corporation Ltd. and another v. Dolly Das 2, wherein a
similar claim on behalf of the owner of the land was allowed
by this Court in writ jurisdiction.
However, the Division Bench found that the
aforesaid judgments of this Court had not considered the
aspect with regard to protection given to a tenant under the
enactments similar to Chennai City Tenants Protection Act,
1921 (hereinafter referred to as “the Tenants Act”).
The Division Bench has also referred to its earlier
judgments in paragraphs 57 and 58 of the impugned
judgment, which read thus:
“57. In Bharat petroleum Corporation
Ltd vs R.Ravikiran 2011 (5) CTC 437, a
division bench of this court while
disposing CRP (NPD), OSA and CMA) held
that oil company was in legal possession
of the subject land. While the actual
physical possession was with the dealers.
The court rejected the claim of the Oil
Companies under section 2(4) (ii) (a) in
view of the decision of the Honourable
Supreme Court in S.R Radhakrishnan vs
58. In the aforesaid case it was held
that actual physical possession was a
sine qua non for claiming the benefit of
section 9 of the Tamil Nadu City Tenants
Protection Act, 1972. However, while
concluding, the court observed that to
come within the definition of section 2(4)
(ii) (a) of the Act, the petroleum company
should be in actual possession of the
land and since they were not in actual
possession, they were not entitled to
protection under section 9 of the Act.
Similar view has been taken in several
other decisions.”
The Division Bench observed thus:
“59. This view of the Division Bench of
this court is now subject matter of appeal
in a batch of appeals and Special Leave
Petitions/appeal before the Hon’ble
Thereafter, the Division Bench referred to various
pronouncements of this Court as well as the Madras High
Court and observed that the conduct of the respondent
No.1BPCL was not befitting as an organ of a State.
Thereafter, the Division Bench observed thus:
“72. The remedy that is sought to be
obtained before us is a remedy which can
only be granted by a civil court or by the
commercial courts as the arrangement
between the petitioner and the
respondent arises out of a private
contract entered between them upto
73. Under section 3 of the Madras City
Tenants Protection Act, 1921, the 1st
respondent has a right to receive
compensation for the value for building
which may have been erected by them or
by their predecessor in interest and
subject to the Agreement. This
compensation is payable once eviction is
ordered.
74. Likewise, under section 9, a tenant
who is entitled to compensation under
section 3 of the Act, against whom
eviction proceeding has been instituted or
proceedings under section 41 of the
has a right to apply for an order of the
court to direct the landlord to sell whole
or part of land for his convenient
enjoyment and the court shall thereafter
fix the price of the minimum extent of the
land to be sold.
75. Therefore, to ask the 1st respondent
to vacate the property without giving the
1st respondent any remedy under the
provisions of the Madras City Tenants
Protection Act, 1921 would amount to by
passing the law and depriving the 1st
respondent of the legal remedy available
to it as per the dictum of the Hon’ble
Supreme Court in Bharat petroleum
Corporation Ltd versus N.R.Vairamani
76. We are therefore of the view that in
the present proceeding, the rights of the
1st respondent under Section 9 of the
Act, cannot be ignored. Whether the 1st
respondent to a tenant cannot be
determined here. Since we are not
conducting trial in a writ proceeding, we
cannot suo moto exercise power under
Section 9 of the Act.”
The Division Bench thereafter again referred to
the conduct of the respondent No.1BPCL in continuing to
occupy the said premises without paying any rent thereof.
The Division Bench goes on to observe that, “Though we
are perturbed by the conduct of the 1 st respondent, we
are unfortunate unable to come to the rescue of the
petitioner in this writ petition in view of the above
discussion.” (emphasis supplied).
It could thus clearly be seen that, though the
Division Bench found that the claim made in the writ
petition was almost similar to the claim, which was allowed
by it in the case of Bharat Petroleum Corporation Ltd. v.
R. Ravikiran and others3, it denied the relief to the
appellant only on the ground of protection granted under
the Tenants Act and that the view taken by the Madras High
Court in the case of R. Ravikiran (supra) was pending
before this Court.
We have to examine the correctness of the said
4. We have heard Shri V. Giri, learned Senior
Counsel appearing on behalf of the appellant and Shri
Kailash Vasdev, learned Senior Counsel appearing on behalf
of the respondents.
5. Shri V. Giri, learned Senior Counsel appearing on
behalf of the appellant submits that the issue is no more
res integra. This Court, speaking through a bench of three
judges, in the case of Bharat Petroleum Corporation
Limited v. R. Chandramouleeswaran and others 4 has
held that the tenants would not be entitled to benefit and
rights under the Tenants Act unless they are in actual
physical possession of the building constructed by them. He
submits that, in the present case also, undisputedly, re
spondent No.1BPCL has sublet/leased out the said
premises to the respondent No.2 and as such, it is not in
actual physical possession of the building constructed by it.
He therefore submits that the judgment of this Court in the
case of R. Chandramouleeswaran (supra) squarely applies
to the facts of the present case.
6. Learned Senior Counsel further submits that in
the present case, no disputed questions of law or facts arise
for consideration. As such, the Madras High Court while
exercising its jurisdiction under Article 226 of the
Constitution of India ought to have allowed the writ petition.
He further submits that respondent No.1BPCL is enjoying
the property without paying a single farthing from the date
of expiry of lease by efflux of time i.e. 31 st December, 2009
and as such, the conduct of the respondent No.1BPCL is
unbecoming of a statutory corporation, which is a State
within the meaning of Article 12 of the Constitution of India.
He therefore submits that while allowing the appeal and
directing the respondent No.1BPCL to handover vacant and
peaceful possession of the said premises to the appellant, it
will also be necessary that this Court directs the respondent
No.1BPCL to pay market rent from 31st December, 2009 till
the date of delivery of actual physical possession.
7. Shri Kailash Vasdev, learned Senior Counsel
appearing on behalf of the BPCL, on the contrary, submits
that the question as to whether the respondent No.1BPCL
has sublet or leased out the said premises to the
respondent No.2 is a disputed question of fact, which can
only be adjudicated upon by the parties before the
appropriate forum. He further submits that the view taken
by this Court in the case of R. Chandramouleeswaran
(supra) is not a correct view in law. He submits that the
perusal of the agreements entered into between the BPCL
with its dealers would show that the possession of the
premises, with all the control, is with the BPCL. The dealer
is only given a right to run the petrol pump. He therefore
submits that the High Court has rightly relegated the
appellant to the alternate remedy available in law.
8. Perusal of the impugned judgment rendered by
the Division Bench would reveal that though an objection
with regard to maintainability of the writ petition on the
ground of alternate remedy was seriously raised by the re
spondent No.1BPCL, the Division Bench was not impressed
much with the said submission. As a matter of fact, the
Division Bench not only referred to the judgment of this
Court in the case of ABL International Ltd. and another
v. Export Credit Guarantee Corporation of India Ltd.
and others5 but also emboldened the following observations
of this Court while reproducing paragraph 19 of the said
judgment, which reads thus:
“19. Therefore, it is clear from the
above enunciation of law that merely
because one of the parties to the
litigation raises a dispute in regard to
the facts of the case, the court
entertaining such petition under
Article 226 of the Constitution is not
always bound to relegate the parties to
a suit.”
9. The Division Bench also referred to the judgment
of this Court in the case of Dolly Das (supra), wherein this
Court held that in similar facts, appellants therein were
justified in approaching the writ Court under Article 226 of
the Constitution of India and directed the HPCL to handover
vacant possession and pay the monthly rent.
10. It is to be noted, as has been noted by the High
Court, that the Division Bench of the same High Court in its
decision in the case of R. Ravikiran (supra) had held that
oil company was in legal possession of the subject land,
while the actual physical possession was with the dealers.
The Division Bench specifically rejected the claim made by
the oil company under Section 2(4) (ii) (a) of the Tenants
Act, in view of the judgment of this Court in case of S.R.
Radhakrishnan and others v. Neelamegam6.
11. Having noted that to get the benefit under Section
9 of the Tamil Nadu City Tenants Protection Act, 1972, the
petroleum company should be in actual possession of the
land and since they were not in actual possession, they
were not entitled to protection under Section 9 of the
Tenants Act, the Division Bench in the impugned judgment
stopped at granting relief in favour of the appellant only on
the ground that the view of the Division Bench in R.
Ravikiran (supra) was subject matter of appeal in a batch
of Special Leave Petitions/Appeals pending before this
12. It could thus clearly be seen that the Division
Bench itself did not find much favour with the arguments
advanced on behalf of the respondent No.1BPCL with
regard to nonexercise of jurisdiction under Article 226 of
the Constitution of India on the ground of availability of
alternate remedy and declined the relief only on the ground
that the view taken by the other Division Bench in the case
of R. Ravikiran (supra) and other matters, was pending
consideration before this Court in a batch of appeals and
13. The said impediment is now no more in existence.
The view taken by the Division Bench in the case of R.
Ravikiran (supra) has been upheld by a Bench of three
judges of this Court in the case of R.
14. It will be relevant to refer to the following
observations of this Court in the case of R.
“17. A Division Bench of this Court vide
order dated 3122009 in Bharat Petro
leum Corpn. Ltd. v. Nirmala [Bharat Petro
leum Corpn. Ltd. v. Nirmala, (2020) 11
SCC 738] and other connected matters
while interpreting subclause (b) to Sec
tion 2(4)(ii) has held that the expression
“actual physical possession of land and
building” would mean and require the
tenant to be in actual physical posses
sion. The provisions would not be appli
cable if the tenant is not in actual physi
cal possession and has given the
premises on lease or licence basis to a
third party. The Court, however, did not
give any finding on the question whether
such benefit is available to the appellant
under Section 2(4)(i) or Section 2(4)(ii)(a).
We are reproducing the relevant portion
of the order which reads as under: (SCC
pp. 74042, paras 710 & 1314)
‘7. As regards subclause (b) of Sec
tion 2(4), we do not agree with the con
tention of Mr Nariman. On a plain
reading of subclause (b) we notice that
it uses the words “actual physical pos
session”. Had the word “possession”
alone been used in clause (b), as has
been done in clause (a), the legal posi
tion may have been different. However,
the words “actual physical possession”
are strong and emphatic. That means
that the factual state of affairs has to
be seen, not the legal or deemed state
of affairs. There is no doubt that the
appellant had handed over possession
to his licensee/agent who was in ac
tual physical possession of the suit
premises. When a statute uses strong
and emphatic words, we cannot twist
or give a strained interpretation to the
said words. The literal rule of interpre
tation is the first rule of interpretation
which means that if the meaning of a
statute is plain and clear then it
should not be given a twisted or
strained meaning. We will be giving a
strained and artificial interpretation to
the words “actual physical possession”
if we say that the appellant is deemed
to be in actual physical possession. We
cannot give such an interpretation to
subclause (b) of Section 2(4) of the Act
particularly since clause (a) only uses
the word “possession” and not “actual
physical possession”. Hence, we reject
the contention of Mr R.F. Nariman,
learned counsel appearing for the ap
pellant and hold that the appellant was
not in actual physical possession.
8. The Preamble of the Act makes it
clear that the Act applies where super
structure is constructed on the land,
which is leased. Hence, the submission
that clause (a) applies when there is no
superstructure erected on the vacant
land which was leased is not correct.
In fact, the Act was meant to give some
protection to leased land on which the
tenant constructed some superstruc
9. As regards the submission of Mr
Nariman that the appellant is entitled
to the benefit of subclause (a) of Sec
tions 2(4) of the Act, it appears that
this aspect has not been considered by
the High Court. In our opinion, the
High Court should have considered
whether the appellant is entitled to the
benefit of Section 2(4)(i) and sub
clause (a) of Section 2(4)(ii) of the Act.
10. We are not expressing any final
opinion on the question whether the
appellant is entitled to the benefit of
Sections 2(4)(i) and 2(4)(ii)(a) of the Act
as in our opinion it was incumbent
upon the High Court to have recorded
a finding on the said issue. Therefore,
we set aside the impugned judgment
and order [Bharat Petroleum Corpn.
Ltd. v. M. Nirmala, CRP (NPD) No. 1815
of 2002, order dated 2582005 (Mad)]
of the High Court and remand the mat
ter back to the Division Bench of the
High Court to record a finding on the
question whether the appellant is enti
tled to the benefit of Section 2(4)(i) and
subclause (a) of Section 2(4)(ii) of the
Act. Needless to mention, that the Divi
sion Bench of the High Court shall de
cide the said question in accordance
with law and uninfluenced by any ob
servation made by us in this order ex
cept the finding that the appellant is
not covered by subclause (b) of Sec
tion 2(4) of the Act. We make it clear
that we are not expressing any opinion
of our own on the other issue. We hope
and trust that the Division Bench of
the High Court will dispose of the case
expeditiously and preferably within a
period of six months from the date a
copy of this order is produced before it.
13. We are further of the opinion
that where the lessee is in actual phys
ical possession of the land over which
he has made construction then he is
entitled to an additional benefit given
by Section 9(1)(a)(ii) of the Act. How
ever, if the lessee who has made con
struction on the land let out to him but
was not subsequently in possession of
the same, as is the case of the appel
lants in the present cases, then he is
not entitled to the benefit of Section
9(1)(a)(ii) though he may be entitled to
the benefit of Section 9(1)(a)(i). These
are the questions on which the Divi
sion Bench of the High Court will
record a finding.
14. Therefore, we set aside the im
pugned judgments and orders of the
High Court and remand the matter
back to the Division Bench of the High
Court to record a finding on the ques
tion whether the appellant is covered
by Section 2(4)(i) and subclause (a) of
Section 2(4)(ii) of the Act and is entitled
to the benefit of Section 9(1). Needless
to mention, the Division Bench of the
High Court shall decide the said ques
tion in accordance with law and unin
fluenced by any observation made by
us in this order except our finding
about clause (b) of Section 2(4). We
make it clear that we are not express
ing any opinion of our own on other is
sues. We hope and trust that the Divi
sion Bench of the High Court will dis
pose of these cases expeditiously and
preferably within a period of six
months from the date a copy of this or
der is produced before it.’
18. Thus, while interpreting subclause
(b) to Section 2(4)(ii), this Court has
held that the expression “actual physi
cal possession of land and building”
would mean and require the tenant to
be in actual possession and subclause
(b) would not apply if the tenant has
sublet the building or has given the
premises on leave and licence basis.
The aforesaid decision would operate
as res judicata in the case of the appel
lant and the landlords who were par
ties to the decision. In other cases, it
would operate as a binding precedent
under Article 141 of the Constitution.”
15. It could thus be seen that this Court in the case
of R. Chandramouleeswaran (supra) has held that this
Court in the case of Bharat Petroleum Corporation
Ltd. v. Nirmala and others7 and other connected matters,
while interpreting the expression “actual physical posses
sion of land and building” would mean and require the ten
ant to be in actual physical possession and subclause (b)
would not apply if the tenant has sublet the building or has
given the premises on leave and licence basis. It further
held that the aforesaid decision would operate as res judi
cata in the case of the appellant and the landlords who were
parties to the said decision. It further held that in other
cases, it would operate as a binding precedent under Article
141 of the Constitution of India. Not only that, but this
Court made the position amply clear in the concluding para
graph 28, which reads thus:
“28. Recording the aforesaid position, we
dismiss the present appeals by the appel
lant, that is, the three petroleum compa
nies, and uphold the orders passed by
the High Court that the appellant tenants
would not be entitled to the benefit and
rights under the Act unless they are in
actual physical possession of the building
constructed by them. In other words, in
case the appellants have let out or
sublet the building or given it to third
parties, including dealers or li
censees, they would not be entitled to
protection and benefit under the Act.”
16. This Court has upheld the orders passed by the
High Court that the appellant tenants would not be entitled
to the benefit and rights under the Tenants Act unless they
are in actual physical possession of the building
constructed by them. The position is amply made clear by
observing that in case the appellants have let out or sublet
the building or given it to third parties, including dealers or
licensees, they would not be entitled to protection and
benefit under the Tenants Act.
17. Though Shri Kailash Vasdev, learned Senior
Counsel, attempted to assail the correctness of the said
judgment, such an exercise is not permissible in law. The
said judgment of this Court in the case of R.
Chandramouleeswaran (supra) is delivered by a Bench
consisting of three judges and we are bound by the view
taken therein.
18. We have perused the agreement between the re
spondent No.1BPCL and the respondent No.2 herein. Shri
Kailash Vasdev, learned Senior Counsel, fairly concedes
that all the agreements between the respondent No.1BPCL
and its dealers are identical. As such, when a Bench of
three judges of this Court in the case of R.
Chandramouleeswaran (supra), while considering a
similar agreement between the appellantBPCL and the
dealer, has held that since the appellant tenant was not in
actual physical possession, it was not entitled to the
protection under the Tenants Act, the said view is bound
even in the facts of the present case.
19. In the result, we find that the view taken by the
High Court, thereby relegating the appellant to the alternate
remedy available in law, is not sustainable.
20. As observed by the High Court, the conduct of the
respondent No.1BPCL in continuing with the occupation of
the said premises without paying any rent from 31 st
December, 2009 is unbecoming of a statutory corporation,
which is a State within the meaning of Article 12 of the
Constitution of India. We therefore find that while directing
the respondents to vacate the said premises and handover
peaceful and vacant possession to the appellant, it will also
be necessary in the interests of justice to direct the
respondent No.1BPCL to pay arrears of market rent from
31st December, 2009, till the date of delivery of possession
at the market rate.
21. In the result, the appeal is allowed in the
(i) The respondent No.1BPCL is directed to vacate and
handover peaceful and vacant possession of the said
premises to the appellant within a period of three
months from today.
(ii) The respondent No.1BPCL is directed to pay
arrears of market rent to the appellant from 31 st
December, 2009 till the date of handing over of
possession.
22. We postpone the issue of determination of market
rent for a period of three weeks from today. The appellant
as well as the respondents shall file their written
submissions with regard to the market rent with supporting
documents within a period of two weeks from today.
23. The respondent No.1BPCL shall also pay costs,
quantified at Rs.1,00,000/ (Rupees One lakh only) to the
24. The appeal is disposed of in the above terms.
Pending applications, if any, shall stand disposed of.
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The Supreme Court on Thursday (11th November) reiterated that the tenants ought to be in actual possession of the premises to avail the benefit of Section 9 of the Tamil Nadu City Tenants Protection Act, 1972, which deals with the application filed by the tenant before the Court to direct the landlord to sell the land. A bench comprising Justices L. Nageshwara Rao and B.R. Gavai allowed...
The Supreme Court on Thursday (11th November) reiterated that the tenants ought to be in actual possession of the premises to avail the benefit of Section 9 of the Tamil Nadu City Tenants Protection Act, 1972, which deals with the application filed by the tenant before the Court to direct the landlord to sell the land.
A bench comprising Justices L. Nageshwara Rao and B.R. Gavai allowed a civil appeal filed by National Company (appellant) against Bharat Petroleum Corporation Limited ("BPCL") for not vacating the premises leased out to them even after the term of the lease agreement had expired. In the factual context of the case, the Court further thought it fit to impose a cost of INR 1,00,000 (One Lakh) on BPCL, payable to the appellant.
The predecessor of BPCL viz., Burmah Shell Oil Storage and Distributing Company had entered into a lease agreement with the predecessor of the appellant for a vacant land back in the year 1960. The initial term of the lease was 30 years, which was renewed for another 20 years and subsequently for a period of 11 years, which came to an end on 31st December, 2009. A petrol pump was set up on the vacant land by BPCL and was sub-let to a dealer (M/s Vijaya Auto Services). Before the stipulated term of the lease came to an end, a notice of termination of lease was sent out to BPCL, thereafter in three subsequent notices the intention was reiterated by the appellant. Neither did BPCL vacate the premises, nor took measures to enter into a fresh agreement. Against such gross inaction, the appellants approached the Ld. Single Judge of the Madras High Court in a Writ Petition. While the matter was pending before the High Court, BPCL showed interest in buying out the premises, but the same did not materialise. Citing conflicting judgments of the Madras High Court with respect to maintainability of writ petition, the matter was referred by the Single Judge to the Division Bench. Though perturbed by the conduct of BPCL, the Division Bench could not grant the remedy sought while exercising jurisdiction in a Writ Petition. Therefore, the appellants approached the Apex Court seeking appropriate relief.
Contentions raised by appellant
The appellants submitted that in Bharat Petroleum Corporation Limited v. R. Chandramouleeswaran And Ors. (2020) 11 SCC 718, the Apex Court had held that tenants would not be entitled to the benefit of the Tenants Act unless they are in actual physical possession of the concerned building. Placing the judgment in the context of the present case, the appellants argued that BPCL having sub-let the concerned premises was no longer in actual possession.
It was further averred that considering there were no disputed questions of law and facts, the Division Bench ought to have allowed the reliefs sought in the Writ Petition.
It was pointed out by the appellants that the property was being consistently utilised by BPCL free of cost even when the term of the lease had expired. Therefore, a plea was raised to direct BPCL to pay rent from the day the lease ended till the delivery of actual possession. The appellants reckoned that -
"...the conduct of the respondent No.1 BPCL is unbecoming of a statutory corporation, which is a State within the meaning of Article 12 of the Constitution of India."
Contentions raised by BPCL
BPCL contended that the sub-letting of the premises was a disputed question of fact. The possession of the premises with all the controls always rested with BPCL and the same was argued to be evident from the sub-letting agreement. BPCL also went a step ahead to question the correctness of the judgment of the Supreme Court in R. Chandramouleeswaran in this regard.
Findings of the Supreme Court
Observing that in its judgment, the Division Bench had made reference to ABL International Ltd. and another v. Export Credit Guarantee Corporation of India Ltd. And Ors. (2004) 3 SCC 553, which held that a party disputing facts in a writ jurisdiction would not bind the court to relegate the parties to a suit, the Apex Court inferred that the Division Bench was not inclined to entertain the plea of BPCL challenging maintainability of writ on account of alternate remedy. Another judgement of the Supreme Court viz., Hindustan Petroleum Corporation Ltd. And Anr v. Dolly Das (2006) 1 SCC 228 wherein in similar fact situation, HPCL was directed to hand over vacant possession and pay rent in a writ jurisdiction, was also relied upon by the Division Bench.
The Supreme Court further noted that the benefit under Section 9 of the Tamil Nadu City Tenant Protection Act, 1972 could only be extended to the tenants who had actual possession. The said issue was considered by the Division Bench in the light of its judgment in Bharat Petroleum Corporation Ltd. v. R. Ravikiran 2011 (5) CTC 437, which had held that the oil company was in legal possession whereas the dealer was in actual position and therefore denied benefit under the Tenant Act. The Supreme Court took note of the fact that even after such elaborate discussions, the Division Bench did not grant relief to the appellants only on the ground that the decision in R. Ravikiran was challenged and the batch appeals were pending before the Supreme Court. The Court observed that "the said impediment is now no more in existence" since the view of the Division Bench in R. Ravikiran had been endorsed by the Apex Court in R. Chandramouleeswaran as under:
"18. Thus, while interpreting subclause (b) to Section 2(4)(ii), this Court has held that the expression "actual physical possession of land and building" would mean and require the tenant to be in actual possession and subclause (b) would not apply if the tenant has sublet the building or has given the premises on leave and licence basis. The aforesaid decision would operate as res judicata in the case of the appellant and the landlords who were parties to the decision. In other cases, it would operate as a binding precedent under Article 141 of the Constitution."
To clarify the position regarding actual and legal possession, the Apex Court referred to the concluding paragraph of R. Chandramouleeswaran:
"28. Recording the aforesaid position, we dismiss the present appeals by the appellant, that is, the three petroleum companies, and uphold the orders passed by the High Court that the appellant tenants would not be entitled to the benefit and rights under the Act unless they are in actual physical possession of the building constructed by them. In other words, in case the appellants have let out or sublet the building or given it to third parties, including dealers or licensees, they would not be entitled to protection and benefit under the Act." [emphasis supplied]"
The Court perused the agreement between the dealer and BPCL and observed that they were similar to the agreement in R. Chandramouleeswaran. The Court further stated that R. Chandramouleeswaran being a judgment passed by a three-judge bench was binding on them.
It was noticed by the Court that, BPCL had utilised the premise beyond the term of the lease without paying a penny to the appellant and therefore, apart from directing BPCL to vacate and handover peaceful and vacant possession within a period of three months from the date of judgment, it also directed BPCL to pay arrears of market rent from 31st December, 2009 (the last date of the lease) till the date of handing over of possession. However, the Court postponed the issue of determination of the market rent by three weeks from the date of judgement, providing time to the parties to file written submissions.
"...the conduct of the respondent No.1BPCL in continuing with the occupation of the said premises without paying any rent from 31st December, 2009 is unbecoming of a statutory corporation, which is a State within the meaning of Article 12 of the Constitution of India", the Court observed, while imposing cost of Rs one lakh on BPCL.
[Case Title: National Company, Represented by its Managing Partner v. The Territory Manager, Bharat Petroleum Corporation Ltd. And Ors. Civil Appeal No. 6726 of 2021]
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2. The two money suits filed by her having been dismissed by the
trial Court, but decreed by the First Appellate Court and the
decrees so passed by the First Appellate Court having been
reversed by the High Court in two second appeals, the plaintiff
appellant is back to square one and is before us in the above
3. We have heard Shri Rajiv Bhalla, learned counsel for the
appellant and Shri Nidhesh Gupta, learned senior counsel for the
4. The appellant herein filed two suits in Civil Suits No.15643
and 15592 of 2007 against the respondents herein, on the file of
the Court of the Civil Judge (Junior Division), Chandigarh, for
recovery of (i) a sum of Rs.10,48,000/ in the first suit; and (ii) a
sum of Rs.67,31,000/ in the second suit. The averments in the
first suit were as follows: (i) that the second respondent herein is
the sister of the appellant’s husband; (ii) that the first respondent
is the husband and the third respondent herein is the son of
respondent No.2; (iii) that the respondents herein (defendants in
the suit) were carrying on the business of dealing in building
materials under the name and style of Prem Chand Amar Chand;
(iv) that the appellant and her son are having a joint account in
ICICI Bank, Sector9, Chandigarh, where the respondents also
maintain an account; (v) that the respondents borrowed a sum of
Rs.10,50,000/from the appellant on 18.11.2003, by way of a
cheque; (vi) that though the respondents refunded a sum of
Rs.5,00,000/ on 7.08.2006, promising to repay the balance within
six months, they failed to honour the commitment; (vii) that,
therefore, the respondents were liable to pay a sum of
Rs.5,50,000/towards principal and a sum of Rs.4,98,000/
towards interest, thus, totaling to Rs.10,48,000/.
5. The averments in the second suit in brief were as follows: (i)
that in the year 20012002, respondent No.1 lured the plaintiff and
her husband to join him in his real estate business: (ii) that since
the appellant and her family were residing in Kurukshetra and the
respondents were living in Chandigarh, the respondent No.1 got the
signature of the appellant in some blank papers, on the ground
that it was not possible to shuttle every time between these two
places, whenever a transaction was to be completed; (iii) that the
appellant and her son were having account in the same branch of
the same bank in which respondent Nos.1 and 2 were also having
account; (iv) that with a view to make available necessary funds, for
the use of respondent No.1 in real estate dealings, the appellant
and her son kept substantial amounts to their credit in their bank
account; (v) that in March, 2006 the appellant and her husband
were shocked to find that substantial amounts totaling to
Rs.54,50,000/ had been withdrawn from their account on different
dates by the respondents; (vi) that on her request, the bank officers
produced the records, which disclosed that a cheque dated
30.12.2005 for a sum of Rs.25,00,000/, signed by respondent
No.3 by forging the signature of the plaintiff had been encashed,
apart from the withdrawal of a sum of Rs.9,50,000/ on 9.05.2005
and the transfer of another sum of Rs.20,00,000/ purportedly on
the written request of the appellant on 27.8.2005; (vii) that the
withdrawals/ transfer of these amounts were not authorized by the
appellant, but had been done by misusing the signatures obtained
from the appellant; (viii) that after finding out these facts, the
appellant lodged a complaint in FIR No.195 on 14.12.2006 against
the respondents for the offences punishable under Sections 420,
467, 468 and 471 read with Section 120B of the Indian Penal
Code; (ix) that the respondents were granted anticipatory bail in the
criminal case, upon their furnishing bank guarantee for a sum of
Rs.50,00,000/ and (x) that the amounts withdrawn by/transferred
to the account of the defendants, together with interest @ 12% per
annum worked out to Rs.67,31,000/ and (xi) that therefore they
were filing the suit for recovery of the said amount.
6. The case of the respondents in the first suit for recovery of
Rs.10,48,000/ was: (i) that they never borrowed any money from
the appellant; (ii) that the amount received by them under the
cheque dated 18.11.2003 was for the purpose of investment in a
property, which was part of the real estate business; (iii) that the
payment of Rs.5,00,000/ made by them on 7.08.2006 was in full
and final settlement of the claim, after a compromise was arrived at
the intervention of three persons by name Satish Kumar, Prem Raj
Aggarwal and O.P. Gupta; and (iv) that since there was no
borrowing, the question of payment of interest does not arise and
that the suit was liable to be dismissed.
7. In their written statement of the second suit, it was contended
by the respondents: (i) that the appellant and the respondents
started doing real estate business jointly from the year 20012002;
(ii) that they purchased and sold many properties and shared the
profits; (iii) that the respondents never got the signatures of the
appellant in blank papers; (iv) that the amounts represented by the
cheques dated 9.05.2005, 27.08.2005 and 30.12.2005 were
towards the investment made by the appellant and her son in the
real estate business; (v) that the appellant issued confirmation
letters to the bank, which showed that the payments under those
cheques were authorized payments; (vi) that the appellant’s son
actually gave an affidavit both on his behalf and on behalf of the
appellant; (vii) that in the said affidavit, it was admitted by the
appellant’s son that out of the amounts paid under the three
cheques, a sum of Rs.30,00,000/ was given, out of love and
affection; (vii) that the appellant filed a false complaint, as though
the respondents cheated her and withdrawn money by forging the
signatures; (viii) that in view of the allegations against the bank,
the appellant ought to have impleaded the bank as a party to the
suit and (ix) that no money is due and payable by the respondents
to the appellant.
8. Before the trial Court, the appellant examined her husband as
PW1 and examined herself as PW2. The first respondent
examined himself as DW1 and he examined as DWs 2 and 3, the
third party mediators, in the presence of whom a settlement was
purportedly arrived at. The respondents marked a photocopy of the
letter addressed to the Manager of the bank bearing the signature
of the appellant as Exhibit D1. They also filed the confirmation
letter dated 2.01.2006 as Exhibit D2 and the affidavit purportedly
signed by the appellant’s son both on his behalf and on behalf of
the appellant, as Exhibit D3.
9. By a judgment and decree dated 23.01.2013, the trial Court
dismissed the first suit on the ground that the appellantplaintiff
failed to establish the advancement of the loan and that her failure
to examine her son, who was the joint account holder, as a witness
in the suit, was fatal. The trial Court also held the suit was not
within the period of limitation.
10. By a separate Judgment and decree dated 22.07.2013, the
trial Court dismissed the second suit on the ground that the parties
were in real estate business and that the payment of Rs.5,00,000/
in full and final settlement on 7.08.2006, stood proved by the
version of third party mediators examined as DW2 and DW3. The
Court also held that the appellant failed to establish fraud on the
part of the respondents.
11. The district Judge, Chandigarh by two separate Judgments
dated 18.03.2015, allowed the first appeals filed by the appellant in
Civil Appeal Nos.903 and 1056 of 2013 and granted a decree in the
first suit for recovery of Rs.5,50,000/ together with interest @
7.5% per annum from the due date till the date of decree and
interest @ 6% per annum from the date of the decree till realization.
In the second suit, the trial court granted a decree for recovery of
Rs.54,50,000/ together with interest @ 7.5 % per annum till the
date of the decree and @ 6% per annum from the date of the decree
till realisation.
12. The respondents filed two second appeals in RSA Nos.6134 of
2015 and 130 of 2016. Both the second appeals were allowed by
the High Court by a Judgment and decree dated 20.03.2018
resulting in the dismissal of the 2 money suits filed by the
appellant. Not stopping with the mere allowing of the appeals, the
High Court went a step further by directing the appellant to refund
the amount of Rs.55,00,000/ paid by the respondents, by virtue of
the order passed in the anticipatory bail application, together with
interest @ 7% per annum. It is against the said common judgment
that the plaintiffappellant has come up with the above appeals.
13. The Contention of the Shri Rajiv Bhalla, learned counsel for
the appellant is that the trial Court as well as the High Court went
completely on a wrong track by accepting the plea of full and final
settlement set up by the respondents and that the High Court went
overboard in passing an order for refund of money paid in the
proceedings for grant of anticipatory bail.
14. Per contra, it is contended by Mr. Nidhesh Gupta, learned
senior counsel for the respondent that the failure of the appellant
to implead her son as a coplaintiff or atleast to examine him as a
witness, coupled with her own admissions as PW2, falsified her
case. Once it was found that the payments to the respondents were
authorized and once it was established through third party
mediators that there was a settlement, the appellantplaintiff was
bound to fail and that therefore, the judgment of the High Court
does not warrant any interference.
15. We have carefully considered the rival contentions and have
also gone through the pleadings, evidence and the Judgments of all
the three Courts.
16. As we have seen earlier, the first suit was for recovery of a sum
of Rs.5,50,000/, which remained unrefunded, out of the amount
of Rs.10,50,000/ allegedly paid by way of loan. The receipt of
Rs.10,50,000/ by way of cheque No.459745 dated 18.11.2003 was
admitted by the respondents. Similarly the repayment of
Rs.5,00,000/ by the respondents to the plaintiffappellant on
7.08.2006 is admitted by the appellant. The only defence set up by
the respondents was that the payment of Rs.5,00,000/ made by
them on 7.08.2006 was by way of full and final settlement. To show
that there was a full and final settlement, the respondents
examined two third party mediators. But no receipt was taken by
the respondents from the appellant that the payment of
Rs.5,00,000/ on 7.08.2006 was in full and final settlement. There
was also no written memorandum of compromise/settlement.
When payment of a certain amount of money and the repayment of
only a portion of the same are admitted, the party pleading that
such a part repayment was in full and final settlement, has a huge
burden cast upon him to show that there was a settlement. Oral
evidence of the so called third party mediators, is not sufficient to
establish full and final settlement, in cases of this nature, where all
transactions have happened only through banking channels and
the defendants claimed that there were business transactions. It is
unbelievable that the respondents, who reached such a settlement,
failed to have the same recorded in black and white, either in the
form of a memo or in the form of a receipt.
17. Interestingly, Exhibit D3 filed by the respondents is an
affidavit purportedly signed and verified by the appellant’s son on
8.03.2006, both on his behalf and on behalf of his mother (the
appellant), agreeing to treat a sum of Rs.30,00,000/ paid by the
appellant, as a payment made out of love and affection. If, on
8.03.2006, the appellant and her son were gracious enough to treat
a huge amount of Rs.30,00,000/ as one made out of love and
affection, there could have been no occasion for a dispute requiring
mediation at the intervention of third parties, on 7.8.2006,
resulting in the payment of Rs.5,00,000/ by the respondents to
the appellant in full and final settlement. Unfortunately, all the
three Courts failed to juxtapose these two events which happened
in an interval of five months, to see through the game.
18. In simple terms, the case of the appellantplaintiff in the first
suit was one of lending and nonpayment. The defence set up by
the respondents was one of payment of a lesser amount (than the
original amount), in full and final settlement. A party who admits
receipt of certain amount of money on a particular date and pleads
discharge by way of a full and final settlement at a latter date, is
the one on whom the onus lies. This onus was not discharged by
the respondents in the first suit and, hence, the plaintiff was
entitled to succeed in the first suit. The High Court completely
overlooked this aspect.
19. Coming to the second suit, the case of the appellantplaintiff
was that various amounts of money were either withdrawn from or
transferred out of their accounts, by the defendants unauthorisedly
and that the amounts so taken away totaled to Rs.54,50,000/. The
defence of the respondents was that the amounts represented
authorized payments for the purchase and sale of properties in a
real estate business and that out of those amounts, a sum of
Rs.30,00,000/ was treated as a payment made out of love and
20. Let us assume for a moment that the amount of
Rs.54,50,000/ either withdrawn or transferred from out of the
account of the appellant by the respondents represented authorized
payments, made by the appellant towards investment in real estate
business. In such a case, the respondents are obliged to produce
the accounts of the real estate business and show how those
amounts were accounted for. The respondents could not produce
any books of account. Therefore, the respondents thought it
convenient to claim that all those amounts were investments in a
real estate business and that a portion of it was agreed to be
treated as a gratuitous payment. Investments in business dealings
and gratuitous payments do not normally go together. As in the
first case, the flow of money from the account of the appellant
plaintiff into the respondents’ account is admitted. While the
appellantplaintiff termed such a flow of money as unauthorized
withdrawal /transfer, the respondents claimed the same to be part
of investment in real estate business. In the light of such a defence,
the onus, even in the second suit, was on the defence to show that
there were business dealings and that the amount stood completely
accounted for. No books of accounts were produced by the defence
to show that the amounts that flowed out of the plaintiff’s bank
account were absorbed and accounted for within business.
21. Exhibit D3 affidavit is a very curious document whose
admissibility itself is questionable. It starts with a solemn
affirmation reading “We Anita Rani,…. and Sulabh Singla… do
hereby solemnly affirm and declare as under”. But it is signed only
by Singla. According to this affidavit, sworn on 8.03.2006, the
appellantplaintiff and her son had given Rs.30,00,000/ to the
respondents out of love and affection. The affidavit goes further to
say that there was no transaction between the deponents and the
respondents. This affirmation allegedly made on 8.03.2006 that
there was no transaction between them, stands in contrast to the
claim of full and final settlement made on 7.08.2006.
22. In a suit for recovery of money, a defendant admitting the
receipt of money but pleading that the same was a gratuitous
payment, is obliged to prove that it was a gratuitous payment. As a
matter of fact Exhibit D3 affidavit dated 8.03.2006 does not use
the expression “gratuitous payment”, but uses the expression “love
and affection”. But this affidavit also states that there was no
transaction between the deponents and the respondents. Thus
while placing reliance upon this affidavit, the defendants actually
pleaded a mutually contradictory case, as reflected in paragraph 8
of the written statement which reads as follows:
“It is added that from the aforesaid amount, a sum of Rs.
30.00 lacs was given by the plaintiff to the defendants out of
love and affection being near relations and there was no
transaction between plaintiff and defendants to that effect.
Suit for recovery of the amount against the defendant by the
plaintiffs is not maintainable as the defendants are under no
legal obligation to pay back the amount to the plaintiff. The
defendants never borrowed the amount nor are under any
obligation to pay back the amount to the plaintiff. Copy of the
affidavit is attached herewith. Subsequently, the defendants
had settled their accounts pertaining to sale purchase of
properties jointly as well as other properties purchased in
order to run property dealer business and a sum of Rs. 5.00
lacs was paid to the plaintiff on 7.8.2006 in full and final
settlement of her claim through cheque dated 7.8.2006 and
the said cheque has been encashed by the plaintiff. The said
compromise was got arrived at by the intervention of Shri
Shri Dev Raj Aggarwal and Shri O.P. Gupta S/o Shri Raghu
Nath Gupta. The plaintiff accepted the said cheque of a sum
of Rs. 5.00 lacs in adjustment/settlement of all the accounts
with regard to the amounts taken in satisfaction of her claim
fully and finally.
23. If as per the above pleadings and Ex. D3, there was no
transaction, but a huge amount of Rs.30,00,000/ was treated on
8.03.2006 as a gratuitous payment, there was no occasion for the
settlement of any accounts on 7.08.2006 resulting in a full and
final settlement of the claim.
24. If the parties have had business dealings from the year 2001
2002, it is hard to believe that a part of the amounts that flowed
out of the account of the plaintiff, was out of love and affection. The
only piece of evidence on the basis of which the gratuitous nature
of payment is sought to be proved is Exhibit D3, but it does not
contain the signature of the appellant. Therefore, the plea of
gratuitous payment is unbelievable and was not established by the
25. Once the plea of gratuitous payment falls to the ground,
Section 70 of the Indian Contract Act, 1872 will come into play.
“70. Obligation of person enjoying benefit of non
gratuitous act. Where a person lawfully does anything for
another person, or delivers anything to him, not intending to
do so gratuitously, and such other person enjoys the benefit
thereof, the latter is bound to make compensation to the
former in respect of, or to restore, the thing so done or
delivered.”
26. As held by this Court in the State of West Bengal vs. B.K.
Mondal & Sons1, Section 70 is based on the premise that
something was done by one party for another and that the work so
done voluntarily, was accepted by the other. Therefore, as a
corollary, the plea that there was a subsisting contract in the
nature of business transactions, is antithetic to the very essence of
section 70. This is why section 70 forms part of Chapter V of the
Indian Contract Act, which is titled as “Of certain relations
resembling those created by contract”.
27. As pointed out earlier, the respondents have admitted that the
moneys as claimed by the appellantplaintiff were either paid by the
plaintiff or flown out of the plaintiff’s account into their own
account. Therefore, the onus was actually on the respondents to
prove either a discharge by way of settlement of accounts or the
gratuitous nature of the payment. The respondents miserably failed
to discharge the onus of proof so cast upon them. Hence, the
plaintiffappellant is entitled to a decree despite a few discrepancies
in her evidence, especially when the discrepancies have no bearing
upon the payment/flow of monies from the plaintiff to the
28. In view of the above, the appeals are allowed. The Judgment
and decrees of the High Court are set aside and the Judgment and
decrees of the First Appellate Court are restored. In other words,
there will be a decree in both the suits, as per the Judgment of the
District Court, Chandigarh dated 18.03.2015 in Civil Appeal
Nos.903 and 1056 of 2013. The appellant will be entitled to costs in
these appeals which we quantify at Rs.50,000/. The amount
deposited by the appellant pursuant to the Order passed by this
Court on 18.05.2018 and deposited in an interest bearing fixed
deposit pursuant to the Order passed by this Court on 14.12.2018
shall be released by the Registry to the appellant together with the
accrued interest.
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The Supreme Court has held that when payment of money and repayment of a portion of it is admitted by a party, then the onus to establish that there was full and final settlement of the dues is also on that party."A party who admits receipt of certain amount of money on a particular date and pleads discharge by way of a full and final settlement at a latter date, is the one on whom the...
The Supreme Court has held that when payment of money and repayment of a portion of it is admitted by a party, then the onus to establish that there was full and final settlement of the dues is also on that party.
"A party who admits receipt of certain amount of money on a particular date and pleads discharge by way of a full and final settlement at a latter date, is the one on whom the onus lies", the Court observed.
A Bench comprising Justices Hemant Gupta and V. Ramasubramanian allowed an appeal challenging the order of the Punjab and Haryana High Court, which had set aside the order and decree of the first appellate court in two money suits, initially dismissed by the trial court. It further imposed a cost of Rs. 50,000 on the respondents.
Factual Background
The Appellant filed two money suits against the respondents for recovery of Rs. 10,48,000 and Rs. 67,31,000 respectively. In the first instance, the appellant alleged that the respondents borrowed a sum of Rs. 10,50,000 and repaid only Rs. 5,00,000. The principal amount along with interest stood at Rs. 10,48,000. In the second suit, the appellant alleged that the respondent lured the appellant and her husband into his real estate business and got the signature of the appellant in some blank papers for ease in business transactions. Later, the appellant found out that an amount of Rs. 54,50,000 had been withdrawn from her account without her knowledge. In this regard, an FIR was lodged against the respondents under Section 420, 467, 468 and 471 read with Section 120-B of the IPC. However, the respondents were granted anticipatory bail upon furnishing a bank guarantee of Rs. 50,00,000. So, the principal amount along with 12 % interest stood at a sum of Rs. 67,31,000.
In the first suit, the respondents admitted the receipt of the money and took the plea that they had paid Rs. 5,00,000 on 07.08.2006 as full and final settlement. For the second suit, the defence taken by the respondents was that the money was received for business transactions, out of which Rs 30,00,000 was given to the respondents by the appellant and his son out of love and affection.
The trial court had dismissed both the suits. On appeal, the first appellate court reversed the order of the trial court which was eventually set aside by the High Court in the second appeal. The High Court had also directed the appellant to refund the money that the respondents had paid in the proceedings for grant of anticipatory bail.
Contentions raised by the parties
Advocate, Mr. Rajiv Bhalla, appearing on behalf of the appellant argued that the trial court and the High Court had erred to accept the respondents' plea of full and final settlement. Senior Advocate, Mr. Nidhesh Gupta contended that the failure to implead the appellant's son in the suit is fatal for her case. He averred that once it was established that the payments to the respondents were authorised, and also the fact that there was a settlement, the case of the appellant fell flat.
Analysis of the Supreme Court
The Court observed that the respondents admitted that they had received Rs. 10,50,000 from the appellant, but claimed that the full and final settlement was for an amount of Rs. 5,00,000. It opined that when the full and final settlement was of a lesser amount than the admitted principal amount received from the appellant, the burden to establish that there was a settlement was cast upon the respondents. It further noted that oral evidence of third party mediators would not suffice, especially when there is no written memorandum of compromise/settlement.
"There was also no written memorandum of compromise/settlement. When payment of a certain amount of money and the repayment of only a portion of the same are admitted, the party pleading that such a part repayment was in full and final settlement, has a huge burden cast upon him to show that there was a settlement. Oral evidence of the so called third party mediators, is not sufficient to establish full and final settlement, in cases of this nature, where all transactions have happened only through banking channels and the defendants claimed that there were business transactions."
The Court observed that with respect to the second suit, the defence of the respondents was that the money received by the appellant was with respect to an investment in real estate business. Out of this amount, Rs. 30,00,000 was a payment made by the appellant and her son to the respondents out of love and affection and an affidavit signed by the appellant's son to this effect was adduced as evidence. The Court opined that the onus was on the respondents to show that there were business transactions and the money was accounted for, which it had utterly failed to do.
"In a suit for recovery of money, a defendant admitting the receipt of money but pleading that the same was a gratuitous payment, is obliged to prove that it was a gratuitous payment."
Further, on perusal of the affidavit dated 08.03.2006, the Court found that there was a material contradiction, as it stated that there was no transaction between the appellant and the respondents, but the respondents on 07.08.2006, made a full and final settlement.
[Case Title: Anita Rani v. Ashok Kumar And Ors., Civil Appeal Nos. 7750-7751 of 2021]
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1. Feeling aggrieved and dissatisfied with the impugned
judgment and order dated 14.09.2016/19.09.2016 passed by the
High Court of Himachal Pradesh, Shimla in Criminal Appeal No.
36 of 2014, by which the High Court has allowed the said appeal
preferred by the State and has quashed and set aside the
judgment and order of acquittal passed by the learned trial Court
acquitting the appellant herein – original accused for the offences
under Sections 376 and 506 of the IPC and consequently has
convicted the appellant – accused for the aforesaid offences and
has sentenced him to undergo seven years R.I. with fine of Rs.
10,000/ and in default of payment of fine, further six months
R.I. under Section 376 IPC and four years R.I. with fine of
Rs.5,000/ and in default of payment of fine, further three
months R.I. under Section 506 IPC, the original accused has
preferred the present appeal.
2. The facts leading to the present appeal in nutshell are as
That the father of the prosecutrix lodged an FIR against the
accused with the allegations that on 1.4.2008, his wife
Dhaneshwari Devi telephonically informed him at Shimla that
their daughter (prosecutrix) is pregnant. It was alleged that the
prosecutrix told her mother that when she used to go to jungle to
graze goats and cattle, accused also used to go to jungle to graze
cattle and goats. The prosecutrix told her mother that threefour
months ago, accused had sexual intercourse with her forcibly
and without her consent. That the accused threatened the
prosecutrix not to disclose the incident to anyone. That due to
fear and due to forgetting the same and further due to mental
weakness, she did not disclose about the incident to anyone
including her mother. That the prosecutrix was got medically
examined and as per the Medical Officer the prosecutrix was
carrying a pregnancy of 31 weeks. Her age was stated to be 19
years. Prosecutrix was alleged to be mentally retarded. She was
medically examined at IGMC, Shimla as well as PGI, Chandigarh.
Prosecutrix gave birth to a female child on 19.6.2008 at KNH,
Shimla. Blood samples of the prosecutrix, the baby and the
accused were taken for DNA test. As per report, accused was the
biological father of the female child. The accused was arrested.
After completion of the investigation, the Investigating Officer
submitted the chargesheet against the accused for the offences
under Sections 376 and 506 IPC. The accused pleaded not guilty
and therefore he came to be tried by the learned trial Court for
the aforesaid offences.
2.1 To prove the case against the accused, the prosecution
examined as many as 23 witnesses including the parents of the
Professor, Department of Psychiatry (PW11), Dr. Jeeva Nand
(PW22) and other witnesses. That after closure of the evidence
on behalf of the prosecution, statement of the accused under
Section 313 Cr.P.C. was recorded. He pleaded total innocence.
The learned trial Court acquitted the accused mainly on the
ground of delay in lodging the FIR and also on the ground that
the prosecutrix was not mentally unsound to understand the
consequences and what was happening.
3. Feeling aggrieved and dissatisfied with the judgment and
order of acquittal passed by the learned trial Court, the State
preferred appeal before the High Court and by the impugned
judgment and order and on reappreciation of the entire evidence
on record, more particularly the medical evidence, the High Court
has reversed the order of acquittal and has convicted the accused
for the offences under Sections 376 and 506 IPC by observing
that the prosecutrix was not in a position to understand the good
and bad aspect of the sexual assault. On reappreciation of the
entire evidence on record, the High Court came to the conclusion
that the IQ of the prosecutrix was 62 and that she had mild
mental retardation.
4. Feeling aggrieved and dissatisfied with the impugned
judgment and order of conviction and sentence passed by the
High Court convicting the accused for the aforesaid offences, the
original accused has preferred the present appeal.
5. Ms. Radhika Gautam, learned Advocate has appeared for
the appellant and Mr. Sarthak Ghonkrokta, Advocate has
appeared for the respondentState.
5.1 Ms. Radhika Gautam, learned Advocate appearing on behalf
of the appellant – accused has vehemently submitted that in the
facts and circumstances of the case the High Court has
materially erred in reversing the acquittal and convicting the
accused in an appeal against acquittal. It is submitted that
cogent reasons were given by the learned trial Court, which were
on appreciation of the evidence on record, and therefore the same
were not required to be interfered with by the High Court in
exercise of the appellate jurisdiction in an appeal against
5.2 Learned counsel for the appellantaccused has made the
i) there was a delay of four months in registering the FIR from
the time the prosecution claimed the incident occurred and
therefore the learned trial Court rightly acquitted the accused;
ii) even the father of the prosecutrix (PW1) clearly deposed that
the appellant – accused was called to discuss the matter and he
offered to take care of the child but refused to marry the
prosecutrix. It is submitted therefore that the FIR was filed only
as a vengeful act. It is submitted that the appellantaccused was
not in a position to marry the prosecutrix as the appellant was
married and was having the children of his own;
iii) as such there is a delay of 8 months from the date of
incident in filing the FIR. It is submitted that the prosecutrix
when examined the day after registering the FIR dated 22.4.2008
is found to be carrying a foetus of 8 months. It is submitted that
it is not believable that the parents were not aware of the
iv) as such the prosecutrix was not suffering from mild mental
retardation as claimed by the prosecution. It is submitted that
two psychiatrists gave a different account of which language the
prosecutrix seems to know. It is submitted that one says she
knew ‘Hindi’ and other says she knew ‘Phari’ and he had to use
the interpreter. It is submitted that this is a major discrepancy
in the prosecution’s case when one Doctor who is supposed to
have assessed her for mental faculties and therefore must have
asked her many questions which she spoke in Hindi and the
other Doctor who is also supposed to ask her a lot of questions in
Phari and he had to use the interpreter. It is submitted that
therefore either both of them or at least one of them is not stating
v) even there are material contradictions in the deposition of
the prosecutrix as well as the mother, sister and father of the
prosecutrix inasmuch as the prosecutrix said that she came to
know about her pregnancy from her family members when they
told her about it, whereas the testimony of the mother, sister and
father reveal that it was clearly the prosecutrix who informed her
vi) the High Court has mainly relied upon the medical evidence
of PW22 while coming to the conclusion that the prosecutrix was
having mild mental retardation. It is submitted that deposition of
PW22 is compared with the deposition of other family members.
As rightly observed by the learned trial Court, the prosecutrix
was a person capable of understanding her welfare and quite
5.3 Making the above submissions and relying upon the
decision of this Court in the case of Krishna v. State of Karnataka
(2014) 15 SCC 596, it is submitted that the High Court has
clearly erred in reversing the order of acquittal passed by the
learned trial Court which was based on appreciation of evidence
on record and the view taken by the learned trial Court was a
plausible view.
5.4 It is further submitted by the learned Advocate appearing on
behalf of the appellant – accused that out of seven years
imprisonment, the accused has already undergone four years
and therefore it is prayed to allow the present appeal and quash
and set aside the impugned judgment and order passed by the
High Court and in the alternative to reduce the sentence to the
period already undergone by the accused.
6. While opposing the present appeal, the learned Advocate
appearing on behalf of the State has vehemently submitted that
in the facts and circumstances of the case the High Court has
rightly reversed the order of acquittal passed by the learned trial
Court and has rightly convicted the accused for the offences
under Sections 376 and 506 IPC, more particularly when the
prosecutrix was suffering from mental disease and as per the
medical evidence she was not in a position to understand the
good and bad aspect of sexual assault.
6.1 Learned counsel for the State has made the following
i) as the first appellate court the High Court was well within
its jurisdiction to reappreciate the entire evidence on record and
to come to the right conclusion. It is submitted that in the
present case the High Court has rightly reappreciated the entire
evidence on record, more particularly the medical evidence;
ii) the aspect of delay in lodging the FIR has already been dealt
with and considered by the High Court. It is submitted that as
such the accused had taken undue advantage of the mental
condition of the prosecutrix and therefore even if there is any
material contradiction, the benefit shall not go to the accused
and the benefit must go in favour of such a victim who is
suffering from a mental disease and not in a position to
understand the good and bad aspect of sexual assault;
iii) that in the present case even the conduct on the part of the
accused is also required to be appreciated. It is submitted that it
is an admitted position that the accused had sexually intercourse
with the prosecutrix and because of that the prosecutrix was
pregnant and delivered a baby child. Accused is not now
disputing that the child does not belong to him. Despite the
above, in his 313 Cr.P.C. statement his case was of a total denial
and innocence and it was not even his case that the prosecutrix
was a consenting party and that he had sexually intercourse with
the consent of the prosecutrix. It is submitted that thus the
accused in his 313 statement came out with a false case and did
iv) now so far as the submission on behalf of the accused that
out of seven years RI, the accused has undergone four years RI
and therefore the same may be considered in favour of the
accused is concerned, it is submitted that the minimum sentence
provided for the offence under Section 376 is seven years and the
same can be reduced only by giving a special reasons. It is
submitted that in the present case, as such, the High Court has
already taken a lenient view by awarding seven years RI only. It
is submitted that when it is a case of sexual assault on a person
suffering from mental sickness and the accused has taken
disadvantage of the mental condition of the victim, such cases
should be dealt with an iron hand and no leniency should be
shown to such accused.
6.2 Making the above submissions, it is prayed to dismiss the
present appeal.
7. We have heard the learned counsel for the respective parties
at length.
At the outset, it is required to be noted that by the
impugned judgment and order the High Court has convicted the
accused for the offences under Section 376 and 506 IPC. It is
also required to be noted that on reappreciation of the evidence,
the High Court found that the IQ of the victim was very low and
she was suffering from mental illness and she was not in a
position to understand good and bad aspect of sexual assault. It
is also required to be noted and it is not in dispute that the
accused had sexually intercourse with the victim and that the
victim delivered a baby child and that the accused is found to be
the biological father of the baby child delivered by the victim. It
is also required to be noted that in the 313 statement the case of
the accused was of a total denial. It was not his case that it was
a case of consent. Thus, the accused, as such, came with a false
8. It is true that the learned trial Court acquitted the accused.
However, the High Court on reappreciation of the entire evidence
on record has found the accused guilty for the offences under
Sections 376 & 506 IPC and has reversed the order of acquittal
passed by the learned trial Court. It is the case on behalf of the
appellantaccused that in an appeal against order of acquittal
passed by the learned trial Court, the High Court has committed
a grave error in convicting the accused and reversing the order of
acquittal passed by the learned trial Court. Therefore, the first
thing which is required to be considered in the facts and
circumstances of the case is, whether the High Court is justified
in interfering with the order of acquittal passed by the learned
trial Court and thereby convicting the accused?
9. Before considering the appeal on merits, the law on the
appeal against acquittal and the scope and ambit of Section 378
Cr.P.C. and the interference by the High Court in an appeal
against acquittal is required to be considered.
9.1 In the case of Babu v. State of Kerala, (2010) 9 SCC
189), this Court had reiterated the principles to be followed in an
appeal against acquittal under Section 378 Cr.P.C. In
paragraphs 12 to 19, it is observed and held as under:
12. This Court time and again has laid down the guidelines for the
High Court to interfere with the judgment and order of acquittal
passed by the trial court. The appellate court should not ordinarily
set aside a judgment of acquittal in a case where two views are
possible, though the view of the appellate court may be the more
probable one. While dealing with a judgment of acquittal, the
appellate court has to consider the entire evidence on record, so as
to arrive at a finding as to whether the views of the trial court were
perverse or otherwise unsustainable. The appellate court is entitled
to consider whether in arriving at a finding of fact, the trial court
had failed to take into consideration admissible evidence and/or
had taken into consideration the evidence brought on record
contrary to law. Similarly, wrong placing of burden of proof may
also be a subjectmatter of scrutiny by the appellate court. (Vide
Balak Ram v. State of U.P (1975) 3 SCC 219, Shambhoo Missir v.
State of Bihar (1990) 4 SCC 17, Shailendra Pratap v. State of U.P
(2003) 1 SCC 761, Narendra Singh v. State of M.P (2004) 10 SCC
699, Budh Singh v. State of U.P (2006) 9 SCC 731, State of U.P. v.
Ram Veer Singh (2007) 13 SCC 102, S. Rama Krishna v. S. Rami
Reddy (2008) 5 SCC 535, Arulvelu v. State (2009) 10 SCC 206,
Perla Somasekhara Reddy v. State of A.P (2009) 16 SCC 98 and
13. In Sheo Swarup v. King Emperor AIR 1934 PC 227, the Privy
“… the High Court should and will always give proper weight and
consideration to such matters as (1) the views of the trial Judge as
to the credibility of the witnesses; (2) the presumption of innocence
in favour of the accused, a presumption certainly not weakened by
the fact that he has been acquitted at his trial; (3) the right of the
accused to the benefit of any doubt; and (4) the slowness of an
appellate court in disturbing a finding of fact arrived at by a Judge
who had the advantage of seeing the witnesses.”
14. The aforesaid principle of law has consistently been followed by
this Court. (See Tulsiram Kanu v. State AIR 1954 SC 1, Balbir Singh
v. State of Punjab AIR 1957 SC 216, M.G. Agarwal v. State of
Maharashtra AIR 1963 SC 200, Khedu Mohton v. State of Bihar
(1970) 2 SCC 450, Sambasivan v. State of Kerala (1998) 5 SCC 412,
Bhagwan Singh v. State of M.P(2002) 4 SCC 85 and State of Goa v.
15. In Chandrappa v. State of Karnataka (2007) 4 SCC 415, this
Court reiterated the legal position as under: (SCC p. 432, para 42)
“(1) An appellate court has full power to review, reappreciate and
reconsider the evidence upon which the order of acquittal is
(2) The Code of Criminal Procedure, 1973 puts no limitation,
restriction or condition on exercise of such power and an appellate
court on the evidence before it may reach its own conclusion, both
on questions of fact and of law.
(3) Various expressions, such as, ‘substantial and compelling
reasons’, ‘good and sufficient grounds’, ‘very strong circumstances’,
‘distorted conclusions’, ‘glaring mistakes’, etc. are not intended to
curtail extensive powers of an appellate court in an appeal against
acquittal. Such phraseologies are more in the nature of ‘flourishes
of language’ to emphasise the reluctance of an appellate court to
interfere with acquittal than to curtail the power of the court to
review the evidence and to come to its own conclusion.
(4) An appellate court, however, must bear in mind that in case of
acquittal, there is double presumption in favour of the accused.
Firstly, the presumption of innocence is available to him under the
fundamental principle of criminal jurisprudence that every person
shall be presumed to be innocent unless he is proved guilty by a
competent court of law. Secondly, the accused having secured his
acquittal, the presumption of his innocence is further reinforced,
reaffirmed and strengthened by the trial court.
(5) If two reasonable conclusions are possible on the basis of the
evidence on record, the appellate court should not disturb the
finding of acquittal recorded by the trial court.”
16. In Ghurey Lal v. State of U.P (2008) 10 SCC 450, this Court
reiterated the said view, observing that the appellate court in
dealing with the cases in which the trial courts have acquitted the
accused, should bear in mind that the trial court’s acquittal
bolsters the presumption that he is innocent. The appellate court
must give due weight and consideration to the decision of the trial
court as the trial court had the distinct advantage of watching the
demeanour of the witnesses, and was in a better position to
evaluate the credibility of the witnesses.
17. In State of Rajasthan v. Naresh (2009) 9 SCC 368, the Court
again examined the earlier judgments of this Court and laid down
“20. … an order of acquittal should not be lightly interfered with
even if the court believes that there is some evidence pointing out
the finger towards the accused.”
18. In State of U.P. v. Banne (2009) 4 SCC 271, this Court gave
certain illustrative circumstances in which the Court would be
justified in interfering with a judgment of acquittal by the High
Court. The circumstances include: (SCC p. 286, para 28)
“(i) The High Court’s decision is based on totally erroneous view of
law by ignoring the settled legal position;
(ii) The High Court’s conclusions are contrary to evidence and
(iii) The entire approach of the High Court in dealing with the
evidence was patently illegal leading to grave miscarriage of justice;
(iv) The High Court’s judgment is manifestly unjust and
unreasonable based on erroneous law and facts on the record of
(v) This Court must always give proper weight and consideration to
(vi) This Court would be extremely reluctant in interfering with a
case when both the Sessions Court and the High Court have
recorded an order of acquittal.”
A similar view has been reiterated by this Court in Dhanapal v.
19. Thus, the law on the issue can be summarised to the effect
that in exceptional cases where there are compelling
circumstances, and the judgment under appeal is found to be
perverse, the appellate court can interfere with the order of
acquittal. The appellate court should bear in mind the
presumption of innocence of the accused and further that the trial
court’s acquittal bolsters the presumption of his innocence.
Interference in a routine manner where the other view is possible
should be avoided, unless there are good reasons for interference.”
9.2 When the findings of fact recorded by a court can be
held to be perverse has been dealt with and considered in
paragraph 20 of the aforesaid decision, which reads as under:
“20. The findings of fact recorded by a court can be held to be
perverse if the findings have been arrived at by ignoring or
excluding relevant material or by taking into consideration
irrelevant/inadmissible material. The finding may also be said to
be perverse if it is “against the weight of evidence”, or if the finding
so outrageously defies logic as to suffer from the vice of
irrationality. (Vide Rajinder Kumar Kindra v. Delhi Admn (1984) 4
SCC 635, Excise and Taxation OfficercumAssessing Authority v.
v. CCE 1994 Supp. (3) SCC 665, Gaya Din v. Hanuman Prasad
(2001) 1 SCC 501, Aruvelu v. State (2009) 10 SCC 206 and Gamini
Bala Koteswara Rao v. State of A.P (2009) 10 SCC 636).”
9.3 It is further observed, after following the decision of
this Court in the case of Kuldeep Singh v. Commissioner of Police
(1999) 2 SCC 10, that if a decision is arrived at on the basis of no
evidence or thoroughly unreliable evidence and no reasonable
person would act upon it, the order would be perverse. But if
there is some evidence on record which is acceptable and which
could be relied upon, the conclusions would not be treated as
perverse and the findings would not be interfered with.
9.4 In the recent decision of Vijay Mohan Singh v. State of
Karnataka, (2019) 5 SCC 436, this Court again had an occasion
to consider the scope of Section 378 Cr.P.C. and the interference
by the High Court in an appeal against acquittal. This Court
considered catena of decisions of this Court right from 1952
onwards. In paragraph 31, it is observed and held as under:
“31. An identical question came to be considered before this Court
in Umedbhai Jadavbhai (1978) 1 SCC 228. In the case before this
Court, the High Court interfered with the order of acquittal passed
by the learned trial court on reappreciation of the entire evidence
on record. However, the High Court, while reversing the acquittal,
did not consider the reasons given by the learned trial court while
acquitting the accused. Confirming the judgment of the High
Court, this Court observed and held in para 10 as under: (SCC p.
“10. Once the appeal was rightly entertained against the order of
acquittal, the High Court was entitled to reappreciate the entire
evidence independently and come to its own conclusion.
Ordinarily, the High Court would give due importance to the
opinion of the Sessions Judge if the same were arrived at after
proper appreciation of the evidence. This rule will not be
applicable in the present case where the Sessions Judge has
made an absolutely wrong assumption of a very material and
clinching aspect in the peculiar circumstances of the case.”
31.1. In Sambasivan v. State of Kerala (1998) 5 SCC 412, the High
Court reversed the order of acquittal passed by the learned trial
court and held the accused guilty on reappreciation of the entire
evidence on record, however, the High Court did not record its
conclusion on the question whether the approach of the trial court
in dealing with the evidence was patently illegal or the conclusions
arrived at by it were wholly untenable. Confirming the order passed
by the High Court convicting the accused on reversal of the
acquittal passed by the learned trial court, after being satisfied
that the order of acquittal passed by the learned trial court was
perverse and suffered from infirmities, this Court declined to
interfere with the order of conviction passed by the High Court.
While confirming the order of conviction passed by the High Court,
this Court observed in para 8 as under: (SCC p. 416)
“8. We have perused the judgment under appeal to ascertain
whether the High Court has conformed to the aforementioned
principles. We find that the High Court has not strictly
proceeded in the manner laid down by this Court in Ramesh
Babulal Doshi v. State of Gujarat (1996) 9 SCC 225 viz. first
recording its conclusion on the question whether the approach
of the trial court in dealing with the evidence was patently illegal
or the conclusions arrived at by it were wholly untenable, which
alone will justify interference in an order of acquittal though the
High Court has rendered a wellconsidered judgment duly
meeting all the contentions raised before it. But then will this
noncompliance per se justify setting aside the judgment under
appeal? We think, not. In our view, in such a case, the approach
of the court which is considering the validity of the judgment of
an appellate court which has reversed the order of acquittal
passed by the trial court, should be to satisfy itself if the
approach of the trial court in dealing with the evidence was
patently illegal or conclusions arrived at by it are demonstrably
unsustainable and whether the judgment of the appellate court
is free from those infirmities; if so to hold that the trial court
judgment warranted interference. In such a case, there is
obviously no reason why the appellate court’s judgment should
be disturbed. But if on the other hand the court comes to the
conclusion that the judgment of the trial court does not suffer
from any infirmity, it cannot but be held that the interference by
the appellate court in the order of acquittal was not justified;
then in such a case the judgment of the appellate court has to
be set aside as of the two reasonable views, the one in support of
the acquittal alone has to stand. Having regard to the above
discussion, we shall proceed to examine the judgment of the trial
court in this case.”
31.2. In K. Ramakrishnan Unnithan v. State of Kerala (1999) 3 SCC
309, after observing that though there is some substance in the
grievance of the learned counsel appearing on behalf of the
accused that the High Court has not adverted to all the reasons
given by the trial Judge for according an order of acquittal, this
Court refused to set aside the order of conviction passed by the
High Court after having found that the approach of the Sessions
Judge in recording the order of acquittal was not proper and the
conclusion arrived at by the learned Sessions Judge on several
aspects was unsustainable. This Court further observed that as the
Sessions Judge was not justified in discarding the
relevant/material evidence while acquitting the accused, the High
Court, therefore, was fully entitled to reappreciate the evidence and
record its own conclusion. This Court scrutinised the evidence of
the eyewitnesses and opined that reasons adduced by the trial
court for discarding the testimony of the eyewitnesses were not at
all sound. This Court also observed that as the evaluation of the
evidence made by the trial court was manifestly erroneous and
therefore it was the duty of the High Court to interfere with an
order of acquittal passed by the learned Sessions Judge.
31.3. In Atley v. State of U.P. AIR 1955 SC 807, in para 5, this
Court observed and held as under: (AIR pp. 80910)
“5. It has been argued by the learned counsel for the appellant that
the judgment of the trial court being one of acquittal, the High
Court should not have set it aside on mere appreciation of the
evidence led on behalf of the prosecution unless it came to the
conclusion that the judgment of the trial Judge was perverse. In
our opinion, it is not correct to say that unless the appellate court
in an appeal under Section 417 Cr.P.C came to the conclusion that
the judgment of acquittal under appeal was perverse it could not
set aside that order.
It has been laid down by this Court that it is open to the High
Court on an appeal against an order of acquittal to review the
entire evidence and to come to its own conclusion, of course,
keeping in view the wellestablished rule that the presumption of
innocence of the accused is not weakened but strengthened by the
judgment of acquittal passed by the trial court which had the
advantage of observing the demeanour of witnesses whose evidence
have been recorded in its presence.
It is also well settled that the court of appeal has as wide powers of
appreciation of evidence in an appeal against an order of acquittal
as in the case of an appeal against an order of conviction, subject
to the riders that the presumption of innocence with which the
accused person starts in the trial court continues even up to the
appellate stage and that the appellate court should attach due
weight to the opinion of the trial court which recorded the order of
If the appellate court reviews the evidence, keeping those principles
in mind, and comes to a contrary conclusion, the judgment cannot
be said to have been vitiated. (See in this connection the very cases
cited at the Bar, namely, Surajpal Singh v. State AIR 1952 SC 52;
Wilayat Khan v. State of U.P AIR 1953 SC 122) In our opinion, there
is no substance in the contention raised on behalf of the appellant
that the High Court was not justified in reviewing the entire
evidence and coming to its own conclusions.
31.4. In K. Gopal Reddy v. State of A.P. (1979) 1 SCC 355, this
Court has observed that where the trial court allows itself to be
beset with fanciful doubts, rejects creditworthy evidence for slender
reasons and takes a view of the evidence which is but barely
possible, it is the obvious duty of the High Court to interfere in the
interest of justice, lest the administration of justice be brought to
ridicule.”
10. Having gone through the impugned judgment and order
passed by the High Court and also the judgment and order of
acquittal passed by the learned trial Court, we are of the firm
opinion that in the facts and circumstances of the case the High
Court is justified and, as such, has not committed any error in
reversing the order of acquittal passed by the learned trial Court
and convicting the accused for the offences under Sections 376
and 506 IPC. Being the first appellate Court and as observed
hereinabove in the aforesaid decisions the High Court was
justified in reappreciating the entire evidence on record and the
reasoning given by the learned trial Court. In the facts and
circumstances of the case, the High Court has acted within the
parameters of the law laid down by this Court in the decisions,
referred to hereinabove.
11. So far as the merit of the appeal is concerned, on re
appreciation of the entire evidence on record, more particularly
the deposition of doctors examined as PW11 – Dr. Ramesh
Kumar and PW22 – Dr. Rama Malhotra, the High Court has
specifically found that the IQ of the victim was 62 which was
based on the history and mental state examination of the victim.
The High Court has also come to the conclusion that the victim
was not in a position to understand the good and bad aspect of
the sexual assault. Merely because the victim was in a position
to do some household works cannot discard the medical evidence
that the victim had mild mental retardation and she was not in a
position to understand the good and bad aspect of sexual
assault. It appears that the accused had taken disadvantage of
the mental illness of the victim. It is required to be appreciated
coupled with the fact that the accused is found to be the
biological father of the baby child delivered by the victim. Despite
the above, in his 313 statement the case of the accused was of a
total denial. It was never the case of the accused that it was a
case of consent. Therefore, considering the evidence on record,
more particularly the deposition of PW11 and PW22 and even the
deposition of the other prosecution witnesses, the High Court has
rightly observed that case would fall under Section 375 IPC and
has rightly convicted the accused for the offence under Section
376 IPC. Even as per clause fifthly of Section 375 IPC, “a man is
said to commit rape”, if with her consent when, at the time of
giving such consent, by reason of unsoundness of mind, is
unable to understand the nature and consequences of that to
which she gives consent. As observed hereinabove, even it is not
the case on behalf of the accused that it was a case of consent.
On evidence, it has been established and proved that the victim
was mentally retarded and her IQ was 62 and she was not in a
position to understand the good and bad aspect of sexual
assault. The accused has taken disadvantage of the mental
sickness and low IQ of the victim.
12. Now so far as the submission on behalf of the accused that
there are contradictions in the statement of PW11 – Dr. Ramesh
Kumar and PW22 – Dr. Rama Malhotra that she was not knowing
‘Hindi’ and that she was only knowing ‘Phari’ and therefore in
view of such contradictions the benefit of doubt must go in favour
of the accused is concerned, the aforesaid aspect has been
explained by PW22 in her crossexamination. In the cross
examination, PW22 Dr. Rama Malhotra has specifically stated
that the language is not material in the tests because these are
independent of language. From the medical evidence, it emerges
that IQ 62 falls in the category of ‘mild mental retardation’. It
has also emerged that the mental status and IQ are determined
on the basis of the injuries and activities. IQ of a person can be
known on the basis of the questions, activities and the history of
a patient. Therefore, even if there might be some contradictions
with respect to language known by the victim, in that case also, it
cannot be said to be the major contradictions to disbelieve the
entire medical evidence on the mental status of the victim.
Therefore, the High Court is justified in reversing the order of
acquittal and convicting the accused for the offences under
13. Now so far as the submission on behalf of the accused that
he has already undergone four years RI out of seven years RI
awarded to him and is married and has two children and
therefore a lenient view may be taken is concerned, it is required
to be noted that as such the High Court has also taken a very
lenient view by imposing the minimum sentence of seven years
RI. It is required to be noted that it is a case of sexual assault on
a victim whose IQ was 62 and was mentally retarded and that
accused has taken undue advantage of the mental
sickness/illness of the victim. A person suffering from mental
disorder or mental sickness deserves special care, love and
affection. They are not to be exploited. In the present case, the
accused has exploited the victim by taking disadvantage of her
mental sickness/illness. Therefore, no interference of this Court
against the impugned judgment and order passed by the High
Court convicting the accused is called for.
14. In view of the above and for the reasons stated hereinabove,
the present appeal fails and deserves to be dismissed and is
accordingly dismissed.
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The Supreme Court has upheld the conviction of a man accused of raping a mentally disabled girl with low IQ.Chaman Lal, the accused, was acquitted by the Trial Court mainly on the ground of delay in lodging the FIR and also on the ground that the prosecutrix was not mentally unsound to understand the consequences and what was happening. In appeal, on reappreciating the entire evidence...
The Supreme Court has upheld the conviction of a man accused of raping a mentally disabled girl with low IQ.
Chaman Lal, the accused, was acquitted by the Trial Court mainly on the ground of delay in lodging the FIR and also on the ground that the prosecutrix was not mentally unsound to understand the consequences and what was happening. In appeal, on reappreciating the entire evidence on record, the High Court concluded that the IQ of the prosecutrix was 62 and that she had mild mental retardation. The High Court sentenced him to undergo seven years R.I. with fine of Rs. 10,000/ and in default of payment of fine, further six months R.I. under Section 376 IPC and four years R.I. with fine of Rs.5,000/ and in default of payment of fine, further three months R.I. under Section 506 IPC.
Before the Apex Court, the accused contended that the FIR was filed only as a vengeful act by the father of the Prosecuterix for refusing to marry her. He contended that he was not in a position to marry the prosecutrix as he was married and was having the children of his own.
While considering the appeal filed by accused, the Apex Court bench noted that there is not in dispute that the accused had sexually intercourse with the victim and that the victim delivered a baby child and that the accused is found to be the biological father of the baby child delivered by the victim.
The court further noted that the deposition of doctors revealed that the IQ of the victim was 62 which was based on the history and mental state examination of the victim. Agreeing with the findings of the High Court, the bench comprising Justices Ashok Bhushan, R. Subhash Reddy and MR Shah said:
"The High Court has also come to the conclusion that the victim was not in a position to understand the good and bad aspect of the sexual assault. Merely because the victim was in a position to do some household works cannot discard the medical evidence that the victim had mild mental retardation and she was not in a position to understand the good and bad aspect of sexual assault. It appears that the accused had taken disadvantage of the mental illness of the victim. It is required to be appreciated coupled with the fact that the accused is found to be the biological father of the baby child delivered by the victim. Despite the above, in his 313 statement the case of the accused was of a total denial. It was never the case of the accused that it was a case of consent. Therefore, considering the evidence on record, more particularly the deposition of PW11 and PW22 and even the deposition of the other prosecution witnesses, the High Court has rightly observed that case would fall under Section 375 IPC and has rightly convicted the accused for the offence under Section 376 IPC. Even as per clause fifthly of Section 375 IPC, "a man is said to commit rape", if with her consent when, at the time of giving such consent, by reason of unsoundness of mind, is unable to understand the nature and consequences of that to which she gives consent. As observed hereinabove, even it is not the case on behalf of the accused that it was a case of consent. On evidence, it has been established and proved that the victim was mentally retarded and her IQ was 62 and she was not in a position to understand the good and bad aspect of sexual assault. The accused has taken disadvantage of the mental sickness and low IQ of the victim."
The court further noted that, IQ 62 falls in the category of 'mild mental retardation' and that the mental status and IQ are determined on the basis of the injuries and activities. "IQ of a person can be known on the basis of the questions, activities and the history of a patient. Therefore, even if there might be some contradictions with respect to language known by the victim, in that case also, it cannot be said to be the major contradictions to disbelieve the entire medical evidence on the mental status of the victim", it said. Refusing to interfere with the sentence imposed by the High Court, the bench said:
"It is required to be noted that it is a case of sexual assault on a victim whose IQ was 62 and was mentally retarded and that 23 accused has taken undue advantage of the mental sickness/illness of the victim. A person suffering from mental disorder or mental sickness deserves special care, love and affection. They are not to be exploited. In the present case, the accused has exploited the victim by taking disadvantage of her mental sickness/illness. Therefore, no interference of this Court against the impugned judgment and order passed by the High Court convicting the accused is called for."
Case: Chaman Lal vs. State of Himachal Pradesh [CRIMINAL APPEAL NO. 1229 OF 2017] Coram: Justices Ashok Bhushan, R. Subhash Reddy and MR Shah
Read Judgment
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1. Feeling aggrieved and dissatisfied with the impugned
judgment and order dated 23.10.2019 passed by the High
Court of Kerala at Ernakulam in OP (CAT) No.171 of 2019, by
which the High Court has allowed the said original petition
(OP) and set aside the order passed by the learned Central
Administrative Tribunal, Ernakulam Bench and has declared
that respondent Nos.1 & 2 herein – original petitioners are
entitled to grade pay of Rs.6600/ on their third financial
upgradation as per the Modified Assured Career Progression
(MACP) Scheme and they be paid the pension accordingly
with effect from April, 2015, the Director, Directorate of
Enforcement, New Delhi and another – original respondents
before the High Court, have preferred the present appeal.
2. That the private respondent Nos.1 & 2 herein were appointed
as Assistant Enforcement Officer (AEO) in the year 1976 and
1977, respectively. That in the year 2009, the Government of
India – Ministry of Personnel, Public Grievance and Pensions
(Department of Personnel and Training) notified the MACP
Scheme for the Central Government Civilian Employees. The
Scheme further provided as per clause 8.1 (which is relevant
so far as the present matter is concerned) ‘consequently upon
the implementation of Sixth CPC’s recommendations, grade
pay of Rs.5400 is now in two pay bands viz., PB2 and PB3.
It further provided that the grade pay of Rs.5400 in PB2 and
Rs.5400 in PB3 shall be treated as separate grade pays for
the purpose of grant of upgradations under MACP Scheme’.
However, it so happened that while granting third financial
upgradation vide order dated 17.11.2009, the private
respondents herein and others were granted the grade pay of
Rs.6600 for PB3 under MACP Scheme, though as per clause
8.1 PB3 carried the grade pay of Rs.5400. However, on the
objection being raised by the Audit Department their grade
pays (GP) of Rs.6600 in PB3 was modified/corrected as GP
of Rs.5400 as per clause 8.1. Therefore, respondent Nos.1
and 2 herein approached the Central Administrative
Tribunal, Ernakulam Bench and prayed to continue the GP
of Rs.6600 as per the earlier order dated 17.11.2009 and not
to make any recovery. A decision of the Madras High Court
was pressed into service by which a similar order of
withdrawing the GP of Rs.6600 and to grant GP Of Rs.5400
for PB3 was set aside. On relying upon the clause 8.1 of the
MACP Scheme by which the implementation of Sixth CPC’s
recommendations, grade pay of Rs.5400 was in two pay
bands i.e., PB2 and PB3 and for grant of upgradation under
MACP Scheme they shall be treated as separate grade pays,
the learned Tribunal dismissed the original application (OA).
3. Feeling aggrieved and dissatisfied with the judgment and
order passed by the Central Administrative Tribunal
dismissing the said OA, respondent Nos.1 & 2 herein
preferred the original petition before the High Court. By the
impugned judgment and order and ignoring clause 8.1 of
the MACP Scheme the High Court has allowed the said
petition by observing that the next promotion post of
Assistant Director which is in the PB3 would be that of
Deputy Director which carries a grade pay of Rs.6600, when
the third financial upgradation is due to an employee, it has
to be of the next promotional post in the hierarchy as per
the Recruitment Rules. Feeling aggrieved and dissatisfied
with the impugned judgment and order passed by the High
Court, the department has preferred the present appeal.
4. Ms. Madhavi Divan, learned ASG appearing on behalf of the
appellants has vehemently submitted that the impugned
judgment and order passed by the High Court is just
contrary to the decision of the Delhi High Court in the case
of National Council of Educational Research & Training
as well as to the decision of this Court in the case of Union
of India and others Vs. M.V. Mohanan Nair (2020) 5 SCC
4.1 It is submitted that on interpretation of very MACP Scheme,
it is observed and held by this Court that the employees are
entitled to the grade pay as provided under the MACP
Scheme which has been framed on the recommendations of
the pay commission. It is submitted that on interpreting
MACP Scheme, it is specifically observed and held by this
Court that MACP Scheme envisages merely placement in
the immediate next higher grade pay in the hierarchy of the
recommended revised pay bands and grade pay as given in
Section 1, Part A of the First Schedule of the CCS (Revised
Pay) Rules, 2008 and has nothing to do with the next
promotional post.
4.2 It is submitted that in the present case the High Court has
allowed the grade pay of Rs.6600. However, as per clause
8.1, PB2 and PB3 carried grade pay of Rs.5400 and it
specifically provided that the grade pay of Rs.5400 in PB2
and grade pay of Rs.5400 in PB3 shall be treated as
separate grade pays for the purpose of grant of upgradation
under MACP Scheme. It is submitted that therefore
respondent Nos.1 & 2 – original petitioners as per the MACP
Scheme shall be entitled to the grade pay of Rs.5400 i.e.,
next grade pay for PB3. It is submitted that as such by the
impugned judgment and order and directing to grant grade
pay of Rs.6600 the High Court has modified the MACP
Scheme and has granted the benefit of three steps upward.
4.3 Making the above submissions and relying upon the
aforesaid decisions, it is prayed to allow the present appeal.
5. The present appeal is vehemently opposed by Shri Mathai
Paikaday, learned Senior Advocate appearing on behalf of
the private respondent Nos.1 & 2 herein.
5.1 It is vehemently submitted by learned Senior Advocate
appearing on behalf of the private respondent Nos.1 & 2
that the employee shall be entitled to the next higher pay
and the submissions made on behalf of the appellants that
both PB2 and PB3 shall carry grade pay of Rs.5400 is
accepted in that case the purpose of highergrade pay shall
be frustrated. It is submitted that when the next higher
grade pay would be Rs.6600, the High Court has rightly
directed to grant grade pay of Rs.6600.
5.2 It is submitted that it is true that the High Court has
wrongly used the word next promotion post. It is submitted
that the question is not of next promotional post but the
question is of next higher grade pay.
5.3 In the alternative it is prayed by the learned Senior Advocate
appearing on behalf of respondent Nos.1 & 2 and relying
upon the decision of this Court in the case of State of
that if this Court is inclined to accept the submissions made
on behalf of the appellants and set aside the judgment and
order passed by the High Court holding that respondent
No.1 & 2 shall be entitled to grade pay of Rs.5400, in that
case no recovery be ordered as respondent Nos.1 & 2 have
already retired and the difference would be of Rs.1200
approximately per month so far as the pension is
concerned.
6. We have heard learned counsel appearing on behalf of the
respective parties.
7. At the outset it is required to be noted that the issue
involved in the present appeal is as such squarely covered
by the decision of this Court in the case of M.V. Mohanan
Nair (supra). By detailed judgment and order this Court has
interpreted the very MACP Scheme and it is observed and
held that under the MACP Scheme employees are entitled to
the immediate next higher grade pay as given in Section 1,
Part A of the First Schedule of the CCS (Revised Pay) Rules,
2008. It is specifically observed and held by this Court in
the aforesaid decision that MACP has nothing to do with the
next promotional post and what the employee would be
entitled would be the immediate next higher grade pay in
the hierarchy of the recommended revised pay bands and
grade pay as given in the CCS (Revised Pay) Rules, 2008. As
per clause 8.1 of the MACP Scheme ‘consequently upon the
implementation of Sixth CPC’s recommendations, grade pay
of PB2 and PB3 would be Rs.5400. It specifically provides
that the grade pay of Rs.5400 in PB2 and Rs.5400 in PB3
shall be treated as separate grade pays for the purpose of
grant of upgradations under the MACP Scheme’. Therefore,
respondent Nos.1 &2 as PB2 shall be entitled to the next
grade pay of Rs.5400 as per clause 8.1 and as per Section 1,
Part A of the First Schedule of the CCS (Revised Pay) Rules,
2008. The High Court has allowed the grade pay of Rs.6600
by considering the next promotion post of Assistant Director
i.e., Deputy Director which carries a grade pay of Rs.6600.
However, the aforesaid interpretation would be contrary to
the MACP Scheme. On considering the relevant clauses of
the MACP Scheme, it appears that the MACP Scheme
envisages placement in the immediate next higher grade pay
in the hierarchy of the recommended revised pay bands and
grade pay as given in Section 1, Part A of the First Schedule
of the CCS (Revised Pay) Rules, 2008. Thus, the High Court
has committed a grave error in allowing the grade pay of
Rs.6600 the grade pay which was available to the next
promotional post as Deputy Director. Respondent Nos.1 & 2
as per PB2 were entitled to the grade pay of Rs.5400 as PB
3 as per clause 8.1.
8. By the impugned judgment and order and while granting
grade pay of Rs.6600 to respondent Nos.1 & 2 virtually, the
High Court has modified the MACP Scheme which has been
framed by the Government on the recommendations of the
expert body like the pay commission and its
recommendations for the MACP Scheme. As observed and
held by this Court in the case of M.V. Mohanan Nair
(supra) the ACP which is now superseded by MACP Scheme
is a matter of Government policy and interfering with the
recommendations of the expert body like the pay
commission and its recommendations for the MACP Scheme
would have serious impact on the public exchequer. It is
further observed that the recommendations of the pay
commission for the MACP Scheme have been accepted by
the Government and implemented. It is further observed
that therefore the High Court has no jurisdiction to interfere
with the Government policies in the form of MACP Scheme
which was after accepting the Sixth Central Pay
Commission. In view of the above and for the reasons stated
above and the binding decision of this Court in the case of
M.V. Mohanan Nair (supra) with which we also agree, the
impugned judgment and order passed by the High Court
granting grade pay of Rs.6600 to respondent Nos.1& 2 is
unsustainable and deserves to be quashed and set aside.
However, we observe that the view which we are taking
is on the premise that neither the MACP Scheme nor Clause
8.1 is under challenge and as per the law laid down by this
Court in M.V. Mohanan Nair (supra), an employee is
entitled to the higher grade pay as provided under MACP
Scheme, more particularly, as per Section 1, Part A of the
First Schedule of the CCS (Revised Pay) Rules, 2008.
Therefore, so long as Clause 8.1 and the grade pay
mentioned as per Section 1, Part A of the First Schedule of
the CCS (Revised Pay) Rules, 2008 stands, the employee
shall be entitled to the grade pay accordingly. Therefore, if
any of the employees is aggrieved by Clause 8.1 and if in his
opinion, there is any anomaly the same has to be challenged
by the aggrieved employee, which can be considered in
accordance with law and on its own merits. However, as the
same is not under challenge, we have to go by the MACP
Scheme as it is.
9. In view of the above and for the reasons stated above the
impugned judgment and order passed by the High Court is
hereby quashed and set aside and the judgment and order
that of the Central Administrative Tribunal is hereby
restored. It is observed and held that on implementation of
MACP Scheme respondent No.1 and 2 herein shall be
entitled to the grade pay of Rs.5400 and not of Rs.6600 as
claimed by them. Their pensions be refixed accordingly.
However, it is observed that as respondent Nos.1 & 2 are
the retired employees and till date they have received the
pension considering the grade pay of Rs.6600 and being
retired persons it will be very difficult for them to refund the
difference in the pay pension, in the peculiar facts and
circumstances of the case we direct that there shall be no
recovery of the difference in the pension between the grade
pay of Rs.5400 and grade pay of Rs.6600 for the period
prior to December, 2021. However, on refixation of the
pension as per the present judgment and order, fixing their
grade pay of Rs.5400 they shall be paid the pension
accordingly from January, 2022 onwards. The present
appeal is allowed accordingly, however, with the above
observations and directions. No costs.
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The Supreme Court has observed that Modified Assured Career Progression (MACP) Scheme has nothing to do with the next promotional post and what the employee would be entitled would be the immediate next higher grade pay in the hierarchy of the recommended revised pay bands.The bench of Justices MR Shah and Sanjiv Khanna was considering a civil appeal assailing Kerala High Court's order...
The Supreme Court has observed that Modified Assured Career Progression (MACP) Scheme has nothing to do with the next promotional post and what the employee would be entitled would be the immediate next higher grade pay in the hierarchy of the recommended revised pay bands.
The bench of Justices MR Shah and Sanjiv Khanna was considering a civil appeal assailing Kerala High Court's order dated October 23, 2019 ("impugned judgment").
In the impugned judgment, the High Court while setting aside Central Administrative Tribunal's order declared that the respondents are entitled to grade pay of Rs 6600 on their third financial upgradation as per the MACP Scheme and thereby be paid the pension accordingly with effect from April, 2015.
While allowing the appeal, the bench in The Director, Directorate of Enforcement & Anr. v. K. Sudheesh Kumar & Ors said,
"By the impugned judgment and order and while granting grade pay of Rs.6600 to respondent Nos.1 & 2 virtually, the High Court has modified the MACP Scheme which has been framed by the Government on the recommendations of the expert body like the pay commission and its recommendations for the MACP Scheme. As observed and held by this Court in the case of M.V. Mohanan Nair (supra) the ACP which is now superseded by MACP Scheme is a matter of Government policy and interfering with the recommendations of the expert body like the pay commission and its recommendations for the MACP Scheme would have serious impact on the public exchequer. It is further observed that the recommendations of the pay commission for the MACP Scheme have been accepted by the Government and implemented. It is further observed that therefore the High Court has no jurisdiction to interfere with the Government policies in the form of MACP Scheme which was after accepting the Sixth Central Pay Commission. In view of the above and for the reasons stated above and the binding decision of this Court in the case of M.V. Mohanan Nair (supra) with which we also agree, the impugned judgment and order passed by the High Court granting grade pay of Rs.6600 to respondent Nos.1& 2 is unsustainable and deserves to be quashed and set aside."
Factual Background
The Government of India – Ministry of Personnel, Public Grievance and Pensions (Department of Personnel and Training) notified the MACP Scheme for the Central Government Civilian Employees. The Scheme provided for clause 8.1 as per which, consequently upon the implementation of Sixth CPC's recommendations, grade pay of Rs.5400 was supposed to be paid in two pay bands viz., PB2 and PB3. It further provided for treating grade pay of Rs.5400 in PB2 and Rs.5400 in PB3 as separate grade pay for the purpose of grant of upgradation under MACP Scheme.
While granting third financial upgradation vide order dated November 17, 2009 the respondents who were appointed as Assistant Enforcement Officer in 1976 and 1977 were granted the grade pay of Rs.6600 for PB3 under MACP Scheme, though as per clause 8.1 PB3 carried the grade pay of Rs.5400. However, on the objection being raised by the Audit Department their grade pay (GP) of Rs.6600 in PB3 was modified/corrected as GP of Rs.5400 as per clause 8.1.
Therefore, respondent(s) approached the Central Administrative Tribunal, Ernakulam Bench praying to continue the GP of Rs.6600 as per the earlier order and not to make any recovery. The Tribunal, relying upon clause 8.1 of the MACP Scheme, dismissed the original application (OA).
Aggrieved, the respondents approached the High Court. The High Court on October 23, 2019 while ignoring clause 8.1 of the MACP Scheme allowed the petition by observing that the next promotion post of Assistant Director which was in the PB3 would be that of Deputy Director which carried a grade pay of Rs.6600, when the third financial upgradation was due to an employee, it had to be of the next promotional post in the hierarchy as per the Recruitment Rules.
Aggrieved by the High Court's judgment, the Directorate of Enforcement ("Department") approached the Top Court.
Submission Of Counsels
Appearing for the Department, Additional Solicitor General Madhavi Divan submitted that the Top Court on the interpretation of MACP Scheme had observed that the employees are entitled to the grade pay as provided under the MACP Scheme which has been framed on the recommendations of the pay commission. She further contended that the High Court's decision was contrary to the Delhi High Court's judgment in National Council of Educational Research & Training & Anr. Vs. Anita Gupta & Anr. 2016 SCC OnLine Del 4720 and Top Court's decision in Union of India and others Vs. M.V. Mohanan Nair (2020) 5 SCC 421. It was also ASG's contention that by the impugned judgment and order and directing to grant grade pay of Rs.6600 the High Court modified the MACP Scheme and granted the benefit of three steps upward.
She also contended that while interpreting MACP Scheme, the Top Court had observed that MACP Scheme envisaged merely placement in the immediate next higher grade pay in the hierarchy of the recommended revised pay bands and grade pay as given in Section 1, Part A of the First Schedule of the CCS (Revised Pay) Rules, 2008 and had nothing to do with the next promotional post.
Opposing ASG's submission, Senior Advocate Mathai Paikaday for the respondents submitted that the employee shall be entitled to the next higher pay and the High Court has rightly directed to grant grade pay of Rs.6600.
Supreme Court's Analysis
To adjudicate on the issue, the bench in the judgment authored by Justice MR Shah relied on the Top Court's judgment in Union of India and others v. M.V. Mohanan Nair (2020) 5 SCC 421 in which it was observed and held that under the MACP Scheme employees are entitled to the immediate next higher grade pay as given in Section 1, Part A of the First Schedule of the CCS (Revised Pay) Rules, 2008.
"It is specifically observed and held by this Court in the aforesaid decision that MACP has nothing to do with the next promotional post and what the employee would be entitled would be the immediate next higher grade pay in the hierarchy of the recommended revised pay bands and grade pay as given in the CCS (Revised Pay) Rules, 2008," bench further said while referring to MV Mohanan's decision.
While setting aside the High Court's judgment, the bench said,
"As per clause 8.1 of the MACP Scheme 'consequently upon the implementation of Sixth CPC's recommendations, grade pay of PB2 and PB3 would be Rs.5400. It specifically provides that the grade pay of Rs.5400 in PB2 and Rs.5400 in PB3 shall be treated as separate grade pays for the purpose of grant of upgradations under the MACP Scheme'. Therefore, respondent Nos.1 &2 as PB2 shall be entitled to the next grade pay of Rs.5400 as per clause 8.1 and as per Section 1, Part A of the First Schedule of the CCS (Revised Pay) Rules, 2008. The High Court has allowed the grade pay of Rs.6600 by considering the next promotion post of Assistant Director i.e., Deputy Director which carries a grade pay of Rs.6600. However, the aforesaid interpretation would be contrary to the MACP Scheme. On considering the relevant clauses of the MACP Scheme, it appears that the MACP Scheme envisages placement in the immediate next higher grade pay in the hierarchy of the recommended revised pay bands and grade pay as given in Section 1, Part A of the First Schedule of the CCS (Revised Pay) Rules, 2008. Thus, the High Court has committed a grave error in allowing the grade pay of Rs.6600 the grade pay which was available to the next promotional post as Deputy Director."
Case Title: The Director, Directorate of Enforcement & Anr. v. K. Sudheesh Kumar & Ors.| Civil Appeal No.442 OF 2022
Coram: Justices MR Shah and Sanjiv Khanna
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2. The reference made to this Constitution Bench relates
to the grant of time for filing response to a complaint under the
provisions of the Consumer Protection Act, 1986 (for short ‘the
Act’). The first question referred is as to whether Section 13(2)
(a) of the Consumer Protection Act, which provides for the
respondent/opposite party filing its response to the complaint
within 30 days or such extended period, not exceeding 15 days,
should be read as mandatory or directory; i.e., whether the
District Forum has power to extend the time for filing the
response beyond the period of 15 days, in addition to 30 days.
The second question which is referred is as to what would be
the commencing point of limitation of 30 days stipulated under
the aforesaid Section.
3. The first question was referred by a two judge Bench of
this Court vide an Order dated 11.02.2016 passed in Civil Appeal
No(s).10831084 of 2016, M/s Bhasin Infotech and
Infrastructure Pvt. Ltd. versus M/s Grand Venezia Buyers
Association (Reg), the relevant portion of which is as under:
“There is an apparent conflict
between the decisions of this Court
in Topline Shoes Limited vs.
Association Vs. Union of India
[(2005) 6 SCC 344] on the one hand
and J.J. Merchant & Ors. Vs.
635 and NIA Vs. Hilli Multipurpose
Cold Storage [2014 AIOL 4615] on
the other in so far as the power of
the Courts to extend time for filing of
written statement/reply to a
complaint is concerned. The earlier
mentioned line of decisions take the
view that the relevant provisions
including those of Order 8 Rule 1 of
the Civil Procedure Code, 1908 are
directory in nature and the Courts
concerned have the power to extend
time for filing the written statement.
The second line of decisions which
are also of coordinate Benches
however takes a contrary view and
hold that when it comes to power of
the Consumer Fora to extend the
time for filing a reply there is no
such power.
Since the question that falls for
determination here often arises
before the Consumer Fora and
Commissions all over the country it
will be more appropriate if the
conflict is resolved by an
authoritative judgment. Further
since the conflict is between
Benches comprising three Judges
we deem it fit to refer these appeals
to a fiveJudge Bench to resolve the
conflict once and for all. While we do
so we are mindful of the fact that in
the ordinary course a twoJudge
Bench ought to make a reference to
a threeJudge Bench in the first
place but in the facts and
keeping in view the fact that the
conflict is between coordinate
Benches comprising three Judges a
reference to three Judges may not
suffice.”
4. The other question has been referred by another
Division Bench of this Court by an Order dated 18.01.2017
passed in this very appeal being Civil Appeal No(s).1094110942
of 2013, NIA Vs. Hilli Multipurpose Cold Storage Pvt. Ltd, the
relevant portion of the judgment is as under:
“……….what is the commencing
point of the limitation of 30 days
stipulated in Section 13 of the Act is
required to be decided
authoritatively. The declaration
made in JJ Merchant’s case that the
said period is to be reckoned from
the date of the receipt of the notice
by the opposite party or complaint
under the Act requires in our humble
opinion, a more critical analysis.”
5. We have heard the learned Counsel for the parties at
length and have carefully gone through the records.
6. In the Statement of Objects and Reasons of the
Consumer Protection Act, in paragraph 4, it has been specifically
provided that the Consumer Protection Act is “To provide speedy
and simple redressal to consumer disputes, a quasijudicial
machinery is sought to be set up at the district, State and Central
levels…….”. The Preamble of the Consumer Protection Act also
mentions that the Act is “to provide for better protection of the
interests of the consumers”. The nomenclature of this Act also
goes to show that it is for the benefit or protection of the
consumer. From the above, it is evident that the Consumer
Protection Act has been enacted to provide for expeditious
disposal of consumer disputes and that, it is for the protection
and benefit of the consumer.
7. Before we proceed to analyse and determine the
questions referred, we may, for ready reference, reproduce the
relevant provisions of the Consumer Protection Act and its
(1) The District Forum shall, on
admission of a complaint, if it
relates to any goods,
(a) refer a copy of the admitted
complaint, within twentyone days
from the date of its admission to
the opposite party mentioned in the
complaint directing him to give his
version of the case within a period
of thirty days or such extended
period not exceeding fifteen days
as may be granted by the District
(2) The District Forum shall, if the
complaints admitted by it under
section 12 relates to goods in
respect of which the procedure
specified in subsection (1) cannot
be followed, or if the complaint
relates to any services,
complaint to the opposite party
directing him to give his version
of the case within a period of
(b) where the opposite party, on
receipt of a copy of the complaint,
referred to him under clause (a)
denies or disputes the allegations
contained in the complaint, or omits
or fails to take any action to
represent his case within the time
given by the District Forum, the
District Forum shall proceed to
settle consumer dispute,
party, where the opposite party
denies or disputes the allegations
contained in the complaint, or
(ii) ex parte on the basis of
evidence brought to its notice by
the complainant where the opposite
party omits or fails to take any
action to represent his case within
the time given by the Forum;
(c) where the complainant fails to
appear on the date of hearing
before the District Forum, the
District Forum may either dismiss
the complaint for default or decide
it on merits.
with the procedure laid down in
subsections (1) and (2) shall be
called in question in any court
on the ground that the
principles of natural justice
have not been complied with.
[(3A) Every complaint shall be
heard as expeditiously as
possible and endeavour shall be
made to decide the complaint
within a period of three months
from the date of receipt of
notice by opposite party where
the complaint does not require
analysis or testing of
months, if it requires analysis
or testing of commodities:
shall be ordinarily granted by the
District Forum unless sufficient
cause is shown and the reasons for
grant of adjournment have been
recorded in writing by the Forum:
Provided further that the
District Forum shall make such
orders as to the costs occasioned
by the adjournment as may be
provided in the regulations made
under this Act.
disposed of after the period so
specified, the District Forum shall
1 Ins. by Act 62 of 2002, sec. 9 (w.e.f. 1532003).
record in writing, the reasons for
the same at the time of disposing of
the said complaint.]
[(3B) Where during the pendency
of any proceeding before the
District Forum, it appears to it
necessary, it may pass such
interim order as is just and proper
in the facts and circumstances of
the case.]
(4) For the purposes of this section,
the District Forum shall have the
same powers as are vested in a
civil court under Code of Civil
Procedure, 1908 (5 of 1908) while
trying a suit in respect of the
enforcing the attendance of any
defendant or witness and
examining the witness on oath;
(ii) the discovery and production
of any document or other material
object producible as evidence;
(iii) the reception of evidence on
(iv) the requisitioning of the
report of the concerned analysis or
test from the appropriate laboratory
or from any other relevant source;
(v) issuing of any commission
for the examination of any witness,
(vi) any other matter which may
be prescribed.
2 Ins. by Act 62 of 2002, Sec. 9 (w.e.f. 1532003).
person aggrieved by an order made
by the District Forum may prefer
an appeal against such order to the
State Commission within a period
of thirty days from the date of the
order, in such form and manner as
may be prescribed:
said period of thirty days if it
is satisfied that there was
sufficient cause for not filing it
within that period;
terms of an order of the District
Forum, shall be entertained by the
State Commission unless the
appellant has deposited in the
prescribed manner fifty per cent. of
that amount or twentyfive
thousand rupees, whichever is
person aggrieved by an order made
by the State Commission in
exercise of its powers conferred by
subclause (i) of clause (a) of
section 17 may prefer an appeal
against such order to the National
Commission within a period of
thirty days from the date of the
order in such form and manner as
may be prescribed:
said period of thirty days if it
is satisfied that there was
sufficient cause for not filing it
within that period:
Commission, shall be entertained
by the National Commission unless
the appellant has deposited in the
prescribed manner fifty per cent. of
the amount or rupees thirtyfive
thousand, whichever is less.
Section24A. Limitation period.
(1) The District Forum, the State
Commission or the National
complaint unless it is filed within
two years from the date on which
the cause of action has arisen.
(2) Notwithstanding anything
contained in subsection (1), a
complaint may be entertained
be, that he had sufficient cause
for not filing the complaint
complaint shall be entertained
unless the National Commission,
the State Commission or the
District Forum, as the case may be,
records its reasons for condoning
such delay.”
Relevant Provisions of the Consumer Protection Regulations,
2005 are reproduced below:
“Reg.10. Issue of notice.(1)
Whenever the Consumer Forum
directs the issuance of a notice in
respect of a complaint, appeal or
revision petition, as the case may
be, to the opposite
ordinarily such notice shall be
issued for a period of 30 days
raising presumption of service, 30
days notice shall be required.
(3) Whenever notices are sought to
be effected by a courier service, it
shall be ascertained that the
courier for the purpose of effecting
service, security deposit may also
be taken.
(6) After the opposite party or
respondent has put in appearance,
no application or document shall be
received by the Registrar unless it
bears an endorsement that a copy
thereof has been served upon the
other side.”
(1) Subject to the provisions of
sections 15, 19 and 24A, the period
of limitation in the following
matters shall be as follows:
(i) Revision Petition shall be
filed within 90 days from the date
of the order or the date of receipt of
the order as the case may be;
(ii) Application for setting aside
the ex parte order under section
22A or dismissal of the complaint
in default shall be maintainable if
filed within thirty days from the
date of the order or date of receipt
of the order, as the case may be;
(iii) An application for review
under subsection (2) of section 22
shall be filed to the National
Commission within 30 days from
the date of the order or receipt of
the order, as the case may be;
(iv) The period of limitation for
filing any application for which no
period of limitation has been
specified in the Act, the rules of
these regulations shall be thirty
days from the date of the cause of
action or the date of knowledge.
(2) Subject to the provisions
(1) In all proceedings before the
Consumer Forum, endeavour shall
be made by the parties and their
counsel to avoid the use of
of the Code of Civil Procedure,
1908 may be applied which have
been referred to in the Act or in the
rules made thereunder.
Question No. 1: Whether the District Forum has power to
extend the time for filing of response to
the complaint beyond the period of 15
days, in addition to 30 days, as envisaged
under Section 13(2)(a) of the Consumer
8. A bare reading of Section 13(2)(a) of the Act makes it
clear that the copy of the complaint which is to be sent to the
opposite party, is to be with the direction to give his version of (or
response to) the case (or complaint) within a period of 30 days. It
further provides that such period of 30 days can be extended by
the District Forum, but not beyond 15 days.
9. SubSection 2(b)(i) of Section 13 of the Act provides for
a complaint to be decided on the basis of the response by the
opposite party and the evidence of the complainant and the
opposite party, where allegations contained in the complaint are
denied or disputed by the opposite party. SubSection 2(b)(ii) of
Section 13 of the Act provides that where no response is filed by
the opposite party, the complaint may be decided ex parte on the
basis of evidence brought forth by the complainant.
10. SubSection 2(c) of Section 13 of the Consumer
Protection Act further provides that where the complainant fails
to appear on the date of hearing before the District Forum, the
District Forum may either dismiss the complaint for default or
decide it on merits. The aforesaid provision [subSection 2(c)] was
inserted by Act 62 of 2002, w.e.f. 15.03.2003. Similarly, Section
(3A) of Section 13 of the Consumer Protection Act, which was also
inserted by Act 62 of 2002, provides for deciding every complaint
as expeditiously as possible and endeavour shall be made to
decide the complaint within a period of three months from the
receipt of notice by the opposite party, and within five months, if
the complaint requires analysis or testing of commodities. It also
provides that no adjournment shall ordinarily be granted by the
District Forum, and if the same is to be granted, costs may be
imposed, and further that reasons be recorded if the complaint is
disposed of after the time so provided.
11. From the above, it is clear that as mentioned in the
Statement of Objects and Reasons of the Consumer Protection
Act, the District Forum is to provide speedy disposal of consumer
disputes. The same has been further reiterated by the legislature
by insertion of Section 13(2)(c) and 13(3A) by Act 62 of 2002.
12. Section 13 of the Consumer Protection Act clearly
contemplates where time can be extended by the District Forum,
and where it is not to be extended. Like, under subSection (3A)
of Section 13, despite the best efforts of the District Forum, in
situations where the complaint cannot be decided within the
period specified therein, the same can be decided beyond the
specified period for reasons to be recorded in writing by the
District Forum at the time of disposing of the complaint. Meaning
thereby that the same would not be mandatory, but only
directory. The phrase “endeavour shall be made”, makes the
intention of the legislature evident that the District Forum is to
make every effort to decide the case expeditiously within time, but
the same can also be decided beyond the said period, but for
reasons to be recorded.
13. On the contrary, subSection (2)(a) of Section 13 of the
Consumer Protection Act provides for the opposite party to give
his response ‘within a period of 30 days or such extended period
not exceeding 15 days as may be granted by the District Forum’.
The intention of the legislature seems to be very clear that the
opposite party would get the time of 30 days, and in addition
another 15 days at the discretion of the Forum to file its
response. No further discretion of granting time beyond 45 days
is intended under the Act.
The question of natural justice is dealt with by the
legislature in subSection (3) of Section 13 of the Consumer
Protection Act, which clearly provides that “No proceedings
complying with the procedure laid down in the subSection (1) and
(2) shall be called in question in any court on the ground that the
principles of natural justice have not been complied with.” The
legislature was conscious that the complaint would result in
being decided ex parte, or without the response of the opposite
party, if not filed within such time as provided under the
Consumer Protection Act, and in such a case, the opposite party
will not be allowed to take the plea that he was not given
sufficient time or that principles of natural justice were not
complied with. Any other interpretation would defeat the very
purpose of subSection (3) of Section 13 of the Consumer
14. The maximum period of 45 days, as provided under the
Consumer Protection Act, would not mean that the complainant
has a right to always avail such maximum period of 45 days to
file its response. Regulation 10 of the Consumer Protection
Regulations, 2005 clearly provides that ordinarily such notice to
the opposite party to file its response shall be issued for a period
of 30 days, but the same can be even less than 30 days,
depending upon the circumstances of each case.
15. Now, reverting back to the provisions of the Consumer
Protection Act to consider as to whether the provision of sub
Section 2(a) of Section 13 granting a maximum period of 15 days
in addition to 30 days has to be read as mandatory or not, we
may also consider the other provisions of the Consumer
Protection Act where the legislature intended to allow extension of
period of limitation.
Section 15 of the Consumer Protection Act provides for filing
of an appeal from the order of the District Forum to the State
Commission within a period of 30 days. However, it leaves a
discretion with the State Commission to entertain an appeal filed
after the expiry of the said period of 30 days, if it is satisfied that
there was sufficient cause for not filing it within the stipulated
period. Similarly, discretion for filing an appeal before the
National Commission beyond the period of 30 days has also been
provided under Section 19 of the Consumer Protection Act.
Section 24A provides for the limitation period of 2 years for
filing the complaint. However, subSection (2) of Section 24A
gives a discretion to entertain a complaint even after the period of
2 years, if there is a satisfactory cause for not filing the complaint
within such period, which has to be recorded in writing.
16. Regulation 14 of the Consumer Protection Regulations,
2005 also deals with limitation. In addition, the same provides for
limitation while dealing with appeals (under Section 15 and 19)
and complaint (under Section 24A). SubRegulation (2) of
Regulation 14 provides for condonation of delay for sufficient
reasons to be recorded.
17. The legislature in its wisdom has provided for filing of
complaint or appeals beyond the period specified under the
relevant provisions of the Act and Regulations, if there is
sufficient cause given by the party, which has to be to the
satisfaction of the concerned authority. No such discretion has
been provided for under Section 13(2)(a) of the Consumer
Protection Act for filing a response to the complaint beyond the
extended period of 45 days (30 days plus 15 days). Had the
legislature not wanted to make such provision mandatory but
only directory, the provision for further extension of the period for
filing the response beyond 45 days would have been provided, as
has been provided for in the cases of filing of complaint and
appeals. To carve out an exception in a specific provision of the
statute is not within the jurisdiction of the Courts, and if it is so
done, it would amount to legislating or inserting a provision into
the statute, which is not permissible.
By specifically enacting a provision under subSection
(3) of Section 13, with a specific clarification that violation of the
principles of natural justice shall not be called in question where
the procedure prescribed under subSections (1) and (2) of
Section 13 of the Consumer Protection Act has been followed or
complied with, the intention of the legislature is clear that mere
denial of further extension of time for filing the response (by the
opposite party) would not amount to denial or violation of the
principles of natural justice. This provision of Section 13(3)
reinforces the time limit specified in Section 13(2)(a) of the Act.
18. This Court in the case of Lachmi Narain vs Union of
India (1976) 2 SCC 953 has held that “if the provision is couched
in prohibitive or negative language, it can rarely be directory, the
use of peremptory language in a negative form is per se indicative
of the interest that the provision is to be mandatory”. Further,
hardship cannot be a ground for changing the mandatory nature
of the statute, as has been held by this Court in Bhikraj
Jaipurai vs Union of India AIR 1962 SC 113=(1962) 2 SCR 880
472. Hardship cannot thus be a ground to interpret the provision
so as to enlarge the time, where the statute provides for a specific
time, which, in our opinion, has to be complied in letter and
This Court, in the case of Rohitash Kumar vs Om
Prakash Sharma (2013) 11 SCC 451 has, in paragraph 23, held
“23. There may be a statutory
provision, which causes great
hardship or inconvenience to either
the party concerned, or to an
individual, but the Court has no
choice but to enforce it in full rigor.
It is a well settled principle of
interpretation that hardship or
inconvenience caused, cannot be
used as a basis to alter the
meaning of the language employed
by the legislature, if such meaning
is clear upon a bare perusal of the
statute. If the language is plain
and hence allows only one
meaning, the same has to be given
effect to, even if it causes hardship
or possible injustice.”
While concluding, it was observed “that the hardship caused to an
individual, cannot be a ground for not giving effective and
grammatical meaning to every word of the provision, if the
language used therein, is unequivocal.”
Further, it has been held by this Court in the case of
Popat Bahiru Govardhane vs Special Land Acquisition
Officer (2013) 10 SCC 765 that the law of limitation may harshly
affect a particular party but it has to be applied with all its vigour
when the statute so prescribes and that the Court has no power
to extend the period of limitation on equitable grounds, even if the
statutory provision may cause hardship or inconvenience to a
particular party.
19. The contention of the learned Counsel for the
respondent is that by not leaving a discretion with the District
Forum for extending the period of limitation for filing the
response before it by the opposite party, grave injustice would be
caused as there could be circumstances beyond the control of the
opposite party because of which the opposite party may not be
able to file the response within the period of 30 days or the
extended period of 15 days. In our view, if the law so provides,
the same has to be strictly complied, so as to achieve the object of
the statute. It is well settled that law prevails over equity, as
equity can only supplement the law, and not supplant it.
This Court, in the case of Laxminarayan R. Bhattad
vs State of Maharashtra (2003) 5 SCC 413, has observed that
“when there is a conflict between law and equity the former shall
prevail.” In P.M. Latha vs State of Kerala (2003) 3 SCC 541,
this Court held that “Equity and law are twin brothers and law
should be applied and interpreted equitably, but equity cannot
override written or settled law.” In Nasiruddin vs Sita Ram
Agarwal (2003) 2 SCC 577, this Court observed that “in a case
where the statutory provision is plain and unambiguous, the court
shall not interpret the same in a different manner, only because of
harsh consequences arising therefrom.” In E. Palanisamy vs
Palanisamy (2003) 1 SCC 123, it was held that “Equitable
considerations have no place where the statute contained express
provisions.” Further, in India House vs Kishan N. Lalwani
(2003) 9 SCC 393, this Court held that “The period of limitation
statutorily prescribed has to be strictly adhered to and cannot be
relaxed or departed from by equitable considerations.”
It is thus settled law that where the provision of the Act
is clear and unambiguous, it has no scope for any interpretation
on equitable ground.
20. It is true that ‘justice hurried is justice buried’. But in
the same breath it is also said that ‘justice delayed is justice
denied’. The legislature has chosen the latter, and for a good
reason. It goes with the objective sought to be achieved by the
Consumer Protection Act, which is to provide speedy justice to
the consumer. It is not that sufficient time to file a response to
the complaint has been denied to the opposite party. It is just
that discretion of extension of time beyond 15 days (after the 30
days period) has been curtailed and consequences for the same
have been provided under Section 13(2)(b)(ii) of the Consumer
Protection Act. It may be that in some cases the opposite party
could face hardship because of such provision, yet for achieving
the object of the Act, which is speedy and simple redressal of
consumer disputes, hardship which may be caused to a party has
to be ignored.
21. It has been further contended that the language of
Section 13(2) of the Consumer Protection Act is pari materia to
Order VIII Rule 1 of the Code of Civil Procedure, 1908 (for short
‘the Code’) and if time can be extended for filing of written
submission in a suit under the aforesaid provision of the Code,
the same would apply to the filing of response to complaint under
the Consumer Protection Act as well, and hence the provision of
Section 13(2)(a) of the Consumer Protection Act would be
directory and not mandatory.
In this regard, what is noteworthy is that Regulation 26 of
the Consumer Protection Regulation, 2005, clearly mandates that
endeavour is to be made to avoid the use of the provisions of the
Code except for such provisions, which have been referred to in
the Consumer Protection Act and the Regulations framed
thereunder, which is provided for in respect of specific matters
enumerated in Section 13(4) of the Consumer Protection Act. It is
pertinent to note that nonfiling of written statement under Order
VIII Rule 1 of the Code is not followed by any consequence of
such nonfiling within the time so provided in the Code.
Now, while considering the relevant provisions of the
Code, it is noteworthy that Order VIII Rule 1 read with Order VIII
Rule 10 prescribes that the maximum period of 120 days
provided under Order VIII Rule 1 is actually not meant to be
mandatory, but only directory. Order VIII Rule 10 mandates that
where written statement is not filed within the time provided
under Order VIII Rule 1 “the court shall pronounce the judgment
against him, or make such order in relation to the suit as it thinks
fit”. A harmonious construction of these provisions is clearly
indicative of the fact that the discretion is left with the Court to
grant time beyond the maximum period of 120 days, which may
be in exceptional cases. On the other hand, subSection (2)(b)(ii)
of Section 13 of the Consumer Protection Act clearly provides for
the consequence of the complaint to be proceeded ex parte
against the opposite party, if the opposite party omits or fails to
represent his case within the time given.
It may further be noted that in Order VIII Rule 10 of
the Code, for suits filed under the Commercial Courts Act, 2015,
a proviso has been inserted for ‘commercial disputes of a specified
value’ (vide Act 4 of 2016 w.r.e.f. 23.10.2015), which reads as
“Provided further that no Court
shall make an Order to extend the
time provided under Rule 1 of this
Order for filing the written
From the above, it is clear that for commercial suits, time for
filing written statement provided under Order VIII Rule 1 is meant
to be mandatory, but not so for ordinary civil suits. Similarly, in
our considered view, for cases under the Consumer Protection Act
also, the time provided under Section 13(2)(a) of the Act has to be
read as mandatory, and not directory.
Once consequences are provided for not filing the
response to the complaint within the time specified, and it is
further provided that proceedings complying with the procedure
laid down under sub Section (1) and (2) of Section 13 of the
Consumer Protection Act shall not be called in question in any
Court on the ground that the principles of natural justice have
not been complied with, the intention of the legislature is
absolutely clear that the provision of subSection 2(a) of Section
13 of the Act in specifying the time limit for filing the response to
the complaint is mandatory, and not directory.
22. After noticing that there were delays in deciding the
complaints by the District Forum, the legislature inserted sub
Section (3A) of Section 13 of the Consumer Protection Act
providing for a time limit for deciding the complaints. From this it
is amply clear that the intention of the legislature was, and has
always been, for expeditious disposal of the complaints. By
providing for extension of time for disposal of the cases filed, for
reasons to be recorded, the legislature has provided for a
discretion to the Forum that wherever necessary, the extension of
the time can be provided for, and where such further extension is
not to be granted [as in the case of Section 13(2)(a)], the
legislature has consciously not provided for the same, so as to
achieve the object of the Act.
23. In SCG Contracts (India) Private Limited vs K.S.
210, this Court, was dealing with a case relating to the filing of
written statement under the Code, in respect of a case under the
Commercial Courts Act, 2015. After noticing the amendments
brought in Order V Rule 1, Order VIII Rule 1 and Order VIII Rule
10 of the Code with regard to ‘commercial disputes of specified
value’ under the Commercial Courts Act, 2015 by way of
insertion of the Provisos in the aforesaid provisions, this Court
held that “….the clear, definite and mandatory provisions of Order
V read with Order VIII Rule 1 and 10 cannot be circumvented by
recourse to the inherent power under Section 151 to do the
opposite of what is stated therein”. It was, thus, held that there
was no scope for enlarging the time for filing of written statement
beyond the period of 120 days in commercial suits, as the
provision with regard to such suits would be mandatory, and not
directory. The said judgment has been affirmed by a Bench of
three Judges in Desh Raj vs Balkishan decided on 20.01.2020
in Civil Appeal No.433 of 2020.
(2004) 11 SCC 472, this Court was dealing with the provisions of
the Special Court (Trial of Offences Relating to Transactions in
Securities) Act, 1992, and the question was whether the Special
Court has power to condone the delay in filing the petition under
Section 4(2) of the said Act. While holding, that the said
provision would be mandatory, it was held in paragraph 13 as
“13. It is not for the courts to
determine whether the period of 30
days is too short to take into
account the various misfortunes
that may be faced by notified
persons who wish to file objections
under Section 4(2) of the Act nor
can the section be held to be
directory because of such alleged
inadequacy of time.”
Then, after considering the decisions of this Court in Topline
Shoes Ltd. vs. Corporation Bank (2002) 6 SCC 33 and Dr. J. J.
Merchant vs. Shrinath Chaturvedi (2002) 6 SCC 635, this
Court held that “the period for filing an objection in Section 4(2) in
the Act is a mandatory provision given the language of the Section
and having regard to the objects sought to be served by the Act.”
25. Certain other cases, which have been referred to by the
learned Counsel for the parties, have, in our considered opinion,
no direct bearing on the facts and issue involved in the present
case relating to the Consumer Protection Act, and thus, the same
are not being dealt with and considered here.
26. We may now deal with the decisions rendered by this
Court, which have been referred to in the Reference Order.
27. Division Bench of this Court has referred this
Question, after observing that there is an apparent conflict
between the decisions of this Court in Topline Shoes (supra);
Kailash Vs. Nanhku (2005) 4 SCC 480 and Salem Advocate
Bar Association vs. Union of India (2005) 6 SCC 344 on the one
hand; and Dr. J. J. Merchant (supra) and NIA vs. Hilli
Multipurpose Cold Storage (2015) 16 SCC 22, on the other
28. In Topline Shoes (supra), a Division Bench of this
Court, while dealing with the provisions of Section 13(2)(a) of the
Consumer Protection Act, has held that the said provision would
be directory and not mandatory. While holding so, the Bench
relied on the principles of natural justice, and also that no
consequence of nonfiling of the response to the complaint within
45 days is provided for in the Consumer Protection Act.
In paragraph 8 of the said judgment, this Court held:
“It is for the Forum or the
Commission to consider all facts
and circumstances along with the
provisions of the Act providing time
frame to file reply, as a guideline
and then to exercise its discretion
as best as it may serve the ends of
justice and achieve the object of
speedy disposal of such cases
keeping in mind the principles of
natural justice as well”.
It is true that in Clause 4 of the Statement of Objects and
Reasons of the Consumer Protection Act, the legislature provided
that “quasi–judicial bodies will observe the principles of natural
justice”, however, the same is to be observed generally, and not
where the same is specifically excluded. In the said judgment,
subSection (3) of Section 13 has neither been referred, nor taken
note of. The same mandates that no proceedings complying with
the procedure laid down in subSections (1) and (2) of Section 13
shall be called in question in any Court on the ground that the
principles of natural justice have not been complied with. From
this it is evident that while considering the provisions of Section
13(2)(a) of the Consumer Protection Act, the law mandates that
the principles of natural justice cannot be said to be violated by
adopting the said procedure and that the time of 30 days plus 15
days provided for filing the response to the complaint would be
sufficient and final.
In case of Topline Shoes (supra), this Court was also
of the view that in the Consumer Protection Act, “no consequence
is provided in case the time granted to file reply exceeds the total
period of 45 days”. While observing so, the Bench did not take
into account the provisions of Section 13(2)(b)(ii) of the Consumer
Protection Act, which provides that where the opposite party fails
to file response to the complaint within the specified time
provided in Clause (a), “the District Forum shall proceed to settle
the consumer dispute……… on the basis of evidence brought to its
notice by the complainant……..”. After the said judgment, by
Amendment Act 62 of 2002 (w.e.f. 15.03.2003), the legislature
has provided that the District Forum shall proceed to settle the
consumer dispute “ex parte on the basis of the evidence”. The
word “ex parte” has been added by the Amending Act. As we have
observed herein above, the consequence of not filing the response
to the complaint within the stipulated time is thus clearly
provided for in the aforesaid subSection, which has not been
noticed by the Bench while deciding the aforesaid case.
29. In the case of Kailash vs. Nanhku (supra), this Court
was dealing with an election trial under the Representation of
People Act, 1951, and while considering the provision under
Order VIII Rule 1 of the Code, it held the same to be directory,
and not mandatory. While holding so, the Court was of the view
that “the consequences flowing from nonextension of time are not
specifically provided” in the Code. The decision in the said case
has no bearing on the question under consideration, as the
present reference before us is under the Consumer Protection Act,
where, as we have already observed, consequences are specifically
provided for.
In passing, in paragraph 35 of the said judgment, the
Bench referred to the case of Topline Shoes (supra), where the
provision of Section 13 of the Consumer Protection Act was
considered to be directory, and not mandatory. In our view, the
same would not have the effect of affirming the decision of
Topline Shoes (supra) since the Court, in the aforesaid case, was
dealing with the provisions of the Code and not the specific
provisions of Consumer Protection Act.
We are thus of the opinion that Kailash vs Nanhku
(supra) has not overruled the decision in Dr. J. J. Merchant
(supra) with regard to the provision of the Consumer Protection
30. Again, in the case of Salem Advocates Bar
Association (supra), this Court was dealing with a case under
Order VIII Rule 1 of the Code and in paragraph 20, it has been
“20.………The use of the word
“shall” is ordinarily indicative of
mandatory nature of the provision
but having regard to the context in
which it is used or having regard
to the intention of the legislation,
the same can be construed as
directory. The rule in question has
to advance the cause of justice
and not to defeat it. The rules of
procedure are made to advance
defeat it. Construction of the rule
or procedure which promotes
justice and prevents miscarriage
has to be preferred. The rules of
procedure are the handmaid of
justice and not its mistress. In the
present context, the strict
Thereafter, the Court proceeded to refer to the provisions of Order
VIII Rule 1, along with Order VIII Rule 10 of the Code. On a
harmonious construction of the said provision, it held that the
provisions of Order VIII Rule 1 of the Code would be directory,
and not mandatory. Relevant paragraph 21 of the said judgment
“21. In construing this provision,
support can also be had from
a written statement is required
under Rule 1 or Rule 9, fails to
present the same within the time
permitted or fixed by the court, the
court shall pronounce judgment
against him, or make such other
order in relation to the suit as it
thinks fit. On failure to file written
statement under this provision,
the court has been given the
discretion either to pronounce
judgment against the defendant or
make such other order in relation
to the suit as it thinks fit. In the
context of the provision, despite
use of the word “shall”, the court
has been given the discretion to
pronounce or not to pronounce the
judgment against the defendant
even if the written statement is
not filed and instead pass such
order as it may think fit in relation
to the suit. In construing the
required to be applied. The effect
would be that under Rule 10
Order 8, the court in its discretion
would have the power to allow the
defendant to file written statement
even after expiry of the period of
90 days provided in Order 8 Rule
1. There is no restriction in Order
8 Rule 10 that after expiry of
ninety days, further time cannot
be granted. The court has wide
relation to the suit as it thinks fit”.
Clearly, therefore, the provision of
Order 8 Rule 1 providing for the
upper limit of 90 days to file
written statement is directory”.
As such in our view, the said judgment would hold the
field with regard to Order VIII Rule 1 of the Code and would not
be applicable to cases dealing with the provisions of Section 13(2)
of the Consumer Protection Act, or such other enactment wherein
a provision akin to Section 13(2) is there and the consequences
are also provided.
31. The case of Dr. J. J. Merchant (supra) is one relating
to the provisions of the Consumer Protection Act, and has been
decided by a Bench of three Judges of this Court (which is after
the decision in the case of Topline Shoes (supra) was rendered).
In this case it has been held that the time limit prescribed for
filing the response to the complaint under the Consumer
Protection Act, as provided under Section 13(2)(a), is to be strictly
adhered to, i.e. the same is mandatory, and not directory. In
paragraph 13 of the said judgment, it has been held that:
“For having speedy trial, this
legislative mandate of not giving
more than 45 days in submitting
the written statement or the
version of the case is required to
be adhered to. If this is not
mandate of disposing of the cases
within three or five months would
be defeated.
In the said case of Dr. J. J. Merchant (supra), while
holding that the time limit prescribed would be mandatory and
thus be required to be strictly adhered to, this Court also
considered the Statement of Objects and Reasons of the
Consumer Protection (Amendment) Bill, 2002 (which was
subsequently enacted as Act 62 of 2002 and has come in force
w.e.f. 15.03.2003). The salient features of the same was “to
provide simple, inexpensive and speedy justice to the
consumers……….” and that “the disposal of cases is to be faster”
and after noticing that “several bottlenecks and shortcomings
have also come to light in the implementation of various provisions
of the Act” and with a view to achieve quicker disposal of
consumer complaints, certain amendments were made in the Act,
which included “(iii) prescribing the period within which
complaints are to be admitted, notices are to be issued to opposite
party and complaints are to be decided”. With this object in mind,
in subSection (2)(b)(ii) of Section 13, the opening sentence “on
the basis of evidence” has been substituted by “ex parte on the
basis of evidence”. By this amendment, consequences of not filing
the response to the complaint within the specified limit of 45 days
was to be that the District Forum shall procced to settle the
consumer dispute ex parte on the basis of evidence brought to its
notice by the complainant, where the opposite party omits or fails
to take action to represent his case within time. For achieving
the objective of quick disposal of complaints, the Court noticed
that subSection (3A) of Section 13 was inserted, providing that
the complaint should be heard as expeditiously as possible and
that endeavour should be made to normally decide the complaint
within 3 months, and within 5 months where analysis or testing
of commodities was required. The Provisos to the said sub
Section required that no adjournment should be ordinarily
granted and if granted, it should be for sufficient cause to be
recorded in writing and on imposition of cost, and if the
complaint could not be decided within the specified period,
reasons for the same were to be recorded at the time of disposing
of the complaint.
It was after observing so, and considering aforesaid
amendments, this Court held that the time limit of 30 plus 15
days in filing the response to the complaint, be mandatory and
strictly adhered to.
32. The decision of another Bench of three Judges in NIA
vs Hilli Multipurpose Coldstorage (supra), which has been
considered in the referring order was passed by a bench of two
Judges in the same case, after noticing a conflict of views in the
cases of Dr. J. J. Merchant (supra) and Kailash vs Nanhku
After considering the provisions of the Code and
Consumer Protection Act, the reference was answered “that the
law laid down by a three Judge Bench of this Court in Dr. J. J.
Merchant (supra) should prevail”. In coming to this conclusion,
the following was observed in paragraphs 25 and 26 of the said
“25. We are, therefore, of the
view that the judgment delivered
in J.J. Merchant holds the field
and therefore, we reiterate the
view that the District Forum can
grant a further period of 15 days
to the opposite party for filing his
version or reply and not beyond
that.
follow the law laid down in J.J.
Merchant. J.J. Merchant was
Court, while dealing Kailash, this
Court ought to have respected
delivered in J.J. Merchant was
earlier in point of time. The
aforesaid legal position cannot
be ignored by us and therefore,
we are of the opinion that the
view expressed in J.J. Merchant
should be followed.”
33. Although, after the above decision, no further reference
was required to be made, but still we have proceeded to answer
the question referred to this Constitution Bench and are of the
considered opinion that the view expressed by this Court in the
case of Dr. J. J. Merchant (supra) is the correct view.
Question No. 2: What would be the commencing point of
limitation of 30 days under Section 13 of
the Consumer Protection Act, 1986?
34. The question for determination is whether the
limitation under Section 13 of the Consumer Protection Act for
filing the response by the opposite party to the complaint would
commence from the date of receipt of the notice of the complaint
by the opposite party, or the receipt of notice accompanied by a
copy of the complaint.
35. In paragraph 12 of the judgment dated 04.12.2015, of
three Judge Bench of this Court, in this very case of NIA vs. Hilli
Multipurpose Cold Storage (supra), while referring to the
commencing point of limitation of 30 days under Section 13(2) of
the Consumer Protection Act, it has been held that “The whole
issue centres round the period within which the opponent has to
give his version to the District Forum in pursuance of a complaint,
which is admitted under Section 12 of the Act. Upon receipt of a
complaint by the District Forum, if the complaint is admitted under
Section 12 of the Act, a copy of the complaint is to be served upon
the opposite party and as per the provisions of Section 13 of the
Act, the opposite party has to give his version of the case within a
period of 30 days from the date of receipt of the copy of the
36. However, another two judge Bench of this Court, by an
Order dated 18.01.2017 passed in this very Appeal being Civil
Appeal No(s).1094110942 of 2013, NIA Vs. Hilli Multipurpose
Cold Storage, has expressed the view that the declaration made
in Dr. J. J. Merchant’s case to the effect that the said period is
to be reckoned from the date of receipt of notice by the opposite
party or complaint under the Act, requires a more critical
analysis. The bench thus opined that “what is the commencing
point of the limitation of 30 days stipulated in Section 13 of the Act
is required to be decided authoritatively”. It is thus that this
question has been placed before us for an authoritative decision.
37. For deciding this question, we may first analyse the
relevant provisions of the Consumer Protection Act and the
Regulations framed thereunder. SubSections (2)(a) and (2)(b) of
Section13 of the Consumer Protection Act specify that it is the
copy of the complaint which is to given to the opposite party
directing him to give his version of the case within a period of 30
days or such extended period, not exceeding 15 days. As such,
from the aforesaid provision itself, it is clear that it is the copy of
the admitted complaint which is to be served, after which the
period to file the response would commence.
Further, Regulation 10 of the Consumer Protection
Regulations, 2005 also specifies the procedure of issuing notice,
which should be accompanied by copy of the complaint.
Regulation 10(5) clearly mentions that “along with the notice,
copies of the complaint, memorandum of grounds of appeal,
petitions as the case may be and other documents filed shall be
served upon the opposite party(ies)/respondent(s)”. The same
would also make it clear that it is on service of a copy of the
complaint that the period of limitation for filing the response by
the opposite party shall commence.
38. Even in the Code of Civil Procedure, Order VIII Rule 1
prescribes that the written statement shall be filed by the
defendant within 30 days from the receipt of the “summons”.
“Summons” has been defined in Order V Rule 1 of the Code and
Rule 2 provides that “Every summon shall be accompanied by a
copy of the plaint.” While considering the aforesaid provisions, a
two judge Bench of this Court in the case of Nahar Enterprises
vs Hyderabad Allwyn Ltd. (2007) 9 SCC 466 has, in paragraph 8,
9 and 10, held as under:
(8) The learned counsel appears to
be correct. When a summons is
sent calling upon a defendant to
appear in the court and file his
written statement, it is obligatory
on the part of the court to send a
copy of the plaint and other
documents appended thereto, in
terms of Order 5 Rule 2 CPC.
address itself the question as to
how a defendant, in absence of a
copy of the plaint and other
documents, would be able to file
statement…………………….……..”
39. Even in Arbitration and Conciliation Act, 1996, sub
Section (5) of Section 31 provides that “after the arbitral award is
made, a signed copy shall be delivered to each party”. An
application for setting aside the arbitral award is to be made
under Section 34 of the said Act. The delivery of the award sets in
motion the limitation for challenging the award under Section 34
of the said Act. While interpreting the nature and scope of Section
31(5) of the said Act, a three Judge Bench of this Court in Union
of India vs Tecco Trichy Engineers & Contractors, (2005) 4
SCC 239, has, in paragraph 6, held as under:
(6) Form and contents of the
arbitral award are provided by
Section 31 of the Act. The arbitral
award drawn up in the manner
prescribed by Section 31 of the Act
has to be signed and dated.
According to subsection (5), “after
the arbitral award is made, a
signed copy shall be delivered to
each party”. The term “party” is
defined by clause (h) of Section 2 of
the Act as meaning “a party to an
arbitration agreement”. The
definition is to be read as given
unless the context otherwise
requires. Under subsection (3) of
Section 34 the limitation of 3
months commences from the date
on which “the party making that
application” had received the
arbitral award. ……………”
From the above, what we notice is that wherever limitation is
provided, either for filing response/written statement or filing an
appeal, it is the copy of the plaint or the order/award which is to
be served on the party concerned after which alone would
commence the period of limitation.
40. Now reverting to the provisions of the Consumer
Protection Act, a conjoint reading of Clauses (a) and (b) of sub
Section (2) of Section 13 would make the position absolutely clear
that the commencing point of limitation of 30 days, under the
aforesaid provisions, would be from the date of receipt of notice
accompanied by a copy of the complaint, and not merely receipt of
the notice, as the response has to be given, within the stipulated
time, to the averments made in the complaint and unless a copy of
the complaint is served on the opposite party, he would not be in a
position to furnish its reply. Thus, mere service of notice, without
service of the copy of the complaint, would not suffice and cannot
be the commencing point of 30 days under the aforesaid Section of
the Act. We may, however, clarify that the objection of not having
received a copy of the complaint along with the notice should be
raised on the first date itself and not thereafter, otherwise if
permitted to be raised at any point later would defeat the very
purpose of the Act, which is to provide simple and speedy
redressal of consumer disputes.
41. To conclude, we hold that our answer to the first
question is that the District Forum has no power to extend the
time for filing the response to the complaint beyond the
period of 15 days in addition to 30 days as is envisaged
under Section 13 of the Consumer Protection
Act; and the answer to the second question is that the
commencing point of limitation of 30 days under Section 13 of the
Consumer Protection Act would be from the date of receipt of the
notice accompanied with the complaint by the opposite party, and
not mere receipt of the notice of the complaint.
This Judgment to operate prospectively.
The referred questions are answered accordingly.
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The Supreme Court observed that a Consumer Commission has no jurisdiction to condone the delay for filing opposite party's written version beyond the prescribed period of 15 days mentioned in the Consumer Protection Act, 2019.
Before the National Consumer Disputes Redressal Commission (NCDRC) in this case, the opposite party filed written statement (version) beyond the period of 45 days. The Commission refused to condone the delay by observing thus: "Time for filing the Written Version as provided under Section 13 (1) (a) of the Consumer Protection Act, 1986 now replaced by Section 38 (2) (a) of the Consumer Protection Act, 2019 which is in force since 20/24.07.2020 has expired. This Commission does not have the power to condone the delay beyond 30 + 15 days as provided in the statute. Right of Opposite Party No.2 to file the Written Version stands closed."
Aggreived with this order, the opposite party approached the Apex Court by filing a Special Leave Petition (SLP).
"It is not in dispute that the written statement was filed beyond the period of 45 days. The period of limitation to file is 30 days which can be condoned up to 15 days only. As observed and held by this Court in the case of New India Assurance Co. Ltd. vs. Hilli Multipurpose Cold Storage (P) Ltd. (2020) 5 SCC 757, the Tribunal has no jurisdiction to condone the delay beyond the prescribed period mentioned in the Statute.", the bench of Justices MR Shah and MM Sundresh observed while dismissing the SLP.
In Hilli Multipurpose Cold Storage Private Limited, the Constitution Bench held that Consumer Protection Act 1986 did not empower the Consumer Forum to extend the time beyond the period of 45 days. The time period prescribed under Section 13 of the Consumer Protection Act is mandatory, and not directory, the court had held. It also observed that the timeline will start from the time that notice along with complaint is received and not just notice.
Last year, in Dr. A Suresh Kumar vs. Amit Agarwal, the court held that this law declared by the Constitution Bench operates only prospectively.
Case details
Antriksh Developers And Promoters Private Limited vs Kutumb Welfare Society | (SC) 930 | SLP (Diary) 31629/2022 | 4 November 2022 |Justices MR Shah and MM Sundresh
For Petitioner(s) Ms. Vanshaja Shukla, AOR Mr. Aakash Nandolia, Adv. Mr. Sajal Singhai, Adv.
Headnotes
Consumer Protection Act, 2019 ; Section 38(2)(a), 59(1) - The period of limitation for opposite party to file written version is 30 days which can be condoned up to 15 days only - The Tribunal has no jurisdiction to condone the delay beyond the prescribed period mentioned in the Statute - Referred to New India Assurance Co. Ltd. vs. Hilli Multipurpose Cold Storage (P) Ltd. (2020) 5 SCC 757.
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1. The appellant has approached this Court being
aggrieved by the judgment and order passed by the High
Court of Chhattisgarh, Bilaspur dated 17 th November 2017,
thereby dismissing the appeal preferred by the appellant
challenging the judgment and order dated 17 th June 2016,
passed by the Additional Sessions Judge, Fast Track Court,
Raigarh (hereinafter referred to as the “trial judge”) vide
which the trial judge convicted the appellant for the offences
punishable under Sections 363, 366, 376(2)(i), 377, 201, 302
read with Section 376A of the Indian Penal Code, 1860
(hereinafter referred to as the “IPC”) and Section 6 of the
Protection of Children from Sexual Offences Act, 2012
(hereinafter referred to as the “POCSO Act”). Vide the same
judgment and order, the appellant was sentenced to death
for the offence punishable under Section 302 of the IPC. For
the other offences for which the appellant was found guilty,
sentences of rigorous imprisonment of 3 years, 5 years, 7
years and life imprisonment have been awarded to the
appellant. The trial judge has also made a reference being
Cr. Ref. No. 1 of 2016 to the High Court under Section 366 of
the Code of Criminal Procedure, 1973 (hereinafter referred to
as “Cr.P.C.”) for confirmation of death penalty. Vide the
impugned judgment and order, the High Court while
dismissing the appeal of the appellant, has confirmed the
death penalty.
2. The prosecution case in brief is thus:
ComplainantPW1 Gudiya Parveen w/o PW2Mohd.
Armaan resided at D29, 4th Floor, Bajrangdheepa Colony
with her husband and her minor victim daughter aged 3
years. At about 10.00 am, on 24 th February 2016, she had
gone downstairs to wash clothes. At that time, she called her
husband for bathing the victim. Her husband told her that
the victim had gone downstairs to play. PW1 then went
upstairs and told her husband that the victim was not
downstairs. Thereafter, her husband (PW2) and she started
looking for the victim, but the victim was not found
anywhere. Since the victim could not be found, PW1 went to
Jutemill Police Station and lodged a report of the victim going
missing. They continued the search and ultimately returned
to their house at around 03.0004.00 am in the morning.
PW3Mohd. Sahid alias Raju Khan told her that appellant
Lochan Shrivas, a resident of D15 in the same building had
said that if they would allow him to conduct a worship, he
could find their child in an hour. Therefore, they agreed to
conduct the worship. After the worship, the appellant
informed them that the child was tied and kept inside a sack
in the bushes near a pole beside the road in Amlibhauna. On
this, PW1 and other prosecution witnesses developed a
suspicion, and as such, PW3 informed the police. The police
interrogated the appellant, who confessed his crime before
them. Thereafter, on a memorandum under Section 27 of the
Indian Evidence Act, 1872 (hereinafter referred to as the
“Evidence Act”), a sack from the bushes was recovered,
wherein the dead body of the deceased soaked in blood was
found (Ex.P.12). On the basis of the oral report (Ex.P.1) of
PW1, a First Information Report (hereinafter referred to as
“FIR”) (Ex.P.36) came to be registered for the offence
punishable under Section 363 of the IPC. After completion of
investigation, a chargesheet came to be filed before the trial
judge for the offences punishable under Sections 363, 376,
377, 302, 201 of the IPC and Section 6 of the POCSO Act.
3. Charges came to be framed for the offences punishable
under Sections 363, 376(2)(i), 377, 201, 302 read with
Section 376A of the IPC and Section 6 of the POCSO Act.
The accused pleaded to be not guilty and claimed to be tried.
At the conclusion of the trial, the trial judge recorded the
aforesaid order of conviction and sentence. Being aggrieved
thereby, an appeal was preferred by the appellant and also a
reference was made by the trial judge under Section 366 of
the Cr.P.C. By the impugned judgment and order, the High
Court dismissed the appeal filed by the appellant and
confirmed the death sentence. Hence, the present appeals.
4. We have heard Shri Anand Grover, learned Senior
Counsel appearing on behalf of the appellant and Shri
Nishanth Patil, learned counsel appearing on behalf of the
5. Shri Anand Grover, learned Senior Counsel appearing
on behalf of the appellant submitted that the present case is
a case based on circumstantial evidence. He submitted that
the prosecution has utterly failed to establish the
incriminating circumstances and in any case, failed to
establish the chain of events, which leads to no other
conclusion than the guilt of the accused. He submitted that
there are many missing links in the prosecution case, and as
such, the judgment and order of conviction as recorded by
the trial judge and confirmed by the High Court is not
sustainable in law. The learned Senior Counsel submitted
that the main incriminating circumstance, on which the
prosecution relies, is the recovery of the dead body of the
victim. He submitted that the recovery is from an open place
accessible to one and all. He therefore submitted that the
said recovery is of no assistance to the prosecution case. He
further submitted that the alleged recovery of black jeans
half pant (Ex.P.15) of the deceased and the white gamchha
(Ex.P.16) is from a place accessible to one and all. He
submitted that in any case, the Forensic Science Laboratory
(hereinafter referred to as the “FSL”) reports are inconclusive,
and therefore, the prosecution has failed to establish the link
between the recovered materials and the crime.
6. Shri Grover submitted that the evidence of PW9
Chameli Sarthi, Constable would reveal that she had gone to
the spot from where the body of the victim was alleged to
have been recovered at around 06.00 am. It is thus clear
that the police were already aware about the place from
where the body was alleged to have been recovered on a
memorandum under Section 27 of the Evidence Act.
7. He further submitted that the finger nails of the
appellant were cut by a barber PW8Kishore Shrivas and not
by any forensic expert. He therefore submitted that the
circumstance of finding human blood on the said nails is of
no use to the prosecution case. This is particularly so in
view of the long delay in seizure of the nail samples and
sending them to the FSL. The learned Senior Counsel further
submitted that it is improbable that the prosecution could
have called the photographer at such a short notice. He
submitted that the alleged recovery is at around 08.00 am
which are not the business hours, and as such, the very
evidence regarding photography and videography becomes
8. The learned Senior Counsel for the appellant further
submitted that the entire record would reveal that the
appellant was not given an opportunity of meaningfully
defending the case. He submitted that since the Raigarh
District Bar Association had taken a resolution that no
lawyer from the Bar would appear for the appellant, it was
difficult for him to engage a lawyer. The lawyer appointed by
the court from a list of panel lawyers, also was not given
sufficient opportunity to defend the case of the appellant. He
submitted that the evidence of PWs 1 and 2, the mother and
the father of the victim, were recorded on the very same day
on which the lawyer was appointed for the appellant. He
further submitted that the trial court recorded the judgment
and order of conviction, and the sentence on the very same
day without giving an appropriate opportunity to the
appellant. The learned Senior Counsel therefore submitted
that the prosecution has failed to prove the case beyond
reasonable doubt and the appeals deserve to be allowed.
9. The learned Senior Counsel, in the alternative, would
submit that in any case, the death penalty would not be
warranted in the facts of the present case. He submitted
that the trial court as well as the High Court has taken into
consideration only the aspect of crime and they have not
dealt with the aspect regarding the criminal. It is submitted
that the trial court as well as the High Court has not taken
into consideration the socioeconomic background of the
appellant so also the possibility of the appellant being
reformed or rehabilitated. It is therefore submitted that the
imposition of death penalty in the facts of the present case is
not at all warranted.
10. Shri Nishanth Patil, learned counsel appearing on
behalf of the respondentState, on the contrary, submitted
that the prosecution has established the case beyond
reasonable doubt. It is submitted that the prosecution has
proved all the incriminating circumstances beyond
reasonable doubt. He further submitted that the prosecution
has also established the link of proved circumstances, which
leads to no other conclusion than the guilt of the accused.
11. Shri Patil further submitted that the appellant has
committed a heinous act of rape on a minor girl and then
brutally killed her, and as such, the case warrants for no
other penalty than the death penalty.
12. With the assistance of the learned counsel for the
parties, we have scrutinized the entire evidence on record in
depth. Normally, this Court while exercising its jurisdiction
under Article 136 of the Constitution of India, would not go
into detailed analysis of the evidence. However, since in the
present case, the trial court has imposed death penalty,
which is confirmed by the High Court, we have scrutinized
the evidence minutely.
13. The law with regard to conviction in cases based on
circumstantial evidence has been very well crystalised in the
celebrated case of Hanumant, son of Govind Nargundkar
v. State of Madhya Pradesh1. A threeJudge Bench of this
Court, speaking through Mehr Chand Mahajan, J., observed
“It is well to remember that in cases where the
evidence is of a circumstantial nature, the
circumstances from which the conclusion of guilt
is to be drawn should in the first instance be fully
established, and all the facts so established
should be consistent only with the hypothesis of
the guilt of the accused. Again, the circumstances
should be of a conclusive nature and tendency
and they should be such as to exclude every
hypothesis but the one proposed to be proved. In
other words, there must be a chain of evidence so
far complete as not to leave any reasonable
ground for a conclusion consistent with the
innocence of the accused and it must be such as
to show that within all human probability the act
much have been done by the accused.”
14. It is thus clear that for resting a conviction in the case
of circumstantial evidence, the circumstances from which the
conclusion of guilt is to be drawn, should be fully
established, and all the facts so established should be
consistent only with the hypothesis of the guilt of the
accused. The circumstances should be of a conclusive nature
and tendency, and they should be such as to exclude every
hypothesis, but the one proposed to be proved. There must
be a chain of evidence so complete as not to leave any
reasonable ground for a conclusion consistent with the
innocence of the accused, and it must be such as to show
that within all human probabilities, the act must have been
done by the accused.
15. Subsequently, this Court in the case of Sharad
Birdhichand Sarda v. State of Maharashtra2, observed
“153. A close analysis of this decision would
show that the following conditions must be
fulfilled before a case against an accused can be
(1) the circumstances from which the
conclusion of guilt is to be drawn
should be fully established.
It may be noted here that this Court indicated
that the circumstances concerned “must or
should” and not “may be” established. There is
not only a grammatical but a legal distinction
between “may be proved” and “must be or should
be proved” as was held by this Court in Shivaji
Sahabrao Bobade v. State of Maharashtra [(1973)
1783] where the observations were made : [SCC
para 19, p. 807 : SCC (Cri) p. 1047]
“Certainly, it is a primary principle that
merely may be guilty before a court
can convict and the mental distance
between ‘may be’ and ‘must be’ is long
and divides vague conjectures from
sure conclusions.”
(2) the facts so established should be
consistent only with the hypothesis of
the guilt of the accused, that is to say,
they should not be explainable on any
other hypothesis except that the
(3) the circumstances should be of a
conclusive nature and tendency,
(4) they should exclude every possible
hypothesis except the one to be proved,
(5) there must be a chain of evidence
reasonable ground for the conclusion
consistent with the innocence of the
accused and must show that in all
human probability the act must have
been done by the accused.
154. These five golden principles, if we may say
so, constitute the panchsheel of the proof of a
case based on circumstantial evidence.”
16. As has been held by this Court, in a case of
circumstantial evidence, before the case can be said to be
fully established against an accused, it is necessary that the
circumstances from which the conclusion of guilt is to be
drawn, should be fully established, and all the facts so
established should be consistent only with the hypothesis of
the guilt of the accused. They should not be explainable on
any other hypothesis except that the accused is guilty. The
circumstances should be of a conclusive nature and
tendency. They should exclude every hypothesis except the
one to be proved. There must be a chain of evidence so
complete as not to leave any reasonable ground for the
conclusion consistent with the innocence of the accused and
must show that in all human probabilities, the act must have
been done by the accused.
17. The aforesaid view has been consistently followed by
this Court in a catena of decisions.
18. The circumstances, which the trial court has culled out
in its judgment while holding that the prosecution has
proved its case beyond reasonable doubt, are thus:
“1. The accused telling PW5 Munni that he can
tell the location of the missing victim in an
hour if he does Pooja.
2. PW5 Munni telling PW3; Mo Sahid alias
Raju Khan what the accused had told her as
above.
3. PW3 Mo Sahid alias Raju Khan telling the
victim's parents of the above conversation.
4. The deceased's parents PW1 Gudiya Parveen
and PW2 Mo Armaan asking the accused to
perform the Pooja.
5. The accused saying that the victim's body
was in a gunny sack near an electricity pole
on the side of the road in Amlibhauna.
6. PW3 Mo Sahid alias Raju Khan telling the
police of the aforesaid claims by the
accused.
7. Police questioning the accused and the
accused going along with the police to locate
the victim's dead body in a gunny sack in
8. The accused leading the police to recover the
pillow and the towel from his home
9. The accused leading the police to the
rubbish dump where he had thrown the
victim's pants.
10. Material used in a Pooja being recovered
11. According to Ex P 46, the fact that blood
was found under the accused's nails and
that the victim's vaginal slide had traces of
human sperm.”
19. The High Court also by giving an elaborate reasoning
has held that the prosecution has proved the chain of
incriminating circumstances, which leads to no other
conclusion than the guilt of the appellant.
20. We will now consider the evidence led on behalf of the
prosecution to establish the incriminating circumstances
against the appellant.
21. PW1Gudiya Parveen, mother of the victim has deposed
that she lived in D29, 4th Floor, Bajrangdheepa Colony. The
appellant lived downstairs in D15 in the same building. On
24th February 2016 at about 10.00 am, she had gone
downstairs to wash clothes. She had called her husband for
bathing the victim. However, her husband told her that the
victim had gone downstairs to play. Thereafter, they
searched for the victim but she was not found, and therefore,
they went to Jutemill Police Station and lodged the report of
the victim going missing. On the basis of the oral report
(Ex.P.1), an FIR (Ex.P.36) came to be registered. The oral
report (Ex.P.1) is duly proved in the evidence of PW1
whereas, the FIR (Ex.P.36) has been proved in the evidence
22. It could thus be seen that the first circumstance that
the prosecution has proved, is that the victim went missing
at around 10.00 am, and thereafter, they started searching
for her. When the victim was not found anywhere, an oral
report (Ex.P.1) came to be lodged at around 22.00 hours on
24th February 2016 on the basis of which, an FIR (Ex.P.36)
came to be registered.
23. PW1, in her testimony, has further stated that she and
her husband PW2Mohd. Armaan tried to search for the
child. Since she could not be found, they returned at around
03.0004.00 am. When they returned home, Raju Khan
(PW3) informed them that appellantLochan Shrivas, a
resident of D15, has stated that if they would allow him to
conduct a worship, he could find the child in an hour. Then,
PW1 agreed for conducting the worship. She arranged for
the things required for worship – vermilion, lemons, earthen
lamps, incense sticks and coal. After these things had been
brought, the appellant performed the worship in the room of
PW1. He had asked them to cover all the pictures of Allah
by a cloth. After performing the worship, the appellant told
them that the child was inside a sack in the bushes near a
pole beside the road in Amlibhauna.
24. Similar is the evidence of PW2Mohd. Armaan, the
husband of PW1 and father of the victim. PW3Raju Khan,
who is a neighbour, had stated in his evidence that when
they could not find the victim, they returned at around
03.0003.30 am. He stated that when they returned, Munni
alias Sarbari (PW5) told them that appellantLochan
Shrivas, who lived in D15 was telling her that the child
could be traced by worship. Accordingly, the worship was
performed, and after that, appellantLochan said that the
victim was inside a sack in the bushes near a pole beside
Amlibhauna road.
25. PW5Munni alias Sarbari, who is also a resident of
Bajrangdheepa colony, stated that she had also joined for
searching the victim. However, since the victim was not
found, they returned. At about 03.0003.30 am on 25 th
February 2016, the appellant met her and said, “If you
conduct worship, your child will be found.” She told the
same to Raju Khan (PW3). Then, the appellant conducted
worship and said that the deceased was inside a sack in the
bushes near a pole beside the road in Amlibhauna.
26. It could thus be seen that the prosecution has proved
beyond reasonable doubt that the appellant, on his own, told
PW5Munni alias Sarbari that if a worship was performed,
the whereabouts of the victim could be found. PW5Munni
alias Sarbari informed this fact to PW3Raju Khan, who in
turn, informed the same to PWs 1 and 2. Accordingly, a
worship came to be performed. After the worship was
performed, the appellant told them that the victim could be
found in a sack in the bushes near a pole beside the road in
(hereinafter referred to as the “IO”), has also seized the
materials which were used for performing the worship (Ex.
P.18). The said panchnama is witnessed by Raju Khan (PW
3). The said seizure panchnama therefore corroborates the
ocular version of PWs 1, 2, 3 and 5.
It is thus clear that when PWs 1, 2, 3 and 5 returned to
their place of residence, the appellant informed PW5 that if
they perform a worship, the deceased could be found.
Accordingly, a worship was performed and after performing
the said worship, the appellant said that the deceased could
be found in a sack in the bushes near a pole beside the road
in Amlibhauna. This circumstance could be an important
circumstance for considering the conduct of the appellant
under Section 8 of the Evidence Act. Reliance in this respect
could be placed on the judgments of this Court in the cases
of Prakash Chand v. State (Delhi Administration)3,
Himachal Pradesh Administration v. Shri Om Prakash 4
and A.N. Venkatesh and Another v. State of Karnataka5.
28. The next and the most important circumstance on
which the prosecution relies, is the recovery of dead body of
the victim on a memorandum of the appellant under Section
27 of the Evidence Act. The evidence of PWs 1, 2, 3 and 5
would reveal that immediately after the appellant performing
worship and telling them that the victim was inside a sack in
the bushes near a pole beside the road in Amlibhauna, a
suspicion arose and Raju Khan (PW3) immediately informed
the police and the police arrived. The evidence of all the four
witnesses is consistent in that regard. Amit Patley, IO(PW19)
also corroborated this fact with regard to the police receiving
the said information. In his evidence, PW19 stated that he
registered the said information in Rojnamcha No.2 dated 25 th
February 2016 at 06.10 am. The said Rojnamcha entry has
been exhibited at Ex.P.38 and its attested copy is at Ex.
29. PW19, in his evidence, stated that after receiving the
information, he immediately went to the spot and took the
appellant into his custody and interrogated him. He stated
that the appellant, on being interrogated, stated thus:
“The previous day on 24.02.2016, at about 10:00,
he had been alone in his room. The deceased who
lived in D29 on the floor above his house was
coming downstairs whom she persuaded and
took into his room and closed his room from
inside and got the pants worn by the deceased
removed and forcibly made physical relation with
her. Meanwhile, the deceased started crying
loudly so he pressed the mouth and nose of the
deceased with a pillow. By making physical
relation, excessive bleeding started, seeing which
he got nervous and thinking that the secret
should not be revealed, he murdered the
deceased by strangulating her and wipe the blood
and the ejaculated sperm smeared on his penis
with a towel kept in the room. He filled the dead
body of the deceased in a plastic sack of lentil by
twisting her hands and legs. He tied the bag with
a plastic rope. He wore his clothes. He filled the
pants worn by the deceased in a polythene and
threw it from the balcony to the place where
garbage is disposed and entering the room placed
the dead body of the deceased that he had filled
in a plastic sack, in a yellow bag. He locked the
room, carried the bag in hands and went on foot
to hide the dead body in a bush near electric pole
at Amlibhouna road and stated of keeping the
bag in his home on returning and of keeping the
pillow with which he had pressed the nose and
mouth of the deceased and the towel with which
he had wiped the blood and semen on his penis,
in his room and stated of getting the dead body of
the deceased, her pants, pillow and towel
recovered.”
30. The memorandum statement under Section 27 of the
Evidence Act was duly executed and the same was marked
as Ex.P.11. The prosecution has examined PW3Raju
Khan, who is a witness to the said memorandum statement.
31. PW19 further stated that thereafter, in the presence of
the witnesses, he recovered a blue plastic bag bearing a map
of India and the text “No.1 Dal Best Quality Dal”, which had
been tied with a plastic rope. He got the bag cut open by
Raju Khan (PW3) in the presence of the father of the
deceased (PW2) and other witnesses. In the said sack, the
dead body of the victim soaked in blood and in a naked
condition was found. The body was identified by PW2, who
is the father of the deceased. The recovery panchnama is
duly executed under Ex.P.12. The prosecution has relied on
the evidence of PW3, who was a panch witness to the said
32. The said recovery on the memorandum of the appellant
under Section 27 of the Evidence Act, has been attacked by
the defence on the ground that the same is from an open
place, accessible to one and all. In this respect, it is apposite
to rely on the following observations of this Court in the case
of State of Himachal Pradesh v. Jeet Singh6:
“26. There is nothing in Section 27 of the
Evidence Act which renders the statement of the
accused inadmissible if recovery of the articles
was made from any place which is “open or
accessible to others”. It is a fallacious notion that
when recovery of any incriminating article was
made from a place which is open or accessible to
others, it would vitiate the evidence under Section
27 of the Evidence Act. Any object can be
concealed in places which are open or accessible
to others. For example, if the article is buried in
the main roadside or if it is concealed beneath
dry leaves lying on public places or kept hidden
in a public office, the article would remain out of
the visibility of others in normal circumstances.
Until such article is disinterred, its hidden state
would remain unhampered. The person who hid
it alone knows where it is until he discloses that
fact to any other person. Hence, the crucial
question is not whether the place was accessible
to others or not but whether it was ordinarily
visible to others. If it is not, then it is immaterial
that the concealed place is accessible to others.”
It could thus be seen that this Court has held that what
is relevant is not whether the place was accessible to others
or not, but whether it was ordinarily visible to others. If the
place at which the article hidden is such where only the
person hiding it knows until he discloses that fact to any
other person, then it will be immaterial whether the
concealed place is accessible to others.
33. It will also be relevant to refer to the following
observations of this Court in the case of John Pandian v.
State represented by Inspector of Police, Tamil Nadu7:
“57. It was then urged by the learned counsel
that this was an open place and anybody could
have planted veechu aruval. That appears to be a
very remote possibility. Nobody can simply
produce a veechu aruval planted under the
thorny bush. The discovery appears to be
credible. It has been accepted by both the courts
below and we find no reason to discard it. This is
apart from the fact that this weapon was sent to
the forensic science laboratory (FSL) and it has
been found stained with human blood. Though
the blood group could not be ascertained, as the
results were inconclusive, the accused had to give
some explanation as to how the human blood
came on this weapon. He gave none. This
discovery would very positively further the
prosecution case.”
34. A perusal of the material placed on record would reveal
that the dead body of the deceased was recovered on the
basis of the information supplied by the appellant that he
had concealed the body in a sack in the bushes near a pole
beside the road in Amlibhauna. The evidence of PW7
Krishna Kumar Jaiswal, Photographer would reveal that after
he received the notice, he went to the spot and clicked the
photographs (Ex.P.23). He has further stated that he has
also made the videography of the entire procedure.
35. It will also be relevant to refer to the following
observations made by the High Court in para (35) of the
“35. We have gone through the video movie
prepared and after watching the video, we are of
the view that the recovery of dead body was made
from a place which cannot be said to be
accessible to an ordinary person without prior
knowledge as the body recovered was kept
concealed in a gunny bag inside the shrubs
situated at sufficient distance from the main
road. In the statement under Section 313 CrPC,
the accused/appellant failed to explain how he
came to know that the deceased had been
murdered and thrown in the shrubs after
wrapping her in a gunny bag……..”
It could thus be seen that the High Court had itself
viewed the video and on seeing the same, it was of the view
that the recovery of the dead body was made from a place,
which cannot be said to be accessible to an ordinary person
without prior knowledge since the body recovered was kept
concealed in a gunny bag inside the shrubs situated at
sufficient distance from the main road.
36. Insofar as the reliance placed by the appellant on the
judgment of this Court in the case of Krishan Mohar Singh
Dugal v. State of Goa8 is concerned, in the said case, the
accused was convicted for the offence punishable under
Section 20(b)(ii) of the Narcotic Drugs and Psychotropic
Substances Act, 1985, solely on the basis of recovery at the
instance of the accused on the basis of memorandum
statement under Section 27 of the Evidence Act. In the said
case, the recovery was from a place under the coconut tree,
which was accessible to one and all. It was not a case of
concealment in a place, which was only within the knowledge
of the person concealing it. In any event, in the said case,
the conviction was solely on the basis of the said recovery
and as such, was found to be untenable.
37. Insofar as the reliance placed by the appellant on the
judgment of this Court in the case of Nilesh Dinkar
Paradkar v. State of Maharashtra9 is concerned, in the
said case, the conviction was solely on the basis of
identification by voice and as such, was not found to be
tenable. As such, these cases would not be of any assistance
to the case of the appellant.
38. It has been sought to be urged on behalf of the
appellant that from the evidence of PW9Chameli Sarthi, it
is clear that the police already knew about the place where
the dead body was concealed. PW9 had taken the dead
body of the deceased to District Hospital, Raigarh. It will be
apposite to refer to the relevant portion of the deposition of
“We went to the place of incident Amlibhowna at
6 a.m. from the outpost. From there, we directly
went to the hospital with all. Today, I cannot
state at what time we left the place of incident
Amlibhowna. The witness now says, “Perhaps we
left at 89 O’ clock. Along with Prakash Tiwari,
SubInspector Amit Patle was also present with
me and policemen from other police station were
also present. Two person were going ahead taking
the dead body in an autorickshaw, we were
following by our bikes.”
PW9 stated that she went to the place of incident
Amlibhauna at 06.00 am from the outpost. It is to be noted
that according to the evidence of PWs 1, 2, 3 and 19, PW3
informed PW19 about the incident at around 06.00 am. The
said information was registered in the Rojnamcha at around
06.10 am. What is stated by this witness is that she went to
Amlibhauna which is a locality. However, that by itself
would not be sufficient to come to a conclusion that the
police already knew about the place from where the dead
body was recovered. She stated that she had left for the
hospital at around 08.0009.00 o’clock. The evidence of a
witness cannot be read in piecemeal. The evidence has to be
read as a whole. If the evidence of this witness is read as a
whole, the attack on her evidence is not justified. In any
case, the recovery of the body on the information given by the
appellant, is duly proved by the memorandum of the
appellant under Section 27 of the Evidence Act (Ex.P.11)
and the recovery panchnama (Ex.P.12). That apart, the oral
testimony of PWs 1, 2, 3, 5 and 19 corroborates the same.
39. We are therefore of the considered view that the
prosecution has proved beyond reasonable doubt that the
recovery of the dead body of the deceased on the
memorandum of the appellant under Section 27 of the
Evidence Act, was from a place distinctly within the
knowledge of the appellant.
40. Another circumstance against the appellant is the
recovery of the black jeans half pant of the deceased (Ex.
P.15) from the dumping area and the gamchha and pillow
(Ex.P.16) from the house of the appellant. PW3 is a panch
witness to the recovery of black jeans half pant (Ex.P.15).
He is also a witness to the spot panchnama (Ex.P.17) where
the worship was conducted. It is further noted that on the
gamchha seized from the house of the appellant, bloodstains
were found. Much attack has been made by the defence on
the ground that the FSL Report does not connect the
appellant with the said blood found on gamchha. To
consider this submission, we may gainfully refer to the
following observations of this Court in the case of R. Shaji v.
“30. It has been argued by the learned counsel
for the appellant that as the blood group of the
bloodstains found on the chopper could not be
ascertained, the recovery of the said chopper
cannot be relied upon.
31. A failure by the serologist to detect the origin
of the blood due to disintegration of the serum
does not mean that the blood stuck on the axe
could not have been human blood at all.
Sometimes it is possible, either because the stain
is insufficient in itself, or due to haematological
changes and plasmatic coagulation, that a
serologist may fail to detect the origin of the blood
in question. However, in such a case, unless the
doubt is of a reasonable dimension, which a
judicially conscientious mind may entertain with
some objectivity, no benefit can be claimed by the
accused in this regard. Once the recovery is made
in pursuance of a disclosure statement made by
the accused, the matching or nonmatching of
blood group(s) loses significance. (Vide Prabhu
Babaji Navle v. State of Bombay [AIR 1956 SC
Tripathi v. State of U.P. [AIR 1963 SC 74 : (1963)
1 Cri LJ 70] , State of Rajasthan v. Teja
436] , Gura Singh v. State of Rajasthan [(2001) 2
, John Pandian v. State [(2010) 14 SCC 129 :
(2011) 3 SCC (Cri) 550] and Sunil Clifford
Daniel v. State of Punjab [(2012) 11 SCC 205 :
32. In view of the above, the Court finds that it is
not possible to accept the submission that in the
absence of a report regarding the origin of the
blood, the accused cannot be convicted, for it is
only because of the lapse of time that the blood
could not be classified successfully. Therefore, no
advantage can be conferred upon the accused to
enable him to claim any benefit, and the report of
disintegration of blood, etc. cannot be termed as
a missing link, on the basis of which the chain of
circumstances may be presumed to be broken.”
41. The next circumstance is the finding of the bloodstains
on the nail clipping of the appellant. PW8Kishore Shrivas
is a barber. He has stated that on being called by the police,
he cut the nails of both the hands of the appellant. The said
nails were cut under the panchnama Ex.P.19, which is
signed by the said barber as well as PW3. The said
circumstance is attacked on the ground that the IO had not
called the forensic team for seizure of the said nails.
However, even if this circumstance is excluded, we find that
the other circumstances, which have been discussed in detail
by us in the foregoing paragraphs, conclusively bring home
the guilt of the appellant.
42. The panchnamas are sought to be attacked on the
ground that PW3 is the only panch witness to all these
panchnamas. We are of the view that this contention
deserves no merit in the light of the following observations of
this Court in the case of Himachal Pradesh
“10. Further having held this it nonetheless said
that there was no injunction against the same set
of witnesses being present at the successive
enquiries if nothing could be urged against them.
In our view the evidence relating to recoveries is
not similar to that contemplated under Section
103 of the Criminal Procedure Code where
searches are required to be made in the presence
of two or more inhabitants of the locality in which
the place to be searched is situate. In an
investigation under Section 157 the recoveries
could be proved even by the solitary evidence of
the Investigating Officer if his evidence could
otherwise be believed. We cannot as a matter of
law or practice lay down that where recoveries
have to be effected from different places on the
information furnished by the accused different
sets of persons should be called in to witness
them. In this case PW 2 and PW 8 who worked
with the deceased were the proper persons to
witness the recoveries as they could identify some
of the things that were missing and also they
could both speak to the information and the
recovery made in consequence thereof as a
continuous process. At any rate PW 2 who is
alleged to be the most interested was not present
at the time of the recovery of the dagger.”
43. We are therefore of the considered view that the
prosecution has established the following circumstances
(i) The victim was reported missing and an FIR
(ii) The appellant had claimed that he could
disclose the whereabouts of the victim by
(iii) The said worship came to be conducted by
the appellant in the early hours of 25th
February 2016 in the presence of PWs 1, 2,
3 and 5 and the appellant disclosed to them
that the dead body of the victim was inside a
sack in the bushes near a pole beside the
(iv) A suspicion arose in the minds of PWs 1, 2,
3 and 5 and they immediately informed the
police. The said information is recorded in
Rojnamcha No. 2 under Ex.P.38;
(v) Police immediately reached the spot and
interrogated the appellant. On interrogation,
a memorandum under Section 27 of the
Evidence Act came to be recorded;
(vi) On the basis of memorandum of the
appellant under Section 27 of the Evidence
Act, the dead body of the victim (Ex.P.12)
was recovered from a sack which was
concealed by the appellant under the
bushes from a place distinctly within his
(vii) On a memorandum of the appellant under
Section 27 of the Evidence Act, a black jeans
half pant of the victim (Ex.P.15) and a
gamchha of the appellant (Ex.P.16), were
recovered from the dumping area behind D
Block in Nagar Nigam Colony and the house
of the appellant respectively.
44. We are of the considered view that the aforesaid proven
circumstances establish a chain of circumstances, which
leads to no other conclusion than the guilt of the appellant.
Apart from that, in the statement recorded under Section
313 Cr.P.C., though all these incriminating circumstances
have been put to the appellant, he has not offered any
explanation except saying that it is wrong and false. In this
respect, we may refer to the following observations of this
Court in the case of Sharad Birdhichand Sarda (supra):
“151. It is well settled that the prosecution must
stand or fall on its own legs and it cannot derive
any strength from the weakness of the defence.
This is trite law and no decision has taken a
contrary view. What some cases have held is only
this : where various links in a chain are in
themselves complete, then a false plea or a false
defence may be called into aid only to lend
assurance to the court. In other words, before
using the additional link it must be proved that
all the links in the chain are complete and do not
suffer from any infirmity. It is not the law that
where there is any infirmity or lacuna in the
prosecution case, the same could be cured or
supplied by a false defence or a plea which is not
accepted by a court.
45. It is trite law that though the false explanation cannot
be taken to complete a missing link in the chain of
circumstances, it can surely be taken to fortify the
conclusion of conviction recorded on the basis of the proven
incriminating circumstances. We find that the non
explanation of the circumstances would fortify the finding,
which is based on the chain of incriminating circumstances
that leads to no other conclusion than the guilt of the
46. An important aspect arises for consideration in the
present appeals so also in the various other appeals where
the accused is not given an appropriate opportunity of
defending the case. In the present case, we find that the
charges were framed on 6th May 2016. On 6th June 2016, the
accused appeared before the court and submitted that he
was not competent to engage a lawyer at his own cost. As
such, the trial judge appointed Shri Kamlesh Saraf from the
Panel as the lawyer to represent the accused. Immediately
on the next day, the evidence of PWs 3 to 7 were recorded.
The trial judge passed the judgment and order of conviction
on 17th June 2016 and also awarded death penalty on the
same day. We find that though a speedy trial is desirable,
however, sufficient time ought to have been given to the
counsel for the accused to prepare for the case after he was
appointed. Even insofar as the award of sentence is
concerned, some period ought to have been given between
the date of conviction and the award of sentence, specifically
when a death penalty was awarded. However, from the
evidence which we have scrutinized in depth, we do not find
that any prejudice was caused to the accused inasmuch as
the witnesses have been crossexamined in detail by the
lawyer appointed by the court.
47. That leaves us with the question of sentence. We will
have to consider as to whether the capital punishment in the
present case is warranted or not.
48. Recently, this Court in the case of Mohd. Mannan
alias Abdul Mannan v. State of Bihar11, after considering
earlier judgments of this Court on the present issue in the
cases of Bachan Singh v. State of Punjab12 and Machhi
Singh and Others v. State of Punjab13, observed thus:
“72. The proposition of law which emerges from
the judgments referred to above is itself death
sentence cannot be imposed except in the rarest
of rare cases, for which special reasons have to be
recorded, as mandated in Section 354(3) of the
Criminal Procedure Code. In deciding whether a
case falls within the category of the rarest of rare,
the brutality, and/or the gruesome and/or
heinous nature of the crime is not the sole
criterion. It is not just the crime which the Court
is to take into consideration, but also the
criminal, the state of his mind, his socio
economic background, etc. Awarding death
sentence is an exception, and life imprisonment
is the rule.”
49. This Bench, recently, in the case of Mofil Khan and
Another v. The State of Jharkhand14, has observed thus:
14 RP(Criminal) No. 641/2015 in Criminal Appeal No.1795/2009 dated
“8. One of the mitigating circumstances is the
probability of the accused being reformed and
rehabilitated. The State is under a duty to
procure evidence to establish that there is no
possibility of reformation and rehabilitation of the
accused. Death sentence ought not to be
imposed, save in the rarest of the rare cases
when the alternative option of a lesser
punishment is unquestionably foreclosed (See:
Bachan Singh v. State of Punjab (1980) 2 SCC
684). To satisfy that the sentencing aim of
reformation is unachievable, rendering life
imprisonment completely futile, the Court will
have to highlight clear evidence as to why the
convict is not fit for any kind of reformatory and
rehabilitation scheme. This analysis can only be
done with rigour when the Court focuses on the
circumstances relating to the criminal, along with
other circumstances (See: Santosh Kumar
Satishbhushan Bariyar v. State of Maharashtra
Wasnik v. State of Maharashtra (2019) 12 SCC
460, this Court dealt with the review of a
judgment of this Court confirming death sentence
“45. The law laid down by various
decisions of this Court clearly and
unequivocally mandates that the
probability (not possibility or
improbability or impossibility) that a
rehabilitated in society must be
seriously and earnestly considered by
the courts before awarding the death
sentence. This is one of the mandates
of the “special reasons” requirement of
Section 354(3) CrPC and ought not to
be taken lightly since it involves
snuffing out the life of a person. To
effectuate this mandate, it is the
obligation on the prosecution to prove
to the court, through evidence, that the
probability is that the convict cannot
be reformed or rehabilitated. This can
be achieved by bringing on record,
inter alia, material about his conduct
in jail, his conduct outside jail if he has
been on bail for some time, medical
evidence about his mental makeup,
contact with his family and so on.
Similarly, the convict can produce
evidence on these issues as well.””
50. In the present case, it is to be noted that the trial court
had convicted the appellant and imposed death penalty on
the very same day. The trial court as well as the High Court
has only taken into consideration the crime but they have
not taken into consideration the criminal, his state of mind,
his socioeconomic background, etc. At this juncture, it will
be relevant to refer to the following observations of this Court
in the case of Rajendra Pralhadrao Wasnik v. State of
“47. Consideration of the reformation,
rehabilitation and reintegration of the convict into
society cannot be overemphasised. Until Bachan
Singh [Bachan Singh v. State of Punjab, (1980) 2
SCC 684 : 1980 SCC (Cri) 580] , the emphasis
given by the courts was primarily on the nature of
the crime, its brutality and severity. Bachan
Singh [Bachan Singh v. State of Punjab, (1980) 2
SCC 684 : 1980 SCC (Cri) 580] placed the
sentencing process into perspective and
introduced the necessity of considering the
reformation or rehabilitation of the convict.
Despite the view expressed by the Constitution
Bench, there have been several instances, some
in Bariyar [Santosh Kumar Satishbhushan
Bariyar v. State of Maharashtra, (2009) 6 SCC
498 : (2009) 2 SCC (Cri) 1150] and
in Sangeet v. State of Haryana [Sangeet v. State
of Haryana, (2013) 2 SCC 452 : (2013) 2 SCC
(Cri) 611] where there is a tendency to give
primacy to the crime and consider the criminal in
a somewhat secondary manner. As observed
in Sangeet [Sangeet v. State of Haryana, (2013) 2
SCC 452 : (2013) 2 SCC (Cri) 611] “In the
sentencing process, both the crime and the
criminal are equally important.” Therefore, we
should not forget that the criminal, however
ruthless he might be, is nevertheless a human
being and is entitled to a life of dignity
notwithstanding his crime. Therefore, it is for the
prosecution and the courts to determine whether
such a person, notwithstanding his crime, can be
reformed and rehabilitated. To obtain and analyse
this information is certainly not an easy task but
must nevertheless be undertaken. The process of
rehabilitation is also not a simple one since it
involves social reintegration of the convict into
society. Of course, notwithstanding any
information made available and its analysis by
experts coupled with the evidence on record,
there could be instances where the social
reintegration of the convict may not be possible. If
that should happen, the option of a long duration
of imprisonment is permissible.”
51. In view of the settled legal position, it is our bounden
duty to take into consideration the probability of the accused
being reformed and rehabilitated. It is also our duty to take
into consideration not only the crime but also the criminal,
his state of mind and his socioeconomic conditions.
52. The appellant is a young person, who was 23 years old
at the time of commission of the offence. He comes from a
rural background. The State has not placed any evidence to
show that there is no possibility with respect to reformation
and the rehabilitation of the accused. The High Court as well
as the trial court also has not taken into consideration this
aspect of the matter. The appellant has placed on record the
affidavits of Leeladhar Shrivas, younger brother of the
appellant as well as Ghasanin Shrivas, elder sister of the
appellant. A perusal of the affidavits would reveal that the
appellant comes from a small village called Pusalda in
Raigarh district of Chhattisgarh. His father was earning his
livelihood as a barber. The appellant was studious and hard
working. He did really well at school and made consistent
efforts to bring the family out of poverty. The conduct of the
appellant in the prison has been found to be satisfactory.
There are no criminal antecedents. It is the first offence
committed by the appellant. No doubt, a heinous one. The
appellant is not a hardened criminal. It therefore cannot be
said that there is no possibility of the appellant being
reformed and rehabilitated foreclosing the alternative option
of a lesser sentence and making imposition of death sentence
53. A bench consisting of three Judges of this Court had an
occasion to consider similar facts in the case of Sunil v.
State of Madhya Pradesh16. In the said case too, the
appellantaccused was around 25 years of age who had
taken away a minor girl. The accused had committed rape
on the said minor and caused her death due to asphyxia
caused by strangulation. The trial court had sentenced the
accused for the offences punishable under Sections 363,
367, 376(2)(f) and 302 of the IPC and awarded him death
penalty. The same was upheld by the High Court. In appeal,
“12. In the present case, we do not find that the
requirements spelt out in Bachan Singh [Bachan
Singh v. State of Punjab, (1980) 2 SCC 684 : 1980
SCC (Cri) 580] and the pronouncements
thereafter had engaged the attention of either of
the courts. In the present case, one of the
compelling/mitigating circumstances that must
be acknowledged in favour of the appellant
accused is the young age at which he had
committed the crime. The fact that the accused
can be reformed and rehabilitated; the probability
that the accused would not commit similar
criminal acts; that the accused would not be a
continuing threat to the society, are the other
circumstances which could not but have been
ignored by the learned trial court and the High
13. We have considered the matter in the light of
the above. On such consideration, we are of the
view that in the present case, the ends of justice
would be met if we commute the sentence of
death into one of life imprisonment. We order
accordingly. The punishments awarded for the
offences under Sections 363, 367 and 376(2)(f)
IPC by the learned trial court and affirmed by the
High Court are maintained.”
54. We are also inclined to adopt the same reasoning and
follow the same course as adopted by this Court in the case
of Sunil (supra). The appeals are therefore partly allowed.
The judgment and order of conviction for the offences
punishable under Sections 363, 366, 376(2)(i), 377, 201, 302
read with Section 376A of the IPC and Section 6 of the
POCSO Act is maintained. However, the death penalty
imposed on the appellant under Section 302 IPC is
commuted to life imprisonment. The sentences awarded for
the rest of the offences by the trial court as affirmed by the
High Court, are maintained.
55. Before we part with the judgment, we must appreciate
the valuable assistance rendered by Shri Anand Grover,
learned Senior Counsel appearing on behalf of the appellant
and Shri Nishanth Patil, learned counsel appearing on behalf
of the respondentState.
|
On Tuesday, the Supreme Court commuted the death sentence of a man accused of rape and murder of a three year old girl child, considering his socio-economic background and the possibility of reform and rehabilitated. "It therefore cannot be said that there is no possibility of the appellant being reformed and rehabilitated foreclosing the alternative option of a lesser...
On Tuesday, the Supreme Court commuted the death sentence of a man accused of rape and murder of a three year old girl child, considering his socio-economic background and the possibility of reform and rehabilitated.
"It therefore cannot be said that there is no possibility of the appellant being reformed and rehabilitated foreclosing the alternative option of a lesser sentence and making imposition of death sentence imperative."
A bench comprising Justices L. Nageswara Rao, B.R. Gavai and B.V. Nagarathna upheld the conviction of the appellant (Lochan Shrivas), but commuted the death penalty on the consideration of the 'criminal test', which the Court asserted was conducted neither by the Trial Court nor the High Court.
"The trial court as well as the High Court has only taken into consideration the crime but they have not taken into consideration the criminal, his state of mind, his socio economic background, etc."
The Prosecution's Case
In the morning of 24th February, 2016, when the complainant's 3-year old daughter (the deceased) went missing, she went to the Jutemill Police Station and lodged a missing report. In the wee hours of the next day, one Raju Khan informed the complainant that Lochan Shrivas (the appellant), a neighbour had offered to find her daughter by conducting a ritual. As promised Shrivas informed the complainant that her daughter was tied and kept in a sack near a pole, on the side of the road in Amlibhauna. On suspicion, Raju Khan informed the police about the same. Based on Shrivas's confession, the police recovered the blood soaked body of the deceased from inside the said sack. On the basis of the report of the complainant, FIR was lodged under Section 363 of IPC. The Trial Court convicted the appellant for offences punishable under Section 363, 366, 376(2)(i), 377, 201, 302 read with Section 376A of the IPC and Section 6 of the POCSO Act and by the same order, inter alia, sentenced him to death. The High Court dismissed the appeal preferred by Shrivas and confirmed the death penalty.
Contentions raised by the Appellant
Senior Advocate, Mr. Anand Grover appearing for Shrivas contended that though the prosecution's case was based on circumstantial evidence, it had failed to establish the chain of events pointing towards the guilt of the accused. He further submitted that recovery of the body of the deceased and her clothes were from an open place accessible to all. Moreover, the Forensic Science Laboratory (FSL) reports were also inconclusive. It was highlighted that the police had prior knowledge of the place from where the body was recovered. With respect to the circumstance of finding human blood on the nails of Shrivas, Mr. Anand submitted that they were cut by a barber and there was a delay in sending the sample to the Laboratory, which is enough reasons for the same to be of no use for establishing his guilt. Apart from these, Mr. Anand emphasised that Shrivas did not get effective representation. On top of that, the Trial Court had recorded its order of conviction and the award of sentence on the same day without providing him adequate opportunity of being heard. Furthermore, Mr. Anand pointed out that the Trial Court and the High Court had applied only the 'crime test', and not the 'criminal test' for the determination of death sentence.
Contentions raised by the State
Advocate, Mr. Nishanth Patil, appearing on behalf of the State, argued that the prosecution had established the case beyond reasonable doubt. He asserted that rape and murder committed by Shrivas were heinous offences, which warrants nothing short of death penalty.
Analysis of the Court
Circumstances should be conclusive in nature
Placing reliance on Hanumant, son of Govind Nargundkar v. State of Madhya Pradesh 1952 SCR 1091 and Sharad Birdhichand Sarda v. State of Maharashtra (1984) 4 SCC 116, the Court reiterated the settled principle that when a conviction rests on circumstantial evidence, then the circumstances from which the conclusion of guilt is drawn is to be fully established, without there being any probability of reaching a conclusion pointing towards the innocence of the accused.
"The circumstances should be of a conclusive nature and tendency, and they should be such as to exclude every hypothesis, but the one proposed to be proved. There must be a chain of evidence so complete as not to leave any reasonable ground for a conclusion consistent with the innocence of the accused, and it must be such as to show that within all human probabilities, the act must have been done by the accused."
Circumstance relevant for considering the motive, preparation or subsequent conduct
The Court was convinced that the prosecution had proved its case beyond reasonable doubt. The prosecution witnesses provided consistent testimonies regarding the ritual that was conducted by Shrivas and the fact that he told them the whereabouts of the body of the deceased. Citing Prakash Chand v. State (Delhi Administration) (1979) 3 SCC 90, Himachal Pradesh Administration v. Shri Om Prakash (1972) 1 SCC 249 and A.N. Venkatesh and Another v. State of Karnataka (2005) 7 SCC 714, the Court also noted that this particular circumstance would be relevant for considering the conduct of Shrivas under Section 8 of the Evidence Act.
Evidence under Section 27 of the Evidence Act cannot be vitiated on the ground of accessibility, but on the ground of visibility
The Court observed that the coherent testimonies of the prosecution witnesses established that after the prediction was made by Shrivas about the body of the deceased, they grew suspicious and Raju Khan informed the police instantaneously. On a memorandum of Shrivas under Section 27 of the Evidence Act, the dead body was recovered. Taking note of the fact that this recovery was challenged by the defence on the ground that it was recovered from an open and accessible place, the Court referred to the judgment of State of Himachal Pradesh v. Jeet Singh (1999) 4 SCC 370 and John Pandian v. State represented by Inspector of Police, Tamil Nadu (2010) 14 SCC 129. It stated that what is relevant is not the accessibility of the palace but its visibility.
"If the place at which the article hidden is such where only the person hiding it knows until he discloses that fact to any other person, then it will be immaterial whether the concealed place is accessible to others."
Moreover, the High Court had examined the video and opined that the recovery of the dead body was from a place which was not accessible to an ordinary person without prior knowledge. The Court further distinguished the cases relied on by Mr. Anand, wherein the convictions were solely based on recovery from commonly known, accessible places.
The contentions raised by the defence - held to be untenable
Relying on R. Shaji v. State of Kerala (2013) 14 SCC 266, the Court opined that it cannot discount the prosecution evidence on the ground that FSL Report does not connect Shrivas with the blood on the gamchha, which was recovered from his house. It further noted that even if the circumstance of finding blood stains in the nail clipping of the accused is excluded, there was sufficient material to establish the guilt of the accused. The Court was of the view, the contention raised by the defence, that Raju Khan, being the sole witness to all the panchnamas, makes them unreliable, had no merit.
No explanation in the 313 Statement by the accused furthers the case of the prosecution
As no cogent explanation was offered by Shrivas in his statement under Section 313 Cr.P.C, the Court thought it had furthered the case of the prosecution. As per the ratio in Sharad Birdhichand Sarda, the Court held -
"It is trite law that though the false explanation cannot be taken to complete a missing link in the chain of circumstances, it can surely be taken to fortify the conclusion of conviction recorded on the basis of the proven incriminating circumstances."
The contentions raised by the defence - acknowledged by Court
Addressing the issue of lack of representation as pointed out by the defence, the Court observed that sufficient time might not have been provided to the counsel for the accused after his appointment. The Court further opined that the death sentence should not have been awarded on the same day as the order of conviction.
Question of sentence
On the issue of sentence, placing reliance on Mohd. Mannan alias Abdul Mannan v. State of Bihar (2019) 16 SCC 584, Mofil Khan and Another v. The State of Jharkhand RP(Criminal) No. 641/2015 in Criminal Appeal No.1795/2009 dated 26.11.2021 and Rajendra Pralhadrao Wasnik v. State of Maharashtra (2019) 12 SCC 460, the Court felt that it was their bounden duty to take into consideration the probability of the accused being reformed and rehabilitated.
"It is also our duty to take into consideration not only the crime but also the criminal, his state of mind and his socio economic conditions."
Considering that Shrivas was only 23 years old at the time of commission of offence; he came from a rural background; no evidence was on record to show that there was no possibility of reform; his father was a barber; he was studious and hardworking; he did well in school and made efforts to bring his family out of poverty; his conduct in prison was satisfactory; he had no criminal antecedent; he was not a hardened criminal, the Court observed that there was scope for reform and rehabilitation. Relying on the reasoning in Sunil v. State of Madhya Pradesh (2017) 4 SCC 393, wherein there were factual similarities, the Court commuted the death penalty awarded to Shrivas to life imprisonment.
[Case Title: Lochan Shrivas v. The State of Chhattisgarh, Criminal Appeal Nos. 499-500 of 2018]
Case name: Lochan Shrivas vs State of Chhattisgarh
Case no. and Date: CrA 499-500 OF 2018 | 14 December 2021
Coram: Justices L. Nageswara Rao, BR Gavai and BV Nagarathna
Counsel: Sr. Adv Anand Grover for appellant, Adv Nishanth Patil for state
|
2. This appeal challenges the judgment and order dated
29.9.2021 passed by the High Court of Karnataka at Bengaluru,
dismissing Writ Petition No. 53944/2016 (GM-Res) preferred by
the appellant herein. Said writ petition had prayed, inter alia, for
following reliefs: -
(A) “Issue appropriate writs, orders or directions
Digitally signed by
directing the Respondents to produce mercy files
Reason: pertaining to the Petitioner, all the relevant papers
and correspondence pertaining to the Petitioner’s
mercy petition, for the perusal of the Court since the
Petitioner has been able to show a grave, and
unexceptionable delay in such processes as
undertaken by the Respondents.
(B) Issue appropriate writs, orders or directions
directing production of medical file of the Petitioner
from prison from the date of his arrest.
(C) Issue appropriate writs, orders or directions and in
particular a writ of Declaration, declaring that the
execution of the sentence of death on the Petitioner
(as communicated through letter dated 15.05.2013
- F.No.14/1/2011-Judicial Cell, Annexure N hereto)
pursuant to the rejection of his mercy petition by the
office of the Hon’ble President of India is
unconstitutional and bad in law.
(D) Issue appropriate writs, orders or directions
commuting the death sentence of the Petitioner to
imprisonment for life.
(E) Declare that the decision of the office of the Hon’ble
President of India rejecting the mercy petition filed
by the Petitioner is illegal, void and unenforceable;
(F) Declare that the decision of the office of the Hon’ble
Governor of Karnataka rejecting the mercy petition
filed by the Petitioner is illegal, void and
(G) Quash and set aside the order of President of India
rejecting the mercy petition filed by the Petitioner;
(H) Quash and set aside the order of the Governor of
Karnataka rejecting the mercy petition filed by the
(I) Grant inspection of the documents mentioned in (A)
and (B) to the Petitioner;
(J) Issue any such other writs, orders and directions as
this Hon’ble Court deems fit in the facts and
circumstances of the case in the interest of justice
and equity.
3. The basic facts leading to the filing of said Writ Petition are
(a) One Jayashri, wife of Maradi Subbaiah was found
raped and murdered in her home on 28.02.1998, which
led to the registration of Crime No. 108/1998 with
Division, Bengaluru City. The appellant was arrested
in connection with said crime on 2.3.1998 and has
been in custody since then. After due investigation, the
appellant was tried in Sessions Case No. 725/1999 on
the file of Sessions Judge, Fast Track Court-VII,
Bengaluru for having committed offences punishable
under Sections 302, 376 and 392 of the Indian Penal
(b) By its judgment dated 26.10.2006, the trial Court
convicted the appellant for the aforesaid offences and
by order dated 27.10.2006, awarded punishment of
death sentence, subject to confirmation by the High
Court. The appellant was immediately transferred to
Belgaum Central Prison and according to the
appellant, he was kept in solitary confinement.
(c) Case for confirmation of death sentence was registered
as Criminal Reference No. 3/2006 before the High
Court. The appellant also filed Criminal Appeal No.
2408/2006 challenging his conviction. The matter was
heard by a Bench of two Judges, which confirmed the
order of conviction, but disagreed on the sentence to be
imposed. While Mr. Justice V.G. Sabhahit confirmed
the award of death sentence, Mr. Justice R.B. Naik
commuted the death sentence to life imprisonment.
(d) The matter was therefore referred to the third Judge
i.e., Mr. Justice S.R. Bannurmath on the issue of
sentence, who affirmed the award of death sentence by
his judgment dated 18.2.2009.
(e) The matter was carried further by the appellant by
filing Criminal Appeal Nos. 285-286/2011 before this
Court, which were dismissed by this Court vide order
dated 1.2.20112, affirming the appellant’s conviction
and sentence of death imposed upon him.
B.A. Umesh v. High Court of Karnataka, (2011) 3 SCC 85.
(f) According to the procedure governing petitions for
mercy in death sentence cases, a death convict can
prefer a petition for mercy within seven (7) days after
the dismissal of his appeal by this Court or rejection of
application for special leave to appeal. The relevant
instructions in that behalf read as under: -
“I. A convict under sentence of death shall be
allowed, if he has not already submitted a petition
for mercy, for the preparation and submission of a
petition for mercy, seven days after, and exclusive of,
the date on which the Superintendent of Jail informs
him of the dismissal by the Supreme Court of his
appeal or of his application for special leave to
appeal to the Supreme Court.
Provided that in cases where no appeal to the
Supreme Court, has been preferred or no application
for special leave to appeal to the Supreme Court has
been lodged, the said period of seven days shall be
computed from the date next after the date on which
the period allowed for an appeal to the Supreme
Court or for lodging an application for special leave
to appeal to the Supreme Court expires.
(g) Having been informed about his right to file a mercy
petition as per procedure, the appellant preferred a
petition seeking mercy on 8.2.2011, i.e., within seven
days. The appellant also preferred Review Petition
against the decision dated 1.2.2011 passed by this
Court. Around the same time, Writ Petition (Crl.) No.
52/2011 was preferred by the appellant in this Court
praying, inter alia, for the relief of open Court hearing
in review petition. In said writ petition, this Court by
order dated 9.3.2011, directed stay of execution of
death sentence. The Review Petition filed by the
appellant was dismissed by circulation by this Court
vide its order dated 7.9.2011.
(h) Mercy petition preferred by the appellant was rejected
by the Hon’ble President on 12.5.2013. An intimation
in that behalf was sent vide letter dated 15.5.2013 to
the appellant.
(i) Writ Petition (Crl.) No. 52/2011 preferred by the
appellant was decided alongwith Writ Petition (Crl.) No.
77/2014 (Mohd. Arif @ Ashfaq vs. Registrar
General, Supreme Court of India & Ors.) by a
Constitution Bench of this Court vide judgment dated
2.9.20143. It was held by majority that review petitions
arising out of award of death sentence be heard in open
Court by a Bench of three Judges of this Court.
(j) Consequently, the Review Petition which was rejected
earlier on 7.9.2011, was listed for re-hearing before a
Bench of three Judges of this Court, which by its order
dated 3.10.20164, dismissed the Review Petition and
affirmed the award of death sentence. The order stated
that on careful comparison of aggravating and
mitigating circumstances and keeping in view the
principles of law laid down by this Court, the Court was
not inclined to allow the Review Petition or modify the
order dated 1.2.2011.
(k) Within few days thereafter, Writ Petition No.
53944/2016 was preferred by the appellant seeking
reliefs as extracted hereinabove. The High Court by its
order dated 20.10.2016, stayed execution of death
sentence imposed upon the appellant. Thereafter,
statements of objections were preferred on behalf of the
Union of India and State of Karnataka, to which
rejoinders were filed. An application under Section 151
of the Code of Civil Procedure, 1908 was also preferred
to bring on record certain documents regarding
medical condition of the appellant.
4. By its judgment and order dated 29.9.2021, the High Court
dismissed the aforesaid writ petition. After considering the
submissions advanced on behalf of the parties, the following
conclusions were arrived at by the High Court: -
“(i) There is no excessive, unexplained, inordinate delay
attributable to the respondents in deciding the mercy
(ii) There is no violation of the petitioner’s right under
Article 21 of the Constitution of India;
(iii) All the relevant and crucial materials required for
deciding the mercy petition were placed before His
Excellency, the Governor and His Excellency, the
President of India and nothing has been kept out of
(iv) Petitioner cannot be said to have been kept in solitary
confinement.”
5. In the challenge raised in the instant matter, while issuing
notice, the order dated 31.1.2022 passed by this Court noted the
submissions on behalf of the appellants as under: -
“a) Even after recording a finding that there was avoidable
delay to the extent of 550 days in disposing of the mercy
petition, the High Court did not grant any relief to the
petitioner.
b) Going by the letter written by a Medical Officer, which
letter was not controverted, the petitioner was kept in
solitary confinement for about 11 years. Thus, the law
laid down by this Court in Sunil Batra v. Delhi
Administration & Others5 was violated.
c) The letter written by the Medical Officer was quite clear
that because of the psychological condition, the
petitioner was unable to make any mercy petition. This
fact was also not taken into account in correct
perspective by the High Court.”
By said order, this Court also called for certain documents as
“a. The State shall place before us the Report(s) of all the
Probation Officer(s) relating to the accused before the
next date of hearing. In case there have been more than
one Report, let all Reports be placed for the
consideration of this Court.
b. Since the National Institute of Mental Health and Neuro
Sciences (NIMHANS) at Bengaluru, has on the earlier
occasion made psychological assessment of the
petitioner, the Director NIMHANS is directed to
constitute a suitable team for psychological evaluation
of the petitioner and send a Report before the next date
of hearing.
c. The Jail Authorities, Belgaum Central Prison where the
petitioner is presently lodged shall render complete co-
operation in facilitating access to and due evaluation of
the petitioner in all respects.”
6. When the matter was taken up on 21.4.2022, after noting the
submission advanced on behalf of the appellant that the appellant
had been kept in solitary confinement right from the decision of
the Sessions Court, directions were issued to the District Judge,
Belgaum to cause an inspection to be undertaken and submit a
report. The text of the order was as under: -
“The basic submissions raised on behalf of the petitioner
were recorded in the order dated 31.01.2022.
While elaborating those submissions, Dr. Yug Mohit
Chaudhry, learned advocate, has stressed the point that the
petitioner was kept in solitary confinement right from the
decision of the Sessions Court awarding him death sentence.
Our attention is invited to various documents including the
Prison Manual in support of the submission that, as the
petitioner was segregated and kept in a separate Cell, that
would amount to solitary confinement, in terms of the law
laid down in Sunil Batra Etc. vs Delhi Administration and
The submission is opposed on behalf of the State
Government and though no specific reply was filed in the
High Court controverting the basic allegations in the writ
petition, Mr. Nikhil Goel, learned AAG for the State, on
instructions, submits that video conferencing can be
arranged so that this Court can have clear knowledge about
the circumstances in which the petitioner has been lodged in
a Cell.
It is true that the Hon’ble Judges constituting the Bench
in Sunil Batra’s5 case had visited the jail premises themselves
in order to have first-hand knowledge about the conditions in
which said petitioner was lodged. We may at this stage rely
upon the local inspection to be conducted by the District
Judge, Belgaum who also holds the charge as the Chairman
of the District Legal Services Committee, Belgaum.
We therefore, direct the District Judge, Belgaum to cause
local inspection done by himself and place a report alongwith
pictures, if any, to enable us have a clear understanding of
the ground situation. The report shall concentrate on location
of the barracks in which the cells of Death Row Convicts are
situated.
It is made clear that the Cells which are close to the gallows
and are used for keeping persons about to be executed, are
different from the Cells for the Death Row Convicts.
The inspection shall cover issues whether the inmates of
the concerned cells are allowed to intermingle with fellow
prisoners, the way the meals are served to them and the
duration for which the inmates are allowed to come out of
their individual cells. These are only illustrative pointers.
What we want to gather is the typical life-style of Death Row
Convicts and how their days are spent.
Let the report be made as early as possible and latest by
The report shall be sent through electronic mode at the
following Email id.: vc2.appearance@sci.nic.in.
Let copy of this order be sent through electronic mode to
the District Judge, Belgaum.
To our specific query as to the manner in which the Mercy
Petition of the petitioner was processed, Ms. Sonia Mathur,
learned Senior Advocate appearing for Union of India has
placed the concerned file for our perusal. The Registry is
directed to make copies of the file and return the same to the
concerned advocate on record by tomorrow.”
7. Accordingly, report dated 21.4.2022 has been placed on
record by Principal District & Sessions Judge, Belgaum alongwith
picture photograph(s) of the concerned Jail barracks and the cells.
The Report is as under: -
1. “As per the directions, I visited Central Prison, Hindalaga
at 2.15 p.m. without prior notice to the Jail Authorities.
2. The concerned barrack wherein the death convict Sri B A
Umesh is housed is on the North-Eastern side facing East in
the Central Prison Hindalga. There are six cells each
measuring 8x10 feet approximately. Each cell has a toilet in
the corner with an adequate water facility. Each of the
prisoners is given a flat mattress and they are at liberty to
have their own bedding. There is electric light in each of the
cells which can be put on at their wish and they have one
window facing towards the West. The cells are covered with
grill doors and adequate light and air is available. These six
cells are of tiled roof. Encircling the six cells, there is guard
room and another common toilet outside within the
compound. Even in the compound of the barrack, there is a
facility for washing of the clothes etc. It was informed that
prison also has R.O. Water facility which would be provided
in plastic pots.
3. Out of these six cells, five are occupied. In one of the cells,
there are four persons involved in an offence of kidnapping,
robbery, and murder. They are Siddhalingesh, Suraj, Akshay
and Jameer. In another cell, there are two occupants viz.,
Sameer and Shakib, who are involved in offence under
Section 307 of IPC. Another cell is occupied by Balu involved
in a murder case. They are all under trial prisoners.
4. The Remaining two cells are occupied by one person
each i.e, Akash Desai convicted for offence under NDPS
Act for 10 years. Southern most cell is occupied by death
convict Shri. B.A. Umesh. They informed that they are in the
said cells for the last 3 months to 8 years. The other 26 death
convicts are in other barracks including high security
barrack, women barrack and a hospital.
5. The inmates of the cell informed that they are unlocked
from the cells at about 6.00 a.m. They are allowed to wander
in the compound of the barrack. The barrack is guarded by
five guards and it was informed that they are free to wash
their clothes and take bath outside and sit under the trees in
the compound. There is also hospital block in the prison and
if necessary, they will be escorted to the hospital where there
is a Medical Officer available. Hospital also has inpatient
facilities and mini laboratory is also adjoining it. The inmates
also told me that they can talk to fellow prisoners and there
are no restrictions during daytime. The cells will be locked
again at 6.00 p.m. in the evening.
6. It is informed that breakfast is served at about 7.30 in the
morning, lunch will be served at about 11.00 a.m. and supper
would be served at 4.30 p.m. The inmates are free to consume
the supper at any time they find it convenient and they can
eat sitting together. All the inmates including Shri. B.A.
Umesh informed that the quality of food is good and
adequate. It was informed by the jail authorities that a
minimum of five guards are posted in the barrack on a
rotation basis.
7. It was also informed that in one of the cells there is a TV
fixed which may be seen by all the inmates together.
8. It was also informed that prisoners are at liberty to
purchase bakery items which are prepared by the inmates
and sold in the prison itself. It was informed that the
prisoners purchase the bakery items out of the earnings
made by them.
9. Adjoining the said barrack of six cells, on the northern
side, there is a gate leading to the gallows. There is no
separate cell meant for death convict, who would be kept in
the cell before he is taken to the gallows.
10. Thus it is observed that the cells have adequate light, air,
drinking water facilities, a common facility to view TV, and
adequate water for bathing and washing of the clothes. The
cells are enclosed in a separate compound within the prison.
They can move around the cells freely between 6.00 a.m. and
6.00 p.m.
11. The photographs and videos of the cells are attached with
this report for kind perusal.”
8. On the subsequent date, the submissions advanced on behalf
of the appellant were discussed in the order dated 26.4.2022 as
“The Principal District and Sessions Judge, Belagavi has
placed on record his Report dated 21.04.2022. Copies of the
Report have been furnished to the parties.
Dr. Yug Mohit Chaudhry, learned advocate submits that
since the last date of hearing, the counsel for the petitioner
have had interactions with the petitioner. Dr. Chaudhry
fairly accepts that whatever is stated in the Report
corresponds to the instructions received from the petitioner
and that the Report depicts true state of affairs in the
concerned Barrack and the Cell.
He, however submits that the petitioner was kept in what
is commonly called “Andheri Block” in Belagavi Prison from
2006 to October, 2016 i.e. till stay was granted by the High
Court to the execution of death sentence. It is submitted
that there are 12 Cells in that Block and only one prisoner
is kept in a Cell; the petitioner was not allowed to get out of
his Cell at any time during the entire length of stay except
for 2 Yoga sessions which were conducted and one function
where inmates were allowed to offer prayers to Lord
Ayyappa. In his submission that was the worst period of his
stay inside the prison and the imprisonment in the Cell in
“Andheri Block” can certainly be said to be “Solitary
confinement” as described in Sunil Batra Etc. vs Delhi
Administration and Ors. Etc.5.
Dr. Chaudhry further submits that after October, 2016
till January, 2019 the petitioner was lodged in same
“Andheri Block” but was allowed to come out of the Cell
thrice a day and after January, 2019 he was shifted to the
present Barrack with respect to which the Report has been
made.
We have also had the benefit of interaction with the
concerned Jail Superintendent who is present in Court. He
has accepted that the petitioner was kept in “Andheri
Block” till January, 2019. He has also accepted that only
one inmate is kept in a cell in said “Andheri Block”. It is
however, stated that all the inmates are allowed to come out
of their cells thrice a day for the duration of 2-3 hours each.
It is submitted that they are taken out at about 6.30 A.M.
in the morning and are re-lodged after the breakfast, again
to be taken out for the purposes of lunch and supper and
are finally re-lodged around 5.00 P.M. In sum and
substance, according to him, the inmates are allowed to
come out of their Cells for about 6 hours everyday.
It is further stated that the petitioner was shifted to the
present Barrack in January, 2019 by his predecessor and
since then the petitioner has been confined in the present
Barrack in circumstances described in the Report.
Thereafter, submissions were advanced by Mr. Nikhil
Goel, learned AAG for the State and Ms. Sonia Mathur,
learned Senior Advocate for Union of India. After conclusion
of their submissions, Dr. Chaudhry made his submissions
in rejoinder.…..”
9. We heard Dr. Yug Mohit Chaudhry, learned advocate assisted
by Ms. Payoshi Roy, learned advocate for the appellant, Mr. Nikhil
Goel, learned Additional Advocate General for the State and
Ms. Sonia Mathur, learned Senior Advocate for Union of India.
After conclusion of submissions, the matter was reserved for
10. The parties thereafter filed written submissions and, in the
submissions filed on behalf of the appellant, the challenge has
principally been raised on two grounds: (i) delay in deciding mercy
petition and (ii) the Solitary Confinement that the appellant was
subjected to. On the first issue, following chart has been placed on
“Chunks of Unexplained Delay
1. 3.3.11 The Central Government forwards No explanation for why it took 1
the mercy petition to the State year, 2 months and 5 days (432
Government asking the Governor to days) to send a
consider the mercy petition first. recommendation to the
7.5.12 A decision to reject the mercy Governor, or any account of
petition is taken in the Cabinet what steps were taken to
Meeting and recommendation is process the mercy petition
sent to the Governor. during this period.
2. 6.6.12 The mercy petition is rejected by 2 months and 25 days (85 days)
the Governor delay to forward the mercy
30.8.12 The State Government forwards the petition to the Central
mercy petition for consideration by Government.
the President.
3. 18.9.12 The Central Government seeks the 3 months and 9 days delay to
following information from the send information that is readily
State Government – available with the State
(i) Copy of mercy petition Government.
submitted by the Despite the Central
condemned prisoner Government’s request that this
himself, if any. information be sent at the
(ii) Details of previous earliest (21.11.2012 letter), the
criminal record. State Government still took
(iii) Medical Health Report another 1 month. The fact that
(iv) Nominal Roll. a reminder had to be sent by the
27.11.12 The Central Government sends a Central Government itself
reminder letter to the State testifies to the delay.
Government to send information
26.12.12 The State Government forwards the
information requested vide letter
4. 15.5.13 The Central Government informs No explanation for the delay of
the State Government about the 4 months and 20 days in
rejection of mercy petition. deciding the mercy petition, or
any account of what steps were
Time Period Relevant to the Mercy Petition Adjudication
Total Custody suffered till Date 2.3.1998-23.2.2021 22 years, 11 months, 22 days
Total Custody suffered under 27.10.2006-23.2.2021 14 years, 3 months, 28 days
Sentence of Death (5,234 days)
Total Delay caused in Disposal 8.2.2011-15.5.2013 2 years, 3 months, 7 days (827
of Mercy Petition by State days) i.e. 2.26 years”
Govt. and Govt. of India
On the point of Solitary Confinement, it has been submitted:-
“31. The Petitioner submits that he was kept in single cell
from 2006 to 2016 in a block called the Andheri Block.
During this time, he was kept for most of the day inside
the cell. The only other person he saw was the prison
guard. He was made to eat and use the toilet within his
cell and was not allowed to meet or speak to any other
inmates, to this entire duration he was allowed to
participate in a pooja and a yoga camp only in one
instance. Therefore from 2006-2016 the Petitioner was
kept in strict solitary confinement.
32. The Petitioner concedes that after 2016 the conditions
of his incarceration were gradually relaxed and at
present, even though he is kept in a single cell, he is
allowed to mingle with other inmates in the yard during
the day.
33. The Petitioner submits that despite having pleaded the
specific conditions of his solitary confinement till 2016
in his writ petition before the Hon’ble High Court as well
as in his SLP before this Hon’ble Court the Respondent
has not brought on record any material to the contrary.
34. In its reply dated 9.1.2017 before the Hon'ble High
Court (SLP Pg 316-325) and before this Hon‘ble Court
the Respondent has merely stated that the Petitioner
was allowed visits to the library and canteen and
allowed visitors from time to time and hence his
incarceration did not constitute solitary confinement.
35. That neither before the High Court nor in its affidavit in
reply before this Hon’ble Court did the Respondent aver
that the Petitioner was allowed to mingle with other
prisoners between 2006-2016. That had the Petitioner
been allowed to mingle with other prisoners, the
Respondents would have mentioned the same in their
affidavit in reply along with the fact of visits to the
library and canteen. Therefore, it is clear that the
Respondent's oral argument made before this Hon'ble
Court is nothing but an afterthought and sans any
evidentiary basis.
36. Further, the statements made by the superintendent of
Belagum Central Prison before this Hon‘ble Court only
pertains to the conditions of incarceration after 2019,
when the Superintendent assumed his duties in
Belgaum Central Prison. These statements do not
attest to the conditions of incarceration prior to 2019.”
11. In the written submissions filed on behalf of Union of India,
it has been asserted: -
It is submitted that the Petitioner has conceded that there
is no inordinate delay on part of the Respondent No.1 in
deciding the mercy petition. It is a settled position of law that
there can be no specific time limit prescribed for deciding
mercy petitions [See, Para 41-44 of Shatrughan Chauhan
and Anr. v. Union of India and Ors.6] and only undue or
inordinate delay is what is to be looked at [See, Para 16-17,
Para 71-76 of Triveniben v. State of Gujarat7]. The time
taken for collating the information and analyzing the same
is not to be considered as undue. Further, it is also
established that there can be no absolute or unqualified rule
laid down for the purposes of determining delay in mercy
petitions and several factors are required to be taken into
account while considering the question as to whether the
death sentence should be vacated or not [See, Para 19 of
Sher Singh & Ors. v. State of Punjab8]. Every case is
required to be considered on its own facts and
circumstances.
01.02.2011 Conviction of the Petitioner and
imposition of death sentence on him is
confirmed by the Hon’ble Supreme
08.02.2011 Petitioner’s mother files a mercy petition
on behalf of the Petitioner.
17.02.2011 Review Petition is filed against the
Hon’ble Supreme Court judgement
07.09.2011 The Review Petition is dismissed.
06.06.2012 The Mercy Petition is rejected by the
30.08.2012 Mercy petition is forwarded by the
Respondent No.2 to Respondent No.1.
18.09.2012, Respondent No.1 requests certain
27.11.2012 documents, including the medical
health report of the Petitioner, to be sent
by the Respondent No. 2.
26.12.2012 Respondent No. 2 replied to the letter
dated 18.09.2012 providing the
12.05.2013 The Mercy Petition was rejected by the
It is submitted that the delay, if any, on part of the
Respondent No. 1 has to be calculated from 26.12.2012
[when the required information was sent to the Central
Govt.] till 12.05.2013 [when the mercy petition was finally
rejected]. This amounts to approximately 5 months, which
cannot be considered as inordinate delay. In any-event, the
Petitioner has himself conceded that the delay in
considering the mercy petition is not on account of the
Without prejudice to the above, it is further submitted that
the Petitioner did not prefer a Writ Petition till 17.10.2016
against the order of rejection of mercy petition by the Hon’ble
President that was done on 12.05.2013. This step of seeking
a judicial review of the rejection of the mercy petition was
only taken after the Review Petition was finally rejected by
the Hon’ble Supreme Court after granting a hearing in Open
Court. The Convict was protected by the stay on execution
granted by this Hon’ble Court in Writ Petition No. 52 of 2011
(B.A. Umesh v. Registrar, Supreme Court of India). The
Petitioner couldn't be placed on the same pedestal as a
convict condemned to death as he still had a judicial avenue
open and no real apprehension of execution.
It is submitted that the aspect of solitary confinement, if
any, of the Petitioner is within the purview of the State
Government/ Respondent No. 2 and therefore, no specific
submissions are being made in this regard on behalf of the
Respondent No.1. In any event, vide order dated 21.04.2022,
the Hon’ble Supreme Court had directed the District Judge,
Belgaum, to conduct a local inspection of the jail,
concentrating on the location of the barracks in which the
cells of the Death Row Convicts are situated, and place a
report before the Hon’ble Court along with pictures, if any.
In terms of the same, a report was placed before the Hon’ble
Court which clearly indicated that the Petitioner was not
placed in solitary confinement.
It is submitted that the relevant documents were duly
considered by the Hon’ble President before rejecting the
Mercy Petition of the Petitioner. The Mercy Petition was
forwarded to Respondent No.1 on 30.08.2012 for
consideration by the Hon’ble President under Article 72 of
the Constitution of India along with the relevant documents.
On 18.09.2012, Respondent No. 1 sought additional
information/documents with regard to the Medical Health
Report, details of previous criminal record and few other
aspects concerning the Petitioner [Letter dated 18.09.2012
at page 17 of the Additional Documents filed by the
Petitioner]. In response to the said letter, the required
documents/information was sent by the Respondent No. 2
vide letter dated 26.12.2012, including medical report of the
Petitioner dated 05.10.2012 [Letter dated 26.12.2012 at
page 19 of the Additional Documents filed by the
12. We now consider the first submission regarding delay in
execution of death sentence due to pendency of Mercy Petition(s).
At this stage, we may refer to the following passage from the three
Judge Bench decision of this Court in Ajay Kumar Pal v. Union
of India & Anr.9 (to which one of us was a party) which noted
some of the decisions rendered by this Court on the point:
“7. The question whether delay in execution of death
sentence can be a sufficient ground or reason for
substituting such sentence by life imprisonment has
engaged the attention of this Court over a period of time.
Some of those salient instances are:
7.1. In T.V. Vatheeswaran v. State of Tamil Nadu10, in
an appeal arising from the Judgment of the High Court
confirming the death sentence, the fact that the appellant
was awarded death sentence by the first court eight years
earlier, was noted by this Court. After referring to few earlier
cases, where such delay during the pendency of the
appellate proceedings was considered, it was observed: (SCC
pp. 78-79, paras 21-21)
"20. . . . In the United States of America where the
right to a speedy trial is a constitutionally guaranteed
right, the denial of a speedy trial has been held to
entitle an accused person to the dismissal of the
indictment or the vacation of the sentence (vide
Strunk v. United States [1973] 37 L.Ed. 56). Analogy
of American Law is not permissible, but interpreting
our Constitution sui generis, as we are bound to do,
we find no impediment in holding that the
dehumanising factor of prolonged delay in the
execution of a sentence of death has the constitutional
implication of depriving a person of his life in an
unjust, unfair and unreasonable way as to offend the
constitutional guarantee that no person shall be
deprived of his life or personal liberty except according
to procedure established by law. The appropriate relief
in such a case is to vacate the sentence of death.
21. . . . Making all reasonable allowance for the time
necessary for appeal and consideration of reprieve, we
think that delay exceeding two years in the execution
of a sentence of death should be considered sufficient
to entitle the person under sentence of death to
invoke Article 21 and demand the quashing of the
sentence of death. We therefore accept the special
leave petition, allow the appeal as also the Writ
Petition and quash the sentence of death. In the place
of the sentence of death, we substitute the sentence of
imprisonment for life."
7.2. Sher Singh and others v. State of Punjab8 was a case
where the death sentence already stood confirmed by
dismissal of appeal and review petition therefrom by this
Court. Relying on the observations in Vatheeswaran10, delay
in execution was projected as a ground in a petition
under Article 32 of the Constitution of India. Though the
Court was broadly in agreement with observations in
Vatheeswaran10 it did not agree with the statement to the
effect: (SCC p. 79, para 21)
"21. . . . that delay exceeding two years in the
execution of sentence of death should be considered
sufficient to entitle the person under sentence to death
to invoke Article 21 and demand the questioning of
the sentence of death."
However, in the context of Mercy Petitions and
exercise of power in connection thereto, it was
observed in para 23 as under: (Sher Singh Case8, SCC
"23. We must take this opportunity to impress upon
the Government of India and the State Governments
that petitions filed under Articles 72 and 161 of the
Constitution or under Sections 432 and 433 of the
Criminal Procedure Code must be disposed of
expeditiously. A self- imposed rule should be followed
by the executive authorities rigorously, that every
such petition shall be disposed of within a period of
three months from the date on which it is received.
Long and interminable delays in the disposal of these
petitions are a serious hurdle in the dispensation of
justice and indeed, such delays tend to shake the
confidence of the people in the very system of justice.
Several instances can be cited, to which the record of
this Court will bear testimony, in which petitions are
pending before the State Governments and the
Government of India for an inexplicably long period.
Undoubtedly, the executive has the power, in
appropriate cases, to act under the aforesaid
provisions but, if we may remind, all exercise of power
is preconditioned by the duty to be fair and quick.
Delay defeats justice."
7.3. The issue was settled by the Constitution Bench
decision in Triveniben v. State of Gujarat7, where it was
concluded "No fixed period of delay could be held to make
the sentence of death inexecutable ...". The scope and ambit
of exercise of jurisdiction in such cases was delineated thus
in para 22: (SCC p. 697)
"22. . . . the only jurisdiction which could be sought
to be exercised by a prisoner for infringement of his
rights can be to challenge the subsequent events after
the final judicial verdict is pronounced and it is
because of this that on the ground of long or
inordinate delay a condemned prisoner could
approach this Court and that is what has consistently
been held by this Court. But it will not be open to this
Court in exercise of jurisdiction under Article 32 to go
behind or to examine the final verdict reached by a
competent court convicting and sentencing the
condemned prisoner and even while considering the
circumstances in order to reach a conclusion as to
whether the inordinate delay coupled with subsequent
circumstances could be held to be sufficient for
coming to a conclusion that execution of the sentence
of death will not be just and proper. The nature of the
offence, circumstances in which the offence was
committed will have to be taken as found by the
competent court while finally passing the verdict. It
may also be open to the court to examine or consider
any circumstances after the final verdict was
pronounced if it is considered relevant. The question
of improvement in the conduct of the prisoner after the
final verdict also cannot be considered for coming to
the conclusion whether the sentence could be altered
on that ground also."
7.4. In Shatrughan Chauhan6 after considering law on the
point as regards delay in execution of the death sentence
and the resultant effect, as also the scope and ambit of
exercise of power, it was observed in paras 38, 41 and 42 as
under: (SCC pp. 38-39)
"44. In view of the above, we hold that undue long
delay in execution of sentence of death will entitle the
condemned prisoner to approach this Court
under Article 32. However, this Court will only
examine the circumstances surrounding the delay
that has occurred and those that have ensued after
sentence was finally confirmed by the judicial process.
This Court cannot reopen the conclusion already
reached but may consider the question of inordinate
delay to decide whether the execution of sentence
should be carried out or should be altered into
imprisonment for life.
47. It is clear that after the completion of the judicial
process, if the convict files a mercy petition to the
Governor/President, it is incumbent on the
authorities to dispose of the same expeditiously.
Though no time limit can be fixed for the Governor and
the President, it is the duty of the executive to expedite
the matter at every stage, viz., calling for the records,
orders and documents filed in the court, preparation
of the note for approval of the Minister concerned, and
the ultimate decision of the constitutional authorities.
This court, in Triveniben7, further held that in doing
so, if it is established that there was prolonged delay
in the execution of death sentence, it is an important
and relevant consideration for determining whether
the sentence should be allowed to be executed or not.
48. Accordingly, if there is undue, unexplained and
inordinate delay in execution due to pendency of
mercy petitions or the executive as well as the
constitutional authorities have failed to take note
of/consider the relevant aspects, this Court is well
within its powers under Article 32 to hear the
grievance of the convict and commute the death
sentence into life imprisonment on this ground alone
however, only after satisfying that the delay was not
caused at the instance of the accused himself. To this
extent, the jurisprudence has developed in the light of
the mandate given in our Constitution as well as
various Universal Declarations and directions issued
by the United Nations."
13. In Ajay Kumar Pal9 the delay in question was three years
and ten months which was found to be inordinate and that said
delay was not to the account of said petitioner but to the account
of the functionaries and authorities in question. Pertinently, the
matter was also considered from the standpoint of solitary
confinement and violations in that behalf.
14. Paras 44 and 48 of the decision of this Court in Shatrughan
Chauhan6 which were quoted in Ajay Kumar Pal9, had laid down
that undue long delay in execution of death sentence would entitle
the condemned prisoner to pray for commuting the death sentence
to that of life imprisonment. The individual cases were thereafter
dealt with in Shatrughan Chauhan6 and paragraph 105 onwards
of said decision show that in cases where there was a delay of 12
years (para 118), 9 ½ years (Para 137), 9 ½ years (Para 147), 7
years and 8 months (Para 161), 5 years and 8 months (Para 175)
and 7 years and 5 months (Para 209), the benefit of commutation
was extended by this Court.
15. If the instant matter is considered in light of these cases and
the settled principles, the alleged period in the instant matter is of
two years and three months i.e., starting from the receipt of the
mercy petition on 3.3.2011 by the Central Government till the
disposal on 15.5.2013. It must be stated that soon after the receipt
of the said mercy petition, the Ministry of Home Affairs,
Government of India forwarded the mercy petition to the Principal
Secretary, Home Department, Karnataka so that the Governor,
Karnataka could consider the mercy petition first. In the
meantime, on 9.3.2011 in Writ Petition No.52 of 2011 preferred by
the appellant, this Court had granted stay of execution of death
The matter was considered by the State Cabinet on 7.5.2012
which decided to approve the note prepared by the Home
Department recommending rejection of the mercy petition. The
matter was then placed before the Hon’ble Governor who rejected
the mercy petition on 06.06.2012. The copy of the order passed
by the Hon’ble Governor and relevant documents were forwarded
by the State Government to the Central Government on
On 18.09.2012, certain information was sought by the
Central Government from the State Government which was
furnished to the Central Government on 26.12.2012. The matter
was thereafter taken up at the Central Government level. The
Ministry of Home Affairs prepared an appropriate note for the
Hon’ble President who after considering the entirety of the matter
rejected the mercy petition on 12.05.2013.
16. Thus, the entire period beginning from 03.03.2011 to
15.05.2013 spanning over a period of 2 years and 3 months saw
disposal of mercy petition at two different levels, one, by the
Hon’ble Governor and other by the Hon’ble President. All the
while, there was an order of stay granted by this Court on
19.3.2011 which was operating all through.
17. First and foremost, the time taken by each of these
authorities and the functionaries assisting them cannot be called
or termed as “inordinate delay” and secondly, it was not as if every
passing day was adding to the agony of appellant. The order of
stay of execution had put the matter in a different perspective. In
the given facts and circumstances of the case, in our view, the first
submission does not merit acceptance. We are conscious of the
fact that in a recent decision in A.G. Perarivalan vs. State
through Superintendent of Police & Anr.11, a Bench of three
judges of this court commuted the sentence of death to life as the
petition preferred under Article 161 of the Constitution had
remained pending for two and half years with the Hon’ble
Governor, despite the recommendations of the State Cabinet for
remission of the sentence. In that case no decision was taken by
the Hon’ble Governor in spite of the recommendations of the State
Cabinet and as such the benefit of commutation was extended.
The facts which came up for consideration in said decision thus
stand on a completely different footing as against the instant
18. We now move to the second submission pertaining to solitary
confinement of the appellant. Reliance in this behalf has been
placed on the decision of this Court in Sunil Batra vs. Delhi
Administration & Ors.5; and also on the decision of Ajay Kumar
Pal9 in which segregation of the concerned petitioner, from the day
he was awarded death sentence till his mercy petition was
disposed of, was taken to be in violation of the law laid down by
this Court in Sunil Batra5 and the death sentence was commuted
to life on both counts, namely; inordinate delay in considering the
mercy petition and the solitary confinement that the concerned
petitioner was subjected to.
19. In the instant case, the letter written by Medical Officer,
Belgaum Central Prison on 6.11.2011 did say that the appellant
was kept in solitary confinement and said letter has been heavily
relied upon by the appellant in support of the second submission.
According to the letter, the appellant was kept in solitary
confinement since his admission to the prison in October, 2006
and that apart from common illness such as diarrhoea, fever,
running nose and backache, the appellant was found to be
suffering from psychosis with depression. Pertinently, on
8.11.2011, a letter was sent by the Chief Superintendent, Belagavi
Central Prison to Additional DGP and IG Prisons, Karnataka to the
following effect: -
“….. With respect to the above subject, we submit, that the
death penalty convict no. 307, Umesh B.R. son of Ajjappa
Reddy’s appeal petition was rejected by the Hon’ble Supreme
Court, New Delhi and a letter confirming his death sentence
has been sent to this office as mentioned in the reference. The
said subject matter and processes have been explained in
detail several times to the convict in the presence of all
officers, but as the convict is mentally ill he is not agreeing to
submit any more mercy petitions. So we have not received
any mercy petitions from him. The convict was examined by
the Prison Doctors and have given a medical report which is
attached with this letter for your perusal and for further
This letter also affirms the fact that the appellant was
mentally ill.
20. The act on part of the medical officer in checking the health
and well-being of the appellant was obviously because of the
mandate of Section 29 of the Prisons Act, 1894 which is to the
following effect: -
“29. Solitary confinement. – No cell shall be used for
solitary confinement unless it is furnished with the means of
enabling the prisoner to communicate at any time with an
officer of the prison, and every prisoner so confined in a cell
for more than twenty-four hours, whether as a punishment or
otherwise, shall be visited at least once a day by the Medical
Officer or Medical Subordinate.”
It must, therefore, be taken to be accepted that from 2006 till
2016, the appellant was kept in solitary confinement in “Andheri
Block” and it was only thereafter, some relaxation in the rigours of
the solitary confinement was effected and as the record shows,
from 2016 onwards the conditions were gradually relaxed.
21. The law on the point, as declared in Sunil Batra5 is very
clear and as was held by this Court in Ajay Kumar Pal9,
segregation of a convict from the day when he was awarded death
sentence till his mercy petition was disposed of, would be in
violation of law laid down by this Court in Sunil Batra5. In the
instant case, the death sentence was awarded to the appellant in
2006 by the trial Court and the mercy petition was finally disposed
of by the Hon’ble President on 12.5.2013, which means that the
incarceration of the appellant in solitary confinement and
segregation from 2006 to 2013 was without the sanction of law
and completely opposed to the principles laid down by this Court
22. In Ajay Kumar Pal9, on the issue of segregation of the
convict in violation of the principles laid down in Sunil Batra5,
this Court observed: -
“9. Furthermore, as submitted in the petition, the petitioner
has all the while been in solitary confinement i.e. since the
day he was awarded death sentence. While dealing with
Section 30(2) of the Prisons Act, 1894, which postulates
segregation of a person “under sentence of death” Krishna
Iyer, J. in Sunil Batra5 observed: (SCC p. 563, para 197-A)
“197-A. (5) The crucial holding under Section 30(2) is
that a person is not ‘under sentence of death’, even if
the sessions court has sentenced him to death subject
to confirmation by the High Court. He is not ‘under
sentence of death’ even if the High Court imposes, by
confirmation or fresh appellate infliction, death
penalty, so long as an appeal to the Supreme Court is
likely to be or has been moved or is pending. Even if
this Court has awarded capital sentence, Section 30
does not cover him so long as his petition for mercy to
the Governor and/or to the President permitted by the
Constitution, Code and Prison Rules, has not been
disposed. Of course, once rejected by the Governor
and the President, and on further application there is
no stay of execution by the authorities, he is ‘under
sentence of death’, even if he goes on making further
mercy petitions. During that interregnum he attracts
the custodial segregation specified in Section 30(2),
subject to the ameliorative meaning assigned to the
provision. To be ‘under sentence of death’ means ‘to
be under a finally executable death sentence’.”
(emphasis in original)
Speaking for the majority in the concurring judgment D.A.
Desai, J. stated thus : (Sunil Batra case5, SCC p. 572, para
“223. The expression ‘prisoner under sentence of
death’ in the context of sub-section (2) of Section 30
can only mean the prisoner whose sentence of death
has become final, conclusive and indefeasible which
cannot be annulled or voided by any judicial or
constitutional procedure. In other words, it must be a
sentence which the authority charged with the duty to
execute and carry out must proceed to carry out
without intervention from any outside authority.”
10. In the light of the enunciation of law by this Court, the
petitioner could never have been “segregated” till his mercy
petition was disposed of. It is only after such disposal that he
could be said to be under a finally executable death sentence.
The law laid down by this Court was not adhered to at all while
confining the petitioner in solitary confinement right since the
order of death sentence by the first court. In our view, this is
complete transgression of the right under Article 21 of the
Constitution causing incalculable harm to the petitioner.
11. The combined effect of the inordinate delay in disposal of
mercy petition and the solitary confinement for such a long
period, in our considered view has caused deprivation of the
most cherished right. A case is definitely made out under
Article 32 of the Constitution of India and this Court deems it
proper to reach out and grant solace to the petitioner for the
ends of justice. We, therefore, commute the sentence and
substitute the sentence of life imprisonment in place of death
sentence awarded to the petitioner. The writ petition thus
stands allowed.”
23. In its jurisdiction under Article 32 of the Constitution of
India, this Court had thus deemed it proper to reach out and grant
solace to the petitioner on both grounds, namely, delay in disposal
of mercy petition and solitary confinement for a long period. The
period of solitary confinement in Ajay Kumar Pal9 in violation of
the law laid down in Sunil Batra5 was from 2007 till 2014, i.e., for
nearly seven years. In the instant case, the period of solitary
confinement is for about ten years and has two elements: one, from
2006 till the disposal of mercy petition in 2013; and secondly from
the date of such disposal till 2016. The question then arises:
whether on this ground alone, the appellant is entitled to have the
death sentence commuted?
24. In Shatrughan Chauhan6, solitary confinement was
accepted and recognised as one of the grounds on the basis of
which death sentence can be commuted. However, in the batch of
matters under consideration in Shatrughan Chauhan6, no
benefit was granted to any of the convicts on this ground.
Paragraph 88 onwards, the effect of the law laid down by this Court
in Sunil Batra5 and other cases was noticed and it was concluded
“90. It was, therefore, held in Sunil Batra case5, that the
solitary confinement, even if mollified and modified
marginally, is not sanctioned by Section 30 of the Prisons Act
for prisoners “under sentence of death”. The crucial holding
under Section 30(2) is that a person is not “under sentence of
death”, even if the Sessions Court has sentenced him to death
subject to confirmation by the High Court. He is not “under
sentence of death” even if the High Court imposes, by
confirmation or fresh appellate infliction, death penalty, so
long as an appeal to the Supreme Court is likely to be or has
been moved or is pending. Even if this Court has awarded
capital sentence, it was held that Section 30 does not cover
him so long as his petition for mercy to the Governor and/or
to the President permitted by the Constitution, has not been
disposed of. Of course, once rejected by the Governor and the
President, and on further application, there is no stay of
execution by the authorities, the person is under sentence of
death. During that interregnum, he attracts the custodial
segregation specified in Section 30(2), subject to the
ameliorative meaning assigned to the provision. To be “under
sentence of death” means “to be under a finally executable
death sentence”.
91. Even in Triveniben v. State of Gujarat7, this Court
observed that keeping a prisoner in solitary confinement is
contrary to the ruling in Sunil Batra5 and would amount to
inflicting “additional and separate” punishment not
authorised by law. It is completely unfortunate that despite
enduring pronouncement on judicial side, the actual
implementation of the provisions is far from reality. We take
this occasion to urge to the Jail Authorities to comprehend
and implement the actual intent of the verdict in Sunil
Batra v. Delhi Admn.5.”
25. The benefit of commutation was, however, granted in Ajay
Kumar Pal9 on the ground that the solitary confinement was
against the principles laid down in Sunil Batra5 and also on the
ground of delay. Having considered the entirety of matter, in our
view, the impact of solitary confinement were obviously evident in
the instant case, as would be clear from the letter given by the
medical professional on 6.11.2011 and the communication
emanating from the jail on 8.11.2011. The incarceration in solitary
confinement thus did show ill effects on the well-being of the
appellant. In the backdrop of these features of the matter, in our
view, the appellant is entitled to have the death sentence imposed
upon him to be commuted to death sentence to life.
26. At this stage, we may refer to a recent decision by a three-
Judge Bench in Mohd. Mannan alias Abdul Mannan vs. State
of Bihar12, where while accepting the review petition, the sentence
of death was commuted to imprisonment for life. However, it was
observed in paragraphs 87 and 88 as under: -
“87. Even though life imprisonment means imprisonment for
entire life, convicts are often granted reprieve and/or
remission of sentence after imprisonment of not less than 14
years. In this case, considering the heinous, revolting,
abhorrent and despicable nature of the crime committed by
the petitioner, we feel that the petitioner should undergo
imprisonment for life, till his natural death and no remission
of sentence be granted to him.
88. We, therefore, commute the death sentence imposed on
the petitioner to life imprisonment, till his natural death,
without reprieve or remission.”
27. Considering the entirety of facts and circumstances on
record, in our view, ends of justice would be met if while
commuting the death sentence awarded to the appellant, we
impose upon him sentence of life imprisonment with a rider that
he shall undergo minimum sentence of 30 years and if any
application for remission is moved on his behalf, the same shall be
considered on its own merits only after he has undergone actual
sentence of 30 years. If no remission is granted, it goes without
saying that as laid down by this Court in Gopal Vinayak Godse
vs. State of Maharashtra13, the sentence of imprisonment for life
shall mean till the remainder of his life.
28. The appeal is allowed accordingly.
29. Before we part, we must observe that the instruction quoted
in paragraph 3(f) of this Judgment leads to an incongruous
situation. According to it, the mercy petition must be filed within
seven days of the disposal of the appeal or dismissal of special
leave petition. A convicted accused is entitled to file a review
petition within thirty days. An anomalous situation, like the
present one, may arise where even before the review is filed, the
mercy petition is required to be filed. The concerned instruction
requires suitable modification so as to enable the convicted
accused to file mercy petition after exhaustion of remedies in Court
of law.
Date : 04-11-2022 This appeal was called on for pronouncement of
Judgment today.
UPON hearing the counsel the Court made the following
Hon’ble the Chief Justice of India pronounced the Reportable
Judgment of the Bench comprising Hon’ble the Chief Justice of
India, Hon’ble Mr. Justice S. Ravindra Bhat and Hon’ble Mr. Justice
The operative portion of the judgment reads as under:
“1. Leave granted.
27. Considering the entirety of facts and circumstances on
record, in our view, ends of justice would be met if while
commuting the death sentence awarded to the appellant, we
impose upon him sentence of life imprisonment with a rider
that he shall undergo minimum sentence of 30 years and if
any application for remission is moved on his behalf, the
same shall be considered on its own merits only after he has
undergone actual sentence of 30 years. If no remission is
granted, it goes without saying that as laid down by this
Court in Gopal Vinayak Godse vs. State of Maharashtra1,
the sentence of imprisonment for life shall mean till the
remainder of his life.
28. The appeal is allowed accordingly.
29. Before we part, we must observe that the instruction
quoted in paragraph 3(f) of this Judgment leads to an
incongruous situation. According to it, the mercy petition
must be filed within seven days of the disposal of the appeal
or dismissal of special leave petition. A convicted accused is
entitled to file a review petition within thirty days. An
anomalous situation, like the present one, may arise where
even before the review is filed, the mercy petition is required
to be filed. The concerned instruction requires suitable
modification so as to enable the convicted accused to file
mercy petition after exhaustion of remedies in Court of law.”
Pending applications, if any, also stand disposed of.
(Signed Reportable Judgment is placed on the File)
|
The Supreme Court commuted death sentence of a murder accused taking into account his illegal solitary confinement for about ten years.
BA Umesh alias Umesh Reddy, an ex-cop, was sentenced to death in a rape and murder case by a Sessions Court in Bengaluru upon being convicted in the year 2006. He was found guilty of rape and murder of a house wife. Later, the Supreme Court upheld the death sentence awarded to him in year 2011. The mercy petition was rejected by the President of India and challenging the same he approached the Karnataka High Court. As the writ petition filed by him got dismissed, he approached the Apex Court.
Before the Apex Court, it was contended that from 2006 till 2016, he was kept in solitary confinement in "Andheri Block" in violation of the judgment in Sunil Batra vs. Delhi Administration & Ors (1978) 4 SCC 494. He also relied on the decision in Ajay Kumar Pal vs Union of India 2015 (2) SCC 478 in which segregation of the concerned petitioner, from the day he was awarded death sentence till his mercy petition was disposed of, was taken to be in violation of the law laid down by this Court in Sunil Batra and the death sentence was commuted.
Taking note of this contention and other relevant records produced before it, the court observed:
"Having considered the entirety of matter, in our view, the impact of solitary confinement were obviously evident in the instant case, as would be clear from the letter given by the medical professional on 6.11.2011 and the communication emanating from the jail on 8.11.2011. The incarceration in solitary confinement thus did show ill effects on the well-being of the appellant. In the backdrop of these features of the matter, in our view, the appellant is entitled to have the death sentence imposed upon him to be commuted to death sentence to life.
The court thus commuted the death sentence to sentence of life imprisonment with a rider that he shall undergo minimum sentence of 30 years.
"If any application for remission is moved on his behalf, the same shall be considered on its own merits only after he has undergone actual sentence of 30 years. If no remission is granted, it goes without saying that as laid down by this Court in Gopal Vinayak Godse vs. State of Maharashtra, the sentence of imprisonment for life shall mean till the remainder of his life", the court added.
Case details
B A Umesh vs Union of India | (SC) 907 | CA 1892 OF 2022 | 4 November 2022 | CJI UU Lalit, S. Ravindra Bhat and PS Narasimha
Counsel For Appellant(s) : Dr. Yug Mohit Chaudhary, Adv. Mr. Siddhartha Sharma, Adv. Mr. Prabu Ramasubramaniam, Adv. Ms. Payoshi Roy, Adv. Mr. Raghunatha Sethupathy B., Adv. Mr. K. Paari Vendhan, AOR
Counsel For Respondent(s) : Mr. K.M. Nataraj, ASG Mr. Sharath Nambiar, Adv. Mr. Vatsal Joshi, Adv. Mr. Vinayak Sharma, Adv. Ms. Indira Bhakar, Adv. Mr. Anuj Udupa, Adv. Mr. Nakul Changappa, Adv. Mr. Chitransh Sharma, Adv. Ms. Akriti Manubarwala, Adv. Mr. Arvind Kumar Sharma, AOR Mr. Nikhil Goel, AAG Mr. Shubhranshu Padhi, AOR Mr. Vishal Banshal, Adv. Ms. Rajeshwari Shankar, Adv. Mr. Niroop Sukrithy, Adv. Mohd. Nais, Adv.
Headnotes
Death Sentence - Solitary confinement - Accused sentenced to death for rape and murder of a housewife - The incarceration in solitary confinement and segregation from 2006 to 2013 was without the sanction of law and completely opposed to the principles laid down by this Court in Sunil Batra vs. Delhi Administration & Ors (1978) 4 SCC 494 - The incarceration in solitary confinement thus did show ill effects on the well-being - He is entitled to have the death sentence imposed upon him to be commuted to death sentence to life - He shall undergo minimum sentence of 30 years and if any application for remission is moved on his behalf, the same shall be considered on its own merits only after he has undergone actual sentence of 30 years - If no remission is granted, the sentence of imprisonment for life shall mean till the remainder of his life.
Mercy Petition - Procedure governing petitions for mercy in death sentence cases provides the mercy petition must be filed within seven days of the disposal of the appeal or dismissal of special leave petition - The concerned instructionrequires suitable modification so as to enable the convicted accused to file mercy petition after exhaustion of remedies in Court of law. (Para 29)
Death Sentence - Effect of delay in execution of death sentence due to pendency of Mercy Petition discussed (Para 12-17)
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for the petitioner.
The case has been taken up for hearing through
video conferencing.
Petitioner seeks grant of anticipatory bail under
Section 438 Cr.P.C. in case bearing FIR No.188 dated
08.04.2020 registered under Sections 15, 18, 27A, 29 of NDPS
Act, under Sections 140, 188, 216, 419, 420, 467, 468, 471, 474
IPC and under Section 6 of Official Secret Act at Police Station
Petitioner has been implicated on the basis of
disclosure statement of co-accused from whom 248 kgs of
poppy husk, 1 Kg 500 grams of opium and 199 Kgs khas khas
were recovered.
FIR was registered on the basis of secret information,
but still name of petitioner did not figure in the ruqa of the
Notice of motion was issued on 27.05.2020 along
with interim directions in favour of the petitioner to join the
Order dated 27.05.2020 is reproduced here as
“On account of outbreak of covid-19 the
instant matter is being taken up through video
conferencing.
Instant petition has been filed under
Section 438 Cr.PC for grant of anticipatory bail
to the petitioner in FIR No.188 dated 8.4.2020
for the offences under Section 15,18,27-A,29 of
NDPS Act, 1985 at Police Station Pehowa,
Learned counsel for the petitioner has
inter alia contended that the petitioner is
innocent and has been falsely implicated in the
case only on the basis of disclosure statement
of co-accused from whom recovery of 248 kgs
of poppy husk, 1 kg 500 grams of opium and
199 kgs.of khas khas was recovered. It has
been further contended that the factum of his
false implication is further fortified from the fact
that the recovery of the aforementioned
narcotic contraband was effected on the basis
of secret information and his name did not
figure either in the ruka sent by the police nor in
the FIR in question coupled with the fact that
nothing was recovered from him. He is not even
involved in any other case of similar nature.
Notice of motion for 10.7.2020.
On the asking of the Court, Mr. Saurabh
Mohunta, DAG., Haryana accepts notice.
Meanwhile, petitioner is directed to join
the investigation and appear before the
investigating agency/Investigating Officer. On
his appearance, he shall be released on interim
bail to the satisfaction of arresting/investigating
officer. The petitioner shall, join the
investigation as and when call for and shall
abide by the conditions specified under Section
Thereafter, the case was adjourned for filing detailed
reply on behalf of the State.
The stands of the State is that the petitioner was
escorting the canter in which the contraband was present and
he was assigned the duty of giving signal in case of presence of
police on the way.
Learned State counsel relies upon call details, tower
location of the petitioner and the co-accused and also relies
upon bank statement showing deposit of amount in the account
of co-accused. The material on which the learned State counsel
relies upon is dependent upon the evidence to be led in that
context at the relevant stage.
Petitioner has joined the investigation, but learned
State counsel seeks custody of the petitioner on the aforesaid
Having heard learned counsel for the parties, I find
that the petitioner having involved on the basis of disclosure
statement of co-accused namely Balbir and Rajinder is hit by
the ratio of Tofan Singh vs State of Tamil Nadu, Criminal
Appeal No.152 of 2013 wherein it has been observed that the
officers who are invested with powers under Section 53 of
NDPS Act are the police officers within the meaning of Section
25 of the Evidence Act. Any confessional statement made
before the police officer would be hit by Section 25 of the
Evidence Act. Statement under Section 67 of NDPS Act cannot
be used as a confessional statement in the trial of an offence
In view of aforesaid position, it would be just and
appropriate to confirm order dated 27.05.2020, without meaning
anything on the merits of the case.
Ordered accordingly.
However, the petitioner shall keep on joining the
investigation as and when required to do so by the Investigating
Officer and shall abide by the conditions as envisaged under
Petition stands disposed of.
Whether speaking/reasoned Yes/No
Whether reportable Yes/No
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The High Court of Punjab & Haryana has held that a statement under Section 67 of Narcotic Drugs and Psychotropic Substances Act, 1985 cannot be used as a confessional statement in the trial of an offense under the Act. However, a bench of Justice Raj Mohan Singh relied on the case of Tofan Singh vs. State of Tamil Nadu (2013), where it was held that the officers who are invested with...
The High Court of Punjab & Haryana has held that a statement under Section 67 of Narcotic Drugs and Psychotropic Substances Act, 1985 cannot be used as a confessional statement in the trial of an offense under the Act. However, a bench of Justice Raj Mohan Singh relied on the case of Tofan Singh vs. State of Tamil Nadu (2013), where it was held that the officers who are invested with powers under Section 53 of NDPS Act are the police officers within the meaning of Section 25 of the Evidence Act. Thereby, under Section 25 of the Evidence Act thus, any confessional statement made before the police officer would be hit by the said provision.
The petitioner's case is that he has been implicated based on the disclosure statement of co-accused from whom 248 kgs of poppy husk, 1 Kg 500 grams of opium, and 199 Kgs khas khas were recovered. After that, an FIR was registered based on secret information, but still, the petitioner's name did not figure in the ruqa of the police.
A notice of motion was issued and interim directions in favor of the petitioner to join the investigation. The said order noted,
"On his appearance, he shall be released on interim bail to the satisfaction of arresting/investigating officer. The petitioner shall, join the investigation as and when call for and shall abide by the conditions specified under Section 438(2) Cr.P.C."
After that, the case was adjourned for filing a detailed reply on behalf of the State.
The State, represented by Deputy Advocate General Anant Katria, argued that the petitioner was escorting the canter in which the contraband was present. He was assigned the duty of giving signals in case of police on the way. The State counsel relied upon call details, tower location of the petitioner, and the co-accused. It also relied upon a bank statement showing a deposit of amount in the account of the co-accused.
The Court noted that the relied material depends on the evidence to be led in that context at the relevant stage.
While the petitioner has joined the investigation, it also noted that the State is seeking custody of the petitioner on the premise described above.
While granting anticipatory bail to the petitioner, the Court observed that the petitioner is involved in the matter at hand based on the disclosure statement of co-accused, namely Balbir and Rajinder. However, such a statement is hit by the principle laid by a Supreme Court bench headed by Chief Justice Rajan Gogoi in the case of Tofan Singh and thus will be rendered inadmissible.
Title: Daljit Singh v. State of Haryana
Read The Order
|
ivil Appeal No. 2653 of 1980.
From the Judgment and Order dated 24.7.1980 of the Delhi High Court in L.P.A. No. 113 of 1980.
V.M. Tarkunde, A.B. Lal and V.N. Ganpule for the Appellant.
T.S.K. Iyer and Ms. A. Subhashini for the Respondents.
The Judgment of the Court was delivered by AHMADI, J.
The appellant Ajit Singh was appointed as Grade II Stenographer on February 2, 1953 and was promoted to the post of Senior Personal Assistant w.e.f.
April 1, 1970.
On January 4, 1974 he was further promoted to the post of Private Secretary to the Deputy Election Commissioner in which capacity he worked till July 26, 1977 when the Deputy Election Commissioner under whom he was working relinquished charge of office.
The first respondent is the Chief Election Commissioner.
One Tilak Raj was the Private Secretary to the first re spondent.
On the said Tilak Raj being promoted as Under Secretary, the post of Private Secretary to the Chief Elec tion Commissioner fell vacant and it was not filled in forthwith.
However, by an order dated October 23, 1979 respondent No. 2 M.L. Sarad was appointed to the same post w.e.f. September 1, 1979.
On learning about the appointment of respondent No. 2 to the said post the appellant com plained that the said appointment was contrary to the Elec tion Commission (Recruitment of Staff) Rules, 1974 (herein after called 'the 1974 Rules ').
The appellant 's representa tion was rejected on the ground that he was not eligible for appointment to the post in question.
The appellant then filed a Civil Writ Petition No. 1583 of 1979 in the High Court of Delhi challenging the notifica tion dated October 23, 1979 appointing M.L. Sarad to offici ate as Private Secretary to the Chief Election Commissioner w.e.f. September 1, 1979 as well as the Memorandum dated October 26, 1979 informing him that he was 252 eligible for appointment to the said post.
During the pend ency of this writ petition it was disclosed to the Court that the Commission proposed to make suitable changes in the 1974 Rules insofar as appointment to the post of Private Secretary to the Chief Election Commissioner was concerned.
The leave of the Court was sought to amend the 1974 Rules.
It was also disclosed that the Commission proposed to with draw the order of October 23, 1979 appointing M.L. Sarad as Private Secretary to the Chief Election Commissioner.
The Court granted leave to the Commission to amend the 1974 Rules.
By the notification dated December 3, 1979 earlier notification of October 23, 1979 appointing M.L. Sarad as officiating Private Secretary to the Chief Election Commis sioner was withdrawn.
The 1974 Rules were amended by notifi cation dated December 10, 1979 by the President in exercise of the power conferred by the proviso to Article 309 of, the Constitution of India.
By the said amendment entry at serial No. 9 relating to the post of the Private Secretary to Chief Election Commissioner and the entries relating thereto came to be omitted.
The respondent No. 1 brought these two changes to the Court 's notice by an application dated Decem ber 21, 1979.
Thereupon, the appellant sought leave to amend the memo of his writ petition.
The Commission also informed the appellant by its communication dated January 17, 1980 that it had withdrawn its earlier memorandum of October 26, 1979 whereby it was stated that the appellant was not eligi ble for appointment to the said post.
The Court took notice of these facts but thought that the writ petition survived, since the appellant was not considered for appointment to the post in question w.e.f. September 1, 1979.
Besides the appellant also challenged the Election Commission (Recruit ment of Staff) Amendment Rules, 1979 (hereinafter called 'the 1979 Rules ') by which entry at serial No. 9 came to be omitted.
The contention of the appellant was that the entire exercise culminating in the amendment of 1974 Rues was mala fide and was undertaken with the sole purpose of depriving him of appointment to the said post.
It may here be men tioned that after the 1979 Rules came into force respondent No. 2 was re appointed to the same post by notification dated February 27, 1980 w.e.f. the previous day.
It was contended that the 1979 Rules had the effect of conferring an absolute discretion on the Chief Election Commissioner to appoint any person of his choice to the post in question.
To put it differently the appellant contended that the amend ment conferred arbitrary and unfettered power on the Chief Election Commissioner to appoint any person he deemed fit as his Private Secretary regardless of his qualification.
It was further contended before us by the learned counsel for the appellant that if the appellant had been appointed to the post in question on September 1, 253 1979 the subsequent amendment of the Rules would not have operated retrospectively to his detriment and he would have continued as Private Secretary even after the amendment.
A learned Single Judge of the High Court came to the conclusion that the 1979 Rules were not mala fide nor were they arbitrary as alleged by the appellant.
The High Court also came to the conclusion that since the memorandum of October 26, 1979 was withdrawn the appellant was entitled to be considered for appointment to the post of Private Secre tary w.e.f. September 1, 1979.
The High Court, therefore, directed Class II Departmental Promotion Committee to con sider the case of the appellant for appointment to the post of Private Secretary to the Chief Election Commissioner w.e.f. September 1, 1979.
It ordered that if the appellant is selected for appointment by promotion to the said post his appointment will be deemed to have been made on ad hoc basis from September 1, 1979 to December 14, 1979 after which the 1979 Rules came into force.
Monetary benefits due to the appellant on such appointment were ordered to be calculated and paid.
The appellant feeling aggrieved by this order preferred an appeal, L.P.A. No. 113 of 1980, before a Division Bench of the same High Court.
This Letters Patent Appeal was summarily dismissed on July 24, 1980.
Feeling aggrieved by the said order the petitioner approached this Court and secured special leave under Article 136 of the Constitution.
Mr. Tarkunde, the learned counsel for the appellant, reiterated the same contentions which were convassed before the learned Single Judge of the High Court and added that if the appellant was appointed w.e.f. September 1, 1979, the subsequent amendment of the Rules would not have stood in his way and he would have continued as Private Secretary to the Chief Election Commissioner even after the amendment of the said Rules.
He, therefore, contended that the High Court was not right in limiting the relief in regard to the appel lant 's appointment upto December 14, 1979 i.e. till the 1979 Rules came into force.
It may at this stage be pointed out that pursuant to the order of the High Court directing the Class II Departmental Promotion Committee to consider the case of the appellant for appointment to the post of Private Secretary w.e.f. September 1, 1979, the said Committee met on May 9, 1980 and considered the case of all eligible persons for appointment to the post in question w.e.f. September 1, 1979.
The Departmental Promotion Committee did not find anyone suitable for appointment tO the said post.
Intimation in that behalf was given to the appellant by the memorandum of May 14, 1980.
This decision of the 254 Departmental Promotion Committee sets at rest the argument that the appellant would have continued as Private Secretary had he been appointed to the said post w.e.f. September 1, 1979.
Mr. Tarkunde, the learned counsel for the appellant, rightly did not seriously contend before us that the 1979 Rules were mala fide and were made solely with a view to deny appointment to the appellant as Private Secretary to the Chief Election Commissioner.
It must be realised that in reply to the proposal to amend the extent rules the Ministry of Law, Justice and Company Affairs, in consultation with the Department of Personnel and Administrative Reforms, wrote to the Commission on December 5, 1974 as under. "The post of Private Secretary to the Chief Election Commissioner is borne on the personal staff of the Chief Election Commissioner and appointment thereto is outside the purview of the U.P.S.C. vide entry 5 of Schedule to the Union Public Service Commission (Exemption from consultation) Regulations 1958.
The appointment of a person thereto may be made by the Chief Election Commissioner at his discre tion without the consultation of the Union Public Service Commission.
The appointment to the post of Private Secretary to the Chief Election Commissioner is also co terminus with the appointment of Chief Election Commission er.
In view of this position, the Department of Personnel and Administrative Reforms have advised that the Recruitment Rules for the post of Private Secretary to the Chief Elec tion Commissioner need not be made.
The Rules for the post as proposed by the Commission have therefore not been notified." After the amendment of the 1974 Rules the Commission issued an office order dated February 18, 1980 stating that ap pointment to the post of Private Secretary shall be made 'in the absolute discretion of the Chief Election Commissioner ' from amongst persons of suitable class or category serving in the Commission or from outside, as he may deem fit.
The words 'in the absolute discretion of the Chief Election Commissioner ' were construed by counsel to mean that arbi trary and unfettered power was conferred to the Chief Elec tion Commissioner in the matter of choice of his Private Secretary.
The office order further stated that the appoint ment of the incumbent to the said post 'shall be co terminus with the incumbency in the post of the Chief Election Com missioner '.
This order shows that after the amendment of the 255 1974 Rules the matter in regard to the choice of personnel for the post of Private Secretary to the Chief Election Commissioner was left to the sole discretion of the Chief Election Commissioner.
It will appear from the above developments that the proposal for the amendment of the relevant recruitment Rules was moved way back in July 1970.
The advice given by the Law Ministry by their communication of December 5, 1974 was ultimately accepted by the Commission.
By the letter of March 19, 1975, the Law Ministry, however, informed the Commission that the Commission 's proposal would be consid ered at the time if change in the incumbency in the post of the Chief Election Commissioner.
That was why the process of amendment of the 1974 Rules was delayed until December 1979.
The incumbent to the post of Chief Election Commissioner at all material times had, therefore, nothing to do with the proposal to amend the recruitment rules.
It was, therefore, impossible to contend that respondent No. 1 's action was mala fide and was actuated with the sole desire to deny promotion to the appellant to the post of Private Secretary to the Chief Election Commissioner.
Coming to the next limb of attack it must be realised that in a democratic republic like ours the office of the Chief Election Commissioner is of vital importance.
Article 324 confers the power of superintendence, direction and control of elections in the Chief Election Commissioner.
Free and fair elections are the basic postulates of any democratic order.
A duty is cast on the Chief Election Commissioner to ensure free and fair elections.
This makes the post of the Chief Election Commissioner a sensitive one.
The Chief Election Commissioner has to deal with several matters which are brought before him by political parties as well as the Government.
His office is called upon to handle correspondence which require a high degree of secrecy and confidentiality.
He would naturally require the services of his Private Secretary for handling such highly secret and confidential files and correspondence.
It is, therefore, imperative that the person working as Private Secretary to the Chief Election Commissioner must be one in whom implicit faith and confidence can be placed.
He must be a man of impeccable character and integrity, besides being competent in secretarial work.
Integrity, honesty and competence are the basic hallmarks for the post.
In addition, he must be a person in whom the Chief Election Commissioner has absolute trust and faith.
It is for this reason that the tenure of the post is made co terminus with the tenure of the Chief Election Commissioner.
That is for the obvious reason that a man chosen by the predecessor may not be enjoying the 256 same degree of confidence of his successor.
He may like to have his own man of confidence to attend of his secretarial work.
It is, therefore, not without reason that the choice of personnel to the post of Private Secretary is left to the Chief Election Commissioner himself.
This is nothing new.
Similar provision is made for certain other functionaries as can be seen from the Home Department 's Notification dated 1st September, 1958 as amended from time to time.
We are, therefore, of the opinion that having regard to the special needs of the post it was imperative to leave the matter of choice of personnel in the absolute discretion of the Chief Election Commissioner.
We, therefore, do not think that the office order of February 18, 1980 can be struck down.
The High Court was, therefore, right in limiting the relief upto December 14, 1979 i.e. till the 1974 Rules became effective.
Since consultation with the U.P.S.C. was not necessary after the amendment introduced by the 1979 Rules, the Chief Elec tion Commissioner was entitled to choose the man of his confidence as Private Secretary.
The choice of respondent No. 2 to the post cannot, therefore, be questioned.
In view of the above, we do not see any merit in the contentions urged before us by the learned counsel for the appellant.
We, therefore, dismiss this appeal but in the facts and circumstances of the case leave the parties to bear their own costs.
Y. Lal Appeal dismissed.
|
The appellant was working as Private Secretary to the Deputy Election Commissioner until July .26, 1977 when the Deputy Election Officer under he whom was working relin quished his charge.
One Tilak Raj who was working as Private Secretary to Chief Election Commissioner was promoted as Under Secretary.
In order to fill the vacancy caused by his promotion, Re spondent No. 2 M.L. Sarad, was appointed to the said post w.e.f. September 1,1979.
The appellant made a representation complaining that the said appointment was contrary to the Election Commission {Recruitment of Staff) Rules, which was rejected on the ground that he was not eligible for appoint ment to the said post.
Thereupon, the appellant filed a Writ Petition challenging the notification dated 23.10.79 ap pointing the said M.L. Sarad as Private Secretary.
During the pendency of the Writ Petition the Commission under due intimation to the Court amended the 1974 Rules as a result of which entry at serial No. 9 relating to the Post of P.S. to Chief Election Commissioner was omitted.
The appellant was informed by the Commission that it had withdrawn the Memo of October 26, 1979 wherein it was stated that the appellant was not eligible for appointment to the post in question.
The Court took due notice of the amendment but held that the Writ Petition survived since the appellant was not considered for appointment to the post w.e.f. 1.9.79.
The appellant contended before the High Court that (i) the entire exercise culminating in the amendment of the Rules was mala fide; (ii) that the amendment conferred arbitrary and unfettered power on the Chief Election Commis sioner to appoint any person as his Private Secretary; (iii) that in case the appellant had been appointed to the post on 1.9.79, subsequent amendment of the Rules would not have operated 250 retrospectively to his detriment and he would have contin ued.
The High Court came to the conclusion that the 1979 Rules were not mala fide nor were they arbitrary and that since the memo of 26.10.79 was withdrawn, the appellant was entitled to be considered for appointment to the post in question w.e.f. 1.9.79.
Accordingly the High Court directed the class II Departmental Promotion Committee to consider the case of the appellant to the post in question w.e.f. 1.9.79.
It further ordered that if the appellant is selected for appointment to the said post, his appointment will be deemed to have been made on ad hoc basis from 1.9.79 to December 14, 1979 after which 1979 Rules came into opera tion.
Monetary benefits were also directed to be paid to the appellant.
The appellant being dissatisfied with the aforesaid order preferred Letters Patent Appeal which was summarily rejected on 24.7.80.
The appellant has, therefore, appealed to this Court after obtaining Special Leave.
Dismissing the appeal, this Court, HELD: Article 324 confers the power of superintendence, direction and control of elections in the Chief Election Commissioner.
Free and fair elections are the basic postu lates of any democratic system.
A duty is cast on the Chief Election Commissioner to ensure free and fair elections.
This makes the post of Chief Election Commissioner a sensi tive one.
The Chief Election Commissioner has to deal with several matters which are brought before him by political parties as well as the Government.
His office is called upon to handle correspondence which require a high degree of secrecy and confidentiality.
He would naturally require the services of his Private Secretary for handling such secret and confidential files and correspondence.
Integrity, hones ty and competence are the basic hallmarks for the said post.
In addition, he must be a person in whom the Chief Election Commissioner has absolute trust and faith.
It is for this reason that the tenure of the post is made co terminus with the tenure of the Chief Election Commissioner.
That is for the obvious reason that a man chosen by the predecessor may not be enjoying the same degree of confidence of his succes sor.
He may like to have his own man of confidence to attend to his secretarial work.
It is, therefore, not without reason that the choice of personnel to the post of Private Secretary is left to the Chief Election Commissioner him self.
[255E G] Since consultation with the U.P.S.C. was not necessary after the 251 amendment introduction by the 1979 Rules, the Chief Election Commissioner was entitled to choose the man of his confi dence as Private Secretary.
The choice of Respondent No. 2 to the post cannot, therefore, be questioned.
[256C]
|
1. The instant appeal has been preferred by the
appellants/plaintiffs assailing the judgment dated 8th July, 2009,
upholding the judgment and decree of the Court of appeal dated
28th March, 2006 holding that the Civil Court has no jurisdiction
to entertain and try the suit for possession in reference to the
subject property and the appropriate remedy available with the
appellants is to initiate proceedings for eviction of the suit property
under the provisions of the Haryana (Control of Rent & Eviction)
Act, 1973 (hereinafter called as “Act 1973”).
2. The brief facts of the case manifest from the record are that
the appellants filed a suit on the averment that their predecessor
in interest Sh. Vinod Kumar was owner of the subject plot of land
admeasuring 10,000 sq. feet in municipal limits, Kaithal bearing
Municipal No.657/10. Undisputedly, the Act 1973 applies to the
suit property in question.
3. The subject property was given on lease by late Vinod Kumar
to M/s Burmah Shell Oil Storage Distributing Company Ltd. for a
fixed period of 20 years at the rate of Rs.35/ per month vide lease
dated 4th June, 1958 with effect from 1 st April, 1958. The lease
period initially was for 20 years and clause 10 of the lease
contemplated renewal of the lease once for another 20 years. The
lease period commenced from 1st April, 1958 for a period of 20
years expired on 1st April, 1978 and in terms of clause 10 of the
lease deed, one extension was permissible and that renewal option
for another period of 20 years was availed and that lease period
also expired on 1st April, 1998.
4. At this stage, the appellants served a legal notice on the
respondents dated 30th January, 1998 in which although Section
106 of the Transfer of Property Act, 1882 has not been specifically
mentioned, but in pith and substance the notice was served for
terminating tenancy of the respondents and later filed a civil suit
for possession of the subject land on 7 th August, 1998.
5. The preliminary objection was raised by the respondents
regarding jurisdiction of the Civil Court in entertaining the suit and
the defence throughout was that the Act 1973 is applicable on the
subject property and they can be evicted only under the provisions
of the Act 1973. It is not disputed that the subject land admittedly
falls within the area administered by Municipal Committee, Kaithal
and the rented land is situated within the urban area and covered
under the provisions of the Act 1973.
6. That before expiry of the period of lease of 20 years, the
Central Government enacted Burmah Shell (Acquisition of
Undertakings) Act, 1976 (hereinafter called as “Act 1976”),
pursuant to which the leasehold rights were taken over by the
respondents/defendants. The option of renewal of lease for
another period of 20 years was availed by the respondents in terms
of clause 10 of the lease deed dated 4 th June, 1958. The case of
the appellants was that after lease expired on 1st April, 1998, the
possession of the respondents on the suit property became
unauthorised and without consent of the appellants and since the
respondents failed to vacate the suit property despite a legal notice
dated 30th January, 1998 being served, the appellants since
required the suit property for their personal bonafide necessity for
expanding their business, although had earlier filed an application
under the Act 1973, as alleged on the wrong premise. It was
pleaded that at least the provisions of the Act 1973 do not apply to
the suit property as it is governed by the special Act enacted by the
Central Government being Act 1976. In the alternative, it was
pleaded by the appellants that respondent no.1 had sublet the
suit property to respondent no.2 without consent of the appellants
and hence the appellants are entitled to possession of the suit
property and also claimed mesne profits during pendency of the
suit at the market rate, in addition to three years rent prior to
lapse of the renewal period and prayed for a decree for possession
and recovery of mesne profits.
7. The respondents filed written statement and it was admitted
that the suit property had been leased out by late Vinod Kumar to
M/s Burmah Shell Oil Storage Distributing Company Ltd. and
later by the Act 1976, the leasehold rights were transferred to
respondent no.1. It was also admitted that they exercised their
renewal option in terms of clause 10 of the lease for a period of 20
years. At the same time, it was also averred that on expiry of the
lease period, the respondents became the statutory tenant of the
suit property and the appellants had been receiving rent from the
respondents without any demur and further averred that the Civil
Court has no jurisdiction to entertain and try the suit as the same
is specifically barred by the provisions of the Act 1973.
8. It was further stated that there was a relationship of landlord
and tenant between the parties and the suit land is a rented land
as defined under Section 2(h) of the Act 1973 and the disputes
between landlord and tenant are to be adjudicated in accordance
with the provisions of the Act 1973 and the respondents being in
possession as a statutory tenant of the suit property, cannot be
evicted except in accordance with the provisions of Section 13 of
the Act 1973 and that apart the appellants had earlier filed a
petition for ejectment against the respondents before the Rent
Controller on the ground of subletting and personal necessity and
that has been dismissed by the Rent Controller by order dated 3 rd
May, 1986. An appeal against the same also came to be dismissed
by the appellate authority by order dated 18th March, 1987.
9. On the basis of the pleadings of the parties, the learned trial
Court by a judgment and decree dated 13 th March, 2002 held that
the respondents are in unauthorised possession over the suit
property w.e.f. 1st April, 1998 after notice dated 30th January, 1998
under Section 106 of the Transfer of Property Act, 1882 has been
served for vacating the suit property holding the appellants entitled
for restoration of possession of the suit land in question.
10. On appeal being preferred by the respondents, the Court of
Appeal set aside the judgment and decree of the trial Court dated
13th March, 2002 by the judgment dated 28th March, 2006 and
held that the Civil Court has no jurisdiction to entertain and try
the suit and the respondents are in possession of the suit property
as statutory tenant and can be evicted from the suit property only
under the provisions of the Act 1973. The said order came to be
challenged by the appellants/plaintiffs in second appeal before the
High Court and that came to be dismissed by the impugned
judgment dated 8th July, 2009, being the subject matter of
challenge in appeal before us.
11. The dispute between the parties pertains to as to whether the
jurisdiction of the Civil Court is barred and the petition for
possession filed by the appellants/plaintiffs will lie before the Rent
Controller under the Act 1973.
12. Counsel for the appellants, Shri Manoj Swarup, Senior
Advocate, submits that before the term of initial lease period of 20
years came to be expired on 1 st April, 1978, the Central
Government came with a special legislation, namely, the Burmah
Shell (Acquisition of Undertakings) Act, 1976 and the High Court
has failed to consider the effect of Section 11 of the Act 1976 which
has an overriding effect and that excludes all other laws
inconsistent with the provisions of the Act 1976, including the Act
1973 and further submits that the finding which has been
recorded of the respondents being a statutory tenant under the Act
1973 is in contravention of Section 5(2) of the Act 1976 and in the
absence of any fresh lease being executed by the parties only one
renewal as per the lease deed originally executed dated 4 th June,
1958, was permissible in law and that being availed and the term
had expired on 1st April, 1998, no further extension was
permissible in law and the respondents became trespassers after
expiry of the lease period and the only remedy available with the
appellants was to file a suit for possession of the suit property and
in support of his submissions placed reliance on the judgments of
this Court in Depot Superintendent, H.P. Corpn. Ltd. and Another v.
Lal Gupta(Dead) by LRs and Others v. Hindustan Petroleum
Corporation Limited and Another2, Bharat Petroleum Corporation
Limited v. Rama Chandrashekhar Vaidya and Another3.
13. Per contra, counsel for the respondents, Shri V. Giri, Senior
Advocate, while supporting the findings recorded under the
impugned judgment conceded that only one term of extension of
lease of 20 years was permissible and that indeed was availed and
stood expired on 1st April, 1998, but further submits that the
respondents became statutory tenant thereafter under the Act
1973 and they could be evicted only by invoking Section 13 of the
Act 1973 which undisputedly is applicable to the subject property
and thus in the given circumstances the Civil Court at least has no
jurisdiction to try the suit. That being the finding recorded by
the first appellate Court and confirmed by the High Court on
dismissal of second appeal preferred at the instance of the
appellants under the impugned judgment being supported by the
judgment of the Constitution Bench of this Court in V. Dhanapal
Chettiar v. Yesodai Ammal4 followed in Shyam Lal v. Deepa Dass
Chela Ram Chela Garib Dass5, what is being urged by learned
counsel for the appellants is without substance and the finding
with regard to the jurisdiction being supported by the settled
principles of law needs no further indulgence of this Court.
14. It may be relevant to note that in the interregnum period, title
deed of the subject property in question was mortgaged with the
Punjab National Bank creating security interest and after the
account of the appellants became NPA, proceedings under the
SARFAESI Act, 2002 were initiated against the appellants and
public notice (symbolic) was issued by the secured creditor (Punjab
National Bank) for securing possession of the subject property on
14th August, 2018. Pursuant thereto, a letter was sent from the
office of Bharat Petroleum Corporation Ltd. on 12 th October, 2018
for withdrawal of the possession notice (symbolic) dated 14 th
August, 2018 but what steps have been taken inter se is not on
record. However, this Court is not concerned with this controversy
in the instant proceedings, but since the documents have been
placed on record, the same are being noticed only for completion of
the facts.
15. We have heard learned counsel for the parties and with their
assistance perused the material available on record.
16. It is not disputed that the appellants are the owners of the
suit property which is a plot admeasuring 10,000 square feet
situated within the municipal limits of Kaithal. Their predecessor
in interest, late Vinod Kumar son of Tilaj Raj had leased out the
subject plot to M/s Burmah Shell Oil Storage Distributing
Company Ltd. for a period of 20 years pursuant to lease deed dated
4th June, 1958 and before the expiry of the lease period, the
Central Government came out with a legislation, namely, Burmah
Shell (Acquisition of Undertakings) Act, 1976 and took over the
rights of the lessee and transferred the same to M/s Bharat
Petroleum Corporation Ltd. in exercise of its power under Section
5(2) read with Section 7(3) of the Act 1976.
17. It is also not disputed that the subject land is situated within
the municipal limits of Kaithal and is governed by the Act 1973
and the term “tenant” defined under Section 2(h) includes “rented
land” in question. At the same time, in terms of Section 3 of the
Act 1976, on the appointed day the right, title and interest of
Burmah Shell in relation to its undertaking in India stood
transferred and vested in the Central Government and by a legal
fiction the Central Government stepped into the shoes of Burmah
Shell and became the lessee in the lease deed dated 4 nd June, 1958
and in terms of Section 5(2) read with Section 7(3) of the Act 1976,
the statutory rights stood conferred on the respondents in terms of
clause 10 of lease deed/agreement for another term of 20 years on
the same terms and conditions as were operating and/or existing
on the date of enactment of the said Act 1976. As such, upon
vesting by virtue of the provisions of the Act 1976, the respondents
became the lessee in respect of the subject land in terms of the
provisions of the Act which has an overriding effect by virtue of
Section 11 of the Act 1976.
18. Sections 3, 5, 7 and 11 of the Act 1976, relevant for the
“3. Transfer and vesting in the Central Government of the
undertakings of Burmah Shell in India. On the appointed day,
the right, title and interest of Burmah Shell, in relation to its
undertakings in India, shall stand transferred to, and shall vest in,
the Central Government.
5. Central Government to be lessor or tenant under certain
circumstances. (1) Where any property is held in India by
Burmah Shell under any lease or under any right of tenancy, the
Central Government shall, on and from the appointed day, be
deemed to have become the lessee or tenant, as the case may be,
in respect of such property as if the lease or tenancy in relation to
such property had been granted to the Central Government, and
thereupon all the rights under such lease or tenancy shall be
deemed to have been transferred to, and vested in, the Central
(2) On the expiry of the term of any lease or tenancy referred to
in subsection (1), such lease or tenancy shall, if so desired by the
Central Government, be renewed on the same terms and
conditions on which the lease or tenancy was held by Burmah
Shell immediately before the appointed day.
7. Power of Central Government to direct vesting of the
undertakings of the Burmah Shell in a Government company.
(1) Notwithstanding anything contained in sections 3, 4 and 5,
the Central Government may, if it is satisfied that a Government
company is willing to comply, or has complied, with such terms
and conditions as that Government may think fit to impose, direct
by notification, that the right, title and interest and the liabilities
of Burmah Shell in relation to any of its undertakings in India
shall, instead of continuing to vest in the Central Government,
vest in the Government company either on the date of the
notification or on such earlier or later date (not being a date earlier
than the appointed day) as may be specified in the notification.
(2) Where the right, title and interest and the liabilities of
Burmah Shell in relation to its undertakings in India vest in a
Government company under subsection (1), the Government
company shall, on and from the date of such vesting, be deemed to
have become the owner, tenant or lessee, as the case may be, in
relation to such undertakings, and all the rights and liabilities of
the Central Government in relation to such undertakings shall, on
and from the date of such vesting, be deemed to have become the
rights and liabilities, respectively, of the Government company.
(3) The provisions of sub section (2) of section 5 shall apply to
a lease or tenancy, which vests in a Government company, as they
apply to a lease or tenancy vested in the Central Government, and
reference therein to the" Central Government" shall be construed
as a reference to the Government company.
11. Effect of Act on other laws. The provisions of this Act shall
have effect notwithstanding anything inconsistent therewith
contained in any other law for the time being in force or in any
instrument having effect by virtue of any law other than this Act or
in any decree or order of any court, tribunal or other authority.”
19. By virtue of the statutory enactment of Act 1976, the pre
existing tenancy rights held by Burmah Shell with the appellants
stood transferred and vested with the Central Government and
thereafter by operation of Section 7, the said rights in turn stood
transposed and vested in the Government Company (Bharat
Petroleum Corporation Ltd.) as the Government Company
statutorily became the tenant of the appellants/plaintiffs. The
Constitution Bench of this Court in V. Dhanapal Chettiar (supra)
had an occasion to examine the controversy as to whether in order
to get a decree/order of eviction against the tenant in the State
Rent Control Act, it is necessary to give a notice under Section 106
of the Transfer of Property Act, 1882 and taking note of various
State enactments of the Act 1973, L.N. Untwalia, J., speaking for
“Lastly our attention was drawn to the decision of this Court
in Firm Sardarilal Vishwanath v. Pritam Singh [(1978) 4 SCC 1.
The lease in that case had come to an end by efflux of time. A
tenant continued in possession and became a socalled statutory
tenant. The argument put forward before this Court that a fresh
notice under Section 106 of the Transfer of Property Act was
necessary was rejected on the ground: (SCC p. 10, para 18)
“Having examined the matter on authority and precedent it
must be frankly confessed that no other conclusion is
possible on the first principle. Lease of urban immovable
property represents a contract between the lessor and the
lessee. If the contract is to be put to an end it has to be
terminated by a notice to quit as envisaged under Section
106 of the Transfer of Property Act. But it is equally clear as
provided by Section 111 of the Transfer of Property Act that
the lease of immovable property determines by various
modes therein prescribed. Now, if the lease of immovable
property determines in any one of the modes prescribed
under Section 111, the contract of lease comes to an end,
and the landlord can exercise his right of reentry. The right
of reentry is further restricted and fettered by the
provisions of the Rent Restriction Act. Nonetheless the
contract of lease had expired and the tenant lessee
continues in possession under the protective wing of the
Rent Restriction Act until the lessee loses protection. But
there is no question of terminating the contract because the
contract comes to an end once the lease determines in any
one of the modes prescribed under Section 111. There is,
therefore, no question of giving a notice to quit to such a
lessee who continued in possession after the determination
of the lease i.e. after the contract came to an end under the
protection of the Rent Restriction Act. If the contract once
came to an end there was no question of terminating the
contract over again by a fresh notice.”
If we were to agree with the view that determination of lease in
accordance with the Transfer of Property Act is a condition
precedent to the starting of a proceeding under the State Rent Act
for eviction of the tenant, we could have said so with respect that
the view expressed in the above passage is quite correct because
there was no question of determination of the lease again once it
was determined by efflux of time. But on the first assumption we
have taken a different view of the matter and have come to the
conclusion that determination of a lease in accordance with the
Transfer of Property Act is unnecessary and a mere surplusage
because the landlord cannot get eviction of the tenant even after
such determination. The tenant continues to be so even
thereafter. That being so, making out a case under the Rent Act
for eviction of the tenant by itself is sufficient and it is not
obligatory to found the proceeding on the basis of the
determination of the lease by issue of notice in accordance with
Section 106 of the Transfer of Property Act.”
20. It has been held that even if the lease period is determined by
forfeiture under the Transfer of Property Act, 1882, still the tenant
continues to be a tenant that is to say that there is no forfeiture in
the eyes of law and the tenant becomes liable to be evicted and the
forfeiture comes into play only if he has incurred a liability to be
evicted under the State Rent Act and not otherwise and further
held that even after the expiry of the period of contractual tenancy,
the tenant can be evicted only in terms of provisions of the State
Rent Act which is applicable in reference the subject property in
21. A perusal of the scheme of the Act 1976 would show that
from the appointed day, right, title and interest of Burmah Shell
with effect to Section 5(1) stood transferred and vested with the
Central Government and by virtue of Section 7(2), the vesting of
tenancy rights with the Central Government stood further
transposed and vested in Bharat Petroleum Corporation Ltd. and
that became a statutory tenant by virtue of Section 7(3) of the Act.
To that extent, Section 11 of the Act has an overriding effect to the
provisions of other laws. That being so, the jurisdiction indeed of a
civil Court is impliedly barred from the field covered specifically by
the provisions of the Act 1973 and that being the complete code
determining the rights of a tenant/landlord to the exclusion of the
other laws, we find no error in the view expressed by the High
Court in the impugned judgment holding that the jurisdiction of
the Civil Court is held to be barred and remedial mechanism for
ejectment could be possible only under the provisions of the Act
22. The judgments on which the counsel for the appellants has
placed reliance are of no assistance. In Depot Superintendent, H.P.
Corpn. Ltd. and Another(supra), the question arose for
consideration as to whether the company was entitled for second
renewal invoking the provisions of the Act 1976. It was declined
by this Court holding that there is no option for further renewal
which can be claimed independently under the Act 1976.
23. In Ram Bharosey Lal Gupta(Dead) by LRs and Others(supra),
the substantial question of law was as to whether under clause
3(d) of the lease deed executed between the parties, (the lessor) was
under a legal obligation to renew the lease term for a further period
of 20 years and it was not the case where the lease has been
determined or the renewal of lease term has either been availed or
expired. In the given situation, certain observations have been
made by this Court in para 28 of the judgment that may not be of
any assistance in the given facts and circumstances.
24. The counsel further placed reliance on Bharat Petroleum
Corporation Limited (supra). The question under consideration was
as to whether if one term of lease has been extended under the
lease deed, whether automatic renewal of lease is permissible by
virtue of Section 5(2) of the Act 1976 and it has been held by this
Court that only one extension was permissible in terms of the
conditions of lease deed and Section 5(2) of the Act 1976 will not
be available for a further renewal.
25. In the given circumstances, we are of the considered view that
no error was committed by the High Court in arriving to a
conclusion that even after the expiry of the lease term of the lease
deed, the respondents became a statutory tenant and jurisdiction
of the Civil Court is impliedly barred and could be evicted only
under the provisions of the Act 1973.
26. The appeal is devoid of merit and accordingly dismissed.
27. Pending application(s), if any, shall also stand disposed of.
|
The Supreme Court has held that the jurisdiction of civil courts are excluded from landlord-tenant disputes when they are specifically covered by the provisions of the State Rent Acts, which are given an overriding effect over other laws.The Court held this while explaining the interplay between the Burmah Shell (Acquisition of Undertakings) Act, 1976 and the Haryana (Control of Rent...
The Supreme Court has held that the jurisdiction of civil courts are excluded from landlord-tenant disputes when they are specifically covered by the provisions of the State Rent Acts, which are given an overriding effect over other laws.
The Court held this while explaining the interplay between the Burmah Shell (Acquisition of Undertakings) Act, 1976 and the Haryana (Control of Rent & Eviction) Act, 1973 in the case Subhash Chander And Ors. v. M/s. Bharat Petroleum Corporation Ltd.
The Apex Court reiterated that if a property fell within the ambit of State Rent Act, even after the expiry of the period of contractual tenancy or the duration as per the Transfer of Property Act, 1882, a tenant can be evicted only in terms of provisions of the said Rent Act.
A Bench comprising Justices Ajay Rastogi and Abhay S. Oka dismissed the appeal and upheld the decision of the Punjab and Haryana High Court, which had opined that the jurisdiction of the Civil Court was barred and the petition for possession filed by the appellants ought to have been filed before the Rent Controller under the State Rent Act.
Factual Background
The subject property was leased out to M/s. Burmah Shell Oil Storage Distributing Company Ltd. for a fixed period of 20 years vide Lease Deed dated 04.06.1958. As per the terms of the Lease Deed it could be renewed for another 20 years. Before expiry of 20 years, the Central Government enacted the Burmah Shell (Acquisition of Undertakings) Act, 1976, ("1976 Act") and M/s. Bharat Petroleum Corporation Ltd. ("Bharat Petroleum") took over the leasehold rights. The lease finally expired on 01.04.1998.
On 30.01.1998, the appellant sent a legal notice to Bharat Petroleum to terminate tenancy. Subsequently, the appellant filed a suit on the ground that their predecessor in interest was the owner of the subject property and they needed the property for their personal bonafide necessity for expanding business. Assailing the jurisdiction of the Civil Court, Bharat Petroleum contended that they could only be evicted under the provisions of the Haryana (Control of Rent & Eviction) Act, 1973 ("1973 Act"). Refuting the same, the appellants argued that the suit property would be governed by the Special Act of 1976. Alternatively, it was argued that without consent of the appellants, the subject property was sublet by Bharat Petroleum to M/s. Banarsi Lal And Sons. The Trial Court held Bharat Petroleum was in unauthorised possession of the subject property. The Court of Appeal as well as the High Court were of the view that the Civil Court did not have jurisdiction as the subject land was governed by the 1973 Act.
Contentions of the appellants
Senior Advocate, Mr. Manoj Swarup appearing on behalf of the appellants submitted that Section 11 of the Special Act of 1976 had an overriding effect over all other laws inconsistent with the provisions of the statue. Moreover, he argued the lease deed only permitted one renewal beyond which Bharat Petroleum became trespassers. Bharat Petroleum's claim of being a statutory tenant under the 1973 Act was, contended, to be in violation of the 1976 Act.
Contentions of the respondents
Senior Advocate, Mr. V. Giri appearing on behalf of the appellants argued that Bharat Petroleum had become the statutory tenant under the 1973 Act and could have been evicted only by invoking Section 13 of the 1973 Act. On the basis of the same, it was submitted that the Rent Controller and not the Civil Court had jurisdiction in the dispute.
Analysis by the Supreme Court
The Court observed that it was undisputed that the appellants were owners of the subject property and it being situated within the municipal limits of Kaithal were governed by the 1973 Act. It was noted that in terms of Section 3 of the 1976 Act, right, title, interest of Burmah Shell, inter alia, in the subject property stood vested in the Central Government, which was conferred on Bharat Petroleum. On perusal of the 1976 Act, the Court was of the view that under Section 7(3), Bharat Petroleum was a statutory tenant. Referring to the Constitutional Bench judgment, V. Dhanapal Chettiar v. Yesodai Ammal (1979) 4 SCC 214, the Court reiterated that even after the expiry of the period of contractual tenancy or expiry of the term as per Section 106 of the Transfer of Property Act, 1882, a tenant can be evicted only in terms of provisions of the State Rent Act. Even though Section 11 of 1976 Act had an overriding effect, it was held that jurisdiction of Civil Court was barred from the field covered specifically by the provisions of the 1973 Act, which was a complete code on the subject matter.
"…that being the complete code determining the rights of a tenant/landlord to the exclusion of the other laws, we find no error in the view expressed by the High Court in the impugned judgment holding that the jurisdiction of the Civil Court is held to be barred and remedial mechanism for ejectment could be possible only under the provisions of the Act 1973."
Case Name: Subhash Chander And Ors. v. M/s. Bharat Petroleum Corporation Ltd. (BPCL) And Anr.
Case No. and Date: Civil Appeal No. 7517 of 2012 | 28 Jan 2022
Corum: Justices Ajay Rastogi and Abhay S. Oka
Counsel for the Appellant: Senior Advocate, Mr. Manoj Swarup; Advocate-on-Record Mr. Rohit Kumar Singh
Counsel for the Respondent: Senior Advocate, V. Giri; Advocates-on-Record Mr. Parijat Sinha, Dr. Vipin Gupta.
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Minutes of the virtual meeting of the Urgent General Body Meeting of the
Members of the Consumer Courts Advocates’ Association, Maharashtra &
Goa (CCAA) held on 27/2/2022
1. A judicial misconduct on the part of the current Acting President, Dr
Santosh K Kakade, hereinafter referred to as the Acting President of
State Consumer disputes redressal Commission, Mahrashtra,
hereinafter referred to as the SCDRC was brought to the notice of the
Managing Committee of the CCAA by Dr Gopinath Shenoy, a member
of the CCAA. Dr. Gopinath Shenoy produced a certified copy of an
order dated 10th August 2021 passed by the Acting President in FA
No.236 of 2002 which was dismissed for want of prosecution by the
Acting President himself who was arrayed as a Respondent
no.2/Original OP No.2 in the said appeal.
2. CCAA managing Committee meeting was convened on 14th Feb.
2022. Wherein Dr. Shenoy himself was personally present and had
shown the certified copies of the dismissal order dated 10th Aug.
2021.This being a gross judicial misconduct on the part of the Acting
President, Dr Shenoy was requested to submit a formal Complaint
with the Managing Committee. An email in this regard was received
from Dr Gopinath Shenoy on 18th Feb.2022. Managing Committee
which was held on 14th February 2022 in which it was decided to invite
some senior members to seek their opinion. In a subsequent meeting
of the MC held on 20th February 2022, it was decided call for an Urgent
General Body Meeting (GBM) of the Members on 27th February 2022.
A notice to that effect was given to the members of the CCAA.
3. It was also leaned after resolving to conduct the GBM that the Acting
President had, upon learning that a certified copy of the order of
dismissal was obtained by Dr Gopinath Shenoy and CCAA’s
Managing Committee meeting held on, hurriedly taken the said
disposed-off matter on board on 15th February 2022 and while sitting
in Aurangabad Bench reviewed the said order dated 10th Aug. 2021
by observing that it was out of inadvertence that the order of dismissal
was passed.
4. It was decided by the MC that pending the GBM, a representation be
sent to the National commission, Chief Justice of India, Chief Justice,
Bombay High Court and the State Government which was to be
ratified at the GBM.
5. That, both the orders i.e. order of dismissal of appeal as also of
restoration are absolutely illegal and therefore the agenda for the GBM
was to determine the way ahead i.e. carving out a plan of action within
the four corners of law.
6. Several complaints related to behaviour and incapabilities as a judge
are received against Dr. Santosh Kakde.
7. The representations as proposed were sent to the abovementioned
authorities.
8. That, the meeting started at around 10 am on 27th February 2022
which has been recorded by the MC.
9. That, the following transpired at the GBM on 27th February 2022.
a. No. of attendees – 140 including a few invitees from other
Bars across Maharashtra like, Amaravati, Jalna, Buldhana,
Yavatmal, Pune etc.
b. The secretary called the meeting to order and the senior
members of the Bar were invited to speak and recommend
course of action.
i. Adv Yogesh Naidu – Adv Naidu informed that like Dr
Gopinath Shenoy, even he had filed a personal
Complaint with the President NCDRC. He further
submitted that either a PIL or a Writ Petition be filed
before the Hon'ble Bombay High Court as soon as
possible. He was of the opinion that till such time action
if any is taken by the authorities, the Advcocates could
appear before the single or a joint bench presided over
by the Acting President.
ii. Adv Shekhar Prabhavalkar – He was of the opinion that
the legal action suggested by Mr Naidu was
appropriate. However, he was of the opinion that a
resolution to abstain from appearing before the bench
of the Acting President be passed and it be given effect
to after a week. The intervening period of 1 week be
used for meeting various authorities and giving them
some time to react to the situation.
iii. Adv Shirish Deshpande – He too supported the legal
action. He further suggested that the MC should yet
again attempt to meet the Acting President and seek his
resignation. He was also of the opinion that the
advocates could abstain from appearing before the
bench of the Acting President.
iv. Adv Sumedha Rao – She opined that earliest possible
legal action be taken by filing a PIL.
v. Dr Gopinath Shenoy – He was of the opinion that legal
action as proposed by others be taken and the
advocates should abstain from appearing before the
bench presided over by the Acting President. He feared
that the Acting President may show his vengeance by
passing adverse order of such advocates who are
participating in this movement. He mentioned that when
he appeared before the Acting President, an application
was moved by him requesting the Acting President to
recuse from the matter, he refused to do so and even
refused to take the application on record and pass an
order thereon. Dr Shenoy has since given the
application in the registry.
vi. Various other members namely Adv Kondhalkar,
Patwardhan, Malhotra, Anil Galgali, m g Barve, V
Aniruddha Garge, Kiran Patil, Mohit Bhansali, spoke on
this issue and all supported legal action by way of
Writ/PIL or any other proceedings and non-legal action
such as writing to various authorities, making silent
demonstration, displaying of banners etc strictly within
four corners of law. Insofar as abstaining from work was
concerned, everyone unanimously approved the same.
However, since some were of the opinion that it should
be done forthwith while a handful others were of the
opinion that it could be started a week hence, it was
proposed that the decision to give effect to the said
action be left to the discretion of the Managing
Accordingly, following Resolutions were put up for
vii. Resolution no.1 – “Resolved that the action taken by
the Managing Committee of the Bar by filing a formal
protest with the Hon’ble President of NCDRC, Hon’ble
Chief Justice of India, Hon’ble Chief Justice of Bombay
High Court and the State Government of Maharashtra
regarding judicial misconduct of the Acting President,
SCDRC Dr. Santosh K Kakade is hereby ratified”.
The said Resolution was proposed by Adv Uday
Wavikar and seconded by Adv Ashutosh Marathe and
the resolution was passed unanimously.
viii. Resolution no.2. – “Resolved that a Writ Petition or any
other appropriate legal proceedings be filed with the
Hon’ble Bombay High Court seeking removal of Acting
President, SCDRC, Dr. Santosh Kakade. It is further
resolved that the Managing Committee may approach
the Hon’ble Chief Justice of Bombay High Court as well
as the Secretary of the concerned department and
make appropriate request in this behalf as well
as approach all other appropriate authorities.”
The said Resolution was proposed by Adv Uday
Wavikar and seconded by Adv Ashutosh Marathe and
the resolution was passed unanimously.
ix. Resolution no.3 -. “Resolved that since the act of
Judicial misconduct of Acting President of SCDRC Dr.
Santosh K Kakade is an issue about dignity,
incompetency, integrity and independence of Judiciary,
the Managing Committee should take any appropriate
action and initiate steps for protesting about this issue.
The said Resolution was proposed by Adv Uday
Wavikar and seconded by Adv Ashutosh Marathe and
the resolution was passed unanimously.
x. Resolution no.4 – “Resolved that pending enquiry by
authorities regarding judicial misconduct of the Acting
President, SCDRC Dr. Santosh Kakade, the Advocates
will abstain from attending his court and not appear
before him. It is further resolved that this being an
exceptional situation, the call of abstain is given to all
the members as well as non-members of the
Association. The call of abstain is given more
particularly in view of the fact that the Acting President
Dr Santosh Kakade has refused to give his appointment
to the President of the Bar to discuss this issue. This
being grave, exceptional and rarest of rare case, the call
of abstain is given to all members as well as non-
members. Further Resolved that an appeal be made to
all the members and non-members of the bar to abstain
from appearing in matters before a bench presided over
by the Acting President either singly or jointly for loss of
faith in him as he has illegally passed an order in a
matter in which he himself is a party and thereafter
restored the same illegally and also for not giving an
opportunity to the Managing Committee to meet him to
discuss the issue by ignoring the request made by the
bar. However, effect to this resolution will be given by
the Managing Committee from such date as it deems fit
as representations are being made to various
The said Resolution was proposed by Adv Uday
Wavikar and seconded by Adv Ashutosh Marathe and
the resolution was passed unanimously.
The meeting ended with a vote of thanks to all the
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The Consumer Courts' Advocates Association Maharashtra and Goa has accused the acting president of the State Consumer Disputes Redressal Commission (Maharashtra) – Dr Santosh Kakade - of "judicial misconduct" for dismissing a medical negligence case against himself. He restored the case last month. The association has written to the National Consumer Disputes Redressal Commission...
The Consumer Courts' Advocates Association Maharashtra and Goa has accused the acting president of the State Consumer Disputes Redressal Commission (Maharashtra) – Dr Santosh Kakade - of "judicial misconduct" for dismissing a medical negligence case against himself. He restored the case last month.
The association has written to the National Consumer Disputes Redressal Commission (NCDRC) and Bombay High Court pursuant to a resolution by the association seeking action against him.
According to the minutes of the General Body Meeting, on August 10, 2021 Dr Kakade, took up an appeal filed in 2002 against dismissal of a medical negligence case by the consumer forum in Solapur. He was one of the respondents in the appeal. Sitting singly in his capacity as a non-judicial member Dr Kakade recorded that none of the parties were present and dismissed the appeal for want of prosecution.
"This matter is taken from sine-die list. None present for parties inspite of issuing notices to them. It appears that the Appellant is not interested in prosecuting the appeal. Hence the appeal is dismissed in default," the order read.
The association claimed that being one of the parties and presiding over the bench, he couldn't have observed that "none present…" The urgent GBM was held on February 27, after Association received an official complaint from Dr Gopinath Shenoy on February 18, 2022.
After one of the members of the bar obtained a certified copy of the dismissal order on February 2, and a day after the matter was discussed in the Managing Committee meeting on 14th February, 2022, the said matter was taken on board on 15th February, 2022 and the order of dismissal was set aside and appeal restored, according to the association.
Now acting president of SCDRC Dr Kakade and another member from Aurangabad who joined the proceedings virtually were on the panel that restored appeal. In the order of restoration, the panel observed that the dismissal was "inadvertent" due to absence of parties.
According to the restoration order, the error was pointed out by Commission's PRO. It noted that since "the member of this Commission, who is party to this matter, cannot sit as a judge on his own cause" and "in view of the principle of natural justice, when one of the officers as member of the Commission has committed inadvertent error, due to which party should not be suffered" the earlier order is set aside and appeal restored.
However, according to the association, no order was passed to take the matter on record, neither was a notice issued to the parties that a dismissed matter was going to be taken up on February 15. Even the SOP was not followed for listing in the absence of urgency pleaded.
The association claims that "both the orders i.e. order of dismissal of appeal as also of restoration are absolutely illegal." Further, that the association had separately received behaviour complaints.
Dr Shenoy stated in the meeting that he wanted to file an application in another case and asked the in-charge president to recuse himself. However, neither did he recuse himself nor take the application on record. Therefore the application was given to the registry.
CASE
One Bapurao S Rawade filed a consumer complaint in the consumer forum, Solapur, in the late 1990s against Manav Smriti Hospital and Dr. Santosh K Kakade ( a surgeon) alleging medical negligence.
Dr Kakade filed his written statement in the original complaint which came to be dismissed. The complainant challenged the order of dismissal in 2002 in the SCDRC. The appeal was admitted and adjourned sine die. This appeal was allegedly adjudicated by Dr Kakade.
The Association Resolved
1.To write to the NCDRC, Bombay HC, CMO
2.Take appropriate legal action like filing a writ petition for removal
3.Protest
4.Pending inquiry to abstain from appearing before the specific bench of the commission. (Final decision on this is yet to be taken)
Advocate Uday Warunjikar, president of the association said "The bar has approached competent authorities after unanimous resolution was passed raising questions of integrity of the in-charge president Dr Santosh Kakade of the State consumer disputes redressal commission. We will wait for authorities to take appropriate action on our representations."
LiveLaw sought Dr Kakade's response on Friday, however no comment was received till the time of going to press. The copy will be updated as and when Dr Kakade decides to respond.
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2. This appeal has been filed against the judgment of
the High Court dated 01.09.2015 dismissing the Criminal
Revision filed by the appellant challenging his
conviction and sentence under Section 279, 337 and 338
The appellant, a bus driver, while driving bus
No.KL7D 4770 caused an accident on 16.02.1995 in which
car driver of KL 10B 5634 was injured. The appellant
was charged with offence under Sections 279, 337 and
338 IPC. The learned Judicial First Class Magistrate
vide his judgment dated 28.04.1999 convicted the
accused under Section 279 IPC and 338 IPC and sentence
him to undergo six months imprisonment and fine of
Rs.500/- was imposed, in default to undergo simple
imprisonment for one month under Section 337 IPC.
4. An appeal was filed by the appellant which was
dismissed by the learned Sessions Judge by judgment
dated 29.05.2003. Criminal Revision was filed in the
High Court challenging the judgment of the learned
Sessions Judge which Criminal Revision petition has
been dismissed by the High Court vide the impugned
judgment dated 01.09.2015.
5. This Court on 01.08.2016 issued notice only on the
question of sentence. Service of notice is complete but
no one has appeared for respondent.
6. Learned Counsel for the appellant contends that the
appellant is sole bread earning member of a poor family
consisting of four children and his wife. It is
submitted that the appellant if sent to jail after more
than 21 years, will suffer irreparable injury.
7. Learned counsel for the appellant has placed
reliance on judgment of this Court in A.P. Raju versus
State of Orissa, 1995 Supp.(2) SCC 385 and Prakash
Chandra Agnihotri versus State of M.P., (1990) Supp.
8. We have considered the submissions of learned
counsel for the appellant and have perused the record.
9. The judgment of this Court in Prakash Chandra
Agnihotri (Supra) as relied by learned counsel for the
appellant does support his submissions. In the above
case, the accused was convicted and sentenced for six
months under Section 304A. This Court converted the
sentence of imprisonment into fine of Rs.500/-. The
Court was of the view that it would be harsh to send
the appellant to the Jail after 18 years of the
occurrence. Following was observed in paragraph 1 of
“1. The Courts below have maintained the
conviction of the appellant under
Section 304-A Indian Penal Code. We have
gone through the judgments of courts
below and we find no infirmity therein.
We uphold the conviction. The occurrence
took place on February 18, 1972. The
appellant has throughout been on bail.
He has been sentenced to six months
rigorous imprisonment and a fine of
Rs.250. We are of the view that it would
be rather harsh to send the appellant to
jail after 18 years of the occurrence.
The ends of justice would be met if the
appellant is asked to pay a fine of
Rs.2000/-. The sentence is thus
converted to a fine of Rs.2000/-. On
realisation the amount shall be paid to
the family of the deceased girl. The
amount be deposited with the Trial Court
within two months from today and the
trial court shall disburse the same to
the parents of the girl and in absence
of the parents to the next of kin of the
girl. In default of the payment of fine
the appellant shall undergo imprisonment
for six months.”
10. The incident took place on 16.02.1995 i.e. more
than 26 years ago. It appears that appellant was
throughout on the bail. The Trial Court after
marshalling the evidence has recorded the conviction
under Section 279, 338 and awarded sentence of
imprisonment of six months and further sentenced to pay
a fine of Rs.500/- under Section 337.
11. We do not find any error in conviction recorded by
the Trial Court. The conviction of appellant is
affirmed, however, looking to the facts and
circumstances of the present case specially the fact
that 26 years have elapsed from the incident, we are
inclined to substitute the sentence of six months
imprisonment under Section 279 and 338 into fine. Six
months sentence under Section 279 and 338 IPC are
substituted by fine of Rs.1000/- each whereas sentence
of fine under Section 337 IPC is maintained.
12. The accused may deposit the fine of Rs.1000+1000
i.e. Rs.2000/- within a period of one month in the
Trial Court. The judgments of the Courts below are
modified to the above extent. The appeal is partly
allowed accordingly.
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The Supreme Court sentenced a bus driver accused of causing accident by rash driving 26 years ago to a fine of Rs. 2000.Surendran, while driving bus caused an accident on 16.02.1995 in which a car driver was injured. He was charged with offence under Sections 279, 337 and 338 IPC. The Judicial First Class Magistrate convicted him under Section 279 IPC and 338 IPC and sentence him to undergo...
The Supreme Court sentenced a bus driver accused of causing accident by rash driving 26 years ago to a fine of Rs. 2000.
Surendran, while driving bus caused an accident on 16.02.1995 in which a car driver was injured. He was charged with offence under Sections 279, 337 and 338 IPC.
The Judicial First Class Magistrate convicted him under Section 279 IPC and 338 IPC and sentence him to undergo six months imprisonment and fine of Rs.500/- was imposed, in default to undergo simple imprisonment for one month under Section 337 IPC. Sessions Court and later the High Court, upheld this judgment.
In appeal, Surendran submitted that he is sole bread earning member of a poor family consisting of four children and his wife, and if sent to jail after more than 21 years, will suffer irreparable injury. He was throughout on the bail.
"The conviction of appellant is affirmed, however, looking to the facts and circumstances of the present case specially the fact that 26 years have elapsed from the incident, we are inclined to substitute the sentence of six months imprisonment under Section 279 and 338 into fine. Six months sentence under Section 279 and 338 IPC are substituted by fine of Rs.1000/- each whereas sentence of fine under Section 337 IPC is maintained.", the bench comprising Justices Ashok Bhushan, Vineet Saran and MR Shah observed while partly allowing the appeal.
Know the Law
Section 279 criminalizes rash driving or riding on a public way. It provides that "Whoever drives any vehicle, or rides, on any public way in a manner so rash or negligent as to endanger human life, or to be likely to cause hurt or injury to any other person, shall be punished with imprisonment of either description for a term which may extend to six months, or with fine which may extend to one thousand rupees, or with both."
Section 337 deals with causing hurt by act endangering life or personal safety of others: Whoever causes hurt to any person by doing any act so rashly or negligently as to endanger human life, or the personal safety of others, shall be punished with imprisonment of either description for a term which may extend to six months, or with fine which may extend to five hundred rupees, or with both.
Section 338 reads as follows: Causing grievous hurt by act endangering life or personal safety of others.—Whoever causes grievous hurt to any person by doing any act so rashly or negligently as to endanger human life, or the personal safety of others, shall be punished with imprisonment of either description for a term which may extend to two years, or with fine which may extend to one thousand rupees, or with both.
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2. The appellants before us are Oil and Natural Gas
Corporation Limited (in short “ONGC”), a public sector
undertaking engaged in the business of exploration and
production of oil and gas. In this appeal, they assail a judgment
of the Bombay High Court delivered on 30th January, 2020 in
Writ Petition No. 13015 of 2019 in which the claims of workmen
to be entitled to fixation of pay and other allowances as per an
award of the Central Government Industrial Tribunal No. II,
(“Tribunal”) Mumbai has been upheld with certain modification
in the implementation part of that award. The controversy
involved in this proceeding originates from a Direct Action notice
raised by a Union (Oil Field Employees Association represented
by their President-respondent no.1 in the present appeal) on
26th August, 2016. The workmen, whose cause the said Union
were espousing, were engaged by and getting their salaries paid
through different contractors appointed by the ONGC. ONGC’s
stand all along has been that these were contractors’
workmen – and not workmen of ONGC. In fact, ONGC’s case is
that another settlement has been reached with the Unions
representing majority of the contractors’ workmen (over 77%)
and that settlement arrived at on 19th September, 2016 is
binding on all similar workmen including those represented by
the respondent Unions. We shall address this issue later in this
judgment. Earlier, there were three memoranda of
understanding reached in the years 1992, 1995 and 2000
involving ONGC and different Unions representing the contract
workmen working with the ONGC. These memoranda covered
wages, allowances and other facilities to be provided by the
contractors to the “contract labour”. Copies of these memoranda
of understanding have been annexed at pages 93, 102 and 113
of the paperbook. The 2000 MoU had lapsed on 31st December,
3. There had been certain parallel developments on the
industrial front involving ONGC and Unions espousing the
cause of workmen engaged by their contractors, which cast a
shadow on the dispute giving rise to this appeal. Six Unions
representing workmen engaged by contractors had submitted a
charter of 28 demands against ONGC and 57 of their
contractors. This was admitted for conciliation. ONGC wanted
to introduce a Fair Wage Policy (“FWP”) to cover contract
employees. Negotiation in that regard had started among the
parties. A Memorandum of Settlement was signed on 19th
September, 2016 (to which we have already referred) under
which the FWP extended to contract labourers of Western
Offshore Unit, Mumbai was agreed to be implemented at all
work-centers of ONGC. This settlement, according to the
appellants, was in terms of Section 12(3) read with Section
18(3)(d) of the Industrial Disputes Act, 1947 (the Act) and
entailed upward revision of wages as also certain other
measures of social protection including job security. The
signatories to this settlement were contractors’ representatives
and representatives of six Unions “In the presence of and
representing principal employers” as also the Conciliation
Officer. The representatives of ONGC signed in the capacity of
representatives of the principal employer. The Tribunal and the
High Court, however, held that the aforesaid arrangement was
not settlement within the meaning of Section 18(3)(d) of the Act
and was not binding on the workmen involved in the subject
dispute. The Tribunal had also referred to certain order of status
quo passed by the High Court to sustain its finding on this
count. We shall however address this issue on merit, testing
the reasoning of the High Court given in the impugned
4. The respondent-Oil Field Employees Association (the
actual party-respondent no. 1 is the President of the Oil Field
Employees Association) issued the Direct Action Notice on 26th
August, 2016 to the appellants. This Union was registered in
the year 2014 and claims to represent workmen engaged by
contractors of the ONGC. On 19th September, 2016 itself, one
P.D. Sunny, Conciliation Officer called the appellants and the
first respondent for conciliation of dispute arising out of the
notice for direct action of 26th August, 2016. On 26th September,
2016, a Charter of Demands was submitted before the
Conciliation Officer with a copy to the appellants. The main
demand of the respondent no.1 was that wages and service
conditions of the workmen engaged by the contractor should be
at par with the regular employees of ONGC.
5. Thereafter, in course of conciliation proceeding the FWP
was brought on record and the respondent no. 1 questioned the
legitimacy of the FWP. The conciliation records subsequently
were transferred from said P.D. Sunny to one Dr. S. Gunahari,
Mumbai. The latter recorded failure of conciliation and
forwarded the failure report to the Central Government. The
dispute then was referred by the Central Government to the
Tribunal and it was registered as Ref. CGIT No.2/40 of 2017.
The reference order was made by the Central Government on
18th September, 2017 in terms of Section 10(2A) (1) (d) of the
Act. The order of reference was in the following terms:-
“Whether the following demands of The President, Oil
Field Employees Association are legal and justified?
1. To have uniform policies for all the
workers irrespective of the contracts in
the establishment of ONGC.
Revisions w.e.f. 1.1.2008.
release an advance of Rs.50,000/- per
worker and to adjust it with the arrears
after implementation of the Pay Revisions.
If not, to what relief the workmen are
entitled to?”
6. ONGC questioned the legality of the order of reference in a
writ petition filed in the High Court of Bombay (registered as
Writ Petition No.5045 of 2018). This writ petition was not
entertained by a Division Bench of the High Court and was
rejected by an Order passed on 29th January, 2019. It was,
“8) It is further to be noted that in pursuance to the
communication addressed by the Petitioner to the
Chief Labour Commissioner, a Conciliation Officer
vide his notice dated 15th September 2016 kept the
matter for conciliation on 19th September, 2016 at
12:30 hrs. Perusal of the minutes would reveal that
in the said meeting, the representative of the
Petitioner as well as the Respondent No.3 were
directed to do certain compliances. However, it
appears that on same day i.e. 19th September 2016
at 15:00 hrs., settlement was entered into by the
representatives of the certain Union and ONGC and
57 contractors of the ONGC. It is to be noted that
though the said settlement was to be arrived on
the same day, the Petitioner neither informed the
Conciliation Officer in the present proceedings
about such a settlement being arrived at. The
conduct of the Petitioner in not bringing to the
notice of the Conciliation Officer in the present
proceedings, the settlement which was to arrive
within hours with representative of certain Unions
before some other Conciliation Officer, in our
considered view is not a conduct befitting the
employer who is an organ of State and State
within the meaning of Article 12 of the
Constitution of India.
9) It is further to be noted that though the
Respondent No.3 and the Petitioner have completed
their pleadings before the learned CGIT and though
there were rounds of litigations, which reached upto
this Court arising out of the interlocutory orders, the
Petitioner has chosen to move this Court for
ad-interim orders only after the matter was kept for
their evidence. We are of the considered view that
having consciously submitted to the jurisdiction of
the learned CGIT, it is not now open for the
Petitioner to complain at such a belated stage that
the reference was not warranted.
10) Apart from that the question as to whether the
settlement arrived at between some of the Unions
at one hand and the Petitioner's contractors on the
other hand is binding on the Respondent No.3 and
intervenors, can be very well looked into by the
learned Tribunal in the proceedings before it.
11) In that view of the matter, we are not inclined
to entertain the present Petition in its extraordinary
jurisdiction under Article 226 of the Constitution of
India. The Writ Petition is therefore rejected.”
7. In the reference, two other Unions participated and were
impleaded as parties therein on the basis of their applications.
These two Unions are Maharashtra Sanghatit Asanghatit
Kamgar Sabha (respondent no.2) and Maharashtra Employees
Union (respondent no.3).
8. The Tribunal by its Order passed on 17th July, 2019 in
substance allowed the claim of the workmen articulated through
“1. The reference is allowed.
2. It is declared that the demands of the union
to have uniform policies for all the workers
establishment of ONGC and to get the MOU
renewed with pay revision w.e.f. 1.1.2008
are legal & justified.
3. First party management is directed to enter
into MOU with second party unions with
pay revision w.e.f. 1.1.2008 and implement
the same within 2 months from the date of
order.
management is directed to pay arrears
arising out of implementation of MOUs
within 2 months from the date of order
failing which concerned workmen would be
entitled to interest @ 6% per annum on the
arrears and other benefits to which they are
entitled to on implementation of MOU.”
9. The High Court sustained the award in the writ petition
brought by ONGC on substantive issues but partly allowed the
petition challenging the legality thereof, inter-alia, holding:-
“20. Coming now to the reliefs formulated by it,
it is but apparent that the tribunal does not
appear to have applied its mind to individual
revisions that may have to be made. As we
have noted above, there is no infirmity in the
conclusion of the tribunal that wage revisions
had to be on the lines of MbPT settlement for
the relevant period, but then based on related
MbPT settlements, the court had to work out
individual wage revisions for different
categories of workmen, whose cause was
espoused by the second party unions in the
present case. The tribunal, firstly, had to work
out individual revised wage scales and
allowances for workmen at 12 Victoria Dock
and Nhava Supply Base; it, then, had to
formulate reasonable consolidated wages for
workmen other than those working in 12
Victoria Dock and Nhava Supply Base. This the
tribunal appears to have clearly failed to do. It
left it to the parties to work out the individual
revisions. That I am afraid is not possible. It is
one thing to say that the basis of wage revision
is available in a document and quite another to
apply that basis to the individual facts of the
case. For example, it is one thing to say that
workmen other than those working in 12VD
and Nhava Supply Base were to be paid wages,
that is, consolidated wages, worked out on the
basis of minimum basic wages of the concerned
categories of MbPT workers plus adjustments
towards allowances, and quite another to
actually provide for and stipulate such
consolidated wages so calculated and adjusted.
This was obviously for the tribunal to do and
not for the parties to work out. The tribunal
appears to have clearly missed this point. To
that extent, the matter must go back to CGIT
scales/allowances of workmen working in
12VD and Nhava Supply Base (based on MbPT
scales/allowances) as well as other workmen
covered by the reference (for consolidated
wages based on MbPT scales and allowances).
21. The question then is of interim relief to be
consideration of the matter on remand by
CGIT. It is a matter of fact, and probably a sad
commentary on the times that we live in, that
the last wage revision of these workmen
occurred as far back as in 2000. That wage
revision was applicable only till 31 December
2007 and till date, there has been no further
revision in sight, though at least three revision
periods have gone by. On these facts, this court
is of a considered view that it would be in the
interest of justice to at least direct ONGC to pay
wages to the workmen concerned on the basis
of what was agreed in the settlement of 19
September 2016 minus its condition of
withdrawal of proceedings against ONGC.
These would indeed be minimum wages that
might in any case be payable to the concerned
workmen, that is to say, even if the unions were
wrong in the matter of calculation of wages in
accordance with the particulars submitted with
the statement of claim. If, on the other hand,
they were right that the workmen were entitled
to get wages in accordance with the particulars
submitted by them, these interim revised wages
could then be adjusted against such wages.
22. The writ petition is, accordingly, disposed
of by setting aside the operative order passed
by CGIT and remitting the reference, being
Reference No.CGIT-2/40 of 2017, to CGIT-2,
Mumbai for a fresh decision on (i) individual
wage scales and (ii) consolidated wages
payable, respectively, to the contract workmen
of ONGC working at (i) 12 Victoria Dock and
Nhava Supply Base and (ii) the other workmen
covered by the reference. It is made clear that
such determination must be in the light of what
has been observed above, in particular that the
wage revision/s of these workmen has/have to
be on the lines of the wage revision/s applicable
to workmen of MbPT, which are placed before
the court (i.e. MbPT settlements applicable for
the periods from 2007 to 2011 and from 2012
to 2016).
23. The tribunal is requested to accord top
priority to this determination and dispose of the
reference as expeditiously as possible and
preferably within a period of eight months from
the date this order is pointed out to the
tribunal. To that end, either party may appear
before the tribunal with notice to the other side
and produce an authenticated copy of this
order. The tribunal may thereupon fix the
schedule of hearings and decide the reference
accordingly.
24. Pending hearing and final disposal of the
reference on remand, interim wages shall be
paid to the concerned workmen by ONGC for
the whole of the period of revision in
accordance with MoS of 19 September 2016
and also prospectively from the month of March
25. Since the operative part of the award of
CGIT has been set aside, pending criminal
proceedings for non-implementation of the
award shall not be proceeded with.”
10. The workmen, whose cause the three Unions espouse were
those who were inducted by contractors and were getting their
salaries paid through the contractors only. The main claim of
the workmen was for having a uniform policy for all workmen,
irrespective of contracts under which they were engaged in the
matter of wages and allowances. Last of the memoranda of
understanding signed in the years 1992, 1995 and 2000 was
executed on 29th December, 2000. The wage revision provided
for in the last memorandum of December, 2000 was to operate
till 31st December, 2007. Primarily, signatories to these
memoranda are the appellants-employer and the Unions. The
respective contractors were not signatories to these
memoranda. One of the major characteristics of the terms
contained therein, though not specifically spelt out in the
memoranda themselves, is that the wages and allowances
agreed upon therein were linked to the lines of settlement
signed between Mumbai Port Trust (earlier Bombay Port
Trust) and their workmen. We shall henceforth refer to that
settlement as MbPT Settlement. These memoranda classified
contract employees in two categories, one set working for
Victoria Dock 12 and Nhava Supply base and the other set
working at various other locations including Mumbai and
Uran. There was variance in pay and allowance between these
two categories of workmen. This was in the case of 1992
settlement whereas the 1995 settlement followed similar line
of categorisation, but included workmen engaged in Panvel
to Mumbai and Uran. The same form of categorisation was
there in the “2000 Settlement.”
11. Appearing on behalf of the appellants Mr. Cama, learned
senior counsel, has primarily argued on two points. His first
submission has been that the reference itself was not
maintainable as none of the workmen the Unions were
representing or espousing the causes of were employed by the
appellants. He has pointed out the definition of workmen in
Section 2(s) of the Act in this behalf. The other point on which
submission was advanced by him was that the Settlement
arrived at on 19th September, 2016 covered all the employees
of contractors, considering the provisions of Section 18(3)(d).
The Unions have been represented by Mr. Pallav Shishodia,
learned senior counsel and Mr. Shaligram G. Mishra,
respondent no. 1 appearing in person. The stand of the
Unions on the other hand has been that the concerned
workmen were actually employees of the appellants and
before the Tribunal itself, it was their case that their
engagement by the contractor would not by itself make them
contractors’ employees. It is also their stand that the
settlement of 19th September, 2016 could not be treated to be
one under Section 18(3)(d) of the Act to bind the workmen
represented by the three Unions in this appeal. First, it has
been contended that the said settlement has not taken final
shape as certain procedural aspects for conclusion thereof is
yet to be taken. It has also been argued on their behalf that
the said settlement related to contractors’ workmen only
whereas the workmen involved in the present proceeding were
not employees of the contractors who had signed the said
settlement. On the other hand, the workers represented by
the Union are working in the establishment of the appellants
for a long period of time and they claimed to be entitled to the
service benefits directly from ONGC.
12. The Tribunal rejected the objection on jurisdictional
ground taken on the point that the concerned workmen were
not employees of the appellants and hence no dispute could
lie with ONGC. The Tribunal has also given the finding that
the FWP could not be treated as fair settlement as it entailed
withdrawal of the proceedings lodged by individual workmen
or Unions. It has been urged on behalf of the respondents that
many of these proceedings were for regularization or
absorption directly into the appellant company, a dispute
which has intricate link with the controversy involved in the
present proceeding. Mr. Cama has asserted that the finding
of the High Court on facts was perverse, and, on that count,
he invited interference by this Court in exercise of its
jurisdiction under Article 136 of the Constitution of India. He
has relied on the decisions of this Court in the cases of
Workmen of the Food Corporation of India vs. Food
Corporation of India [(1985) 2 SCC 136], Parimal Chandra
Raha & Ors. vs. Life Insurance Corporation of India and
Corporation Ltd. and Anr. vs. Shramik Sena & Ors. [(1996)
6 SCC 439] and Steel Authority of India Ltd. & Ors. vs.
1] in support of his submission that the workmen of the
contractor would not become the workmen of the principal
employer. He has also cited the case of Secretary, State of
Karnataka & Ors. vs. Uma Devi & Ors. [(2006) 4 SCC 1] to
contend that there could not be backdoor entry of contractors’
employees directly into the establishment of the principal
employer. This genre of cases has been cited mainly in
support of two propositions of law urged on behalf of the
appellants. First is that there must be a jural relationship
brought about by an agreement to establish employer-
employee relationship between contractors’ employees and
that of the principal employer. Secondly, abolition of contract
labour in certain industries does not result in automatic
absorption of the workmen engaged by them in the concerned
establishment. In the case of Parimal Chandra Raha (supra),
however, it has been held that where there was statutory
requirement of maintaining of canteens and the canteens of
the respondent corporation had become part of the
establishment, the contractors engaged from time to time in
reality were agencies of the corporation and were only a veil
between the corporation and canteen workers. In the case of
Steel Authority of India Limited of 2001 (supra), it has been
held that abolition of contract labour in certain in any part of
an establishment by a notification under Section 10(1) of the
Contract Labour (Regularization and Abolition) Act, 1970
(1970 Act) automatically does not lead to absorption of
contract labour working in those parts directly in the
establishment concerned. The case of Indian
Petrochemicals (supra) mainly follows the ratio laid down in
the case of Parimal Chandra Raha (supra). The proposition
of law laid down in the case of Steel Authority of India
Limited vs. Union of India & Ors. reported in [(2006) 12 SCC
233] is that mutually destructive plea that the employees were
of contractor and the principal employer could not be taken.
The ratio of the decision of Uma Devi (supra) also would not
apply in the facts of the present case. Here, the issue is not
of backdoor entry into an establishment but finding out
subsisting status of a set of workmen on the question as to
who is their actual employer. For determination of the fate of
the dispute raised by Unions, adjudication of the former
question becomes inevitable.
13. Mr. Cama has emphasised on the ratio of the case of
Mukand Ltd. vs. Mukand Staff and Officers’
Association [(2004) 10 SCC 460]. In this judgment it has
“23. We have already referred to the order of reference
dated 17-2-1993 in paragraph supra. The dispute
referred to by the order of reference is only in respect
of workmen employed by the appellant Company. It
is, therefore, clear that the Tribunal, being a creature
of the reference, cannot adjudicate matters not within
the purview of the dispute actually referred to it by
the order of reference. In the facts and circumstances
of the present case, the Tribunal could not have
adjudicated the issue of salaries of the employees who
are not workmen under the Act nor could it have
covered such employees by its award. Even assuming,
without admitting, that the reference covered the
non-workmen, the Tribunal, acting within its
jurisdiction under the Act, could not have adjudicated
the dispute insofar as it related to the “non-
workmen.”
14. As regards the lack of jurisdiction of the Tribunal to
determine or adjudicate the dispute between the appellants
and the workmen represented by the three Unions, perusal of
the award does not reveal that this point was pressed before
the Tribunal by the employer. We accept that the Tribunal
could not go beyond the disputes that were referred to it, as
held in the case of Mukand Ltd. (supra). But legality of the
order of reference was challenged by ONGC in Writ Petition(C)
No. 5045 of 2018. In the judgment of the Division Bench,
which we have already quoted, it was opined on the aspect of
jurisdiction of the Tribunal, that it was not open for the
petitioner to complain at such a belated stage that the
reference was not warranted. In the judgment of the High
Court under challenge before us, this question was dealt with
“5. Apropos the first objection of Mr. Talsania, which,
according to him, goes to the root of the matter, it
must be noted at the very outset that the jurisdiction
of the tribunal in the present case to adjudicate the
reference was never questioned by ONGC on the
ground that the workmen represented by the second
party were not ‘workmen’ within the meaning of
section 2(s) of the Act, particularly, because they were
employees of contractors and not of ONGC. If this
issue was not part of the lis before the reference court,
there was no way it could be raised before the writ
court. The issue is, after all, a mixed issue of law and
facts; it would have to be adjudicated first before the
trial court upon foundational pleadings in that behalf
being led before it, before the writ court, in its scrutiny
of the order of the trial court, could be asked to go into
6. Mr. Talsania, however, submits that the fact that
these workmen were employees of contractors is not
really in dispute; the reference itself termed them as
workmen engaged through contractors. The question
is not whether the workmen were engaged through
contractors. That may indeed be an apparent
position. The question is whether, by reason of
perennial nature of the work at the premises of the
principal employer, and having regard to the
circumstances bearing on their service and service
conditions, whether the workmen could be said to be
in reality employees of the principal employer despite
the apparent position that they were engaged through
contractors. Indeed, there was a clear statement on
the part of the workmen in the statement of claim of
the second party that they were in fact and in reality
workmen of ONGC and not of the contractors. No
doubt, in its written statement, ONGC contested this
position, and in their rejoinder second party No.2
union reiterated its statement that the contract/s
was/were sham and bogus. It is apparent from the
impugned award of the tribunal, however, that this
issue was not pressed by ONGC at the hearing. The
issue anyway reflected on the jurisdiction of CGIT to
adjudicate the reference and ONGC did not choose to
contest the jurisdiction on the issue. Had the issue
been pressed by ONGC before the reference court, the
second party would have led appropriate evidence in
support of its case in this behalf. It obviously chose
not to do so, because this question was not debated
by ONGC before the reference court. Could the second
party be then visited with the consequence of having
to deal with this issue merely on the basis of the
material available before this court at the stage of a
scrutiny under Articles 226 or 227 of the Constitution
of India. The answer would be an emphatic “no”. The
second party would most certainly be seriously
inconvenienced if it were now required to sustain its
plea in the statement of claim of the workmen being
in reality employees of ONGC, without having had an
opportunity to lead evidence in support of such case
before trial court. For whatever reasons, ONGC found
it worth its while not to contest the jurisdiction of the
tribunal in the reference and this court, sitting as a
writ court, must leave the matter at that and not
scrutinize it any further.”
15. On the question of raising issue of lack of jurisdiction
before the Tribunal, the cases of Rattan Lal Sharma vs.
Secondary School & Ors. [(1993) 4 SCC 10], Secretary to
Govt. of India and Others vs. Shivram Mahadu Gaikwad
[(1995) Supp (3) SCC 231] and Kalyani Sharp India Ltd. vs.
Labour Court No.1, Gwalior & Anr. [(2002) 9 SCC 655] were
relied upon by the appellants. We accept, as a proposition of
law, that if irregularity or illegality committed by a Tribunal
touches upon the jurisdiction to try and determine over a
subject dispute is altogether beyond its purview, that question
would go to the root of the matter and it would be within the
jurisdiction of the superior court to correct such error. In the
case of Kalyani Sharp India Ltd. (supra) raising a plea on
application of law was found permissible at the appellate stage
before this Court, but in that case no fresh investigation of
fact was required. But in the facts of the present case, it is
not the question of inherent lack of jurisdiction on the part of
the Tribunal. The question of jurisdiction, as held by the High
Court was a mixed question of fact and law. Both the cases
of Rattan Lal Sharma(supra) and Kalyani Sharp India Ltd.
(supra) arose out of admitted fact. In the case of Shivram
Mahadu Gaikwad (supra) it was the limitation question which
went to the root of the matter. This case arose out of a
proceeding before the Central Administrative Tribunal. Point
was taken before the Tribunal by the Union of India but was
not addressed to in the judgment of the Tribunal. So far as
the present proceeding is concerned, as reflected in the
judgment under appeal, there was a clear statement on the
part of the workmen in the statement of the second party
(Union) before the Tribunal that in fact and reality, the
concerned workmen were employees of ONGC and were not of
the contractors. This was denied by the ONGC but in their
rejoinder the said Union reiterated their stand that the
contracts were sham and bogus. In the award, certain other
reference orders were cited which involved adjudication of the
question as to whether contracts between ONGC’s contractors
and workmen engaged by them were sham and bogus. (Ref.
No. CGIT I 16, 17, 18 and 19/2005) or not and if the said
workmen in reality were ONGC’s workmen only. In the case
of Steel Authority of India of 2001 (supra), it has been laid
down that in cases where plea is raised that a contract is
found to be sham and nominal, a camouflage to suppress the
actual status of a workman vis-à-vis who his employer is, the
veil could be pierced to find out the such status. If to this
perspective is added the fact that earlier three MoUs were
entered into directly by ONGC with the Unions representing
contractors’ workmen, this question does not remain a
question of law alone, to be sustained with the aid of the ratio
of the cases of Rattan Lal Sharma (supra), Shivram Mahadu
Gaikwad (supra) and Kalyani Sharp India Ltd. (supra).
Signatories to the earlier MoUs were the appellants and the
Unions and Section 30(2) of the Contract Labour (Regulation
and Abolition) Act, 1970 permits contract labourers to enter
into agreements with principal employers. Thus, by
themselves, the aforesaid MoUs would not establish that the
contract workmen are workmen of the principal employer. But
the circumstances which we have narrated clearly point to the
relationship between the appellants and the workmen
represented by the respondent Unions in that direction. The
stand that the concerned workmen were employees of the
principal employer were not specifically outlined in the
reference, but was implicit therein. In the reference order the
dispute therein was between ONGC and the Union. The
Charter of Demand was also raised against ONGC. The
Tribunal examined the issue and returned its finding which
was upheld by the High Court. This was a finding of fact. In
the case of National Engineering Industries Limited vs.
State of Rajasthan & Ors. [(2000) 1 SCC 371] it has been
held that the Industrial Tribunal is the creation of statute and
it cannot go into the question on validity of the reference. That
issue ought to be considered by the High Court, according to
the appellants. So far as the present proceeding is concerned,
the High Court has considered that question and we do not
find any error in the approach of the High Court in deciding
the jurisdiction question against the appellants.
16. Next comes the issue as to whether the settlement of 19th
September, 2016 was binding on the Unions who are before
us as respondents, having regard to the provisions of Section
18(3) (d) of the Act. Section 18 of the Act stipulates:-
“18. Persons on whom settlements and
awards are binding.- (1) A settlement arrived
at by agreement between the employer and
workman otherwise than in the course of
conciliation proceeding shall be binding on
the parties to the agreement.
sub-section (3), an arbitration award which
has become enforceable shall be binding on
the parties to the agreement who referred the
dispute to arbitration.
(3) A settlement arrived at in the course of
conciliation proceedings under this Act or an
notification has been issued under sub-
section (3A) of section 10A or an award of a
Labour Court, Tribunal or National Tribunal
which has become enforceable shall be
(a) all parties to the industrial dispute;
(b) all other parties summoned to appear in
the proceedings as parties to the dispute,
unless the Board, arbitrator, Labour Court,
Tribunal or National Tribunal, as the case
may be, records the opinion that they were so
(c) where a party referred to in clause (a) or
clause (b) is an employer, his heirs,
successors or assigns in respect of the
establishment to which the dispute relates;
(d) where a party referred to in clause (a) or
clause (b) is composed of workmen, all
establishment or part of the establishment,
as the case may be, to which the dispute
relates on the date of the dispute and all
persons who subsequently become employed
in that establishment or part.”
17. In the case of Ramnagar Cane and Sugar Company
Ltd. vs. Jatin Chakravorty & Ors. [(1960) 3 SCR, 968], the
binding nature of a settlement on all persons employed in an
establishment has been explained, having regard to Section
18(3)(d) of the Act. This principle was reaffirmed in the case of
General Manager, Security Paper Mill, Hoshangabad vs.
R.S. Sharma and Others [(1986) 2 SCC 151]. It has been laid
down in the case of Ramnagar Cane and Sugar Company
“5. In appreciating the merits of the rival
contentions thus raised in this appeal it is
necessary to bear in mind the scheme of the
Act. It is now well settled that an industrial
dispute can be raised in regard to any matter
workmen acting through a union or otherwise.
When an industrial dispute is thus raised and
is decided either by settlement or by an award
the scope and effect of its operation is
prescribed by Section 18 of the Act. Section
18(1) provides that a settlement arrived at by
agreement between the employer and the
workman otherwise than in the course of
conciliation proceeding shall be binding on the
parties to the agreement; whereas Section
18(3) provides that a settlement arrived at in
the course of conciliation proceedings which
has become enforceable shall be binding on all
the parties specified in clauses (a), (b), (c) and
(d) of sub-section (3). Section 18(3)(d) makes it
clear that, where a party referred to in clauses
(a) or (b) is composed of workmen, all persons
who were employed in the establishment or
part of the establishment, as the case may be,
to which the dispute relates on the date of the
dispute and all persons who subsequently
become employed in that establishment or
part, would be bound by the settlement. In
other words, there can be no doubt that the
settlement arrived at between the appellant
and the Employees' Union during the course
of conciliation proceedings on February 25,
1954, would bind not only the members of the
said Union but all workmen employed in the
establishment of the appellant at that date.
That inevitably means that the respondents
would be bound by the said settlement even
though they may belong to the rival Union. In
order to bind the workmen it is not necessary
to show that the said workmen belong to the
Union which was a party to the dispute before
the conciliator. The whole policy of Section 18
appears to be to give an extended operation to
the settlement arrived at in the course of
conciliation proceedings, and that is the object
with which the four categories of persons
bound by such settlement are specified in
Section 18, sub-section (3). In this connection
we may refer to two recent decisions of this
Court where similar questions under Section
19(6) and Section 33(1)(a) of the Act have been
considered. (Vide: Associated Cement
Companies Ltd., Porbandar v. Workmen [ Civil
Appeal No. 404 of 1958 decided on 3.3.1960]
and New India Motors (P.) Ltd. v. K.T. Morris.”
Same proposition of law was reiterated in the case of
Barauni Refinery Pragatisheel Shramik Parishad vs.
18. In the case of ANZ Grindlays Bank Ltd. vs. Union of
India & Ors. [(2005) 12 SCC 738], this Court, while testing a
reference found no subsisting industrial dispute and the
reference was set aside. This authority also does not assist the
appellants in the facts of the present case.
19. Now we shall test the appellants’ arguments on binding
effect of the settlement dated 19th September, 2016 on the
workmen whose cause the respondent Unions are espousing
before us. The High Court dealt with this question in the
“13. That brings us to the question as to whether the
MoS of 19 September 2016, even if it were to be
termed as a settlement in the course of a conciliation
proceeding, could be said to be a fair settlement so
as to bind workmen who were not party to it. The
tribunal, in the present case, has arrived at an
unequivocal finding that the settlement could not be
termed as fair. It, particularly, has taken into
account the fact that the MoS of 19 September 2016
required the workmen concerned to withdraw their
legitimate disputes and complaints on the issues of
regularization, etc. as a condition of settlement. It is
important to bear in mind in this behalf that when
the reference was made, there were about 1300
workmen, covered by the earlier MoU 29 December
2000, who were originally sought to be protected as
against about 2000 of total number of contract
employees with ONGC working in Mumbai, Panvel,
Uran and Nhava. The other employees were not
covered by the MoUs executed earlier by ONGC with
the unions. If these other workmen and their
union/s were to agree to a fair wage policy, which is
not on the basis of the earlier MoUs executed
between ONGC and the unions, such policy, on the
basis of such agreement, cannot be termed as a fair
policy for the workmen covered by the earlier MoUs
and whose references or complaints for their
legitimate demands were pending before various
industrial adjudicators. Anyway, on the facts
available before this court, the conclusion of the
Tribunal that the MoS of 19 September 2016 could
not be termed as a fair settlement, particularly, for
the workmen covered by the earlier MoUs, cannot be
termed as perverse. This court cannot bring itself to
hold that no reasonable person could have given any
such finding. The finding is clearly supported by
some evidence; it does take into account all relevant
and germane circumstances and materials; and it
does not consider any non-germane or irrelevant
circumstance or material. It must, in that case, pass
muster as a possible conclusion, which is not
amenable to judicial scrutiny either under Article
226 or 227 of the Constitution of India.”
20. The appellants’ case is that Unions representing above 77
percent of the workmen engaged by the contractors had agreed
to that settlement. In the case of Tata Engineering and
Locomotive Co. Ltd. vs. Their Workmen [(1981) 4 SCC 627],
this Court permitted a settlement to be binding which was
assailed by a set of workmen. In that case, one set of Unions
had entered into a settlement which had been assented to by
564 out of 635 daily-rated workmen. The finding of the Tribunal
was that the settlement was not just and fair. This Court,
however, allowed the appeal of the employer and set aside the
award. But this judgment is not an authority for the proposition
that a different set of workmen cannot raise an industrial
dispute claiming to be workmen directly under the principal
employer. Recognition of such right of minority workmen would
be apparent from paragraph 12 of the said report [(1981) 4 SCC
“12. There is no quarrel with the argument
addressed to us on behalf of the workers that mere
acquiescence in a settlement or its acceptance by a
worker would not make him a party to the
settlement for the purpose of Section 18 of the Act
[vide Jhagrakhan Collieries (P) Ltd. v. G.C. Agarwal,
2 SCR 873] ]. It is further unquestionable that a
minority union of workers may raise an industrial
dispute even if another union which consists of the
majority of them enters into a settlement with the
Ltd. v. Workmen [(1978) 3 SCC 42 : 1978 SCC (L&S)
then here the Company is not raising a plea that the
564 workers became parties to the settlement by
reason of their acquiescence in or acceptance of a
settlement already arrived at or a plea that the
reference is not maintainable because the Telco
Union represents only a minority of workers. On the
other hand the only two contentions raised by the
“(i) that the settlement is binding on
(ii) that the reference is liable to be
and fair.”
21. In the case of ITC Ltd. Workers’ Welfare Association &
Anr. vs. Management of ITC Ltd. & Anr. [(2002) 3 SSC 411],
“14. In answering the reference the industrial
adjudicator has to keep in the forefront of his mind the
settlement reached under Section 12(3) of the
Industrial Disputes Act. Once it is found that the terms
of the settlement operate in respect of the dispute
raised before it, it is not upon to the Industrial Tribunal
to ignore the settlement or even belittle its effect by
applying its mind independent of the settlement unless
the settlement is found to be contrary to the mandatory
provisions of the Act or unless it is found that there is
non-conformance to the norms by which the
settlement could be subjected to limited judicial
scrutiny….”
22. In the instant case we do not find the settlement of 19th
September, 2016 to be one which would be binding on the
minority Union. That was a settlement essentially between
the contractors and workmen engaged by the former. The
appellants were only consenting parties to the settlement.
This position of the appellants is apparent from the
description of the parties to the said settlement, which
23. The dispute out of which the present appeal arises
relates to the question as to whether the workmen engaged by
the contractors would be entitled to pay at par with other
workmen of the employer and demand to that effect was
raised with the appellants only. The respondent Unions
claimed to be, in reality, employees of ONGC and the demand
was raised upon the latter, and not on their contractors. The
nature of their demand was thus different particularly as
regards the status of the workmen, i.e., their claim to be
workmen of ONGC. Thus, the settlement of 19th September,
2016, in which the employers were the contractors cannot
bind the subject-dispute, where the appellants have been
found to be the employer on the basis of materials considered
by the High Court. Their engagement by the contractors
cannot be the sole basis for determining their status as
workmen of contractors.
24. For these reasons, we accept the High Court’s
affirmation of Tribunal’s finding that the settlement of 19th
September, 2016 did not bind the workmen whose cause the
respondent Unions are espousing. The finding of the Tribunal
that the settlement involving implementation of the FWP was
not just and fair, which finding has been sustained by the
High Court is essentially a finding on facts based on
appreciation of evidence. We are of the opinion that such
finding is not tainted by any element of perversity. The ratio
of the decision in the case of ITC Ltd. Workers’ Welfare
Association (supra) would not apply in the facts of the
present case.
25. Having held so, we would not like to interfere with the relief
directed to be given by the High Court. The scope of jurisdiction
of the Industrial Court is wide and in appropriate cases it has
the jurisdiction even to make a contract. In our opinion, the
directives issued by the Tribunal, as modified by the High Court
are reasonable and cannot be termed as perverse. In the case of
Steel Authority of India of 2006 (supra), referring to the
Contract Labour (Regulation & Abolition) Act, 1970 it was
“20. The 1970 Act is a complete code by itself. It not
only provides for regulation of contract labour but
also abolition thereof. Relationship of employer and
employee is essentially a question of fact.
Determination of the said question would depend
upon a large number of factors. Ordinarily, a writ
court would not go into such a question.”
So far as the judgment under appeal is concerned, the High
Court has taken a similar approach and we do not intend to take
a different view. The principle of limited interference would
apply to a proceeding of this nature under the 1947 Act.
26. The appeal is accordingly dismissed and the impugned
judgment is sustained. Interim order, if any, shall stand
27. Other applications, if any, stand disposed of.
28. There shall be no order as to costs.
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The Supreme Court has held that a minority Union of workers, who were not party to the settlement entered between the majority Union and the employer, is not bound by the same and is free to raise an industrial dispute claiming to be workmen directly under the principal employer. A Bench comprising Justices L. Nageswara Rao and Aniruddha Bose refused to interfere with the order of...
The Supreme Court has held that a minority Union of workers, who were not party to the settlement entered between the majority Union and the employer, is not bound by the same and is free to raise an industrial dispute claiming to be workmen directly under the principal employer. A Bench comprising Justices L. Nageswara Rao and Aniruddha Bose refused to interfere with the order of the Bombay High Court, which largely upheld the decision of the Central Government Industrial Tribunal, Mumbai, that the demands of the workers' Union to have uniform policies for all workmen irrespective of contracts in ONGC was justified.
"In the instant case we do not find the settlement of 19th September, 2016 to be one which would be binding on the minority Union. That was a settlement essentially between the contractors and workmen engaged by the former. The appellants were only consenting parties to the settlement", the Court said after taking note of Section 18 of the Industrial Disputes Act 1947.
The bench followed the precedents Tata Engineering and Locomotive Co. Ltd. vs. Their Workmen [(1981) 4 SCC 627] which had observed : "It is further unquestionable that a minority union of workers may raise an industrial dispute even if another union which consists of the majority of them enters into a settlement with the employer"
Factual Background
The Oil Field Employees Association ("Union"), a Union registered in 2014, issued a direct action notice on 26.08.2016 to the appellants, Oil and Natural Gas Corporation Limited ("ONGC"). The Union represented workmen engaged by contractors of ONGC. On 19.09.2016, the said Union and ONGC were called by a Conciliation Officer ("Officer") to resolve the dispute arising out of the said direct action notice. It is pertinent to note that on the same day a settlement was reached between another Union, which represents 77% of the workmen and the contractor ("majority Union"), wherein ONGC was a consenting party. On 26.09.2016, a Charter of Demands with the demand that wages and service conditions of workmen of the contractors should be at par with the employees of ONGC was submitted by the Union. In turn, ONGC proposed a Fair Wage Policy. Eventually, the Conciliation failed and accordingly a report was sent to the Central Government, which referred the dispute to the Industrial Tribunal under Section 10(2A)(1)(d) of the Industrial Disputes Act, 1947 ("1947 Act"). The validity of the reference order was challenged by ONGC before the Bombay High Court, which the High Court rejected. In the meanwhile two other Unions were impleaded by the Tribunal. On appeal, the High Court sustained the award, modified the implementation part of the award.
Contention raised by the appellants
Senior Advocate, Mr. J.P. Cama appearing on behalf of ONGC referred to the definition of 'workman' in Section 2(s) of the 1947 Act to argue that the reference was not maintainable as none of the workmen that the Unions represented were employed by ONGC. The settlement entered into on 19.09.2016, with the majority Union, covered all similarly situated workmen. Placing reliance on a catena of judgements, Mr. Cama contended that workmen of contractors could not be treated as workmen of the principal employer. It was asserted that there was no agreement to suggest the concerned workmen were employed with ONGC. Moreover, abolition of contract labour does not automatically lead to absorption by the principal employer.
Contention raised by the respondents
Senior Advocate, Mr. Pallav Shishodia appearing on behalf of the Unions argued that the concerned workmen were the employees of ONGC. It was urged that the settlement of 19.09.2016 was not to be treated as a settlement under Section 18(3)(d) to bind the concerned workmen as the same had not been finalised. It was submitted that the settlement pertained to workmen of contractors whereas the concerned workmen are entitled to service benefits directly from ONGC.
Analysis by the Supreme Court
The Court observed that in the facts of the present case where the Union had claimed that the workmen were employees of ONGC, the question of jurisdiction was a mixed question of fact and law. It was noted that the Union had stated that the contracts were sham and bogus. Referring to Steel Authority of India Ltd. And Ors. v. National Union Waterfront Workers And Ors. (2001) 7 SCC 1, the Court clarified that when a plea of sham contract is raised, the veil is pierced to verify the correct status of employment. Therefore, the jurisdiction of the Tribunal cannot be faulted.
"...we would not like to interfere with the relief directed to be given by the High Court. The scope of jurisdiction of the Industrial Court is wide and in appropriate cases it has the jurisdiction even to make a contract. In our opinion, the directives issued by the Tribunal, as modified by the High Court are reasonable and cannot be termed as perverse."
Considering the judgments referred to by the parties, the Court opined that the settlement of 19.09.2016 being one between the contractor and their workmen, with ONGC as merely the consenting party, would not make the settlement binding between ONGC and the minority Union. A settlement arrived between contractor and workmen is of no consequence in binding the subject-dispute where ONGC has been found to be the employer. The Court was of the view that the engagement by the contractors cannot be the sole basis for determining their status as workmen of contractors.
Case Name: M/s. Oil And Natural Gas Corporation Ltd. v. The President, Oil Field Employees Association And Ors.
Case No. and Date: Civil Appeal No. 1033 of 2022 | 4 Feb 2022
Corum: Justices L. Nageswara Rao and Aniruddha Bose
Author: Justice Aniruddha Bose
Counsel for the appellant: Senior Advocate, Mr. J.P. Cama; Advocate-on-Record Mr. Ankit Kumar Lal; Advocates, Mr. Akshay Amritanshu, Mr. G.D. Talreja, Mr. Kartikey Singh, Mr. Ashutosh Jain.
Counsel for the respondent: Senior Advocate, Mr. Pallav Shishodia; Respondent-in person, Mr. Shaligram G. Mishra; Advocate-on-Record, Dr. Vinod Kumar Tewari, Advocates, Mr. Pramod Tiwari, Mr. Manindra Dubey, Mr. Vivek Tiwari, Ms. Priyanka Dubey.
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2. These appeals have been preferred by the informant
appellant assailing the orders dated 22.07.2021 and 13.09.2021
passed by the High Court of Judicature at Patna in Criminal
Miscellaneous Nos.11683 of 2021 and 26463 of 2021
respectively whereby bail has been granted to the accused who is
the common respondent in the appeals, in connection with
Naubatpur P.S. Case No.93 of 2020 and Parsa Bazar P.S. Case
No.316 of 2017 respectively.
3. The facts in a nutshell are that the appellant is the mother
of the deceased Rupesh Kumar. She is stated to be an
eyewitness to the killing of her son and also the person who
lodged the First Information Report being FIR No.93 of 2020 for
offence of murder of her son under section 302 read with section
34 of the Indian Penal Code (for short, the ‘IPC’) and section 27
of the Arms Act against common respondentaccused herein viz.,
Pappu Kumar and one other person named Deepak Kumar.
4. That FIR No.93/2020 dated 19.02.2020 is stated to have
been filed by the appellant herein between 2.30 hrs and 3.00 hrs
in the night stating that her son Rupesh Kumar aged about 35
years was sleeping in the room constructed on the roof top of her
house. A relative, Deepak Kumar was also sleeping there. She
was sleeping in another room which is beside the aforesaid
room. She has further stated that she heard the sound of a
person walking and also talking and then she saw that
respondent–accused was present and he had a pistol in his hand
and when he saw her, he caught her and forcefully tied her
mouth with his Gamchha (towel) and he shot her son on the
head from his pistol in front of her and Deepak Kumar too shot
once at her son’s head. As a result, her son died. Other family
members reached the spot upon hearing the firing sound. But
the accused ran away waiving their pistols.
5. Earlier, FIR No.316 of 2017 was lodged at Police Station
Parsa Bazar by appellant’s deceased son himself viz., Rupesh
Kumar for causing serious bullet injury to him, under sections
341, 307 read with section 34 of IPC and section 27 of the Arms
Act, by giving a ferdbeyan against the very same respondent
accused herein and his two acquaintances to K.K. Verma, ASI,
Shashtri Nagar PS, District Patna, on 28.12.2017 at 7.57 pm at
Emergency Ward, Paras Hospital, Patna. This ferdbeyan was
given in respect of an incident which occurred on the previous
day i.e. 27.12.2017 when he had gone to meet his friend
Shailendra at Sipara. While Rupesh Kumar was returning from
his friend’s house, the respondentaccused along with his two
acquaintances caught him and respondentaccused fired and
caused bullet injury to him. When Rupesh Kumar ran and
reached a farmer’s house in the nearby village and narrated the
entire story to him, he was taken to the police station on a
motorcycle and had lodged FIR No.316/2017.
6. According to the appellant, the respondentaccused herein
had attempted to kill her son viz., Rupesh Kumar in the year
2017 by firing at him and an FIR was lodged being FIR No.316 of
2017. But after lodging FIR No. 93 of 2020, the respondent
accused had absconded for about seven months. He had also
threatened the appellant herein and exerted pressure on the
appellantinformant and her family to withdraw the complaint,
failing which he would eliminate the entire family. That a
written complaint of the appellant dated 30.09.2020 was filed to
the police, in pursuance of which complaint the respondent
accused was nabbed in connection with murder of Rupesh
7. While on the run respondentaccused was arrested on
30.09.2020. The respondentaccused has been in judicial
custody for a period of nine months till he was granted bail by
8. In fact, the Court of Additional Chief Judicial Magistrate at
Patna, took cognizance of the offences and issued summons to
the respondentaccused herein in connection with FIR
No.316/2017. An order of remand to judicial custody was passed
in connection with Naubatpur P.S. Case No.316/2017 under
section 307 of IPC on 06.01.2021.
9. That the accused made an application seeking bail before
the Sessions Court, which was rejected by the Additional
Sessions JudgeI, Danapur by Order dated 08.12.2020.
Thereafter, the respondentaccused filed an application for grant
of bail by suppressing his criminal antecedents and by the
impugned order dated 22.07.2021, the High Court granted him
bail in connection with the case being FIR No.93/2020 registered
at Naubatpur P.S. for offence under section 302 read with
section 34 of IPC and section 27 of the Arms Act, subject to
certain conditions.
10. Subsequently, the High Court, vide order dated
13.09.2021, also granted bail to respondentaccused in
connection with the other case being FIR No.316/2017
registered at Parsa Bazar P.S. for offences under sections 341,
307 read with section 34 of IPC and section 25 of the Arms Act.
Being aggrieved, the appellant has preferred these appeals before
11. We have heard Sri Smarhar Singh, learned counsel for the
appellant and Sri R. Basant, learned Senior Counsel for
respondentaccused and perused the material on record.
12. Learned counsel for the appellant submitted that the
respondentaccused has been named in eight cases. Even
though, the said accused may have been acquitted in a few cases,
there are still three cases pending against him. He had attempted
unsuccessfully to kill the deceased Rupesh Kumar in the
year 2017. Later in the year 2020, he killed the deceased and
absconded for about seven months. The mother of the deceased
appellant herein, is the informant and she has been threatened
by respondent. He was in judicial custody only for a period of
nine months as he had earlier absconded but has now been
granted bail by the High Court contrary to the settled principles
of law and the judgments of this Court.
13. Further it is urged that the High Court has not assigned
reasons for grant of bail in the instant cases whereas the
respondentaccused is alleged to have committed heinous crimes
which could result in life imprisonment or even death penalty.
Respondentaccused, being a habitual offender, could not have
been granted bail by the High Court. According to the learned
counsel for the appellant, the High Court in a very cryptic order
de hors any reasoning has granted bail to the respondent
accused. It is the submission of learned counsel for the appellant,
who is mother of the deceased, to allow these appeals by setting
aside the impugned orders. In support of his submission, reliance
has been placed on certain decisions of this Court which shall be
referred to later.
14. Per contra, Sri Basant, learned Senior Counsel for the
respondentaccused, supported the impugned orders and
contended that accused no.2 in the case is the brotherinlaw of
the deceased and both of them were accused in another case in
which the respondentaccused herein has been enlisted as a
witness. The deceased and Deepak Kumar – accused no.2 were
living together in the same house. He may have fired at the
deceased but not the respondentaccused herein. This is a case
of false implication of the respondentaccused by the informant.
15. That the gun was recovered from accused no.2 and there
has been no recovery made from respondentaccused. There
have been several cases against the deceased and accused no.2
also.
16. Learned Senior Counsel for the respondentaccused further
contended that respondentaccused was 350 kms away on the
intervening night of 18th and 19th February, 2020. He was not at
the spot of the crime at all. This is evident from the mobile phone
details. Therefore, the High Court was justified in considering
these aspects and granting bail to the respondentaccused.
17. In support of his submission, Sri Basant, learned Senior
Counsel, placed reliance on Gudikanti Narsimhulu & Ors. vs.
Public Prosecutor, High Court of Andhra Pradesh (1978) 1
SCC 240, which prescribes the approach of a Court while
granting bail. The Court considering an application seeking bail
cannot enter into an indepth analysis of the case so as to hold a
mini trial of the case. It is also unnecessary to give lengthy
reasons at the time of granting bail. It was contended that bail is
the norm and jail is the exception. Once bail has been granted
by a Court, it is only in very rare cases that there is interference
as it would have the effect of cancellation of bail. That the liberty
of a person cannot be interfered with unless the situation
18. It was further submitted that learned counsel for the
appellant was not right in contending that the respondent
accused had absconded. In fact, there was no chargesheet
against him. It was only when a protest petition was filed, that a
chargesheet was filed against him and he was arrested.
19. It was further submitted that the allegations against the
respondentaccused are false and hence the impugned orders of
the High Court do not call for any interference in these appeals.
20. Having regard to the contention of Sri Smarhar Singh,
learned counsel for the appellant that the impugned orders
granting bail to the respondentaccused are bereft of any
reasoning and they are cryptic and bail has been granted in a
casual manner, we extract those portions of the impugned
orders dated 22nd July, 2021 and 13th September, 2021 passed
by the High Court, which provides the “reasoning” of the Court
During course of investigation, it has come that at the
time and date of occurrence petitioner was at Araria.
Petitioner is in custody since 30.09.2020.
Considering the facts and circumstances of the case and
the fact that false implication against the petitioner
cannot be rule out, the petitioner abovenamed, is
directed to be enlarged on bail on furnishing bail bond of
Rs. 10,000/ (Ten thousand) with two sureties of the like
amount each to the satisfaction of the learned Additional
Chief Judicial Magistrate III, Patna in connection with
Naubatpur P.S. Case No.93 of 2020, subject to following
(i) The petitioner shall cooperate in the trial
and shall be properly represented on each
and every date fixed by the court and shall
remain physically present as directed by the
Court and in the event of failure on two
consecutive dates without sufficient reasons,
his bail bond shall be liable to be cancelled
by the court below.
(ii) If the petitioner tampers with the evidence or
the witnesses of the case, in that case,
prosecution will be at liberty to move for
cancellation of bail of the petitioner.”
“Considering the facts and circumstances of the case and
the fact petitioner is in custody since 06.01.2021, let the
petitioner, mentioned above, be enlarged on bail on
furnishing bail bond of Rs. 10,000/ (ten thousand) with
two sureties of the like amount each to the satisfaction of
learned Sub JudgeVIII, Patna, in connection with Parza
Bazar P.S. Case No. 316/2017, subject to the following
(1) Petitioner shall cooperate in the trial and
shall be properly represented on each and every
date fixed by the Court and shall remain
physically present as directed by the Court and
on his/her absence on two consecutive dates
without sufficient reason, his/her bail bond
shall be cancelled by the Court below.
(2) If the petitioner tampers with the
evidence or the witnesses, in that case, the
prosecution will be at liberty to move for
cancellation of bail.”
21. Before proceeding further, it would be useful to refer to the
judgments of this Court in the matter of granting bail to an
a) In Gudikanti Narasimhulu (supra), Krishna Iyer, J., while
elaborating on the content and meaning of Article 21 of the
Constitution of India, has also elaborated the factors that
have to be considered while granting bail which are
“7. It is thus obvious that the nature of the charge is
the vital factor and the nature of the evidence also is
pertinent. The punishment to which the party may
be liable, if convicted or conviction is confirmed, also
bears upon the issue.
8. Another relevant factor is as to whether the
course of justice would be thwarted by him who
seeks the benignant jurisdiction of the Court to be
freed for the time being.
9. Thus the legal principles and practice validate the
Court considering the likelihood of the applicant
interfering with witnesses for the prosecution or
otherwise polluting the process of justice. It is not
only traditional but rational, in this context, to
enquire into the antecedents of a man who is
applying for bail to find whether he has a bad record
– particularly a record which suggests that he is
likely to commit serious offences while on bail. In
regard to habituals, it is part of criminological
history that a thoughtless bail order has enabled the
bailee to exploit the opportunity to inflict further
about the criminal record of a defendant, is therefore
not an exercise in irrelevance.”
b) Prahlad Singh Bhati vs. NCT of Delhi & ORS – (2001) 4
SCC 280 is a case wherein this Court proceeded to state
the following principles which are to be considered while
“(a) While granting bail the court has to keep in
mind not only the nature of the accusations, but
the severity of the punishment, if the accusation
entails a conviction and the nature of evidence in
support of the accusations.
(b) Reasonable apprehensions of the witnesses
being tampered with or the apprehension of there
being a threat for the complainant should also
weigh with the court in the matter of grant of bail.
(c) While it is not expected to have the entire
evidence establishing the guilt of the accused
beyond reasonable doubt but there ought always to
be a prima facie satisfaction of the court in support
of the charge.
(d) Frivolity in prosecution should always be
considered and it is only the element of
genuineness that shall have to be considered in the
matter of grant of bail, and in the event of there
being some doubt as to the genuineness of the
prosecution, in the normal course of events, the
accused is entitled to an order of bail.”
c) This Court in Ram Govind Upadhyay vs. Sudarshan
Singh – (2002) 3 SCC 598, speaking through Banerjee, J.,
“3. Grant of bail though being a discretionary order
— but, however, calls for exercise of such a
discretion in a judicious manner and not as a
matter of course. Order for bail bereft of any cogent
reason cannot be sustained. Needless to record,
however, that the grant of bail is dependent upon
the contextual facts of the matter being dealt with
by the court and facts, however, do always vary
from case to case. While placement of the accused
in the society, though may be considered but that
by itself cannot be a guiding factor in the matter of
grant of bail and the same should and ought always
to be coupled with other circumstances warranting
the grant of bail. The nature of the offence is one of
the basic considerations for the grant of bail —
more heinous is the crime, the greater is the chance
of rejection of the bail, though, however, dependent
on the factual matrix of the matter.”
d) In Kalyan Chandra Sarkar vs. Rajesh Ranjan alias
Pappu Yadav & Anr. – (2004) 7 SCC 528, this Court
“11. The law in regard to grant or refusal of bail is
very well settled. The court granting bail should
exercise its discretion in a judicious manner and not
as a matter of course. Though at the stage of
granting bail a detailed examination of evidence and
elaborate documentation of the merit of the case
need not be undertaken, there is a need to indicate
in such orders reasons for prima facie concluding
why bail was being granted particularly, where the
accused is charged of having committed a serious
offence. Any order devoid of such reasons would
suffer from non application of mind. It is also
necessary for the court granting bail to consider
among other circumstances, the following factors
also before granting bail; they are:
a) The nature of accusation and the severity of
punishment in case of conviction and the
nature of supporting evidence.
b) Reasonable apprehension of tampering with
the witness or apprehension of threat to the
complainant.
(c) Prima facie satisfaction of the court in
support of the charge. (See Ram Govind
Upadhyay v. Sudarshan Singh, (2002) 3
SCC 598 and Puran v. Rambilas, (2001) 6
e) Gobarbhai Naranbhai Singala vs. State of Gujarat &
Ors. etc. etc. – (2008) 3 SCC 775, is a case which
concerns cancellation of bail by this Court in a petition
filed under Article 136 of the Constitution of India. In the
said case reliance was placed on Panchanan Mishra vs.
Digambar Mishra – (2005) 3 SCC 143 wherein in para 13
“13. The object underlying the cancellation of bail is
to protect the fair trial and secure justice being
done to the society by preventing the accused who
is set at liberty by the bail order from tampering
with the evidence in the heinous crime … It hardly
requires to be stated that once a person is released
on bail in serious criminal cases where the
punishment is quite stringent and deterrent, the
accused in order to get away from the clutches of
the same indulge in various activities like
tampering with the prosecution witnesses,
threatening the family members of the deceased
victim and also create problems of law and order
situation.”
Further on referring to the State of UP vs.
Amarmani Tripathi – (2005) 8 SCC 21, this Court noted
the facts of the case therein to the effect that the
respondent therein had been named in ten other criminal
cases in the last 25 years or so, out of which five cases
were under section 307 IPC for attempt to murder and
another under section 302 IPC for committing murder.
That in most of the cases he was acquitted for want of
sufficient evidence. Without saying anything further this
Court noted that the High Court in the said case
completely ignored the general principle for grant of bail in
a heinous crime of commission of murder in which the
sentence, if convicted, is death or life imprisonment.
It was further observed that in the impugned order
therein the findings recorded touched upon the merits of
the case and the learned Judge had proceeded as if an
order of acquittal was being passed, contrary to what had
been said in Amarmani Tripathi which is that only a brief
examination has to be made to satisfy about the facts and
circumstances or a prima facie case.
f) This Court in Ash Mohammad vs. Shiv Raj Singh @
Lalla Bahu & Anr. – (2012) 9 SCC 446, observed that
though the period of custody is a relevant factor, the same
has to be weighed simultaneously with the totality of the
circumstances and the criminal antecedents. That these
are to be weighed in the scale of collective cry and desire
and that societal concern has to be kept in view in
juxtaposition to individual liberty, was underlined.
g) In Neeru Yadav vs. State of UP & Anr. – (2016) 15 SCC
422, after referring to a catena of judgments of this Court
on the consideration of factors for grant of bail observed
through Dipak Misra, J. (as His Lordship then was) in
“15. This being the position of law, it is clear as
cloudless sky that the High Court has totally
ignored the criminal antecedents of the accused.
What has weighed with the High Court is the
doctrine of parity. A historysheeter involved in the
nature of crimes which we have reproduced
hereinabove, are not minor offences so that he is
not to be retained in custody, but the crimes are of
heinous nature and such crimes, by no stretch of
imagination, can be regarded as jejune. Such cases
do create a thunder and lightening having the effect
potentiality of torrential rain in an analytical mind.
The law expects the judiciary to be alert while
admitting these kind of accused persons to be at
large and, therefore, the emphasis is on exercise of
discretion judiciously and not in a whimsical
manner.
18. Before parting with the case, we may repeat
with profit that it is not an appeal for cancellation
of bail as the cancellation is not sought because of
supervening circumstances. The annulment of the
order passed by the High Court is sought as many
relevant factors have not been taken into
consideration which includes the criminal
antecedents of the accused and that makes the
order a deviant one. Therefore, the inevitable result
is the lancination of the impugned order.”
h) In Anil Kumar Yadav v. State (NCT of Delhi) – (2018) 12
SCC 129, this Court has spelt out some of the significant
considerations which must be placed in the balance in
“17. While granting bail, the relevant
considerations are: (i) nature of seriousness of the
offence; (ii) character of the evidence and
circumstances which are peculiar to the accused;
and (iii) likelihood of the accused fleeing from
justice; (iv) the impact that his release may make
on the prosecution witnesses, its impact on the
society; and (v) likelihood of his tampering. No
doubt, this list is not exhaustive. There are no
hardandfast rules regarding grant or refusal of
bail, each case has to be considered on its own
merits. The matter always calls for judicious
exercise of discretion by the Court.”
i) Recently in Bhoopindra Singh vs. State of Rajasthan &
Anr. (Criminal Appeal No. 1279 of 2021), this Court has
observed as under in the matter of exercise of an appellate
power to determine whether bail has been granted for valid
reasons as distinct from an application for cancellation of
bail by quoting Mahipal vs. Rajesh Kumar (2020) 2
“16. The considerations that guide the power of an
appellate court in assessing the correctness of an
order granting bail stand on a different footing
from an assessment of an application for the
cancellation of bail. The correctness of an order
granting bail is tested on the anvil of whether
there was an improper or arbitrary exercise of the
discretion in the grant of bail. The test is whether
the order granting bail is perverse, illegal or
unjustified. On the other hand, an application for
cancellation of bail is generally examined on the
anvil of the existence of supervening
circumstances or violations of the conditions of
bail by a person to whom bail has been granted.”
22. On the aspect of the duty to accord reasons for a decision
arrived at by a court, or for that matter, even a quasijudicial
authority, it would be useful to refer to a judgment of this Court
Ahmed Khan & Ors. – (2010) 9 SCC 496, wherein after
referring to a number of judgments this Court summarised at
paragraph 47 the law on the point. The relevant principles for
the purpose of this case are extracted as under:
(a) Insistence on recording of reasons is meant to serve the
wider principle of justice that justice must not only be
done it must also appear to be done as well.
(b) Recording of reasons also operates as a valid restraint on
any possible arbitrary exercise of judicial and quasi
judicial or even administrative power.
(c) Reasons reassure that discretion has been exercised by
the decisionmaker on relevant grounds and by
disregarding extraneous considerations.
(d) Reasons have virtually become as indispensable a
component of a decisionmaking process as observing
principles of natural justice by judicial, quasijudicial and
even by administrative bodies.
(e) The ongoing judicial trend in all countries committed to
rule of law and constitutional governance is in favour of
reasoned decisions based on relevant facts. This is
virtually the lifeblood of judicial decisionmaking justifying
the principle that reason is the soul of justice.
(f) Judicial or even quasijudicial opinions these days can be
as different as the judges and authorities who deliver
them. All these decisions serve one common purpose
which is to demonstrate by reason that the relevant
factors have been objectively considered. This is important
for sustaining the litigants' faith in the justice delivery
system.
(g) Insistence on reason is a requirement for both judicial
accountability and transparency.
(h) If a judge or a quasijudicial authority is not candid
enough about his/her decisionmaking process then it is
impossible to know whether the person deciding is faithful
to the doctrine of precedent or to principles of
incrementalism.
(i) Reasons in support of decisions must be cogent, clear and
succinct. A pretence of reasons or “rubberstamp reasons”
is not to be equated with a valid decisionmaking process.
(j) It cannot be doubted that transparency is the sine qua
non of restraint on abuse of judicial powers. Transparency
in decisionmaking not only makes the judges and
decisionmakers less prone to errors but also makes them
subject to broader scrutiny. (See David Shapiro in Defence
of Judicial Candor [(1987) 100 Harvard Law Review 731
(k) In all common law jurisdictions judgments play a vital role
in setting up precedents for the future. Therefore, for
development of law, requirement of giving reasons for the
decision is of the essence and is virtually a part of “due
process”.
23. Though the aforesaid judgment was rendered in the
context of a dismissal of a revision petition by a cryptic order by
the National Consumer Disputes Redressal Commission, reliance
could be placed on the said judgment on the need to give
reasons while deciding a matter.
24. The Latin maxim “cessante ratione legis cessat ipsa lex”
meaning “reason is the soul of the law, and when the reason of
any particular law ceases, so does the law itself”, is also
25. While we are conscious of the fact that liberty of an
individual is an invaluable right, at the same time while
considering an application for bail Courts cannot lose sight of
the serious nature of the accusations against an accused and
the facts that have a bearing in the case, particularly, when the
accusations may not be false, frivolous or vexatious in nature
but are supported by adequate material brought on record so as
to enable a Court to arrive at a prima facie conclusion. While
considering an application for grant of bail a prima facie
conclusion must be supported by reasons and must be arrived
at after having regard to the vital facts of the case brought on
record. Due consideration must be given to facts suggestive of
the nature of crime, the criminal antecedents of the accused, if
any, and the nature of punishment that would follow a
conviction visàvis the offence/s alleged against an accused.
26. We have extracted the relevant portions of the impugned
orders above. At the outset, we observe that the extracted
portions are the only portions forming part of the “reasoning” of
the High court while granting bail. As noted from the aforecited
judgments, it is not necessary for a Court to give elaborate
reasons while granting bail particularly when the case is at the
initial stage and the allegations of the offences by the accused
would not have been crystalised as such. There cannot be
elaborate details recorded to give an impression that the case is
one that would result in a conviction or, by contrast, in an
acquittal while passing an order on an application for grant of
bail. At the same time, a balance would have to be struck
between the nature of the allegations made against the accused;
severity of the punishment if the allegations are proved beyond
reasonable doubt and would result in a conviction; reasonable
apprehension of the witnesses being influenced by the accused;
tampering of the evidence; the frivolity in the case of the
prosecution; criminal antecedents of the accused; and a prima
facie satisfaction of the Court in support of the charge against
the accused.
27. Ultimately, the Court considering an application for bail
has to exercise discretion in a judicious manner and in
accordance with the settled principles of law having regard to the
crime alleged to be committed by the accused on the one hand
and ensuring purity of the trial of the case on the other.
28. Thus, while elaborating reasons may not be assigned for
grant of bail, at the same time an order de hors reasoning or
bereft of the relevant reasons cannot result in grant of bail. It
would be only a non speaking order which is an instance of
violation of principles of natural justice. In such a case the
prosecution or the informant has a right to assail the order
before a higher forum.
29. In view of the aforesaid discussion, we shall now consider
the facts of the present case. The allegations against respondent
accused as well as the contentions raised at the Bar have been
narrated in detail above. On a consideration of the same, the
following aspects of the case would emerge:
a) Allegations against the respondentaccused are under
Sections 341, 307 read with Section 34 of the IPC and
Section 27 of the Arms Act in respect of FIR No. 316 of
2017 lodged at Police Station Parsa Bazar which is with
regard to attempt to murder Rupesh Kumar the injured,
who had himself given the Ferdbayan against the
respondent accused herein. The other case, namely, FIR
No. 93 of 2020 is with regard to the offence of murder of
appellant’s son Rupesh Kumar under Section 302 read
with Section 34 of the IPC and Section 27 of the Arms Act
against respondentaccused herein and accused no.2
Deepak Kumar. Thus, offences alleged against respondent
accused herein are serious offences visavis the very same
Rupesh Kumar at two points of time, namely, in 2017
when attempt to murder him is alleged and in 2020
allegation of murder has been cast by the appellant,
mother of the deceased who is stated to be an eyewitness.
Thus, the allegations against the respondent accused vis
avis the same person, namely, the informant Rupesh
Kumar in both the cases.
b) According to the respondentaccused, there has been a
history of enmity between the accused and the deceased.
c) The accusation against the respondentaccused is that he
shot Rupesh Kumar with a fire arm, namely, a pistol on
two occasions.
d) The respondentaccused herein has been named in about
eight cases and though he may have been acquitted in a
few of them, there are still cases pending against him.
Thus, it is inferred that respondentaccused has criminal
antecedents.
e) It has also come on record that the respondent accused
had absconded for a period of seven months after the
complaint in respect of the second offence was lodged
against him. Therefore, his arrest was delayed.
f) It is also the case of the appellant that the respondent
accused had threatened the informant mother of the
deceased.
g) Thus, there is a likelihood of the respondentaccused
absconding or threatening the witnesses if on bail which
would have a vital bearing on the trial of the cases.
h) Also, for securing the respondentaccused herein for the
purpose of commencement of the trial in right earnest in
both the cases, as the accused had earlier absconded,
discretion could not have been exercised in favour of the
respondentaccused in the instant cases.
i) In the impugned order dated 13.09.2021, the High Court
has noted that there was a previous enmity between the
deceased and the petitioner with regard to contesting an
Election as Mukhiya of Chhotki Tangraila Gram Panchayat
but this fact has not been taken into consideration in the
context of the allegation against the accused and with
regard to grant of bail.
30. Having considered the aforesaid facts of the present case in
juxtaposition with the judgments referred to above, we do not
think that these cases are fit cases for grant of bail to
respondentaccused in respect of the two serious accusations
against him visàvis the very same person namely deceased
31. The High court has lost sight of the aforesaid vital aspects
of the case and in very cryptic orders has granted bail to the
respondentaccused. For the aforesaid reasons, we find that the
High Court was not right in allowing the applications for bail
filed by the respondentaccused. Hence, the impugned orders
passed by the High Court are set aside. The appeals are allowed.
32. The respondentaccused is on bail. His bail bonds stand
cancelled and he is directed to surrender before the concerned
jail authorities within a period of two weeks from today.
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The Supreme Court held that if an order granting bail was bereft of relevant reasons then the same would entitle the prosecution or the informant to assail it before a higher forum. The Apex Court clarified that though elaborate reasons are not required to be assigned while granting bail, a cryptic order devoid of any reasoning is a blatant violation of the principles of...
The Supreme Court held that if an order granting bail was bereft of relevant reasons then the same would entitle the prosecution or the informant to assail it before a higher forum. The Apex Court clarified that though elaborate reasons are not required to be assigned while granting bail, a cryptic order devoid of any reasoning is a blatant violation of the principles of natural justice.
A bench comprising Justices L. Nageswara Rao, B.R. Gavai and B.V. Nagarathna set aside an order of Patna High Court granting bail to an accused, for being cryptic and devoid of relevant reasons.
Factual Background
The appellant/informant saw the respondent-accused killing her son in her house. Thereafter, she lodged the FIR against the respondent-accused under Section 302 read with Section 34 of the Indian Penal Code and Section 27 of the Arms Act. On an earlier occasion, the deceased was attacked by the accused and his accomplices, and as a result suffered a bullet injury. In view of the same the deceased had lodged an FIR against him.
After the informant made the concerned FIR, the respondent-accused absconded for seven months and also intimidated the informant to withdraw the informant or else he threatened to eliminate her entire family. In the light of these threats, the informant submitted a written complaint to the police, who immediately arrested the accused and he had been in judicial custody for nine months until he was released on bail.
The accused filed an application before the Sessions Court seeking bail, which was rejected by the Additional Sessions Judge-I, Danapur. By suppressing his criminal antecedents, he tried his luck before the Patna High Court and was granted bail in connection with the murder case. Eventually, the High Court granted him bail.
Contentions raised by the appellant
Advocate, Mr. Smarhar Singh, appearing on behalf of the appellant/informant apprised the Court that in eight cases, the respondent has been the named accused. Out of these, three cases were still pending against the accused. It was further submitted that the accused, who was a habitual offender, was absconding for a long period of time and had been in custody for only nine months. Under the said circumstances, it was argued, the grant of bail by the High Court was in contravention of trite law, more so, the same being without assigning any relevant reasons.
Contentions raised by the respondent-accused
Senior Advocate, Mr. R. Basant, appearing on behalf of the respondent-accused, asserted that he was falsely implicated in the case at hand. The weapon was recovered from accused no. 2, who was the brother-in-law of the deceased. It was brought to the notice of the Court that several cases were also pending against the deceased and his brother-in-law. It was argued that the respondent-accused was 350 kms away from the spot of crime on the fateful day, which was evident from the mobile phone details. Placing reliance on Gudikanti Narsimhulu & Ors. vs. Public Prosecutor, High Court of Andhra Pradesh (1978) 1 SCC 240, it was submitted that a court, while considering application seeking bail, ought not to enter into an in-depth analysis of the case and is also not required to provide lengthy reasons for granting bail. It was stressed upon that once bail is granted it can be cancelled only in rare cases.
Analysis of the Supreme Court
Relying on a catena of judgments on the principles of bail, more particularly, Gobarbhai Naranbhai Singala v. State of Gujarat And Ors. (2008) 3 SCC 775, the Court observed that in similar facts therein, it had noted that the High Court had ignored the general principle for grant of bail in a heinous crime punishable by death or life imprisonment.
Citing Ash Mohammad v. Shiv Raj Singh @ Lalla Bahu And Anr. (2012) 9 SCC 446, the Court noted that the period of custody though relevant had to be juxtaposed with totality of the circumstances.
The Court was of the view that while considering an application for grant of bail, the facts suggestive of the nature of the crime, the criminal antecedents and nature of punishment ought to be looked into. Furthermore, it observed that in order to grant bail, the Court is required to form a prima facie opinion in that regard, supported by reason, in view of the factual context of the matter.
"…a balance would have to be struck between the nature of the allegations made against the accused; severity of the punishment if the allegations are proved beyond reasonable doubt and would result in a conviction; reasonable apprehension of the witnesses being influenced by the accused; tampering of the evidence; the frivolity in the case of the prosecution; criminal antecedents of the accused; and a prima facie satisfaction of the Court in support of the charge against the accused."
To consider the contention of the appellant that bail was granted by a cryptic order without assigning any cogent reason, the Court referred to Kranti Associates Private Limited And Anr. v. Masood Ahmed Khan And Ors. (2010) 9 SCC 496 and the principles culled out therein to opine that reason is the soul of the law, and when the reason of any particular law ceases, so does the law itself.
"Thus, while elaborating reasons may not be assigned for grant of bail, at the same time an order de hors reasoning or bereft of the relevant reasons cannot result in grant of bail. It would be only a non speaking order which is an instance of violation of principles of natural justice. In such a case the prosecution or the informant has a right to assail the order before a higher forum."
[Case Title: Brijmani Devi v. Pappu Kumar And Anr. SLP (Crl) No. 6335 of 2021]
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Heard learned counsel for the parties at length.
Leave granted.
The short question, on which the present appeal
has been preferred, is that the High Court, vide its
impugned Judgment dated 25.08.2017, reduced the
compensation payable to the appellant(s) – claimants
whose son had suffered fatal injuries and passed away
on account of a motorcycle accident.
The Tribunal, in the first instance, had rejected
the claim that the deceased was earning ₹ 10,000/-
per month and had arrived at the figure of ₹ 3,683/-
per month, on the basis of which, compensation was
directed, after holding that the appropriate
multiplier was 18.
Aggrieved, the Insurer approached the High Court,
which in its impugned Judgment, reduced the
Digitally signed by
Reason: multiplier to 9 having regarding the age of the
surviving mother, who was the deceased’s dependent.
This has been taken exception to by the appellants.
In addition, it has been urged that the High Court
overlooked the five-Judge Bench decision of this
Court in National Insurance Company Ltd. Vs. Pranay
Sethi & Ors. reported in (2017) 16 SCC 680, in terms
of which, the claimants were also entitled to
enhanced future prospects while calculating the
quantum of compensation.
Having heard learned counsel for the parties,
this Court is of the opinion that on the issue of
multiplier, the approach of the High Court was
incorrect; it cannot be sustained, having regard to
the three-Judge Bench decision of this Court in M/s
Mandala Yadagari Gour & Ors. in (2019) 5 SCC 554,
wherein it was observed as under :-
“16. In view of the Judgment delivered
today in Civil Appeal No. 6600 of 2015
titled as “Royal Sundaram Alliance
Goud, opining that it is the age of the
deceased and not such of the dependents
in case of the death of a bachelor which
is to be the basis for the multiplier,
this appeal is also liable to be
dismissed as this is the only plea urged.
Pending application, if any, stands
disposed of.
17. In view of the Judgment delivered
today in Civil Appeal No. 6600 of 2015
titled as Royal Sundaram Alliance Co.
Ltd. V. Mandala Yadagari Goud, the
multiplier in the present case will be
16, and not as per the impugned order,
based on the age of the deceased……….
As a consequence, the impugned order of the High
Court to the extent it reduced the multiplier, is
hereby set aside. The order of the Tribunal is,
consequently, restored on this score.
On the second aspect, the High Court again fell
into an error in denying enhancement of compensation
on account of future prospects. The Judgment is
Pranay Sethi (Supra) is clear on this aspect; since
the appellant was working in the informal sector, the
appropriate standard would be 40% of the compensation
determined. Consequently, it is hereby directed that
the additional compensation on account of future
prospects would be worked at 40% of the basic amount
i.e. ₹ 4,107/- per month.
In view of the forgoing discussion, the impugned
order passed by the High Court is set aside. The
order of the Tribunal is hereby restored as far as
the multiplier is concerned; it shall be 18. So far
as the question of additional quantum on account of
future prospects is concerned, the appellant shall
be entitled to 40% on that score, on the basic amount
of ₹ 4,107/- per month. The other directions of
payment of interest etc. are left undisturbed and in
accordance with the order of the Tribunal. The
appeals are allowed in terms thereof.
There shall be no order as to costs.
SPECIAL LEAVE PETITION (CIVIL) Nos. 20035-20036 of 2019
(Arising out of impugned final judgment and order dated 25-08-2017
in MACA No. 546/2015 and MACA No. 1148/2014 passed by the High
Date : 29-09-2022 These appeals were called on for hearing today.
UPON hearing the counsel the Court made the following
Leave granted.
The Civil Appeals are allowed in terms of the signed order.
Pending interlocutory application(s), if any, is/are disposed
(Signed order is placed on the file)
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The Supreme Court held that the age of the deceased and not the age of the dependents in case of the death of a bachelor is to be the basis for multiplier. The order was passed by a bench comprising Justice Ravindra Bhat and Justice Sudhanshu Dhulia.
The issue at hand concerned a High Court judgement which had reduced the compensation payable to the appellant(s)–claimants whose son had suffered fatal injuries and passed away on account of a motorcycle accident. In the first instance, the tribunal had arrived at the figure of Rs. 3,683/- per month, on the basis of which, compensation was directed, after holding that the appropriate multiplier was 18. However, against this order of the tribunal, the Insurer had approached the High Court, which in its impugned Judgment, reduced the multiplier to 9 having regarding the age of the surviving mother, who was the deceased's dependent.
It was against this judgement, the appellant-claimants approached the Supreme Court. It was urged that the High Court had overlooked the five-Judge Bench decision of this Court in National Insurance Company Ltd. Vs. Pranay Sethi & Ors., in terms of which, the claimants were also entitled to enhanced future prospects while calculating the quantum of compensation.
Here, the court found that it was the age of the deceased and not such of the dependents in case of the death of a bachelor which was to be the basis for the multiplier. The court also opined that the High Court had fell into an error in denying enhancement of compensation on account of future prospects. The order noted–
"Since the appellant was working in the informal sector, the appropriate standard would be 40% of the compensation determined. Consequently, it is hereby directed that the additional compensation on account of future prospects would be worked at 40% of the basic amount i.e. ₹ 4,107/- per month. In view of the forgoing discussion, the impugned order passed by the High Court is set aside. The order of the Tribunal is hereby restored as far as the multiplier is concerned; it shall be 18. So far as the question of additional quantum on account of future prospects is concerned, the appellant shall be entitled to 40% on that score, on the basic amount of ₹ 4,107/- per month. The other directions of payment of interest etc. are left undisturbed and in accordance with the order of the Tribunal."
Case Title : Giasi Ram and another versus ICICI Lombard General Insurance Co and others
Motor Vehicles Act 1988 - Motor accident compensation - the age of the deceased and not the age of the dependents in case of the death of a bachelor is to be the basis for multiplier
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1. The Petitioner, who is an Additional Director General (Electrical &
Mechanical) [„ADG (E&M)] in the Central Public Works Department
(„CPWD‟), has filed the present petition challenging the order of the Central
Administrative Tribunal („CAT‟) dated 22nd November, 2018 in OA No.2350/
2018, filed by the Petitioner. Respondent No. 1 is the Union of India through
the Secretary, Ministry of Housing and Urban Affairs, Respondent No.2 is the
Director General, Ministry of Housing and Urban Affairs and Respondent No.
3 is the Union Public Services Commission („UPSC‟).
2. By the above impugned order, the CAT rejected the Petitioner‟s prayer for
setting aside the decision of the Departmental Promotion Committee („DPC‟)
dated 4th December, 2017, whereby the Petitioner was declared „unfit‟ for
promotion to the post of Special Director General (Electricity & Mechanical)
3. The background facts are that the Petitioner joined as an Assistant Executive
Engineer (E&M) in 1983. He was able to secure timely promotions, and in
2012, got promoted as Chief Engineer. On 6th August, 2014 the Petitioner was
communicated his Annual Performance Appraisal Report („APAR‟) for the
period between 13th June, 2013 and 31st March, 2014. In the APAR for the said
period, the Petitioner was given zero points against Column No. 3.1 (ii) and a
grading of 5.63 by the Reviewing Authority („RA‟). The Reporting Officer
(„RO‟), on the other hand, gave the Petitioner 7 points in the aforementioned
column and awarded him a grading of 7. The Accepting Authority („AA‟) gave
the Petitioner a grading of 5 points. Based on the said grade points the
Petitioner was awarded an overall grading of „Good‟, which was a below
benchmark grading.
4. Aggrieved by the above grading, the Petitioner submitted a representation
dated 14th August, 2014 to the Deputy Director (Admn-II), Director General,
CPWD. By an order dated 13th February, 2015, the Minister of Urban
Development, who was the Competent Authority („CA‟), upgraded the
Petitioner‟s APAR to „Very Good‟ by awarding him 6.57 grade points.
5. In its meeting on 18th December, 2015, the DPC considered officers for
promotion to the post of ADG (E&M) and the Petitioner‟s name was
recommended. Based on the DPC‟s recommendation, an Office Order dated 1 st
April, 2016 was issued promoting the Petitioner to the post of ADG (E&M).
6. In the DPC meeting convened on 4th December, 2017, the Petitioner‟s case
for promotion to the post of SDG (E&M) against the vacancy year 2018, was
considered. The DPC found the Petitioner to be „unfit‟ for promotion to the
“While examining the APAR for the year-2013-14 (from
13.06.2013 to 31.03;2014) the Committee noted that the Reporting
Officer has given 7,00 numerical grading and the Reviewing
Officer has given final, grading 5.63, while the Accepting
Authority has given 5.00 numerical grading. The Committee also
went through the letter-dated 13.02.2015 by which the grade-
point has been raised to 6.57 by the Competent Authority. The
remarks or attributes recorded in various columns of the APAR
also do not commensurate with the overall grading. The
Committee, therefore, took a conscious decision to grade the
officer for the year 2013-14 as “Good” only. Based on this, the
Committee assessed Shri Avtar Singh Arora as unfit for promotion
to the post of Special Director General (Electrical & Mechanical)
in the Central Public Works Department, Ministry of Housing &
Urban Affairs for the vacancy year 2018.”
7. Aggrieved by the above decision reached by the DPC in its meeting on 4 th
December 2017, the Petitioner submitted a representation to the Minister of
State, Ministry of Housing and Urban Affairs urging that a Review DPC be
conducted to revise his APAR to „Very Good‟, and consider his case for
promotion to SDG (E&M).
8. On 31st May, 2018 the Petitioner filed an RTI under the Right to Information
Act, 2005 enquiring about the decision in connection with the aforesaid
representation. In a response dated 1st June, 2018, the Petitioner received the
office notings in relation to his representation. It is stated that ultimately the
Petitioner‟s representation came to be rejected. He then filed O.A. No. 2350/
2018 before the CAT challenging the minutes of the DPC convened on 4 th
9. The stand taken by the Petitioner before the CAT is identical to his
averments in the present writ petition. The Respondents filed short counter-
affidavits in response to the Petitioner‟s O.A., placing reliance on OMs issued
by the DoPT dated 10th April, 1989 and 9th May, 2014 in respect of the
functioning of DPCs to contend that DPCs enjoyed full discretion to arrive at a
determination of a candidate‟s suitability for promotion to a higher post.
Respondent No. 3 also sought to contend the reliance by the Petitioner on the
decision of the Supreme Court in Abhijeet Ghosh Dastidar v. Union of India
and Ors. (2009) 16 SCC 146, was misplaced since the APAR for 2013 - 14 had
been duly communicated to the Petitioner. The rejoinder filed by the Petitioner
herein largely reiterated his stand in the O.A.
10. The said impugned order of the CAT placed reliance on paragraph 5 of the
OM dated 9th May, 2014 issued by the DoPT. In dismissing the O.A. filed by
“9. In this regard, it needs to be observed that the higher the
level of the post under consideration by the DPC, the closer
would be the scrutiny of the APARs. The persons to be selected
to hold the posts at higher level are required to be of high
accomplishments, and unstinted integrity. Seniority and average
performance alone will not do. The instructions are to the effect
that even where the APARs are consistently 'Very Good' for the
period in question, the other attributes of the Officer, having a
bearing on his suitability to the post, need to be examined. The
scrutiny is required to be much more where the APAR of any
year for the period in question has been upgraded by the
competent authority.”
11. After noting that it was not necessary for the CAT to refer to the details of
the evaluation made by the DPC, the CAT observed that both the RA and the
AA had “furnished cogent reasons in support of their conclusions”, in contrast
to the failure of the RO “to present a pen picture of the officer under
consideration” as per the instructions noted in the proforma document of the
APAR. The CAT also held that the judgments of this Court dated 4 th August,
2014 in W.P.(C) 7423/2013 (Govt. of NCT of Delhi v. Rakesh Beniwal) and
22nd August, 2016 in W.P.(C) 1050/2015 (Union of India v. Amiya Kumar
Jena) did not apply to the instant case.
12. On 5th December, 2018, when this petition was first listed, the Court passed
“1. The petitioner has preferred the present writ petition to assail
the order dated 02.11.2018 passed by the Central Administrative
Tribunal (CAT) in OA No. 2350/2018.
2. The Tribunal had rejected the said OA of the petitioner wherein,
the petitioner assailed his non-selection as Special Director
General (E&M) in CPWD. For the said post, DPC was held on
04.12.2017. The rejection of the petitioner‟s candidature was on
account of DPC finding that the upgradation of the APAR of the
petitioner for the year 2013-14 by the competent authority i.e.
Hon‟ble Minister was not justified and on the basis of the record,
the said upgradation from “Good” to “Very Good” was not made
out. The minutes of the DPC in so far as they are relevant are as
“7. Attention of the Committee was also invited to the
instructions contained in DOP&T O.M. No. 35034/97-
Estt(D) dated 08.02.2002, which provide inter-alia that
assessed for promotion with reference to the prescribed
benchmark and accordingly grade the officers as “Fit”
or “Unfit”. Only those who are graded “Fit” (i.e. who
meet the prescribed benchmark) by the DPC shall be
included and arranged in the select panel in order of
their inter-se seniority in the feeder grade. Those
prescribed benchmark) by the DPC shall not be included
in the select panel. Thus, there shall be no supersession
in promotion among those who are graded “Fit” (in
terms of the prescribed benchmark) by the DPC.
(from 13.06.2013 to 31.03.2014) the Committee noted
that the Reporting Officer has given 7.00 numerical
grading and the Reviewing Officer has given final
grading 5.63, while the Accepting Authority has given
5.00 numerical grading. The Committee also went
through the letter dated 13.02.2015 by which the grade
justifiable reasons for upgrading the said APAR has
been specified. The office records also do not present
any acceptable reasons warranting to assert the
upgradation made by the Competent Authority. The
remarks / attributes recorded in various columns of the
grading. The Committee, therefore, took a conscious
decision to grade the officer for the year 2013-14 as
“Good” only. Based on this, the Committee assessed
Shri Avtar Singh Arora as „Unfit‟ for promotion to the
Mechanical) in the Central Public Works Department,
Ministry of Housing & Urban Affairs for the vacancy
year 2018.”
3. The submission of Mr. Bhardwaj, firstly, is that the petitioner
was promoted to the post of Addl. Director General in the year
2015 by the same DPC. The constitution of the DPC qua
consideration of promotion to the post of Addl. Director General
and Special Director General is the same namely, the Chairman or
Member, UPSC, who acts as Chairman; Secretary, Ministry of
Housing & Urban Development Affairs, who acts as Member;
and, Director General, CPWD, who acts as second Member. The
submission of Mr. Bhardwaj is that the case of the petitioner was
considered by the same DPC for promotion to the post of Addl.
Director General and the said DPC did not raise any issue with
regard to the upgradation of the petitioner‟s APAR for the year
2013-14 (June, 3014 to March, 2014) by the competent authority
from “Good” to “Very Good” on the basis of his representation.
His submission is that the same DPC could not have taken a
different view while considering his promotion to the post of
4. In so far as this submission is concerned, we do not find any
merit in the same. Consideration by the DPC of the petitioner‟s
case for promotion to the post of Spl. Director General was a fresh
consideration. If this submission of the petitioner was to be
accepted, there was no need to hold a fresh DPC and, merely, the
ACRs for the period after the petitioner became the Addl. Director
General need have been considered. However, that is not the
position. The entire service record of the petitioner and other
candidates was required to be considered by the DPC and was,
accordingly, considered. Moreover, the present consideration by
the DPC was for a still higher post, namely, Spl. Director General
and therefore, the DPC was entitled to have a fresh look into the
matter. There is no question of binding the present DPC with its
view taken earlier, inter alia, in respect of ACR for the period
5. The next submission of Mr. Bhardwaj is that in terms of OM
dated 09.05.2014, it was imperative for the DPC to consider the
entire record, including the representation made by the petitioner
for upgradation of his APAR for the year 2013-14.
6. In the present case, for the relevant period i.e. June, 2013 to
March, 2014, the petitioner had been assessed as “7” on a scale of
1 to 10 by the reporting officer in respect of the attribute namely
“extent of accomplishment of planned work”, “accomplishment of
other additional assignment/initiative undertaken”, “quality of
work output” and “overall grading of work output”. The reviewing
authority had however, assessed the petitioner at “0” in respect of
“accomplishment of other additional assignment/initiative
undertake”; “Quality of work output” was assed at “6”; and,
“overall grading of work output” was assed at “4.33”. The
accepting authority had accepted the assessment made by the
reviewing authority and consequently, the petitioner was graded as
“Good” even though, the reporting officer had assessed him as
“Very Good”. The petitioner had made his representation and on
the said representation, the comments of the reporting authority,
reviewing authority and accepting authority were also called for.
Eventually, it appears that the case was put up before the
competent authority i.e. Hon‟ble Minister of Housing & Urban
Development Affairs at the relevant time and his noting while the
accepting the representation of the petitioner reads, as follows:
“I have gone through the representation submitted by
c) There are three Chief Engineer level officers at
Training institute i.e. CE (Civil), CE (Elect) and
assigned the additional work of “Administration”
to any of the 3 officers. This work was in addition
domain area.
Keeping above in mind, the plea of the officer that he
took additional responsibility is allowed and his grade
point is raised to 6.57”
7. The DPC has, however, recorded in its minutes that the
committee went through the letter dated 13.02.2015, which was
written by the Hon‟ble Minister accepting the representation of the
petitioner and his grading was raised to “6.57”. The DPC has
observed that it found no valid reasons for upgrading the APAR. It
also observed that initial records also do not present any
acceptable reason warranting the upgradation made by the
Competent Authority and that, remarks/attributes recorded in
various columns of APAR were also not commensurate with the
overall grading. The committee took the conscious decision to
grade the petitioner for the year 2013-14 “Good” only.
Consequently, the petitioner was found to be unfit for the post of
Spl. Director General (C&M) in CPWD by the DPC.
8. In the light of the procedure laid down in OM dated 09.03.2018,
it was obligatory for the DPC to make assessment based on the
entries in APAR and other material “including the representation
of the Govt. servant”.
9. The only aspect, which in our view, needs consideration is
whether the representation of the petitioner and the response of the
reporting officer, reviewing officer and the accepting officer were
placed before the DPC, when it arrived at its decision to find the
petitioner unfit. Limited to this aspect, issue notice. Mr. Bhardwaj
accepts notice on behalf of respondent nos. 1 and 2. Mr. Kaushik
accepts notice on behalf of respondent no.3.
10. The respondents shall file a short affidavit on the aforesaid
aspect within one week, specifically disclosing whether the
representation of the petitioner for upgradation of his APAR for
the year 2013-14 along with the comments of the reporting officer,
reviewing officer and accepting officer were placed before DPC.
The said affidavit shall be filed by the respondent nos. 1 and 2
along with the relevant record/communications. Mr. Bhardwaj
shall provide a complete paper book to the learned counsel for the
respondents during the course of the day.
11. List on 18th December, 2018.
12. Any promotion made shall be subject to further orders by this
13. By order dated 4th November, 2019 the interim order comprised in the order
dated 5th December, 2018 reproduced hereinabove was made absolute during
the pendency of the writ petition.
14. The Respondents have filed a compliance affidavit in pursuance of the
order dated 5th December, 2018. The Court has perused the records annexed
thereto. It would appear that while the material placed before the DPC did
include the representation dated 14th August, 2014 made by the Petitioner to the
DG, CPWD, by the Respondents‟ own admission at paragraph 8:
“… comments of Reporting Officer, Reviewing Officer and
Accepting officer were not placed before DPC separately, but
the gist of comments of reporting and reviewing officers were
mentioned …”
15. Moreover, the compliance affidavit states at paragraph 9 as under:
“… comments of the Accepting authority were not sought as the
Accepting authority had retired on reaching the age of
superannuation when this case was being dealt with.”
16. Even a perusal of the aforesaid “gist of comments”, which have been
extracted in the compliance affidavit of the Respondents, reveals that the said
comments merely reiterate the stands taken by the RO and the RO in the APAR
for the relevant time period.
17. At this juncture, the OM dated 9th May, 2014 of the DoPT must be taken
note of. The said OM, at paragraph 5, notes as under:
“5. It is reiterated that in discharge of its statutory functions the
respective DPCs are required to determine the merits of those
being considered for promotion with reference to the prescribed
bench-mark, by making its own assessment, on the basis of the
entries and gradings contained in the APARs and other relevant
material facts placed before it, and accordingly grade the
officers as 'fit' or 'unfit'. Relevant material would inter alia
include the orders of the competent authority on the
representation of the Government servant on the entries/
grading in APAR. In the event of the DPC deciding not to take
cognisance of such an order, on the ground that the same is not
a speaking order, the DPC shall make its assessment based on
the entries in APAR and other material including the
representation of the Government servant. The DPCs should
substantiate its assessment by giving justifiable and sustainable
reasons including the cases where the assessment of the DPC is
different from the grading in APAR (original or amended after
representation by the Government servant).”
18. It is on the basis of the said OM that this Court ordered notice to issue in
the present petition on the limited question of whether the representation of the
Petitioner for upgradation of APAR for the relevant period and the comments
of the RO, RA, and AA had been considered by the DPC, as has been
reproduced hereinabove.
19. As is evident for the discussion above, the said question must be answered
in the negative. In Union of India v. S. P. Nayyar (2014) 14 SCC 370, the
“12. It is settled that the High Court under Article 226 of the
Constitution of India cannot sit in appeal over the assessment
made by the DPC. If the assessment made by the DPC is
perverse or is not based on record or proper record has not been
considered by the DPC, it is always open to the High Court
Under Article 226 of the Constitution to remit the matter back
to the DPC for recommendation, but the High Court cannot
assess the merit on its own, on perusal of the service record of
one or the other employee.”
20. As noted hereinbefore, the Respondents admit that the entire record, i.e. the
comments of the RO, RA, and AA had not been made available to the DPC.
Therefore, for this reason alone, the decision of the DPC dated 4 th December,
2017 is liable to be set aside.
21. Be that as it may, the said impugned decision of the DPC also falls afoul of
paragraph 5 of the said OM dated 9th May, 2014 for failing to “substantiate its
assessment by giving justifiable and sustainable reasons”, in view of the fact
that it decided not to take into account the upgradation of the Petitioner‟s
APAR for the relevant period.
22. On behalf of the UPSC reliance is placed on the decisions in Union Public
Service Commission v. Hiranyalal Dev AIR 1988 SC 1069; U. P. S. C. v. K.
Rajaiah (2005) 10 SCC 15 and Union Public Service Commission v. M.
Sathiya Priya (2018) 15 SCC 796. It was urged that the DPC was not bound to
record the reasons for its decision to downgrade the Petitioner to „good‟ for the
23. This Court has carefully examined each of the above decisions. The legal
position as explained in U. P. S. C. v. K. Rajaiah (supra), is that “for good
reasons, the Selection Committee can evolve its own classification which may
be at variance with the gradation given in the ACRs.” The following passage
“6. We cannot also endorse the view taken by the High Court that
consistent with the principle of fair play, the Selection Committee
ought to have recorded reasons while giving a lesser grading to the
1st respondent The High Court relied on the decision of this Court
in National Institute of Mental Health & Neuro Sciences v. Dr. K.
Kalyana Raman and Ors. Far from supporting the view taken by
the High Court, the said decision laid down the proposition that
the function of the Selection Committee being administrative in
nature, it is under no obligation to record the reasons for its
decision when there is no rule or regulation obligating the
Selection Committee to record the reasons. This Court then
observed "even the principles of natural justice do not require an
administrative authority or a Selection Committee or an Examiner
to record reasons for the selection or non selection of the person in
the absence of statutory requirement. This principle has been
stated by this Court in R.S. Das v. Union of India." In the next
paragraph, the learned Judges indicated as to what is expected of
the Selection Committee, in the following words:
"...we may state at the outset that giving of reasons for
decision is different from, and in principle distinct from
the requirements of procedural fairness. The procedural
fairness is the main requirement in the administrative
action. The 'fairness' or 'fair procedure' in the
administration action ought to be observed. The
Selection Committee cannot be an exception to this
principle. It must take a decision reasonably without
being guided by extraneous or irrelevant consideration.
But there is nothing on record to suggest that the
Selection Committee did anything to the contrary..."
24. In Union Public Service Commission v. M. Sathiya Priya (supra), the
above principles were reiterated and it was held that “the recommendations of
the Selection Committee cannot be challenged except on the ground of mala
fides or serious violation of the statutory rules.”
25. What emerges from the above decision is that while a Selection Committee
need not record reasons as a broad principle, it is „desirable‟ that it does if it
disagrees with the ACR grading. Further, if there is a statutory requirement that
it should do so, then the Committee would be obliged to. Another important
aspect is that it must act without malice and not be guided by „extraneous or
irrelevant considerations.” As a corollary, material that was relevant for its
decision also cannot be overlooked.
26. In the case in hand, the limited scope of enquiry by this Court was to
examine if there was a departure from the procedure laid down in OM dated 9th
May, 2014 which makes it obligatory for the DPC to make assessment based
on the entries in APAR and other material “including the representation of the
Govt. servant”. It specifically states that “the DPC should substantiate its
assessment by giving justifiable and sustainable reasons including the cases
where the assessment of the DPC is different from the grading in APAR
(original or amended after representation by the Government servant).”
27. In its order dated 5th December 2018, this Court made it clear that “the only
aspect, which in our view, needs consideration is whether the representation of
the petitioner and the response of the reporting officer, reviewing officer and
the accepting officer were placed before the DPC, when it arrived at its
decision to find the petitioner unfit.” There has, as already noticed, a procedural
departure on both counts.
28. It is seen from the order of the CA that there were clear reasons for the
decision to upgrade the Petitioner‟s grading. Specifically, the Petitioner‟s plea
in his representation dated 14th August, 2014 in relation to taking on additional
responsibility was considered and it was noted as under:
“There are three Chief Engineer level officers at Training
Institute- i.e. CE (Civil), CE (Elect.), CA(Trg), ADG (Trg) could
have assigned the additional work of “Administration” to any of
the 3 officers. This work was in addition to the regular work of
providing training in domain area.
The competent authority has decided to allow the plea of the
officer that he took additional responsibility. Accordingly, his
grade point is raised to 6.57.”
29. The CA having recorded the above reason for increasing for Petitioner‟s
grade points, it was incumbent upon the DPC to supply reasons for differing
with it in this regard.
30. The third and important aspect of the matter is that the DPC which was to
assess the suitability of the Petitioner for promotion as SDG took upon itself
the task of rewriting his APAR grading for 2013-14, when the grading of „very
good‟ given for that year had been acted upon and he had been promoted as
ADG. It was not open to the DPC to downgrade the officer for the year 2013-
14 as “Good” only and on that basis assess the Petitioner as „Unfit‟ for
promotion to the post of SDG (E&M) in the CPWD. While it was possible to
the DPC to take a view on an overall assessment of the Petitioner, as per his
APAR‟s as they existed, it was not within its domain at that stage to
downgrade his APAR for a previous year which has already been acted upon
and on that basis find him „unfit‟. This would amount to a suo-motu reviewing
of a grading of a previous year on the basis of which the Petitioner had already
been promoted as ADG.
31. In that view of the matter, the Court sets aside the impugned decision of the
DPC, and the order of the CAT dismissing the Petitioner‟s O.A. The Court
directs that a Review DPC be convened for consideration of the Petitioner for
promotion as SDG (E&M) in the CPWD as on the date of the original DPC on
the basis of the APARs as they stood on that date i.e. with no change to the
Petitioner‟s grading for that year or any previous year. If the Petitioner is
thereby found fit, he should be promoted as SDG with a notional back date of
the promotion and fixation of pay but with no requirement of payment of
arrears. This exercise be completed within a period of twelve weeks from
today. If the Petitioner is aggrieved by any part of the consequential orders, it
will be open to him to seek appropriate remedies in accordance with law.
32. The writ petition is allowed in the above terms, but in the circumstance, no
order as to costs.
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On Friday, the Supreme Court found no fault with the view taken by the Delhi High Court, that it is not within the domain of the Departmental Promotion Committee (DPC) to downgrade the Annual Performance Appraisal Report (APAR) for a previous year that had already been acted upon. The Apex Court observed that the DPC couldn't have downgraded the officer without putting him on notice,...
On Friday, the Supreme Court found no fault with the view taken by the Delhi High Court, that it is not within the domain of the Departmental Promotion Committee (DPC) to downgrade the Annual Performance Appraisal Report (APAR) for a previous year that had already been acted upon. The Apex Court observed that the DPC couldn't have downgraded the officer without putting him on notice, when the concerned authority had recorded reasons for upgrading him.
A bench comprising Justices Sanjay Kishan Kaul and M.M. Sundresh dismissed a Petition filed by the Union Public Service Commission (UPSC) assailing a 2019 order of the Delhi High Court directing a review DPC for consideration of Avtar Singh Arora's (Respondent No.1) promotion to the post of Special Director General (Electricity & Mechanical) in the Central Public Works Department.
Factual Background
The Respondent No. 1 joined as an Assistant Executive Engineer (E&M) in 1983. On 6th August, 2014 the Respondent No. 1 was communicated his APAR for the period between 13th June, 2013 and 31st March, 2014. In the APAR for the said period, the Respondent No. 1 was given zero points against Column No. 3.1 (ii) and a grading of 5.63 by the Reviewing Authority, 7 points in the aforesaid column and overall 7 was rewarded by the Reporting Officer. The Accepting Authority gave the Respondent No.1 a grading of 5 points. Overall grading of the Respondent No.1 was "Good", which was a below benchmark grading. He submitted a representation to the Minister of Urban Development and his grade was revised to "Very Good" by awarding him 6.57 grade points. Consequently, he was promoted to the post of ADG (E&M).
In December, 2017, when the DPC was considering his promotion to the post of SDG (E&M) against the vacancy year 2018, it found him unfit based on the initial rating of 5 points in the assessment of 2013-14. The Respondent submitted a representation to the concerned authority, seeking a review DPC, which was eventually rejected. Aggrieved, the Respondent No. 1 approached the Central Administrative Tribunal (CAT) to set aside the decision of DPC. CAT dismissed the application and the matter went to the Delhi High Court. The High Court acknowledged that there was a limited scope for judicial review in the matter.
"...the only aspect, which in our view, needs consideration is whether the representation of the petitioner and the response of the reporting officer, reviewing officer and the accepting officer were placed before the DPC, when it arrived at its decision to find the petitioner unfit."
Observing that there were clear reasons cited by the concerned authority for upgrading the Respondent No. 1, in 2014, the High Court noted that it was therefore incumbent on the DPC to provide reasons for differing in their view. Moreover referring to OM dated 9th May, 2014, the Court stated -
"It specifically states that "the DPC should substantiate its assessment by giving justifiable and sustainable reasons including the cases where the assessment of the DPC is different from the grading in APAR."
Finally, considering the assessment of DPC was in the nature of suo-motu review of a grading of a previous year on the basis of which the Respondent had already been promoted as ADG, the High Court directed a review DPC.
Proceeding before the Supreme Court
At the outset, Advocate Mr. Naresh Kaushik appearing on behalf of UPSC, apprised the Supreme Court that the High Court had not considered a crucial aspect in the matter. He submitted -
"A very crucial factor has been ignored by the Hon'ble High Court. This Court had laid down that assessment by expert bodies need not be interfered with by judicial bodies."
The Bench retorted that the High Court had merely pointed out that the requisite material was not placed before DPC.
"As I understand, the High Court says that the material should have been placed. That's all."
Mr. Kaushik informed the Court that all relevant material was placed before DPC.
"That was placed. That has not been considered."
Explaining the limited scope of the order of the High Court, the Bench stated that the High Court had not directed him to be promoted, but to review his candidature based on all material.
"The High Court has not directed his promotion, it has only directed a review to consider the material that was not placed before it."
Mr. Kaushik insisted that the concerned material was before the DPC.
"It was placed before the DPC. If you peruse the minutes of DPC it would be clear."
The Bench felt that UPSC had ample time to approach the High Court in review, if it was so certain that the Court had not considered the aforementioned aspect.
"You are coming against a judgment decided in 2019, in which case at that point in time filed the review that there was some material…I am not on delay. I am saying that the time period between the judgment, if you felt some material before the court had not been examined, was the time to file a review application."
Mr. Kaushik asserted that his written synopsis before the High Court clearly indicated that the material was before DPC. Moreso, the minutes of the review DPC also indicated the same.
"Milords, kindly consider, if your lordships feel we can go back to the High Court even now. It was pointed out. My written synopsis clearly indicates that. The minutes of the review DPC which was before the Hon'ble Court themselves reflect."
The Bench asked Mr. Kaushik to show from the documents, the fact that the material was indeed placed for consideration of the Court -
"According to the High Court, what you were required to place before the Committee was the initial ACR, representation of the Respondent and the upgradation document. Please show us that this was placed."
Responding to the Bench's query, Mr. Kaushik read from the DPC order.
The Bench enquired if the representation pursuant to which the upgradation of the Respondent No. 1 took place in 2014 was also before the DPC.
"The only thing therefore is the representation which was made by the Respondent pursuant to which upgradation took place was it also placed or not placed."
Mr. Kaushik submitted, "It was placed."
The Bench pointed out that the view taken by the HC that the DPC ought to have given reason for taking a different view from the competent authority who had upgraded the Respondent No. 1, was a valid one.
"The High Court has said that ..you should have put the officer on notice because it has a cascading effect. So, now you are not considering him for a promotional post. It has a civil consequence and you should have put him on notice. What is wrong with this view?"
Mr. Kaushik argued that it was contrary to the principles laid down by the Supreme Court.
The Bench emphasised that if a different view was taken by DPC, then the Respondent No. 1 had to be put on notice of the same.
"No, Mr. Kaushik you are wrong because you are going on the basis that the report is not binding, maybe so, maybe the upgradation is not binding, but if you do not accept upgradation then you have to put him on notice. That is the point."
Mr. Kaushik submitted that, "The assessment of the officer for promotion is not a process where the principles of natural justice are attracted."
The Bench pressed on the issue of putting the Respondent No. 1 on notice.
"Are you saying, if the upgradation takes place, he knows, it is an upgradation, you can ignore the upgradation without informing him?"
Mr. Kaushik responded, "No, Milords. It is not lowering the upgradation."
Referring to the judgment of the High Court, the Bench noted -
"The High Court says that the CA [Competent Authority] having recorded the above reason for increasing for Petitioner‟s grade points, it was incumbent upon the DPC to supply reasons for differing with it in this regard."
Mr. Kaushik argued that the DPC had given reasons why the upgradation was not justified.
"Reasons are not to the letter to the officer. Kindly see UPSC v. Satyapriya. The reasons have been given by DPC. They say the records do not justify, indicate any reason for upgradation. The particular column was, did he discharge any additional function. The accepting authorities said that this was one of the incidental functions and no additional function has been given."
The Bench noted that if the DPC in an independent decision based on material on record would have found the Respondent No.1 to be 'unfit', then the same would have been acceptable, but the DPC couldn't have downgraded him.
"If you come to an independent decision based on the record that he is not fit to be considered, that is a different issue. But, what you have done is downgraded him."
Mr. Kaushik sought the Court's permission to read the DPC guidelines. Not inclined to permit, the Bench remarked -
"You are not able to convince us for the better part of 10 mins for a notice."
Finding no merit in the matter, the Bench dismissed the same.
[Case Title: Union Public Service Commission v. Avtar Singh Arora And Ors. Dairy No. 10581 of 2021]
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Criminal Appeals No.598600 of 2013 have been
preferred by accused Ajai alias Ajju, Braj Pal and Ravi
respectively. Ajai alias Ajju has since died, as reported
by the learned counsel for both the sides. Accordingly,
Criminal Appeal No.598 of 2013 stands abated. Criminal
Appeal No.337 of 2014 has been preferred by accused
2. The above appeals assail the correctness of the
judgment and order of the High Court dated 22.02.2012
whereby the conviction recorded by the Trial Court under
section 302/149 of the Indian Penal Code1 and other
allied offences, both under the IPC as also the Arms Act,
1959 has been affirmed. However, sentence awarding
death penalty by the Trial Court has been commuted to
life sentence for all the accused. Rest of the sentences
have been maintained.
3. Criminal Appeal Nos.745748 of 2015 have been
preferred by the State of Uttar Pradesh against the above
referred common judgment of the High Court to enhance
the punishment to all the four respondents and award
them death sentence.
4. Prosecution story in brief is that Braj Pal Singh (one
of the accused) made a complaint to the police station at
Muradnagar, District Ghaziabad at about 4.30 AM on
25.08.2007 that early in the morning at around 3.00 AM
he heard the shouting and shrieking of Ms Rashmi,
daughter of his brother Vijay Pal Singh whereupon along
with other villagers he reached the house of his brother
in the neighbourhood only to find that his brother Vijay
Pal Singh, his wife Smt Rajesh were lying on the ground
floor on their cots with their necks cut by sharp edged
weapons, and further, when he went on the upper floor,
he saw Nishant, son of Vijay Pal Singh and also Mangal
Singh, son in law of Vijay Pal Singh also lying dead on
their cots with their necks also cut. Smt Pinky, daughter
of Vijay Pal Singh was also lying on the ground floor in
an injured condition. She was taken to the hospital and
admitted there whereas the deadbodies of the four
deceased persons were lying on the spot where the crime
was committed. After registering the case, the
investigation started.
5. The Investigating Officer recorded the statements of
the two daughters of the deceased Vijay Pal Singh,
namely Ms Rashmi and Smt Pinky (PW1). According to
Smt Pinky and also Ms Rashmi a very shocking sequence
of events were revealed. According to Smt Pinky, there
was enmity of her father with his brother Braj Pal and
son of other brother Indra Pal; further, there was enmity
with their neighbour Mukesh over consuming alcohol.
She further stated that she was sleeping with her parents
on the ground floor. Her sister Ms Rashmi, brotherin
law Mangal Singh, brother Nishant were sleeping on the
upper floors of the house. At about 3.00 AM, she woke
up due to some noise only to see that her neighbour
Mukesh, son of Tungal Singh, Braj Pal Singh, Ravi, Ajai
alias Ajju were assaulting her parents with talwar and
gandasa. Mukesh assaulted her with a sword. She tried
to save herself but then she fell down and lay quietly.
She also narrated that Mukesh was saying ‘Abrar makes
sure that no one is left alive. Kill all of them’ and
thereafter he went upstairs. She continued to lie close to
her mother in a state of fright and shock. They left
thinking that she was also dead. They were also taking
name of one Pramod. Both Abrar and Pramod are from
village Noorpur, which is the inlaw’s place of Mukesh.
They used to regularly come to Mukesh and that she had
seen them earlier. When these assailants left after
assaulting, her sister Ms Rashmi came down from
upstairs only to see that their parents, brother and
husband had been murdered. Both the sisters ran
outside shrieking and shouting, and after some time,
Braj Pal and Mukesh came along with others and they
asked what had happened. They came inside and saw
the entire place of occurrence and asked Smt Pinky if she
had recognised the assailants. Out of fright both Ms
Rashmi and Smt Pinky denied having seen anyone.
Thereafter Mukesh called for the vehicle of Ajai alias Ajju
and they brought them to the hospital. They were also
asking her on the way as to whether she had recognised
any one, to which she had denied. She also requested
the Investigating Officer that both of them have told the
correct sequence but please keep to himself as there is
imminent threat to her life and also to her sister’s life.
After narrating the entire story Smt Pinky (PW1) fell
unconscious. Ms Rashmi, the other daughter of the
deceased has also given a similar statement to the
Investigating Officer, although she was not examined
during trial. After recording the said statements, the
Investigating Officer completed all the formalities, sent
the deadbodies for postmortem, informed the superior
authorities, prepared the sight plan, made necessary
recoveries from the spot.
6. Smt Pinky (PW1) suffered the following injuries as
per the injury report prepared by Dr Rajeev Sharma(PW
2) of the Sarvodaya Hospital, Ghaziabad who had
examined her at 5.25 AM on the same day:
(i) Amputated little & ring finger at level of
proximal crease (R)
(ii) Cut lacerated wound on palmar aspect of
(R) hand 8 cm. x 2 cm. red in colour. 2 cm
distal to palmar crease.
(iii) Cut lacerated wound on front side of
forearm (R) 6 cm. x 2 cm. red in colour
profusely, bleeding, 5 cm. above wrist joint.
(iv) Cut lacerated wound over face extending
from (Lt.) Angle of mouth 5 cm. x 3 cm.
(v) Cut lacerated wound over neck 5 cm. x 1
cm. just above upper crease of neck.
(vi) Cut lacerated wound at base of index and
middle finger on back side 2 cm. x 1 cm. &
2 cm. x 0.5 cm. respectively.
(vii) Cut lacerated wound on (L) ear 3 cm. x 1
cm. red in colour and bleeding.”
Xray of the neck and jaws was also conducted on the
same day and a report to that effect was submitted by
7. Postmortem was conducted in the afternoon on the
same day by Dr K.N.Tiwari (PW4) and the following ante
mortem injuries were reported on the four deceased:
(1)Incised wound over neck lower part anteriorly
and on Rt.side 8 cm. x 4 cm., bone deep, 3
cm. above supractenal notch, soft tissues of
neck including blood vessels and trachea are
cut in the wound.
(2)Incised wound on Lt. side neck lower part 8
cm. below ear 7 cm. x 3 cm. wound in muscle
deep, soft tissue and muscle cut.
Postmortem wound
Three clean cut wounds on right hand dorsum
are present. Sixe 8 cm. x 5 cm., 7 cm. x 4 cm., 3
cm. x 2 cm., 2.3 cm. apart.
(1)Incised wound in upper part of neck on
anterior and sides size 10 cm. x 3 cm. bone
deep, wound is 8 cm. below ear lobule laryux,
hyoid soft tissues and blood vessels are cut in
the wound.
Post mortem wounds (1) clean cut 7 cm x 3 cm.
on dorsum of Rt. Hand, (2) Abrasion 7 cm. x 3
cm. on dorsum of Rt. Hand and 1 cm. x 1 cm.
clean cut over Lt. angle of mouth noted.
(1)Incised wound 25 cm. x 9 cm. on upper part of
neck and lower jaw on anterior and Rt. Side,
wound is reactive upto Vertebrae, Mandible,
soft tissues of neck muscles, Larix, hyoid and
blood vessels are cut in the wound.
(2)Upper part of wound in at level of ear lobule
and oblique, oblique Incised wound on Rt.side
face, from upper lip to ear 11 cm. x 1 cm.
muscle deep.
(1)Incised wound 9 cm. x 2 cm, oblique, Rt. Side
neck reaching upto mid line 6cm. Below ear
muscle deep.
(2)Incised wound 5 m.m. Below injury no.1 on
Rt. Side neck reaching up to midline size
10cm x 8 cm., muscles, Larynx, (thyroid
cartilage and hyoid) vessels are cut in the
wound.”
8. After having recorded the statements of the two
daughters of Vijay Pal Singh, namely Smt Pinky and Ms
Rashmi, the Investigating Officer SubInspector Ram
Babu Saxena (PW9) also noted that mobile number of
the deceased Nishant bearing No.9336780542 was also
not traceable. Later on, the Investigating Officer arrested
Mukesh and Braj Pal Singh. Mukesh after his
confessional statement also got recoveries made on his
pointing out of bloodstained pant, Khukri from his house
which were taken into custody, sealed and memo
prepared. Motor cycle belonging to Abrar, coaccused
was also recovered and taken into custody. Braj Pal
Singh after giving his confessional statement also got a
bloodstained gandasa recovered from his house which
was taken into custody, sealed and memo prepared. On
28.08.2007, coaccused Ravi was arrested and in his
confessional statement, and on his pointing out, a blood
stained Tshirt and a mobile phone LG Reliance bearing
No.9336780542 was also recovered from the house of his
mother’s sister. The same was taken into custody, sealed
and a memo prepared. Ajai alias Ajju was arrested on
4.11.2007 and upon recording his confessional
statement, and on his pointing out, a knife was recovered
from his village hidden near a canal, the said knife was
taken into custody and a recovery memo was prepared.
The recovered articles were sent for forensic examination
to the Vidhi Vigyan Prayogshala, Agra.
9. After completing the investigation, a chargesheet
was filed against the four accused namely, Braj Pal
Singh, Mukesh, Ravi and Ajai alias Ajju. Two separate
cases were registered against Mukesh and Ajai alias Ajju
under sections 4/25 of the Arms Act. In these two FIRs
also a chargesheet was submitted. All the matters were
clubbed together and tried by the Trial Court.
10. The prosecution examined 13 witnesses. They all
supported the prosecution story. All the relevant material
and documents were proved and exhibited.
11. The four accused gave their statements under
section 313 of the Criminal Procedure Code 2 in which
they denied their involvement and alleged that they had
been falsely implicated; they also stated that the recovery
was not at their instance; the witnesses were giving
evidence out of enmity; the accused in defence examined
two witnesses. Dr Islamuddin, a resident doctor in
Sarvoday Hospital was examined as DW1 to prove the
medical papers regarding admission of Smt Pinky in the
hospital Exh. Kha1 to Kha38. Smt Berwati, wife of
Mool Chand, mother of the accused Ajai alias Ajju was
examined as DW2. She stated that her son was arrested
along with Mukesh and Braj Pal, thereafter released and
again after 20 days he was arrested.
12. The Trial Court vide judgment dated 24.09.2009,
after thorough scrutiny and appreciation of the material
evidence on record, came to the conclusion that the
prosecution had successfully brought home the guilt of
the four accused in committing the murder of the four
deceased and attempt to murder of Smt Pinky (PW1)
who were their close relatives and, accordingly, convicted
them under section 302/149 and section 307 of IPC and
other allied offences under IPC and Arms Act, 1959 and
awarded them death sentence and life imprisonment and
other lesser sentences for different offences proved.
13. Appeals were preferred before the High Court by the
accused which were heard along with death reference
forwarded by the Trial Court. Before the High Court, the
appellants Braj Pal, Ajai alias Ajju and Ravi had engaged
separates counsels whereas appellant Mukesh was
provided an amicus curiae from the legal aid. The High
Court, after considering the respective arguments and
the material on record, affirmed the conviction recorded
by the Trial Court of all the offences. However, on the
question of sentence, after discussing the law on the
point and taking into consideration the various other
relevant factors, commuted the death sentence into life
14. Aggrieved by the same, present appellants are before
15. We have heard learned counsel for the parties at
length and also perused not only the record provided by
the learned counsel for the parties but also the Original
Record of the Trial Court.
16. On behalf of the appellants, the arguments
advanced are briefly recorded as follows:
(i) This is a case of solitary eyewitness, namely,
Smt Pinky (PW1), her testimony was that of a
witness related to the deceased and also a
witness having enmity with the appellants and,
therefore, would not be a reliable witness and
ought not to have been relied upon;
(ii) There is no other evidence to corroborate the
testimony of the solitary eyewitness, PW1;
(iii) Smt Pinky (PW1), at the first instance, does not
disclose the names of the assailants to the
villagers and other family members who collected
on her shouting and shrieking nor did she
disclose the names of the assailants at the time
she was admitted to the hospital, therefore, it is
a case of improvement;
(iv) There is evidence to show that a dog squad was
summoned in the morning, as such it was a case
of unknown assailants and that the eyewitness
Smt Pinky had actually not seen any one and
even if she had seen any one, she did not
recognise them. A dog squad would not have
been put into action, in case the names of the
assailants were known; as such this also
suggests improvement;
(v)No explanation as to why Ms Rashmi and
Horam, father of the deceased Vijay Pal Singh,
accused Braj Pal and grandfather of Ravi were
not examined, even though they were there at
the place of occurrence; and
(vi) The statement of Smt Pinky (PW1) was not
recorded before the Magistrate under section 164
CrPC which creates a doubt.
(vii) Learned counsel on behalf of the appellant Ravi
raised an additional argument that Smt Pinky
(PW1) did not take his name before the
Investigating Officer while giving her statement
under section 161 CrPC. According to him, the
name of Ravi has been taken for the firsttime
during trial as an improvement. His client has
been falsely implicated.
(viii)Learned Amicus appearing for appellant
Mukesh has referred to various discrepancies in
the testimony of the witnesses.
17. On the other hand, learned counsel appearing for
the respondent State submitted that the findings
recorded by the Trial Court and the High Court are based
upon a thorough scrutiny and appreciation of the
evidence on record and do not require any interference.
It is further submitted by the learned counsel for the
State that the appellants being close relatives and
neighbours of the deceased, in order to gain property,
settled their score of enmity by committing a ghastly act
of brutally murdering four members of the same family
and also attempting to murder the injured witness Smt
Pinky who had been attacked and assaulted on her neck
and in the act of protecting herself she lost a couple of
fingers of her upper hand. No leniency needs to be shows
to them. The High Court committed an error in
commuting the death sentence to life imprisonment.
Accordingly, the sentence of life imprisonment awarded
by the High Court be set aside and that of the Trial Court
of death sentence be restored.
18. The submissions advanced are being dealt with in
the same sequence. PW1 is an injured witness. Her
injuries have not been challenged. There is no reason
why PW1 would make false implication and allow the
real assailants to go scotfree. A perusal of her testimony
shows that she has fully supported the prosecution story
as narrated by her in her statement under section 161
CrPC. Even during crossexamination nothing has been
elicited from her which in any way may weaken or
demolish her testimony. She was a fully reliable witness
and has stated the things in natural course.
19. The two daughters of the deceased Vijay Pal Singh
having seen the assailants murdering their family
members and also causing injury to one of them i.e. Smt
Pinky (PW1) being close relative rightly and wisely did
not speak out anything in their presence and allowed
them to remain in dark that she had actually seen them
committing the crime. At the first instance, when the
Investigating Officer went to the hospital to record her
statement, they immediately came out with the true
sequence of events as they had happened. The
appellants cannot gain anything out of the above
20. The pressing of the dog squad into service was also
fully justified as till that time when the dog squad was
pressed into service in the morning the names of the
assailants had not been disclosed. The dog squad had
been pressed into service as per the FIR since the names
of the assailants were not known. It is the case of the
prosecution itself that the time when the FIR was lodged
and at the time when Smt Pinky (PW1) was admitted to
the hospital, the names of the assailants had not been
disclosed deliberately and for justifiable reasons. The
daughters of the deceased Vijay Pal Singh needed to
protect their lives otherwise they would also had been
done to death.
21. Nonexamination of Ms Rashmi and Horam, father
of Vijay Pal Singh also has no material bearing. It is the
discretion of the prosecution to lead as much evidence as
is necessary for proving the charge. It is not the quantity
of the witnesses but the quality of witnesses which
matters. Smt Pinky (PW1) was the injured witness
having received grievous and lifethreatening injuries. We
are not impressed by this argument also.
22. Nonexamination of the statement under section 164
CrPC also has no relevance or bearing to the findings and
conclusions arrived at by the courts below. It was for the
Investigating Officer to have got the statement under
section 164 CrPC recorded. If he did not think it
necessary in his wisdom, it cannot have any bearing on
the testimony of PW1 and the other material evidence
led during trial.
23. Insofar as the attempt of the learned counsel for
Ravi is concerned, regarding his name not being taken in
the statement of Smt Pinky under section 161 CrPC, we
are of the view that the same is factually incorrect. This
Court has perused the statement of Smt Pinky and finds
that at two places she has taken the name of Ravi, both
during the assault and otherwise also.
24. Learned Amicus for the appellant Mukesh has tried
to point out several discrepancies and inconsistencies in
the evidence. We need not go into details as the same are
minor and do not have any impact on the findings
recorded by the courts below.
25. For all the reasons recorded above, we do not find
any infirmity in the order of the High Court affirming the
conviction of the appellants. Accordingly, Criminal
Appeal Nos.598600 of 2013 and Criminal Appeal No.
337 of 2014 are liable to be dismissed and are
accordingly dismissed. Insofar as the appeals filed by
the State are concerned for enhancement of sentence, we
find that the High Court has given sound and cogent
reasons for commuting death sentence into life sentence.
Accordingly, the Criminal Appeal Nos.745748 of 2015
also stand dismissed. The appellants are in custody and
they will serve out their sentence.
26. Pending applications, if any, are disposed of.
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"It is not the quantity of the witnesses but the quality of witnesses which matters", observed the Supreme Court while affirming the conviction and sentence of four persons for murder of four persons.
Only one eye-witness was examined in the case. She was one Pinky Singh, whose parents, brother and brother-in-law were murdered by the accused at night over a property dispute. She was also attacked by the accused. The trial court sentenced the four accused, Mukesh, Ajai alias Ajju, Braj Pal and Ravi to death. In appeal, the High Court commuted the death sentence to life imprisonment.
The Supreme Court was considering the appeals filed by the accused and the State which was aggrieved by the commutatin of death sentence. One of the accused, Ajai, died during the pendency of appeal in the Supreme Court.
The primary argument raised by the appellants was that the case was based on the evidence of a solitary witness, who was related to the deceased and had enmity with the appellants. The appellants highlighted that Pinky Singh did not disclose the names of the appellants at the first instance. The FIR was registered against unidentified persons. The appellants also relied on the fact that the statement of Pinky Singh was not recorded by a Magistrate under Section 164 CrPC. Also, two other witnesses who also claimed to be in the house at the time of offence, were not examined.
A bench comprising Justices BR Gavai and Vikram Nath rejected the arguments. The bench accepted the explanation that the witness did not disclose the names of the assailants at the first instance out of fear and that the names were later revealed to the police when she gained confidence. As regards non-examination of other witnesses, the bench said it is immaterial, so long as the evidence of the solitary witness is credible.
"Non-examination of the statement under section 164 CrPC also has no relevance or bearing to the findings and conclusions arrived at by the courts below. It was for theInvestigating Officer to have got the statement under section 164 CrPC recorded. If he did not think it necessary in his wisdom, it cannot have any bearing on the testimony of PW-1 and the other material evidence led during trial", the Court further observed.
Finding no infirmity with the High Court verdict, the Supreme Court dismissed the appeals. The Court also found that that the High Court has given justifiable reasons for commuting the death penalty.
Case Title : Ajai alias Ajju and others vs State of Uttar Pradesh
For Parties Mr. Sanjay Kumar Tyagi, AOR Mr. Rameshwar Prasad Goyal, AOR Mr. Rishi Malhotra, AOR Ms. Deep Shikha Bharati, Adv. (A.C.) Mr. Brijender Chahar, Sr. Adv. Mr. Sarvesh Singh Baghel, AOR Mr. Karan Chahar, Adv. Ms. Pooja Chahar, Adv
Indian Penal Code- Section 302- Murder Trial -Supreme Court affirms sentence and conviction of accused for murder based on solitary eyewitness testimony.
Indian Evidence Act 1872 -It is not the quantity of the witnesses but the quality of witnesses which matters - Para 21
Code of Criminal Procedure 1973- Section 164-Non-examination of the statement under section 164 CrPC also has no relevance or bearing to the findings and conclusions arrived at by the courts below. It was for theInvestigating Officer to have got the statement under section 164 CrPC recorded. If he did not think it necessary in his wisdom, it cannot have any bearing on the testimony of PW-1 and the other material evidence led during trial - Para 22
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2. A claim arising out of injuries caused in a motor accident
that has reached its fruition more than 20 years later before this
Court, which we find extremely distressing. The original claimant
and his wife, both did not survive the ordeal to see the fruits of
the litigation which is now being pursued by their daughter.
claimant was severely injured in a motor accident on 02.05.1999.
He filed a claim for compensation under Section 166(1)(a) of the
Motor Vehicles Act, 1988 (hereinafter referred to as ‘the Act’).
The Motor Accidents Claims Tribunal on 02.11.2006 awarded
him a sum of Rs.1,00,000/ only with 9% interest. Dissatisfied,
the original claimant preferred an appeal before the High Court.
Unfortunately, he was deceased on 06.11.2015 during the
pendency of the appeal, not attributed to the injuries suffered in
the accident. The daughter of the claimant, who was an
unmarried girl aged 21 years at the time of the accident, was
substituted in the appeal. The High Court substantially
enhanced the compensation.
4. Shri H. Chandra Sekhar, learned counsel on behalf of the
appellant, submits that the cause of action being personal to the
injured abates on his death, which was not caused due to the
accident. The legal heir is entitled only to such compensation
which forms part of the estate of the deceased. Loss of salary,
future prospects, pain and suffering along with attendant charges
do not form part of the estate of the deceased. The compensation
could not have been fixed by application of multiplier as it was
not a case of death caused or occasioned by or due to the
accident. The amount awarded by the Tribunal would alone
form part of the estate of the deceased. Reliance in support of
the submissions has been placed on two Full Bench decisions of
the Karnataka High Court in Kanamma vs. Deputy General
Manager, ILR 1990 Karnataka 4300, Uttam Kumar vs. Madhav
vs. Dayaram and Others, 2002(1) MPLJ 249, Pravabati Gosh
and another vs. Gautam Das and others, 2009(4) GLR 64.
The respondent being a married daughter is not entitled to any
claim for any other loss of estate of the deceased as she was not
dependent on the deceased. It is lastly submitted that the High
Court has erred in not deducting 1/3 rd of the compensation
amount towards personal expenses by the deceased.
5. Shri Nikhil Goel, learned counsel on behalf of the
respondent no.1, submits that no deduction towards personal
expenses can be made as the deceased actually incurred
expenses during his lifetime. The deduction is to be made
hypothetically only in a case where death has occurred, relying
on Raj Kumar vs. Ajay Kumar and another, 2011(1) SCC 343.
The submission of Shri Goel is that it is only a claim for personal
injuries that will abate with the death of the deceased. The
claims such as loss of income, medical expenses etc. will survive
as part of the loss to the estate. He relies upon Surpal Singh
Ladhubha Gohil vs. Raliyatbahen Mohanbhai Savlia and
Ors., 2009(2) GLH 217, Munni Devi and Others vs. New India
Assurance Co. Ltd., 103(2003) DLT 464, Venkatesan vs.
Kasthuri, 2014 ACJ 1621 and Maimuna Begum and others vs.
Taju and Others, 1989 MhLJ 352. Shri Goel next submits that
the High Court has committed no error in awarding loss of
income along with future prospects with a multiplier of 11 relying
on Parmindar Singh vs. New India Assurance Co. Ltd. &
Ors., (2019) 7 SCC 217 and Kajal vs. Jagdish Chand & Ors.,
(2020) 4 SCC 413. The injured had suffered 100 per cent
physical disability. He was unable to pursue his life and career
and had to leave his job and shift to his home town Punjab.
Despite being a law graduate and professionally qualified with a
Diploma in Labour Laws, he was unable to pursue any
independent career thereafter because of complete physical
disability. The compensation as enhanced by the High Court is,
therefore, not on account of personal injuries, but as loss of the
estate of the deceased, and therefore, calls for no interference.
6. We have considered submissions on behalf of the parties.
The original claimant was travelling with his wife and unmarried
daughter when their vehicle was hit by a lorry driven rashly and
negligently on 02.05.1999. The claimant was taken to the
Government Hospital, Trivandrum but the severity of the injuries
required him to be shifted to the Apollo Hospital, Chennai the
next day for professionalized management where he remained
under treatment till 24.11.1999. He suffered spinal shock, with
cervical cord injury and quadriplegia with respiratory failure. He
was resuscitated and put on ventilator support for skull traction.
His right ankle needed surgery. He required further treatment
for anterior decompression, disc excision and bone grafting. His
physical activity was by way of wheel chair mobilisation. The
disability certificate dated 16.06.2000 issued to him by the
Government Headquarter Hospital, Cuddalore opined 100 per
cent permanent motor system disability with operative scar on
the rightside neck, right ankle, healed scar on the left side
forehead frontal region and parietal region and that he was
unable to lift all four limbs which were vested with sensory loss
present in certain places classified as quadriplegic orthopedically.
7. The claimant was a law graduate with a Diploma in
Personal Management and Labour Welfare from the Punjab
University. Because of the injuries, he found it difficult and
inconvenient to continue with his job as Deputy General Manager
and resigned prematurely on 30.09.2001 at the age of 53 years
before his scheduled superannuation on 30.04.2006. Unable to
pursue his life and career with the burden of treatment and
family expenses in the changed circumstances in Cuddalore, he
moved this Court in T.P.(C) No. 1043 of 2003 for transfer of the
claim case filed by him in Cuddalore in the year 2000 which was
allowed on 25.02.2004. The proceedings were shifted to
Gurdaspur in Punjab.
8. The Tribunal in a very cursory and cryptic manner awarded
a compensation of Rs.1,00,000/ along with 9% interest. The
claimant then moved the High Court which has enhanced the
compensation to Rs.37,81,234/ by taking into account his
annual salary with future prospect applying the multiplier of 11
including pain and suffering, attendant’s charges.
9. The Act is a beneficial and welfare legislation. Section 166(1)
(a) of the Act provides for a statutory claim for compensation
arising out of an accident by the person who has sustained the
injury. Under Clause (b), compensation is payable to the owner
of the property. In case of death, the legal representatives of the
deceased can pursue the claim. Property, under the Act, will
have a much wider connotation than the conventional definition.
If the legal heirs can pursue claims in case of death, we see no
reason why the legal representatives cannot pursue claims for
loss of property akin to estate of the injured if he is deceased
subsequently for reasons other than attributable to the accident
or injuries under Clause 1(c) of Section 166. Such a claim would
be completely distinct from personal injuries to the claimant and
which may not be the cause of death. Such claims of personal
injuries would undoubtedly abate with the death of the injured.
What would the loss of estate mean and what items would be
covered by it are issues which has to engage our attention. The
appellant has a statutory obligation to pay compensation in
motor accident claim cases. This obligation cannot be evaded
behind the defence that it was available only for personal injuries
and abates on his death irrespective of the loss caused to the
estate of the deceased because of the injuries.
10. In Umed Chand (supra), giving a broad liberal
interpretation to the provisions of the Act so that legal
representatives do not suffer injustice, it was observed that the
claim for personal injuries will not survive on death of the injured
unrelated to the accident but the legal representatives could
pursue the claim for enhancement of the claim for loss of the
estate which would include expenditure on medical expenses,
travelling, attendant, diet, doctor’s fee and reasonable monthly
annual accretion to the estate for a certain period. It is trite that
the income which a person derives compositely forms part of the
expenditure on himself, his family and the savings go to the
estate. The unforeseen expenses as aforesaid naturally have to
be met from the estate causing pecuniary loss to the estate.
11. In Maimuna Begum (supra) the defence under Section 306
of the Indian Succession Act, 1925 on the old English Common
Law maxim “actio personalis moritur cum persona” was rejected
opining that it would be unjust to nonsuit the heirs on that
12. In Venkatesan (supra), the injured claimant preferred an
appeal dissatisfied, but was deceased during the pendency of the
appeal. Compensation came to be awarded under the Act for loss
of estate keeping in mind the nature of the injuries, the
treatment, the expenditure incurred and loss of income.
(as he then was), observed that the Act was a social welfare
legislation providing for compensation by award to people who
sustain bodily injuries or get killed. The grant of compensation
had to be expeditious as procedural technicalities could not be
allowed to defeat the just purpose of the act. The Courts in
construing social welfare legislations had to adopt a beneficial
rule of construction which fulfils the policy of the legislation
favorable to those in whose interest the Act has been passed.
Judicial discipline demanded that the words of a remedial
statutes be construed so far as they reasonably admit so as to
secure that relief contemplated by the statute and it shall not be
denied to the class intended to be relieved. Rejecting the maxim
of “actio personalis moritur cum persona” on the premise that it
was an injury done to the person and the claim abated with his
“11. The question as to whether injury was personal
or otherwise is of no significance so far as the wrong
doer is concerned and he is obliged to make good
the loss sustained by the injured. Legal heirs and
legal representatives would have also suffered
considerable mental pain and agony due to the
accident caused to their kith and kin. Possibly they
might have looked after their dear ones in different
circumstances, which cannot be measurable in
monetary terms. We are therefore in full agreement
with the view expressed by the learned Single Judge
of this Court in Gujarat State Road Transport
Corporation’s case (supra) that even after death of
the injured, the claim petition does not abate and
right to sue survives to his heirs and legal
representatives.”
14. This view has subsequently been followed in a decision
authored by brother Justice M.R. Shah J., (as he then was) in
Madhuben Maheshbhai Patel vs. Joseph Francis Mewan and
Others, 2015 (2) GLH 499, holding as follows:
“12….Considering the aforesaid decision of the
Division Bench of this Court in the case of Surpal
Singh Ladhubha Gohil (supra); decisions of the
learned Single Judge of this Court in the case of
Jenabai Widow of Abdul Karim Musa (supra) and in
the case of Amrishkumar Vinodbhai (supra); and
aforesaid two decisions of the learned Single Judge
of the Rajasthan High Court, we are of the opinion
that maxim “actio personalis moritur cum persona”
on which Section 306 of the Indian Evidence Act (sic
Indian Succession Act) is based cannot have an
applicability in all actions even in an case of
personal injuries where damages flows from the
head or under the head of loss to the estate.
Therefore, even after the death of the injured
claimant, claim petition does not abate and right to
sue survive to his heirs and legal representatives in
so far as loss to the estate is concerned, which
would include personal expenses incurred on the
treatment and other claim related to loss to the
estate. Under the circumstances, the issue referred
to the Division Bench is answered accordingly.
Consequently, it is held that no error has been
committed by the learned Tribunal in permitting the
heirs to be brought on record of the claim petition
and permitting the heirs of the injured claimant who
died subsequently to proceed further with the claim
petition. However, the claim petition and even
appeal for enhancement would be confine to the
claim for the loss to the estate as observed
hereinabove.”
15. Similar view has been taken by the Punjab & Haryana High
Court in Joti Ram vs. Chamanlal, AIR 1985 P&H 2 and the
Madras High Court in Thailammai vs. A.V. Mallayya Pillai,
16. The view taken in Kanamma (supra) and Uttam Kumar
(supra) that the claim would abate is based on a narrow
interpretation of the Act which does not commend to us. The
reasoning of the Gujarat High Court is more in consonance with
aim, purpose and spirit of the Act and furthers its real intent and
purpose which we therefore approve.
17. The injuries suffered by the deceased in the accident
required prolonged hospitalization for six months. The extent of
disability suffered was assessed on 16.06.2000 as 100%. The
extent of disability, pursuant to physiotherapy was reassessed as
75% on 08.08.2002. In the interregnum, the injured resigned his
job on 30.09.2001 at the age of 53 years as he found movement
difficult and inconvenient without an attendant as distinct from
complete immobility. The injured was possessing professional
qualifications in labour laws and Industrial relations along with a
Diploma in Personnel Management. He may have had to suffer
some handicap in also practicing before the labour court, but
cannot be held to have suffered 100% physical disability as his
capacity for rendering advisory and other work coupled with
movement on a wheel chair with the aid of an attendant could
still facilitate a reduced earning capacity. It cannot be held that
the injured was completely left with no source of livelihood except
to deplete his estate. In assessing, what has been described as a
‘Just Compensation’ under the Act, all factors including
possibilities have to be kept in mind.
18. The Tribunal, on technicalities rejected his claim for salary,
medical expenses and percentage of disability and granted a
measly compensation of Rupees one lakh only by a cryptic order.
We are, therefore, of the opinion that while the claim for personal
injuries may not have survived after the death of the injured
unrelated to the accident or injuries, during the pendency of the
appeal, but the claims for loss of estate caused was available to
and could be pursued by the legal representatives of the deceased
in the appeal.
19. In Parminder Singh (supra) compensation on the basis of
complete loss of income, the percentage of disability, future
prospects were granted applying the relevant multiplier. Again,
in Kajal (supra) the injured was assessed as 100 per cent
disabled, considering all of which compensation was awarded on
the notional future prospects along with relevant multiplier. The
loss of income to the injured in the facts of the present case has
to be assessed at 75%. In view of Raj Kumar (supra) there shall
be no deduction towards personal expenses.
20. We see no reason to deviate from the consistent judicial
view taken by more than one High Court that loss of estate would
include expenditure on medicines, treatment, diet, attendant,
Doctor’s fee, etc. including income and future prospects which
would have caused reasonable accretion to the estate but for the
sudden expenditure which had to be met from and depleted the
estate of the injured, subsequently deceased.
21. However, the compensation under the head pain and
suffering being personal injuries is held to be unsustainable and
is disallowed. The High Court has not awarded anything towards
medical expenses despite hospitalisation for six months being an
admitted fact. We therefore award a sum of Rs.1,00,000/
towards medical expenses. Hence, the reassessed total
compensation would be Rs.28,42,175/, calculated hereunder:
75% of the annual salary will be =Rs. 2,25,756/
2. 15% Future Prospects 15% of 2,25,756= Rs. 33,863.4
3. Applying multiplier of 11 Rs. 2,59,619*11= Rs. 28,55,809/
4. 10% of the income tax Rs. 2,25,7561,50,000= 75,756,
deducted for 15 years 10% of 75,756= 7575.60
For 15 years = 7575.6*15= Rs. 1,13,634/
8. Compensation already Rs.1,00,000/
22. The appellant is therefore directed to pay to respondent no.1
within a period of four weeks Rs.28,42,175/ along with interest
@ 9% p.a. from the date of filing of the claim petition, till its
23. The appeal is partly allowed to the extent indicated above.
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The Supreme Court observed that a motor accident claim petition does not abate even after the death of the injured claimant.The right to sue survive to his heirs and legal representatives in so far as loss to the estate is concerned, the bench comprising Justices Navin Sinha and R. Subhash Reddy.The court added that the loss of estate would include expenditure on medicines,...
The Supreme Court observed that a motor accident claim petition does not abate even after the death of the injured claimant.
The right to sue survive to his heirs and legal representatives in so far as loss to the estate is concerned, the bench comprising Justices Navin Sinha and R. Subhash Reddy.
The court added that the loss of estate would include expenditure on medicines, treatment, diet, attendant, Doctor's fee, etc. including income and future prospects which would have caused reasonable accretion to the estate but for the sudden expenditure which had to be met from and depleted the estate of the injured, subsequently deceased.
In this case, the original claimant, who was severely injured in a motor accident on 02.05.1999., filed a claim for compensation under Section 166(1)(a) of the Motor Vehicles Act, 1988. The Motor Accidents Claims Tribunal awarded him a sum of Rs.1,00,000/ only with 9% interest. Dissatisfied, the original claimant preferred an appeal before the High Court and during the pendency of the appeal died. The death was not attributed to the injuries suffered in the accident. The daughter of the claimant, who was an unmarried girl aged 21 years at the time of the accident, was substituted in the appeal. The High Court allowed the appeal and substantially enhanced the compensation.
In appeal before the Supreme court, the Insurance Company contended that since cause of action was personal to the injured abates on his death, which was not caused due to the accident, the legal heir is entitled only to such compensation which forms part of the estate of the deceased. Loss of salary, future prospects, pain and suffering along with attendant charges do not form part of the estate of the deceased, it was contended. In support of this contention, they relied on two Full Bench decisions of the Karnataka High Court in Kanamma vs. Deputy General Manager, ILR 1990 Karnataka 4300, Uttam Kumar vs. Madhav and Another, ILR 2002 Karnataka 1864. On the other hand, the respondent contended that only a claim for personal injuries will abate with the death of the deceased and the claims such as loss of income, medical expenses etc. will survive as part of the loss to the estate.
Depressed To Find Claim Took 20 Years To Reach Its Fruition
"The claim arising out of injuries caused in a motor accident that has reached its fruition more than 20 years later before this Court, we find extremely distressing. The original claimant and his wife, both did not survive the ordeal to see the fruits of the litigation which is now being pursued by their daughter.", the bench noted at the outset.
While considering this contention, the bench noted that in Madhuben Maheshbhai Patel vs. Joseph Francis Mewan 2015 (2) GLH 49, the Gujarat High Court had held that even after the death of the injured claimant, claim petition does not abate and right to sue survive to his heirs and legal representatives in so far as loss to the estate is concerned, which would include personal expenses incurred on the treatment and other claim related to loss to the estate. The court noted that a similar view has been taken by the Punjab & Haryana High Court in Joti Ram vs. Chamanlal, AIR 1985 P&H 2 and the Madras High Court in Thailammai vs. A.V. Mallayya Pillai, 1991 ACJ 185.
"16. The view taken in Kanamma (supra) and Uttam Kumar (supra) that the claim would abate is based on a narrow interpretation of the Act which does not commend to us. The reasoning of the Gujarat High Court is more in consonance with aim, purpose and spirit of the Act and furthers its real intent and purpose which we therefore approve.", the bench observed.
The court further observed that the Act is a beneficial and welfare legislation.
"9....Section 166(1) (a) of the Act provides for a statutory claim for compensation arising out of an accident by the person who has sustained the injury. Under Clause (b), compensation is payable to the owner of the property. In case of death, the legal representatives of the deceased can pursue the claim. Property, under the Act, will have a much wider connotation than the conventional definition. If the legal heirs can pursue claims in case of death, we see no reason why the legal representatives cannot pursue claims for loss of property akin to estate of the injured if he is deceased subsequently for reasons other than attributable to the accident or injuries under Clause 1(c) of Section 166. Such a claim would be completely distinct from personal injuries to the claimant and which may not be the cause of death. Such claims of personal injuries would undoubtedly abate with the death of the injured. What would the loss of estate mean and what items would be covered by it are issues which has to engage our attention. The appellant has a statutory obligation to pay compensation in motor accident claim cases. This obligation cannot be evaded behind the defence that it was available only for personal injuries and abates on his death irrespective of the loss caused to the estate of the deceased because of the injuries.", it added.
The High Court in this case had enhanced the compensation to Rs.37,81,234/ . The court said that the compensation under the head pain and suffering being personal injuries is held to be unsustainable. Disallowing compensation awarded under this head, the bench reassessed total compensation as Rs.28,42,175/-.
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1. The present appeal has been filed against the order of the Division Bench of the
High Court finding the appellants guilty of willful disobedience of the order
passed in Writ Petition (Civil) No. 5491 of 2001 etc. dated 12.09.2008 in respect
to the levy made while upholding Section 21 of the Assam Agricultural Produce
2. Pending the appeal, the first appellant died on 27.02.2017. Taking note of the
aforesaid fact, the proceedings as against him were declared as abated by the
order of this court dated 07.10.2021.
3. We have heard the arguments of the counsels at the Bar and perused the
documents filed along with the written arguments.
4. While leapfrogging unnecessary facts, a brief sketch is furnished hereunder:
a) On 03.09.1974, the Assam Agricultural Produce Market Act, 1972 came into
the statute book. Section 21 of the Act conferred power on the marketing
committees or the Assam State Agricultural Marketing Board (hereinafter
referred to as “the Board”) to levy cess on the agricultural produce bought or
sold in the notified market area, at the prescribed rate. Explanation-I appended
to the said provision brought in a deeming fiction. Rules were enacted in
exercise of the power conferred under Section 49 of the Act.
b) Writ petitions were filed by the respondent no.1-Association among others
before the High Court on the premise that its members purchased the
agricultural produce outside the State and thus, no cess is leviable. Rules were
struck down leading to the introduction of the Amendment Act, 2000,
amending Section 21 of the Act while inserting Section 21A. A challenge
made by the Board to the decision of the Full Bench dated 04.04.2001 before
this Court resulted in the order dated 08.12.2005, inter alia holding that in
view of the subsequent developments, there is no need to go into the issues.
c) Section 21A was inserted by the amending Act, 2006 facilitating the Board to
levy and collect cess for the marketing committees in the notified market areas
in addition to their existing power. This amendment was put into challenge in
the batch of writ petitions before the Division Bench of the High Court. While
upholding the constitutional validity vide judgment dated 12.09.2008, it has
been held that the deeming fiction would apply only to such of those cases
where a trader fails to establish that there is direct evidence of sale or purchase
having been undertaken outside the notified market area. It was further held
that disputed questions including that of refund cannot be gone into in a writ
petition invoking Article 226 of the Constitution of India, and such disputes
can be dealt with by the committee constituted.
d) Alleging that the orders passed by the Division Bench with respect to the
direct evidence produced by the members of the respondent no.1 were not
looked into and scrutinized on purpose while levying cess, a contempt petition
was filed in Contempt Case (Civil) No.401 of 2008. Incidentally, the
respondent no. 1 also filed a Special Leave Petition (Civil) No. 11317 of 2009
challenging the order of the Division Bench dated 12.09.2008, which was
converted into Civil Appeal No. 9655 of 2013, wherein, leave was granted by
this court vide order dated 25.10.2013.
e) In the aforesaid contempt petition, the Division Bench vide the impugned
order dated 23.10.2009 took note of certain documents produced by two
members of the respondent no.1, such as sale invoices, lorry challans, tax
challans, insurance receipts etc. It went into the factual assertions made,
notwithstanding the committee constituted by it earlier for the aforesaid
purpose and accordingly, hauled all the appellants for committing willful
disobedience.
f) Against the aforesaid order punishing the appellants for having committed a
contumacious act, a Special Leave Petition (Civil) No.10538 of 2010 was filed
by the Board and on grant of leave the same was registered as Civil Appeal
No. 9656 of 2013. This Court has passed the following order on 30.03.2010
while issuing notice in the aforesaid appeal filed by the Board when the matter
“Permission to file SLP is granted.
Issue notice on the application for condonation of delay as well as on the
special leave petitions.
Assam State Agricultural Marketing Board is permitted to collect tax in
accordance with the Judgment passed by the Division Bench of High Court
dated 12.9.2008, uninfluenced by the order passed in the contempt
proceedings dated 23.10.2009.
Post along with SLP(C) No. 11317 of 2009.”
g) The special leave petitions filed by the respondent no.1 challenging the
original order of the Division Bench was taken up as Civil Appeal Nos. 9655
of 2013, 9657-9665 of 2013 and 9666 of 2013 and accordingly the order dated
29.09.2021 was passed, which is appositely referred hereunder:
“Learned Counsel for the Appellants state that the impugned Act has been
repealed by an Ordinance issued on 13.07.2020 and subsequently Act has
been brought in place.
In view of the aforesaid, the issue sought to be debated in the present
appeals have become academic and thus it is not disputed that the appeals
really do not survive for consideration.
Civil appeals are disposed of accordingly.
Pending applications also stand disposed of.”
h) After the order dated 12.09.2008 passed by the Division Bench upholding
Section 21 of the Act, there were exchange of communications between the
appellants and the respondents. While the respondent no.1 alleged violation of
the order passed, the appellants contended that the action was only taken in
tune with the mandate of the Board under Section 21 of the Act and the
remedy, if any, to the members of the respondent no.1 would be before the
Committee constituted in pursuance of the said decision.
5. Thus, much water has flown under the bridge after the order under challenge
before us. The provision underwent further change having been repealed by an
ordinance followed by an appropriate enactment. In light of the aforesaid factual
scenario, we shall proceed with the case.
6. Learned counsel appearing for the appellants submitted that the second appellant
was transferred on 23.07.2008 and the appellant no. 1 was in-charge only till
21.01.2009. The first appellant died on 27.02.2017. There is no willful and
deliberate violation of the order involved. The High Court has erred in going into
the facts in appreciating evidence. It exceeded its jurisdiction which it declined to
exercise even while invoking Article 226 of the Constitution of India. It could
have relegated the members of the respondent no.1 to go before the committee
constituted. There is absolutely no material to implicate the appellants with the
alleged action of their subordinates. The concept of vicarious liability is alien to a
contempt jurisdiction. Unconditional apologies were also rendered before the
High Court. The respondent no.1 is the one who simultaneously assailed the
order dated 12.09.2008 passed by the Division Bench, before this Court, while
approaching the High Court under its contempt jurisdiction. Even otherwise, in
light of the subsequent developments, the appeal deserves to be allowed. On the
aforesaid submissions, the appellants placed reliance upon various decisions of
Ashok Paper Kamgar Union vs. Godha and Ors., (2013) 11 SCC 1
Kapildeo Prasad Sah and Ors. vs. State of Bihar, (1999) 7 SCC 569
Dinesh Kumar Gupta vs. United India Insurance Company Ltd. and
Anil Ratan Sarkar and Ors. vs. Hirak Ghosh and Ors., (2002) 4 SCC
India Airports Employees Union vs. Ranjan Chatterjee and Anr.,
Director of Education, Uttaranchal vs. Ved Prakash Joshi and Ors.,
Union of India and Ors. vs. Subedar Devassy PV, (2006) 1 SCC 613
Mrityunjoy Das and Anr. vs. Sayed Hasibur Tahaman and Ors., (2001)
Bal Kishan Giri vs. State of Uttar Pradesh, (2014) 7 SCC 280
7. Learned counsel appearing for the respondents submitted that the press release
followed by the failure on the part of officials working under the appellants
would clearly show the intention to circumvent the orders passed by the Court.
Materials were accordingly produced. It is a case of deliberate attempt to
overcome the judgment of the Court, notwithstanding the adequate knowledge.
As the High Court has considered the relevant materials, there is no need to
interfere with the reasoned order passed.
8. We are dealing with a civil contempt. The Contempt of Courts Act, 1971 explains
a civil contempt to mean a willful disobedience of a decision of the Court.
Therefore, what is relevant is the “willful” disobedience. Knowledge acquires
substantial importance qua a contempt order. Merely because a subordinate
official acted in disregard of an order passed by the Court, a liability cannot be
fastened on a higher official in the absence of knowledge. When two views are
possible, the element of willfulness vanishes as it involves a mental element. It is
a deliberate, conscious and intentional act. What is required is a proof beyond
reasonable doubt since the proceedings are quasi-criminal in nature. Similarly,
when a distinct mechanism is provided and that too, in the same judgment alleged
to have been violated, a party has to exhaust the same before approaching the
court in exercise of its jurisdiction under the Contempt of Courts Act, 1971. It is
well open to the said party to contend that the benefit of the order passed has not
been actually given, through separate proceedings while seeking appropriate
relief but certainly not by way of a contempt proceeding. While dealing with a
contempt petition, the Court is not expected to conduct a roving inquiry and go
beyond the very judgment which was allegedly violated. The said principle has
to be applied with more vigor when disputed questions of facts are involved and
they were raised earlier but consciously not dealt with by creating a specific
forum to decide the original proceedings.
9. We do not wish to reiterate the aforesaid settled principle of law except by
quoting the reasoned decision of this Court in Hukum Chand Deswal v. Satish
Raj Deswal, 2020 SCC Online SC 438 wherein the celebrated judgment in Ram
Kishan v. Tarun Bajaj, (2014) 16 SCC 204, has been quoted. The following
paragraphs would govern the aforesaid principle:
“18. At the outset, we must advert to the contours delineated by this court
for initiating civil contempt action in Ram Kishan vs. Tarun Bajaj & Ors.
In paragraphs 11, 12 and 15 of the reported decision, this Court noted thus:
“11. The contempt jurisdiction conferred on to the law courts
disobedience/contumacious conduct or obstruction to the
majesty of law, for the reason that respect and authority
commanded by the courts of law are the greatest guarantee to an
ordinary citizen that his rights shall be protected and the entire
democratic fabric of the society 5 (2014) 16 SCC 204 18 will
crumble down if the respect of the judiciary is undermined.
Undoubtedly, the contempt jurisdiction is a powerful weapon in
the hands of the courts of law but that by itself operates as a
string of caution and unless, thus, otherwise satisfied beyond
reasonable doubt, it would neither be fair nor reasonable for the
law courts to exercise jurisdiction under the Act. The
proceedings are quasi criminal in nature, and therefore, standard
of proof required in these proceedings is beyond all reasonable
doubt. It would rather be hazardous to impose sentence for
contempt on the authorities in exercise of the contempt
jurisdiction on mere probabilities. (Vide V.G. Nigam v. Kedar
Nath Gupta, (1992) 4 SCC 697, Chhotu Ram v. Urvashi Gulati,
(2001) 7 SCC 530, Anil Ratan Sarkar v. Hirak Ghosh, (2002) 4
SCC 21, Bank of Baroda v. Sadruddin Hasan Daya, (2004) 1
SCC 360, Sahdeo v. State of U.P., (2010) 3 SCC 705 and
National Fertilizers Ltd. v. Tuncay Alankus, (2013) 9 SCC 600.
12. Thus, in order to punish a contemnor, it has to be established
that disobedience of the order is “wilful”. The word “wilful”
introduces a mental element and hence, requires looking into the
mind of a person/contemnor by gauging his actions, which is an
indication of one's state of mind. “Wilful” means knowingly
intentional, conscious, calculated and deliberate with full
knowledge of consequences flowing therefrom. It excludes
casual, accidental, bona fide or unintentional acts or genuine
inability. Wilful acts does not encompass involuntarily or
negligent actions. The act has to be done with a “bad purpose or
without justifiable excuse or stubbornly, obstinately or
perversely”. Wilful act is to be distinguished from an act done
carelessly, thoughtlessly, heedlessly or inadvertently. It does not
include any act done negligently or involuntarily. The deliberate
conduct of a person means that he knows what he is doing and
intends to do the same. Therefore, there has to be a calculated
action with evil motive on his part. Even if there is a
disobedience of an order, but such disobedience is the result of
some compelling circumstances under which it was not possible
for the contemnor to comply with the order, the contemnor
cannot be punished. “Committal or sequestration will not be
ordered unless contempt involves a degree of default or
misconduct.” (Vide S. Sundaram Pillai v. V.R. Attabiraman,
(1985) 1 SCC 591, Rakapalli Raja Ram Gopala Rao v.
Mohammad v. State of 19 Haryana, (1994) 6 SCC 332, Chordia
Automobiles v. S. Moosa, (2000) 3 SCC 282, Ashok Paper
Kamgar Union v. Dharam Godha, (2003) 11 SCC 1, State of
Orissa v. Mohd. Illiyas, (2006) 1 SCC 275 and Uniworth
Textiles Ltd. v. CCE, (2013) 9 SCC 753.
15. It is well settled principle of law that if two interpretations
are possible, and if the action is not contumacious, a contempt
proceeding would not be maintainable. The effect and purport of
the order is to be taken into consideration and the same must be
read in its entirety. Therefore, the element of willingness is an
indispensable requirement to bring home the charge within the
meaning of the Act. [See Sushila Raje Holkar v. Anil Kak,
(2008) 14 SCC 392 and Three Cheers Entertainment (P) Ltd. v.
Similarly, in R.N. Dey & Ors. vs. Bhagyabati Pramanik & Ors., this Court
“7. We may reiterate that the weapon of contempt is not to be
used in abundance or misused. Normally, it cannot be used for
execution of the decree or implementation of an order for which
alternative remedy in law is provided for. Discretion given to
the court is to be exercised for maintenance of the court's
dignity and majesty of law. Further, an aggrieved party has no
right to insist that the court should exercise such jurisdiction as
contempt is between a contemner and the court. It is true that in
the present case, the High Court has kept the matter pending and
has ordered that it should be heard along with the first appeal.
But, at the same time, it is to be noticed that under the coercion
of contempt proceeding, appellants cannot be directed to pay the
compensation amount which they are disputing by asserting that
claimants were not the owners of the property in question and
that decree was obtained by suppressing the material fact and by
fraud. Even presuming that the claimants are entitled to recover
the amount of compensation as awarded by the trial court as no
stay order is granted by the High Court, at the most they are
entitled to recover the same by executing the 6 (2000) 4 SCC
400 20 said award wherein the State can or may contend that the
award is a nullity. In such a situation, as there was no wilful or
deliberate disobedience of the order, the initiation of contempt
proceedings was wholly unjustified.”
22. Pertinently, the special leave petitions were filed by the respondent
against the order dated 28.1.2019, which as aforesaid, did not deal with the
question regarding the monthly rent payable by the respondent but
explicitly left the parties to pursue the same before the executing Court. The
plaintiff/petitioner having acquiesced of that observation of the High Court,
cannot be allowed to contend to the contrary. This Court in Jhareswar
Prasad Paul & Anr. vs. Tarak Nath Ganguly & Ors., in paragraph 11,
“11. … The court exercising contempt jurisdiction is not entitled
to enter into questions which have not been dealt with and
decided in the judgment or order, violation of which is alleged
by the applicant. The court has to consider the direction issued
in the judgment or order and not to consider the question as to
what the judgment or order should have contained. At the cost
of repetition, 7 (2002) 5 SCC 352 23 be it stated here that the
court exercising contempt jurisdiction is primarily concerned
with the question of contumacious conduct of the party, which is
alleged to have committed deliberate default in complying with
the directions in the judgment or order. If the judgment or order
does not contain any specific direction regarding a matter or if
there is any ambiguity in the directions issued therein then it
will be better to direct the parties to approach the court which
disposed of the matter for clarification of the order instead of
the court exercising contempt jurisdiction taking upon itself the
power to decide the original proceeding in a manner not dealt
with by the court passing the judgment or order. If this
limitation is borne in mind then criticisms which are sometimes
levelled against the courts exercising contempt of court
jurisdiction “that it has exceeded its powers in granting
substantive relief and issuing a direction regarding the same
without proper adjudication of the dispute” in its entirety can be
avoided. This will also avoid multiplicity of proceedings
because the party which is prejudicially affected by the
judgment or order passed in the contempt proceeding and
granting relief and issuing fresh directions is likely to challenge
that order and that may give rise to another round of litigation
arising from a proceeding which is intended to maintain the
majesty and image of courts.”
23. Thus understood, we find force in the explanation offered by the
respondent that as per its bona fide understanding, there was no outstanding
dues payable to the petitioner. Moreover, as observed by the High Court,
these aspects could be answered by the executing Court if the parties pursue
their claim(s) before it in that regard. Suffice it to observe that it is not a
case of intentional violation or wilful disobedience of the order passed by
this Court to initiate contempt action against the respondent. Instead, we
hold that it would be open to the parties to pursue their claim(s) in
execution proceedings or any other proceedings, as may be permissible in
law in respect of the issue(s) under consideration. In such proceedings, all
aspects can be considered by the concerned forum/Court on merits in
accordance with law. We say no more.
24. Reverting to the allegation about damage caused to the suit property by
the respondent at the time of vacating the same, in our opinion, the
respondent has made out a formidable case that it did not cause any
damage, much less permanent damage to the structure in the suit property.
Whereas, the petitioner was relying on photographs concerning the debris
on the site left behind at the time of vacating the suit property. The debris
cannot cause damage and it is certainly not a case of defacement of the suit
property. That position is reinforced from the fact that the water park in the
suit premises was started and became fully functional within 2-3 months.
Viewed thus, it is rightly urged that it can be safely assumed that no damage
was caused by the respondent to the structure in question. Minor repairs
required to be carried out by the petitioner for making the water park
functional cannot be painted as intentional disobedience of the order of this
Court. In any case, that being a complex question of fact, need not be
adjudicated in the contempt proceedings. We leave it open to the petitioner
to pursue even that claim in execution proceedings or such other
proceedings as may be permissible in law. We may not be understood to
have expressed any final opinion in respect of condition of the suit
premises, whilst handing over possession to the petitioner. We hold that
even this issue under consideration does not warrant initiation of contempt
action against the respondent.”
10. On facts, we find that the High Court on the earlier occasion while dealing with
the challenge made to Section 21 of the Act, made a categorical assertion that it
did not wish to go into the disputed questions of fact. However, in the order under
challenge it was done. A finding has been given on the documents produced by
the respondent no.1 which could at best be pieces of evidence to be appreciated
by the committee constituted already. It is the specific case of the appellants that
they did not violate the directives of the court. There is no material to either
establish their knowledge on the action of their subordinates, or that they acted in
collusion with each other. Vicarious liability as a principle cannot be applied to a
case of contempt. The question as to whether the drivers of two members of the
respondent no.1 showed the order passed by the court and the documents
produced are true and genuine being in the realm of adjudication, ought not to
have been taken up by the High Court while exercising contempt jurisdiction. We
may note that it is the respondent no.1 who not being satisfied with the order
passed by the High Court, filed the special leave petition. Even in the
communications sent apart from the Press Note, it is nowhere stated that the order
passed by the court could be violated. We find that the subsequent developments
also shall enure to the benefit of the appellants. In cases where cess was levied,
individual members of the respondent no.1 could have made their challenge
before the committee. In our considered view, the entire exercise of the High
Court is not warranted and the aggrieved members of the respondent no.1 could
have been well advised to seek the alternative remedy open to them including
redressal through the committee.
11. In light of the aforesaid discussion, we accordingly set aside the order passed by
the High Court on 23.10.2009 in Contempt Case No.401 of 2008. Consequently,
the appeal filed by the appellant nos. 2 to 4 stands allowed. No costs.
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The Supreme Court observed that vicarious liability as a principle cannot be applied to a case of contempt.Merely because a subordinate official acted in disregard of an order passed by the Court, a liability cannot be fastened on a higher official in the absence of knowledge, the bench of Justices Sanjay Kishan Kaul and Justice MM Sundresh observed.In this case, the appellants were held...
The Supreme Court observed that vicarious liability as a principle cannot be applied to a case of contempt.
Merely because a subordinate official acted in disregard of an order passed by the Court, a liability cannot be fastened on a higher official in the absence of knowledge, the bench of Justices Sanjay Kishan Kaul and Justice MM Sundresh observed.
In this case, the appellants were held guilty of willful disobedience of the order passed by the High Court in respect to the levy made while upholding Section 21 of the Assam Agricultural Produce Market Act, 1972. In appeal, they contended that there was absolutely no material to implicate the appellants with the alleged action of their subordinates.
The bench, at the outset, observed:
8. We are dealing with a civil contempt. The Contempt of Courts Act, 1971 explains a civil contempt to mean a willful disobedience of a decision of the Court. Therefore, what is relevant is the "willful" disobedience. Knowledge acquires substantial importance qua a contempt order. Merely because a subordinate official acted in disregard of an order passed by the Court, a liability cannot be fastened on a higher official in the absence of knowledge. When two views are possible, the element of willfulness vanishes as it involves a mental element. It is a deliberate, conscious and intentional act. What is required is a proof beyond reasonable doubt since the proceedings are quasi-criminal in nature. Similarly, when a distinct mechanism is provided and that too, in the same judgment alleged to have been violated, a party has to exhaust the same before approaching the court in exercise of its jurisdiction under the Contempt of Courts Act, 1971. It is well open to the said party to contend that the benefit of the order passed has not been actually given, through separate proceedings while seeking appropriate relief but certainly not by way of a contempt proceeding.
The bench said that, while dealing with a contempt petition, the Court is not expected to conduct a roving inquiry and go beyond the very judgment which was allegedly violated. It then referred to observations made in Hukum Chand Deswal v. Satish Raj Deswal.
The court observed that there is no material to either establish their knowledge on the action of their subordinates, or that they acted in collusion with each other. It said:
"10....Vicarious liability as a principle cannot be applied to a case of contempt. The question as to whether the drivers of two members of the respondent no.1 showed the order passed by the court and the documents produced are true and genuine being in the realm of adjudication, ought not to have been taken up by the High Court while exercising contempt jurisdiction."
Observing thus, the bench set aside the High Court order.
Case no. and Date: CrA 1967 OF 2009 | 26 October 2021
Coram: Justices Sanjay Kishan Kaul and MM Sundresh
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Appeal No. 628 of 1961.
Appeal from the judgment and order dated February 24, 1960, of the Kerala High Court in Tax Revision Case No. 22 of 1957.
G. B. Pai, J. B. Dadachanji, O. C. Mathur and Ravinder Narain, for the appellant.
609 V. P. Gopalan Nambiar, Advocate General, State of Kerala and Sardar Bahadur, for the respondent.
A. V. Viswanatha Sastri, section N. Andley, Rameshwar Nath andP. L. Vohra, for the interveners.
November30.
The Judgement of the, Court was delivered by KAPUR, J. Thisappeal by certificate of the High Court of Keralaraises the question of the taxability of sales of tea under the Travancore Cochin General Sales Tax Act, hereinafter termed the Act, and the Rules made thereunder.
The assessment period is 1952 53 and the turnover was of a sum of Rs.3,77,644/ on which a tax of Rs. 5900/11/ was levied.
The appellant before us is the assessee company and the respondent is the Deputy Commissioner of ' Agricultural Income tax and Sales tax.
Mr. A. V. Viswanatha Sastri on behalf of Outcherloney Valley Estates (1938) Ltd. has applied for intervention on the ground that in case of that company also the State or Kerala has, on similar fact;, levied sales tax on certain transaction that the High Court of Kerala has upheld the taxability of the transactions relying on the judgment which is under appeal in the present case, and that the intervener has obtained Special leave to appeal against that judgment and the records are under print.
In view of these circumstances we have allowed that company to intervene in the present appeal.
The assessment was made on March 30, 1955, under r. 33(1) of the Act on the ground that the sales of tea had escaped assessment.
The appeal against 610 that order was unsuccessful and thereafter a further appeal was taken to the Sales tax Appellate Tribunal which by its order dated August 12, 1957, held that the ban under article 286(1)(a) of the Constitution on sales which are outside the State applied, in regard to the sales of 'full lots ' and therefore remanded the case to the Sales tax Officer.
Against that order a revision was taken to the High Court which held that the decision of the Appellate Tribunal in regard to the applicability of article 286(1)(a) was erroneous and therefore the sales were subject to sales tax under the Act.
It is against that judgment and order that the assessee company has come to this court on a certificate of the High Court.
Put shortly, the nature and procedure of sales of teas was this; that the teas were stored in the godowns at Willingdon Island which was in the State of Travancore Cochin., samples of those teas etc., were taken to Fort Cochin which at the relevant time was in the State of Madras.
There by the samples the teas were sold by public auction in lots, some were purchased in their entirety and others in parts and after the consideration money was paid at Fort Cochin delivery orders.
were given to the buyers addressed to the godown keepers at Willingdon Island and actual delivery of tea was taken there.
These teas were then sent out from Willingdon Island in Travancore Cochin for consumption either in other parts of India or were exported out of India.
The taxability of the sales of teas in the manner above mentioned will depend upon whether the sales can be held to have taken place at Willingdon Island i.e. within the territory of Travancore Cochin State and were liable to the imposition of sales tax under the Act or they were what for convenience are called Ire outside sales" and therefore not subject to sales tax in the State of Travancore Cochin.
The argument raised on behalf of the assessee company was that 611 these sales were effected at Fort Cochin which was outside the territory of Travancore Cochin and therefore were not liable to tax because of the ban imposed by article 286(1)(a) of the Constitution.
That Aricle with the Explanation at the relevant time was as follows "article 286(1) No law of a State shall impose, or authorise the imposition of, a tax on the sale or purchase of goods where such sale or purchase takes place (a) outside the State; or (b). . . . . . .
Explanation : For the purpose of sub clause (a) a sale or purchase shall be deemed to have taken place in the State in which the goods have actually been delivered as a direct result of ' such sale or purchase for the purpose of consumption in that State, notwith standing the fact that under the general law relating to sale of goods the property in the goods has, by reason of such sale or purchase, passed in another State".
Under the Sale of Goods Act in an auction sale the title in goods passes and the sale is complete as soon as the hammer falls.
The relevant portion of section 64 of the Sale of Goods Act dealing with sale by auction reads as follows In the case of a sale by auction. (1) where goods are put up for sale in lots, each lot is prima 612 facie deemed to be the subject of the separate contract of sale; (2) the sale is complete when the auctioneer announces its completion by the fall of the hammer or in the customery manner; and until such announcement is made any bidder may retract his bid.
" Specific goods in section 2 (14) of the Sale of Goods Act means goodsidentified and agreed upon at the time contract is made.
Therefore on the fall of the hammer theoffer is accepted and if the goods are specified goods the title passes to the buyer.
In the present case as soon as the hammer fell the title in the goods passed to the buyer as the goods were specific goods i.e. goods which were auctioned in full lots and this event took place at Fort Cochin which was in the State of Madras.
But in the case of unascertained goods the title in the goods does not pass to the buyer unless and until the goods are ascertained.
It was for this reason that a distinction was drawn by the Sales tax Appellate Tribunal between goods which were sold in full lots and those which were sold in portions.
In regard to the former it was held that the title passed as soon as the hammer fell but not so in regard to the latter and therefore the sale of "full lots ' was held to have taken place outside the State of Travancore Cochin and of portions of lots inside that State.
The case was consequently remanded to the Sales tax Officer for determining the amount of the tax.
The High Court in revision held that the words in article 286 (1) (a) " 'outside the State" do not mean transfer of ownership, according to the Sale of Goods 613 Act but it was lex situs which determines the taxability of the transaction and the correct position is that the ownership in the goods is transferred according to the law of the place where the goods are situate.
Therefore the sale in the present case was in the State of Travancore Cochin and there is nothing in the Explanation to article 286 (1) (a) which provides to the contrary.
It has been found and it has not been disputed that the title to the goods in the present case passed at Fort Cochin.
The purchase money was paid there and the purchaser obtained from the auctioneer delivery notes directing the godown keepers at Willingdon Island to deliver the goods and only the actual physical delivery of the goods took place at Willingdon Island.
In these circumstances the question is whether the sale was "outside" or "inside sale" as the expressions have been compendiously used in various judgments to indicate sales taking place within a State or without it.
The Explanation to article 286 (1) (a) which has been set out above explains what a sale outside the State is.
According to that Explanation a fiction is created as between two States, one where the goods are delivered for consumption in that State and the other where the title in the goods passes and the former is treated as the situs of the taxable event to the exclusion of the latter.
Therefore where the Explanation applies the difficulty about the situs is resolved but in a case like the present one the difficulty still remains because the explanation does not operate in the sense that the rival States claiming to tax the same taxable event are not the States of delivery for consumption in that State and those where the title in the goods passes.
In somewhat similar circumstances this court in Indian Copper Corporation Ltd. vs State of Bihar (1) held by a majority decision that the opening words of Art: 286 (1) which speak of a sale or purchase taking place and the non obstante clause in (1) ; ,286, 614 the Explanation which refers to the general law relating to the sale of goods, indicated that it was the "passing of property within the State" that was intended to be fastened on, for the purpose of determining, whether the sale in question was "inside" or "outside" the State and therefore subject to the operation of the " 'Explanation", that State in which property passed would be the only State which would have the power to levy a tax on the sale.
At page 286 it was observed: "The conclusion reached therefore is that where the property in the goods passed within a State as a direct result of the sale, the sale transaction is not outside the State for the purpose of article 286 (1) (a) unless the Explanation operates".
The majority decision in Indian Copper Corporation Ltd. vs State of Bihar (1) concludes the point in favour of the appellant.
On the facts of this case it was found by the Sales Tax Appellate Tribunal that in regard to the sales of tea in 'full lots ' the property passed at Fort Cochin and this view has not been challenged in this court.
Therefore, on the majority decision in Indian Copper Corporation Ltd. vs State of Bihar (1) the only State which would have the power to levy a tax on such sales would be the State of Madras and so far as Travancore Cochin was concerned, the sale would be an outside sale.
In the present case therefore the sale was an "outside sale" and cannot be said to be an "inside sale" qua Travancore Cochin because the title passed at Fort Cochin which is in the State of Madras.
Apart.
from that the money was paid there and the delivery order was also received there even though the actual physical delivery of goods was made at a Willingdon Island in the State of Tranvancore Cochin.
The fiction created by the Explanation to, article 286 (1)(a) is inapplicable (1)[1961] 2 S.C.R. 276, 615 because there was no delivery as a direct result of sale for the purpose of consumption in any particular State.
There then remains the question of goods which were exported out of India from Willingdon Island.
In the case of those goods 'also it cannot be said that there was a sale inside the 'State of Travancore Cochin because the same considerations will apply to those sales as to the sales already discussed i.e. goods the title to which passed at Fort Cochin were delivered at Willingdon Island and were delivered for 'consumption in parts of India other than Travancore Cochin.
In our view therefore the High Court was in error and the appeal should therefore be allowed and the judgment and order of the High Court of Kerala set aside.
The appellant will have its costs in this court and in the High Court.
Appeal allowed.
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The sales of teas were by auction which was conducted in Fort Cochin in Madras State.
The price was paid in Fort Cochin and delivery orders were also given there for goods which were at Willingdon Island in Travancore Cochin State.
From Willingdon Islands the goods were sent for consumption to other States and to foreign countries.
The State of Travancore Cochin sought to tax these transactions for sales tax.
Held that the property in the goods passed when the contract was accepted on the fall of the hammer in Fort Cochin.
Under article 286(1) it was the "passing of the property within the State" that was intended to be fastened on for the purpose of determining whether the sale was "inside" or "outside" the State.
Subject to the operation of the "explanation" that State in which property passed would be the only State which would have the power levy the tax on the sale.
But the explanation did not apply in the present case as there was no delivery as a direct result of the sale for consumption in any particular State.
Indian Copper Corporation Ltd. vs State of Bihar, ; , followed.
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ivil Appeal Nos.
1506 1507 of 1974.
From the Judgment and Order dated 4.8.1972 of the Guja rat High Court in Special Civil Appln.
No. 121 of 1972 and 1187 of 1970.
248 G.A. Shah and M.N. Shroff for the Appellants.
V.V. Vaze, Ms. Gitanjali, P.H. Parekh (N.P.), Vimal Dave (N.P.) and M. Mudgal (N.P.) for the Respondents.
The Judgment of the Court was delivered by RANGANATH MISRA, J.
These appeals by special leave are directed against the judgment of the Gujarat High Court dated 4.8.1972 quashing the declaration under section 6 of the Land Acquisition Act, Act 1 of 1894, on the ground that the same made on 18th of January, 1969, was issued beyond rea sonable time.
The short facts are: The preliminary notification under section 4(1) of the Act was made on 26.7.1963.
On 16/18, 1,J969, the declaration under section 6 was duly notified.
On 17.1.1972 a writ petition was filed in the High Court challenging the declaration.
The High Court took notice of the Land Acquisi tion (Amendment & Validation) Act of 1967 but relying upon a Division Bench judgment of the same High Court in Valji Mulji vs State, held that the period of 5 1/2 years from the date of the preliminary notification was unreasonable delay for making of the declaration under section 6 of the Act.
The validation provision came into force on 20th Janu ary, 1967.
Two judgments of this Court dealing with this aspect being Gujarat State Transport Corporation vs Valji Mulji Soneji & Ors., ; and State of Gujarat & Anr.
vs Punjabai Nathubhai & Ors., have now concluded the position with reference to the provisions of the Validation Act and on the ratio of these judgments the decision of the Gujarat High Court on which reliance was placed by the High Court in disposing of these matters cannot be sustained.
We accordingly allow the appeals, set aside the decision of the High Court and sustain the decla ration under section 6 of the Land Acquisition Act dated 18.1.
There shall be no order as to costs.
G.N. Appeals allowed.
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A preliminary notification under Section 4(1) of the Land Acquisition Act, 1894 was made on 26.7.1963.
The decla ration under Section 6 was duly notified on 16/18.1.1969.
A Writ Petition was filed in the High Court challenging the declaration.
The High Court took notice of the Land Acquisi tion (Amendment & Validation) Act, 1967, but held that the delay of 5 1/2 years from the date of the preliminary noti fication was unreasonable, and quashed the said declaration, relying on its own decision in Valji Mulji vs State, These appeals, by special leave, are against the High Court 's judgment.
Allowing the appeals, HELD: 1.
The validation provision came into force on 20th January, 1967.
The position is now concluded and the reliance placed by the High Court on its decision cannot be sustained.
[248E] Gujarat State Transport Corporation vs Valji Mulji Soneji & Ors., ; and State of Gujarat & Anr.
vs Punjabhai Mathubai & Ors., , followed.
The decision of the High Court is set aside and the declaration under section 6 of the Land Acquisition Act is sus tained.
[248F]
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1. The petitioner challenges the legality and validity of the
rejection order passed by the Director of Elementary
Education, Orissa dated 14.02.2022 for Inter-District
transferring and prays for quashing of the same on the
ground that no inter seniority can be fixed on the basis of
date of birth of the employees instead of their valid date of
joining.
2. The petitioner was initially appointed as a Sikshya Sahayak
on 02.04.2011 and posted under DI. Jharsuguda. As per the
office order dated 07.05.2018 of the DEO, Jharsuguda the
service of the petitioner was regularized as Level-V Asst.
Teachers. Additionally, he is a locomotor disabled person
having 70% permanent disability and also a bronchial
asthmatic patent with congenital kyphoscoliosis with
reversibility - 91% and require frequent medical treatment.
3. Shorn of unnecessary details, the substratum of the matter
presented before this court remain that in terms of the
guideline issued by the Govt., the petitioner made necessary
representation to the Director through DEO for his inter
district transfer from present place of posting to
Kundaposhi U.G.U.P School, Kuchinda under BEO,
Kuchinda, Sambalpur district which is nearby to his native
place and such representation was duly recommended by
the DEO, Jharsuguda to the Director vide letter no. 2550
dated 13.07.2020.
4. Thereafter the Director, Elementary Education sought
clarification from the Govt. vide letter dated 18.12.2020 and
in response to the letter of the Director the Govt. vide letter
date 01.02.2021 clearly directed the Director to examine the
case as per the guidelines and if applicable resubmit the
proposal with views after due certification of the disability
by the State Medical Board.
5. After getting the letter from the Govt. the Director requested
the Chief Medical and Public Health Officer to examine the
petitioner and issue Disable certificate afresh for his inter
district transfer. The Chief Medical and Public Health
Officer, Cuttack vide letter date 29.04.2021 intimated the
Director that the petitioner is 70% permanent disabled
person.
6. Thereafter, the petitioner approached this Court by filing a
writ application bearing W.P. (C) No.28177/2021 with a
prayer for his inter district transfer and this Court vide
order dated 23.09.2021 directed the Director of Elementary
Education, Orissa, to look into the matter and take decision,
taking into consideration the plea taken in the writ petition
and the recommendation therein within a period of 6 weeks.
Citing non-compliance, the petitioner filed a contempt
application bearing CONTC No. 7110/2021 on 29.11.2021,
which is under jurisdiction of the Hon'ble Court for
admission.
7. Subsequently, the Director rejected the claim of the
petitioner for inter district transfer vide office order dated
14.02.2022. While admitting the percentage of disability, the
Director rejected the claim of the petitioner for inter district
transfer by referring to 1997 Rules, as amended and read
with the Govt. Notification dated 04.10.2018 i.e. the
Guideline for Inter District transfer read with the
notification dated 17.05.2016 issued by the Health and
Family welfare Department without considering the other
resolution annexed in the earlier Writ Petition.
II. Submissions of the petitioner
8. Learned counsel for the petitioner submitted that
admittedly there was recommendation by the DEO under
Annexure-3 series. He admitted that the Government
directed the Director under Annexure-5 to examine the
matter as per the guideline and resubmit the proposal with
his views after due certification of the disability by State
Medical Board for consideration. He further admitted that
the Medical Board granted fresh Disability Certificate and
the same was again recommended to Govt. vide letter dated
9. It is also admitted in the impugned order that the Govt.
notification dated 04.03.2018 is governing the field. So far as
inter-district transfer and Clause- L of the said guideline
which clearly spells out that "the transfer cases of persons
with disability shall be considered on the basis of
certification of the disability by the State Medical Board, but
the above facts has not been considered by the Director
while rejecting the claim nor seeking any clarification from
the Government in that regard. In fact, without application
of mind by invoking the clause meant for mutual transfer or
transfer on the ground of disease prescribed vide resolution
dated 17.09.2016 of Health and Family Welfare Department,
has rejected the claim.
10. Learned Counsel further submitted that Clause-6 (d) of the
notification dated 17.05.2016 issued by Health and Family
Welfare Department also permits for such transfer. It is
further submitted that the Clause 16 of the resolution of GA
Department dated 03.12.2013 also permits inter district
transfer which has not been considered. He submitted that
the Director also failed to take a note of the resolution dated
25.02.2021 of the Department of Social Security and
Empowerment of Persons with Disability where clause-17
underlined that the employees with disability should be
posted or transferred as far as possible nearer to his native
place.
11. Moreover, there is no bar under 1977 Rules for inter-district
transfer. Rather as per the Govt. notification dated
04.10.2018 inter district transfer is permissible and in view of
the provision of Right of Persons with Disability Act, 2016,
read with the Government Notification (supra) the
petitioner’s request which is for inter district transfer is
permissible and the rejection order passed by the Director is
not only erroneous but also an instance of clear non
application of mind.
III. Submission on Behalf of the Opposite party-1
12. Learned Counsel for the Opposite Parties submitted that as
per the provision of Odisha Elementary Education (Method
of Education (Method of Recruitment and Conditions of
Service of Teachers and Officers) Amendment Rules, 2014
and Odisha Elementary Education (Method of Recruitment
and Conditions of Service of Teachers and Officers)
Amendment Rules, 2019, the service of the petitioner falls
under District cadre and as per the said District cadre the
petitioner's service is confined to Jharsuguda district only
and there is no rule governing in the field for his transfer to
the district of his choice i.e. Sambalpur and the same is not
permissible other than his online application for transfer as
per the aforesaid principles as laid down in para-7 of the
present petition under Annexure-A/4.
13. Moreover, the petitioner had never submitted online
application. It is needless to mention here that as per the
prevailing rule, the inter district transfer of the petitioner
from Kolbira Block of Jharsuguda district to Kuchinda Block
of Sambalpur district is eligible to be taken into
consideration only based on the procedures as laid down in
the Notification No.22167/SME dated 04.10.2018 issued by
the Department of School and Mass Education. However,
since the district cadre of the petitioner's service is confined
to Jharsuguda district, hence the said transfer cannot be
given effect to.
14. It is humbly submitted that as per the guidelines for Inter-
district transfer and mutual transfer/ Intra-District transfer
Rationalisation of Headmasters Asst. Teachers Asst.
Teachers (Ex cadre) Jr. Teachers/ Junior Teachers
(Contractual) and Gana Sikhyaks of Government
Elementary Schools in the State vide Notification No.
22167/S&ME dated 04.10.2018 at para-2 (c) prescribes that
Inter-District Transfer of elementary cadre teachers will only
be considered on mutual ground or ground of terminal
illness of self, subject to conditions laid down in this
guidelines. But in the instant case, the prayer made by the
petitioner for inter district transfer either on mutual ground
or ground of terminal illness of self. Thereby, the case of the
petitioner so far as inter district transfer is concerned cannot
be considered as per the New Transfer Policy of the
Government dated 04.10.2018. Besides para-2 (a) of the
notification dated 04.10.2018 which spells out that "the
transfer process shall be conducted only in online mode on a
computer-based Programme". But in the instant case the
petitioner never chose to made application through online,
as a result of which, his case could not come to the zone of
consideration before the transfer Committee constituted for
this purpose. However, pursuant to direction of this Court
the off-line application was also duly considered by the
authority and rejected rightly.
15. The Supreme Court as well as High Courts through several
judgments have iterated that the differently abled persons
deserve sympathetic consideration and also need attention
of authorities while undertaking transfers. In order to
ensure that the transfers are taken up in a transparent and
rational manner with utmost priority to public interest and
appropriate consideration of human difficulties as far as
practicable, the respective state governments should
formulate appropriate guidelines in respect of the same.
Therefore, the first and foremost, it is necessary to look at
the state guidelines. The Govt. notification dated 04.03.2018
provides Guidelines for Inter-District Transfer & Mutual
transfer / Intra-District transfer / Rationalisation of
Teachers/ Junior Teachers (Contractual) and Gana Sikhyaks
of Govt. Elementary Schools in the State. Clause- L of the
(l) The transfer cases of Persons with Disabilities (PwD)
shall be considered on the basis of certification of the
disabilities by the State Medical Board.
16. Resolution dated 25.02.2021 of the Department of Social
Security and Empowerment of Persons with Disability deals
with the reservations for the Persons with Disabilities.
Clause 17 provides that:
17. Posting or transfer of employees with
disabilities.- (1) The employees with disabilities should
preferably be posted or transferred near to their native
places or at least in their native Districts subject to
administrative constraints.
(2) The Government employees having children or
spouse with disabilities should be posted or transferred
to such places where facilities of health or education or
vocational training are available.
(3) Persons with Disabilities may be given posting
according to their choice, if possible.
17. The Gujarat High Court in the case of Dipika Kantilal
Shukla vs State Of Gujarat1, held that the state has to act
within the guidelines framed by them, otherwise it will
remain nothing more than an empty formality on paper. It
was further held that:
“This court is conscious of the legal position that an
employer has the right to transfer its employees in the
interest of the administration and in public interest,
since transfer is an incidence of service. However, when
the employer itself has framed certain guidelines for
certain categories of employees, with a clear intention,
then the action of the concerned authorities should have
a reasonable nexus with the objectives sought to be
achieved. It is expected that the respondents will act
within the guidelines framed by them, otherwise it will
remain nothing more than an empty formality on paper.
The very objective of framing the policy will be defeated
in its implementation, which will result in arbitrariness
and discrimination, resulting in violation of Article 14
of the Constitution of India.”
18. Similarly, Hon’ble Supreme Court in the case of State Of
U.P. And Ors. vs Gobardhan Lal2 iterated the importance of
adherence to the administrative guidelines.
“It is too late in the day for any Government Servant
to contend that once appointed or posted in a
particular place or position, he should continue in
such place or position as long as he desires. Transfer
of an employee is not only an incident inherent in the
terms of appointment but also implicit as an essential
condition of service in the absence of any specific
indication to the contra in the law governing or
conditions of service. Unless the order of transfer is
shown to be an outcome of a mala fide exercise of
power or violative of any statutory provision (an Act
or Rule) or passed by an authority not competent to
do so, an order of transfer cannot lightly be interfered
with as a matter of course or routine for any or every
type of grievance sought to be made. Even
administrative guidelines for regulating transfers or
containing transfer policies at best may afford an
opportunity to the officer or servant concerned to
approach their higher authorities for redress but
cannot have the consequence of depriving or denying
the competent authority to transfer a particular
officer/servant to any place in public interest and as is
found necessitated by exigencies of service as long as
the official status is not affected adversely and there is
no infraction of any career prospects such as
seniority, scale of pay and secured emoluments. This
Court has often reiterated that the order of transfer
made even in transgression of administrative
guidelines cannot also be interfered with, as they do
not confer any legally enforceable rights, unless, as
noticed supra, shown to be vitiated by mala fides or is
made in violation of any statutory provision.”
19. Additionally, Madhya Pradesh High Court in the case of
Kamlesh Sharma vs The State Of Madhya Pradesh3 while
dealing with the case of transfer of persons with disabilities
held that the legislation is in furtherance of international
commitments and to give an equal treatment to persons
with disability.
“It has to be appreciated that once a person is certified
with permanent disability of more than 40% and is,
thus, covered under the provisions of the said Act, this
aspect is not germane. There is no doubt that the
appellant is only to be considered for transfer to a
proximate place to his native place, but the guidelines
of 1988 make it clear that such request is to be accepted
unless in case of administrative exigency otherwise.
In matters of transfer, this Court does not sit as a court
of appeal. However, where the very basis is erroneous,
this Court is entitled to intervene. Totally irrelevant
factors have been taken into account as stated above
and the provisions of statutory enactment like the said
Act, the said Rules and the Office Memorandum issued
in furtherance thereof are sought to be defeated. One
cannot lose sight of the fact that the legislation is in
furtherance of international commitments and to give
an equal treatment to persons with disability. All this
has been given a go- bye while rejecting the request of
the appellant and the Bank insists on implementing the
erroneous decision. In such a case, this Court cannot be
powerless to remedy the situation.”
20. Hence, it may be concluded that the bar under 1977 rules for
inter district transfer shall not be applicable on a person
with disability. Moreover, in view of provision of Right of
Persons with Disability Act, 2016, read with the Govt.
Notification (supra) permits inter district transfer of a
person with disability. Therefore, the rejection order vide
office order dated 14.02.2022 passed by the Director is
hereby quashed. The Director is hereby directed to complete
the transfer process within a period of THREE months.
21. The Writ Petition is, accordingly, disposed of.
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In an important decision, which can be tagged as a remarkable quantum leap in the field of disability jurisprudence, the Orissa High Court has held that bar against 'inter-district transfer' cannot be made applicable to teachers who are recognised as persons with disabilities. A Single Judge Bench of Dr. Justice Sanjeeb Kumar Panigrahi observed, "The Supreme Court as well as High...
In an important decision, which can be tagged as a remarkable quantum leap in the field of disability jurisprudence, the Orissa High Court has held that bar against 'inter-district transfer' cannot be made applicable to teachers who are recognised as persons with disabilities. A Single Judge Bench of Dr. Justice Sanjeeb Kumar Panigrahi observed,
"The Supreme Court as well as High Courts through several judgments have iterated that the differently abled persons deserve sympathetic consideration and also need attention of authorities while undertaking transfers. In order to ensure that the transfers are taken up in a transparent and rational manner with utmost priority to public interest and appropriate consideration of human difficulties as far as practicable, the respective state governments should formulate appropriate guidelines in respect of the same."
Facts of the Case:
The petitioner made a representation to the Director, Elementary Education through DEO for inter-district transfer from his incumbent place of posting to Kundaposhi U.G.U.P School, Kuchinda under BEO, Kuchinda, Sambalpur district which is nearby to his native place and such representation was duly recommended by the DEO, Jharsuguda to the Director.
However, the Director rejected the claim of the petitioner for inter-district transfer through an office order dated 14.02.2022. While admitting the percentage of disability (which was found to be 70% permanent disability), the Director rejected the claim of the petitioner for inter-district transfer by referring to 1997 Rules, as amended and read with the Govt. Notification dated 04.10.2018 i.e. the Guidelines for Inter-District transfer read with the notification dated 17.05.2016 issued by the Health and Family welfare Department. Aggrieved by such rejection, the petitioner approached the High Court through this writ petition.
Contentions of the Petitioner:
Mr. Dillip Kumar Mohapatra, counsel appearing for the petitioner, pointed out that in the impugned order, the Govt. notification dated 04.03.2018 is governing the field. Clause- L of the said guideline clearly spells out that "the transfer cases of persons with disability shall be considered on the basis of certification of the disability by the State Medical Board". However, he contended that the above facts have not been considered by the Director while rejecting the claim and he did not even seek any clarification from the Government in that regard. Without application of mind, by invoking the clause meant for mutual transfer or transfer on the ground of disease prescribed vide resolution dated 17.09.2016 of Health and Family Welfare Department, he rejected the claim.
Clause 6(d) of the notification dated 17.05.2016 issued by Health and Family Welfare Department also permits for such transfer. It was further submitted that the Clause 16 of the resolution of General Administration Department dated 03.12.2013 also permits inter-district transfer which was not considered. He submitted that the Director also failed to take a note of the resolution dated 25.02.2021 of the Department of Social Security and Empowerment of Persons with Disability where clause-17 underlined that the employees with disability should be posted or transferred as far as possible nearer to their native places.
Moreover, he stressed that there is no bar under 1977 Rules for inter-district transfer. Rather, as per the Govt. notification dated 04.10.2018 inter-district transfer is permissible and in view of the provision of Right of Persons with Disability Act, 2016, read with the Government Notification (supra) the representation of the petitioner, which was for inter district-transfer, was permissible and the rejection order passed by the Director was not only erroneous but also an instance of clear non-application of mind.
Contentions of the Respondents:
Mr. Sonak Mishra, Standing Counsel submitted that as per the provision of Odisha Elementary Education (Method of Education, Method of Recruitment and Conditions of Service of Teachers and Officers) Amendment Rules, 2014 and Odisha Elementary Education (Method of Recruitment and Conditions of Service of Teachers and Officers) Amendment Rules, 2019, the service of the petitioner falls under District cadre and as per the said District cadre, the petitioner's service is confined to Jharsuguda district only and there is no rule governing in the field for his transfer to the district of his choice i.e. Sambalpur and the same is not permissible.
It was also submitted that as per the guidelines inter-district transfer of elementary cadre teachers will only be considered on mutual ground or ground of terminal illness of self, subject to conditions laid down in the guidelines. But in the instant case, the prayer made by the petitioner was neither for inter-district transfer nor on mutual ground or ground of terminal illness of self. Thereby, it was argued, the case of the petitioner so far as inter-district transfer is concerned cannot be considered as per the New Transfer Policy of the Government dated 04.10.2018.
Apart from that, para-2 (a) of the notification dated 04.10.2018 which spells out that "the transfer process shall be conducted only in online mode on a computer-based Programme" was also highlighted. As in the present case, the petitioner never made application through online mode, it was contended, his case could not come to the zone of consideration before the transfer Committee constituted for the purpose.
Court's Observations:
The Court made reference to the aforesaid State guidelines and also to the decision of the Gujarat High Court in Dipika Kantilal Shukla v. State of Gujarat, wherein it was held that the state has to act within the guidelines framed by them, otherwise it will remain nothing more than an empty formality on paper. Reference was also made to the decision of Madhya Pradesh High Court in Kamlesh Sharma v. The State Of Madhya Pradesh, therein while dealing with the case of transfer of persons with disabilities, the Court acknowledged a legislation which was enacted in furtherance of international commitments and to give an equal treatment to persons with disability.
Consequently, the Court concluded,
"Hence, it may be concluded that the bar under 1977 rules for inter district transfer shall not be applicable on a person with disability. Moreover, in view of provision of Right of Persons with Disability Act, 2016, read with the Govt. Notification (supra) permits inter district transfer of a person with disability. Therefore, the rejection order vide office order dated 14.02.2022 passed by the Director is hereby quashed. The Director is hereby directed to complete the transfer process within a period of THREE months."
Case Title: Naba Krishna Mahapatra v. State of Odisha & Ors.
Case No: W.P.(C) No. 6880 of 2022
Judgment Dated: 11th July 2022
Coram: Dr. Justice Sanjeeb Kumar Panigrahi
Counsel for the Petitioner: Mr. Dillip Kumar Mohapatra, Adv.
Counsel for the Respondents: Mr. Sonak Mishra, SC (for S & ME Deptt.)
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2. Feeling aggrieved and dissatisfied with the impugned judgment and order dated
27.06.2022 passed by the High Court at Calcutta in Revision Application No. 1328/2022,
by which the High Court has dismissed the said revision application preferred by the
appellant – accused and has confirmed the order passed by the learned Special Court,
West Bengal (MP & MLA case), Bidharnagar dated 4.3.2022 passed in Special Case No.
120 of 2018, the appellant-accused has preferred the present appeal.
3. The facts leading to the present appeal in nutshell are as under:
That the appellant herein was tried earlier for the offences punishable under
Sections 148, 149, 448, 364 & 506 of the Indian Penal Code (IPC) in FIR No. 61/2002
dated 26.09.2002 of Keshpur Police Station. The appellant came to be acquitted by the
learned Sessions Court vide judgment and order of acquittal dated 21.05.2010. That
thereafter on 6.6.2011, after a period of nine years from the date of registration of the first
FIR and one year from the date of acquittal, a second FIR came to be lodged against the
appellant and others alleging inter alia that the appellant and other co-accused had caused
the death of Ajay Acharya, i.e., father of the first informant, the same person that they had
alleged to have kidnapped and were acquitted of.
3.1 It appears that the second FIR was registered on the basis of the discovery of the
skeleton and identification of the clothes and teeth of the skeleton, by the son of the
deceased, 11 years after the alleged incident.
3.2 The appellant-accused approached the High Court seeking quashing of the entire
criminal proceedings emanating out of the second FIR vide order dated 29.04.2016. While
dismissing the said proceedings, the High Court granted liberty to take up all the points of
law at the time of framing of charge. While dismissing the special leave petitions, this Court
granted liberty to the accused – appellant to avail the remedy at the stage of framing of
the charge. Accordingly, a discharge application under Section 227 r/w Section 300(1)
Cr.P.C. was filed by the appellant before the learned trial Court. The learned trial Court
dismissed the said application by observing that such an objection can be raised at the
stage of framing of charge and not discharge. The order passed by the learned trial Court
has been confirmed by the High Court, by the impugned judgment and order. Hence, the
present appeal.
4. It is vehemently submitted by Shri Siddhartha Dave, learned senior counsel
appearing on behalf of the appellant – accused that the courts below have erred in not
considering the application for discharge filed by the appellant at the stage of discharge.
It is submitted that the stage of discharge under Section 227 Cr.P.C. is a stage prior to
charge and it is at this stage alone that the court can consider an application under Section
300 Cr.P.C. It is submitted that once the court rejects the discharge application, it would
proceed to framing of charge under Section 228 Cr.P.C. and the only question before it
would be as to the nature of the offence, and not that the appellant has not committed an
offence, or that he cannot be tried on account of the bar under Section 300 Cr.P.C.
4.1 It is further submitted that the courts below have failed to appreciate that the present
proceedings arise from the discharge proceedings and that the stage of discharge under
Section 227 Cr.P.C. precedes the stage of framing of charge under Section 228 Cr.P.C.
It is submitted that as observed and held by this Court in the case of Ratilal Bhanji
Mithani v. State of Maharashtra, (1979) 2 SCC 179, once the charges are framed, the
accused is disentitled from praying for discharge.
4.2 It is further submitted that it is true that the judgment of acquittal dated 21.05.2010
has been challenged by the State before the High Court, but the same has not been
admitted by the High Court.
4.3 It is further submitted that the appellant has already been acquitted of the offence
of kidnapping. On the basis of the same facts, the appellant is now being sought to be
prosecuted for the offence under Section 302 IPC, without invoking Section 346 IPC, only
to circumvent the bar under Section 300(1) Cr.P.C. It is submitted that the bar under
Section 300(1) Cr.P.C. also applies to prosecution for same facts for any other offence for
which a different charge from the one made against the accused might have been made
under sub-section (1) of Section 221, or for which the accused might have been convicted
under sub-section (2) thereof.
4.4 It is further submitted that in the case of State v. Nalini, (1999) 5 SCC 253, this
Court while discussing the principle of autrefois convict and autrefois acquit held that
Section 300 Cr.P.C. has widened the protective wings by debarring a second trial against
the same accused on the same facts even for a different offence.
4.5 Making above submissions and relying upon the aforesaid decisions, it is prayed to
allow the present appeal and discharge the appellant from the subsequent second FIR
No. 36/2011, in terms of Section 300(1) Cr.P.C.
5. While opposing the present appeal, Shri Sunil Fernandes, learned counsel
appearing on behalf of the respondent – State has vehemently submitted that as such the
order of acquittal in relation to first FIR is the subject matter of appeal before the High
Court. It is submitted that even otherwise in the first FIR the appellant and other co-
accused were tried for the offences under Sections 148, 149, 448, 364 & 506 IPC in FIR
No. 61/2002. It is submitted that at the relevant time, the dead body of the deceased was
not found. It is submitted that the appellant and other coaccused were tried and as such
acquitted for the offence of kidnapping etc. and not for the offence under Section 302 IPC,
as now to be tried pursuant to the subsequent FIR, which was lodged after the discovery
of the skeleton and identification of the clothes and teeth of the skeleton. It is submitted
that therefore, as such, Section 300 Cr.P.C. shall not be attracted at all.
5.1 It is further submitted that earlier the application submitted by the appellant under
Section 482 Cr.P.C. to quash the subsequent criminal proceedings emanating out of the
second FIR came to be dismissed by the High Court and the appellant was relegated to
avail the remedy at the stage of framing of the charge. It is submitted that the very
plea/defence under Section 300 Cr.P.C. was pressed into service but the High Court
refused to quash the criminal proceedings arising of the subsequent second FIR. It is
submitted that thereafter when the accused had filed the discharge application, the
learned trial Court rejected the said application by observing that the appellant-accused is
entitled to raise all the points as mentioned in the petition under Section 300(1) Cr.P.C. at
the time of framing of charge. It is submitted that as such the discharge application under
Section 227 Cr.P.C. is yet to be considered by the learned trial Court.
5.2 Making the above submissions, it is prayed to dismiss the present appeal.
6. We have heard learned counsel for the respective parties at length.
At the outset, it is required to be noted that pursuant to the liberty reserved by the
High Court while dismissing the petition under Section 482 Cr.P.C., the appellant accused
filed an application for discharge under Section 227 r/w Section 300(1) Cr.P.C. Out of the
said application, application under Section 300(1) Cr.P.C. has been dismissed by the
learned trial Court by observing that the appellantaccused shall be entitled to raise all the
points including the applicability of Section 300(1) Cr.P.C. at the time of hearing on framing
of charge. The application under Section 227 Cr.P.C. filed by the accused is yet to be
considered by the learned trial Court. At this stage, Section 227 Cr.P.C. is required to be
referred to, which reads as under:
“227. Discharge – If, upon consideration of the record of the case and the documents submitted
therewith, and after hearing the submissions of the accused and the prosecution in this behalf,
the Judge considers that there is not sufficient ground for proceeding against the accused, he
shall discharge the accused and record his reasons for so doing.”
7. On a fair reading of Section 227 Cr.P.C, if, upon consideration of the record of the
case and the documents submitted therewith, and after hearing the submissions of the
accused and the prosecution in this behalf, the Judge considers that there is not sufficient
ground for proceeding against the accused, he shall discharge the accused and record
his reasons for doing so. As per Section 228 Cr.P.C. only thereafter and if, after such
consideration and hearing as aforesaid, the Judge is of the opinion that there is ground
for presuming that the accused has committed an offence, the trial Court shall frame the
charge. Therefore, as rightly submitted by Shri Siddhartha Dave, learned senior counsel
appearing on behalf of the appellant-accused that the stage of discharge under Section
227 Cr.P.C. is a stage prior to framing of the charge (under Section 228 Cr.P.C.) and it is
at that stage alone that the court can consider the application under Section 300 Cr.P.C.
Once the court rejects the discharge application, it would proceed to framing of charge
8. Under the circumstances, the learned trial Court has erred in not considering the
application under Section 300(1) Cr.P.C. at the time of framing of charge and/or prior to
framing of the charge. As observed hereinabove, the trial Court had observed that the
appellant-accused shall be entitled to raise all points as mentioned in his application under
Section 300(1) Cr.P.C. at the time of hearing on framing of charge. However, as observed
hereinabove, such exercise was required to be done at a stage prior to framing of charge
and if ultimately the court comes to the conclusion overruling the objection of Section
300(1) Cr.P.C. and on facts satisfies then it may frame the charge as provided under
Section 228 Cr.P.C. The High Court has not at all appreciated and/or considered the
aforesaid aspect. Therefore, the matter is required to be remanded to the learned trial
Court to consider the plea of the accused on applicability of Section 300(1) Cr.P.C. at the
stage of discharge under Section 227 Cr.P.C., which is a stage prior to framing of the
charge under Section 228 Cr.P.C.
9. Now so far as the prayer on behalf of the appellant to discharge the accused in view
of the bar under Section 300(1) Cr.P.C. is concerned, the same may not be granted at this
stage in view of the earlier order passed by the High Court dismissing the petition under
Section 482 Cr.P.C. to quash the criminal proceedings which were sought to be quashed
on the very ground and the accused was relegated to avail remedy at the time of
discharge. It is to be noted that the earlier order passed by the High Court had attained
finality and even thereafter the appellant-accused had filed the discharge application
under Section 227 r/w Section 300(1) Cr.P.C.
10. In view of the above and for the reasons stated above, the impugned judgment and
order passed by the High Court is hereby quashed and set aside. The matter is remitted
to the learned trial Court to consider the application under Section 300(1) Cr.P.C. filed by
the appellant – accused along with the application for discharge under Section 227
Cr.P.C., which is a stage prior to framing of the charge and thereafter to pass appropriate
orders on framing of the charge under Section 228 Cr.P.C., in case the objection/defence
of the accused under Section 300(1) is overruled and the trial Court is satisfied that there
is sufficient grounds for framing of charge against the accused. The aforesaid exercise
shall be completed within a period of six weeks from the date of receipt of the present
order. Needless to say, that the learned trial Court shall decide the said application in
accordance with law and on its own merits, without being influenced by any of the
observations made by the High Court in the impugned order or by this Court in the present
11. The present appeal stands disposed of with the aforesaid observations.
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The Supreme Court observed that the accused's plea on applicability of Section 300 CrPC has to be considered at the stage of discharge under Section 227 CrPC.
In this case, the accused filed a discharge application under Section 227 r/w Section 300(1) Cr.P.C. before the Trial Court. He contended that he had already been acquitted of the offence of kidnapping and on the basis of the same facts, he is now being sought to be prosecuted for the offence of murder. The same was dismissed on the ground that such an objection can be raised at the stage of framing of charge and not discharge. The Calcutta High Court upheld this order.
In appeal, the accused-appellant contended that the stage of discharge under Section 227 Cr.P.C. is a stage prior to charge and it is at this stage alone that the court can consider an application under Section 300 Cr.P.C. Once the court rejects the discharge application, it would proceed to framing of charge under Section 228 Cr.P.C. and the only question before it would be as to the nature of the offence, and not that the appellant has not committed an offence, or that he cannot be tried on account of the bar under Section 300 Cr.P.C, it was contended.
Agreeing with this contention, the Apex Court bench of Justices CT Ravikumar observed:
"Such exercise was required to be done at a stage prior to framing of charge and if ultimately the court comes to the conclusion overruling the objection of Section 300(1) Cr.P.C. and on facts satisfies then it may frame the charge as provided under Section 228 Cr.P.C. The High Court has not at all appreciated and/or considered the aforesaid aspect."
Allowing the appeal, the bench directed the Trial Court to consider the plea of the accused on applicability of Section 300(1) Cr.P.C. at the stage of discharge under Section 227 Cr.P.C., which is a stage prior to framing of the charge under Section 228 Cr.P.C.
Case details
Chandi Puliya vs State of West Bengal | (SC) 1019 | SLP(Criminal) 9897 of 2022 | 12 December 2022 | Justices MR Shah and CT Ravikumar
Headnotes
Code of Criminal Procedure, 1973 ; Sections 227,228, 300 - - It is at the stage of discharge that the court can consider the application under Section 300 Cr.P.C - Once the court rejects the discharge application, it would proceed to framing of charge under Section 228 Cr.P.C. (Para 7-8)
Code of Criminal Procedure, 1973 ; Sections 227,228 - The stage of discharge under Section 227 Cr.P.C. is a stage prior to framing of the charge (under Section 228 Cr.P.C.) - If, upon consideration of the record of the case and the documents submitted therewith, and after hearing the submissions of the accused and the prosecution in this behalf, the Judge considers that there is not sufficient ground for proceeding against the accused, he shall discharge the accused and record his reasons for doing so. As per Section 228 Cr.P.C. only thereafter and if, after such consideration and hearing as aforesaid, the Judge is of the opinion that there is ground for presuming that the accused has committed an offence, the trial Court shall frame the charge. (Para 7)
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1. Special leave to appeal granted. With the consent of learned counsel for
the parties, the appeal was heard finally.
2. What is involved in this case, is the fixation of date for the
implementation of the Fifth Pay Commission recommendations, when applied
to the respondent Corporation. That framing a policy concerning fixation of pay
for the salaries of its employees, the extent of its revision, and even the date of
its implementation, are matters of undoubted exclusive executive decision
making powers. However, the manner of its implementation, the timing of
applicability of a scheme, and its impact, especially where it results in exclusion
of a certain section of public employees from the benefit, are subject matters of
scrutiny by the court, especially, when the complaint is of discrimination and
violation of Article 14 of the Constitution. This is one such case.
3. The appellant association (consisting of employees who had
superannuated, opted for VRS, resigned, or legal heirs of expired employees of
the respondent corporation) challenge a judgment1 of the Bombay High Court
(Nagpur bench). In that proceeding, the appellants had complained of
discrimination against the decision dated 29.03.2010, of the Industry, Energy
and Labour Department, Government of Maharashtra (hereafter “the State”).
That decision denied the benefit of revision of pay scales, as recommended by
the Fifth Pay Commission, to the employees of the Maharashtra State Financial
Corporation (hereafter “MSFC”) who had retired or died during the period of
01.01.2006 to 29.03.2010. That decision of the State made the revision of pay
scale as a result of the Report of the Fifth Pay Commission applicable to 115
employees of MSFC who were working as on 29.03.2010. The revision,
however, was given effect from 01.01.2006.
4. The appellants had urged before the High Court, that denying them the
benefit of pay scales was discriminatory and arbitrary, because they were in
continuous service, and had even received the benefit of interim revision,
pending finalization of pay scales pursuant to the Pay Commission Report. It
was urged that those in employment on and after 29.03.2010, and those who
continued in service after 01.01.2006 but retired before 29.03.2010, belonged to
the same category. The only difference between those who were in service after
the latter date, was that they had longer period of service. However, the crucial
date for grant of pay revision, was the date from which it was given effect to,
i.e., 01.01.2006. As all the appellants were in service as on that date, the denial
of pay revision, which was concededly for the period they had worked,
amounted to not only hostile discrimination, but also withholding of pay
revision benefits, legitimately and rightfully theirs.
5. By the impugned order, the High Court accepted the submissions of
MSFC and the State, that financial considerations were of importance in regard
to grant or denial of monetary benefits. The MSFC had also urged before the
High Court, that the benefit was granted to those employees on the rolls of the
corporation, as of 29.03.2010, in order to motivate and incentivise them for
better performance.
6. After quoting the counter affidavit filed by the State Government, which
approved such revision, the High Court accepted MSFC’s argument:
““…It was also considered that there were only 115 employees
working in the Respondent No.2 Corporation and the said strength
of said employees will further reduce in near future. An
expenditure of Rs.16.00 lakhs per month was being incurred on the
salary payable to the employees. It was also noted that the
Respondent No.2 stopped sanctioning and disbursing loan from the
year 2005 and presently only the work of recovery of loans already
given is being done. It was also considered that the strength of the
employees existing is necessary for carrying out the work of loan
recovery. Considering the target of loan recovery fixed for the
years 2009-10, it was felt necessary to motivate the existing staff to
give benefit of pay revision to employees to work hard for
achieving the recovery target. Considering the financial
implications, keeping in view the number of employees it was
decided to implement 5th pay to the employees of Respondent No.2.
Accordingly, considering its income and considering all relevant
factors; it was decided that the pay revision based on 5th Pay
Commission recommendations should be given only to the existing
employees and that the revised pay scales should be made
applicable from 01.01.2006. After considering the above fact, the
Finance Department of the answering Respondent took decision to
approve the revision of pay scale and communicated decision to
respondent No.2 vide Government GR No.SFC-2009
(422/Industries-7) dated 29/03/2010, as per the recommendations
made by the Finance Department. Accordingly, Government
Resolution dated 20.03.2010 was issued.
16. It is specifically denied that the Government Resolution dated
29.03.2010 is discriminatory in nature and violets the fundamental
rights of the member of the Petitioner Union. It is submitted that
the answering Respondent has already taken policy decision on
16.02.2010 not to extend any budgetary support to any public
sector Corporation in the State for the purposes of granting pay
revision to its employees. Considering the fact the Respondent No.2
is not a profit making Corporation, the question of pay revision
was considered keeping in view the financial implications and the
capacity of Respondent No.2 which played development role to
bear the additional financial burden on account of such pay
revision. At the same time it was noted that it was also necessary to
give existing employees pay revision to motivate them to work hard
for recovering the loans already disbursed. The pay revision was
made effective from 01.01.2006 again keeping in view the financial
implications. It is submitted that the decision taken by the
answering Respondent is based on objective and rational
7. In the decisions relied upon by Shri Puranik, the learned
Counsel for the respondent - Corporation in the matter of revision
of pay scale, the Apex Court has clearly laid down that financial
implication is the relevant criteria for fixing the cut-off date. The
other decisions relied upon by Shri Dhole, the learned Counsel for
the petitioners are on the question of payment of pension and other
benefits.
8. Keeping in view the justification furnished by the respondent
nos.1 and 2, we do not find that fixation of cut off date of 29/3/2010
in the present case is arbitrary or irrational. We, therefore, do not
find any substance in the petition.”
7. Mr. Jay Salva, learned counsel for the appellants argued that the last pay
revision was made applicable to MSFC’s employees from 01.01.1986, which
expired on 31.12.1989, and MSFC considered pay revision to be made effective
from 01.01.1990. Its proposal for pay revision was submitted to the State
Government by the Board of Directors of MSFC. The revision of pay and
emoluments was approved by MSFC’s Board of Directors, and it was forwarded
to the State of Maharashtra for final approval in the year 1996. Pending
approval of the said revision, further five revisions were kept due. Instead of
considering those revisions, the MSFC’s Board of Directors arbitrarily
implemented the pay commission’s recommendations w.e.f. 01.01.1996. The
benefits of revised pay were passed on to the existing 115 employees working at
the relevant time only, and deprived 900 ex-employees of similar benefits,
though the revision was applicable to them for the period of their service time
span, respectively.
8. It was submitted that the cut-off date, for granting benefits of the pay
revision, is arbitrary, because several employees had retired, after long years of
loyal service. They would be deprived of the benefit of any pay revision, merely
because the MSFC chose to implement the decision on a particular date, after
their retirement.
9. It was also urged that the State and the MSFC cannot discriminate
between persons who worked during the same period, and discharged their
duties in accordance to its mandate, merely because some of them had retired.
Thus, the fixation of date, in this case, is arbitrary as it deprives the benefit of
pay revision - which is otherwise made applicable to all employees who worked
during a particular period - to those who ceased to be in employment, despite
working in the said period. It was submitted that those who worked for the
period 2000-2005 are in the same class of employees, who worked after the so
called cut-off date, i.e., 01.01.2006.
10. It was submitted that all those in employment, including those who were
finally deprived of the pay revision on account of retirement, were granted three
interim reliefs by the MSFC from September, 1993 onwards (on 03.03.1994,
29.04.1996, and 07.09.1996) towards the recommendations of the Fifth Pay
Commission, in line with directions of the Maharashtra government.
11. It was further argued that no recoveries were made (under the impugned
GR dated 29.03.2010) of the amount paid towards interim relief and ad hoc
amount paid to existing employees from September, 1993 to July, 2001 which
shows that the Fifth Pay Commission’s recommendations were implemented
12. Mr. Salva further submitted that the total liability of the MSFC is not
more than ₹32 crores, in respect of past employees, including those who had
retired, sought VRS, or had died before the pay revision was made effective.
The figure of existing employees, as on the date of the issuance of the order was
114; 130 had retired and 631 had sought voluntary retirement. However, all of
them had benefited and secured interim relief to the extent of 30%, through the
orders of the MSFC itself. In these circumstances, singling out existing
employees from a homogenous larger group, amounted to hostile discrimination
against those left out.
13. It was submitted that those who had sought voluntary retirement cannot
be left out, on the ground that they had secured benefits and not completed their
tenure. In this regard, Mr. Salva placed reliance on the following condition
(Clause 5) of the VRS scheme2:
“The officers/employees whose request for voluntary retirement is accepted
by the Corporation will be entitled for payment of arrears on account of
revision of pay-scales and allowances as also for the difference of voluntary
retirement benefits accruing to them on account of revision of pay-scales, if
and as may be made effective retrospectively to the employees of the
Corporation by the Board and approved by Govt. of Maharashtra and
2 Introduced by the MSFC’s Office Order No. 14 dated 29.03.1996
14. Reliance was placed on the decisions of this court in Col B.J. Akkara
(Retd) v. Govt of India3 , D.S. Nakara v. Union of India4 to urge that the
employer cannot discriminate and divide a homogenous class of employees, and
deprive one section of them by the artificial device of a cut-off date.
15. Mr. Sachin Patil, learned counsel appearing for the respondents – the
State government, and MSFC, urged that the impugned judgment does not call
for interference. It was submitted that MSFC is an autonomous corporation
established under the State Financial Corporation Act. It is not bound to follow
the terms and conditions applicable to Maharashtra Government employees. In
fact, it has to independently generate its income from its own resources to meet
any additional burden or expenditure due to increased pay or increase in wages
for its employees. It was submitted that under Section 39 of the State Financial
Corporations Act, 1951 it has to seek guidance and directives of the State
Government in policy matters.
16. It was submitted that the MSFC was not bound by the decision of the
State to implement the decisions of the Fourth, Fifth and Sixth Pay
Commissions for its employees. In fact, the State never directed the Corporation
to implement such Pay Commission recommendations. It only approved a
proposal to extend the benefit of Fifth Pay Commission recommendations to the
Corporation’s employees in terms of its letter dated 23.09.2010. Before that, the
State refused to grant approval to the resolution passed by the Board of
Directors on 24.07.1996.
17. It was further argued that the employees of the Corporation cannot claim,
as a matter of right, any benefit of pay revision without MSFC’s ability to bear
the burden of such pay increase. Learned counsel highlighted that the
Corporation was running in losses as a result of which there was no justification
for granting the benefits in the terms claimed by the appellants.
18. It was submitted that the fixation of cut-off date is a policy matter,
especially in respect of revision of salaries, allowances, and the other benefits to
employees of a State Corporation. These depend on various considerations,
including financial constraints and the number of employees involved. It was
urged that the paying capacity of an employer is an important and valid
consideration of such an exercise. Granting any benefit to employees normally
involves fixing of cut-off date. If these factors are kept in mind, devising a
limited retrospective limit for the employees who are on the rolls of the
Corporation lessens the impact of the financial burden. Thus, the fixation of cut-
off date in the present case was not arbitrary.
19. It was urged that the claim of those who retired from the MFSC
prematurely by opting for VRS was to benefit both the parties, i.e., the
Corporation and the retiring employee. The Corporation benefitted by
decreasing its liability towards salary dues; on the other hand, the employee
concerned was not bound by any scheme but exercised an independent and
voluntary option to seek severance from the employment. For these reasons,
such employees were entitled to benefits over and above what they would have
earned if they had continued in service by way of ex-gratia payment, in respect
of a package which is generally called a golden handshake. The payment of
such amounts along with other terminal dues led to cessation of employment;
consequently, the claim of such employees who have already secured benefits
by way of ex-gratia payouts towards pay revision was not justified. It was
submitted that the appellant association’s grievance espouses the cause of 835
ex-employees, a large number of whom are those who opted for voluntary
retirement. There can be no complaint of discrimination on their part. It was
submitted that apart from financial constraints, the other independent
justification for limiting pay benefits to those 115 existing employees is sound,
i.e., to motivate them to recover maximum amounts from the Non-Performing
Assets (NPA) accounts. This rationale is relevant since the MSFC has incurred
losses over the years.
20. Mr. Patil, learned counsel relied upon some decisions of the Court, A.K.
Bindal & Anr. v. Union of India & Ors. 5; State of Punjab & Ors. v. Amar Nath
Goyal & Ors.6 and State of Rajasthan & Anr. v. Amritlal Gandhi & Ors. 7, to
urge that the financial implications upon the employer is a relevant factor which
the Court must weigh while adjudging whether implementation of any policy is
21. A close analysis of the facts would show that the question of pay revision
of employees of MSFC has been engaging attention for a considerable period of
time. Apparently, the recommendations of the Fifth Pay Commission had been
made and were implemented by the State Government with effect from
01.01.1996. However, the MSFC, did not, finalise whether to adopt those scales
for its employees and sent the proposal to the State Government (as provided
under S. 39 of the State Financial Corporations Act). In the meanwhile, interim
relief of pay revision was granted to all existing employees. Some of these
orders granting interim relief towards pay revisions have been placed on the
record. They are orders/decisions dated 03.03.1994 (Office Order No.191);
03.03.1994 (Office Order No. 19); 11.10.1995 (Office Order No.73); and
07.09.1996 (Office Order No.66), which are part of the appeal records. Those
employees who were on the rolls of MSFC between 01.01.1996 and 29.03.2010
concededly enjoyed the benefits of these interim payments. On 29.03.2010,
MSFC decided to implement the pay revision recommendations of the Fifth Pay
22. The decision to make the pay revision effective in respect of the
employees who were existing employees and limit the arrears payable from
01.01.2006, is based upon the State of Maharashtra letter dated 29.03.2010 8.
That decision was placed on the record during the hearing and reads as follows:
“Government of Maharashtra
The proposal for implementation of 5th Pay Commission to the employees of
Maharashtra State Financial Corporation was under consideration of the
Government. The Government has taken following decision in this regard.
The Government has given its consent vide this Order for implementation of
revised Pay Scales as per 5th Commission subject to the following terms to the
employees/officers of Maharashtra State Financial Corporation as shown in
Column No.5 of the enclosed Annexure ‘A’.
1. The revised pay as per 5th Pay Commission will be made applicable w.e.f.
01.01.2006 to Officers/Employees on the rolls of the Corporation as
mentioned in Column No.3 of the Annexure ‘A’ of the Corporation.
2. No arrears on account of revised pay scales will be made applicable prior
to 01.01.2006.
3. Maharashtra State Financial Corporation will have to bear liabilities
(Salary and Arrears) on account of above revision in pay scales from its
own income. The Government will not make any financial provision for the
same.
4. As per revised pay scales, other eligible allowances will be payable to the
employees as per rules.
5. The Corporation should obtain an undertaking in respect of revised pay
scales from Employees’ Union.
2. This Government decision is issued in terms of Finance Department’s informal
reference no.23/2010/PU dated 05.02.2010.
In the name and Order of the Governor of Maharashtra.”
23. By Office Order dated 09.04.2010, the MSFC decided to implement the
decision of the Government of Maharashtra and grant the benefits of the Fifth
Pay Commission to employees of the Corporation who were on its rolls on that
date. That order9 itself contains a reason why the cut-off date was resorted to as
is evident from its express terms, i.e., that the State Government approved that
cut-off date, “in order to motivate the present staff to recover maximum amount
in NPA Accounts”. Relevant para reads as follows:
Re: Implementation of Fifth Pay Commission to the Employees of the
1. The Govt. of Maharashtra in order to motivate the present staff to
recover maximum amount in NPA Accounts, vide its GR
No.SFC-2009/(422)/Industries-7 dated 29.03.2010 has decided to
implement Fifth Pay Commission to the employees of the Corporation who
are on the roll of the Corporation as on date of the issue of the
Government GR subject to terms and conditions as mentioned in the said
9 Office Order No.1 dated 09.04.2010
24. The benefit of pay revision was made applicable to the employees of the
Corporation; the terms and conditions of fixation and the grant of benefits to the
extent they are relevant, are extracted below:
(i) The revised pay scale will be made applicable to the employees who are presently
on the roll of MSFC as mentioned in the Annexure ‘A’ attached to the Govt. GR
dated 29.03.2010.
(ii) The revised pay will be fixed w.e.f. 01.01.1996 as per the formula of Fifth Pay
(iii) The employees of the Corporation will not be held eligible for arrears from
01.01.1996 to 31.12.2005.
(x) Interim Reliefs (IR) paid from 01.01.2006 to 31.03.2010 will be recovered from
arrears to be paid to the employees. However, interim reliefs paid from 18.09.96
to 31.12.2005 will not be recovered.
(xi) Salary as per revised Pay Scale will be paid from 01.04.2010 and arrears for the
period from 01.01.2006 to 31.03.2010 will be paid in two instalments on or
before 31st May, 2010.”
The fixation of pay as per revised pay-scales condition, in the said order, reads
“6. Fixation of pay as per revised pay scale:
The revised pay of the employees of the Corporation will be fixed
with effect from 01.01.1996 as per the formula of the Fifth Pay
Commission as mentioned below:
3. Add: Amount of 1st Interim Relief i.e. Rs.100/- only.
4. Add: Amount of 2nd Interim Relief i.e. 10% of old Basic Pay
(subject to minimum Rs.100/-).
5. Add: 40% of old Basic Pay as on 01.01.1996 as loading.
25. The appellants have placed on record and relied upon the minutes of
MSFC’s Board Meeting dated 06.07.2017, which in Item No.9 had discussed
the question of pay revision. The note placed in Item no.2 of the said note reads
“2. The Corporation has granted interim relief from Sept. 1993
towards proposed revision in Pay Sale on line of the Govt. of Maharashtra
Besides aforesaid interim relief, the Corporation also gave lumpsum
adhoc amount towards Revision of Pay Scale from September, 1996 to July,
The note also set out the number of employees concerned, as follows:
“There were 950 employees on the roll of the Corporation as on
01.01.1996. The Corporation has worked out arrears amount based on
average basis of the amount of the arrears paid to existing employees. The
total net liability works out to Rs.39.08 crore after deducting amount of
interim relief and ad-hoc payment, the details of which are as under:
Sr.No. Particulars No. of Estimated Amount Net
26. It is noticeable from the facts that two justifications were provided by the
MSFC to deny the benefit of pay revisions, in terms of the Fifth Pay
Commission recommendations. One, that it is “in order to motivate the present
staff to recover maximum amount in NPA Accounts…” and two, that the
fixation of cut-off date falls within the state’s policy making domain, involving
among others - an important consideration, which is the state’s financial
concerns, which the court should not interfere in.
27. That on whether, and what should be the extent of pay revision, are
undoubtedly matters falling within the domain of executive policy making. At
the same time, a larger public interest is involved, impelling revision of pay of
public officials and employees. Sound public policy considerations appear to
have weighed with the Union and state governments, and other public
employers, which have carried out pay revision exercises, periodically (usually
once a decade, for the past 50 years or so). The rationale for such periodic pay
revisions is to ensure that the salaries and emoluments that public employees
enjoy, should keep pace with the increased cost of living and the general
inflationary trends, and ensure it does not adversely impact employees. Pay
revisions also subserve other objectives, such as enthusing a renewed sense of
commitment and loyalty towards public employment. Another important public
interest consideration, is that such revisions are meant to deter public servants
from the lure of gratification; of supplementing their income by accepting
money or other inducements for discharging their functions.
28. Article 43 of the Constitution10 obliges the state to ensure that all workers,
industrial or otherwise, are provided with a living wage and assured of a decent
standard of living. In this context, the need for providing a mechanism to
neutralize price increase, through dearness allowance has been emphasized, in
past decisions of this court. In Hindustan Lever Ltd. v. B.N. Dongre 11, the court
explained that if pay packets are “frozen”, the purchasing power of the wage
would shrink, and there would be a fall in real wages, which needs to be
neutralized. The court also noted neutralization of wages, through dearness
allowance is on a “sliding scale” with those at the lowest wage bracket, getting
full neutralization and those in the highest rungs being given the least of such
10 “Article 43. Living wage, etc, for workers The State shall endeavour to secure, by suitable
legislation or economic organisation or in any other way, to all workers, agricultural, industrial or
otherwise, work, a living wage, conditions of work ensuring a decent standard of life and full
enjoyment of leisure and social and cultural opportunities and, in particular, the State shall
endeavour to promote cottage industries on an individual or co-operative basis in rural areas.”
“Workers are therefore concerned with the purchasing power of the pay-
packet they receive for their toil. If the rise in the pay-packet does not keep
pace with the rise in prices of essentials the purchasing power of the pay-
packet falls reducing the real wages leaving the workers and their families
worse off. Therefore, if on account of inflation prices rise while the pay-
packet remains frozen, real wages will fall sharply. This is what happens in
periods of inflation. In order to prevent such a fall in real wages different
methods are adopted to provide for the rise in prices. In the cost-of-living
sliding scale systems the basic wages are automatically adjusted to price
changes shown by the cost-of-living index. In this way the purchasing power
of workers' wages is maintained to the extent possible and necessary.
However, leap-frogging must be avoided. This Court in Clerks & Depot
Cashiers of Calcutta Tramways Co. Ltd. v. Calcutta Tramways Co.
Ltd. [AIR 1957 SC 78], held that while awarding dearness allowance cent
per cent neutralisation of the price of cost of living should be avoided to
check inflationary trends. That is why in Hindustan Times
Ltd. v. Workmen [AIR 1963 SC 1332] Das Gupta, J. observed that the whole
purpose of granting dearness allowance to workmen being to neutralise the
portion of the increase in the cost of living, it should ordinarily be on a
sliding scale and provide for an increase when the cost-of-living increases
and a decrease when it falls. The same principle was reiterated in Bengal
Chemical and Pharmaceutical Works Ltd. v. Workmen [AIR 1969 SC 360]
and Shri Chalthan Vibhag Khand Udyog Sahakari Mandli Ltd. v. G.S.
Barot, Member, Industrial Court, Gujarat [(1979) 4 SCC 622] and it was
emphasised that normally full neutralisation is not given except to the
lowest class of employees and that too on a sliding scale.”
29. Therefore, the state and public employers have an obligation to address –
as a measure of public interest, the ill-effects of rise in the cost of living, on
account of price rise, which results in fall in real wages. This obligation should
be discharged on a periodic basis. Yet, there cannot be any straitjacket formula
as to when such pay revisions are to be made and to what extent revisions
should take place. As a general practice, the Union and state governments have
been undertaking such exercises each decade.
30. Returning to the facts of this case, it is evident that the respondents have
confined the grant of revised pay scales to employees existing as on 29.03.2010.
Whilst the fixation of cut-off date for the grant of benefits cannot be questioned,
what is within the domain of the court, is to examine the impact of such fixation
and whether it results in discrimination. In the present case, the Pay
Commission’s recommendations for pay revision were with effect from
01.01.1996. However, the State and MSFC decided not to implement it from
that date, but with effect from 01.01.2006, i.e., a decade later, because the
benefit given to employees (or arrears) on the rolls of MSFC as on 29.03.2010
were confined or limited to arrears payable from 1 January 2006. At the same
time, fitment and fixation of salary was with effect from 1 January 1996, in
terms of Para 6 of the MSFC’s circular dated 09.04.2010, which stipulated that
revised salary “will be fixed with effect from 01.01.1996 as per the formula of
the Fifth Pay Commission as mentioned below”. The formula was: “Old Basic
Pay as on 01.01.1996 Add: applicable DA as on 01.01.1996 Add: Amount of 1 st
Interim Relief, i.e., Rs.100/- only. Add: Amount of 2 nd Interim Relief, i.e., 10% of
old Basic Pay (subject to minimum Rs.100/-). Add: 40% of old Basic Pay as on
01.01.1996 as loading =Total (1 to 5)”. This fitment formula clearly envisioned
the fixation in the new scales, even if notionally, from 01.01.1996. Arrears were
made payable, based on that fitment and fixation, with effect from 01.01.2006.
31. Another significant fact is that interim relief had been directed and was
made payable, to all employees, between 01.01.1996 and 29.03.2010. The order
issued on 09.04.2010 stated that “interim reliefs paid from 18.09.1996 to
31.12.2005 will not be recovered”. This demonstrates that those who retired
between these dates, and those who continued in service, form part of the same
class. Further, there is also no distinction between those in service as on
01.01.2006 but retired before 29.03.2010 and those who continued thereafter.
32. This court held in State of J&K v. Triloki Nath Khosa 12 that
“Discrimination is the essence of classification and does violence to the
constitutional guarantee of equality only if it rests on an unreasonable basis”.
The question is whether the classification, excluding employees who retired
before 29.03.2010 and confining pay revision benefits (albeit with effect from
01.01.2006) result in discrimination.
33. In Maharashtra Forest Guards & Foresters Union v. State of
Maharashtra13 there was no quota reserved for the graduate Forest Guard for
promotion to the post of Forester. Seventy-five per cent of the posts were to be
filled through the regular promotion channel based on seniority and twenty-five
per cent “by selection of suitable persons from amongst the persons holding the
post of Forest Guard, on the basis of common merit list prepared by the
Additional Principal Chief Conservator of Forests (Administration Subordinate
Cadre), Maharashtra State, Nagpur, on the basis of result of the “Limited
Departmental Competitive Examination…”. A further condition for those
attempting the limited departmental exam was imposed, i.e., that only graduates
could apply and appear; that condition was challenged. This court held that the
condition was impermissible, as it amounted to creating a class within a class:
“The challenge is on the further rigour put on the eligibility to appear in
LDCE. The whole purpose of LDCE is to encourage and facilitate the
Forest Guards to get accelerated promotion on the basis of merit. Since
seniority is the criterion for promotion to three-fourth of the posts, one-
fourth is given a chance to compete in a competitive examination. It is also
to be noted that there is no quota prescribed on the basis of higher
educational qualification. The situation would have been different if, in the
first place, there had been a classification wherein 75% of the posts have to
be filled based on seniority and 25% reserved for graduates and again
subject to inter se merit in the competitive examination. That is not the
situation in the present case. The LDCE is meant for selection for promotion
from the entire lot of Forest Guards irrespective of seniority but subject to
minimum five years of service. In that situation, introducing an additional
restriction of graduation for participation in LDCE without there being any
quota reserved for graduates will be discriminatory and violative of Articles
14 and 16 of the Constitution of India since it creates a class within a class.
The merit of the 25% cannot be prejudged by a sub-classification. It violates
the equality and equal opportunity guarantees. The Forest Guards,
irrespective of educational qualifications, having formed one class for the
purpose of participation in LDCE, a further classification between
graduates and non-graduates for participating in LDCE is unreasonable. It
is a case of equals being treated unequally.”
34. In U.P. Raghavendra Acharya & Ors. v. State of Karnataka & Ors., 14 a
notification dated 22.07.1999, issued by the State of Karnataka, denied revised
scales of pay to those teachers who had retired during the period from
01.01.1996 to 31.03.1998. The High Court held that the impugned notifications
were arbitrary as these resulted in discrimination between the teachers working
in the government colleges and the teachers working in the Non-Government
Colleges, which would mean treating the equals unequally. It was further
opined that, in any event, the teachers of the Government Aided Colleges as
also the teachers of the Regional Engineering Colleges formed a class by
themselves and no discrimination could have been made between the employees
who retired prior to 31.03.1998 and those retiring subsequent thereto. This court
held that the discrimination, brought about on the basis of date of retirement,
“The State while implementing the new scheme for payment of grant of
pensionary benefits to its employees, may deny the same to a class of retired
employees who were governed by a different set of rules. The extension of
the benefits can also be denied to a class of employees if the same is
permissible in law. The case of the appellants, however, stands absolutely
on a different footing. They had been enjoying the benefit of the revised
scales of pay. Recommendations have been made by the Central
Government as also the University Grant Commission to the State of
Karnataka to extend the benefits of the Pay Revision Committee in their
favour. The pay in their case had been revised in 1986 whereas the pay of
the employees of the State of Karnataka was revised in 1993. The benefits of
the recommendations of the Pay Revision Committee w.e.f. 1.1.1996, thus
could not have been denied to the appellants.
The stand of the State of Karnataka that the pensionary benefits had been
conferred on the appellants w.e.f. 1.4.1998 on the premise that the benefit of
the revision of scales of pay to its own employees had been conferred from
1.1.1998, in our opinion, is wholly misconceived. Firstly, because the
employees of the State of Karnataka and the appellants, in the matter of
grant of benefit of revised scales of pay, do not stand on the same footing as
revised scales of pay had been made applicable to their cases from a
different date. Secondly, the appellants had been given the benefit of the
revised scales of pay w.e.f. 1.1.1996. It is now well settled that a notification
can be issued by the State accepting the recommendations of the Pay
Revision Committee with retrospective effect as it was beneficent to the
employees. Once such a retrospective effect is given to the recommendations
of the Pay Revision Committee, the concerned employees despite their
reaching the age of superannuation in between the said dates and/or the
date of issuance of the notification would be deemed to be getting the said
scales of pay as on 1.1.1996. By reason of such notification as the
appellants had been derived of a vested right, they could not have been
deprived therefrom and that too by reason of executive instructions.
The contention of the State that the matter relating to the grant of
pensionary benefits vis-à-vis the revision in the scales of pay stands on
different footing, thus, must be rejected.”
35. In All Manipur Pensioners Association by its Secretary v. State of
Manipur & Ors.15 the classification by which the formula of pension, whereby
those retiring prior to 01.01.1996 were given a lower rate of revised pension, as
compared to those retiring later (who were given a higher rate of revision), was
held to be discriminatory:
“The facts leading to the present appeal in a nutshell are as under : that the
State of Manipur adopted the Central Civil Services (Pension) Rules, 1972,
as amended from time to time. As per Rule 49 of the Central Civil Services
Rules, 1972, a case of a government employee retired in accordance with
the provisions of the Rules after completing qualifying service of not less
than 30 years, the amount of pension shall be calculated at 50% of the
average emoluments subject to a maximum of Rs 4500 per month. It appears
that considering the increase in the cost of living, the Government of
Manipur decided to increase the quantum of pension as well as the pay of
the employees. That the Government of Manipur issued an office
memorandum dated 21-4-1999 revising the quantum of pension. However,
provided that those Manipur Government employees who retired on or after
1-1-1996 shall be entitled to the revised pension at a higher percentage and
those who retired before 1-1-1996 shall be entitled at a lower percentage.
Even otherwise on merits also, we are of the firm opinion that there is no
valid justification to create two classes viz. one who retired pre-1996 and
another who retired post-1996, for the purpose of grant of revised pension.
In our view, such a classification has no nexus with the object and purpose
of grant of benefit of revised pension. All the pensioners form one class who
are entitled to pension as per the pension rules. Article 14 of the
Constitution of India ensures to all equality before law and equal protection
of laws. At this juncture it is also necessary to examine the concept of valid
classification. A valid classification is truly a valid discrimination. It is true
that Article 16 of the Constitution of India permits a valid classification.
However, a valid classification must be based on a just objective. The result
to be achieved by the just objective presupposes the choice of some for
differential consideration/treatment over others. A classification to be valid
must necessarily satisfy two tests. Firstly, the distinguishing rationale has to
be based on a just objective and secondly, the choice of differentiating one
set of persons from another, must have a reasonable nexus to the objective
sought to be achieved. The test for a valid classification may be summarised
as a distinction based on a classification founded on an intelligible
differentia, which has a rational relationship with the object sought to be
achieved. Therefore, whenever a cut-off date (as in the present controversy)
is fixed to categorise one set of pensioners for favourable consideration
over others, the twin test for valid classification or valid discrimination
therefore must necessarily be satisfied.
In the present case, the classification in question has no reasonable
nexus to the objective sought to be achieved while revising the pension. As
observed hereinabove, the object and purpose for revising the pension is
due to the increase in the cost of living. All the pensioners form a single
class and therefore such a classification for the purpose of grant of revised
pension is unreasonable, arbitrary, discriminatory and violative of Article
14 of the Constitution of India. The State cannot arbitrarily pick and choose
from amongst similarly situated persons, a cut-off date for extension of
benefits especially pensionary benefits. There has to be a classification
founded on some rational principle when similarly situated class is
differentiated for grant of any benefit.
As observed hereinabove, and even it is not in dispute that as such a
decision has been taken by the State Government to revise the pension
keeping in mind the increase in the cost of living. Increase in the cost of
living would affect all the pensioners irrespective of whether they have
retired pre-1996 or post-1996. As observed hereinabove, all the pensioners
belong to one class. Therefore, by such a classification/cut-off date the
equals are treated as unequals and therefore such a classification which has
no nexus with the object and purpose of revision of pension is unreasonable,
discriminatory and arbitrary and therefore the said classification was
rightly set aside by the learned Single Judge of the High Court. At this
stage, it is required to be observed that whenever a new benefit is granted
and/or new scheme is introduced, it might be possible for the State to
provide a cut-off date taking into consideration its financial resources. But
the same shall not be applicable with respect to one and single class of
persons, the benefit to be given to the one class of persons, who are already
otherwise getting the benefits and the question is with respect to revision.
In view of the above and for the reasons stated above, we are of the
opinion that the controversy/issue in the present appeal is squarely covered
by the decision of this Court in D.S. Nakara [D.S. Nakara v. Union of India,
(1983) 1 SCC 305. The decision of this Court in D.S. Nakara shall be
applicable with full force to the facts of the case on hand. The Division
Bench of the High Court has clearly erred in not following the decision of
this Court in D.S. Nakara and has clearly erred in reversing the judgment
and order of the learned Single Judge. The impugned judgment and order
passed by the Division Bench is not sustainable and the same deserves to be
quashed and set aside and is accordingly quashed and set aside. The
judgment and order passed by the learned Single Judge is hereby restored
and it is held that all the pensioners, irrespective of their date of retirement
viz. pre-1996 retirees shall be entitled to revision in pension on a par with
those pensioners who retired post-1996. The arrears be paid to the
respective pensioners within a period of three months from today.”
36. In the present case, too, there is no denial that the employees who retired
prior to 29.03.2010 discharged the same duties as in the case of those who did
thereafter. The quality and content of responsibilities assigned to them were the
same. The respondents’ decision not to grant arrears prior to 01.01.2006 cannot
be found fault with; however, not to grant any revision to those who were not in
service when the order implementing the pay revision was issued and confining
it to those, in employment is clearly discriminatory. The rationale that granting
such pay revision only to existing employees would be to enthuse them to
recover NPA amounts payable to MSFC has no rational nexus with the object
sought to be achieved by the pay revision, which is to benefit employees and
protect them from the rise in the cost of living.
37. In the present case, therefore, applying the ratio in the above decisions, it
is clear that there is no distinction between those who retired (or died in service)
before 29.03.2010 and those who continued in service - and were given the pay
revision. Those who worked during the period 01.01.2006 to 29.03.2010 and
those who continued thereafter, fell in the same class, and a further distinction
could not be made. The fact that the MSFC did not recover any interim relief, or
ad-hoc amount disbursed between 18.09.1996 to 31.12.2005 (towards
recommendations of the 5th Pay Commission), also reaffirms that these ex-
employees belonged to the same class as those that received the benefit of the
pay revisions. The exclusion of the retired employees, who retired between
01.01.2006 and 29.03.2010 on achieving their date of superannuation, is
violative of Article 14 of the Constitution of India.
38. However, in the opinion of this court, employees who secured VRS
benefits and left the service of MSFC voluntarily during this period, stand on a
different footing. They cannot claim parity with those who worked
continuously, discharged their functions, and thereafter superannuated. VRS
employees chose to opt and leave the service of the corporation; they found the
VRS offer beneficial to them. Apart from the normal terminal benefits they
were entitled to, the additional amount each of them was given - was an ex-
gratia amount, equal to a month’s salary for each completed year of service.
Other retired employees were never given such amounts. This has been
emphasized in A.K. Bindal v. Union of India (supra):
“The Voluntary Retirement Scheme (VRS) which is sometimes called
Voluntary Separation Scheme (VSS) is introduced by companies and
industrial establishments in order to reduce the surplus staff and to bring in
financial efficiency. The office memorandum dated 5-5-2000 issued by the
Government of India provided that for sick and unviable units, the VRS
package of the Department of Heavy Industry will be adopted. Under this
Scheme an employee is entitled to an ex gratia payment equivalent to 45
days' emoluments (pay + DA) for each completed year of service or the
monthly emoluments at the time of retirement multiplied by the balance
months of service left before the normal date of retirement, whichever is
less. This is in addition to terminal benefits. The Government was conscious
about the fact that the pay scales of some of the PSUs had not been revised
with effect from 1-1-1992 and therefore it has provided adequate
compensation in that regard in the second VRS which was announced for all
Central public sector undertakings on 6-11-2001. Clause (a) of the Scheme
(a) Ex gratia payment in respect of employees on pay scales at 1-1-1987
and 1-1-1992 levels, computed on their existing pay scales in accordance
with the extant Scheme, shall be increased by 100% and 50% respectively.
This shows that a considerable amount is to be paid to an employee ex
gratia besides the terminal benefits in case he opts for voluntary retirement
under the Scheme and his option is accepted. The amount is paid not for
doing any work or rendering any service. It is paid in lieu of the employee
himself leaving the services of the company or the industrial establishment
and foregoing all his claims or rights in the same. It is a package deal of
give and take. That is why in the business world it is known as “golden
handshake”. The main purpose of paying this amount is to bring about a
complete cessation of the jural relationship between the employer and the
employee. After the amount is paid and the employee ceases to be under the
employment of the company or the undertaking, he leaves with all his rights
and there is no question of his again agitating for any kind of his past rights
with his erstwhile employer including making any claim with regard to
enhancement of pay scale for an earlier period. If the employee is still
permitted to raise a grievance regarding enhancement of pay scale from a
retrospective date, even after he has opted for Voluntary Retirement Scheme
and has accepted the amount paid to him, the whole purpose of introducing
the Scheme would be totally frustrated.”
39. For the above reasons, it is held that VRS employees cannot claim parity
with others who retired upon achieving the age of superannuation. Likewise,
those who ceased to be in employment, for the reason of termination, or their
dismissal, etc., would not be entitled to the benefit of pay revision.
40. In view of the above findings, the impugned judgment and order is
hereby set aside. The appeal is accordingly allowed, to the extent that those who
retired from the services of MSFC between 01.01.2006 to 29.03.2010, and the
legal heirs/representatives of those who died during that period, shall be entitled
to arrears based on pay revision, accepted by the Corporation. The Corporation
is directed to pay interest @ 8% p.a. on these arrears from 01.04.2010 till the
date of this judgment. These amounts shall be calculated and disbursed to those
individuals within eight weeks from today. The appeal is partly allowed, in the
above terms. There shall be no order on costs.
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The Supreme Court has held that employees who retired under the Voluntary Retirement Scheme (VRS) cannot claim parity with others who retired upon achieving the age of superannuation for the purposes of pay revision.
Factual Matrix leading to the Civil Appeal
What was up for challenge before the bench of Justices Aniruddha Bose and S. Ravindra Bhat in this civil appeal was a decision of the Bombay High Court (Nagpur bench) wherein the Maharashtra State Financial Corporation Ex-Employees Association had challenged the decision dated 29.03.2010 taken by the State of Maharashtra on ground of it being discriminatory and arbitrary.
The decision denied the benefit of revision of pay scales, as recommended by the Fifth Pay Commission, to the employees of the Maharashtra State Financial Corporation (MSFC) who had retired or died during the period of 01.01.2006 to 29.03.2010. That decision of the State made the revision of pay scale as a result of the Report of the Fifth Pay Commission applicable to 115 employees of MSFC who were working as on 29.03.2010. The revision, however, was given effect from 01.01.2006.
Impugned Order
By the impugned order, the High Court rejected the contentions raised by the Appellant association and accepted the submissions of MSFC and the State, that financial considerations were of importance in regard to grant or denial of monetary benefits.
Appellant's contentions
Mr. Jay Salva advancing his arguments on behalf of the Appellant Association broadly made the following four-point submissions:
1. That the Appellants were in continuous service, and had even received the benefit of interim revision, pending finalisation of pay scales pursuant to the Pay Commission Report.
2. That those in employment on and after 29.03.2010, and those who continued in service after 01.01.2006 but retired before 29.03.2010, belonged to the same category. The only difference between those who were in service after the latter date, was that they had longer period of service.
3. That the crucial date for grant of pay revision, was the date from which it was given effect to, i.e., 01.01.2006. As all the appellants were in service as on that date, the denial of pay revision, which was concededly for the period they had worked, amounted to not only hostile discrimination, but also withholding of pay revision benefits, legitimately and rightfully theirs.
4. That the total liability of the MSFC is not more than ₹32 crores, in respect of past employees, including those who had retired, sought VRS, or had died before the pay revision was made effective.
Contentions of MSFC and the State
Advocate Sachin Patil appearing for the Respondents broadly made the following four-point submissions:
1. That MSFC is an autonomous corporation established under the State Financial Corporation Act. It is not bound to follow the terms and conditions applicable to Maharashtra Government employees. In fact, it has to independently generate its income from its own resources to meet any additional burden or expenditure due to increased pay or increase in wages for its employees.
2. That under Section 39 of the State Financial Corporations Act, 1951 MSFC has to seek guidance and directives of the State Government in policy matters but it is not bound by the decision of the State to implement the decisions of the Fourth, Fifth and Sixth Pay Commissions for its employees.
3. That the employees of the Corporation cannot claim, as a matter of right, any benefit of pay revision without MSFC’s ability to bear the burden of such pay increase.
4. That the fixation of cut-off date is a policy matter, especially in respect of revision of salaries, allowances, and the other benefits to employees of a State Corporation. These depend on various considerations, including financial constraints and the number of employees involved.
Analysis and Judgment
While holding that revision of pay involves a larger public interest, the bench observed, "That on whether, and what should be the extent of pay revision, are undoubtedly matters falling within the domain of executive policy making".
While specifying that the court could not examine the fixation of cut-off date for the grant of benefits, the bench observed, "what is within the domain of the court, is to examine the impact of such fixation and whether it results in discrimination."
The bench further observed, "In the present case, too, there is no denial that the employees who retired prior to 29.03.2010 discharged the same duties as in the case of those who did thereafter. The quality and content of responsibilities assigned to them were the same. The respondents’ decision not to grant arrears prior to 01.01.2006 cannot be found fault with; however, not to grant any revision to those who were not in service when the order implementing the pay revision was issued and confining it to those, in employment is clearly discriminatory."
"...there is no distinction between those who retired (or died in service) before 29.03.2010 and those who continued in service - and were given the pay revision. Those who worked during the period 01.01.2006 to 29.03.2010 and those who continued thereafter, fell in the same class, and a further distinction could not be made," the bench added.
The court further held the exclusion of the retired employees, who retired between 01.01.2006 and 29.03.2010 on achieving their date of superannuation, as violative of Article 14 of the Constitution of India.
However, the court then laid down an exception. It observed, "However...employees who secured VRS benefits and left the service of MSFC voluntarily during this period, stand on a different footing. They cannot claim parity with those who worked continuously, discharged their functions, and thereafter superannuated. VRS employees chose to opt and leave the service of the corporation; they found the VRS offer beneficial to them...For the above reasons, it is held that VRS employees cannot claim parity with others who retired upon achieving the age of superannuation. Likewise, those who ceased to be in employment, for the reason of termination, or their dismissal, etc., would not be entitled to the benefit of pay revision."
Holding thus, the bench allowed the appeal to the extent that those who retired from the services of MSFC between 01.01.2006 to 29.03.2010, and the legal heirs/representatives of those who died during that period, are entitled to arrears based on pay revision, accepted by the Corporation.
Case Title: MAHARASHTRA STATE FINANCIAL CORPORATION EX-EMPLOYEES ASSOCIATION & ORS. VERSUS STATE OF MAHARASHTRA & ORS. CIVIL APPEAL NO(S). 778 OF 2023 [@ SPECIAL LEAVE PETITION (CIVIL) NOS.1902 OF 2019]
For Petitioner(s) Mr. Nitin S. Tambwekar, Adv. Mr. Seshatalpa Sai Bandaru, AOR
For Respondent(s) Mr. Santosh Paul, Sr. Adv. Mr. Sriharsh N. Bundela, Adv. Mr. Akshay Kumar, Adv. Mr. Maithreya Shetty, Adv. Mr. M. J. Paul, AOR Mr. Sachin Patil, Adv. Mr. Siddharth Dharmadhikari, Adv. Mr. Aaditya Aniruddha Pande, AOR Mr. Bharat Bagla, Adv. Ms. Kirti Dadheech, Adv. Mr. Geo Joseph, Adv. Mr. Risvi Muhammed, Adv. Mr. Durgesh Gupta, Adv.
Service Law - VRS employees cannot claim parity with others who retired upon achieving the age of superannuation - They cannot claim parity with those who worked continuously, discharged their functions, and thereafter superannuated. VRS employees chose to opt and leave the service of the corporation; they found the VRS offer beneficial to them-Para 39
Service Law - Pay revision is a matters falling within the domain of executive policy making-What is within the domain of the court, is to examine the impact of such fixation and whether it results in discrimination - Para 27
Read the Judgment Here
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1. These Criminal Appeals are directed against the
judgment of the High Court of Madhya Pradesh at Gwalior
by which the conviction of the Appellants under Sections
147, 302/149, 325/149, 324/149, 323/149 and their
sentences were upheld. On the oral report given by Solal
son of Girdhari (PW-10), FIR No.48 of 1995 was registered
at Police Station Kumbhraj, Guna, Madhya Pradesh. The
informant Solal son of Girdhari stated that Babulal Lodha
son of Prabhulal Lodha and Shankarlal (PW-11) had an
altercation with Shriram and others during the day time on
19.08.1995. After sunset, Shriram Sarpanch, Biram,
Nathulal, Laxminarayan, Sholal son of Gopal Lodhi,
Hiralal, Dhurya, Bansilal, Hazari, Parmanand, Bala Bux son
of Balram, Ram Narayan Lodha armed with farsa, lathi,
ballam, spear and sword attacked Shankarlal (PW-11) and
Babulal Lodha. The informant along with Rodibai (PW-1),
(PW-6), Bala Bux (PW-7), Panchulal (PW-8) and Kesharbai
(PW-9) rushed to rescue Shankarlal (PW-11) and Babulal
son of Prabhulal Lodha. Shriram, Devlal, Gyarasi, Shrilal,
Kamarlal, Ramesh @ Barya, Nathulal, Sholal son of Gopal
Hazari, Parmanand, Bala Bux son of Balram, Ramnarayan,
Laxmi Narayan and Viram @ Virma assaulted the
informant and others who reached the place of incident
with farsa, spear and sword and inflicted injuries on their
heads, legs, back and other parts of the body. The
Appellants were charged under Section 302 and 324 IPC,
alternatively under Sections 147, 302/149, 324/149,
329/149 IPC. There were a total of 21 accused apart from
the two juveniles Ram Narayan and Kanhaiya Lal. 14
witnesses were examined on behalf of the prosecution.
2. On a consideration of the evidence adduced by the
prosecution, the Trial Court held the accused guilty of
committing offences under Section 147, 302/149 for
committing murder of Babulal and under Sections 325/149,
324/149, 323/149 for voluntarily causing hurt to Rodibai (PW-
(PW-6), Bala Bux (PW-7), Panchulal (PW-8) and Kesharbai (PW-
9), Solal son of Girdhari (PW-10) and Shankarlal (PW-11). The
accused were sentenced to life imprisonment for the offence
punishable under Section 302 read with 149 IPC, 3 years
rigorous imprisonment under Section 325/149, 2 years
rigorous imprisonment under section 324/149 and six months
for each count under Section 323/149 IPC. The Trial Court
noticed that except Shankarlal (PW-11), the other witnesses
reached the place of occurrence after the accused assaulted
Babulal son of Prabhulal and Shankarlal. However, the Trial
Court found that the oral testimony of Shankarlal (PW-11) is
creditworthy and there is sufficient corroboration from the
ocular evidence of the other injured witnesses. The Trial Court
observed that the inconsistencies in the testimonies of the
injured eye-witnesses are trivial and their evidence cannot be
rejected on that ground. According to the Trial Court, a
cumulative reading of the oral testimony of the injured eye-
witnesses conclusively proved that the accused inflicted a
fatal injury on the head of the deceased Babulal. The injury
certificates and the oral testimonies of Dr. A.D. Bhindurkar
(PW-13) and Dr. Sitaram Singh (PW-15) was scrutinized by the
Trial Court and the submission on behalf of the defence that
there is a contradiction between the ocular testimony of the
witnesses and the medical evidence was rejected.
3. The High Court dismissed the appeals filed by the
Appellants by holding that there was no error committed by
the Trial Court. The discrepancies in the statements made by
the witnesses in Court were held to be minor in nature on the
basis of which the Appellants cannot be said to be not guilty.
The attack made by all the accused on the deceased Babulal
and the injured witnesses has been narrated by them in one
voice, though with some minor variations.
4. Daulal (A-12), Bhima (A-13), Hazari (A-14), Bala Bux son
of Balram (A-15), Mool Chand (A-19) and Hira Lal (A-21) have
Sholal son of Gopal Lodhi (A-11), Viram (A-18) and Shriram (A-
20) are before this Court in the above Appeals.
5. The Appellants contended that the depositions of all the
witnesses is not supported by medical evidence in respect of
the nature of injuries, number of injuries and the nature of
weapons that were used by the accused. Reliance was placed
on judgments of this Court in Amar Singh v. State of
Punjab1 and Ram Narain Singh v. State of Punjab 2 to
submit that the incongruity in the statements of the eye-
witnesses and the medical evidence is vital and the accused
are entitled for acquittal. The Appellants submitted that only
Shankarlal (PW-11) was a witness to the assault on the
deceased and all the other injured eye-witnesses, admittedly,
arrived at the scene of occurrence, later. Therefore, their
evidence cannot be relied upon by the prosecution to convict
the Appellants under Section 302 read with 149 IPC. Yet
another point raised on behalf of the Appellants is that the
ingredients of Section 149 IPC have not been made out and
the Appellants could not have been convicted with the aid of
Section 149 IPC. The learned Senior Counsel appearing for
the Appellant contended that, in any event, conviction under
Section 302/149 is harsh and excessive and an alternate
conviction under Section 326/149 may be imposed, if the
Court is inclined to uphold the judgment of the High Court.
6. The case of the prosecution is that interference with the
judgments of the Courts below is unwarranted in view of the
abundant evidence on record. Shankarlal (PW-11) is an eye-
witness to the murder of Babulal. The other injured eye-
witnesses corroborated the statement of PW-11. The
inconsistencies and discrepancies in the evidence of all the
eye-witnesses are trivial and cannot be resorted by the
Appellants to their benefit. Though there are certain
inconsistencies between the oral testimony of the witnesses
and medical evidence, the Appellants cannot seek reversal of
the judgments of the Courts below in view of the
overwhelming oral evidence on record.
7. It is well settled law that this Court does not normally re-
appreciate the evidence unless the assessment of the High
Court is vitiated by an error of law or procedure or is based on
error of record, misreading of evidence or is inconsistent with
the evidence. This Court does not enter into credibility of the
evidence with a view to substitute its own opinion for that of
the High Court3. Having scrutinised the record of the courts
below, we are of the considered view that there is no error
committed by them. The death of deceased Babulal was
caused due to the attack by the Appellants. However, the
submission of the Appellants that there is a contradiction in
the oral testimonies and the medical evidence requires
consideration. Shankarlal (PW-11) who is an injured witness
stated that he has seen the accused persons beating the
deceased Babulal. According to him, Shriram (A-20) gave a
sword blow on the head of Babulal. Dhurilal (A-4), Ramesh (A-
3 Dalbir Kaur & Ors. v. State of Punjab, (1976) 4 SCC 158
9), Bala Bux son of Balram (A-15) and others gave farsa blow
to Babulal. When confronted with the statement recorded by
the Police under Section 161 Cr. P.C., the said witness
submitted that he had stated to the Police about the
aforementioned covert acts and he is not aware as to why this
has not been mentioned in his statement. The other
witnesses corroborated the statement of PW-11 and also
spoke about the injuries caused to them by the Appellants.
Dr. A.D. Bhindurkar (PW-13) stated that the deceased was
brought to the hospital at 03:15 AM on 20.08.1995 and he
found the following injuries on his person:
1. “A torn wound in Y shape measuring 8 cm x 1.2 cm x 1.5
cm located on the skin in the region of left parietal bone,
which appears to have been inflicted by hard and blunt
weapon.
2. A bluish mark along with abrasion measuring 1 x 0.5 cm ·
located towards rear side on the joint of right elbow,
which appears to have been inflicted by hard and blunt
weapon.
3. A bluish mark along with abrasion measuring 2 x 2 cm
below left knee in the front region, which appears to have
been inflicted by hard and blunt weapon.
4. A bluish mark measuring 8 x 3 cm located on left side of
chest towards front, which appears to have been inflicted
by hard and blunt weapon.
5. A bluish mark on multiple areas measuring 12 cm x 3 cm
located on the back, which appears to have been inflicted
by hard and blunt weapon.”
Dr. A.D. Bhindurkar (PW-13) was of the opinion that
injury No.1 was fatal and all the other injuries are simple in
nature. He has also stated that the injuries were likely to
have been inflicted by truncheon or luhangi.
8. Babulal son of Prabhulal Lodha succumbed to the injuries
suffered by him. According to PW-13, the injuries were
caused by hard and blunt weapon. Sriram (A-20) who was
carrying a sword, Ramesh (A-9), Daulal @ Daulatram (A-12),
and Mool Chand (A-19) were carrying farsas and Sholal son of
Gopal Lodhi (A-11) was armed with a ballam. The remaining
accused were having sticks in their hands. Apart from some
minor aberrations in the testimony of the injured eye-
witnesses, they were consistent in speaking about the
weapons that were used by the accused.
9. The oral evidence discloses that there was an
indiscriminate attack by the accused on the deceased and the
other injured eye-witnesses. As found by the Courts below,
there is a contradiction between the oral testimony of the
witnesses and the medical evidence. In Amar Singh v.
State of Punjab (supra), this Court examined the point
relating to inconsistencies between the oral evidence and the
medical opinion. The medical report submitted therein
established that there were only contusions, abrasions and
fractures, but there was no incised wound on the left knee of
the deceased as alleged by a witness. Therefore, the
evidence of the witness was found to be totally inconsistent
with the medical evidence and that would be sufficient to
discredit the entire prosecution case.
10. In the instant case, the fatal injury was caused by a hard
and blunt weapon on the left parietal bone. There is no
corresponding injury to the weapons used by Ramesh (A-9),
Daulal @ Daulatram (A-12), Mool Chand (A-19) and Shriram
(A-20). Therefore, the conviction of the Appellants under
Section 302/149 is not justified. However, there is abundant
evidence on record to show that the Appellants attacked the
deceased and the injured witnesses with deadly weapons.
Therefore, the Appellants are liable to be convicted under
Section 326 read with 149 IPC.
11. The conviction of the Appellants under Sections 325/149,
324/149, 323/149 is confirmed. We are informed that the
Appellants have undergone a sentence of four and half years.
In the facts and circumstances of the case, we are of the
opinion that a sentence of seven years under Section 326/149
would meet the ends of justice.
12. While upholding the judgment of the High Court
regarding the conviction and sentence of the Appellants under
Sections 325/149, 324/149, 323/149 and the sentence
imposed for such offences, we convert the conviction under
Sections 302/149 to 326/149 and sentence from life
imprisonment to seven years. Needless to say, that we are
not expressing any view on the validity of Section 149 IPC
which question is left open.
13. The Appeals are partly allowed.
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The Supreme Court has converted the conviction of appellants from Murder (S.302/149) to Voluntarily causing grievous hurt by dangerous weapons (326/149) under the Indian Penal Code on the basis of inconsistencies between oral testimony of witnesses and medical evidence on record.A Bench of Justices L.Nageswara Rao and B.V.Nagarathna relied on Amar Singh v State of Punjab, wherein the...
The Supreme Court has converted the conviction of appellants from Murder (S.302/149) to Voluntarily causing grievous hurt by dangerous weapons (326/149) under the Indian Penal Code on the basis of inconsistencies between oral testimony of witnesses and medical evidence on record.
A Bench of Justices L.Nageswara Rao and B.V.Nagarathna relied on Amar Singh v State of Punjab, wherein the Supreme Court had examined the point relating to inconsistencies between oral evidence and medical opinion. In that case, it was held that the inconsistency between the medical evidence on record and the oral evidence of the witnesses was found to be sufficient to discredit the entire prosecution case.
In the present case, there were inconsistencies between the oral evidence of the eye witnesses and the medical report. The Trial Court had observed that the inconsistencies in the testimonies and evidence "were trivial" and that evidence could not be rejected on that ground itself. The High Court in its impugned judgement concurred that the discrepancies in the statements made by the witnesses in Court were held to be minor in nature on the basis of which the Appellants cannot be said to be not guilty.
The Appellants had relied on Amar Singh v State of Punjab [ 1987 1 SCC 679] and Ram Narain Singh v State of Punjab [1975 4 SCC 497] to argue that incongruity between statements of eyewitnesses and medical evidence is vital and thus the accused-appellants are entitled to acquittal.
"In Amar Singh v.State of Punjab (supra), this Court examined the point relating to inconsistencies between the oral evidence and the medical opinion. The medical report submitted therein established that there were only contusions, abrasions and fractures, but there was no incised wound on the left knee of the deceased as alleged by a witness. Therefore, the evidence of the witness was found to be totally inconsistent with the medical evidence and that would be sufficient to discredit the entire prosecution case", the judgment noted.
In the present case, the judgement notes the fatal injury (as noted by the medical report) does not correspond with the weapons used by the Respondents. On this basis, the Court has concluded that the conviction of the Appellants under Section 302 of the Indian Penal Code is not justified.
"In the instant case, the fatal injury was caused by a hard and blunt weapon on the left parietal bone. There is no corresponding injury to the weapons used by Ramesh (A-9), Daulal @ Daulatram (A-12), Mool Chand (A-19) and Shriram (A-20). Therefore, the conviction of the Appellants under Section 302/149 is not justified", the judgment authored by Justice Rao observed.
However, the Court holds that there is abundant evidence to show that the Appellants attacked the deceased with deadly weapons and therefore it is not a fit case for completely setting aside the prosecution case. The judgement notes:
"In the instant case, the fatal injury was caused by a hard and blunt weapon on the left parietal bone. There is no corresponding injury to the weapons used by Ramesh (A-9), Daulal @ Daulatram (A-12), Mool Chand (A-19) and Shriram (A-20). Therefore, the conviction of the Appellants under Section 302/149 is not justified. However, there is abundant evidence on record to show that the Appellants attacked the deceased and the injured witnesses with deadly weapons. Therefore, the Appellants are liable to be convicted under Section 326 read with 149 IPC." (Para 10)
Due to the aforementioned inconsistencies, the Court has converted the conviction of Appellants from Section 302/149 to 326/149 of the IPC.
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1. Feeling aggrieved and dissatisfied with the impugned
common judgment and order dated 06.12.2013 passed by the
High Court of Andhra Pradesh at Hyderabad in respective first
appeals No. 1634 of 2001 and other allied appeals, the original
land owners/claimants have preferred the present appeals
seeking enhancement of the amount of compensation for the
lands acquired.
2. Large extent of land in different survey number in Adrial
Village of Manthani Mandal, Karimnagar District came to be
acquired by the State Government for the benefit of Singareni
Collieries Company Limited. The lands were acquired for the
purposes of excavation of coal. Notification under Section 4(1)
of the Land Acquisition Act, 1894 (hereinafter referred to as ‘the
Act, 1894’) came to be issued on 13.05.1985. Declaration
under Section 6 of the Act 1894 was issued on 31.07.1985.
The Land Acquisition Officer passed the awards in the year
1987, fixing the market value for the acquired lands at
Rs.7,000/ per acre for Category 1 – Dry Lands under
Cultivation and at Rs.6000/ per acre for Category 2 – Dry
Lands Left Fallow. Not satisfied with the compensation
awarded by the Land Acquisition Officer, the land owners
sought references under Section 18 of the Act, 1894. The land
owners claimed the compensation at Rs.2 lakhs per acre. The
Reference Court fixed the market value at Rs.30,000/ per acre
and Rs.50,000/ per acre. The Reference Court also awarded
the compensation @ Rs.15,000/ per acre towards subsoil
mineral rights. By the impugned common judgment and order
the High Court has determined and awarded the compensation
@ Rs.80,000/ per acre considering the market value of the
land Rs.1,23,000/ per acre and thereafter deducting 1/3 rd.
The High Court has also in addition awarded Rs.10,000/ per
acre as part of the market value for subsoil rights.
2.1 Feeling aggrieved and dissatisfied with the impugned
common judgment and order passed by the High Court
determining and awarding the compensation at Rs.80,000/
per acre and Rs.10,000/ per acre for subsoil rights on
account of the coal deposits, the original claimants – land
owners have preferred the present appeals.
2.2 At the outset, it is required to be noted that against the
very impugned common judgment and order the beneficiary –
Singareni Collieries Company Limited approached this Court by
way of special leave petitions which have been dismissed. The
review applications are also dismissed. Therefore, the short
question which is posed for consideration before this Court is
whether the amount of compensation determined / awarded by
the High Court is required to be enhanced in the appeals
preferred by the original claimants/land owners?
3. Learned Counsel appearing on behalf of the appellants
has submitted that while determining/awarding the
compensation the Hon’ble High Court has not appreciated that
the petitioners were the absolute owners of the land including
the subsoil minerals and were not merely tenure holders. It is
submitted that therefore while determining the amount of
compensation for the land acquired claim for subsoil minerals
rights was also required to be considered. It is submitted that
in the impugned judgment and order the Hon’ble High Court
has also specifically given the findings that the nature of
deposits existing on the surface or the subsoil of a land would
play an important role and if there are any deposits of rare
minerals or precious stones, that would add to the market
value of the land. It is submitted that though the Hon’ble High
Court has observed that it is not proper for the Land
Acquisition Officer or the Civil Court to separately award the
compensation towards subsoil mineral rights, thereafter it is
observed that it is permissible to take the fact or into account,
while determining the market value.
3.1. It is further submitted by learned counsel appearing on
behalf of the land owners/claimants that even otherwise the
acquisition was solely for the purpose of excavation of the coal
and there was no other purpose for the acquisition and the
entire acquired land is being excavated on the basis of the
estimates of the coal reserves identified therein, the Hon’ble
High Court has erred in deducting 1/3rd towards the
development. It is submitted that since the entire land is to be
mined, there is no wastage of land on account of any
developmental activities, such as roads, sewage lines, parks etc.
which are required to be carved out in
industrial/commercial/housing layouts. It is submitted that
therefore, the deduction from the compensation determined
may not be permissible in absence of any justification for such
deduction as the entire land is having coal reserves. Reliance is
placed upon the decision of this Court in the case of Nelson
Fernandes & Ors. versus Special Land Acquisition Officer
South Goa & Ors. reported in (2007) 9 SCC 447.
4. Shri A. Mariarputham, learned Senior Advocate appearing
on behalf of the respondents while opposing the present
appeals has submitted that the amount determined by the
Hon’ble High Court which includes Rs.10,000/ per acre
towards the coal deposits, the same is not required to be
interfered with by this Hon’ble Court.
4.1 Now so far as 1/3rd deduction made by the Hon’ble High
Court from Rs.1,23,000/ per acre it is submitted that as per
the settled position of law there shall be an appropriate
deduction towards the development and therefore 1/3 rd
deduction can be said to be just and reasonable deduction
towards the development, which is not required to be interfered
Making above submissions, it is prayed to dismiss the
present appeals by further submitting that as such the appeals
preferred by the respondents Singareni Collieries Company
Ltd. & Ors. have been dismissed by this Court and the
judgment and order passed by this Hon’ble High Court has
been confirmed by this Court.
5. Heard learned counsel appearing on behalf of the
respective parties at length.
6. By the impugned common judgment and order the High
Court has determined and awarded Rs.80,000/ per acre. The
High Court has also granted/awarded Rs.10,000/ for subsoil
rights on account of coal deposits. Feeling aggrieved and
dissatisfied with the impugned common judgment and order
passed by the High Court, the original claimants/land owners
have preferred the present appeals seeking enhancement of the
amount of compensation.
6.1 At the outset, it is required to be noted that so far as the
appeals preferred by the respondents Singareni Collieries
Company Ltd. & Ors., the same have been dismissed by this
6.2 While determining and awarding the compensation at
Rs.80,000/ per acre the High Court has considered the market
value of the land in question at Rs.1,23,000/. However,
thereafter has deducted 1/3rd towards the development charges
etc. and thereafter has awarded the actual amount of
compensation at Rs.80,000/ per acre. It is the case on behalf
of the claimants/land owners that the lands in question have
been acquired for the benefit of the mining company/ Singareni
Collieries Company Ltd. which is to be used for excavation of
coal. The coal is already existed in the lands acquired. Since
the entire land is to be mined and the coal is to be excavated,
there is no wastage of land on account of any developmental
activities such as roads, sewage lines, parks etc. In that view of
the matter, there is no development required and therefore
1/3rd deduction is not warranted at all. Identical question
came to be considered by this Court in the case of Nelson
Fernandes (supra) and after taking into consideration the
earlier decision of this Court in the case of Basavva vs. Spl.
Land Acquisition Officer, (1996) 9 SCC 640, in which this
Court has held that the purpose for which acquisition is made
is also a relevant factor for determining the market value and
the purpose for which the land is acquired must also be taken
into consideration, thereafter in paragraph 29 it is observed
“29. Both the Special Land Acquisition Officer, the
District Judge and of the High Court have failed to
notice that the purpose of acquisition is for Railways
and that the purpose is a relevant factor to be taken
into consideration for fixing the compensation. In this
context, we may usefully refer the judgment of this
Court in Viluben Jhalejar Contractor v. State of
Court held that the purpose for which the land is
acquired must also be taken into consideration in fixing
the market value and the deduction of development
charges. In the above case, the lands were acquired
because they were submerged under water of a dam.
Owners claimed compensation of Rs 40 per sq ft. LAO
awarded compensation ranging from Rs 35 to Rs 60 per
sq m. Reference Court fixed the market value of the
land at Rs 200 per sq m and after deduction of
development charges, determined the compensation @
Rs 134 per sq m. In arriving at the compensation,
Reference Court placed reliance on the comparative
sale of a piece of land measuring 46.30 sq m @ Rs 270
per sq m. On appeal, the High Court awarded
compensation of Rs 180 per sq m in respect of large
plots and Rs 200 per sq m in respect of smaller plots.
On further appeal, this Court held that since the lands
were acquired for being submerged in water of dam and
had no potential value and the sale instance relied was
a small plot measuring 46.30 sq m whereas the
acquisition in the present case was in respect of large
area, interest of justice would be subserved by
awarding compensation of Rs 160 per sq m in respect
of larger plots and Rs 175 per sq m for smaller plots.
In Basavva v. Spl. Land Acquisition Officer [(1996) 9
SCC 640 : JT (1996) 5 SC 580] this Court held that the
purpose for which acquisition is made is also a relevant
factor for determining the market value.”
6.3. Applying the law laid down by this Court in the aforesaid
decision to the facts of the case on hand and when the
acquisition is solely for the purpose of excavation of coal and
the entire land is acquired on the basis of the estimates of the
coal reserve identified and the entire land is to be mined and
used and no further developmental activity is required, we are
of the opinion that in the facts and circumstances of the case,
the High Court has erred in deducting 1/3 rd towards the
developmental activities. The additional amount awarded by
the High Court at Rs.10,000/ per acre on account of coal
deposits is not required to be interfered with more particularly
when the same has been confirmed by this Court in as much as
the appeals preferred by the respondents have been dismissed
by this Court.
7. In view of the above and for the reason stated above,
present appeals succeed in part. It is held that the original
claimants shall be entitled to the compensation for the lands
acquired at Rs.1,23,000/ per acre with other statutory benefits
which may be available under the provisions of the Act, 1894.
In addition, the original claimants shall also be entitled to
Rs.10,000/ per acre as awarded by the High Court on account
of coal deposits.
The impugned common judgment and order passed by the
High Court is hereby modified to the aforesaid extent.
Present appeals are partly allowed to the aforesaid extent.
However, in the facts and circumstances of the case there shall
be no order as to costs.
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The Supreme Court reiterated that the purpose for which the land acquisition is made is also a relevant factor for determining the market value
A large extent of land in Adrial Village of Manthani Mandal, Karimnagar District of Andhra Pradesh was acquired by the State Government for the benefit of Singareni Collieries Company Limited. Not satisfied with the compensation awarded by the Land Acquisition Officer, the land owners sought references under Section 18 of the Land Acquisition Act, 1894. The Reference Court fixed the market value at Rs.30,000/ per acre and Rs.50,000/ per acre. The Reference Court also awarded the compensation @ Rs.15,000/ per acre towards subsoil mineral rights. Later, the High Court modified this award and fixed the compensation @ Rs.80,000/ per acre considering the market value of the land Rs.1,23,000/ per acre and thereafter deducting 1/3rd towards the developmental activities. The High Court has also in addition awarded Rs.10,000/ per acre as part of the market value for subsoil rights. Aggreived with this, the original claimants/land owners preferred appea seeking enhancement of the amount of compensation.
The claimants/land owners contended that the lands in question have been acquired for the benefit of the mining company/ Singareni Collieries Company Ltd. which is to be used for excavation of coal. The coal is already existed in the lands acquired. Since the entire land is to be mined and the coal is to be excavated, there is no wastage of land on account of any developmental activities such as roads, sewage lines, parks etc. In that view of the matter, there is no development required and therefore 1/3rd deduction is not warranted at all, they contended.
"Identical question came to be considered by this Court in the case of Nelson Fernandes (supra) and after taking into consideration the earlier decision of this Court in the case of Basavva vs. Spl. Land Acquisition Officer, (1996) 9 SCC 640, in which this Court has held that the purpose for which acquisition is made is also a relevant factor for determining the market value", the court noted.
Applying this judgment to the facts of this case, the court observed thus while partly allowing the appeal:
"When the acquisition is solely for the purpose of excavation of coal and the entire land is acquired on the basis of the estimates of the coal reserve identified and the entire land is to be mined and used and no further developmental activity is required, we are of the opinion that in the facts and circumstances of the case, the High Court has erred in deducting 1/3rd towards the developmental activities."
Case details
S. Shankaraiah vs Land Acquisition Officer and Revenue Divisional Officer Peddapali Karimnagar Dist | (SC) 934 | CA 6821 OF 2022 | 9 Nov 2019 | Justices MR Shah and Krishna Murari
For Appellant(s) Mr. Sridhar Potaraju, AOR Mr. Y.V. Anil Kumar, Adv. Ms. Shiwani Tushir, Adv. Mr. Rajat Srivastav, Adv. Dr. Sushil Balwada, AOR
For Respondent(s) Mr. S. Udaya Kumar Sagar, AOR Mr. A. Mariarputham, Sr. Adv. Mr. P. Parmeswaran, AOR Mr. Anurag Dayal Mathur, Adv. Ms. Anuradha Arputham, Adv. Mr. P. Venkat Reddy, Adv. Mr. Prashant Kr. Tyagi, Adv. Mr. P. Srinivas Reddy, Adv. For M/s. Venkat Palwai Law Associates, AOR
Headnotes
Land Acquisition Act, 1894 - The purpose for which acquisition is made is also a relevant factor for determining the market value - Referred to Basavva vs. Spl. Land Acquisition Officer, (1996) 9 SCC 640 & Nelson Fernandes vs. Special Land Acquisition Officer South Goa (2007) 9 SCC 447. (Para 6.2)
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“Was’t Hamlet wronged Laertes? Never Hamlet. If Hamlet from himself
be ta'en away, And when he's not himself does wrong Laertes, Then
Hamlet does it not; Hamlet denies it. Who does it, then? His madness. if't
be so, Hamlet is of the faction that is wronged; His madness is poor
Hamlet's enemy.”
1. While acknowledging the hurt that he has caused to Laertes for causing the
death of his father, whom he murdered by way of a mistaken identity,
Hamlet pleads temporary madness. While pleading so, he disassociates
himself from the act as if it was done by a third person and he was made to
suffer the consequence. He thus pleads to treat him as a victim rather than an
offender. Though the act of Hamlet does constitute a culpable homicide
coming within the definition of Section 300 of the Indian Penal Code, 1860
an act of unsound mind would not attract the same. Through these lines,
Shakespeare brings out the agony of a man having to justify his act of
madness.
2. Raising the plea of insanity on the mandate of Section 84 of the Indian Penal
Code, 1860 (hereinafter ‘the IPC’), the appellant seeks reversal of the order
of conviction passed by the Division Bench of the High Court of Bombay at
Goa, confirming the order of the Additional Sessions Judge, S.G. Margao-II.
As we are dealing with the seminal issue of applicability of Section 84 of the
IPC and in the light of the focus made by the counsel for the appellant, we
do not propose to go into the merits.
3. We have heard Shri Aftab Ali Khan, the counsel appointed from the
“84. Act of a person of unsound mind. - Nothing is an offence
which is done by a person who, at the time of doing it, by reason of
unsoundness of mind, is incapable of knowing the nature of the act, or
that he is doing what is either wrong or contrary to law.”
4. Section 84 of the IPC recognizes only an act which could not be termed as
an offence. It starts with the words “nothing is an offence”. The said words
are a clear indication of the intendment behind this laudable provision. Such
an act shall emanate from an unsound mind. Therefore, the existence of an
unsound mind is a sine qua non to the applicability of the provision. A mere
unsound mind per se would not suffice, and it should be to the extent of not
knowing the nature of the act. Such a person is incapable of knowing the
nature of the said act. Similarly, he does not stand to reason as to whether an
act committed is either wrong or contrary to law. Needless to state, the
element of incapacity emerging from an unsound mind shall be present at
the time of commission.
5. The provision speaks about the act of a person of unsound mind. It is a very
broad provision relatable to the incapacity, as aforesaid. The test is from the
point of view of a prudent man. Therefore, a mere medical insanity cannot
be said to mean unsoundness of mind. There may be a case where a person
suffering from medical insanity would have committed an act, however, the
test is one of legal insanity to attract the mandate of Section 84 of the IPC.
There must be an inability of a person in knowing the nature of the act or to
understand it to be either wrong or contrary to the law.
6. The aforesaid provision is founded on the maxim, actus non reum facit nisi
mens sit rea, i.e., an act does not constitute guilt unless done with a guilty
intention. It is a fundamental principle of criminal law that there has to be an
element of mens rea in forming guilt with intention. A person of an unsound
mind, who is incapable of knowing the consequence of an act, does not
know that such an act is right or wrong. He may not even know that he has
committed that act. When such is the position, he cannot be made to suffer
punishment. This act cannot be termed as a mental rebellion constituting a
deviant behaviour leading to a crime against society. He stands as a victim in
need of help, and therefore, cannot be charged and tried for an offence. His
position is that of a child not knowing either his action or the consequence
of it.
7. We wish to place reliance on the following decisions of this Court:
Surendra Mishra v. State of Jharkhand (2011) 11 SCC 495
“11. In our opinion, an accused who seeks exoneration from liability of
an act under Section 84 of the Penal Code is to prove legal insanity and
not medical insanity. Expression "unsoundness of mind" has not been
defined in the Penal Code and it has mainly been treated as equivalent
to insanity. But the term “insanity” carries different meaning in different
contexts and describes varying degrees of mental disorder. Every person
who is suffering from mental disease is not ipso facto exempted from
criminal liability. The mere fact that the accused is conceited, odd,
irascible and his brain is not quite all right, or that the physical and
mental ailments from which he suffered had rendered his intellect weak
and affected his emotions or indulges in certain unusual acts, or had fits
of insanity at short intervals or that he was subject to epileptic fits and
there was abnormal behaviour or the behaviour is queer are not
sufficient to attract the application of Section 84 of the Penal Code.”
Hari Singh Gond v. State of Madhya Pradesh (2008) 16 SCC
“10. “7. Section 84 lays down the legal test of responsibility in cases of
alleged unsoundness of mind. There, is no definition of "unsoundness of
mind" in the IPC. The courts have, however, mainly treated this
expression as equivalent to insanity. But the term ‘insanity’ itself has no
precise definition. It is a term used to describe varying degrees of
mental disorder. So, every person, who is mentally diseased, is not ipso
facto exempted from criminal responsibility. A distinction is to be made
between legal insanity and medical insanity. A court is concerned with
legal insanity, and not with medical insanity...”
Bapu @ Gajraj Singh v. State of Rajasthan 2007 8 SCC 66
“10. Section 84 embodies the fundamental maxim of criminal law i.e.
actus non reum facit nisi mens sit rea (an act does not constitute guilt
unless done with a guilty intention). In order to constitute an offence,
the intent and act must concur; but in the case of insane persons, no
culpability is fastened on them as they have no free will (furios is nulla
voluntas est).
11. The section itself provides that the benefit is available only after it is
proved that at the time of committing the act, the accused was labouring
under such a defect of reason, from disease of the mind, as not to know
the nature and quality of the act he was doing, or that even if he did not
know it, it was either wrong or contrary to law then this section must be
applied. The crucial point of time for deciding whether the benefit of
this section should be given or not, is the material time when the
offence takes place. In coming to that conclusion, the relevant
circumstances are to be taken into consideration, it would be dangerous
to admit the defence of insanity upon arguments derived merely from
the character of the crime. It is only unsoundness of mind which
naturally impairs the cognitive faculties of the mind that can form a
ground of exemption from criminal responsibility. Stephen in History of
the Criminal Law of England, Vol. II, p. 166 has observed that if a
person cut off the head of a sleeping man because it would be great fun
to see him looking for it when he woke up, would obviously be a case
where the perpetrator of the act would be incapable of knowing the
physical effects of his act. The law recognizes nothing but incapacity to
realise the nature of the act and presumes that where a man's mind or
his faculties of ratiocination are sufficiently dim to apprehend what he
is doing, he must always be presumed to intend the consequence of the
Section 105 of the Indian Evidence Act 1872
“105. Burden of proving that case of accused comes within
exceptions. —When a person is accused of any offence, the burden of
proving the existence of circumstances bringing the case within any of
the General Exceptions in the Indian Penal Code, (45 of 1860), or
within any special exception or proviso contained in any other part of
the same Code, or in any law defining the offence, is upon him, and the
Court shall presume the absence of such circumstances.”
8. The burden of proof does lie on the accused to prove to the satisfaction of
the Court that one is insane while doing the act prohibited by law. Such a
burden gets discharged based on a prima facie case and reasonable materials
produced on his behalf. The extent of probability is one of preponderance.
This is for the reason that a person of unsound mind is not expected to prove
his insanity beyond a reasonable doubt. Secondly, it is the collective
responsibility of the person concerned, the Court and the prosecution to
decipher the proof qua insanity by not treating it as adversarial. Though a
person is presumed to be sane, once there are adequate materials available
before the Court, the presumption gets discharged.
9. Section 105 of the Indian Evidence Act, which places the burden of proving,
has its exceptions. Though, as a general principle, the onus is upon the
person accused to bring his case under the exception, dealing with the case
under Section 84 of the IPC, one has to apply the concept of preponderance
of probabilities. The aforesaid provision has to be read along with Section 8
of the Indian Evidence Act. The better way to reconcile the aforesaid
provision would be to have a look into the behaviour and conduct before,
during and after the occurrence.
10. As Section 84 of the IPC has its laudable objective behind it, the prosecution
and the Court have their distinct roles to play. The agency has to take up the
investigation from the materials produced on behalf of the person claiming
unsoundness. It has to satisfy itself that the case would not come within the
purview of Section 84 of the IPC.
11. The Court on its part has to satisfy itself as to whether the act was done by a
person with an unsound mind within the rigour of Section 84 of the IPC.
12. We wish to place reliance on the classical decision of this Court in
Dahyabhai Chhaganbhai Thakkar v. State of Gujarat (AIR 1964 SC
1563), wherein the Court held that:
“(7) The doctrine of burden of proof in the context of the plea of
insanity may be stated in the following propositions:
(1) The prosecution must prove beyond reasonable doubt that the
accused had committed the offence with the requisite mens rea; and the
burden of proving that always rests on the prosecution from the
beginning to the end of the trial.
(2) There is a rebuttable presumption that the accused was not insane,
when he committed the crime, in the sense laid down by Section 84 of
the Indian Penal Code: the accused may rebut it by placing before the
court all the relevant evidence oral, documentary or circumstantial, but
the burden of proof upon him is no higher than that rests upon a party to
civil proceedings.
(3) Even if the accused was not able to establish conclusively that he
was insane at the time he committed the offence, the evidence placed
before the court by the accused or by the prosecution may raise a
reasonable doubt in the mind of the court as regards one or more of the
ingredients of the offence, including mens rea of the accused and in that
case the court would be entitled to acquit the accused on the ground that
the general burden of proof resting on the prosecution was not
discharged.”
13. This Court in the case of Bapu (supra) has held that:
“8. …The onus of proving unsoundness of mind is on the accused. But
where during the investigation previous history of insanity is revealed,
it is the duty of an honest investigator to subject the accused to a
medical examination and place that evidence before the court and if this
is not done, it creates a serious infirmity in the prosecution case and the
benefit of doubt has to be given to the accused. The onus, however, has
to be discharged by producing evidence as to the conduct of the accused
shortly prior to the offence and his conduct at the time or immediately
afterwards, also by evidence of his mental condition and other relevant
factors.
12. Mere abnormality of mind or partial delusion, irresistible impulse or
compulsive behaviour of a psychopath affords no protection under
Section 84 as the law contained in that section is still squarely based on
the outdated M'Naughton rules of 19th century England. The provisions
of Section 84 are in substance the same as those laid down in the
answers of the Judges to the questions put to them by the House of
Lords, in M'Naughton's case [(1843) 4 St Tr NS 847 (HL)]. Behaviour,
antecedent, attendant and subsequent to the event, may be relevant in
finding the mental condition of the accused at the time of the event, but
not that remote in time. It is difficult to prove the precise state of the
offender's mind at the time of the commission of the offence, but some
indication thereof is often furnished by the conduct of the offender
while committing it or immediately after the commission of the offence.
A lucid interval of an insane person is not merely a cessation of the
violent symptoms of the disorder, but a restoration of the faculties of the
mind sufficiently to enable the person soundly to judge the act; but the
expression does not necessarily mean complete or perfect restoration of
the mental faculties to their original condition. So, if there is such a
restoration, the person concerned can do the act with such reason,
memory and judgment as to make it a legal act; but merely a cessation
of the violent symptoms of the disorder is not sufficient.”
14. This Court in a recent decision in Devidas Loka Rathod v. State of
Maharashtra (2018) 7 SCC 718, has held that:
“11. Section 84 IPC carves out an exception, that an act will not be an
offence, if done by a person, who at the time of doing the same, by
reason of unsoundness of mind, is incapable of knowing the nature of
the act, or what he is doing is either wrong or contrary to law. But this
onus on the accused, under Section 105 of the Evidence Act is not as
stringent as on the prosecution to be established beyond all reasonable
doubts. The accused has only to establish his defence on a
preponderance of probability, as observed in Surendra Mishra v. State
of Jharkhand (2011) 11 SCC 495 : (2011) 3 SCC (Cri) 232, after which
the onus shall shift on the prosecution to establish the inapplicability of
the exception. But, it is not every and any plea of unsoundness of mind
that will suffice. The standard of test to be applied shall be of legal
insanity and not medical insanity, as observed in State of Rajasthan v.
Shera Ram (2012) 1 SCC 602 : (2012) 1 SCC (Cri) 406, as follows:
(Shera Ram, SCC p. 614, para 19)
“19…Once, a person is found to be suffering from mental
disorder or mental deficiency, which takes within its ambit
hallucinations, dementia, loss of memory and self-control, at all
relevant times by way of appropriate documentary and oral
evidence, the person concerned would be entitled to seek resort to
the general exceptions from criminal liability.”
12. The crucial point of time for considering the defence plea of
unsoundness of mind has to be with regard to the mental state of the
accused at the time the offence was committed collated from evidence
of conduct which preceded, attended and followed the crime as
observed in Ratan Lal v. State of M.P. (1970) 3 SCC 533 : 1971 SCC
(Cri) 139, as follows: (SCC pp. 533-34, para 2)
“2. It is now well settled that the crucial point of time at which
unsoundness of mind should be established is the time when the
crime is actually committed and the burden of proving this lies on
the accused. In Dahyabhai Chhaganbhai Thakkar v. State of
Gujarat (1964) 7 SCR 361 : AIR 1964 SC 1563, it was laid down
that ‘there is a rebuttable presumption that the accused was not
insane. when he committed the crime, in the sense laid down by
Section 84 of the Penal Code, the accused may rebut it by placing
before the court all the relevant evidence- oral, documentary or
circumstantial, but the burden of proof upon him is no higher than
that which rests upon a party to civil proceedings’.”
13. If from the materials placed on record, a reasonable doubt is created
in the mind of the Court with regard to the mental condition of the
accused at the time of occurrence, he shall be entitled to the benefit of
the reasonable doubt and consequent acquittal, as observed in Vijayee
Singh v. State of U.P. (1990) 3 SCC 190 : 1990 SCC (Cri) 378.”
15. Chapter XXV of the Code of Criminal Procedure 1973 (hereinafter
‘Cr.P.C.’), though procedural in nature, also becomes substantive when it
deals with an accused person of unsound mind. A well-laid procedure is
contemplated under Sections 328 to 339 of Cr.P.C. There is not even a need
for an application under Section 329 of Cr.P.C. in finding out as to whether
an accused would be sound enough to stand a trial, rather it is the mandatory
duty of the Court. Under Section 330, the Court can even go to the extent of
discharging such a person if his inability to stand trial continues with a rigid
chance of improvement. As per Section 334 of Cr.P.C., the judgment of the
Court shall include a specific finding that the act was committed due to
unsoundness of mind, though it was actually done. The reason is simple as
there cannot be an acquittal on the ground of unsoundness of mind unless
the act is actually done.
16. The whole idea under the provisions discussed is to facilitate a person of
unsound mind to stand trial, not only because of his reasoning capacity, but
also to treat him as the one who is having a disability. The role of the Court
is to find the remedial measures and do complete justice.
17. Having noted the scope and ambit of Chapter XXV of Cr.P.C., including the
provisions incorporated by way of amendments in the year 2009, one has to
take into account the fact that the Court has a larger role to play while
considering the case under Section 84 of the IPC. If a friendly approach is
required to be followed during the trial, when adequate powers have been
conferred upon the Court to even discharge an accused on the ground of an
unsound mind, the same reasoning will have to be applied with much force
when it comes to Section 84 of the IPC.
18. We find adequate materials on the assessment and evaluation of legal and
medical insanity, which are totally different from each other. We shall
furnish the following relevant material on medical jurisprudence:
Jaisingh P. Modi, A Textbook on Medical Jurisprudence
and Toxicology, 26th Edn. 2018, pg. 938
“Ascertainment of Mental Illness: Clinical assessment and
Questions that would require to be addressed. -Forensic psychiatry
attempts to help Courts determine the mental condition of the accused
to determine whether the person could have intended to commit the
crime and whether he is in a fit state to stand the trial. Medical insanity
and legal insanity are not necessarily congruent. A mental illness that
requires institutional care or administration of therapeutic care for
medical insanity may not still be sufficient insulate the person from
consequences of a criminal act and punishment if s/he is not legally
insane. The assessment shall be to elicit such information as the law
qualifies the general exception for proof of culpability under Section 84
of IPC. Is the accused mentally unsound? Is the mental unsoundness
such that s/he is not capable of knowing (i) the nature of act; or (ii) the
act is wrong, or (iii) contrary to law? These questions are directly
related to testing the requirement of law. Is s/he capable of
understanding the nature of proceedings in Court and stand trial? This
shall be necessary to ensure that he has sufficient ability to consult with
is counsel instruct him for a fair trial and defence. Every accused is
bound to know the nature of proceedings against him/her. What was the
mental condition of the accused, when the crime took place? Is it likely
that the accused is malingering mental illness? The answers will point
out to fixing the criminal responsibility to the acts attributed to him/her.
Post-trial care may issue questions like: What is prognosis for cure for
the mental illness? Will s/he be dangerous not to be let at large? In
many a foreign jurisdiction, the questions may vary depending on the
nature of proof of insanity and its intensity that is relevant under law to
appraise criminal responsibility for the act: Could there have been an
irresistible impulse to commit the act charged with? Was the mental
condition so severe that s/he had no capacity to control his/her
behaviour? Was s/he under any form of delusion to inflict the criminal
assault to fend off falsely perceived personal harm or injury?
The evaluation process.-The evaluation process generally includes,
broadly, three major components or sources of data: (a) an interview
with the accused (b) forensic assessment instruments, and (c) third party
information including (but by no means limited to) collateral reports,
witness statements, victim statements, police reports, and records of
various sorts (i.e., mental health, treatment, school, medical, crime
scene, etc.). Along with these sources, the role of delusions in
evaluations of criminal responsibility (as the nature and quality of the
accused 'delusionality') is often central in determining the extent of
impairment in mental state at the time of the offence, especially in
contested cases that may have a bearing on limiting responsibility if not
completely exonerating him from the offence charged with. The role of
the expert is not to present legal conclusions or formal
psychopathological diagnoses. Rather, the role of examiner, as expert, is
to import state of-the-art/science knowledge about the existence of
various psychopathological conditions and their relationship to various
behavioural, perceptual, cognitive and judgmental capacities into the
legal/moral decisional process.”
19. Now, we shall come to the mental illness caused by Schizophrenia. We do
not wish to go into the said issue as it being one within the exclusive
knowledge of the experts, except to quote the relevant text available:
Jaisingh P. Modi, a textbook on Medical Jurisprudence and
Toxicology, 26th Edn. 2018, pg. 922
“(ii) Schizophrenia. -Kraepelin (Emil Kraepelin, German psychiatrist.),
in 1896, named this disease as 'dementia praecox’. In 1911, Eugen
Bleuler (Paul Eugen Bleuler, Swiss psychiatrist and Eugenicist.)
introduced the term 'schizophrenia' which literally means disintegration
of mind. The term dementia praecox was changed because it implied
that the disease always ended in dementia, which it did not. The term
praecox meant that the disease developed at the time of puberty or
adolescence, but in many cases developed outside that period. Since it
was thought that the disease always ended in dementia, it meant a
hopeless prognosis, which created a spirit of defeatism in the minds of
people.”
“Schizophrenia n. a severe *mental illness characterised by a
disintegration of the process of thinking, of contact with reality, and of
emotional responsiveness. Positive symptoms, such as *delusions and
*hallucinations (especially of voices), are common, and any *Schneiderian
first-rank symptoms are particularly indicative of the illness. Negative
symptoms include social withdrawal, impairment of ego boundaries, and
loss of energy and initiative. Schizophrenia is diagnosed only if symptoms
persist for at least one month. The illness can spontaneously remit, run a
course with infrequent or frequent relapses, or become chronic. The
prognosis has improved with *anti-psychotic drugs and with vigorous
psychological and social management and rehabilitation. The many causes
include genetic factors, environmental stress, and possibly illicit drug use.”
American Psychiatric Association 2013, Diagnostic and
Statistical Manual of Mental Disorders : DSM-5, 5th
Edn, American Psychiatric Association, Washington DC. pg.
“Schizophrenia spectrum and other psychotic disorders include
schizophrenia, other psychotic disorders, and schizotypal (personality)
disorder. They are defined by abnormalities in one or more of the
following five domains: delusions, hallucinations, disorganized thinking
(speech), grossly disorganized or abnormal motor behavior (including
catatonia), and negative symptoms.”
20. We thus, appreciate that Schizophrenia is certainly an over-powering mental
illness.
21. The case of the prosecution is that the appellant attacked the deceased at a
store in which he was working, which belonged to the brother of his
grandfather, who did not have any issue. There was no motive and the overt
act attributed is that he assaulted the deceased with an iron locking plate
without any provocation and premeditation. The occurrence took place on
14.05.2004 at 6:00 a.m. It was seen by PW2. He took the material object and
came out of the shop and went to the bus stand. Thereafter, he came back to
the shop and left it there. He once again walked to the bus stand and was
sitting on a chair. He neither moved away from the said place nor made any
attempt to leave.
22. A treatment was indeed given to him at the GMC Hospital, Bhiwani in the
State of Haryana prior to the occurrence. He was taken as an in-patient for a
period from 17.11.2003 till 26.11.2003. He was suffering from anxiety
neurosis with reactive depression and had symptoms of acid peptic disease
and mild hypertension. The treatment given to him was akin to one meant
for schizophrenia. Accordingly, he was prescribed the medicine ‘Thioril’.
23. Before the Court of Sessions, an application under Section 329 of Cr.P.C.
was filed on behalf of the appellant. Even while considering the application
for bail, the Court noticed the inability of the appellant to understand the
ongoing proceedings. Two doctors were examined as AWs 1 and 2, for the
fact that he was indeed suffering from schizophrenia. AW2 was examined to
show that he was taking the treatment earlier at GMC Hospital at Bhiwani.
AW1 is the doctor who examined him after the occurrence on the orders of
the trial court. She had deposed that he was indeed suffering from chronic
schizophrenia. She was further examined as DW1. She once again made a
clear deposition in tune with the certificate issued by her earlier that he was
suffering from schizophrenia, and it must have been from the age of 14 or 15
years. The fact that he was unable to understand the act committed, and his
subsequent incarceration was taken note of. While issuing the first
certificate, this Government doctor in clear terms had stated that the
appellant was not fit enough to stand the trial. However, she gave another
certificate after treating him as an in-patient to the effect that he could stand
trial thereafter.
24. The Court of Sessions and the High Court rendered the conviction on merits.
The plea of insanity was also taken. It was accordingly rejected on the
ground that PW6, the brother of the grandfather of the appellant, did not find
any abnormality and that his mother has not been examined. Further, PW10
being the doctor who physically examined the accused after the incident,
stated that the accused was mentally well.
25. However, the evidence of the Government doctor who deposed as AW1 and
DW1 was brushed aside, so also the evidence of DW2, who was the uncle of
the accused, and clearly spoke about the earlier treatment received by the
accused. The evidence of AW2 was not even taken note of. The conduct,
though subsequent, of the appellant, was ignored.
26. Before this Court, a report was called for from the District and Sessions
Judge, Bhiwani as the medicine prescription and other documents could not
be deciphered, and there was no discussion on the prior treatment given. We
are of the view, that the aforesaid exercise would not have been warranted,
had the evidence of AW2, which could be deciphered from the records
furnished before us, been brought to the notice of the Court. In the report, it
was stated that it could not be confirmed that the appellant was suffering
from schizophrenia. We may note that the statements of the doctors were
recorded after 16 years of the occurrence. In fact, they had also found it
difficult to remember the nature of the treatment given to the appellant. In
any case, that is a material which actually will go in favour of the appellant
as the factum of treatment is not in dispute, particularly when it is
corroborated by the evidence of AW2 on more than one occasion.
27. We may also add that this report merely records the statements of the
doctors who have not been examined before the Court. Suffice it to say, that
the evidence of the Government doctor as DW1 who withstood cross-
examination ought to have been accepted. The mere fact that the appellant
subsequently became fit to face the trial is sufficient enough to render an
order of acquittal as it is indicative of his prior insanity. We do feel that both
the Trial Court and the High Court were influenced by the nature of the act
while ignoring the condition of the appellant and the fact that the burden on
the accused is one of preponderance of probability. We have also been
informed that the appellant has recovered fully and mixed well with the
society.
28. For the aforesaid reasons, we are unable to give our imprimatur to the
conviction rendered against the appellant as he is certainly entitled to the
benefit conferred under Section 84 of the IPC.
29. The order dated 25.07.2006 of the trial court of conviction and sentence of
the appellant punishable under Section 302 of the IPC and the judgment and
order dated 02.06.2008 of the High Court affirming the same are set aside.
30. The appellant is acquitted of all the charges charged with. The bail bonds of
the accused shall stand discharged. Pending application(s), if any, shall stand
disposed of.
Date : 12-01-2023 This appeal was called on for hearing today.
UPON hearing the counsel the Court made the following
The appeal is allowed in terms of the signed
reportable judgment. Pending application(s), if any,
shall stand disposed of.
The concluding paragraph of the judgment reads
“The appellant is acquitted of all the charges
charged with. The bail bonds of the accused
application(s), if any, shall stand disposed
(signed reportable judgment containing the reasons is placed
# signed order dated 12.1.2023 along with ROP has already been uploaded and
sent to the concerned Branch.
For the reasons to be recorded separately, the
appeal is allowed.
of conviction and sentence of the appellant punishable
under Section 302 of the Indian Penal Code and the
judgment and order dated 02.06.2008 of the High Court
affirming the same are set aside.
charged with. The bail bonds of the accused shall stand
Pending application(s), if any, shall stand disposed
Date : 12-01-2023 This appeal was called on for hearing today.
UPON hearing the counsel the Court made the following
For the reasons to be recorded separately, the
appeal is allowed.
of conviction and sentence of the appellant punishable
under Section 302 of the Indian Penal Code and the
judgment and order dated 02.06.2008 of the High Court
affirming the same are set aside.
charged with. The bail bonds of the accused shall stand
discharged.
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Accepting the plea of insanity, the Supreme Court recently set aside an order passed by a trial court in 2006 convicting a man for the offence of murder.
The Court noted that the appellant was undergoing treatment for schizophrenia at the time of the offence which took place in 2004. There was evidence on record that prior to the occurrence, he had underwent in-patient treatment at a Government Medical College Hospital for mental illness. Two doctors had also testified before the Court regarding the illness of the appellant. However, the Trial Court and the High Court brushed aside those factors.
In the judgment, the Court observed that the burden on the accused to prove his plea of insanity is one of preponderance of probability.
"The burden of proof does lie on the accused to prove to the satisfaction of the Court that one is insane while doing the act prohibited by law. Such a burden gets discharged based on a prima facie case and reasonable materials produced on his behalf. The extent of probability is one of preponderance. This is for the reason that a person of unsound mind is not expected to prove his insanity beyond a reasonable doubt", the Court said.
"It is the collective responsibility of the person concerned, the Court and the prosecution to decipher the proof qua insanity by not treating it as adversarial", the bench of Justices B R Gavai and M M Sundresh said.
The court observed thus while allowing the appeal filed by an accused who was concurrently convicted in a murder case. The case of the prosecution is that the appellant attacked the deceased at a store in which he was working, which belonged to the brother of his grandfather. He allegedly assaulted the deceased with an iron locking plate without any provocation and premeditation.
In the judgment, the Apex Court bench made the following observations regarding Section 84 of the Indian Penal Code.
Existence of an unsound mind is a sine qua non
The existence of an unsound mind is a sine qua non to the applicability of the provision. A mere unsound mind per se would not suffice, and it should be to the extent of not knowing the nature of the act. Such a person is incapable of knowing the nature of the said act. Similarly, he does not stand to reason as to whether an act committed is either wrong or contrary to law. Needless to state, the element of incapacity emerging from an unsound mind shall be present at the time of commission.
Mere medical insanity cannot be said to mean unsoundness of mind
The provision speaks about the act of a person of unsound mind. It is a very broad provision relatable to the incapacity, as aforesaid. The test is from the point of view of a prudent man. Therefore, a mere medical insanity cannot be said to mean unsoundness of mind. There may be a case where a person suffering from medical insanity would have committed an act, however, the test is one of legal insanity to attract the mandate of Section 84 of the IPC. There must be an inability of a person in knowing the nature of the act or to understand it to be either wrong or contrary to the law.
A person of an unsound mind does not know that such an act is right or wrong
Actus non reum facit nisi mens sit rea, i.e., an act does not constitute guilt unless done with a guilty intention. It is a fundamental principle of criminal law that there has to be an element of mens rea in forming guilt with intention. A person of an unsound mind, who is incapable of knowing the consequence of an act, does not know that such an act is right or wrong. He may not even know that he has committed that act. When such is the position, he cannot be made to suffer punishment. This act cannot be termed as a mental rebellion constituting a deviant behaviour leading to a crime against society. He stands as a victim in need of help, and therefore, cannot be charged and tried for an offence. His position is that of a child not knowing either his action or the consequence of it.
Collective responsibility of the person concerned, the Court and the prosecution to decipher the proof qua insanity
The burden of proof does lie on the accused to prove to the satisfaction of the Court that one is insane while doing the act prohibited by law. Such a burden gets discharged based on a prima facie case and reasonable materials produced on his behalf. The extent of probability is one of preponderance. This is for the reason that a person of unsound mind is not expected to prove his insanity beyond a reasonable doubt. Secondly, it is the collective responsibility of the person concerned, the Court and the prosecution to decipher the proof qua insanity by not treating it as adversarial. Though a person is presumed to be sane, once there are adequate materials available before the Court, the presumption gets discharged.
Have a look into the behaviour and conduct before, during and after the occurrence
Section 105 of the Indian Evidence Act, which places the burden of proving, has its exceptions. Though, as a general principle, the onus is upon the person accused to bring his case under the exception, dealing with the case under Section 84 of the IPC, one has to apply the concept of preponderance of probabilities. The aforesaid provision has to be read along with Section 8 of the Indian Evidence Act. The better way to reconcile the aforesaid provision would be to have a look into the behaviour and conduct before, during and after the occurrence.
Prosecution and the Court have their distinct roles to play
As Section 84 of the IPC has its laudable objective behind it, the prosecution and the Court have their distinct roles to play. The agency has to take up the investigation from the materials produced on behalf of the person claiming unsoundness. It has to satisfy itself that the case would not come within the purview of Section 84 of the IPC. The Court on its part has to satisfy itself as to whether the act was done by a person with an unsound mind within the rigour of Section 84 of the IPC.
Scope and ambit of Chapter XXV of Cr.P.C
A well-laid procedure is contemplated under Sections 328 to 339 of Cr.P.C. There is not even a need for an application under Section 329 of Cr.P.C. in finding out as to whether an accused would be sound enough to stand a trial, rather it is the mandatory duty of the Court. Under Section 330, the Court can even go to the extent of discharging such a person if his inability to stand trial continues with a rigid chance of improvement. As per Section 334 of Cr.P.C., the judgment of the Court shall include a specific finding that the act was committed due to unsoundness of mind, though it was actually done. The reason is simple as there cannot be an acquittal on the ground of unsoundness of mind unless the act is actually done.. The whole idea under the provisions discussed is to facilitate a person of unsound mind to stand trial, not only because of his reasoning capacity, but also to treat him as the one who is having a disability. The role of the Court is to find the remedial measures and do complete justice.. Having noted the scope and ambit of Chapter XXV of Cr.P.C., including the provisions incorporated by way of amendments in the year 2009, one has to take into account the fact that the Court has a larger role to play while considering the case under Section 84 of the IPC. If a friendly approach is required to be followed during the trial, when adequate powers have been conferred upon the Court to even discharge an accused on the ground of an unsound mind, the same reasoning will have to be applied with much force when it comes to Section 84 of the IPC.
Taking note of the evidence on record, the bench observed that both the Trial Court and the High Court were influenced by the nature of the act while ignoring the condition of the appellant and the fact that the burden on the accused is one of preponderance of probability. The court allowed the appeal and acquitted the accused.
Case
Prakash Nayi @ Sen vs State of Goa | (SC) 71 | CrA 2010 OF 2010 | 12 Jan 2023 | Justices B R Gavai and M M Sundresh
For Appellant(s) Mr. Aftab Ali Khan, AOR (SCLSC) Mr. M.Z. Chaudhary, Adv. Mr. Shahbaz, Adv. Mr. Arvind Kr. Kanva, Adv. Mr. Sayyed Imtiyaz Ali, Adv. Ms. Amna Darakshan, Adv. Mr. Ali Safeer Farooqi, Adv.
Headnotes
Indian Penal Code, 1860 ; Section 84 - Indian Evidence Act, 1872 ; Section 105 , 8 - The burden of proof does lie on the accused to prove to the satisfaction of the Court that one is insane while doing the act prohibited by law. Such a burden gets discharged based on a prima facie case and reasonable materials produced on his behalf. The extent of probability is one of preponderance. This is for the reason that a person of unsound mind is not expected to prove his insanity beyond a reasonable doubt. Secondly, it is the collective responsibility of the person concerned, the Court and the prosecution to decipher the proof qua insanity by not treating it as adversarial. Though a person is presumed to be sane, once there are adequate materials available before the Court, the presumption gets discharged - The behaviour and conduct before, during and after the occurrence has to be looked into. (Para 8-9)
Indian Penal Code, 1860 ; Section 84 - The existence of an unsound mind is a sine qua non to the applicability of the provision. A mere unsound mind per se would not suffice, and it should be to the extent of not knowing the nature of the act - A mere medical insanity cannot be said to mean unsoundness of mind. There may be a case where a person suffering from medical insanity would have committed an act, however, the test is one of legal insanity to attract the mandate of Section 84 of the IPC. There must be an inability of a person in knowing the nature of the act or to understand it to be either wrong or contrary to the law. (Para 4-7)
Code of Criminal Procedure, 1973 ; Chapter XXV ; Sections 328 to 339 - Though procedural in nature, Chapter XXV becomes substantive when it deals with an accused person of unsound mind - There is not even a need for an application under Section 329 of Cr.P.C. in finding out as to whether an accused would be sound enough to stand a trial, rather it is the mandatory duty of the Court -The whole idea under the provisions discussed is to facilitate a person of unsound mind to stand trial, not only because of his reasoning capacity, but also to treat him as the one who is having a disability. The role of the Court is to find the remedial measures and do complete justice. (Para 15-16)
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1. Feeling aggrieved and dissatisfied with the impugned judgment
and order dated 14.08.2019 passed by the High Court of
Judicature at Patna in Criminal Miscellaneous Application No.
50530 of 2019, by which the High Court has allowed the said
bail to respondent No.2 herein – accused, the original informant
– complainant has preferred the present appeal.
2. That first information report came to be filed by the appellant
herein against respondent No.2 with Chapra Town Police
Station, Saran in case No.453 of 2018 for the offences
punishable under sections 406, 407, 468, 506 of the Indian
Penal Code, 1860. A warrant of arrest came to be issued by
learned Chief Judicial Magistrate, Saran, Chapra on
19.12.2018. It appears that thereafter respondent No.2 –
accused is absconding and concealing himself to avoid service
of warrant of arrest. Thereafter learned Chief Judicial
Magistrate issued a proclamation against respondent No.2
under section 82 Cr.PC. Only thereafter and issuance of
proclamation under section 82 Cr.PC, respondent No.2 –
accused filed anticipatory bail application before learned Trial
Court. By a detailed order dated 29.01.2019 the learned Trial
Court dismissed the said anticipatory bail application and
rejected the prayer for anticipatory bail on merits as well as on
the ground that as the accused is absconding and even the
proceedings under section 82/83 Cr.PC have been issued, the
accused is not entitled to the anticipatory bail. That thereafter
the accused approached the High Court by way of present
application and despite the fact that it was specifically pointed
to the High Court that since the process of proclamation under
section 82 & 83 Cr.PC have been issued, the accused should
not be allowed the privilege of anticipatory bail, ignoring the
aforesaid relevant aspect, by the impugned judgment and order
the High Court has allowed the said anticipatory bail by
observing that in the event of his arrest/surrender within six
weeks in the Court below, he may be released on bail on
furnishing bail bond of Rs.10,000/ with two sureties of the like
amount each to the satisfaction of the learned Chief Judicial
Magistrate, Saran, Chapra and subject to the conditions as laid
down under section 438 (2) of Cr.PC.
3. Feeling aggrieved and dissatisfied with the impugned judgment
and order passed by the High Court granting anticipatory bail to
respondent No.2 – accused, the original informant/complainant
– appellant has preferred the present appeal.
4. Shri Rituraj Biswas, learned Advocate appearing on behalf of
the appellant has vehemently submitted that in the facts and
circumstances of the case, the High Court has committed a
grave error in allowing the anticipatory bail application.
4.1 It is submitted that considering the fact that the accused was
avoiding the arrest and even did not cooperate with
investigating agency and even after the arrest warrants were
issued, the proceedings under sections 8283 of Cr.PC were
initiated, the High Court ought not to allow the anticipatory bail
application.
4.2 It is submitted that though the factum of initiation of
proceedings under Section 8283 of Cr.PC was pointed out, the
High Court has simply ignored the same.
4.3 It is further submitted that even the High Court has not at all
considered the seriousness of the offences alleged namely the
offences under sections 406, 420 of IPC, which were in detail
considered by the learned Trial Court while rejecting the
anticipatory bail application.
4.4 It is submitted that the High Court has granted the anticipatory
bail to respondent No.2 solely observing that the nature of
accusation arising out of a business transaction. It is submitted
that merely because it was a business transaction, without
further considering the nature of allegations the High Court
ought not to have granted the anticipatory bail to respondent
No.2 – accused.
4.5 Relying upon the decision of this court in case of State of
Madhya Pradesh vs. Pradeep Sharma reported in (2014) 2 SCC
171, it is submitted that as observed and held by this court a
person against whom the proclamation has been issued and the
proceedings under sections 8283 of Cr.PC have been initiated,
is not entitled to the benefit of anticipatory bail.
4.6 It is further submitted that even subsequently a chargesheet
has been filed against the accused – respondent No.2 for the
offences punishable under sections 406 and 420 of IPC.
4.7 Making the above submissions and relying upon above decision
of this court, it is prayed to allow the present appeal and quash
and set aside the impugned judgment and order passed by the
High Court granting anticipatory bail to respondent No.2 –
accused.
5. Shri Devashish Bharuka, learned Advocate appearing on behalf
of the State has supported the appellant and has submitted
that on being found a prima facie case against respondent No.2
– accused, a chargesheet has been filed against the accused
under sections 406 and 420 of IPC also.
6. Shri Abhishek, learned Advocate appearing on behalf of
respondent No.2 has vehemently submitted that in the facts
and circumstances of the case, the High Court has not
committed any error in granting anticipatory bail to respondent
No.2 – accused.
6.1 It is submitted that the High Court has rightly observed that the
nature of accusation is arising out of a business transaction. It
is submitted that merely because the cheque was given and the
same came to be dishonored it cannot be said that the offences
under sections 406 and 420 of IPC is made out. It is submitted
that at the most the case may fall under section 138 of
6.2 It is submitted that as such respondent No.2 – accused was
available for interrogation and therefore there is no question of
absconding.
6.3 It is further submitted by the learned counsel appearing on
behalf of respondent No.2 – accused that at this stage only the
chargesheet has been filed in the court, but the learned
Magistrate has yet to take cognizance of the same.
7. We have heard the learned counsel appearing on behalf of the
appellant – original informant complainant as well as learned
counsel appearing on behalf of the State and the learned
counsel appearing on behalf of respondent no.2 accused.
7.1 It is required to be noted that after investigation a chargesheet
has been filed against respondent no.2 – accused for the
offences punishable under sections 406, 420 of IPC also. Thus
it has been found that there is a prima facie case against the
accused. It has come on record that the arrest warrant was
issued by the learned Magistrate as far as back on 19.12.2018
and thereafter proceedings under sections 8283 of Cr.PC have
been initiated pursuant to the order passed by the learned Chief
Judicial Magistrate dated 10.01.2019. Only thereafter
respondent No.2 moved an application before the learned Trial
Court for anticipatory bail which came to be dismissed by the
learned Additional Sessions Judge, Saran, by a reasoned order.
The relevant observations made by the learned Additional
Sessions Judge, Saran, while rejecting the anticipatory bail
“Perused the record. The prosecution case as
alleged in the typed application of the informant
Prem Shankar Prasad is that the informant is a
retailer shopkeeper of medicines in the name of
Maa Medical Store, Gandhi Chauk, Chapra and the
petitioner is his stockiest who runs his business in
the name of Rajnish Pharma, Mauna Pakari. The
petitioner and the informant were on good terms,
so, the informant gave Rs. 36,00,000/ to the
petitioner in case and through cheque for purchase
of medicine. When the required were not supplied
to the informant, the informant demanded his Rs.
36,00,000/ then, the petitioner gave a cheque of
Rs. 10,00,000/ bearing cheque no. 137763 dated
25.11.2017 which was in the Canara Bank of the
petitioner which was dishonored by the bank with
a note "insufficient fund". Thereafter the informant
demanded his money in case. On 20.06.18 but, the
brothers of the petitioner misbehaved with the
informant. The brothers of the petitioner also
threatened not to contact the police or the
consequences will be worst: On this informant
Chapra Town PS No. 453/2018 was registered and
investigation proceeded.
Perused the case diary from which it transpires
that in para 4 there is a restatement of the
informant in which he has supported the
prosecution case. In para 8, 9, 10, and 11 witness
Kumar and Uday Shankar Prasad has been
examined under section 161 of Cr.PC in which they
have supported the prosecution case. In para 16
there is supervision note of SDPO, Sadar in which
prosecution case. In found true under sections
420, 406 of IPC and 138 of NI Act. In para 23
processes under sections 82 and 83 of Cr.PC have
been issued against the petitioner in para 38 there
is a statement of witness Ashutosh Mishra who is a
medical representative and has stated that Rajnish
Srivastava, being stockiest of the medicine used to
sell the medicines of his company in course
whereof he has borrowed a sum of Rs. 7,10,000/
from him. When he asked to return back the
money he has issued a cheque of the aforesaid
amount which was dishonor by his bank due to
insufficient fund. In para 39 another witness
Pramod Kumar Thakur has been examined who
has deposed that this petitioner Rajnish Srivastava
has borrowed a sum of Rs. 10,00,000/ on the
pretext of purchasing a piece of land. When he
demanded his money back. Rajnish Srivastava
gave a cheque of the aforesaid amount which was
dishonored by the bank. The investigation in the
case is still going on.
From perusal of the case record I find that the
informant has alleged to have given a sum of Rs.
36,00,000/ to this petitioner in order to supply
certain medicines which was neither supplied nor
the amount was ever refunded. Admittedly, the
said amount was given to the petitioner on an oral
undertaking as there is nothing on record to
substantiate the aforesaid averments, but, the fact
remains that the petitioner in order to refund the
said amount has issued a cheque of
Rs.10,00,000/ bearing cheque no. 137763 dated
25.11.2017 which was deposed by the informant in
the bank, but, the same was dishonored with
record I further find that the petitioner is in the
habit of borrowing money from different persons
and then used to make default in payment
inasmuch as by issuing cheques without sufficient
balance in his account which transpires form paras
38 and 39 of the case diary.”
7.2 Despite the above observations on merits and despite the fact
that it was brought to the notice of the High Court that
respondent No.2 – accused is absconding and even the
proceedings under sections 8283 of Cr.PC have been initiated
as far as back on 10.01.2019, the High Court has just ignored
the aforesaid relevant aspects and has granted anticipatory bail
to respondent No.2 – accused by observing that the nature of
accusation is arising out of a business transaction. The specific
allegations of cheating, etc., which came to be considered by
learned Additional Sessions Judge has not at all been
considered by the High Court. Even the High Court has just
ignored the factum of initiation of proceedings under sections
8283 of Cr.PC by simply observing that “be that as it may”. The
aforesaid relevant aspect on grant of anticipatory bail ought not
to have been ignored by the High Court and ought to have been
considered by the High Court very seriously and not casually.
7.3 In the case of State of Madhya Pradesh vs. Pradeep Sharma
(Supra), it is observed and held by this court that if anyone is
declared as an absconder/proclaimed offender in terms of
section 82 of Cr.PC, he is not entitled to relief of anticipatory
bail. In paragraph 14 to 16, it is observed and held as under:
“14. In order to answer the above question, it is
desirable to refer to Section 438 of the Code which
“438. Direction for grant of bail to person
apprehending arrest.—(1) Where any
person has reason to believe that he may be
arrested on accusation of having committed
a nonbailable offence, he may apply to the
High Court or the Court of Session for a
direction under this section that in the event
of such arrest he shall be released on bail;
and that court may, after taking into
consideration, inter alia, the following
(i) the nature and gravity of the accusation;
(ii) the antecedents of the applicant including
the fact as to whether he has previously
undergone imprisonment on conviction by a
court in respect of any cognizable offence;
(iii) the possibility of the applicant to flee
(iv) where the accusation has been made
with the object of injuring or humiliating the
applicant by having him so arrested,
either reject the application forthwith or
issue an interim order for the grant of
Provided that, where the High Court or, as
the case may be, the Court of Session, has
not passed any interim order under this sub
section or has rejected the application for
grant of anticipatory bail, it shall be open to
an officer in charge of a police station to
arrest, without warrant the applicant on the
basis of the accusation apprehended in such
application.”
The above provision makes it clear that the power
exercisable under Section 438 of the Code is
somewhat extraordinary in character and it is to be
exercised only in exceptional cases where it appears
that the person may be falsely implicated or where
there are reasonable grounds for holding that a
person accused of an offence is not likely to
otherwise misuse his liberty.
15. In Adri Dharan Das v. State of W.B. [(2005) 4 SCC
303] this Court considered the scope of Section 438
of the Code as under : (SCC pp. 31112, para 16)
“16. Section 438 is a procedural provision
which is concerned with the personal liberty
of an individual who is entitled to plead
innocence, since he is not on the date of
application for exercise of power under
Section 438 of the Code convicted for the
offence in respect of which he seeks bail. The
applicant must show that he has ‘reason to
believe’ that he may be arrested in a non
bailable offence. Use of the expression
‘reason to believe’ shows that the belief that
the applicant may be arrested must be
founded on reasonable grounds. Mere ‘fear’
is not ‘belief’ for which reason it is not
enough for the applicant to show that he has
some sort of vague apprehension that
someone is going to make an accusation
against him in pursuance of which he may
be arrested. Grounds on which the belief of
the applicant is based that he may be
arrested in nonbailable offence must be
capable of being examined. If an application
is made to the High Court or the Court of
Session, it is for the court concerned to
decide whether a case has been made out for
granting of the relief sought. The provisions
cannot be invoked after arrest of the
accused. A blanket order should not be
generally passed. It flows from the very
language of the section which requires the
applicant to show that he has reason to
believe that he may be arrested. A belief can
be said to be founded on reasonable grounds
only if there is something tangible to go by
on the basis of which it can be said that the
applicant's apprehension that he may be
arrested is genuine. Normally a direction
should not issue to the effect that the
applicant shall be released on bail ‘whenever
arrested for whichever offence whatsoever’.
Such ‘blanket order’ should not be passed as
it would serve as a blanket to cover or
protect any and every kind of allegedly
unlawful activity. An order under Section
438 is a device to secure the individual's
liberty, it is neither a passport to the
commission of crimes nor a shield against
any and all kinds of accusations likely or
unlikely. On the facts of the case, considered
in the background of the legal position set
out above, this does not prima facie appear
to be a case where any order in terms of
Section 438 of the Code can be passed.”
16. Recently, in Lavesh v. State (NCT of Delhi) [(2012)
8 SCC 730] , this Court (of which both of us were
parties) considered the scope of granting relief under
Section 438 visàvis a person who was declared as
an absconder or proclaimed offender in terms of
Section 82 of the Code. In para 12, this Court held as
“12. From these materials and information, it
is clear that the present appellant was not
available for interrogation and investigation
and was declared as ‘absconder’. Normally,
when the accused is ‘absconding’ and
declared as a ‘proclaimed offender’, there is
no question of granting anticipatory bail. We
reiterate that when a person against whom a
warrant had been issued and is absconding
or concealing himself in order to avoid
execution of warrant and declared as a
proclaimed offender in terms of Section 82 of
the Code he is not entitled to the relief of
anticipatory bail.”
It is clear from the above decision that if anyone is
declared as an absconder/proclaimed offender in
terms of Section 82 of the Code, he is not entitled to
the relief of anticipatory bail.”
Thus the High court has committed an error in granting
anticipatory bail to respondent No.2 – accused ignoring the
proceedings under Section 8283 of Cr.PC.
8. Even the observations made by the High Court while granting
the anticipatory bail to respondent No.2 – accused that the
nature of accusation is arising out of a business transaction
and therefore the accused is entitled to the anticipatory bail is
concerned, the same cannot be accepted. Even in the case of a
business transaction also there may be offences under the IPC
more particularly sections 406, 420, 467, 468, etc. What is
required to be considered is the nature of allegation and the
accusation and not that the nature of accusation is arising out
of a business transaction. At this stage, it is required to be
noted that respondent No.2 accused has been chargesheeted
for the offences punishable under sections 406 and 420, etc.
and a chargesheet has been filed in the court of learned
9. In view of the above and for the reasons stated above, the
impugned judgment and order dated 14.08.2019 passed by the
High Court granting anticipatory bail to respondent No.2 –
accused is unsustainable and deserves to be quashed and set
aside and is accordingly quashed and set aside. However, two
weeks’ time from the date of pronouncement of this judgment is
granted to respondent No.2 to surrender before the concerned
Trial Court and thereafter it will be open for respondent No.2 –
accused to pray for regular bail, which may be considered in
accordance with law and on its own merits. The present appeal
is accordingly allowed in the aforesaid terms.
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The Supreme Court observed that an absconder/proclaimed offender is not entitled to relief of anticipatory bail.In this case, the Trial Court dismissed the anticipatory bail application on the ground that as the accused is absconding and even the proceedings under section 82/83 Cr.PC have been issued, the accused is not entitled to the anticipatory bail. Thereafter, the accused...
The Supreme Court observed that an absconder/proclaimed offender is not entitled to relief of anticipatory bail.
In this case, the Trial Court dismissed the anticipatory bail application on the ground that as the accused is absconding and even the proceedings under section 82/83 Cr.PC have been issued, the accused is not entitled to the anticipatory bail. Thereafter, the accused approached the High Court which granted the anticipatory bail.
In appeal , the state relied upon the judgment in case of State of Madhya Pradesh vs. Pradeep Sharma reported in (2014) 2 SCC 171,to contend that a person against whom the proclamation has been issued and the proceedings under sections 82-83 of Cr.PC have been initiated, is not entitled to the benefit of anticipatory bail.
The court noted that the High Court ignored the factum of initiation of proceedings under sections 82-83 of Cr.PC by simply observing that "be that as it may".
"In the case of State of Madhya Pradesh vs. Pradeep Sharma (Supra), it is observed and held by this court that if anyone is declared as an absconder/proclaimed offender in terms of section 82 of Cr.PC, he is not entitled to relief of anticipatory bail", the bench comprising Justices MR Shah and AS Bopanna observed.
The bench further observed that even in the case of a business transaction also there may be offences under the IPC more particularly sections 406, 420, 467, 468, etc. What is required to be considered is the nature of allegation and the accusation and not that the nature of accusation is arising out of a business transaction, the court observed while allowing the appeal.
Case no. and Date: CrA 1209 OF 2021 | 21 October 2021
Coram: Justices MR Shah and AS Bopanna
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Vikram Singh @ Vicky Walia son of Shri Gurjinder Singh
alongwith two others was found guilty of the offences punishable
under Sections 302, 364-A and 201 read with Section 120B of the
Indian Penal Code, 1860 (“IPC” for short) and was sentenced to
death in respect of the offences punishable under Sections 302 and
364-A IPC in Sessions Trial No.24 of 2005 on the file of the
The sentence of death was confirmed by the High Court in
Murder Reference No.1 of 2007 and in Criminal Appeal No.105-DB of
2007 vide its judgment dated 30.05.2008. This Court also upheld
the sentence of death in Criminal Appeal Nos.1396-97 of 2008 vide
judgment dated 25.01.2010.
Mercy Petition preferred by said Vikram Singh @ Vicky Walia
having been rejected, Writ Petition No.21274 of 2016 (Q&M) was
preferred which came up for consideration before the Single Judge
of the High Court, who dismissed the petition by order dated
The matter was carried in appeal by preferring Letters Patent
Appeal No.1395 of 2019, which was dismissed by the Division Bench
as not being maintainable.
The decision of the Division Bench is presently under
challenge in this Special Leave Petition.
It is reported that the mother of said Vikram Singh @ Vicky
Walia died on 13.11.2020 and some of the last rites including Bhog
Ceremony are to be performed on 19.11.2020 and 21.11.2020 at
Patiala. It is, therefore, submitted that said Vikram Singh @ Vicky
Walia be permitted to attend these ceremonies.
Ms. Jaspreet Gogia, learned Advocate appearing for the State,
has submitted that in Punjab Jail Manual, there is no provision
that a death convict can be released on parole and to similar
effect are the submissions of Mr. Abhishek Singh, learned Advocate
appearing for the family of the victim.
Ms. Jaspreet Gogia, learned Advocate however submitted that in
the peculiar facts and circumstances of the case and in terms of
instructions received by her, said Vikram Singh @ Vicky Walia can
be afforded the permission to attend the last rites and ceremonies
of his deceased mother on the relevant dates from 10.00 a.m. to
4.00 p.m., provided he is accompanied by the Police Escort all the
We accept the suggestion and direct:
a) Vikram Singh @ Vicky Walia, convict in Sessions Trial
No. 24 of 2005 shall be allowed to attend the last
rites and ceremonies of his deceased mother on
19.11.2020 and 21.11.2020 in Police Escort;
b) the facility shall be available only from 10.00 a.m
to 4.00 p.m. on the relevant dates and after 4.00
p.m., said Vikram Singh @ Vicky Walia shall be re-
c) the facility shall be available only for the
aforesaid purpose and apart from the residential
address, details of which are given here, he shall
not be taken to any other place.
d) utmost care shall be taken by the Police Escort in
every behalf.
A copy of this order shall immediately be sent to the
concerned Police Station Urban Estate, Patiala as well as to the
Superintendent of the Jail where said Vikram Singh @ Vicky Walia is
presently lodged.
A compliance affidavit shall be filed in this Court on or
List this matter for further consideration on 02.12.2020.
Let the order be issued today itself.
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The Supreme Court has permitted a death row convict to to attend the last rites and ceremonies of his deceased mother under police escort.Vikram Singh @ Vicky Walia and Jasvir Singh were convicted and sentenced to death for the offence of kidnapping Abhi Verma alias Harry, a school student, in Hoshiarpur, and killing him with an anesthesia overdose in 2005. The Supreme Court had confirmed...
The Supreme Court has permitted a death row convict to to attend the last rites and ceremonies of his deceased mother under police escort.
Vikram Singh @ Vicky Walia and Jasvir Singh were convicted and sentenced to death for the offence of kidnapping Abhi Verma alias Harry, a school student, in Hoshiarpur, and killing him with an anesthesia overdose in 2005. The Supreme Court had confirmed their death sentences by dismissing their appeals in 2010 and the review petitions filed by them were dismissed in 2017.
After the Mercy Petition preferred by them got rejected, they approached the Punjab and Haryana High Court. The said writ petition was dismissed by the High Court (single bench judgment was upheld by the division bench) and thus he approached the Apex Court by filing an SLP.
Before the Apex Court, it was submitted that the mother of Vikram Singh @ Vicky Walia died on 13.11.2020 and some of the last rites including Bhog Ceremony are to be performed on 19.11.2020 and 21.11.2020 at Patiala and thus he be permitted to attend these ceremonies.
In this regard, the State Counsel submitted that there is no provision that a death convict can be released on parole. However, he suggested that he can be afforded the permission to attend the last rites and ceremonies of his deceased mother on the relevant dates from 10.00 a.m. to 4.00 p.m., provided he is accompanied by the Police Escort all the time. The bench comprising Justices Uday Umesh Lalit, Vineet Saran and S. Ravindra Bhat accepted this suggestion and issued the following directives:
a) Vikram Singh @ Vicky Walia, convict in Sessions Trial No. 24 of 2005 shall be allowed to attend the last rites and ceremonies of his deceased mother on 19.11.2020 and 21.11.2020 in Police Escort; b) the facility shall be available only from 10.00 a.m to 4.00 p.m. on the relevant dates and after 4.00 p.m., said Vikram Singh @ Vicky Walia shall be relodged in the concerned jail; c) the facility shall be available only for the aforesaid purpose and apart from the residential address, details of which are given here, he shall not be taken to any other place. "House No.206, Street No.2, Baba Deep Singh Nagar, Patiala, Punjab." d) utmost care shall be taken by the Police Escort in every behalf.
Case: JASBIR SINGH @ JASSA vs. STATE OF PUNJAB [ SLP (Crl.) Nos.9650-9651/2019]Coram: Justices Uday Umesh Lalit, Vineet Saran and S. Ravindra Bhat Counsel: Sr. Adv. V. Giri, AOR Jaspreet Gogia
Read Order
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2. The controversy involved in these proceedings relates to the issue
as to whether the appellants possessed the eligibility criteria for
appointment to the posts of High School Assistants in the State of
Kerala. The main dispute is over the question as to whether the
appellants’ B.Ed. degrees were in the subjects fulfilling the eligibility
criteria. This is the common question involved in both the appeals and
we shall deal with this controversy in a composite manner in this
judgment. There are some variations in the factual basis of the claims of
both the appellants and we shall refer first to that aspect separately for
each of the appellants.
3. In the appeal originating in the Special Leave Petition (Civil) No.
4604 of 2020, the appellant is one Praveen Kumar C.P. We shall refer to
him henceforth as PK. The selection process for the post was initiated
by an employment notification dated 31st December, 2012, issued by the
Kerala Public Service Commission (KPSC). PK had applied for the said
post in Natural Science. The notification was for appointment in
Malayalam medium institutions in all the fourteen districts of the State
of Kerala. The requisite academic qualification for the post for which PK
had applied was stipulated Clause 7 of the said employment notification.
A degree in the concerned subject and B.Ed/BT in the
concerned subject conferred or recognized by the
University in Kerala (Concerned subjects are specified in
Note:- (i) Diploma in Rural Service awarded by the national
Council for Rural High Education will be treated as
equivalent to degree for the above purpose.
(ii) The applicants should have taken Botany or Zoology or
Home Science or Micro Biology as Main subjects for
graduation or post graduation.
(iii) Question papers for written test if any will be in
Malayalam, The candidates should answer the questions in
(iv) The disciplines in Degree and B.Ed Degree were
obtained should be mentioned in brackets in the application
form.
(v) Those candidates who secured B.Ed/B.T Degree from
the Universities outside Kerala should note in the
application form, the number and date of relevant orders
declaring the said degree as equivalent to those prescribed
for this selection. The copies of such order shall be
produced before the commission when it is called for.”
4. PK had obtained B.Ed. Degree in Biological Science from the
University of Mysore, the course which he pursued in Ramakrishna
Institute of Moral and Spiritual Education, Yadavgiri, Mysuru. The
University from which PK obtained B.Ed. Degree stood recognized by
University of Calicut, as would be apparent from Annexure P-10 to the
petition for special leave to appeal. This certificate stipulates:-
Certified that the B.Ed (Biological Science) Degree
of the University of Mysore after regular study has been
recognized as equivalent to the B.Ed Natural Science
Degree of this University.
Note: This is a general certificate and the original
certificate of the individual concerned has not been
verified in this office while issuing this. The eligibility
and the mode of study will be verified by the Admitting
5. PK’s certificate for B.Ed. degree did not specify the individual
subjects which formed part of his curriculum but in a document
captioned “Study Certificate” dated 12th December, 2019 issued by the
institute from which he pursued the B.Ed. course, it has been specified
he had passed B.Ed. Degree examination conducted by the University of
Mysore, Mysuru and his subjects in the B.Ed. were Content-cum-
Methodology 1-Biology and Content-cum-Methodology 2-Chemistry-
(Biological Science). This certificate was issued during pendency of the
dispute in the High Court of Kerala.
6. In the Appeal arising out of the Special Leave Petition (Civil) No.
3927 of 2021, the petitioner is one P. Anitha Devi. We shall refer to her
later in this judgment as AD. The selection process in her case was
initiated by a similar employment notification dated 15 th March, 2014 by
the KPSC. The subject-post was the same, i.e. High School Assistant
(Natural Science) but the category of schools for which this notification
was issued was Tamil medium institutions in the district of Palakkad and
Idukki. The relevant Clause pertaining to the qualification criteria of the
candidates in this notification was also Clause 7 and the stipulations
therein were broadly similar to that contained in the employment
notification dated 31st December, 2012. The said Clause in the
notification dated 15th March, 2014 specified: -
A degree of Postgraduate degree in the concerned subject
and B.Ed/BT in the concerned subject conferred or recognised
by the Universities in Kerala (Concerned subjects are specified
(i) Diploma in Rural Service awarded by the
National Council for Rural Higher Education will be
treated as equivalent to Degree for the above
purpose.
(ii) The applicants should have taken Botany or
Zoology or Home Science or Micro Biology as
Main subject for graduation or post graduation.
(iii) Post title degree holders are not eligible to
apply for the post of HSA.
(iv) Candidates applying for this post should have
sufficient knowledge in Tamil. Question papers for
written test/OMR test if any will be in Tamil. The
candidates should answer the questions in Tamil.
(v) The disciplines in which Degree and B.Ed
degree were obtained should be mentioned in
brackets in the application form.
(vi) Those candidates who secured B.Ed/B.T.
Degree from the Universities outside Kerala should
note in the application form, the number and date of
relevant orders declaring the said degree as
equivalent to those prescribed for this selection. The
copies of such order shall be produced before the
commission when it is called for.”
7. AD had obtained B.Ed. Degree in Biological Science and Physical
Science from Bharathiar University, Coimbatore, Tamil Nadu. The said
degree was also recognized by the University of Calicut in the State of
Kerala and certificate to that effect was issued on 31 st October, 2017.
This would be evident from Annexure P-4 to her petition. This
Certified that the B.Ed Degree of the Bharathiar University
Coimbatore after regular study has been recognized as
equivalent to the B.Ed Degree of this University.
Note: This is a general certificate and the original certificate
of the individual concerned has not been verified in this office
while issuing this. The eligibility and the mode of study will
be verified by the Admitting Authority.”
8. Both of them had participated in the selection process and were
included in the “main list”, which in substance signified their success in
the written test. But question arose as to whether their B.Ed. degrees
were in subjects equivalent to the “concerned subject” which was
stipulated in the employment notification. What would constitute
concerned subject has been stipulated in Note (ii) of Clause 7 of both the
employment notifications and neither of them possessed B.Ed. degree in
the subjects stipulated to be concerned in the said Clause.
9. As none of the appellants had B.Ed. degree in Natural Science, at
the time of verification of the documents of PK after publication of the
written test results, objection was raised in his case for not having B.Ed.
in the “concerned subject”. He was given time to produce the
Government Order regarding acceptance of his qualification. In the case
of AD also, similar objection was raised. PK had asked for extension of
time, which was denied, as submitted by his learned counsel. In case of
AD, she along with certain other candidates had approached the Kerala
Administrative Tribunal by filing an application (O.A. (EKM) No. 346
of 2018), inter-alia, claiming that she had the requisite qualification. An
interim order was passed on 20th February, 2018 by the Tribunal
permitting her to participate in the interview, subject to final outcome of
her petition. PK also had approached the Tribunal with an application
[O.A. (EKM) No. 257 of 2018] and an order was passed by the Tribunal
on 30th January, 2018 permitting him to take part in the interview subject
to further order in his case. On the basis of these orders, they
participated in the interview. Thereafter, the ranked lists were published
but the results of both the appellants were shown to have had been
withheld. PK again approached the Tribunal with an Original
Application registered as O.A. No. 1525 of 2019 challenging the
decision of the authorities in not accepting his B.Ed. Degree, the subject
of which he has termed as “Double Option”. During pendency of their
cases before the Tribunal, the Department of Higher Education,
Government of Kerala had issued two Government Orders (GOs) which
broadly sustained the claim of the appellants of having degrees
equivalent to that of the concerned subject. In the case of PK, the
Government Order dated 7th March, 2019 stipulated:-
Reference:- 1. Request submitted by Sri. Praveenkumar CP on
2. Letter No. ACD/03/Reg-1143/REC/18 dated
Praveenkumar CP who was included in the list of the Kerala
Public Service Commission had requested that a Government
Order be given stating that B Ed. degree in Biological Science
obtained from University of Mysore is equivalent to B Ed.
Degree in Natural Science, as per reference No. 1.
Government has considered the issue in detail on the basis of
the report of the Registrar of Mahatma Gandhi University as
per reference No. 2 which accepted that B. Ed. degree through
regular study obtained from University of Mysore is equivalent
to B.Ed. degree in Natural Science from Mahatma Gandhi
University. It is hereby ordered that B.Ed. degree in Biological
Science obtained through regular study from University of
Mysore is equivalent to B.Ed. Degree in Natural Science
obtained from Mahatma Gandhi University.
10. In the case of AD, a similar order dated 23rd July, 2019 was issued.
This GO also covered the case of another candidate Smt. Mafferith. The
Reference: 1. Application submitted by Smt. Mafferith,
2. Letter No. 103542/EQ&MG SO/2019/Admn. dated
28.06.19 of the Registrar, University of Calicut.
Smt. Mafferith, Smt. Anithadevi, who passed the exam
conducted by Kerala Public Service Commission had
submitted application as per Reference (1) to pass an
Order recognizing equivalence of Double Main B.Ed
Education & English Education) degrees obtained from
Bharathiar University through regular mode to B.Ed
Natural Science degree of University of Calicut. The
University of Calicut vide Reference (2) informed that
degrees obtained from Bharathiar University through
regular mode has been recognised equivalent as B.Ed
Natural Science degree of University of Calicut.
In the said circumstances, it is hereby ordered
that Double Main B.Ed (Biological Science Education
degrees obtained from Bharathiar University through
regular mode is recognized equivalent to B.Ed. Natural
Science degree of University of Calicut.
11. On the basis of these GOs, the Tribunal allowed both the petitions
and directed KPSC to include the appellants’ names in the ranked list. In
PK’s case, the order was passed by the Tribunal on 20th September, 2019
whereas the decision in AD’s petition was delivered on 2 nd September,
12. The KPSC assailed the Tribunal’s orders before the High Court of
Kerala. Their stand before the High Court was that equivalency ought to
operate from the dates of issue of the respective GOs and the said GOs
could not be given retrospective effect. This argument was sustained by
the High Court. In the case of PK, it was inter-alia held by the High
“The learned Standing Counsel appearing for the
PSC also contends that the equivalency issued is
after the notification and it could apply only for
future selections. Reliance is also placed on two
decisions of this Court in Lalitha Bai v. Public
Rajasree v. State of Kerala [2009 (1) KLT 259]. We
accept the contention, especially noticing the
decision of the Hon'ble Supreme Court in Zonal
Manager, Bank of India & Others v. Aarya K. Babu
and Another [(2019) 8 SCC 587]. Therein the
candidate did not have the qualification specified in
the notification, but on the basis of equivalency, this
Court allowed the candidate to be continued in the
post to the which she was appointed. The Hon'ble
Supreme Court deprecated the practice of the High
Court granting equivalency and categorically held
that the equivalency had to be specified in the
notification. The reasoning was also that there
would have been many other candidates with the
very same qualification, who would not have
applied in the belief that the said qualification is not
one prescribed in the notification.
For all the above reasons, we do not agree with the
Tribunal and we allow the original petition setting
aside the order of the Tribunal. Parties shall suffer
their respective costs.”
13. KPSC’s petition before the High Court, registered as OP (KAT)
No. 465 of 2019 against the Tribunal order in respect of AD was also
sustained on similar grounds and the orders of the Tribunal were set
aside in both their cases. In PK’s case, the judgment was delivered on
18th December, 2019 whereas KPSC’s petition against the Tribunal
judgment in AD’s case was rendered on 12th March, 2020.
14. The broad reasoning of the High Court in both the aforesaid
judgments was that the GOs could not be relied upon by the appellants
as these were issued subsequent to the employment notifications and on
conclusion of the selection processes. Opinion of the High Court was
that the acceptance of the Government Orders with retrospective effect
would amount to change in the rule of the game mid-way, which is
impermissible. The appellants have assailed legality of these judgments
before us. Their main argument is that the GOs only recognised a
subsisting position as regards status of their respective educational
qualifications and confirmation of the equivalency of their B.Ed.
subjects by the respective GOs met the eligibility requirement. It has
also been submitted on behalf of the appellants that the rejection of the
GOs issued recognizing their subsisting degrees as equivalent to that
specified on the ground that they could not be treated to have
retrospective operation would not apply in the facts of their cases.
15. The authorities which have been cited before us on behalf of
respondents, in support of the two judgments of the High Court are (i) P.
Mahendran v. State of Karnataka [(1990) 1 SCC 411], (ii) Prafulla
Kumar Swain v. Prakash Chandra Mishra & Ors. [1993 Supp (3)
SCC 181], (iii) Secretary, A.P. Public Service Commission v. B.
Ors. v. State of Rajasthan & Ors. [(2015) 8 SCC 484] and (v) Zonal
Manager, Zonal Officer, Bank of India Kochi & Ors. v. Aarya K
Babu & Anr. [(2019) 8 SCC 587]. These decisions are mainly
authorities on the point that the Rules prevailing on the date of issue of
employment notifications ought to prevail under normal circumstances
and new Rules or amendments coming midway through a selection
process cannot be applied to that process. Such new Rules would
operate prospectively. Certain judgments of the Kerala High Court have
also been relied upon by the KPSC on the same proposition of law. But
we do not consider it necessary to multiply the authorities in this
judgment on the same point.
16. Before us, argument has also been advanced by the learned
counsel for the appellants on legality of introducing specific subjects in
B.Ed. as qualifying criteria for the posts in question. Our attention in this
regard has been drawn to Clause 2(2)(a) of Chapter XXXI of the Kerala
Education Rules, 1959. The said Clause lays down that “A Degree in
concerned subject and B.Ed./ B.T./L.T conferred or recognized by the
Universities of Kerala” as qualification of a High School Assistant in a
particular subject. According to the appellants, there is no provision for
requiring a candidate having B.Ed. in concerned subject under the said
Rules. The heading of that chapter specifies that these are
“Qualifications of Private School Teachers”. But in their written
submissions, the State government has referred to the same Rules to be
applicable in the appellants’ cases as well. The appellants were seeking
employment in the State educational sector. The State wants us to give a
strained interpretation to the said Rules treating the same to be
applicable for the subject-posts, which are in State institutions and
simultaneously read the words “concerned subject” in relation to B.Ed.
Degree also. This argument of the State is advanced on the ground that
it would be in the interest of maintaining quality of education. But on a
plain reading of the said clause, it is apparent that there is no specific
subject in B.Ed. has been made to be the qualifying criteria in Clause
2(2)(a) of Chapter XXXI of the 1959 Rules. The graduation requirement
in concerned subject is there, but going by the said Clause, it postulates
B.Ed. degree simplicitor as the eligibility criteria. No other Rule has
been shown to us by the learned counsel for the State of Kerala or the
Commission from which it can be inferred that there was requirement of
a candidate for the subject posts to hold B.Ed. degree in the concerned
subject. So far as the present appellants are concerned, no dispute has
been raised over their graduation being in the concerned subject.
17. On behalf of KPSC, it has been contended that it was within their
power to stipulate qualification beyond that what is specified in
aforesaid Clause 2(2)(a) and they have relied on Kerala State and
Subordinate Services Rules, 1958 to establish that they had power to do
so. The said Rules lay down various aspects of recruitment and
conditions of service in the State of Kerala and Rule 10 thereof deals
with qualification requirements for a post in State and Subordinate
Services. The Kerala State and Subordinate Services Rules, 1958 have
been framed under Article 309 of the Constitution of India. The relevant
provisions of Clause 10 thereof provide:-
“10. Qualifications. _____ (a) (i) The educational or other
qualifications, if any, required for a post shall be as
specified in the Special Rules applicable to the service in
which that post is included or as specified in the executive
orders of Government in cases where Special Rules have
not been issued for the post/service.
(ii) Notwithstanding anything contained in these rules or in
the Special Rules, the qualifications recognized by
executive orders or standing orders of Government as
equivalent to a qualification specified for a post, in the
Special Rules or found acceptable by the Commission as
per rule 13 (b) (i) of the said rules in cases where
acceptance of equivalent qualifications is provided for in
the rules and such of those qualifications which pre-
suppose the acquisition of the lower qualification
prescribed for the post, shall also be sufficient for the post.”
18. Clause 13 of the 1958 Rules permits the Commission to prescribe
special qualifications in cases where appointments have to be made in
consultation with it or by the State Government or by an appointing
authority with approval of State Government in other cases. No specific
notification or order issued by the KPSC has been brought to our notice
under which the eligibility criteria of holding B.Ed. Degree had to be in
the concerned subject for the posts of High School Assistants. KPSC’s
submission on this point is that the same was not raised at any earlier
stage of the proceeding. But in our opinion, the appellants cannot take
aid of this argument as the respective employment notifications had
specified B.Ed. in concerned subject. The appellants having participated
in the said selection process without raising any objection on that count,
it would not be open to them to question the eligibility criteria specified
in the employment notification. We shall, thus, proceed on the basis that
the candidates for the posts in question were required to have B.Ed.
degree in the concerned subject and it is not in dispute that B.Ed.
degrees of the appellants were not in the concerned subjects. The two
GOs, however, confer on the subjects in which the appellants obtained
B.Ed. degrees, equivalency to the required subjects.
19. There is support for adoption of principle of equivalency in Clause
10 (a)(ii) of the 1958 Rules. The appellants’ case is also that their B.Ed.
degrees should have been accepted as their subjects in the respective
degree courses were equivalent to the designated subjects, as was
stipulated in the employment notifications.
20. We shall now turn to the question as to whether the two GOs dated
07th March, 2019 and 23rd July, 2019 could apply in the cases of the
appellants for consideration of the equivalent status of their degrees in
B.Ed., the employment notifications having been published in the years
2012 and 2014. In that perspective, will consideration of their degrees in
B.Ed. in the light of the aforesaid two GOs result in changing the rules
21. Before we address that question, we shall refer to Note (v) and
Note (vi) of Clause 7 of the respective employment notifications
concerning PK and AD respectively. We have reproduced the said
Clauses earlier in this judgment. There was requirement in Clause 7 that
the candidates ought to disclose the dates of GOs declaring equivalency
to the concerned subjects. But neither the KPSC nor the State has
argued before us that there was any defect in the appellants’ applications.
They were permitted to participate in the written test. On this count, the
respondents have relied on a judgment of this Court in the case of T.
Jayakumar v. A. Gopu [(2008) 9 SCC 403] to contend that oversight
on the part of the authorities at the stage of processing applications
would not be treated to be condonation of some fatal defect in such
applications. Next requirement, as per said Clause 7 was production of
such Orders before the Commission when the same was called for. The
respective clauses did not, however, identify the authorities who should
issue such orders. The two universities of the State of Kerala have
certified the appellants’ B.Ed. degrees to have equivalent status to the
ones required and this was followed by the two GOs. These documents,
however, were generated during the selection process.
22. A large body of authorities was cited to contend that such
recognition subsequent to publication of the employment notification
was impermissible. The High Court particularly relied on a Full Bench
decision of the Kerala High Court in the case of A. Suma v. The Kerala
Public Service Commission & Ors. reported in [(2011) 1 KLT1 (FB)].
In that judgment, referring to the 1958 Rules, it was held that the
Commission was incompetent to deal with the question of equivalence
of educational and other qualifications prescribed unless the subject
rules provided for recognition of qualifications other than that prescribed
as equivalent. But so far as these two appeals are concerned, we are not
dealing with a question as regards the authority of Commission to deal
with the question of equivalency. In this case, equivalency has been
declared by the State Government, and prior to that, by two universities
of the State of Kerala. The power of the State Government to make
orders on the question of equivalence is not in dispute. Such power, inter
alia, stems from Clause 10(a) (ii) of 1958 Rules. Thus, the case of A.
Suma (supra) has no application as regards the appellants’ rights to be
considered for the posts in question having regard to their B.Ed. degrees.
23. Learned counsel for the respondents have emphasised on the
decision of this court in the case of Aarya K. Babu (supra). This case
involved the question of appointment of certain individuals by the
appellant bank in the post of Agricultural Field Officer. One of the
degrees prescribed in the eligibility criteria was Agro-Forestry. The
clause relating to qualification requirement in the notification dated
operation & Banking/Agro-Forestry.”
24. The candidates who brought that action initially did not possess
degree in any of the subjects specified therein, but their degrees were in
Forestry. They were successful in the selection process but their
selection was cancelled on the ground that they did not possess the
prescribed qualification in terms of the notification. It transpired that
there was no 4-year degree programme being offered in this country for
Agro-Forestry. Indian Council of Agricultural Research (ICAR) had
taken a view that definition of agriculture included forestry. It appears
that on that basis the degrees of the respective candidates in that
proceeding were accepted at the initial stage. In the month of November,
2015, an Office Memorandum was issued by the Ministry in which the
fact of there being no 4-year bachelor programme in Agro-Forestry
available in the country was taken note of. On the ground that Agro-
Forestry was covered comprehensively as a subject in the ICAR
approved syllabus for B.Sc. Forestry, it was suggested that it would be
appropriate that degree in B.Sc. Forestry ought to be considered for the
posts of Agricultural Field Officer in banks. A corrigendum was
subsequently issued by the Indian Bank Personnel Selection (IBPS) on
16th January, 2016 in that regard. The cancellation order was
successfully challenged by the terminated candidates in the High Court
of Kerala, against which the Bank instituted the petition for special leave
to appeal. Leave was granted in the Bank’s petition. It was held by a
coordinate Bench of this Court in the case of Aarya K. Babu (supra):-
“17. In that backdrop, though in the instant facts presently
the qualification possessed by the private respondents is
decided to be included for the purpose of recruitment to the
post of Agricultural Field Officer, as on the date of the
recruitment notification the same was not included therein,
which cannot be substituted by the Court with
retrospective effect for the reasons stated above. Therefore,
in the said circumstance, in the present facts, the High
Court was not justified in its conclusion. We, however,
make it clear that though we have referred to the legal
position and applied the same to the case of the parties
who are before us, if in the case of similar recruitment, the
employers themselves have permitted the equivalence and
have continued such of those officers recruited, this
decision shall not be applied to initiate action against such
officers at this distant point of time. Subject to the above,
the orders passed by the High Court of Kerala which are
impugned herein are set aside.
18. Having arrived at the above conclusion we also take
note of the submission of the learned counsel for the
private respondent in the appeal arising out of SLP (C) No.
16567 of 2016, namely, Smt. Aarya K. Babu that she is
placed in very difficult circumstances subsequent to the
discharge from service which is also due to certain setback
in her personal life. Though we do not wish to articulate
the actual fact situation narrated we have no reason to
disbelieve the same, hence, we find it appropriate that in
her case it is necessary to exercise our discretion under
Article 142 of the Constitution to serve the ends of justice
and do complete justice without prejudicing either of the
parties. In that view, we direct the appellant Bank of India
to provide appointment to Smt. Aarya K. Babu as
Agricultural Field Officer or such other equivalent post if
the vacancy exists as on today or in the vacancy that would
arise in future. In that regard it is made clear that the same
will be considered as a fresh appointment from the date of
appointment and no previous benefit can be claimed by
her. Further, it is made clear that this direction is issued in
the peculiar facts and circumstances of this case and the
same shall not be treated as a precedent for any other
case.”
25. So far as the present appeals are concerned, the facts are not
identical or near similar also considering the factual background of the
case of Aarya K. Babu (supra). In the two GOs which have been
reproduced earlier, it has been specified that the respective B.Ed. degrees
of the appellants through regular study were equivalent to B.Ed. degree
in Natural Science. In the case of PK, his B.Ed. Degree in Biological
Science was recognized as equivalent to B.Ed. Natural Science Degree
of Mahatma Gandhi University, Kerala. In the case of AD, the GO
stipulated that Double Main B.Ed. (Biological Science Education and
Physical Science Education) degree obtained by her through regular
mode was recognized as equivalent to B.Ed. Natural Science Degree of
University of Calicut. It is a fact that these orders came much after the
employment notifications were issued. But what we have to address in
these appeals is as to whether the respective B.Ed. degrees of the
appellants declared as equivalent to those of the concerned subjects as
notified would operate from the dates of issue of the respective GOs or
the same would relate back to the time when they obtained the degrees
or at least to the date of the employment notification. The appellants
have relied on a decision of a coordinate Bench in the case of Beena R.
v. Kerala Public Service Commission and Ors. [(2017) 15 SCC 306].
In that case, however, there was no dispute in the case of appellant that
she possessed equivalent qualification of KGTE (English typewriting)
but she did not have separate certificate as far as the computer
wordprocessing was concerned. In this judgment, a coordinate Bench
examined the implication of the expression “produced”. This authority
does not aid the appellants.
26. Note (v) of Clause 7 of the employment notification in the case PK
and Note (vi) of Clause 7 of the employment notification in the case of
AD required disclosure of the equivalency orders. A plain reading of the
two GOs clearly reflect that their degrees were equivalent to the
requisite qualifications contained in the eligibility criteria. In the case of
Aarya K. Babu (supra), the disputed subject was recognized
subsequently and introduced as part of the eligibility criteria. The
principle of equivalency was not the main reasoning on the basis of
which the said case was decided. The word “equivalence” in its plain
meaning implies something which is equal to another. In the field of
academics, application of the principle of equivalency in relation to
degrees in two subjects would mean that they had the same standing or
status all along, unless the official instrument according equivalency
specifies a date from which the respective subjects would be treated as
such, in express terms or by implication.
27. Whether a GO would have prospective effect or relate back to an
earlier date is a question which would have to be decided on the basis of
text and tenor of the respective orders. The GOs which declared
appellants’ degrees to be equivalent to those required as per the
applicable notifications were not general orders but these two orders
were person specific, relating to the two appellants. Once the GOs
specifically declared that their B.Ed. degrees were equivalent to the
designated subject which formed part of the employment notification,
the GOs in substance have to be interpreted as clarificatory in nature and
these cannot be construed to have had elevated the status or position of
the degree they already had after the declaration was made in the GOs.
The subject GOs only recognised an existing state of affairs so far as the
nature of the degrees were concerned and did not create fresh value for
the degrees which the appellants possessed. Though these equivalent
orders were not in existence on the dates of issue of employment
notifications, the GOs in substance recognize such status from the dates
of obtaining such degrees. The GOs do not reveal any intervening
circumstances which could be construed to imply that the respective
degrees acquired the equivalent status because of such circumstances
occurring subsequent to grant of their B.Ed. degrees. The aforesaid
Notes to Clause 7 of the employment notifications postulated disclosure
of the number and date of the orders on equivalence. But the GOs to
which we have referred treat the equivalency to be operating on the dates
of obtaining such degrees. Thus, the defect, if any, on disclosure
requirement, shall stand cured on issue of the University orders followed
by the GOs. The GOs also specify the context in which these were
issued and refer to the appellants being included in the list of KPSC.
This being the case, we do not think treating the appellants’ degrees as
equivalent to those required under the applicable notifications by the
GOs issued in the year 2019 would result in change in the rules of the
game midway. At best, it can be termed as interpreting the rules when
the game was on, figuratively speaking. Such a course would, in our
opinion, be permissible. For this reason, we do not consider it
necessary to deal with the different authorities cited on the principle of
“change in the rule of the game midway”. We have opined that the
appellants’ degrees in B.Ed. were equivalent to those required by the
employment notifications and the equivalency orders were merely
clarificatory in nature. For this reason, we do not think there was any
fundamental breach of Notes (v) and (vi) of Clause 7 of the respective
employment notifications in the cases of the appellants.
28. Once we hold so, we do not think relief can be denied to these two
appellants on the ground that other similarly situated persons may not
have had applied for the same posts and were being put to disadvantage.
In the case of Aarya K. Babu (supra), that course was adopted by a
coordinate Bench as it was a new subject which was added to a
subsisting range of subjects in the qualification criteria. The principle of
service jurisprudence that a candidate must possess the requisite
qualification for a post on the date of issue of employment notification
cannot be applied in the appellants’ cases, as in our view, they possessed
equivalent qualifications when they applied for the posts. The GOs only
confirmed the equivalency of their B.Ed. degrees. In our opinion, they
shall be deemed to have had the equivalent qualification on the relevant
date. As we have held that the respective GOs only clarified or
confirmed an existing status of certain educational qualifications, in
absence of specific instance of similarly situated but unspecified number
of persons having not applied for the posts would be unfair to the ones
who apply for the same and undergo three levels of litigations to
establish that they had equivalent degrees.
29. The judgments under appeal are accordingly set aside and the
orders of the Tribunal dated 20th September, 2019 and 2nd September
2019 shall stand restored. Let result of the appellants be disclosed and in
the event, on the basis of their performance, they come within the list of
selected candidates as per the ranked lists, the benefit thereof shall not
be denied to the appellants on the ground of lapse of the list by efflux of
time. In the event they qualify for appointment, they shall be given
appointment and they shall be treated to have been in service from the
date of their appointment in their respective posts. The appeals stand
allowed in the above terms. All pending applications stand disposed of.
30. There shall be no orders as to costs.
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The Supreme Court has held that candidates with B.ED degree in 'Biological Science' are eligible to apply to the post of High School Assistant (Natural Sciences) in government schools in Kerala.A bench comprising Justice L Nageswara Rao and Justice Aniruddha Bose set aside the judgments of the Kerala High Court which held that B.Ed degree in 'Biological Science' was not a qualification for...
The Supreme Court has held that candidates with B.ED degree in 'Biological Science' are eligible to apply to the post of High School Assistant (Natural Sciences) in government schools in Kerala.
A bench comprising Justice L Nageswara Rao and Justice Aniruddha Bose set aside the judgments of the Kerala High Court which held that B.Ed degree in 'Biological Science' was not a qualification for High School Assistant (Natural Sciences).
Background facts
The Supreme Court was considering two appeals. The appellants were persons with B.Ed in 'Biological Science'. As per the notification issued by the Kerala Public Service Commission, the qualifications for the post of HSA (Natural Sciences), were :
Applicants should have taken Botany or Zoology or Home Science or Micro Biology as Main subjects for graduation or post graduation.B.Ed/BT in the "concerned subject".
The issue was whether B.Ed in 'Biological Sciences' would qualify as B.Ed in the "concerned subject" for the purpose of HSA(Natural Science).
When the PSC refused to accept their applications, stating that they don't have B.Ed in 'Natural Science', they approached the Kerala Administrative Tribunal. During the pendency of their cases before the KAT, the Kerala Government issued two orders stating that the B.Ed 'Biological Science' degree of the appellants were equivalent to B.Ed in 'Natural Science'.
On the basis of these Government Orders, the Tribunal allowed both the petitions and directed KPSC to include the appellants' names in the ranked list.
The KPSC assailed the Tribunal's orders before the High Court of Kerala. Their stand before the High Court was that equivalency ought to operate from the dates of issue of the respective GOs and the said GOs could not be given retrospective effect from the date of notification of the posts. Accepting the argument of the PSC, a division bench of Justices K Vinod Chandran and VG Arun of the High Court set aside the order of the KAT. The High Court said that the acceptance of the Government Orders with retrospective effect would amount to change in the rule of the game mid-way, which is impermissible.
Challenging the High Court verdict, the candidates approached the Supreme Court. Their main argument is that the GOs only recognised a subsisting position as regards status of their respective educational qualifications and confirmation of the equivalency of their B.Ed. subjects by the respective GOs met the eligibility requirement.
Supreme Court's reasoning
The Supreme Court noted that there is no provision in the Kerala Education Rules which making B.Ed in a specified subject the qualifying criteria.
"The graduation requirement in concerned subject is there, but going by the said Clause, it postulates B.Ed. degree simplicitor as the eligibility criteria. No other Rule has been shown to us by the learned counsel for the State of Kerala or the Commission from which it can be inferred that there was requirement of a candidate for the subject posts to hold B.Ed. degree in the concerned subject", the judgment authored by Justice Aniruddha Bose stated.
As regards the Government Orders, the Court held that they "recognized an existing state of affairs so far as the nature of the degrees were concerned and did not create fresh value for the degrees which the appellants possessed".
"Once the GOs specifically declared that their B.Ed. degrees were equivalent to the designated subject which formed part of the employment notification, the GOs in substance have to be interpreted as clarificatory in nature and these cannot be construed to have had elevated the status or position of the degree they already had after the declaration was made in the GOs. The subject GOs only recognised an existing state of affairs so far as the nature of the degrees were concerned and did not create fresh value for the degrees which the appellants possessed. Though these equivalent orders were not in existence on the dates of issue of employment notifications, the GOs in substance recognize such status from the dates of obtaining such degrees. The GOs do not reveal any intervening circumstances which could be construed to imply that the respective degrees acquired the equivalent status because of such circumstances occurring subsequent to grant of their B.Ed. degrees", the judgment stated.
The Court said that it does not think "treating the appellants' degrees as equivalent to those required under the applicable notifications by the GOs issued in the year 2019 would result in change in the rules of the game midway".
"At best, it can be termed as interpreting the rules when the game was on, figuratively speaking. Such a course would, in our opinion, be permissible", the Court observed.
"We have opined that the appellants' degrees in B.Ed. were equivalent to those required by the employment notifications and the equivalency orders were merely clarificatory in nature. For this reason, we do not think there was any fundamental breach of Notes (v) and (vi) of Clause 7 of the respective employment notifications in the cases of the appellants", the Court added.
The Supreme Court set aside the High Court's judgment and restored the orders of the Administrative Tribunal.
"Let result of the appellants be disclosed and in the event, on the basis of their performance, they come within the list of selected candidates as per the ranked lists, the benefit hereof shall not be denied to the appellants on the ground of lapse of the list by efflux of time. In the event they qualify for appointment, they shall be given appointment and they shall be treated to have been in service from the date of their appointment in their respective posts", the Court ordered.
Advocate Sarath Janardanan appeared for the appellant.
Case Details
Title : Praveen Kumar CP v. Kerala Public Service Commission and others(C.A No.4846/2021) and connected case
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1. On 10th February 2020, for the reasons recorded, a Bench of two Hon’ble judges of
this Court came to the conclusion that the view taken by this Court in the case of State of
Uttar Pradesh v. Preetam Singh & Ors.1 (Preetam Singh’s case) needs reconsideration.
Under Section 3 of the Uttar Pradesh Avas Evam Vikas Parishad Adhiniyam, 1965 (for
short ‘the 1965 Act’), Uttar Pradesh Avas Evam Vikas Parishad (for short ‘the Board’) was
established. The basic object of the establishment of the Board was of framing and
executing housing and improvement schemes in the State of Uttar Pradesh. The core
issue on which the reference is made to a larger Bench is whether the act of determining
service conditions of the employees and officers of the Board is one of the statutory
functions of the Board.
2. On 21st February 1995, the Board resolved to extend the pensionary benefits to its
employees by replacing the existing Contributory Pension Scheme (for short ‘the old
pension scheme’) with a pension/family pension/gratuity scheme (for short ‘the new
pension scheme’). On 16th May 1996, the State Government accorded its consent to the
new pension scheme subject to the condition that the Board will not be entitled to seek
any financial assistance for the implementation of the new pension scheme.
3. By a Resolution dated 5th November 1997, the Board approved the new pension
scheme. The new pension scheme was based on the pension scheme of the State
Government applicable to civil servants. On 26th November 1997, State Government
passed an order staying the implementation of the new pension scheme. It appears that
the State Government appointed a committee of experts to examine the new pension
scheme of the Board. After considering the report of the committee of experts, the State
Government vide order dated 14th September 1999 vacated the stay granted earlier by
imposing a condition that the scheme shall be funded from the contribution to provident
fund made by the Board and that neither the State Government nor the Board shall incur
financial liability by implementing the new pension scheme.
4. Preetam Singh and others who were the employees of the Board, filed a writ
petition in Allahabad High Court. The prayer in the petition was initially confined to the
challenge to the Government Order dated 14th September 1999. During the pendency of
the said petition, on 7th May 2003, the State Government reiterated its earlier stand of
granting no objection to the new pension scheme subject to the condition that no financial
assistance shall be provided to the Board for implementing the said scheme. On 16th
January 2004, the Board by an office order gave an option to its employees of either opting
for the new pension scheme or continuing with the old pension scheme. In terms of the
option given by the Board, according to the case of the State Government, 582 employees
opted for the old pension scheme by filing necessary undertakings. On 13th September
2005, the State Government issued an order keeping its communication dated 7th May
2003 in abeyance on the ground that it was preparing comprehensive guidelines regarding
the payment of pension to the employees of Public Sector Enterprises. By a
communication dated 12th July 2007, the State Government purported to withdraw the
approval granted earlier to the new pension scheme of the Board. The writ petition filed
by Preetam Singh and others was amended and a challenge to the orders dated 13th
September 2005 and 12th July 2007 was incorporated in the petition. During the pendency
of the petition filed by Preetam Singh and others, the State Government issued an office
memorandum dated 8th December 2008 for applying a revised pension, gratuity/family
pension, and commutation scheme with effect from 1st January 2006 for the benefit of its
employees. The said memorandum was issued in terms of the recommendations of the
U.P Pay Committee, 2008. However, the employees of local bodies and public enterprises
were specifically excluded from the applicability of the said office memorandum. Another
office memorandum was issued on 8th December 2008 by the State Government for
providing revised pensionary benefits to those Government servants who had retired
before 1st January 2006. This order was made applicable to the employees of Public
Sector Enterprises who were already getting pension prior to 1st January 2006. A Division
Bench of Allahabad High Court by the judgment and order dated 16th January 2009
allowed the writ petition filed by Preetam Singh & others. The High Court quashed the
orders dated 13th September 2005 and 12th July 2007 to the extent to which they related
to the Board. A writ of mandamus was issued directing the Board to implement the new
pension scheme in terms of its Regulations framed on 5th November 1997.
5. In view of the decision of the High Court, a notification dated 19th May 2009 was
issued by the Board in the exercise of powers under clause (f) of sub-section (1) of Section
95 of the 1965 Act. The notification recorded that the Board had decided to implement the
new pension scheme as admissible to the officers and employees of the State
Government in terms of the Rules and Regulations set out in the said notification. The
Board directed that the new pension scheme shall come into force and will apply to those
officers who retired on or after 1st January 1996. However, it was stated that the Newly
Defined Contributory Pension Rules of the State Government will be applicable to those
employees of the Board who have joined the employment on or after 1st April 2005. The
notification also provided that the orders issued from time to time by the State Government
with respect to pension/ family pension/ gratuity shall be applicable to the officers and
employees of the Board.
6. The decision of the High Court was challenged by the State Government before this
Court in which the decision of this Court in Preetam Singh’s case1 was rendered. It was
observed in paragraph 21 of the final judgment of this Court that the interim order dated
7th August 2012 passed by this Court had the effect of staying the notification dated 19th
May 2009. By the interim order of this Court dated 7th September 2012, the employees of
the Board were permitted to claim benefits under the old pension scheme. However, it
was observed that the interim order will not come in the way of the said employees
agitating their claim and also supporting the relief granted by the High Court.
7. One of the main contentions canvassed by the State of Uttar Pradesh before this
Court in Preetam Singh’s case1 was based on provisions of sub-section (1) of Section 2
of the U.P. State Control Over Public Corporations Act, 1975 (for short ‘the 1975 Act’).
Section 2(1) of the 1975 Act provides that every statutory body established or constituted
under any Uttar Pradesh Act shall in the discharge of its functions be guided by such
directions on questions of policies as may be issued to it by the State Government
notwithstanding that no such power has been expressly conferred by the statute
establishing such a statutory body on the State Government. The contention of the State
Government was that the orders issued on 13th September 2005 and 12th July 2007 must
be deemed to have been issued in the exercise of powers under Section 2(1) of the 1975
8. While deciding Preetam Singh’s case1 on 24th September 2014, this Court referred
to Section 15 of the 1965 Act which exhaustively incorporates the functions of the Board.
This Court came to the conclusion that fixing conditions of service of its employees does
not constitute a function of the Board. Therefore, this Court held that the State Government
had no power to issue the directions contained in its orders dated 13th September 2005
and 12th July 2007. This Court also held that clause (f) of sub-section (1) of Section 95 of
the 1965 Act vests a power in the Board to make Regulations for determining conditions
of service of its officers and servants. It was held that the new pension scheme has been
framed by the Board in the exercise of power under clause (f) of sub-section (1) of Section
95. While dismissing the Special Leave Petition filed by the State Government, this Court
referred to the notification dated 19th May 2009 of the Board issued in the exercise of
power under clause (f) of sub-section (1) of Section 95 of the 1965 Act. This Court while
dismissing the appeal preferred by the State Government directed that all the eligible
employees of the Board will be governed by the said notification dated 19th May 2009. This
Court directed the Board to release pensionary benefits to retired employees governed by
the notification dated 19th May 2009 within a period of three months. Paragraph 21 of the
decision containing the directions issued by this Court is reproduced below:-
“21. It is also necessary for us to determine the consequence of the State of Uttar Pradesh, having
approached this Court, to assail the impugned judgment dated 16-1-2009 [Preetam Singh v. State
of U.P., 2009 SCC OnLine All 33 : (2009) 2 All LJ 702] . This Court having entertained the
petition filed by the appellant, passed interim directions on 7-8-2012 [State of U.P. v.
Preetam Singh, IA No. 7 in Civil Appeal No. 6307 of 2010, order dated 7-8-2012 (SC), wherein
it was directed:“Taken on board. There shall be stay of the order passed in Writ Petition
No. 1433 of 2011 dated 24-7-2012. IA No. 7 is disposed of. Registry is directed to list IA No.
4 on 27-82012, if it is in order.”] , which had the effect of staying the implementation of the
directions issued by the High Court, namely, of staying the implementation of the
Notification dated 19-5-2009. As a result, the employees governed by the Notification dated
19-5-2009, were paid their retiral dues under the Contributory Provident Fund Scheme. Since we
have now affirmed the impugned judgment of the High Court, dated 16-12009 [Preetam Singh v.
State of U.P., 2009 SCC OnLine All 33 : (2009) 2 All LJ 702] , it is apparent that all the eligible
employees of the Vikas Parishad will be governed by the Notification dated 19-52009. They will
therefore be entitled to the pensionary benefits from the date of their retirement. Undoubtedly,
they have been denied the said retiral benefits, consequent upon the interim orders passed
by this Court, at the behest of the State of Uttar Pradesh. In the above view of the matter,
we direct the Vikas Parishad to release the pensionary benefits to the retired employees
governed by the Notification dated 19-5-2009, within three months from today. While
determining the pensionary benefits payable to the eligible retired employees up to date,
if it is found that any of the retired employees is entitled to financial dues in excess of
those already paid under the Contributory Provident Fund Scheme, the said employee(s)
will be paid interest on the said amount @ 9% p.a. The burden of the aforesaid interest
component on the differential amount will be discharged by the Vikas Parishad in the first
instance. The same shall, however, be recovered from the State of Uttar Pradesh, who is solely
responsible for the interest ordered to be paid to the employees concerned.”
9. On 16th October 2009, the State Government issued an order sanctioning revised
pay structure, pay band, and grade pay to different categories of employees working in
public enterprises/ corporations. The revised pay structure was incorporated in the
annexure to the said order. The Government Order stated that necessary action shall be
taken by the public enterprises/ corporations in consultation with the Public Enterprises
Department/ Finance Department. It is also provided in the Government Order that the
execution of the Government Order shall be made only after a proposal to that effect is
approved by the Board of Directors of the Public Sector Enterprises. On 30th November
2009, the Housing Commissioner of the Board addressed a letter to the State Government
for communicating the proposal of the Board to apply the revised pay structure to its
employees. In response, on 14th January 2010, the State Government issued a
communication permitting the Board to grant the revised pay structure according to the
recommendations of the 7th Report of the U.P Pay Committee, 2008 to its employees. The
State Government permitted the Board to grant the revised pay structure to its employees
as provided in the aforesaid Government Order dated 16th October 2009. The said order
was issued on the basis of the recommendations of the Empowered Committee. However,
it was stated in that communication that the benefit shall be calculated on a notional basis
with effect from 1st January 2006 in the pay band and grade pay as per the table annexed
to the Government Order dated 16th October 2009. It provided that the actual benefit shall
be provided with immediate effect i.e. from 14th January 2010. In short, the employees of
the Board were not entitled to arrears of pay as per the revised pay structure with effect
from 1st January 2006. They were entitled to revised pay scales only on a notional basis
from 1st January 2006 and to the actual benefits only from 14th January 2010. Based on
the said communication, an Office Order was issued by the Board on 23rd January 2010
for giving effect to the communication dated 14th January 2010. In fact, another
Government Order was issued on 15th September 2011 stating that in terms of the order
dated 14th January 2010, pay scales of the employees of the Board will be notionally
revised with effect from 1st January 2006 but the actual benefits shall be extended only
from 14th January 2010. The said Government Order reiterates that the employees of the
Board will not be entitled to benefit of the revised pay structure for the period of 1st January
2006 to 13th January 2010.
10. The State Government issued another order dated 05th May 2015 to the Board
communicating the decision of the Hon’ble Governor to grant pensionary benefits to the
employees of the Board in terms of the new pension scheme with retrospective effect from
1st January 2006. The decision of the State Government, inter alia, provided that the
employees who were employed on or before 31st March 2005 and who had not retired till
date shall be granted pension. It further provided that the employees who had already
retired and had taken benefits under the old pension scheme will not be entitled to get a
pension under the new pension scheme. The Government directed that the employees of
the Board who have been employed on or after 1st April 2005 will not be entitled to grant
of pension. In terms of the Government Order of 05th May 2015, the Board issued Office
Order dated 13th May 2015.
11. There were two sets of writ petitions filed before the Allahabad High Court. The first
one was Writ Petition No.12645 of 2016 filed by certain employees of the Board. The
following prayers were made in the petition :
“(i) to issue a writ, order or direction in the nature of Mandamus commanding the respondents to
redetermine the salary of the petitioners till their retirement and thereafter their pensionary
benefits on the basis of Sixth Pay Commission Recommendation w.e.f.1.1.2006.
(ii) to issue a writ, order or direction in the nature of Mandamus commanding the respondents
to apply the provisions of the Government Order No.1508 dated 8.12.2008 on the officers of the
Parishad, while suitably reading down the restrictive provisions about its non-application on the
employees of the U.P. Awas Evam Vikas Parishad in view of the Pension Regulations dated
19.5.2009 read with judgment and order of the Hon’ble Apex Court dated 23.9.2014.
(iii) to issue a writ, order or direction in the nature of mandamus commanding the respondents
to redetermine/re-fix the salary of the petitioners in terms of Sixth Pay Commission
Recommendation w.e.f. 1.1.2006 till their retirement and thereafter redetermine their pensionary
benefits as per revised last pay drawn and pay arrears of salary and revised pensionary benefits
from the date of their retirement till date, in accordance with G.O. dated 8.12.2008, after deducting
the amounts already paid towards pensionary benefits of the petitioners, within a period of 2
(iv) to issue a writ, order or direction in the nature of Mandamus commanding the respondents
to grant the benefit of maximum gratuity of Rs.10 lac to the petitioners as per Government Order
(v) to issue a writ, order or direction in the nature of Mandamus commanding the respondents
to pay arrears of salary & pensionary benefits calculated in terms of the Sixth Pay Commission
Recommendation, including enhanced gratuity of Rs.10 lac, along with payment of interest at the
prevailing Bank rates, within a period of 2 months.
(vi) to issue an ad-interim mandamus to the respondent authorities to pay the current pension
of the petitioners in terms of Sixth Pay Commission Recommendation.”
Writ Petition No.10355 of 2017 was filed by another set of employees of the Board for
challenging the order dated 05th May 2015 passed by the State Government and the
consequential order dated 13th May 2015 passed by the Board.
12. By the impugned judgment, the aforesaid two petitions were disposed of. While
disposing of the petitions, in paragraph 41, the following directions were issued :
“41. Accordingly, both the writ petitions are allowed and the impugned orders dated 05.05.2015
and 13.05.2015 contained in Annexure No.1 and 2 to the Writ Petition o.126345 (S/B) of 2017
are quashed to the extent they are contrary to the judgment passed by the Hon’ble Apex Court in
the case of State of U.P. vs. Preetam Singh and others : Civil Appeal No.6307 of 2010. A
mandamus is issued to the respondents to grant benefit of arrears of salary payable to the
employees of Parishad w.e.f. 1.1.2006 to 13.01.2010 and to fix their pension/ family pension
and also release gratuity in accordance with the provisions of U.P. Avas Evam Vikas
Parishad Regulations notified on 19th May, 2009, and in the light of the orders of the
Hon’ble Supreme Court in Civil Appeal No.6307 of 2010 from the date of their entitlement
alongwith interest @ 9% per annum within a period of two months from the date of
production of certified copy of this order, failing which the petitioners shall be entitled and
paid interest at the rate of 12% per annum.”
13. Now, we come to the order dated 10th February 2020 passed by this Court. A Bench
of two Hon’ble Judges of this Court prima facie found that the functions of the Board
contemplated under Section 15 of the 1965 Act were wide enough even to cover the act
of fixing service conditions of its employees. In paragraph 43, this Court framed three
questions for consideration of a larger Bench. Paragraph 43 of the said order reads thus:
“43. Due to the above reasons we are of the view that with regard to three aspects i.e. (1), (2) and
(3) as 42 noted above, the judgment in Preetam Singh’s case needs reconsideration. We
formulate following questions to be considered by a larger Bench:
(1) Whether the judgment of this Court inPreetam Singh’s case laying down that conditions
of service of officers and employees do not constitute the functions of the U.P. Avas Evam Vikas
Parishad lays down the correct law more so when the judgment does not refer to provisions of
Sections 8, 92, 94(2)(nn)of the 1965 Act ?
(2) Whether the view expressed in Preetam Singh’s judgment that functions of the U.P. Avas
Evam Vikas Parishad are only the specific functions enumerated in Section 15 of 1965 Act which
does not include the service conditions of employees of the Board lays down the correct law ?
Whereas the functions of the Board referred to in other provisions of Act, Rules and Regulations
as has been expressly provided in Section 15(1) by use of expression “subject to the provisions
of this Act and the Rules and Regulations” shall also be functions of the Board which induces
service conditions of officers and employees as per Section 95(1)(f) of the 1965 Act.
(3) Whether the State Government had nojurisdiction to issue directions regarding service
conditions of officers and employees of the U.P. Avas Evam Vikas Parishad under the provisions
of the 1965 Act and 1975 Act and all other enabling powers with the State Government?
14. Ms. Aishwarya Bhati, the learned Additional Solicitor General appearing for the
State Government urged that the statutory functions of the Board include the function of
fixing terms and conditions of the employment of its employees. She placed reliance on
Section 92 of the 1965 Act which confers a power on the State Government to issue
directions to the Board for carrying out the purposes of the 1965 Act. She urged that it is
the duty of the Board to comply with the directions issued by the State Government. It was
further submitted that apart from Section 2(1) of the 1975 Act, there was sufficient power
vesting in the State Government under Section 8 of the Section 1965 Act to control and
put restrictions on the powers of the Board to appoint officers and employees. The learned
ASG invited our attention to the notification dated 19th May 2009 by which the Board
applied the new pension scheme to the employees who retired on or after 1st January
1996. She pointed out that in the said notification, it is specifically directed that the orders
with respect to pension/family pension/gratuity issued by the State Government from time
to time shall also be applicable to the officers and employees of the Board. She pointed
out that the said notification was never challenged. She would, therefore, submit that the
directions of the State Government impugned by the private respondents cannot be
faulted. After inviting our attention to the interim order dated 7th September 2012 passed
by this Court, the learned ASG submitted that those who have unconditionally opted for
the old pension scheme prior to 7th September 2012 have no subsisting right to claim the
pension in terms of the new pension scheme. She submitted that the employees are not
entitled to salary as per the revised pay structure for the period between 1st January 2006
to 13th January 2010 as per the binding directions of the State Government. The learned
senior counsel representing the Board also made similar submissions.
15. The learned counsel appearing for the respondents in Civil Appeal Nos.6624 and
6625 of 2022 also made legal submissions. We may note here that while reserving the
judgment on 15th September 2022, we had detagged the said appeals. Nevertheless, we
are also considering the submissions made by the respondents in the detagged appeals
as regards the three questions of law that are required to be decided. The submission of
the learned counsel is that as several employees were facing financial hardships after
their retirement, they had no option but to give the undertakings to accept the old pension
scheme and not opt for the new pension scheme. Considering this situation, this Court by
an interim order passed in Preetam Singh’s case1 had directed that even if employees
have taken benefit of the old pension scheme by giving an undertaking, they will be entitled
to the benefit of the new pension scheme in terms of the notification dated 19th May 2009.
The learned counsel invited our attention to the subsequent order dated 5th May 2015
passed by the State Government by which the benefit of the new pension scheme was
denied to those who opted to join the employment of the Board on or after 1st April 2005.
His submission is that this direction is discriminatory which creates two classes of
pensioners without any rational basis. He relied upon a decision of this Court in the case
of D.S. Nakara & Ors. v. Union of India2 as well as another decision in the case of V.
Sukumaran v. State of Kerala & Anr.3. He would, therefore, submit that reconsideration
of the view taken in Preetam Singh’s case1 is not at all warranted.
16. Shri Nidhesh Gupta, the learned senior counsel stated that he represents only those
respondents who had never opted for the old pension scheme and had not received any
amount under the old scheme. He submitted that under clause (f) of sub-section (1) of
Section 95 of the 1965 Act, the Board has a power to make Regulations providing for
conditions of service of officers and servants of the Board. Inviting our attention to
sub-section (2) of Section 95 of the 1965 Act, Shri Gupta would submit that only when any
Regulation framed by the Board is repugnant to the Rules framed by the State in the
exercise of powers under Section 94, the Rules will prevail. He submitted that admittedly
the State Government has not exercised the Rule making power under Section 94. He
urged that under clause (nn) of sub-section (2) of Section 94, the State Government has
a power to frame Rules concerning any matter for which Regulations can be framed under
Section 95. He submitted that it is well settled that when an enactment requires that a
certain thing should be done in a certain way, the thing must be done in that way or not at
all. He relied upon various decisions in this behalf, viz., A.R. Antulay v. Ramdas Sriniwas
Nayak & Anr.4; Dhananjaya Reddy etc. v. State of Karnataka5; and Gujarat Urja Vikas
Nigam Ltd. v. Essar Power Ltd.6.
17. Inviting our attention to Section 2(1) of the 1975 Act, he submitted that the power
conferred by the said provision on the State Government to issue directions is a general
power. This power is confined to issuing directions on questions of policies. He submitted
that the said power can be exercised in relation to the discharge of functions of the Board.
He urged that Section 15 of Chapter III of the 1965 Act lays down the functions of the
Board. He pointed out that Chapter III requires the Board to frame various schemes. He
urged that none of the clauses (a) to (p) of Section 15 lays down that the appointment of
employees and fixing their service conditions is a function of the Board under the 1965
Act. He urged that in the exercise of power under Section 2(1) of the 1975 Act, directions
cannot be issued regarding the service conditions of officers and employees of the Board.
18. By referring to Section 7 of the 1965 Act, he submitted that sub-section (2) thereof
clearly provides that the conditions of service of the Housing Commissioner shall be such
as may be prescribed. Relying upon the definition of the word ‘prescribed’ in clause (n) of
Section 2, he submitted that the conditions of service of the Housing Commissioner have
to be prescribed by the State Government by exercising the Rule making power. However,
Section 8 which provides for the appointment of officers and servants of the Board does
not contain such a provision. He submitted that the special or general orders of the State
Government contemplated by sub-section (1) of Section 8 can be issued only regarding
the mode and manner of appointment of the officers and servants of the Board and the
same have nothing to do with service conditions. The power of the State Government to
issue general or special orders is only for the purpose of imposing control and restrictions
on the appointment of the officers and servants of the Board. Therefore, sub-section (1)
of Section 8 cannot be construed to mean that by issuing general or special orders, the
State Government can determine the conditions of service of the officers and servants of
the Board. He submitted that as two different expressions have been used in Sections 7
and 8 of the 1965 Act, different meanings will have to be assigned to the said different
expressions. On this issue, he relied upon a decision of this Court in the case of DLF
Qutab Enclave Complex Educational Charitable Trust v. State of Haryana7.
19. He urged that the power under sub-section (2) of Section 92 can be exercised by
the State Government by issuing directions that are necessary for carrying out the
purposes of the 1965 Act. He submitted that in any event, in the present case, statutory
Regulations have been framed by the Board dealing with the grant of pensionary benefits.
20. He submitted that the power to issue directions under Section 2(1) of the 1975 Act
is a general power and the power under Sections 8 and 92 of the 1965 Act is a specific or
special power. Relying upon a decision of this Court in the case of Commercial Tax
Officer, Rajasthan v. Binani Cements Ltd. & Anr.8, he urged that the specific provisions
under the 1965 Act will prevail over the general provision under Section 2(1) of the 1975
21. He relied upon a decision of this Court in the case of Harwindra Kumar v. Chief
Engineer, Karmik & Ors. 9 . He submitted that executive order cannot override the
exercise of power made by the Board by framing Regulations concerning the new Pension
Scheme. He submitted that if the submission of the State Government that by issuing
executive orders it can override the provisions of the Regulations framed under Section
95 of the 1965 Act is accepted, the entire scheme of Sections 94 and 95 of the 1965 Act
will be rendered completely redundant. Relying upon a decision of this Court in the case
of Institute of Chartered Accountants of India v. Price Waterhouse & Anr.10, he would
submit that such an interpretation cannot be accepted.
22. He pointed out that if the pension is not granted on the basis of revised pay scales,
the very purpose of the grant of pension will be defeated. He submitted that employees
cannot be divided into two classes – one of those who retired pre-1996 and others of who
retired post-1996. He submitted that there was no justification for the Bureau of Public
Enterprises for writing a letter dated 14th January 2010 conferring the benefit of the revised
pension not from 1st January 2006 but from 14th January 2010. He submitted that no
explanation has been offered either before the High Court or this Court for fixing the date
of 14th January 2010. He relied upon a decision of this Court in the case of State of
Rajasthan & Anr. v. Prem Raj11.
23. He pointed out that the benefit of the revised pension was given by the State
Government to the employees of U.P Power Corporation with effect from 1st January 2006.
To the employees of U.P Jal Nigam, the benefit of the revised pension was given only
from 12th April 2010. The employees of Jal Nigam filed a writ petition before the High Court
which was allowed by holding that the employees were entitled to get the benefit of the
revised pension from 1st January 2006. The said decision has become final as a Special
Leave Petition filed by the State Government against the said order has been dismissed
on 20th May 2022. He submitted that the Board has adequate resources to bear the burden
of payment of revised pension from 1st January 2006. His submission is that the law laid
down by this Court in the case of Preetam Singh’s case1 does not call for any
reconsideration at all.
24. The three questions framed under Order dated 10th February 2020 are
inter-connected. For deciding these three questions, we will have to decide the core issues
whether the functions of the Board are confined to those which are set out in Section 15
of the 1965 Act and whether the appointment of officers and employees of the Board and
the determination of their conditions of service constitute the functions of the Board.
Another question that will have to be addressed is as regards the power, if any, of the
State Government to issue directions to the Board concerning the determination of the
conditions of service of its officers and servants.
25. We have perused the provisions of the 1965 Act. Chapter II thereof has the heading,
“Establishment and conduct of business of the Board”. Chapter II consists of Sections 3
to 14. Section 3 provides for the constitution of the Board. Section 7 provides for the
appointment of a Housing Commissioner. Section 7 reads thus :
(1) There shall be a Housing Commissioner appointedby the State Government for the
purposes of this Act.
(2) The conditions of service of the HousingCommissioner shall be such as may be
prescribed. He shall be remunerated from the Board’s fund.
(3) The State Government may, if it is of opinion thatspecial circumstances so require, appoint
the Housing Commissioner to be the Adhyaksh in addition to his own duties.
(4) The State Government may also appoint theHousing Commissioner as an authority under
any other law for the time being in force.”
Section 8 deals with “Appointment of Officers and Servants”. Section 8 reads thus :
“8. Appointment of officers and servants.-(1) Subject to such control and restrictions as
may from time to time be imposed by the State
Government, by special or general orders, the Board may appoint such officers and
servants as it considers necessary for the efficient performance of its functions.
(2) the Board may, with the previous approval of the State Government appoint a servant of the
Central or the State Government or of a local authority on any of the posts under it on such terms
and conditions as may be agreed upon.”
As provided in sub-section (1) of Section 7, the Housing Commissioner has to be
appointed by the State Government. Subsection (2) of Section 7 provides that the
conditions of service of the Housing Commissioner must be prescribed by the Rules.
Rule-making power under Section 94 vests with the State Government. Clause (b) of
sub-section (2) of Section 94 empowers the State Government to frame Rules determining
the conditions of service of the Housing Commissioner. The obvious reason for conferring
the power to determine service conditions of the Housing Commissioner on the State
Government appears to be that the State Government is the appointing authority.
26. In contrast, sub-section (1) of Section 8 provides thatsubject to control and
restrictions imposed from time to time by the State Government by special or general
orders, the Board may appoint such officers and servants as it considers necessary for
the efficient performance of its functions. There is a marked distinction between the
language used by sub-section (2) of Section 7 and sub-section (1) of Section 8 though
both provisions deal with the power to appoint officers of the Board. Thus, two different
expressions or terminologies have been used in Sections 7 and 8. Therefore, the
legislature intended to convey different meanings. Sub-section (1) of Section 8 does not
provide that the State Government shall have the power to determine the conditions of
service of officers and employees of the Board. The power to control the appointment and
the power to put restrictions are distinct and different from the power to determine the
service conditions of the officers and servants of the Board. The control of the State
Government and the power to impose restrictions as provided in sub-section (1) of Section
8 will extend to the creation of posts of officers and servants of the Board. The control can
be exercised by directing the creation of different categories of posts. The control can be
also exercised by determining the number of posts of different categories. In this context,
Sections 94 and 95 of the 1965 Act are also relevant. Under sub-section (1) of Section 94,
the State Government retains the general Rule making power of framing Rules for carrying
out the purposes of the Act. Without prejudice to the generality of the power under
sub-section (1), subsection (2) of Section 95 lays down the topics and subjects on which
Rule-making power can be exercised. One of the specific powers conferred by clause (b)
of sub-section (2) of Section 94 on the State Government, as pointed out earlier, is of
framing Rules for laying down conditions of service of the Housing Commissioner. Clause
(nn) of sub-section (2) of Section 94 reads thus :
(2) In particular and without prejudice to the generality of the foregoing power, such rules may
(nn) any matter for which regulation may be made by the Board under Section 95;
Thus, clause (nn) of sub-section (2) of Section 94 confers power on the State Government
to frame Rules in respect of any matter for which regulations can be framed by the Board.
Section 95 which confers the powers on the Board to frame Regulations reads thus :
“95. Power to make regulations.-(1) The Board may, by notification in the Gazette, make
(e) the duties of officers and servants of the Board;
(f) the conditions of service of officers and servants of the Board;
(n) any other matter which is to be or may be provided for by regulations under this Act or the
Clause (f) of sub-section (1) of Section 95 specifically empowers the Board to frame
Regulations governing conditions of service of officers and servants of the Board. Under
clause (b) of sub-section (2) of Section 94, the State Government has a power to
determine the conditions of service of the Housing Commissioner. Thus, the Legislature
has specifically incorporated in Section 7 that the State Government shall have the power
to determine the conditions of service of the Housing Commissioner. However, such a
provision is conspicuously absent in Section 8 dealing with the appointment of servants
and officers of the Board. The reason is that the power to determine the service conditions
of the other officers and servants has been conferred on the Board which can be exercised
by making Regulations.
27. In view of sub-section (2) of Section 95 read with clause (nn) of sub-section (2) of
Section 94, Regulations, if any, framed by the Board for determining the conditions of
services of its officers and servants are always subject to the Rules which may be framed
by the State Government by exercising the power under clause (nn) of sub-section (1) of
Section 94. Whenever there is any inconsistency between the Regulations framed under
clause (f) of sub-section (1) of Section 95 and the Rules framed under clause (nn) of
subsection (1) of Section 94, the Rules will prevail and to that extent, the provisions of the
Regulations which are repugnant to the Rules shall be void. To put it differently, the power
to determine the conditions of service of the officers (except the Housing Commissioner)
and servants of the Board vests in the Board, and the said power can be exercised only
by framing Regulations under clause (f) of sub-section (1) of Section 95. So long as Rules
are not framed by the State Government under clause (nn) of subsection (1) of Section
95 for overriding the provisions of the Regulations framed by the Board for prescribing the
service conditions, the provisions of Regulations shall always govern the field. Except for
the exercise of the Rule making power under clause (nn) of sub-section (1) of Section 94,
there is no specific power conferred under the 1965 Act, or for that matter under the 1975
Act, on the State Government to nullify or to override the conditions of service of its officers
and servants determined by the Board by the Regulations framed in the exercise of
powers under clause (f) of sub-section (1) of Section 95.
28. Now coming to the issue of the functions of the Board, we may note that Chapter III
of the 1965 Act has the heading “Functions and Powers of the Board”. As noted earlier,
specific provisions regarding the appointment of the Housing Commissioner, officers and
servants of the Board find a place in Chapter II and not in Chapter III. As specifically
provided in clause (1) of Section 8, the Board is empowered to appoint such officers and
servants as it considers necessary for the efficient performance of its functions. This is
one factor that suggests that the appointment of officers and servants is not a function of
the Board but their appointments are required to be made for the efficient performance of
its functions.
29. Chapter III dealing with “Functions and Powers of the Board” comprises of Sections
15 to 49. Section 15 has the heading “Functions of the Board” which reads thus :
“15. Functions of the Board.-(1) Subject to the provisions of this Act and the rules and
regulations, the functions of the Board shall be-
(a) to frame and execute housing and improvement schemes and other projects;
(b) to plan and co-ordinate various housing activities in the State and to ensure expeditious
and efficient implementation of housing and improvement schemes in the State;
(c) to provide technical advice for and scrutinise various projects under housing and
improvement schemes sponsored or assisted by Central Government or the State Government;
(d) to assume management of such immovable properties belonging to the State Government
as may be transferred or entrusted to it for this purpose;
(e) to maintain, use, allot, lease, or otherwise transfer plots, buildings and other properties of
the Board or of the State Government placed under the control and management of the Board;
(f) to organise and run workshops and stores for the manufacture and stock-piling of building
(g) on such terms and conditions as may be agreed upon between the Board and the State
Government, to declare houses constructed by it in execution of any scheme to be houses subject
to the U.P. Industrial Housing Act, 1955 (U.P. Act No.XXIII of 1955);
(h) to regulate building operations;
(j) to provide roads, electricity, sanitation, watersupply and other civic amenities and essential
services in areas developed by it;
(k) to acquire movable and immovable properties for any of the purposes before mentioned;
(l) to raise loans from the market, to obtain grants and loans from the State Government, the
Central Government, local authorities and other public corporations, and to give grants and loans
to local authorities, other public corporations, housing co-operative societies and other persons
for any of the purposes before mentioned;
(m) to make investigation, examination or survey of any property or contribute towards the cost
of any such investigation, examination or survey made by any local authority or the State
(o) to fulfil any other obligation imposed by or under this Act or any other law for the time being
(p) to do all such other acts and things as may be necessary for the discharge of the functions
before mentioned.
(2) Subject to the provisions of this Act and the rules and regulations, Board may undertake,
where it deems necessary, any of the following functions, namely-
(a) to promote research for the purpose of expediting the construction of and reducing the cost
(b) to execute works in the State on behalf of public institutions local authorities and other
public corporations, and departments of the Central Government and the State Government;
(c) to supply and sell building materials;
(d) to co-ordinate, simplify and standardise the production of building materials and to
encourage and organise the prefabrication and mass production of structural components;
(e) with a view to facilitating the movement of the population in and around any city,
municipality, town area or notified area to establish, maintain and operate any transport service;
to construct, widen strengthen or otherwise improve roads and bridges and to give financial help
(f) to do all such other acts and things as may be necessary for the discharge of the functions
before mentioned.”
As the appointments of officers and servants of the Board are dealt with by Sections 7 and
8 in Chapter II, the same do not find a place in the functions of the Board set out either in
Section 15 or in any other Section in Chapter III. There are provisions incorporated in
Chapter III dealing with various schemes and the powers of the Board which can be
exercised for the implementing the schemes.
30. Chapter V of the 1965 Act provides for the Board of acquiring and disposing of land
for the purposes of the Act. Under Section 59, the Board is empowered to issue
debentures. Under Section 58(3), the Board is entitled to raise loans for the purposes of
the Act. Obviously, acquiring and selling the property, issuing debentures, and raising
loans cannot be the functions of the Board. These powers have been conferred by Chapter
V to enable the Board to effectively discharge its functions and to exercise its powers
specified in Chapter III. The nature of the functions of a statutory body like the Board will
always depend on the object of establishing such a body. The appointment of officers and
servants needs to be made for the efficient performance of the specific functions of the
Board. The exercise of power to appoint servants and officers of the Board and
determination of their service conditions cannot constitute the functions of the Board. The
powers under Chapter V and the power of appointing officers and servants under Sections
7 and 8 of Chapter II need to be exercised for ensuring proper discharge of the functions
of the Board as well as for the exercise of the powers set out in Chapter III. We are,
therefore, of the considered view that the appointment of officers and servants and
determination of their service conditions cannot constitute functions of the Board.
31. Section 92 which provides for Control of the State Government over the Board is a
part of Chapter X under the heading “External Control”. Section 92 reads thus :
“92. Control of the State Government over the Board and other local authorities.-(1) The
(a) submit to the State Government such reports and returns in such forms and at such
intervals as may be prescribed;
(b) furnish to the State Government such documents, returns, statements, estimates or other
information regarding any matter under the control of the Board as may be directed by the State
(2) The State Government may give the Board such directions as in its opinion are
necessary or expedient for carrying out the purposes of this Act, and it shall thereupon be
the duty of the Board to comply with such directions.
(3) Without prejudice to other provisions of this Act,and notwithstanding anything contained in
any other law for the time being in force, the State Government may give any local authority such
directions as in its opinion are necessary or expedient for enabling the Board to carry out the
purposes of this Act; and thereupon it shall be the duty of the local authority to comply with such
The power under sub-section (2) of section 92 is to be exercised for issuing directions for
carrying out the purposes of the 1965 Act. The issue is whether the State Government
can exercise the power under sub-section (2) of Section 92 to override statutory
Regulations framed by the Board in the exercise of powers under clause (f) of sub-section
(1) of Section 95. If the State Government desires to override or nullify such Regulations,
there is a specific provision under the said Act of 1965 which enables the State
Government to do so. On a conjoint reading of clause (nn) of subsection (1) of Section 94
and sub-section (2) of Section 95, the State Government has the power to frame Rules
determining the service conditions of the officers and servants of the Board and once the
Rules are framed by the State Government in this behalf, the provisions of the Regulations
framed by the Board will apply only to the extent to which they are not repugnant to the
Rules. Service conditions will necessarily include salary, perquisites, allowances,
retirement benefits such as pension, etc. The Regulations framed by the Board under
clause (f) of sub-section (2) of Section 95 have a force of law. On a plain reading of
subsection (2) of Section 92, by no stretch of the imagination, by issuing directions, the
State Government can nullify the statutory Regulations framed under Section 95. More
so, when the 1965 Act itself specifically enables the State Government to nullify the
Regulations by exercising the Rule making power. As the scheme of the 1965 Act
specifically provides that Regulations framed under Section 94 can be overridden by
framing Rules in accordance with clause (nn) of sub-section (1) of Section 94, the act of
overriding the Regulations must be done only by framing the Rules and not in any other
manner. This view is supported by a series of decisions of this Court taking a consistent
view that where an enactment requires to do a certain thing in a certain way, the thing
must be done in that way and in no other manner. There are several decisions taking that
view ending with the decision of this Court in the case of Gujarat Urja Vikas Nigam6.
However, the locus classicus on this point is the well-known decision of the Privy Council
in the case of Nazir Ahmed v. The King Emperor12. It was held by Privy Council that
“where a power is given to do certain things in a certain way, the things must be done in
that way and not at all. Other methods of performance are certainly forbidden”. The upshot
of the aforesaid discussion is that the State Government has no power to issue directions
under sub-section (2) of Section 92 to nullify or override the Regulations framed by the
Board in the exercise of powers under clause (f) of sub-section (1) of Section 95.
32. Another argument of the State Government is based on subsection (1) of Section
15 which opens with an expression “subject to the provisions of this Act and the rules and
regulations”. By use of the said expression, the exercise of the power to frame Regulations
for determining the conditions of service of officers and servants does not become a
function of the Board. The meaning of the opening part of sub-section (1) of Section 15 is
that the functions of the Board must be discharged subject to the constraints of the Rules
and Regulations framed under the 1965 Act.
33. Next limb of the argument of the State Government is based on Section 2(1) of 1975
"2. (1) Power to issue directions to statutory bodies.-Every statutory body (by whatever name
called), established or constituted under any Uttar Pradesh Act, excepting Universities governed
by the Uttar Pradesh State Universities Act, 1973, as reenacted and amended by the Uttar
Pradesh University (re-enactment and Amendment Act), 1974, shall, in the discharge of its
functions, be guided by such directions on questions of policies, as may be given to it by
the State Government, notwithstanding that no such power has expressly been conferred
on the State Government under the law establishing or constituting such statutory body."
On a plain reading of the aforesaid provision, the power to issue directions vested in the
State Government can be exercised only for issuing directions confined to questions of
policies. The directions can be issued confined to policies concerning the discharge of the
functions of the Statutory Body. The directions issued by the State Government on the
questions of policies guide every statutory body in the discharge of its functions. For the
reasons we have already recorded while dealing with sub-section (2) of Section 92 of the
1965 Act, even the power under Section 2(1) of the 1975 Act cannot be invoked to nullify
the statutory Regulations framed by the Board which have a force of law. That can be
done only by exercising the Rule making power under clause (nn) of sub-section (1) of
Section 94 of the 1965 Act. The power under Section 2(1) of the 1975 Act is the general
power that must yield to the special powers conferred by the 1965 Act. The power under
sub-section (1) of Section 2 is different and distinct from the power to frame statutory
34. The aforesaid discussion is sufficient to answer the three questions framed. Subject
to what we have held above, we concur with the view taken by this Court in Preetam
Singh’s case1. Our answers to the three questions are as under :
Q.1 Whether the judgment of this Court in Preetam Singh’s case laying down that
conditions of service of officers and employees do not constitute the functions of the U.P.
Avas Evam Vikas Parishad lays down the correct law more so when the judgment does
not refer to provisions of Sections 8, 92, 94(2)(nn)of the 1965 Act ?
A: The decision lays down the correct proposition of law. Q.2 Whether the view expressed
in Preetam Singh’s judgment that functions of the U.P. Avas Evam Vikas Parishad are
only the specific functions enumerated in Section 15 of 1965 Act which does not include
the service conditions of employees of the Board lays down the correct law ? Whereas
the functions of the Board referred to in other provisions of Act, Rules and Regulations as
has been expressly provided in Section 15(1) by use of the expression “subject to the
provisions of this Act and the Rules and Regulations” shall also be functions of the Board
which induces service conditions of officers and employees as per Section 95(1)(f) of the
A: The first part of the question is answered in the affirmative. The functions of the Board
are as specified in Section 15 and other relevant sections in Chapter III of the 1965 Act.
The second part is answered in the negative.
Q.3 Whether the State Government had no jurisdiction to issue directions regarding
service conditions of officers and employees of the U.P. Avas Evam Vikas Parishad under
the provisions of the 1965 Act and 1975 Act and all other enabling powers with the State
A: Answered in affirmative. But the State Government can always frame Rules in the
exercise of powers under clause (nn) of sub-section (1) of Section 94 of the 1965 Act for
determining the conditions of service of the servants and officers of the Board. Whenever
there is any inconsistency between Regulations framed under clause (f) of sub-section (1)
of Section 95 and the Rules framed under clause (nn) of sub-section (1) of Section 94, the
Rules will prevail and to that extent, the provisions of the Regulations which are repugnant
to the Rules shall be void.
35. After having decided the questions, we are of the view that Civil Appeals can be
decided in terms of our findings instead of sending them back to the Bench of two Hon’ble
36. Now, we proceed to deal with the ancillary issues. Now coming to the new pension
scheme, an Office Order was issued on 16th January 2004 by the Board recording that a
proposal for framing a scheme of pension was under consideration. The Office Order
dated 16th January 2004 provided that those employees who were not interested in opting
for the new pension scheme must file an affidavit on stamp paper of Rs.10/-. In the said
affidavit, it must be clearly and specifically asserted that the beneficiary was not interested
in the new pension scheme and the entire amount deposited by him as his share along
with Board’s share should be paid to the beneficiary. It was also provided that the affidavit
must state that in the future, the beneficiary will not claim pensionary benefits before any
authority or the Court. According to the stand taken by the State Government, total of 582
employees/officers opted for the old scheme by filing affidavits/undertakings. The State
Government has placed on record a copy of the affidavit of respondent no.1 – Virendra
Kumar in one of the appeals. It is not disputed that all the affidavits of the employees who
decided not to opt for the new pension scheme are in the same format. In the affidavit, it
was incorporated that the employee was not interested at all in the pension scheme and
he was interested in taking payments under the old scheme. It is specifically stated that
he will not make any claim in respect of the new pension scheme.
37. After the State Government accorded its approval, on 05th November 1997 the
Board passed a Resolution approving the new pension Scheme. The High Court while
allowing the petitions filed by Preetam Singh and others, directed the Board to implement
the new pension scheme in terms of its decision dated 05th November 1997. High Court
allowed the petition on 16th January 2009. For giving effect to the decision, on 19th May
2009, the Board issued a notification recording that in the exercise of the powers under
clauses (f) and (n) of sub-section (1) of Section 95 of the 1965 Act, it has decided that the
pension scheme and gratuity admissible to the officers and servants of the State
Government shall be admissible to the employees of the Board. The relevant part of the
Now therefore, the U.P. Avas Evam Vikas Parishad, in exercise of the power under clause (f)(i)
& (n) of sub-section (1) of Section 95 of U.P. Avas Evam Vikas Parishad Adhiniyam, 1965 (U.P.
Act 1 of 1966) has decided that the Pension/Family Pension and Gratuity admissible to the officers
and employees of State Government, which is governed by the following rules, schemes and
Government orders shall also be admissible (excluding Pension commutation) to the officer and
employees of the U.P. Avas Evam Vikas Parishad :
5. All orders of finance department of U.P. Government as related to pension / family
6. Newly defined Contributory Pension rules According to notification no.Sa-3-379/
Das-2005-301(9)/2003, dated March 28, 2005 applicable to officers and employees of State
Govt., who joined services on April 01, 2005 on onwards do
The orders with respect to the Pension/Family Pension/Gratuity issued time to time by the
State Govt. shall also be applicable to the officers and employees of U.P. Avas Evam Vikas
It has also been decided by the Parishad that General Provident Funds Rules, 1985, shall be
applicable to the officer and employees of U.P. Avas Evam Vikas Parishad instead of Contributory
In GPF Rules and Govt. Rules/Orders issued in this regard, ‘Govt.’ means the ‘U.P. Avas Evam
Vikas Parishad’, ‘Accountant General’ means ‘finance Controller of U.P. Avas Evam Vikas
Parishad’ & ‘Head of Department’ means ‘Housing Commissioner’.
The State Government shall not provide any financial assistance for the implementation of the
Contents of the notification shall come into force w.e.f. January 1, 1996 and such officers
and employees of Avas Evam Vikas Parishad who have retired on or after the said date
shall be benefited with the said decision.
Newly defined Contributory Pension Rules notified by the State Government shall be
applicable to those employees who have joined Parishad services on April 01, 2005 or
Thus, the new pension scheme was retrospectively brought into force from 1st January
1996 and was made applicable to the employees and officers of the Board who retired on
or after that date. It is also recorded therein that the newly defined Contributory Pension
Rules notified by the State Government shall be applicable to those employees of the
Board who have joined the employment from 1st April 2005 onwards. Thus, the
applicability of the new pension scheme was confined to the officers and employees who
retired on or after 1st January 1996. The officers and employees appointed on or after 1st
April 2005 were excluded from the applicability of the new pension scheme. We must note
here that the notification dated 19th May 2009 has become final and in none of the petitions
which are the subject matter of these appeals, the same was challenged. In fact, in Writ
Petition No.10355 of 2017, there was a prayer to issue a mandamus to implement the
notification. Moreover, in paragraph 21 of the decision of this Court in Preetam Singh’s
case1, this Court issued a mandate to act upon the said notification. The notification dated
19th May 2009 specifically states that the orders with respect to the pension/ family
pension/ gratuity issued from time to time by the State Government shall be applicable to
the officers and servants of the Board. Thus, only those employees of the Board who have
retired on or after 1st January 2006 will be entitled to the benefit of the new pension scheme
and those who are appointed on or after 1st April 2005 will be governed by another set of
Rules as mentioned in the notification dated 19th May 2009.
38. In the Special Leave Petition filed by the State Government against the judgment of
the Allahabad High Court in the case of Preetam Singh and others, an interim order was
passed by this Court on 7th August 2012 which had the effect of staying the judgment of
the High Court and the notification dated 19th May 2009. The further interim order dated
7th September 2012 recorded that if the employees of the Board, who have retired from
service, claim Contributory Provident Fund and other retiral benefits (as per the old
scheme), the Board shall pass appropriate orders granting the benefit under the old
scheme. However, it was clarified that the said interim order will not come in the way of
the respondents before this Court agitating their claim and supporting the reliefs granted
by the Allahabad High Court. Paragraph 21 of the judgment records that by the interim
order, the notification dated 19th May 2009 was stayed, and therefore, no one could get
pension under the new scheme. Therefore, the interim order was passed which enabled
the employees who had not received benefits either under the old scheme or the new
pension scheme, to take benefits under the old scheme. This interim order was made as
no one could get the benefit of the old scheme as a result of the stay granted to the
notification dated 19th May 2009. The interim order dated 7th September was thus
applicable only to those employees who had not taken benefits under the old scheme till
7th September 2012. Obviously, those officers and employees of the Board who opted for
the old scheme by filing affidavits in terms of the Office Order dated 16th January 2004
and received the benefits under the old scheme before the interim order dated 07th
September 2012 was passed, are disentitled to claim pension under the new pension
scheme. Those officers and employees of the Board who opted to take benefits under the
old scheme after 07th September 2012 will be entitled to benefit of the direction issued by
this Court in paragraph 21 of the decision in Preetam Singh’s case1 regarding the
payment of pension under the new pension scheme and the payment of interest on the
differential amount.
39. The State Government issued two Office Memoranda on 08th December 2008. The
first was regarding the revision of pension/ gratuity/ family pension and commutation with
effect from 1st January 2006 on the basis of recommendations of the U.P. Pay Committee,
2008. The said order specifically recorded that it will not apply to local bodies and public
enterprises. The second Office Memorandum dated 08th December 2008 was issued for
applying revision of pension and family pension in respect of the employees who have
retired prior to 1st January 2006. Obviously, the second Office Memorandum is not relevant
as the new pension scheme of the Board was made applicable to those who retired on or
after 1st January 2006 as provided in the notification dated 19th May 2009. The first Office
Memorandum dated 08th December 2008 which excluded the officers and employees of
the Board was challenged belatedly for the first time in 2016 in Writ Petition No.126445 of
2016. We may note here that the Board’s notification dated 19th May 2009 was issued in
the exercise of Regulation making power under clause (f) of sub-section (1) of Section 95
of the 1965 Act which provided that orders issued by the State Government from time to
time with respect to pension/ family pension/ gratuity shall be applicable to the officers and
employees of the Board. No part of the regulations framed by the Board on 19th May 2009
was ever challenged. Therefore, the officers and employees of the Board who were the
beneficiaries under the notification dated 19th May 2009 were bound by the first
Memorandum dated 08th December 2008 and the orders passed from time to time by the
State Government with regard to pension and family pension. Moreover, revised pension
was granted to the State Government employees as the recommendations of U.P Pay
Committee, 2008 were made applicable to them. The said recommendations were applied
to the employees of the Board on 14th January 2010. We may note here that the Allahabad
High Court, by the impugned judgment, has not set aside or modified the Office
Memorandum dated 08th December 2008.
40. On 16th October 2009, the State Government issued an order making applicable
revised pay structure in terms of the report of the 7th U.P. Pay Committee, 2008 to the
public enterprises and corporations subject to the terms and conditions incorporated
therein. The Board, by a letter dated 30th November 2009, informed the State Government
of its decision to apply the revised pay structure. It was sought to be argued by some of
the respondents that the order dated 14th January 2010 relates to pension. In fact, it only
deals with the applicability of the revised pay structure to the employees and officers of
the Board. By the order dated 14th January 2010, the State Government communicated
its decision to allow the Board to apply the revised pay structure on a notional basis with
effect from 1st January 2006 in the pay band and grade pay in the revised pay structure
as per the table enclosed to the Government Order dated 16th October 2009. The said
order recorded that the benefit of pay structure shall be granted with immediate effect to
the officers and employees of the Board by calculating the benefit on a notional basis with
effect from 1st January 2006. The Office Order was issued by the Board on 23rd January
2010 for implementation of the aforesaid order dated 14th January 2010. The meaning of
the order dated 16th January 2010 was that the actual benefit of the revised pay structure
will be available immediately from that date by calculating the pay on a notional basis in
terms of the revised pay structure with effect from 1st January 2006. In other words, the
order dated 14th January 2010 made it clear that the officers and employees of the Board
will not be entitled to revised pay from 1st January 2006 till 14th January 2010 and that they
will get the benefit of revised pay only from 14th January 2010. But, while calculating the
revised pay with effect from 14th January 2010, the benefit of the revised pay structure
was to be notionally provided from 1st January 2006. Thus, the pay fixation as of 14th
January 2010 must be made by notionally granting the benefit of the new pay structure
with effect from 1st January 2006. The communication dated 15th January 2011 of the
State Government addressed to the Housing Commissioner of the Board records that the
officers and employees of the Board will not be entitled to arrears of revised pay for the
period from 1st January 2006 to 13th January 2010. None of these orders of 16th October
2009, 14th January 2010, and 15th January 2011 were concerning pension. These orders
deal only with the grant of a revised pay structure. But, the computation of pension has to
be made on the basis of the applicable pay structure. Hence, those who retired on or after
1st January 2006 and those who were entitled to benefit of the new pension scheme under
the notification dated 19th May 2009 will be benefitted from the revised pay structure to
the extent that their pension will have to be calculated on the basis of revision of pay
structure on notional basis from 1st January 2006.
41. On 05th May 2015, the State Government issued another order regarding
pensionary benefits to the officers and employees of the Board in terms of which Office
Order dated 13th May 2015 was issued. The gist of the said order dated 05th May 2015 is
(i) Such staff of U.P. Avas and Vikas Parishad whose recruitment was done on or
before 31 March 2005 and who have not retired till date, will be entitled to pension;
(ii) Such staff of U.P. Avas and Vikas Parishad who had retired and had taken all the
benefits under the C.P.F. Scheme after getting retired, will not be entitled to pension;
(iii) Such staff of U.P. State Avas and Vikas Parishad whose recruitment was done on
or after 1st April 2005 will not be entitled get the pension; and
(iv) In the light of the order of this Court in Preetam Singh’s case, the 9% interest is not
payable to any retired staff in C.P.F. Scheme. In future, if the question of paying interest
to any staff member arises, then the Board will bear the said expense by itself and no
claim can be made from the government.
The directions in the above terms were incorporated in the consequential order issued by
the Board on 13th May 2015. Notification dated 19th May 2009 issued by the Board clearly
provides that all the officers and employees who retired on or after 1st January 2006 will
be entitled to benefit of the new pension scheme but those who were employed on or after
1st April 2005 will be entitled to benefits under the newly defined Contributory Pension
Rules of the State Government. To that extent, clause (i) of the Government Order dated
5th May 2015 will require modification. Even clause (ii) will require clarification in terms of
this Judgment. Those officers and employees who have already taken benefit of the old
scheme before 07th September 2012 by giving undertakings will not get the benefit of the
new pension scheme but those who have taken the benefit of the old scheme after the
date of the interim order dated 7th September 2012 will be entitled to take benefit of the
new pension scheme. Clause (iii) of the order means that in view of the notification dated
19th May 2009, those who are appointed on or after 1st April 2005 will not get the benefit
of the new pension scheme under the said notification. As regards clause (iv), interest will
be payable in terms of the decision of this Court in Preetam Singh’s case1, only to those
employees and officers who had not taken benefit of the old scheme before the interim
order dated 07th September 2012 was passed by this Court. Interest in terms of the
decision of this Court will be payable on differential amounts, to those who have taken
benefits under the old scheme after 07th September 2012. To the above extent, the
directions of this Court issued in Preetam Singh’s case1 will have to be clarified.
42. Now, the other issue which survives is whether the officersand employees are
entitled to arrears of pay as per the revised pay structure for the period between 1st
January 2006 to 13th January 2010. The impugned judgment proceeds on the footing that
the order of the State Government directing that the officers and employees of the Board
will get the benefit of the new pay structure notionally from 1st January 2006 and actually
from 14th January 2010 is issued in the exercise of power under Section 2(1) of 1975 Act
and Section 92(2) of the 1965 Act. Therefore, the High Court held that the State
Government could not have issued the said direction regarding the determination of
conditions of service as the determination of the conditions of service was not a function
of the Board.
43. As far as the applicability of the pay structure to the employees and officers of the
Board is concerned, there is no material placed on record to show that the Regulation
making power under Section 95 was at all exercised by the Board regarding applying
revised pay structure applicable to the State Government employees to its own
employees. All that the Board did was to implement the order of the State Government
dated 14th January 2010 by granting a revised pay structure to its employees. The said
order is based on the order of the State Government issued on 16th October 2009 by which
a decision was taken to apply the revised pay structure applicable to the State
Government employees to the employees of public sector enterprises on the terms and
conditions incorporated therein. As noted earlier, by exercising the Rule making power
under clause (nn) of sub-section 2 of Section 94 of the 1965 Act, the State Government
could have always determined the pay scales of the officers and employees of the Board.
If it is held that the State Government had no power to issue the orders dated 16th October
2009 and 14th January 2010, the employees of the Board will not get the benefit of the
revised pay structure made applicable to the Government employees as the Board has
not framed the Regulations under clause (f) of sub-section (1) of Section 95 of the 1965
Act providing for the grant of revised pay structure to the employees. Surprisingly, in
paragraph 22 of the impugned judgment, the High Court has held that the orders dated
16th October 2009 and 14th January 2010 would have no applicability in the matter of laying
down the conditions of service of the employees of the Board. If this finding is upheld, the
employees of the Board will be completely deprived of the benefit of the revised pay
structure as there is no Regulation made by the Board operating in the field. Hence, the
employees of the Board will be entitled to the revised pay structure in terms of the said
orders as clarified by the further order dated 15th September 2011.
44. The grant of arrears from 1st January 2006 till 14th January 2010 will involve huge
financial implications for the Board. Financial constraint is a valid ground for denying
arrears as per the revised pay structure. The decision to provide the benefit of a higher
pay structure to the officers and employees of the Board was taken by the State
Government subject to the condition of not paying arrears for the period between 1st
January 2006 and 14th January 2010. Therefore, we cannot approve the direction issued
by the High Court under the impugned judgment to pay arrears of wages as per the new
pay structure for the period from 1st January 2006 to 14th January 2010.
45. Hence, our conclusions are as under :
(i) We uphold the decision of this Court in Preetam Singh’s case1 with a modification
that the State Government can always exercise the powers under clause (nn) of
sub-section (1) Section 94 of the 1965 Act for determining the conditions of service of the
officers (other than the Housing Commissioner) and employees of the Board. If such
power is exercised, those provisions of the Regulations framed under clause (f) of
sub-section (1) of Section 95 which are repugnant to the Rules, shall be void;
(ii) All the officers and employees of the Board who have not received the benefit of
the old scheme till 07th September 2012 and have retired on or after 1st January 2006 shall
be entitled to benefit of the new pension scheme as per the notification dated 19th May
2009 issued by the Board provided they are otherwise eligible. However, the officers and
employees appointed on or after 1st April 2005 will be governed by the newly defined
Contributory Pension Rules notified by the State Government;
(iii) Those officers and employees of the Board who have retired on or after 1st January
2006 and who have not received benefits under the old scheme till date shall be entitled
to interest as directed by this Court in paragraph 21 of the decision in Preetam Singh’s
case1. Even those officers and employees who are entitled to benefit of the new pension
scheme in terms of the notification dated 19th May 2009 and who have taken benefits
under the old scheme pursuant to the interim order dated 07th September 2012, will be
entitled to interest on differential amounts, as directed in terms of paragraph 21 of the
decision of this Court in Preetam Singh’s case1;
(iv) Those officers and employees of the Board who have accepted the benefit under
the old scheme before 7th September 2012 after giving an undertaking in terms of the
Office Order dated 16th January 2004 shall not be entitled to the benefit of the new pension
scheme made applicable as per the notification dated 19th May 2009;
(v) While calculating the pension amount payable to those who are entitled to the new
pension scheme in terms of the notification dated 19th May 2009, the benefit of notional
pay fixation in terms of the revised pay structure with effect from 1st January 2006 shall be
(vi) All the officers and employees of the Board who are entitled to benefit of the revised
pay structure in terms of the Government Order dated 14th January 2010 shall be provided
the said benefit within a period of three months from today, if not provided earlier. While
extending the said benefit, their pay shall be notionally determined as per the revised pay
structure with effect from 1st January 2006. However, they shall not be entitled to arrears
of salary as per the revised pay structure from 1st January 2006 till 14th January 2010.
However, in the cases of the employees and officers who have already received the
arrears, no recovery proceedings shall be initiated against them.
46. The impugned judgment and order stands modified in terms of the above
conclusions. The civil appeals are disposed of accordingly with no order as to costs.
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The Supreme Court has reiterated and held that "where an enactment requires to do a certain thing in a certain way, the thing must be done in that way and in no other manner" in the judgment of State of U.P. & Ors. vs. Virendra Kumar & Ors.
A bench of Justices Sanjay Kishan Kaul, Abhay S. Oka and Vikram Nath have delivered the judgment which has been authored by Justice Abhay S. Oka.
The brief facts of the case were that under Section 3 of the Uttar Pradesh Avas Evam Vikas Parishad Adhiniyam, 1965 (for short 'the 1965 Act'), Uttar Pradesh Avas Evam Vikas Parishad (for short 'the Board') was established. The basic object of the establishment of the Board was framing and executing housing and improvement schemes in the State of Uttar Pradesh. The larger issue that was up for consideration before the bench through a reference made by a division bench of the Supreme Court in State of U.P. vs. Preetam Singh & Ors. 2014 (15) SCC 774 was whether the act of determining service conditions of the employees and officers of the Board is one of the statutory functions of the Board.
First, let's have a look at the three referral questions.
THREE REFERRAL QUESTIONS
The three questions up for consideration before the three judge bench were as follows:
(1) Whether the judgment of this Court in State if U.P. vs. Preetam Singh & Ors. 2014 (15) SCC 774 laying down that conditions of service of officers and employees do not constitute the functions of the U.P. Avas Evam Vikas Parishad lays down the correct law more so when the judgment does not refer to provisions of Sections 8, 92, 94(2)(nn)of the 1965 Act ?
(2) Whether the view expressed in Preetam Singh's judgment that functions of the U.P. Avas Evam Vikas Parishad are only the specific functions enumerated in Section 15 of 1965 Act which does not include the service conditions of employees of the Board lays down the correct law ? Whereas the functions of the Board referred to in other provisions of Act, Rules and Regulations as has been expressly provided in Section 15(1) by use of expression "subject to the provisions of this Act and the Rules and Regulations" shall also be functions of the Board which induces service conditions of officers and employees as per Section 95(1)(f) of the 1965 Act.
(3) Whether the State Government had no jurisdiction to issue directions regarding service conditions of officers and employees of the U.P. Avas Evam Vikas Parishad under the provisions of the 1965 Act and 1975 Act and all other enabling powers with the State Government?
The court set out to answer the above questions by engaging itself in a discussion on three key aspects.
POWER TO DETERMINE THE CONDITIONS OF SERVICE OF THE OFFICERS AND SERVANTS OF THE BOARD
The judgment starts by first laying out the bare provisions from the legislation. It states that the statute nowhere grants the state government the explicit power to determine conditions of service of the officers and servants. It clearly distinguishes between the power of the state government to control the recruitment process vis-a-vis the power of the Board to determine the conditions of service of the officers and the servants.
It says, "26…Subsection (1) of Section 8 does not provide that the State Government shall have the power to determine the conditions of service of officers and employees of the Board. The power to control the appointment and the power to put restrictions are distinct and different from the power to determine the service conditions of the officers and servants of the Board. The control of the State Government and the power to impose restrictions as provided in subsection (1) of Section 8 will extend to the creation of posts of officers and servants of the Board. The control can be exercised by directing the creation of different categories of posts. The control can be also exercised by determining the number of posts of different categories.
However, the court then points to a provision within the statute that grants the State government the power to make Rules. In this context it points to Section 94(2)(nn) from the 1965 Act which reads as follows:
Clause (nn) of subsection (2) of Section 94 reads thus :
"94. Power to make Rules. (1) ... ... ... ...
(2) In particular and without prejudice to the generality of the foregoing power, such rules may provide for
(nn) any matter for which regulation may be made by the Board under Section 95;"
The above clause (nn) of subsection (2) of Section 94 clearly confers power on the State Government to frame Rules in respect of any matter for which regulations can be framed by the Board.
On the other hand, the court says, "Clause (f) of subsection (1) of Section 95 specifically empowers the Board to frame Regulations governing conditions of service of officers and servants of the Board. The reason is that the power to determine the service conditions of the other officers and servants has been conferred on the Board which can be exercised by making Regulations."
After a conjoint reading of the above provision, the court concludes as follows:
"27. In view of subsection (2) of Section 95 read with clause (nn) of subsection (2) of Section 94, Regulations, if any, framed by the Board for determining the conditions of services of its officers and servants are always subject to the Rules which may be framed by the State Government by exercising the power under clause (nn) of subsection (1) of Section 94. Whenever there is any inconsistency between the Regulations framed under clause (f) of subsection (1) of Section 95 and the Rules framed under clause (nn) of sub section (1) of Section 94, the Rules will prevail and to that extent, the provisions of the Regulations which are repugnant to the Rules shall be void. To put it differently, the power to determine the conditions of service of the officers (except the Housing Commissioner) and servants of the Board vests in the Board, and the said power can be exercised only by framing Regulations under clause (f) of sub section (1) of Section 95. So long as Rules are not framed by the State Government under clause (nn) of sub section (1) of Section 95 for overriding the provisions of the Regulations framed by the Board for prescribing the service conditions, the provisions of Regulations shall always govern the field. Except for the exercise of the Rule making power under clause (nn) of subsection (1) of Section 94, there is no specific power conferred under the 1965 Act, or for that matter under the 1975 Act, on the State Government to nullify or to override the conditions of service of its officers and servants determined by the Board by the Regulations framed in the exercise of powers under clause (f) of subsection (1) of Section 95."
FUNCTIONS OF THE BOARD
On the question of the function of the board, the court concluded as follows:
"30…The nature of the functions of a statutory body like the Board will always depend on the object of establishing such a body. The appointment of officers and servants needs to be made for the efficient performance of the specific functions of the Board. The exercise of power to appoint servants and officers of the Board and determination of their service conditions cannot constitute the functions of the Board. The powers under Chapter V and the power of appointing officers and servants under Sections 7 and 8 of Chapter II need to be exercised for ensuring proper discharge of the functions of the Board as well as for the exercise of the powers set out in Chapter III. We are, therefore, of the considered view that the appointment of officers and servants and determination of their service conditions cannot constitute functions of the Board."
POWER OF THE STATE GOVERNMENT TO ISSUE DIRECTIONS TO THE BOARD REGARDING THE DETERMINATION OF THE SERVICE CONDITIONS OF THE BOARD
The issue for consideration before the court was whether the State Government can exercise its power to override statutory Regulations framed by the Board. The court concluded as follows:
As the scheme of the 1965 Act specifically provides that Regulations framed under Section 94 can be overridden by framing Rules in accordance with clause (nn) of subsection (1) of Section 94, the act of overriding the Regulations must be done only by framing the Rules and not in any other manner. This view is supported by a series of decisions of this Court taking a consistent view that where an enactment requires to do a certain thing in a certain way, the thing must be done in that way and in no other manner. There are several decisions taking that view ending with the decision of this Court in the case of Gujarat Urja Vikas Nigam. However, the locus classicus on this point is the well known decision of the Privy Council in the case of Nazir Ahmed v. The King Emperor. The upshot of the aforesaid discussion is that the State Government has no power to issue directions under subsection (2) of Section 92 to nullify or override the Regulations framed by the Board in the exercise of powers under clause (f) of subsection (1) of Section 95.
At the end, the court answered the three questions in the following manner:
(1) The decision lays down the correct proposition of law.
(2) The first part of the question is answered in the affirmative. The functions of the Board are as specified in Section 15 and other relevant sections in Chapter III of the 1965 Act. The second part is answered in the negative.
(3) Answered in affirmative. But the State Government can always frame Rules in the exercise of powers under clause (nn) of sub section (1) of Section 94 of the 1965 Act for determining the conditions of service of the servants and officers of the Board. Whenever there is any inconsistency between Regulations framed under clause (f) of subsection (1) of Section 95 and the Rules framed under clause (nn) of subsection (1) of Section 94, the Rules will prevail and to that extent, the provisions of the Regulations which are repugnant to the Rules shall be void.
Case Title: State of U.P. & Ors. vs. Virendra Kumar & Ors. CIVIL APPEAL NOS.66226623 OF 2022
For Appellant(s) Ms. Aishwarya Bhati, Ld. ASG Mr. V.K. Shukla, Sr. Adv. Ms. Nithin Pavuluri, Adv. Ms. B.L.N. Shivani, Adv. Mr. Rajeev Kumar Dubey, Adv. Mr. Kamlendra Mishra, AOR Mr. Vishwajit Singh, Sr. Adv. Mr. Abhishek Kumar Singh, AOR Ms. Pallavi Baghel, Adv. Ms. Anamika Yadav, Adv. Mr. Pankaj Singh, Adv.
For Respondent(s) Mr. Nidhesh Gupta, Sr. Adv. Mr. Nikhil Majithia, AOR Ms. Japneet Kaur, Adv. Ms. Vriti Gujral, Adv. Mr. P. K. Jain, AOR Mr. Saurabh Jain, Adv. Mr. P.K. Goswami, Adv. Mr. S.P. Singh Rathore, Adv. Mr. Vishwajit Singh, Sr. Adv. Mrs. Veera Kaul Singh, Adv. Mr. Pankaj Singh, Adv. Mr. Abhishek Kumar Singh, AOR Ms. Ridhima Singh, Adv. 2 Mr. Vignesh Singh, Adv. Mr. Jitendra Mohan Sharma, Sr. Adv. Mr. Ajit Sharma, Adv. Mr. Amrit Pradhan, Adv. Mr. Sandeep Singh, Adv. Mr. Sanpreet Singh Ajmani, Adv.
Uttar Pradesh Avas Evam Vikas Parishad Adhiniyam, 1965 - UP Housing and Development Board's function does not include fixing its employees' service conditions- Judgment in State of U.P. vs. Preetam Singh & Ors. 2014 (15) SCC 774 approved.
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ivil Appeal No. 3544 of 1989.
From the Judgment and Order No. 131/89 D dated 9.5.
1989 of the Central Excises & Gold (Control) Appellate Tribunal, New Delhi in Appeal No. E/1176/88 D. Rajiv Dutta, Nimish Kothare and K.K. Patel for the Appel lant.
The Judgment of the Court was delivered by SABYASACHI MUKHARJI, J.
This is an appeal under section 35L of the Central Excise & Salt Act, 1944 (hereinafter referred to as 'the Act ').
The appellant is a manufacturer of various types of food products known as Sapaghetti, Macaroni, Vermicelli, etc., falling under Heading No. 1902.10 of the Central Excise Tariff Act.
The appellant filed classification list effec tive from 1st March, 1987 claiming that their pre budget stocks of non excisable goods, namely, various types of food products declared in the classification list as aforesaid were entitled to duty free clearance being pre budget stocks.
The Assistant Collector of Central Excise, however, held that the question of clearing pre budget stocks duty free did not arise because the products in question were excisable though exempted from the duty.
There was an appeal from the said order of the Assistant Collector before the Collector of Central Excise (Appeals), Bombay.
He dismissed the appeal.
The appellant went up in appeal before the Tribunal.
It was contended before the Tribunal on behalf of the appellant that the goods in question were not leviable to duty under the aforesaid head until 28th February, 1987 and the said goods had been made dutiable only by the 313 Finance Bill, 1987 88 with effect from 1st March, 1987.
It was submitted further that on 27th February, 1987, the appellant had in their factory a stock of the said product which were fully manufactured, packed and ready for sale and the inventory of the said stock was prepared by the Supdt.
of Central Excise on 1st March, 1987.
Reliance was placed on several decisions of the different High Courts, namely, decision of the Madhya Pradesh High Court in Kirloskar Brothers Ltd. vs Union of India, ; Union of India vs Kirloskar Brothers Ltd., , decision of the Bombay High Court in Synthetic Chemicals Pvt.
Ltd. vs
S.C. Coutinho, , decision of the Bombay High Court in New Chemicals Ltd. vs Union of India, decision of the Madras High Court in Sundaram Textiles Ltd. vs Asstt.
Collector of Central Excise, , decision of the Allahabad High Court in Union of India vs Delhi Cloth & General Mills, On the other hand, the revenue contended that the goods forming the pre budget stocks were very much excisable goods and that for the purpose of collecting duty, date of manufacture was not material under the scheme of the Act even though the taxable event is the manufacture.
It was, therefore, contended that at the time of manufacture of the goods in question, the goods were excisable goods and in view of rule 9A of the Central Excise Rules, 1944, though the taxable event is the manufacture and production, the payment of duty is related to and postponed to the date of removal of articles from the manufactury.
The Tribunal accepted the said contention.
We are of the opinion that the Tribunal was right.
It is well settled by the scheme of the Act as clarified by sever al decisions that even though the taxable event is the manufacture or production of an excisable article, the duty can be levied and collected at a later stage for administra tive convenience.
The Scheme of the said Act read with the relevant rules framed under the Act particularly rule 9A of the said rules, reveals that the taxable event is the fact of manufacture or production of an excisable article, the payment of duty is related to the date of removal of such article from the factory.
In that view of the matter, the Tribunal dismissed the appeal and rejected the assessee 's contention.
Appearing before us in support of the appeal, Mr. Rajiv Dutta, learned counsel for the appellant contended that in several decisions it has been held, and referred us to the said decisions referred to hereinbefore, that the relevant date would be the date of manufacture and in this case the manufacture was complete before the introduction of the budget.
It was submitted that until 28th February, 1987, when, 314 according to Shri Dutta, the goods had been manufactured, the goods in question were unconditionally exempt from the duty.
Under the Finance Bill, 1987 88, the said products were made dutiable at the rate of 15% ad valorem on or from 1st March, 1987.
But the appellant had in their factory, a stock of the said products which were duly manufactured, according to Shri Dutta, packed and ready for sale prior to 28th February, 1987.
In those circumstances, the goods in question, according to Shri Dutta, would not be subjected to duty at 15% ad valorem.
Having considered the facts and the circumstances of the case, we are unable to accept this submission.
Excise is a duty on manufacture or production.
But the realisation of the duty may be postponed for admin istrative convenience to the date of removal of goods from the factory.
Rule 9A of the said rules merely does that.
That is the scheme of the Act.
It does not, in our opinion, make removal be the taxable event.
The taxable event is the manufacture.
But the liability to pay the duty is postponed till the time of removal under rule 9A of the said Rules.
In this connection, reference may be made to the decision of the Karnataka High Court in Karnataka Cement Pipe Factory vs Supdt.
of Central Excise, 13, where it was decided that the words 'as being subject to a duty of ex cise ' appearing in section 2(d) of the Act are only descriptive of the goods and not to the actual levy. 'Excisable goods", it was held, do not become non excisable goods merely by the reason of the exemption given under a notification.
This view was also taken by the Madras High Court in Tamil Nadu (Madras State) Handlook Weavers Cooperative Society Ltd. vs Assistant Collector of Central Excise, [1978] ELT J 57.
On the basis of rule 9A of the said rules, the central excise authorities were within the competence to apply the rate prevailing on the date of removal.
We are of the opinion that even though the taxable event is the manufacture or the production of an excisable article, the duty can be levied and collected at a later date for administrative conven ience.
Having regard to the facts and the circumstances of this case and having regard to the scheme of the excise law, we are of the opinion that the Tribunal was right and there are no grounds to assail the order of the Tribunal.
In the aforesaid view of the matter, the appeal must fail and, accordingly, is dismissed.
there will, however, be no order as to costs.
R.S.S. Appeal dis missed.
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The appellant is a manufacturer of various types of food products known as Sapaghetti, Macaroni, Vermicelli, etc., failing under Heading No. 1902.10 of the Central Excise Tariff Act.
The said goods had been made dutiable only by the Finance Bill 1987 88 with effect from Ist March, 1987.
The appellant claimed that their pre budget stocks of fully manufactured non excisable goods were entitled to duty free clearance.
The Assistant Collector of Central Excise, the Collector of Central Excise (Appeals) and the Tribunal rejected the claim of the appellant.
Before this Court it was contended on behalf of the appellant that the relevant date would be the date of manu facture and in this case the manufacture was complete before the introduction of the budget.
Dismissing the appeal, this Court, HELD: (1) Excise is a duty on manufacture or production.
But the realisation of the duty may be postponed for admin istrative convenience to the date of removal of goods from the factory.
Rule 9A of the Central Excise Rules merely does that.
[314C] (2) The scheme of the Act read with the relevant rules framed under the Act, particularly rule 9A, reveals that the taxable even is the fact of manufacture or production of an excisable article, the 312 payment of duty is related to the date of removal of such article from the factory.
[313F] (3) On the basis of rule 9A of the Central Excise Rules, the Central Excise authorities were within the competence to apply the rate prevailing on the date of removal.
[314E] Karnataka Cement Pipe Factory vs Supdt.
of Central Excise, and Tamil Nadu (Madras State) Handloom Weavers Co operative Society Ltd. vs Assistant Collector of Central Excise, [1978] ELT J. 57, referred to.
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1. Feeling aggrieved and dissatisfied with the impugned
judgment and order dated 29.04.2016 passed by the High
Court of Madhya Pradesh Principal Seat at Jabalpur in
W.P. No. 3342/2015, by which, the High Court has
allowed the said writ petition preferred by respondent No.
1 herein and has set aside the order passed by the lower
Appellate Court and has restored the order passed by the
Executing Court with respect to the property in question,
Digitally signed by R
the original respondent No. 1 – objector before the
Executing Court has preferred the present appeal.
2. The facts leading to the present appeal in a nutshell are as
2.1 There was a dispute between National Ginni Enterprises
and Smt. Gayatri Agrawal with respect to the L.P.G. gas
agreement. A civil suit No. 07A/98 was filed by the said
Smt. Gayatri Agrawal against the National Ginni
Enterprises. The learned Trial Court passed a decree by
directing the judgment debtor (National Ginni Enterprises)
to provide L.P.G. gas as per the conditions of the
agreement. The decree provided that if the defendants are
unable to implement the said order, in alternatively it was
directed that the plaintiff was entitled to get the amount of
Rs. 2,38,450/ + Rs. 23,500/ (sic) relating to cost of the
gas cylinders and regulators respectively. The judgment
debtor did not fulfill the first portion of the order and did
not supply the gas cylinders and regulators. Therefore, the
decree holder filed the execution petition before the
Executing Court. It was decided to sell the property of the
judgment debtor. Accordingly, a declaration was made
and property was auctioned and sold on 03.11.2011 in
favour of respondent No. 1 herein. The appellant herein –
original respondent No. 1 filed objection before the
Executing Court, contending, interalia, that the property
was purchased by him from judgment debtor on
31.08.1999 and that they are in possession of the said
land. An application under Order 21 Rule 90 r/w 151 of
the CPC was filed. The learned Executing Court overruled
the objections and rejected the application under Order 21
Rule 90 by order dated 23.01.2013. The appellant flied
miscellaneous civil appeal before the Court of Additional
District Judge, Damoh being Misc. Civil Appeal No.
12/2013. The lower Appellate Court allowed the said
appeal and set aside the order of Executing Court dated
23.01.2013 and remitted the matter back to the Executing
Court to rehear the parties and after taking into account
all the facts and circumstances, pass a fresh order in
accordance with law. The order passed by the lower
Appellate Court was the subject matter before the High
Court by way of present writ petition. By the impugned
judgment and order the High Court has allowed the said
writ petition and has set aside the order passed by the
lower Appellate Court by observing that the appellant
herein – original respondent No. 1 has failed to plead and
establish the nature of irregularity or fraud committed in
sale and therefore, no fault can be found in the order of
the Executing Court.
2.2 Feeling aggrieved and dissatisfied with the judgment and
order passed by the High Court, the original respondent
No. 1 has preferred the present appeal.
3. Shri Ravindra Shrivastava, learned Senior Advocate has
appeared on behalf of the appellant and Shri Sanjay K.
Agrawal, learned counsel has appeared on behalf of
respondent No. 1.
4. Shri Ravindra Shrivastava, learned Senior Advocate
appearing on behalf of the appellant has vehemently
submitted that in the facts and circumstances of the case
the High Court has committed a serious error in allowing
the writ petition and quashing and setting aside the well
reasoned order passed by the lower Appellate Court.
4.1 It is submitted that in the present case there was breach of
Order 21 Rule 64 and Order 21 Rule 84/85 of CPC and
therefore, due to noncompliance of the aforesaid
provisions the sale has been vitiated.
4.2 It is submitted that in the present case the property in
question was put to auction on 18.10.2011 and therefore,
the auction purchaser was required to deposit 25% of sale
amount immediately. It is submitted that in the present
case the auction purchaser deposited 25% of the amount
on 03.11.2011. It is submitted that therefore there is a
noncompliance of Order 21 Rule 84 of CPC. It is further
submitted that the balance sale consideration (75%) was
required to be deposited by the auction purchaser within a
period of fifteen (15) days from the date of auction. It is
submitted that in the present case balance 75% of the sale
consideration was deposited by the auction purchaser on
04.11.2011. It is submitted that therefore there is also a
violation of Order 21 Rule 85 of CPC. Relying upon Order
21 Rules 64, 84, 85 and 86 and relying upon the decisions
of this Court in the cases of Manilal Mohanlal Shah and
Ors. Vs. Sardar Sayed Ahmed Sayed Mahmad and Anr.;
(1955) 1 SCR 108 and Rosali V. Vs. Taico Bank and
Ors.; (2009) 17 SCC 690, it is prayed to allow the present
appeal.
4.3 It is further submitted by learned Senior Advocate
appearing on behalf of the appellant that even otherwise
the High Court has not properly appreciated the fact that
the property in question was purchased by the appellant
on 31.08.1999 from the judgment debtor and at that time
the property in question was not the subject matter of civil
suit. It is submitted that civil suit was filed for specific
performance of the L.P.G. gas agreement. It is submitted
that even injunction dated 18.05.1999 was not the subject
matter of property in question. It is submitted that when
the property in question was put to auction by the
Executing Court on 18.10.2011/03.11.2011 much prior
thereto the appellant purchased the property on
31.08.1999. It is submitted that therefore at the time when
the property was auctioned the judgment debtor was not
the owner of the property in question, which as such was
purchased by the appellant by the registered sale deed on
31.08.1999. It is submitted that therefore the High Court
has committed a very serious error in observing that the
appellant purchased the property despite the injunction
granted by the Trial Court on 18.05.1999 and that the
appellant cannot be permitted to raise the objection as the
appellant has purchased the property despite the
injunction.
4.4 Making the above submissions and relying upon the above
decisions, it is prayed to allow the present appeal.
5. Present appeal is vehemently opposed by Shri Sanjay
Agrawal, learned counsel appearing on behalf of
respondent No. 1 herein – auction purchaser.
5.1 It is submitted by learned counsel appearing on behalf of
respondent No. 1 that in the facts and circumstances of
the case no error has been committed by the High Court in
restoring the order passed by the learned Executing Court
and overruling the objections raised by the appellant
herein – objector.
5.2 It is submitted that on true interpretation of Order 21 Rule
90 the High Court has rightly refused to set aside the sale
on the alleged violation of Order 21 Rule 64 and Order 21
Rule 84/85. It is submitted that the appellant purchased
the property in question during the pendency of the suit
and the injunction dated 18.05.1999 was in operation. It is
submitted that therefore the appellant shall not be entitled
to raise any objection thereafter and pray to set aside the
sale on the ground that the property in question was
purchased by it. It is submitted that therefore, the High
Court has rightly observed that since, in the civil suit a
temporary injunction was granted by the Trial Court on
18.05.1999 and by that time the property was not
purchased by the appellant herein there was no question
of putting the appellant to notice.
5.3 It is further submitted that even the alleged non
compliance of Order 21 Rule 64, Order 21 Rule 84 and 85
were not raised before the Executing Court and therefore,
the High Court has rightly observed that the same cannot
be permitted to be raised subsequently.
5.4 Making the above submissions it is prayed to dismiss the
present appeal.
6. We have heard learned counsel appearing on behalf of the
respective parties at length.
7. While appreciating the submissions on behalf of the
respective parties the chronological dates and events are
required to be considered which are as under:
7.1 In the year 1998, the decree holder filed a suit for specific
performance of the L.P.G. gas agreement;
7.2 The civil suit was not with respect to the property in
question. An interim injunction application was filed by
the original plaintiff. It was apprehended that the
defendants were trying to leave Damoh after selling and
transferring their firm, namely, National Gini Enterprises,
to any other person. The application was filed under Order
38 CPC as well as for permanent injunction. By order
dated 18.05.1999 the learned Trial Court directed to
maintain status quo. The learned Trial Court also directed
that if the defendants transfer their firm Ginni Enterprises
to any other person then they would not transfer the same
against the interest of the plaintiff. That thereafter the
decree came to be passed on 30.09.1999 directing the
defendants – judgment debtor – Ginni Enterprises to
supply LPG gas and in the alternative to pay 2,38,450/ +
Rs. 23,500/ (sic). As the decree was not executed the
decree holder filed the execution proceeding. In the
execution proceeding the property in question was put to
auction for recovery of Rs. 2,38,450/ + Rs. 23,500/ (sic).
The property was put to auction on 18.10.2011. The
auction purchaser – respondent No. 1 herein deposited
25% of the amount on 03.11.2011 and deposited balance
75% of the amount on 04.11.2011. In light of above factual
scenario, submissions on behalf of the respective parties,
more particularly, submission on behalf of the appellant
on noncompliance of Order 21 Rules 64, 84 and 85 are
required to be considered.
7.3 While considering the issue involved in the present appeal
with respect to noncompliance of the relevant provisions
of CPC, the relevant provisions of the CPC are required to
be referred to, namely, Order 21 Rules 64, 84, 85 and 86,
which read as under:
“Order 21 – Execution of Decrees and Orders
Rule 64. Power to order property attached to be sold
and proceeds to be paid to person entitled.—Any Court
executing a decree may order that any property attached
by it and liable to sale, or such portion thereof as may
seem necessary to satisfy the decree, shall be sold, and
that the proceeds of such sale, or a sufficient portion
thereof, shall be paid to the party entitled under the
decree to receive the same.
Rule 84. Deposit by purchaser and resale on default.
—(1) On every sale of immovable property the person
declared to be the purchaser shall pay immediately after
such declaration a deposit of twentyfive per cent on the
amount of his purchasemoney to the officer or other
person conducting the sale, and in default of such
deposit, the property shall forthwith be resold.
(2) Where the decreeholder is the purchaser and is
entitled to setoff the purchasemoney under Rule 72, the
Court may dispense with the requirements of this rule.
Rule 85. Time for payment in full of purchasemoney.
—The full amount of purchasemoney payable shall be
paid by the purchaser into Court before the Court closes
on the fifteenth day from the sale of the property:
Provided, that, in calculating the amount to be so paid
into Court, the purchaser shall have the advantage of any
setoff to which he may be entitled under Rule 72.
Rule 86. Procedure in default of payment.—In default
of payment within the period mentioned in the last
preceding rule, the deposit may, if the Court thinks fit,
after defraying the expenses of the sale, be forfeited to the
Government, and the property shall be resold, and the
defaulting purchaser shall forfeit all claim to the property
or to any part of the sum for which it may subsequently
be sold.”
7.4 As per Order 21 Rule 84, on every sale of immovable
property the person declared to be the purchaser shall pay
immediately after such declaration deposit of twentyfive
per cent on the amount of his purchasemoney and in
default of such deposit, the property shall forthwith be re
sold.
7.5 As per Order 21 Rule 85, the full amount of purchase
money payable shall be paid by the purchaser into Court
before the Court closes on the fifteenth day from the sale of
the property. Thus, as per the aforesaid provisions, the
purchaser has to deposit 25% of the sale amount
immediately on declaring to be the purchaser and the full
amount of the purchasemoney shall have to be paid by
the purchaser into the Court before the Court closes on
fifteenth day from the sale of the property.
7.6 In the present case admittedly the purchaser – respondent
No. 1 deposited 25% of the amount on 03.11.2011 and did
not deposit 25% of the amount as required under Order 21
Rule 84 immediately. The auction purchaser was required
to deposit 25% of the amount the day on which he was
declared purchaser i.e., 18.10.2011. Even the balance 75%
of the amount has not been deposited as required under
Order 21 Rule 85. The full amount of the purchasemoney
in the present case has been deposited on 04.11.2011 i.e.,
after the period prescribed/provided under Order 21 Rule
85. Therefore, there is noncompliance of Order 21 Rule 84
and Rule 85 of CPC.
8. In light of the aforesaid facts, few decisions of this Court
on Order 21 Rules 84 and 85 are required to be referred to
and considered.
8.1 In the case of Manilal Mohanlal Shah (supra), it is
observed and held that the provision regarding the deposit
of 25% of the amount by the purchaser other than the
decreeholder is mandatory and the full amount of the
purchase money must be paid within fifteen days from the
date of the sale. It is further observed and held that if the
payment is not made within the period of fifteen days, the
Court has the discretion to forfeit the deposit, and there
the discretion ends but the obligation of the Court to resell
the property is imperative. In paragraph 8 of the decision,
it is observed and held as under:
“8. The provision regarding the deposit of 25 per cent by
the purchaser other than the decreeholder is mandatory
as the language of the Rule suggests. The full amount of
the purchase money must be paid within fifteen days
from the date of the sale but the decreeholder is entitled
to the advantage of a setoff. The provision for payment is,
however, mandatory…. (Rule 85). If the payment is not
made within the period of fifteen days, the court has the
discretion to forfeit the deposit, and there the discretion
ends but the obligation of the court to resell the property
is imperative. A further consequence of nonpayment is
that the defaulting purchaser forfeits all claim to the
property.… (Rule 86).”
8.2 The decision of this Court in the case of Manilal Mohanlal
Shah (supra) fell for consideration before this Court in the
subsequent decision in the case of Rosali V. (supra). In
the said decision this Court interpreted the word
“immediately” in Order 21 Rule 84. In the said decision,
this Court considered paragraph 11 of the decision in the
case of Manilal Mohanlal Shah (supra) in paragraph 20 as
“20. What would be the meaning of the term
“immediately” came up for consideration before this
Court, as noticed hereinbefore, in Manilal Mohanlal
Shah [AIR 1954 SC 349] wherein it was held : (AIR pp.
“11. Having examined the language of the
relevant rules and the judicial decisions
bearing upon the subject we are of opinion that
the provisions of the rules requiring the deposit
of 25 per cent of the purchase money
immediately, on the person being declared as a
purchaser and the payment of the balance
within 15 days of the sale are mandatory and
upon noncompliance with these provisions
there is no sale at all. The rules do not
contemplate that there can be any sale in
favour of a purchaser without depositing 25
per cent of the purchase money in the first
instance and the balance within 15 days.
When there is no sale within the contemplation
of these rules, there can be no question of
material irregularity in the conduct of the sale.
Nonpayment of the price on the part of the
defaulting purchaser renders the sale
proceedings as a complete nullity. The very fact
that the Court is bound to resell the property
in the event of a default shows that the
previous proceedings for sale are completely
wiped out as if they do not exist in the eye of
the law. We hold, therefore, that in the
circumstances of the present case there was no
sale and the purchasers acquired no rights at
all.”
8.3 Applying the law laid down by this Court in the aforesaid
decisions to the facts of the case on hand, it is evident that
there is noncompliance of mandatory provisions of Order
21 Rule 84 and Order 21 Rule 85 and therefore, the sale
was vitiated.
9. Even otherwise, it is required to be noted that the
appellant herein purchased the property in question much
before the auction of the property i.e., 31.08.1999. At the
relevant time the property in question was not the subject
matter of suit. As observed hereinabove, the subject matter
of suit was specific performance of the L.P.G. gas
agreement and even the adinterim injunction dated
18.05.1999 was also against the transfer of firm Ginni
Enterprises to any other person and the defendants were
directed to maintain status quo with respect to their firm
Ginni Enterprises. Therefore, at the time when the
property in question was put to auction on 18.10.2011 the
appellant had already purchased the said property as far
as back on 31.08.1999 as there was no injunction with
respect to the said property while adinterim injunction
dated 18.05.1999 and as observed hereinabove, the
property in question was not the subject matter of suit and
the decree came to be passed on 30.09.1999 and the
property was put to auction in the year 2011 for recovery
of sum of Rs. 2,38,450/ + Rs. 23,500/ (sic). The ad
interim injunction dated 18.05.1999 cannot be pressed
into service against the appellant. Therefore, the High
Court has committed an error in considering injunction
dated 18.05.1999 against the appellant. Therefore, at the
time when the property was put to auction on 18.10.2011,
the judgment debtor was not the owner and therefore, the
same could not have been put to auction. Under the
circumstances, learned Executing Court erred in
overruling the objections raised by the appellant against
the auction/sale of the property which the appellant
purchased much prior to the date of the auction i.e., on
10. In view of the above and for the reasons stated above, the
impugned judgment and order passed by the High Court
deserves to be quashed and set aside and is accordingly
quashed and set aside and consequently the order passed
by the Executing Court overruling the objections raised by
the appellant also deserves to be quashed and set aside
and is quashed and set aside. The order passed by the
lower Appellate Court is hereby restored. It will be open for
respondent No. 1 to get back the amount deposited by
him, lying with the Executing Court. Present appeal is
accordingly allowed. In the facts and circumstance of the
case there shall be no order as to costs.
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The Supreme Court observed that, under Order XXI Rule 84 CPC, the deposit of 25% of the amount by the auction purchaser is mandatory.
The full amount of the purchase money must be paid within fifteen days from the date of the sale, the bench of Justices M R Shah and CT Ravikumar observed
In this case, the property in question was put to auction on 18.10.2011. The auction purchaser deposited 25% of the amount on 03.11.2011. 75% of the sale consideration was deposited by the auction purchaser on 04.11.2011. Executing Court overruled the objections and rejected the application under Order 21 Rule 90 CPC and refused to set aside the sale. This order was upheld by the Madhya Pradesh High Court.
In appeal before the Apex Court, it was contended that there was breach of Order 21 Rule 64 and Order 21 Rule 84/85 of CPC and therefore, due to noncompliance of the aforesaid provisions the sale has been vitiated. Reliance was placed on the judgment in Manilal Mohanlal Shah and Ors. Vs. Sardar Sayed Ahmed Sayed Mahmad and Anr.; (1955) 1 SCR 108 and Rosali V. Vs. Taico Bank and Ors.; (2009) 17 SCC 690.
In Manilal, it was held that the provision regarding the deposit of 25% of the amount by the purchaser other than the decreeholder is mandatory and the full amount of the purchase money must be paid within fifteen days from the date of the sale. It held that if the payment is not made within the period of fifteen days, the Court has the discretion to forfeit the deposit, and there the discretion ends but the obligation of the Court to resell the property is imperative. In Rosali, the court observed thus : The provisions of the rules requiring the deposit of 25 per cent of the purchase money immediately, on the person being declared as a purchaser and the payment of the balance within 15 days of the sale are mandatory and upon noncompliance with these provisions there is no sale at all. The rules do not contemplate that there can be any sale in favour of a purchaser without depositing 25 per cent of the purchase money in the first instance and the balance within 15 days. When there is no sale within the contemplation of these rules, there can be no question of material irregularity in the conduct of the sale. Nonpayment of the price on the part of the defaulting purchaser renders the sale proceedings as a complete nullity.
The court also noted that at the the time when the property was put to auction on 18.10.2011, the judgment debtor was not the owner and therefore, the same could not have been put to auction. The bench, while allowing the appeal, therefore observed:
"Applying the law laid down by this Court in the aforesaid decisions to the facts of the case on hand, it is evident that there is noncompliance of mandatory provisions of Order 15 21 Rule 84 and Order 21 Rule 85 and therefore, the sale was vitiated"
Case details
Gas Point Petroleum India Limited vs Rajendra Marothi | (SC) 89 | CA 619 OF 2023 | 10 Feb 2023 | Justices M R Shah and C T Ravikumar
For Petitioner(s) Mr. Ravindra Shrivastava, Sr. Adv. Mr. Arjun Garg, AOR Mr. Shobhit Jain, Adv. Mr. Aakash Nandolia, Adv. Ms. Sagun Shrivastava, Adv. of GSL Chambers
For Respondent(s) Mr. Sanjay K. Agrawal, AOR Mr. Sarthak Nema, Adv. Ms. Ankita Khare, Adv. Mr. Ramsakha Kushwaha, Adv. Mr. Yashovardhan Jain, Adv
Headnotes
Code of Civil Procedure, 1908 ; Order XXI Rule 84,85 - The deposit of 25% of the amount by the purchaser other than the decree-holder is mandatory and the full amount of the purchase money must be paid within fifteen days from the date of the sale - If the payment is not made within the period of fifteen days, the Court has the discretion to forfeit the deposit, and there the discretion ends but the obligation of the Court to resell the property is imperative - The provisions of the rules requiring the deposit of 25 per cent of the purchase money immediately, on the person being declared as a purchaser and the payment of the balance within 15 days of the sale are mandatory and upon noncompliance with these provisions there is no sale at all. The rules do not contemplate that there can be any sale in favour of a purchaser without depositing 25 per cent of the purchase money in the first instance and the balance within 15 days. When there is no sale within the contemplation of these rules, there can be no question of material irregularity in the conduct of the sale. Nonpayment of the price on the part of the defaulting purchaser renders the sale proceedings as a complete nullity - Referred to Manilal Mohanlal Shah and Ors. Vs. Sardar Sayed Ahmed Sayed Mahmad and Anr.; (1955) 1 SCR 108 and Rosali V. Vs. Taico Bank and Ors.; (2009) 17 SCC 690. (Para 8-9)
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1. The present PIL is filed with the following reliefs:
“a. This Hon'ble Court may be please to declare that the
conduct of the Respondent No. 1 & 2 have disqualified
themselves for holding any constitutional posts of Vice
President and Minister of the Union Cabinet respectively by
expressing lack of faith in the Constitution of India and the law
established by their behaviour and utterances made in public.
b. This Hon'ble Court may be please to restrain the
Respondent No.1 from discharging his duty as Vice President
of India.
c. This Hon'ble Court may be please to restrain the
Respondent No.2 from discharging his duty as cabinet
Minister of Union of India.
2. The Petitioner claims to be a body registered under the
Societies Registration Act 1860 established by a group of Advocates
practicing at Bombay High Court with the primary purpose to
undertake activities to uphold rule of law, promote high values in
legal profession and to protect independence of judiciary.
3. Mr. Abdi, the learned Counsel for the Petitioner submits that
Respondent Nos.1 and 2 have disqualified themselves to hold the
constitutional post by showing lack of faith in the Constitution of
India by their conduct and utterances made in public and by
attacking its institutions including Hon’ble Supreme Court of India
and showing scant regard for the law laid down by the Hon’ble
Supreme Court. The conduct of Respondent Nos.1 and 2 appeared
to have shaken public faith in Hon’ble Supreme Court of India and
the Constitution. Respondent Nos.1 and 2 have affirmed oath that
they will bear true faith and allegiance to the Constitution of India.
However, their conduct has shown lack of faith in Constitution of
India. Respondent Nos.1 and 2 have launched frontal attack on the
institution of judiciary, particularly the Hon’ble Surpeme Court of
India in most derogatory language without any recourse which is
available under the constitutional scheme to change the status quo
as per the law laid down by the Hon’ble Supreme Court of India.
Respondent Nos.1 and 2 are attacking the collegium system as well
as basic structure in public platform. This kind of unbecoming
behaviour by Respondent Nos.1 and 2 who are holding
constitutional posts is lowering the majesty of the Hon’ble Supreme
Court of India in the eye of public at large. The learned Counsel
referred to various statements made by Respondent Nos.1 and 2.
4. The learned Counsel for the Petitioner submits that Article 51-
A of the Constitution of India lays down the fundamental duties. It
directs every citizen to abide by the Constitution and respect its
ideals and institutions, the National Flag and the National Anthem.
Respondent Nos.1 and 2 have failed to abide by their fundamental
duties and have not shown respect to the constitutional institution
i.e. Hon’ble Supreme Court of India. The learned Counsel submits
that Respondent Nos.1 and 2 are also guilty of committing contempt
of Court by lowering the authority of the Hon’ble Supreme Court. The
authorities who are responsible to take action against Respondent
Nos.1 and 2 have failed in their duty, as such, this Court, under
Article 226 of the Constitution of India may exercise its powers. The
learned Counsel relies upon the judgment of the Calcutta High Court
in the case of Babul Supriyo Vs. State of West bengal & Anr. 1 and
submits that it has been held by the Calcutta High Court that it is
expected from a representative of the people that he must be
courteous in his behaviour, dignified in his manners and cautious on
the words spoken by him. The learned Counsel also relies upon the
judgment of the Supreme Court in the case of A.I.I.M.S. Students
Union Vs. A.I.I.M.S. & Ors .2 to submit that the fundamental duties,
though not enforceable by a writ of Court, yet provide valuable guide
1 dated on 14 th October 2020
and aid to interpretation of constitutional and legal issues.
5. Mr. Anil Singh, the learned Additional Solicitor General
submits that the present PIL is filed for publicity purpose. It is false
and frivolous. Respondent Nos.1 and 2 have complete faith in the
Constitution. The Petitioner has annexed the statement of
Respondent No.2 wherein it is said that the Central Government,
under the Prime Minister has never undermined the authority of the
judiciary and its independence will always remain untouched and
promoted. Respondent No.1 has also said that he has highest
respect for the judiciary and committed to the Constitution. The
Vice President cannot be removed by orders under Article 226 of the
Constitution. The learned ASG relies upon the judgment of the apex
court in the case of Dattaraj Nathuji Thaware Vs. State of
Maharasthra & Ors. 3 and submits that the PILs are to be admitted
with great care. The PILs cannot be for redressal, publicity oriented
or political disputes.
7. Juridically, the expression “Public Interest Litigation” means a
legal action initiated in a Court of Law for the enforcement of public
interest. The PIL is a power given to the public by the Courts
through judicial activism. It is a litigation filed in the Court of law for
protection of public interest. The PIL can be used for redressal of a
genuine public wrong or public injury and it cannot be publicity-
oriented. The parameters of PIL have been indicated by the apex
court in catena of judgments.
8. In the present matter, the Petitioner claims to be established
by a group of Advocates practicing at Bombay High Court with the
primary object of undertaking activities to uphold rule of law,
promote high values in legal profession and to protect independence
of judiciary. The Petitioner seeks disqualification of Respondent
Nos.1 and 2 holding constitutional post on the ground that their
utterances have shaken the public faith in the Hon’ble Supreme
Court of India and the Constitution.
9. The credibility of the Hon’ble Supreme Court of India is sky-
high. It cannot be eroded or impinged by the statements of
individuals. The Constitution of India is supreme and sacrosanct.
Every citizen of India is bound by the Constitution and is expected to
abide by the constitutional values. The constitutional institutions
are to be respected by all, including constitutional authorities and
persons holding constitutional posts.
10. The statements made by Respondent Nos.1 and 2 are
annexed with the petition. The learned Additional Solicitor General
has referred to some of the statements made by Respondent Nos.1
and 2, wherein it has been said that the Government has never
undermined the authority of the judiciary and its independence will
always remain untouched and promoted and they respect the ideals
of the Constitution. Respondent No.1 has also made a statement that
he has highest respect for the judiciary and is committed to the
Constitution of India. The constitutional authorities cannot be
removed in the manner as suggested by the Petitioner. Fair criticism
of the judgment is permissible. It is no doubt, fundamental duty of
every citizen to abide by the Constitution. Majesty of law has to be
11. Considering the totality of the factual matrix, we do not find it
a fit case to invoke our writ jurisdiction under Article 226 of the
Constitution of India in entertaining the PIL.
12. The PIL, as such, is dismissed.
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"The credibility of the Hon’ble Supreme Court of India is sky-high. It cannot be eroded or impinged by the statements of individuals," the Bombay High Court said in a detailed order dismissing the PIL against the Vice President Jagdeep Dhankhar and Law Minister Kiren Rijiju.
"The Constitution of India is supreme and sacrosanct. Every citizen of India is bound by the Constitution and is expected to abide by the constitutional values. The constitutional institutions are to be respected by all, including constitutional authorities and persons holding constitutional posts," the bench added in the order .
A division bench of Acting Chief Justice SV Gangapurwala and Sandeep Marne passed the order on an PIL by the Bombay Lawyer's Association alleging constant public criticism of the judiciary’s ‘collegium system’ and remarks against the basic structure doctrine.
Petitioner - the Bombay Lawyers Association sought to restrain them from discharging their duties claiming that the two have disqualified themselves from holding constitutional posts of Vice President and Minister of the Union Cabinet through their conduct, having expressed lack of faith in the Constitution of India.
The court said, "The constitutional authorities cannot be removed in the manner as suggested by the Petitioner."
Moreover, "Fair criticism of the judgment is permissible. It is no doubt, fundamental duty of every citizen to abide by the Constitution. Majesty of law has to be respected," the court added.
The bench recorded the ASG 's submissions that VP Jagdeep Dhankhar and the Law Minister's statements have never "undermined the authority of the judiciary and its independence will always remain untouched and promoted and they respect the ideals of the Constitution."
Arguments
The court had heard Advocate Ahmed Abdi for the petitioner and ASG Anil Singh for the respondent. The ASG refuted allegations and said the PIL was a publicity stunt and not maintainable. Constitutional functionaries could only be removed under Articles 67, 102, 103 of the constitution of India and not by a court.
During the hearing Abdi said the attacks on the judiciary were affecting the population at large.
“We come here with great anguish. Whatever is happening is in the public domain. We are not against debate. But should this be held in the parliament, in the court or on the streets? This is lowering the court in the eyes of the people. Is this what their conduct be? This is not only derogatory to the constitution but it is affecting the public at large. It will lead to anarchy. If they are serious they should introduce a bill in the parliament of approach the SC.”
ASG Anil Singh argued, “This is a frivolous petition. Waste of the time of the court. The only object is to get publicity. Before it came before the court the petition was already in the newspaper. See the grounds. The law minister is saying follow the constitution. Where is the question of disrespecting the constitution? They have repeatedly said the constitution should be respected and followed."
Background
The Petitioner claimed between 2021-2023 they have been continuously attacking the “collegium system” by which judges are appointed and the case of Kesavananda Bharati vs State of Kerala in which the SC held by a 7:6 majority that the basic structure of the constitution cannot be amended or tampered with.
After listing several instances of criticism, the plea states that Constitutional functionaries are supposed to have faith and allegiance to the constitution of India, which they have affirmed while taking oath of Office. “Inspite of the facts, they have shown lack of faith in the Constitution and SC by their conduct and their utterances made in public.”
The Supreme Court of India introduced the collegium system in 1993 and in 1998 the Supreme Court, on the president’s reference, expanded the collegium to a five member body, comprising of the CJI and four of his senior most colleagues. In 2015 the Sc re-affirmed the decision in the third Judge’s case and struck down the 99th amendment.
Case Title: Bombay Lawyers Association v. Jagdeep Dhankar and Ors.
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“En Kadhala” in the album “Naatpadu Theral” is yet another
Vairamuthu melody. The song celebrates the irrelevance of the age
factor to a person in love. However, the visualization of the song carries
a deeper undertone – the relationship between humans and nature.
One sees a plant lovingly bowing down and touching the protagonist to
comfort her.
2.To me, it is not a poetic fancy. It represents the age-old
tradition of this nation and its people. The five elements of nature are
venerated as divine entities-prithvi, akash, agni, vaayu and varuna. The
earth (prithvi) is worshipped as Bhooma Devi. She is seen as a consort
of the divine. The land is described as 'Punya Bhumi' in the works of
the various seers. She takes the form of “Bharat Mata” in Bankim
Chandra Chattopadhyay's novel “Ananda Math”. “Bande Mataram”
was composed in Her honour. The translation by Maharishi Aurobindo
Mother free.
Mother, to thee I bow.
When the swords flash out in twice seventy million hands
With many strengths who art mighty and stored,
And shook herself free.
In our hearts that conquers death.
Thine the beauty, thine the charm.
In our temples is but thine.
With her hands that strike and her swords of sheen,
And the Muse a hundred-toned.
Mother, lend thine ear.
Showering wealth from well-stored hands!
Mother great and free!”
“Bande Mataram” became the warcry of the freedom movement. The
nation became equated with the Mother Goddess. In the pictorial
representation of Abanindranath Tagore, She is clad in saffron and
dressed like a sadhvi, holding a book, sheaves of paddy, a piece of
white cloth and a rudraksha garland (mala) in her four hands.
Mahatma Gandhi, the father of the nation, inaugrated a Bharat Mata
temple at Varanasi in 1936. Here, She is represented not in the form of
an idol but in the form of the map representing undivided India. She
has been installed as a Goddess in the precincts of many a Hindu
Temple across the country. In Kanyakumari, one finds Her in the
premises of Esakkiyamman (Devi) Temple. The legendary freedom
fighter Shri.Subramaniya Siva wanted to erect one such temple at
Papparapatti in Dharmapuri District. The Government of Tamil Nadu
had agreed to fulfil this nearly century old dream.
3.Though She is identified as Durga or Kali and depicted in
pictures as standing alone, Tamil Poet Mahakavi Subramaniya Bharathi
saw Her as the consort of Lord Shiva in one of his many hymns sung in
Her praise. She then becomes Parvathi and Ganesha becomes Her
child. The noted intellectual and scholar, Shri.Aravindan Neelakandan,
makes an interesting observation that this association was brought out
beautifully in the painting of M.F.Husain made on the occasion of the
50th anniversary of Indian Independence. Bharat Mata is seen therein
playing with Ganesha.
4.Shoaib Daniyal in his article in Scroll.in recounts a conversation
between Shri.K.M.Munshi and Shri.Aurobindo Ghosh. To the question,
“how can one become patriotic?”, Shri.Ghosh replied pointing to the
map of British India on the wall, “Do you see this map? It is not a map
but the portrait of Bharat Mata : its cities and mountains rivers and
jungles form her physical body. All her children are her nerves, large
and small.... Concentrate on Bharat as a living mother, worship her with
nine-fold bhakti”. In the same article, the author refers to an incident
that took place in Maharashtra Assembly. When a Muslim MLA was
challenged to chant “Bharat Mata Ki Jai”, he refused.
5.It is true that after the tragic partition on the sole ground of
religion, our founding fathers enacted and adopted a secular
constitution which is premised and anchored on civic nationalism. The
moment one speaks of civic nationalism, one has to concede that there
exists its counter part, religious nationalism. To use Taoist imagery,
they are Yin-Yang. The irrepressible Shashi Tharoor would probably
comment that the religious nationalism represents the black “Yin” while
civic nationalism represents the white “Yang”. He may come out with an
unheard of English expression too!. No one in his senses would suggest
that only a religious nationalist can be called a patriot. While a civic
nationalist believes in India as a secular conception with the
Constitution as its guiding light, to a religious nationalist, India is Bharat
Mata. Even to the latter, the Constitution has to be the foundational and
guiding document. The difference between “Jai Hind” and “Bharat
Mata Ki Jai” will be the difference between the two categories.
6.The petitioner herein is an ordained Catholic diocesan priest.
A meeting was organized at Arumanai, a village in western Kanyakumari
District, on 18th July, 2021 protesting the continued closure of churches
in the District owing to pandemic-induced lockdown. The entire speech
was video recorded and widely circulated in the social media. In the
said video, the petitioner is seen and heard claiming that the network of
Catholic priests was tapped by him and his associates to canvass votes
in favour of the Dravida Munnetra Kazhagam which won the recently
concluded Tamil Nadu Legislative Assembly election. He mocked the
Minister for Hindu Religious and Charitable Endowments Department in
renovate and consecrate. No Hindu, no devotee of
Mandaikattu Amman is going to vote for you. If you
won, then it is the alms we Christians and Muslims have
thrown to you. You won not because of your talents”.
After such boast, he then directs his ire at Shri.M.R.Gandhi who was
elected as MLA on a BJP ticket. Shri.M.R.Gandhi is known to walk
barefoot out of respect for Mother Earth. The petitioner mocks him in
“But we wear shoes. Why? Because the filth of Bharat
Mata should not contaminate us. The Tamil Nadu
government has given us free footwear. This bhumadevi is
dangerous, you could catch scabies from it.”
He then holds out the following warning :
“We are now majority (in the district) from 42 per
cent we have crossed 62 per cent. Soon we would be 70
per cent. You cannot stop us. I am saying this as a
warning to my Hindu brothers”.
He attacks the Hon'ble Prime Minister and the Hon'ble Home Minister by
pathetic. I give it in writing. If the God we worship is a
true living God, the history should see Modi and Amit Shah
being eaten by dogs and worms.”
7.The speech which went viral provoked considerable public
outcry. The first respondent belatedly registered Crime No.377 of 2021
against the petitioner and another for the offences under Sections 143,
153A, 295A, 505(2), 506(1) and 269 of IPC and Section 3 of the
Epidemic Diseases Act, 1897. To quash the FIR, this petition has been
filed. Two public interested individuals have intervened to oppose the
prayer made by the petitioner.
8.The learned counsel appearing for the petitioner at the outset
pointed out that on 20.07.2021, the petitioner had circulated a video
expressing his regret and clarifying that his words were not intended to
hurt the religious sentiments of the Hindus. He submitted that the
offending speech must be read in its entirety. If so done, one can
conclude that the petitioner only wanted to voice his feelings in support
of minority rights and interests and that he had no intention to create
disharmony or enmity between two groups. The venue was a church
ground which belonged to the first accused. The attendees were
Christians and Muslims. Since the Churches continued to remain closed,
the petitioner felt frustrated that the recently elected legislators were
doing nothing in the matter. Three of the MLAs are Christians and the
petitioner was only mocking them. The petitioner did not circulate the
video containing the offending speech. The learned counsel would also
contend that leaders like Dr.Ambedkar and Shri.E.V.Ramasamy had
criticized and commented about Hindu religion in far harsher terms and
that therefore, no exception can be taken to what the petitioner said.
He added that Bharat Mata and Bhuma Devi are not legal entities. He
relied on the decisions reported in AIR 1987 SC 748 (Bijoe
Emmanuel and others v. State of Kerala and ors), 1971 Crl.LJ
1773 (Lalai Singh Yadav and anr vs. State of U.P), 1971 Crl.LJ
324 (Gopal Vinayak Godse vs. UOI), 2007 Crl.LJ 1195 (Subal
Kumar Dey v. State of Tripura and (2010) 5 SCC 600 (Kushboo
v. Kaniammal). When it comes to protecting the fundamental right
guaranteed under Article 19(1)(a) of the Constitution, the court should
always lean in favour of free speech. He added that even if the words
uttered by the petitioner may not be in good taste, they would not
amount to an offence. He called upon this Court to quash the impugned
9.The learned Additional Public Prosecutor as well as the learned
counsel appearing for the intervenors submitted that the offences set
out in the FIR have been clearly made out and that there is no merit in
this petition.
10.Shri.Sricharan Rangarajan, the learned counsel appearing for
one of the intervenors submitted that “the value of free speech in a
particular case must be measured in specifics. Not all types of speech
have an equal value” (Lord Steyn in R v. Secretary of State for the
Home Department, Ex parte SIMMS and another, (1999) 3 WLR
328). One cannot be permitted to give vent to hate speech. He drew
the court's attention to the recent decision of the Hon'ble Apex Court
reported in (2021) 1 SCC 1 (Amish Devgan v. UOI). The court
defined hate speech as a form of expression through which the speaker
primarily intends to vilify, humiliate or incite hatred against the targets.
Its content has more to do with the expression, language and message
which should be to vilify, demean and incite psychosocial hatred or
physical violence against the target group. The test “Who ? What ? and
Where?” must be employed to determine the context. He submitted
that applying the aforesaid yardstick, the speech in question would
qualify as hate speech and hence, not entitled to protection under
Article 19(1)(a) of the Constitution.
11.Ms.Victoria Gowri, the learned counsel refuted the contention
of the petitioner's counsel that Bharat Mata is not a legal entity by
referring to the verse occurring in Vishnupurana composed in 400 BCE..
“Uttaram yat Samudrasya, Himadreshchaiva dakshinam, Varsham tad
Bharatam nama, Bharatee yatra santatihi” (meaning 'to the north of the
ocean and to the south of the Himalayas, Bharat is the country and the
people born there are the Bharatees') ; in Ramayana, Lord Ram
exclaimed “Janani Janma Bhumischa Svargadapi gariyasi” (meaning
Mother and Motherland are more precious than the great heaven) ;
there is a daily prayer Samudra-Vasane Devi Parvata-Stana-Mannddale
(meaning- (Oh Mother Earth) O Devi, You Who have the Ocean as Your
Garments, and Mountains as Your Bosom, O Consort of Lord Vishnu,
Salutations to You; Please Forgive the Touch of my Feet on Your Holy
Body). She insisted that the religious beliefs of the Hindus have been
deliberately and maliciously outraged by the petitioner herein. She
called for dismissal of the criminal original petition.
12.I carefully considered the rival contentions and went through
the materials on record. Section 143 of IPC is obviously not attracted.
The meeting was held in a private place belonging to the first accused.
It was convened to mourn the demise of Fr.Stan Swamy, a jesuit priest
and a tribal activist who died in judicial custody, and to demand the
opening of the places of worship. This cannot be an unlawful object.
Therefore, the attendees including the speakers cannot be called as
members of an unlawful assembly. Section 143 of IPC is obviously not
attracted. None of them suffered from any infectious disease or
contributed to its spread. Hence, Section 269 of IPC and Section 3 of
Epidemic Diseases Act, 1897 also could not have been invoked against
the accused. Section 506(1) of IPC will not also be attracted because
the speech was made from a platform and no affected person had
complained that he felt criminally intimidated.
13.Let me examine if the ingredients of the offence under Section
295A of IPC are present. The said provision reads as under :
“Whoever, with deliberate and malicious
intention of outraging the religious feelings of any class
of [citizens of India], [by words, either spoken or
written, or or by signs or by visible representations or
otherwise], insults or attempts to insult the religion or
the religious beliefs of that class, shall be punished with
imprisonment of either description for a term which
may extend to [three years], or with fine, or with both.]
This provision was considered by the Constitution Bench of the Hon'ble
Supreme Court in Ramji Lal Modi vs. State of U.P (AIR 1957 SC
620) . It was held therein that this provision does not penalize any and
every act of insult or attempt to insult the religion or the religious
beliefs of a class of citizens but only those acts of insults to or those
varieties of attempts to insult the religion or the religious beliefs of a
class of citizens which are perpetrated with the deliberate and malicious
intention of outraging the religious feelings of that class. On the
petitioner's own showing, the meeting was convened for the twin
purposes mentioned above. There was absolutely no need or necessity
to mount a visceral attack on the religious beliefs of the Hindus. It was
unwarranted and utterly unrelated to the occasion. That is what makes
it deliberate and malicious. The petitioner poked fun at those who
walk barefoot out of reverence for Mother Earth. He stated that
Christians wear shoes so that they wont catch scabies. He painted
Bhuma Devi and Bharat Mata as sources of infection and filth. Nothing
can be more outrageous to the feelings of the believing Hindus. Section
295A IPC is attracted when there is attack on the religious feelings and
beliefs of any class of citizens. It is not necessary that all the Hindus
should feel outraged. If the offending words outrage the religious
feelings or beliefs of even a section of Hindus, the penal provision would
be attracted. Bhuma Devi is considered as a Goddess by all believing
Hindus. I use the expression “believing” because, even materialists,
rationalists and non-believers also can be counted as Hindus. I may
add tongue-in-cheek that even the great iconoclast and rationalist
Periyar did not cease to be a Hindu. Bharat Mata evokes a deeply
emotional veneration in a very large number of Hindus. She is often
portrayed carrying the national flag and riding a lion. She is to many
Hindus a Goddess in her own right. By referring to Bharat Mata and
Bhuma Devi in the most offensive terms, the petitioner has prima facie
committed the offence under Section 295A of IPC.
14.Section 153A as well as Section 505 (2) of IPC are as follows :
“Promoting enmity between different groups on
ground of religion, race, place of birth, residence,
language, etc., and doing acts prejudicial to
(a) by words, either spoken or written, or by signs
or by visible representations or otherwise, promotes or
attempts to promote, on grounds of religion, race, place
of birth, residence, language, caste or community or any
other ground whatsoever, disharmony or feelings of
enmity, hatred or illwill between different religious,
racials, language or regional groups or castes or
(b) commits any act which is prejudicial to the
maintenance of harmony between different religious,
racial, language or regional groups or castes or
communities, and which disturbs or is likely to disturb
[(c) organizes any exercise, movement, drill or
other similar activity intending that the participants in
such activity shall use or be trained to use criminal force
or violence or knowing it to be likely that the
participants in such activity will use or be trained to use
criminal force or violence, or participates in such activity
intending to use or be trained to use criminal force or
violence or knowing it to be likely that the participants in
such activity will use or be trained to use criminal force
or violence, against any religious, racial, language or
regional group or caste or community and such activity
for any reason whatsoever causes or is likely to cause
fear or alarm or a feeling of insecurity amongst
members of such religious, racial, language or regional
shall be punished with imprisonment which may extend
to three years, or with fine, or with both.
“505(2)-Statements creating or promoting enmity,
hatred or ill-will between classes - Whoever makes,
publishes or circulates any statement or report
containing rumour or alarming news with intent to
create or promote, or which is likely to create or
promote, on grounds of religion, race, place of birth,
residence, language, caste or community or any other
ground whatsoever, feelings of enmity, hatred or illwill
between different religious, racial, language or regional
groups or castes or communities, shall be punished with
imprisonment which may extend to three years, or with
fine, or with both.”
A reading of the petitioner's speech as a whole does not leave any one
in doubt. His target is the Hindu community. He is putting them on one
side and the Christians and Muslims on the other. He is clearly pitting
one group against the other. The distinction is made solely on the
ground of religion. The petitioner repeatedly demeans the Hindu
community. He opened his speech as follows :
“I was born into a Hindu family. My grandfather
was Hindu. Since he thought it fit that his daughter
should leave this gutter, he gave her hands in marriage
to my Christian father. If not for this marriage, I would
have been a possessed man ringing bells at some
“Sudalaimaadan Swamy” temple. The Christian faith
gave us liberation. Hence, we shall continue to
evangelise this faith.”
There is a Devi Temple known as “Mandaikkaadu Amman Kovil” in
Kanyakumari District. It recently witnessed an unfortunate fire accident.
The petitioner has this to say on the incident :
“Mandaikkaadu Amman (Devi) caught fire owing
to deficiencies in “Mantra Puja”. It is understandable.
He (the Brahmin Priest) chants in Sanskrit. He chants
the same Mantra at a wedding which he chants at a
funeral. The fire breakout was bound to happen.”
In several temples in the erstwhile Travancore region, the male
devotees have to enter without wearing any upper garment. They wear
the traditional Dhoti and wrap themselves with a towel. The petitioner
mocks this traditional practice as follows :
“Manothangaraj goes to the Suseendiram temple.
Can he not enter the temple wearing a shirt? Would we
allow someone who looks like he’s returned in a towel
after bathing in a pond to enter our church? We would
say “Get out, you tweak”. Christianity has taught you to
wear a shirt. But you go in without a shirt. Glad you
atleast wore a Veshti (Dhoti).”
The words uttered by the petitioner are sufficiently provocative. They
reek of malice and supremacism. The question is whether the State can
ignore such incendiary statements as that of a lunatic fringe. The
answer has to be in the negative. The petitioner is a charismatic
catholic priest. He commands a large following. Also, Kanyakumari is
not like any other District. Shri.Aravindan Neelakandan who is a native
“Just out of curiosity I checked the religious
demographics of Kanyakumari district in 2011 census. Hindus
have sunk below the crucial 50 percent mark.
The demographic change in Kanyakumari district has
lessons for entire India. Forget not that the present times and
the recent past three decades of this district are in many ways
the future of many districts throughout India.
I remember growing up in a Catholic dominated locality.
We never discriminated. In fact, I never felt the Hindu-
Christian distinction at all. During Christmas going and visiting
nativity scenes had always been a happy memory that brings
pleasantness to heart to this day. I had my first sense of
betrayal when I was taken by my very loving Catholic
neighbors for a drama, they enacted in a church festival. The
drama was about St. Xavier. There St. Xavier would drag the
wife of the priest from behind the idol of the Goddess. The
priest was cheating the people telling them that the Goddess
spoke. And St. Xavier asked everyone to shun the false Gods
and Goddesses and worship the one true god – his Christian
god. I felt so upset. It was traumatic then and it is traumatic
to this day. My mother told that all people worship the one
Truth in various names and to fight like this was wrong. My
Christian neighbours told me that we were lost in the darkness
of false Gods.
Thus, the faultlines got set very early in life for me as it
should have been for many thousands of Hindu children in our
district.
The beginning of all these things go to the kings of
Travancore who allowed missionary works for their political
gains. They saved territory all right but they lost the souls.
This is a point where Mahatma Gandhi and Veer Savarkar had
converged – the lost territory could be gained from the enemy
but the souls lost to the enemy, that is very difficult to recover.
The problem with the change in demography was that
those who got converted got denationalized in the sense they
lost a core national value – respect and reverence for theo-
diversity. They wanted to forge the expansionist monopolistic
worldview on all. Those who fight against conversions do not
regard Jesus as a false god or even a foreign god. They
actually fight against the monopolistic claim that he is the only
god and all other Gods and Goddesses are false. This
monopolistic claim and not the spirituality that is the problem.
It created witch-hunts and burning at stake in the dark
centuries in Europe and it launched the world’s longest
inquisition in India which was recommended to be imposed by
‘St.’Xavier. In Goa St. Xavier ruthlessly destroyed Hindu places
of worship and harassed Hindus while in Kanyakumari district
he is hailed as a saint by the people of very same nation his
recommended inquisition would burn at stake – not just
Hindus but also Jews and Muslims – all Indians.
Okay that is all history and cannot we just see
celebrations as celebrations? We can and we must. But if the
same destructive impulse is still at work, then we cannot and if
we do then it would be suicidal.
Demographic change also challenged the basic national
values and the very sacred geometry of India. Justice Venu
Gopal who inquired into the infamous 1982 Mandaikadu riots
was shocked to see the kind of scheming that went with
planned proselytizing. Place names were getting changed at
village levels. Finally they even had the audacity to propose
the change of name of the district from Kanyakumari to
Kannimary and there was a plan to change Nagerkovil to
(Yesu) Natharcoil. In fact there had been a partial success in
that sometimes even in official communications Kanyakumari
gets the spelling Kanyakumary and Nagerkovil is officially
In those villages where Hindus have been reduced to
minority their lives had been made miserable. From going to
school to conducting their festivals they had to face verbal
humiliations to physical assaults. At times women got
molested. The places of worship were desecrated.
I remember how we spent the nights in fear each time
a Church bell was ringing.
In postcard scenarios the ringing of a church bell meant
joy and happiness but in Kanyakumari district of 1980s it
meant for the Hindus a call for their destruction. We lived the
way Jews lived in a pre-Holocaust German village.
When Hindus retaliated then with the strong media
support only the retaliations and reactions were highlighted in
vacuum. But the retaliation was surely forceful and nothing to
be proud of.
Either way people of the district suffered. But remember
the physical violence starts with psychological violence and
psychological violence comes from the violence embedded in
the propaganda. When one distributes a pamphlet in public
space equating another person's way of worship -worshiping
'idols' in this case- with adultery, the gates of physical violence
have been opened - either as the culmination and fulfilment of
this propaganda or as a sequence of retaliation to this
propaganda. Hate speech is not religious propaganda. Hate
speech is a sin against any truly spiritual tradition.
During elections often evangelical and Islamist forces
join hands to defeat any pro-nationalist political dispensation.
This cuts across the parties. When the great Kamaraj
contested the evangelical dispensation and Islamist politicians
came together and a communal propaganda was launched to
defeat one of the greatest leaders of Tamil society. It
continued since then even with Hindu majority and non-Hindu
population having crossed the 35 percent mark. Now the
combined non-Hindu population had crossed the 50 percent
mark and Hindus though are the single largest religious groups
are still powerless.
But remember one thing. This is not about religion. This
is about theo-diversity. Hindu majority is the protection of all
minorities.
Imagine Catholics of Ireland under the protestant UK –
think of their troubled history. Imagine Ahmadiyas in a Sunni
dominated Pakistan. They cannot even call themselves
Muslims. Imagine Protestants in a Catholic majority society.
Then imagine all these minorities in a Hindu majority society.
You will understand what I am saying. Hindus are not a
religious community. They by their very presence guard the
minorities and their diverse ways.
Destroy that demography because of some perverse
delight of destroying a pagan religion and culture, then dear
minorities you are destroying your real protection, your
sustained protection and you are cutting the very trunk on
which you are sitting.
All a Hindu asks is that let there be mutual respect and
let us live peacefully without proselytizing. In reality that is
what every nation builder of India has said. Destroy that
civilizational harmony and equilibrium – you are actually
destroying yourself.”
The thoughts expressed by Shri.Aravindan Neelakandan are not new.
They rather echo the recommendations made by Hon'ble Mr.Justice
P.Venugopal Commission which was constituted following the communal
riots that took place in the year 1982 at Mandaikkaadu in Kanyakumari
15.The demographic profile of Kanyakumari in terms of religion
has seen an inversion. Hindus became a minority in the District since
1980. Though the 2011 census gives an impression that Hindus are the
largest religious group with their number pegged at 48.5 per cent, that
may not represent the ground reality. One can take judicial notice of
the fact a large number of Scheduled Caste Hindus, though having
converted to Christianity and professing the said religion, call
themselves Hindus on record for the purpose of availing reservation.
Such persons are called as crypto-christians. There was even a motion
picture based on this theme (Rudra Thandavam). Out of courtesy, I
refrain from mentioning the name of a Judge who belonged to such a
category. There was even a writ petition challenging his status.
Everyone pretended as if they did not know the truth. But when he
died, he was buried as per Christian rites in a cemetery. That is why,
notwithstanding the census figures, the petitioner boasts that the
Christians have crossed 62 per cent in Kanyakumari District. He
foresees that they would soon reach the figure of 72 per cent. His
triumphalism is evident when he says “I warn the Hindus” and claims
that nothing can stop their growth.
16.India was partitioned on the ground of religion. Millions died
in the ensuing riots. That is why, our founding fathers consciously
adopted secularism as the guiding principle of the new republic. There
is something truly enchanting about the idea of India propounded by
them. Equality, liberty, fraternity and egalitarianism were real promises
meant to be fulfilled. Freedom of conscience and the right to freely
profess and propagate one's religion was made a fundamental right.
But the tryst with destiny can be achieved only if the multicultural
character of the Indian society continues to remain. In other words, the
status quo in the matter of religious demography has to be maintained.
If there is a serious subversion of the status quo, calamitous
consequences may follow. State is there to maintain and uphold the
rule of law. But if the tipping point is reached, things may become
irreversible. This is in fact the essence of the report of Justice
17.Our Constitution guarantees freedom of conscience as a
fundamental right. If an individual out of personal conviction wants to
change his religion, his choice must be respected. Let me quote from
the autobiography of B.Sen, a great lawyer who practiced in the privy
council and was one of the earliest members of the Supreme Court Bar.
In his book, I find the following passage :
“I had been drawn towards Christianity from my
childhood days but was somewhat put off when I saw how
some of the missionaries in the name of discipline
practiced such abject cruelty on the little charges in the
schools run by them. I had often asked myself where was
that love; the compassion and forgiveness which one
found in the Bible times out of number? Some years later,
I had found the answer in the east of London amidst the
bombed out houses. Then I knew what Christianity really
meant to be. I had gone along with Rev.Dempster, a
Methodist Priest on a tour of the devastated areas, visiting
bereaved families and bringing succour to the sick and
wounded; people had flocked around him in profound
respect for that love of his humanity. From that time, I
started reading the Bible on a daily basis and saying the
Lord's Prayer every morning, but I knew that I had to wait
for the call from Him. I felt that call had come within the
encircling gloom of that dilapidated Church at Srinagar.”
The change of religion by such a person cannot be and ought not to be
objected to. Dileep Kumar became A.R.Rahman. Yuvan Shankar Raja
is now a Muslim. One of the sons of T.Rajendar has embraced Islam.
These are perfectly understandable and no exception can be taken.
But religious conversions cannot be a group agenda. Our Constitution
speaks of composite culture. This character has to be maintained. The
clock of history can never be put back. But the status quo that obtains
in the year 2022 as regards religious demographic profile may have to
be maintained.
18.Of course, I must deal with one major contention of the
petitioner's counsel. He referred to the writings of Dr.Ambedkar who
had condemned Hindu religion and society in the strongest possible
terms. This contention is liable to be rejected in light of the following
“...Communities with a history of deprivation,
oppression, and persecution may sometimes speak in
relation to their lived experiences, resulting in the
words and tone being harsher and more critical than
usual. Their historical experience often comes to be
accepted by the society as the rule, resulting in their
words losing the gravity that they otherwise deserve.
In such a situation, it is likely for persons from these
communities to reject the tenet of civility, as polemical
speech and symbols that capture the emotional loading
can play a strong role in mobilising. Such speech
should be viewed not from the position of a person of
privilege or a community without such a historical
experience, but rather, the courts should be more
circumspect when penalising such speech. This is
recognition of the denial of dignity in the past, and the
effort should be reconciliatory.”
It is too much for the petitioner to be compared with revered leaders
like Dr.Ambedkar. For that matter, a critical or even a harsh statement
pertaining to religion or religious beliefs coming from a rationalist or a
reformist or an academic or an artist would stand on a different footing
altogether. The shield of fundamental right guaranteed under the
Constitution under Article 19(1)(a) would be available to them. We need
Dabholkar, M.M.Kalburgi and many such others in public life and
discourse. Dr.Abraham T Kovoor, who wrote the book “Begone
Godmen! Encounters with Spiritual Frauds”, cannot be said to
have outraged the religious beliefs of Hindus. He was speaking as a
rationalist. The fact that he belonged to Christianity is utterly irrelevant.
When stand-up comedians Munawar Faruqui or Alexander Babu perform
on stage, they are exercising their fundamental right to poke fun at
others. Again, their religious identity is irrelevant. It is here, the “Who?”
and “Where?” tests matter. Section 295A of IPC cannot be invoked in
such cases because the element of malice is wholly absent. The
persons concerned voice their opinions or give vent to their expressions
in their capacity as satirists. On the other hand, an evangelist like the
petitioner cannot claim a similar privilege. He cannot insult or outrage
others' religion or their religious beliefs and still claim immunity from the
application of Section 295A/153A/505(2) of IPC. This is because he
views the other religionists as a constituency to be poached. He cannot
be called a disinterested or neutral commentator. The targeted
religionists are bound to take offence as they fear potential harm to
their interests and well-being. In such an ambience, the Newton's third
law, “every action has an equal and opposite reaction”, may start
operating. The State cannot remain a mute spectator in such situations.
To uphold the sanctity of the Constitution and maintain public order, the
strong arm of law will have to come down heavily on those who seek to
disrupt communal peace and amity. The offending speech of the
petitioner prima facie attracts the offences under Sections 153A, 295A
and 505(2) of IPC. However, the offences under Section 143, 269 and
506(1) of IPC and Section 3 of Epidemic Diseases Act, 1897 are not
made out. The impugned FIR is quashed to this limited extent as far as
the petitioner is concerned. This criminal original petition is partly
allowed. Connected miscellaneous petition is closed.
19.After reading Paul Johnson's book which he describes as “A
Biography from a Believer”, I must say that I fell in love with Lord Jesus
Christ. Did he not say “Beloved, let us love one another, because
love comes from God. Everyone who loves has been born of
God and knows God”?. Recently, the world became poorer on
account of the sad demise of Rev.Desmond Tutu, the great South
African anti-apartheid leader. I only wish that the petitioner reads the
moving tribute paid by Shri.Gopalkrishna Gandhi. I am certain that on
the Judgment Day, God shall admonish the petitioner for having
committed an un-Christian act.
Note: In view of the present lock down owing to COVID-19
pandemic, a web copy of the order may be utilized for official
purposes, but, ensuring that the copy of the order that is
presented is the correct copy, shall be the responsibility of the
advocate/litigant concerned.
Madurai Bench of the Madras High Court, Madurai.
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Offensive words used against "Bharat Mata" and "Bhuma Devi" attract the offence of hurting religious sentiments under Section 295A of the Indian Penal Code, held the Madras High Court while refusing to quash the FIR registered against Catholic Priest George Ponniah.The priest was booked for a derogatory and provocative speech made on July 18 last year during a meeting convened to pay homage...
Offensive words used against "Bharat Mata" and "Bhuma Devi" attract the offence of hurting religious sentiments under Section 295A of the Indian Penal Code, held the Madras High Court while refusing to quash the FIR registered against Catholic Priest George Ponniah.
The priest was booked for a derogatory and provocative speech made on July 18 last year during a meeting convened to pay homage to late activist Fr Stan Swamy in Arumanai town in Kanyakumari district. The speech became viral in social media which ultimately led to the registration of FIR. He later approached the Madras High Court under Section 482 of the Code of Criminal Procedure seeking to quash the FIR.
Considering the plea, Justice GR Swaminathan noted "The petitioner poked fun at those who walk barefoot out of reverence for Mother Earth. He stated that Christians wear shoes so that they won't catch scabies. He painted Bhuma Devi and Bharat Mata as sources of infection and filth. Nothing can be more outrageous to the feelings of the believing Hindus".
The judge further added :
"Section 295A IPC is attracted when there is attack on the religious feelings and beliefs of any class of citizens. It is not necessary that all Hindus should feel outraged. If the offending words outrage the religious feelings or beliefs of even a section of Hindus, the penal provision would be attracted".
The judge observed that Bhuma Devi is considered a Goddess by all believing Hindus.
"Bharat Mata evokes a deeply emotional veneration in a very large number of Hindus. She is often portrayed carrying the national flag and riding a lion. She is to many Hindus a Goddess in her own right. By referring to Bharat Mata and Bhuma Devi in the most offensive terms, the petitioner has prima facie committed the offence under Section 295A of IPC", the judgment stated.
The judgment started by quoting the poem "Bande Mataram" from Bankim Chandra Chattopadhyay's novel "Ananda Math" where the nation was equated with Mother Goddess.
Evangelist stands on a different footing from satirists, artists, academics and rationalists criticising religion
The Court rejected the petitioner's argument that he was making religious criticism. The petitioner had referred to the writings of Dr.Ambedkar criticizing Hindu religion.
"It is too much for the petitioner to be compared with revered leaders like Dr.Ambedkar", the Court observed in this regard.
The Court said that a harsh statement against religion coming from a rationalist, academic or artist stands on a different footing from statements made by a person preaching another religion.
"On the other hand, an evangelist like the petitioner cannot claim a similar privilege. He cannot insult or outrage others' religion or their religious beliefs and still claim immunity from the application of Section 295A/153A/505(2) of IPC. This is because he views the other religionists as a constituency to be poached. He cannot be called a disinterested or neutral commentator. The targeted religionists are bound to take offence as they fear potential harm to their interests and well-being. In such an ambience, Newton's third law, "every action has an equal and opposite reaction", may start operating. The State cannot remain a mute spectator in such situations. To uphold the sanctity of the Constitution and maintain public order, the strong arm of law will have to come down heavily on those who seek to disrupt communal peace and amity".
Offence of promoting communal disharmony attracted
The Court also held that the speech attracted the offence of promotion of communal disharmony under Section 153A of the Indian Penal Code.
"A reading of the petitioner's speech as a whole does not leave anyone in doubt. His target is the Hindu community. He is putting them on one side and the Christians and Muslims on the other. He is clearly pitting one group against the other. The distinction is made solely on the ground of religion. The petitioner repeatedly demeans the Hindu community"
"The words uttered by the petitioner are sufficiently provocative. They reek of malice and supremacism. The question is whether the State can ignore such incendiary statements as that of a lunatic fringe. The answer has to be in the negative. The petitioner is a charismatic Catholic priest".
On religious conversion - status quo of demography to be maintained
Justice Swaminathan also observed that the speech was made in Kanyakumari district, where the Christian population was in the majority.
"The demographic profile of Kanyakumari in terms of religion has seen an inversion. Hindus became a minority in the District since 1980. Though the 2011 census gives an impression that Hindus are the largest religious group with their number pegged at 48.5 per cent, that may not represent the ground reality. One can take judicial notice of the fact a large number of Scheduled Caste Hindus, though having converted to Christianity and professing the said religion, call themselves Hindus on record for the purpose of availing reservation. Such persons are called as crypto-Christians".
In this background, the Court took exception to the petitioner's statements that Christians would reach 72 per cent in Kanyakumari district. Referring to the horrors of partition, which was made on the grounds of religion, Justice Swaminathan said - "But the tryst with destiny can be achieved only if the multicultural character of the Indian society continues to remain. In other words the status quo in the matter of religious demography has to be maintained. If there is a serious subversion of the status quo, calamitous consequences may follow".
While saying that an individual's choice to change religion is protected by the Constitution and must be respected, Justice Swaminathan said that religious conversions cannot be a "group agenda".
"Religious conversions cannot be a group agenda. The clock of history can never be put back. But the status quo that obtains in the year 2022 as regards religious demographic profile may have to be maintained", the judge observed. In this context, the judgment extensively quoted an article written by Aravind Neelakandan where he discussed the changing demographics in Kanyakumari region.
The Court however quashed the offences under Section 143, 269 and 506(1) of IPC and Section 3 of Epidemic Diseases Act, 1897 while sustaining the offences under Sections 295A, 153A and 505(2) of IPC.
In the concluding paragraph of the judgment, Justice Swaminathan said that he fell in love with Jesus after reading Pul Johnson's book "A Biography from a Believer".
"Did he(Jesus) not say "Beloved, let us love one another, because love comes from God. Everyone who loves has been born of God and knows God"?. Recently, the world became poorer on account of the sad demise of Rev.Desmond Tutu, the great South African anti-apartheid leader. I only wish that the petitioner reads the moving tribute paid by Shri.Gopalkrishna Gandhi. I am certain that on the Judgment Day, God shall admonish the petitioner for having committed an un-Christian act", Justice Swaminathan said in conclusion.
Case Title : Fr P. George Ponniah versus The Inspector of Police
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When these applications for condonation of delay in making
and restoration of the application for exemption from
surrendering were listed before me, I enquired from the advocate
for the petitioner the need for seeking an exemption from
surrendering when the order impugned is only a case of cancellation
of bail. He says that the Registry normally insists on filing such
an application and he has no option. When I informed the counsel
that the Rule applies only for Criminal Appeals or Special Leave
Petitions where the petitioner is ‘sentenced to a term of
imprisonment’ and not to SLP’s against cancellation of bail, some
lawyers spoke from the Bar and said that they find it prudent to
file such applications instead of arguing with the Registry without
any success. This is completely unacceptable.
The officers of the Registry must know the Supreme Court Rules
like the back of ones hand. Order XXII Rule 5, applies only to
cases where the petitioner is ‘sentenced to a term of imprisonment’
and it cannot be confused with simple orders of cancellation of
bail. What is disturbing is that a large number of such
applications for exemptions are routinely filed when there is no
need to adopt such a procedure at all. This has serious consequence
of increasing the burden of lawyers, judges and even the Registry.
This is apart from loss of respect for law.
I find it necessary to note this position after Sri Raghenth
Basant, member of the Bar, has brought to my notice successive
orders passed by the Supreme Court holding that applications for
surrender were wrongly filed and that there was no need to insist
on filing of such applications. The officers could have atleast
take note of the following judicial orders, Kapur Singh Vs. State
of Haryana 2021 SCC Online 586, Dilip Majumder v. Nikunja Das &Anr.
SLP (Crl) Dy. No.6517/2020, Vivek Rai v. High Court of Jharkhand
(2015) 12 SCC 86, K.M. Nanavati v. State of Bombay AIR 1961 SC 112
(para 15) and Mayuram Subramanian Srinivasan v. CBI (2006) 5 SCC
752 (paras 16 to 18), to name a few.
Registrar (Judicial) is directed to issue formal instructions
to the concerned filing, scrutiny and numbering Sections with
respect to matters in which Order XX, Rule 3 and Order XXII, Rule 5
will apply. The officer must also instruct them not to insist on
such applications in other cases.
Coming back to the facts of the present case, we note that the
petitioner was arrested for an offence under Section 420 read with
34 IPC. He was granted bail by the High Court subject to payment
of an amount. Upon his failure to pay the amount the High Court
recalled its order granting bail and ordered the petitioner to
surrender. An application to recall that order came to be dismissed
by the impugned order.
A Special Leave Petition was filed against the above referred
order. Along with it an application for exemption from surrendering
is also filed. The advocate should have known that such an
application was totally unnecessary. Chamber Judge granted
exemption. However, as notice was issued on the application,
without a direction to list the case before the regular Court for
admission, the matter kept coming before the Chamber Court. On
10.08.2021 the Chamber Judge directed that the petitioner must pay
balance money within four weeks, if not, the application for
surrendering will be dismissed without reference to the Court. As
the amount was not deposited it was assumed that the application
stands dismissed without reference to the Court. It is for this
reason that the Advocate filed the present application for
All this happened when there is no mandate in law to seek an
exemption from surrendering at all. The Constitutional remedy
under Article 136 is available to the petitioner without
surrendering as this is not a case where the accused is
As this is not a case requiring surrender, there was never a
need to file the application for exemption from surrendering.
However, as an order directing dismissal of the so called
application for exemption from surrendering was passed, I shall
recall that order and direct the case to be listed before the
Regular Bench for admission and disposal.
Delay in filing the application for paying balance amount is
condoned. Application (I.A. No.123405/2021) for restoration of I.A.
No.44732/2021 is allowed.
List the case before the Regular Bench for admission.
A copy of this order be sent to Secretary General, Supreme
Court and Secretary, Supreme Court Advocates on Record Association
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"The officers of the Registry must know the Supreme Court Rules like the back of one's hand."The Supreme Court observed that an application seeking exemption from surrendering is not required to be filed along with a special leave petitions against cancellation of bail orders.Justice Pamidighantam Sri Narasimha, while considering one such case, noted that large number of such applications for exemptions are routinely filed when there is no need to adopt such a procedure...
The Supreme Court observed that an application seeking exemption from surrendering is not required to be filed along with a special leave petitions against cancellation of bail orders.
Justice Pamidighantam Sri Narasimha, while considering one such case, noted that large number of such applications for exemptions are routinely filed when there is no need to adopt such a procedure at all.
"The officers of the Registry must know the Supreme Court Rules like the back of ones hand. Order XXII Rule 5, applies only to cases where the petitioner is 'sentenced to a term of imprisonment' and it cannot be confused with simple orders of cancellation of bail.", the judge said.
Registrar (Judicial) has been directed to issue formal instructions to the concerned filing, scrutiny and numbering Sections with respect to matters in which Order XX, Rule 3 and Order XXII, Rule 5 will apply.
In this case, the petitioner was arrested for an offence under Section 420 read with 34 IPC. He was granted bail by the High Court subject to payment of an amount. Upon his failure to pay the amount the High Court recalled its order granting bail and ordered the petitioner to surrender. An application to recall that order came to be dismissed by the impugned order. A Special Leave Petition was filed against the said order. Along with it an application for exemption from surrendering was also filed.
The Chamber Judge granted exemption and a notice was issued on the application. On 10.08.2021 the Chamber Judge directed that the petitioner must pay balance money within four weeks, if not, the application for surrendering will be dismissed without reference to the Court. As the amount was not deposited it was assumed that the application stands dismissed without reference to the Court. Thus, the petitioner filed the application for restoration.
This time, the application was considered by Justice Narasimha. The judge enquired from the lawyer for the petitioner the need for seeking an exemption from surrendering when the order impugned is only a case of cancellation of bail.
"He says that the Registry normally insists on filing such an application and he has no option. When I informed the counsel that the Rule applies only for Criminal Appeals or Special Leave Petitions where the petitioner is 'sentenced to a term of imprisonment' and not to SLP's against cancellation of bail, some lawyers spoke from the Bar and said that they find it prudent to file such applications instead of arguing with the Registry without any success. This is completely unacceptable.", the judge noted.
Another lawyer, Adv Raghenth Basant, brought to the notice of the judge that successive orders have been passed by the Supreme Court holding that applications for surrender were wrongly filed and that there was no need to insist on filing of such applications. [Kapur Singh Vs. State of Haryana 2021 SCC Online 586, Dilip Majumder v. Nikunja Das &Anr. SLP (Crl) Dy. No.6517/2020, Vivek Rai v. High Court of Jharkhand (2015) 12 SCC 86, K.M. Nanavati v. State of Bombay AIR 1961 SC 112 3 (para 15) and Mayuram Subramanian Srinivasan v. CBI (2006) 5 SCC 752 (paras 16 to 18)]
"All this happened when there is no mandate in law to seek an exemption from surrendering at all. The Constitutional remedy under Article 136 is available to the petitioner without surrendering as this is not a case where the accused is 'sentenced'. As this is not a case requiring surrender, there was never a need to file the application for exemption from surrendering.", the judge said.
The bench therefore recalled the earlier order and directed the case to be listed before the Regular Bench for admission and disposal.
Case name: Mahavir Arya Vs State Govt. NCT Of Delhi
Case no. and Date: SLP(Crl) Diary 8160/2021 | 7 Jan 2022
Coram: Justice PS Narasimha
|
This is an application for cancellation of bail by resorting to
the provision of Section 439 (2) of the Code of Criminal Procedure.
2. The applicant, who was then still less than 18 years of age, set
the criminal law in motion by filing an FIR on 17.12.2019 on the basis of
which offence was registered under Sections 376, 417, 506 of the Indian
Penal Code and under Sections 4 and 12 of the Protection of Children from
Sexual Offences Act, 2012 (“POCSO Act”, for short) against respondent
No.2. Apprehending his arrest, he filed application seeking anticipatory bail
before the Sessions Court, Jalgaon. By the impugned order, the learned
Additional Sessions Judge granted anticipatory bail to respondent No.2.
Being aggrieved and dissatisfied by the order granting anticipatory bail, the
applicant is before this Court.
3. The learned Advocate for the applicant would submit that
though the offence is serious and also covers the provisions of the POCSO
Act, the learned Additional Sessions Judge without applying his mind and in
a cryptic manner, decided the application by the impugned order and
granted anticipatory bail merely for asking. He would submit that though the
informant was still a minor and though the learned Additional Sessions
Judge appreciated the fact that her consent would not matter, by making
flimsy observation that she had sufficient maturity and that there was some
delay in lodging the FIR, has readily granted anticipatory bail to respondent
No.2. The approach of the learned Additional Sessions Judge was clearly in
dereliction of the settled norms and the anticipatory bail granted to
respondent No.2 be cancelled.
4. The learned Advocate for respondent No.2 submits that the
discretion vested in the learned Additional Sessions Judge, which he has
exercised for the plausible reasons based on the facts and circumstances of
the case. The parameters for cancellation of bail stand on a different
footings. This Court may not substitute its discretion in place of the
discretion exercised by the learned Additional Sessions Judge.
5. One need not delve as to the seriousness of the crimes under
the POCSO Act. The very object of its being on the Statute book is indicative
of its seriousness.
6. The applicant, stated to be 18 years of age, lodged the FIR,
alleging that when she was studying in 9th standard in the year 2014-2015,
respondent No.2 started stalking her. Since he was her distant relative, he used
to keep coming to her house. She further alleged that during that period, he
clandestinely effected entry into the house from a backside door and committed
rape on her. He also threatened her of consequences if the incident was
disclosed. She further alleged that even thereafter he continuously stalked her
and threatened her. Pertinently, she alleges that he used to come frequently to
her house and used to have sexual intercourse. She has also stated that
sometimes, he used to use contraceptive. Since she was afraid, she never
disclosed this fact to anybody. She further alleges that when she alongwith a
social worker and her mother went to lodge a report with the Police Station, the
mother of respondent No.2 somehow persuaded them not to lodge the
complaint by promising that she would accept her as her daughter-in-law. She
would further allege that even respondent No.2
once got executed a writing on a stamp paper from her illiterate mother,
stating that there was an affair between the two and with her consent, they
both had indulged in sex. It was promised that since she was still a minor,
the marriage would be performed after she completed 18 years of age.
However, lateron, respondent No.2 and his mother backed off from the
promise and the FIR was lodged.
7. One can easily conclude that going by the allegations
respondent No.2 has sexually exploited the applicant for a sufficiently long
period, since she was around 16 years of age. The papers of investigation
would further corroborate the applicant’s version about execution of a writing
on a stamp paper of Rs.500/-. Respondent No.2 and his family seem to be
so influential that they could get executed this writing from the applicant and
her widowed mother. The very fact that they could get such writing executed
is indicative and is sufficient to infer that respondent No.2 had indulged in
sex with the applicant even when she was merely 16 years of age.
Pertinently, this writing also bears his signature and signature of his mother.
8. If such is the state-of-affair, the impugned order passed by the
learned Additional Sessions Judge is indeed atrocious. The only reason that
can be found in the impugned order, which weighed with the learned Judge
is contained in paragraph 6, which reads as under :
“The alleged incident first occurred during the year 2014-15
when the Victim was alone in the house. The accused is
admittedly known to be Victim and her family and that they are
distantly related. No doubt, the Victim being less than 18 years
old at the relevant time. There was no question of her consent
for the so called relations, which were later on portrayed to be
consensual. Yet the fact remains that the Victim though minor
had sufficient maturity as to what unfortunate incident had
happened with her, wherein she has with meticulous details
mentioned about use of contraceptive by the Applicant. The
applicant had aid and advice of independent adviser as per her
own version and yet there is no explanation for this belated
lodging of FIR. The possibility of false implication of the
Applicant who is now a public servant cannot be ruled out. It is
therefore, that I am inclined to grant anticipatory bail, subject to
stringent conditions so as to ensure that the investigation is not
hampered and Applicant’s liberty is not unjustifiedly curtailed.”
9. The approach of the learned Judge from such a reasoning clearly
shows his utter lack of sensitivity in such serious matters. Inspite of having
noted that the applicant was still a minor when respondent No.2 had sexually
exploited her and inspite of observing that her consent would be immaterial, he
has concluded that it was a consensual relation. Astonishingly, merely because
she has mentioned in the FIR about use of contraceptive by respondent No.2,
the learned Judge has jumped to the conclusion that she was having sufficient
maturity. The height is committed by the learned Additional Sessions Judge
even to record an observation that there is a possibility of false implication of
respondent No.2. Such an approach is a clear indication that the learned Judge
utterly lacks competence. It is indeed a matter which deserves a serious
consideration. The learned Judge has clearly deprived the Investigating Officer
interrogate respondent No.2 by granting anticipatory bail merely for asking.
The reasoning resorted to by the learned Additional Sessions Judge clearly
undermines the legal principles and parameters, which should weigh with
the Court in entertaining the application for anticipatory bail as laid down by
the Supreme Court in catena of judgments, as recently as in the case of
Sushila Aggarwal Vs. State (NCT of Delhi) & Another; (2020) 5 SCC 1.
10. Considering all the above mentioned facts and circumstances,
this is a case where it can easily be concluded that the learned Additional
Sessions Judge has not exercised the discretion vested in him judiciously.
The order being clearly perverse, arbitrary and capricious, the application
deserves to be allowed and the impugned order granting anticipatory bail to
respondent No.2 is liable to be quashed and set aside.
11. The application is allowed. The anticipatory bail granted to
respondent No.2 by the learned Additional Sessions Judge, Jalgaon by the
impugned order, is quashed and set aside. Respondent No.2 shall surrender
before the Investigating Officer immediately.
12. A copy of this order be forwarded to the Registrar General of
this Court for placing it before the Hon’ble the Chief Justice.
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The Supreme Court on Monday asked a 23-year old man, who stands accused of raping a minor girl when she was aged around 16 years, whether he will marry her.A bench headed by the Chief Justice of India was hearing a special leave petition filed by the man, who is now a government servant in Maharashtra, against an order of the Bombay High Court(Aurangabad Bench) which cancelled his...
The Supreme Court on Monday asked a 23-year old man, who stands accused of raping a minor girl when she was aged around 16 years, whether he will marry her.
A bench headed by the Chief Justice of India was hearing a special leave petition filed by the man, who is now a government servant in Maharashtra, against an order of the Bombay High Court(Aurangabad Bench) which cancelled his anticipatory bail(Case : Mohit Subhash Chavan v State of Maharashtra).
"Will you marry her?", CJI SA Bobde asked the petitioner's lawyer when the matter was taken.
"I will take instructions", Advocate Anand Dilip Langde, petitioner's lawyer responded and sought a pass over. The lawyer submitted that his client was a government servant who will be suspended from service if arrested in the case. The petitioner, Mohit Subhash Chavan, presently aged 23 years, was accused of raping a 16 year old girl during 2014-15.
"You should have thought before seducing and raping the young girl. You know you are a government servant", the CJI replied.
"We are not forcing you to marry. Let us know if you will. Otherwise you will say we are forcing you to marry", the CJI added.
When the case was taken again after other matters, the lawyer informed that marriage was not possible as the petitioner had married someone else. The lawyer added that the petitioner initially wanted to marry her but she refused.
After that, the bench dismissed the petition giving him liberty to seek regular bail. The bench, also comprising Justices AS Bopanna and V Ramasubramanian, also granted the petitioner protection from arrest for four weeks.
The FIR against the petitioner was lodged in 2019 under Sections 376, 417, 506 of the Indian Penal Code and under Sections 4 and 12 of the Protection of Children from Sexual Offences Act, 2012 ("POCSO Act") by the girl.
The girl alleged that during 2014-2015, when she around 16 years of age and was studying in the ninth standard, the accused used to stalk her. Since he was her distant relative, he used to keep coming to her house. She further alleged that during that period, he clandestinely entered into the house from a backside door and committed rape on her. He also threatened her of consequences if the incident was disclosed. She further alleged that even thereafter he continuously stalked her and threatened her. She alleged that he used to come frequently to her house and used to have sexual intercourse.She has also stated that sometimes, he used to use contraceptive. Since she was afraid, she never disclosed this fact to anybody.
It was further alleged that when she tried to lodge a police complaint with the help of a social worker, the mother of the accused dissuaded her from it saying that she will accept her a as a daughter-in-law. She further alleged that the petitioner once got executed a writing on a stamp paper from her illiterate mother,stating that there was an affair between the two and with her consent, they both had indulged in sex. It was promised that he will marry her after she attained majority.
However, the accused backtracked from his promise and married someone else.
After the accused was granted anticipatory bail by the Sessions Court, the girl approached the Bombay High Court seeking its cancellation.
In the order cancelling his anticipatory bail, the Bombay High Court observed that the accused had sexually exploited the girl for a sufficiently long period.
"One can easily conclude that going by the allegations respondent No.2(the accused) has sexually exploited the applicant for a sufficiently long period, since she was around 16 years of age. The papers of investigation would further corroborate the applicant's version about execution of a writing on a stamp paper of Rs.500/-. Respondent No.2 and his family seem to be so influential that they could get executed this writing from the applicant and her widowed mother. The very fact that they could get such writing executed is indicative and is sufficient to infer that respondent No.2 had indulged in sex with the applicant even when she was merely 16 years of age. Pertinently, this writing also bears his signature and signature of his mother".
The High Court even went to the extent of saying that the Sessions Court's order granting bail was "atrocious". The Sessions Court observed though the girl was a minor, she was of "sufficient maturity" as she "has with meticulous details mentioned about use of contraceptive" by the accused.
Taking strong exception to the "lack of sensitivity" shown by the Sessions Court, Justice Mangesh S Patil of the High Court observed:
"The approach of the learned Judge from such a reasoning clearly shows his utter lack of sensitivity in such serious matters. Inspite of having noted that the applicant was still a minor when respondent No.2 had sexually exploited her and inspite of observing that her consent would be immaterial,he has concluded that it was a consensual relation. Astonishingly, merely because she has mentioned in the FIR about use of contraceptive by respondent No.2, the learned Judge has jumped to the conclusion that she was having sufficient maturity. The height is committed by the learned Additional Sessions Judge even to record an observation that there is a possibility of false implication of respondent No.2. Such an approach is a clear indication that the learned Judge utterly lacks competence. It is indeed a matter which deserves a serious consideration"
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2. Assailing the order dated 22.7.2021 passed in Criminal
RC(MD) No. 379 of 2021 and Crl. MP (MD) No. 3829 of 2021 by
the Madras High Court, Madurai Bench, confirming the order
dated 13.5.2021 of the respondent No. 1 in MC No. 95 of 2021
(A3), the present appeal has been filed by the appellant.
3. The facts in brief are, the respondent No. 1 and the
High Court found the appellant guilty for breach of the
conditions of bond and punished him in exercise of power under
Section 122(1)(b) of the Code of Criminal Procedure (in short
“Cr.P.C.”). The orders impugned indicate that the appellant was
indulged in criminal activities, however, the respondent No. 1
after notice and affording opportunity, passed order on
24.2.2021 under Section 117 read with Section 110(e) Cr.P.C..
In compliance, the appellant executed a bond to maintain good
behaviour and peace for a period of one year and also undertook
to pay Rs. 50,000/ as penalty to the Government in case of
breach or else face the proceedings under Section 122(1)(b)
Cr.P.C. Even on execution of bond, he was found involved in an
offence of commission of murder, registered by Uchipuli Police
Station as Crime No. 149 of 2021 under Sections
147/148/342/302 read with 109/120(B) IPC. The respondent
No. 1 vide order dated 13.5.2021 found him guilty for breach of
bond however, ordered his arrest and sent him to the custody.
The said order has been affirmed by the High Court, however,
this appeal has been filed challenging both the orders.
4. Shri A. Velan, learned counsel appearing for the
appellant has strenuously urged that the orders passed by the
administrative authorities usually do not follow the procedure
prescribed and afford reasonable opportunity. The High Court of
Delhi in the case of Aldanish vs. State of NCT of Delhi 2018
SCC online Del 12207 issued the guidelines to impart training to
these officers. Reliance has also been placed on the judgment of
Madras High Court in the case of Devi vs. Executive
Magistrate (Mad HC) 2020 SCC online Mad 2706, wherein the
High Court taking a different view from the previous judgment
directed to place the matter before Hon’ble the Chief Justice for
constituting the Division Bench to hear the similar issue.
Learned counsel has also placed reliance on a judgment of this
Court in Prem Chand vs. Union of India (1981) 1 SCC 639
specifying the manner, in which the police personnel must act
upon, but the personal liberty cannot be put into peril on their
mercy. Further, placing reliance on the judgment of this Court in
the case of Gopalanachari vs. State of Kerala 1980 (Supp)
SCC 649, learned counsel emphasized the importance of Article
21 of the Constitution of India and its significance. In view of
the said submissions, imposition of conditions in the bond
without due enquiry and affording reasonable opportunity is
wholly unjustified, and appellant cannot be held guilty and may
be sent to the custody unceremoniously.
5. On the other hand, Dr. Joseph Aristotle S., learned
counsel representing the respondents contends that eight
criminal cases were pending against the appellant, therefore
bond of good behaviour was taken in exercise of the power under
Section 117 Cr.P.C. asking security. On violation of the said
bond, by virtue of the powers conferred under Section 122(1)(b)
Cr.P.C., the order impugned has rightly been passed. It is
urged that Chapter VIII of Cr.P.C. confer powers to the Executive
Magistrate for taking bond to keep the peace and security for
good behaviour from the suspected persons. Appellant gave the
undertaking on breach of conditions of bond due to which he
may be dealt with as per Section 122(1)(b) Cr.P.C. Later,
appellant was found involved in an offence of commission of
murder, however a show cause notice was issued fixing date for
appearance on 7.5.2021. In the reply filed by appellant,
execution of the bond has not been disputed and making him
accused in a murder case has also not been denied, except to
controvert that without proving guilt, he may not be responsible
for the said act. The competent authority affording opportunity
to the appellant, has rightly passed the order on 13.5.2021 on
establishing violation of the terms of the bond executed on
24.2.2021 by the appellant. It is urged procedure as
contemplated has been followed by the respondents, however,
interference was not called by the High Court, to which
interference under Article 136 of Constitution is not warranted.
6. After hearing learned counsel for the parties and on
perusal of record, it appears that from 2012 to January, 2021,
eight criminal cases were registered against the appellant,
including of simple and grievous hurt, theft and also under the
Arms Act. After the report received from the respondent No. 2,
a show cause notice was issued to the appellant and enquiry
was conducted by respondent No. 1. In furtherance thereto, his
statement was recorded and the response had also been taken.
The respondent No. 1 recorded the satisfaction that the
appellant might cause breach of peace in the locality, however
directed him to furnish a bond to the sum of Rs. 50,000 without
surety for a period of one year under Section 117 Cr.P.C.,
failing which he may serve the imprisonment under Section
122(1)(a) Cr. P.C. or in case of breach of conditions, recourse of
Section 122(1)(b) Cr.P.C. may be taken. The contents of the
bond executed by the appellant are relevant hence reproduced
This case was initiated in the court of 2nd Class
Magistrate and Tahsildar, Ramanathapuram on the
basis of case registered in Uchipuli Police Station. This
person was produced before this Court on 24.2.2021.
Enquiry was conducted in the court and the provisions
mentioned in show cause notice issued was explained to
MARAVETTIVALASAI, in detail statement and
arguments of the parties were taken.
Considering all these facts and the information
received from inquiry, this Court has arrived at the
conclusion at the person Name Devadhasan 28/21, s/o
DEIVENTHIRAN is likely to create Breach of Peace in the
locality and therefore shall be bound u/s 117 Cr.P.C. by
using a bond for Rs. 50,000/ without sureties, for a
period of one year from.
Thus, this Court of Second Class Ex. Magistrate
and Tahsildar, Ramanathapuram hereby ordered to
execute a Bond for Rs. 50000/ without sureties, for a
period of 1 year from 24.2.2021 failing which he shall
serve imprisonment for the above mentioned u/s 122(1)
(a) in case of breach conditions during the period of
bond the individual state be imprisonment for the
remaining period u/s 122 (1)(b).
7. After execution of bond, on 31.3.2021 Crime No. 141 of
2021 was registered joining the appellant as coaccused for the
offences under Sections 147/148/342/302 r/w 109/120(B) IPC
at P.S. Uchipuli, Ramanathapuram and breached the terms and
conditions of the bond. A show cause notice was issued asking
the response and also sought appearance of appellant before
the respondent No. 1 on 7.5.2021. He submitted his explanation
and his statement was recorded. The respondent No. 1 affording
opportunity passed the order on 13.5.2021 holding the
appellant guilty for violation of the terms and conditions of the
bond and punished under Section 122(1)(b) Cr.P.C. In
pursuance of the order, he is arrested and sent to prison. It is to
observe that Chapter VIII of Cr.P.C. confer powers to the
Executive Magistrate to take bond for maintaining security and
for keeping the peace and good behaviour by the citizens. As per
Section 107 Cr.P.C, on receiving the information, that any
person is likely to commit a breach of peace or disturb the public
tranquility or to do any wrongful act, the Executive Magistrate
may have power to show cause on violation of the terms of the
bond so executed for maintaining peace. As per Section 108 of
Cr.P.C., similar power has been given for maintaining the
security for good behaviour from persons disseminating
seditious matters. Similarly, to take security for good behaviour
from suspected persons and habitual offenders, powers under
Sections 109 and 110 Cr.P.C. have been conferred upon the
Executive Magistrate. In the present case, the order was passed
under Sections 111 and 117 Cr.P.C. for security. On violation,
recourse, specified under Section 122 Cr.P.C. is permissible.
Therefore, the Legislature introduced the said Chapter conferring
powers on the authorities to take action for violation of peace
and tranquility in public order by the citizens of the locality,
otherwise, by following the procedure as prescribed, the action
may be taken by the competent authority.
8. Learned counsel for the appellant has heavily relied
upon the directions issued by the Delhi High Court as well as
Madras High Court in the cases of Aldanish & Devi (supra)
emphasizing in general that the administrative officers do not
follow the procedure, so prescribed and also relied upon the
judgment of Gopalanachari (supra) emphasizing the
importance of Article 21 of the Constitution of India affecting
personal liberty of the citizens. But, in the facts of the case at
hand, nothing has been brought on record that how and in what
manner the procedure contemplated under Chapter VIII of
Cr.P.C. has not been followed. It is a trite law that by following
the procedure established by law, the personal liberty of the
citizens can be dealt with. Looking to the facts of this case, the
bond executed by the appellant on 24.2.2021 under Section
110 read with Section 117 Cr.P.C. has been violated by him on
account of his involvement in a criminal case, registered
subsequently. In the present case, the bond executed by the
appellant has not been questioned. In fact, the subsequent
action of passing the order dated 13.5.2021 sending him to the
custody due to violation of the bond as per the mandate of law
has been assailed. As per the discussion made hereinabove, in
our considered opinion, the order passed by respondent No. 1 is
after following the procedure, so prescribed and affording due
opportunity to the appellant. The High Court has rightly
affirmed the said order. In the facts, the argument advanced by
the learned counsel for the appellant cannot be countenanced.
9. In view of the discussion made hereinabove, we are of the
considered view that the orders passed by the High Court and
respondent No. 1 do not call for any interference. Therefore, this
appeal is bereft of any merit, hence dismissed.
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While upholding an order of detention passed by an Executive Magistrate, the Supreme Court has explained the scheme of Chapter VII of the Code of Criminal Procedure which contains provisions relating to bond for keeping peace and good behaviour and also the consequences flowing from the breach of such bond.The Court explained the provisions as follows :Chapter VIII of Cr.P.C. confer powers to...
While upholding an order of detention passed by an Executive Magistrate, the Supreme Court has explained the scheme of Chapter VII of the Code of Criminal Procedure which contains provisions relating to bond for keeping peace and good behaviour and also the consequences flowing from the breach of such bond.
The Court explained the provisions as follows :
Chapter VIII of Cr.P.C. confer powers to the Executive Magistrate to take bond for maintaining security and for keeping the peace and good behaviour by the citizens.
As per Section 107 Cr.P.C, on receiving the information, that any person is likely to commit a breach of peace or disturb the public tranquility or to do any wrongful act, the Executive Magistrate may have power to show cause on violation of the terms of the bond so executed for maintaining peace.
As per Section 108 of Cr.P.C., similar power has been given for maintaining the security for good behaviour from persons disseminating seditious matters. Similarly, to take security for good behaviour. from suspected persons and habitual offenders, powers under Sections 109 and 110 Cr.P.C. have been conferred upon the Executive Magistrate.
On violation, recourse, specified under Section 122 Cr.P.C. is permissible.
A bench comprising Justice Indira Banerjee and Justice J K Maheshwari observed :
"Therefore, the Legislature introduced the said Chapter conferring powers on the authorities to take action for violation of peace and tranquility in public order by the citizens of the locality, otherwise, by following the procedure as prescribed, the action may be taken by the competent authority."
The Court further observed that it is a trite law that by following the procedure established by law, the personal liberty of the citizens can be dealt with.
The bench was considering a Special Leave Petition assailing Madras High Court's order of upholding the order passed by the Second Class Executive Magistrate.
The Second Class Executive Magistrate had found the appellant guilty for breach of the conditions of bond which was executed for maintaining good behavior and peace for a period of 1 year and punished him by exercising powers u/s 122(1)(b) of the CrPC, 1973.
While dismissing the appeal in Devadassan v. The Second Class Executive Magistrate, Ramanathapuram & Ors, the bench said,
"In the facts of the case at hand, nothing has been brought on record that how and in what manner the procedure contemplated under Chapter VIII of Cr.P.C. has not been followed. It is a trite law that by following the procedure established by law, the personal liberty of the citizens can be dealt with. Looking to the facts of this case, the bond executed by the appellant on 24.2.2021 under Section 110 read with Section 117 Cr.P.C. has been violated by him on account of his involvement in a criminal case, registered subsequently. In the present case, the bond executed by the appellant has not been questioned. In fact, the subsequent action of passing the order dated 13.5.2021 sending him to the custody due to violation of the bond as per the mandate of law has been assailed. As per the discussion made hereinabove, in our considered opinion, the order passed by respondent No. 1 is after following the procedure, so prescribed and affording due opportunity to the appellant. The High Court has rightly affirmed the said order. In the facts, the argument advanced by the learned counsel for the appellant cannot be countenanced."
Factual Background
The appellant ("Devadassan") was indulged in criminal activities but the Second Class Executive Magistrate after notice and affording opportunity passed an order u/s 117 r/w Section 110(e) CrPC, 1973. In compliance the appellant executed a bond for maintaining good behavior and peace for a period of one year and also undertook to pay Rs. 50,000/ as penalty to the Government in case of breach or else face the proceedings under Section 122(1)(b) Cr.P.C.
On execution of bond, he was found involved in an offence of commission of murder and an crime was registered against him u/s 147/148/342/302 r/w 109/120(B) IPC. Thus the Second Class Executive Magistrate found him guilty for breach of bond, ordered his arrest and sent him to custody. Aggrieved, the appellant approached the High Court. The High Court however upheld the order passed by the Magistrate.
Submission Of Counsel
Appearing for the appellant, Advocate A. Lakshminarayanan submitted that the orders were passed without following the procedure prescribed and afford reasonable opportunity.
Reference was also made to the Delhi High Court judgement in Aldanish vs. State of NCT of Delhi 2018 SCC online Del 12207, Madras High Court's judgement of Devi vs. Executive Magistrate (Mad HC) 2020 SCC online Mad 2706 and Top Court's judgements in Prem Chand vs. Union of India (1981) 1 SCC 639 and Gopalanachari vs. State of Kerala 1980 (Supp) SCC 649, to highlight that Courts have expressed concerns about Executive Magistrate's exercising power in a cavalier manner.
Appearing for the State, Advocate Dr. Joseph Aristotle S submitted that eight criminal cases were pending against the appellant, therefore a bond of good behaviour was taken while exercising power u/s 117 CrPC asking security. He further submitted that the impugned order was passed rightly as the order was passed rightly by exercising powers u/s 122(1)(b) on violation of the bond. It was also the counsel's contention that the Magistrate had followed the procedure contemplated.
Supreme Court's Analysis
With regards to the judgements referred by the appellant's counsel such as Aldanish vs. State of NCT of Delhi 2018 SCC online Del 12207, Devi vs. Executive Magistrate (Mad HC) 2020 SCC online Mad 2706 and Gopalanachari vs. State of Kerala 1980 (Supp) SCC 649, the bench said,
"In the facts of the case at hand, nothing has been brought on record that how and in what manner the procedure contemplated under Chapter VIII of Cr.P.C. has not been followed. It is a trite law that by following the procedure established by law, the personal liberty of the citizens can be dealt with. Looking to the facts of this case, the bond executed by the appellant on 24.2.2021 under Section 110 read with Section 117 Cr.P.C. has been violated by him on account of his involvement in a criminal case, registered subsequently. In the present case, the bond executed by the appellant has not been questioned. In fact, the subsequent action of passing the order dated 13.5.2021 sending him to the custody due to violation of the bond as per the mandate of law has been assailed. As per the discussion made hereinabove, in our considered opinion, the order passed by respondent No. 1 is after following the procedure, so prescribed and affording due opportunity to the appellant. The High Court has rightly affirmed the said order. In the facts, the argument advanced by the learned counsel for the appellant cannot be countenanced."
Case Title: Devadassan v. The Second Class Executive Magistrate, Ramanathapuram & Ors.| Criminal Appeal No. 388 of 2022
Coram: Justices Indira Banerjee and JK Maheshwari
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Heard learned counsel for the parties.
We are appalled to notice that the appellant is in
jail in connection with the crime registered by FIR No.
226 of 2009 for more than 12 years and the trial is still
not concluded.
Resultantly, in the interest of justice, we direct
that, during the pendency of Sessions Trial No.3(1) 2010
pending before Additional District & Sessions Judge, Fast
Track Court-I, Sealdah, South 24 Parganas, the appellant
(Rakesh Mishra) be released on bail to the satisfaction
of the Trial Court in connection with FIR No. 226 of 2009
registered at Police Station-Berlkeldbanga, District-EST
Kolkata, West Bengal and on such terms and conditions as
may be imposed by the Trial Court.
As a result, we set aside the impugned order passed
by the High Court. The appeal is allowed in the above
We further direct the Trial Court to ensure that the
trial is concluded not later than six months from receipt
of copy of this order and submit compliance in that
regard within the same period.
Pending applications, if any, stand disposed of.
Petition(s) for Special Leave to Appeal (Crl.) No(s). 5772/2020
(Arising out of impugned final judgment and order dated 07-07-2020
in CRM No. 3060/2020 passed by the High Court At Calcutta)
Date : 18-01-2021 These matters were called on for hearing today.
UPON hearing the counsel the Court made the following
Leave granted.
The criminal appeal is allowed in terms of the signed order.
Pending applications, if any, stand disposed of.
[Signed order is placed on the file]
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The Supreme Court, on Monday, granted bail to an under trial who is in jail for more than 12 years in connection with a crime registered in 2009. "We are appalled to notice that the appellant is in jail in connection with the crime registered by FIR No. 226 of 2009 for more than 12 years and the trial is still not concluded. ", the bench comprising Justices AM Khanwilkar, BR Gavai and... The Supreme Court, on Monday, granted bail to an under trial who is in jail for more than 12 years in connection with a crime registered in 2009. "We are appalled to notice that the appellant is in jail in connection with the crime registered by FIR No. 226 of 2009 for more than 12 years and the trial is still not concluded. ", the bench comprising Justices AM Khanwilkar, BR Gavai and Krishna Murari said while granting bail to Rakesh Mishra, an accused in a murder case. The bench, therefore, 'in the interest of justice', directed that he be released on bail to the satisfaction of the Trial Court on such terms and conditions as may be imposed by it. The court further directed the Trial Court to ensure that the trial is concluded not later than six months from receipt of copy of the order. The court was considering an appeal against the order passed by Calcutta High Court in the bail petition filed by him on the ground that his father recently expired.
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1. This appeal arises out of an unfortunate dispute between the
appellant no.1 - wife and the respondent no.1 - husband over the custody of
their minor male child Aaditya Kiran. This appeal takes an exception to the
Judgment and order dated 31 st August 2021 passed by the learned Single
Judge of the Punjab and Haryana High Court in a petition for habeas
corpus filed by the respondent no.1 herein for seeking custody of the minor.
2. The respondent no.1 and the appellant no.1 were married in New
York, United States of America (for short “USA”) on 13 th January 2011. The
child was born in USA on 21st January 2016. Thus, the child is a citizen of
USA by birth and is holding a USA passport. Unfortunately, the child was
diagnosed with hydronephrosis which required surgery. It is the case of the
respondent no.1 that as they were not in a position to secure an
appointment of a doctor in USA for surgery, it was agreed between the
appellant no.1 and the respondent no.1 that the child will undergo surgery
at Max Hospital, Saket. As the child is a citizen of USA, consent for
international travel with one legal guardian was executed by and between
the appellant no.1 and the respondent no.1 on 4 th February 2019. The
consent was recorded in the said document to enable the child to travel with
the mother – the appellant no.1 to India. The consent was executed for the
period between 5th February 2019 to 26th September 2019. The consent
document recorded that the child will be leaving USA on 5 th February 2019
and will be returning back to USA on 26 th September 2019. It was further
recorded that any changes to this plan shall be discussed and consented to
by both the parents. A certificate dated 17 th September 2019 issued by Dr.
Anurag Krishna, Director, Paediatrics and Paediatric Surgery of Max
Hospital, Saket, New Delhi records that the child underwent a surgery on
14th March 2019. It records that he had examined the child on 12 th July
2019 when he found that the child was doing well. Dr. Anurag Krishna has
recorded that the child needs to be reviewed 6 to 7 months post-surgery
along with a fresh ultrasound and renal scan.
3. It is the case of the respondent no.1 that at the time of surgery, he
flew down to India. After the surgery, he returned to USA for his work. It is
brought on record that the respondent no.1 has a status of permanent
resident in USA which is valid up to 16 th August 2031. According to the
case of the respondent no.1, the appellant no.1 violated the international
travel consent by not allowing the minor child to come back to USA by 26 th
September 2019. According to the respondent no.1, the appellant no.1
detained the minor in her illegal custody in India. Therefore, the respondent
no.1 filed a petition on 30th January 2020 before the Circuit Court of Benton
County, Arkansas, USA, which according to the respondent no.1 is the
Court of competent jurisdiction. The petition was filed for seeking primary
care, control, and custody of the minor on account of his wrongful detention
outside USA. On 3rd February 2020, the Circuit Court passed an interim
order granting primary care, custody, and control of the minor child to the
respondent no.1 and directed the appellant no.1 to return the child to the
respondent no.1. In the petition for habeas corpus filed by the respondent
no.1 in the High Court, he has stated that though a copy of the said order of
the Circuit Court was forwarded to the appellant no.1 by email, she
continues to detain the minor child in India. In the circumstances, the
respondent no.1 filed a petition seeking a writ of habeas corpus in the High
Court of Punjab and Haryana and prayed for a direction to the State of
Haryana to secure the release of the minor child from the illegal custody of
the present appellants. The appellant nos.2 and 3 are the parents of the
appellant no.1 who are residents of Gurgaon in Haryana. At present, the
appellant no.1 is staying with them. Various interim orders were passed in
the said petition from time to time. The High Court appointed a learned
counsel as amicus curiae, who interacted with the appellant no.1 as well as
the respondent no.1 on phone/WhatsApp calls with a view to ascertain their
respective stands. He also submitted a report. By the impugned Judgment
and order, the writ petition filed by the respondent no.1 was allowed. In
paragraph 55, the High Court issued following directions: -
“(i) respondent No.2 is directed to return to USA
along with minor child on or before 30.09.2021;
(ii) in case respondent No.2 opts to return to USA,
the petitioner shall bear the travel and incidental
expenses of respondent No.2 and the minor child
for return to and also the expenses for their stay
in USA till decision of the custody petition and the
petitioner shall not initiate any criminal/contempt
proceedings against respondent No.2 for inter
(iii) if respondent No.2 fails to comply with
aforesaid direction, respondent No.2 shall hand
over custody of the minor child and his passport
to the petitioner on 01.10.2021 or on such other
(iv) in case respondent No.2 fails to hand over
custody of the minor child and her passport to the
petitioner on 01.10.2021 or on such other date as
may be agreed to by the petitioner, respondent
No.1 shall take over the custody and passport of
the minor child from respondent No.2 and hand
over custody and passport of the minor child to
the petitioner on such date as may be agreed to
(v) on custody of the minor child and his passport
being handed over to the petitioner, the petitioner
shall be entitled to take the minor child to USA;
(vi) in case passport of the minor child is not
handed over to the petitioner or respondent No.1
by respondent No.2 on the ground of loss/damage
etc., the petitioner shall be entitled to get the
duplicate passport issued from the concerned
(vii) on such return of the minor child to USA,
either of the parties shall be at liberty to revive the
proceedings before US Court for appropriate
orders regarding appointment of guardian and
grant of custody of the minor child.”
4. Further directions were issued in paragraphs 57 and 58 by the High
Court based on a decision of this Court in the case of Yashita Sahu v.
State of Rajasthan1. Paragraphs 57 and 58 read thus:-
Sahu's case (supra) it is ordered that till filing of
any such application by either of the parties for
revival of the proceedings before the US Court
and passing of any interim/final order by the US
Court of competent jurisdiction on the same,
respondent No.2 shall be entitled to visit the child
and have his temporary custody from 10:00 a.m.
between the petitioner and respondent No.2 if
respondent No.2 returns to and stays in USA or
make video calls to the minor child for about half
respondent No.2 does not return to and stay in
USA and in such an eventuality, the petitioner
parents/other relatives once in a year.
58. However, nothing in this order shall prevent
the parties from adopting any joint parenting plan
minor child such as by arranging admission of
the minor child in some school with hostel facility
and by visiting her during holidays and taking her
custody during vacation as may be permitted by
the school authorities. It is also further clarified
that the observations in the present order have
present writ petition and shall not bind any Court
involving question of custody or welfare of the
child.”
5. As per the assurance recorded in the order dated 24th September
2021 of this Court, the respondent no.1 has secured a USA visa to the
appellant no.1 of the B-2 non-immigrant category. As can be seen from the
order dated 24th November 2021, this Court made an attempt to ascertain
whether an amicable solution could be found to the dispute. Both sides
were directed to submit their suggestions for the amicable resolution of the
dispute. However, an amicable resolution of the dispute was not possible.
6. The learned counsel appearing for the appellants submitted that even
after surgery, the child needs constant medical care. She submitted that
any lapses could be extremely fatal for the life of the minor. She submitted
that the doctor who operated upon the child has advised a very strict care
regime for the child. She pointed out that constant monitoring of his health
is required. Even the water intake of the child has to be carefully
monitored. She pointed out that even the appellant no.3, the grandmother
of the child is taking care of the minor child and there is a family support
available as she is residing with her parents. She pointed out that a
detailed affidavit has been filed by the appellant no.1 indicating reasons
why in the interest of the child he should be in India till he is 9-10 years old.
7. Relying upon the material on record, she submitted that even the
respondent no.1 constantly wished to settle down in India and therefore, he
purchased more and more land in India and especially in Bangalore. The
learned counsel pointed out that it was the respondent no.1 who himself
selected a pre-school for the child while he was in India in April, 2019. She
submitted that the respondent no.1 since the time he got married to the
appellant no.1 made plans to move back to India permanently and was
planning to construct a farm house and a residential house in Bangalore.
She submitted that it was the desire of the respondent no.1 that the
appellant no.1 should work in India. Accordingly, property was bought in
Bangalore where the mother of the respondent no.1 resides. The learned
counsel pointed out that after emails dated 25 th December 2019 and 14th
January 2020 were forwarded by the appellant no.1 to return the money to
the appellant no.2 taken from him for land purchase in Bangalore, the
aforesaid petition was filed by the respondent no.1 in the Court at Arkansas
8. In the written submissions of the appellants, there are various factors
pointed out, such as the temperamental nature of the respondent no.1 and
the conduct of the respondent no.1. The learned counsel submitted that
this Court has held that principles of autonomy must inure in the individual
against non-state persons as well. She submitted that in custody cases, a
woman cannot be completely eliminated in the name of the welfare of the
child. She urged that the woman cannot be deprived of her rights. She
submitted that in any case, the appellant no.1 is the primary/sole caretaker
of the child. Relying upon the decisions of this Court in Smt. Surinder
Kaur Sandhu v. Harbax Singh Sandhu and Another2, Elizabeth
Dinshaw (Mrs.) v. Arvand M. Dinshaw and Another 3 and Nithya Anand
Raghavan v. State (NCT of Delhi) and Another4, the learned counsel
submitted that there is a statutory presumption in favour of the appellant
no.1 under the doctrine of tender years. She submitted that this doctrine
has been upheld in the aforesaid three cases and this Court asserted
maternal preference as found under Section 6 of the Hindu Minority and
Guardianship Act, 1956 (the Act of 1956). She submitted that the appellant
no.1 is the primary caregiver and therefore, it is in the child’s best interest to
retain the custody with the appellant no.1.
9. The learned counsel submitted that to compel the appellant no.1 who
is the primary caregiver to return to USA under the rule of “best interest of
child” will amount to an invasion of her fundamental right of autonomy which
is a part of the right of privacy guaranteed under Article 21 of the
Constitution of India. By adopting a summary procedure, such invasion on
the rights of the appellant no.1 cannot be made. She submitted that the
welfare of the child will mean balancing the interests of all in the family of
the child. The mother being the primary caregiver must be kept in mind by
the Court and her legal rights must be respected and protected by the
Court. She submitted that the appellant no.1 is a fit mother and, in
patriarchy, some special care is needed to counter the dominant presence
of the father of the child. The learned counsel extensively relied upon an
Article by Mr.John Ekelaar under the title “Beyond the welfare principle”.
She submitted that the best interest of the child is the primary principle
which also means the welfare of each member of the family of the child.
She submitted that the matter in patriarchy becomes also a matter of
gender rights which is a constitutional issue covered under Article 14 read
with Article 15(3) of the Constitution of India. She submitted that the
constitutional provisions recognize that women form a separate category
who need to be enabled by the law.
10. She submitted that the citizenship of a child has nothing to do with the
welfare principle. A child may be a citizen of any country, but if the
competent Court finds that it is in the best interest of the child that he is
brought up in India, the child should be permitted to stay in India. The
learned counsel invited our attention to a decision of this Court in the case
of Kanika Goel v. the State of Delhi through Station House Officer and
another5 as well as a decision in the case of Prateek Gupta v. Shilpi
Gupta and others6. She submitted that in these two cases, though the
child was a foreign citizen, it was found to be in the best interest that the
child remains in India to continue with the prime caregiver. Her submission
is that in this case, the child can continue to be an American citizen and
stay in India on the basis of an OCI card. She submitted that eventually,
the child can make his own choice at the age of 18.
11. The learned counsel submitted that the decisions in the cases of
Nithya (supra) and Kanika (supra) are binding precedents as the same are
rendered by the Benches consisting of three Hon’ble Judges. She
submitted that the High Court has completely ignored the binding
precedents. She submitted that the learned Judge of the High Court cannot
decide the case based on his subjective personal opinion. She submitted
that it is necessary that clear and consistent law be followed even in the
custody matters and judicial discretion is not used to subvert the evolving
12. The learned counsel submitted that in this case, a writ of habeas
corpus was not maintainable as the custody of the appellant no.1 is not
illegal. She pointed out that in the cases of Nithya (supra) and Kanika
(supra), directions were issued to the Family Court to complete the hearing
of custody matters within a time frame. The learned counsel submitted that
in the cases of Yashita (supra) and Lahari Sakhamuri v. Sobhan Kodali7,
an exception was made to the rule laid down, in the cases of Nithya (supra)
and Kanika (supra) as in these two cases, the mothers had submitted to
the jurisdiction of the Court in USA.
13. She reiterated that in the name of welfare and interest of the child, the
welfare of one of the parents cannot be eliminated altogether. The learned
counsel submitted that the appellant no.1 cannot be compelled to go back
to USA. Her submission is that if the child is placed in the custody of the
respondent no.1 on the ground that the appellant no.1 is not interested in
going to USA, the child will be reduced to a chattel.
14. The learned counsel submitted that to refuse a woman the right of
mothering is refusing to acknowledge and respect a very core biological
and social identity. She submitted that a custody dispute cannot be decided
purely in the facts of each case. She submitted that the law laid down in
the case of Nithya (supra) has to be followed as recently done by Bombay
High Court in the case of Chandima Janaka Wijesinghe v. Union of India
and others in Crl. Writ Petition No. 547 of 2021.
15. The learned counsel submitted that the issue of medical evaluation of
the child requires a detailed hearing. She submitted that the visa granted to
the appellant no.1 is only a tourist visa which would entitle her to visit USA
only for specific enlisted reasons. She submitted that the stand of the
respondent no.1 of supporting the appellant no.1 for getting the visa is
illusory. She pointed out that the respondent no.1, by relying upon alleged
legal separation, has contended that he cannot support the application for a
grant of a green card to the appellant no.1. The learned counsel also
invited our attention to the pleadings in the interlocutory applications filed by
the respondent no.1. She submitted that the conduct of the respondent
no.1 of making allegations in the applications shows that he is more
interested in litigation and winning the battle against the appellant no.1
rather than acting in collaboration with her for the benefit of the child.
16. The learned counsel further submitted that the Indian medical system
is better suited for taking care of the minor son and even the appellant no.3
is a doctor. She submitted that it is not in the interest of the minor son that
he is taken to USA.
17. She submitted that considering the unique facts of the case, the larger
Bench decisions of this Court in the cases of Nithya (supra) and Kanika
(supra) are applicable. She submitted that the said two decisions constitute
binding precedents and the cases of Lahiri (supra) and Yashita (supra) are
exceptions to the general rule. She submitted that the concept of forum
convenience has no place in the Guardianship proceedings. She submitted
that this is not a case of abduction of the child as the child was brought to
India with the consent of the respondent no.1 for the purposes of medical
treatment. Therefore, the learned counsel submitted that the offer given by
the respondent no.1 cannot be accepted for the reasons set out in the
written submissions. She submitted that the impugned Judgment is
erroneous and illegal which deserves to be set aside.
18. The learned counsel appearing for the respondent no.1 pointed out
that the appellant no.1 has spent more than nine years in USA. After her
marriage with the respondent no.1, she has spent eight years in USA. He
invited our attention to the consent executed by the appellant no.1 and the
respondent no.1 for permitting the child to travel to India between 5 th
February 2019 to 26th September, 2019. He submitted that in the light of
the increase in cases of international parental child abduction from the
USA, the Immigration Authorities in USA do not allow a minor US citizen to
leave the country only with one parent without the express consent of the
non-travelling parent. He submitted that after the consent document was
executed, no changes therein were even discussed between the parties.
He submitted that documents on record will show that in terms of the
international travel consent form, return tickets of 26 th September, 2019
were also booked. He submitted that in violation of the international travel
consent, the appellant no.1 has not sent back the minor son to USA, which
amounts to the detention of the minor in her illegal custody in India.
19. The learned counsel appearing for the respondent no.1 submitted that
there is no document produced on record by the appellants to show that the
child needs continuous follow-up treatment.
20. The learned counsel submitted that in terms of the interim order dated
10th June 2020 of the High Court, the respondent no.1 has been interacting
regularly with his minor son through video conference and there is a very
healthy and deep father and son relationship between them. He stated that
he has taken legal advice from a firm specialising in immigration law in
USA. He submitted that the respondent no.1 received advice from the said
firm that to enable the appellant no.1 and the child to travel to USA, the
quickest as well as legally and practically most viable way to get a visa was
to get a B-2 non-immigrant visa.
21. He pointed out that in the visa invitation letter, the respondent no.1
has clarified that he will take care of tour expenses of the appellant no.1,
including the round trip, airfare, food, housing, medical insurance in USA.
The learned counsel submitted that the order of the High Court is a very
balanced order which is consistent with the law laid down by this Court in
the cases of Lahiri (supra) and Yashita (supra). He would, therefore,
submit that there is no reason to interfere with the equitable order passed
by the High Court.
22. We have given a careful consideration to the submissions. The
appellant no.1 and the respondent no.1 got married on 13 th January 2011 in
New York in USA. The minor son was born on 21 st January 2016 and is
admittedly a citizen of USA. There is no dispute regarding the appellant
no.1 and respondent no.1 signing and executing a consent for travel of the
minor to India with one legal guardian. It is necessary to reproduce the said
I, Kiran Bhaskar of 321 Division St, Cenerton, AR
72719, United States declare that I am the legal
parent/guardian of Aaditya Kiran, male, born
certificate registration number 2016001506, issued
numbered 546227929, issued on October 14, 2016
at United States, Department of State.
My child, Aaditya Kiran, has consent to travel:
(February 5th, 2019 to September 26th, 2019), C/o
(February 5th, 2019 to September 26th, 2019), C/o,
with Vasudha Sethi (my wife, Aaditya’s mother) of
States. Vasudha Sethi has an Indian passport
numbered J0499893, which was issued on June 8,
2010 at Regional Passport Office, Delhi, India. My
child will be leaving the United States on February
5th, 2019 and returning to the United States on
September 26th, 2019. Any changes to this plan
shall be discussed and consented upon by both
parties.
Any questions regarding this document may be
Signed on this 4th day of February, 2019.
23. It is not the case of the appellant no.1 that there was even a
discussion between the appellant no.1 and the respondent no.1 for
modification of the said consent till date. Admittedly, the period of travel
mentioned in the consent was not extended by the respondent no.1. The
minor son underwent surgery at the hands of Dr. Anurag Krishna on 14 th
March 2019. The certificate dated 17th September 2019 issued by
Dr.Anurag Krishna records that he examined the minor on 12 th July, 2019
and he found that the child was doing well. He has recorded in the
certificate that the child needs to be reviewed 6 to 7 months after the
surgery along with fresh ultrasound and renal scan. Thus, the surgery has
taken place 33 months back. The appellant has not placed on record any
medical certificate or opinion of Dr.Anurag Krishna on the present health
condition of the child. The appellants have not placed on record any
medical certificate of the treating doctor recording that the child needs any
further treatment or medical care in India. The respondent no.1 consented
for the child travelling to India and remaining in India till 26 th September
2019. The reason for the grant of consent was to enable the minor to
undergo surgery in New Delhi. We will have to proceed on the footing that
there is no documentary evidence available on record to show that the
presence of the child in India for further medical treatment is necessary.
24. On 3rd February, 2020, the Circuit Court of Benton County, Arkansas,
USA passed an ex-parte order which reads thus:
“Now on the 3rd day of February, 2020, this matter
comes before the Court, and the Court, being well
and sufficiently advised finds and orders as follows:
1. The Court has jurisdiction over the parties and
subject matter and venue is proper herein.
2. Defendant has removed the parties' minor child to
India and remained there without the consent of
3. Defendant has alienated the child from Plaintiff,
which is harmful to the child's well-being.
4. Plaintiff is awarded primary care, custody and
control of the minor child, Aaditya Kiran pending
further orders of the Court.
5. Defendant shall return Aaditya Kiran to Plaintiff
immediately.
request by either party.”
25. Firstly, we will deal with the legal submissions made by the learned
Counsel for the appellants. The learned counsel appearing for the appellants
has placed heavy reliance on the decisions of this Court in the cases of
Kanika (supra) and Nithya (supra) which are rendered by Benches of three
Judges of this Court. With some emphasis, the learned counsel appearing
for the appellants had submitted that there is a need to make a departure
from the rule of “best interest of the child” or the “welfare principle”. Her
contention is that welfare would mean balancing the interests of all the
members of the child’s family. She contended that the mother as the
primary caregiver must be kept in mind as a person who has legal rights
which must be respected and protected. The learned counsel relied upon
a decision of this Court in the case of K.S. Puttaswamy v. Union of India8
by contending that principles of autonomy must inure against non-state
persons as well. Her submission is that the law regarding custody does
not and cannot completely eliminate a woman in the name of child welfare.
On this aspect, we must note that in the case of Kanika (supra), this Court
has quoted with approval what is held in paragraph 53 of its decision in the
case of Prateek Gupta (supra). In paragraph 53 of the decision in the case
of Prateek Gupta (supra), it was held that the issue with regard to
repatriation of a child has to be addressed not on a consideration of legal
rights of the parties but on the sole criteria of the welfare of the child. In
paragraph no.34 of its decision, this Court in the case of Kanika (supra),
“34. As expounded in the recent decisions of this
Court, the issue ought not to be decided on the basis
of rights of the parties claiming custody of the minor
child but the focus should constantly remain on
whether the factum of best interest of the minor child is
to return to the native country or otherwise. The fact
that the minor child will have better prospects upon
return to his/her native country, may be a relevant
aspect in a substantive proceeding for grant of custody
of the minor child but not decisive to examine the
threshold issues in a habeas corpus petition. For the
purpose of habeas corpus petition, the Court ought to
focus on the obtaining circumstances of the minor
child having been removed from the native country
and taken to a place to encounter alien environment,
language, custom, etc. interfering with his/her overall
growth and grooming and whether continuance there
will be harmful. This has been the consistent view of
this Court as restated in the recent three-Judge Bench
decision in Nithya Anand Raghavan [Nithya Anand
Raghavan v. State (NCT of Delhi), (2017) 8 SCC 454 :
(2017) 4 SCC (Civ) 104] , and the two-Judge Bench
decision in Prateek Gupta [Prateek Gupta v. Shilpi
is unnecessary to multiply other decisions on the same
aspect.”
26. The learned counsel appearing for the appellant heavily relied upon
an article by Mr.John Ekelaar. The article contains some criticism of “the
welfare principle”. The author has strongly advocated how the law should
be reformulated by getting rid of “welfare” or “best interest” principles. The
article is in the realm of the opinion of the learned author. The decision of
this Court in the case of Kanika (supra) reiterates the well-settled law that
the issue regarding custody of a minor child and the issue of the repatriation
of the child to the native country has to be addressed on the sole criteria of
the welfare of the minor and not on consideration of the legal rights of the
parents. The principle that the welfare of the minor shall be the
predominant consideration and that the rights of the parties to a custody
dispute are irrelevant has been consistently followed by this Court. In fact,
in sub-section (1) of Section 13 of the Hindu Minority and Guardianship Act,
1956 (for short “the 1956 Act”), it is provided that in appointment or
declaration of guardian of a minor, the welfare of the minor shall be the
paramount consideration. When a Court decides that it is in the best
interest of the minor to remain in the custody of one of the parents, the
rights of the other parent are bound to be affected. As provided in clause (a)
of Section 6 of the 1956 Act, in the case of a minor boy or girl, the natural
guardian is the father, but ordinarily, the custody of a minor who has not
completed the age of 5 years shall be with the mother. On a conjoint
reading of sub-section (1) of Section 13 read with clause (a) of Section 6 of
the 1959 Act, if it is found that the welfare of a minor whose age is more
than 5 years requires that his custody should be with the mother, the Court
is bound to do so. In the same way, if interest of the minor which is the
paramount consideration requires that the custody of a minor child should
not be with the mother, the Court will be justified in disturbing the custody of
the mother even if the age of the minor is less than five years. In such
cases, the rights of the father or the mother, as the case may be, conferred
by clause (a) of Section 6 are bound to be affected. Whenever the Court
disturbs the custody of one parent, unless there are compelling reasons,
the Court will normally provide for visitation rights to the other parent. The
reason is that the child needs the company of both parents. The orders for
visitation rights are essentially passed for the welfare of minors and for the
protection of their right of having the company of both parents. Such orders
are not passed only for protecting the rights of the parents. In view of the
settled legal position, the welfare of the minor being the paramount
consideration, we cannot act upon the suggestions of Mr.John Ekelaar in
his Article. We cannot accept the submission that while applying the
welfare principle, the rights of the mother or father need to be
protected. The consideration of the well-being and welfare of the child must
get precedence over the individual or personal rights of the parents.
Whether the Court while dealing with a case like this can compel one of the
parents to move from one country to another is a separate issue. We are
dealing with the said issue separately.
27. Each case has to be decided on its own facts and circumstances.
Though no hard and fast rule can be laid down, in the cases of Kanika
(supra) and Nithya (supra), this Court has laid down the parameters for
exercise of the power to issue a writ of habeas corpus under Article 226 of
the Constitution of India dealing with cases of minors brought to India from
the country of their native. This Court has reiterated that the paramount
consideration is the welfare of the minor child and the rights of the parties
litigating over the custody issue are irrelevant. After laying down the
principles, in the case of Nithya (supra), this Court has clarified that the
decision of the Court in each case must depend on the totality of facts and
circumstances of the case brought before it. The factual aspects are
required to be tested on the touchstone of the principle of welfare of the
minor child. In the cases of Lahiri (supra) and Yashita (supra), the
Benches of this Court consisting of two Judges have not made a departure
from the law laid down in the decisions of larger Benches of this Court in
the cases of Nithya (supra) and Kanika (supra). The Benches have applied
the law laid down by the larger Bench to the facts of the cases before them.
It is not necessary for us to discuss in detail the facts of the aforesaid
cases. By its very nature, in a custody case, the facts cannot be similar.
What is in the welfare of the child depends on several factors. A custody
dispute involves human issues which are always complex and complicated.
There can never be a straight jacket formula to decide the issue of custody
of a minor child as what is in the paramount interest of a minor is always a
question of fact. But the parameters for exercise of jurisdiction as laid down
in the cases of Nithya (supra) and Kanika (supra) will have to be followed.
28. Now we turn to the findings recorded by the High Court. The perusal
of the impugned judgment shows that the High Court has adverted to the
law laid down in the cases of Kanika (supra) and Nithya (supra) apart from
other cases. The High Court found that in the facts of the case, summary
inquiry deserves to be adopted. The Court noted that the child has spent
more than three years in USA and two and a half years in India. Therefore,
it cannot be said that there is a complete integration of the child with the
social, physical, psychological, cultural and academic environment of either
USA or India. After considering the documents placed on record, the High
Court found that the appellant no.1 has not produced any further medical
report or medical treatment record to show that the minor child requires
further regular medical treatment apart from usual periodical review and
therefore, it will not be difficult to arrange a periodical review even if the
child is in USA. The High Court on examination of the documents found
that the respondent no.1 had financial resources to maintain the appellant
no.1 and the minor child in USA. Merely because the respondent no.1 had
asked the appellant no.1 to arrange funds for purchase of lands in
Bangalore, it cannot be said that his intention is to abandon USA and settle
down permanently in India. Moreover, the High Court noted that
international travel consent signed by the appellant no.1 and the
respondent no.1 required that the minor should come back to USA on 26 th
September, 2019. The High Court held that change in the travel plan was
not discussed and consented by both the parties. The High Court also
considered the allegation that the respondent no.1 has temperamental
issues. In fact, the respondent no.1 produced a Psychological Evaluation
Report dated 21st October 2020 issued by the Centre for Psychology which
recorded that the respondent no.1 is free of any neurophysiological
problems and has no diagnosable mental health problems. The certificate
recorded that he is free of depression, anxiety and reports no suicidal
tendencies. The High Court also considered the relevance of the report of
the USA Embassy regarding the welfare of the child. The Court noted that
there is a disclaimer in the said report that the consular officer who is the
author of the report is not trained in child protection, social work, or other
similar discipline and therefore, the report is not a child custody evaluation.
The High Court has also noted the allegations and rival allegations against
each other made by the appellant no.1 and the respondent no.1. About the
argument that the appellant no.1 is taking constant care of the minor child,
the High Court referred to the said report of the USA Embassy. In
paragraphs 48 and 49 of the Judgment, the High Court has noted the
contents of the said report and has drawn conclusions which are recorded
in paragraph 50. Paragraphs 48 to 50 of the impugned Judgment read
“48. However, a perusal of the welfare report dated
17.12.2019 of Visiting Consular of US Embassy shows
that respondent No.2 told the Visiting Consular that
her aunt picks up minor child from school and brings
him home each day and stays with him throughout the
day while the mother and grand-parents are at work.
The minor child has a domestic helper who takes care
of his needs and plays with him. It is evident from the
report that even respondent No.2 and her parents are
not giving whole day personal care and attention to the
minor child.
49. The petitioner has filed affidavit dated
15.06.2020 that the petitioner also has requisite skills
to care for his child in the USA. The petitioner has also
the option to work from home permanently, enabling
him to care for the child full time when required.
Hanumantharayya has a valid US visa till 23.02.2024
and has expressed her willingness to take care of the
minor child to this Court.
50. In these facts and circumstances, there is no
reasonable ground to believe that the minor child
cannot be given due personal care and attention in
USA and therefore, repatriation of the minor child
cannot be declined on the ground of lack of requisite
personal care and attention to the minor child in USA.”
29. After considering the said aspects, the High Court issued directions in
paragraphs 55, 57 and 58 which we have already quoted above. The
factors considered by the High Court were certainly relevant. The High
Court had the benefit of the assistance of a learned Counsel who was
appointed as Amicus Curiae. He interacted with the contesting parties. The
report of the Amicus Curiae has been considered by the High Court.
30. The learned Judge of the High Court noted that except for the case
filed by the respondent no.1 in USA Court regarding custody of the minor,
there are no proceedings pending between the appellant no.1 and the
respondent no.1. It was also noted that the welfare report dated 17 th
December, 2019 of Visiting Consular of US Embassy records that the
appellant no.1 informed that her aunt picks up the minor child from school
and brings him home each day and stays with him throughout the day while
the mother and grand-parents are at work. Moreover, a domestic helper is
taking care of the needs of the child. Therefore, the appellant no.1 is not
devoting her whole day to take personal care of the minor and to attend to
the needs of the minor child. The High Court noted that on the other hand,
an affidavit has been filed by the respondent no.1 that an option to
permanently work from home is available to him and his mother has a valid
visa to stay in USA till 23rd February 2024 who has expressed willingness to
take care of the minor child in USA. The other factors considered by the
High Court while holding a summary inquiry were that the stay of the minor
child in India has been for too short a period to facilitate his integration into
the social, physical, physiological, cultural and academic environment of
India. Moreover, the minor child, if repatriated to USA, will not be subjected
to an entirely foreign system of education. The High Court has also taken
into consideration the fact that the child is a citizen of USA who will have
better future prospects on return to USA. It is observed that the natural
process of grooming in the environment of the native country is
indispensable for his comprehensive development. The High Court further
observed that it is not shown that return of the child to USA will be harmful
to him.
31. After having perused the material on record, we find that the High
Court has considered all relevant factors while holding a summary inquiry.
The High Court has given reasons for coming to the conclusion that it will
be in the interest and welfare of the child to return to USA. The High Court
has not treated the order of USA court as conclusive. The High Court had
the benefit of the assistance of a learned Counsel who was appointed as
amicus. The exercise of power by the High Court cannot be said to be
perverse or illegal. We find that the High Court has not overlooked the
view taken by larger Benches of this Court in the cases of Kanika (supra)
and Nithya (supra). We are in agreement with High Court when it came to
the conclusion that it will be in the welfare of the child to return to USA.
32. The emphasis of the learned counsel appearing for appellants was
more on the rights of the appellant no.1 and on making a departure from the
well-known concept that the welfare of the minor is the paramount
consideration. The said submissions are contrary to the law laid down by
this Court in the case of Kanika (supra) as observed by us earlier. As we
have noted earlier, the rights of the parents are irrelevant when a Court
decides the custody issue. It is not a consideration at all for deciding the
33. A question was raised whether the High Court was justified in passing
an order directing the appellant no.1 to return to USA along with the minor
child on or before a particular date. The issue of custody of a minor,
whether in a petition seeking habeas corpus or in a custody petition, has to
be decided on the touchstone of the principle that the welfare of a minor is
of paramount consideration. The Courts, in such proceedings, cannot
decide where the parents should reside as it will affect the right to privacy of
the parents. We may note here that a writ Court while dealing with the
issue of habeas corpus cannot direct a parent to leave India and to go
abroad with the child. If such orders are passed against the wishes of a
parent, it will offend her/his right to privacy. A parent has to be given an
option to go abroad with the child. It ultimately depends on the parent
concerned to decide and opt for giving a company to the minor child for the
sake of the welfare of the child. It will all depend on the priorities of the
concerned parent. In this case, on a conjoint reading of clauses (i) to (iii) of
paragraph 55 of the judgment, it is apparent that such an option has been
given to the appellant no.1.
34. We may record here that an email dated 18 th October, 2021
addressed by the appellant no.1 to the respondent no.1 is placed on record
along with I.A. No. 147418 of 2021. In the said email, the appellant no.1
has informed the respondent no.1 that during her visa interview, if she is
asked, she will clearly state that the intended purpose of visiting USA was
also to contest cases filed by the respondent no.1 and to file cases against
the respondent no.1. Therefore, an option has to be given to the appellant
no.1 to return to USA along with the minor son though she cannot be forced
to stay with the respondent no.1. Therefore, the respondent no.1 will have
to make proper arrangements for a suitable residence for the comfortable
stay of the appellant no.1 in USA. The reason is that the appellant no.1
cannot work in USA on the basis of a B-2 visa. The respondent no.1 will
have to provide a reasonable amount per month to the appellant no.1 to
maintain herself and the child in USA. Necessary steps will have to be
taken by the respondent no.1 to secure admission for the child in a school
in USA. To enable the appellant no.1 to contest the custody petition filed by
the respondent no.1, a direction will have to be issued to the respondent
no.1 not to enforce and act upon the said order of USA Court in any
manner for a period of three months from the date on which the appellant
no.1 reaches USA with the son. During the said period of three months,
visitation rights will have to be provided to the respondent no.1 to meet the
minor child. If the appellant no.1 opts to go to USA and contest the custody
proceedings, the parties will have to abide by the result of the said
proceedings in so far as the issue of the custody of the minor child is
35. The appellant no.1 will have to be given time of fifteen days from
today to communicate the respondent no.1 her willingness to travel to USA
with the child. If she intends to visit USA, along with her willingness, she
must communicate possible dates of travel. The dates should be within
maximum period of three months from today. On receiving the same, the
respondent no.1 shall arrange for air tickets and make arrangements for
the comfortable stay of the appellant no.1 and the minor in USA. The
respondent no.1 shall, for the time being, transfer US$ 5,000 to the
appellant no.1 for facilitating expenditure in USA. The respondent no.1, in
addition, shall transfer US$ 1,500 to the appellant no.1 which can be used
by the appellant no.1 for the benefit of the minor child in USA. The
respondent no.1 will have to also provide a proper health insurance to both
of them. The respondent no.1 will also be under an obligation to take care
of medical treatment of the minor son.
36. In the event the appellant no.1 fails to communicate her willingness to
travel to USA within fifteen days from today, it will be open for the
respondent no.1 to take the custody of the child. After the respondent no.1
arrives in India, the appellant no.1 shall hand over the custody of the minor
son to the respondent no.1 to enable the respondent no.1 to take the minor
son to USA. To the above extent, the order of the High Court requires
modification. As noted earlier, now B-2 visa has been granted to the
appellant no.1. The respondent no.1 will have to also facilitate extension of
visa granted to the appellant no.1, in case she desires to continue her stay
(i) It will be open for the appellant no.1 to travel to USA
along with the minor child and to contest the proceedings
pending in USA. If the appellant no.1 is willing to travel to USA
along with the minor child, she will communicate her willingness
to do so to the respondent no.1 by email within a period of
fifteen days from today. The appellant no.1 shall communicate
to the respondent no.1 the possible dates on which she
proposes to travel along with the minor child. The possible
dates shall be within three months from today;
(ii) On receiving an intimation as aforesaid, the respondent
no.1 shall book air tickets after consulting the appellant no.1.
The respondent no.1 shall make proper arrangements for
separate stay of the appellant no.1 in USA after consulting her.
The arrangements for residence shall be made at the cost of
the respondent no.1. As and when the appellant no.1 wants to
return to India, it shall be the responsibility of the respondent
no.1 to pay for her air tickets. If she wishes to continue in USA,
the respondent no.1 shall take all possible steps for the
(iii) In the event the appellant no.1 agrees to travel to USA
along with the minor son, it will be the responsibility of the
respondent no.1 to pay a sufficient amount per month to the
appellant no.1 for maintenance of herself and the minor son.
Along with the air tickets, the respondent no.1 shall remit US$
6,500 to the appellant no.1 by a mutually convenient mode.
The amount shall be utilised by the appellant no.1 to meet initial
expenditure in USA. After the expiry of period of one month
from the date on which the appellant no.1 arrives in USA, the
respondent no.1 shall regularly remit a mutually agreed amount
to the appellant no.1 for maintenance. If there be any dispute,
the parties are free to adopt remedy in accordance with law.
The respondent no.1 shall provide proper medical insurance to
the appellant no.1 and the minor child while they are in USA.
Moreover, the respondent no.1 shall be under an obligation to
provide proper medical treatment to the minor child;
(iv) In the event, the appellant no.1 along with the minor child
visits USA in terms of this order, for a period of three months
from the date of her arrival, the respondent no.1 shall not take
any steps to implement or enforce the order dated 3 rd February
2020 passed by the Circuit Court of Benton County, Arkansas
which will enable the appellant no.1 to move the concerned
Court for contesting the petition filed by the respondent no.1
and to file appropriate proceedings. A written undertaking to
that effect shall be filed by the respondent no.1 in this Court
within two weeks from today. Thus, for the said period of three
months, the custody of the minor shall remain with the appellant
(v) After the appellant no.1 and minor child reach USA,
subject to the orders which may be passed by the competent
Court in USA, for a period of 3 months from their arrival, the
respondent no.1 shall be entitled to have temporary custody of
the minor child from 10 am to 5 pm on every Sunday or as
mutually agreed upon by the appellant no.1 and the respondent
no.1. In addition, the respondent no.1 shall be entitled to make
a video call to talk to the minor child for about half an hour on
every day (except Sunday) between 5 pm to 6 pm;
(vi) In the event, the appellant no.1 is not willing to visit USA
along with her minor son and fails to communicate her
willingness to visit USA within a period of fifteen days from
today, it will be open for the respondent no.1 to take custody of
the child. After the respondent no.1 visits India, the appellant
no.1 shall hand over the custody of the minor child to him and
the respondent no.1 shall be entitled to take the minor child with
him to USA. In such an event, the appellant no.1 will be
entitled to talk to the minor child on video call for half an hour
on every day between 5 pm to 6 pm (USA time) or at such time
as mutually agreed upon by the appellant no.1 and the
(vii) As observed by the High Court in paragraph 58 of the
impugned Judgment, an option of adopting agreed joint
parenting plan remains open to the parties. If they wish to do
so, they can always file appropriate application before the High
(viii) This order shall not be construed to mean that any final
adjudication has been made on the rights of the parties.
The appeal is disposed of in the above terms.
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The Supreme Court observed that a court while deciding an issue of child custody cannot direct a parent to leave India and to go abroad with the child."A writ Court while dealing with the issue of habeas corpus cannot direct a parent to leave India and to go abroad with the child. If such orders are passed against the wishes of a parent, it will offend her/his right to privacy",...
The Supreme Court observed that a court while deciding an issue of child custody cannot direct a parent to leave India and to go abroad with the child.
"A writ Court while dealing with the issue of habeas corpus cannot direct a parent to leave India and to go abroad with the child. If such orders are passed against the wishes of a parent, it will offend her/his right to privacy", the bench of Justices Ajay Rastogi and Abhay S. Oka observed.
In this case, the Punjab and Haryana High Court issued several directions while allowing a petition for habeas corpus filed by the husband seeking custody of the minor child. The mother was directed to return to USA along with minor child on or before 30.09.2021. The following were the directions issued by the High Court:
"(i) respondent No.2 is directed to return to USA along with minor child on or before 30.09.2021;
(ii) in case respondent No.2 opts to return to USA, the petitioner shall bear the travel and incidental expenses of respondent No.2 and the minor child for return to and also the expenses for their stay in USA till decision of the custody petition and the petitioner shall not initiate any criminal/contempt proceedings against respondent No.2 for inter country removal of the minor child;
(iii) if respondent No.2 fails to comply with aforesaid direction, respondent No.2 shall hand over custody of the minor child and his passport to the petitioner on 01.10.2021 or on such other date as may be agreed to by the petitioner;
(iv) in case respondent No.2 fails to hand over custody of the minor child and her passport to the petitioner on 01.10.2021 or on such other date as may be agreed to by the petitioner, respondent No.1 shall take over the custody and passport of the minor child from respondent No.2 and hand over custody and passport of the minor child to the petitioner on such date as may be agreed to by the petitioner;
(v) on custody of the minor child and his passport being handed over to the petitioner, the petitioner shall be entitled to take the minor child to USA;
(vi) in case passport of the minor child is not handed over to the petitioner or respondent No.1 by respondent No.2 on the ground of loss/damage etc., the petitioner shall be entitled to get the duplicate passport issued from the concerned authority; and (vii) on such return of the minor child to USA, either of the parties shall be at liberty to revive the proceedings before US Court for appropriate orders regarding appointment of guardian and grant of custody of the minor child."
Challenging this order, the mother approached the Apex Court.
On behalf of mother, it was contended that the welfare principle would mean balancing the interests of all the members of the child's family. It was contended that the mother as the primary caregiver must be kept in mind as a person who has legal rights which must be respected and protected. An article by Mr.John Ekelaar which some criticism of "the welfare principle" was relied upon. Addressing this contention, the bench referred to Kanika Goel v. the State of Delhi (2018) 9 SCC 578 and Prateek Gupta v. Shilpi Gupta (2018) 2 SCC 309 and observed that the rights of the parents are irrelevant when a Court decides the issue of custody of their minor child.
The bench thus considered the issue as to whether the Court can compel one of the parents to move from one country to another? In this regard, the bench observed thus:
The Courts, in such proceedings, cannot decide where the parents should reside as it will affect the right to privacy of the parents. We may note here that a writ Court while dealing with the issue of habeas corpus cannot direct a parent to leave India and to go abroad with the child. If such orders are passed against the wishes of a parent, it will offend her/his right to privacy. A parent has to be given an option to go abroad with the child. It ultimately depends on the parent concerned to decide and opt for giving a company to the minor child for the sake of the welfare of the child. It will all depend on the priorities of the concerned parent.
The court therefore modified the directions issued by the High Court:
(i) It will be open for the appellant no.1 to travel to USA along with the minor child and to contest the proceedings pending in USA. If the appellant no.1 is willing to travel to USA along with the minor child, she will communicate her willingness to do so to the respondent no.1 by email within a period of fifteen days from today. The appellant no.1 shall communicate to the respondent no.1 the possible dates on which she proposes to travel along with the minor child. The possible dates shall be within three months from today; (ii) On receiving an intimation as aforesaid, the respondent no.1 shall book air tickets after consulting the appellant no.1. The respondent no.1 shall make proper arrangements for separate stay of the appellant no.1 in USA after consulting her. The arrangements for residence shall be made at the cost of 36 the respondent no.1. As and when the appellant no.1 wants to return to India, it shall be the responsibility of the respondent no.1 to pay for her air tickets. If she wishes to continue in USA, the respondent no.1 shall take all possible steps for the extension of visa or for getting a new visa; (iii) In the event the appellant no.1 agrees to travel to USA along with the minor son, it will be the responsibility of the respondent no.1 to pay a sufficient amount per month to the appellant no.1 for maintenance of herself and the minor son. Along with the air tickets, the respondent no.1 shall remit US$ 6,500 to the appellant no.1 by a mutually convenient mode. The amount shall be utilised by the appellant no.1 to meet initial expenditure in USA. After the expiry of period of one month from the date on which the appellant no.1 arrives in USA, the respondent no.1 shall regularly remit a mutually agreed amount to the appellant no.1 for maintenance. If there be any dispute, the parties are free to adopt remedy in accordance with law. The respondent no.1 shall provide proper medical insurance to the appellant no.1 and the minor child while they are in USA. Moreover, the respondent no.1 shall be under an obligation to provide proper medical treatment to the minor child; (iv) In the event, the appellant no.1 along with the minor child visits USA in terms of this order, for a period of three months from the date of her arrival, the respondent no.1 shall not take any steps to implement or enforce the order dated 3rd February 2020 passed by the Circuit Court of Benton County, Arkansas which will enable the appellant no.1 to move the concerned Court for contesting the petition filed by the respondent no.1 and to file appropriate proceedings. A written undertaking to that effect shall be filed by the respondent no.1 in this Court within two weeks from today. Thus, for the said period of three months, the custody of the minor shall remain with the appellant no.1; (v) After the appellant no.1 and minor child reach USA, subject to the orders which may be passed by the competent Court in USA, for a period of 3 months from their arrival, the respondent no.1 shall be entitled to have temporary custody of the minor child from 10 am to 5 pm on every Sunday or as 38 mutually agreed upon by the appellant no.1 and the respondent no.1. In addition, the respondent no.1 shall be entitled to make a video call to talk to the minor child for about half an hour on every day (except Sunday) between 5 pm to 6 pm; (vi) In the event, the appellant no.1 is not willing to visit USA along with her minor son and fails to communicate her willingness to visit USA within a period of fifteen days from today, it will be open for the respondent no.1 to take custody of the child. After the respondent no.1 visits India, the appellant no.1 shall hand over the custody of the minor child to him and the respondent no.1 shall be entitled to take the minor child with him to USA. In such an event, the appellant no.1 will be entitled to talk to the minor child on video call for half an hour on every day between 5 pm to 6 pm (USA time) or at such time as mutually agreed upon by the appellant no.1 and the respondent no.1; (vii) As observed by the High Court in paragraph 58 of the impugned Judgment, an option of adopting agreed joint parenting plan remains open to the parties. If they wish to do so, they can always file appropriate application before the High Court; and (viii) This order shall not be construed to mean that any final adjudication has been made on the rights of the parties.
Case name: Vasudha Sethi vs Kiran V. Bhaskar
Case no. and Date: CrA 82 OF 2022 | 12 Jan 2022
Coram: Justices Ajay Rastogi and Abhay S. Oka
Counsel: Advocate Binu Tamta For Petitioner and Advocate Shadan Farasat For Respondent (Father)
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The Appellants are before this Court assailing the Judgment dated 20.02.2018,
passed by the High Court of Madhya Pradesh in Misc. Appeal No. 938/2010. The said
appeal before the High Court was filed by the claimants in Motor Vehicles Claim Case
No. 176/2009 seeking enhancement of the compensation as against the amount
awarded by the Motor Accidents Claims Tribunal (MACT ‘for short’). The Tribunal, on
assessing the evidence available before it, had awarded a sum of Rs.4,99,000/- (Rupees
Four Lacs Ninety-Nine Thousand) with 6% interest on the said amount.
In the appeal filed by the claimants, the High Court, having considered the matter
in detail has concluded as here under:
“Having accepted monthly income of the deceased to be Rs.8,000/- which has been proved
through Income Tax returns, the admissible income of the deceased would have been Rs.6,000/-
per month after 1/4th deduction for personal expenses and the annual income of the deceased would
come to Rs.72,000/-. When multiplier of 17 is applied then the total income comes to Rs. 12,24,000/-
. On this amount, a sum of Rs. 70,000/- will be added on various heads as has been granted by the
Supreme Court in the case of National Insurance Company Ltd. Vs. Pranay Sethi & Others as
reported in 2017 SCC Online Sc 1270, 40% future prospect is also to be added. Thus the total
amounts comes to Rs.17,83,600/-. Accordingly, the amount awarded by the Claims Tribunal i.e.
Rs.4,99,000/- stands enhanced to Rs.17,83,600/-. Therefore, the claimants would have been
entitled to additional sum of Rs.12,84,600/- with interest @ 6% per annum on the aforesaid
enhanced amount, but the fact is that valuation of the appeal is only Rs.6,50,000/as amended vide
I.A.No.5342/2014 which was allowed on 29.04.2016, therefore, appellants shall be entitled only to
enhanced compensation to the extent of valuation of the appeal i.e. Rs.6,50,000/- along with interest
@ 6 % per annum from the date as has been awarded by the Claims Tribunal.
From the perusal of the above extracted portion, it is seen that the High Court
having taken into consideration all the parameters for arriving at the just compensation,
had enhanced the amount to Rs. 17,83,600/- (Rupees Seventeen Lacs Eight Three
Thousand Six Hundred Only). From the said amount, the initial the amount awarded by
the Tribunal was deducted and the amount of Rs. 12,84,600/- (Rupees Twelve Lacs Eight
Four Thousand Six Hundred) was arrived at.
However, the High Court, having taken into consideration that the valuation made
in the Appeal was only for Rs. 6,50,000/- (Rupees Six Lacs Fifty Thousand Only) has
awarded the said sum a enhanced compensation.
The only issue that arises for consideration in this Appeal is as to whether the High
Court was justified in restricting the award of the enhanced amount to Rs.
6,50,000/(Rupees Six Lacs Fifty Thousand Only) though, the amount of compensation
determined was Rs. 12,84,600/- (Rupees Twelve Lacs Eight Four Thousand Six
The law is well settled that in the matter of compensation, the amount actually due
and payable is to be awarded despite the claimants having sought for a lesser amount
and the claim petition being valued at a lesser value.
Our view, is fortified by the decision of this Court in the Case of Ramla and Others
Versus National Insurance Company Limited and Others 2019 2 SCC 192, wherein, it is
“Though the claimants had claimed a total compensation of Rs.25,00,000 in their claim
petition filed before the Tribunal, we feel that the compensation which the claimants are entitled to
is higher than the same as mentioned supra. There is no restriction that the Court cannot award
compensation exceeding the claimed amount, since the function of the Tribunal or Court under
Section 168 of the Motor Vehicles Act, 1988 is to award “just compensation”. The Motor Vehicles
Act is a beneficial and welfare legislation. A “just compensation” is one which is reasonable on the
basis of evidence produced on record. It cannot be said to have become time-barred. Further, there
is no need for a new cause of action to claim an enhanced amount. The Courts are duty-bound to
award just compensation. (See the Judgments of this Court in (a) Nagappa v. Gurudayal Singh, (b)
Magma General Insurance Co. Ltd. v. Nanu Ram, (c) Ibrahim v. Raju.
In that view, the Judgment dated 20th February, 2018 passed by the High Court of
Madhya Pradesh is modified.
It is held that the Appellants are entitled to the enhanced compensation of Rs.
12,84,600/- (Rupees Twelve Lacs Eight Four Thousand Six Hundred) with 6% interest,
which shall be paid by the Insurance Company by depositing it before the MACT within
a period of six weeks from the date of receipt of the copy of this Judgment.
The Appeal is accordingly, allowed.
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The Supreme Court observed that Motor Accident Compensation exceeding the claimed amount can be awarded.In the matter of compensation, the amount actually due and payable is to be awarded despite the claimants having sought for a lesser amount and the claim petition being valued at a lesser value, the bench comprising Justices observed.In this case, the Motor Accident Claims Tribunal had...
The Supreme Court observed that Motor Accident Compensation exceeding the claimed amount can be awarded.
In the matter of compensation, the amount actually due and payable is to be awarded despite the claimants having sought for a lesser amount and the claim petition being valued at a lesser value, the bench comprising Justices observed.
In this case, the Motor Accident Claims Tribunal had awarded a sum of Rs.4,99,000/- with 6% interest. In appeal, the High Court enhanced the amount to Rs. 17,83,600/-. However, the High Court, taking into consideration that the valuation made in the Appeal was only for Rs. 6,50,000/- awarded the said sum a enhanced compensation.
The issue raised before the Apex Court was whether the High Court was justified in restricting the award of the enhanced amount to Rs. 6,50,000/- though, the amount of compensation determined was Rs. 12,84,600/-?
"The law is well settled that in the matter of compensation, the amount actually due and payable is to be awarded despite the claimants having sought for a lesser amount and the claim petition being valued at a lesser value. Our view, is fortified by the decision of this Court in the Case of Ramla and Others Versus National Insurance Company Limited and Others 2019 2 SCC 192", the bench of Justices AS Bopanna and PS Narasimha observed while allowing the appeal.
The court held that the claimants are entitled to the enhanced compensation of Rs. 12,84,600/- with 6% interest.
In Ramla, the Supreme Court had observed thus: There is no restriction that the Court cannot award compensation exceeding the claimed amount, since the function of the Tribunal or Court under Section 168 of the Motor Vehicles Act, 1988 is to award "just compensation". The Motor Vehicles Act is a beneficial and welfare legislation. A " just compensation" is one which is reasonable on the basis of evidence produced on record. It cannot be said to have become time-barred. Further, there is no need for a new cause of action to claim an enhanced amount. The Courts are duty-bound to award just compensation.
Case details
Mona Baghel vs Sajjan Singh Yadav | (SC) 734 | SLP(C) No. 29207/2018 | 30 August 2022 | Justices AS Bopanna and PS Narasimha
Headnotes
Motor Vehicles Act, 1988 - Motor Accident Compensation - In the matter of compensation, the amount actually due and payable is to be awarded despite the claimants having sought for a lesser amount and the claim petition being valued at a lesser value - Referred to Ramla vs National Insurance Company Limited 2019 2 SCC 192.
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1. An unfortunate incident took place on 10.11.2019, which is
alleged by the complainant to be caused by certain members of
his caste providing assistance to the police which resulted in a
free fight where the appellants herein were also present. Two
persons succumbed to their injuries and an FIR was registered on
11.11.2019 with the Amreli Police Station against 13 persons,
being CR No.I-94 of 2019 under Sections 302, 307, 324, 323,
506(2), 504, 143, 144, 147, 148, 149, 120B and 34 of the IPC as
well as Section 135(ii) of the Gujarat Police Act. In pursuance
of the investigations chargesheet was filed in the Court. A
counter FIR was also filed on 11.11.2019, being I-95/2019
against the complainant and other witnesses under Sections 324,
323, 504, 506(2), 143, 144, 147, 148 and 149 of the IPC as well
as Section 135(ii) of the Gujarat Police Act.
2. The appellants before us were arrayed as Accused Nos.12 & 13
and were arrested on 11.11.2019. Upon applying for bail, in
terms of the impugned judgment dated 15.12.2020, bail was
granted to them. However, they are aggrieved by the condition
imposed on them for bail, requiring them to deposit Rs.2.00 lakh
each as compensation to the victims before the learned trial court
within a period of three months.
3. The narrow compass of the arguments before us rests on the
absence of any provision in the Code of Criminal Procedure,
1908 (hereinafter referred to as the ‘CrPC’) entitling the Court to
impose such a condition for payment of compensation for grant
of bail. It is the submission of the learned counsel for the
appellants that the High Court imposed this condition for bail in
view of the “amended provisions” relating to victim
compensation without referring to any specific provision.
4. Learned counsel for the appellants took us through different
provisions dealing with the aspect of compensation under the
5. In respect of the aforesaid, the first provisions referred to was
“357. Order to pay compensation.
(1) When a Court imposes a sentence of fine or a sentence
(including a sentence of death) of which fine forms a part, the
Court may, when passing judgment, order the whole or any
part of the fine recovered to be applied-
(a) in defraying the expenses properly incurred in the
(b) in the payment to any person of compensation for any loss
or injury caused by the offence, when compensation is, in the
opinion of the Court, recoverable by such person in a Civil
(c) when any person is convicted of any offence for having
caused the death of another person or of having abetted the
commission of such an offence, in paying compensation to
the persons who are, under the Fatal Accidents Act, 1855 (13
of 1855), entitled to recover damages from the person
sentenced for the loss resulting to them from such death;
(d) when any person is convicted of any offence which
includes theft, criminal misappropriation, criminal breach of
trust, or cheating, or of having dishonestly received or
retained, or of having voluntarily assisted in disposing of,
stolen property knowing or having reason to believe the same
to be stolen, in compensating any bona fide purchaser of such
property for the loss of the same if such property is restored
to the possession of the person entitled thereto.
(2) If the fine is imposed in a case which is subject to appeal,
no such payment shall be made before the period allowed for
presenting the appeal has elapsed, or, if an appeal be
presented, before the decision of the appeal.
(3) When a Court imposes a sentence, of which fine does not
form a part, the Court may, when passing judgment, order the
accused person to pay, by way of compensation, such amount
as may be specified in the order to the person who has
suffered any loss or injury by reason of the act for which the
accused person has been so sentenced.
(4) An order under this section may also be made by an
Appellate Court or by the High Court or Court of Session
when exercising its powers of revision.
(5) At the time of awarding compensation in any subsequent
civil suit relating to the same matter, the Court shall take into
account any sum paid or recovered as compensation under
this section.”
6. In the aforesaid context it was pointed out that the essential
requirements under this section are: (a) imposition of fine or
sentence; (b) the aforesaid would naturally be at the time of
passing of the judgment; (c) orders the whole or any part of the
fine be recovered.
7. In the aforesaid scenario as per clause (d) of sub-section (1) of
Section 357 of the CrPC the said amount could be utilised for
payment of compensation for any loss or injury caused by the
offence when such amount would be recoverable in a civil court.
8. This Court’s attention has also been invited to sub-section (3) of
Section 357 CrPC, which again begins with “when the court
imposes a sentence” and where a “fine does not form a part”, an
accused may be asked to pay compensation when passing the
judgment.
9. It is, thus, submitted that it is clear from a plain reading of
Section 357 that such compensation can only arise after the
conclusion of trial albeit, of course, the same being a matter of
discretion. Thus, without a full-fledged trial there cannot be a
sentence and, thus, there cannot be any such compensation.
10. The other provision referred to is Section 235(2) of the CrPC.
“235. Judgment of acquittal or conviction.
(1) After hearing arguments and points of law (if any), the
Judge shall give a judgment in the case.
(2) If the accused is convicted, the Judge shall, unless he
proceeds in accordance with the provisions of section 360,
hear the accused on the question of sentence, and then pass
sentence on him according to law.”
11. It is submitted that a Judge has to hear an accused on the
question of sentence, which would also support the plea as per
the scheme of the Act that the sentence must precede grant of
compensation.
12. It is in the aforesaid context that this Court had opined in
Palaniappa Gounder v. State of Tamil Nadu &Ors. 1 that a court
must take into account the nature of the crime, the injury
suffered, the justness of the claim, the capacity to pay and other
relevant circumstances in fixing the amount of fine or
compensation. These aspects would be considered only after
giving an opportunity to the person convicted to hear him out on
these aspects and that would naturally be post the conviction.
The grant of bail, it was contended, would only be as we say,
even if charges are framed, a prima facie view based on the
principle of not unnecessarily keeping a person in custody.
13. Learned counsel also referred to the provisions of Section 250(1)
“250. Compensation for accusation without reasonable
cause.
(1) If, in any case instituted upon complaint or upon
information given to a police officer or to a Magistrate, one
or more persons is or are accused before a Magistrate of any
offence triable by a Magistrate, and the Magistrate by whom
the case is heard discharges or acquits all or any of the
accused, and is of opinion that there was no reasonable
ground for making the accusation against them or any of
them, the Magistrate may, by his order of discharge or
acquittal, if the person upon whose complaint or information
the accusation was made is present, call upon him forthwith
to show cause why he should not pay compensation to such
accused or to each or any of such accused when there are
more than one; or, if such person is not present, direct the
issue of a summons to him to appear and show cause as
aforesaid.”
14. The aforesaid provision comes also at the same stage albeit
where an accused is acquitted to award compensation if the
Court is satisfied that there was no reasonable ground for making
the accusation against him. This is, of course, in a contra
scenario.
15. One further aspect pointed out by learned counsel for the
appellant is that the inadequacy of compensation is appealable
under Section 372 of the CrPC, which would naturally imply
that a conclusion has been reached on imposition of sentence
and/or fine. The condition for award of damages as a condition
for bail would not be appealable.
16. We called upon learned counsel for the State to address
submissions in this regard but she was not able to portray a
picture against what has been placed before us by the learned
counsel for the appellants and, really cannot be so. In our view
the objective is clear that in cases of offences against body,
compensation to the victim should be a methodology for
redemption. Similarly, to prevent unnecessary harassment,
compensation has been provided where meaningless criminal
proceedings had been started. Such a compensation can hardly
be determined at the stage of grant of bail.
17. We may hasten to add that we are not saying that no monetary
condition can be imposed for grant of bail. We say so as there
are cases of offences against property or otherwise but that
cannot be a compensation to be deposited and disbursed as if that
grant has to take place as a condition of the person being
enlarged on bail.
18. Once we come to the aforesaid conclusion, the direction
contained in the impugned order for deposit of compensation of
Rs.2.00 lakh for the legal heirs of the deceased naturally cannot
be sustained and has to be logically set aside.
19. We also consider it appropriate not only to consider the aforesaid
aspects but also whether bail should be granted to the appellants,
and if so, on what terms and conditions. This is also recorded at
the time of issuance of notice.
20. In the aforesaid context, learned counsel for the appellants
contended that the specific allegations against the two appellants
as Accused Nos. 12 & 13 is that they had beaten the complainant
and the witnesses and not any of the deceased. It was a case of
free fight between two groups where each alleges the other to be
the aggressor. Not only that, the other accused Nos.3, 9, 10 & 6
had been granted bail without imposing the aforesaid condition.
In case of these accused, specific roles related to (a) blows being
given with wooden sticks and iron pipes with a shout to kill, (b)
blow with the stick to the complainant and witnesses and (c) the
allegation of forwarding a Whatsapp recording to create
animosity between the two groups. Apart from these four
accused, it was urged that out of total 13 arrayed accused, 11 had
been released on bail by the High Court and/or Sessions Court.
The High Court had imposed stringent conditions including an
embargo from entering the geographical limits of Amreli and
regularly marking presence before the police station amongst
other conditions. Learned counsel for the appellants claims
parity with those orders and submits that the appellants may be
imposed with the same conditions even though their role was
much less than the other accused persons.
21. Learned counsel for the State, once again, cannot dispute the role
of the appellants vis-à-vis the role of the other accused, who had
been enlarged on bail on the aforesaid terms and conditions.
22. In view of the aforesaid, we consider it appropriate to impose the
same terms and conditions for grant of bail upon the appellants
and set aside condition (f) of the bail requiring the appellants to
deposit Rs.2.00 lakh each towards compensation to the victims
before the trial court and the consequential orders for
disbursement. This condition is instead to be substituted with
the condition that the appellants will not enter the geographical
limits of Amreli for a period of six (6) months except for
marking presence before the concerned police station and to
attend the court proceedings.
23. The appeal is accordingly allowed in the aforesaid terms leaving
the parties to bear their own costs.
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The Supreme Court observed that a condition for payment of compensation to victims cannot be imposed at the stage of bail."We may hasten to add that we are not saying that no monetary condition can be imposed for grant of bail. We say so as there are cases of offences against property or otherwise but that cannot be a compensation to be deposited and disbursed as if that grant has to take...
The Supreme Court observed that a condition for payment of compensation to victims cannot be imposed at the stage of bail.
"We may hasten to add that we are not saying that no monetary condition can be imposed for grant of bail. We say so as there are cases of offences against property or otherwise but that cannot be a compensation to be deposited and disbursed as if that grant has to take place as a condition of the person being enlarged on bail.", the bench of Justices Sanjay Kishan Kaul and Hemant Gupta clarified.
In this case, the accused were granted bail by the High Court with a condition requiring them to deposit Rs.2.00 lakh each as compensation to the victims.
Before the Apex Court, the accused contended that, under Section 357 CrPC, compensation can only arise after the conclusion of trial and without a full-fledged trial there cannot be a sentence and, thus, there cannot be any such compensation. Approving this, the bench observed thus:
"16. In our view the objective is clear that in cases of offences against body, compensation to the victim should be a methodology for redemption. Similarly, to prevent unnecessary harassment, compensation has been provided where meaningless criminal proceedings had been started. Such a compensation can hardly be determined at the stage of grant of bail...17. We may hasten to add that we are not saying that no monetary condition can be imposed for grant of bail. We say so as there are cases of offences against property or otherwise but that cannot be a compensation to be deposited and disbursed as if that grant has to take place as a condition of the person being enlarged on bail."
Having held thus, the bench set aside the condition to deposit Rs.2.00 lakh each as compensation to the victims.
"In view of the aforesaid, we consider it appropriate to impose the same terms and conditions for grant of bail upon the appellants and set aside condition (f) of the bail requiring the appellants to deposit Rs.2.00 lakh each towards compensation to the victims before the trial court and the consequential orders for disbursement. This condition is instead to be substituted with the condition that the appellants will not enter the geographical limits of Amreli for a period of six (6) months except for [9] marking presence before the concerned police station and to attend the court proceedings.", the bench said while partly allowing the appeal
Read Judgment
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ivil Appeal No. 2472 of 1989.
From the Judgment and Order dated 23.4.1987 of the Orissa High Court in M.A. No. 332 of 1984.
A.K. Panda for the Appellant.
R.K. Sahoo for the Respondent.
The Judgment of the Court was delivered by SHARMA, J.
This appeal by special leave by the State of Orissa is directed against the judgment of the Orissa High Court rejecting its appeal under section 39 of the Arbitration Act.
The respondent executed certain work under a written agreement with the appellant and a dispute arose thereunder which was referred to arbitration.
The Arbitration made an award which was filed in Court.
On service of notice the appellant raised several objections which the trial court overruled.
The award was made a rule of the court.
After unsuccessfully moving the 368 High Court in appeal, the appellant has approached this Court.
Except for the objection taken by the appellant on the question of the power of the Arbitrator to grant interest, we do not find any merit in the other points decided by the impugned judgment.
The decision of the High Court is there fore affirmed on all the other points.
So far the question relating to interest is con cerned, it has been contended by the learned counsel for the appellant that the arbitrator exceeded his jurisdiction in allowing the respondent 's claim in view of the decision in Executive Engineer (irrigation), Balimela and others vs Abhaduta Jena and Others, [1988] 1 SCC 418.
It was pointed out therein that this Court had in Seth Thawardas Pherumal vs The Union of India, , held that in case of direct reference to arbitration without the intervention of a court, provisions of neither the Interest Act, 1839 nor the Civil Procedure Code applied to an arbitrator as he was not a court, and interest could, therefore, be awarded only if there was an agreement to pay interest or a usage of trade having the force of law or some other provision of the substantive law which entitled the plaintiff to receive interest.
On the coming in force of the , although the position in regard to the arbitrator 's power to award pendente lite interest continued to be the same, he was vested with the jurisdiction to allow interest pior to the proceeding in view of the definition of "court" in the Act which includes the arbitrator.
Accordingly, it was held that in cases in which the reference to arbitration was made after the commencement of the new Act, that is, August 19, 1981, the arbitrator may award prior interest, but in those cases also he cannot grant pendente lite interest.
Since the reference in the case before us was made in March 1982, no objection can be taken to that part of the award whereby the respondent has been allowed the claim of interest for the earlier period.
The learned counsel for the appellant argued that the arbitrator allowed the past interest twice over.
The award is a nonspeaking one and in paragraph 1 it says that the appellant shall pay the claimant Rs. 1,29,000 in full satis faction of the claims.
In paragraph 2 of the award it is held that the claimant is entitled to interest at the rate of 12 per cent per annum on the above principal sum of Rs. 1,29,000 from 1.10.1978 till the payment of the decree.
According to the learned counsel for the appellant the sum of Rs. 1,29,000 included the claim of interest also.
In view of the clear language of paragraph 2 of the award, we reject the argument.
369 5.
The appellant, however, is entitled to relief with respect to the pendente lite interest included in the award.
The question is as to when this period commences.
According to the appellant the period began on the 20th April, 1982 when the arbitrator must be deemed to have entered on refer ence.
The respondent contends that this period must be held not to have commenced earlier than the 9th of July, 1982 when the parties filed their claim and counter claim.
The argument is that until the arbitrator applies his mind, he cannot be assumed to have entered on arbitration.
Reliance has been placed on Gujarat Water Supply and Sewerage Board vs Unique Erectors (Gujarat) (P) Ltd. and another; , 6.
Before proceeding further it will be helpful to examine the language of section 3 of the which states that in cases where the conditions mentioned in clauses (a) and (b) of sub section (1) are satisfied the Court may allow interest for the past period terminating on "the date of institution of the proceedings".
By reason of.the inclusive definition of "court" in section 2(a) the Act is applicable to arbitration.
The question, therefore, is as to when the proceeding before an arbitrator is deemed to com mence.
It has not been suggested before us that the neces sary conditions for the application of section 3 .are not satis fied in the present case and so the respondent is not enti tled to the benefit under 1978 Act; and we, therefore, proceed on the assumption that the provisions of the Act govern the case.
The arbitrator in the present case was appointed on 16.3.
He after being informed about his appointment, directed the parties to submit their statements of claim by the 20th April, 1982.
The actual date when this order was made is not known.
The contractor respondent filed his statement on 5.5. 1982 and the appellant on 9.7.1982.
Rely ing on the observation in lossifoglu vs Coumantaros, , and those of Raghubar Dayal, J. in Hari Shankar Lal vs Shambhunath Prasad and others; , at page 732, Mr. Panda, learned counsel for the appellant, contended that the arbitrator cannot be said to have entered on the reference earlier than April 20, 1982.
According to the learned counsel for the respondent it could not be before 9.7. 1982 when the arbitrator applied his mind to the cases of the parties.
Reference was made to the decisions of several High Courts.
In our view none of these cases is helpful to resolve the present controversy.
They all deal with the point as to when an arbitrator is said to enter on reference.
They were not concerned with the question as to when a proceeding before an arbitrator is deemed to com mence.
370 8.
So far an action in a court of law is concerned, it must be held that it commences on the filing of a proper claim in accordance with the prescribed procedure before the authority empowered to receive the same.
If a plaint, drawn up in accordance with the prescribed law, is filed before a civil court, the suit must be deemed to have been instituted on the date, and not on a later date when the court takes up the plaint and applies its mind.
Ordinarily the plaint is examined by the stamp reporter of the court who scrutinises whether proper court fee has been paid or not, and then makes a report.
The court generally takes up the plaint only later.
Similar is the position with respect to other appli cations and memoranda of appeals.
It must, therefore, be held that the proceeding is instituted when the claimant files his claim.
We do not see any reason to apply a differ ent approach in the case of an arbitration proceeding.
As soon as the arbitrator indicates his willingness to act as such, the proceeding must be held to have commenced.
This aspect did not arise for decision in the cases Executive Engineer (Irrigation) vs Abhaduta Jena, [1988] 1 SCC 418 or Gujarat Water Supply and Sewerage Board vs Unique Erectors (Gujarat) (P) Ltd., ; and no assistance from them can be taken in the present appeal.
The learned counsel for the appellant is, therefore, right in saying that the arbitrator in the present case, by directing on 20.4.
1982 the parties to file 'their statements of claim, clearly indicated that he accepted the offer to arbitrate.
The proceeding must, therefore, be deemed to have instituted not later than this date.
We accordingly hold that the award so far it allowed interest for the period after 20.4.
1982 is without jurisdiction and must be excluded.
The appeal is accordingly allowed in part.
The parties shall bear their own costs.
Y. Lal Appeal partly allowed.
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The Respondent executed certain works under a written agreement with the appellant and a dispute arose thereunder which was referred to arbitration.
The arbitrator made an award which was filed in Court.
The appellant raised several objections which were all overruled by the Trial Court, and the award was made a rule of the Court.
The appellant there upon appealed to the High Court under section 39 of the Arbitration Act which was rejected.
Hence this appeal by the appellant.
The Court did not find any substance in the objections raised by the appellant except the one taken by him regard ing the power of the arbitrator to grant interest.
Therefore the question that arose for determination by the Court was whether the arbitrator was competent to award interest and if so in respect of which period, and further in the circum stances of the case, from which date the proceedings before the Arbitrator should be deemed to have commenced.
Partly allowing the appeal on that question, this Court, HELD: Since the reference in this case was made in March 198L no objection can be taken to that part of the award whereby the respondent has been allowed the claim of inter est for the earlier period.
[368F] See: Executive Engineer (Irrigation) Balimela and Ors.
vs Abliaduta Jena and Others, [1988] 1 SCC 418 and Seth Thawardas Pherumal vs The Union of India, The arbitrator in the present case was appointed on i6.3.1982.
He after being informed about his appointment, directed the parties to submit their statements of claim by the 20th April, 1982.
The actual 367 date when this order was made is not known.
[369E] So for as an action in a Court of law is concerned, it must be held that it commences on the filing of a proper claim in accordance with the prescribed procedure before the authority empowered to receive the same.
No reason is seen to apply a different approach in the case of arbitration proceedings.
As soon as the arbitrator indicates his will ingness to act as such, the proceeding must be held to commence.
[370A C] The arbitrator in the present case, by directing on 20.4.82 the parties to file their statements of claim, clearly indicated that he accepted the ' offer to arbitrate.
The proceeding must, therefore, be deemed to have been instituted not later than this date.
[370D] The award so far as it allowed interest for the period after 20.4.82 is without jurisdiction and must be excluded.
The appeal is accordingly allowed in part.
[370E] Gujarat Water Supply and Sewerage Board vs Unique Erec tors (Gujarat) (P) Ltd. & Anr.
, ; ; lossi foglu vs Coumantaros, and Hari Shankar Lal vs Shambhunath Prasad & Ors., ; , referred to.
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order dated 17.01.2022 passed by the High Court for the State of Telangana at
Hyderabad in CRP No. 2374/2019 & 2304/2019, by which the High Court has
dismissed the said revision petitions preferred by the appellant herein, the original
revisionist has preferred the present appeals.
2. The facts leading to the present appeals in a nutshell are as under: That the
respondent herein – original plaintiff instituted a Civil Suit No. 291/2013 against the
mother of the appellant – original defendant for specific performance of the agreement
to sell dated 09.05.2012. In the agreement to sell, the late mother of the appellant
agreed to sell the suit property for a total sale consideration of Rs. 23,00,000/-, against
which an advance of Rs. 8,00,000/- was paid by the plaintiff.
2.1 That the trial Court passed an ex-parte judgment and decree on 12.10.2013 and
passed a decree for specific performance of the agreement to sell dated 9.5.2012.
While decreeing the suit, the trial Court directed the respondent – original plaintiff to
deposit the balance sale consideration of Rs. 15,00,000/- within two weeks before the
trial Court. The trial Court also observed that in case the defendant fails to execute
the sale deed on receiving the balance of sale consideration, the plaintiff is at liberty
to get it done through process of law. Therefore, under the decree dated 12.10.2013,
the plaintiff was required to deposit Rs. 15,00,000/- within a period of two weeks from
the judgment and decree dated 12.10.2013. Thus, as per the judgment and decree
dated 12.10.2013, the respondent – original plaintiff was required to pay/deposit the
balance sale consideration of Rs. 15,00,000/- on or before 21.10.2013. However, the
respondent herein – original plaintiff failed to pay/deposit the balance sale
consideration as ordered by the trial Court.
2.2 After a period of 853 days from the date of judgment and decree dated
12.10.2013 passed by the trial Court, the original plaintiff – respondent herein filed an
application before the trial Court under Section 148 of the Code of Civil Procedure (for
short, ‘CPC’) and Section 28 of the Specific Relief Act being I.A. No. 732/2016 in O.S.
No. 291/2013 and prayed for extension of time to deposit the balance sale
consideration which the plaintiff was required to deposit on or before 21.10.2013 , as
per the judgment and decree dated 12.10.2013. At this stage, it is required to be noted
that after the ex-parte judgment and decree, the mother of the appellant – original
defendant died on 13.01.2015 and the appellant herein being legal heir of the original
defendant was brought on record. Simultaneously, the appellant, being the legal
representative of the original defendant, filed an application being I.A. No. 914/2017
in O.S. No. 291/2013 under Section 28 of the Specific Relief Act, 1963 to rescind the
Agreement to Sell dated 9.5.2012.
2.3 Before the trial Court, it was the case on behalf of the plaintiff in support of I.A.
No. 732/2016 that he became sick with Jaundice and treated in the hospital from
1.11.2013 to 5.1.2014 and after discharge also confined to house with High Blood
Pressure, Diabetes and other diseases. It was also the case on behalf of the plaintiff
that ultimately on 9.6.2016 when he contacted the advocate he came to know about
the judgment and decree dated 12.10.2013 and the directions given thereunder.
Therefore, it was prayed to condone the delay of 853 days and extend the time to
deposit the balance sale consideration.
2.4 The said application was opposed by the appellant. It was the case on behalf
of the appellant in support of the application under Section 28 of the Specific Relief
Act that the plaintiff has wilfully not deposited the balance sale consideration and
therefore the agreement to sell dated 9.5.2012 is required to be rescinded under
section 28 of the Specific Relief Act. It was also the case on behalf of the appellant
that the alleged illness is false and created. By common order dated 29.06.2019, the
trial Court allowed I.A. No. 732/2016 directing the plaintiff to deposit the balance sale
consideration of Rs. 15,00,000/- with interest @ 18% per annum from the date of
decree, i.e., 12.10.2013 till the date of deposit, within one month. Consequently, the
trial Court dismissed I.A. No. 914/2017 filed by the appellant under Section 28 of the
2.5 Feeling aggrieved and dissatisfied with the common order dated 29.06.2019
passed by the trial Court in I.A. No. 732/2016 & I.A. No. 914/2017, the appellant herein
filed the present revision applications before the High Court. By the impugned
common judgment and order, the High Court has dismissed the said revision
applications. Hence, the present appeals.
3. Shri Mithun Shashank, learned counsel appearing on behalf of the appellant
has vehemently submitted that in the facts and circumstances of the case, the trial
Court committed a serious error in allowing the application submitted by the original
plaintiff and extending the time by directing the plaintiff to deposit the balance sale
consideration and dismissing the application filed by the appellant under Section 28
of the Specific Relief Act.
3.1 It is vehemently submitted that as such there was a huge delay of 853 days in
submitting the application for extension of time to deposit the amount under section
148 CPC and Section 28 of the Specific Relief Act. It is submitted that no sufficient
cause was shown and/or there was no explanation whatsoever given by the decree
holder as to why he did not pay the balance sale consideration as per the judgment
and decree dated 12.10.2013 or did not make an application under Section 28 of the
Specific Relief Act, seeking extension of time to make the payment of balance sale
3.2 It is vehemently submitted that even as per the original plaintiff he became sick
with Jaundice and was treated in the hospital from 1.11.2013 to 5.1.2014 only. It is
submitted that it is not believable at all that thereafter he was confined to house with
High Blood Pressure, Diabetes and other diseases for approximately two years. It is
submitted that therefore in absence of any reasonable explanation, the trial Court
ought not to have condoned the huge delay of 853 days occurred in filing the
application for extension of time to deposit the balance sale consideration as per the
judgment and decree passed by the trial Court. It is submitted that therefore the High
Court has committed a very serious error in dismissing the revision applications.
3.3 It is further submitted by the learned counsel appearing on behalf of the
appellant that as such the original plaintiff obtained the ex-parte judgment and decree
dated 12.10.2013. It is submitted that the original defendant – mother of the appellant
died on 13.01.2015. Till her death, no efforts were made by the plaintiff to deposit the
balance sale consideration of Rs. 15,00,000/-. It is submitted that neither the balance
sale consideration as directed by the trial Court was paid, nor any steps were taken
to get the sale deed executed by the original defendant. It is submitted that the
aforesaid conduct on the part of the original plaintiff disentitles him for any relief of
extension of time for deposit of the balance sale consideration and therefore the trial
Court ought to have rescinded the agreement to sell dated 9.5.2012, in exercise of
powers under Section 28 of the Specific Relief Act. Heavy reliance is placed on the
decision of this Court in the case of V.S. Palanichamy Chettiar Firm v. C. Alagappan
and Another, reported in (1999) 4 SCC 702 ( paragraphs 14, 16 & 17).
3.4 It is further submitted that even the equity is also in favour of the appellant. It is
submitted that after the ex-parte judgment and decree, in the year 2013 the prices of
the agricultural land in question have gone up to Rs. 3 crores. It is submitted that
despite the judgment and decree, non-deposit of the balance sale consideration of
Rs. 15,00,000/- at the relevant time, i.e., within a period of two weeks from the
judgment and decree dated 12.10.2013, disentitle the plaintiff seeking any extension
and it can be inferred that the plaintiff was not ready and willing to perform his part of
the contract and even as directed by the trial Court and therefore this is a fit case to
rescind the agreement to sell dated 9.5.2012 , in exercise of powers under Section 28
of the Specific Relief Act.
3.5 Making above submissions and relying upon the aforesaid decision, it is prayed
to allow the present appeals.
4. The present appeals are opposed by Shri Harshit Tolia, learned counsel
appearing on behalf of the original plaintiff.
4.1 It is vehemently submitted by Shri Tolia, learned counsel appearing on behalf
of the original plaintiff that the order passed by the trial Court in an application under
Section 148 CPC and Section 28 of the Specific Relief Act is discretionary in nature
and when the trial Court had exercised its discretion in favour of the plaintiff and
thereafter when the revision applications have been dismissed by the High Court, the
same may not be interfered with by this Court.
4.2 It is further submitted that the delay of 853 days was sufficiently explained by
the plaintiff. It is submitted that the plaintiff became sick with Jaundice and was treated
in the hospital from 1.11.2013 to 5.1.2014. That thereafter and after his discharge he
was also confined to house with High Blood Pressure, Diabetes and other diseases
which were supported by the medical record. It is submitted that the trial Court had
accepted the explanation submitted on behalf of the plaintiff explaining the delay
occurred in making the application under Section 148 CPC and Section 28 of the
Specific Relief Act and thereafter when the trial Court extended the time and directed
the plaintiff to deposit/pay the balance sale consideration of Rs. 15,00,000/- with
interest @ 18% per annum and when the same is confirmed by the High Court, the
same may not be interfered with by this Court.
4.3 It is submitted that to strike the balance, the trial Court in fact had directed the
plaintiff to pay/deposit the balance sale consideration of Rs. 15 ,00,000/- with interest
@ 18% per annum from the date of judgment and decree dated 12.10.2013 till the
actual payment.
4.4 Making above submissions and relying upon the recent decision of this Court in
the case of Kishor Ghanshyamsa Paralikar (D) through Lrs. V. Balaji Mandir
Sansthan Mangrul (Nath) & Another (Civil Appeal No. 3794/2022, decided on
9.5.2022), it is prayed to dismiss the present appeals.
5. We have heard learned counsel for the respective parties at length.
At the outset, it is required to be noted that by an ex-parte judgment and decree
dated 12.10.2013, the trial Court passed a decree for specific performance of the
agreement to sell dated 9.5.2012. In the agreement to sell dated 9.5.2012, the total
sale consideration was Rs. 23,00,000/-, against which Rs. 8,00,000/- was paid as
advance. The balance sale consideration of Rs. 15,00,000/- was directed to be
deposited/paid by the plaintiff under the ex-parte judgment and decree dated
12.10.2013, within two weeks from the said date, which expired on 21.10.2013.
Nothing is on record that any steps were taken by the plaintiff either to deposit/pay the
balance sale consideration of Rs. 15 ,00,000/- or even calling upon the defendant to
execute the sale deed as per the judgment and decree passed by the trial Court dated
12.10.2013 till the present application under Section 148 CPC and Section 28 of the
Specific Relief Act was filed on 7.6.2017/19.06.2017 with a huge delay of 853 days,
seeking extension of time to deposit the balance sale consideration. The reasons for
delay are set out hereinabove. The explanation which was given by the plaintiff,
narrated hereinabove, can hardly be said to be a sufficient explanation as to why the
plaintiff did not pay the balance sale consideration as per the judgment and decree or
even did not make an application within a reasonable time under Section 148 CPC
and Section 28 of the Specific Relief Act seeking extension of time for making
payment. If the plaintiff was ready with the money payable towards the balance sale
consideration, he could have got the sale deed executed through power of attorney
after effecting deposit/payment. In absence of any sufficient explanation, such a huge
delay of 853 days ought not to have been condoned by the trial Court.
6. It is observed and held by this Court in the case of V.S. Palanichamy Chettiar
Firm (supra) that provisions to grant specific performance of an agreement are quite
stringent. Equitable considerations come into play. The Court has to see all the
attendant circumstances including if the vendee has conducted himself in a
reasonable manner under the contract of sale. It is further observed that therefore, the
Court cannot as a matter of course, allow extension of time for making payment of
balance amount of consideration in terms of a decree. It is further observed that in
absence of any explanation whatsoever even by the decree holders as to why they
did not pay the balance amount of consideration as per the decree or did not make an
application under section 28 of the Specific Relief Act seeking extension of time for
making payment, equity demands that discretion be not exercised in favour of the
decree holders and no extension of time be granted to them to comply with the decree.
7. Now so far as the reliance placed upon the decision of this Court in the case of
Kishor Ghanshyamsa Paralikar (D) through Lrs. (supra), relied upon on behalf of
the respondent is concerned, it is required to be noted that in the said case before this
Court, the total sale consideration was Rs. 8,78,500/-. The vendee paid a sum of Rs.
7,31,000/immediately. He was required to pay the remaining amount of Rs. 1 ,47,500/-
within a period of one month from the date of the compromise decree. There was a
delay of five days only in paying the remaining amount of Rs. 1,47,500/-. Therefore,
in exercise of powers under Section 28 of the Specific Relief Act, this Court allowed
the extension of time in favour of the decree holder to deposit the balance sale
consideration. In the said decision, in paragraph 11, it is observed as under:
“11.This section gives to the vendor or the lessor the right to rescission of the contract for the
sale or lease of the immovable property in the same suit, when after a suit for specific
performance is decreed, if the vendor or the lessor fails to pay the purchase money within
the period fixed. This section seeks to provide complete relief to both the parties in terms of
a decree of specific performance in the said suit without having resort to a separate
proceeding. Therefore, a suit for specific performance does not come to an end on the
passing of a decree and the court which has passed the decree for specific performance
retains control over the decree even after the decree has been passed. Section 28 not only
permits the judgment-debtors to seek rescission of the contract but also permits extension of
time by the court to pay the amount. The power under this section is discretionary and the
court has to pass an order as the justice of the case may require. It is also settled that time
for payment of sale consideration may be extended even in a consent decree. This Court in
Smt. Periyakkal and ors. Vs. Smt. Dakshyani1, speaking through Chinnappa Reddy, J.
observed that even in a compromise decree, the court may enlarge the time in order to
prevent manifest injustice, and to give relief to the aggrieved party against a forfeiture clause.
The Court observed the following:
“4.……………. The parties, however, entered into a compromise and invited the court to
make an order in terms of the compromise, which the court did. The time for deposit stipulated
by the parties became the time allowed by the court and this gave the court the jurisdiction
to extend time in appropriate cases. Of course, time would not be extended ordinarily, nor for
the mere asking. It would be granted in rare cases to prevent manifest injustice. True the
court would not rewrite a contract between the parties but the court would relieve against a
forfeiture clause; And, where the contract of the parties has merged in the order of the court,
the court's freedom to act to further the ends of justice would surely not stand curtailed.”
Therefore, as observed by this Court, the power under Section 28 of the Specific Relief
Act is discretionary and the Court has to pass an order as the justice may require.
8. Applying the law laid down by this Court in the aforesaid decision to the facts of
the case on hand and considering Section 28 of the Specific Relief Act, we are of the
opinion that the trial Court erred in exercising the discretion in favour of the plaintiff
and erred in extending the time in favour of the plaintiff to deposit the balance sale
consideration of Rs. 15,00,000/- by condoning the huge delay of 853 days, which as
observed hereinabove has not been explained sufficiently at all. As observed
hereinabove, after the plaintiff was directed to deposit the balance sale consideration
of Rs. 15,00,000/within a period of two weeks from the date of ex-parte judgment and
decree dated 12.10.2013, which the plaintiff failed to deposit/pay, even no application
for extension of time under Section 148 CPC and Section 28 of the Specific Relief Act
was made thereafter within a reasonable time and was made after a period of 853
days. Nothing is on record that in between any notice was given to the defendant to
execute the sale deed as per the judgment and decree on deposit of the balance sale
consideration. The application filed by the plaintiff under Section 148 CPC and Section
28 of the Specific Relief Act seeking extension of time to deposit the balance sale
consideration was hopelessly delayed. As observed hereinabove, Section 28 of the
Specific Relief Act seeks to provide complete relief to both the parties in terms of a
decree of specific performance. Therefore, the trial Court failed to exercise the
discretion judiciously in favour of the defendant and erred in exercising the
discretionary power in favour of the plaintiff, that too with a delay of 853 days. The
High Court has erred in confirming the same and dismissing the revision applications.
Under the circumstances, the order passed by the trial Court allowing the application
of the plaintiff being I.A. No. 732/2016 seeking extension of time to deposit the balance
sale consideration deserves to be dismissed and I.A. No. 914/2017 filed by the
defendant – appellant under Section 28 of the Specific Relief Act to rescind the
agreement to sell dated 9.5.2012 deserves to be allowed.
However, at the same time, to strike the balance between the parties the
amount of Rs. 8,00,000/- paid by the plaintiff as an advance is to be returned to the
plaintiff with 12% interest per annum from 9.5.2012 till the actual payment, within a
period of six weeks from today, failing which it shall carry interest @ 18% per annum.
9. In view of the above and for the reasons stated above, both these appeals
succeed. The impugned common judgment and order dated 17.01.2022 passed by
the High Court dismissing the revision applications and the common order passed by
the trial Court dated 29.06.2019 allowing I.A. No. 732/2016 filed by the plaintiff seeking
extension of time with a huge delay of 853 days and dismissing I.A. No. 914/2017 filed
by the defendant to rescind the agreement to sell dated 09.05.2012 are hereby
quashed and set aside. I.A. No. 732/2016 filed by the plaintiff under Section 148 CPC
and Section 28 of the Specific Relief Act seeking extension of time with a huge delay
of 853 days to deposit the balance sale consideration stands dismissed. I.A. No.
914/2017 filed by the appellant – defendant under Section 28 of the Specific Relief
Act to rescind the agreement to sell dated 09.05.2012 on non-payment of/deposit of
the balance sale consideration by the plaintiff, which the plaintiff was required to
deposit/pay within a period of two weeks from the date of ex-parte judgment and
decree dated 12.10.2013, stands allowed. Agreement to sell dated 09.05.2012 stands
rescinded in exercise of powers under Section 28 of the Specific Relief Act. However,
the appellant herein is directed to refund the amount of Rs. 8,00,000/- to the plaintiff
with 12% interest from 09.05.2012 till the actual payment, within a period of six weeks
from today, failing which it shall carry interest @ 18% per annum.
10. The instant appeals are allowed accordingly in the aforesaid terms. No costs.
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The Supreme Court recently rescinded a sale agreement after noting that the plaintiff, who secured a decree for specific performance of the contract, had failed to deposit the balance sale consideration within time.
Observing that the time for paying sale consideration cannot be extended as a matter of course, the Apex Court found fault with the trial court for condoning the huge delay of 853 days which the plaintiff took to move an application seeking extension of time to deposit the balance amount.
Highlighting that the power under section 28 of the Specific Relief Act is discretionary, a Bench of Justices MR Shah and CT Ravikumar observed that it was not correct on the part of the Trial Court to condone a delay of 853 days which the plaintiff took to move an application seeking extension of time to pay the balance amount of a sale consideration.
“Therefore, as observed by this Court, the power under Section 28 of the Specific Relief Act is discretionary and the Court has to pass an order as the justice may require…..The application filed by the plaintiff under Section 148 CPC and Section 28 of the Specific Relief Act seeking extension of time to deposit the balance sale consideration was hopelessly delayed. As observed hereinabove, Section 28 of the Specific Relief Act seeks to provide complete relief to both the parties in terms of a decree of specific performance. Therefore, the trial Court failed to exercise the discretion judiciously in favour of the defendant and erred in exercising the discretionary power in favour of the plaintiff, that too with a delay of 853 days.”
Factual Matrix
The original plaintiff instituted a Civil Suit against the mother of the appellant – original defendant for specific performance of an agreement to sell dated May 9, 2012. In the agreement, the late mother of the appellant agreed to sell the suit property for a total sale consideration of Rs. 23 Lakhs; plaintiff had already paid Rs. 8 Lakhs as advance. The trial Court passed an ex-parte judgment and a decree for specific performance of the agreement to sell.
While decreeing the suit, the trial Court directed the respondent – original plaintiff to deposit the balance sale consideration of Rs. 15 Lakhs within two weeks.
However, the respondent – original plaintiff failed to pay the balance sale consideration as ordered. After 853 days, the original plaintiff filed an application under Section 148 of the Code of Civil Procedure and Section 28 of the Specific Relief Act seeking extension of time to deposit the balance sale consideration. The Trial Court allowed the plaintiff to deposit the balance amount with an interest of 18%, within one month. Revision petitions moved before the High Court also came to be dismissed. Therefore, the appellant moved the Top Court.
Advocate Mithun Shashank for the appellant argued that the trial Court committed a serious error in allowing the application seeking extension of time. The delay of 853 days to file the application seeking extension of time to deposit the balance amount was also highlighted.
Advocate Harshit Tolia for the original plaintiff argued that the order passed by the trial Court in an application under Section 148 CPC and Section 28 of the Specific Relief Act is discretionary in nature. When the trial Court and High Court had exercised its discretion in favour of the plaintiff, it need not be interfered with. Further, he contended that the delay of 853 days was owing to party’s medical difficulties such as jaundice, high blood pressure, etc.
What the Court observed
The Supreme Court did not deem these reasons as good-enough for not moving the application in a timely manner.
“The explanation which was given by the plaintiff, narrated hereinabove, can hardly be said to be a sufficient explanation as to why the plaintiff did not pay the balance sale consideration as per the judgment and decree or even did not make an application within a reasonable time under Section 148 CPC and Section 28 of the Specific Relief Act seeking extension of time for making payment.”
If the plaintiff was ready with the money, he could have got the sale deed executed through power of attorney after effecting payment, the Court said while adding that the Trial Court was wrong to condone the huge delay of 853 days without sufficient explanation.
Referring to V.S. Palanichamy Chettiar judgement, the Court said that the provisions to grant specific performance of an agreement are quite stringent.
“Equitable considerations come into play. The Court has to see all the attendant circumstances including if the vendee has conducted himself in a reasonable manner under the contract of sale. It is further observed that therefore, the Court cannot as a matter of course, allow extension of time for making payment of balance amount of consideration in terms of a decree”, the court reiterated in its judgement.
But in order to strike a balance between the parties, the Court ordered the respondent to pay back the advance amount of Rs. 8 Lakhs to the plaintiff with 12% interest till the actual payment, within six weeks. With these observations, the Court set aside the judgements passed by the Trial Court and High Court.
Case Title: P. Shyamala Versus Gundlur Masthan | Civil Appeal Nos. 1363-1364 OF 2023
For Appellant(s) Mr. Krishna Dev Jagarlamudi, AOR
For Respondent(s) Mr. Shrey Kapoor , AOR Mr. Harshit Tolia, Adv. Mr. Sitesh Narayan Singh, Adv.
Specific Relief Act 1963- Section 28- The Court cannot as a matter of course, allow extension of time for making payment of balance amount of consideration in terms of a decree-The Court has to see all the attendant circumstances including if the vendee has conducted himself in a reasonable manner under the contract of sale-the power under Section 28 of the Specific Relief Act is discretionary and the Court has to pass an order as the justice may require - Para 7- Followed V.S. Palanichamy Chettiar Firm v. C. Alagappan and Another, reported in (1999) 4 SCC 702
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1. Feeling aggrieved and dissatisfied with the impugned judgment and order dated
23.02.2018 passed by the High Court of Madhya Pradesh, Principal Seat at Jabalpur in
Writ Petition No. 3190/2018, by which the High Court has dismissed the said writ petition
by holding that the original writ petitioners are not entitled to seek a writ of quo warranto,
the original writ petitioner No.1 has preferred the present appeal.
2. Before the High Court, the original writ petitioners prayed for the following reliefs:
A. It is, therefore, prayed that this Hon’ble Court may kindly be pleased to call the entire
record of the appointments of the Quota under limited competitive examination since 2007
and pursue it and quash the impugned order dated 19.01.2018 (Annex. P-11) and
B. It is therefore, prayed that this Hon’ble Court may kindly be pleased to cancel the
appointments Exceeds 10% of Quota of the candidates to appointed through limited
competitive examination u/r 5(1)(b) of rules 1994, since 2007 to 2017 exceeds the limit of
10% quota as fixed by Hon’ble Supreme Court and direct to filled up the seats with regular
C. It is therefore, prayed that this Hon’ble Court may kindly be pleased to direct to the
respondents to make the necessary amendment in rule 5(1) (b) of the rules 1994 and
reduce the limit from 25% to 10% appointment in limited competitive examination so that
Hon’ble Apex Court order dated 20.04.2010 passed in All India Judges Association and
others V/s Union of India and others may be compliance.
D. The Hon’ble Court may kindly direct to the initiate departmental enquiry, against
the authority who deliberately disobedient the order of the Hon’ble Supreme Court and
with regard to not following the quota limit of 10% u/r 5(1)(b) of rules of 1994 with regard
to limited competitive examination, and punish to them an accordance with law.
E. Any other relief as deemed fit and proper in the circumstances of this case, along
with the cost of this writ petition be also awarded.
3. Before the High Court, it was the case on behalf of the original writ petitioners that
despite the directions issued by this Court in the case of All India Judges’ Association
and Others v. Union of India and Others, reported in (2010) 15 SCC 170, directing all
the High Courts to fill up the posts in the higher judiciary by reserving 10% seats to be
filled up by limited departmental competitive examination, the High Court of Madhya
Pradesh has exceeded the quota and has filled up the posts in the higher judiciary beyond
10% quota. It is/was the case on behalf of the original writ petitioners that despite the
specific direction issued by this Court directing all the High Courts to see that the existing
Service Rules be amended positively with effect from 1.1.2011, the High Court of Madhya
Pradesh did not amend the rules providing 10% seats to be filled up by limited
departmental competitive examination.
4. By the impugned judgment and order and despite the fact that the aforesaid reliefs
were prayed by the original writ petitioners, the High Court has considered that the original
writ petitioners have prayed for a writ of quo warranto. The aforesaid reliefs cannot be said
to be the reliefs of a writ of quo warranto. However, instead of remanding the matter to the
High Court, we ourselves have considered the matter and the issues on merits.
5. Learned counsel appearing on behalf of the High Court has submitted that initially
in the year 2005, the High Court did amend the Recruitment Rules, however, the same
came to be set aside by the High Court and the matter reached to this Court and thereafter
after conclusion of the proceedings before this Court in the year 2018, the High Court
amended the Recruitment Rules in line with the directions issued by this Court in the case
5.1 Learned counsel appearing on behalf of the High Court has also further submitted that
in absence of the selected/appointed candidates, no relief can be granted by quashing
and setting aside the appointments made in excess of the quota beyond 10%.
6. Heard learned counsel for the respective parties at length.
This Court in the case of All India Judges’ Association (supra) specifically
directed that from the date of the said judgment, there shall be 25% of seats for direct
recruitment from the Bar, 65% of seats are to be filled up by regular promotion of Civil
Judge (Senior Division) and 10% seats are to be filled up by limited departmental
competitive examination. This Court also further directed that if the candidates are not
available for 10% seats, or are not able to qualify in the examination then vacant posts
are to be filled up by regular promotion in accordance with the Service Rules applicable.
This Court also further directed that all the High Courts to take steps to see that existing
Service Rules be amended positively with effect from 1.1.2011. This Court also further
directed that if the Rules are not suitably amended, the said order shall prevail and further
recruitment from 1.1.2011 shall be continued accordingly as directed.
7. Therefore, as per the directions issued by this Court in the aforesaid decision, on
and from 1.1.2011, only 10% seats are to be filled up by limited departmental competitive
examination. Any appointment beyond 10% seats filled up by limited departmental
competitive examination therefore shall have to be considered appointment excess in
8. In the present case, in the year 2017, there were 740 sanctioned posts. Therefore,
74 seats were to be filled up by limited departmental competitive examination against
which 78 posts were filled up by limited departmental examination. Thereafter, further 11
posts were advertised, out of which 5 posts were filled up. The result would be that the
posts were filled up by limited departmental competitive examination beyond 10% seats
quota for limited departmental competitive examination. As observed hereinabove and as
directed by this Court, 10% seats were required to be filled up by limited departmental
competitive examination w.e.f. 1.1.2011 and any recruitment made from 1.1.2011
onwards. Therefore, the High Court has to undertake the exercise from 1.1.2011 adjusting
the posts and if any appointments are found to have been made beyond 10% seats in a
particular recruitment, the same shall have to be adjusted in future recruitment.
9. So far as challenge to the appointments made in excess of the quota under limited
departmental competitive examination since 2007 and the appointments made in the year
2017/2018, no relief can be granted to the original writ petitioners in absence of those
selected/appointed candidates.
At this stage, learned counsel appearing on behalf of the High Court has strongly
opposed the locus of original writ petitioners by submitted that original writ petitioner No.1
– appellant herein was a suspended judicial officer who subsequently came to be
compulsorily retired. However, without further opining on the locus of the original writ
petitioners, we have considered the matter on merits in light of the decision of this Court
in the case of All India Judges’ Association (supra).
10. In view of the above and for the reasons stated above, the present appeal stands
disposed of by directing as under:
The High Court of Madhya Pradesh is hereby directed to act as per the directions
issued by this Court in the case of All India Judges’ Association (supra), more
particularly directions contained in paragraphs 8 & 9 of the said decision and is directed
to see that 10% seats are filled up by limited departmental competitive examination on
and from 1.1.2011 and if it is found that in any recruitment subsequent to 1.1.2011, the
10% quota is breached, all such posts shall be adjusted in the future recruitments.
11. The instant Civil Appeal stands disposed of in the aforesaid terms.
No costs.
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The Supreme Court, on Monday, directed the Madhya Pradesh High Court to comply with the directions of the Apex Court in All India Judges’ Association And Ors. v. UoI And Ors. (2010) 15 SCC 170, particularly, the one asking the High Courts to reserve only 10% seats in the higher judiciary to be filled up by limited departmental competitive examination.
A Bench comprising Justice MR Shah and Justice CT Ravikumar further directed the High Court to see if the 10% quota was breached in any recruitment subsequent to 1.1.2022 and if so, stated, all such posts were to be adjusted in the future recruitments.
A writ petition was filed before the Madhya Pradesh High Court claiming that though in All India Judges’ Association And Ors. v. UoI And Ors (2010 judgment), the Apex Court had directed the High Courts to fill up posts in the higher judiciary by reserving 10% seats which were to be filled up by limited departmental competitive examination, the Madhya Pradesh High Court had exceeded the quota. Moreover, the High Court did not amend its Service Rules as was directed to be amended with effect from 1.1.2011. The High Court dismissed the plea noting that the petitioners were not entitled to seek a writ of quo warranto. The order of the High Court was impugned before the Supreme Court.
The Division Bench of the Supreme Court noted that in All India Judges’ Association And Ors. v. UoI And Ors. the Apex Court had directed that in the higher judiciary there ought to be 25% seats for direct recruitment from the Bar; 65% seats are to be filled up by regular promotion of Civil Judge; and 10% seats by limited departmental competitive examinations. It had further directed that, in case the 10% seats could be filled by limited departmental competitive examinations for any reason whatsoever, the vacant posts were to be filled up by regular promotion as per the Service Rules. In view of the same, directions were issued to the High Court to amend the Service Rules with effect from 1.1.2022. It had also added that, if the Rules were not suitably amended then the directions issued by the Apex Court would prevail with respect to recruitments beyond 1.1.2011. The Bench observed that in view of the directions passed in the 2010 judgment only 10% of the seats could be filled up by the limited departmental competitive examination.
Considering the facts of the present case, the Bench noted that in 2017, 740 posts were sanctioned and therefore as per the 2010 judgment 74 seats could have been filled up by limited departmental examination. However, 78 seats were filled up by the said mode. Thereafter, 11 more posts were advertised and 5 were filled up. Thus, the High Court had surpassed the 10% quota for seats to be filled up by limited departmental examination. Noting that the writ petitioners are not the selected/appointed candidates for the year 2017 and their locus was opposed by the High Court, the Bench stated that no relief can be granted to them.
Case details
Rajendra Kumar Shrivas v. State of Madhya Pradesh And Ors.| (SC)181 |Civil Appeal No. 1514 of 2023| 13th March, 2023| Justice MR Shah and Justice CT Ravikumar
District Judges Appointments- Higher Judiciary- Supreme Court directs the Madhya Pradesh High Court to comply with the directions of the Apex Court in All India Judges’ Association And Ors. v. UoI And Ors. (2010) 15 SCC 170, particularly, the one asking the High Courts to reserve only 10% seats in the higher judiciary to be filled up by limited departmental competitive examination- directed the High Court to see if the 10% quota was breached in any recruitment subsequent to 1.1.2022 and if so, stated, all such posts were to be adjusted in the future recruitments.
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Two affidavits have been filed before us.
The first affidavit is filed by the Registrar
General of the High Court of Odisha in respect of
the steps taken for providing virtual access which
would obviate the need for any Benches. There are 30
district Courts functioning in the State of Odisha
and the status report qua computerization to
facilitate the functioning in the District Courts
and Taluka Courts has been enclosed. The details of
equipments which have been purchased have been set
out. The e-Filing Version 3.0 stands implemented from
02.04.2022 and a total of 4382 Advocates have
registered on the e-Filing Portal of this Version
and 11290 cases have been filed through e-Filing
Portal in the District Courts. Virtual court rooms
have been established in the various districts and
proceedings are being conducted as per Odisha High
which would facilitate a witness to appear in any
Court including the High Court of Odisha from any
district of the State or from any remote area in
accordance with the Standard Operating Procedure
(SOP). Technical persons have been appointed. The
High Court of Odisha is functioning on hybrid mode
and links are published. Hands on training for
judicial officers, Advocates and Advocates’ clerks
are being conducted. That should have taken care of
the needs of access to justice.
There is, however, something more to it!
The conduct of the Advocates as reflected in the
supplementary affidavit filed by the High Court
leaves us with little doubt that there are many so-
called Advocates enrolled at the Bar whose bread and
butter is obviously not this profession. After the
order was passed by us on 14.11.2022, the same was
circulated to all the Bar Associations through their
respective District Judges. Despite our
observations, agitation and picketing etc.
The matter deteriorated to a stage where the
District Judge, Khurda at Bhubaneswar received
reports about violent obstruction to the judicial
officers, staff and litigants by members of the
Bhubaneswar Bar Association restraining them in
entering court building on 25.11.2022. In fact,
after receiving reliable information, the District
Judge had sought for police protection for judicial
officers, staff and litigants. 300/400 Advocates
obstructed them when staff and officers reached
there and police personnel reached at about 11 a.m.
But even under police protection, the Bar members
prevented access by violently obstructing them. The
District Judge also reported that no prior
information was given to him by the Bar Association
regarding such picketing on 25.11.2022.
It is, however, averred that the District Judge,
Koraput, Jeypore enclosed the extract of the
resolution District Bar Association, Jeypore dated
24/25.11.2022 indicating the decision to withdraw
their earlier resolution for strike dated
There is then an additional affidavit of the
Registrar stating that several Bar Associations of
State of Odisha continue to abstain from work and
have indulged in boycott, picketing etc. during the
month of October, 2022 and also in November, 2022.
The judicial work in least 20 districts continued to
be hampered in the month of October, 2022 and 3216
cumulative judicial working hours have been lost.
The District Judge, Sambalpur intimated that
members of the District Bar Association, Sambalpur
staged a picketing on demand of establishment of the
permanent Bench of Odisha in Western Odisha and even
refused to attend a meeting called by the District
A similar approach has been adopted by the
Baramba Bar Association as per the District Judge,
Cuttack. Position is no different of others.
We had already cautioned the Bar Associations on
many occasions in the earlier main order as well as
on the last date that if they fail to conduct
themselves as members of the noble profession, they
loose any protection. They have done everything to
invite what we are required to now direct to uphold
the majesty of law and direct the working of the
Courts functional.
We may also notice that the Central Action
Committee has filed an affidavit. We notice from
Annexure R-1 to it that the President of the
Sambalpur Bar Association is actually the President
of the Central Action Committee.
If the leaders of the Bar Associations in Odisha
seek to invite harsh action, we will have to oblige
The Bar Council of India is represented before
us. We would expect the Bar Council of India to
take appropriate action against all the executive
members of different Bar Associations on strike
contrary to directions of this Court and logically
we would expect their licences to be suspended at
least till the work is resumed and further action
against the members of the Action Committee.
We would expect the police to provide foolproof
arrangements for ingress and egress of not only the
judicial officers but all willing members of the Bar
and the litigants who would be entitled to contest
their own proceedings. Necessary prohibitory orders
be issued around the areas of the courts and
appropriate steps including any preventive arrest or
other arrest as required in the wisdom of the
administration as required to be taken. We can only
emphasize that it is the administration’s duty and
obligation as also the methodology by which they
have to ensure [no advice is necessary by us] to see
to it that the Courts are made functional and the
agitating lawyers are not able to obstruct the
working of the Court nor any ingress and egress of
the lawyers willing to work or the public who seeks
to practice directly since these lawyers are not
assisting them.
The judicial officers will pass necessary orders
in each of the proceedings and if adverse orders
become necessary, let the same be passed as we have
given the option to the litigants to come to court
and defend or prosecute their proceedings freely.
Further status report be filed by the Registrar.
List on 12.12.2022.
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The State of Odisha is not large enough to merit the demand for the constitution of permanent benches outside Cuttack, the Supreme Court of India said on Monday. A Bench comprising Justices Sanjay Kishan Kaul and Abhay S. Oka was dealing with the problem of lawyers abstaining from work in several districts of Odisha over a long-standing demand for a permanent bench of the Orissa High Court in the western part of the state, at Sambalpur. Whileissuing a slew of directions to resolve the deadlock, including suspending the recalcitrant lawyers and taking strict action against the district bar associations to which they belonged, Justice Kaul also expressed concern over the intensifying demand for more permanent benches of the High Court.
Justice Kaul exclaimed, "What is the core issue? That every district wants a High Court instead of a district court? How big is the state?" He added sarcastically, "Why not raise a demand for one High Court outside each house?" "It is nothing but a display of ego to demand that a High Court bench be constituted at your doorsteps. You can have district judiciary at your doorsteps, but not a High Court. This cannot be done. Odisha is not such a big state," the Supreme Court judge remarked.
When a counsel for one of the district bar associations offered to explain the historical background that formed the basis of the demand, Justice Kaul sharply countered, "There may be historical background. States have been merged, states have been created. But look around the country. How many states have multiple benches of the High Court?" In this connection, he pointed out that many larger states like Bihar had only a single bench. "The only reason Maharashtra has three is because of the area. But where are the rest of the separate benches in the country?" the judge asked.
Justice Kaul also pointed out that e-infrastructure could be used to appropriately address the issues relating to accessibility and representation. "But you do not want to avail of these," he said. On being requested to intervene in this regard, Justice Kaul asked the agitating district bar associations to call off the protests first. "Go back, pass a resolution appealing to each and every member to resume work. Core issue or otherwise, nothing will be heard unless you call off the strike completely," Justice Kaul warned.
Case Title
M/s PLR Projects Private Limited v. Mahanadi Coalfields Limited and Ors. [Diary No. 33859-2022]
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1. The present appeal is directed against an order passed in an intra-
court appeal by the Division Bench of the High Court of Delhi at
New Delhi on 28.5.2012 whereby the judgment and decree passed
by the learned Single Bench of the High Court was set aside and
the suit filed by the appellant-plaintiff was dismissed. The learned
Single Bench decreed the suit of the appellant for a sum of
Rs.96,41,765.31 along with simple interest @ 15% p.a. from the
date of institution of the suit i.e., 5.10.1987, till the date of
payment, on the principal amount of Rs.71,82,266/-.
2. The appellant filed a suit for recovery of Rs.96,41,765.31 on the
ground that appellant is a manufacturer of various varieties of
Kraft, writing and printing papers which are sold to customers
through wholesalers. The appellant sells its products through
direct payment or payment against hundies payable on due date
with the bank by such wholesalers. Respondent-defendant No. 1
was a wholesale dealer of the appellant company in the territory of
Delhi since 1984 and was purchasing paper from the Delhi Sales
Office of the appellant as well as from its mills situated at
Saharanpur. The tentative stock lifted by respondent no. 1 was
worth Rs.15-20 lakhs per month. The respondents were making
regular payments and were enjoying immense confidence of the
appellant. The appellant further explained the terms of the
payment in the plaint filed. The terms of the sale of paper to
respondent No. 1 were stated to be through limited credit of 45-60
days as well as through hundi documents. Fifteen days interest-
free credit facility from the date of delivery was available and
thereafter interest was charged. Any default of payment carried
interest @ 21 % p.a. from the date of delivery till the date of
payment and further penal interest @ 3 %.
3. The Respondent No. 1 lifted huge stocks in the month of November
1985 to January, 1986 but did not make the due payments. Even
some of the hundi documents were dishonored. The appellant
supplied goods worth Rs.72,27,079/- by 189 consignments against
the term of direct payment. The goods were duly received by
respondent no.1 with the signatures of respondent no. 2, its
director, but they defaulted in making the payments. The
respondents made a payment of Rs.2,99,480/- for 9 consignments
by hundi documents but the hundi documents were also returned
by the bank unpaid. It was pointed out that since respondent No. 1
was a wholesaler, they were getting trade discount of Rs.700-750
per ton. Thus, the appellant claimed the following amount:
Interest on outstanding Bills Rs.24,59,499.31
4. In the written statement, it was alleged that the appellant company
was owned and controlled by the family of Bajoria headed by S.S.
Bajoria prior to May 1986. The said family was closely connected
to the respondents. The appellant installed a paper manufacturing
mill at Saharanpur in 1935-36 and offered dealership to the
respondents for Delhi and Bombay markets. The dealership of
Bombay was given up in or about 1955-56. The management of the
appellant changed in May, 1986. It was asserted by the
respondents that the appellant has not rendered true and proper
receipts and a sum of Rs.45 lakhs are due from the appellant. It
was also alleged that the bills raised by the appellant are based on
fictitious transactions which are tainted with fraud, deceit and
circumvention of law. Such transactions are therefore against
public policy and void ab initio. The respondents further alleged
that in 1972-73, the Managing Director of the appellant approached
Shri Nagarmal Jaipuria and suggested that the respondents should
receive certain bills drawn on them inasmuch as the appellant
intended to sell certain quality of paper in open market at prices
higher than the Mill price. The goods could not be taken out from
the Mill unless accepted by one of the wholesalers or dealers. At
the threat of termination of the wholesaler agreement, the
respondents agreed for such proposal. The respondents averred as
“10. Near about the same time, the plaintiff, in addition to
the selling of papers in cash in open market, also indulged in
tax evasion the sales tax on direct sale from Saharanpur was
4%. The sales tax if the goods were transported to Delhi
Depot of the plaintiff and sold from the said depot was Nil.
Thus, there was a net tax saving of the value of the goods
sold in the open market at Delhi. There is no sales tax
leviable on the sale of paper from the Dealer to Dealer at
Delhi. If the sales were made directly from Saharanpur the
Sales Tax leviable was 4%. The dealer to dealer transaction
of sale did not attract payment of anysales tax whatsoever
at Delhi. The Plaintiff in addition to making profit by sale of
paper in the open market at the price higher than the Mill
price also wanted to pocket the sales tax which would have
ordinarily been payable had the sales been made from their
Mills at Saharnapur. This whole ingenious scheme and device
was tainted with fraud and the Jaipuria under undue
influence and coercion were made to submit to the illegal
transactions which were indulged in by the Bajorias/Plaintiff.”
5. One of the issues framed after completion of pleadings was
whether the alleged bills forming the claim in the suits have been
raised on the basis of the fictitious and fraudulent transactions.
The suit has been dismissed by the Division Bench on such issue
inter-alia on the ground that documents had not been proved by
summoning the person, who had issued such large number of
documents (Ex-P1 – Ex-P976).
6. The appellant filed an affidavit of Shri A.S. Bhargava, Retainer,
formerly General Manager-Management Services on 8.12.2003. In
such affidavit, the appellant has produced 976 documents
including copies of all the invoices, debit notes, delivery challan,
ST-1 Form, interest debit notes, letter of the respondents, credit
notes and the statement of accounts. All the invoices are stamped
and signed by the respondents. The appellant also produced ST-1
Form in respect of each of the invoices stamped and signed by
respondents. In the cross-examination, the witness stated that in
case of sale transaction by the company/manufacturer with any
wholesaler, the sales tax can be avoided against ST-1 Form.
However, if the manufacturer would sell these goods directly to any
retailer or consumer, sales tax would be payable. He further
deposed that he has not placed on record the copies of the books
of accounts and that the Bills-cum-Challans have not been
acknowledged by the respondents in their presence. He stated
that the respondents used to lift the material from their godown.
He further deposed that sales tax number is given on the top of the
invoices though he could not say if the sales tax number is not of
Delhi but of Calcutta. He further stated that the transactions in the
suit were from Delhi and no transaction took place from
Saharanpur. The suggestion that the suit transactions are fictitious
was denied.
7. The respondents produced an affidavit of Shri R.C. Jaipuria in
evidence. It was stated that the books of accounts were not
produced for the reason that the office of the respondents was
reconstructed during the period 1993-1995 when there were
torrential rains and the records kept on the open roof got spoiled
and eaten by pests. Though, it is averred that income tax, sales
tax returns of these years have been finalized on the basis of
destroyed books of accounts. The respondents have denied the
receipt of goods and produced documents Ex. DW-1/1 to Ex. DW-
1/5. He accepted his signatures on the invoices, ST-1 Form and the
debit notes but denied signatures on the delivery challans as not of
any of the employee of the respondents. It was stated that
signatures got signed from him on large number of documents
under pressure and duress in the circumstances stated in his
affidavit. He admitted that books of accounts pertaining to
transactions in question have not been filed. He denied that the
respondents had not paid a sum of Rs.2,72,08,398.29 to the
plaintiff between the period 1.5.1985 to 19.3.1987. In respect of
signatures on ST-1 Form, he deposed that he used to sign such
forms under duress and bear his signatures.
8. On the basis of the evidence led, the learned Single Bench decreed
the suit. However, the first appeal was accepted inter alia on the
ground that the appellant has failed to prove that it was registered
as a dealer with the Sales Tax Authorities in Delhi and it failed to
prove having any godown in Delhi. Since the appellant has failed
to prove that it was a registered dealer, it could not effect any sale
of paper at Delhi without paying Central Sales Tax. The Division
“31. We may summarize. The respondent No.1 has failed to
prove that it was registered as a dealer with the Sales Tax
Authorities in Delhi. It failed to prove having any godown at
Delhi. As per the laws applicable to Sales Tax, unless
respondent No.1 proved being a dealer registered at Delhi, it
could not effect any sale of paper at Delhi without paying
Central Sales Tax. It is obvious that respondent No.1
surreptitiously removed its goods from its mill at Saharanpur
not under the cover of the invoices raised in favour of the
appellant, for the reason these invoices show an intra-city
sale and not an inter-city sale. The respondent No.1 has not
led any evidence with respect to goods receipts pertaining to
movement of goods from its mill at Saharanpur to Delhi and
much less shown delivery by any transporter to the
appellant. The aforesaid has been totally ignored by the
learned Single Judge and therefrom it is apparent that the
sales were fictitious i.e. appellant was shown as a name-
lender. Respondent No.1 managed to cheat the revenue.”
9. Learned counsel for the appellant argued that the finding of the
High Court is patently erroneous as the respondents have not
denied that the appellant is a dealer in the State of Delhi which is
evident from Para 10 of the written statement reproduced above.
It was further pointed out that the respondents have not disputed
the registration of the appellant in the written statement nor any
issue was framed about the appellant being a registered dealer in
Delhi. Therefore, the High Court had made out a new case for the
respondents when such case was not even referred to in the
written statement filed.
10. The appellant had filed a registration certificate as the reseller
dealer in Delhi as Annexure P/12 along with an application to
produce such certificate. The said certificate shows that the
appellant was registered as a Dealer under Section 14 of the Delhi
Sales Tax Act, 1975. The nature of business being Reselling of
Paper and Boards only. There is a mention of godown in the
registration certificate as well.
11. Learned counsel for the respondents supported the judgment of
the learned Division Bench and relied upon judgment of this Court
reported as Subhra Mukherjee and Another v. Bharat Coking
Coal Ltd. and Others1 to contend that the onus of proof whether
transactions were genuine and bonafide has to be discharged by
the appellant. Learned counsel for the respondents also relied upon
the judgment of this Court reported as Ishwar Dass Jain v. Sohan
Lal2 to contend that the appellant has not produced account books
but only extracts which are not admissible in evidence and hence
suit was rightly dismissed by the High Court in appeal.
12. We have heard learned counsel for the parties and find that the
Division Bench of the High Court has gravely erred in law in
accepting the appeal of the respondents on wholly erroneous and
untenable grounds. Each of the invoices produced bears the
registration No. S.T. No. 36/102499/08/84 and also bears the stamp
and signatures of the Managing Director/ Director of the
respondents. Apart from such invoice, the appellant has proved
the debit note which has also been stamped and signed by the
Managing Director/ Director. The ST-1 Form also bears the stamp
and signature of the Director of the respondents. Such ST-1 Form
bears the invoice number and the date as well as the value of the
goods. The witness of the respondent has admitted his signatures
on the ST-1 Form, invoice and debit notes. The respondent
company has only denied the signatures of its representative only
on the Delivery Challan.
13. The judgments referred to by the learned counsel for the
respondents are not applicable in the present case. The
respondents have alleged that the alleged bills have been raised
on the basis of fictitious and fraudulent transactions. Since such
stand was of the respondents, the onus of proof of such issue was
on the respondents. Such issue necessarily implies that the raising
of the invoices is not in dispute but it was alleged that such bills
are fictitious and fraudulent. The onus of proof of issue no. 4,
whether the defendant no.1 accepted the bills without actual
delivery of goods to it is also upon the respondents as it is their
stand that the bills were accepted without actual delivery of goods.
14. The reasoning of the Division Bench that the witness examined by
the appellant was not in Delhi when the transactions took place is
wholly irrelevant to determine whether the invoices, debit notes
and ST-1 Form are proved or not. It is not a case of mere exhibition
of documents. Such documents were proved by a witness as such
documents were kept by the appellant in their ordinary course of
business. All these documents are stamped and counter-signed by
the representatives of the respondents. Such documents have
come from the records of the appellant. It is not necessary for the
witness to be signatory of such documents or such documents
were executed in his presence. The documents were maintained in
the regular course of business of the appellant. In fact there is no
dispute about the maintenance and production of such documents.
The witness of the respondent has admitted the execution of all
the invoices, debit notes and ST-1 Form which bear their stamp and
also the signatures of the authorized representative. Therefore, the
reasoning given by the High Court is bereft of any merit.
15. The judgments referred to by the learned counsel for the
respondents are not applicable to the facts of the present case at
all. In Subhra Mukherjee, it was held that a person who attacks a
transaction as sham, bogus and fictitious must prove the same. It
is the respondent, who have alleged the transaction as fraudulent.
In fact, in the aforesaid case, the transaction of sale was found to
be bogus and appeal of the alleged purchasers was dismissed.
Thus, the onus of proof was on the respondents but the
respondents have failed to discharge the same.
16. In Ishwar Dass Jain, it was suit for redemption of usufructuary
mortgagee which was dismissed by the High Court. The appellant
before this Court was the plaintiff. The defence of the respondent
was that there was no relationship of mortgagor and mortgagee
between the parties but that the relationship was as landlord and
tenant. It was the defendant who has not produced his books of
accounts to show that he was paying various amounts as rent to
the appellant every month. In these circumstances, the extract of
accounts produced by the respondent was found to be
unbelievable and the suit decreed. In fact, the respondents in the
written statement itself denied that they do not have the account
books as they got damaged in rain and eaten by pests when they
were kept on the roof of a building during the process of
reconstruction. Such defence on the face of it appears to be made
up defence. The account books were not produced by the
respondents to discharge the onus on them. Therefore, the adverse
inference had to be drawn against the respondents rather than
against the appellant who are not relying upon the entries in the
account books alone to maintain suit but reliance is on the
invoices, debit note as well as ST-1 Form which had been issued
only after the receipt of goods. Though the respondents have
denied the receipt of goods but the receipt of goods is proved by
numerous documents stamped and signed by the respondents.
17. Section 4(2)(a)(v) of the Delhi Sales Tax Act, 1975 excludes the sale
made to the registered dealer from the taxable turnover, which
“(2) For the purposes of this Act, “taxable turnover” means
that part of a dealer’s turnover during the prescribed period
in any year which remains after deducting therefrom,—
(i) sale of goods ……………………….
(A) of goods of the class or classes specified in the certificate
of registration of such dealer, as being intended for use by
him as raw materials in the manufacture in Delhi of any
goods, other than goods specified in the Third Schedule or
(2) for sale by him in the course of inter-State, trade or
commerce, being a sale occasioning, or effected by transfer
of documents of title to such goods during the movement of
(3) for sale by him in the course of export outside India being
a sale occasioning the movement of such goods from Delhi,
or a sale effected by transfer or documents of title to such
goods effected during the movement of such goods from
Delhi, to place outside India and after the goods have
crossed the customs frontiers of India; or”
18. Rule 7 of the Delhi Sales Tax Rules, 1975 allows the dealer to claim
deduction from his turnover if he files a declaration in ST-1 Form
duly filled in and signed by the purchasing dealer or a person
authorized by him in writing. The said Rule reads thus:
“7. Conditions subject to which a dealer may claim
deduction from his turnover on account of sales to registered
(1) A dealer who wishes to deduct from his turnover the
amount in respect of sales on the ground that he is entitled
to make such deduction under the provisions of sub-clause
(v) of clause (a) of sub-section (2) of section 4, shall produce-
(a) copies of the relevant cash memos or bills according at
the sales are cash sales or sales on credit; and
(b) a declaration in Form ST-1 duly filled in and signed by the
purchasing dealer or a person authorised by him in writing:”
19. The respondents have admitted that no sales tax is payable by a
dealer to a dealer. By necessary implication, the respondents are
admitting the appellant to be a dealer as also the respondents to
be dealer under the Delhi Sales Tax Act, 1975. It is only on account
of sales made by a dealer to a dealer that the sales tax is not be
payable as the incidence of payment of tax would be when the
goods are sold to a consumer. The respondents as wholesaler,
were getting the benefit of trade discount, which is an agreed term
of sale.
20. The High Court, in the impugned judgment erred in holding that
the appellant had not examined the author of the documents. Such
reasoning is absolutely erroneous as in the written statement, the
respondents had not denied their signatures on the documents
referred to by the appellant but pleaded duress in executing of
these large number of documents. The witness examined by
respondent no.1 in his cross examination admitted his signature or
that of the representative of company on invoices, debit notes and
on ST-1 Form. The respondent had led no evidence in respect of
fraud or duress apart from self-serving statement. The
consignment of goods was sent from the month of November 1985
to January 1986. The respondent had signed large number of
documents during this period. However, no complaint was made to
any person or authority or even to the plaintiff. It is a denial of
receipt of goods without any basis raised only in the written
statement filed. Such stand is wholly bereft of any truth and is thus
rejected.
21. The debit notes stamped and signed by the respondents were in
respect of trade discount on the wholesale price mentioned in the
invoice. Having accepted the trade discount, which is evident from
the stamp and signatures not only on the debit notes but also on
the invoice as well as on ST-1 Form, shows that the goods were
actually lifted by the respondents for which payment has not been
made. The respondents have taken up wholly untenable ground
that the documents were signed under duress. Large number of
documents such as invoices, debit notes and ST-1 Form spread
over 3 months is unbelievable to be an exercise of duress. The
stand of the respondents is wholly untenable and unjustifiable in
law and is only to defeat the legitimate claim raised by the
appellant. The High Court in the appeal has gravely erred in
setting aside the reasoned order of the learned Single Bench on
the grounds which were not even raised by the respondents.
22. In view of the said fact, the order of the Division Bench of the High
Court dated 28.5.2012 is set aside. The suit is decreed for
recovery of Rs.96,41,765.31 and future interest on the principal
sum of Rs.71,82,266/- @9% p.a. from the date of filing of the suit
till realisation. The appeal is thus hereby allowed.
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The Supreme Court has observed in its judgment delivered on December 16 that the examination of the author of a document is not required, if they had not denied their signature on the document, but only pleaded duress in execution of the same. "The High Court,in the impugned judgment, erred in holding that the appellant had not examined the author of the documents. Such reasoning is...
The Supreme Court has observed in its judgment delivered on December 16 that the examination of the author of a document is not required, if they had not denied their signature on the document, but only pleaded duress in execution of the same.
"The High Court,in the impugned judgment, erred in holding that the appellant had not examined the author of the documents. Such reasoning is absolutely erroneous as in the written statement, the respondents had not denied their signatures on the documents referred to by the appellant but pleaded duress in executing of these large number of documents", the Court's judgment stated.
The Supreme Court also reiterated that the onus to prove that a transaction is sham, bogus and fictitious is on the person who makes such a claim.
A bench comprising Justices Hemant Gupta and V. Ramasubramanian allowed an appeal assailing the order passed by the Division Bench of Delhi High Court setting aside the decree of the Single Judge for the sum of Rs. 96,41,765.31 along with simple interest @ 15% p.a., from the date of institution of suit till the payment of the principal amount.
Factual Background
The appellant filed a recovery suit for a sum of Rs. 96,41,765.31. The Single Judge of the Delhi High Court allowed the suit and passed a decree for the sum along with simple interest. It was eventually set aside by the Division Bench on the ground that the appellant had failed to establish that it was a registered dealer with the Sales Tax Authorities in Delhi and therefore, it could not have sold papers in Delhi without paying Central Sales Tax.
Appellant's/Plaintiff's case
The appellant manufactured writing and printing papers which were sold to customers through wholesalers. The appellant sold its products against direct payment or payment by means of hundies. The respondent no. 1, its wholesaler dealer in Delhi, which purchased paper from its Delhi Sales Office and its mills in Saharanpur, lifted a stock of about Rs. 15-20 lakh per month. The sale made to the respondent no. 1 was through limited credit of 45-60 days as well as hundi. Interest was charged after fifteen days from the date of delivery. The rate of interest was 21% p.a., from the date of delivery till the date of payment along with penal interest of 3%. As a wholesaler, the respondent no. 1 got a trade discount amounting to Rs. 700-750 per ton.
For the stock lifted during the period from November, 1985 to January, 1986, the respondent no. 1 did not make the due payments against the 189 consignment worth Rs. 72,27,079 received by it. Moreover, the hundies for 9 consignments worth Rs. 2,99,480 were also dishonoured. Therefore, the claim of the appellant stood at Rs. 96,41,765.31 (principal amount Rs. 71,82,266+Interest on outstanding bill Rs. 24,59,499.31).
By way of an affidavit, the appellant tendered 976 documents including stamped and signed invoices, delivery challan, deposit notes, ST-1 form etc. In cross-examination the appellant clarified that in sale transactions by manufacturer with wholesaler, the sales tax was exempted, but sale transactions directly between the manufacturer and customer would be taxed.
Respondents'/Defendants' case
The appellants had adduced bills based on fictitious transactions, which are void in law. It was in fact the appellant who owed Rs. 45 lakh to the respondents. The respondents also alleged that the appellant had coerced them to sign documents and on the basis of the same had indulged in tax evasion. As the sale directly made from Saharanpur would be levied with a sales tax of 4%, the appellants used to take out the goods from the Mill in the name of the respondents and would sell it from appellant's Delhi depot in the open market at a higher profit.
By way of an affidavit, the respondents had vouched that they could not adduce their book of account as they were spoiled by torrential rains and were eaten by pests. The receipt of goods and the signature on delivery challans were denied. It was alleged that the ST-1 Forms and certain other documents were signed under duress.
Contention raised by the appellant
It was argued that neither the respondents disputed the sales tax registration of the appellant, nor was an issue framed in this regard. However, the Division Bench had set aside the decree on the basis of non-registration under the Sales Tax Act. The Court was apprised that a registration certificate was filed by the appellant which made it clear that it was registered as a dealer under Section 14 of the Delhi Sales Tax Act, 1975.
Contention raised by the respondent
Placing reliance on Subhra Mukherjee and Another v. Bharat Coking Coal Ltd. and Others (2000) 3 SCC 312, it was contended the onus of proof that the transaction was genuine was on the appellant, which it had failed to establish. Citing Ishwar Dass Jain v. Som Lal (2000) 1 SCC 434, it was averred that the appellant did not place books of accounts, but only extracts which would not be admissible in evidence.
Analysis of the Supreme Court
The documents were proved by the appellant
The Court observed that each invoice had the sales tax registration number and the same were stamped and signed by the respondents. The debit notes and ST-1 forms were also stamped and signed by the respondents. The Court noted that it was the respondents who had claimed that the transactions were fictitious and fraudulent, therefore the onus was on them to establish the same. It was further emphasised by the Court, that the appellant had indeed proved the documents maintained in regular course of business by a witness.
Proper application of the Subhra Mukherjee judgment
On a perusal of the ratio in Subhra Mukherjee, the Court noted that therein it was held that a person attacking the transaction as sham has to prove it. Therefore, it opined that in the case at hand, the onus was on the respondents to show that the transaction was fraudulent, which it did not discharge.
Ishwar Dass Jain's judgment distinguished
The Court emphasised that in Ishwar Dass Jain the relation between the parties were that of mortgagor and mortgagee, whereas admittedly in the present case the relationship between the appellant and the respondents was that of landlord and tenant. Moreover, the respondents could not prove rent paid by it. Admittedly, they did not have the records.
"Therefore, the adverse inference had to be drawn against the respondents rather than against the appellant who are not relying upon the entries in the account books alone to maintain suit but reliance is on the invoices, debit note as well as ST-1 Form which had been issued only after the receipt of goods."
The appellant is also a dealer
By stating that the sales tax is not levied on transactions between two dealers as per the Delhi Sales Tax Act and Rules, the respondent had admitted that the appellant was also a dealer.
The documents were never contested by the respondents
The Court opined that the examination of the author of a document is not required, if they had not denied their signature on the document, but only pleaded duress in execution of the same. The respondents' witness in cross-examination admitted his signatures on the documents. Pertinently, the Court observed that the signature on the debit note on the basis of which the respondents were enjoying trade discounts was also disputed by them. The claim of duress, non receipt of goods, without an iota of evidence were considered by the Court to be bald statements made by the respondents.
[Case Title: M/s. Star Paper Mills Limited v. M/s. Beharilal Madanlal Jaipuria Ltd. And Ors. Civil Appeal No. 4102 of 2013]
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Case :- APPLICATION U/S 482 No. - 1540 of 2022
Counsel for Applicant :- Arvind Kumar
Counsel for Opposite Party :- G.A.
Heard learned counsel for the applicants, learned A.G.A. for the
State by means of Video-Conferencing and perused the record.
This Application under Section 482 Cr.P.C. has been filed with
a prayer to quash the entire criminal proceeding including
charge-sheet dated 04.09.2020 as well as cognizance and
summoning order dated 11.10.2021 of Case No. 15977 of 2021
arising out of Case Crime No. 309 of 2020 (State Vs. Ashish &
Others) under Sections 494, 498A, 323, 506 I.P.C. and Section
3/4 of D.P. Act against the applicant no. 1 and under Sections
498A, 323, 506 I.P.C. and Section 3/4 of D.P. Act against
Applicant Nos. 2 and 3, P.S., Sipri, District, Jhansi pending in
the Court of Chief Judicial Magistrate, Jhansi.
Submission of learned counsel for the applicants is that from
the matter available on record, offences under Sections 494,
498A, 323, 506 I.P.C. and Section ¾ of D.P. Act are not made
out against the applicants. Further submitted that applicant no. 1
Ashish is the husband of the victim, Seema whereas applicant
nos. 2 and 3 are father-in-law and mother-in-law. Next
submitted that there is six days' delay in lodgement of the F.I.R.
Case has been lodged with ulterior motive and mala-fide
intention to harass the applicants. There are only general
allegations against the applicants, hence this Petition.
Per-contra, learned A.G.A. opposed the aforesaid prayer and
submitted that there are specific allegations of demand of
dowry and beating the victim by the applicants. Factual
controversy cannot be settled in this proceeding under Section
Learned counsel for the applicants relied upon the judgement of
Hon'ble Apex Court reported in 1992 AIR (1) page 694
(State of Haryana Vs. Chaudhary Bhajan Lal), para 26 of
Geeta Mehlotra Vs. State of U.P. passed in Criminal Appeal
No. 1674 of 2012 arising out of SLP (Crl.) No. 10547 of 2010
& para 6 of Hon'ble Jammu & Kashmir and Ladakh High Court
at Srinagar in CRM (M) No. 83 of 2020 vide judgement dated
The authorities relied upon by the learned counsel for the
applicant do not apply to the facts of the present case because
victim, Seema in her statement recorded under Section 161
Cr.P.C., which is at page no. 33 of the paper-book, has
specifically stated that on 5.08.2020, she again went to her
nuptial home with her husband, Ashish. Father-in-law, Gauri
Shankar, mother-in-law, Prem Kumari and two sisters-in-law
beaten her and threatened to pour kerosene oil. She anyhow
escaped from there and came to her father's home. She has
further stated that she came to know that her husband, Ashish
has solemnized another marriage with Deeksha, daughter of
Pahalwan, Resident of Talaur, P.S. Shahjahanpur, District Jhansi
during lockdown.
Learned counsel for the applicant specifically mentioned the
judgement of High Court of Hon'ble Jammu & Kashmir and
Ladakh at Srinagar in CRM (M) No. 83 of 2020 wherein on the
basis of non conducting of preliminary enquiry, F.I.R. relating
to matrimonial dispute was quashed.
Conducting or not conducting preliminary enquiry is the
domain of Investigating Officer on which basis, F.I.R. cannot be
In M/s Neeharika Infrastructure Pvt. Ltd. Vs. State of
Maharastra and Others, 2020 SCC Online SC 850, the
"iv) The power of quashing should be exercised sparingly with
circumspection, as it has been observed, in the rarest of rare case (not to
be confused with the formation in the context of death penalty).
v) While examining an FIR/complaint, quashing of which is sought, the
Court cannot embark upon an enquiry as to the reliability or genuineness
or otherwise of the allegations made in the FIR/complaint;
vi) Criminal proceedings ought not to be scuttled at the initial stage;
vii) Quashing of a complaint/FIR should be an exception rather than an
Following other authorities can be cited on the aforesaid point:
R. P. Kapur vs. The State Of Punjab, AIR 1960 SC 866, State
of Haryana and others Vs. Ch. Bhajan Lal and others, AIR
Perusal of the record reveals that an F.I.R. was lodged against
the applicants in Case Crime No. 309 of 2020 under Sections
498A, 323, 506 I.P.C. and Section 3/4 of POCSO Act. I.O. after
collection of evidence and conclusion of investigation,
submitted charge-sheet in the matter, thereafter Chief Judicial
Magistrate, Jhansi took cognizance on 11.10.2021 and
summoned the applicants to face trial.
Whether victim was beaten and harassed by the applicants;
whether there was demand of dowry or not; whether husband,
Ashish solemnized another marriage with another lady named
Deeksha are questions of fact which cannot be adjudicated upon
in this proceeding. Appraisal of evidence is also not permissible
in proceedings under Section 482 Cr.P.C.
In view of the above, I am of the considered opinion that this
Application lacks merit and is liable to be dismissed.
Accordingly, this application under Section 482 Cr.P.C. is
dismissed.
Location: High Court of Judicature at
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The Allahabad High Court has observed that Conducting or not conducting preliminary enquiry is the domain of Investigating Officer on which basis, F.I.R. cannot be quashed. The Bench of Justice Anil Kumar Ojha observed thus while hearing a 482 CrPC plea filed by the Husband, father-in-law, and mother-in-law of the victim, Seema seeking to quash the entire criminal proceedings arising out...
The Allahabad High Court has observed that Conducting or not conducting preliminary enquiry is the domain of Investigating Officer on which basis, F.I.R. cannot be quashed.
The Bench of Justice Anil Kumar Ojha observed thus while hearing a 482 CrPC plea filed by the Husband, father-in-law, and mother-in-law of the victim, Seema seeking to quash the entire criminal proceedings arising out of the FIR that had been lodged against them under Sections 498A, 323, 506 I.P.C. and Section 3/4 of D.P. Act.
The case in brief
Essentially, Victim Seema had lodged an FIR against the applicants alleging that they had demanded dowry and had even beaten her. The matter is presently pending in the Court of Chief Judicial Magistrate, Jhansi. Chargesheet in the matter has been filed and cognizance and summoning orders have also been passed.
Significantly, in her 161 Statement, the victim had specifically stated that in August 2020, her Father-in-law, Gauri Shankar, mother-in-law, Prem Kumari, and two sisters-in-law had beaten her and threatened to pour kerosene oil.
She had further averred that she anyhow escaped from there and came to her father's home and later on, she came to know that her husband, Ashish (Applicant number 1) had solemnized another marriage during the lockdown.
On the other hand, it was the contention of the applicants that there is a six days' delay in the lodgement of the F.I.R. Further, they argued that the case has been lodged with ulterior motive and mala-fide intention to harass the applicants and that there are only general allegations against the applicants.
Therefore, they sought quashing of the entire criminal proceedings.
Court's order
At the outset, the Court clarified that on the basis of non conducting of the preliminary inquiry, an F.I.R. relating to matrimonial dispute can't be quashed. Further, the Court, while stressing that appraisal of evidence is not permissible in proceedings under Section 482 CrPC, remarked thus:
"Whether the victim was beaten and harassed by the applicants; whether there was a demand of dowry or not; whether the husband, Ashish solemnized another marriage with another lady named Deeksha are questions of fact, which cannot be adjudicated upon in this proceeding." (emphasis supplied)
In view of the above, the Court was of the considered opinion that the instant Application lacked merit and was liable to be dismissed. Accordingly, the application under Section 482 Cr.P.C. was dismissed.
Case title - Ashish And 2 Others V. State Of U.P.And AnotherCase citation: (AB) 38
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1. Feeling aggrieved and dissatisfied with the impugned
common judgment and order dated 21.02.2022 passed by
the High Court of Kerala at Ernakulam in Regular First
Appeal Nos. 686/2010 and 766/2010, by which, the High
Court has dismissed RFA No. 766/2010 preferred by the
appellant herein – original plaintiff and has partly allowed
RFA No. 686/2010 preferred by the original defendant with
respect to the proportionate cost, the original plaintiff has
2. That the respondent herein – original defendant entered
into an agreement to sell with the appellant – original
plaintiff on 13.07.2005 for a consideration of Rs. 52,500/
per cent with respect to the property admeasuring 9 acres
47.41 cents in ReSurvey No. 35/2/1 of Karukutty Village.
Under the said agreement to sell a sum of Rs. 1 crore was
paid by the appellant to the defendant towards earnest
money of which Rs. 65 lakhs were paid in cash and Rs. 35
lakhs were in the form of postdated cheque dated
25.08.2005. As per the terms of the agreement to sell the
last date fixed for payment of the balance sale
consideration was 12.01.2006. The postdated cheque of
Rs. 35 lakhs deposited by the defendant came to be
dishonoured/returned for the reasons “payment stopped
by attachment order”. At this stage, it is required to be
noted that there was a raid conducted by the Income Tax
Department and the bank account of which the postdated
cheque of Rs. 35 lakhs, was drawn came to be attached by
the IT Department. The cheque was returned by the bank
vide return memo dated 31.08.2005. The defendant
through his advocate served a notice upon the plaintiff
drawing the attention of the plaintiff with respect to the
return/dishonour of the postdated cheque vide notice
dated 02.09.2005. According to the plaintiff immediately
the same was replied on 20.09.2005 and offered to pay the
amount of Rs. 35 lakhs in cash which according to the
plaintiff the defendant refused to accept the same. The
defendant was also called upon to accept Rs. 35 lakhs in
cash and the plaintiff was prepared to handover cash. That
thereafter vide notice dated 23.09.2005 the defendant
terminated the agreement to sell/contract and forfeited Rs.
10 lakhs and called upon the plaintiff to take back an
amount of Rs. 55 lakhs. That thereafter vide notice dated
18.10.2005 the plaintiff replied to the termination notice
dated 23.09.2005 and called upon the defendant to accept
the balance sale consideration within the agreed period
i.e., on or before 12.01.2006. That thereafter the plaintiff
served a legal notice dated 03.01.2006 and called upon the
defendant to execute the sale deed after accepting balance
sale consideration. The defendant was called upon to
inform the plaintiff the date on which he has to pay the
balance sale consideration and to execute the sale deed. As
the defendant failed to act as per the legal notice dated
03.01.2006. The appellant – original plaintiff instituted a
suit before the learned Trial Court for specific performance
of agreement to sell dated 13.07.2005. The defendant filed
the written statement repudiating the contract. The
learned Trial Court framed the following issues:
“1. Whether the plaintiff is entitled to a decree of
specific performance as sought for?
2. Whether the plaintiff is entitled to return of
advance paid and if so its quantum?
2.1 It was the case on behalf of the defendant that as there
was a default on the part of the plaintiff, not acting as per
the terms and conditions of the agreement to sell as the
balance amount of Rs. 35 lakhs was not paid as the post
dated cheque dated 25.08.2005 was returned and
therefore, the defendant was justified in terminating the
contract. The defendant also denied receipt of the reply to
the notice dated 23.09.2005. Both, plaintiff as well as the
defendant led the evidence both, documentary as well as
oral. The plaintiff also produced on record the income tax
returns for the relevant periods. The plaintiff also
produced on record the statements of bank accounts (A
12) of himself as well as of related persons. That thereafter
the learned Trial Court dismissed the suit qua the relief
sought for specific performance of agreement to sell dated
13.07.2005 by observing that the plaintiff was never in
possession of the balance consideration of about Rs. 3
crores and 9 lakhs and therefore, it can be said that there
was no readiness and willingness on the part of the
plaintiff. However, the learned Trial Court granted a partial
decree of return of the advance i.e., Rs. 65 lakhs with
interest of 6% per annum from 13.07.2005 till realization
and also his proportionate cost of the suit.
2.2 Feeling aggrieved and dissatisfied with the judgment and
order passed by the learned Trial Court refusing to pass
the decree of specific performance of the agreement to sell
dated 13.07.2005, the plaintiff preferred RFA No.
766/2010 before the High Court. The defendant also filed
RFA No. 686/2010 challenging the order of cost imposed
by the learned Trial Court. By the impugned common
judgment and order the High Court has dismissed the
appeal preferred by the appellant – original plaintiff and
has allowed the appeal preferred by the defendant by
observing that as the postdated cheque of Rs. 35 lakhs
which was paid towards part sale consideration was
returned therefore full payment towards part sale
consideration was not made and therefore there was no
concluded contract between the parties for sale of the suit
property. By observing so, thereafter the High Court has
observed once there was no concluded contract between
the parties for sale of the suit property, the question
whether there was readiness and willingness on the part of
the plaintiff to pay the balance sale consideration does not
arise for consideration.
2.3 Feeling aggrieved and dissatisfied with the impugned
common judgment and order passed by the High Court the
plaintiff has preferred the present appeals.
3. We have heard Shri V. Chitambaresh learned Senior
Advocate appearing on behalf of the appellant and Shri
Joseph Kodianthara learned Senior Advocate appearing on
behalf of the defendant. We have also gone through and
considered the findings recorded by the learned Trial Court
as well as the High Court.
4. The High Court has nonsuited the appellant – original
plaintiff on the ground that as the postdated cheque of
Rs. 35 lakhs was returned which was towards part sale
consideration and tendering the worthless postdated
cheque cannot be said to be tendering the payment and
therefore, there was no concluded contract between the
parties. By observing so, the High Court has refused to go
into the aspect of the readiness and willingness on the part
of the plaintiff. However, it is required to be noted that at
the time when the postdated cheque of Rs. 35 lakhs was
tendered the same cannot be said to be worthless cheque.
The postdated cheque of Rs. 35 lakhs returned by the
bank was with an endorsement i.e., “payment stopped by
attachment order” as there was a raid conducted by the IT
Department and the bank account was attached and
therefore, the postdated cheque was returned. At this
stage, it is required to be noted that the cheque was not
returned for the reasons of insufficient funds in the bank
account. Therefore, the observation made by the High
Court that the postdated cheque was worthless cheque
and tendering such worthless cheque cannot be said to be
a payment towards part sale consideration cannot be
accepted. We do not approve such observations/reasoning
given by the High Court.
4.1 Now the findings and the reasoning given by the learned
Trial Court refusing to pass a decree for specific
performance is concerned it appears that though there was
no specific issue framed by the learned Trial Court on
readiness and willingness on the part of the plaintiff, the
Trial Court has given the findings on the same and has
nonsuited the plaintiff by observing that the plaintiff was
not having sufficient funds to make the full balance
consideration on or before 12.01.2006. Such a finding
could not have been given by the learned Trial Court
without putting the plaintiff to notice and without framing
a specific issue on the readiness and willingness on the
part of the plaintiff. There must be a specific issue framed
on readiness and willingness on the part of the plaintiff in
a suit for specific performance and before giving any
specific finding, the parties must be put to notice. The
object and purpose of framing the issue is so that the
parties to the suit can lead the specific evidence on the
same. On the aforesaid ground the judgment and order
passed by the learned Trial Court dismissing the suit and
refusing to pass the decree for specific performance of the
agreement to sell confirmed by the High Court deserves to
be quashed and set aside and the matter is to be
remanded to the learned Trial Court to frame the specific
issue with respect to the readiness and willingness on the
part of the plaintiff. On remand the parties be permitted to
lead the evidence on the readiness and willingness on the
part of the plaintiff to perform his part of the contract,
more particularly, whether the plaintiff was ready and
willing to pay the full consideration and whether the
plaintiff was having sufficient funds and/or could have
managed the balance sale consideration.
5. In view of the above and for the reasons stated above the
present appeals succeed in part. The impugned common
judgment and order passed by the High Court and the
judgment and decree passed by the learned Trial Court
dismissing the suit preferred by the plaintiff for specific
performance of the agreement to sell are hereby quashed
and set aside. The matter is remitted back to the learned
Trial Court to decide and dispose of the suit afresh in
accordance with law and on merits. The learned Trial
Court is directed to frame the specific issue on the
readiness and willingness on the part of the plaintiff to
perform his part of the contract and thereafter, the parties
may be permitted to lead the evidence on readiness and
willingness on the part of the plaintiff to perform his part
of the contract and thereafter, the learned Trial Court to
decide and dispose of the suit on merits and on the basis
of the evidence that may be led. The aforesaid exercise be
completed by the learned Trial Court on remand within a
period of twelve months from the date of receipt of the
present order. Both, these appeals are accordingly allowed
to the aforesaid extent. In the facts and circumstance of
the case there shall be no order as to costs.
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The Supreme Court observed that a specific issue on readiness and willingness on the part of the plaintiff must be framed by the trial court in a suit for specific performance.
The object and purpose of framing the issue is so that the parties to the suit can lead the specific evidence on the same, the bench of Justices MR Shah and MM Sundresh observed.
Under the agreement to sell, a sum of Rs. 1 crore was paid by the buyer to the seller towards earnest money of which Rs. 65 lakhs were paid in cash and Rs. 35 lakhs were in the form of postdated cheque dated 25.08.2005. The postdated cheque deposited by the seller came to be dishonoured/returned for the reasons "payment stopped by attachment order". Thereafter, the buyer filed a suit for specific performance. The Trial Court dismissed the suit observing that the plaintiff was never in possession of the balance consideration of about Rs. 3 crores and 9 lakhs and therefore, it can be said that there was no readiness and willingness on the part of the plaintiff. Dismissing the appeal, the High Court held that as the postdated cheque of Rs. 35 lakhs which was paid towards part sale consideration was returned therefore full payment towards part sale consideration was not made and therefore there was no concluded contract between the parties for sale of the suit property.
Post dated cheque not worthless
In appeal, the Apex Court bench disagreed with the observation made qua the cheque. It said:
"It is required to be noted that at the time when the postdated cheque of Rs. 35 lakhs was tendered the same cannot be said to be worthless cheque. The postdated cheque of Rs. 35 lakhs returned by the bank was with an endorsement i.e., "payment stopped by attachment order" as there was a raid conducted by the IT Department and the bank account was attached and therefore, the postdated cheque was returned. At this stage, it is required to be noted that the cheque was not returned for the reasons of insufficient funds in the bank account. Therefore, the observation made by the High Court that the postdated cheque was worthless cheque and tendering such worthless cheque cannot be said to be a payment towards part sale consideration cannot be accepted. We do not approve such observations/reasoning given by the High Court."
Specific issue on the readiness and willingness must be framed
The court further noticed that no specific issue framed by the Trial Court on readiness and willingness on the part of the plaintiff, but gave the findings on the same and has nonsuited the plaintiff.
"Such a finding could not have been given by the learned Trial Court without putting the plaintiff to notice and without framing a specific issue on the readiness and willingness on the part of the plaintiff. There must be a specific issue framed on readiness and willingness on the part of the plaintiff in a suit for specific performance and before giving any specific finding, the parties must be put to notice. The object and purpose of framing the issue is so that the parties to the suit can lead the specific evidence on the same.", the court said.
The court therefore remanded the case to the Trial Court to frame the specific issue with respect to the readiness and willingness on the part of the plaintiff.
Case details
V.S. Ramakrishnan vs. P.M. Muhammed Ali | (SC) 935 | CA 8050-8051 OF 2022 | 9 Nov 2022 | Justices MR Shah and MM Sundresh
Counsel: Sr. Adv V. Chitambaresh for appellant, Sr. Adv Joseph Kodianthara for respondent
Headnotes
Specific Relief Act, 1963 - Specific Performance Suit - There must be a specific issue framed on readiness and willingness on the part of the plaintiff in a suit for specific performance and before giving any specific finding, the parties must be put to notice. The object and purpose of framing the issue is so that the parties to the suit can lead the specific evidence on the same. (Para 4.1)
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2. The present batch of petitions concerns the loss of investor wealth in the securities
market over the last few weeks because of a steep decline in the share price of the Adani
Group of companies. The decline in the share price was precipitated by a report published
by Hindenburg Research on 24 January 2023. This report inter alia alleges that the Adani
Group of companies has manipulated its share prices; failed to disclose transactions with
related parties and other relevant information concerning related parties in contravention
of the regulations framed by SEBI; and violated other provisions of securities laws. The
report also states that Hindenburg Research has taken a short position in the Adani Group
companies through US traded bonds and non-Indian traded derivative instruments. It is in
this background that the present batch of petitions came to be filed.
3. A brief overview of the petitions follows:
a. WP(C) No. 162 of 2023 states that public money amounting to thousands of crores
is at risk because public institutions like the State Bank of India1 and the Life Insurance
Corporation of India2 are exposed to the Adani Group. It inter alia seeks the issuance of
directions to the Union of India and the Union Ministry of Home Affairs to constitute a
committee headed by a retired judge of the Supreme Court to investigate the contents of
the report published by Hindenburg Research;
b. WP(Crl) No. 39 of 2023 is for the issuance of directions to the Union Ministry of
Home Affairs to register an FIR against Mr. Nathan Anderson (founder of Hindenburg
Research) and his associates for short selling, and for directions to recover the profits
yielded by the short selling to compensate investors;
c. WP(C) No. 201 of 2023 inter alia states that “the Adani Group has been in flagrant
violation of ... Rule 19A of the Securities Contracts (Regulation) Rules by surreptitiously
controlling more than 75% of the shares of public listed Adani group companies, thereby
manipulating the price of its shares in the market.” It inter alia seeks a court monitored
investigation by a Special Investigation Team or by the Central Bureau of Investigation
into the allegations of fraud and the role played by top officials of leading public sector
banks and other lender institutions; and
d. WP(Crl) 57 of 2023 is for directions to any investigative authority to: (i) investigate
the Adani Group companies under the supervision of a sitting judge of this Court; and (ii)
investigate the role of LIC and SBI in these transactions.
4. In its order dated 10 February 2023, this Court noted that there was a need to review
existing regulatory mechanisms in the financial sector to ensure that they are strengthened
with a view to protect Indian investors from volatilities in the market. Accordingly, it was
suggested to the Solicitor General that he may seek instructions from the Union of India
on the constitution and remit of an expert committee.
5. We have heard Mr. Prashant Bhushan, learned senior counsel appearing for the
petitioners and Mr. Tushar Mehta, learned Solicitor General appearing for the Union of
India. Both of them have also placed on record brief notes indicating their suggestions for
the remit of the expert committee to be constituted. Further, SEBI has placed on record a
brief note on the factual and legal aspects describing the existing statutory regime,
regulatory mechanisms and frameworks in place for the protection of investors. It has also
laid out the regulatory framework governing short selling. Mr Vishal Tiwari and Mr Manohar
Lal Sharma have appeared in person.
a. It has adopted a disclosure based regulatory regime for both issuance of and trading
in securities. This is in line with the discontinuation of pricing control for capital issues in
favour of the principle of free discovery by the markets based on demand and supply from
b. It is “strongly and adequately empowered to put in place regulatory frameworks for
effecting stable operations and development of the securities markets including protection
of investors.” It has also detailed the extant framework governing investor protection in the
context of the subject matter at hand. It has stated that the key pillars of investor protection
“11.1 Mandatory disclosures by listed companies to facilitate free and fair price discovery
and to ensure that all investors have equal access to material information for them to be
able to take informed investment decisions;
11.2 Market systems to ensure seamless trading and settlement including volatility
11.3 Enforcement action in the event of misconduct in the market including fraud or
violations of SEBI regulations.”
7. In Prakash Gupta v. SEBI,3 a two Judge Bench of this Court, of which one of us
(D.Y. Chandrachud, J) was a part discussed the specialized regulatory role of SEBI and
“99. The provisions of the SEBI Act, as analyzed earlier in this judgment, would indicate the
importance of the role which has been ascribed to it as a regulatory, adjudicatory and prosecuting
agency. SEBI has vital functions to discharge in the context of maintaining an orderly and stable
securities’ market so as to protect the interests of investors.”
8. On the subject matter of these petitions, SEBI has stated that:
“21.1 SEBI is already enquiring into both, the allegations made in the Hindenburg report as well
as the market activity immediately preceding and post the publication of the report, to identify
violations of SEBI Regulations including but not limited to SEBI (Prohibition of Fraudulent and
Unfair Trade Practices I relating to Securities Market) Regulations 2003, SEBI (Prohibition of
Derivative Instruments (ODI) norms, short selling norms, if any. As the matter is in early stages
of examination, it may not be appropriate to list details about the ongoing proceedings at this
9. In view of the above statement, it appears that SEBI is seized of the investigation
into the allegations made against the Adani Group companies. SEBI has not expressly
referred to an investigation into the alleged violation of the Securities Contracts
(Regulation) Rules 1957 which provide for the maintenance of minimum public
shareholding in a public limited company. Similarly, there may be various other allegations
that SEBI must include in its investigation.
10. As a part of its ongoing investigation, SEBI shall also investigate the following
aspects of the issues raised in the present batch of petitions:
a. Whether there has been a violation of Rule 19A of the Securities Contracts
b. Whether there has been a failure to disclose transactions with related parties and
other relevant information which concerns related parties to SEBI, in accordance with law;
c. Whether there was any manipulation of stock prices in contravention of existing
11. The above directions shall not be construed to limit the contours of the ongoing
investigation. SEBI shall expeditiously conclude the investigation within two months and
file a status report.
12. Further, SEBI shall apprise the expert committee (constituted in paragraph 14 of
this order) of the action that it has taken in furtherance of the directions of this Court as
well as the steps that it has taken in furtherance of its ongoing investigation. The
constitution of the expert committee does not divest SEBI of its powers or responsibilities
in continuing with its investigation into the recent volatility in the securities market.
13. In Prakash Gupta (supra), we took note of the developing nature of the regulations
pertaining to the securities market. This Court noted that:
“101. Therefore, the SEBI Act and the rules, regulations and circulars made or issued under the
legislation, are constantly evolving with a concerted aim to enforce order in the securities market
and promote its healthy growth while protecting investor wealth.”
14. In order to protect Indian investors against volatility of the kind which has been
witnessed in the recent past, we are of the view that it is appropriate to constitute an Expert
Committee for the assessment of the extant regulatory framework and for making
recommendations to strengthen it. We hereby constitute a committee consisting of the
The Expert Committee shall be headed by Justice Abhay Manohar Sapre, a former judge
of the Supreme Court of India.
a. To provide an overall assessment of the situation including the relevant causal
factors which have led to the volatility in the securities market in the recent past;
b. To suggest measures to strengthen investor awareness;
c. To investigate whether there has been regulatory failure in dealing with the alleged
contravention of laws pertaining to the securities market in relation to the Adani Group or
d. To suggest measures to (i) strengthen the statutory and/or regulatory framework;
and (ii) secure compliance with the existing framework for the protection of investors.
16. The Chairperson of the Securities and Exchange Board of India is requested to
ensure that all requisite information is provided to the Committee. All agencies of the Union
Government including agencies connected with financial regulation, fiscal agencies and
law enforcement agencies shall co-operate with the Committee. The Committee is at
liberty to seek recourse to external experts in its work.
17. The honorarium payable to the members of the Committee shall be fixed by the
Chairperson and shall be borne by the Union Government. The Secretary, Ministry of
Finance shall nominate a senior officer who will act as a nodal officer to provide logistical
assistance to the Committee. All the expenses incurred in connection with the work of the
Committee shall be defrayed by the Union Government.
18. The Committee is requested to furnish its report in sealed cover to this Court within
two months.
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The Supreme Court on Thursday directed the Securities and Exchange Board of India (SEBI) to complete the investigation of the Adani-Hindenburg issue within a period of two months and file a status report before the Court.
The bench noted the stand of the SEBI is that it is already investigating into the allegations of the Hindenburg report as well as the market activity immediately preceding and post the publication of the report to identify violations.
The bench ordered that as a part of the ongoing investigation, SEBI shall also investigate :
(a) Whether there is a violation of Rule 19A of the Securities Contract Regulation Rules;
(b) Whether there is a failure to disclose transactions with related parties and other relevant information which concerns related parties to the SEBI in accordance with law;
(c) Whether there was any manipulation of stock prices in contravention of existing laws.
"The above directions shall not be construed to limit the contours of the ongoing investigation. SEBI shall expeditiously conclude its investigation within two months and file a status report", the bench ordered.
Court constitutes expert committee :
The Court also constituted an expert committee to review the regulatory mechanism in the light of Adani-Hindenburg issue. A bench comprising CJI DY Chandrachud, Justice PS Narasimha, and Justice JB Pardiwala appointed the following persons as the members of the committee : Mr OP Bhat(former Chairman of SBI), retired Justice JP Devadhar , Mr KV Kamath, Mr Nandan Nilakeni, Mr.Somasekharan Sundaresan as the members of the committee. The Committee will be under the head of former Supreme Court judge Justice AM Sapre.
The committee shall submit its report in a sealed cover before this court within 2 months. The SEBI shall also inform the expert committee the action it has taken in furtherance of the directions as well as the steps taken as part of the ongoing investigation.
The bench noted that the cases concern the loss of investor wealth over the past few weeks due to the steep decline of Adani group companies, precipitated by the Hindenburg Research report which alleged manipulations and malpractices by the Adani group companies. The bench also noted that the Hindenburg had stated that it had taken a short position in the Adani group shares.
It was on 17th February 2023 that the Court had decided to constitute an expert committee to analyse if the regulatory mechanism needed to be strengthened to protect Indian investors from the kind of market volatility which was witnessed following the release of the Hindenburg Research report against Adani Group.
Notably, the bench had refused to accept the names proposed by the Central Government in a sealed cover for inclusion in the proposed committee. "We will select the experts and maintain full transparency. If we take names from the government, it would amount to a government constituted committee. There has to be full (public) confidence in the committee", CJI Chandrachud had orally observed while reserving orders. The CJI had also clarified that the Court will not start with a presumption of failure of regulatory framework in the issue.
Solicitor General of India Tushar Mehta had informed the bench that the Central Government was agreeable to the Court's suggestion to constitute an expert committee. But the law officer urged the Court to ensure
that the move does not unintentionally create an impression that the regulatory mechanism has inadequacies.The bench reserved the orders on the PILs filed by Advocate Vishal Tiwari, Advocate ML Sharma, Congress leader Jaya Thakur and Anamika Jaiswal. While the petitions filed by Tiwari and Sharma sought investigation against the Hindenburg report for causing losses to Indian investors, the petitions of Thakur and Jaiswal sought investigation against Adani group on the basis of the allegations levelled by Hindenburg.
On January 24, US-based Hindenburg published its report accusing Adani group of widespread manipulations and malpractices to inflate its stock prices. Adani Group refuted the allegations by publishing a 413-page reply and even went to the extent of terming it as attack against India. Hindenburg shot back with a rejoinder, saying that 'fraud cannot be obfuscated by nationalism' and stood by its report. After the publishing of the Hindenburg report, Adani shares crashed and the embattled group was also forced to recall its FPO.
Case Title: Vishal Tiwari vs Union of India W.P.(C) No. 162/2023, Manohar Lal Sharma vs Union of India W.P.(Crl.) No. 39/2023, Anamika Jaiswal vs Union of India W.P.(C) No. 201/2023, Dr.Jaya Thakur vs Union of India W.P.(Crl.) No. 57/2023
For Petitioner(s) Mr. Vishal Tiwari, In-person Mr. Manohar Lal Sharma, In-person Mr. Prashant Bhushan, Adv. Ms. Neha Rathi, Adv. Mr. Ramesh Kumar Mishra, AOR Mr. Kamal Kishore, Adv. Mr. V.V. Gotam, Adv. Mr. Varun Thakur, Adv. Mr. Varinder Kumar Sharma, AOR
For Respondent(s) Mr. Tushar Mehta, SG Mr. Akhil Abraham Roy, Adv. Ms. Surekha Raman, Adv. Mr. Abhishek Anand, Adv. M/s KJ John & Co. Mr. Tushar Mehta, SG Mr. Kanu Agarwal, Adv. Mr. Rajat Nair, Adv. Mr. Arvind Kumar Sharma, AOR Mr. Ramesh Babu MR, AOR Ms. Manisha Singh, Adv. Ms. Nisha Sharma, Adv. Ms. Tanya Chowdhary, Adv. Mr. Rohan Srivastava, Adv. Applicant-in-person
Adani-Hindenburg Issue - Supreme Court directs SEBI to conclude investigation within 2 months- Constitutes an expert committee to review regulatory mechanism
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1. The review petitioners have approached this Court
seeking review of the order passed by this Court dated
20.7.2020 thereby dismissing the Special Leave Petition (Civil)
Nos. 3103731038 of 2016 filed by Glocal University, Glocal
Medical College, Super Specialty Hospital and Research Centre
(hereinafter referred to as ‘Glocal Medical College’) and Abdul
Waheeb Education and Charitable Trust (hereinafter referred to
as ‘original writ petitioners’).
2. The review petitioners were not a party to the said
petitions. They were admitted in 1 st year Professional MBBS
course for the Academic Session 20162017 in Glocal Medical
College, which was affiliated to the Glocal University, a deemed
3. The bare necessary facts giving rise to the present
4. The review petitioners appeared in the National
Eligibilitycum Entrance Test (hereinafter referred to as
‘NEET’), 2016 and qualified the same. According to the review
petitioners, therefore, they became eligible to get admission in
MBBS course.
5. Vide Notification dated 31.8.2016, the State of Uttar
Pradesh issued a direction for conducting centralized
counselling for admission to MBBS/BDS course in all
colleges/universities in the State of Uttar Pradesh, including
private colleges and minority institutions and further
prescribed the schedule and procedure for counselling,
reservation, eligibility criteria for admission, etc.
6. Vide another Notification dated 2.9.2016, the State of
Uttar Pradesh directed that 50% of the sanctioned intake of
private institutions shall be reserved for students who had
domicile of State of Uttar Pradesh. The said direction was
issued in respect of all the private institutions (excluding
minority institutions) after deducting the pool of 15% for All
India quota.
7. The said Notification dated 2.9.2016 came to be
challenged before the High Court of Allahabad by way of Writ
Petition No.20575 of 2016 and other connected writ petitions.
The said petitions were decided on 15.9.2016 by the Division
Bench of the Allahabad High Court. The order dated 15.9.2016
passed by the Division Bench of the Allahabad High Court
came to be challenged by the original writ petitioners before
this Court by way of Special Leave Petition (Civil) Nos. 31037
31038 of 2016.
8. It appears that in the interregnum, the original writ
petitioners had conducted their private counselling despite
Notifications issued by the State of Uttar Pradesh regarding
common counselling. It further appears that in the meantime,
some petitions for special leave to appeal also came to be filed
by some of the students being SLP(C) No. 28886 of 2016. By a
common order passed in the petitions for special leave to
appeal, including the one filed by Madhvi Goel & others [SLP(C)
No.28886 of 2016] and the one filed by Glocal University &
others [SLP(C) No.3103731038 of 2016], this Court passed the
following order on 20.3.2017:
“As an interim measure, it is directed that
the students prosecuting their studies in the
petitionerUniversity in S.L.P. (C) Nos.
3103731038 of 2016, may appear in the
examination, but their results shall not be
published. Needless to say, no equity shall
be claimed on the basis of the present
interim order.”
9. It further appears that in the meantime, the Medical
Council of India (hereinafter referred to as ‘MCI’) issued a
discharge letter dated 27.1.2017 to the Glocal Medical College
and directed to discharge 67 students admitted by it, whose
names did not figure in the list supplied by the Director
General of Medical Education & Training (hereinafter referred to
10. The said order dated 27.1.2017 of MCI came to be
challenged by Glocal Medical College in this Court by way of
Writ Petition (Civil) No. 411 of 2017. This Court vide order
dated 18.9.2017, while disposing of the said petition with
certain directions, observed thus:
“The students who have been admitted in
pursuance of the letter of permission
granted for the year 20162017 shall be
permitted to continue their studies.”
11. According to the review petitioners, they appeared for
First Year Professional MBBS examination and cleared the
same. However, Glocal Medical College did not conduct the
examination for the 2nd year MBBS and further the classes and
practicals were also suspended by the College. According to the
review petitioners, this gave them a cause of action to file Writ
Petition No.19399 of 2019 before the Allahabad High Court.
According to the review petitioners, only during the hearing of
the said petition, they came to know about the discharge order
dated 27.1.2017 issued by MCI.
12. The review petitioners therefore filed writ petition being
Writ Petition No.26367 of 2019 before the Allahabad High Court
assailing the order of MCI dated 27.1.2017. The Allahabad
High Court disposed of the said writ petition with liberty to
approach this Court.
13. The review petitioners therefore filed Writ Petition (Civil)
No.1287 of 2019 before this Court challenging the discharge
order, but the same was dismissed with liberty to file an
application for intervention in the pending Special Leave
Petition (Civil) Nos. 3103731038 of 2016 filed by the original
writ petitioners, as stated above. The review petitioners
therefore filed Intervention Application being I.A. No.183249 of
2019 in the said Special Leave Petition (Civil) Nos. 3103731038
of 2016. By the order under review dated 20.7.2020, the
Special Leave Petition (Civil) Nos. 3103731038 of 2016 as well
as Intervention Application being I.A. No.183249 of 2019 came
to be dismissed by this Court.
14. Seeking review, the present Review Petitions are filed
by the review petitioners. This Court on 6.10.2020 passed the
following order in the present Review Petitions:
“After carefully examining the Review
Petitions we are of the considered view that
the application for hearing in the open Court
deserves to be allowed.
Delay condoned.
List the Review Petition in Court.”
15. Accordingly, we have heard the learned counsel for the
parties in the Court.
16. We have extensively heard Shri Neeraj Kishan Kaul,
learned Senior Counsel appearing on behalf of the review
petitioners, Shri Dhawal Mohan, learned counsel appearing on
behalf of MCI and Shri Ankit Goel, learned counsel appearing
on behalf of the respondent – State of Uttar Pradesh.
17. Shri Neeraj Kishan Kaul, learned Senior Counsel
appearing for the review petitioners would submit that the
review petitioners were duly qualified to be admitted inasmuch
as, they had cleared the NEET examination. He further
submitted that the review petitioners were admitted through
the counselling conducted by the Glocal Medical College. Not
only that, but they have also cleared the 1st year and 2nd year
examination. It is therefore submitted that it will not be in the
interest of justice to throw the review petitioners at this point of
18. As against this, learned counsel for MCI as well as
learned counsel for the State of Uttar Pradesh submitted that
the review petitioners were admitted by backdoor entry. It is
submitted that their admission is the result of collusion
between the Glocal Medical College and the review petitioners.
It is further submitted that Glocal Medical College, being very
well aware about the Notification dated 22.8.2016, had
conducted private counselling, which was not permissible in
law and as such, the review petitioners, who entered through
backdoor entry, are not entitled to any equitable relief.
19. It will be relevant to refer to the following paragraph of
Notification dated 22.8.2016:
“1. After due consideration and in
continuation to the aforesaid
notification dated 20.08.2016,
decision has been taken for getting
conducted counselling of universities
of private sector/minorities
universities of private sector/deemed
university of private sector through
constituted according to above.”
20. The said Notification dated 22.8.2016 came to be
challenged by various petitioners including Glocal University
before a Division Bench of the Allahabad High Court. The
Allahabad High Court by an elaborate judgment dated
15.9.2016 found no fault with the Notification issued by the
State of Uttar Pradesh prescribing centralized counselling for all
institutions for admission to MBBS/BDS course in the State,
based on NEET 2016. It will be relevant to refer to the
following observations in the operative part of the judgment of
the Allahabad High Court dated 15.9.2016, which read thus:
“(i) Subject to what has been held
hereinabove, the impugned orders
prescribing a Centralized Counselling
for all institutions for admission to
MBBS/BDS medical courses in the
State based on NEET 2016, do not
suffer from any error.
(ii) Minority institutions shall be allowed
to admit the students of their
community based on Centralized
Counselling held by the State on the
basis of NEET 2016, to the extent
permissible, but, without deviating
from the merit of such students as
reflected in the NEET list 2016, so as
to subserve their minority status
Constitution of India.”
21. It could thus clearly be seen that though minority
institutions were allowed to admit the students of their
community based on Centralized Counselling held by the State
on the basis of NEET 2016, the same was to be done without
deviating from the merit of the said students.
22. Though Shri Neeraj Kishan Kaul, learned Senior
Counsel, tried to submit that the Notification dated 22.8.2016
is only an administrative instruction and therefore not binding,
we are unable to accept the same.
23. It will be relevant to refer to the following observations
of this Court in the case of Modern Dental College and
Research Centre and others v. State of Madhya Pradesh
“168. Having regard to the prevailing
conditions relating to admissions in private
professional educational institutions in the
State of Madhya Pradesh, the legislature in
its wisdom has taken the view that merit
based admissions can be ensured only
through a common entrance test followed by
centralised counselling either by the State or
by an agency authorised by the State. In
order to ensure rights of the applicants
aspiring for medical courses under Articles
14, 15 and 16 of the Constitution of India,
legislature by the impugned legislation
introduced the system of common entrance
test (CET) to secure meritbased admission
on a transparent basis. If private unaided
educational institutions are given unfettered
right to devise their own admission procedure
and fee structure, it would lead to situation
where it would impinge upon the “right to
equality” of the students who aspire to take
admissions in such educational institutions.
Common entrance test by State or its agency
will ensure equal opportunity to all
meritorious and suitable candidates and
meritorious candidates can be identified for
being allotted to different institutions
depending on the courses of study, the
number of seats and other relevant factors.
This would ensure twin objects:
(i) fairness and transparency, and
(ii) merit apart from preventing
maladministration.
Thus, having regard to the larger interest and
welfare of the student community to promote
merit and achieve excellence and curb
malpractices, it would be permissible for the
State to regulate admissions by providing a
centralised and singlewindow procedure.
Holding such CET followed by centralised
counselling or singlewindow system
regulating admissions does not cause any
dent on the fundamental rights of the
institutions in running the institution. While
private educational institutions have a “right
of occupation” in running the educational
institutions, equally they have the
responsibility of selecting meritorious and
suitable candidates, in order to bring out
professionals with excellence. Rights of
private educational institutions have to yield
to the larger interest of the community.
169. By holding common entrance test and
identifying meritorious candidates, the State
is merely providing the merit list of the
candidates prepared on the basis of a fair
common entrance test. If the screening test is
conducted on merit basis, no loss will be
caused to the private educational
institutions. There is neither restriction on
the entry of the students in the sanctioned
intake of the institutions nor on their right to
collect fees from the students. The freedom of
private educational institutions to establish
and run institution, impart education, recruit
staff, take disciplinary action, admit
students, participate in fixation of fees is in
no way being abridged by the impugned
legislation; it remains intact.”
24. It will further be apposite to note that some private
medical colleges had conducted their own counselling for
admitting students in their respective colleges and as such, the
State of Madhya Pradesh had filed a contempt petition. The
said contempt petition was decided by this Court in State of
Madhya Pradesh v. Jainarayan Chouksey and others2. It
will be relevant to refer to paragraphs 5 and 6 in Jainarayan
Chouksey (supra), which read thus:
“5. We have heard the learned counsel for
the parties at length. We observe that
mandate of our judgment [Modern Dental
College and Research Centre v. State of M.P.,
(2016) 7 SCC 353:7 SCEC 1] was to hold
centralised entrance test followed by
centralised State counselling by the State to
make it a one composite process. We,
therefore, direct that admission to all
medical seats shall be conducted by
centralised counselling only by the State
Government and none else.
6. If any counselling has been done by any
college or university and any admission to
any medical seat has been given so far, such
admission shall stand cancelled forthwith
and admission shall be given only as per
centralised counselling done by the State
25. It could thus clearly be seen that the private
counselling by Glocal Medical College was conducted contrary
to the Notification issued by the State of Uttar Pradesh, which
Notification, in turn, was based on the judgment of this Court
in the case of Modern Dental College and Research Centre
(supra), which was decided on 2.5.2016. Not only that, but this
Court by order dated 22.9.2016 had further clarified the
26. It will further be pertinent to note that the Division
Bench of the Allahabad High Court vide judgment dated
15.9.2016 had negated the challenge to the Notification dated
27. In the light of this position, it was not at all permissible
for the Glocal Medical College to have conducted private
counselling. The admissions which were conducted through
the said private counselling cannot be termed as anything else
but per se illegal.
28. Though we have all the sympathies with the students,
we will not be in a position to do anything to protect the
admissions, which were done in a patently illegal manner.
29. It will be apposite to refer to the following observations
made by this Court in the case of Guru Nanak Dev University
v. Parminder Kr. Bansal and others3.
“In the present case, the High Court was
apparently moved by sympathy for the
candidates than by an accurate
assessment of even the prima facie legal
position. Such orders cannot be allowed
to stand. The courts should not
embarrass academic authorities by
themselves taking over their functions.”
30. It will further be appropriate to refer to the following
observations of this Court in the case of Gurdeep Singh v.
State of J & K and others4.
“12. What remains to be considered is
whether the selection of Respondent 6
should be quashed. We are afraid, unduly
lenient view of the courts on the basis of
human consideration in regard to such
excesses on the part of the authorities, has
served to create an impression that even
where an advantage is secured by stratagem
and trickery, it could be rationalised in
courts of law. Courts do and should take
human and sympathetic view of matters.
That is the very essence of justice. But
considerations of judicial policy also dictate
that a tendency of this kind where advantage
gained by illegal means is permitted to be
retained will jeopardise the purity of
selection process itself; engender cynical
disrespect towards the judicial process and
in the last analysis embolden errant
authorities and candidates into a sense of
complacency and impunity that gains
achieved by such wrongs could be retained
by an appeal to the sympathy of the court.
Such instances reduce the jurisdiction and
discretion of courts into private benevolence.
This tendency should be stopped. The
selection of Respondent 6 in the sports
category was, on the material placed before
us, thoroughly unjustified. He was not
eligible in the sports category. He would not
be entitled on the basis of his marks, to a
seat in general merit category. Attribution of
eligibility long after the selection process was
over, in our opinion, is misuse of power.
While we have sympathy for the predicament
of Respondent 6, it should not lose sight of
the fact that the situation is the result of his
own making. We think in order to uphold the
purity of academic processes, we should
quash the selection and admission of
Respondent 6. We do so, though, however,
reluctantly.”
31. Similar observations have been made by this Court in
K.S. Bhoir v. State of Maharashtra and others5.
32. The facts in the present case are somewhat similar with
the facts, which fell for consideration in the case of Mahatma
Gandhi University and another v. GIS Jose and others6.
33. In the said case, the admissions were given for M.Sc.
Computer Science course in violation of admission rules. The
High Court had directed to declare the withheld result of such
students. Reversing the judgment of the High Court, this Court
“10. The misplaced sympathies should not
have been shown in total breach of the rules.
In our opinion, that is precisely what has
happened. Such a course was disapproved by
Peethambaran [(2003) 7 SCC 719]. In para 6
of the judgment, this Court observed as
“6. This Court has on several occasions
earlier deprecated the practice of
permitting the students to pursue their
studies and to appear in the examination
under the interim orders passed in the
petitions. In most of such cases, it is
ultimately pleaded that since the course
was over or the result had been declared,
the matter deserves to be considered
sympathetically. It results in very awkward
and difficult situations. Rules stare
straight into the face of the plea of
sympathy and concessions, against the
legal provisions.”
11. In the present case, the college where the
student was admitted, in breach of all
possible rules allowed her not only to
complete the course but also to write the
examination which was totally illegal.”
34. It will further be relevant to refer to the following
observations of this Court in the case of National Council for
Teacher Education and another v. Venus Public Education
Society and others7.
“3. It is to be clearly stated that an
institution that is engaged or interested in
getting involved in imparting a course for
training has to obey the command of law in
letter and spirit. There cannot be any
deviation. But, unfortunately, some of the
institutions flagrantly violate the norms with
adamantine audacity and seek indulgence of
the court either in the name of mercy or
sympathy for the students or financial
constraint of the institution or they have
been inappropriately treated by the statutory
regulatory bodies. None of these grounds
justify deviation. The case at hand
graphically depicts deviations but the High
Court, putting the blame on the statutory
authority has granted relief to the respondent
institution which is impermissible.”
35. In the backdrop of this legal position laid down in
various judgments of this Court, it will not be possible to
consider the cases of the review petitioners sympathetically.
The Notification issued by the State of Uttar Pradesh on the
basis of the law laid down by this Court clearly provided that
the admissions were to be done only through the centralized
admission process. Glocal Medical College in contravention of
the said Notification conducted private counselling, which was
not at all permissible in law. The students cannot be said to
be ignorant about the Notification issued by the State of Uttar
36. In such a situation, no sympathies can be shown to
such students who have entered through backdoor. Apart from
that, MCI vide order dated 27.1.2017 had discharged the said
students, who were not admitted through centralized admission
process. It is pertinent to note that 25 students admitted in the
same college, who were admitted through the centralized
admission process, were very much absorbed by the DGME in
other colleges. As such, the contention of the review
petitioners that they came to know about the discharge order
dated 27.1.2017 issued by MCI only when they had filed a
petition in the High Court in 2019 does not stand to reason.
37. Insofar as the contention with regard to the interim
order passed by this Court dated 20.3.2017 is concerned, the
same would clearly show that though the students were
permitted to appear in the examination, their results were
directed not to be published. There is no other order modifying
the said order.
38. It is difficult to appreciate as to how the results of the
students were declared for the 1 st year MBBS examination, how
they were admitted in the 2 nd year MBBS course and how they
cleared the 2nd year MBBS examination, despite the fact that
MCI had discharged the students vide order dated 27.1.2017.
39. Insofar as the observations of this Court in order dated
18.9.2017 in the writ petition filed by Glocal Medical College
challenging the discharge order is concerned, the observation
could not be construed to have vacated or modified the specific
directions issued by this Court on 20.3.2017.
40. In the result, the Review Petitions are without merit
and as such dismissed. Consequently, all pending
applications, including the application(s) for
intervention/impleadment shall stand disposed of.
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No sympathies can be shown to students who have entered through backdoor, the Supreme Court observed while dismissing review petitions filed by some medical students.The bench of Justices L. Nageswara Rao, BR Gavai and Krishna Murari observed that the medical admissions conducted through the private counselling is illegal.Some medical students had approached the Apex Court challenging...
No sympathies can be shown to students who have entered through backdoor, the Supreme Court observed while dismissing review petitions filed by some medical students.
The bench of Justices L. Nageswara Rao, BR Gavai and Krishna Murari observed that the medical admissions conducted through the private counselling is illegal.
Some medical students had approached the Apex Court challenging the discharge order issued by the Medical Council of India to the Glocal Medical College and directed to discharge 67 students admitted by it. They submitted that they were admitted through the counselling conducted by the Glocal Medical College and that they have also cleared the 1st year and 2nd year examination. Opposing their plea, the MCI and the State of Uttar Pradesh submitted that they were admitted by backdoor entry and that their admission is the result of collusion between the Glocal Medical College and them.
The court noted that there is a Notification issued by the State of Uttar Pradesh prescribing centralized counselling for all institutions for admission to MBBS/BDS course in the State, based on NEET 2016. Though minority institutions were allowed to admit the students of their community based on Centralized Counselling held by the State on the basis of NEET 2016, the same was to be done without deviating from the merit of the said students, the court observed.
"25. It could thus clearly be seen that the private counselling by Glocal Medical College was conducted contrary to the Notification issued by the State of Uttar Pradesh, which Notification, in turn, was based on the judgment of this Court in the case of Modern Dental College and Research Centre (supra), which was decided on 2.5.2016. Not only that, but this Court by order dated 22.9.2016 had further clarified the position. It will further be pertinent to note that the Division Bench of the Allahabad High Court vide judgment dated 15.9.2016 had negated the challenge to the Notification dated 22.8.2016", the bench observed.
The court observed that the notification issued by the State of Uttar Pradesh clearly provided that the admissions were to be done only through the centralized admission process. Referring to judgments in Guru Nanak Dev University v. Parminder Kr. Bansal, Gurdeep Singh v. State of J & K, K.S. Bhoir v. State of Maharashtra and Mahatma Gandhi University and another v. GIS Jose and National Council for Teacher Education and another v. Venus Public Education Society, the bench observed:
27. In the light of this position, it was not at all permissible for the Glocal Medical College to have conducted private counselling. The admissions which were conducted through the said private counselling cannot be termed as anything else but per se illegal. . Though we have all the sympathies with the students, we will not be in a position to do anything to protect the admissions, which were done in a patently illegal manner.
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1. As common question of law and facts arise in this group of writ
petitions/special leave petitions, they are being disposed of by this
common order.
2. For the sake of convenience, Writ Petition (C) No.409 of 2022-
Dr. Astha Goel and Ors. Vs. The Medical Counselling Committee & Ors.
is treated as the lead matter. By way of this writ petition being Writ
Petition No. 409 of 2022 under Article 32 of the Constitution of India, the
seven petitioners have prayed for the following reliefs:-
“a) Issue an Appropriate Writ, Order or Direction, in the
nature of a Writ of Mandamus, under Article 32 of the
Constitution to direct Respondent No. 1 to provide the
exact number of vacant seats after the conduct of stray
b) Issue an Appropriate Writ, Order or Direction, in the
nature of a Writ of Mandamus, under Article 32 of the
Constitution to direct Respondent No. 1 to conduct a
Special Stray Round of counselling to allow the
candidates to participate for the vacant seats which are
available after the conduct of stray vacancy round of
3. In Writ Petition (C) No. 393 of 2022, one additional prayer is made
to issue an appropriate writ, direction or order directing the respondent
Nos. 1 and 2 – The Medical Consulting Committee and the Union of
India to revert the Medical P.G. seats remaining vacant after the AIQ
stray vacancy round as regards the admissions conducted pursuant to
NEET-PG-2021 examination to the State Quotas, for being allotted
4. The petitioners of Special Leave Petition (C) No. 10395 of 2022
and Special Leave Petition (C) No. 10539 of 2022 approached the
respective High Courts for the very reliefs, which are now sought in the
aforesaid writ petitions, namely directing the respondents to conduct a
Special Stray Round of counselling so as to allow them to participate for
the vacant seats, which are available after the conduct of stray vacancy
round of AIQ. By the impugned orders, the respective High Courts have
dismissed the writ petitions, hence the original writ petitioners have
preferred the present special leave petitions.
5. The dispute is with respect to the admissions for NEET-PG-2021.
Around 40,000 seats were available for NEET-PG examination, which
included the clinical as well as non-clinical seats. 92,000 candidates/
doctors were initially eligible for examination for the said seats.
However, subsequently, the percentage was lowered by communication
dated 12.05.2022 and another 25,000 candidates became eligible.
5.1 The NEET-PG examination was conducted on 11.09.2021. The
result was declared on 28.09.2021. As per the earlier counselling
scheme, there were two rounds of counselling for All India Seats as well
as State Quotas seats respectively. However, as per the modified
counselling scheme, counselling is to be carried in four rounds and no
seats were to be reverted to States. These four rounds were AIQ Round
1, AIQ Round 2, AIQ Mop-up Round and AIQ Stray Vacancy Round.
5.2 That for NEET-PG-2021, Round 1 was held on 12.01.2022, Round
2 was held on 05.02.2022, Mop-Up Round was held on 14.04.2022 and
final Stray Round started on 28.04.2022 and ended on 07.05.2022. At
the end of the four rounds of counselling, each for All India Quota and
State Quotas (in all eight rounds of counselling) and thereafter one
another round of counselling was conducted, and still approximately
1456 seats remain vacant.
5.3 The respective petitioners, who earlier participated in all the
counsellings and could not get the admissions have now approached
this Court by way of present writ petitions/special leave petitions praying
for Special Stray Round of counselling with respect to the remaining
1456 seats remained vacant and to allow them to participate for the
vacant seats, which are available after the conduct of the Stray vacancy
round of AIQ.
6. Ms. Rachna Shrivastava, learned Senior Advocate has appeared
on behalf of the writ petitioners of Writ Petition (C) No. 409 of 2022; Shri
A.D.N. Rao, learned Senior Advocate has appeared on behalf of the
petitioner in Special Leave Petition (C) No. 10395 of 2022; Shri Avijit
Mani Tripathi, learned counsel has appeared on behalf of the petitioner
in Special Leave Petition (C) No. 10539 of 2022 and Shri Kunal
Cheema, learned counsel has appeared on behalf of the writ petitioner in
Writ Petition (C) No.393 of 2022. Shri Balbir Singh, learned Additional
Solicitor General has appeared on behalf of the Union of India and Shri
Gaurav Sharma, learned counsel has appeared on behalf of the Medical
Counselling Committee as well as the National Board of Examinations.
7. Learned Senior Advocates/counsel appearing on behalf of the
respective petitioners have made following submissions in support of
their prayer to direct the respondents to conduct a Special Stray Round
of counselling with respect to the seats which have remained vacant:-
(i) Total 1456 seats have remained vacant for NEET-PG-2021,
wastage of 1456 seats still hamper the interest of both
colleges and the candidates;
(ii) The respective petitioners – candidates are ready to get
admission on any of the seats remained vacant;
(iii) Due to abrupt addition of additional seats in NEET-PG-2021,
an additional round of counselling for 146 seats was
conducted pursuant to the order passed by this Court. Apart
from this, the Mop-Up round was cancelled and was directed
to be reconducted. Therefore, the point of four counselling
cannot be brought when due to severe glitches additional
rounds were already conducted;
(iv) Out of 1456 seats remaining vacant, there are many seats,
which are clinical seats also. Therefore, it is not correct to
say that the seats, which have remained vacant are of
(v) The seats which have remained vacant have remained
vacant due to the non-joining, resignation and the candidates
not reported. It is submitted that therefore, it was the duty
cast upon the respondents to fill up the posts remained
vacant due to the aforesaid grounds from and amongst the
remaining candidates;
(vi) It is the duty of the Medical Counselling Committee to have
conducted an additional round keeping in view the large
number of seats (1456) remaining vacant;
(vii) Closing of the software before filling of those seats itself is
not justifiable. Even if the software is closed, looking at the
gravity and urgency, a mechanism can be developed to fill in
(viii) That the submission on behalf of the Medical Counselling
Committee and the Union of India that the respective
candidates have already been refunded the amount cannot
be a ground not to conduct an additional round of
(ix) The candidates for NEET-PG-2021 and 2022 are different.
Many candidates, who participated in the counselling for
NEET-PG-2021 did not even register for NEET-PG-2022 with
a hope that they will get a seat in the counselling.
Registration for NEET-PG-2022 has already been closed on
25.03.2022, giving no room to the candidates for NEET-PG-
2021 to appear for the NEET-PG-2022;
(x) The candidates cannot be replaced for NEET-PG-2021 and
NEET-PG-2022, 1456 seats can only be open for a merit-
based competition for NEET-PG-2021;
(xi) If the candidates like the petitioners are given the admissions
on the seats remaining vacant now, it may not affect their
education. Even the classes of NEET-PG-2021 started even
much before the first counselling batch started. That
thereafter and after the courses started, there are three Mop-
Up Rounds conducted and the students are given
admissions and the last admission was given on 07.05.2022.
The students, who are given admissions now will be able to
complete their full studies.
Making above submissions, it is urged and prayed to direct
the respondents to conduct a Special Stray Round of counselling
as a one-time measure and as a special case.
8. Present petitions/special leave petitions are vehemently opposed
by Shri Balbir Singh, learned ASG appearing on behalf of the Union of
India and Shri Gaurav Sharma, learned counsel appearing on behalf of
the Medical Counselling Committee. A counter is filed on behalf of the
respondent Nos. 1 and 3 – Union of India/ Director General of Health
8.1 It is vehemently submitted by Shri Balbir Singh, learned ASG that
in the present case, the dispute is with respect to the NEET-PG-2021
seats. It is submitted that in the present case, four rounds of counselling
each for All India Quota and State’s Quotas have been carried out and
out of 40,000 seats only 1456 seats have remained vacant after in all
nine rounds of counselling. It is submitted that out of 1456 seats
remaining vacant, approximately, 1100 seats are with respect to non-
clinical courses and the remaining seats are with respect to the private
colleges and with respect to the clinical courses. It is submitted that all
those seats have remained vacant, which usually remain vacant every
year as they are no takers and/or they can be said to be rejected seats.
It is submitted that all those seats remain vacant every year and, in
many cases, they are not opted by the concerned candidate as nobody
like to opt for non-clinical courses and even with respect to some of the
clinical courses, as there is a high fee in the private colleges, they are no
takers and therefore, some of the seats are remaining vacant every year.
It is submitted that therefore even after one additional round of
counselling is carried out as requested by the petitioners, in that case
also the seats are bound to remain vacant. It is submitted that there
cannot be endless exercise of conducting counseling one after another
till all the seats are filled in. It is submitted that after the nine rounds of
counselling when some of the seats have remained vacant and
considering the fact that the PG courses (clinical) is three-years course,
out of which, for whatever reason, more than one year had gone and
there cannot be any compromise so far as the Medical Education is
concerned and considering the fact that the admission process for
NEET-PG-2022 has already begun and the counselling for NEET-PG-
2022 is to begin/start in July, 2022, a conscious decision has been taken
not to conduct one another Special Stray Round of counselling.
8.2 It is further submitted on behalf of the Union of India and the
Medical Counselling Committee that the last round of counselling ended
on 07.05.2022. That thereafter, the entire software mechanism has
been closed and the security deposit has also been refunded to the
eligible candidates. It is submitted that a significant proportion of seats,
which remain vacant are in non-clinical courses and these are no taker
seats, which seats generally remain vacant. It is submitted that every
year, some number of seats remain vacant. It is submitted that the
identical question came to be considered by this Court in the case of
Education Promotion Society for India and Anr. Vs. Union of India
and Ors., (2019) 7 SCC 38. It is submitted that before this Hon’ble
Court, the petitioners prayed for general extension of time and prayed for
additional Mop-Up Round of counselling on the ground that a large
number of seats for PG courses were lying vacant. It is submitted that in
the said decision after taking note of the fact that every year, large
number of non-clinical seats remain vacant because many graduate
doctors do not want to do postgraduation in non-clinical subjects, it is
observed that merely because the seats are lying vacant is not a ground
to grant extension of time and grant further opportunity to fill up vacant
seats. It is submitted that in the aforesaid decision, it is observed that the
schedule must be followed and if the violation of schedule is permitted
and extension is granted, it will be opening a pandora’s box and the
whole purpose of fixing a time schedule and laying down a regime which
strictly adheres to the time schedule will be defeated.
8.3 Shri Gaurav Sharma, learned counsel appearing on behalf of the
Medical Counselling Committee and the National Board of Examinations
has also relied upon the earlier decision of this Court in the case of
Supreet Batra and Ors. Vs. Union of India and Ors., (2003) 3 SCC
370 in support of his submission that even if some seats remained
vacant, the students cannot be admitted mid-term.
8.4 Making above submission, it is prayed to dismiss the present writ
petitions/special leave petitions.
9. Heard the learned counsel appearing for the respective parties at
10. At the outset, it is required to be noted that in the present case, the
dispute is with respect to the NEET-PG-2021 and the time schedule for
the approved counselling has been fixed pursuant to the direction issued
by this Court and/or approved by this Court. Ordinarily, the first round of
counselling in PG courses begins in the month of March of every
academic year and subsequently the academic session begins from the
month of May of every academic year. However, NEET-PG-2021
examination was delayed due to the third wave of COVID-19 pandemic
and various litigations across the nation implementing the 27% OBC
reservation in AIQ seats.
10.1 At this stage, it is required to be noted that as per the earlier
counselling policy, only two rounds of counselling were being held for All
India Quota seats and State Quotas. The modified scheme of
counselling for Academic Year 2021-2022 and onwards was submitted
before this Court in Special Leave Petition (C) No.10487 of 2021 and
this Court approved the same. As per the modified scheme of
counselling, this time four rounds of counselling have been undertaken
for All India Quota seats as well as States’ Quotas each. That thereafter
one another round of counselling was conducted pursuant to the
subsequent order passed by this Court, as approximately 146 seats
were added. The NEET-PG-2021 counselling commenced on
12.01.2022 and after completion of the four rounds of counselling for All
India Quota seats and State Quotas (in all eight rounds of counselling),
out of 40,000 seats, 1456 seats have remained vacant. It appears that
out of 1456 seats approximately more than 1100 seats are with respect
to the non-clinical courses and the remaining are with respect to the
clinical courses and all the seats are with respect to the private
institutions. The respective petitioners are claiming admission on the
remaining vacant seats and have prayed to direct the respondents to
conduct a Special Stray Round of counselling. The main submission on
behalf of the petitioners, as noted hereinabove, is that as large number
of seats have remained vacant, the same be filled in by conducting
additional/Special Stray Round of counselling for the seats remaining
vacant, which are mostly non-clinical courses, which remained even
after eight or nine rounds of counselling. The students cannot still pray
for admission on those seats remaining vacant after approximately one
year of academic session and remaining vacant after eight or nine
rounds of counselling.
10.2 At this stage, the decisions of this Court in the case of Supreet
Batra and Ors. (supra) and Education Promotion Society for India
and Anr. (supra) are required to be referred to.
In the case of Supreet Batra and Ors. (supra), it is observed and
held that even if some seats remain vacant, the students cannot be
admitted mid-term. In paragraph 7, it is observed and held as under:-
“7. When a detailed scheme has been framed through
orders of this Court and the manner in which it has to be
worked out is also indicated therein, we do not think that if in
a particular year there is any shortfall or a certain number of
seats are not filled up, the same should be done by adopting
one more round of counselling because there is no scope for
the third round of counselling under the Scheme. It would not
be advisable to go on altering the Scheme as and when
seats are vacant. What is to be borne in mind is that broad
equality will have to be achieved and not that it should result
in any mathematical exactitude. Out of about 1600 seats, if
200 seats are not filled up for various reasons and such not-
filled-up seats were much less in the earlier years, we do not
think it should result in the third round of counselling. If that
process is to be adopted then there will be again vacancies
and further filling up of the seats falling vacant will have to be
undertaken. In that process, it will become endless until all
the seats under the all-India quota are filled up. That is not
the object of the Scheme formulated by this Court. The
object was to achieve a broad-based equality as indicated by
us at the outset and we do not think that any steps have to
be taken for altering the Scheme. We have taken identical
view in the decision in Neelu Arora v. Union of India [(2003)
3 SCC 366] and connected matters disposed of on 24-1-
2003. Moreover, this Court in Medical Council of
India v. Madhu Singh [(2002) 7 SCC 258] has taken the view
that there is no scope for admitting students midstream as
that would be against the very spirit of statutes governing
medical education. Even if seats are unfilled that cannot be a
ground for making mid-session admissions and there cannot
be telescoping of unfilled seats of one year with permitted
seats of the subsequent year. If these aspects are borne in
mind, we do not think any reliefs as sought for by the
petitioners can be granted under these petitions. These writ
petitions shall stand dismissed.”
10.3 In the case of Education Promotion Society for India and Anr.
(supra), the writ petitioners like the petitioners in the present case
prayed for extension of time schedule and prayed for the additional
counselling. This Court negated the same. This Court also took the
note of the fact that every year large number of non-clinical seats remain
vacant because many graduate doctors do not want to do
postgraduation in non-clinical subjects. Thereafter, it is observed and
held that merely because the seats are lying vacant, is not a ground to
grant extension of time and grant further opportunity to fill up vacant
seats. It is observed that the schedule must be followed. While holding
so, it is observed in paragraph 6 as under:-
“6. In this case the petitioners want a general extension of
time not on account of any particular difficulty faced by any
individual college or university but generally on the ground
that a large number of seats for the PG courses are lying
vacant. It is stated that more than 1000 seats are lying
vacant. In the affidavit filed by the UoI it is mentioned that as
far as deemed universities are concerned there are 603
seats lying vacant. However, it is important to note that out of
603 seats lying vacant only 31 are in clinical subjects and
the vast majority (572) that is almost 95% of the seats are
lying vacant in non-clinical subjects. There is no material on
record to show as to what is the situation with regard to the
remaining 400-500 seats. This Court however can take
judicial notice of the fact that every year large number of
non-clinical seats remain vacant because many graduate
doctors do not want to do postgraduation in non-clinical
subjects. Merely because the seats are lying vacant, in our
view, is not a ground to grant extension of time and grant
further opportunity to fill up vacant seats. The schedule must
be followed. If we permit violation of schedule and grant
extension, we shall be opening a pandora's box and the
whole purpose of fixing a time schedule and laying down a
regime which strictly adheres to time schedule will be
defeated.”
10.4 Applying the law laid down by this Court in the aforesaid two
decisions to the facts of the case on hand and when the Medical
Counselling Committee and the Union of India have to adhere to the
time schedule for completing the admission process and when the
current admission of NEET-PG-2021 is already behind time schedule
and ever after conducting eight to nine rounds of counselling, still some
seats, which are mainly non-clinical courses seats have remained vacant
and thereafter when a conscious decision is taken by the Union
Government/the Medical Counselling Committee, not to conduct a
further Special Stray Round of counselling, it cannot be said that the
same is arbitrary. The decision of the Union Government and the
Medical Counselling Committee not to have Special Stray Round of
counselling is in the interest of Medical Education and Public Health.
There cannot be any compromise with the merits and/or quality of
Medical Education, which may ultimately affect the Public Health.
10.5 The process of admission and that too in the medical education
cannot be endless. It must end at a particular point of time. The time
schedule has to be adhered to, otherwise, ultimately, it may affect the
medical education and the public health.
10.6 Apart from the fact that after closure of the last round of
counselling on 07.05.2022, the entire software mechanism has been
closed and the security deposit is refunded to the eligible candidates, it
is to be noted that the admission process for NEET-PG-2022 has
already begun, the results for the NEET-PG-2022 has been announced
on 01.06.2022 and as per the time schedule, the counselling process is
going to start in July, 2022. Therefore, if one additional Special Stray
Round of counselling is conducted now, as prayed, in that case, it may
affect the admission process for NEET-PG-2022.
10.7 At the cost of repetition, it is observed and held that even after
eight to nine rounds of counselling, out of 40,000 seats, 1456 seats have
remained vacant, out of which approximately, more than 1100 seats are
non-clinical seats, which every year remain vacant, of which the judicial
notice has been taken by this Court in the case of Education
Promotion Society for India and Anr. (supra)
11. In view of the above and for the reasons stated above, the
petitioners are not entitled to any relief of writ of Mandamus directing the
respondents to conduct a Special Stray Round of counselling for filling
up the remaining vacant seats of NEET-PG-2021. Granting of such
relief now may affect the medical education and ultimately the public
health as observed hereinabove.
12. Under the circumstances, both these writ petitions and the special
leave petitions deserve to be dismissed and are accordingly dismissed.
However, in the facts and circumstances of the case, there shall be no
order as to costs.
|
The Supreme Court has dismissed the plea seeking a Special Stray Round of counselling for NEET-PG 2021, to allow the candidates to participate for vacant seats available after the conduct of a stray vacant round of AIQ.
A Bench comprising Justices MR Shah and Aniruddha Bose observed, "When a conscious decision has been taken by the Union of India and Medical Council of India for not conducting any special stray rounds of counselling, it cannot be considered arbitrary."
It added,
"Quality of medical education cannot be compromised which affects public health. Petitioners are not entitled to relief. Granting the relief now may affect medical Education and health."
The petition was preferred by the doctors who appeared in NEET-PG 2021 and participated in rounds 1 and 2 of All India Quota (AIQ) Counselling and State Quota Counselling which was followed by All India Mop-Up and State Mop-Up Rounds.
On Thursday the Top Court had reserved its order on the plea.
The Bench had observed that there must be a limit to the entire process and if the seats remain vacant even after 8 or 9 rounds of counselling, then students cannot claim rights after 1.5 years.
The Judge added, "There cannot be any compromise with education. On that we're very sure. Suppose you're hungry for 6 months, can you eat everything in 1 day? NO. Education is like that. Its a 3 year course."
On Wednesday the Top Court had come down heavily upon the Medical Counselling Committee on, stating that leaving 1456 seats in NEET-PG vacant not only puts aspirants into difficulty but also leads to dearth of qualified doctors.
While adjourning the matter for Thursday, the vacation bench had permitted the authority to file its affidavit during the course of the day explaining the position of the vacant seats & why they were not filled in.
In the affidavit submitted before the Top Court, MCC had informed that the software which was being used for conducting NEET-PG 2021 online counselling was now closed and hence, it could not possibly fill 1,456 vacant seats by conducting a Special Stray Round of counselling.
It further submitted that the counselling process for two academic sessions, i.e. 2021 and 2022, could not run concurrently.
The petitioners were represented through Dubey Law Chambers and the petition has been filed through AOR Milind Kumar.
Case Details
Astha Goel v Medical Counselling Committee | (SC) 548 | WP(C) 409 OF 2022 | 10 June 2022
Coram: Justices MR Shah and Aniruddha Bose
Counsel: Sr. Adv Rachna Shrivastava , Sr.Adv A.D.N. Rao, Adv Avijit Mani Tripathi, Adv Kunal Cheema for petitioners, ASG Balbir Singh for UoI, Adv Gaurav Sharma for MCC
Headnotes
NEET-PG 2021 - The decision of the Union Government and the Medical Counselling Committee not to have Special Stray Round of counselling is in the interest of Medical Education and Public Health. There cannot be any compromise with the merits and/or quality of Medical Education, which may ultimately affect the Public Health. (Para 10.4)
|
(1) By the impugned order, the appellant is denied bail
which is sought under Section 439 of the Code of Criminal
Procedure. The appellant was arrested on 08.05.2014 in
connection with FIR 113/2014 of Police Station Pratapnagar,
Jodhpur for offences punishable under Sections 10, 13, 15,
16, 17, 18, 18A, 18B, 19, 20, 23 and 38 of the Unlawful
Activities (Prevention) Act, 1967 (in short ‘Act of 1967’).
(2) A chargesheet came to be filed against the appellant on
17.09.2014. Charges have been framed against the appellant
on 29.01.2018. It is not in dispute that the appellant has
been in custody for a period of almost 8 years.
Reason: stage of the case is concerned, examination of only 6
witnesses have been completed. The seventh witness is being
examined. Ms. Pragati Neekra, learned counsel for the
State, does not dispute the fact that there are 109
witnesses. Without much dispute, it can be found that the
appellant who is an undertrial prisoner, has already
undergone a long period of incarceration.
(3) This Court issued notice in this matter on 29.09.2021.
Thereafter the matter came up on 26.11.2021 wherein the
complaint of the appellant that out of 180 witnesses cited
by the prosecution, evidence of not even a single witness
was complete was noted; the counsel for the State, was asked
to get instructions and also to submit before the Court as
to the approximate time within which the trial can be
(4) Thereafter this Court passed the following order on
“The petitioner is in custody since the last 7
years. Learned counsel for the State submits that
there are a total of 109 witnesses for prosecution.
It is common case that the evidence of even the first
witness is not yet completely recorded. In the
circumstances, we think it fit to call for a report
from the Additional District and Sessions Judge, No.
3, Jodhpur City, as to within what time the trial in
the case can be concluded. Accordingly, we direct
that Additional District and Sessions Judge, No. 3,
Jodhpur City, shall send a report as to the earliest
point of time when the trial can be concluded. The
report to be sent within a period of three weeks from
today.
List the case on 10th January, 2022.”
Pursuant to the said order, a report was filed by the
Judge concerned wherein it was indicated that there is quite
a probability of taking at least 2 to 3 years in disposal of
the instant case. The said report is dated 20.12.2021.
(5) Thereafter, again, this matter was taken up on
19.01.2022. On the said date, the following order was
“After hearing the learned counsel for the
parties, we are of the view that interest of justice
requires that the State places an affidavit before
us indicating the position of the other accused with
charges against them and the difference, if any,
between the petitioner and the other accused. The
affidavit shall also indicate about the need for any
measures to protect the witnesses who will depose in
the trial. The affidavit shall be file on or before
The petitioner will be free to file affidavit-
in-reply to the affidavit which we have ordered the
State to file.
(6) Still further, the following order passed on 04.02.2022:
“By the impugned order, the High Court has
rejected the application for bail maintained by the
petitioner under the provisions of the Unlawful
We have heard learned counsel for the petitioner
and also the learned counsel appearing for the
respondent-State.
The petitioner has been in custody since
08.05.2014, that is almost for 8 years. Based on an
order passed by this Court as to the possibility of an
early disposal of the trial itself, the report
indicates that even after putting every effort in the
matter and keeping in view the number of witnesses,
accused persons, Advocates, cross examination by them
and the number of cases pending in the Court, there is
probability of at least 2-3 years for the disposal in
the case.
In the affidavit filed by the State before this
Court by way of compliance with the order passed by
this Court asking the respondent to indicate about the
need for any measures to protect the witnesses who
would depose in trial, it has been stated that a total
of 110 witnesses shall be deposing during trial out of
which, the statements of three prosecution witnesses
have already been recorded. It is further stated that
the concerned official had contacted the private
witnesses out of whom three witnesses have apprehended
danger to their lives to depose against the accused
during trial.
Learned counsel for the petitioner would point
out that such an apprehension has not been raised
during the past eight years and it is frivolous and
there is no threat from the petitioner. This is
besides reiterating that there is no material against
the petitioner whereas the learned counsel for the
State would, on her part, reiterate that it is a
matter where very serious offences are alleged and is
not a case where bail may be granted to the
petitioner. She further would point out that the
trial is progressing and the State is also taking
effective steps for an early disposal of the matter.
We are of the view that in the facts of this
case, when the petitioner has already spent nearly 8
years in custody, the appropriate order to pass would
be to first direct the examination of the three
witnesses who have raised concerns about threat to
their lives from the accused and the matter should
receive attention of this Court after their evidence
is adduced. However, these witnesses must be examined
on a priority basis. In such circumstances, we pass
the following order:
There will be a direction that the respondent-
State shall ensure that these witnesses are examined
on priority basis and that, at any rate, the
examination is completed within a maximum period of
two months from today.
List this case for further consideration on
The State will ensure that the deposition of the
witnesses in question shall be placed before this
Court after translation on or before 08.04.2022.”
Today the depositions of witnesses mentioned in the
order dated 04.02.2022 have been placed before the Court.
(7) The learned counsel for the appellant would point out
that witness named Devendra Patel has been declared hostile.
As far as the other two witness - Hemant and Pappuram
examined on behalf of the prosecution are concerned, it is
pointed out by the learned counsel for the appellant that
there is nothing in the deposition of the said witnesses
which implicates the appellant. This aspect, as such, is
not disputed by the learned counsel for the State. No
doubt, the learned counsel for the State does point out that
in the nature of the case set up against the appellant,
there would be further evidence which may unfold.
(8) In this regard, the basis of the case against the
appellant appears to be largely the fact that he was found
to be in touch with one of the accused and which is sought
to be made good by conversations which the appellant is
alleged to have engaged in with that accused on 31
occasions, who is a co-villager. According to the
respondent, the said accused is the head of a sleeper cell
module of Indian Mujahideen.
(9) We bear in mind the judgment of this Court reported in
Union of India v. K. A. Najeeb (2021) (3) SCC 713. Therein,
the following observations cannot be overlooked:
“12. Even in the case of special legislations like the
Terrorist and Disruptive Activities (Prevention) Act,
1987 or the Narcotic Drugs and Psychotropic Substances
Act, 1985 (“the NDPS Act”) which too have somewhat
rigorous conditions for grant of bail, this Court in
Paramjit Singh v. State (NCT of Delhi) [Paramjit Singh
v. State (NCT of Delhi), (1999) 9 SCC 252 : 1999 SCC
(Cri) 1156] , Babba v. State of Maharashtra [Babba v.
State of Maharashtra, (2005) 11 SCC 569 : (2006) 2 SCC
(Cri) 118] and Umarmia v. State of Gujarat [Umarmia v.
State of Gujarat, (2017) 2 SCC 731 : (2017) 2 SCC
(Cri) 114] enlarged the accused on bail when they had
been in jail for an extended period of time with
little possibility of early completion of trial. The
constitutionality of harsh conditions for bail in such
special enactments, has thus been primarily justified
on the touchstone of speedy trials to ensure the
protection of innocent civilians.
19. Yet another reason which persuades us to enlarge
the respondent on bail is that Section 43-D(5) of the
UAPA is comparatively less stringent than Section 37
of the NDPS Act. Unlike the NDPS Act where the
competent court needs to be satisfied that prima facie
the accused is not guilty and that he is unlikely to
commit another offence while on bail; there is no such
precondition under UAPA. Instead, Section 43-D(5) of
the UAPA merely provides another possible ground for
the competent court to refuse bail, in addition to the
well-settled considerations like gravity of the
offence, possibility of tampering with evidence,
influencing the witnesses or chance of the accused
evading the trial by absconsion, etc.”
(10) No doubt, in the said case, as pointed out by the
learned counsel appearing on behalf of the State, the Court
was dealing with an order passed by the High Court granting
bail, whereas, in this case, the converse is true, that is,
the impugned order is one rejecting the application for
bail. The fact remains that the appellant has been in
custody as an undertrial prisoner for a period of nearly 8
years already. The appellant, it may be noted, is charged
with offences, some of which are punishable with a minimum
punishment of 10 years and the sentence may extend to
imprisonment for life. Learned counsel for the appellant
also points out that one of the co-accused namely Shri Aadil
Ansari has been released on bail on 30.09.2020 by this
Court. No doubt, in this regard, we keep in mind the
submission of the State that the role attributed to the said
accused is different.
(11) The condition in Section 43D(5) of the Act of 1967 has
been understood to be less stringent than the provisions
contained in Narcotic Drugs and Psychotropic Substances Act,
1985, as already noticed by us. We would think that in the
nature of the case against the appellant, the evidence which
has already unfolded and above all, the long period of
incarceration that the appellant has already undergone, time
has arrived when the appellant be enlarged on bail. We bear
in mind the fact that the prosecution seeks to examine as
many as 109 witnesses of which only 6 witnesses have been
fully examined so far. Accordingly, we allow the appeal, set
aside the impugned order and direct that the appellant shall
be released on bail subject to such conditions as shall be
fixed by the trial Court.
Needless to say, the observations which have been made
in this order are for the purpose of deciding the
application for bail and the Court will, undoubtedly, decide
upon the fate of the appellant in the trial on the basis of
the evidence and in accordance with law.
Petition(s) for Special Leave to Appeal (Crl.) No. 7003/2021
(Arising out of impugned final judgment and order dated 24-03-2021
in SBCRMBA No. 14646/2020 passed by the High Court of Judicature
for Rajasthan at Jodhpur)
JUDGMENT and IA No.116431/2021-EXEMPTION FROM FILING O.T.)
Date : 11-04-2022 This petition was called on for hearing today.
UPON hearing the counsel the Court made the following
Leave granted.
The appeal is allowed in terms of the signed
reportable order.
Pending applications stand disposed of.
[Signed reportable order is placed on the file.]
|
The Supreme Court granted bail to a UAPA under-trial accused who was in custody for nearly 8 years.Jahir Hak was arrested on 08.05.2014 in connection with FIR for offences punishable under Sections 10, 13, 15, 16, 17, 18, 18A, 18B, 19, 20, 23 and 38 of the Unlawful Activities (Prevention) Act, 1967. A chargesheet was filed against him on 17.09.2014. Charges were framed on 29.01.2018....
The Supreme Court granted bail to a UAPA under-trial accused who was in custody for nearly 8 years.
Jahir Hak was arrested on 08.05.2014 in connection with FIR for offences punishable under Sections 10, 13, 15, 16, 17, 18, 18A, 18B, 19, 20, 23 and 38 of the Unlawful Activities (Prevention) Act, 1967. A chargesheet was filed against him on 17.09.2014. Charges were framed on 29.01.2018. The Rajasthan High Court dismissed his bail application against which he approached the Apex Court.
The court noted that for the trial, the prosecution seeks to examine as many as 109 witnesses of which only 6 witnesses have been fully examined so far. The bench also noted that the prosecution case is that the accused was found to be in touch with one of the accused, who is the head of a sleeper cell module of Indian Mujahideen.
"Without much dispute, it can be found that the appellant who is an undertrial prisoner, has already undergone a long period of incarceration.", the bench observed.
The bench noticed the observations made in Union of India v. K. A. Najeeb (2021) (3) SCC 713 which held that delay in trial can be a ground for bail under UAPA.
The Court further observed :
"The condition in Section 43D(5) of the Act of 1967 has been understood to be less stringent than the provisions contained in Narcotic Drugs and Psychotropic Substances Act, 1985, as already noticed by us. We would think that in the nature of the case against the appellant, the evidence which has already unfolded and above all, the long period of incarceration that the appellant has already undergone, time has arrived when the appellant be enlarged on bail"
Case details
Jahir Hak vs State of Rajasthan | (SC) 372 | Crl A 605 OF 2022 | 11 April 2022
Justices KM Joseph and Hrishikesh Roy
Counsel: AOR Mohd. Irshad Hanif for appellant, AoR Pragati Neekhra for respondent
Headnotes
Summary : Appeal against Rajasthan HC order denying bail to UAPA accused- under trial - Allowed - In the nature of the case against the appellant, the evidence which has already unfolded and above all, the long period of incarceration that the appellant has already undergone, time has arrived when the appellant be enlarged on bail.
Unlawful Activities (Prevention) Act, 1967 ; Section 43D(5) - The condition in Section 43D(5) of the Act of 1967 has been understood to be less stringent than the provisions contained in Narcotic Drugs and Psychotropic Substances Act, 1985. (Para 11)
|
ivil Appeal No. 4 177 of 1989.
From the Judgment and Order dated 28.3.1989 of the Madras High Court in O.S.A. No. 48 of 1989.
K.K. Venugopal, K. Chandra Mouli, Ms. Meenakshi Sundaram and K.K. Mani for the Appellant.
Dr. Y.S. Chitale, V.G. Pragasam, Satya Mitra Garg, V. Prakash and R. Venkataramani for the Respondent.
The Judgment of the Court was delivered by K. JAGANNATHA SHETTY, J.
Special Leave granted.
The question raised in this appeal is whether the agent after revocation of his authority is entitled to remain in possession of the premises of the principal and interfere with the business thereof.
The learned single Judge of the Madras High Court in Original Suit C.S. No. 1317 of 1988 has granted temporary injunction restraining the respondent from interfering with the appellant 's transport business.
But the Division Bench by judgment delivered on March 28, 1989, vacated that temporary injunction.
The present appeal is directed against the judgment of the Division Bench.
The facts are substantially undisputed.
The appellant company under the name as Southern Roadways Ltd. is engaged in the business of transport of goods and parcels to differ ent places in Southern India.
It has appointed commission agents at various stations for the purpose of carrying on its business.
S.M. Krishnan respondent was one such agent appointed at Madras city.
Clause III of the agreement by which he was appointed provides that the respondent should arrange a suitable godown and engage employees.
Clause XI provides for his removal from service at any time without notice.
It also provides that upon removal of the agent the company could occupy the godown.
The company could also utilise the services of employees engaged by the respondent.
As per the agreement perhaps at the 413 suggestion of the respondent, the Company took on lease a godown at No. 10, Srinivasan Road, T. Nagar, Madras.
The godown was put in possession of the respondent for the purpose of carrying on his agency business of the company.
In the course of the company 's audit, it was discovered that the respondent had mismanaged the business and misap propriated the income of the company.
By letter dated Octo ber 13, 1988, the company terminated his agency with effect from October 14, 1988.
He was informed that the company would be taking possession of the godown and carrying on the business on its own.
By subsequent letter, he was also intimated that the company has taken possession of the godown on October 15, 1988 and another agent called R. Sundarajan, was appointed in his place.
The respondent however, prevented R. Sundarajan and also the company from carrying on business at the godown premises.
The company, therefore, had to institute a suit for declaration of its right to carry on business in the said premises.
Permanent injuction restraining the respondent from interfering was also sought for.
The suit was based on two separate grounds.
The first related to legal right of the company to carry on its business after termination of agency of the respondent; the second concerned the factum of taking actual possession of the premises on October 15, 1988.
Pending suit, the company moved the High Court for temporary injunction.
The temporary injunction restraining the respondent from interfering with the possession of the premises and the business thereof.
The learned single Judge (M. Srinivasan, J.) acceded to that request.
The judge said: "As pointed out already, in this case, there is no denial of the lease arrangement between the owner of the premises and the plaintiff.
The defendant does not claim to be the owner of the premises nor does he put forward any rival title as against the plaintiff.
The only claim of the defendant is that he is in pos session and that he has been paying the rent to the owner.
He does not claim that he took possession as a lessee from the owner.
Though there is a specific averment in the plaint and the affidavit of the plaintiff that there is a lease arrangement between the plaintiff and the owner, there is no denial of the same by the defendant.
In these circumstances, the defendant cannot claim that he is in posses sion pursuant to any right enured in him.
" 414 As to the possession of the premises, he said: "The claim made by the plaintiff that it took possession on 15.10.1988 is acceptable in view of the fact that the defendant was never the lessee under the owner of the premises.
The defendant was only looking after the business as an agent of the plaintiff and as such he was permitted to enter the premises and he cannot claim independent possession.
" Finally, he concluded: "In the circumstances of the case, there can be no doubt that the plaintiff has been in legal and actual possession of the premises on the date of suit.
The fact that the business has been temporarily shifted to another place in view of the threat meted out to the plain tiff 's agent will not disentitle the plaintiff to get injunction.
The plaintiff is certainly entitled to carry on its business at No. 10, Srinivasan Road, T. Nagar, Madras 600017, having taken the premises on lease.
It is ot open to the defendant to prevent the plaintiff from carrying on such business.
" The respondent was thus restrained by means of temporary injunction from interfering with the company 's transport business in goods and parcels at the suit premises.
The respondent took up the matter in appeal before the Division Bench of the High Court.
The Division Bench con sisting of Sathidev and Padmini Jesudurai, JJ., accepted the appeal and vacated the temporary injuction.
The conclusion of learned Judges is largely based on the actual possession of the premises claimed by the Company.
They found it hard to accept that claim and observed: "The plaintiff will not be entitled to the relief sought for unless it establishes that its claim that possession of the property was handed over to it on 15.10.1984 is true.
The defendant has consistently been contending that possession was not handed over to the plaintiff on 15.10.1984 and that he continues to be in actual and physical possession of the property even now.
No material has been placed before the Court to substantiate the claim of the plaintiff that possession was taken over on 15.10.1984.
" 415 They continued: "In the face of these documents and in the absence of any material to show that posses sion of the suit property was taken by the plaintiff on 15.10.1988, it would be impossi ble for this Court to grant the plaintiff, the relief of injuction." As to the company 's right to treat the respondent as trespasser, the Division Bench observed: "Before the defendant could be characterised as a trespasser, the validity of the termina tion of the agency and the rights of the parties, following that, have also to be determined and this could be done only during trial." At the outset, we may state that we are not so much concerned with the rival claims relating to actual posses sion of the suit premises.
Indeed, that is quite irrelevant for the purpose of determining the rights of the company to carry on its business.
Mr. Venugopal, learned counsel for the appellant also discreetly did not advert to that contro versy.
He, however, rested his case on certain facts which are proved or agreed.
They may be stated as follows: The company was and is the tenant of the suit premises and has been paying rent to the owner.
The lease in respect of the premises has been renewed up to November 22, 1983.
It was the company which has executed the lease and not the respondent.
The respondent as agent was allowed to remain in possession of the premises.
It was only for the purpose of carrying on company 's business.
His agency has been termi nated and his authority to act for the company has been put an end to.
These facts are indeed not disputed.
On these facts the contention of counsel is that when the agency has been terminated, the respondent has no legal right to remain in the premises or to interfere with the business activities of the company.
The force of this argument cannot be gainsaid.
Counsel, in our opinion, appears to be on terra firma.
The principal has right to carry on business as usual after the removal of his agent.
The Courts are rarely willing to imply a term lettering such freedom of the principal unless there is some agreement to the contrary.
The agreement between the parties in this case does not confer right on the respondent to continue in possession of the suit premises even after termination of agency.
Nor does it preserve right for him to interfere with the com 416 pany 's business.
On the contrary, it provides that the respondent could be removed at any time without notice and after removal the company could carry on its business as usual.
The company under the terms of the agreement is, therefore, entitled to assert and exercise its right which cannot be disputed or denied by the respondent.
Even otherwise, under law revocation of agency by the principal immediately terminates the agent 's actual authori ty to act for the principal unless the agent 's authority is coupled with an interest as envisaged under section 202 of the .
When agency is revoked, the agent could claim compensation if his case falls under section 205 or could exercise a lien on the principal 's property under section 22 1.
The agent 's lien on principal 's property recognised under section 22 1 could be exercised only when there is no agreement inconsistent with the lien.
In the present case the terms of the agreement by which the re spondent was appointed as agent, expressly authorises the company to occupy the godown upon revocation of agency.
Secondly, the lien in any event, in our opinion, cannot be utilised or taken advantage of to interfere with principal 's business activities.
There is yet another significant factor to be borne in mind when we deaf with the rights of an agent.
An agent who receives property or money from or for his principal obtains to interest for himself in the property.
When he receives any such property he is bound to keep it separate from his own and that of others.
Long ago, Lord Cottenham, L.C. (Foley vs Hill; , 1843 60 All E.R. (Reprint) 16 at 198) said: ".
So it is with regard to an agent dealing with property; he obtains no interest himself in the subject matter beyond his remuneration; he is dealing throughout for another, and though he is not a trustee according to the strict technical meaning of the word, he is quasi a trustee for that particular transac tion for which he is engaged.
" Out of this practice there has emerged a rule, which is a normal incident of agency, that an agent cannot deny principal 's title to property nor he can convert it into other kind or use.
Fridman 's Law of Agency (5th Edition page 150) also supports this view: "Respect of Principal 's title: "The agent cannot deny the title of the prin cipal to goods, 417 money, or land possessed by the agent on behalf of the principal.
The possession of the agent is the possession of the principal for all purposes, including the acquisition of title under statutes of limitation, even where in fact the agent, though in ignorance of his claim, is entitled to the land, unless the agent possesses not as agent but on his own behalf, in which event his possession will be personal and not for his principal." As to the nature of agent 's possession in respect of principal 's property, this Court in a recent judgment ren dered in Smt.
Chandrakantaben and Anr.
vs Vadilal Bapalal Modi and Ors., [1989] 2 SCC 630 said at 643: "It is well settled that the possession of the agent is the possession of the principal and in view of the fiduciary relationship defend ant 1 cannot be permitted to claim his own possession.
This aspect was well emphasised in David Lyell vs John Lawson Kennedy, [1889] 14 HL (E) 437 where the agent who was collecting the rent from the tenants on behalf of the owner and depositing it in a separate ear marked account continued to do so even after the death of the owner.
After more than 12 years of the owner 's death his heir 's assignee brought the action against the agent for possession and the agent defendant pleaded adverse possession and limitation.
The plain tiff succeeded in the first court.
But the action was dismissed by the Court of Appeal.
The House of Lords reversed the decision of the Court of Appeal and remarked: "For whom, and on whose behalf, were those rents received after Ann Duncan 's death? Not by the respond ent for himself, or on his own behalf, any more than during her lifetime." Emphasising the fiduciary character of the agent his possession was likened to that of trustee, a solicitor or an agent receiving the rent under a power of attorney.
Another English case of Williams vs Pott, LR 12 Eq Cas 149, arising out of the circumstances similar to the.
present case was more interesting.
The agent in that case was the real owner of the estate but he collected the rents for a considerably long period as the agent of his principal who was his mother.
After the agent 's death his heir claimed the estate.
The mother (the principal) had also by then died after pur porting by her will to devise the disputed lands to the defendants upon certain 418 trusts.
The claim of the plaintiff was dis missed on the plea of adverse possession.
Lord Romilly, M.R., in his judgment observed that since the possession of the agent was the possession of the principal, the agent could not have made an entry as long as he was in the position of the agent for his mother, and that he could not get into possession without first resigning his position as her agent which he could have done by saying: "The property is mine; I claim the rents, and I shall apply the rents for my own purposes.
" The agent had thus lost his title by reason of his own possession as agent of the principal.
" We wish to add that it is not every agent who is in a fiduciary position vis a vis his principal.
For example is A appoints B to be his agent merely to sign a memorandum and places no particular trust in B, the doctrine of fiduciary relations would not apply.
Like wise, where the principal authorises an agent to do particular or specified acts, the doctrine of fiduciary relation may not arise.
What we want to emphasise is, in all cases of general agency, the rela tion may be generally fiduciary, but in other kinds of agencies, the relation may vary with the confidence which the principal chooses to repose in the agent.
It may also depend upon the power which the agent exercises over the subject matter under the terms of the contract of agency or by virtue of the incident of law and usage of the business which the relationship implies.
Thus the fiduciary element in agency, though the key to much of the law governing this relation, is not the essential element in the relation.
(See Modern Law Review, Vol.
17 pp. 31 32).
The crux of the matter is that an agent holds the prin cipal 's property only on behalf of the principal.
He ac quires no interest for himself in such property.
He cannot deny principal 's title to property.
Nor he can convert it into any other kind or use.
His possession is the possession of the principal for all purposes.
As the Kerala High Court in Narayani Amma vs Bhaskaran Pillai, AIR 1969 Kerala 214, observed at 217: "The agent has no possession of his own.
What is called a caretaker 's possession is the possession of the agent.
" So much is, we think, established law as regards agent 's right to property belonging to the principal.
Dr. Chitale, learned counsel for the respondent, however, cited in this context, two decisions: (i) Abdul Nabi Sahib vs Bajab Sahib and Anr., AIR 1944 Mad 221 and (ii) 419 Jemma vs Raghu, AIR 1977 Orissa 12.
In the former case of the Madras High Court, the suit was for a permanent injunc tion restraining the defendant from interfering with the plaintiff 's peaceful possession and enjoyment of the suit properties and performance of the religious services.
The defendant admitted that he was agent of the plaintiff but set up title to the property in himself as donee.
He has also set up title by adverse possession.
On these claims, Kunhi Raman, J., observed: "Since the plaintiff had not got possession of the property, it would not be sufficient to show that he was in constructive possession and the theory of constructive possession as between the principal and agent, cannot be relief upon by the principal for the purpose of meeting the contention of the description raised on behalf of the defendant, who is the agent." If the defendant in the above case, has admitted that he was the agent of the plaintiff and yet set up title to the property of his principal, the above observation may not be consistent with the settled principle of law.
We have al ready stated that the agent acquires no interest in the property of the principal and he cannot, therefore, non suit the principal on the possessory title as agent.
The second case in Jemma vs Raghu, referred to us is the decision of the Orissa High Court.
That case dealt with the general principle that the plaintiff who is not in posses sion of the suit premises is not entitled to relief of injunction.
The plaintiff must ask for recovery of posses sion.
But this principle has no application with regard to dispute between the principal and agent in respect of prin cipal 's property.
In this case, the respondent 's possession of the suit premises was on behalf of the company and not on his own right.
It is, therefore, unnecessary for the company to file a suit for recovery of possession.
The respondent has no right to remain in possession of the suit premises after termination of his agency.
He has also no right to interfere with the company 's business.
The case, therefore, deserves the grant of temporary injunction.
The learned single Judge of the High Court in our judgment, was justified in issuing the injunction.
The Division Bench of the High Court was clearly in error in vacating it.
In the result, we allow the appeal with costs.
In rever sal of the order of the Division Bench, we restore the temporary injunction granted by learned single Judge of the High Court.
Y. Lal Appeal allowed.
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The appellant company is engaged in the business of transport of goods and parcels in Southern India and for that purpose has appointed agents at various stations.
The respondent was one such agent appointed at Madras.
As pro vided in clause III of the Contract, the respondent was to arrange a suitable godown and engage employees.
The Company took on lease a godown at No. 10, Srinivasan Road, T. Nagar, Madras and the same was put in possession of the respondent for the purpose of carrying on his agency business of the Company.
During the course of the Company 's audit, it transpired that the Respondent not only mismanaged the business but had misappropriated some of the income of the company.
The appellant, therefore, terminated his agency with effect from 14.10.1988 in terms of clause XI of the Contract and in formed him that the company would be taking possession of the Godown premises for carrying on the business on its own, as provided in the contract.
Thereafter the respondent was informed by a letter that the company has taken possession of the Godown on 15.10.88 and another agent R. Sundarajan had been appointed in his place.
But the respondent prevent ed R. Sundarajan and also the company from carrying on the business at the godown premises.
The company, therefore, filed a suit for declaration of its right to carry on the business in the premises and for a permanent injunction restraining the respondent from interferring with its pos session on the ground that after the termination of the agency of the respondent, the company acquired a right to carry on the business of the company and further the company had since acquired the possession of the premises on 15.10.88.
Pending decision of the suit, the appellant prayed for the issuance of a temporary injunction.
The Trial Judge of the Madras High Court granted temporary injuction re straining the 411 respondent from interfering with the appellant 's business but on appeal by the respondent the Division Bench of the Madras High Court vacated that temporary injunction.
Hence this appeal by the appellant company.
Allowing the appeal, this Court, HELD: Under law, revocation of agency by the Principal immediately terminates the agent 's actual authority to act for the Principal unless the agent 's authority is coupled with an interest as envisaged under section 202 of the .
When agency is revoked, the agent could claim compensation if his case falls under section 205 or could exercise a lien on the Principal 's property under section 221.
The agent 's lien on Principal 's property recog nised under section 221 could be exercised only when there is no agreement inconsistent with the lien.
[416B C] In the present case, the terms of the agreement by which the respondent was appointed as agent, expressly authorise the company to occupy the godown upon revocation of agency.
Secondly the lien, in any event, cannot be utilised or taken advantage of to interfere with Principal 's business activi ties.
[416C D] An agent who receives property or money from or for his Principal obtains no interest for himself in the property.
When he receives any such property he is bound to keep it separate from his own and that of others.
[416E] (See Foley vs Hill, All E.R. Reprint 16 at 198; It is not every agent who is in a fiduciary position vis a vis his principal.
For example if 'A ' appoints 'B ' to be his agent merely to sign a memorandum and places no particular trust in 'B ' the doctrine of fiduciary relations would not apply.
Likewise where the Principal authorises an agent to do particular and specified acts, the doctrine of fiduciary relation may not arise.
[418C D] In this case, the respondent 's possession of the suit premises was on behalf of the company and not on his own right.
It is, therefore, unnecessary for the company to file a suit for recovery of possession.
The respondent has no right to remain in possession of the suit premises after termination of his agency.
He has also no right to interfere with the Company 's business.
The case, therefore, deserves the grant of temporary injunction.
[419F G] 412 Smt.
Chandrakantaben and Anr.
vs Vadilal Bapalal Modi and Ors., [1989] 2 SCC 630 at 643; Narayani Amma vs Bheska ran Pillai, AIR 1969 Kerala 214; Abdul Nabi Sahib vs Bajab Sahib & Anr., AIR 1944 Mad 221 and Jamma vs Reghu, AIR 1977 Orissa 12, referred to.
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2. The present appeal is directed against the judgment and order
dated 24th April, 2019 passed by the National Consumer Disputes
Redressal Commission, New Delhi (hereinafter referred to as the
NCDRC) in Revision Petition No. 897 of 2018, whereby the NCDRC
while allowing the said Revision Petition, has set aside the order
passed by the State Commission and has confirmed the order
passed by the District Forum.
Dr. 3. The short facts giving rise to the present appeal are that Mr.
Pradeep Kumar, the husband of the respondent herein (original
complainant) had taken/purchased a life insurance policy under the
Jeevan Suraksha Yojana on 14.04.2021 from the appellant-Life
Insurance Corporation, under which a sum of Rs. 3,75,000/- was
assured by the corporation, and in case of death by accident an
additional sum of Rs. 3,75,000/- was also assured. The insurance
premium of the said policy was to be paid six monthly. The next
premium was due to be paid by the said insured Pradeep Kumar on
14th October, 2011. However, he committed a default. On
06.03.2012, the said Pradeep Kumar i.e. the husband of the
complainant met with an accident and succumbed to the injuries on
21.03.2012. In the meantime, he deposited the due premium of
October, 2011 on, 09.03.2012 for reviving the policy. The
complainant after the death of her husband filed a claim before the
appellant-Corporation. The appellant paid a sum of Rs. 3,75,000/- to
the complainant, however, did not pay the additional amount of Rs.
3,75,000/- towards the Accident claim benefit. The complainant,
therefore, approached the District Forum by filing a complaint
seeking the said amount towards the Accident claim benefit. The
said complaint was resisted by the Life Insurance Corporation
contending, inter alia, that the day when the husband of the
complainant met with an accident, the said policy had already
lapsed on account of non-payment of the due premium.
4. The District Forum placing reliance upon the Ready reckoner
issued by the appellant-Corporation, allowed the said claim of the
respondent vide its judgment and order dated 14.10.2013. The
appellant-Corporation being aggrieved by the same preferred an
appeal before the State Consumer Disputes Redressal Commission.
The State Commission allowed the said appeal and set aside the
said order passed by the District Forum. The aggrieved complainant
preferred a Revision Petition being no. 897 of 2008 under Section
21(B) of the Consumer Protection Act (hereinafter referred to as the
said Act), before the NCDRC challenging the order passed by the
State Commission. The NCDRC vide the impugned judgment dated
24.04.2019 allowed the said Revision Petition of the respondent and
set aside the order passed by the State Commission. Hence, the
present Appeal has been filed by the appellant-Corporation.
5. The learned counsel appearing for the appellant-Corporation
placing heavy reliance on the condition no. 11 of the policy
submitted that the Accident claim benefit was payable only if the
policy was in force on the date of accident, however, in the instant
case, the policy had already lapsed in October, 2011 and the
husband of the respondent-complainant had sought to pay the
premium on 09.03.2012, i.e. three days after the occurrence of
accident on 06.03.2012. According to him, even the appellant-
Corporation was not informed about the said accident when the
policy was sought to be revived on 09.03.2012. He has placed
reliance on the judgments of this court in case of Vikram
Greentech (I) Ltd. & Anr vs New India Assurance Co. Ltd
(2009) 5 SCC 599 and in case of Life Insurance Corporation of
India Vs. Jaya Chandel (2008) 3 SCC 382 to submit that there
is a requirement of good faith on the part of the insured in the
contract of insurance.
6. However, the learned counsel appearing for the respondent-
complainant submitted that the said terms and conditions of the
policy were not brought to the notice of the insured i.e. the
husband of the complainant, and that the complainant was entitled
to the Accident claim benefit as per the Ready reckoner. He further
submitted that the husband of the complainant had made payment
of premium on 09.03.2012 along with the late fee charges and,
therefore, the policy had stood revived before the death of the
complainant’s husband. He also placed reliance on LIC vs. Jaya
Chandel (supra) to submit that since the insurance company had
issued the renewal premium receipt on 09.03.2012, it was required
to be construed that the policy which had already lapsed due to
non-payment of premium on time, had stood revived.
7. In order to appreciate the rival contentions raised by the
learned counsels for the parties, apt would be to reproduce the
relevant conditions of the policy in question. Relevant condition
“3. Revival of Discontinued Policies: If the policy has
lapsed, it may be revived during the life time of the
Life Assured, but within a period of five years, from
the due date of the first unpaid premium and before
the date of Maturity, on submission of proof of
continued incurability to the satisfaction of the
corporation and the payment of all the arrears of
premium together with interest compounding half
yearly at such rates as may be fixed by the
Corporation from time to time. The Corporation,
reserves the rights to accept or accept with modified
terms or decline the revival of Discontinued Policy.
The revival of a Discontinued Policy shall take effect
only after the same is a approved by the Corporation
and is specifically communicated to the proposer/Life
(a) If, after at least 3 full years premiums have been
paid in respect of this Policy, any subsequent
premiums be not duly paid, this Policy shall not be
wholly void, but shall subsist as a Paid-up Value
which shall be payable in case of death/Matyrly and
shall depend on the number of years for which
premiums have been paid and shall be greater of a
sum that bears the same ratio to the Maturity Sum
Assured as the number of premiums actually paid
shall bear to the total number of premiums originally
stipulated in the Policy.
The surrender value as per para 7 below assuming
that the policy has been surrendered on the date of
death/Matyruty, as the case may be.
11. Accident Benefit (If opted for): If at any time
when this policy is in force for the full sum assured or
reduced sum assured in case of partial surrender of
the policy, the life assured, before the expiry of the
policy term or the policy anniversary on which the
age nearer birthday of the Life Assured is 70 years,
whichever is earlier, is involved in an accident
resulting in either permanent disability as hereinafter
defined or death and the same is proved to the
satisfaction of the Corporation, the Corporation
(b) Death of the Life Assured: to pay an additional
sum equal to the Accident Benefit Sum Assured
under this Policy, if the life assured shall sustain and
bodily injury resulting solely and directly from the
accident caused by outward, violent and visible
means and such injury shall within 180 days of its
occurrence solely, directly and independently of all
other causes result in the death of the life assured.”
8. Now, so far as the facts of this case are concerned, it is not
disputed that the husband of the complainant had taken the life
insurance policy on 14.04.2011, that the next premium had fallen
due on 14.10.2011 but was not paid by him, that the husband of
the complainant met with an accident on 06.03.2012, that
thereafter the premium was paid on 09.03.2012 and that he
expired on 21.03.2012. It is also not disputed that at the time of
making payment of premium on 09.03.2012, it was not disclosed by
the complainant or her husband to the appellant-Corporation about
the accident which had taken placed on 06.03.2012. The said
conduct on the part of the complainant and her husband in not
disclosing about the accident to the corporation not only amounted
to suppression of material fact and lacked bona fides but smacked
of their mala fide intention, and therefore, the Accident benefit
claim of the complainant was liable to be rejected on the said
ground alone. It is well settled legal position that in a contract of
insurance there is a requirement of Uberrima fides i.e. good faith on
the part of the assured. The Supreme Court in case of Vikram
SCC 599, while dealing with the contract of insurance held as
“16. An insurance contract, is a species of
commercial transactions and must be construed like
any other contract to its own terms and by itself. In a
contract of insurance, there is requirement of
uberrima fides i.e. good faith on the part of the
insured. Except that, in other respects, there is no
difference between a contract of insurance and any
other contract.
17. The four essentials of a contract of
insurance are: (I) the definition of the risk, (ii) the
duration of the risk, (iii) the premium, and (iv) the
amount of insurance. Since upon issuance of the
insurance policy, the insurer undertakes to indemnify
the loss suffered by the insured on account of the
risks covered by the insurance policy, its terms have
to be strictly construed to determine the extent of
liability of the insurer.
18. The endeavour of the court must always be
to interpret the words in which the contract is
expressed by the parties. The court while construing
the terms of policy is not expected to venture into
extra liberalism that may result in rewriting the
contract of substituting the terms which were not
intended by the parties. The insured cannot claim
anything more than what is covered by the insurance
policy. (General Assurance Society Ltd. v.
Insurance Co. Ltd. v. Sony Cheriyan AIR 1999
SC 3252 and United India Insurance Co. Ltd. v.
9. From the afore-stated legal position, it is clear that the terms of
insurance policy have to be strictly construed, and it is not
permissible to rewrite the contract while interpreting the terms of
the Policy. In the instant case, condition no. 11 of the Policy clearly
stipulated that the policy has to be in force when the accident takes
place. In the instant case, the policy had lapsed on 14.10.2011 and
was not in force on the date of accident i.e. on 06.03.2012. It was
sought to be revived on 09.03.2012 after the accident in question,
and that too without disclosing the fact of accident which had taken
place on 06.03.2012. Thus, apart from the fact that the respondent-
complainant had not come with clean hands to claim the add
on/extra Accident benefit of the policy, the policy in question being
not in force on the date of accident as per the condition no. 11 of
the policy, the claim for extra Accident benefit was rightly rejected
by the appellant-Corporation. Since, clause 3 of the said terms and
conditions of the policy permitted the renewal of discontinued
policy, the appellant-Corporation had revived the policy of the
respondent-complainant by accepting the payment of premium
after the due date and paid Rs. 3,75,000/- as assured under the
policy, nonetheless for the Accident benefit, the policy had to be in
force for the full sum assured on the date of accident as per the
said condition no. 11. The said Accident benefit could have been
claimed and availed of only if the accident had taken place
subsequent to the renewal of the policy. The policy in the instant
case was lying in a lapsed condition since 14 th October, 2011 and,
therefore, was not in force as on 06.03.2012, resultantly, the claim
over Accident benefit was not payable to the respondent as per the
conditions of the contract of insurance.
10. The Court, therefore, is of the opinion that the impugned order
passed by the NCDRC setting aside the order passed by the
Commission and reviving the order passed by the District Forum
was highly erroneous and liable to be set aside.
11. In the aforesaid premises, the present appeal is allowed and
the impugned order passed by the NCDRC is set aside. The claim of
the respondent towards Accident benefit stands rejected
accordingly. Pending applications, if any, are disposed of.
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The Supreme Court observed that it is not permissible to rewrite the contract while interpreting the terms of the Insurance Policy.The bench of Justices Sanjiv Khanna and Bela M. Trivedi said that the terms of insurance policy have to be strictly construed. In a contract of insurance there is a requirement of Uberrima fides i.e. good faith on the part of the assured, the court...
The Supreme Court observed that it is not permissible to rewrite the contract while interpreting the terms of the Insurance Policy.
The bench of Justices Sanjiv Khanna and Bela M. Trivedi said that the terms of insurance policy have to be strictly construed. In a contract of insurance there is a requirement of Uberrima fides i.e. good faith on the part of the assured, the court said.
The complainant's husband had taken a life insurance policy under the Jeevan Suraksha Yojana on 14.04.2021 from the Life Insurance Corporation, under which a sum of Rs. 3,75,000/- was assured by the corporation, and in case of death by accident an additional sum of Rs. 3,75,000/- was also assured. He met with an accident and succumbed to the injuries on 21.03.2012. The complainant after the death of her husband filed a claim before LIC. She was paid a sum of Rs. 3,75,000/- , but the additional amount of Rs. 3,75,000/- towards the Accident claim benefit was not paid.
The complainant, therefore, approached the District Forum by filing a complaint seeking the said amount towards the Accident claim benefit. LIC contended that the day when the husband of the complainant met with an accident, the said policy had already lapsed on account of non-payment of the due premium. The complaint was allowed by the District Forum. The State Consumer Disputes Redressal Commission allowed the appeal. But, the National Commission Disputes Redressal Commission restored the order passed by District Forum.
Before the Apex Court, LIC contended that condition no. 11 of the Policy clearly stipulated that the policy has to be in force when the accident takes place. The policy had lapsed on 14.10.2011 and was not in force on the date of accident i.e. on 06.03.2012. It was sought to be revived on 09.03.2012 after the accident in question, and that too without disclosing the fact of accident which had taken place on 06.03.2012.
Taking note of this fact, the bench observed:
It is not disputed that the husband of the complainant had taken the life insurance policy on 14.04.2011, that the next premium had fallen due on 14.10.2011 but was not paid by him, that the husband of the complainant met with an accident on 06.03.2012, that thereafter the premium was paid on 09.03.2012 and that he expired on 21.03.2012. It is also not disputed that at the time of making payment of premium on 09.03.2012, it was not disclosed by the complainant or her husband to the appellant-Corporation about the accident which had taken placed on 06.03.2012. The said conduct on the part of the complainant and her husband in not disclosing about the accident to the corporation not only amounted to suppression of material fact and lacked bona fides but smacked of their mala fide intention, and therefore, the Accident benefit claim of the complainant was liable to be rejected on the said ground alone. It is well settled legal position that in a contract of insurance there is a requirement of Uberrima fides i.e. good faith on the part of the assured.
The court further observed thus, by referring to Vikram Greentech (I) Ltd. V/s New India Assurance Co. Ltd. (2009) 5 SCC 599:
From the afore-stated legal position, it is clear that the terms of insurance policy have to be strictly construed, and it is not permissible to rewrite the contract while interpreting the terms of the Policy. In the instant case, condition no. 11 of the Policy clearly stipulated that the policy has to be in force when the accident takes place
The court observed that the Accident benefit could have been claimed and availed of only if the accident had taken place subsequent to the renewal of the policy. Having held thus, it allowed the appeal and dismissed the complaint.
Case no. and Date: SLP(C) 13868 OF 2019 | 29 October 2021
Coram: Justices Sanjiv Khanna and Bela M. Trivedi
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1 The Special Leave Petition arises from an interlocutory order dated 7 March
2022 of a Division Bench of the High Court of Judicature at Bombay in Public Interest
Litigation (L) No 9775 of 2020.
2 The petitioners claim to be aggregators within the meaning of Section 2(1A) of
the Motor Vehicles Act 19881, as amended by Act 32 of 2019. An aggregator is defined
to mean a digital intermediary or market place for a passenger to connect with a driver
for the purpose of transportation. Section 93 was amended by the Amending Act so
as to encompass the business of aggregators. Sub-section (1) of Section 93, inter
alia, stipulates that no person shall engage himself as an aggregator unless he has
obtained a licence from such authority and subject to such conditions as may be
prescribed by the State Government. As in the case of other statutes, Section 2(32)
defines the expression “prescribed” to mean prescribed by rules made under the Act.
The State Government is conferred with a rule making power, inter alia, by Section
96(1) in terms of which it may make rules for the purpose of carrying into effect the
provisions of Chapter.
3 The first proviso to Section 93(1) stipulates that, while issuing a licence to an
aggregator, the State Government may follow such guidelines as may be issued by
the Central Government. Though draft rules were issued by the State Government,
no rules have been notified by the State Government as of date. The Central
Government has formulated Guidelines in 2020.
4 The provisions noted above have been construed recently in a judgment of this
Court in Roppen Transportation Services Pvt Ltd v Union of India2
5 The Division Bench of the High Court, by the impugned order dated 7 March
2022 , observed that in view of the statutory mandate of Section 93(1), no person
could be allowed to continue as an aggregator without obtaining a licence. Taking note
Special Leave Petition (C) No 3006 of 2023 decided on 7 February 2023
of the fact that the rules were at the draft stage, the High Court has observed that till
such time that draft rules are finalized, the Guidelines of 2020 would hold the field and
any person willing to operate as an aggregator must follow the regulatory framework
brought about by the Guidelines. Taking note of the statutory regime which was
brought into force in 2019 by the amendment of Section 93, the Division Bench
observed that the second respondent had permitted aggregators, such as the
petitioners, to operate in Maharashtra without insisting on compliance with the
statutory requisites and though no statutory licences were obtained. While balancing
the equities, the Division Bench held that instead of restraining the petitioners herein
from operating in the State, it was inclined to grant an opportunity both to the
petitioners and to other unlicensed aggregators to apply for licences as required by
sub-section (1) of Section 93. The following interim directions were issued in
paragraph 10 of the interim order dated 7 March 2022:
“10. For such purpose, we direct the Transport Department of the State Government to issue
appropriate notification in the Official Gazette forthwith and not later than 9th March, 2022
empowering each and every Regional Transport Authority in the State of Maharashtra to act
as the Licencing Authority for grant of license under subsection (1) of section 93 of the Act.
Since the 2020 Guidelines also refer to an Appellate Authority in paragraph 18, it would be
prudent for us to direct that the provisions of section 89 of the Act, which is also part of
Chapter V, may be followed in such a case. The State Transport Appellate Tribunal or similar
such authority, by whatever name called, shall be the Appellate Authority. We are informed
that the Chairman of the Motor Accident Claims Tribunal, Maharashtra, functions in the State
as the State Transport Appellate Tribunal and, therefore, such Tribunal shall also be notified
to be the Appellate Authority for the purposes of the 2020 Guidelines. In the notification to be
published in terms of this order, the Transport Department shall indicate that all the
aggregators operating in the State of Maharashtra may apply for license by 16th March, 2022.
If any application is received by any Regional Transport Authority from the prospective
licensees, earnest endeavour shall be made to convene urgent meeting of such Transport
Authority to consider such application, as early as possible but not later than a fortnight from
date of receipt thereof. In the event the concerned aggregator / prospective licensee agrees
to comply with the conditions laid down in the 2020 Guidelines, issuance of license in its
favour shall not be unnecessarily delayed. In the event any application is rejected, the
concerned aggregator shall be at liberty to file an appeal under section 89 of the Act read
with paragraph 18 of the 2020 Guidelines before the empowered Appellate Authority.”
6 It was against the interim order which was passed in the PIL that this Court was
moved under Article 136 of the Constitution by Uber India Systems Private Limited
(the first petitioner) and Uber India Technology Private Limited (the second petitioner).
7 While issuing notice in these proceedings on 21 April 2022, this Court directed
that the status quo, as it exists, shall be maintained until further orders.
8 During the course of the hearing, it has emerged both from the submissions of
Mr Dhruv Mehta, senior counsel appearing on behalf of the petitioners, and Mr
Siddharth Dharmadhikari, counsel appearing on behalf of the State of Maharashtra,
that a provisional licence was issued to the petitioners. The licence was valid for a
period of thirty days.
9 The grievance of the petitioners is that certain conditions which have been
imposed by the State for the grant of a licence such as: (i) the requirement of
maintaining an office in fifty jurisdictional offices of the Road Transport Authority; and
(ii) maintaining a simulator, as well as certain other aspects may not be practicable for
10 This is a matter of policy which pertains to the jurisdiction of the State
11 We are of the view that it would not be appropriate to continue with the present
proceedings, which arise from an interlocutory order of the High Court. As correctly
observed by the Division Bench of the High Court, in view of the statutory regime
which has come into force with the amendment of Section 93 by the Amending Act of
2019, no person can continue as an aggregator in the absence of a licence. We
accordingly permit the petitioners to apply for a licence within a period of three weeks,
that is, on or before 6 March 2023. Within the aforesaid period, it would be open to
the petitioners to submit a representation to the State Government in regard to the
conditions which were imposed while granting a provisional licence to the petitioners.
The State Government shall, within a period of two weeks from the date of the
submission of the representation, take a considered view on the grievance which has
been set forth in the representation of the petitioners. We clarify that we have not
expressed any observations on the merits of such a grievance. Thereafter, the State
Government may take an appropriate decision so that pending the finalization of the
rules, an appropriate decision is taken in regard to the applications for the grant of
licence in terms of the provisions of Section 93(1) of the Act. If the petitioners have
any subsisting grievance, it would be open to them to move the High Court of
Judicature at Bombay either in the pending Public Interest Litigation or independently
so that the merits of their grievance(s) can be considered by the High Court.
12 Since the interim order of this Court has held the field since 21 April 2022, we
extend its operation till 20 April 2023 in order to enable the petitioners to apply for a
licence and for the State Government to take an appropriate decision. The State
Government, which has to act as a regulator, must take an expeditious decision on
the formulation of an appropriate policy, which may be embodied in terms of the rules
which are framed under the Act. The decision of the State Government should be
taken expeditiously so as to avoid litigation and uncertainty.
13 The Special Leave Petitions are accordingly disposed of.
14 Pending applications, including the application for intervention, stand disposed
|
The Supreme Court on Monday, directed Uber to apply for a license as per Section 93(1) of the Motor Vehicle Amendment Act, 2019 within a period of 3 weeks (on or before 6th March, 2023), to continue its services as an aggregator in the State of Maharashtra. At the same time, the Court also allowed Uber to make a representation to the State of Maharashtra to ventilate its grievances with regard to the conditions imposed while granting provisional license . The bench also asked the State government to expeditiously frame the guidelines for aggregators. The matter was listed before a bench comprising Chief Justice DY Chandrachud, Justice PS Narasimha, and Justice JB Pardiwala.
The bench was hearing Uber's challenge to March 7, 2022 order of the Bombay High Court which directed that cab aggregators should comply with Motor Vehicle Aggregator Guidelines 2020. The Aggregator Guidelines were notified by the Central Government in exercise of its powers under Section 93(1) of the Motor Vehicles Act 1988. The High Court bench comprising Chief Justice Dipankar Dutta and Justice Vinay Joshi had directed that the aggregators must apply for license by March 16, 2022 for operating in the State of Maharashtra. In April 2022, while granting an interim relief to Uber against the said order, the Supreme Court had directed status quo on the order of the Bombay High Court. This status quo order has been extended till April 20, 2023 in order to enable the petitioners to apply for a licence and for the State Government to take an appropriate decision.
The Supreme Court noted that the High Court "correctly observed" that, in view of the statutory regime which has come into force with the amendment of Section 93 by the Amending Act of 2019, no person can continue as an aggregator in the absence of a licence.
The Court also referred to the order in Rapido's plea against the Maharashtra government's refusal to grant two-wheeler bike taxi aggregator license to the company. In that order too, the court had noted–
"In terms of the first proviso of Section 93, the state government, while issuing the licence to an aggregator may follow such guidelines as issued by the Central government".
However, the bench stated that it shall be open to Uber to submit a representation to State government. As per the order–
"The state government shall within a period of two weeks of submission of representation take a view of the grievance. The state government may then take an appropriate decision. In case of any subsisting grievance, it shall be open to petitioners to move the Bombay High Court."
The Court also ordered :"The State Government, which has to act as a regulator, must take an expeditious decision on the formulation of an appropriate policy, which may be embodied in terms of the rules which are framed under the Act. The decision of the State Government should be taken expeditiously so as to avoid litigation and uncertainty".
The petitioner, Uber, was represented by Senior Advocate Dhruv Mehta and the State of Maharashtra was represented by Advocate Siddharth Dharmadhikari.
Case Title : Uber India Systems Private Ltd and Another versus Union of India and others |SLP(c) No.5705/2022
For Petitioner(s) Mr. Dhruv Mehta, Sr. Adv. Ms. Pritha Srikumar, AOR Mr. Atharv Gupta, Adv.
For Respondent(s) Mr. Tushar Mehta, Solicitor General Mr. Siddharth Dharmadhikari, Adv. Mr. Aaditya Aniruddha Pande, AOR Mr. Bharat Bagla, Adv. Ms. Kirti Dadheech, Adv. Respondent-inperson Ms. Fereshte D Sethna, Adv. Ms. Anuradha Dutt, Adv. Ms. Suman Yadav, Adv. Mr. Chaitanya Kaushik, Adv. Ms. Shivani Sanghavi, Adv. Mr. Shubham Airi, Adv. Ms. B. Vijayalakshmi Menon, AOR
Motor Vehicles Act 1988- Section 93- No person can continue as an aggregator in the absence of a licence- Supreme Court directs Uber to apply for license
Motor Vehicles Act 1988- Section 93, 96 - Cab aggregators license- Supreme Court directs State of Maharashtra to expeditiously frame the rules on granting aggregators license so as to avoid litigation and uncertainty
|
Heard Sri Dharmendra Kumar Pandey, learned counsel for the petitioner and Sri
Govind Narain Srivastava,learned Standing counsel for the State respondent nos.
1 to 3.
The present writ petition under Article 226 of the Constitution has been filed for
quashing the impugned order dated 23.01.2014 passed by the respondent no.3,
District Inspector of Schools, District- Firozabad whereby the period of ad hoc
service rendered by the petitioner has not been taken into account for the
purpose of pension.
The petitioner retired on 30.6.2013 after completing more than 17 years of
regular service on the post of Assistant Teacher (L.T. Grade). His services were
regularized in the year 2016, grievance of the petitioner is that the ad hoc
services rendered by him has not been counted in fixation of his pension.
At the outset, learned counsel for the petitioner submits that the controversy
involved in the present case has already been decided in Writ- A No. 25431 of
2018 (Sunita Sharma Vs. State of U.P. & 5 Ors) decided on 20.12.2018.
The aforesaid order dated 20.12.2018 passed in Writ-A No. 25431 of 2018 reads
"Petitioner was appointed as Assistant Teacher in J.A.S. Inter College, Khurja,
Bulandshahar on 21st of June, 1996. The institution in question is a recognized
aided intermediate institution and the provisions of the U.P. Intermediate
Education Act, 1921 as also the provisions of U.P. Act No. 24 of 1971 are
applicable. Admittedly, petitioner joined pursuant to the order of appointment as
Assistant Teacher in L.T. Grade for teaching Hindi along with ten other teachers.
Salary was released to the petitioner pursuant to an order passed by this Court on
4.8.1998 in Writ Petition No. 29626 of 1996. Arrears of salary from May, 1996 to
August, 1996 was also disbursed to him. Services of petitioner have subsequently
been regularized under an order of the Joint Director of Education, Meerut dated
16.8.2016 with effect from 22nd of March, 2016. Petitioner has also been granted
benefit of selection grade vide order dated 13th of January, 2017. Having attained
the age of superannuation, the petitioner has retired on 31st of March, 2018.
However, retiral benefits including gratuity and pension were not released to the
petitioner, on account of which, she has approached this Court by filing the
present writ petition. Petitioner has claimed benefit of the Provisions of the Uttar
Fund-Pension Rules 1964. The matter was adjourned on different dates, and
thereafter, following orders were passed in the matter on 11th of December,
"This writ petition has been filed for an appropriate direction to the
respondents to include petitioner's entire length of service rendered
with effect from 01.07.1996 towards qualifying service for sanction
and fixation of pension and to release the same to the petitioner
accordingly.
It appears that J.A.S. Inter College, Khurja, District
Bulandsahar is a recognized and aided Intermediate
College governed by the provisions of U.P. Intermediate
Education Act, 1921 and the provisions of the U.P. Act No.
24 of 1971. Reliance is placed upon the provisions
contained in Rule 19(b) of the Uttar Pradesh State Aided
Fund Insurance Pension Rules, 1964 Rules to contend that
continuance on temporary or officiating basis followed by
regularization would be counted for the grant of pension
and other retiral benefits. It is stated that petitioner was
appointed on temporary basis in the year 1996 and has
been regularized in the year, 2016. Submission is that
period of 1996 to 2016 is liable to be taken note for the
purposes of determination of qualifying service for
payment of pension under Rule 19(b).
Learned Standing Counsel has obtained instructions, according to which, pension
is not payable to petitioner in view of the Government Order dated 18th of
October, 1997, which provides that services rendered by a teacher, pursuant to his
substantive appointment alone, would be counted for the purposes of determining
the qualifying service and that adhoc services would not be included for payment
of pension. Subsequent orders of the Deputy Director of Education dated
17.5.2017 has also been relied upon. Yet another Government Order dated 14th of
June, 2017 has also been relied upon, which deals with employees engagement in
work charge establishment. The Government Order of 14th of June, 2017
apparently has no applicability in the facts of the present case.
Learned counsel for the petitioner places reliance upon the provisions contained
under Rule 19(b) of the Rules of 1964, which is reproduced hereafter:-.
"(b) Continuous temporary or officiating service followed without
interruption by confirmation in the same or another post shall also
count as qualifying service.
Rule 3 of 1964 Rules clearly provides that these Rules shall apply to permanent
employees serving in the State aided educational institution of the category
specified thereunder, be it run by a local body or a private management, if it is
recognized by the competent authority for the purposes of extending of grant-in-
aid. It is not in issue that the provisions of Rules of 1964 are attracted in the facts
of the present case, inasmuch as the Institution is a recognized Institution,
wherein salary is being extended to teaching and non-teaching staff by the State
by virtue of the provisions contained in the Act of 1971. On the date of his
retirement, petitioner was a permanent employee serving in aided educational
institution, which is recognized by a competent authority for the purposes of aid.
Rule 19(b) of the Act would clearly come to the rescue of the petitioner, inasmuch
as it clearly provides that continuous temporary or officiating service followed
without interruption by confirmation in the same or another post, shall also count
as qualifying service. Petitioner's engagement from 1996 till 2016, when she was
regularized, would be treated as continuous temporary service followed without
interruption by confirmation on same post. The adhoc continuance followed with
regularisation, therefore would be covered within the ambit and scope of Rule 19-
B of the 1964 rules, and therefore, such period would have to be counted towards
qualifying service for the purposes of payment of pension etc.
Learned Standing Counsel has not placed any provision whereunder the Rules of
1964 have either been rescinded, modified or substituted by any other provision
and the Rules of 1964 therefore continues to remain in force.
So far as the Government Order relied upon by learned Standing Counsel is
concerned, it is settled that in hierarchy of laws a statutory Rule would stand at a
higher pedestal than a Government instructions. Once the statutory Rules of 1964
remains in force and is attracted in the facts of the present case, the provisions of
the Rules cannot be by passed merely by relying upon a Government instructions.
The defence set up by the respondents, therefore to non suit the petitioner cannot
be sustained. It appears that though U.P. Retirement Benefits Rules, 1961 and
other like provisions were amended w.e.f. 1.4.2005, but no such amendment has
been incorporated in the Rules of 1964. As a consequence, the benefits admissible
under the Rules of 1964 would continue to be applicable upon teachers, who are
covered thereunder.
The view, which this Court proposes to take, is also supported by a judgment of
the Division Bench in Special Appeal (Defective) No. 678 of 2013 State of U.P.
through its Secretary Secondary Education vs. Mangali Prasad Verma and two
others, wherein the benefit under the Rules of 1964 have been made applicable
upon the respondents therein. Relevant portion of the judgment of the Division
Bench is reproduced thereinafter:-
"We may, however, clarify that the Government Order dated 28.1.2004
which was so heavily relied upon by the State Government does not
alter the legal position in any manner inasmuch as, the applicability
of Rules 1964 is not depended upon any declaration being made by
the Governor or by the State Government. If a teacher was working in
an aided institution prior to the date of his retirement provisions of
rules 1964 become applicable by operation of law. The manner of
counting the qualifying service stands explained under the
Government Order dated 26.7.2001.
We may also clarify that the teachers and employees of institutions
which are brought on the grant-in-aid for the first time on or
subsequent to 1.4.2005 would be covered by the new scheme enforced
on 1.4.2005 and this judgment will have no application in their case.
We may notice that similar view has taken by the Division Bench of
this Court in the case of State of U.P. And 6 Ors Vs. Shir Krishna
Prasad Yadav and 13 Ors being Special No.228 of 2016 decided on
In view of the aforesaid, we find no illegality in the judgment and
order of the learned Single Judge, it is accordingly, affirmed. The
Appeal is Dismissed."
In view of the discussions aforesaid, it is clear that petitioner is entitled to
pensionary benefits under the Rules of 1964 and for such purposes the adhoc
continuance from 1996-2016 followed with regularization would have to be
counted towards qualifying service for sanction and fixation of pension. A
mandamus is issued accordingly to the respondents for grant of pensionary
benefits to the petitioner. Necessary order in that regard could be passed by the
competent authority within a period of three months. All consequential benefits
would also be extended to the petitioner within a further period of two months
After hearing counsel for the the parties and perusing the record, in the opinion
of this Court, the present dispute is squarely covered by the principle of law laid
down in Sunita Sharma's case (supra) as well as latest judgment of Hon'ble Apex
Court in State of Gujarat & Anr. Vs. Talsibhai Dhanjibhai Patel, decided on
Accordingly, the impugned order dated 23.01.2014 passed by the respondent
no.3, District Inspector of Schools, District- Firozabad is hereby quashed. The
writ petition stands allowed.
In view of the discussions aforesaid, it is clear that petitioner is entitled to
pensionary benefits under the Uttar Pradesh State Aided Educational Institution
Employees Contributory Provident Fund Insurance Pension Rules, 1964 and for
such purposes the ad hoc continuance from 1995-2013 followed with
regularization would have to be counted towards qualifying service for sanction
and fixation of pension. Accordingly, a mandamus is issued to the respondents
for grant of pensionary benefits to the petitioner.
Necessary order in that regard could be passed by the competent authority
within a period of three months. All consequential benefits would also be
extended to the petitioner within a further period of two months thereafter.
Digitally signed by MOHAMMAD
|
The Allahabad High Court has directed the State Government to count the period of ad-hoc service rendered to grant pensionary benefits to an employee who retired in 2013 with a regular service record of over 17 years.
With this, the bench of Justice Rajiv Joshi quashed an order of the District Inspector of Schools, Firozabad whereby the period of ad hoc service rendered by an Assistant Teacher (L.T. Grade) had not been taken into account for the purpose of granting pensionary benefits to him.
The petitioner [Assistant Teacher (L.T. Grade)] retired on June 30, 2013, after completing more than 17 years of regular service. He was appointed as an ad hoc employee in 1995 and his services were regularized in the year 2016. It was his grievance that the ad hoc services rendered by him have not been counted in the fixation of his pension.
At the outset, the Court referred to the Allahabad High Court's order in the case of Sunita Sharma Vs. State of U.P. & 5 Ors [Writ- A No. 25431 of 2018], wherein a government employee was found to be entitled to pensionary benefits while taking into account the adhoc services rendered by the employee between 1996-2016.
The Court also relied upon the decision of the Apex Court in the case of State of Gujarat & Anr. Vs. Talsibhai Dhanjibhai Patel [ (SC) 187], wherein the Top Court hasd expressed its displeasure on State of Gujarat denying pension to an ad hoc employee who rendered 30 years of continuous service.
Accordingly, the High Court found the to be entitled to pensionary benefits under the Uttar Pradesh State Aided Educational Institution Employees Contributory Provident Fund Insurance Pension Rules, 1964 and for such purposes, the Court added, the ad hoc continuance from 1995-2013 followed with regularization would have to be counted towards qualifying service for sanction and fixation of pension.
Accordingly, a mandamus was issued to the respondents for grant of pensionary benefits to the petitioner. With this, the Court quashed the impugned order passed by the District Inspector of Schools, District- Firozabad and the writ petition was allowed.
Case title - Awadh Bihari Verma v. State Of U.P.And 3 Others [WRIT - A No. - 21333 of 2014]
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Case :- CRIMINAL MISC. BAIL APPLICATION No. - 18303 of 2020
Counsel for Applicant :- Siddhartha Mishra,Ali Hasan,Istiyaq
Counsel for Opposite Party :- G.A.
1. Heard Mr. Daya Shankar Mishra, learned Senior Advocate
assisted by Mr. Abhishek Mishra, learned counsel for the
applicant and learned A.G.A. for the opposite party-State.
2. The present criminal misc. bail application has been filed
on behalf of applicant- Wali Hasan to release him on bail in
Case No.1392 of 2019, under Sections 8, 20, 29, 60 and 3 of
3. Learned Senior Counsel on behalf of the applicant
submitted that sub-Inspector lodged a first information report on
17.11.2019 against the applicant and two others with the
allegation that on the basis of information received, first
informant seized a truck on 17.11.2019 at 12:45 hours, which
was alleged to be driven by applicant and carrying 91 packets
of Ganja weighting about 201 K.G. He further submitted that 91
packets of alleged contraband (Ganja) in 8 Bags (Bora) was
alleged to be recovered from inside of truck but only 1 packet
weighting 1 K.G. (Ganja) out of 91 Packets was sent for
chemical examination so utmost 1 K.G. can be said to be Ganja
but remaining 200 K.G. cannot be said to be Ganja or any other
contraband unless there is proper sampling and its chemical
examination. He further submitted that it is not mentioned in the
recovery memo that from each 91 packets, sample of alleged
contraband (Ganja) was taken and sent for chemical
examination, as such, the procedure of sampling adopted by
the police authority is in violation of Standing Order / Instruction
No.1 of 1989 dated 13.6.1989 issued by the Government of
India under Section 52 A of N.D.P.S. Act. He has placed
reliance upon Clause 2.1 to 2.8 of Standing Order / Instruction
No.1 of 1989, which are as follows:
2.1 All drugs shall be classified, carefully, weighed and sampled
on the spot of seizure.
2.2 All the packages/containers shall be numbered and kept in
lots for sampling. Samples from the narcotic drugs and
psychotropic substances seized, shall be drawn on the spot of
recovery, in duplicate, in the presence of search witnesses
(Panchas) and the persons from whose possession the drug is
recovered and a mention to this effect should invariably be
made in the panchnama drawn on the spot.
2.3 The quantity to be drawn in each sample for chemical test
shall not be less than 5 grams in respect of all narcotic drugs
and psychotropic substances save in the cases of opium, ganja
and charas (hashish) were a quantity of 24 grams in each case
is required for chemical test. The same quantities shall be taken
for the duplicate sample also. The seized drugs in the
packages/containers shall be well mixed to make it
homogeneous and representative before the sample (in
duplicate) is drawn.
2.4 In the case of seizure of a single package/container, one
sample in duplicate shall be drawn. Normally, it is advisable to
draw one sample (in duplicate) from each package/container in
case of seizure of more than one package/container.
2.5 However, when the packages/containers seized together
are of identical size and weight, bearing identical markings and
the contents of each package given identical results on colour
test by the drug identification kit, conclusively indicating that the
packages are identical in all respects the packages/container
may be carefully bunched in lots of 10 package/containers
except in the case of ganja and hashish (charas), where it may
be bunched in lots of, 40 such packages/containers. For each
such lot of packages/containers, one sample (in duplicate) may
be drawn.
2.6 Where after making such lots, in the case of hashish and
ganja, less than 20 packages/containers remain, and in the
case of other drugs, less than 5 packages/containers remain,
no bunching would be necessary and no samples need be
drawn.
2.7 If such remainder is 5 or more in the case of other drugs
and substances and 20 or more in the case of ganja and
hashish, one more sample (in duplicate) may be drawn for such
remainder package/container.
2.8 While drawing one sample (in duplicate) from a particular
lot, it must be ensured that representative sample the in equal
quantity is taken from each package/container of that lot and
mixed together to make a composite whole from which the
samples are drawn for that lot.
4. He next submitted that there is no evidence on record
regarding taking of samples as provided in standing order /
instructions mentioned above, as such, taking of proper sample
is highly doubtful.
5. On the point of sampling of contraband, learned counsel
placed reliance upon following judgments and orders:
(i) Phool Chand Ali Vs. Union of India reported in 2020
(ii) Om Prakash Verma Vs. State of U.P. reported in
(iii) Amrik Singh Vs. State of U.P. order dated 9.1.2014
passed in Criminal Appeal No.1106 of 2013
(iv) Gaunter Edwin Kircher Vs. State of Goa reported
6. Learned counsel for applicant further submitted that
standing instruction and the guidelines issued by the authority
having legal sanction are required to be strictly followed by the
police / arresting authorities as held by the Apex Court in the
case of Noor Aga Vs. State of Punjab (2008) 3 JIC 640 (S.C.),
the paragraph nos.123, 124 and 125 of the judgment are as
123. Guidelines issued should not only be substantially
complied, but also in a case involving penal proceedings,
vis-`-vis a departmental proceeding, rigours of such
guidelines may be insisted upon. Another important factor
which must be borne in mind is as to whether such
directions have been issued in terms of the provisions of
the statute or not. When directions are issued by an
authority having the legal sanction granted therefor, it
becomes obligatory on the part of the subordinate
authorities to comply therewith.
124. Recently, this Court in State of Kerala & Ors. v.
following the earlier decision of this Court in Union of India
v. Azadi Bachao Andolan [(2004) 10 SCC 1] held that
statutory instructions are mandatory in nature.
125. Logical corollary of these discussions is that the
guidelines such as those present in the Standing Order
cannot be blatantly flouted and substantial compliance
therewith must be insisted upon for so that sanctity of
physical evidence in such cases remains intact. Clearly,
there has been no substantial compliance of these
guidelines by the investigating authority which leads to
drawing of an adverse inference against them to the effect
that had such evidence been produced, the same would
have gone against the prosecution.”
7. Learned counsel further submitted that if power is given
under the Act / statute / Rules to do a certain thing in a
particular way, the thing must be done in that way or not at all.
The other method are forbidden. On this point, learned Counsel
placed reliance upon the case of Taylor Vs. Taylor [(1875) 1
Ch.D 426, 431] , Ramchandra vs. Govind AIR 1975 SC 915
839, Shivcharan Sharma Vs. Union of India and Others 1981
A.L.J. 641 and A.R. Antalay Vs. Ramdas Sriniwas Nayak and
Another 1984 2 SCC 500 wherein Hon’ble Court have held that
failure to comply with the provisions made for doing a particular
act renders the action nonest.
8. Learned counsel further submitted that vide order dated
31.8.2020, this Court has directed learned A.G.A. to file counter
affidavit, accordingly, counter affidavit has been filed in this
case but there is no categorical averment in the counter
affidavit that sampling was done according to standing order /
instruction. He further submitted that this Court vide order dated
6.9.2021 directed the counsel for applicant to inform the Court
about the status of the trial, accordingly, supplementary affidavit
was filed by applicant on 13.9.2021 annexing the certified copy
of the order sheet in order to demonstrate that trial has not
been concluded and prosecution has not produced any witness
in the Court, therefore, custody of the applicant is against the
provision of Article 21 of the Constitution of India. He further
submitted that trial is still pending.
9. Learned counsel lastly submitted that applicant has no
other criminal antecedents and is languishing in jail since
10. On the other hand, learned A.G.A. submitted that search
was made in accordance with law and total 91 packets
weighting 201 K.G. contraband was recovered from which
sample has been taken and sent for chemical examination, in
which, it was found that sample weighting 1 K.G. was Ganja.
He further submitted that investigation was conducted in free
and fair manner, accordingly, charge sheet was submitted
against the applicant under Sections 8, 20, 29, 60, 3 of N.D.P.S.
Act. He further submitted that although it is admitted that
applicant has no criminal history but accused applicant is a man
of criminal nature, as such, is not entitled to be released on bail,
otherwise it will be harmful to the society. On the point of
compliance of Standing Order / instruction no.1 of 1989 and its
averment in any document (F.I.R., recovery memo or in the
counter affidavit before this Court), learned A.G.A. could not
satisfy the Court that compliance of standing order / instruction
was made in respect to sampling of alleged contraband from 91
11. In reply, learned counsel for the applicant submitted that
the applicant is in custody from more than 2 ½ years and trial is
still pending and there is fair chance of acquittal of the applicant
on the ground mentioned above, so applicant is entitled to be
released on bail. On the point of custody, learned counsel for
the applicant placed reliance upon a case arising out of
N.D.P.S. Act in which point of sampling etc. were involved and
the Apex Court has released the accused on bail in which
accused (Raja Chandrasekharan) remained in custody for over
a period of two years, the reference of the case is as follows:
Bharat Chaudhary Vs. Union of India with Raja
Chandrasekharan Vs. the Intelligence Officer
reported in 2021 O Supreme (SC) 811.
12. The Court while considering the provisions of Section 37
of the N.D.P.S. Act finds that State was granted time to reply
and the State has filed counter affidavit, which has been taken
into consideration. So far as other conditions is concerned, it
will be relevant to mention that the Apex Court in the case of
Union of India vs. Shiv Shankar Keshari (2007) 7 SCC 798 as
well as in Union of India Vs. Rattan Malik (2009) 2 SCC 624
has held that court while considering the bail application with
reference to section-37 of the Act is not called upon the record
a finding of not guilty. It is for the limited purpose essentially
confined to the question of releasing the accused on bail that
the Court is called upon to see if there are reasonable grounds
for believing that the accused is not guilty and records its
satisfaction about existence of such grounds. It is further
material to state that the applicant has no criminal history which
is not disputed by the State.
13. Considering the submissions of both the parties and
keeping in mind the twin conditions of Section 37 of N.D.P.S.
Act and perusing the evidence on the record, it is very much
established that sampling was done contrary to the Standing
Order / Instruction No.1 of 1989 dated 13.6.1989, which are
mandatory in nature, as such chances of applicant conviction is
weak on the basis of sampling of contraband done in the
present matter as well as on the basis of the ratio of the
judgment in the case of Union of India vs. Shiv Shankar Keshri
(supra) larger mandate of Article 21 of the constitution of India
without expressing any opinion on the merit of the case, I am of
the view after applying section 37 of the N.D.P.S. act that the
applicant is entitled to be released on bail.
14. Let the applicant- Wali Hassan involved in aforesaid case
be released on bail on their furnishing a personal bonds and
two heavy sureties each in the like amount to the satisfaction of
the Court concerned with the following conditions:-
(i) The applicant shall file an undertaking to the effect that he
shall not seek any adjournment on the dates fixed for evidence
when the witnesses are present in court. In case of default of
this condition, it shall be open for the trial court to treat it as
abuse of liberty of bail and pass orders in accordance with law.
(ii) The applicant shall remain present before the trial court on
each date fixed, either personally or through his counsel. In
case of his absence, without sufficient cause, the trial court may
proceed against him under Section 229-A of the Indian Penal
(iii) In case, the applicant misuses the liberty of bail during trial
and in order to secure his presence proclamation under Section
82 Cr.P.C. is issued and the applicant fails to appear before the
court on the date fixed in such proclamation, then, the trial court
shall initiate proceedings against him, in accordance with law,
under Section 174-A of the Indian Penal Code.
(iv) The applicant shall remain present, in person, before the
trial court on the dates fixed for (i) opening of the case, (ii)
framing of charge and (iii) recording of statement under Section
313 Cr.P.C. If in the opinion of the trial court absence of the
applicant is deliberate or without sufficient cause, then it shall
be open for the trial court to treat such default as abuse of
liberty of bail and proceed against him in accordance with law.
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The Allahabad High Court has granted conditional bail to an NDPS Accused Wali Hasan, accused of smuggling 201 kg of ganja in view of the fact that the sampling of the Ganja was not done as per the Standing Order/Instruction No.1 of 1989.The Bench of Justice Chandra Kumar Rai ordered to release the applicant- Wali Hassan on bail on his furnishing a personal bonds and two heavy sureties each in...
The Allahabad High Court has granted conditional bail to an NDPS Accused Wali Hasan, accused of smuggling 201 kg of ganja in view of the fact that the sampling of the Ganja was not done as per the Standing Order/Instruction No.1 of 1989.
The Bench of Justice Chandra Kumar Rai ordered to release the applicant- Wali Hassan on bail on his furnishing a personal bonds and two heavy sureties each in the like amount to the satisfaction of the Court concerned.
Case in brief
It was the case of the prosecution that Wali Hassan/Accused was driving a truck, which was intercepted and a total of 91 packets of 201 kg ganja were recovered from the truck and he was booked under Sections 8, 20, 29, 60, and 3 of N.D.P.S. Act.
It was the case of the accused that 91 packets of alleged contraband (Ganja) in 8 Bags (Bora) was alleged to be recovered from inside of truck but only 1 packet weighing 1 K.G. (Ganja) out of 91 Packets was sent for a chemical examination.
Therefore, it was submitted that atmost 1 K.G. can be said to be Ganja but remaining 200 K.G. cannot be said to be Ganja or any other contraband unless there is proper sampling and its chemical examination.
It was lastly contended by his counsel that it is not mentioned in the recovery memo that from every 91 packets, a sample of alleged contraband (Ganja) was taken and sent for chemical examination, and as such, the procedure of sampling adopted by the police authority was in violation of Standing Order / Instruction No.1 of 1989 dated 13.6.1989 issued by the Government of India under Section 52 A of N.D.P.S. Act.
In view of this, considering the submissions of both the parties and keeping in mind the twin conditions of Section 37 of N.D.P.S., the Court observed thus:
"...it is very much established that sampling was done contrary to the Standing Order / Instruction No.1 of 1989 dated 13.6.1989, which are mandatory in nature, as such chances of applicant conviction is weak on the basis of sampling of contraband done in the present matter...larger mandate of Article 21 of the constitution of India without expressing any opinion on the merit of the case, I am of the view after applying section 37 of the N.D.P.S. act that the applicant is entitled to be released on bail."
Case title - Wali Hassan v. State of U.P. [CRIMINAL MISC. BAIL APPLICATION No. - 18303 of 2020]
|
2. This batch of appeals challenge the judgment and order
dated 28th May, 2020, passed by the Allahabad High Court in
various writ petitions filed by the allottees of plots of land. The
writ petitions were filed challenging the demand of additional
amount made by the appellant hereinYamuna Expressway
Industrial Development Authority (hereinafter referred to as
“YEIDA”) in respect of plots of land leased out to the allottees;
the resolution of the Board of YEIDA dated 15 th September,
2014, and the Government Order dated 29th August, 2014, vide
which the State Government had permitted YEIDA to recover
the additional amount from the allottees.
3. The facts in the present case are not in dispute. For the
sake of convenience, we will refer to the factual details as are
found in Writ Petition No.28968 of 2018, filed before the High
Court of Allahabad by M/s Shakuntla Education and Welfare
Society (the respondent No.1 herein).
4. A vast area of land was acquired by the State of Uttar
Pradesh in Gautam Budh Nagar district for public purposes.
The said area of land was acquired for the benefit of YEIDA.
After the land was acquired, YEIDA invited applications for the
allotment of plots of land in the area developed by it. In
response to the notice inviting applications for such allotment,
various allottees including the respondent No.1 herein applied
and were allotted plots admeasuring different sizes.
5. The respondent No.1 was informed by letter dated 14 th
September, 2009, that a plot of 50 acres of land has been
reserved for it. Subsequently, a letter of allotment dated 10 th
December, 2009 was issued to the respondent No.1, allotting
plot No.2 in Sector 7A, having an area of 50 acres, i.e.,
equivalent to 2,02,350 sq. meter. In the allotment letter, it was
stated that the premium of the land allotted was Rs.1,055/ per
sq. meter. It was also mentioned that the respondent No.1 had
deposited 10% of the premium amount and the balance 90% of
the premium amount was payable in monthly installments as
specified in the chart contained therein. The allotment letter
further stated that the lease deed shall be executed and the
possession of the land shall be handed over after completion of
the acquisition proceedings. It was stated that the land was
already in possession of YEIDA.
6. It was the contention of the respondent No.1 that on the
basis of the aforesaid allotment letter, a lease deed came to be
executed in favour of the respondent No.1 on 22 nd January,
2010 for a period of 90 years after the respondent No.1 had
made substantial compliance with the terms and conditions of
the allotment and had deposited the necessary amount. The
lease deed provided that in addition to the amount payable by
the respondent No.1, as mentioned in the allotment letter, a
further amount, i.e., 2.5% of the total premium of the plot was
payable as annual lease rent.
7. It was further the case of the respondent No.1 that during
measurement, it was found that the plot allotted to it, had an
excess area of about 2 acres. The said excess land was also
leased out to it on the same terms and conditions. It was
further the case of the respondent No.1 that it was thereafter
given possession of the aforesaid land and on it, a University
known as Galgotias University was developed.
8. It was further the case of the respondent No.1 that
subsequently YEIDA came out with a policy and gave an option
to the respondent No.1 to deposit the entire premium amount
in lumpsum rather than in installments. This was subject to
certain rebate. It was stated that in accordance with the said
policy, a lumpsum amount was worked out by YEIDA and the
same was also paid by the respondent No.1. An undertaking
was also taken from the respondent No.1 on an affidavit on 7 th
June, 2012, that in the event there was any clerical error or
miscalculation of the lumpsum amount, the respondent No.1
would make good the deficiency.
9. The State of Uttar Pradesh had also made largescale
acquisition of lands for the benefit of New Okhla Industrial
Development Authority (“NOIDA” for short) and Greater NOIDA.
A number of writ petitions came to be filed by farmers
challenging the said acquisition on various grounds before the
Allahabad High Court. The main ground of challenge was that
there was no urgency for acquiring the land and as such,
invoking Section 17 of the Land Acquisition Act, 1894
(hereinafter referred to as “the L.A. Act”) was not warranted. It
was contended that on account of invoking of Section 17 of the
L.A. Act, a valuable right available to the writ petitioners under
Section 5A of the L.A. Act was taken away. All the said writ
petitions came to be decided vide the judgment and order dated
21st October, 2011. In the leading case, i.e., Gajraj and others
vs. State of U.P. and others 1, the Full Bench of the Allahabad
High Court came to a finding that the urgency clause ought not
to have been invoked and the farmers were unlawfully denied
the benefit of Section 5A of the L.A. Act, wherein they could
raise objections to the acquisition of the land. However, taking
into consideration the subsequent developments that the lands
had already been developed and third party rights had accrued,
the Full Bench of the Allahabad High Court in the case of
Gajraj (supra) considered it appropriate not to disturb the
acquisition. In order to balance the equities, the Full Bench of
the Allahabad High Court directed payment of additional
compensation of 64.7% plus some other benefits to certain
class of farmers. It also directed certain other benefits to be
given to the farmers. The aforesaid additional compensation of
64.7% was worked out by the Court taking into consideration
the fact that in respect of one of the villages, i.e., Patwari,
NOIDA itself had entered into negotiations with the farmers and
had extended the benefit of additional compensation at the
aforesaid rate over and above the compensation awarded.
10. The aforesaid judgment and order of the Full Bench of the
Allahabad High Court in the case of Gajraj (supra) came to be
confirmed by this Court in the case of Savitri Devi vs. State
of Uttar Pradesh and others2.
11. Since the farmers, whose lands were acquired for the
benefit of NOIDA and Greater NOIDA, were being paid
additional compensation of 64.7%, there was unrest amongst
the farmers whose lands were acquired for YEIDA. It appears
that on account of agitation by the farmers, vast stretches of
lands could not be developed. As such, the Chief Executive
Officer (hereinafter referred to as “CEO”) of YEIDA addressed a
letter dated 10th April, 2013, to the State Government,
requesting to find a solution. The State Government, acting on
the said letter, instructed the Commissioner, Meerut Division,
Meerut, vide its letter of the same day, i.e., dated 10 th April,
2013, to meet various groups of farmers and submit a report.
12. Accordingly, the Commissioner held a meeting with
various groups of farmers and the concerned District
Magistrates, and submitted a report to the State Government
on 16th July, 2013, recommending constitution of a HighLevel
13. The State Government vide Office Memo dated 3 rd
September, 2013, constituted a HighLevel Committee under
the Chairmanship of Sri Rajendra Chaudhary, Minister of
Prison, State of Uttar Pradesh (hereinafter referred to as “the
Chaudhary Committee”). The Chaudhary Committee also
consisted of the Divisional Commissioner of the concerned
Division and the Collector of concerned District. The
Chaudhary Committee submitted its recommendations to the
State Government, inter alia, recommending for the payment of
64.7% additional amount as “no litigation incentive” to the
farmers and for its reimbursement from the allottees in the
appropriate proportion.
14. The State Government accepted the recommendations of
the Chaudhary Committee and issued a Government Order
dated 29th August, 2014 (hereinafter referred to as “the said
G.O.”). The said G.O. provided that the farmers should be
offered 64.7% additional amount on the condition that they
withdraw their petitions challenging the acquisition proceedings
and undertake not to institute any litigation and create any
hindrance in the development work of YEIDA. It was clarified
in the said G.O. that the Government would not bear the
burden of the additional amount.
15. The said G.O. was placed before the Board of YEIDA in its
meeting, held on 15th September, 2014, and the same was
approved in the said meeting on the very same day, vide
Resolution dated 15th September, 2014.
16. In pursuance to the said G.O. and the Resolution dated
15th September, 2014 of the Board of YEIDA, additional demand
notices were issued to various allottees. In case of the
respondent No.1, an additional premium at the rate of Rs.600/
per sq. meter, for the land allotted and leased out, came to be
demanded, totaling to Rs.12,14,10,000/.
17. It was in this background that various writ petitions came
to be filed before the Allahabad High Court, including Writ
Petition No.28968 of 2018, filed by the respondent No.1.
18. By the impugned judgment and order dated 28th May,
2020, the Allahabad High Court allowed the said writ petitions
(i) the decision in the case of Gajraj (supra), as approved
by this Court in the case of Savitri Devi (supra), was
not a judgment in rem and could not have been applied
to proceedings for acquiring the land under different
(ii) the said G.O. and the Resolution of the Board of YEIDA
dated 15th September, 2014 were violative of the
(iii) the policy of the State Government was unfair,
unreasonable, arbitrary and in violation of the
provisions of the Transfer of Property Act, 1882.
19. Being aggrieved thereby, the present appeals by way of
special leave have been filed on behalf of YEIDA, State of Uttar
Pradesh and farmers whose lands were acquired.
20. We have heard Shri C.A. Sundaram, Shri C.U. Singh and
Shri Maninder Singh, learned Senior Counsel appearing on
behalf of YEIDA, Shri Vinod Diwakar, learned Additional
Advocate General appearing on behalf of the State of Uttar
Pradesh, Shri Rakesh U. Upadhyay and Dr. Surat Singh,
learned counsel appearing on behalf of the farmers whose lands
were acquired, Shri Nakul Dewan, Shri Sunil Gupta, Shri
Ravindra Srivastava and Shri Sanjiv Sen, learned Senior
Counsel appearing on behalf of the respondentsoriginal
allottees of land.
21. The main contention of the appellants in the present
appeals is that the said G.O. was a policy decision of the State
Government, taken in public interest. It is submitted that the
said policy decision was taken after taking into consideration
the farmers’ agitation, the report of the Chaudhary Committee
and all other relevant factors. It is submitted that in order to
avoid acquisitions from being declared illegal, the Cabinet of
Ministers of the State Government had taken a considered
decision to adopt a formula, which was carved out by the
judgment of the Full Bench of the Allahabad High Court in the
case of Gajraj (supra) and approved by this Court in the case of
22. It is also the contention on behalf of the appellants that
the policy of the State Government was in consonance with the
decision of this Court in the case of Centre for Public Interest
Litigation and others vs. Union of India and others 3,
wherein this Court has held that it is obligatory on the State to
ensure that people are adequately compensated for the transfer
of resource to the private domain. Relying on the judgment of
this Court in the case of Narmada Bachao Andolan vs. Union
of India and others4, it is submitted that the policy of the
State Government was formulated by looking at the welfare of
the people at large rather than restricting the benefit to a small
section of the society. Relying on various judgments of this
Court, it is submitted that when the change in the policy of the
State is in public interest, it will override all private agreements
entered into by the State.
23. It is further submitted on behalf of the appellants that, as
a matter of fact, on account of agitation of the farmers,
development could not take place in the concerned area. It is
submitted that various plot owners had approached the State
Government and its authorities for finding out a solution to
these problems, so that the development could proceed further.
It is submitted that the proceedings of the Chaudhary
Committee would itself reveal that all the stakeholders
including the representatives of allottees were heard by the
Chaudhary Committee. Not only that, but various allottees
had, in writing, agreed that they are willing to pay the
additional compensation so that the hindrance in the
development is removed. It is therefore submitted that it does
not lie in the mouth of the respondents to question the said
G.O. and oppose the payment of additional compensation.
24. Relying on various judgments of this Court, it is further
submitted on behalf of the appellants that the lease deed itself
permitted additions, alterations or modifications in the terms
and conditions of the lease. As such, even as per the lease
deed, the appellants were entitled to modify or alter the terms
and conditions of the lease. It is submitted that the word
“modify” has to be used in a broader sense and not in a
narrower sense.
25. Learned counsel for the appellants further submitted that
the High Court fell in great error in holding that no writ
petitions were pending. It is submitted that, as a matter of fact,
more than 600 writ petitions were pending when the policy
decision was taken by the State Government. It is submitted
that the policy decision was taken so as to save the acquisition,
which was otherwise liable to be quashed and set aside. It is
submitted that it is, in fact, the respondents, who are the
beneficiaries of the said measure and as such, having taken
benefit of the said measure, they cannot be permitted to refuse
to pay the additional compensation.
26. It is also submitted on behalf of the appellants that the
allotees had an option, either to make additional payment or to
take refund with interest. Having opted not to seek refund with
interest, it does not lie in the mouth of the respondents to
refuse to pay the additional compensation.
27. It is also submitted on behalf of appellantYEIDA that it
had specifically submitted that stay orders passed by the High
Court were in force in most of the cases related to residential
plots, due to which the development work could not be
28. Learned counsel appearing on behalf of the farmers also
support the stand of YEIDA. It is submitted that the builders
had already recovered additional compensation from the
homebuyers. As such, the additional compensation was
already passed on by the builders to the homebuyers. It is
submitted that if the contention of the respondents is accepted,
it will amount to nothing else but allowing of unjust
29. It is further submitted that the respondents were not
entitled to the discretionary relief under Article 226 of the
Constitution of India. The writ petitions filed by them before
the Allahabad High Court were filed without impleading the
farmers who were necessary parties as respondents to the writ
30. Elaborate arguments have been advanced on behalf of the
respondents. To summarize, they are as under:
(i) The respondents had not given any undertaking to pay
additional compensation, as stated;
(ii) The term “modification/addition” with regard to
payment was restricted only to any clerical or technical
(iii) The High Court has rightly held that Gajraj (supra) and
Savitri Devi (supra) applied only to the peculiar facts
and circumstances of those cases. In the case of
Gajraj (supra), the High Court had done elaborate
exercise of categorizing the cases into three types. In
any case, it is submitted that the State itself was
aggrieved by the decision in Gajraj (supra), which has
been challenged by it before this Court;
(iv) In the present case, many of the acquisitions were by
private negotiations and as such, there is no question of
applicability of either Section 17 or Section 5A of the
(v) There were concluded contracts entered between the
allottees and YEIDA. As such, it was not open for
YEIDA to unilaterally change the terms and conditions
of the contract and enhance the lease premium;
(vi) The High Court has rightly held that the socalled
policy of the State Government was arbitrary, irrational
and therefore not sustainable in law;
(vii) On behalf of the respondent No.19Supertech Limited,
an additional submission was made that the
appropriate authority has already passed an order
admitting the petition filed under Section 7 of the
Insolvency and Bankruptcy Code, 2016;
(viii) On behalf of the individual plot owners, it is submitted
that the said plot owners, who belong to the middle
class section of the society cannot be burdened with the
additional amount.
(ix) The respondents also placed reliance on the judgment
of this Court in the case of ITC Limited vs. State of
Uttar Pradesh and others5 to support the proposition
that concluded contracts cannot be interfered with or
reopened.
31. With the assistance of the learned counsel for the parties,
we have perused the material on record.
32. The main reasons that weighed with the High Court while
allowing the writ petitions are thus:
(i) That the lands which were acquired for YEIDA in the
present case were under different notification than the
notification which fell for consideration in the case of
(ii) That this Court in the case of Savitri Devi (supra) has
categorically held that the directions given in the case
of Gajraj (supra) were issued by the High Court in the
peculiar facts and circumstances of the case and
therefore, the same could not have been applied to the
(iii) That some other petitions filed before the High Court
claiming the benefit on the basis of Gajraj (supra) were
ultimately rejected by the High Court;
(iv) That the State Government has to strictly act in
accordance with the law or statutory provisions. It
cannot act arbitrarily or in an unfair manner in breach
(v) That it is only for the Courts to grant equitable relief
and the Government is not entitled to pass order on
equitable ground of law.
33. We are called upon to examine the correctness of these
34. The relevant portion of the judgment of the Full Bench of
the High Court in the case of Gajraj (supra) is reproduced by
this Court in the case of Savitri Devi (supra). It will be
apposite to refer to following observations in the case of Savitri
“20. In a nutshell, relief was categorised in
three compartments. In the first instance,
those writ petitions which were filed belatedly
were dismissed. In the second category, three
villages, namely, Devala (Group 40), Village
Yusufpur Chak Sahberi (Group 38) and Village
Asdullapur (Group 42) the acquisition was set
aside. Land acquisition in respect of remaining
61 villages is concerned, the acquisition was
allowed to remain but the additional
compensation was increased to 64.7%with
further entitlement for allotment of
development abadi plot to the extent of 10%of
the acquired land of those landowners subject
to maximum of 2500 sq m.
21. We now reproduce the exact nature of
direction [2011 SCC OnLine All 1711] given by
the High Court, which reads as follows: (Gajraj
“In view of the foregoing conclusions we
1. Writ Petition No. 45933 of 2011,
Writ Petition No. 47545 of 2011 relating
to Village Nithari, Writ Petition No. 47522
of 2011 relating to Village Sadarpur, Writ
Petition No. 45196 of 2011, Writ Petition
No. 45208 of 2011, Writ Petition No.
45211 of 2011, Writ Petition No. 45213 of
2011, Writ Petition No. 45216 of 2011,
Writ Petitions Nos. 4522324 of 2011,
Writ Petition No. 45226 of 2011, Writ
Petitions Nos. 4522930 of 2011, Writ
Petition No. 45235 of 2011, Writ Petition
No. 45238 of 2011, Writ Petition No.
45283 of 2011 relating to Village Khoda,
Writ Petition No. 46764 of 2011, Writ
Petition No. 46785 of 2011 relating to
46407 of 2011 relating to Village Chaura
Sadatpur and Writ Petition No. 46470 of
2011 relating to Village Alaverdipur
which have been filed with inordinate
delay and laches are dismissed.
2. (i) The writ petitions of Group
40 (Village Devla) being Writ Petition No.
31126 of 2011, Writ Petition No. 59131 of
2009, Writ Petition No. 22800 of 2010,
Writ Petition No. 37118 of 2011, Writ
Petition No. 42812 of 2009, Writ Petition
No. 50417 of 2009, Writ Petition No.
54424 of 2009, Writ Petition No. 54652 of
2009, Writ Petition No. 55650 of 2009,
Writ Petition No. 57032 of 2009, Writ
Petition No. 58318 of 2009, Writ Petition
No. 22798 of 2010, Writ Petition No.
37784 of 2010, Writ Petition No. 37787 of
2010, Writ Petitions Nos. 3112425 of
2011, Writ Petition No. 32234 of 2011,
Writ Petition No. 32987 of 2011, Writ
Petition No. 35648 of 2011, Writ Petition
No. 38059 of 2011, Writ Petition No.
41339 of 2011, Writ Petition No. 47427 of
2011 and Writ Petition No. 47412 of 2011
are allowed and Notifications dated 265
consequential actions are quashed. The
petitioners shall be entitled for
restoration of their land subject to
deposit of compensation which they had
received under agreement/award before
2010 Omveer v. State of U.P. (Group 38)
relating to Village Yusufpur Chak Sahberi
is allowed. Notifications dated 1042006
and 692007 and all consequential
actions are quashed. The petitioners shall
be entitled for restoration of their land
subject to return of compensation
received by them under agreement/award
to the Collector.
(iii) Writ Petition No. 47486 of 2011
(Rajee v. State of U.P.) of Group 42
relating to Village Asdullapur is allowed.
Notifications dated 2712010 and 42
proceedings are quashed. The petitioners
shall be entitled to restoration of their
3. All other writ petitions except as
mentioned above at (1) and (2) are
disposed of with the following directions:
(a) The petitioners shall be entitled
compensation to the extent of same
ratio (i.e. 64.70%) as paid for Village
compensation received by them under
the 1997 Rules/award which payment
shall be ensured by the Authority at an
early date. It may be open for the
Authority to take a decision as to what
proportion of additional compensation
be asked to be paid by the allottees.
Those petitioners who have not yet
been paid compensation may be paid
the compensation as well as additional
compensation as ordered above. The
payment of additional compensation
shall be without any prejudice to rights
of landowners under Section 18 of the
Act, if any.
(b) All the petitioners shall be
developed abadi plot to the extent of
10%of their acquired land subject to
maximum of 2500 sq m. We however,
leave it open to the Authority in cases
where allotment of abadi plot to the
extent of 6%or 8%has already been
made either to make allotment of the
balance of the area or may compensate
the landowners by payment of the
amount equivalent to balance area as
per average rate of allotment made of
developed residential plots.
decision as to whether benefit of
additional compensation and allotment
of abadi plot to the extent of 10%be also
(a) those landholders whose earlier
notifications has been dismissed
upholding the notifications; and
(b) those landholders who have not
come to the Court, relating to the
notifications which are the subject
petitions mentioned at Direction 3.
5. Greater Noida and its allottees are
directed not to carry on development and
not to implement the Master Plan 2021
till the observations and directions of the
are incorporated in Master Plan 2021 to
the satisfaction of the National Capital
Regional Planning Board. We make it
clear that this direction shall not be
applicable in those cases where the
development is being carried on in
accordance with the earlier Master Plan
of Greater Noida duly approved by the
6. We direct the Chief Secretary of the
State to appoint officers not below the
level of Principal Secretary (except the
officers of Industrial Development
Department who have dealt with the
relevant files) to conduct a thorough
inquiry regarding the acts of Greater
Noida (a) in proceeding to implement
Master Plan 2021 without approval of
NCRP Board, (b) decisions taken to
change the land use, (c) allotment made
to the builders, and (d) indiscriminate
proposals for acquisition of land, and
thereafter the State Government shall
take appropriate action in the matter.”
22. We may point out at this stage that in
respect of all these three categories, the High
Court has provided its justification for granting
relief in the aforesaid nature. We shall be
referring to the same while discussing the
cases of the appellants belonging to one or the
other category.”
35. After considering various judgments, this Court in the
case of Savitri Devi (supra) observed thus:
“46. Thus, we have a scenario where, on
the one hand, invocation of urgency
provisions under Section 17 of the Act
and dispensing with the right to file
objection under Section 5A of the Act, is
found to be illegal. On the other hand, we
have a situation where because of delay
in challenging these acquisitions by the
landowners, developments have taken
place in these villages and in most of the
cases, thirdparty rights have been
created. Faced with this situation, the
High Court going by the spirit behind the
3 SCC (Civ) 1] came out with the solution
which is equitable to both sides. We are,
thus, of the view that the High Court
considered the ground realities of the
matter and arrived at a more practical
and workable solution by adequately
compensating the landowners in the form
of compensation as well as allotment of
developed abadi land at a higher rate i.e.
10%of the land acquired of each of the
landowners against the eligibility and to
(sic under) the policy to the extent of
5%and 6%of Noida and Greater Noida
land respectively.
36. It could thus be seen that this Court in the said case has
found that a peculiar situation arose, where on one hand
invocation of urgency provisions under Section 17 of the L.A.
Act and dispensing with the right to file objections under
Section 5A of the L.A. Act, were found to be illegal, while on the
other hand, the developments had already taken place in the
villages and in most of the cases, thirdparty rights were
created. Faced with this situation, the High Court came out
with the solution which was equitable to both sides. This
Court found that the High Court considered the ground
realities of the matter and arrived at a more practical and
workable solution by adequately compensating the landowners
in the form of compensation as well as allotment of
developed abadi land at a higher rate.
37. No doubt that this Court in paragraph 50 of the judgment
in the case of Savitri Devi (supra) makes it clear that the
directions of the High Court were given in the unique and
peculiar/specific background and therefore, it would not form
precedent for future cases.
38. It is to be noted that in the case of Greater Noida
Industrial Development Authority vs. Savitri Mohan (Dead)
Through Legal Representatives and others6, this Court was
considering the judgment of the Allahabad High Court, wherein
it had quashed and set aside the Notification under Section 4(1)
and Section 17(4) of the L.A. Act as well as the Notification
under Section 6 read with Section 17(1) of the L.A. Act. A
specific question was framed by this Court in the said case in
paragraph 10, which reads thus:
“10. The only question for consideration
is whether the matter is covered by the
judgment of this Court in Savitri
Devi [Savitri Devi v. State of U.P., (2015) 7
SCC 21 : (2015) 3 SCC (Civ) 473] , as
claimed by the appellant in which case
the respondents will be entitled to relief of
higher compensation and allotment of
land instead of quashing of acquisition
proceedings.”
39. Answering the aforesaid question, this Court in the said
“13. A perusal of the above shows that
disbursed to the extent of 76%.
Thereafter, for the entire land of Village
Chhapraula falling in Group 18, the relief
granted is payment of additional
compensation and allotment of land. As
already noted, the part of the order where
relief of quashing of notification has been
given is not of the category of the present
case. In these circumstances, we find
merit in the contention raised on behalf
of the appellant that the Division Bench
was in error in distinguishing the present
in Gajraj [Gajraj v. State of U.P., (2011) 11
14. As observed by this Court in Savitri
Devi [Savitri Devi v. State of U.P., (2015) 7
SCC 21 : (2015) 3 SCC (Civ) 473] , in
spite of the finding that invocation of
urgency clause was uncalled for, the
relief of setting aside the acquisition was
not granted having regard to the
development that had already been
undertaken on substantial part of the
land. However, to balance the equities
higher compensation and allotment of
land was ordered to meet the ends of
justice. [Savitri Devi v. State of U.P.,
(2015) 7 SCC 21, para 17]”
40. It could thus clearly be seen that though this Court in the
case of Savitri Devi (supra) observed that the judgment in the
case of Gajraj (supra) has to be construed particularly in the
unique and peculiar/specific background, in the case of
Savitri Mohan (Dead) (supra), this Court had followed the
principle laid down in the cases of Gajraj (supra) and Savitri
Devi (supra) and held that to balance the equities, it was
appropriate to issue directions for payment of higher
compensation and allotment of additional land. It was observed
that it was necessary to do so to meet the ends of justice.
41. At this juncture, we will have to consider the policy
decision of the State Government as formulated in the said
G.O. in the peculiar facts and circumstances of the present
42. After the decision of this Court in the cases of Gajraj
(supra) and Savitri Devi (supra), 64.7% additional
compensation and 10% of the land acquired of each of the land
owners, instead of 5% and 6% was made available to the
farmers whose lands were acquired for the benefit of NOIDA as
well as Greater NOIDA. The lands acquired for the benefit of
YEIDA were also for the development of adjoining areas.
Feeling discriminated that they were being paid compensation
at much lesser rate as compared to the farmers whose lands
were acquired for NOIDA and Greater NOIDA, various farmers’
organizations started agitations. It is some of the allottees who
made representations to the CEO of YEIDA. One of such
representations was made by the respondent No.19Supertech
Private Limited to the CEO of YEIDA on 22nd November, 2013,
stating therein that on account of agitation by the Bhartiya
Kisan Union, they had to stop their work with effect from 20 th
November, 2013. The said letter/representation stated that that
the main grievance of the officeholders of the Bhartiya Kisan
Union was that they want increased compensation and for
compensating the same, the Authority wants money from the
Builders. The said representation states that:
““the Authority is not resolving the
problems of the Farmers. The main issue
of farmers is that they want increased
compensation, and for compensating the
same, the Authority wants money from
the Builders. Builders are not ready to
pay this amount, due to which, we are
stopping the construction works of
Builders.” During the discussion, it was
said by the Company that “We are not
against the farmers or against their rights
and company gives it’s consent on this
fact that whatever the consent would be
made out between the Authority and
Government on the compensation
amount of farmers, that would be
accepted by the company.”
43. The said letter/representation categorically states that the
Company was not against the farmers or against their rights
and that it was willing to abide by whatever decision was
arrived at between the Authority and the Government on the
compensation amount of farmers.
44. Similar representations were made by Orris Greenbay Golf
Village on the same day, by Sunworld City Pvt. Ltd. on 26 th
November, 2013, and by Gaursons Realtech Pvt. Ltd. on 4 th
45. It could thus be seen that on account of farmers’
resistance and their agitation, the development work of the
projects was stalled. When this was brought to the notice of
the State Government, the State Government nominated the
Commissioner, Meerut Division, Meerut vide order dated 10 th
April, 2013, for looking into the issue. The Commissioner after
holding various meetings with the farmers’
organization/representatives submitted his report on 16 th July,
2013, stating therein that the lands have been acquired by
YEIDA at large scale and taking into consideration the nature of
demands having wide implications, it was necessary that a
HighLevel Committee at the State Government level for
examining the demands of farmers be constituted. In this
background, the State Government vide order dated 3 rd
September, 2013 constituted a Committee under the
Chairmanship of Shri Rajendra Chaudhary, Minister of Prison,
State of Uttar Pradesh. The Divisional Commissioner of the
concerned Division and the Collector of the concerned District
were also the members of the Chaudhary Committee. The
Chaudhary Committee was constituted for the purpose of
resolving the problems of the villagers/farmers and the
problems related to the industries. The Chaudhary Committee
considered the following issues:
“a. Demands raised by the Farmers/
personal hearing.
during personal hearing.
46. The Chaudhary Committee conducted its proceedings on
30th September, 2013 with the representatives of the farmers.
The said Committee thereafter held deliberations with the
representatives of the allottees on 29 th October, 2013. It will be
apposite to refer to the relevant part of the discussion that took
place in the meeting held with the representatives of the
allottees on 29th October,2013, which reads thus:
“2. It was informed by the representative
of M/s. SDIL that due to the agitation
of local farmers on the issues of their
problems/demands, at present, we
are not available to carry out any
work on the spot, therefore, whatever
the decision will be taken by the
Committee/ Government for disposal
of the problems of farmers, we will
cooperate in the same.
3. It was informed by the representative
of M/s. Supertech Pvt. Ltd. that the
farmers are agitating in the entire
area and they are interrupting the
development work. It is necessary to
solve the problems of farmers. It was
also informed by him that he will
cooperate in the decision to be taken
by the Government/Committee for
disposal of the problems.
representatives of M/s. Silverline and
other Units/Institutions that due to
interrupting their development works
raised by the farmers of the area, the
project cost is getting escalated. Due
to solving the problems of farmers,
the investment will be increased in
the area and in disposal of the same,
they will provide their assistance.
5. Regarding the demand of giving 10%
abadi land in place of 7% abadi land
to be given to the ancestral farmers,
it was said by the representative of
M/s. J.P. Infratech Pvt. Ltd. namely
Sh. Sameer Gaur that earlier, they
land and development charges, now,
if any other cost is imposed, then,
company is not in position to bear the
same.”
47. It could thus be seen that even the representatives of the
allottees were of the opinion that on account of the agitation of
the local farmers, the developers were not in a position to carry
out any work on the spot. It was also impressed upon that on
account of this, the cost of the project was getting escalated.
As such, it was urged to solve the problem.
48. The Chaudhary Committee also considered the
submissions made on behalf of the appellantYEIDA. It was
submitted on behalf of the appellantYEIDA that on account of
the judgment delivered in a similar case, i.e., in the case of
Gajraj (supra), the farmers, whose lands were acquired, were
also demanding the compensation on similar lines.
49. After considering the rival submissions, the Chaudhary
Committee gave its recommendation as under:
“Recommendation of Committee:
The opinion of Authority as well as the
demands of the Farmers' Organizations
were carefully considered by the
Committee. In the common order passed
in the different Writ Petitions filed by
Noida and Greater Noida Authorities, the
Hon'ble High Court by not finding the
proceedings conducted under Section 17 of
Land Acquisition Act, 1894 to be proper,
had directed that the Authority shall pay
64.7% additional compensation to the
farmers and return them 10% developed
land. Also in the Yamuna Expressway
Authority, around 700 Writ Petitions have
been filed by the farmers by challenging
the different notifications, wherein, stay
orders have been passed in the most of the
Petitions, the circumstances which were
existing in the acquisition made by Noida
and Greater Noida Authority, same
circumstances are also existed in the most
of the cases of acquisition of Yamuna
Expressway. The lands acquired by the
Authority, have been allotted to the
different allottees for different projects, due
to which, the third party rights have been
created in this acquired land and if order
is passed against the Authority in the
Petitioners filed against the Acquisition
Proceedings, then, many difficulties would
arise. Therefore, keeping in view the legal
expected legal complications, it is required
to do the out of court settlement with the
affected farmers. At the time of discussion,
representatives that if the Government/
Authority agrees to give 64.7% additional
compensation, then, the farmers will
withdraw the Petitions filed in the Court.
Therefore, Committee recommends that:
I .(a) If, all the farmers/ Petitioners of a
village related to the land acquired/
Expressway Authority, withdraw their
Petitions filed in the Hon'ble High
Court or in any other Court and if
they give written assurance for future
that they will not file any claim
against the Authority or it's allottees
in any Court and will not cause any
obstruction in the Development
Works, then, like the Greater Noida
Authority, the Authority may consider
to give amount equivalent to 64.7%
additional compensation in the form
of No Litigation Incentive/ Additional
compensated proportionally from the
concerned allottees and same may
also be imposed proportionally in the
costing of allotment of land available
with the Authority.
These benefits shall be allowed also
to those farmers, whose' lands have
been purchased by the Authority vide
Sale Deed on mutual consent basis.
(b) The process of payment of additional
villagewise in accordance with the
Schemes/ Priorities of Authority after
obtaining physical possession of on
the spot and after withdrawal of all
settlement with the farmers. In view
additional compensation is not
consideration could also be made
regarding payment in installments or
in the form of developed land.
developed land, the proceedings be
conducted according to the order of
3. The proceedings of amendment
proposed by the Authority in Abadi
Rules, are at final stage of approval,
the proceedings be conducted as per
the decision of Government.
4. Regarding abolishing the distinction
between ancestral and nonancestral,
this decision has been taken in the
48th meeting dated 08.01.2014 of
Board, that such land owners of the
remained recorded in Six Yearly
Register/ Khatauni on the acquired
establishment of Authority i.e.
24.04.2001, and the landowners are
residents of any village related to any
District lying within the notified area
of Yamuna Expressway Authority,
then, the benefit of 7% abadi land be
granted to him against his acquired
land. In the decision of Authority
Board, this facility has also been
allowed to the successors of eligible
land owners, who fulfill the aforesaid
conditions. The further proceedings
be conducted as per the decision of
5. In view of the demands of farmers
organizations and local public of
District Mathura, after taking into
consideration the proposal submitted
by Concessionaire namely M/s. J.P.
Infratech Ltd., in the 48th meeting
decision in principle has been taken
for construction of Exist & Entry
Ramps at BajnaNauhjheel Road at
Yamuna Expressway and by making
accordingly, a letter has been sent to
the Concessionaire namely M/s. J,P.
Infratech for necessary action. The
further proceedings be conducted as
per the decision of Authority Board.
It is recommended by the Committee that
the aforementioned additional benefits be
granted to the landowners only in that
case when they will handover the physical
possession of land to the Authority and
withdraw Writ Petition/Case pending in
Hon'ble High Court or any other Court and
agreement for not causing any obstruction
in future in the development works of
allottees and for not filing any claim in any
Court against the acquisition of land in
future. Regarding the other demands, the
Committee will give it's recommendation
after further consideration.”
50. It could thus be seen that the recommendations of the
Chaudhary Committee were principally intended to resolve the
issue between the farmers and the allottees, and to find out a
workable solution to the problem. The Chaudhary Committee
recommended similar treatment to be given to the farmers
whose lands were acquired for YEIDA, as was given to the
farmers whose lands were acquired for the benefit of NOIDA
and Greater NOIDA. The Chaudhary Committee found that the
same benefits as were given to the farmers whose lands were
acquired for the benefit of NOIDA and Greater NOIDA in view of
the judgment of the High Court in the case of Gajraj (supra), as
affirmed by this Court in the case of Savitri Devi (supra)
should also be given to the farmers whose lands were acquired
for the benefit of YEIDA. However, this was made conditional.
Additional benefit was granted to the landowners on the
condition that they would handover the physical possession of
land to YEIDA and withdraw the writ petitions/cases filed by
them pending before the High Court.
51. The State Government vide the said G.O. gave effect to the
recommendations of the Chaudhary Committee. YEIDA too, in
its Board meeting dated 15 th September, 2014, resolved to
implement the decision of the State Government. Accordingly,
demand notices came to be issued to the allottees.
52. It could thus be seen that the policy decision of the State
Government is preceded by various factors. Firstly, the
farmers’ agitation, after they were denied the benefits which
were granted to the farmers whose lands were acquired for the
benefit of NOIDA and Greater NOIDA; the report of the
Commissioner, the appointment of the Chaudhary Committee,
the deliberations of the Chaudhary Committee with various
stakeholders, and thereafter the recommendations of the
53. It will be relevant to refer to the judgment of this Court in
the case of the Kasinka Trading and another vs. Union of
India and another7, wherein this Court has referred to various
earlier pronouncements and the treatise of Prof. S.A. de Smith
on “Judicial Review of Administrative Action”. The relevant
paragraphs of the said judgment read thus:
“12. It has been settled by this Court that
the doctrine of promissory estoppel is
applicable against the Government also
particularly where it is necessary to
prevent fraud or manifest injustice. The
doctrine, however, cannot be pressed into
aid to compel the Government or the
public authority “to carry out a
representation or promise which is
contrary to law or which was outside the
authority or power of the officer of the
Government or of the public authority to
make”. There is preponderance of judicial
opinion that to invoke the doctrine of
promissory estoppel clear, sound and
positive foundation must be laid in the
petition itself by the party invoking the
doctrine and that bald expressions,
without any supporting material, to the
effect that the doctrine is attracted
because the party invoking the doctrine
has altered its position relying on the
assurance of the Government would not be
sufficient to press into aid the doctrine. In
our opinion, the doctrine of promissory
estoppel cannot be invoked in the abstract
and the courts are bound to consider all
aspects including the results sought to be
achieved and the public good at large,
because while considering the applicability
of the doctrine, the courts have to do
equity and the fundamental principles of
equity must for ever be present to the
mind of the court, while considering the
applicability of the doctrine. The doctrine
must yield when the equity so demands if
it can be shown having regard to the facts
and circumstances of the case that it
would be inequitable to hold the
Government or the public authority to its
promise, assurance or representation.
13. The ambit, scope and amplitude of the
doctrine of promissory estoppel has been
evolved in this country over the last
quarter of a century through successive
decisions of this Court starting with Union
of India v. IndoAfghan Agencies
Reference in this connection may be made
with advantage to Century Spg. & Mfg. Co.
Ltd. v. State of U.P. [(1979) 2 SCC 409 :
641] ; Jit Ram Shiv Kumar v. State of
689] ; Union of India v. Godfrey Philips
(Bom) (P) Ltd. v. Union of India [(1985) 1
Oil Mills v. State of Kerala [1986 Supp SCC
Industries v. State of Gujarat [(1987) 1 SCC
185] ; Asstt. CCT v. Dharmendra Trading
432] ; Amrit Banaspati Co. Ltd. v. State of
Punjab [(1992) 2 SCC 411] and Union of
India v. Hindustan Development
SCC 369 : 1986 SCC (Tax) 11] this Court
doctrine of promissory estoppel being an
equitable doctrine, it must yield when
the equity so requires; if it can be
shown by the Government or public
authority that having regard to the facts
as they have transpired, it would be
inequitable to hold the Government or
public authority to the promise or
representation made by it, the Court
would not raise an equity in favour of
the person to whom the promise or
representation is made and enforce the
promise or representation against the
Government or public authority. The
doctrine of promissory estoppel would
be displaced in such a case, because on
the facts, equity would not require that
the Government or public authority
should be held bound by the promise or
representation made by it.”
14. In Excise Commissioner, U.P. v. Ram
360 : AIR 1976 SC 2237] four learned
Judges of this Court observed: (SCC p.
“The fact that sales of country liquor
had been exempted from sales tax vide
dated 641959 could not operate as an
estoppel against the State Government
and preclude it from subjecting the
sales to tax if it felt impelled to do so in
the interest of the revenues of the State
which are required for execution of the
plans designed to meet the ever
increasing pressing needs of the
developing society. It is now well settled
by a catena of decisions that there can
be no question of estoppel against the
Government in the exercise of its
legislative, sovereign or executive
powers.”
15. Prof. S.A. de Smith in his celebrated
treatise Judicial Review of Administrative
Action, 3rd Edn., at p. 279 sums up the
“Contracts and covenants entered
construed as being subject to implied
terms that would exclude the exercise
of general discretionary powers for
the public good. On the contrary they
are to be construed as incorporating
an implied term that such powers
remain exercisable. This is broadly
true of other public authorities also.
But the status and functions of the
Crown in this regard are of a higher
order. The Crown cannot be allowed
to tie its hands completely by prior
proposition that the Courts cannot
allow the Crown to evade compliance
with ostensibly binding obligations
whenever it thinks fit. If a public
authority lawfully repudiates or
departs from the terms of a binding
contract in order to have been bound
contract because the undertakings
would improperly fetter its general
discretionary powers the other party
compensation under the general law,
no matter how serious the damages
that party may have suffered.”
54. It has been held by this Court that the doctrine of
promissory estoppel cannot be invoked in the abstract and the
courts are bound to consider all aspects including the results
sought to be achieved and the public good at large. It has been
held that while considering the applicability of the doctrine, the
courts have to do equity and the fundamental principles of
equity must for ever be present to the mind of the court, while
considering the applicability of the doctrine. It has been held
that the doctrine being an equitable doctrine, it must yield
when the equity so requires, if it can be shown by the
Government or Public Authority that having regard to the facts
and circumstances as they have transpired, it would be
inequitable to hold the Government or the Public Authority to
the promise, assurance or representation made by it. The
judgment of this Court in the case of Kasinka Trading (supra)
has been consistently followed.
55. If we apply the principle as laid down in the case of
Kasinka Trading (supra) to the facts of the present case, it
will be clear that the policy decision of the State Government
was not only in the larger public interest but also in the interest
of the respondents. The projects were stalled on account of the
farmers’ agitation. The farmers felt discriminated as they found
that the compensation paid to them was much lesser than the
one being paid to the equally circumstanced farmers in NOIDA
and Greater NOIDA. It was the allottees of the land who had
approached the State Government for redressal of the problem.
In these circumstances, the Government took cognizance of the
problem and appointed the Commissioner to look into the
issue. Since the Commissioner recommended appointment of a
HighLevel Committee, the Chaudhary Committee was
appointed. The Chaudhary Committee had threadbare
discussions with all the stakeholders. It also took into
consideration that on account of stay orders passed by the High
Court in various writ petitions, the development of the project
was stalled. On account of pendency of the writ petitions, there
was always a hanging sword over the entire acquisition of it
being declared unlawful. In this premise, in order to find out a
workable solution and that too, on the basis of the law laid
down by the High Court in the case of Gajraj (supra) as
affirmed by this Court in the case of Savitri Devi (supra) and
followed by this Court in the case of Savitri Mohan (Dead)
(supra), recommendations were made by the Chaudhary
Committee. The Chaudhary Committee specifically
recommended that the additional compensation and other
incentives would be paid only if the landowners agree to
handover physical possession of the land to YEIDA and
withdraw all the litigations.
56. It could thus be seen that the recommendations, which
were accepted by the State Government and formulated in the
policy, were made taking into consideration the interests of all
the stakeholders. As held by this Court, it is not only the
interest of a small section of the allottees which should weigh
with the Government, but the Government should also give due
weightage to the interest of the large section of farmers, whose
lands were acquired.
57. We further find that the High Court fell in error in
observing that no writ petitions were filed challenging the
acquisition for YEIDA. The report of the Chaudhary Committee
itself would clarify that YEIDA had itself submitted that insofar
as the residential plots are concerned, there were stay orders
operating in majority of the writ petitions due to which the
development of the project work was stalled.
58. We are therefore of the considered view that the policy
decision of the State Government was in the larger public
interest. It was taken considering entire material collected by
the Chaudhary Committee after due deliberations with all the
stakeholders. The factors which were taken into consideration
by the State Government were relevant, rational and founded
on ground realities. In this view of the matter, the finding of
the High Court that the policy decision of the State Government
was arbitrary, irrational and unfair, is totally incorrect.
59. The law with regard to interference in the policy decision
of the State is by now very well crystalized. This Court in the
case of Essar Steel Limited vs Union of India and others8
had an occasion to consider the scope of interference in the
policy decision of the State. After referring to various decisions
of this Court, the Court observed thus:
“43. Before we can examine the validity of
the impugned policy decision dated 63
2007, it is crucial to understand the extent
of the power vested with this Court to
review policy decisions.
44. In DDA [DDA v. Allottee of SFS Flats,
on issue of judicial review of policy
decisions, the power of the Court is
examined and observed as under: (SCC pp.
“64. An executive order termed as a
policy decision is not beyond the pale of
judicial review. Whereas the superior
courts may not interfere with the nitty
gritty of the policy, or substitute one by
the other but it will not be correct to
contend that the court shall lay its
judicial hands off, when a plea is raised
that the impugned decision is a policy
decision. Interference therewith on the
part of the superior court would not be
without jurisdiction as it is subject to
judicial review.
65. Broadly, a policy decision is
subject to judicial review on the
(b) if it is dehors the provisions of
beyond its power of delegation;
contrary to the statutory or a larger
policy.”
45. Thus, we will test the impugned policy
on the above grounds to determine
whether it warrants our interference under
Article 136 or not. Further, this Court
neither has the jurisdiction nor the
competence to judge the viability of such
policy decisions of the Government in
exercise of its appellate jurisdiction under
Article 136 of the Constitution of India.
In Arun Kumar Agrawal v. Union of
India [Arun Kumar Agrawal v. Union of
India, (2013) 7 SCC 1] , this Court has
further held as under: (SCC p. 17, para 41)
jurisdiction cannot sit in judgment over
the commercial or business decision
taken by parties to the agreement, after
evaluating and assessing its monetary
and financial implications, unless the
decision is in clear violation of any
statutory provisions or perverse or
taken for extraneous considerations or
improper motives. States and its
instrumentalities can enter into various
contracts which may involve complex
economic factors. State or the State
undertaking being a party to a contract,
have to make various decisions which
they deem just and proper. There is
always an element of risk in such
decisions, ultimately it may turn out to
one. But if the decision is taken bona
fide and in public interest, the mere fact
that decision has ultimately proved to be
wrong, that itself is not a ground to hold
that the decision was mala fide or taken
with ulterior motives.”
Maiyam v. Union of India [Villianur
Iyarkkai Padukappu Maiyam v. Union of
India, (2009) 7 SCC 561] , it was held as
“169. It is neither within the domain
of the courts nor the scope of judicial
review to embark upon an enquiry as to
whether a particular public policy is
wise or whether better public policy can
be evolved. Nor are the courts inclined
to strike down a policy at the behest of a
petitioner merely because it has been
urged that a different policy would have
been fairer or wiser or more scientific or
more logical. Wisdom and advisability of
economic policy are ordinarily not
amenable to judicial review. In matters
relating to economic issues the
decision, right to “trial and error” as long
as both trial and error are bona fide and
within the limits of the authority. For
testing the correctness of a policy, the
appropriate forum is Parliament and not
the courts.”
47. A threeJudge Bench of this Court
in Narmada Bachao Andolan v. Union of
India [Narmada Bachao Andolan v. Union
of India, (2000) 10 SCC 664] cautioned
against courts sitting in appeal against
policy decisions. It was held as under:
“234. In respect of public projects
and policies which are initiated by the
Government the courts should not
become an approval authority. Normally
consideration. In a democracy welfare of
the people at large, and not merely of a
small section of the society, has to be the
concern of a responsible Government. If
a considered policy decision has been
taken, which is not in conflict with any
law or is not mala fide, it will not be in
public interest to require the court to go
into and investigate those areas which
are the function of the executive. For any
project which is approved after due
deliberation the court should refrain
from being asked to review the decision
just because a petitioner in filing a PIL
alleges that such a decision should not
have been taken because an opposite
view against the undertaking of the
project, which view may have been
considered by the Government, is
possible. When two or more options or
views are possible and after considering
them the Government takes a policy
decision it is then not the function of
the court to go into the matter afresh
and, in a way, sit in appeal over such a
policy decision.”
48. A similar sentiment was echoed by a
Constitution Bench of this Court
Co. Ltd. v. RBI [Peerless General Finance &
Investment Co. Ltd. v. RBI, (1992) 2 SCC
343] , wherein it was observed as under:
“31. … Courts are not to interfere
with economic policy which is the
function of experts. It is not the function
of the courts to sit in judgment over
matters of economic policy and it must
necessarily be left to the expert bodies.
In such matters even experts can
seriously and doubtlessly differ. Courts
cannot be expected to decide them
without even the aid of experts.”
49. A perusal of the abovementioned
judgments of this Court would show that
this Court should exercise great caution
and restraint when confronted with
matters related to the policy regarding
commercial matters of the country.
Executive policies are usually enacted after
much deliberation by the Government.
Therefore, it would not be appropriate for
this Court to question the wisdom of the
same, unless it is demonstrated by the
aggrieved persons that the said policy has
unreasonable or mala fide manner, or that
it offends the provisions of the
Constitution of India.”
60. It is trite law that an interference with the policy decision
would not be warranted unless it is found that the policy
decision is palpably arbitrary, mala fide, irrational or violative
of the statutory provisions. We are therefore of the considered
view that the High Court was also not right in interfering with
the policy decision of the State Government, which is in the
larger public interest.
61. It will also be apposite to refer to the following
observations of this Court in the case of APM Terminals B.V.
vs. Union of India and another9:
“67. It has been the consistent view of this
Court that a change in policy by the
Government can have an overriding effect
over private treaties between the
Government and a private party, if the
same was in the general public interest
and provided such change in policy was
guided by reason. Several decisions have
been cited by the parties in this regard in
the context of preventing private
monopolisation of port activities to an
extent where such private player would
assume a dominant position which would
enable them to control not only the
berthing of ships but the tariff for use of
the port facilities.”
62. It could thus be seen that it is more than settled that a
change in policy by the Government can have an overriding
effect over private treaties between the Government and a
private party, if the same was in the general public interest.
The additional requirement is that such change in policy is
required to be guided by reason.
63. Insofar as the reliance placed by the respondents on the
judgment of this Court in the case of ITC Limited (supra) is
concerned, in our considered view, the said judgment would not
be of any assistance to the case of the respondents. This Court
in the said case in paragraph 107.1 has clearly observed that in
the case of conflict between public interest and personal
interest, public interest should prevail.
64. A number of judgments of this Court have been cited at
the Bar by the respondents in support of the proposition that in
view of concluded contracts, it was not permissible for the
appellants to unilaterally increase the premium by framing a
65. We have hereinabove elaborately discussed that when a
policy is changed by the State, which is in the general public
interest, such policy would prevail over the individual
rights/interests. In that view of the matter, we do not find it
necessary to refer to the said judgments. The policy of the
State Government as reflected in the said G.O. was not only in
the larger public interest but also in the interest of the
66. We further find that the respondents have indulged into
the conduct of approbate and reprobate. They have changed
their stance as per their convenience. When their projects were
stalled on account of the farmers’ agitation, it is they who
approached the State Authorities for finding out a solution.
When the State Government responded to their representations
and came up with a policy which was equitable and in the
interest of both, the farmers and the allottees and when the
said policy paved the way for development, when called upon to
pay the additional compensation, the respondentsallottees
somersaulted and challenged the very same policy before the
High Court, which benefitted them. We have already
hereinabove made reference to the various communications
made by the allottees of the land for intervention of the State
67. Insofar as the individual plot owners are concerned, it will
be worthwhile to mention that the residential plot owners in
Sectors 18 and 20 of Yamuna Expressway city have formed an
association, viz., Yamuna Expressway ResidentialPlotOwners
Welfare Association (hereinafter referred to as “the YERWA”).
The communication addressed by the president of the YERWA
to the CEO of YEIDA would reveal that 98.5% of the
allottees/owners have voted in favour of paying the additional
premium demanded by the Authority. The only request made
by the YERWA is with regard to making a provision for paying
additional premium in installments.
68. It can thus be seen that even insofar as the individual
residential plot owners are concerned, more than 98% of the
plot owners do not have any objection to the payment of the
additional compensation.
69. With respect to the contention of the respondent No.19
Supertech with regard to initiation of CIRP, we are not
concerned with the said issue in the present proceedings. The
law will take its own course.
70. In conclusion, we are of the considered view that the
policy decision of the State Government as reflected in the said
G.O. dated 29th August, 2014 and the Resolution of the Board
of YEIDA dated 15th September, 2014 were in the larger public
interest, taking care of the concerns of the allottees as well as
the farmers. As already discussed hereinabove, had the said
decision not been taken, there was a hanging sword of the
acquisition being declared unlawful. The development of the
entire project was stalled on account of farmers’ agitation.
Before taking the policy decision, the State Government,
through the Chaudhary Committee, had done a wide range of
deliberations with all the stakeholders including the allottees,
farmers and YEIDA. The policy decision was taken after taking
into consideration all relevant factors and was guided by
reasons. In any case, it is a settled position of law that in case
of a conflict between public interest and personal interest,
public interest will outweigh the personal interest. The High
Court was therefore not justified in holding that the policy
decision of the State was unfair, unreasonable and arbitrary.
We are of the considered view that the High Court has erred in
allowing the writ petitions. The present appeals, therefore,
deserve to be allowed.
71. In the result, we pass the following order:
(ii) The impugned judgment and order dated 28 th May,
2020, passed by the Allahabad High Court in Writ
Petition No. 28968 of 2018 and companion matters is
(iii) The writ petitions filed by the respondents covered by
the impugned judgment and order dated 28th May, 2020
passed by the Allahabad High Court are dismissed;
72. Applications for Intervention are allowed. Pending
applications, including the applications for directions, shall
stand disposed of in the above terms. There shall be no order
as to costs.
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Recently, the Supreme Court reiterated that change in policy by the Government, if guided by reason and done in public interest, would prevail over private agreements entered between Governments and private parties.
The Court held :
"...it is more than settled that a change in policy by the Government can have an overriding effect over private treaties between the Government and a private party, if the same was in the general public interest. The additional requirement is that such change in policy is required to be guided by reason".
"when a policy is changed by the State, which is in the general public interest, such policy would prevail over the individual rights/interests"
A Bench comprising Justices L. Nageswara Rao and B.R. Gavai allowed an appeal filed by the State of Uttar Pradesh assailing the order of the Allahabad High Court, which had set aside its policy decision to issue additional notices seeking additional premium from original allottees of the plots developed by the Yamuna Expressway Industrial Development Authority in Gautam Budh Nagar.
Factual Background
Yamuna Expressway Industrial Development Authority (YEIDA) invited applications for allotment of plots of land acquired by the State of U.P. in Gautam Budh Nagar for public purposes. Subsequently, plots were allotted at a premium of Rs. 1055 per sq. meter.
Concomitantly, the State of U.P. had acquired lands for the benefit of New Okhla Industrial Development Authority (NOIDA) and Greater NOIDA, which was challenged by the farmers before the Allahabad High Court. The Full Bench of the High Court in Gajraj And Ors. v. State of U.P. And Ors. ruled in favour of the farmers. But, considering that the lands so acquired had already been developed and third party rights had been created, instead of interfering with the acquisition it thought it fit to direct the State Govt. to pay additional compensation of 64.7% along with some other benefits. Eventually, the decision of the High Court was affirmed by the Apex Court in Savitri Devi v. State of U.P. And Ors.
Considering the fact that additional compensation was paid to the farmers whose lands were acquired for carrying out developmental work by NOIDA and Greater NOIDA, the farmers whose lands were acquired for YEIDA also raised similar demands, which halted YIEDA's developmental work. In this regard, the State Government constituted a High-Level Committee (Committee), which recommended payment of 64.7% additional amount as no litigation incentive to farmers. The said amount was advised to be reimbursed by the allottees. Accepting such recommendations, the Government issued an Order (GO) on 29.08.2014. In its meeting, on 15.09.2014, YEIDA approved the same. Consequently, additional demand notices were sent to the allottees for additional premium at the rate of Rs. 600 per sq. meter. The allottees approached the Allahabad High Court challenging the additional demand, which held the State policy to be, inter alia, arbitrary and unreasonable.
Contentions raised by the appellants
The Counsels for YEIDA and the State Govt. submitted that the G.O. was a policy decision taken in furtherance of public interest and in consonance with the decision in Centre for Public Interest Litigation And Ors. v. Union of India And Ors (2012) 3 SCC 1, wherein the Apex Court had held that the State is obligated to compensate adequately for transfer of resources to the private domain. It was argued that since the State policy was in the interest of the public, it would override private agreements. Moreover, there were assertions that all the stakeholders, including the representatives of the allottees were heard by the Committee. In fact, allottees themselves had agreed to pay additional compensation so that the developmental work, which was stalled due to agitation, could commence. Furthermore, as per the terms of the lease dead, it could be modified. It was asserted that the policy decision was taken in order to save the acquisition, which was otherwise liable to be set aside. Contention was raised by the appellants that if the allottees were not willing to meet the additional demand they had the option to take a refund with interest, in the alternative.
The Counsels representing the farmers, supported the stand taken by YEIDA. It argued that the builders (some allottees) had already recovered additional compensation from the homebuyers. In such a backdrop, it was averred that not paying the additional premium would amount to unjust enrichment.
Contentions raised by the respondents
The Counsels appearing on behalf of the original allottees contended that their clients had not given an undertaking to pay additional compensation. The term 'modification' in the lease deed was restricted to clerical error. It was urged that the decision in Savitri Devi v. State of U.P. And Ors. was in the peculiar facts of the said case and not a decision in rem. It was submitted that unlike in Savitri Devi's matter, in the present case there is no application of Section 17 or Section 5A of the Land Acquisition Act, 1894, as the acquisitions were by private negotiations. It was argued that the YEIDA was not entitled to unilaterally change the terms of the lease deeds.
On behalf of Supertech Limited, it was pointed out that NCLT had already admitted a petition filed under Section 7 of the Insolvency and Bankruptcy Act, 2016. The individual plot owners argued that they belong to the middle class section of society and should not be asked to pay the additional premium.
Analysis by the Supreme Court
The Court noted that though in Savitri Devi (supra) the Court had noted that, the decision of the High Court in Gajraj (supra) being in the specific background of the matter would not serve as a precedent, subsequently in Apex Court in Greater Noida Industrial Development Authority v. Savitri Mohan (Dead) Through Legal Representatives And Ors. (2016) 13 SCC 210 had followed the principle laid down in Gajraj and Savitri Devi. It had held that to balance equities, higher compensation can be directed to be paid.
It was taken note of by the Apex Court, that builders (some allottees) had sent representations to YEIDA saying that the farmers' agitation had stalled their work and they were willing to accept any decision arrived at by the authorities on compensation to be paid to the farmers. It was further noted that 98.5% of the individual plot owners had voted in favour of paying the additional premium. The Court observed that once YEIDA apprised the Govt. about the same, it constituted a Committee, which after elaborate deliberation and after considering submissions made by the stakeholders, including the representatives of the allottees made the recommendation to pay additional compensation and other benefits if the landowners agree to handover physical possession of the land to YEIDA and withdraw all the litigations. The recommendation was also made in view of the stay orders pertaining to the residential plots and the threat of the acquisition getting quashed in those litigations. The Court was of the view that the recommendations so made and the consequent G.O. were in public interest. Citing APM Terminals B.V. v. Union of India And Anr. (2011) 6 SCC 756, it reiterated that change in Government policy has an overriding effect over private agreements between Governments and a private party, if the same is reasonable and in furtherance of public interest. In the present case, the Court reckoned that the policy decision of the Govt. was not only in public interest, but also in the interest of the allottees.
Case Name: Yamuna Expressway Industrial Development Authority Etc. v. Shakuntla Education And Welfare Society And Ors. Etc.
Case No. and Date: Civil Appeal Nos. 4178-4197 of 2022 | 19 May 2022
Corum: Justices L. Nageswara Rao and B.R. Gavai
Arguing Counsels -
YEIDA - Senior Advocates, Mr. C.A. Sundaram, Mr. C.U. Singh and Mr. Maninder Singh State of U.P. - Additional Advocate General, Mr. Vinod DiwakarFarmers - Advocates, Mr. Rakesh U. Upadhyay, Dr. Surat SinghAllottees - Senior Advocates, Mr. Nakul Dewan, Mr. Sunil Gupta, Mr. Ravindra Srivastava and Mr. Sanjiv Sen
Headnotes
Constitution of India- Judicial Interference in policy matters - APM Terminals B.V. v. Union of India And Anr. - consistent view of the Court - a change in policy by the Government can have an overriding effect over private treaties between the Government and a private party, if the same was in the general public interest - provide such change in policy was guided by reason - in case of conflict between public interest and personal interest, public interest should prevail - when a policy is changed by the State, which is in the general public interest, such policy would prevail over the individual rights/interests - in the present case, the policy change was not only in the larger public interest but also in the interest of the respondents/original allottees of plots of land [Paragraph Nos. 61 to 63 and 65]
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This appeal has been preferred by the
informantappellant assailing Order dated 7th May, 2020
passed by the High Court of Judicature of Rajasthan, at
Jaipur, in S.B. Criminal Miscellaneous Bail Application No.
3601/2020, whereby bail has been granted to the accused
who is the second respondent in the instant appeal, in
connection with FIR No. 407/2019 Police Station Kalwar.
2. According to the appellant, he is the son of the deceased,
Ram Swaroop Khokhar and is the person who lodged the First
Information Report being FIR No. 407/2019 on 8 th December,
2019 for the offence of murder of his father, under Section
302 of the Indian Penal Code, 1980 (hereinafter referred to as
“IPC” for the sake of brevity) against the second respondent
accused herein viz. Ram Narayan Jat.
3. The said FIR dated 8th December, 2019 had been lodged by
the appellant herein between 23:00 hrs and 23:30 hrs in the
night stating that earlier on that day, at about 16:00 hrs, his
father, aged about 55 years, was attacked by the respondent
accused, at the Lalpura Pachar bus stand, with the intention
of killing him. That the respondentaccused pinned the
deceased to the ground, sat on his chest and forcefully
strangled him, thereby causing his death. Some associates of
the respondentaccused who were present at the spot of the
incident, helped him in attacking and killing the deceased.
The informantappellant further stated in the FIR that there
was a preexisting rivalry between the respondentaccused,
his brothers namely, Arjun, Satyanarayn and Okramal and
the deceased. That the deceased had previously informed the
appellant and certain family members about such rivalry and
had communicated that he was apprehensive about his safety
owing to the same. That even on the day of the incident, the
respondentaccused along with one of his brothers, Okramal
had gone to the appellant’s house in the morning and had
abused the deceased. The report of the postmortem
examination conducted on 9th December, 2019 has recorded
that the deceased had died as a result of “asphyxia due to
ante mortem strangulation.”
4. The respondentaccused was arrested in connection with
the said FIR No. 407/2019 on 10 th December, 2019 and was
sent to judicial custody. The respondentaccused remained
under judicial custody for a period of nearly one year and five
months till he was granted bail by the High Court vide
impugned order.
5. A charge sheet was submitted by the police before the
Court of the Additional Metropolitan Magistrate, Jaipur after
conducting an investigation in relation to the aforesaid FIR.
The Additional Metropolitan Magistrate by Order dated 12 th
March, 2020 took cognizance of the offence and committed
the case to the District and Sessions Court for trial and
6. The respondentaccused had earlier preferred applications
seeking bail, under Section 437 of the Code of Criminal
Procedure, 1973 (for short, the “CrPC”) before the Court of
Jaipur, on two occasions. The same came to be rejected by
orders dated 23rd January, 2020 and 6th March, 2020. The
accused had also preferred a bail application under Section
439 of the CrPC which was rejected by the Additional
Sessions Judge No.5, Jaipur Metropolitan by order dated 12 th
March, 2020 having regard to the gravity of the offences
alleged against the accused. The respondentaccused
preferred another bail application before the High Court and
by the impugned order dated 7th May, 2020, the High Court
has enlarged him on bail. Being aggrieved by the grant of bail
to the respondentaccused, the informantappellant has
preferred the instant appeal before this Court.
7. We have heard Sri. Basant R., learned Senior Counsel for
the appellant and Sri. Aditya Kumar Choudhary, learned
Counsel for respondentaccused and have perused the
material on record.
8. Learned Senior Counsel for the appellant submitted that
the deceased had been elected in 2015 as the Deputy
Sarpanch of Mandha Bhopawaspachar village, Jhotwara
Tehsil, Jaipur, Rajasthan. That he was elected to such post
despite opposition from the accused and his family. That the
family of the accused exercised significant influence in the
village and were trying to dissuade the deceased from
contesting the election to the post of Sarpanch, to be held in
February 2020. Owing to such political enmity, the
respondentaccused along with his brothers Arjun,
Satyanarayn and Okramal had gone to the appellant’s house
in the morning on 8th December, 2019 and abused the
deceased and later on the same day, the deceased was killed.
According to the appellant, the deceased was suffering from
54% permanent physical impairment of both his legs and had
had pinned him to the ground, sat on his chest and throttled
his neck, resulting in his death.
9. Further it was urged that the High Court has not exercised
its discretion judiciously in granting bail to the respondent
accused. That the High Court has not taken into
consideration the gravity of the offence alleged and the grave
manner in which the offence was committed against a person
incapable of defending himself owing to physical impairment.
10. It was submitted that the factum of previous enmity
between the family of the accused and the deceased has not
been taken into consideration by the High Court in the
context of the allegations against the accused with regard to
the grant of bail. That the possibility of respondentaccused, a
person exercising high political influence in Bhopawaspachar
village, absconding or threatening the witnesses or the family
of the deceased, thereby having a bearing on the trial, if
released on bail could not be ruled out. That the police were
initially reluctant to even register an FIR against the
respondentaccused. In fact, the accused was arrested by the
police on 10th December, 2019 only as a result of the protest
(dharna) carried out by the family members of the deceased
outside the police station. It was contended that the accused,
being a very influential person in the village, could influence
the course of trial by tampering with evidence and influencing
the witnesses.
According to the learned Senior Counsel for the
appellant, the High Court has not assigned reasons for grant
of bail in the instant case wherein commission of a heinous
crime has been alleged against the accused, for which, the
accused, if convicted, could be sentenced to life imprisonment
or even death penalty. That the High Court in a very cryptic
order, de hors any reasoning has granted bail to the
respondentaccused. It was urged that the grant of bail to the
respondentaccused was contrary to the settled principles of
law and the judgments of this Court. It was submitted on
behalf of the appellant, who is the son of the deceased, that
this appeal may be allowed by setting aside the impugned
11. In support of his submissions, learned Senior Counsel for
the appellant placed reliance on certain decisions of this
Court which shall be referred to later.
12. Per contra, Sri. Aditya Kumar Choudhary, learned
counsel for respondentaccused submitted that the impugned
order does not suffer from any infirmity warranting any
interference by this Court. That the informantappellant has
narrated an untrue version of events in order to falsely
implicate the accused. Existence of past enmity between the
families of the deceased and the accused has been
categorically denied. It has been stated that the two families
maintained cordial relations, which fact is evidenced by the
findings in the charge sheet dated 7 th February 2020, which
records that the deceased and the respondentaccused
belonged to the same village and they used to play cards
together at the Lalpura bus stand every day since their
retirement and there is no evidence which is suggestive of
enmity between them. That the sudden scuffle between the
deceased and the accused on 8th December, 2019 was an
isolated incident and was not in connection with or in
continuation of any preexisting dispute between them.
It was further submitted that there was a considerable
and unexplained delay by the informantappellant in lodging
the FIR which is proof of the fact that the same was lodged as
an afterthought and therefore does not bring out the true
narration of facts. In support of his submission as to the false
nature of the appellent’s version of the incident, learned
counsel for the respondentaccused has relied on the
statements of the eyewitnesses to the incident stating that
there was a sudden scuffle between the deceased and the
respondentaccused on the date of the incident and the
accused throttled the neck of the deceased. After being
separated, the deceased sat on a bench in the busstop but
later became unconscious and was immediately taken to the
hospital where he died. It has further been stated by an eye
witness, namely, Mangalchand that the brothers of accused
were not present at the time of the incident.
Learned counsel for the respondentaccused referred to
Niranjan Singh and Anr. vs. Prabhakar Rajaram Kharote
and Ors, [1980] 2 SCC 559 to contend that a court deciding
a bail application should avoid elaborate discussion on merits
of the case as detailed discussion of facts at a pretrial stage
is bound to prejudice fair trial.
Further, learned counsel for the respondentaccused
submitted that the investigation in relation to FIR No.
407/2019 is complete in all respects and charge sheet has
been submitted. Therefore, there arises no question as to
influencing any witness or tampering with the evidence. That
the accused has deep roots in society and will therefore not
attempt to abscond. Also, the accused has no criminal
antecedents and the incident in question occurred as a result
of a sudden scuffle and therefore, prima facie, offence under
section 300 of the IPC has not been made out against the
accused. Hence, the impugned order granting bail to the
respondentaccused does not call for interference by this
13. Having regard to the contention of Sri. Basant R., learned
Senior Counsel for the informantappellant that the impugned
order granting bail to the respondentaccused is bereft of any
reasoning and that such order is casual and cryptic, we
extract the portion of the impugned order dated 7th May, 2020
passed by the High Court which is the “reasoning” of the
Court for granting bail, as under:
“I have considered the submissions and
perused the challan papers and the post
mortem report, but without expressing any
opinion on the merits and demerits of the case,
I deem it appropriate to enlarge the accused
petitioner on bail.
Therefore, this bail application is allowed and it
is directed that accusedpetitioner namely, Ram
Narayan Jat S/o Shri Bhinva Ram shall be
released on bail under section 439 Cr.P.C. in
connection with aforesaid FIR, provided he
furnishes a personal bond in the sum of Rs.
50,000/ together with one surety in the like
amount to the satisfaction of the concerned
Magistrate with the stipulation that he shall
comply with all the conditions laid down under
14. Before proceeding further, it would be useful to refer to
the judgments of this Court in the matter of granting bail to
a) In Gudikanti Narasimhulu & Ors. vs. Public
Prosecutor, High Court of Andhra Pradesh (1978) 1
SCC 240, Krishna Iyer, J., while elaborating on the content
of Article 21 of the Constitution of India in the context of
liberty of a person under trial, has laid down the key
factors that have to be considered while granting bail,
“7. It is thus obvious that the nature of the
charge is the vital factor and the nature of the
evidence also is pertinent. The punishment to
which the party may be liable, if convicted or
conviction is confirmed, also bears upon the
issue.
8. Another relevant factor is as to whether the
course of justice would be thwarted by him who
seeks the benignant jurisdiction of the Court to
be freed for the time being.
9. Thus the legal principles and practice
validate the Court considering the likelihood of
the applicant interfering with witnesses for the
prosecution or otherwise polluting the process
of justice. It is not only traditional but rational,
in this context, to enquire into the antecedents
of a man who is applying for bail to find
whether he has a bad record – particularly a
record which suggests that he is likely to
commit serious offences while on bail. In regard
to habituals, it is part of criminological history
that a thoughtless bail order has enabled the
bailee to exploit the opportunity to inflict
further about the criminal record of a
defendant, is therefore not an exercise in
irrelevance.”
b) In Prahlad Singh Bhati vs. NCT of Delhi & ORS –
(2001) 4 SCC 280 this Court highlighted the aspects
which are to be considered by a court while dealing with an
application seeking bail. The same may be extracted as
“The jurisdiction to grant bail has to be
exercised on the basis of well settled principles
having regard to the circumstances of each case
and not in an arbitrary manner. While granting
the bail, the court has to keep in mind the
nature of accusations, the nature of evidence in
support thereof, the severity of the punishment
which conviction will entail, the character,
behavior, means and standing of the accused,
circumstances which are peculiar to the
accused, reasonable possibility of securing the
presence of the accused at the trial, reasonable
apprehension of the witnesses being tampered
with, the larger interests of the public or State
and similar other considerations. It has also to
be kept in mind that for the purposes of
granting the bail the Legislature has used the
words "reasonable grounds for believing"
instead of "the evidence" which means the court
dealing with the grant of bail can only satisfy it
as to whether there is a genuine case against
the accused and that the prosecution will be
able to produce prima facie evidence in support
of the charge.”
c) This Court in Ram Govind Upadhyay vs. Sudarshan
Singh – (2002) 3 SCC 598, speaking through Banerjee, J.,
emphasized that a court exercising discretion in matters of
bail, has to undertake the same judiciously. In highlighting
that bail cannot be granted as a matter of course, bereft of
cogent reasoning, this Court observed as follows:
“3. Grant of bail though being a discretionary
order — but, however, calls for exercise of such
a discretion in a judicious manner and not as a
matter of course. Order for bail bereft of any
cogent reason cannot be sustained. Needless to
record, however, that the grant of bail is
dependent upon the contextual facts of the
matter being dealt with by the court and facts,
however, do always vary from case to case.
While placement of the accused in the society,
though may be considered but that by itself
cannot be a guiding factor in the matter of
grant of bail and the same should and ought
always to be coupled with other circumstances
warranting the grant of bail. The nature of the
offence is one of the basic considerations for the
grant of bail — more heinous is the crime, the
greater is the chance of rejection of the bail,
though, however, dependent on the factual
matrix of the matter.”
d) In Kalyan Chandra Sarkar vs. Rajesh Ranjan alias
Pappu Yadav & Anr. – (2004) 7 SCC 528, this Court
held that although it is established that a court
considering a bail application cannot undertake a detailed
examination of evidence and an elaborate discussion on
the merits of the case, the court is required to indicate the
prima facie reasons justifying the grant of bail.
e) In Prasanta Kumar Sarkar vs. Ashis Chaterjee
(2010) 14 SCC 496 this Court observed that where a High
Court has granted bail mechanically, the said order would
suffer from the vice of nonapplication of mind, rendering it
illegal. This Court held as under with regard to the
circumstances under which an order granting bail may be
set aside. In doing so, the factors which ought to have
guided the Court’s decision to grant bail have also been
“It is trite that this Court does not, normally,
interfere with an order passed by the High
Court granting or rejecting bail to the accused.
However, it is equally incumbent upon the High
Court to exercise its discretion judiciously,
cautiously and strictly in compliance with the
basic principles laid down in a plethora of
decisions of this Court on the point. It is well
among other circumstances, the factors to be
borne in mind while considering an application
for bail are: (i) whether there is any prima facie
or reasonable ground to believe that the
accused had committed the offence; (ii) nature
and gravity of the accusation; (iii) severity of the
punishment in the event of conviction; (iv)
danger of the accused absconding or fleeing, if
released on bail; (v) character, behaviour,
means, position and standing of the accused;
(vi) likelihood of the offence being repeated; (vii)
reasonable apprehension of the witnesses being
influenced; and (viii) danger, of course, of
justice being thwarted by grant of bail.”
f) Another factor which should guide the courts’ decision in
deciding a bail application is the period of custody.
However, as noted in Ash Mohammad vs. Shiv Raj
Singh @ Lalla Bahu & Anr. – (2012) 9 SCC 446, the
period of custody has to be weighed simultaneously with
the totality of the circumstances and the criminal
antecedents of the acused, if any. Further, the
circumstances which may justify the grant of bail are to be
considered in the larger context of the societal concern
involved in releasing an accused, in juxtaposition to
individual liberty of the accused seeking bail.
g) In Neeru Yadav vs. State of UP & Anr. – (2016) 15 SCC
422, after referring to a catena of judgments of this Court
on the considerations to be placed at balance while
deciding to grant bail, observed through Dipak Misra, J.
(as His Lordship then was) in paragraphs 15 and 18 as
“15. This being the position of law, it is clear as
cloudless sky that the High Court has totally
ignored the criminal antecedents of the
accused. What has weighed with the High Court
is the doctrine of parity. A historysheeter
involved in the nature of crimes which we have
reproduced hereinabove, are not minor offences
so that he is not to be retained in custody, but
the crimes are of heinous nature and such
crimes, by no stretch of imagination, can be
regarded as jejune. Such cases do create a
thunder and lightening having the effect
potentiality of torrential rain in an analytical
mind. The law expects the judiciary to be alert
while admitting these kind of accused persons
to be at large and, therefore, the emphasis is on
exercise of discretion judiciously and not in a
whimsical manner.
18. Before parting with the case, we may repeat
with profit that it is not an appeal for
cancellation of bail as the cancellation is not
sought because of supervening circumstances.
The annulment of the order passed by the High
Court is sought as many relevant factors have
not been taken into consideration which
includes the criminal antecedents of the
accused and that makes the order a deviant
one. Therefore, the inevitable result is the
lancination of the impugned order.”
h) In Anil Kumar Yadav vs. State (NCT of Delhi) – (2018)
12 SCC 129, this Court, while considering an appeal from
an order of cancellation of bail, has spelt out some of the
significant considerations of which a court must be
mindful, in deciding whether to grant bail. In doing so,
this Court has stated that while it is not possible to
prescribe an exhaustive list of considerations which are to
guide a court in deciding a bail application, the primary
requisite of an order granting bail, is that it should result
from judicious exercise of the court’s discretion. The
findings of this Court have been extracted as under:
“17. While granting bail, the relevant
considerations are: (i) nature of seriousness of
the offence; (ii) character of the evidence and
circumstances which are peculiar to the
accused; and (iii) likelihood of the accused
fleeing from justice; (iv) the impact that his
release may make on the prosecution witnesses,
its impact on the society; and (v) likelihood of
his tampering. No doubt, this list is not
exhaustive. There are no hardandfast rules
regarding grant or refusal of bail, each case has
to be considered on its own merits. The matter
always calls for judicious exercise of discretion
by the Court.”
i) In Ramesh Bhavan Rathod vs. Vishanbhai Hirabhai
Makwana Makwana (Koli) and Ors., (2021) 6 SCC 230
this Court after referring to a catena of judgments
emphasized on the need and importance of assigning
reasons for the grant of bail. This Court categorically
observed that a court granting bail could not obviate its
duty to apply its judicial mind and indicate reasons as to
why bail has been granted or refused. The observations of
this Court have been extracted as under:
“35. We disapprove of the observations of the
High Court in a succession of orders in the
present case recording that the Counsel for the
parties "do not press for a further reasoned
order". The grant of bail is a matter which
implicates the liberty of the Accused, the interest
of the State and the victims of crime in the
proper administration of criminal justice. It is a
well settled principle that in determining as to
whether bail should be granted, the High Court,
or for that matter, the Sessions Court deciding
an application Under Section 439 of the Code of
Criminal Procedure would not launch upon a
detailed evaluation of the facts on merits since a
criminal trial is still to take place. These
observations while adjudicating upon bail would
also not be binding on the outcome of the trial.
But the Court granting bail cannot obviate its
duty to apply a judicial mind and to record
reasons, brief as they may be, for the purpose of
deciding whether or not to grant bail. The
consent of parties cannot obviate the duty of the
High Court to indicate its reasons why it has
either granted or refused bail. This is for the
reason that the outcome of the application has a
significant bearing on the liberty of the Accused
on one hand as well as the public interest in the
due enforcement of criminal justice on the other.
The rights of the victims and their families are at
stake as well. These are not matters involving the
private rights of two individual parties, as in a
civil proceeding. The proper enforcement of
criminal law is a matter of public interest. We
must, therefore, disapprove of the manner in
which a succession of orders in the present
batch of cases has recorded that counsel for the
"respective parties do not press for further
reasoned order". If this is a euphemism for not
recording adequate reasons, this kind of a
formula cannot shield the order from judicial
scrutiny.
36. Grant of bail Under Section 439 of the Code
of Criminal Procedure is a matter involving the
exercise of judicial discretion. Judicial discretion
in granting or refusing bailas in the case of any
other discretion which is vested in a court as a
judicial institutionis not unstructured. The duty
to record reasons is a significant safeguard
which ensures that the discretion which is
entrusted to the court is exercised in a judicious
manner. The recording of reasons in a judicial
order ensures that the thought process
underlying the order is subject to scrutiny and
that it meets objective standards of reason and
justice.”
j) Recently in Bhoopendra Singh vs. State of Rajasthan
& Anr. (Criminal Appeal No. 1279 of 2021), this Court
made observations with respect to the exercise of appellate
power to determine whether bail has been granted for valid
reasons as distinguished from an application for
cancellation of bail. i.e. this Court distinguished between
setting aside a perverse order granting bail visavis
cancellation of bail on the ground that the accused has
misconducted himself or because of some new facts
requiring such cancellation. Quoting Mahipal vs. Rajesh
Kumar (2020) 2 SCC 118, this Court observed as
“16. The considerations that guide the power of
an appellate court in assessing the correctness
of an order granting bail stand on a different
footing from an assessment of an application for
the cancellation of bail. The correctness of an
order granting bail is tested on the anvil of
whether there was an improper or arbitrary
exercise of the discretion in the grant of bail.
The test is whether the order granting bail is
perverse, illegal or unjustified. On the other
hand, an application for cancellation of bail is
generally examined on the anvil of the existence
of supervening circumstances or violations of
the conditions of bail by a person to whom bail
has been granted.”
k) Learned counsel for the accusedrespondent has relied
upon the decision of this Court in Myakala
Dharmarajam and Ors. vs. The State of Telangana
and Ors. – (2020) 2 SCC 743 to contend that elaborate
reasons need not be assigned for the grant of bail. What is
of essence is that the record of the case ought to have
been perused by the court granting bail. The facts of the
said case are that a complaint was lodged against fifteen
persons for offences under Sections 148, 120B, 302 read
with Section 149 of the Indian Penal Code, 1860. The
accused therein moved an application seeking bail before
the Principal Sessions Judge, who, after perusal of the
case diary, statements of witnesses and other connected
records, released the accused on bail through an order
which did not elaborately discuss the material on record.
The High Court cancelled the bail bond on the ground that
the Principal Sessions Judge had not discussed the
material on record in the order granting bail. In an appeal
preferred by the accused before this Court, the order
granting bail was restored and the following observations
were made as to the duty of the court to record reasons
and discuss the material on record before granting bail:
“10. Having perused the law laid down by this
Court on the scope of the power to be exercised
in the matter of cancellation of bails, it is
necessary to examine whether the order passed
by the Sessions Court granting bail is perverse
and suffers from infirmities which has resulted
in the miscarriage of justice. No doubt, the
Sessions Court did not discuss the material on
record in detail, but there is an indication from
the orders by which bail was granted that the
entire material was perused before grant of bail.
It is not the case of either the complainant
Respondent No. 2 or the State that irrelevant
considerations have been taken into account by
the Sessions Court while granting bail to the
Appellants. The order of the Sessions Court by
which the bail was granted to the Appellants
cannot be termed as perverse as the Sessions
Court was conscious of the fact that the
investigation was completed and there was no
likelihood of the Appellant tampering with the
evidence.
11. The petition filed for cancellation of bail is
both on the grounds of illegality of the order
passed by the Sessions Court and the conduct
of the Appellants subsequent to their release
after bail was granted. The complaint filed by
one Bojja Ravinder to the Commissioner of
Police, Karimnagar is placed on record by
Respondent No. 2. It is stated in the complaint
that the Appellants were roaming freely in the
village and threatening witnesses. We have
perused the complaint and found that the
allegations made therein are vague. There is no
mention about which Accused out of the 15
indulged in acts of holding out threats to the
witnesses or made an attempt to tamper with
the evidence.
12. After considering the submissions made on
behalf of the parties and examining the material
on record, we are of the opinion that the High
Court was not right in cancelling the bail of the
Appellants. The orders passed by the Sessions
Judge granting bail cannot be termed as
perverse. The complaint alleging that the
Appellants were influencing witnesses is vague
and is without any details regarding the
involvement of the Appellants in threatening the
witnesses. Therefore, the Appeals are allowed
and the judgment of the High Court is set
aside.”
However, we are of the view that the said decision is
not applicable to the facts of the instant case for the
Firstly, this Court in the aforecited decision restored
the order granting bail to the accused on the ground that
although no discussion was made by the Sessions Court as
to the material on record, in the order granting bail, it was
apparent in the order of the Sessions Court whereby bail
was granted, that the decision to grant bail was arrived at
after perusal of the entire material on record. While the
material may not have been specifically referred to, the
order granting bail was indicative of the fact that it had
been arrived at after thorough consideration thereof.
However, in the instant case, no such indication can be
observed in the impugned orders of the High Court which
would be suggestive of the fact that the material on record
was perused before deciding to grant bail.
Secondly, the case referred to by the accused
concerned an offence which was allegedly committed by
fifteen persons. The complainant therein had not
specifically assigned roles to each of such fifteen persons. It
was thus found that the allegations being vague, no prima
facie case could be made out, justifying the grant of bail to
the accused therein. However, in the instant case, only one
accused has been named by the appellantinformant and
the role attributed to him is specific. Therefore, the facts of
the case relied upon, being significantly different from the
one before us, we find that the judgment relied upon by the
learned counsel for the respondentaccused would be of no
assistance to his case.
l) The most recent judgment of this Court on the aspect of
application of mind and requirement of judicious exercise
of discretion in arriving at an order granting bail to the
accused is in the case of Brijmani Devi vs. Pappu
Kumar and Anr. – Criminal Appeal No. 1663/2021
disposed of on 17th December, 2021, wherein a three
Judge Bench of this Court, while setting aside an
unreasoned and casual order of the High Court granting
bail to the accused, observed as follows:
“While we are conscious of the fact that
liberty of an individual is an invaluable right, at
the same time while considering an application
for bail Courts cannot lose sight of the serious
nature of the accusations against an accused
and the facts that have a bearing in the case,
particularly, when the accusations may not be
false, frivolous or vexatious in nature but are
supported by adequate material brought on
record so as to enable a Court to arrive at a
prima facie conclusion. While considering an
application for grant of bail a prima facie
conclusion must be supported by reasons and
must be arrived at after having regard to the
vital facts of the case brought on record. Due
consideration must be given to facts suggestive
of the nature of crime, the criminal antecedents
of the accused, if any, and the nature of
punishment that would follow a conviction vis
àvis the offence/s alleged against an accused.”
15. On the aspect of the duty to accord reasons for a decision
arrived at by a court, or for that matter, even a quasijudicial
authority, it would be useful to refer to a judgment of this
Court in Kranti Associates Private Limited & Anr. vs.
Masood Ahmed Khan & Ors. – (2010) 9 SCC 496, wherein
after referring to a number of judgments this Court
summarised at paragraph 47 the law on the point. The
relevant principles for the purpose of this case are extracted
“(a) Insistence on recording of reasons is meant
to serve the wider principle of justice that
justice must not only be done it must also
appear to be done as well.
(b) Recording of reasons also operates as a
valid restraint on any possible arbitrary
exercise of judicial and quasijudicial or even
administrative power.
(c) Reasons reassure that discretion has been
exercised by the decisionmaker on relevant
grounds and by disregarding extraneous
considerations.
(d) Reasons have virtually become as
indispensable a component of a decision
making process as observing principles of
natural justice by judicial, quasijudicial and
even by administrative bodies.
(e) The ongoing judicial trend in all countries
committed to rule of law and constitutional
governance is in favour of reasoned decisions
based on relevant facts. This is virtually the
lifeblood of judicial decisionmaking justifying
the principle that reason is the soul of justice.
(f) Judicial or even quasijudicial opinions
these days can be as different as the judges and
authorities who deliver them. All these
decisions serve one common purpose which is
to demonstrate by reason that the relevant
factors have been objectively considered. This is
important for sustaining the litigants' faith in
the justice delivery system.
(g) Insistence on reason is a requirement for
both judicial accountability and transparency.
(h) If a judge or a quasijudicial authority is not
candid enough about his/her decisionmaking
process then it is impossible to know whether
the person deciding is faithful to the doctrine of
precedent or to principles of incrementalism.
(i) Reasons in support of decisions must be
cogent, clear and succinct. A pretence of
reasons or “rubberstamp reasons” is not to be
equated with a valid decisionmaking process.
(j) It cannot be doubted that transparency is
the sine qua non of restraint on abuse of
judicial powers. Transparency in decision
making not only makes the judges and
decisionmakers less prone to errors but also
makes them subject to broader scrutiny. (See
David Shapiro in Defence of Judicial
(k) In all common law jurisdictions judgments
play a vital role in setting up precedents for the
future. Therefore, for development of law,
requirement of giving reasons for the decision is
of the essence and is virtually a part of “due
process”.
Though the aforesaid judgment was rendered in the
context of a dismissal of a revision petition by a cryptic order
by the National Consumer Disputes Redressal Commission,
reliance could be placed on the said judgment on the need to
give reasons while deciding a matter.
16. The Latin maxim “cessante ratione legis cessat ipsa lex”
meaning “reason is the soul of the law, and when the reason
of any particular law ceases, so does the law itself”, is also
17. We have extracted the relevant portions of the impugned
order above. At the outset, we observe that the extracted
portions are the only portions forming part of the “reasoning”
of the High court while granting bail. As noted from the
aforecited judgments, it is not necessary for a Court to give
elaborate reasons while granting bail particularly when the
case is at the initial stage and the allegations of the offences
by the accused would not have been crystalised as such.
There cannot be elaborate details recorded to give an
impression that the case is one that would result in a
conviction or, by contrast, in an acquittal while passing an
order on an application for grant of bail. However, the Court
deciding a bail application cannot completely divorce its
decision from material aspects of the case such as the
allegations made against the accused; severity of the
punishment if the allegations are proved beyond reasonable
doubt and would result in a conviction; reasonable
apprehension of the witnesses being influenced by the
accused; tampering of the evidence; the frivolity in the case of
the prosecution; criminal antecedents of the accused; and a
prima facie satisfaction of the Court in support of the charge
against the accused.
18. Ultimately, the Court considering an application for bail
has to exercise discretion in a judicious manner and in
accordance with the settled principles of law having regard to
the crime alleged to be committed by the accused on the one
hand and ensuring purity of the trial of the case on the other.
19. Thus, while elaborate reasons may not be assigned for
grant of bail or an extensive discussion of the merits of the
case may not be undertaken by the court considering a bail
application, an order de hors reasoning or bereft of the
relevant reasons cannot result in grant of bail. In such a case
the prosecution or the informant has a right to assail the
order before a higher forum. As noted in Gurcharan Singh
vs. State (Delhi Admn.) 1978 CriLJ 129, when bail has
been granted to an accused, the State may, if new
circumstances have arisen following the grant of such bail,
approach the High Court seeking cancellation of bail under
section 439 (2) of the CrPC. However, if no new circumstances
have cropped up since the grant of bail, the State may prefer
an appeal against the order granting bail, on the ground that
the same is perverse or illegal or has been arrived at by
ignoring material aspects which establish a primafacie case
against the accused.
20. In view of the aforesaid discussion, we shall now consider
the facts of the present case. The allegations against
respondentaccused as well as the contentions raised at the
Bar have been narrated in detail above. On a consideration of
the same, the following aspects of the case would emerge:
a) The allegation against the respondentaccused is under
section 302 of the IPC with regard to the murder of the
deceased Ram Swaroop Khokhar, the father of the
informantappellant who was a disabled person. Thus, the
offence alleged against the respondentaccused is of a
grave nature.
b) The accusation against the accused is that he overpowered
the deceased who was suffering from impairment of both
his legs, pinned him to the ground, sat on him and
throttled his neck. As per the postmortem report, the cause
of death was antemortem strangulation.
c) It is also the case of the appellant that the respondent
accused is a person exercising significant political
influence in the Bhopawaspachar village and that owing to
the same, the informant found it difficult to get an FIR
registered against him. That the accused was arrested only
following a protest outside a police station demanding his
arrest. Thus, the possibility of the accused threatening or
otherwise influencing the witnesses, if on bail, cannot be
ruled out.
d) That the respondentaccused had earlier preferred
applications seeking bail, under section 437 of the CrPC
before the Court of the Additional Metropolitan Magistrate,
Jaipur, on two occasions. The same came to be rejected by
orders dated 23rd January, 2020 and 6th March, 2020. The
accused had also preferred a bail application under section
439 of the CrPC which was rejected by the Additional
Sessions Judge, Jaipur Metropolis by order dated 12 th
March, 2020 having regard to the gravity of the offences
alleged against the accused.
e) The High Court in the impugned order dated 7 th May, 2020
has not considered the aforestated aspects of the case in
the context of the grant of bail.
21. Having considered the aforesaid facts of the present case
in light of the judgments cited above, we do not think that
this case is a fit case for grant of bail to the respondent
accused, having regard to the seriousness of the allegations
against him. Strangely, the State of Rajasthan has not filed
any appeal against the impugned order.
22. The High Court has lost sight of the aforesaid material
aspects of the case and has, by a very cryptic and casual
order, de hors coherent reasoning, granted bail to the
accused. We find that the High Court was not right in
allowing the application for bail filed by the respondent
accused. Hence the impugned order dated 7 th May, 2020 is
set aside. The appeal is allowed.
23. The respondent accused is on bail. His bail bond stands
cancelled and he is directed to surrender before the
concerned jail authorities within a period of two weeks from
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The Supreme Court held that bail cannot be granted by a cryptic and causal order without considering the material aspects of the case. The Apex Court further clarified that even if no new circumstances have developed after the grant of bail, the State is entitled to seek cancellation of bail, if it had been granted ignoring material aspects which establish a prima facie case...
The Supreme Court held that bail cannot be granted by a cryptic and causal order without considering the material aspects of the case. The Apex Court further clarified that even if no new circumstances have developed after the grant of bail, the State is entitled to seek cancellation of bail, if it had been granted ignoring material aspects which establish a prima facie case against the accused.
A Bench comprising Justices M.R. Shah and B.V. Nagarathna allowed the appeal filed challenging the order of the Rajasthan High Court granting bail to the accused without assigning reasons for the same. The portion in the bail order containing the 'reasoning', extracted by the Supreme Court is as under:
"I have considered the submissions and perused the challan papers and the post mortem report, but without expressing any opinion on the merits and demerits of the case, I deem it appropriate to enlarge the accused petitioner on bail.
Therefore, this bail application is allowed and it is directed that accused petitioner namely, Ram Narayan Jat S/o Shri Bhinva Ram shall be released on bail under section 439 Cr.P.C. in connection with aforesaid FIR, provided he furnishes a personal bond in the sum of Rs. 50,000/ together with one surety in the like amount to the satisfaction of the concerned Magistrate with the stipulation that he shall comply with all the conditions laid down under Section 437 (3) Cr.P.C."
Taking exception to the HC order, the Supreme Court observed:
"...while elaborate reasons may not be assigned for grant of bail or an extensive discussion of the merits of the case may not be undertaken by the court considering a bail application, an order de hors reasoning or bereft of the relevant reasons cannot result in grant of bail. In such a case the prosecution or the informant has a right to assail the order before a higher forum".
Factual Background
The appellant, the son of the deceased lodged the FIR on 08.12.2019 against the accused for offence punishable under Section 302 of the Indian Penal Code. As per the FIR, on 08.12.2019 at around 4P.M. the accused assisted by his associates attacked and pinned the appellant's father to the ground and strangled him. The appellant has attributed the murder to a pre-existing enmity between the the accused and his brothers and the deceased. The post-mortem report recorded that the death was caused by asphyxiation. The accused was arrested on 10.12.2019 and was sent to judicial custody. The charge sheet was filed by the police before the Additional Metropolitan Magistrate, who took cognisance of the offence on 12.03.2020 and committed the case to the District and Sessions Court for trial. In the meanwhile, the accused filed applications seeking bail before the Additional Metropolitan Magistrate which were rejected by orders dated 23.01.2020 and 06.03.2020. The application for bail filed under Section 439 of the CrPC before the Additional Sessions Judge was rejected by order dated 12.03.2020. Subsequently, the accused preferred an application before the High Court which was allowed on 07.05.2020, enlarging him on bail.
Contentions raised by the appellant
Senior Advocate, Mr. R. Basant appearing on behalf of the appellant submitted that the deceased was elected as the Deputy Sarpanch of Mandha Bhopawaspachar village, Jhotwara Tehsil, Jaipur in 2015 despite opposition from the accused and his family. The deceased was also being dissuaded by the accused and his brothers from contesting the elections to be held in 2020 and for the said purpose the deceased was visited by the accused and his brother on the morning of the fateful day. The Court was further apprised that the deceased was a person with disability. Mr. Basant emphasised that the High Court had not considered crucial aspects of the case:
a. The gravity of the offence in view of the limitation of the deceased in defending himself.
b. Previous enmity amongst the accused and his brothers and the deceased.
c. The possibility of the accused, a person with political influence, absconding or threatening the witnesses or tampering with evidence.
d. The accused was so influential that initially police were hesitant to register FIR.
e. The accused was arrested only after the family of the deceased protested outside the police station.
Moreover, it was contended that the High Court had granted bail in a cryptic manner without assigning any cogent reason in derogation of trite law, that too for an heinous offence punishable by either life imprisonment or death penalty.
Contentions raised by the accused
Advocate, Mr. Aditya Kumar Choudhary appearing on behalf of the accused denied the existence of past enmity asserted by the appellant. On the contrary, he submitted that the two families were cordial towards each other as had been recorded in the charge sheet. It was clarified that the fight between the deceased and the accused was a one off event. The registration of the FIR after considerable delay was alleged to have been an afterthought. Putting emphasis on the statement of the eye-witness, Mr. Choudhary argued that on the fateful day there was a sudden scuffle between the accused and the deceased as a result of which the deceased became unconscious and died later when he was taken to the hospital. Relying on Niranjan Singh And Anr. v. Prabhakar Rajaram Kharote (1980) 2 SCC 559 and Myakala Dharmarajan And Ors. v. The State of Telangana And Ors. (2020) 2 SCC 743, the Mr. Choudhary contended that a Court deciding bail application at a pre-trial stage ought not to elaborately discuss merits of the case as it would prejudice the trial. Controverting Mr. Basant's submissions with respect to influencing witnesses and tampering evidence, he argued that the charge sheet had already been filed and therefore such questions do not arise. It was further submitted that the accused was not at flight risk; he had no criminal antecedent and as prima facie offence under Section 300 IPC had not been made out, the High Court was justified in granting bail.
Analysis by the Supreme Court
Material aspects to be considered in bail matters
Placing reliance on a catena of judgments including Gudikanti Narasimhulu And Ors. v. Public Prosecutor, High Court of Andhra Pradesh (1978) 1 SCC 240, Prahlad Singh Bhati v. NCT of Delhi And Ors. (2001) 4 SCC 280, Anil Kumar Yadav v. State of NCT of Delhi (2018) 12 SCC 129, Ash Mohammad v. Shiv Raj Singh @ Lalla Bahu And Anr. (2012) 9 SCC 446 and Neeru Yadav v. State of U.P. And Anr. (2016) 15 SCC 422, the Court observed that the court granting bail ought to consider material aspects of the matter, like -
a. the allegations made against the accused;
b. severity of the punishment if the allegations are proved beyond reasonable doubt and would result in a conviction;
c. reasonable apprehension of the witnesses being influenced by the accused; tampering of the evidence;
d. the frivolity in the case of the prosecution;
e. criminal antecedents of the accused; and
f. a prima facie satisfaction of the Court in support of the charge against the accused,
Cogent Reason to be assigned in Bail Orders
Citing Ram Govind Upadhyay v. Sudarshan Singh (2002) 3 SCC 598, Kalyan Chandra Sarkar v. Rajesh Rajan alias Pappu Yadav And Anr. (2004) 7 SCC 528, Prasanta Kumar Sarkar v. Ashis Chaterjee (2010) 14 SCC 496, Ramesh Bhavan Rathos v. Vishanbhai Hirabhai Makwana (Koli) And Ors. (2021) 6 SCC 230, Bhoopendra Singh v. State of Rajasthan Crl. A. No. 1279 of 2021, Brijmani Devi v. Pappu Kumar And Anr. Criminal Appeal No. 1663 of 2021 and Kranti Associates Private Limited And Anr. v. Masood Ahmed Khan And Ors. (2010) 9 SCC 496, the Court opined that a court exercising discretion in a matter of bail ought not to do so mechanically, but judiciously by indicating the prima facie reasons for the same. The Court noted -
"The Latin maxim "cessante ratione legis cessat ipsa lex" meaning "reason is the soul of the law, and when the reason of any particular law ceases, so does the law itself", is also apposite."
Case Law relied on by the accused distinguished
The ratio in Myakala Dharmarajam and Ors. v. The State of Telangana And Ors. (2020) 2 SCC 743 relied upon by the accused to argue that elaborate reasons are not required to be assigned was distinguished by the Court -
a. Although there was no elaborate discussion, the bail order reflected that the entire material on record had been perused while granting bail.
b. The offence was alleged to have been committed by 15 people and no one was assigned specific roles. They were merely vague allegations.
Conclusion
It was observed that though a Court granting bail at a pre-trial stage ought not to provide elaborate reasons or extensively discuss on the merits, it is bound to consider material aspects of the case and provide reasons justifying the grant of bail.
"Ultimately, the Court considering an application for bail has to exercise discretion in a judicious manner and in accordance with the settled principles of law having regard to the crime alleged to be committed by the accused on the one hand and ensuring purity of the trial of the case on the other."
Observing that the State can seek cancellation of bail before the High Court under Section 439(2) of the CrPC upon changed circumstances, the Court clarified that a perverse bail order could be assailed by the State if material aspects establishing prima facie case against the accused were ignored, even in the absence of any changes in circumstances.
Ultimately, the Court noted the relevant material aspects of the case, which were not considered by the High Court while granting bail -
a. The allegation against the accused was of a grave nature.
b. The accused overpowered the deceased who was a person with disability and the post mortem report reflected that the cause of death was ante-mortem strangulation.
c. The politically connected accused influenced the police not to register the FIR and therefore the possibility of influencing witnesses cannot be ruled out.
d. The bail applications before the Additional Metropolitan Magistrate and the Additional Sessions judge were rejected, the last being on the ground of the gravity of the offence.
The Court expressed its displeasure that the State had not filed an appeal against the perverse bail order. Cancelling the bail bonds, the Court directed the accused to surrender before the concerned jail authorities within two weeks from the date of order.
Case Name: Manoj Kumar Khokhar v. State of Rajasthan And Anr.
Case No. and Date: Criminal Appeal No.36 of 2022 | 11 Jan 2022
Corum: Justices M.R. Shah and B.V. Nagarathna
|
1. This appeal arises out of an unfortunate dispute between the
appellant no.1 - wife and the respondent no.1 - husband over the custody of
their minor male child Aaditya Kiran. This appeal takes an exception to the
Judgment and order dated 31 st August 2021 passed by the learned Single
Judge of the Punjab and Haryana High Court in a petition for habeas
corpus filed by the respondent no.1 herein for seeking custody of the minor.
2. The respondent no.1 and the appellant no.1 were married in New
York, United States of America (for short “USA”) on 13 th January 2011. The
child was born in USA on 21st January 2016. Thus, the child is a citizen of
USA by birth and is holding a USA passport. Unfortunately, the child was
diagnosed with hydronephrosis which required surgery. It is the case of the
respondent no.1 that as they were not in a position to secure an
appointment of a doctor in USA for surgery, it was agreed between the
appellant no.1 and the respondent no.1 that the child will undergo surgery
at Max Hospital, Saket. As the child is a citizen of USA, consent for
international travel with one legal guardian was executed by and between
the appellant no.1 and the respondent no.1 on 4 th February 2019. The
consent was recorded in the said document to enable the child to travel with
the mother – the appellant no.1 to India. The consent was executed for the
period between 5th February 2019 to 26th September 2019. The consent
document recorded that the child will be leaving USA on 5 th February 2019
and will be returning back to USA on 26 th September 2019. It was further
recorded that any changes to this plan shall be discussed and consented to
by both the parents. A certificate dated 17 th September 2019 issued by Dr.
Anurag Krishna, Director, Paediatrics and Paediatric Surgery of Max
Hospital, Saket, New Delhi records that the child underwent a surgery on
14th March 2019. It records that he had examined the child on 12 th July
2019 when he found that the child was doing well. Dr. Anurag Krishna has
recorded that the child needs to be reviewed 6 to 7 months post-surgery
along with a fresh ultrasound and renal scan.
3. It is the case of the respondent no.1 that at the time of surgery, he
flew down to India. After the surgery, he returned to USA for his work. It is
brought on record that the respondent no.1 has a status of permanent
resident in USA which is valid up to 16 th August 2031. According to the
case of the respondent no.1, the appellant no.1 violated the international
travel consent by not allowing the minor child to come back to USA by 26 th
September 2019. According to the respondent no.1, the appellant no.1
detained the minor in her illegal custody in India. Therefore, the respondent
no.1 filed a petition on 30th January 2020 before the Circuit Court of Benton
County, Arkansas, USA, which according to the respondent no.1 is the
Court of competent jurisdiction. The petition was filed for seeking primary
care, control, and custody of the minor on account of his wrongful detention
outside USA. On 3rd February 2020, the Circuit Court passed an interim
order granting primary care, custody, and control of the minor child to the
respondent no.1 and directed the appellant no.1 to return the child to the
respondent no.1. In the petition for habeas corpus filed by the respondent
no.1 in the High Court, he has stated that though a copy of the said order of
the Circuit Court was forwarded to the appellant no.1 by email, she
continues to detain the minor child in India. In the circumstances, the
respondent no.1 filed a petition seeking a writ of habeas corpus in the High
Court of Punjab and Haryana and prayed for a direction to the State of
Haryana to secure the release of the minor child from the illegal custody of
the present appellants. The appellant nos.2 and 3 are the parents of the
appellant no.1 who are residents of Gurgaon in Haryana. At present, the
appellant no.1 is staying with them. Various interim orders were passed in
the said petition from time to time. The High Court appointed a learned
counsel as amicus curiae, who interacted with the appellant no.1 as well as
the respondent no.1 on phone/WhatsApp calls with a view to ascertain their
respective stands. He also submitted a report. By the impugned Judgment
and order, the writ petition filed by the respondent no.1 was allowed. In
paragraph 55, the High Court issued following directions: -
“(i) respondent No.2 is directed to return to USA
along with minor child on or before 30.09.2021;
(ii) in case respondent No.2 opts to return to USA,
the petitioner shall bear the travel and incidental
expenses of respondent No.2 and the minor child
for return to and also the expenses for their stay
in USA till decision of the custody petition and the
petitioner shall not initiate any criminal/contempt
proceedings against respondent No.2 for inter
(iii) if respondent No.2 fails to comply with
aforesaid direction, respondent No.2 shall hand
over custody of the minor child and his passport
to the petitioner on 01.10.2021 or on such other
(iv) in case respondent No.2 fails to hand over
custody of the minor child and her passport to the
petitioner on 01.10.2021 or on such other date as
may be agreed to by the petitioner, respondent
No.1 shall take over the custody and passport of
the minor child from respondent No.2 and hand
over custody and passport of the minor child to
the petitioner on such date as may be agreed to
(v) on custody of the minor child and his passport
being handed over to the petitioner, the petitioner
shall be entitled to take the minor child to USA;
(vi) in case passport of the minor child is not
handed over to the petitioner or respondent No.1
by respondent No.2 on the ground of loss/damage
etc., the petitioner shall be entitled to get the
duplicate passport issued from the concerned
(vii) on such return of the minor child to USA,
either of the parties shall be at liberty to revive the
proceedings before US Court for appropriate
orders regarding appointment of guardian and
grant of custody of the minor child.”
4. Further directions were issued in paragraphs 57 and 58 by the High
Court based on a decision of this Court in the case of Yashita Sahu v.
State of Rajasthan1. Paragraphs 57 and 58 read thus:-
Sahu's case (supra) it is ordered that till filing of
any such application by either of the parties for
revival of the proceedings before the US Court
and passing of any interim/final order by the US
Court of competent jurisdiction on the same,
respondent No.2 shall be entitled to visit the child
and have his temporary custody from 10:00 a.m.
between the petitioner and respondent No.2 if
respondent No.2 returns to and stays in USA or
make video calls to the minor child for about half
respondent No.2 does not return to and stay in
USA and in such an eventuality, the petitioner
parents/other relatives once in a year.
58. However, nothing in this order shall prevent
the parties from adopting any joint parenting plan
minor child such as by arranging admission of
the minor child in some school with hostel facility
and by visiting her during holidays and taking her
custody during vacation as may be permitted by
the school authorities. It is also further clarified
that the observations in the present order have
present writ petition and shall not bind any Court
involving question of custody or welfare of the
child.”
5. As per the assurance recorded in the order dated 24th September
2021 of this Court, the respondent no.1 has secured a USA visa to the
appellant no.1 of the B-2 non-immigrant category. As can be seen from the
order dated 24th November 2021, this Court made an attempt to ascertain
whether an amicable solution could be found to the dispute. Both sides
were directed to submit their suggestions for the amicable resolution of the
dispute. However, an amicable resolution of the dispute was not possible.
6. The learned counsel appearing for the appellants submitted that even
after surgery, the child needs constant medical care. She submitted that
any lapses could be extremely fatal for the life of the minor. She submitted
that the doctor who operated upon the child has advised a very strict care
regime for the child. She pointed out that constant monitoring of his health
is required. Even the water intake of the child has to be carefully
monitored. She pointed out that even the appellant no.3, the grandmother
of the child is taking care of the minor child and there is a family support
available as she is residing with her parents. She pointed out that a
detailed affidavit has been filed by the appellant no.1 indicating reasons
why in the interest of the child he should be in India till he is 9-10 years old.
7. Relying upon the material on record, she submitted that even the
respondent no.1 constantly wished to settle down in India and therefore, he
purchased more and more land in India and especially in Bangalore. The
learned counsel pointed out that it was the respondent no.1 who himself
selected a pre-school for the child while he was in India in April, 2019. She
submitted that the respondent no.1 since the time he got married to the
appellant no.1 made plans to move back to India permanently and was
planning to construct a farm house and a residential house in Bangalore.
She submitted that it was the desire of the respondent no.1 that the
appellant no.1 should work in India. Accordingly, property was bought in
Bangalore where the mother of the respondent no.1 resides. The learned
counsel pointed out that after emails dated 25 th December 2019 and 14th
January 2020 were forwarded by the appellant no.1 to return the money to
the appellant no.2 taken from him for land purchase in Bangalore, the
aforesaid petition was filed by the respondent no.1 in the Court at Arkansas
8. In the written submissions of the appellants, there are various factors
pointed out, such as the temperamental nature of the respondent no.1 and
the conduct of the respondent no.1. The learned counsel submitted that
this Court has held that principles of autonomy must inure in the individual
against non-state persons as well. She submitted that in custody cases, a
woman cannot be completely eliminated in the name of the welfare of the
child. She urged that the woman cannot be deprived of her rights. She
submitted that in any case, the appellant no.1 is the primary/sole caretaker
of the child. Relying upon the decisions of this Court in Smt. Surinder
Kaur Sandhu v. Harbax Singh Sandhu and Another2, Elizabeth
Dinshaw (Mrs.) v. Arvand M. Dinshaw and Another 3 and Nithya Anand
Raghavan v. State (NCT of Delhi) and Another4, the learned counsel
submitted that there is a statutory presumption in favour of the appellant
no.1 under the doctrine of tender years. She submitted that this doctrine
has been upheld in the aforesaid three cases and this Court asserted
maternal preference as found under Section 6 of the Hindu Minority and
Guardianship Act, 1956 (the Act of 1956). She submitted that the appellant
no.1 is the primary caregiver and therefore, it is in the child’s best interest to
retain the custody with the appellant no.1.
9. The learned counsel submitted that to compel the appellant no.1 who
is the primary caregiver to return to USA under the rule of “best interest of
child” will amount to an invasion of her fundamental right of autonomy which
is a part of the right of privacy guaranteed under Article 21 of the
Constitution of India. By adopting a summary procedure, such invasion on
the rights of the appellant no.1 cannot be made. She submitted that the
welfare of the child will mean balancing the interests of all in the family of
the child. The mother being the primary caregiver must be kept in mind by
the Court and her legal rights must be respected and protected by the
Court. She submitted that the appellant no.1 is a fit mother and, in
patriarchy, some special care is needed to counter the dominant presence
of the father of the child. The learned counsel extensively relied upon an
Article by Mr.John Ekelaar under the title “Beyond the welfare principle”.
She submitted that the best interest of the child is the primary principle
which also means the welfare of each member of the family of the child.
She submitted that the matter in patriarchy becomes also a matter of
gender rights which is a constitutional issue covered under Article 14 read
with Article 15(3) of the Constitution of India. She submitted that the
constitutional provisions recognize that women form a separate category
who need to be enabled by the law.
10. She submitted that the citizenship of a child has nothing to do with the
welfare principle. A child may be a citizen of any country, but if the
competent Court finds that it is in the best interest of the child that he is
brought up in India, the child should be permitted to stay in India. The
learned counsel invited our attention to a decision of this Court in the case
of Kanika Goel v. the State of Delhi through Station House Officer and
another5 as well as a decision in the case of Prateek Gupta v. Shilpi
Gupta and others6. She submitted that in these two cases, though the
child was a foreign citizen, it was found to be in the best interest that the
child remains in India to continue with the prime caregiver. Her submission
is that in this case, the child can continue to be an American citizen and
stay in India on the basis of an OCI card. She submitted that eventually,
the child can make his own choice at the age of 18.
11. The learned counsel submitted that the decisions in the cases of
Nithya (supra) and Kanika (supra) are binding precedents as the same are
rendered by the Benches consisting of three Hon’ble Judges. She
submitted that the High Court has completely ignored the binding
precedents. She submitted that the learned Judge of the High Court cannot
decide the case based on his subjective personal opinion. She submitted
that it is necessary that clear and consistent law be followed even in the
custody matters and judicial discretion is not used to subvert the evolving
12. The learned counsel submitted that in this case, a writ of habeas
corpus was not maintainable as the custody of the appellant no.1 is not
illegal. She pointed out that in the cases of Nithya (supra) and Kanika
(supra), directions were issued to the Family Court to complete the hearing
of custody matters within a time frame. The learned counsel submitted that
in the cases of Yashita (supra) and Lahari Sakhamuri v. Sobhan Kodali7,
an exception was made to the rule laid down, in the cases of Nithya (supra)
and Kanika (supra) as in these two cases, the mothers had submitted to
the jurisdiction of the Court in USA.
13. She reiterated that in the name of welfare and interest of the child, the
welfare of one of the parents cannot be eliminated altogether. The learned
counsel submitted that the appellant no.1 cannot be compelled to go back
to USA. Her submission is that if the child is placed in the custody of the
respondent no.1 on the ground that the appellant no.1 is not interested in
going to USA, the child will be reduced to a chattel.
14. The learned counsel submitted that to refuse a woman the right of
mothering is refusing to acknowledge and respect a very core biological
and social identity. She submitted that a custody dispute cannot be decided
purely in the facts of each case. She submitted that the law laid down in
the case of Nithya (supra) has to be followed as recently done by Bombay
High Court in the case of Chandima Janaka Wijesinghe v. Union of India
and others in Crl. Writ Petition No. 547 of 2021.
15. The learned counsel submitted that the issue of medical evaluation of
the child requires a detailed hearing. She submitted that the visa granted to
the appellant no.1 is only a tourist visa which would entitle her to visit USA
only for specific enlisted reasons. She submitted that the stand of the
respondent no.1 of supporting the appellant no.1 for getting the visa is
illusory. She pointed out that the respondent no.1, by relying upon alleged
legal separation, has contended that he cannot support the application for a
grant of a green card to the appellant no.1. The learned counsel also
invited our attention to the pleadings in the interlocutory applications filed by
the respondent no.1. She submitted that the conduct of the respondent
no.1 of making allegations in the applications shows that he is more
interested in litigation and winning the battle against the appellant no.1
rather than acting in collaboration with her for the benefit of the child.
16. The learned counsel further submitted that the Indian medical system
is better suited for taking care of the minor son and even the appellant no.3
is a doctor. She submitted that it is not in the interest of the minor son that
he is taken to USA.
17. She submitted that considering the unique facts of the case, the larger
Bench decisions of this Court in the cases of Nithya (supra) and Kanika
(supra) are applicable. She submitted that the said two decisions constitute
binding precedents and the cases of Lahiri (supra) and Yashita (supra) are
exceptions to the general rule. She submitted that the concept of forum
convenience has no place in the Guardianship proceedings. She submitted
that this is not a case of abduction of the child as the child was brought to
India with the consent of the respondent no.1 for the purposes of medical
treatment. Therefore, the learned counsel submitted that the offer given by
the respondent no.1 cannot be accepted for the reasons set out in the
written submissions. She submitted that the impugned Judgment is
erroneous and illegal which deserves to be set aside.
18. The learned counsel appearing for the respondent no.1 pointed out
that the appellant no.1 has spent more than nine years in USA. After her
marriage with the respondent no.1, she has spent eight years in USA. He
invited our attention to the consent executed by the appellant no.1 and the
respondent no.1 for permitting the child to travel to India between 5 th
February 2019 to 26th September, 2019. He submitted that in the light of
the increase in cases of international parental child abduction from the
USA, the Immigration Authorities in USA do not allow a minor US citizen to
leave the country only with one parent without the express consent of the
non-travelling parent. He submitted that after the consent document was
executed, no changes therein were even discussed between the parties.
He submitted that documents on record will show that in terms of the
international travel consent form, return tickets of 26 th September, 2019
were also booked. He submitted that in violation of the international travel
consent, the appellant no.1 has not sent back the minor son to USA, which
amounts to the detention of the minor in her illegal custody in India.
19. The learned counsel appearing for the respondent no.1 submitted that
there is no document produced on record by the appellants to show that the
child needs continuous follow-up treatment.
20. The learned counsel submitted that in terms of the interim order dated
10th June 2020 of the High Court, the respondent no.1 has been interacting
regularly with his minor son through video conference and there is a very
healthy and deep father and son relationship between them. He stated that
he has taken legal advice from a firm specialising in immigration law in
USA. He submitted that the respondent no.1 received advice from the said
firm that to enable the appellant no.1 and the child to travel to USA, the
quickest as well as legally and practically most viable way to get a visa was
to get a B-2 non-immigrant visa.
21. He pointed out that in the visa invitation letter, the respondent no.1
has clarified that he will take care of tour expenses of the appellant no.1,
including the round trip, airfare, food, housing, medical insurance in USA.
The learned counsel submitted that the order of the High Court is a very
balanced order which is consistent with the law laid down by this Court in
the cases of Lahiri (supra) and Yashita (supra). He would, therefore,
submit that there is no reason to interfere with the equitable order passed
by the High Court.
22. We have given a careful consideration to the submissions. The
appellant no.1 and the respondent no.1 got married on 13 th January 2011 in
New York in USA. The minor son was born on 21 st January 2016 and is
admittedly a citizen of USA. There is no dispute regarding the appellant
no.1 and respondent no.1 signing and executing a consent for travel of the
minor to India with one legal guardian. It is necessary to reproduce the said
I, Kiran Bhaskar of 321 Division St, Cenerton, AR
72719, United States declare that I am the legal
parent/guardian of Aaditya Kiran, male, born
certificate registration number 2016001506, issued
numbered 546227929, issued on October 14, 2016
at United States, Department of State.
My child, Aaditya Kiran, has consent to travel:
(February 5th, 2019 to September 26th, 2019), C/o
(February 5th, 2019 to September 26th, 2019), C/o,
with Vasudha Sethi (my wife, Aaditya’s mother) of
States. Vasudha Sethi has an Indian passport
numbered J0499893, which was issued on June 8,
2010 at Regional Passport Office, Delhi, India. My
child will be leaving the United States on February
5th, 2019 and returning to the United States on
September 26th, 2019. Any changes to this plan
shall be discussed and consented upon by both
parties.
Any questions regarding this document may be
Signed on this 4th day of February, 2019.
23. It is not the case of the appellant no.1 that there was even a
discussion between the appellant no.1 and the respondent no.1 for
modification of the said consent till date. Admittedly, the period of travel
mentioned in the consent was not extended by the respondent no.1. The
minor son underwent surgery at the hands of Dr. Anurag Krishna on 14 th
March 2019. The certificate dated 17th September 2019 issued by
Dr.Anurag Krishna records that he examined the minor on 12 th July, 2019
and he found that the child was doing well. He has recorded in the
certificate that the child needs to be reviewed 6 to 7 months after the
surgery along with fresh ultrasound and renal scan. Thus, the surgery has
taken place 33 months back. The appellant has not placed on record any
medical certificate or opinion of Dr.Anurag Krishna on the present health
condition of the child. The appellants have not placed on record any
medical certificate of the treating doctor recording that the child needs any
further treatment or medical care in India. The respondent no.1 consented
for the child travelling to India and remaining in India till 26 th September
2019. The reason for the grant of consent was to enable the minor to
undergo surgery in New Delhi. We will have to proceed on the footing that
there is no documentary evidence available on record to show that the
presence of the child in India for further medical treatment is necessary.
24. On 3rd February, 2020, the Circuit Court of Benton County, Arkansas,
USA passed an ex-parte order which reads thus:
“Now on the 3rd day of February, 2020, this matter
comes before the Court, and the Court, being well
and sufficiently advised finds and orders as follows:
1. The Court has jurisdiction over the parties and
subject matter and venue is proper herein.
2. Defendant has removed the parties' minor child to
India and remained there without the consent of
3. Defendant has alienated the child from Plaintiff,
which is harmful to the child's well-being.
4. Plaintiff is awarded primary care, custody and
control of the minor child, Aaditya Kiran pending
further orders of the Court.
5. Defendant shall return Aaditya Kiran to Plaintiff
immediately.
request by either party.”
25. Firstly, we will deal with the legal submissions made by the learned
Counsel for the appellants. The learned counsel appearing for the appellants
has placed heavy reliance on the decisions of this Court in the cases of
Kanika (supra) and Nithya (supra) which are rendered by Benches of three
Judges of this Court. With some emphasis, the learned counsel appearing
for the appellants had submitted that there is a need to make a departure
from the rule of “best interest of the child” or the “welfare principle”. Her
contention is that welfare would mean balancing the interests of all the
members of the child’s family. She contended that the mother as the
primary caregiver must be kept in mind as a person who has legal rights
which must be respected and protected. The learned counsel relied upon
a decision of this Court in the case of K.S. Puttaswamy v. Union of India8
by contending that principles of autonomy must inure against non-state
persons as well. Her submission is that the law regarding custody does
not and cannot completely eliminate a woman in the name of child welfare.
On this aspect, we must note that in the case of Kanika (supra), this Court
has quoted with approval what is held in paragraph 53 of its decision in the
case of Prateek Gupta (supra). In paragraph 53 of the decision in the case
of Prateek Gupta (supra), it was held that the issue with regard to
repatriation of a child has to be addressed not on a consideration of legal
rights of the parties but on the sole criteria of the welfare of the child. In
paragraph no.34 of its decision, this Court in the case of Kanika (supra),
“34. As expounded in the recent decisions of this
Court, the issue ought not to be decided on the basis
of rights of the parties claiming custody of the minor
child but the focus should constantly remain on
whether the factum of best interest of the minor child is
to return to the native country or otherwise. The fact
that the minor child will have better prospects upon
return to his/her native country, may be a relevant
aspect in a substantive proceeding for grant of custody
of the minor child but not decisive to examine the
threshold issues in a habeas corpus petition. For the
purpose of habeas corpus petition, the Court ought to
focus on the obtaining circumstances of the minor
child having been removed from the native country
and taken to a place to encounter alien environment,
language, custom, etc. interfering with his/her overall
growth and grooming and whether continuance there
will be harmful. This has been the consistent view of
this Court as restated in the recent three-Judge Bench
decision in Nithya Anand Raghavan [Nithya Anand
Raghavan v. State (NCT of Delhi), (2017) 8 SCC 454 :
(2017) 4 SCC (Civ) 104] , and the two-Judge Bench
decision in Prateek Gupta [Prateek Gupta v. Shilpi
is unnecessary to multiply other decisions on the same
aspect.”
26. The learned counsel appearing for the appellant heavily relied upon
an article by Mr.John Ekelaar. The article contains some criticism of “the
welfare principle”. The author has strongly advocated how the law should
be reformulated by getting rid of “welfare” or “best interest” principles. The
article is in the realm of the opinion of the learned author. The decision of
this Court in the case of Kanika (supra) reiterates the well-settled law that
the issue regarding custody of a minor child and the issue of the repatriation
of the child to the native country has to be addressed on the sole criteria of
the welfare of the minor and not on consideration of the legal rights of the
parents. The principle that the welfare of the minor shall be the
predominant consideration and that the rights of the parties to a custody
dispute are irrelevant has been consistently followed by this Court. In fact,
in sub-section (1) of Section 13 of the Hindu Minority and Guardianship Act,
1956 (for short “the 1956 Act”), it is provided that in appointment or
declaration of guardian of a minor, the welfare of the minor shall be the
paramount consideration. When a Court decides that it is in the best
interest of the minor to remain in the custody of one of the parents, the
rights of the other parent are bound to be affected. As provided in clause (a)
of Section 6 of the 1956 Act, in the case of a minor boy or girl, the natural
guardian is the father, but ordinarily, the custody of a minor who has not
completed the age of 5 years shall be with the mother. On a conjoint
reading of sub-section (1) of Section 13 read with clause (a) of Section 6 of
the 1959 Act, if it is found that the welfare of a minor whose age is more
than 5 years requires that his custody should be with the mother, the Court
is bound to do so. In the same way, if interest of the minor which is the
paramount consideration requires that the custody of a minor child should
not be with the mother, the Court will be justified in disturbing the custody of
the mother even if the age of the minor is less than five years. In such
cases, the rights of the father or the mother, as the case may be, conferred
by clause (a) of Section 6 are bound to be affected. Whenever the Court
disturbs the custody of one parent, unless there are compelling reasons,
the Court will normally provide for visitation rights to the other parent. The
reason is that the child needs the company of both parents. The orders for
visitation rights are essentially passed for the welfare of minors and for the
protection of their right of having the company of both parents. Such orders
are not passed only for protecting the rights of the parents. In view of the
settled legal position, the welfare of the minor being the paramount
consideration, we cannot act upon the suggestions of Mr.John Ekelaar in
his Article. We cannot accept the submission that while applying the
welfare principle, the rights of the mother or father need to be
protected. The consideration of the well-being and welfare of the child must
get precedence over the individual or personal rights of the parents.
Whether the Court while dealing with a case like this can compel one of the
parents to move from one country to another is a separate issue. We are
dealing with the said issue separately.
27. Each case has to be decided on its own facts and circumstances.
Though no hard and fast rule can be laid down, in the cases of Kanika
(supra) and Nithya (supra), this Court has laid down the parameters for
exercise of the power to issue a writ of habeas corpus under Article 226 of
the Constitution of India dealing with cases of minors brought to India from
the country of their native. This Court has reiterated that the paramount
consideration is the welfare of the minor child and the rights of the parties
litigating over the custody issue are irrelevant. After laying down the
principles, in the case of Nithya (supra), this Court has clarified that the
decision of the Court in each case must depend on the totality of facts and
circumstances of the case brought before it. The factual aspects are
required to be tested on the touchstone of the principle of welfare of the
minor child. In the cases of Lahiri (supra) and Yashita (supra), the
Benches of this Court consisting of two Judges have not made a departure
from the law laid down in the decisions of larger Benches of this Court in
the cases of Nithya (supra) and Kanika (supra). The Benches have applied
the law laid down by the larger Bench to the facts of the cases before them.
It is not necessary for us to discuss in detail the facts of the aforesaid
cases. By its very nature, in a custody case, the facts cannot be similar.
What is in the welfare of the child depends on several factors. A custody
dispute involves human issues which are always complex and complicated.
There can never be a straight jacket formula to decide the issue of custody
of a minor child as what is in the paramount interest of a minor is always a
question of fact. But the parameters for exercise of jurisdiction as laid down
in the cases of Nithya (supra) and Kanika (supra) will have to be followed.
28. Now we turn to the findings recorded by the High Court. The perusal
of the impugned judgment shows that the High Court has adverted to the
law laid down in the cases of Kanika (supra) and Nithya (supra) apart from
other cases. The High Court found that in the facts of the case, summary
inquiry deserves to be adopted. The Court noted that the child has spent
more than three years in USA and two and a half years in India. Therefore,
it cannot be said that there is a complete integration of the child with the
social, physical, psychological, cultural and academic environment of either
USA or India. After considering the documents placed on record, the High
Court found that the appellant no.1 has not produced any further medical
report or medical treatment record to show that the minor child requires
further regular medical treatment apart from usual periodical review and
therefore, it will not be difficult to arrange a periodical review even if the
child is in USA. The High Court on examination of the documents found
that the respondent no.1 had financial resources to maintain the appellant
no.1 and the minor child in USA. Merely because the respondent no.1 had
asked the appellant no.1 to arrange funds for purchase of lands in
Bangalore, it cannot be said that his intention is to abandon USA and settle
down permanently in India. Moreover, the High Court noted that
international travel consent signed by the appellant no.1 and the
respondent no.1 required that the minor should come back to USA on 26 th
September, 2019. The High Court held that change in the travel plan was
not discussed and consented by both the parties. The High Court also
considered the allegation that the respondent no.1 has temperamental
issues. In fact, the respondent no.1 produced a Psychological Evaluation
Report dated 21st October 2020 issued by the Centre for Psychology which
recorded that the respondent no.1 is free of any neurophysiological
problems and has no diagnosable mental health problems. The certificate
recorded that he is free of depression, anxiety and reports no suicidal
tendencies. The High Court also considered the relevance of the report of
the USA Embassy regarding the welfare of the child. The Court noted that
there is a disclaimer in the said report that the consular officer who is the
author of the report is not trained in child protection, social work, or other
similar discipline and therefore, the report is not a child custody evaluation.
The High Court has also noted the allegations and rival allegations against
each other made by the appellant no.1 and the respondent no.1. About the
argument that the appellant no.1 is taking constant care of the minor child,
the High Court referred to the said report of the USA Embassy. In
paragraphs 48 and 49 of the Judgment, the High Court has noted the
contents of the said report and has drawn conclusions which are recorded
in paragraph 50. Paragraphs 48 to 50 of the impugned Judgment read
“48. However, a perusal of the welfare report dated
17.12.2019 of Visiting Consular of US Embassy shows
that respondent No.2 told the Visiting Consular that
her aunt picks up minor child from school and brings
him home each day and stays with him throughout the
day while the mother and grand-parents are at work.
The minor child has a domestic helper who takes care
of his needs and plays with him. It is evident from the
report that even respondent No.2 and her parents are
not giving whole day personal care and attention to the
minor child.
49. The petitioner has filed affidavit dated
15.06.2020 that the petitioner also has requisite skills
to care for his child in the USA. The petitioner has also
the option to work from home permanently, enabling
him to care for the child full time when required.
Hanumantharayya has a valid US visa till 23.02.2024
and has expressed her willingness to take care of the
minor child to this Court.
50. In these facts and circumstances, there is no
reasonable ground to believe that the minor child
cannot be given due personal care and attention in
USA and therefore, repatriation of the minor child
cannot be declined on the ground of lack of requisite
personal care and attention to the minor child in USA.”
29. After considering the said aspects, the High Court issued directions in
paragraphs 55, 57 and 58 which we have already quoted above. The
factors considered by the High Court were certainly relevant. The High
Court had the benefit of the assistance of a learned Counsel who was
appointed as Amicus Curiae. He interacted with the contesting parties. The
report of the Amicus Curiae has been considered by the High Court.
30. The learned Judge of the High Court noted that except for the case
filed by the respondent no.1 in USA Court regarding custody of the minor,
there are no proceedings pending between the appellant no.1 and the
respondent no.1. It was also noted that the welfare report dated 17 th
December, 2019 of Visiting Consular of US Embassy records that the
appellant no.1 informed that her aunt picks up the minor child from school
and brings him home each day and stays with him throughout the day while
the mother and grand-parents are at work. Moreover, a domestic helper is
taking care of the needs of the child. Therefore, the appellant no.1 is not
devoting her whole day to take personal care of the minor and to attend to
the needs of the minor child. The High Court noted that on the other hand,
an affidavit has been filed by the respondent no.1 that an option to
permanently work from home is available to him and his mother has a valid
visa to stay in USA till 23rd February 2024 who has expressed willingness to
take care of the minor child in USA. The other factors considered by the
High Court while holding a summary inquiry were that the stay of the minor
child in India has been for too short a period to facilitate his integration into
the social, physical, physiological, cultural and academic environment of
India. Moreover, the minor child, if repatriated to USA, will not be subjected
to an entirely foreign system of education. The High Court has also taken
into consideration the fact that the child is a citizen of USA who will have
better future prospects on return to USA. It is observed that the natural
process of grooming in the environment of the native country is
indispensable for his comprehensive development. The High Court further
observed that it is not shown that return of the child to USA will be harmful
to him.
31. After having perused the material on record, we find that the High
Court has considered all relevant factors while holding a summary inquiry.
The High Court has given reasons for coming to the conclusion that it will
be in the interest and welfare of the child to return to USA. The High Court
has not treated the order of USA court as conclusive. The High Court had
the benefit of the assistance of a learned Counsel who was appointed as
amicus. The exercise of power by the High Court cannot be said to be
perverse or illegal. We find that the High Court has not overlooked the
view taken by larger Benches of this Court in the cases of Kanika (supra)
and Nithya (supra). We are in agreement with High Court when it came to
the conclusion that it will be in the welfare of the child to return to USA.
32. The emphasis of the learned counsel appearing for appellants was
more on the rights of the appellant no.1 and on making a departure from the
well-known concept that the welfare of the minor is the paramount
consideration. The said submissions are contrary to the law laid down by
this Court in the case of Kanika (supra) as observed by us earlier. As we
have noted earlier, the rights of the parents are irrelevant when a Court
decides the custody issue. It is not a consideration at all for deciding the
33. A question was raised whether the High Court was justified in passing
an order directing the appellant no.1 to return to USA along with the minor
child on or before a particular date. The issue of custody of a minor,
whether in a petition seeking habeas corpus or in a custody petition, has to
be decided on the touchstone of the principle that the welfare of a minor is
of paramount consideration. The Courts, in such proceedings, cannot
decide where the parents should reside as it will affect the right to privacy of
the parents. We may note here that a writ Court while dealing with the
issue of habeas corpus cannot direct a parent to leave India and to go
abroad with the child. If such orders are passed against the wishes of a
parent, it will offend her/his right to privacy. A parent has to be given an
option to go abroad with the child. It ultimately depends on the parent
concerned to decide and opt for giving a company to the minor child for the
sake of the welfare of the child. It will all depend on the priorities of the
concerned parent. In this case, on a conjoint reading of clauses (i) to (iii) of
paragraph 55 of the judgment, it is apparent that such an option has been
given to the appellant no.1.
34. We may record here that an email dated 18 th October, 2021
addressed by the appellant no.1 to the respondent no.1 is placed on record
along with I.A. No. 147418 of 2021. In the said email, the appellant no.1
has informed the respondent no.1 that during her visa interview, if she is
asked, she will clearly state that the intended purpose of visiting USA was
also to contest cases filed by the respondent no.1 and to file cases against
the respondent no.1. Therefore, an option has to be given to the appellant
no.1 to return to USA along with the minor son though she cannot be forced
to stay with the respondent no.1. Therefore, the respondent no.1 will have
to make proper arrangements for a suitable residence for the comfortable
stay of the appellant no.1 in USA. The reason is that the appellant no.1
cannot work in USA on the basis of a B-2 visa. The respondent no.1 will
have to provide a reasonable amount per month to the appellant no.1 to
maintain herself and the child in USA. Necessary steps will have to be
taken by the respondent no.1 to secure admission for the child in a school
in USA. To enable the appellant no.1 to contest the custody petition filed by
the respondent no.1, a direction will have to be issued to the respondent
no.1 not to enforce and act upon the said order of USA Court in any
manner for a period of three months from the date on which the appellant
no.1 reaches USA with the son. During the said period of three months,
visitation rights will have to be provided to the respondent no.1 to meet the
minor child. If the appellant no.1 opts to go to USA and contest the custody
proceedings, the parties will have to abide by the result of the said
proceedings in so far as the issue of the custody of the minor child is
35. The appellant no.1 will have to be given time of fifteen days from
today to communicate the respondent no.1 her willingness to travel to USA
with the child. If she intends to visit USA, along with her willingness, she
must communicate possible dates of travel. The dates should be within
maximum period of three months from today. On receiving the same, the
respondent no.1 shall arrange for air tickets and make arrangements for
the comfortable stay of the appellant no.1 and the minor in USA. The
respondent no.1 shall, for the time being, transfer US$ 5,000 to the
appellant no.1 for facilitating expenditure in USA. The respondent no.1, in
addition, shall transfer US$ 1,500 to the appellant no.1 which can be used
by the appellant no.1 for the benefit of the minor child in USA. The
respondent no.1 will have to also provide a proper health insurance to both
of them. The respondent no.1 will also be under an obligation to take care
of medical treatment of the minor son.
36. In the event the appellant no.1 fails to communicate her willingness to
travel to USA within fifteen days from today, it will be open for the
respondent no.1 to take the custody of the child. After the respondent no.1
arrives in India, the appellant no.1 shall hand over the custody of the minor
son to the respondent no.1 to enable the respondent no.1 to take the minor
son to USA. To the above extent, the order of the High Court requires
modification. As noted earlier, now B-2 visa has been granted to the
appellant no.1. The respondent no.1 will have to also facilitate extension of
visa granted to the appellant no.1, in case she desires to continue her stay
(i) It will be open for the appellant no.1 to travel to USA
along with the minor child and to contest the proceedings
pending in USA. If the appellant no.1 is willing to travel to USA
along with the minor child, she will communicate her willingness
to do so to the respondent no.1 by email within a period of
fifteen days from today. The appellant no.1 shall communicate
to the respondent no.1 the possible dates on which she
proposes to travel along with the minor child. The possible
dates shall be within three months from today;
(ii) On receiving an intimation as aforesaid, the respondent
no.1 shall book air tickets after consulting the appellant no.1.
The respondent no.1 shall make proper arrangements for
separate stay of the appellant no.1 in USA after consulting her.
The arrangements for residence shall be made at the cost of
the respondent no.1. As and when the appellant no.1 wants to
return to India, it shall be the responsibility of the respondent
no.1 to pay for her air tickets. If she wishes to continue in USA,
the respondent no.1 shall take all possible steps for the
(iii) In the event the appellant no.1 agrees to travel to USA
along with the minor son, it will be the responsibility of the
respondent no.1 to pay a sufficient amount per month to the
appellant no.1 for maintenance of herself and the minor son.
Along with the air tickets, the respondent no.1 shall remit US$
6,500 to the appellant no.1 by a mutually convenient mode.
The amount shall be utilised by the appellant no.1 to meet initial
expenditure in USA. After the expiry of period of one month
from the date on which the appellant no.1 arrives in USA, the
respondent no.1 shall regularly remit a mutually agreed amount
to the appellant no.1 for maintenance. If there be any dispute,
the parties are free to adopt remedy in accordance with law.
The respondent no.1 shall provide proper medical insurance to
the appellant no.1 and the minor child while they are in USA.
Moreover, the respondent no.1 shall be under an obligation to
provide proper medical treatment to the minor child;
(iv) In the event, the appellant no.1 along with the minor child
visits USA in terms of this order, for a period of three months
from the date of her arrival, the respondent no.1 shall not take
any steps to implement or enforce the order dated 3 rd February
2020 passed by the Circuit Court of Benton County, Arkansas
which will enable the appellant no.1 to move the concerned
Court for contesting the petition filed by the respondent no.1
and to file appropriate proceedings. A written undertaking to
that effect shall be filed by the respondent no.1 in this Court
within two weeks from today. Thus, for the said period of three
months, the custody of the minor shall remain with the appellant
(v) After the appellant no.1 and minor child reach USA,
subject to the orders which may be passed by the competent
Court in USA, for a period of 3 months from their arrival, the
respondent no.1 shall be entitled to have temporary custody of
the minor child from 10 am to 5 pm on every Sunday or as
mutually agreed upon by the appellant no.1 and the respondent
no.1. In addition, the respondent no.1 shall be entitled to make
a video call to talk to the minor child for about half an hour on
every day (except Sunday) between 5 pm to 6 pm;
(vi) In the event, the appellant no.1 is not willing to visit USA
along with her minor son and fails to communicate her
willingness to visit USA within a period of fifteen days from
today, it will be open for the respondent no.1 to take custody of
the child. After the respondent no.1 visits India, the appellant
no.1 shall hand over the custody of the minor child to him and
the respondent no.1 shall be entitled to take the minor child with
him to USA. In such an event, the appellant no.1 will be
entitled to talk to the minor child on video call for half an hour
on every day between 5 pm to 6 pm (USA time) or at such time
as mutually agreed upon by the appellant no.1 and the
(vii) As observed by the High Court in paragraph 58 of the
impugned Judgment, an option of adopting agreed joint
parenting plan remains open to the parties. If they wish to do
so, they can always file appropriate application before the High
(viii) This order shall not be construed to mean that any final
adjudication has been made on the rights of the parties.
The appeal is disposed of in the above terms.
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The Supreme Court has observed that the rights of the parents are irrelevant when a Court decides the issue of custody of their minor child.The issue of custody of a minor, whether in a petition seeking habeas corpus or in a custody petition, has to be decided on the touchstone of the principle that the welfare of a minor is of paramount consideration, the bench of Justices Ajay Rastogi and...
The Supreme Court has observed that the rights of the parents are irrelevant when a Court decides the issue of custody of their minor child.
The issue of custody of a minor, whether in a petition seeking habeas corpus or in a custody petition, has to be decided on the touchstone of the principle that the welfare of a minor is of paramount consideration, the bench of Justices Ajay Rastogi and Abhay S. Oka observed.
In this case, the Punjab and Haryana High Court issued several directions while allowing a petition for habeas corpus filed by the husband seeking custody of the minor child. The mother was directed to return to USA along with minor child on or before 30.09.2021. Challenging this order, the mother approached the Apex Court.
On behalf of the mother, it was contended that the welfare principle would mean balancing the interests of all the members of the child's family. It was contended that the mother as the primary caregiver must be kept in mind as a person who has legal rights which must be respected and protected. An article by Mr.John Ekelaar which some criticism of "the welfare principle" was relied upon.
Addressing this contention, the bench referred to Kanika Goel v. the State of Delhi (2018) 9 SCC 578 and Prateek Gupta v. Shilpi Gupta (2018) 2 SCC 309
"The decision of this Court in the case of Kanika (supra) reiterates the well-settled law that the issue regarding custody of a minor child and the issue of the repatriation of the child to the native country has to be addressed on the sole criteria of the welfare of the minor and not on consideration of the legal rights of the parents. The principle that the welfare of the minor shall be the predominant consideration and that the rights of the parties to a custody dispute are irrelevant has been consistently followed by this Court. "
The court noted that, in sub-section (1) of Section 13 of the Hindu Minority and Guardianship Act, 1956 (for short "the 1956 Act"), it is provided that in appointment or declaration of a guardian of a minor, the welfare of the minor shall be the paramount consideration. The court made the following observations:
The consideration of the well-being and welfare of the child must get precedence over the individual or personal rights of the parents.
26...When a Court decides that it is in the best interest of the minor to remain in the custody of one of the parents, the rights of the other parent are bound to be affected. As provided in clause (a) of Section 6 of the 1956 Act, in the case of a minor boy or girl, the natural guardian is the father, but ordinarily, the custody of a minor who has not completed the age of 5 years shall be with the mother. On a conjoint reading of sub-section (1) of Section 13 read with clause (a) of Section 6 of the 1959 Act, if it is found that the welfare of a minor whose age is more than 5 years requires that his custody should be with the mother, the Court is bound to do so. In the same way, if interest of the minor which is the paramount consideration requires that the custody of a minor child should not be with the mother, the Court will be justified in disturbing the custody of 24 the mother even if the age of the minor is less than five years. In such cases, the rights of the father or the mother, as the case may be, conferred by clause (a) of Section 6 are bound to be affected. Whenever the Court disturbs the custody of one parent, unless there are compelling reasons, the Court will normally provide for visitation rights to the other parent. The reason is that the child needs the company of both parents. The orders for visitation rights are essentially passed for the welfare of minors and for the protection of their right of having the company of both parents. Such orders are not passed only for protecting the rights of the parents. In view of the settled legal position, the welfare of the minor being the paramount consideration, we cannot act upon the suggestions of Mr.John Ekelaar in his Article. We cannot accept the submission that while applying the welfare principle, the rights of the mother or father need to be protected. The consideration of the well-being and welfare of the child must get precedence over the individual or personal rights of the parents.
Rights of the parties litigating over the custody issue are irrelevant
27. Each case has to be decided on its own facts and circumstances. Though no hard and fast rule can be laid down, in the cases of Kanika (supra) and Nithya (supra), this Court has laid down the parameters for exercise of the power to issue a writ of habeas corpus under Article 226 of the Constitution of India dealing with cases of minors brought to India from the country of their native. This Court has reiterated that the paramount consideration is the welfare of the minor child and the rights of the parties litigating over the custody issue are irrelevant. After laying down the principles, in the case of Nithya (supra), this Court has clarified that the decision of the Court in each case must depend on the totality of facts and circumstances of the case brought before it. The factual aspects are required to be tested on the touchstone of the principle of welfare of the minor child. In the cases of Lahiri (supra) and Yashita (supra), the Benches of this Court consisting of two Judges have not made a departure from the law laid down in the decisions of larger Benches of this Court in the cases of Nithya (supra) and Kanika (supra). The Benches have applied the law laid down by the larger Bench to the facts of the cases before them. It is not necessary for us to discuss in detail the facts of the aforesaid cases. By its very nature, in a custody case, the facts cannot be similar. What is in the welfare of the child depends on several factors. A custody dispute involves human issues which are always complex and complicated. There can never be a straight jacket formula to decide the issue of custody of a minor child as what is in the paramount interest of a minor is always a question of fact. But the parameters for exercise of jurisdiction as laid down in the cases of Nithya (supra) and Kanika (supra) will have to be followed.
The bench also considered the issue as to whether the Court can compel one of the parents to move from one country to another? In this regard, the bench observed thus:
The Courts, in such proceedings, cannot decide where the parents should reside as it will affect the right to privacy of the parents. We may note here that a writ Court while dealing with the issue of habeas corpus cannot direct a parent to leave India and to go abroad with the child. If such orders are passed against the wishes of a parent, it will offend her/his right to privacy. A parent has to be given an option to go abroad with the child. It ultimately depends on the parent concerned to decide and opt for giving a company to the minor child for the sake of the welfare of the child. It will all depend on the priorities of the concerned parent.
The court therefore modified the directions issued by the High Court:
(i) It will be open for the appellant no.1 to travel to USA along with the minor child and to contest the proceedings pending in USA. If the appellant no.1 is willing to travel to USA along with the minor child, she will communicate her willingness to do so to the respondent no.1 by email within a period of fifteen days from today. The appellant no.1 shall communicate to the respondent no.1 the possible dates on which she proposes to travel along with the minor child. The possible dates shall be within three months from today; (ii) On receiving an intimation as aforesaid, the respondent no.1 shall book air tickets after consulting the appellant no.1. The respondent no.1 shall make proper arrangements for separate stay of the appellant no.1 in USA after consulting her. The arrangements for residence shall be made at the cost of 36 the respondent no.1. As and when the appellant no.1 wants to return to India, it shall be the responsibility of the respondent no.1 to pay for her air tickets. If she wishes to continue in USA, the respondent no.1 shall take all possible steps for the extension of visa or for getting a new visa; (iii) In the event the appellant no.1 agrees to travel to USA along with the minor son, it will be the responsibility of the respondent no.1 to pay a sufficient amount per month to the appellant no.1 for maintenance of herself and the minor son. Along with the air tickets, the respondent no.1 shall remit US$ 6,500 to the appellant no.1 by a mutually convenient mode. The amount shall be utilised by the appellant no.1 to meet initial expenditure in USA. After the expiry of period of one month from the date on which the appellant no.1 arrives in USA, the respondent no.1 shall regularly remit a mutually agreed amount to the appellant no.1 for maintenance. If there be any dispute, the parties are free to adopt remedy in accordance with law. The respondent no.1 shall provide proper medical insurance to the appellant no.1 and the minor child while they are in USA. Moreover, the respondent no.1 shall be under an obligation to provide proper medical treatment to the minor child; (iv) In the event, the appellant no.1 along with the minor child visits USA in terms of this order, for a period of three months from the date of her arrival, the respondent no.1 shall not take any steps to implement or enforce the order dated 3rd February 2020 passed by the Circuit Court of Benton County, Arkansas which will enable the appellant no.1 to move the concerned Court for contesting the petition filed by the respondent no.1 and to file appropriate proceedings. A written undertaking to that effect shall be filed by the respondent no.1 in this Court within two weeks from today. Thus, for the said period of three months, the custody of the minor shall remain with the appellant no.1; (v) After the appellant no.1 and minor child reach USA, subject to the orders which may be passed by the competent Court in USA, for a period of 3 months from their arrival, the respondent no.1 shall be entitled to have temporary custody of the minor child from 10 am to 5 pm on every Sunday or as 38 mutually agreed upon by the appellant no.1 and the respondent no.1. In addition, the respondent no.1 shall be entitled to make a video call to talk to the minor child for about half an hour on every day (except Sunday) between 5 pm to 6 pm; (vi) In the event, the appellant no.1 is not willing to visit USA along with her minor son and fails to communicate her willingness to visit USA within a period of fifteen days from today, it will be open for the respondent no.1 to take custody of the child. After the respondent no.1 visits India, the appellant no.1 shall hand over the custody of the minor child to him and the respondent no.1 shall be entitled to take the minor child with him to USA. In such an event, the appellant no.1 will be entitled to talk to the minor child on video call for half an hour on every day between 5 pm to 6 pm (USA time) or at such time as mutually agreed upon by the appellant no.1 and the respondent no.1; (vii) As observed by the High Court in paragraph 58 of the impugned Judgment, an option of adopting agreed joint parenting plan remains open to the parties. If they wish to do so, they can always file appropriate application before the High Court; and (viii) This order shall not be construed to mean that any final adjudication has been made on the rights of the parties. /div>
Case name: Vasudha Sethi vs Kiran V. Bhaskar
Case no. and Date: CrA 82 OF 2022 | 12 Jan 2022
Coram: Justices Ajay Rastogi and Abhay S. Oka
Counsel: Advocate Binu Tamta For Petitioner and Advocate Shadan Farasat For Respondent (Father)
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1. Feeling aggrieved and dissatisfied with the impugned judgment and
order dated 13.03.2020 passed by the High Court of Madhya Pradesh,
Principal Seat at Jabalpur in M.P. No. 508 of 2019, by which the High Court
has allowed the said writ petition and has quashed and set aside the order
passed by the Additional Commissioner, Rewa Division, Rewa, directing to
mutate the name of the petitioner herein in the revenue records, which
was sought to be mutated on the basis of the will, the original respondent
no.6 has preferred the present special leave petition.
2. That the petitioner herein filed an application under Section
109/110 of the Madhya Pradesh Land Revenue Code to mutate his name
in the revenue records in respect of Khasra No. 41/03, 101/03, 314/03,
102/02, 132/02, 133/03, 142/02, 145/02, 146/02, 313/01, total area of
4.53 acres situated in village Dudha, Tehsil Rampur Baghelan, District
Satna, on the basis of the alleged will executed by one Smt. Ananti Bai,
widow of Bhagwandeen Bargahi – his maternal grandmother. The alleged
initially it was the case on behalf of the petitioner that Smt. Ananti Bai
died on 20.05.1998, however, subsequently, it was stated that there was a
typographical error and Smt. Ananti Bai died on 27.08.2011. It is to be
noted that the application for mutation was filed on 9.8.2011, i.e., even
prior to the death of Smt. Ananti Bai. Therefore, even the application was
filed against Ananti Bai when she was alive.
3. By order dated 30.09.2011, the Nayab Tehsildar, District Satna
directed to mutate the name of the petitioner herein in the revenue
records in respect of the aforesaid lands solely on the basis of the alleged
will dated 20.05.1998. The legal heirs and daughters of Smt. Ananti Bai
preferred appeal before the Sub-Divisional Officer, Tehsil Rampur
Baghelan, District Satna, Madhya Pradesh. The SDO allowed the said
appeal and set aside the order passed by the Nayab Tehsildar directing to
mutate the name of the petitioner herein in the revenue records. The
petitioner herein preferred appeal before the learned Additional
Commissioner, Rewa Division, Rewa challenging the order passed by the
SDO dated 12.09.2018. The learned Additional Commissioner, Rewa
Division, Rewa allowed the said appeal and quashed and set aside the
order passed by the SDO dated 12.09.2018 and consequently the order
passed by the Nayab Tehsildar directing to mutate the name of the
petitioner herein in the revenue records on the basis of the alleged will
dated 20.05.1998 came to be restored. By the impugned judgment and
order, the High Court has set aside the order passed by the Additional
Commissioner observing that once the will is disputed and even otherwise
the petitioner who is claiming rights/title on the basis of the will executed
by the deceased Ananti Bai, the remedy available to the petitioner would
be to file a suit and crystalise his rights and only thereafter the necessary
consequence shall follow.
4. Feeling aggrieved and dissatisfied with the impugned judgment and
order passed by the High Court, the original applicant has preferred the
present special leave petition.
5. We have heard Shri Nishesh Sharma, learned Advocate appearing
for the petitioner.
It is not in dispute that the dispute is with respect to mutation entry in the
revenue records. The petitioner herein submitted an application to mutate
his name on the basis of the alleged will dated 20.05.1998 executed by
Smt. Ananti Bai. Even, according to the petitioner also, Smt. Ananti Bai
died on 27.08.2011. From the record, it emerges that the application
before the Nayab Tehsildar was made on 9.8.2011, i.e., before the death of
Smt. Ananti Bai. It cannot be disputed that the right on the basis of the
will can be claimed only after the death of the executant of the will. Even
the will itself has been disputed. Be that as it may, as per the settled
proposition of law, mutation entry does not confer any right, title or
interest in favour of the person and the mutation entry in the revenue
record is only for the fiscal purpose. As per the settled proposition of law,
if there is any dispute with respect to the title and more particularly when
the mutation entry is sought to be made on the basis of the will, the party
who is claiming title/right on the basis of the will has to approach the
appropriate civil court/court and get his rights crystalised and only
thereafter on the basis of the decision before the civil court necessary
mutation entry can be made.
6. Right from 1997, the law is very clear. In the case of Balwant Singh v.
Daulat Singh (D) By Lrs., reported in (1997) 7 SCC 137 , this Court had an
occasion to consider the effect of mutation and it is observed and held that
mutation of property in revenue records neither creates nor extinguishes title to
the property nor has it any presumptive value on title. Such entries are relevant
only for the purpose of collecting land revenue. Similar view has been
expressed in the series of decisions thereafter.
6.1 In the case of Suraj Bhan v. Financial Commissioner, (2007) 6 SCC 186 , it
is observed and held by this Court that an entry in revenue records does not
confer title on a person whose name appears in record-of-rights. Entries in the
revenue records or jamabandi have only “fiscal purpose”, i.e., payment of land
revenue, and no ownership is conferred on the basis of such entries. It is
further observed that so far as the title of the property is concerned, it can only
be decided by a competent civil court. Similar view has been expressed in the
cases of Suman Verma v. Union of India, (2004) 12 SCC 58; Faqruddin v.
Tajuddin (2008) 8 SCC 12; Rajinder Singh v. State of J&K, (2008) 9 SCC 368;
Municipal Corporation, Aurangabad v. State of Maharashtra, (2015) 16 SCC 689;
T. Ravi v. B. Chinna Narasimha, (2017) 7 SCC 342; Bhimabai Mahadeo
Kambekar v. Arthur Import & Export Co., (2019) 3 SCC 191; Prahlad Pradhan v.
Sonu Kumhar, (2019) 10 SCC 259; and Ajit Kaur v. Darshan Singh, (2019) 13
7. In view of the above settled proposition of law laid down by this Court, it
cannot be said that the High Court has committed any error in setting aside the
order passed by the revenue authorities directing to mutate the name of the
petitioner herein in the revenue records on the basis of the alleged will dated
20.05.1998 and relegating the petitioner to approach the appropriate court to
crystalise his rights on the basis of the alleged will dated 20.05.1998. We are in
complete agreement with the view taken by the High Court.
8. The special leave petition is accordingly dismissed.
9. Pending applications shall stand disposed of.
Petition for Special Leave to Appeal (C) No. 13146/2021
(Arising out of impugned final judgment and order dated 13-03-2020 in MP No.
508/2019 passed by the High Court of M.P Principal Seat at Jabalpur)
(FOR ADMISSION and I.R. and IA No.106233/2021-EXEMPTION FROM FILING C/C
OF THE IMPUGNED JUDGMENT and IA No.106235/2021-EXEMPTION FROM FILING
Date : 06-09-2021 This petition was called on for hearing today.
UPON hearing the counsel the Court made the following
The Special Leave Petition is dismissed in terms of the signed order.
Pending applications shall stand disposed of.
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The Supreme Court observed that mutation entry in the revenue record is only for fiscal purposes and does not confer any right, title or interest in favour of a person."If there is any dispute with respect to the title and more particularly when the mutation entry is sought to be made on the basis of the will, the party who is claiming title/right on the basis of the will has to approach...
The Supreme Court observed that mutation entry in the revenue record is only for fiscal purposes and does not confer any right, title or interest in favour of a person.
"If there is any dispute with respect to the title and more particularly when the mutation entry is sought to be made on the basis of the will, the party who is claiming title/right on the basis of the will has to approach the appropriate civil court/court and get his rights crystalised and only thereafter on the basis of the decision before the civil court necessary mutation entry can be made, the bench of Justices MR Shah and Aniruddha Bose observed.
In this case, the Additional Commissioner, Rewa Division, Rewa, directed to mutate the name of the petitioner in the revenue records, on the basis of the a will produced by him. The Madhya Pradesh High Court, in a petition filed by some parties, set aside the order and directed the petitioner to approach the appropriate court to crystalise his rights on the basis of the alleged will dated 20.05.1998. The petitioner therefore filed Special Leave Petition before the Apex Court
'5..Be that as it may, as per the settled proposition of law, mutation entry does not confer any right, title or interest in favour of the person and the mutation entry in the revenue record is only for the fiscal purpose. As per the settled proposition of law, if there is any dispute with respect to the title and more particularly when the mutation entry is sought to be made on the basis of the will, the party who is claiming title/right on the basis of the will has to approach the appropriate civil court/court and get his rights crystalised and only thereafter on the basis of the decision before the civil court necessary mutation entry can be made", the bench observed.
The court referred to the judgment in Balwant Singh v. Daulat Singh (D) (1997) 7 SCC 137.
"Right from 1997, the law is very clear. In the case of Balwant Singh v. Daulat Singh (D) By Lrs., reported in (1997) 7 SCC 137, this Court had an occasion to consider the effect of mutation and it is observed and held that mutation of property in revenue records neither creates nor extinguishes title to the property nor has it any presumptive value on title. Such entries are relevant only for the purpose of collecting land revenue. Similar view has been expressed in the series of decisions thereafter.", the Court said.
The bench further noted that in Suraj Bhan v. Financial Commissioner, (2007) 6 SCC 186, it was held that an entry in revenue records does not confer title on a person whose name appears in record-of-rights.
"Entries in the revenue records or jamabandi have only "fiscal purpose", i.e., payment of land revenue, and no ownership is conferred on the basis of such entries. It is further observed that so far as the title of the property is concerned, it can only be decided by a competent civil court.", it noted.
The court noticed that similar view has been expressed in the cases of Suman Verma v. Union of India, (2004) 12 SCC 58; Faqruddin v. Tajuddin (2008) 8 SCC 12; Rajinder Singh v. State of J&K, (2008) 9 SCC 368; Municipal Corporation, Aurangabad v. State of Maharashtra, (2015) 16 SCC 689; T. Ravi v. B. Chinna Narasimha, (2017) 7 SCC 342; Bhimabai Mahadeo Kambekar v. Arthur Import & Export Co., (2019) 3 SCC 191; Prahlad Pradhan v. Sonu Kumhar, (2019) 10 SCC 259; and Ajit Kaur v. Darshan Singh, (2019) 13 SCC 70. 7. In vi
Upholding the High Court judgment, the bench dismissed the Special Leave Petition.
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1. The appellant Kewal Krishan and his elder brother (one of the
respondents) Sudarshan Kumar acquired the properties which are the
subject matter of these appeals (for short “the suit properties”) under
12th August 1976 and 19th October 1976.
2. The appellant Kewal Krishan executed a power of attorney in
favour of Sudarshan Kumar on 28th March 1980. Acting on the basis of
the said power of attorney, two sale deeds were executed by
Sudarshan Kumar on 10th April 1981. The first sale deed was executed
by him by which he purported to sell a part of the suit properties to his
minor sons. The sale consideration was shown as Rs.5,500/-. The
other sale deed was executed by Sudarshan Kumar in favour of his
wife in respect of remaining part of the suit properties. The
consideration shown in the sale deed was of Rs.6,875/-. The
respondents are Sudarshan Kumar, his wife and his sons.
3. Two separate suits were instituted by the appellant on 10 th May
1983. One was against Sudarshan Kumar and his two sons and the
other one was against Sudarshan Kumar and his wife. Both the suits,
as originally filed, were for injunction restraining the defendants from
interfering with the possession of the appellant and from alienating the
share of the appellant in the suit properties. In the alternative, a prayer
was made for passing a decree for possession. On 23 rd November,
1985, the plaint in both the suits was amended by incorporating the
relief of declaration that the power of attorney and sale deeds were null
and void. A prayer was also incorporated for a money decree for the
share of the appellant in the compensation awarded in respect of a
tube well on the suit properties.
4. Sudarshan Kumar contested the suit along with other
respondents. It is the case of Sudarshan Kumar that he was employed
in Muscat and was earning a large income. It is the further case of
Sudarshan Kumar that at the relevant time, the appellant was
unemployed. From time to time, he remitted amounts to the appellant
from his own earnings. Sudarshan Kumar had negotiated for
purchasing the suit properties. According to his case, the suit
properties were to be purchased only in his name. His contention is
that while getting the sale deeds executed on 12 th August 1976 and
19th October 1976, the appellant got his name incorporated as a
purchaser along with Sudarshan Kumar. According to the case of
Sudarshan Kumar, the appellant was a benamidar. In short, the
contention of Sudarshan Kumar is that he is the sole owner of the suit
properties. His further contention is that by writing a letter to him on
15th April 1980, the appellant accepted his sole ownership and that is
how the appellant voluntarily executed the power of attorney dated 23 rd
March 1980 which was duly registered under the Indian Registration
Act, 1908 under which Sudarshan Kumar was appointed as his
attorney in respect of the suit properties. Therefore, the contention of
Sudarshan Kumar is that the sale deeds are legal and valid. Apart
from these contentions on merits, it was contended by Sudarshan
Kumar that the prayers for declaration incorporated subsequently by
way of amendment in relation to the two sale deeds and the power of
attorney were barred by limitation. It was contended that even the
prayer made for grant of his share in the compensation in respect of
tube well was barred.
5. The Trial Court dismissed the suits filed by the appellant. The
Trial Court held that the suit lands were intended to be purchased only
by Sudarshan Kumar and that is how the original sale deeds were in
possession of Sudarshan Kumar. The Trial Court accepted the
contention that he was the exclusive owner and the appellant was the
benamidar. The Trial Court upheld the contention of Sudarshan Kumar
regarding legality and validity of the power of attorney and both the
sale deeds which were the subject matter of challenge. Trial Court
held that as Sudarshan Kumar was the only owner of the suit
properties, the appellant was disentitled to any relief. The Trial Court
also held that the prayer for grant of a share in compensation in
respect of the tube well was barred by provisions of Rule 2 of Order II
of the Code of Civil Procedure, 1908.
6. Being aggrieved by the judgment of the Trial Court, the
appellant preferred two appeals before the District Court. The appeals
were partly allowed. The District Court held that Sudarshan Kumar did
not step into witness box and except for the bald statement made by
the attorney of Sudarshan Kumar in his evidence, nothing was placed
on record to show that the entire sale consideration for acquiring suit
properties was paid by him. The District Court held that as the case
of Sudarshan Kumar was that the money was transmitted from a
foreign country to the appellant, it was easily possible for Sudarshan
Kumar to adduce documentary evidence to show that money was
transferred to the appellant as alleged in his written statement.
Therefore, the District Court accepted that both the appellant and
Sudarshan Kumar were the joint owners of the suit properties. The
District Court also held that the sons of Sudarshan Kumar and the wife
of Sudarshan Kumar had a notice that the appellant had one half
share in the suit properties as there was a recital to that effect in the
sale deeds executed by Sudarshan Kumar. It was further held that
Sudarshan Kumar, his sons and his wife failed to adduce any evidence
to show that the price was paid as mentioned in the impugned sale
deeds. The District Court observed that while executing the sale deed
in favour of his wife, Sudarshan Kumar described his wife as the
daughter of one Mehar Chand and that she has not been described as
his wife. The District Court held that the sale deeds dated 10 th April
1981 were without consideration. Therefore, the District Court decreed
the suit by granting joint possession by setting aside the sale deeds
dated 10th April 1981. However, the prayer for compensation in respect
of the tube well was rejected.
7. The respondents filed separate second appeals before the High
Court which have been allowed by the impugned Judgment and order.
The High Court upheld the finding of the District Court that Sudarshan
Kumar failed to adduce evidence to prove that he remitted money from
foreign country to the appellant. Therefore, the High Court held that the
appellant and Sudarshan Kumar were the joint owners of the suit
properties. The High Court held that the power of attorney was valid.
The High Court further held that the suits for declaration of invalidity of
the sale deeds were barred by limitation as the said prayers were
belatedly incorporated on 23rd November 1985. The High Court held
that the sale consideration mentioned in the sale deeds executed on
10th April 1981 of Rs.5,500/- and Rs.6,875/- respectively was not
exorbitant and, therefore, the amounts were not out of reach of the
sons of Sudarshan Kumar and wife of Sudarshan Kumar. As the High
Court held the appellant to be the owner of half share in the suit
properties and as the power of attorney was held to be valid, by the
impugned Judgment and order, it directed Sudarshan Kumar to pay
the share of the appellant in the consideration shown under the sale
deeds dated 10th April 1981 with 12% interest from the date of
execution of the sale deeds. The said Judgment and order has been
impugned in these appeals.
8. Shri Neeraj Kumar Jain, the learned Senior Counsel appearing
for the appellant submitted that even the High Court accepted that
there was no evidence adduced to show that the purchasers under the
sale deeds dated 10th April 1981 had paid consideration to Sudarshan
Kumar. He submitted that finding of the High Court that the
consideration amounts were not out of reach of the purchasers is
without any basis as it was not the case of the Sudarshan Kumar that
his wife and minor sons had any source of income at the relevant time.
9. The learned Senior Counsel further submitted that even in the
unamended plaints, there were specific assertions made that the sale
deeds were null and void as the same were without consideration. He
pointed out that the unamended plaints contained a specific contention
that the transactions of sale were sham transactions. It was
specifically pleaded that the market value of the suit properties was
more than Rs.30,000/- and there was no occasion to sell the suit
properties at the price shown in the sale deeds. He pointed out that it
was pleaded in the unamended plaints that the minor sons of
Sudarshan Kumar and his wife had no source of earning. He submitted
that as the sale deeds were without consideration, the same were void.
He pointed out that the suit for injunction was based on the title
pleaded by the appellant as a joint owner of the suit properties and
therefore, the appellant continues to be the owner of his share in the
suit properties as the sale deeds are void and sham. He urged that it
was not necessary to amend the plaint and to seek a specific
declaration regarding the invalidity of the power of attorney and sale
deeds. He pointed out that the High Court has committed a manifest
error while recording a finding on bar of limitation. He invited our
attention to paragraph 28 of the impugned Judgment which proceeds
on the footing that the appellant had challenged the legality and
validity of sale deeds dated 12 th March 1976 and 19th October 1976.
He urged that the specific challenge was two sale deeds dated 10 th
April 1981. He submitted that the High Court has erroneously
disturbed the decree passed by the District Court.
10. The learned Senior Counsel Shri Surjeet Singh representing
the respondents invited our attention to the letter dated 5 th April 1980
(Exhibit D3) addressed by the appellant to Sudarshan Kumar. He
pointed out that in the said letter, the appellant accepted that the suit
lands were purchased out of the amounts remitted by Sudarshan
Kumar and in fact, the appellant agreed to transfer the suit properties
in the name of Sudarshan Kumar. He would, therefore, submit that the
appellant has no right, title and interest in the suit properties. He
submitted that in the suits filed in May 1983, the appellant did not pray
for any declaration regarding the sale deeds and the power of attorney.
He pointed out that only in November 1985, the plaint was amended to
incorporate the prayers for declaration as regards the power of
attorney dated 28th March 1980 and the sale deeds dated 10 th April
1981. He would, therefore, submit that the prayers for declaration
were barred by limitation. The learned Senior Counsel submitted that
without getting a declaration regarding the invalidity or nullity of sale
deeds, the appellant cannot get any relief. He submitted that the
appellant did not discharge initial burden on him by stepping in to
witness box. He would, therefore, submit that no interference is called
for with the impugned Judgment and order.
11. After the judgment in these appeals was reserved on 11 th
November 2021, the respondents have filed written submissions on
16th November 2021 contending that the issue whether the purchasers
under the sale deeds were the bona fide purchasers was redundant.
He urged that the contention that the constituted attorney of
Sudarshan Kumar was not a competent witness was not raised by the
12. We have given our careful consideration to the submissions.
The case made out by the respondents in their written statement was
that Sudarshan Kumar, who was employed abroad, remitted large
amounts to the appellant, his younger brother, who was unemployed at
that time. The case of the respondents was that Sudarshan Kumar
paid the entire consideration for acquiring the suit properties under the
sale deeds of 1976. The contention of the respondents is that instead
of purchasing suit properties only in the name of Sudarshan Kumar,
the appellant incorporated his name in the sale deeds along with
Sudarshan Kumar. It is an admitted position that the said Sudarshan
Kumar did not step into the witness box. Moreover, there is a finding
recorded by the District Court that no evidence was adduced by
Sudarshan Kumar to prove that certain amounts were transmitted by
him from a foreign country to the appellant. This finding has not been
disturbed by the High Court. The modified decree passed by the High
Court by the impugned Judgment and order proceeds on the basis of
the finding that the appellant and Sudarshan Kumar were the joint
owners of the suit properties as Sudarshan Kumar failed to establish
his claim that he was the sole owner of the suit properties. The
respondents have not chosen to challenge the impugned Judgment
and order and therefore, the finding that the appellant and Sudarshan
Kumar were the joint owners of the suit properties has become final.
Hence, reliance placed by the respondents on the letter at Exhibit D3
will not help them.
13. A copy of the unamended plaint in one of the two suits is placed
on record along with the counter affidavit. In paragraph 3 of the
unamended plaint, there is a specific pleading that both the sale deeds
of 10th April 1981 were null and void as the same were without
consideration. In the plaint, it is specifically pleaded that suit
properties which were worth more than Rs.30,000/- were shown to
have been sold at a throwaway price. The prayer for injunction was
made in the unamended plaint on the basis of the title claimed by the
appellant as a joint owner of the suit properties along with Sudarshan
14. Admittedly, there is no evidence adduced on record by
Sudarshan Kumar that his minor sons had any source of income at the
relevant time and that they paid him consideration as mentioned in the
sale deed. Similarly, no evidence was adduced to show that
Sudarshan Kumar’s wife had any source of income and that she paid
consideration mentioned in the sale deed. An issue was specifically
framed by the Trial Court on the validity of the sale deeds. There is a
specific finding recorded by the District Court that there was no
evidence adduced to show that Sudarshan Kumar’s wife and minor
children paid consideration as shown in the sale deeds. In fact, before
the District Court, it was pleaded that Sudarshan Kumar’s wife had
brought some money from her parents. The District Court in
paragraph 11 of the judgment held that no evidence was adduced to
prove the said contention. Therefore, there is a categorical finding
recorded in the same paragraph by the District Court that Sudarshan
Kumar, by taking advantage of the power of attorney, transferred the
suit lands to his own minor sons and his wife without any
consideration. The High Court has not disturbed the finding recorded
by the District Court regarding the failure of the respondents to adduce
evidence regarding the payment of consideration under the sale deeds
dated 10th April 1981. The High Court in paragraph 29 merely
observed that the sale consideration of Rs.5,500/- and Rs.6,875/- was
not exorbitant and was not out of reach of Sudarshan Kumar’s sons
and wife. Perhaps, the High Court has ignored that it was considering
a case of sale deeds of the year 1981 and that the purchasers under
one of two sale deeds were minor sons of Sudarshan Kumar and it
was not even pleaded that they had any source of income. The same
is the case with the sale deed executed by Sudarshan Kumar in favour
of his wife. Thus, undisputed factual position is that the respondents
failed to adduce any evidence to prove that the minor sons had any
source of income and that they had paid the consideration payable
under the sale deed. They did not adduce any evidence to show that
Sudarshan Kumar’s wife was earning anything and that she had
actually paid the consideration as mentioned in the sale deed.
15. Section 54 of the Transfer of Property Act, 1882 (for short “the
“54. “Sale” defined.—“Sale” is a transfer of
promised or part-paid and part-promised.
case of tangible immoveable property of the
value of one hundred rupees and upwards, or in
the case of a reversion or other intangible thing,
can be made only by a registered instrument.
rupees, such transfer may be made either by a
registered instrument or by delivery of the
property.
Delivery of tangible immoveable property
takes place when the seller places the buyer, or
such person as he directs, in possession of the
property.
Contract for sale.—A contract for the sale
of immoveable property is a contract that a sale
of such property shall take place on terms settled
between the parties.
It does not, of itself, create any interest in
or charge on such property.”
Hence, a sale of an immovable property has to be for a price. The
price may be payable in future. It may be partly paid and the remaining
part can be made payable in future. The payment of price is an
essential part of a sale covered by section 54 of the TP Act. If a sale
deed in respect of an immovable property is executed without payment
of price and if it does not provide for the payment of price at a future
date, it is not a sale at all in the eyes of law. It is of no legal effect.
Therefore, such a sale will be void. It will not effect the transfer of the
immovable property.
16. Now, coming back to the case in hand, both the sale deeds
record that the consideration has been paid. That is the specific case
of the respondents. It is the specific case made out in the plaints as
originally filed that the sale deeds are void as the same are without
consideration. It is pleaded that the same are sham as the purchasers
who were minor sons and wife of Sudarshan Kumar had no earning
capacity. No evidence was adduced by Sudarshan Kumar about the
payment of the price mentioned in the sale deeds as well as the
earning capacity at the relevant time of his wife and minor sons.
Hence, the sale deeds will have to be held as void being executed
without consideration. Hence, the sale deeds did not affect in any
manner one half share of the appellant in the suit properties. In fact,
such a transaction made by Sudarshan Kumar of selling the suit
properties on the basis of the power of attorney of the appellant to his
own wife and minor sons is a sham transaction. Thus, the sale deeds
of 10th April 1981 will not confer any right, title and interest on
Sudarshan Kumar’s wife and children as the sale deeds will have to be
ignored being void. It was not necessary for the appellant to
specifically claim a declaration as regards the sale deeds by way of
amendment to the plaint. The reason being that there were specific
pleadings in the plaints as originally filed that the sale deeds were void.
A document which is void need not be challenged by claiming a
declaration as the said plea can be set up and proved even in
collateral proceedings.
Hence, the issue of bar of limitation of the prayers for declaration
incorporated by way of an amendment does not arise at all. The
additional submissions made by the respondents on 16 th November
2021 have no relevance at all.
17. As no title was transferred under the said sale deeds, the
appellant continues to have undivided half share in the suit properties.
That is how the District Court passed the decree holding that the
appellant is entitled to joint possession of the suit properties along with
Sudarshan Kumar. Therefore, for the reasons recorded above, by
setting aside the impugned Judgment and order of the High Court, the
decree passed by the District Court deserves to be restored.
18. Accordingly, the appeals are allowed. The impugned Judgment
of the High Court is set aside and common judgment and order dated
21st May, 1988 passed by the Additional District Judge, Ropar, Punjab
in Civil Appeal bearing No.31/256/23.07.1986 and Civil Appeal bearing
No.34/257 /23.07.1986 is hereby restored.
19. There will be no order as to costs.
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The Supreme Court observed that the payment of price is an essential part of a sale.If a sale deed in respect of an immovable property is executed without payment of price and if it does not provide for the payment of price at a future date, it is not a sale at all in the eyes of law, the bench comprising Justices Ajay Rastogi and Abhay S. Oka said.The court also observed that a document which...
The Supreme Court observed that the payment of price is an essential part of a sale.
If a sale deed in respect of an immovable property is executed without payment of price and if it does not provide for the payment of price at a future date, it is not a sale at all in the eyes of law, the bench comprising Justices Ajay Rastogi and Abhay S. Oka said.
The court also observed that a document which is void need not be challenged by claiming a declaration as the said plea can be set up and proved even in collateral proceedings.
In this case, one Kewal Krishan executed a power of attorney in favour of Sudarshan Kumar on 28th March 1980. Acting on the basis of the said power of attorney, two sale deeds were executed by Sudarshan Kumar on 10th April 1981. The first sale deed was executed by him by which he purported to sell a part of the suit properties to his minor sons. The sale consideration was shown as Rs.5,500/-. The other sale deed was executed by Sudarshan Kumar in favour of his wife in respect of remaining part of the suit properties. The consideration shown in the sale deed was of Rs.6,875/-.
Kewal Krishan filed two separate suits. One was against Sudarshan Kumar and his two sons and the other one was against Sudarshan Kumar and his wife. Both the suits, as originally filed, were for injunction restraining the defendants from interfering with his possession and from alienating his share in the suit properties. In the alternative, a prayer was made for passing a decree for possession. The Trial Court dismissed the suits filed by Kewal Krishan. In appeal, the District Court partly decreed the suits. The High Court held that the suits for declaration of invalidity of the sale deeds were barred by limitation as the said prayers were belatedly incorporated on 23rd November 1985.
In appeal, it was contended that there was no evidence adduced to show that the purchasers under the sale deeds dated 10th April 1981 had paid consideration to Sudarshan Kumar, and that the minor sons of Sudarshan Kumar and his wife had no source of earning
Referring to Section 54 of the Transfer of Property Act, 1882, the bench observed:
Hence, a sale of an immovable property has to be for a price. The price may be payable in future. It may be partly paid and the remaining part can be made payable in future. The payment of price is an essential part of a sale covered by section 54 of the TP Act. If a sale deed in respect of an immovable property is executed without payment of price and if it does not provide for the payment of price at a future date, it is not a sale at all in the eyes of law. It is of no legal effect. Therefore, such a sale will be void. It will not effect the transfer of the immovable property.
The court noted that no evidence was adduced by Sudarshan Kumar about the payment of the price mentioned in the sale deeds as well as the earning capacity at the relevant time of his wife and minor sons. Hence, the sale deeds will have to be held as void being executed without consideration, the court added. On the issue of limitation, the bench said:
"It was not necessary for the appellant to specifically claim a declaration as regards the sale deeds by way of amendment to the plaint. The reason being that there were specific pleadings in the plaints as originally filed that the sale deeds were void. A document which is void need not be challenged by claiming a declaration as the said plea can be set up and proved even in collateral proceedings. Hence, the issue of bar of limitation of the prayers for declaration incorporated by way of an amendment does not arise at all."
Case name: Kewal Krishan vs Rajesh Kumar
Coram: Justices Ajay Rastogi and Abhay S. Oka
Counsel: Sr. Adv Neeraj Kumar Jain for appellant, Sr. Adv Surjeet Singh for respondent
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The appellant was convicted by the Trial Court for
offences punishable under Sections 121,122, 124-A of IPC
and sentenced to undergo life imprisonment with fine of
Rs. 25,000/-. Further, the appellant was convicted under
Section 25 of the Arms Act, 1959 and sentenced to five
years with fine of Rs.25,000/- He was also convicted
under Section 4 of the Explosives Act and sentenced to
life imprisonment with fine of Rs.25,000/- and under
Section 5 of the Explosive Substances Act and sentenced
to life imprisonment with fine of Rs.25,000/-.
The High Court partly allowed the appeal filed by
the appellant and acquitted him under Sections 121, 122
and 124-A IPC. However, the High Court upheld the
conviction and sentence under Section 25 of the Arms Act
and Section 4 of the Explosives Act and Section 5 of the
Notice was issued by this Court confined to
We are informed that the appellant has undergone
sentence of more than 15 years. Having considered the
material on record and after hearing Mr. Sidharth Dave,
learned senior counsel appearing for the appellant and
Mr. Shubhranshu Padhi, learned counsel appearing for the
State of Karnataka, we are of the considered view that
the sentence should be converted to the period already
undergone. Ordered accordingly.
The conviction of the appellant under Section 25 of
the Arms Act, Section 4 of the Explosives Act and
Section 5 of the Explosives Substances Act is upheld.
The appellant is, accordingly, directed to be
released forthwith.
The Criminal Appeal is disposed of accordingly.
Pending application(s), if any, shall also stand disposed
Petition(s) for Special Leave to Appeal (Crl.) No(s). 800/2017
(Arising out of impugned final judgment and order dated 20-07-2016
in CRLA No. 3645/2010 passed by the High Court Of Karnataka At
Date : 07-09-2021 This petition was called on for hearing today.
UPON hearing the counsel the Court made the following
Leave granted.
The Criminal Appeal is disposed of in terms of
the Signed Order. Pending application(s), if any,
shall also stand disposed of.
(Signed order is placed on the file)
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Supreme Court today has ordered the release of an alleged Lashkar-e-Taiba Member incarcerated since 2006 in Kalaburgi jail in a case related to recovery of a pistol and two hand grenades.The order was passed in an appeal filed by one Abdul Raheman who is said to have undergone a sentence of more than 15 years. Allegedly a member of banned terrorist organisation Lashkar-e-Taiba,...
Supreme Court today has ordered the release of an alleged Lashkar-e-Taiba Member incarcerated since 2006 in Kalaburgi jail in a case related to recovery of a pistol and two hand grenades.
The order was passed in an appeal filed by one Abdul Raheman who is said to have undergone a sentence of more than 15 years.
Allegedly a member of banned terrorist organisation Lashkar-e-Taiba, the appellant was convicted by the Trial Court for offences punishable under Sections 121,122, 124-A of IPC and sentenced to undergo life imprisonment with fine of Rs. 25,000/-.
He was further convicted under Section 25 of the Arms Act, 1959 and sentenced to five years with fine of Rs.25,000/-, under Section 4 of the Explosives Act and sentenced to life imprisonment with fine of Rs.25,000/- and under Section 5 of the Explosive Substances Act and sentenced to life imprisonment with fine of Rs.25,000/-.
A Bench of Justices L. Nageswara Rao, B.R. Gavai and B.V. Nagarathna noted that while the High Court had partly allowed the appeal filed by the instant appellant and acquitted him under Sections 121, 122 and 124-A IPC, it had upheld the conviction and sentence under the other provisions.
Noting that the appellant had already been imprisoned for a considerable amount of time, the Bench was of the considered view that the sentence should be converted to the period already undergone.
"The appellant is, accordingly, directed to be released forthwith", it said.
Senior Advocate Sidharth Dave appeared for the appellant and Counsel Shubhranshu Padhi, appeared for the State of Karnataka.
Cause Title: Abdul Raheman v State of Karnataka
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Writ Petition (Crimi nal) No. 184 of 1989.
(Under Article 32 of the Constitution of India).
Kapil Sibbal, K.K. Lahiri, K.R. Nagaraja and R.S. Hegde for the Petitioner.
V.C. Mahanjan, T.V.S.N. Chari and Ms. A. Subhashini for the Respondents.
344 The Judgment of the Court was delivered by DUTT, J.
In this writ petition the petitioner has chal lenged the validity of the detention order dated January 19, 1989 passed under the , hereinaf ter referred to as 'the Act ', by virtue of which the peti tioner has been under detention since the said date.
The allegations made in the grounds of detention need not be stated, for only legal submissions have been made on behalf of the petitioner in challenging the order of detention.
The order of detention dated January 19, 1989 reads as follows: "WHEREAS, I, Vijay Karan, Commissioner of Police, Delhi, am satisfied that with a view to prevent Sh.
Jitender Tyagi s/o Sh.
Ram Nath Tyagi, R/o VIII.
Khajuri, Police Station.
Kila, Distt.
Meerut (Uttar Pradesh) aged at about 25/26 from acting in a manner prejudi cial to the maintenance of public order, it is necessary to make an order directing that the said Sh.
Jitender Tyagi may be detained.
Now, therefore, in exercise of the powers conferred vide sub section (2) of section 3 of the as delegated to me vide Delhi Administration, Delhi 's order No. F2/1/88 H.P. II, dated 11.1.89.
I hereby direct that the said Sh.
Jitender Tyagi be detained and kept in Central Jail, Tihar, Delhi.
" It, thus, appears from the order of detention that it was passed by the Commissioner of Police, Delhi, in exercise of the powers conferred by sub section (2) of section 3 of the Act as delegated to him by the Delhi Administration.
The order of detention was approved by the Administrator of Delhi by his order dated January 31, 1989.
Paragraph 3 of the said order is in the following terms: "3.
Now, therefore, in exercise of the powers conferred upon him by sub section (4) of section 3 of the , the Administrator hereby approves the order of the Police Commissioner dated 19.1.1989 de taining Sh.
Jitender Tyagi and further directs that Sh.
Jitender Tyagi be kept in custody in Central Jail, Tihar, New Delhi.
The first point that has been strenuously urged by Mr. Kapil Sibal, learned Counsel appearing on behalf of the petitioner, is that the order of detention not having been approved within a period of 345 twelve days, as provided in sub section (4) of section 3 of the Act, it had spent its force on the expiry of the said period and, accordingly, the detention of the petitioner is illegal.
Section 3 of the Act provides for the power to make orders of detention under certain circumstances.
Sub section (4) of section 3 reads as follows: "(4).
When any order is made under this sec tion by an officer mentioned in sub section (3), he shall forthwith report the fact to the State Government to which he is subordinate together with the grounds on which the order has been made and such other particulars as, in his opinion, have a bearing on the matter, and no such order shall remain in force for more than twelve days after the making thereof unless, in the meantime, it has been approved by the State Government: Provided that where under section 8 the grounds of detention are communicated by the officer making the order after five days but not later than ten days from the date of detention, this sub section shall apply sub ject to the modification that, for the words "twelve days", the words "fifteen days" shall be substituted.
" Under sub section (4) of section 3, "no such order shall remain in force for more than twelve days after the making thereof unless, in the meantime, it has been approved by the State Government".
The question that arises for our consid eration relates to the computation of the period of twelve days.
To be more explicit, the question is whether in com puting the period of twelve days, the day on which the order of detention is passed should be included or not.
It is submitted on behalf of the petitioner that the day on which the order of detention was passed should be included and the order approving the detention having been passed on January 31, 1989, that is, on the thirteenth day after the expiry of twelve days, it had ceased to be in force.
On the other hand, it is contended on behalf of the respondents that the day on which the detention order was passed should be excluded and, accordingly, the detention of the petitioner having been approved on January 31, 1989, it was quite within the period of twelve days.
Further, it is the case of the respondents that the order of detention was, as a matter of fact, approved on January 26, 1989 and by the order dated January 31, 1989, the order of approval was communicated to the authorities concerned.
346 We may first consider the contention of the respondents that the order of detention was duly approved on January 26, 1989.
A statement in that regard has been made in the coun ter affidavit of the respondents.
We are, however, unable to accept the same.
We have already extracted above paragraph 3 of the order of detention dated January 31, 1989 in which it has been categorically stated "the Administrator hereby approves the order of the Police Commissioner dated 19.1.1989 detaining Sh.
Jitender Tyagi.
" After the said categorical statement in paragraph 3, it is difficult to accept the contention of the respondents that the said order dated January 31, 1989 was made for the purpose of communi cating the approval of the order of detention.
In our view, there can be no doubt, whatsoever, that the order of deten tion was approved by the said order dated January 31, 1989.
Now, we may consider the question as to the computation of twelve days as referred to in sub section (4) of section 3.
Sub section (4), inter alia, provides that when an order is made by an officer mentioned in sub section (3), he shall forthwith report the facts to the State Government.
It is contended on behalf of the petitioner that under sub section (4), the officer has to act forthwith after the making of the order in reporting the fact to the State Government and this is sufficient indication that the day on which the order of detention is made should be included in computing the period of twelve days.
In our opinion, sub section (4) has given a clear indi cation as to the computation of twelve days.
The period of twelve days has to be calculated 'after ' the making of the order of detention.
Thus, it is apparent that the period of twelve days comes after the making of the order of deten tion.
It is true that in sub section (4), the officer making the order of detention shall forthwith report the fact to the State Government, but the word 'forthwith ' will not be taken into consideration for the purpose of computing the period of twelve days inasmuch as there is a clear indica tion that the said period shall be computed after the order is made.
In other words, sub section (4) itself excludes the day on which the order is made.
Computation of twelve days including the day on which the detention order is made will be ignoring the direction of the legislature, as given in sub section (4) itself, that the said period of twelve days will commence after the making of the detention order.
It is, however, submitted that when two interpretations are possible, that which enures to the benefit of the detenu should be accepted.
In our opinion, sub section (4) admits of only one interpretation regarding the computation of twelve days and, accord 347 ingly, the question as to the adoption of the interpretation which enures to the benefit of the detenu does not arise.
The view which we take, is in accordance with the well established canons of interpretations.
It has been stated in Stroud 's Judicial Dictionary, Third Edition, Volume I, page 86, as follows: "Where an act has to be done within so many days "after" a given event, the day of such event is not to be reckoned In Smt.
Manjuli vs Civil Judge, AIR 1970 Bom.
1, the provision of section 15(1) of the Village Panchayats Act, 1958 came up for interpretation before the Nagput Bench of the Bombay High Court.
Section 15(1), inter alia, provides that any person who is qualified to vote is entitled to challenge the validity of the election "within 15 days after the date of the declaration of the result of the election".
The High Court in interpreting the provision rightly laid stress on the word "after" and held that the day of which the result was declared must be excluded.
This Court had also occasion to construe rule 119 of the Election Rules framed under the Representation of the People Act in T.C. Basappa vs T. Nagappa, ; Rule 119 provides, inter alia, that an election petition against a returned candidate is to be presented at any time after the publica tion of the name of such candidate under section 67 of the Act, but not later than 14 days from the date of publication of the notice in the official gazette under rule 113.
Mukh erjea, J. (as he than was) speaking for the Bench observed as follows: The High court seems to think that in comput ing period of 14 days the date of publication is to be included.
This seems to us to be an unwarranted view to take which is opposed to the ordinary canons of construction.
Dr. Tek Chand appearing for the respondent No. 1, plainly confessed his inability to support this view and we must hold therefore that there is no question of the Tribunal 's enter taining election petition after the prescribed period in the present case.
" In re: V.S. Mehta, AIR 1970 A.P. 234 which is a decision of the Andhra Pradesh High Court, relating to the computa tion of the period of three months in section 106 of the Factories Act Section 106 provides that no court shall take cognizance of any offence punishable 348 under the Act unless complaint thereof is made within three months of the date on which the alleged commission of the offence came to the knowledge of an Inspector.
The question before the High Court was whether in computing the said period of three months, the day on which the offence was alleged to be committed should be excluded or not.
The Andhra Pradesh High Court has taken the view that the term "within three months of the date" in section 106 of the Factories Act means 'within three calendar months after the commission of the offence came to the knowledge of an In spector ' and, consequently, the date of the knowledge, that is, the date of inspection should be excluded in computing the period of three months.
That interpretation resulting in the exclusion of the date of knowledge should be made as the High Court considered the expression "within three months of the date on which the alleged commission of the offence came to the knowledge of an Inspector" as "within three months after the date on which etc . . ".
Thus, what is significant to be noticed is the word "after" which the High Court has substituted for the word 'of ' in the expression "of the date" in section 106.
In Haru Das Gupta vs State of West Bengal, ; , the question was whether under section 12 of the West Bengal (Prevention of Violent Activities) Act, 1970, the order or decision of the State Government confirming the detention order was made within three months from the date of detention.
In holding that in computing the said period of three months, the date of detention shall be excluded, this Court has laid down that the effect of defining a period from such a day until such a day within which an act is to be done is to exclude the first day and to include the last day.
This Court has agreed to the view expressed by Wills, J. in Ratcliff vs Bartholomew, that a complaint under the Prevention of Cruelty to Animals Act filed on June 30 in respect of an act alleged to have been committed on May 30 was "within one calendar month after the cause of such complaint shall arise".
The principle on the basis of which that view was expressed by Wills, J. is that the day on which the cause for the complaint arose had to be excluded while computing the period within which under the Act, the complaint had to be filed.
Thus, it is apparent from the above decision that the day on which the cause of action arises has to be excluded in computing a particular period of time and, in the instant case, such an exclusion has to be made in view of the word "after" in sub section (4) of section 3 of the Act.
349 The petitioner has, however, placed reliance on a few decisions which will be stated presently.
In Prabhu Narain Singh vs Superintendent, Central Jail, Varanasi, ILR (1961) 1 All.
427 the Allahabad High Court has, on an interpreta tion of sub section (3) of section 3 of the , which is verbatim the same as subsec tion (4) of section 3 of the Act, with which we are con cerned, held that in computing the period of twelve days, the day on which the order of detention is passed should be included.
One of the reasons for the view expressed by the Allahabad High Court, which is strongly relied on by the learned Counsel for the detenu, is that if the day on which the order is passed is to be excluded .
from twelve days prescribed for the approval of the said order, then the consequence of the acceptance of this interpretation would be that it would not be possible for the State Government to approve of the order until after the day on which it was passed had expired.
It has been observed that such an unrea sonable consequence was not contemplated by the legislature.
When the language of a statute is plain and simple, the question of ascertaining the intention of the legislature does not arise.
In our opinion, the word 'after ' in sub section (4) of section 3 of the Act is very significant and clearly excludes any contention that in computing the period of twelve days the day on which the order of detention is passed should be included.
The Allahabad High Court has omitted to consider the word "after" in the section.
We are unable to subscribe to the view of the High Court that if the day on which the order of detention was made is excluded from the calculation of the period of twelve days, in that case, the position would be that it would not be possible for the State Government to approve of the order of deten tion until after the day on which it was passed had expired.
The expression "in the meantime" in sub section (4) of section 3 of the Act clearly indicates that the State Gov ernment can approve of the order of detention even on the day it is passed.
The language of sub section (4) of section 3 is plain and simple and the question whether the order of detention can be approved on the day it is passed or not does not at all arise.
In our opinion, Prabhu Narain Singh 's case (supra) has not correctly interpreted the provision of section 3(3) of the in regard to the computation of the period of twelve days.
The learned Counsel for the detenu has placed reliance upon two other decisions, namely, Nillapareddi Chandrasekhra Reddy vs The Government of Andhra Pradesh and Another, and C. Krishna Reddy and Another vs Commissioner of Police, Hyderabad 350 and Others, , both are of the Andhra Pradesh High Court.
These two decisions relate to the commu nication to the detenu of the grounds of detention not later than five days from the date of detention as provided in section 8(1) of the Maintenance of Internal Security Act, 1951.
We do not think that we should be justified in ex pressing any opinion as to the correctness or otherwise of the computation of the said period of five days as made in these two decisions, for the language that is used in sub section (4) of section 3 of the Act, with which we are concerned, is different from that used in section 8(1) of the Maintenance of Internal Security Act, 1951.
Similarly, the decision of the Patna High Court in Gulam Sarwar vs State of Bihar and Others, relied on by the respondents also related to the computation of the period of five days, as contained in section 8(1) of the Maintenance of Internal Security Act, 1951.
In this case, a contrary view has been expressed.
In our view all these decisions are of no help to us having regard to the differ ence in language of the provision with which we are con cerned.
Be that as it may, we have no hesitation in holding that in computing the period of twelve days referred to in sub section (4) of section 3 of the Act, the day on which the order of detention was passed should be excluded and, upon such computation, it must be held that the approval of the order of detention was made within twelve days after the making of the order of detention.
The next point that has been urged on behalf of the detenu is that the order dated January 11, 1989 of the Administrator of the Union Territory of Delhi, directing that during the period from 19.1.1989 to 18.4.
1989 the Commissioner of Police, Delhi, may also exercise the powers of detaining authority under sub section (2) of section 3 of the Act, is ultra vires section 3(3) of the Act.
Section3(3) provides that if, having regard to the circumstances pre vailing or likely to prevail in any area within the local limits of the jurisdiction of a District Magistrate or a Commissioner of Police, the State Government is satisfied that it is necessary so to do, it may, by order in writing, direct that during such period, as may be specified in the order, such District Magistrate or Commissioner of Police may also, if satisfied as provided in subsection (2), exer cise the powers conferred by the said sub section.
It is contended that as no circumstances, as mentioned in section 3(3) in respect of which satisfaction has to be made by the Administrator of Delhi, have been stated in the order, nor in the grounds of detention, the said order dated January 11, 1989 is illegal and invalid.
This point has not been taken in the writ petition and, accordingly, the Delhi Administration did not get an opportunity to controvert the allega 351 tions made for the first time in the argument.
The point is not one involving only a question of law, but it also in volves question of fact.
In the circumstances, we do not think we shall be justified in allowing the petitioner to take the point for the first time in the argument.
The next point that has been urged by the learned Coun sel for the petitioner is that the detaining authority, that is, the Commissioner of Police, Delhi, not having supplied to the detenu a copy of the said order dated January 11, 1989 of the Administrator of Delhi directing him to exercise the powers of the detaining authority under subsection (2) of section 3 of the Act, a serious prejudice has been caused to the detenu in that, if the copy of the said order had been supplied, the detenu might have contended that no such circumstances, as contemplated by sub section (3) of section 3 of the Act, were prevailing and that the delegation of the powers on the Commissioner of Police of Delhi was illegal and invalid and, consequently, the order of detention was inoperative and void.
The Act does not provide for supplying a copy of an order under section 3(3) of the Act.
The said order has not been relied upon by the Commissioner of Police in passing the impugned order of detention.
It may be that by virtue of the said order dated January 11, 1989 passed under section 3(3) of the Act, the Commissioner of Police could exercise the powers of the detaining authority under section 3(2) of the Act.
But, that has nothing to do as to the subjective satisfaction of the Commissioner of Police in making the impugned order of detention.
We do not think there is any substance in the contention made on behalf of the detenu and it is, accordingly, rejected.
In the grounds of detention it is, inter alia, stated as follows: "Though Sh.
Jitender Tyagi is in judicial custody, it is reported that applica tion for his bail has been filed in the court in case FIR No. 6 dated 7.1.89 u/s 25/54/59 Arms Act, P.S. Yamuna Vihar, Delhi.
It is likely that he may be released in these cases on bail and again indulge in nefarious activi ties of extortion and intimidation.
Keeping in view his activities, I have issued order for his detention under section 3(2) of the Na tional Security Act, 1980, so that his crimi nal activities which are prejudicial to the maintenance of public order, could be stopped.
" It is urged on behalf of the detenu that only in one case the detenu has made an application for bail, but in the said statement of 352 the Commissioner of Police in the grounds of detention, he was proceeding on the assumption that in all the cases the detenu had made applications for bail.
Accordingly, it is submitted that this shows complete non application of mind by the detaining authority.
We are unable to accept the contention.
Mr. Mahajan, learned Counsel for the respond ents, has produced before us the records of the detaining authority from which it appears that a copy of the applica tion for bail was with the detaining authority before he made the order of detention.
So, the contention that the detaining authority proceeded on the basis that the detenu had made applications for bail in all the cases pending against him is not correct.
There is, therefore, no sub stance in this contention.
Equally non meritorious is the contention that a copy of the application for bail has not been supplied to the de taining authority for his consideration.
It is submitted that if such a copy had been supplied to the detaining authority, he would have considered the statement of the detenu that he was falsely implicated in these cases.
The contention is based on erroneous assumption that a copy of the bail application was not supplied to the detaining authority.
Indeed, as noticed already, a copy of the bail 'application was with the detaining authority before he had passed the order of detention.
This contention is also rejected.
No other point has been urged in this writ petition.
For the reasons aforesaid, the writ petition is dismissed.
T.N.A. Petition dismissed.
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Sub section (4) of section 3 of the provides that no order passed by an officer men tioned in sub section (3) shah remain in force for more than twelve days after the making thereof unless, in the mean time, it has been approved by the State Government.
The Commissioner of Police, Delhi, in exercise of the powers conferred by sub section (2) of section 3 of the Act, as delegated to him by the Delhi Administration, passed an order on 19.1.1989 detaining the petitioner The order of detention was approved by the Administrator on 31.1.1989.
The petitioner filed a writ petition in this Court challenging the validity of the detention order contending that (i) the day on which the order of detention was passed should he included in the period of computation of twelve days and since the order of detention was approved on 31.1.1989, that is, on the thirteenth day after the expiry of twelve days, it had ceased to be in force; (ii) the non supply of the copy of order delegating the power of deten tion on the Commissioner of Police has seriously prejudiced the detenu; and (iii) there was serious non application of mind by the detaining authority.
342 Dismissing the petition, this Court, HELD: 1.
In computing the period of twelve days referred to in sub section (4) of section 3 of the Act, the day on which the order of detention was passed should be excluded.
Therefore the approval of the order of detention was made within twelve days after the making of the order of deten tion.
[350D] 1.1 Sub section (4) of section 3 has given a clear indication as to the computation of twelve days.
It excludes the day on which the order is made.
The word 'after ' in sub section (4) of section 3 of the Act is very significant and clearly excludes any contention that in computing the period of twelve days the day on which the order of deten tion is passed should be included.
The period of twelve days has to be calculated 'after ' the making of the order of detention, i.e. the day on which the cause of action arises has to be excluded in computing the period of time.
[346E F; 349D; 348H] 1.2 It is true that in sub section (4) the officer making the order of detention shall forthwith report the fact to the State Government, but the word 'forthwith ' will not be taken into consideration for the purpose of computing the period of twelve days inasmuch as there is clear indica tion that the said period shah be computed after the order is made.
Computation of twelve days including the day on which the detention order is made will be ignoring the direction of the legislature, as given in sub section (4) itself, that the said period of twelve days will commence after the making of the detention order.
[346F G] 2.
When the language of a statute is plain and simple, the question of ascertaining the intention of the legisla ture does not arise.
[349D] 2.1 Sub section (4) of section 3 admits of only one interpretation regarding the computation of twelve days and, accordingly, the question as to the adoption of the inter pretation which ensures to the benefit of the detenu does not arise.
[346H; 347A] T.C. Basappa vs T. Nagappa, ; ; Haru Das Gupta vs State of West Bengal, ; and Ratcliff vs Bartholomew, , followed.
Nillapareddi Chandrasekhara Reddy vs The Government of Andhra Pradesh and Anr., ; C. Krishna Reddy and Anr.
vs Commissioner of Police Hyderabad & Ors., 343 and Gulam Sarwar vs State of Bihar & Ors.
, , distinguished.
Manjuli vs Civil Judge, AIR 1970 Bom.
1 and In re: V.S. Mehta, AIR 1970 AP 234, approved.
The expression "in the meantime" in sub section (4) of section 3 of the Act clearly indicates that the State Government can approve of the order of detention even on the day it is passed.
The language of sub section (4) of section 3 is plain and simple and the question whether the order of detention can be approved on the day it is passed or not does not at all arise.
[349F] Prabhu Narain Singh vs Superintendent, Central Jail, Varanasi, ILR 1961 1 All. 427, disapproved.
The Act does not provide for supplying a copy of an order under Section 3(3) of the Act.
In the instant case, the said order has not been relied upon by the Commissioner of Police in passing the impugned order of detention.
It may be that by virtue of the said order under section 3(3) of the Act, the Commissioner of Police could exercise the powers of the detaining authority under section 3(2) of the Act.
But, that has nothing to do as to the subjective satis faction of the Commissioner of Police in making the impugned order of detention.
[351D E] 5.
In the instant case, a copy of the application for bail was with the detaining authority before he made the order of detention.
So, it is not correct to say that the detaining authority proceeded on the basis that the detenu had made applications for bail in all the cases pending against him.
Accordingly there was no non application of mind by the detaining authority.
[352A B & C]
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1. By invoking Section 374 of the Code of Criminal
Procedure, appellants, who are the original accused Nos. 1 to 3
have taken exception to the Judgment and Order of conviction
passed by the learned District Judge – 7 & Additional Sessions
Judge, Nashik dated 08.06.2015 in Sessions Case No. 142 of
2013, thereby convicting them for the offences punishable under
Sections 302 r/w 34, 323 r/w 34, 324 r/w 34 of the Indian Penal
Code ( for short ‘IPC’ ) & sentencing them to life, 3 years, 1 year
respectively.
2. The complainant, his sons and accused Nos. 1 to 4 are
agriculturists and also relatives of each other. Their lands were
adjoining to each other. Due to shortage of water, complainant
fetched/drew water from Pazar Talav (Percolation Tank).
Accused used to prevent the same. This resulted into bitter
relations.
3. On 06.12.2012, one of the sons of the complainant
namely Dattu and his wife went to fetch water. Another son
Raghunath also went to look for them and the complainant
claims to have followed all of them to the spot. According to the
complainant, accused persons assaulted Dattu with sickle and
they assaulted him and his son Raghunath with stick and sickle
respectively and all injured were taken to the hospital. There he
set law into motion. Dattu expired.
After completion of investigation, PW.11
charge-sheeted all the four accused persons and on committal of
the case, it was tried by the learned Additional Sessions Judge,
who on appreciating the evidence held accused Nos. 1 to 3 to be
guilty of offence under Section 302, 323 and 324 r/w 34 of the
IPC and acquitted accused No. 4 Rani from all charges. It is this
order of conviction which is now questioned before this Court on
various grounds raised in Appeal Memo.
4. Heard extensively both sides. Learned counsel would
challenge the fndings reached by the learned trial Judge on the
following grounds.
Firstly :- Failure of the learned trial Judge to appreciate the
evidence on record in the light of legal requirements.
Secondly :- Testimonies of PW.3, PW.4 & PW.5 are not consistent
and that PW.3 cannot be said to be eye witness.
Thirdly :- No evidence as to whether accused to be armed at the
time of occurrence. Rather complainant party had assaulted
accused partly.
Fourthly :- Overt act of accused persons is not defned.
Fifthly :- There being single blow to deceased. It is not the case
of homicidal death.
5. Learned APP would resist on the ground that there is
direct, trustworthy and reliable evidence, including that of
injured eye witness account. Medical evidence suggests
homicidal death of Dattu. Defence admitted injuries suffered by
PW.3 – complainant & PW.5 – Raghunath. Consequently, there
being incriminating material, learned trial Court rightly accepted
prosecution version & held accused guilty. According to him,
there being no merit in Appeal, the same may be dismissed.
6. In view of Judgment of Hon’ble Apex Court in the
case of Ishwarbhai Fujibhai Patni Vs. State of Gujarat , reported
in (1995) 1 SCC (Cri.) 222, this being Appellate Court, evidence
has to be re-examined, re-assessed and re-evaluated. Hence, we
accordingly proceed to do so.
7. The evidence goes to show that on said fateful night,
deceased went with his wife – PW.4 to fetch water. Taking into
account, the evidence of PW.3 – complainant, it is clear that after
deceased & PW.4, his other son Raghunath i. e. PW.5 went to the
spot. Therefore, complainant was the last person to reach the
spot. Hence, it is doubtful whether he had occasion to see the
entire episode. Further, his evidence is general & non-specifc
about the roles played by accused Nos. 1 to 3. Hence, we refrain
from relying his testimony.
8. On carefully scrutinizing the evidence of
PW.4 & PW.5, the occurrence gets unfolded. PW.4 was in the
company of deceased from inception. Hence, her evidence
assumes importance. Similarly, evidence of PW.5 Raghunath is
also relevant, as he too is an injured.
9. On minute examination of evidence of PW.4 & PW.5, it
is emerging that accused Murlidhar assaulted deceased Dattu
with sickle in stomach, whereas accused Nos. 2 & 3 assaulted
PW.5 and complainant – PW.3. Both these witnesses are silent
about any overtact by accused Nos. 2 & 3 on the person of
deceased Dattu.
However, it seems that accused Nos. 2 & 3 are
charge-sheeted by invoking Section 34 of the IPC. In our opinion,
to attract the mischief of Section 34, two things are essential i. e.
frstly, common intention to commit offence and secondly,
participation in commission of offence. The words “infurtherance
of common intention of all” are most essential parts of this
provision. It is the common intention to commit crime actually
committed. It pre-supposes a state of mind common to all
accused to commit crime, which may develop at the eleventh
hour, just before or during course of the crime or sometime
before. As it is of mind, it has to be ascertained from the
surrounding circumstances, and, therefore, role played by each
of the accused helps considerably in determining the aspect of
common intention.
Here evidence on record is completely silent about
the role allegedly played by accused Nos. 2 & 3 in assaulting
deceased Dattu.
10. PW.7, a Medico-legal Expert has clearly opined about
death of Dattu due to assault by sickle. Sickle is recovered at the
instance of accused No. 1. Taking into account the evidence of
PW.4 & PW.5 which is direct and consistent evidence and
evidence of Medico-legal Expert, it can safely be inferred that
ocular account lends support to medical evidence as regards
homicidal death is concerned. Therefore, in the light of above
discussion, it is evident that only accused No. 1 having assaulted
in stomach, which resulted into death is liable and answerable for
homicidal death of Dattu.
In the light of aforesaid discussion on the point of
applicability of Section 34 of the IPC, here evidence is missing
regarding participation and common intention entertained and
shared by accused Nos.2 & 3. Hence, they cannot be roped in for
offence punishable under Section 302 of the IPC by invoking
Section 34 of the IPC.
11. As regards to injuries on PW.3 & PW.5 are concerned,
defence has already admitted Exh. 45 in trial Court. Therefore,
there is no serious challenge to injuries on PW.3 & PW.5.
Consequently, charge under Sections 323 & 324 of the IPC is
made out by the prosecution.
12. To sum up, here it is manifest from the evidence on
record that accused No. 1 Murlidhar is the sole author of single
injury on deceased Dattu. Injury is on vital part like abdomen.
There is said to be use of sickle. Measurement of the
injury/wound is narrated by the Autopsy Doctor and is also
refected in the Post Mortem Report. The deceased succumbed on
the same day and therefore, there is no hesitation to hold that
though, there was a single blow, it was with immense force and
has resulted into death.
13. It is strenuously submitted before us by learned
counsel for the Appellants that here there is single blow on
deceased Dattu and therefore, Section 302 of the IPC is not
attracted.
We are not impressed with such submissions. It is
settled law that mere fact that there was single blow, is not a
circumstance which would warrant conviction under Section
302 of the IPC, being altered to one punishable under Section
304(Part II) of the IPC. There are several cases, where single
blow has also resulted in death and has attracted charge under
Section 302 of the IPC. The fact that single blow is inficted by
itself would not mitigate the offence to one culpable homicide not
amounting to murder.
In series of Judgments like in the cases of Virsa Singh
Vs. State of Punjab, Gudar Dusadh Vs. State of Bihar, Vasanta Vs.
State of Maharashtra, Jai Prakash Vs. State (Delhi Admn.) and
State of Karnataka Vs. Vedanayagam, the Hon’ble Apex Court
lucidly and succinctly has dealt with law on this point i. e. in
cases involving single blow resulting into death, thereby
attracting offence of murder.
Here also as discussed above, taking into
consideration nature of weapon, site of the body targeted, we are
of the considered opinion that said blow though single, has
turned out to be fatal. Consequently, accused No. 1 Murlidhar,
alone being author of said injury, he is solely responsible and
rightly held guilty so by the learned trial Judge.
For the aforesaid reasons, guilt of accused Nos. 2 & 3
for charge under Section 302 of the IPC, is in the absence of
participation and sharing common intention. Hence, their
conviction for the charge under Secion 302 of the IPC is
misplaced and they are required to be acquitted from the said
charge. Thus, we propose to interfere in the trial Court’s order
only to that extent.
Resultantly, we proceed to pass the following order.
(i) The Appeal is partly allowed;
(ii) The Judgment and Order of conviction passed by the
learned District Judge – 7 & Additional Sessions Judge, Nashik
as against accused No. 1 alone for the offence punishable under
Section 302 of the IPC is maintained and kept intact;
(iii) The Judgment and Order of conviction of accused
Nos. 2 & 3 for the offence punishable under Section 302 r/w 34 of
the IPC is quashed & set aside;
(iv) Conviction and sentence against accused Nos. 2 & 3
for the commission of offence punishable under Sections 323 &
324 r/w 34 of the IPC passed by the learned trial Judge is
maintained and kept intact.
14. The Appeal is disposed of accordingly.
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A single deathly blow doesn’t warrant commuting a murder conviction to culpable homicide, the Bombay High court observed while upholding the life sentence of a man who struck his neighbour with a sickle in 2012.
A division bench of Justices Sunil Shukre and Abhay Waghwase refused to commute 25-year-old Murlidhar Bombale’s conviction for 302 (murder) to 304(II) (culpable homicide) of the IPC. The court however acquitted Bombale’s brother and father of the murder charge and merely held them guilty under sections 324 (causing hurt by dangerous weapons) and 325 (grievous hurt) of the IPC.
“…taking into consideration nature of weapon, site of the body targeted, we are of the considered opinion that said blow though single, has turned out to be fatal,” the judge observed.
Facts
The complainant, his sons and the accused are all agriculturists and also relatives of each other. Their lands were adjoining to each other. Due to shortage of water, complainant fetched/drew water from Pazar Talav (Percolation Tank) but the accused would prevent the same resulting in bitter relations.
One evening the deceased – Dattu - and his wife went to fetch water. After they didn’t return the complainant and second son went looking for them. They were also beaten with a stick and sickle. Dattu succumbed to his injuries the same day.
Following a trial against the three accused, in 2015, the additional sessions judge in Nashik sentenced them to life imprisonment under sections 302, 324 and 323. The accused filed an appeal against this in this High Court.
The accused argued that witness testimonies were inconsistent, there was no evidence to show whether the accused were armed at the time of the offence. And since it was a single blow to the deceased, it wasn’t a homicidal death.
The prosecutor argued that were injured eye witness accounts and medical evidence suggested Dattu’s death was homicidal.
At the outset the court noted that the accused’s family members only assaulted the deceased’s brother and wife. However, recovery of the sickle on Bombale’s behest along with statements of other witnesses showed Dattu died due to the single blow to his abdomen.
“To sum up, here it is manifest from the evidence on record that accused No. 1 Murlidhar is the sole author of single injury on deceased Dattu.”
The court rejected the defence’s argument that since there is single blow on deceased Dattu, Section 302 of the IPC is not attracted.
“We are not impressed with such submissions. It is settled law that mere fact that there was single blow, is not a circumstance which would warrant conviction under Section 302 of the IPC, being altered to one punishable under 304(Part II) of the IPC,” the court said.
Case Title: Murlidhar Waman Bombale & Ors. v. State of Maharashtra
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The short issue before us is whether the
anticipatory bail application of the appellant
ought to have been allowed. We may note that as
per the Order dated 02.8.2021 we had granted
interim protection.
The fact which emerges is that the appellant
along with 83 other private persons were sought to
be roped in a FIR which was registered seven years
ago. The appellant claims to be supplier of stone
for which royalty was paid in advance to these
holders and claims not to be involved in the
tendering process. Similar person was stated to
have been granted interim protection until filing
of the police report. The appellant had already
joined the investigation before approaching this
Court and the chargesheet was stated to be ready
to be filed. However, the reason to approach this
Court was on account of arrest memo having been
issued.
It is not disputed before us by learned
counsel for the respondent that the chargesheet is
ready to be filed but submits that the trial court
takes a view that unless the person is taken into
custody the chargesheet will not be taken on
record in view of Section 170 of the Cr.P.C.
In order to appreciate the controversy we
reproduce the provision of Section 170 of Cr.P.C.
“170. Cases to be sent to Magistrate, when
evidence is sufficient. – (1) If, upon an
investigation under this Chapter, it appears
to the officer in charge of the police
station that there is sufficient evidence or
reasonable ground as aforesaid, such officer
shall forward the accused under custody to a
Magistrate empowered to take cognizance of
the offence upon a police report and to try
the accused or commit him for trial, or, if
the offence is bailable and the accused is
able to give security, shall take security
from him for his appearance before such
Magistrate on a day fixed and for his
attendance from day to day before such
Magistrate until otherwise directed.”
There are judicial precedents available on
the interpretation of the aforesaid provision
albeit the Delhi High Court.
In Court on its own motion v. Central Bureau
of Investigation1, the Delhi High Court dealt with
an argument similar to the contention of the
respondent that Section 170 Cr.P.C. prevents the
trial court from taking a chargesheet on record
unless the accused is taken into custody. The
relevant extracts are as under:
“15. Word “custody” appearing in this Section
does not contemplate either police or
judicial custody. It merely connotes the
presentation of accused by the Investigating
Officer before the Court at the time of
filing of the chargesheet whereafter the role
of the Court starts. Had it not been so the
Investigating Officer would not have been
vested with powers to release a person on
bail in a bailable offence after finding that
there was sufficient evidence to put the
accused on trial and it would have been
obligatory upon him to produce such an
accused in custody before the Magistrate for
being released on bail by the Court.
16. In case the police/Investigating Officer
thinks it unnecessary to present the accused
in custody for the reason that accused would
neither abscond nor would disobey the summons
as he has been co-operating in investigation
and investigation can be completed without
arresting him, the IO is not obliged to
produce such an accused in custody.
19. It appears that the learned Special Judge
was labouring under a misconception that in
every non-bailable and cognizable offence the
police is required to invariably arrest a
person, even if it is not essential for the
purpose of investigation.
20. Rather the law is otherwise. In normal
and ordinary course the police should always
avoid arresting a person and sending him to
jail, if it is possible for the police to
complete the investigation without his arrest
and if every kind of co-operation is provided
by the accused to the Investigating Officer
in completing the investigation. It is only
in cases of utmost necessity, where the
investigation cannot be completed without
arresting the person, for instance, a person
may be required for recovery of incriminating
articles or weapon of offence or for
eliciting some information or clue as to his
accomplices or any circumstantial evidence,
that his arrest may be necessary. Such an
arrest may also be necessary if the concerned
Investigating Officer or Officer-in-charge of
the Police Station thinks that presence of
accused will be difficult to procure because
of grave and serious nature of crime as the
possibility of his absconding or disobeying
the process or fleeing from justice cannot be
ruled out.”
In a subsequent judgment the Division Bench
of the Delhi High Court in Court on its own Motion
v. State2 relied on these observations in Re Court
on its own Motion (supra) and observed that it is
not essential in every case involving a cognizable
and non-bailable offence that an accused be taken
into custody when the chargesheet/final report is
filed.
The Delhi High Court is not alone in having
adopted this view and other High Courts apparently
have also followed suit on the proposition that
criminal courts cannot refuse to accept a
chargesheet simply because the accused has not
been arrested and produced before the court.
In Deendayal Kishanchand & Ors. v. State of
Gujarat3, the High Court observed as under:
“2.…It was the case of the prosecution that
two accused, i. e. present petitioners Nos. 4
and 5, who are ladies, were not available to
be produced before the Court along with the
charge-sheet, even though earlier they were
released on bail. Therefore, as the Court
refused to accept the charge-sheet unless all
the accused are produced, the charge-sheet
could not be submitted, and ultimately also,
by a specific letter, it seems from the
record, the charge-sheet was submitted
without accused Nos. 4 and 5. This is very
clear from the evidence on record. […]
8. I must say at this stage that the refusal
by criminal Courts either through the learned
Magistrate or through their office staff to
accept the charge-sheet without production of
the accused persons is not justified by any
provision of law. Therefore, it should be
impressed upon all the Courts that they
should accept the charge-sheet whenever it is
produced by the police with any endorsement
to be made on the charge-sheet by the staff
or the Magistrate pertaining to any omission
or requirement in the charge-sheet. But when
the police submit the charge-sheet, it is the
duty of the Court to accept it especially in
view of the provisions of Section 468 of the
Code which creates a limitation of taking
cognizance of offence. Likewise, police
authorities also should impress on all police
officers that if charge-sheet is not accepted
for any such reason, then attention of the
Sessions Judge should be drawn to these facts
and get suitable orders so that such
difficulties would not arise henceforth.”
We are in agreement with the aforesaid view
of the High Courts and would like to give our
imprimatur to the said judicial view. It has
rightly been observed on consideration of Section
170 of the Cr.P.C. that it does not impose an
obligation on the Officer-in-charge to arrest
each and every accused at the time of filing of
the chargesheet. We have, in fact, come across
cases where the accused has cooperated with the
investigation throughout and yet on the
chargesheet being filed non-bailable warrants
have been issued for his production premised on
the requirement that there is an obligation to
arrest the accused and produce him before the
court. We are of the view that if the
Investigating Officer does not believe that the
accused will abscond or disobey summons he/she is
not required to be produced in custody. The word
“custody” appearing in Section 170 of the Cr.P.C.
does not contemplate either police or judicial
custody but it merely connotes the presentation
of the accused by the Investigating Officer
before the court while filing the chargesheet.
We may note that personal liberty is an
important aspect of our constitutional mandate.
The occasion to arrest an accused during
investigation arises when custodial investigation
becomes necessary or it is a heinous crime or
where there is a possibility of influencing the
witnesses or accused may abscond. Merely because
an arrest can be made because it is lawful does
not mandate that arrest must be made. A
distinction must be made between the existence of
the power to arrest and the justification for
exercise of it.4 If arrest is made routine, it
can cause incalculable harm to the reputation and
self-esteem of a person. If the Investigating
Officer has no reason to believe that the accused
will abscond or disobey summons and has, in fact,
throughout cooperated with the investigation we
fail to appreciate why there should be a
compulsion on the officer to arrest the accused.
We are, in fact, faced with a situation where
contrary to the observations in Joginder Kumar’s
case how a police officer has to deal with a
scenario of arrest, the trial courts are stated
to be insisting on the arrest of an accused as a
pre-requisite formality to take the chargesheet
on record in view of the provisions of Section
170 of the Cr.P.C. We consider such a course
misplaced and contrary to the very intent of
Section 170 of the Cr.P.C.
In the present case when the appellant has
joined the investigation, investigation has
completed and he has been roped in after seven
4 Joginder Kumar v. State of UP & Ors. (1994) 4 SCC 260
years of registration of the FIR we can think of
no reason why at this stage he must be arrested
before the chargesheet is taken on record. We
may note that learned counsel for the appellant
has already stated before us that on summons
being issued the appellant will put the
appearance before the trial court.
We accordingly set aside the impugned order
and allow the appeal in terms aforesaid leaving
the parties to bear their own costs.
Petition(s) for Special Leave to Appeal (Crl.) No.5442/2021
(Arising out of impugned final judgment and order dated 09-07-2021
in CRMABA No. 5029/2021 passed by the High Court of Judicature at
Date : 16-08-2021 This petition was called on for hearing today.
Mr. Anjani kumar Rai, Adv.
UPON hearing the counsel the Court made the following
Leave granted.
Appeal is allowed in terms of the signed reportable
order.
Pending applications stand disposed of.
(Signed reportable order is placed on the file)
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Merely because an arrest can be made because it is lawful does not mandate that arrest must be made, the Supreme Court recently observed.The bench of Justices Sanjay Kishan Kaul and Hrishikesh Roy observed that personal liberty is an important aspect of our constitutional mandate.In this case, the appellant along with 83 other private persons were sought to be roped in a FIR which was...
Merely because an arrest can be made because it is lawful does not mandate that arrest must be made, the Supreme Court recently observed.
The bench of Justices Sanjay Kishan Kaul and Hrishikesh Roy observed that personal liberty is an important aspect of our constitutional mandate.
In this case, the appellant along with 83 other private persons were sought to be roped in a FIR which was registered seven years ago. Before the court, he submitted that he had already joined the investigation and the chargesheet was stated to be ready to be filed. As the arrest memo was issued, he filed anticipatory bail application before the High Court which was dismissed and thus he approached the Apex Court in appeal.
The bench of Justices Sanjay Kishan Kaul and Hrishikesh Roy observed that the trial court, in this case has taken a view that unless the person is taken into custody the chargesheet will not be taken on record in view of Section 170 of the Code of Criminal Procedure. On this aspect, it held that Section 170 of the Cr.P.C. does not impose an obligation on the Officer-in-charge to arrest each and every accused at the time of filing of the charge sheet.
"We may note that personal liberty is an important aspect of our constitutional mandate. The occasion to arrest an accused during investigation arises when custodial investigation becomes necessary or it is a heinous crime or where there is a possibility of influencing the witnesses or accused may abscond. Merely because an arrest can be made because it is lawful does not mandate that arrest must be made.', the court said.
The court said that a distinction must be made between the existence of the power to arrest and the justification for exercise of it. "If arrest is made routine, it can cause incalculable harm to the reputation and self-esteem of a person. If the Investigating Officer has no reason to believe that the accused will abscond or disobey summons and has, in fact, throughout cooperated with the investigation we fail to appreciate why there should be a compulsion on the officer to arrest the accused.", the court said.
"We are, in fact, faced with a situation where contrary to the observations in Joginder Kumar's case how a police officer has to deal with a scenario of arrest, the trial courts are stated to be insisting on the arrest of an accused as a pre-requisite formality to take the chargesheet on record in view of the provisions of Section 170 of the Cr.P.C. We consider such a course misplaced and contrary to the very intent of Section 170 of the Cr.P.C.", the bench said while allowing his appeal.
Joginder Kumar v. State of UP
The bench, in this case, referred to the observations made in Joginder Kumar v. State of UP & Ors. (1994) 4 SCC 260. In the said case, a lawyer, who was kept under police custody, had approached the Apex court by filing a writ petition. It was observed thus in the said case: "No arrest can be made because it is lawful for the police officer to do so. The existence of the power to arrest is one thing. The justification for the exercise of it is quite another. The police officer must be able to justify the arrest apart from his power to do so. Arrest and detention in police lock-up of a person can cause incalculable harm to the reputation and self-esteem of a person. No arrest can be made in a routine manner on a mere allegation of commission of an offence made against a person. It would be prudent for a police officer in the interest of protection of the constitutional rights of a citizen and perhaps in his own interest that no arrest should be made without a reasonable satisfaction reached after some investigation as to the genuineness and bona fides of a complaint and a reasonable belief both as to the person's complicity and even so as to the need to effect arrest. Denying a person of his liberty is a serious matter. The recommendations of the Police Commission merely reflect the constitutional concomitants of the fundamental right to personal liberty and freedom. A person is not liable to arrest merely on the suspicion of complicity in an offence. There must be some reasonable justification in the opinion of the officer effecting the arrest that such arrest is necessary and justified. Except in heinous offences, an arrest must be avoided if a police officer issues notice to person to attend the Station House and not to leave the Station without permission would do". The court had also issued the following guidelines:
An arrested person being held in custody is entitled, if he so requests to have one friend, relative or other person who is known to him or likely to take an interest in his welfare told as far as is practicable that he has been arrested and where he is being detained. The police officer shall inform the arrested person when he is brought to the police station of this right. 3. An entry shall be required to be made in the diary as to who was informed of the arrest. These protections from power must be held to flow from Articles 21 and 22(1) and enforced strictly. It shall be the duty of the Magistrate, before whom the arrested person is produced, to satisfy himself that these requirements have been complied with. The above requirements shall be followed in all cases of arrest till legal provisions are made in this behalf. These requirements shall be in addition to the rights of the arrested persons found in the various police manuals. These requirements are not exhaustive. The Directors General of Police of all the States in India shall issue necessary instructions requiring due observance of these requirements. In addition, departmental instruction shall also be issued that a police officer making an arrest should also record in the case diary, the reasons for making the arrest.
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1. Feeling aggrieved and dissatisfied with the impugned judgment and
order dated 24.06.2021 passed by the High Court of Judicature at Allahabad
in Crl. Misc. Anticipatory Bail No.6648 of 2021 by which the High Court has
refused the prayer of the applicant for grant of anticipatory bail, the original
accused has preferred the present Special Leave Petition.
2. We have heard Shri Shyam Divan, Learned Senior Advocate appearing
on behalf of the petitioner.
3. Shri Shyam Divan, Learned Senior Counsel appearing on behalf of the
applicant has vehemently submitted that the petitioner has been falsely
implicated in the case. It is submitted that in this case the investigation has
been completed and the charge-sheet has been filed and therefore, it is a fit
case to grant anticipatory bail to the applicant.
3.1 At the outset, it is required to be noted that the petitioner is charged for
the offences punishable under Sections 147, 148, 323, 324, 307, 308, 504 and
452 of the Indian Penal Code. The incident is of 05.03.2017. Even the
charge-sheet has been filed against the petitioner and other co-accused as far
as back on 20.11.2018. Earlier the petitioner moved an application before the
High Court to quash the charge-sheet, in exercise of powers under Section
482 Cr.P.C. which came to be dismissed by the High Court vide order dated
10.12.2019. However, though not permissible the High Court vide order dated
10.12.2019 directed that in case the applicant appears and surrenders before
the Court within 30 days and applies for bail, his prayer for bail shall be
considered and for a period of 30 days no coercive steps can be taken against
the accused in the aforesaid case. Despite the same and having taken the
benefit of the order dated 10.12.2019, the petitioner did not surrender and
apply for regular bail. That thereafter non-bailable warrant has been issued
against the applicant and even the proceedings under Section 82 of the
Cr.P.C. has been initiated. Thus, it has been found that the petitioner is
continuously absconding and not available at home. The submission on
behalf of the petitioner that initially he was not named as accused in the FIR is
concerned, the same has been dealt with by the Learned trial Court and the
Learned trial Court has observed that even in the first FIR one person was
shown as unknown. Thus, from the aforesaid it is found that there is a prima
facie case found against the petitioner for the aforesaid offences and even the
charge-sheet has been filed and the petitioner is found to be absconding.
Therefore, this is not a fit case to grant anticipatory bail to the petitioner. The
Court shall not come to the rescue or help the accused who is not cooperating
the investigating agency and absconding and against whom not only non-
bailable warrant has been issued but also the proclamation under Section 82
Cr.P.C. has been issued.
In view of the above, we see no reason to interfere with the impugned
judgment and order passed by the High Court. Hence, the application in Crl.
Mic. Anticipatory Bail Application No.6648 of 2021 stands dismissed.
Petition(s) for Special Leave to Appeal (Crl.) No(s). 7358/2021
(Arising out of impugned final judgment and order dated 24-06-2021
in CRMABA No. 6648/2021 passed by the High Court Of Judicature At
JUDGMENT and IA No.123626/2021-EXEMPTION FROM FILING O.T. )
Date : 07-10-2021 This petition was called on for hearing today.
UPON hearing the counsel the Court made the following
The Special Leave Petition is dismissed in terms of the signed
Pending applications, if any, stand disposed of.
(Signed order is placed on the file)
Petition(s) for Special Leave to Appeal (Crl.) No(s). 7358/2021
(Arising out of impugned final judgment and order dated 24-06-2021
in CRMABA No. 6648/2021 passed by the High Court Of Judicature At
JUDGMENT and IA No.123626/2021-EXEMPTION FROM FILING O.T. )
Date : 07-10-2021 This petition was called on for hearing today.
UPON hearing the counsel the Court made the following
Heard Mr. Shyam Divan, learned Senior Advocate, appearing for
the petitioner.
The Special Leave Petition is dismissed.
Reasoned Order to follow.
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The Supreme Court observed that a Court shall not come to the rescue or help an absconding accused who is not cooperating with the investigation.The bench of Justices MR Shah and AS Bopanna observed thus while upholding an Allahabad High Court order refusing anticipatory bail.The accused, Sanatan Pandey, was charged for the offences punishable under Sections 147, 148, 323, 324, 307, 308, 504...
The Supreme Court observed that a Court shall not come to the rescue or help an absconding accused who is not cooperating with the investigation.
The bench of Justices MR Shah and AS Bopanna observed thus while upholding an Allahabad High Court order refusing anticipatory bail.
The accused, Sanatan Pandey, was charged for the offences punishable under Sections 147, 148, 323, 324, 307, 308, 504 and 452 of the Indian Penal Code. His application before the High Court to quash the charge-sheet, in exercise of powers under Section 482 Cr.P.C. was dismissed by the High Court vide order dated 10.12.2019. He was then directed to surrender before the Court. As he did not surrender and apply for regular bail, a non-bailable warrant has been issued against him and even the proceedings under Section 82 of the Cr.P.C. was initiated. Later, the High court dismissed his anticipatory bail application.
Before the Apex Court, he contended that he has been falsely implicated in the case, and that investigation has been completed and the charge-sheet has been filed and therefore, it is a fit 2 case to grant anticipatory bail to the applicant.
"There is a prima facie case found against the petitioner for the aforesaid offences and even the charge-sheet has been filed and the petitioner is found to be absconding. Therefore, this is not a fit case to grant anticipatory bail to the petitioner.", the court said taking note of the above facts..
"The Court shall not come to the rescue or help the accused who is not cooperating the investigating agency and absconding and against whom not only nonbailable warrant has been issued but also the proclamation under Section 82 Cr.P.C. has been issued.", the bench added while dismissing the appeal.
Case no. and Date: SLP (Crl) 7358 OF 2021 | 7 October 2021
Coram: Justices MR Shah and AS Bopanna
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2. Perused the First Information Report (FIR) and the
statements of relevant witnesses with the assistance of the learned
Counsel for the applicants, learned APP and the learned Counsel for
non-applicant no. 2.
3. Although, it is the contention of the learned counsel for the
applicants that the allegations made in the FIR and the material
collected during the course of investigation by Police when taken
together and taken at their face value, no prima facie case for offences
punishable under Sections 376(2)(n), 377, 498-A, 494, 294, 323, 504
43 judgAPL 1287.2022.odt
and 506 of the Indian Penal Code, 1860 (for short the “IPC”) r/w.
Section 34 of the IPC is made out, we find, agreeing with the
submissions made across the bar on behalf of the State and non-
applicant no. 2, that there is very strong prima facie case against each of
the applicants for the offences which have been registered against them
vide Crime No. 505/2022 at Police Station, Jaripatka, Nagpur.
4. The FIR as well as the statements of relevant witnesses,
apparently show that each of the applicant nos. 1 to 5 have prima facie
treated non-applicant no. 2, the complainant, consistently with severe
cruelty, so much so that her husband i.e. applicant no. 1 did not spare
her even when she was carrying pregnancy and forcibly committed
repeated acts of sexual intercourse with her with vengeance. The result
was that the complainant i.e. non-applicant no. 2 miscarried the fetus
and lost her child. In fact, the complainant had pleaded with her
husband not to indulge in those acts because of the condition of the
complainant but, her husband was relentless and prima facie behaved in
a savage manner with her. This material further shows that each of these
applicants, on every occasion of friction between husband and wife, had
prima facie taken the side of the husband, and prima facie encouraged
and instigated him in continuing with his atrocious and cruel behaviour
towards his wife. There is prima facie material further showing that all
the relatives of the husband, who are applicants here have at one point
43 judgAPL 1287.2022.odt
or the other, indulged in meting out cruel treatment in various ways to
non-applicant no. 2, the details of which are to be found not only in the
FIR but also in the statements of witnesses.
5. The cruelty prima facie handed out to non-applicant no. 2
did not stop at physically torturing non-applicant no. 2 but, it went
beyond the physical state of pain in the sense that the husband i.e.
applicant no. 1 with impunity performed marriage with another woman
and that was done with the active aid and assistance of the rest of the
applicants. When a husband performs the second marriage while his first
marriage is alive, a question arises as to whether such act on the part of
husband would amount to cruelty within the meaning of Section 498-A
of the IPC. As per explanation to Section 498-A of the IPC, cruelty
means; any wilful conduct of such a nature as is likely to drive the
woman to commit suicide or to cause grave injury or danger to life, limb
or health (mental or physical) of the woman. It also includes harassment
caused with a view to coercing the woman or any person related to her
to meet any unlawful demand for any property or valuable security.
Here, we are concerned with wilful conduct of such a nature which has
caused or which is likely to cause danger to health of non-applicant no.
2. Marrying another woman by the husband during existence of his first
marriage is something which is most likely to cause trauma and grave
injury to the mental health of the first wife, unless it has been done with
43 judgAPL 1287.2022.odt
the consent of the first wife. If the act of performance of second
marriage during subsistence of the first marriage is not interpreted as
amounting to cruelty contemplated under Section 498-A of the IPC, it
would frustrate the legislative intent to prevent the torture to a woman
by her husband or by relative of her husband and, therefore, that
interpretation has to be adopted which sub-serves the object sought to
be achieved by the Legislation. Useful reference in this regard may be
made to the cases of B.S. Joshi and ors. Vs. State Of Haryana and anr.
[2003 Cri L.J. 2028 (SC)] and Reema Aggarwal Vs. Anupam and ors.
[(2004) 3 SCC 199]. By these parameters, we find here that the second
marriage performed by applicant no. 1 while his first marriage with non-
applicant no. 2 was on, prima facie amounted to cruelty. It has been
further prima facie aggravated here when the applicant no. 1 made a
false representation to other woman with whom he performed marriage
during subsistence of the present marriage with non-applicant no. 2 that
his first wife had died and the rest of the applicants i.e. both his parents,
his siblings and also aunt joined in chorus with applicant no. 1. They
falsely told the second woman that the first wife of applicant no. 1 had
died. All these details have been graphically stated by the second woman
in her statement recorded under Section 161 of the Criminal Procedure
Code, 1973 (for short the “Cr.P.C.”). She has also informed the police
that she too had lodged a criminal complaint against applicant no. 1
43 judgAPL 1287.2022.odt
which was registered by Police Station, Imamwada, Nagpur for certain
cognizable offences. Although, it is not known as to exactly which are
those offences but, the fact remains that even the second wife of
applicant no. 1 has lodged a criminal report against him.
6. The learned Counsel for the applicants submits that non-
applicant no. 2 in the FIR has only stated about the performance of
second marriage during the subsistence of first marriage of Atul i.e.
applicant no. 1 by way of hearsay evidence, as she has stated that she
learnt about the same from somebody else. This statement, which was in
the nature of hearsay evidence now has turned itself, prima facie, into
piece of admissible evidence with recording of the statement of second
woman with whom applicant no. 1 solemnized his second marriage. This
woman has confirmed the fact that by resorting to deceptive means and
suppressing the material facts from her, applicant no. 1 induced her in
performing marriage with him. She has also stated in about few months
into her marriage with applicant no. 1, that applicant no. 1 admitted to
her that his first wife was alive, which fact was personally verified by
this woman and found to be correct. We, therefore, we do not find any
substance in the said submission of the learned Counsel for the
7. It is further submitted by the learned Counsel for the
applicants that the second woman with whom applicant no. 1 performed
his second marriage was an educated woman and was expected to make
inquiry about the deeds, character, background and actions of applicant
no. 1, perhaps suggesting that while applicant no. 1 could do anything,
could also be reckless, but the second woman can ill-afford to do it; that
she only has to make enquiry and find for herself if the applicant no. 1
was worthy of being her consort or not. In other words, according to her,
it was the responsibility of the woman to not trust such a man and first
know about him only upon making inquiry about his character,
background and history, before agreeing to marry him. The argument
does not impress us. Reasons are not too far to seek. In India marriage is
considered to be a sacrament wherein each of the parties to marriage is
expected to act honestly and remain faithful to each other. They must
not suppress from each other any material facts which may have a
bearing upon the marital bond. It is only when they conduct themselves
in a clean and faithful manner that a bond of trust, love and affection is
forged between them. No marriage can remain a sacrament, if parties to
the marriage do not come clean about their past and do not trust,
respect and love each other. Here in this case, applicant no. 1 has, prima
facie, breached the trust of second woman with whom he performed his
43 judgAPL 1287.2022.odt
second marriage during subsistence of his first marriage and also of his
first wife, the non-applicant no. 2. The argument is, in our considered
opinion, outlandish and hence, rejected.
8. It is further submitted by the learned Counsel for the
applicants that the investigation carried out by the Police, in this case, is
faulty, as no sufficient material has been collected, no photograph has
been clicked and no statements of independent and relevant witnesses
have been recorded. On going through the statements of witnesses, at
least at this stage, we find that there is hardly any inadequacy or lacuna
in the investigation made by the Police. If any inadequacy is discovered
later-on, the Investigation Officer would be at liberty to make further
investigation in the matter and file supplementary charge-sheet with the
permission of the concerned Court. The argument, therefore, can not be
accepted and it is rejected.
9. It is also submitted by the learned Counsel for the applicants
that applicant nos. 5, 6 and 7, relatives of the husband, had never given
their consent for performance of second marriage by applicant no. 1
while his first marriage was alive. On going through the charge-sheet,
we have not come across statement of any witness who agrees that there
was opposition made by applicant nos. 5, 6 and 7 to the second marriage
of applicant no. 1 with another woman, rather the statements of
43 judgAPL 1287.2022.odt
witnesses show that all of them had prima facie actively encouraged the
applicant no. 1 to perform the second marriage, they themselves had
arranged the second marriage, they were present at the time of
solemnization of his second marriage and had even falsely informed the
second woman that first wife of applicant no. 1 was dead. Therefore,
such argument cannot be accepted and is rejected. If at all it is to be
made, it may be made at the time of trial, where it can be appreciated
properly in the light of recorded evidence by the trial Court.
10. It would be now clear that an attempt made by the
applicants to invoke inherent power of this Court under Section 482 of
the Cr.P.C. is nothing but an abuse of process of law and, therefore, this
application deserves to be dismissed with exemplary costs.
11. The application is dismissed with costs of Rs.25,000/-
(Rupees Twenty Five Thousands only) to be deposited by the applicants
in the account of High Court Legal Services Sub-Committee, Nagpur
within a period of four weeks from the date of the order, failing which,
the Secretary, High Court Legal Services Sub-Committee, Nagpur shall
take steps for realising the amount of costs by considering it as fine
imposed by this Court.
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The Bombay High Court recently held that a husband marrying another woman during the existence of first marriage and without his wife's consent constitutes cruelty under section 498-A of the IPC.
"Marrying another woman by the husband during existence of his first marriage is something which is most likely to cause trauma and grave injury to the mental health of the first wife, unless it has been done with the consent of the first wife. If the act of performance of second marriage during subsistence of the first marriage is not interpreted as amounting to cruelty contemplated under Section 498-A of the IPC, it would frustrate the legislative intent to prevent the torture to a woman by her husband or by relative of her husband and, therefore, that interpretation has to be adopted which sub-serves the object sought to be achieved by the Legislation", the court held.
The division bench of Justice Sunil B. Shukre and Justice M. W. Chandwani of Nagpur refused to quash an FIR against a man and his family members for cruelty to his wife.
The FIR was for offences under sections 376(2)(n) (rape repeatedly on the same woman), 377 (unnatural offences), 498-A (cruelty by husband or husband's relative), 494 (marrying again during lifetime of husband or wife), 294 (obscene acts), 323 (punishment for voluntarily causing hurt), 504 (intentional insult with intent to provoke breach of the peace) and 506 (punishment for criminal intimidation) of the IPC. The accused approached the High Court under section 482 of Cr.P.C. for quashing of the FIR.
The court perused the FIR and noted that all applicants prima facie treated the woman with severe cruelty. Her husband forcibly committed repeated acts of sexual intercourse with her even when she was pregnant, resulting in a miscarriage. The court said that the husband prima facie behaved in a 'savage' manner.
The court also noted that prima facie all the family members had encouraged and instigated the man's cruel behaviour towards his wife. The court said that prima facie, all relatives of the husband i.e., all applicants meted out cruel treatment to the wife.
The court further noted that the man married another woman with the active aid and assistance of his relatives. This amounts to cruelty and prima facie, breach of the trust of his second as well as his first wife, the court stated.
The court noted that prima facie, the man told the second woman that his wife had died. His parents, siblings, and aunt supported this narrative, the court noted.
Advocate Manju M. Ghatode for the applicants argued that the allegation of second marriage was hearsay as his wife had heard it from someone else.
The court stated that it is admissible evidence now since the second woman in her statement confirmed that the applicant induced her to marry him.
Ghatode contended that it was the responsibility of the second woman to not trust the man and first know about him by making enquiry about his character, background etc. The court considered this argument 'outlandish' and rejected it.
"In India marriage is considered to be a sacrament wherein each of the parties to marriage is expected to act honestly and remain faithful to each other. They must not suppress from each other any material facts which may have a bearing upon the marital bond. It is only when they conduct themselves in a clean and faithful manner that a bond of trust, love and affection is forged between them. No marriage can remain a sacrament, if parties to the marriage do not come clean about their past and do not trust, respect and love each other", the court observed.
The court did not find any inadequacy or lacuna in the police investigation.
The court held that the attempts of the applicants to invoke inherent power of court under section 482 of the Cr.P.C. is an abuse of process of law. Therefore, it imposed exemplary costs of Rs 25000 on the applicants.
Case no. – Criminal Application (APL) No. 1287/2022
Case Title – Atul S/o Raju Dongre and Ors. v. State of Maharashtra and Anr.
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1. The present petition has been filed under Section 482 of the Code of
Criminal Procedure, 1973 seeking quashing of the order dated 18.09.2018
passed by the Metropolitan Magistrate-06, New Delhi, Patiala House Courts,
Delhi, whereby cognizance was taken in pursuance of charge sheet dated
04.12.2017 filed in FIR no. 509/2015 under Sections 447/506/420/120B IPC
registered at P.S. South Campus.
2. The petitioner has challenged the impugned order dated 18.09.2018
on the grounds as mentioned in para 3 of the petition.
3. Issue notice. Mr. Raghuvinder Varma, Additional Public Prosecutor
accepts notice on behalf of the respondent no.1.
4. The counsel for the petitioner argued that the impugned order had
been passed in the cryptic manner and without application of judicial mind.
It is also not mentioned in the impugned order regarding which offences, the
cognizance was taken by the Trial Court and the impugned order is liable to
be set aside.
5. FIR no. 509/2015 dated 06.09.2015 under Sections 420/467/471/120B
IPC was got registered at P.S. South Campus, Delhi on the basis of
complaint made by Vanita Vohra. After completion of investigation, the
charge sheet was filed for the offences punishable under Sections
47/506/420/120B IPC. The Trial Court at the time of taking the cognizance
on the basis of charge sheet passed the following order:-
“ Counsel for the complainant undertakes to file
vakalatnama during the course of the day.
Heard. Record perused.
6. Section 190 empowers a Magistrate to take cognizance of an offence
in certain circumstances. Sub-section (1) reads as under:-
Cognizance of offences by Magistrates.-1) Subject to the provisions of
this Chapter, any Magistrate of the first class, and any Magistrate of the
second class specially empowered in this behalf under Sub-section (2),
may take cognizance of any offence-
(a) upon receiving a complaint of facts which constitute such
(b) upon a police report of such facts;
(c) upon information received from any person other than a police
officer, or upon his own knowledge, that such offence has been
committed.
7. Cognizance implies application of judicial mind by the Magistrate to
the facts as stated in a complaint or a police report or upon information
received from any person that an offence has been committed. It is the stage
when a Magistrate applies his mind to the suspected commission of an
offence. The cognizance of an offence is stated to be taken once the
Magistrate applies his mind to the offence alleged and decides to initiate
proceeding against the proposed accused. The Court before taking
cognizance needs to be satisfied about existence of prima facie case on basis
of material collected after conclusion of investigation. The magistrate has to
apply his mind to the facts stated in the police report or complaint before
taking cognizance for coming to the conclusion that there is sufficient
material to proceed with the case. Taking of cognizance is a judicial function
and judicial orders cannot be passed in a mechanical or cryptic manner. It is
not only against the settled judicial norms but also reflects lack of
application of judicial mind to the facts of the case. It is equally important to
note that at time of taking cognizance a Magistrate is not required to
consider the defence of the proposed accused or to evaluate the merits of the
material collected during investigation. It is not necessary to pass a detail
order giving detailed reasons while taking cognizance. The order taking
cognizance should only reflect application of judicial mind.
8. In R.R. Chari V State of Uttar Pradesh, 951CriLJ 775 the question
before the Supreme Court was as to when cognizance of the offence could
be said to have been taken by the Magistrate under Section 190 of the Code.
It was observed as under:-
It is clear from the wording of the section that the initiation of the
proceedings against a person commences on the cognizance of the
offence by the Magistrate under one of the three contingencies
mentioned in the section. The first contingency evidently is in
respect of non-cognizable offences as defined in the Criminal
Procedure Code on the complaint of an aggrieved person. The
second is on a police report, which evidently is the case of a
cognizable offence when the police have completed their
investigation and come to the Magistrate for the issue of a process.
The third is when the Magistrate himself takes notice of an offence
and issues the process. It is important to remember that in respect
of any cognizable offence, the police, at the initial stage when they
are investigating the matter, can arrest a person without obtaining
an order from the Magistrate. Under Section 167(b) of the
Criminal Procedure Code the police have of course to put up the
person so arrested before a Magistrate within 24 hours and obtain
an order of remand to police custody for the purpose of further
investigation, if they so desire. But they have the power to arrest a
person for the purpose of investigation without approaching the
Magistrate first. Therefore in cases of cognizable offence before
proceedings are initiated and while the matter is under
investigation by the police the suspected person is liable to be
arrested by the police without an order by the Magistrate.
9. The Supreme Court in Fakhruddin Ahmad V State of Uttaranchal,
(2008) 17 SCC 157 also held as under:-
Nevertheless, it is well settled that before a Magistrate can be said
to have taken cognizance of an offence, it is imperative that he
must have taken notice of the accusations and applied his mind to
the allegations made in the complaint or in the police report or the
information received from a source other than a police report, as
the case may be, and the material filed therewith. It needs little
emphasis that it is only when the Magistrate applies his mind and
is satisfied that the allegations, if proved, would constitute an
offence and decides to initiate proceedings against the alleged
offender, that it can be positively stated that he has taken
cognizance of the offence. Cognizance is in regard to the offence
and not the offender.
10. The Supreme Court also observed in S.K. Sinha, Chief Enforcement
Officer V Videocon International Ltd., (2008) 2 SCC 492 held as under:-
The expression 'cognizance' has not been defined in the Code. But
the word (cognizance) is of indefinite import. It has no esoteric or
mystic significance in criminal law. It merely means 'become
aware of' and when used with reference to a Court or a Judge, it
connotes to take notice of ‘judicially’. It indicates the point when a
Court or a Magistrate takes judicial notice of an offence with a
view to initiating proceedings in respect of such offence said to
have been committed by someone.
'Taking cognizance' does not involve any formal action of any
kind. It occurs as soon as a Magistrate applies his mind to the
suspected commission of an offence. Cognizance is taken prior to
commencement of criminal proceedings. Taking of cognizance is
thus a sine qua non or condition precedent for holding a valid
trial. Cognizance is taken of an offence and not of an offender.
Whether or not a Magistrate has taken cognizance of an offence
depends on the facts and circumstances of each case and no rule of
universal application can be laid down as to when a Magistrate
can be said to have taken cognizance.
11. The impugned order dated 18.09.2018 is cryptic, non-speaking and is
passed without application of judicial mind. The impugned order has passed
in casual and cursory manner and even the offences regarding which the
cognizance was taken are not mentioned. Accordingly the impugned order
dated 18.09.2018 is set aside. The Trial Court is directed to re-consider the
issue of taking the cognizance afresh and to pass the speaking order on the
basis of charge sheet.
12. Copy of this order to be sent to the concerned Trial Court for
information and compliance.
13. The petition along with pending applications, if any, stands disposed
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The Delhi High Court has observed that taking of cognizance is a judicial function and that the judicial orders cannot be passed in a mechanical or cryptic manner.
Justice Sudhir Kumar Jain has added that at time of taking cognizance, a Magistrate is not required to consider the defence of the proposed accused or to evaluate the merits of the material collected during investigatio or to pass a detail order giving detailed reasons while taking cognizance. The Court added that the order taking cognizance should only reflect application of judicial mind.
"Cognizance implies application of judicial mind by the Magistrate to the facts as stated in a complaint or a police report or upon information received from any person that an offence has been committed. It is the stage when a Magistrate applies his mind to the suspected commission of an offence," the Court observed.
It added that the cognizance of an offence is stated to be taken once the Magistrate applies his mind to the offence alleged and decides to initiate proceeding against the proposed accused.
It was also observed that the Court before taking cognizance needs to be satisfied about existence of prima facie case on basis of material collected after conclusion of investigation.
"The magistrate has to apply his mind to the facts stated in the police report or complaint before taking cognizance for coming to the conclusion that there is sufficient material to proceed with the case. Taking of cognizance is a judicial function and judicial orders cannot be passed in a mechanical or cryptic manner. It is not only against the settled judicial norms but also reflects lack of application of judicial mind to the facts of the case," the Court added.
The Court was dealing with a petition seeking quashing of the order dated 18.09.2018 passed by the Metropolitan Magistrate, whereby cognizance was taken in pursuance of charge sheet filed in an FIR registered under sec. 447, 506, 420 and 120B of IPC.
The counsel for the petitioner had argued that the impugned order was passed in a cryptic manner and without application of judicial mind. It was submitted that the judge also did not mention regarding which offences, the cognizance was taken by the Trial Court and that the impugned order was liable to be set aside.
The High Court thus concluded that the impugned order was cryptic, non-speaking and is passed without application of judicial mind, which was passed in casual and cursory manner.
The Bench noted that even the offences regarding which the cognizance was taken were not mentioned in the impugned order.
"Accordingly the impugned order dated 18.09.2018 is set aside. The Trial Court is directed to re-consider the issue of taking the cognizance afresh and to pass the speaking order on the basis of charge sheet," the Court ordered.
The plea was accordingly disposed of.
Title: SANJIT BAKSHI v. STATE OF NCT OF DELHI & ANR.
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This is an application to condone the delay of 1062 days in preferring the
2. We have heard Sri. Ramesh Babu, the learned senior counsel
appearing for the petitioners as instructed by C.Muralikrishnan, the learned
counsel and Sri. Praveen K.Joy, the learned counsel appearing for the
3. This litigation has a long drawn and chequered history. We are of
the view that it would be appropriate to detail the sequence of events before
assessing whether the applicant has made out a sufficient cause for condoning
the delay of over 1000 days.
a) The respondent herein is the landlord of a multistoried building
that was leased out to the 1st applicant, a Nationalised Bank.
b) In the year 2009, R.C.P.No.34/2009 was filed by the respondent
seeking fixation of fair rent under Section 5 (1) of the Kerala
Buildings (Lease and Rent Control) Act, 1965. By order dated
6.12.2012, the Rent Control Court after evaluating the facts and
circumstances, fixed the fair rent at Rs 40/ per square feet.
c) The above order was challenged in appeal and by judgment dated
18.2.2014, the order passed by the Rent Control Court was
confirmed by the Appellate Authority.
d) The applicant/tenant approached this Court and filed R.C.R. No.
154/2014. By order dated 3.4.2017, this Court, while confirming
the findings of the Rent Control Court as well as the Appellate
Authority, as regards the locus standi of the landlord to maintain a
petition and also to get the rent-refixed, took the view that the
matter required to be remanded back as it was felt that cogent
materials were lacking before the Subordinate Courts to fix the
rent at Rs 40/ as had been ordered.
e) After remand as aforesaid, in addition to the evidence already
adduced, additional documents were marked by both sides and a
witness was examined by the applicant. The Rent Control Court
fixed the fair rent at Rs. 35/- per square feet with a biennial
increase of 10%.
f) The said order was challenged in Appeal and by judgment dated
22.7.2020 in R.C.A. No.11/2019, the order passed by the Rent
Control Court was confirmed.
g) The order was again taken up in Revision before this Court. By
judgment dated 19.11.2020, the orders passed by the Subordinate
Courts were upheld by the Division Bench finding that the Fair
Rent fixed was reasonable, fair and in accordance with the law.
h) A petition for Special Leave to Appeal as SLP No. 1540/2021 was
preferred before the Apex Court. The petitioners sought leave to
withdraw the Special Leave Petition to avail the remedy of review
before this Court. Leave was granted to withdraw the petition and
liberty was granted to the petitioners to approach the Apex Court if
required.
i) For reasons best known to the petitioners, they chose to file two
Review Petitions. RP. No 381 of 2021 was filed seeking to review
RCR 183/2020 and RP No 383/2021 was filed seeking to review
the Order dated 3.4.2017 in RCR No 154/ 2014.
j) The very same contentions are seen raised in both the Review
k) R.P. No.381/2021 was heard by the Division bench and by order
dated 24.6.2021, the contentions raised by petitioners were
repelled finding that the petitioners had failed to make out a case
for review of the order. It was further held that apart from the lack
of merit of the contentions advanced, there was also no error
apparent on the face of the records warranting interference in
review.
l) The petitioners did not stop at that. They filed IA No. 3/2021 in
R.P.No.381/2021 seeking to permit the petitioners to advance
arguments on all the grounds raised in the Memorandum of
Review. Their Lordships of the Division Bench after noting that the
attempt is to indirectly seek review of the judgement in
R.P.No.381/2021, dismissed the petition holding that review of the
review order was not permissible.
m) One would have thought that the pursuit of the petitioners to
resuscitate the petitions by raking up untenable contentions would
end at that. However, it was not to be. Reiterating the very same
contentions that were repelled by the Division Bench while
considering R.P.No.381/2021, the petitioners are before this Court
4. Having heard the submissions of Sr Ramesh Babu, the learned
Senior counsel appearing for the petitioners as instructed by
Sri.C.Muralikrishnan and Sri.Praveen K.Joy, the learned counsel for the
respondent, we find no reason to condone the delay or to entertain this Review
Petition. We find that none of the contentions raised by the petitioners in the
review petition was ever raised by the petitioners at the time of filing R.C.R.
No.154/2014. The order of remand passed in the Revision Petition was
pursued and the petitioners had adduced additional evidence before the Rent
Control Court. The order passed by this Court has worked itself out. The order
passed by the Rent Control Court after the remand was upheld by the Appellate
Authority. The orders passed by the subordinate courts were challenged before
this Court yet again by filing a Revision Petition. This Court had considered all
the contentions raised by the petitioners and had refused to interfere. The SLP
filed challenging the said order was withdrawn. Leave was sought to prefer
review petition before this Court and for reasons best known to the applicants,
they have ventured to prefer Review Petitions challenging orders passed by this
Court at two stages of the litigation. They chose to pursue R.P.No.381/2021
and the Review petition was dismissed after considering the entire aspects.
Their attempt to seek review of the said order has also ended in dismissal. It
appears to us that the petitioners are attempting a novel form of “Forum
5. We have no doubt in our mind that this is a clear case of abuse of
process of this Court. The petitioners have neither made out any case on merits
nor have they given us a valid reason to condone the delay of over 1000 days.
Though this is an eminently fit case for imposition of exemplary costs, in view
of the fervent submissions of the learned counsel, we desist from doing so.
The application for condonation of delay will stand dismissed.
Consequently, the unnumbered review petition will also stand dismissed.
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The Kerala High Court recently declined to allow an application that sought to condone the delay of 1062 days in preferring the Review Petition since the applicant had failed to make out a sufficient cause for the excessive delay. A Division Bench of Justice Raja Vijayaraghavan V and Justice T.R Ravi observed,"We have no doubt in our mind that this is a clear case of abuse of process of...
The Kerala High Court recently declined to allow an application that sought to condone the delay of 1062 days in preferring the Review Petition since the applicant had failed to make out a sufficient cause for the excessive delay.
A Division Bench of Justice Raja Vijayaraghavan V and Justice T.R Ravi observed,
"We have no doubt in our mind that this is a clear case of abuse of process of this Court. The petitioners have neither made out any case on merits nor have they given us a valid reason to condone the delay of over 1000 days. Though this is an eminently fit case for imposition of exemplary costs, in view of the fervent submissions of the learned counsel, we desist from doing so."
The "chequered history" of the case at hand is as follows:
The respondent herein was the landlord of a multistoried building which was leased out to a Nationalised Bank, viz the petitioner.
In 2009, the respondent sought fixation of fair rent under Section 5 (1) of the Kerala Buildings (Lease and Rent Control) Act, 1965. In 2012, the Rent Control Court fixed the fair rent at Rs 40/ per square foot.
Although the above order was challenged, it was confirmed by the Appellate Authority and thereafter by the High Court as well in 2017.
However, regarding the locus standi of the landlord to maintain a petition to get the rent re-fixed, the High Court directed the matter to be remanded back as it felt that cogent materials were lacking before the Subordinate Courts to fix the rent at Rs 40/sqft.
After the remand, the Rent Control Court fixed the fair rent at Rs. 35/- per square feet, which was upheld by the Appellate Court and the High Court in 2020.
Thereafter, the applicants chose to file a Review Petition seeking to review the Orders of this High Court passed in 2017 and 2020 respectively.
"We find no reason to condone the delay or to entertain this Review Petition. We find that none of the contentions raised by the petitioners in the review petition was ever raised by the petitioners at the time of filing R.C.R. No.154/2014. The order of remand passed in the Revision Petition was pursued and the petitioners had adduced additional evidence before the Rent Control Court. The order passed by this Court has worked itself out. The order passed by the Rent Control Court after the remand was upheld by the Appellate Authority."
The orders passed by the subordinate courts were challenged before the High Court yet again through a Revision Petition. Considering all the contentions raised by the petitioners, the High Court refused to interfere.
"It appears to us that the petitioners are attempting a novel form of Forum Shopping," it remarked.
Accordingly, the Court held that this was a clear case of abuse of process of law. The application was as such dismissed along with the unnumbered review petition.
Senior Advocate Ramesh Babu appeared for the petitioners as instructed by Advocate C. Muralikrishnan while Advocate Praveen K Joy represented the respondent.
Case Title: Canara Bank & Ors v. Deva Properties Ltd.
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Arbitration Proceedings from the stage where the impugned
order came to be passed, in accordance with law.
(C) Pending admission, hearing and final disposal of the
present petition the Respondent No. 2, be restrained from
proceeding further with the Arbitration Proceeding, as notified
in the Notice dated 25.04.2019, annexed as "Annexure - C" to
the present petition.
(D) Ad - Interim reliefs, in terms of para 'C' above, be
granted in favour of the Petitioner.
(E) Any other and further orders that are deemed necessary
in the interests of justice may be passed.”
2. The facts as stated by the writ-applicant germane to the
adjudication of the present writ-application read thus :-
2.1 The writ-applicant herein approached this Court for
appointment of an arbitrator to resolve the disputes arising out
of the contract bearing No.B-1/83 of 2012-2013, under section
11 of the Arbitration and Conciliation Act, 1996, being I.A.A.P.
No. 138 of 2017 whereby by order dated 08.12.2017 the
respondent No. 2, Mr. L.C. Kanani, Retd. Member Secretary of
the respondent Board came to be appointed as the Sole
Arbitrator to resolve the disputes between the parties.
2.2 After preliminary meeting of the Arbitral Tribunal held
on 20.01.2018, wherein, as per mutual agreement between the
parties, the sole arbitrator took certain decisions. The minutes
of the said meeting dated 10.01.2018 are produced at
"Annexure – D" to the petition.
2.3 The writ-applicant filed its Statement of Claim before the
learned Tribunal on 09.03.2018, along with supporting
documents, as per the directions of the Tribunal. As against
that, the respondent No. 1 herein filed its written statement to
the Claim statement along with the Counter Claim against the
writ-applicant on, 25.04.2018.
2.4 In response to the written statement / counter claim
filed by the respondent No.1 the writ-applicant filed its
Rejoinder Affidavit to the Written statement and reply to the
counter claim on 17.05.2018. The writ-applicant preferred an
application on 05.09.2018, for production of documents and for
amendment of the claim statement which came to be allowed
by the learned sole arbitrator on 22.09.2018.
2.5 Final arguments of the claimants commenced by the
learned advocate on or about 27.10.2018 which concluded on
23.02.2019. The learned advocate for the respondent No.1
commenced his arguments on 23.02.2019 and during such
course of the said arguments, the learned advocate appearing
on behalf of the respondent No.1; for the first time raised an
oral objection regarding the maintainability of the claim
statement of the writ-applicant contending that the same is not
verified and supported by affidavit and therefore the same is
not maintainable in the eyes of law.
2.6 The sole arbitrator gave certain directions whereby, the
writ-applicant was directed to file claim statement before the
Tribunal with supporting documents and that in such directions
the sole arbitrator had not directed any of the parties to
submit their pleadings on affidavit. Unless and until so
decided as a procedure by the learned Arbitral Tribunal, it
would not be necessary or a requirement to submit the
pleadings on affidavit or upon verification and under the said
understanding, the claim statement would not be submitted
along with either Affidavit or Verification.
2.7 The sole arbitrator ignoring the contentions raised by
the writ-applicant and ignoring the provisions of law as well as
the settled principles of law and ignoring the fact that the
writ-applicant rectified the so called irregularity/defect by filing
affirmed and verified claim statement on 8.4.2019 and
tendered the same by sending by Speed Post to both the
respondents, on 9.4.2019 which was received by the
respondent No.1 on 10.4.2019 and by the respondent No.2 on
11.4.2019. The arbitrator rejected the claim statement of the
writ-applicant and further by order dated 24.4.2019 and by
further Minutes dated 25.4.2019 kept the proceedings for
respondent’s counter claim on 2.5.2019. The impugned order
dated 24.4.2019 reads thus :-
“9. I have gone through the preliminary objection / submission
made by the respondent Board; I have also gone through the
general rules of procedure and guide lines for conduct of
Arbitration proceedings 2016. I have also gone through the
reply filed by the claimant, submissions of Mr. Mehta Ld.
Advocate and the judgements cited by him. It appears from the
a) The first claim statement was filed by the claimant on
09.03.2018 was not verified and affirmed.
b) The Amended claim statement was filed on 22.09.2018
which was allowed on 27.09.2018 was not verified and
affirmed.
c) The last and final 3rd amended statement of claim (as
per the order of the tribunal dated 27.09.2018) dated
05.04.2019 presented and filed before the tribunal on
06.04.2019, which was also not verified and affirmed as
required under law.
All the three claim statements filed by the claimant are not
verified by an affidavit in the manner and form prescribed in
the Appendix of the schedule. The claimant is failed to cure
the defect in the claim statements at every stage. Thus, it
cannot be said to be pleadings or claim statement.
10. It is clear from Rule 15A (4) that if the pleadings are not
verified in the manner provided under Sub- Rule (1), the party
shall not be permitted to rely on such pleadings as evidence or
any of the matter set out therein. This tribunal has jurisdiction
to strikeout a pleading which is not verified by a statement of
truth, namely, affidavit set out in appendix of the schedule.
The claimant failed to file claim statement on affidavit till the
end of hearing on 06.04.2019.
11. It is evidently clear that, for a long period of 15 months
the claimant did not care to cure the defects of verifying the
pleadings and did not file on affidavit on oath in the manner
and form prescribed in appendix. Thus, it is not valid pleading
as required under law. Mr. Mehta argued that it is a
procedural defect and it can be rectified /cured by filing
affidavit in support of the claim at any stage. Even if the
contention of Mr. Mehta, Ld. Advocate is accepted then also
the claimant is failed to rectify the procedural defect and has
not verified and filed affidavit as required under law. The third
amended statement of claims filed by the claimant with simply
notary stamp and signature correcting the date 05.04.2019 in
place of 09.03.2018 is also without verification and without
affidavit on oath in support of the pleadings. Thus, there is no
valid and legal pleading on record.
In my view, there is no pleading in the eyes of law and it is
not permissible in law to rely upon such non verified and non
affirmed pleadings. I have considered the judgements produced
by Mr. Sanjay Mehta, Ld. Advocate in support of his
submission. There is no compliance with Order VI Rule 15 (4)
and amended Rule 15A of the Code of Civil Procedure. Under
the circumstance, the application filed by the respondent Board
raising preliminary submission / objection is allowed. The
pleadings of the claimant without verification and affidavit
cannot be accepted and is hereby strikeout and the claim
statement is rejected.
2.8 Being aggrieved by the impugned order dated 24.4.2019
the writ-applicant is constrained to approach this Court under
Article 226 of the Constitution of India.
2.9 By order dated 6.5.2019 while issuing notice interim
relief came to be granted in favour of the writ-applicant which
“1. Draft amendment is permitted to be carried out forthwith.
Upon the amendment being carried out, NOTICE returnable
on 24-06-2019.
2. Learned Advocate for the petitioner submitted that this is
regarding settled position of law of curing defect by putting
the pleadings on statement of claim on Affidavit, which the
petitioner subsequently carried out by even serving the copy
of such duly affirmed the statement of claim upon the
respondents. The Arbitrator has proceeded to reject the claim
merely on such ground and on one hand, the Arbitrator has
complied with the provisions of C.P.C. to the ongoing
arbitration proceedings and on the other hand, has not
accepted the submission of the petitioner about the curable
defect as provided under C.P.C.
3. In view of the aforesaid, by way of interim relief till the
returnable date, the respondent No. 2 is restrained from the
proceedings, pursuant to the Notice dated 25-04-2019 and
subsequent Notice dated 29-04-2019.
2.10 By order dated 6.1.2020 the interim relief granted
earlier came to be confirmed and rule came to be issued.
3. Heard Mr. Sanjay Mehta, the learned advocate appearing
for Mr. N. R. Mehta, the learned advocate appearing for the
writ-applicant and Mr. D. G. Chauhan, the learned advocate
appearing for the respondent No.1. The respondent No.2
though served has not appeared.
Submissions on behalf of the writ-applicant :-
4. Mr. Sanjay Mehta, the learned advocate appearing for
Mr. N. R. Mehta, the learned advocate appearing for the writ-
applicant relied on the provisions of Section 19 of the
Arbitration & Conciliation Act that the Arbitral Tribunal shall
not be bound by the Code of Civil Procedure, 1908 or the
Indian Evidence Act, 1872 and that the parties are free to
agree on the procedure to be followed by the Arbitral
Tribunal in conducting its proceedings.
4.1 Mr. Mehta, the learned advocate further submitted that
the respondent No.2 has not even mentioned in the entire
impugned order that the respondent No.2 has received the duly
affirmed and verified claim statement which was affirmed and
verified on 8.4.2019 and received by the respondent No.2 on
9.4.2019 by E-mail and on 11.4.2019 by Speed Post and thus
by not acknowledging the same passed the impugned order
dated 24.4.2019 that the defect has not been cured by the
writ-applicant which is incorrect and that itself results in the
impugned order being perverse, arbitrary and illegal.
4.2 Mr. Mehta, the learned advocate submitted that the
defect of not affirming or not verifying claim statement is
purely an irregularity and curable defect which can be cured at
a later stage for which an opportunity has to be given to the
party and which has in fact been cured by the respondent by
submitting duly affirmed claim statement on 8.4.2019 which
was prior to the passing of the impugned order.
4.3 Mr. Mehta, the learned advocate submitted that the
respondent No.2 failed to give an opportunity to the writ-
applicant to cure the said irregularity/defect in ignorance of
settled principles of law as well as provisions of law and in
such ignorance the respondent No.2 rejected the claim
statement which is unjust and contrary to the legal principles.
He further submitted that the objections raised by the
respondent No.1 at a belated stage, could not be tenable, not
only because of delay but because objections can be said to be
hyper technical and the defect as complained was cured and
the said defect could not be said so fatal to result into
rejection of the claim statement of the writ-applicant.
4.4 In view of above, it was submitted by Mr. Mehta, the
learned advocate that the impugned order dated 24.4.2019
passed by the respondent No.2 be quashed and set aside and
further direct the respondent No.2 to take on record the duly
affirmed and verified claim statement duly produced at
Annexure-B and proceed further with the arbitration
proceedings from the stage where the impugned order came to
be passed in accordance with law.
4.5 Mr. Mehta, the learned advocate relied on the
following decisions :-
(2) LPA No.308/2020 Para 17, 7, 35 and 36
(5) 1996 (1) GLH 977 Para 11, 14, 22 and 25
(6) AIR 1997 SC Para 11, 12 and 13
Submissions on behalf of the respondent No.1 :-
5. Heard Mr. D. G. Chauhan, the learned advocate
appearing for the respondent Board. Mr. Chauhan, the learned
advocate submitted that the present writ-application under
Article 226/227 of the Constitution of India is not maintainable
against the order passed by the respondent No.2 in arbitration
proceedings in view of the provisions of Section 34 of the
Arbitration & Conciliation Act, 1996. He submitted that this
Court may not exercise its extraordinary jurisdiction under
Article 227 of the Constitution of India over the order passed
by the learned Arbitrator appointed under the provisions of
5.1 Mr. Chauhan, the learned advocate submitted that the
writ-applicant be relegated to the alternative remedy and not
to entertain the present writ-application. He submitted that the
writ-applicant has deliberately submitted the relevant and
material facts that three different statements of claim produced
by the writ-applicant are without verification and without
affidavit-in-support of the pleadings and, therefore, they are no
pleadings in the eye of law.
5.2 Mr. Chauhan, the learned advocate submitted that the
writ-applicant is trying to mislead this Court and the
respondent has shown that an affirmed copy of statement of
claim was submitted on 11.4.2019. In fact, the hearing of the
arbitration proceedings was concluded on 6.4.2019 and on the
same day the matter was kept for orders.
5.3 Mr. Chauhan, the learned advocate has referred to the
relevant dates with regard to the proceedings before the
Arbitral Tribunal which are produced thus :-
08.12.2017 This Hon’ble Court by consent of the parties
appointed Shri L. C. Kanani as a Sole
20.01.2018 The Learned Arbitrator fixed the programme
for holding arbitration proceedings.
09.03.2018 The petitioner – orig. claimant filed 1 st
unverified and unaffirmed claim statement.
25.04.2018 The respondent – Board submitted written
statement in reply to claim statement duly
verified and affirmed alongwith relevant
documents as evidence.
appeared for the claimant and argued the
matter.
22.09.2018 The petitioner – orig. claimant produced 2 nd
amended unverified and unaffirmed claim
statement.
27.10.2018 The petitioner – orig. claimant started his
arguments on invalid and untenable
23.02.2019 The arguments of the petitioner – orig.
claimant was concluded.
23.02.2019 On 23.02.2019 itself the respondent – Board
raised objection about tenability of the
statement of claim (pleadings) as the same
were not duly verified on affidavit as
05.04.2019 The Learned Advocate for the Board
submitted an application and raised objection
that the claim statement is not tenable in
law as the same are not duly verified and
affirmed by the petitioner – orig. claimant.
It has no legal validity in the eye of law.
06.04.2019 The petitioner – orig. claimant filed reply to
the application and both the parties argued
the matter and concluded their arguments
respectively.
06.04.2019 After conclusion of the arguments, the matter
was kept for order by the Learned Arbitrator.
24.04.2019 The order is pronounced by the Learned
Arbitrator and the Learned Arbitrator has
strike out the pleadings of the claimant.
5.4 Mr. Chauhan, the learned advocate appearing for the
respondent No.1 submitted as under on the merits of the
(a) Mr. Chauhan, the learned advocate appearing for the
respondent No.1 submitted that the Order VI Rule 15(4) read
with Rule 15(A) of the Civil Procedure Code contemplates that
every pleadings in a commercial dispute shall be verified by
the affidavit in the manner and form prescribed in this
(b) Mr. Chauhan, the learned advocate submitted that the
said provision i.e. Order VI Rule 15(4) are mandatory and
requires to be complied with by the claimant. He submitted
that after considering the provisions of Code of Civil Procedure
and general principles of pleadings the learned Arbitrator –
respondent No.2 has rightly, legally and validly rejected the
pleadings as all the three different statements of claim filed by
the writ-applicant on 9.3.2018, 22.9.2018 and 6.4.2019
respectively were not verified by affidavit. No affidavit was
filed by the claimant as required under the law and the writ-
applicant has cured the defect by affirming the pleadings.
Further the Arbitrator had not denied the said pleadings.
However, reiterated that the arguments were concluded on
6.4.2019 and after realizing that the claim statement would be
rejected as it was not legal and valid, a separate defective
affidavit was affirmed on 8.4.2019 and sent to the learned
Arbitrator on 11.4.2019 through Speed Post.
(c) Mr. Chauhan, the learned advocate submitted that this
was also defective and not affirmed as required under the law.
He submitted that Article 4 of the Gujarat Stamp Act, 1958
provides that affidavit shall be on proper stamp of Rs.20/-.
Even today the pleadings are defective and not in accordance
with the provisions of law.
5.5 Mr. Chauhan, the learned advocate lastly submitted that
the order passed by the learned Arbitrator – the respondent
No.2 is legal valid and in accordance with the provisions of
5.6 Mr. Chauhan, the learned advocate submitted that
Section 19 of the Arbitration and Conciliation Act provides for
“determination or rules of procedure”. The said section does
not say that Arbitral Tribunal shall not be bound by the Code
of Civil Procedure, 1908 or the Indian Evidence Act, 1972. The
section does not say that the pleadings shall be verified by an
affidavit. He submitted that the respondent No.2 is legally
bound to take judicial notice of substantive laws, recognize
legal principle, practice of civil law, natural justice, fair play
and equity, unless agreed otherwise.
5.7 Mr. Chauhan, the learned advocate submitted that in
the present case the learned Arbitrator had not determined the
rules of procedure to conduct the proceedings. Filing of
pleadings on verification by an affidavit is mandatory. The
Code of Civil Procedure is a substantive law in force in India.
Placing reliance on Section 36 of the Arbitration & Conciliation
Act Mr. Chauhan, the learned advocate submitted that the
award passed by the learned Arbitrator can only be enforced
under the provisions of the Civil Procedure Code, 1908 and
submitted that it was open for the learned Tribunal to rely on
the provisions of the Code.
5.8 Mr. Chauhan, the learned advocate relied on the
following decisions :-
(1) SCA No.12993/2016 with SCA No.12834/2016 Para-19
(2) 2020 (4) GLR 2906 Head Note, Para 14, 15 and 16
(3) (2014) 7 SCC 255 Para 14, 15, 16, 17 and 18
6. The writ-applicant and the respondent No.1 entered into
the arbitration proceedings to resolve the disputes between the
parties arising out of the contract bearing No.B-1/83 of 2012-
13 under Section 11 of the Arbitration & Conciliation Act,
1996 being I.A.A.P. No.138 of 2017. By order dated 8.12.2017
the respondent No.2 Mr. L. C. Kanani, Retired Member
Secretary of the respondent Board came to be appointed as
Sole Arbitrator to resolve the dispute between the parties.
During the course of arbitration proceedings, the writ-applicant
filed its statement of claim before the learned Tribunal on
9.3.2018 alongwith all the supporting documents. The
respondent No.1 filed written statement to the said claim
statement alongwith counter claim against the writ-applicant
on 25.4.2018. The writ-applicant filed its rejoinder affidavit to
the written statement on 17.5.2018 and reply to counter claim
of 17.5.2018. Issues came to be framed by the Arbitral
Tribunal. The writ-applicant preferred an application for
production of documents and amendment of claim on 5.9.2018
which came to be allowed by the respondent No.2 by order
dated 22.9.2018. After the present writ-applicant i.e. the
claimant’s arguments came to be concluded on 23.2.2019 and
the learned advocate for the respondent No.1 commenced his
arguments on 23.2.2019, the learned advocate appearing on
behalf of the respondent No.1 for the first time raised
preliminary objection regarding maintainability of claim
petition of the writ-applicant contending that the same was not
verified and supported with affidavit and, therefore, the same
was not maintainable in eye of law which is duly produced at
Annexure-E to the petition.
6.1 The learned Tribunal by the impugned order dated
24.4.2019 passed an order allowing the preliminary objections
raised by the respondent Board on the ground that in the
statement of claim of the writ-applicant the pleadings were
non-verified and non-affirmed and, therefore, the pleadings
were non est in the eye of law. The said pleadings of the
claimant being without verification and affidavit could not be
accepted and consequently the respondent No.2 – Arbitrator
proceeded to strike out the same and the claim statement came
to be rejected.
6.2 The respondent No.1 herein has produced on record the
Minutes of the 12th meeting held on 5.4.2019, wherein the
respondent No.1 raised preliminary objection before the learned
Tribunal in the 11th hearing on 23.2.2019 raising preliminary
objection against the maintainability of the claim statement
under the provisions of Order VI, more particularly Rule 54
that there is no verification of pleadings and the pleadings are
not supported by affidavit on oath and thus the claim
statement of the claimant is legally not maintainable.
6.3 It also transpires from the Minutes produced on record at
page-123, the learned advocate appearing for the claimant
submitted reply to the said application raising preliminary
objection as regards maintainability of the claim alongwith
amended claim statement, which was submitted by the
claimant before the learned Arbitral Tribunal on 22.10.2018
requesting the learned Arbitral Tribunal to take the same on
record. It also appears that the learned advocate appearing for
the writ-applicant/claimant opposed the application filed by the
respondent No.1 based on decision/authorities of respective
Courts on interpretation of Order VI Rule 54 of the Code and
on Section 28 of the Arbitration & Conciliation Act, 1996.
Consequently by the impugned order dated 24.4.2019 the
Arbitral Tribunal rejected the claim statement of the writ-
applicant accepting the preliminary objection/submission on the
ground that the pleadings of the claimant being without
verification and affidavit cannot be accepted and, therefore,
struck down and the claim statement came to be rejected.
7. Position of Law :-
(a) In the case of Union of India Versus M/s. Varindera
Constructions Ltd. Etc. reported in JT 2018 (4) SC 550, the
Hon'ble Supreme Court held thus :-
"8) The primary object of the arbitration is to reach a
final disposition in a speedy, effective, inexpensive and
expeditious manner. In order to regulate the law regarding
arbitration, legislature came up with legislation which is
known as Arbitration and Conciliation Act, 1996. In order
to make arbitration process more effective, legislature
restricted the role of courts in case where matter is
subject to the arbitration. Section 5 of the Act specifically
restricted the interference of the courts to some extent. In
other words, it is only in exceptional circumstances, as
provided by this Act, the court is entitled to intervene in
the dispute which is subject matter of arbitration. Such
intervention may be before, at or after the arbitration
proceeding, as the case may be. In short, court shall not
intervene with the subject matter of arbitration unless
injustice is caused to either of the parties."
(b) In the case of S.B.P. and Company versus Patel
Engineering Ltd. and others reported in (2005) 8 SCC 618, the
scope of power of jurisdiction of High Court under Article 226
and 227 of the Constitution of India has been analysed
wherein the Hon'ble Supreme Court has observed in paragraph
No.47 which reads thus :-
47. We, therefore, sum up our conclusions as follows:
i) The power exercised by the Chief Justice of the High
Court or the Chief Justice of India under Section 11(6) of
the Act is not an administrative power. It is a judicial
power.
ii) The power under Section 11(6) of the Act, in its
entirety, could be delegated, by the Chief Justice of the
High Court only to another judge of that court and by the
Chief Justice of India to another judge of the Supreme
(iii) In case of designation of a judge of the High Court or
of the Supreme Court, the power that is exercised by the
designated, judge would be that of the Chief Justice as
conferred by the statute.
(iv) The Chief Justice or the designated judge will have
the right to decide the preliminary aspects as indicated in
the earlier part of this judgment. These will be, his own
jurisdiction, to entertain the
request, the existence of a valid arbitration agreement, the
existence or otherwise of a live claim, the existence of the
condition for the exercise of his power and on the
qualifications of the arbitrator or arbitrators. The Chief
Justice or the judge designated would be entitled to seek
the opinion of an institution in the matter of nominating
an arbitrator qualified in terms of Section 11(8) of the Act
if the need arises but the order appointing the arbitrator
could only be that of the Chief Justice or the judge
designate.
(v) Designation of a district judge as the authority under
Section 11(6) of the Act by the Chief Justice of the High
Court is not warranted on the scheme of the Act.
(vi) Once the matter reaches the arbitral tribunal or the
sole arbitrator, the High Court would not interfere with
orders passed by the arbitrator or the arbitral tribunal
during the course of the arbitration proceedings and the
parties could approach the court only in terms of Section
37 of the Act or in terms of Section 34 of the Act.
(vii) Since an order passed by the Chief Justice of the
High Court or by the designated judge of that court is a
judicial order, an appeal will lie against that order only
under Article 136 of the Constitution of India to the
(viii) There can be no appeal against an order of the Chief
Justice of India or a judge of the Supreme Court
designated by him while entertaining an application under
Section 11(6) of the Act.
(ix) In a case where an arbitral tribunal has been
constituted by the parties without having recourse to
Section 11(6) of the Act, the arbitral tribunal will have the
jurisdiction to decide all matters as contemplated by
Section 16 of the Act.
(x) Since all were guided by the decision of this Court in
Konkan Railway Corporation Ltd. and Anr. v. Rani
Construction Pvt. Ltd. and orders under Section 11(6) of
the Act have been made based on the position adopted in
that decision, we clarify that appointments of arbitrators or
arbitral tribunals thus far made, are to be treated as valid,
all objections being left to be decided under Section 16 of
the Act. As and from this date, the position as adopted in
this judgment will govern even pending applications under
Section 11(6) of the Act.
(xi) Where District Judges had been designated by the
Chief Justice of the High Court under Section 11(6) of the
Act, the appointment orders thus far made by them will
be treated as valid; but applications if any pending Page
1824 before them as on this date will stand transferred, to
be dealt with by the Chief Justice of the concerned High
Court or a Judge of that court designated by the Chief
(xii) The decision in Konkan Railway Corporation Ltd. and
Anr. v. Rani Construction Pvt. Ltd. is overruled."
(c) In the case of Lalitkumar V. Sanghavi (D) Th. LRs
Sanghavi & Ors. reported in 2014 (7) SCC 255, the Hon'ble
Supreme Court observed in paragraph No.8 which reads thus :-
"8. Within a couple of weeks thereafter, the original
applicant died on 7.10.2012. The question is whether the
High Court is right in dismissing the application as not
maintainable. By the judgment under appeal, the Bombay
High Court opined that the remedy of the appellant lies in
invoking the jurisdiction of the High Court under Article
226 of the Constitution. In our view, such a view is not in
accordance with the law declared by this Court in S.B.P. &
Co. v. Patel Engineering Ltd., (2005) 8 SCC 618. The
relevant portion of the judgment reads as under:
45. It is seen that some High Courts have proceeded
on the basis that any order passed by an arbitral
tribunal during arbitration, would be capable of being
challenged under Article 226 or 227 of the
Constitution of India. We see no warrant for such an
approach. Section 37 makes certain orders of the
arbitral tribunal appealable. Under Section 34, the
aggrieved party has an avenue for ventilating his
grievances against the award including any in-between
orders that might have been passed by the arbitral
tribunal acting under Section 16 of the Act. The party
aggrieved by any order of the arbitral tribunal, unless
has a right of appeal under Section 37 of the Act, has
to wait until the award is passed by the Tribunal.
This appears to be the scheme of the Act. The arbitral
tribunal is after all, the creature of a contract
between the parties, the arbitration agreement, even
though if the occasion arises, the Chief Justice may
constitute it based on the contract between the
parties. But that would not alter the status of the
arbitral tribunal. It will still be a forum chosen by the
parties by agreement. We, therefore, disapprove of the
stand adopted by some of the High Courts that any
order passed by the arbitral tribunal is capable of
being corrected by the High Court under Article 226
or 227 of the Constitution of India.
Such an intervention by the High Courts is not
permissible. That need not, however, necessarily mean
that the application such as the one on hand is
maintainable under Section 11 of the Act."
(d) In the case of Bhaven Construction through Authorized
Sarovar Narmada Nigam Ltd. & Anr. reported in 2021 (1)
Scale 327 paragraph nos.17.1 and 18 reads thus :-
"17.1 It is therefore, prudent for a Judge to not
exercise discretion to allow judicial interference beyond
the procedure established under the enactment. This
power needs to be exercised in exceptional rarity,
wherein one party is left remediless under the statute
or a clear bad faith shown by one of the parties. This
high standard set by this Court is in terms of the
legislative intention to make the arbitration fair and
efficient.
18. In this context we may observe M/s. Deep
Industries Limited v. Oil and Natural Gas Corporation
Limited, (2019) SCC Online SC 1602, wherein interplay
of Section 5 of the Arbitration Act and Article 227 of
the Constitution was analyzed as under:
"15. Most significant of all is the non- obstante
clause contained in Section 5 which states that
notwithstanding anything contained in any other
law, in matters that arise under Part I of the
Arbitration Act, no judicial authority shall
intervene except where so provided in this Part.
Section 37 grants a constricted right of first
appeal against certain judgments and orders and
no others. Further, the statutory mandate also
provides for one bite at the cherry, and interdicts
a second appeal being filed (See Section 37(2) of
16. This being the case, there is no doubt
whatsoever that if petitions were to be filed under
Articles 226/227 of the Constitution against orders
passed in appeals under Section 37, the entire
arbitral process would be derailed and would not
come to fruition for many years. At the same
time, we cannot forget that Article 227 is a
constitutional provision which remains untouched
by the non-obstante clause of Section 5 of the
Act. In these circumstances, what is important to
note is that though petitions can be filed under
Article 227 against judgments allowing or
dismissing first appeals under Section 37 of the
Act, yet the High Court would be extremely
circumspect in interfering with the same, taking
into account the statutory policy as adumbrated
by us herein above so that interference is
restricted to orders that are passed which are
patently lacking in inherent jurisdiction."
(e) This Court has also followed the above referred
principles laid down by the Hon'ble Supreme Court in GTPL
Hathway Ltd. Versus Strategic Marketing Pvt. Ltd. in
paragraph Nos.14 and 15, which reads thus :-
"14. In view of aforesaid conspectus of law, and
considering the provisions of the Act, 1996, the order
passed by the Arbitration Tribunal during the course of
Arbitration cannot be challenged by the petitioner under
Articles 226 and/or 227 of the Constitution of India
when the constitution bench of the Apex Court in case
of M/s. S.B.P. and Co. v. M/s. Patel Engineering Ltd.
and Anr.(supra) has disapproved the stand that any
order passed by the Arbitral Tribunal is capable of
being corrected by the High Court under Articles 226
and 227 of the Constitution of India and has
categorically held that such intervention by the High
Court is not permissible. The Apex Court in case of
M/s. Deep Industries Limited v. Oil and Natural Gas
Corporation (supra) has held that it is also important to
notice that the seven−Judge Bench has referred to the
object of the Act being that of minimizing judicial
intervention and that this important object should
always be kept in the forefront when a 227 petition is
being disposed of against proceedings that are decided
under the Act,1996 and that the policy of the Act is
speedy disposal of arbitration cases as the Act,1996 is
'self−contained' Code and deals with all the cases.
15. In view of aforesaid settled legal proposition,
considering the policy, object and the provisions of the
Act,1996, an order passed during arbitration
proceedings by the Arbitration Tribunal cannot be
challenged under Articles 226 and 227 of the
Constitution of India as the Act,1996 is a special act
and a self−contained code dealing with arbitration.
Therefore, the impugned order of the Arbitration
Tribunal deciding the preliminary objection raised by
the petitioner cannot be challenged under Article 226 or
227 of the Constitution of India."
(f) In the case of Kelkar & Kelkar vs. Hotel Pride Executive
Pvt. Ltd., Civil Appeal No.3479 of 2022 decided on 4.5.2022
paragraphs 1, 1.1, 1.2, 1.3 and 2 read thus :-
“1. Feeling aggrieved and dissatisfied with the
impugned judgment and order dated 06.08.2015 passed
by the High Court of Judicature at Bombay in Writ
Petition No.4442 of 1999 by which the High Court, in
exercise of Articles 226 and 227 of the Constitution of
India, has allowed the said writ petition preferred by
the respondent herein and has quashed and set aside
signed by learned Arbitrator and has remanded the
matter for de novo consideration, the original claimant
has preferred the present appeal.
1.1 The dispute arose between the parties which was the
subject matter of arbitration before the learned
Arbitrator. On the learned Arbitrator declaring the
award, on an application filed by the original claimant
– original plaintiff vide order passed in Exhibit 10 in
Regular Civil Suit No.1022/1996, passed a decree in
terms of the award made by the learned Arbitrator. By
the said award the original respondents were directed to
pay to the original claimants Rs.12,46,663/.
1.2 Feeling aggrieved and dissatisfied with the award
made by the learned Arbitrator as well as the order
passed by the learned trial Court passed as per Exhibit
10 in making the award a decree, instead of preferring
appeals under the Arbitration Act, 1940 (hereinafter
referred to as ‘the Act’), preferred a writ petition before
the High Court under Articles 226 and 227 of the
Constitution of India mainly on the ground that, before
the learned Arbitrator was appointed, there was non-
compliance of Clause 56 of the Articles of Agreement
and the procedure as required under Clause 56 was not
followed. By the impugned judgment and order the High
Court has set aside the award made by the learned
Arbitrator on the ground that the procedure as required
under Clause 56 had not been followed. Consequently,
the High Court has remanded the matter for de novo
consideration.
1.3 Feeling aggrieved and dissatisfied with the impugned
judgment and order passed by the High Court, the
original claimant has preferred the present appeal.
2. Having heard learned counsel appearing on behalf of
the respective parties and considering the impugned
judgment and order passed by the High Court, we are
of the opinion that against the award made by the
learned Arbitrator made under the Act and against an
order passed by the learned trial Court making the
award a decree and without availing the alternative
statutory remedy available by way of appeal under the
provisions of the Act, the High Court ought not to have
entertained the writ petition under Articles 226 and 227
of the Constitution of India. When the statute provides a
further remedy by way of appeal against the award and
even against the order passed by the learned trial Court
making the award a decree of the court, the High Court
ought not to have entertained the writ petition and
ought not to have set aside the award, in a writ petition
under Articles 226 and 227 of the Constitution of India.
In that view of the matter the impugned judgment and
order passed by the High Court is unsustainable and the
same deserves to be quashed and set aside.”
7.1 In view of the ratio as laid down by the Honourable
Apex Court as well as this Court the interference in arbitration
proceedings at any stage is impermissible in view of the self-
sufficiency of the Arbitration Act. In the case of Bhaven
Corporation (Supra) wherein also the Apex Court has been
pleased to observe that the interference in arbitration
proceedings at any stage is absolutely unwarranted and the
remedies as available under the Arbitration Act are the ones
which are required to be availed and exhausted by the parties
rather than deviating to writ or any other jurisdiction.
7.2 From the impugned order dated 24.04.2019 it clearly
transpires that the statement of claim of the writ-applicant has
been rejected which essentially means the claim of the
claimant/writ applicant stands closed and gives final closure to
his claim. The claim as claimed for by the writ-applicant
stands rejected. The nature of order and the consequence it
entails is important to determine the remedy against such an
order. The impugned order in the present case is an order
which concludes the claim of the claimant/writ-applicant
against the respondent No.1.
7.3 This Court has also taken into consideration the provisions
of Section 2(1)(c) which defines “award” and also the
provisions of Section 25 and 32 of the Act. On harmonious
reading of the same it can be clearly concluded that any order
which ends to the claim of the claimant is clearly an order
which is assailable under the provisions of Arbitration and
Conciliation Act and the remedy lies by availing statutory
remedy under the Arbitration and Conciliation Act.
7.4 The writ applicant has raised the contention that the
rejection of claim on such ground of procedural irregularity is
not covered under the arbitration act and hence the remedy as
to challenge the award under Section 34 of the Act is not
available to the writ-applicant. The said contention cannot be
accepted as the proceedings so far as the writ-applicant is
concerned has attained finality by the impugned order dated
24.4.2019 passed by the learned Arbitrator and the claim of
the writ applicant stands rejected. The proceedings having
attained finality the only recourse available to the writ
applicant is by challenging the impugned order by availing
statutory remedy under the provisions of the Arbitration Act.
The contention of the writ applicant that non-interference by
this Court under Article 226/227 would render the writ-
applicant remedy-less is not acceptable in view of the fact that
this Court is inclined to relegate the writ-applicant to avail
statutory remedy under the Act and it is open for the writ-
applicant to challenge the same before the appropriate forum.
7.5 In view of the settled legal position with regards to non-
interference in arbitration proceedings, this Court is not
inclined to assess the writ application on merits in view of the
fact that by the impugned order dated 24.4.2019, the
statement of claim of the writ applicant has been rejected and
the aforesaid can be challenged by availing statutory remedy
under the provisions of Arbitration Act.
7.6 This Court is also conscious of the fact that the
proceedings have remained pending for such time before this
Court and hence the said period of pendency shall stand
excluded for the purpose of counting the period of limitation if
the writ-applicant were to challenge the impugned order before
the appropriate forum.
7.7 The reliance placed by the learned advocate appearing for
the writ-applicant on the judgments as referred to above are
not dealt with in view of the fact that the ratio as laid down
in all the judgments under Order VI Rule 14 of Civil Procedure
Code deal with the defects in signing, verification of pleadings
are procedural irregularity and the same can be cured and
would not be fatal. The said submission is not dealt with in
view of the fact that this Court has otherwise not assessed the
writ-application on merits in view of the fact that writ-
applicant has availability of statutory efficacious alternative
remedy. However, it is open for the writ-applicant to raise the
aforesaid contentions before appropriate forum.
7.8 It is open for the writ-applicant as also the respondent to
raise all the contentions as may be available under the law
before the appropriate forum.
8. The present writ-application stands disposed of. Rule is
discharged. Interim relief stands vacated.
After pronouncement of this order Mr. N. R. Mehta, the
learned advocate for the writ-applicant requested to stay this
order for two weeks. Request as prayed for is declined.
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The High Court of Gujarat has held that a writ petition would not be maintainable against an order of the arbitral tribunal whereby it has rejected the claim of a party on the ground that its pleadings were without verification and affidavit to that effect.
The Single Bench of Justice Vaibhavi D. Nanavati held that once the arbitrator rejects the claims of a party that essentially means a final disclosure of its claims and the order of the arbitrator can be challenged under Section 34 of the A&C Act.
The Court held that on a harmonious reading of Section 2(1)(c) with provisions of Section 25 and 32 of the A&C Act, an order of the tribunal that puts an end to the claim of a party can be directly challenged under the provisions of the Act.
Facts
A dispute arose between the parties in relation to a contract bearing No.B-1/83 of 2012-2013. The Court appointed an arbitrator on the application preferred by the petitioner. The parties filed their claim and counter-claims before the tribunal.
After the completion of the final arguments on behalf of the claimant/petitioner, the respondent raised an objection that the claim statement is not tenable in law as the same is not duly verified and affirmed by the claimant/petitioner. The arguments were concluded on 06.04.2019. Thereafter, the petitioner filed an affirmed and verified claim statement on 08.04.2019 to cure the defect. The arbitral tribunal vide the impugned order dated 24.09.2019 accepted the objection raised by the respondent and consequently, rejected the claims of the petitioner.
Aggrieved by the decision of the tribunal, the petitioner filed the writ petition against the impugned order.
The Contention Of The Parties
The petitioner sought the setting aside of the impugned order on the following grounds:
By virtue of Section 19 of the A&C Act, the provisions of CPC, 1908 or the Indian Evidence Act, 1872 do not apply to arbitration proceedings. The arbitrator completely ignored the corrected claim statement filed by the petitioner on 08.04.2019 which was received by it on 09.04.2019 by email and on 11.04.2019 by the post. The defect of not verifying or affirming the claim statement is a curable defect and the petitioner cured the defect before the passing of the impugned order. The arbitral tribunal did not give an opportunity to the petitioner to cure the defect in its claim statement. The objection raised by the respondent was also not tenable in view of the delay and also because the objection was not fatal to result in the rejection of the claims of the petitioner.
The respondent objected to the maintainability of the writ petition on the following grounds:
The writ petition is not maintainable in view of an alternative remedy available under Section 34 of the A&C Act. The claim statements filed by the petitioner were not verified and there was no affidavit in support of the pleadings, therefore, there were no pleadings in the eye of the law.The order was reserved on 06.04.2019, therefore, the claim statement filed by the petitioner on 11.04.2019 were of no consequence. The provisions of Order VI Rules 15(4) and 15(A) provide that every pleading in a commercial dispute shall be verified by the affidavit in the manner and form prescribed in this schedule and these provisions are mandatory.
Analysis By The Court
The Court held that the A&C Act is a self-contained act and the interference in arbitration proceedings at any stage is absolutely unwarranted and the remedies as available under the Arbitration Act are the ones that are required to be availed and exhausted by the parties rather than deviating to a writ or any other jurisdiction.
The Court held that by rejecting the claims of the petitioner, the arbitrator has given a final verdict on the claims of the petitioner and it essentially concludes the claims of the petitioner against the respondent.
The Court held that once the arbitrator rejects the claims of a party that essentially means a final disclosure of its claims and the order of the arbitrator can be challenged under Section 34 of the A&C Act.
The Court held that on a harmonious reading of Section 2(1)(c) with provisions of Section 25 and 32 of the A&C Act, an order of the tribunal that puts an end to the claim of a party can be directly challenged under the provisions of the Act.
The Court held that as the petitioner has an alternative remedy under the A&C Act, the writ petition would not be maintainable. However, the Court clarified that it has not assessed the petition on merits and the petitioner is within its right to pursue the remedy under the A&C Act.
Accordingly, the Court dismissed the petition.
Case Title: Pahal Engineers v. The Gujarat Water Supply and Sewerage Board, R/SPECIAL CIVIL APPLICATION NO. 8727 of 2019.
Counsel for the Petitioner: Mr. Sanjay Mehta and Mr. N R Mehta
Counsel for the Respondents: Mr. DG Chahuhan and Ronak D Chauhan
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Is the Creator or Administrator of a WhatsApp group criminally liable for offensive
2. Gone are the days, when we used short message service or a formal website chat-
box to communicate with our kith and kin. They were replaced by personalised
messaging apps like WhatsApp, Facebook Messenger, Viber etc. Launched in 2009,
WhatsApp is a relatively latecomer to social media. Yet, it is reported to be growing
faster than other social media platforms especially in recent years. According to the
official note of WhatsApp, it serves more than 2 billion people in over 180 countries,
with over a billion daily active users. Recent data shows WhatsApp topped the list of
the most popular global mobile messaging apps in 2021. Currently, more than 100
billion messages are sent each day on WhatsApp, making it the most active
messaging app in the world. This Android based multiplatform messaging app lets its
users to make video and voice calls, send text messages, share their status, photos,
videos and more — with no fees or subscriptions.
3. WhatsApp has proved its relevance in exchange of information very fast. One of
the unique features of this application is that it also enables formation of groups of
people to chat and call thereon. WhatsApp groups bring together several people on a
common platform, thereby enabling easier communication amongst them. The person
who creates WhatsApp group is called Administrator (Admin) of the group. He may
also make other members of group as Group Admin. These Admin/s have certain
powers bestowed upon i.e., adding/removing a member etc. Due to lack of moderation
of these groups, the members therein are at almost free reign to post/share any kind
of data that they wish in terms of messages, voice notes, videos, songs etc. Many
members of a WhatsApp group may put objectionable contents. The legal
consequences and potential liability of the Administrator, stemming from such an
objectionable post has come up for consideration in this Criminal Miscellaneous Case.
4. The petitioner herein created a WhatsApp group by name FRIENDS. Being the
creator, he was the Admin. There were two more Admins; the accused No.1 and CW4.
On 29/03/2020 at 08.37 p.m., the accused No.1 posted in the group a porn video
depicting children engaged in sexually explicit act. On 15/06/2020, the Ernakulam City
police registered crime against the accused No.1 as Crime No. 864/2020 for the
offences under Sections 67B (a)(b) and (d) of the Information Technology Act, 2000
(for short, 'the IT Act') and Sections 13, 14 and 15 of the Protection of Children from
Sexual Offence Act, 2012 (for short, 'the POCSO Act'). Later on, the petitioner was
arrayed as the accused No.2 being the Creator of the group and Co- Administrator.
After investigation, final report was filed and the case is now pending as SC
No.61/2021 at the Additional Sessions (Cases Relating to Atrocities and Sexual
Violence Against Women and Children) Court, Ernakulam. According to the petitioner,
even if the entire allegations in the FI statement or final report together with all the
materials collected during the investigation are taken together at their face value, they
do not constitute the offences alleged. It was in these circumstances this Crl.M.C has
been filed invoking Section 482 of Cr.P.C to quash all further proceedings against the
5. I have heard Sri.Anil Kumar M.Sivaraman, the learned Counsel for the petitioner
and Smt. Pushpalatha, the learned Senior Public Prosecutor.
6. Admittedly the objectionable post in question was posted by the accused No.1 and
the petitioner was arrayed as the co-accused merely in his capacity as the
Creator/Administrator of the group. The question is, whether the petitioner could be
7. Vicarious liability is a form of a strict, secondary liability that arises under the
common law doctrine of agency; respondent superior – the responsibility of the
superior for the acts of their subordinate, or, in a broader sense, the responsibility
imposed on one person for the wrongful actions of another person. Such a liability
arises usually because of some or the other legal relationship between the two. This
often occurs in the context of civil law—for example, in employment cases. In a
criminal context, vicarious liability assigns guilt, or criminal liability, to a person for
wrongful acts committed by someone else.
8. Generally, person can be criminally liable for the acts of another if they are a party
to the offence. Now, strict vicarious criminal liability is somewhat of an exception to
the general rule of direct personal culpability and is a modern development through
statutory provisions. Such criminal vicarious liability can be attributed only if it is
provided under a particular Statute. Indian Penal Code (for short, 'the IPC') makes a
departure from the general rule in few cases, on the principle of respondent superior.
In such a case, a master is held liable under various Sections of the IPC for acts
committed by his agents or servants. Section 149 of IPC provides for vicarious liability.
It states that if an offence is committed by any member of an unlawful assembly in
prosecution of a common object thereof, or such as the members of that assembly
knew that the offence to be likely to be committed in prosecution of that object, every
person who, at the time of committing that offence, was member, would be guilty of
the offence committed. Section 154 of IPC holds owners or occupiers of land, or
persons having or claiming an interest in land, criminally liable for intentional failure
of their servants or managers in giving information to the public authorities, or in taking
adequate measures to stop the occurrence of an unlawful assembly or riot on their
land. The liability on the owners or occupiers of land has been fixed on the assumption
that such persons, by virtue of their position as landholders, possess the power of
controlling and regulating such type of gatherings on their property, and to disperse if
the object of such gatherings becomes illegal. Section 155 of IPC fixes vicarious
liability on the owners or occupiers of land or persons claiming interest in land, for the
acts or omissions of their managers or agents, if a riot takes place or an unlawful
assembly is held in the interest of such class of persons. Section 156 of IPC imposes
personal liability on the managers or the agents of such owners or occupiers of
property on whose land a riot or an unlawful assembly is committed. Section 268 of
IPC explicitly deals with public nuisance. Under this Section, a master is made
vicariously liable for the public nuisance committed by the servant. Section 499 of IPC
makes a master vicariously liable for publication of a libel by his servant. Defamation
is an offence under this Section. The doctrine of vicarious liability is more frequently
invoked under special enactments, such as Defence of India Rules 1962, the Indian
Army Act, 1911, the Prevention of Food Adulteration Act, 1954 etc. A master is held
criminally liable for the violation of rules contained under the aforesaid statutes,
provided that his agent or servant, during the course of employment, committed such
act. The Income Tax Act, 1961, the Drugs and Cosmetics Act, 1940 and the
Negotiable Instruments Act, 1881 contain specific provisions which make the person
running the affairs of a company vicariously liable for the offences committed by the
company (See Priya Ashwini, Vicarious Liability Under Criminal Law in India,
International Journal of Law and Legal Jurisprudence Studies: ISS:2348-8212:
9. The Apex Court has dealt with the issue of criminal vicarious liability many a time.
In Sham Sunder v. State of Haryana [(1989) 4 SCC 630], it was held thus:
"9. But we are concerned with a criminal liability under penal provision and not a civil liability. The
penal provision must be strictly construed in the first place. Secondly, there is no vicarious liability
in criminal law unless the statute takes that also within its fold. Section 10 does not provide for such
liability. It does not make all the partners liable for the offence whether they do business or not."
In Hira Lal Hari Lal Bhagwati v. CBI, New Delhi [(2003) 5 SCC 257], it was
"30. In our view, under the penal law, there is no concept of vicarious liability unless the said statute
covers the same within its ambit. In the instant case, the -said law which prevails in the field i.e. the
Customs Act, 1962 the appellants have been thereinunder wholly discharged and the GCS granted
In R. Kalyani v. Janak C. Mehta and Others [(2009) 1 SCC 516], it was held thus:
"32. Allegations contained in the FIR are for commission of offences under a general statute. A
vicarious liability can be fastened only by reason of a provision of a statute and not otherwise. For
the said purpose, a legal fiction has to be created. Even under a special statute when the vicarious
criminal liability is fastened on a person on the premise that he was in charge of the affairs of the
company and responsible to it, all the ingredients laid down under the statute must be fulfilled. A
legal fiction must be confined to the object and purport for which it has been created."
10. Thus, a vicarious criminal liability can be fastened only by reason of a provision of
a statute and not otherwise. In the absence of a special penal law creating vicarious
liability, an Admin of a WhatsApp group cannot be held liable for the objectionable
post by a group member. The petitioner has been charged with Sections 67B (a), (b),
and (d) of the IT Act and Sections 13, 14 and 15 of the POCSO Act. None of these
provisions provide for such liability. There is no law by which an Admin of any
messaging service can be held liable for a post made by a member in the group. A
WhatsApp Admin cannot be an intermediary under the IT Act. He does not receive or
transmit any record or provide any service with respect to such record. There is no
master-servant or a principal-agent relationship between the Admin of a WhatsApp
group and its members. It goes against basic principles of criminal law to hold an
Admin liable for a post published by someone else in the group. It is the basic principle
of criminal jurisprudence that mens rea must be an ingredient of an offence and both
the act and intent must concur to constitute a crime.
11. In Kishor Chintaman Tarone v. State of Maharashtra & Another (2021 ICO
1285), the High Court of Bombay dealt with similar issue in terms of the liability of the
Admin resulting from an indecent post shared by another member on the WhatsApp
group. It was held that 'a Group Administrator cannot be held vicariously liable for an
act of a member of the Group, who posts objectionable content, unless it is shown
that there was common intention or pre-arranged plan acting in concert pursuant to
such plan by such member of a WhatsApp Group and the Administrator.' In Ashish
Bhalla v. Suresh Chawdhary & Ors (2016 SCC OnLine Del 6329), the Delhi High
Court observed that defamation and defamatory statements made by any member of
the group cannot make the Administrator liable therefor. Recently, the Madras High
Court in R.Rajendran v. the Inspector of Police and Another (Crl.O.P. (MD) No.
8010/2021 decided on 15/12/2021), following Bombay High Court’s Judgment
directed the investigating officer to delete the name of the WhatsApp group
Administrator while filing final report if his role is merely of an Administrator and
nothing else.
12. As has been held by both the Bombay and Delhi High Courts, the only privilege
enjoyed by the Admin of a WhatsApp group over other members is that, he can either
add or delete any of the members from the group. He does not have physical or any
control otherwise over what a member of a group is posting thereon. He cannot
moderate or censor messages in a group. Thus, Creator or Administrator of a
WhatsApp group, merely acting in that capacity, cannot be vicariously held liable for
any objectionable content posted by a member of the group.
13. Coming to the facts, there is no specific allegations as to how and on what basis
the petitioner has committed the alleged offences. CWs 2 to 8, who were members of
the group, in their statement to the police, did not say anything against the petitioner.
According to them, they were added in the group by the accused No.1. They
specifically stated that the post in question was posted by the accused No.1. They did
not attribute anything against the petitioner with regard to the said post. None of the
case diary witnesses has any case that there was a pre– arranged plan by the
accused No.1 and the petitioner and they acted in concert pursuant to such plan.
There is nothing on record to suggest that the petitioner has published or transmitted
or caused to be published or transmitted in any electronic form the alleged obscene
material or he browsed or downloaded the said material or, in any way, facilitated
abusing children online so as to attract Sections 67B (a), (b) or (d) of the IT Act.
Similarly, the prosecution has no case that the petitioner used children in any form of
media for his sexual gratification or used them for pornographic purpose or stored, for
commercial purpose, any child pornographic material in order to attract Sections 13,
14 or 15 of the POCSO Act. Since the basic ingredients of the offences alleged are
altogether absent as against the petitioner, I am of the view that it is a fit case where
the extra ordinary jurisdiction vested with this Court under Section 482 of Cr.P.C could
be invoked.
For the reasons stated above, the entire proceedings in SC No.61/2021 at the
Additional Sessions (Cases Relating to Atrocities and Sexual Violence Against
Women and Children) Court, Ernakulam as against the petitioner is hereby quashed.
Crl.M.C., accordingly, stands allowed.
website.
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In a noteworthy decision, the Kerala High Court on Wednesday has ruled that the admin of a WhatsApp group cannot be held vicariously liable if a member of the group posts objectionable content in the group. Justice Kauser Edappagath observed that this was so because vicarious liability in criminal law can only be fastened when a statute prescribes so."A vicarious criminal liability can...
In a noteworthy decision, the Kerala High Court on Wednesday has ruled that the admin of a WhatsApp group cannot be held vicariously liable if a member of the group posts objectionable content in the group.
Justice Kauser Edappagath observed that this was so because vicarious liability in criminal law can only be fastened when a statute prescribes so.
"A vicarious criminal liability can be fastened only by reason of a provision of a statute and not otherwise. In the absence of a special penal law creating vicarious liability, an Admin of a WhatsApp group cannot be held liable for the objectionable post by a group member."
The Court also recalled that it is the basic principle of criminal jurisprudence that mens rea must be an ingredient of an offence and both the act and intent must concur to constitute a crime.
The petitioner created a WhatsApp group called 'FRIENDS'. Being the creator, he was the Admin. There were two more Admins, one of them being the first accused.
In March 2020, the first accused posted a porn video depicting children engaged in sexually explicit acts in the group.
Accordingly, a crime was registered against the first accused under Sections 67B (a),(b) and (d) of the Information Technology Act, 2000 and Sections 13, 14 and 15 of the Protection of Children from Sexual Offence Act.
Later on, the petitioner was arrayed as the second accused, being the creator of the group and the co-admin. Aggrieved by this, he moved the High Court.
Advocates Anil Kumar M. Sivaraman and C. Chandrasekharan appeared for the petitioner and Senior Public Prosecutor M.K. Pushpalatha represented the respondents in the matter.
The primary question before the Court was whether the creator or admin of a WhatsApp group can be criminally liable for offensive content posted by a group member.
"WhatsApp has proved its relevance in exchange of information very fast. One of the unique features of this application is that it also enables formation of groups of people to chat and call thereon...The person who creates WhatsApp group is called Administrator (Admin) of the group... These Admin/s have certain powers bestowed upon i.e., adding/removing a member etc. Due to lack of moderation of these groups... members of a WhatsApp group may put objectionable contents. The legal consequences and potential liability of the Administrator, stemming from such an objectionable post has come up for consideration."
In the facts and circumstances of the case, the specific question to be answered was whether the petitioner could be vicariously held liable for the act of the first accused.
The Court noted that vicarious liability inc civil and service matters arises usually because of some or the other legal relationship between two people.
However, relying upon a few precedents, it was found that vicarious criminal liability can be fastened only by reason of a provision of a statute and not otherwise.
Therefore, since no special penal law creates vicarious liability, it was held that an Admin of a WhatsApp group cannot be held liable for the objectionable post by a group member.
"The petitioner has been charged with Sections 67B (a), (b), and (d) of the IT Act and Sections 13, 14 and 15 of the POCSO Act. None of these provisions provide for such liability. There is no law by which an Admin of any messaging service can be held liable for a post made by a member in the group. A WhatsApp Admin cannot be an intermediary under the IT Act. He does not receive or transmit any record or provide any service with respect to such record. There is no master-servant or a principal-agent relationship between the Admin of a WhatsApp group and its members. It goes against basic principles of criminal law to hold an Admin liable for a post published by someone else in the group."
Further, it was observed that as held by the Bombay and Delhi High Courts, the only privilege enjoyed by the Admin of a WhatsApp group over other members is that, he can either add or delete any of the members from the group. He does not have physical or any control otherwise over what a member of a group is posting thereon.
Similarly, he cannot moderate or censor messages in a group. Thus, it was concluded that the creator or administrator of a WhatsApp group, merely acting in that capacity, cannot be vicariously held liable for any objectionable content posted by a member of the group.
The Judge also emphasised that there was nothing on record to suggest that the petitioner had published or transmitted or caused to be published or transmitted in any electronic form the alleged obscene material or he browsed or downloaded the said material or, in any way, facilitated abusing children online.
Since the basic ingredients of the offences alleged are altogether absent as against the petitioner, the Court found it a fit case where it can exercise its extraordinary jurisdiction under Section 482 of Cr.P.C.
As such, the proceedings pending against the petitioner were set aside and the petition was allowed.
It may be noted that similar views have been expressed by the High Court of Madras.
Case Title: Manual v. State of Kerala
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These appeals have been filed by the appellants/ accused Nos.1 to 4
as against the conviction and sentence, dated 12.11.2019, made in S.C.No.
294 of 2017, by the learned I Additional District and Sessions Judge,
2. The appellants/A1 to A4 stood convicted and sentenced to undergo
imprisonment as detailed hereunder:
Conviction U/s. Sentence Fine amount
A-1 294(b) IPC - To pay a fine of Rs.1,000/-,
in default, to undergo
302 IPC To undergo life To pay a fine of Rs.5,000/-,
imprisonment in default, to undergo three
imprisonment.
A-2 302 IPC To undergo life To pay a fine of Rs.5,000/-
& imprisonment each, in default, to undergo
A-3 one year three months
A-4 302 r/w 34 IPC To undergo life To pay a fine of Rs.5,000/-,
imprisonment in default, to undergo three
imprisonment.
3. It is the case of the prosecution that the deceased Balamurugan
brother of P.W.1 was attacked by the accused and succumbed to injuries.
P.W.17, after receipt of the complaint-Ex.P.16, registered a case in Crime
No.87 of 2016, for the offences under Sections 341, 294(b), 506(ii) and 302
IPC under Ex.P17-FIR and took up the case for investigation, went to the
place of occurrence, prepared Observation Mahazar-Ex.P18, drew a rough
sketch under Ex.P.19 and has seized the bloodstained earth, ordinary earth
under Ex.P.20-Seizure Mahazar and has conducted inquest over the dead
body and prepared inquest report under Ex.P.21 and sent the body for
postmortem. P.W.16, the Medical Officer conducted autopsy and found the
following injuries:
“1.An Oblique stab injury 3cm x 1cm x muscle deep noted over
left forehead.
On dissection: The wound passes upward and backward,
cutting the underlying muscles, vessels and nerves.
2.An Oblique stab injury measuring 8cm x 1cm x muscle deep
noted over right side cheek.
On dissection: The wound passes upward and backward,
cutting the underlying muscles, vessels and nerves.
3.An Oblique stab injury measuring 2cm x 1cm x muscle deep
noted over top of right shoulder.
On dissection: The wound passes upward and backward,
cutting the underlying muscle, vessels and nerves.
4.An Oblique stab injury measuring 4cm x 1cm x muscle deep
noted over right upper arm.
On dissection: The wound passes upward and backward,
cutting the underlying muscles, vessels and nerves.
5.An Oblique stab injury measuring 3cm x 1cm x muscle deep
noted over right thumb.
On dissection: The wound passes upward and backward,
cutting the underlying muscles, vessels and nerves.
6.An Oblique stab injury 3cm x 1cm x cavity deep noted over
front of right side of abdomen.
On dissection: The wound passes upward and backward,
cutting the underlying muscles, vessels and nerves end in the
abdomen cavity.
7.An Oblique stab injury 4cm x1cm x cavity deep noted over
front of middle of abdomen.
On dissection: The wound passes upward and backward,
cutting the underlying muscles, vessels and nerves enters the
abdomen cavity, and pierce the lung.
8.An Oblique stab injury measuring 5cm x 1cm x cavity deep
noted over front of right side of chest.
On dissection: The wound passes upward and backward,
cutting the underlying muscles, vessels and nerves enters the
chest cavity, and pierce the lung.
9.An Oblique stab injury measuring 3cm x 1cm x cavity deep
noted over front of right side of chest 5cm below the previous
wound.
On dissection: The wound passes upward and backward,
cutting the underlying muscles, vessels and nerves enters the
chest cavity, and pierce the lung.
10.An Oblique stab injury measuring 2cm x 1cm noted over left
forearm.
On dissection: The wound passes upward and backward,
cutting the underlying muscles, vessels and nerves.
11.An Oblique stab injury measuring noted over front of left
side of thigh.
On dissection: The wound passes upward and backward,
cutting the underlying muscles, vessels and nerves.
12.An Oblique stab injury 4cm x 1cm noted over right axillary.
On dissection: The wound passes upward and backward,
cutting the underlying muscles, vessels and nerves.
13.An Oblique stab injury 4cm x 1cm noted over right axilla,
4cm below the previous wound.
On dissection: The wound passes upward and backward,
cutting the underlying muscles, vessels and nerves.
14.An Oblique stab injury 3cm x 1cm noted over back of middle
of neck.
On dissection: The wound passes upward and backward,
cutting the underlying muscles, vessels and nerves.
15.An Oblique stab injury 2cm x 1cm x cavity deep noted over
back of left side of chest.
On dissection: The wound passes upward and
backward, cutting the underlying muscles, vessels and nerves
enters the chest cavity, and pierce the lung.
16.An Oblique stab injury measuring 5cm x 1cm x cavity deep
noted over back of right side of chest.
On dissection: The wound passes upward and backward,
cutting the underlying muscles, vessels and nerves enters the
chest cavity, and pierce the lung.
17.An Oblique stab injury measuring x cavity deep noted over
back of right side of chest 7cm below the previous wound.
On dissection: The wound passes upward and backward,
cutting the underlying muscles, vessels and nerves enters the
18.An Oblique stab injury 5cm x1cm x cavity deep noted over
back of right side of abdomen.
On dissection: The wound passes upward and backward,
cutting the underlying muscles, vessels and nerves enters the
abdomen cavity, and pierce the lung.
19.An Oblique stab injury measuring 3cm x1cm x cavity deep
noted over back of right side abdomen, 3cm below the previous
wound.
On dissection: The wound passes upward and backward,
cutting the underlying muscles, vessels and nerves end in the
abdomen cavity.”
He issued Ex.P14-postmortem certificate and opining that the deceased
would appear to have died of shock and hemorrhage due to injuries Nos.7,
8, 9, 15, 16, 17, 18 and cumulative effect of other injuries and death would
have occurred 16 to 20 hours prior to autopsy. P.W.17-Investigating
Officer arrested the accused 1 and 2 on 06.02.2016 in the presence of
P.W.13 and P.W.14 and recorded the voluntary confession of A1. The
admissible portion of the voluntary confession of A1 was marked as
Ex.P.22. Pursuant to the same, P.W.17 seized the two wheelers under Ex.P7
and also seized four knives-M.O.7 to M.O.10 under Ex.P8. P.W.17
recorded the confession of A2 then, he remanded the accused to judicial
custody and sent the material objects to the Court concerned and finally,
after completing the investigation, laid a final report against the accused,
before the learned Judicial Magistrate concerned.
4. The prosecution, in order to bring home the guilt of the accused
examined as many as 17 witnesses as P.W.1 to P.W.17, marked 25
documents as Ex.P1 to P25 and 10 material objects as M.O.1 to M.O.10.
After analyzing the oral and documentary evidence, the trial Court has
found the first accused guilty under Sections 294(b) and 302 IPC, second
and third accused found guilty under Section 302 IPC and the fourth
accused found guilty under Section 302 r/w 34 IPC. Assailing the same, the
present appeals are filed.
5. Learned counsel appearing for the appellants vehemently
contended that the trial Court has convicted the accused without any
evidence. All the eyewitnesses turned hostile. The trial Court, relying upon
the evidence of Medical Officer and postmortem certificate, has convicted
the accused. The trial Court came to a conclusion as if in the cross
examination, witness has deposed which is against reality and in fact only
the statement of 161(3) Cr.P.C., was read over to the witnesses by the Public
Prosecutor which was construed as an evidence, which is impermissible
under law. He further submits that there is no evidence whatsoever to base
the conviction and therefore, he prays to allow the appeals.
6. The learned Additional Public Prosecutor submitted that though
eyewitnesses turned hostile, in the cross examination they admitted the
occurrence. Therefore, the trial Court has appreciated the evidence properly
and hence, he prays for dismissal of these appeals.
7. We have given our anxious consideration to the entire materials
available on record and also the rival contentions made by the respective
counsel.
8. The deceased brother of P.W.1 died due to the injuries viz., stab
injuries and cut injuries. Though the prosecution has relied upon P.W.1 to
P.W.7 said to be eyewitnesses, including the wife of the deceased and the
close relatives of the deceased have not supported the prosecution in any
manner. All the witnesses have turned hostile and not supported the case of
the prosecution. The learned trial Judge has rightly found that all the
witnesses turned hostile, however in paragraph 27 of the judgment, the trial
Court recorded its findings, as if witnesses admitted the occurrence in their
cross examination.
9. In the light of the above findings, when we peruse the chief
examination of all the witnesses, it is seen that none of the witnesses
supported the prosecution version in any manner. P.W.1-brother of the
deceased never whispered anything about the presence of the accused and
causing injuries. Similar in the case of other eyewitnesses. The entire
statement of the witnesses recorded under Section 161(3) Cr.P.C., were put
to the witnesses in the cross examination and in the last line it is suggested
that they have given a false evidence in order to support the accused. From
the nature of the questions put to the witnesses, we are of the firm view that
what was extracted from the witness is the statement recorded under Section
161(3) Cr.P.C. and the suggestion put to the witnesses, wherein they denied
witnessing the occurrence. Therefore, at no stretch of imagination such
recording / extraction of 161(3) statement in the cross examination would be
construed as substantive piece of evidence. Even assuming that the
witnesses admitted in the cross examination that they have stated the above
statement before the Investigating officer, such evidence would be useful
only to prove the one particular fact that the said witness has given a
statement under Section 161(3) Cr.P.C., not for any other purpose.
10. Therefore, even the witnesses admitted in the cross examination
about the nature of the statement given to the Investigating Officer, such
statement can never construed to be a substantive piece of evidence to prove
the complicity of the accused. Substantive evidence means the evidence
tendered by the witnesses on oath during the criminal trial. Therefore, mere
repeating the statement contained in 161(3) Cr.P.C by the public prosecutor
under the pretext of cross examination of the witness who turned hostile can
never be substantive evidence. It is relevant to note that the purpose of
treating the witnesses hostile and cross examination is to get some materials
or to unearth truth from the witnesses.
11. The probative value of the evidence of the hostile witnesses
always depends on the validity and the confidence it generates in the mind
of the Court after being subjected to close scrutiny. Therefore to scrutinize
the evidence, there must be a proper cross examination which resulted
certain answers from the witnesses, which are relevant one way or the other
to the case to prove the complicity of the accused. Only in that context, the
cross examination of such witnesses is required. Therefore, mere
mechanical typing of the 161(3) statement and recording a general
suggestion, as if the witness is lying can never to be construed as an
evidence at all. Therefore, the learned trial Judge's conclusion that the
witnesses admitted the occurrence is nothing but figment of imagination of
the trial Judge. Though evidence of hostile witnesses cannot be rejected in
toto and the same also can be considered with other corroboratory evidence
to base the conviction, but in the given case, there is no material available
on record from the statement of eyewitnesses to prove the complicity of the
accused. Except the evidence of P.W.13, no other relevant materials found
against the accused. Even from the recovery, there is no incriminating
evidence found against the accused.
12. In view of the above circumstances, this court is of the view that
the trial Court has committed a fundamental error in convicting the accused.
It is relevant to note that the repetition of the statement which was relied by
the trial Court has not been put the accused under Section 313 of Cr.P.C.
13. In such view of the matter, the way in which the witnesses are
turned hostile and mechanically recorded the cross examination and the trial
court has relied upon the same, the appeals deserve to be allowed. It is
high time for the prosecution agencies to conduct training programmes for
the Public Prosecutors with experienced criminal lawyers and seniors in the
field to keep them abreast with the procedural law.
14. With the above observations, we are of the view that absolutely
there is no material to convict the accused. Therefore, we find that the
judgment of the trial Court is not according to law and the same deserves to
be interfered and the same is set aside.
15. In the result, the Criminal Appeals stand allowed and the
conviction and sentence imposed on the appellants/A1 to A4, by Judgment
dated 12.11.2019, made in S.C.No.294 of 2017, on the file of I Additional
District and Sessions Court, Madurai, are set aside and the appellants/A1 to
A4 are acquitted. Fine amount, if any, paid by the appellants shall be
refunded to them. Bail bond, if any, executed by them and the sureties shall
stand terminated. Consequently, connected miscellaneous petition is closed.
Note : In view of the present lock down owing to
COVID-19 pandemic, a web copy of the order may
be utilized for official purposes, but, ensuring that
the copy of the order that is presented is the correct
copy, shall be the responsibility of the
advocate/litigant concerned.
1.The I Additional District and Sessions Judge,
I Additional District and Sessions Court,
2.The Inspector of Police,
Madurai Bench of Madras High Court,
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Observing that extraction of Section 161(3) of Cr. P.C statement in cross-examination cannot be construed as a substantive piece of evidence, Madurai Bench of Madras High Court has set aside an order of trial court sentencing three murder accused to life sentence. The court iterated that substantive evidence is the evidence tendered by the witnesses on oath during criminal...
Observing that extraction of Section 161(3) of Cr. P.C statement in cross-examination cannot be construed as a substantive piece of evidence, Madurai Bench of Madras High Court has set aside an order of trial court sentencing three murder accused to life sentence. The court iterated that substantive evidence is the evidence tendered by the witnesses on oath during criminal trial.
"...Therefore, mere repeating the statement contained in 161(3) Cr.P.C by the public prosecutor under the pretext of cross examination of the witness who turned hostile can never be substantive evidence. It is relevant to note that the purpose of treating the witnesses hostile and cross examination is to get some materials or to unearth truth from the witnesses", the court noted.
The Division Bench of Justices R. Subramanian and N. Sathish Kumar pointed out that the witness statement under Section 161(3) CrPC were put to witnesses during cross examination with a conclusion that the witnesses who turned hostile gave false evidence to exonerate the accused persons.
About such a method adopted by the prosecution, the court noted as below:
"Even assuming that the witnesses admitted in the cross examination that they have stated the above statement before the Investigating officer, such evidence would be useful only to prove the one particular fact that the said witness has given a statement under Section 161(3) Cr.P.C., not for any other purpose."
While allowing the appeal of the accused, the court also made another pertinent remark:
"It is high time for the prosecution agencies to conduct training programmes for the Public Prosecutors with experienced criminal lawyers and seniors in the field to keep them abreast with the procedural law."
The court also added that cross examination is meant for eliciting relevant answers from the witnesses that establish the guilt of the accused. The single bench went onto note that the evidence of hostile witnesses is not completely devoid of value and it can be treated with other corroboratory evidence if it inspires the confidence of the court. However, the witnesses called in the case at hand do not prove the guilt of the accused, the court said.
"...Mere mechanical typing of the 161(3) statement and recording a general suggestion, as if the witness is lying can never to be construed as an evidence at all. Therefore, the learned trial Judge's conclusion that the witnesses admitted the occurrence is nothing but figment of imagination of the trial Judge", the court added.
Due to the above findings, the court concluded that the trial court has committed a 'fundamental error' in basing the conviction on the S. 161(3) statement. Since none of the 17 prosecution witnesses supported the prosecution version in any manner, the conviction by the trial court was accordingly set aside.
Case Title: [email protected] Mannanai Kannan & Ors. v. The State represented by Inspector of Police
Case No: Crl.A.(MD)No.3 of 2020, Crl.M.P.(MD)No.1422 of 2022 & Crl.A.(MD)No.22 of 2022
Appearance: For Appellants : Mr.G.Karuppasamy Pandian for A1, Mr.M.Jegadesh Pandian for A2 & A3
For Respondent : Mr.A.Thiruvadi Kumar, Additional Public Prosecutor
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1. No one is present either for the applicant or for respondents no. 2
to 6 when this case is taken up for hearing. Learned A.G.A. is however
present for the State.
2. Instant appeal has been filed by the victim under Section 372
Cr.P.C. against the judgment and order dated 07.03.2013 passed by the
Judicial Magistrate, Ambedkar Nagar whereby the trial Court has
convicted the private respondents under Sections 323, 498-A, 506
I.P.C. and Section 3/4 D.P. Act, however, the accused persons/private
respondents instead of sentencing to undergo imprisonment were
given the benefit of Probation of Offenders Act, 1958 and released on
probation and also against the judgment and order dated 30.09.2016
passed by the Appellate Court i.e. Additional Sessions Judge (Fast
Track Court-II), Ambedkar Nagar, whereby the appeal preferred by the
state against sentence was dismissed.
3. Perusal of the record would reveal that the instant appeal has
been listed after a long time as it was on 04.12.2017 this appeal was
last listed and vide order dated 20.11.2017 the delay, which had
occurred in preferring the appeal has been condoned by a co-ordinate
Bench of this Court and the appeal was directed to be listed for
4. Section 372 of the Cr.P.C., under which the instant appeal has
been preferred, is reproduced for ready reference as under:-
"372. No appeal to lie unless otherwise provided.— No appeal shall
lie from any judgment or order of a criminal court except as provided
for by this Code or by any other law for the time being in force:
Provided that the victim shall have a right to prefer an appeal against
any order passed by the court acquitting the accused or convicting for a
lesser offence or imposing inadequate compensation, and such appeal
shall lie to the court to which an appeal ordinarily lies against the order
of conviction of such court."
5. Perusal of this Section would reveal that the same is starting
with a Non-Obstante Clause declaring that no appeal shall lie from any
judgment or order of a Criminal Court except as provided by this Code
or by any other law for the time being in force. Thus, it is clear that the
appeal could only be preferred in accordance with the scheme provided
in the Cr.P.C. or provided by any other law for the time being in force.
The proviso to Section 372 Cr.P.C. provides a right to the victim of an
offence to prefer an appeal and it says that the victim (as defined under
Section 2w (wa) of the Cr.P.C. may prefer an appeal against any
judgment or order passed by the Court acquitting the accused or
convicting for a lesser offence or imposing inadequate
compensation. Thus, the appeal under Section 372 Cr.P.C. could only
be filed on the happening of three situations namely
(ii) When the accused person(s0 have been convicted for a lesser
(iii) Where inadequate compensation has been imposed by the Court
6. The instant appeal has been preferred by the victim against the
order of the trial court as well as of the first Appellate Court and it is
evident that though the accused persons were convicted by the trial
Court for the offence committed under Sections 323, 498-A, 506 I.P.C.
and Section 3/4 D.P. Act, however, instead of sentencing them to
undergo imprisonment the trial Court has given them benefit of
Section 4 of Probation of Offenders Act, 1958 and released themon
probation and the appeal preferred by the state against sentencing has
also been dismissed by the appellate Court.
7. The issue as to whether a victim of the crime may prefer an
appeal under section 372 Crpc against inadequacy of sentence awarded
to the accused persons is now no more res integra. Hon’ble Supreme
Court in National Commission For Women v. State of Delhi, (2010)
12 SCC 599 has held as under:-
“11. An appeal is a creature of a statute and cannot lie under any inherent power.
This Court does undoubtedly grant leave to appeal under the discretionary power
conferred under Article 136 of the Constitution of India at the behest of the State
or an affected private individual but to permit anybody or an organisation pro
bono publico to file an appeal would be a dangerous doctrine and would cause
utter confusion in the criminal justice system. We are, therefore, of the opinion that
the special leave petition itself was not maintainable.
12. In Pritam Singh v. State [AIR 1950 SC 169 : (1950) 51 Cri LJ 1270] this Court
while dealing with a criminal matter (after the grant of leave under Article 136 of
the Constitution) considered the scope and ambit of this article and observed:
“9. On a careful examination of Article 136 along with the preceding article, it
seems clear that the wide discretionary power with which this Court is invested
under it is to be exercised sparingly and in exceptional cases only, and as far as
possible a more or less uniform standard should be adopted in granting special
leave in the wide range of matters which can come up before it under this article.
By virtue of this article, we can grant special leave in civil cases, in criminal
cases, in income tax cases, in cases which come up before different kinds of
tribunals and in a variety of other cases. The only uniform standard which in our
opinion can be laid down in the circumstances is that Court should grant special
leave to appeal only in those cases where special circumstances are shown to exist.
… It is sufficient for our purpose to say that though we are not bound to follow
them too rigidly since the reasons, constitutional and administrative, which
sometimes weighed with the Privy Council, need not weigh with us, yet some of
those principles are useful as furnishing in many cases a sound basis for invoking
the discretion of this Court in granting special leave. Generally speaking, this
Court will not grant special leave, unless it is shown that exceptional and special
circumstances exist, that substantial and grave injustice has been done and that
the case in question presents features of sufficient gravity to warrant a review of
the decision appealed against.”
13. In P.S.R. Sadhanantham v. Arunachalam [(1980) 3 SCC 141 : 1980 SCC (Cri)
649] this Court was dealing with the locus standi of a private person, in this case
the victim's brother, who was neither a complainant nor a first informant in the
criminal case but had filed a petition under Article 136 of the Constitution of
India. This Court observed that the strictest vigilance was required to be
maintained to prevent the abuse of the process of court, more particularly, in
criminal matters, and ordinarily a private party other than the complainant,
should not be permitted to file an appeal under Article 136, though the broad
scope of the article postulated an exception in suitable cases. It was spelt out as
under: (SCC p. 145, para 7)
“7. Specificity being essential to legality, let us see if the broad spectrum spread
out of Article 136 fills the bill from the point of view of ‘procedure established by
law’. In express terms, Article 136 does not confer a right of appeal on a party as
such but it confers a wide discretionary power on the Supreme Court to interfere in
suitable cases. The discretionary dimension is considerable but that relates to the
power of the court. The question is whether it spells by implication, a fair
procedure as contemplated by Article 21. In our view, it does. Article 136 is a
special jurisdiction. It is residuary power; it is extraordinary in its amplitude, its
limit, when it chases injustice, is the sky itself. This Court functionally fulfils itself
by reaching out to injustice wherever it is and this power is largely derived in the
common run of cases from Article 136. Is it merely a power in the court to be
exercised in any manner it fancies? Is there no procedural limitation in the manner
of exercise and the occasion for exercise? Is there no duty to act fairly while
hearing a case under Article 136, either in the matter of grant of leave or, after
such grant, in the final disposal of the appeal? We have hardly any doubt that
there is a procedure necessarily implicit in the power vested in the summit court. It
must be remembered that Article 136 confers jurisdiction on the highest court. The
Founding Fathers unarguably intended in the very terms of Article 136 that it shall
be exercised by the highest judges of the land with scrupulous adherence to
judicial principles well established by precedents in our jurisprudence. Judicial
discretion is canalised authority, not arbitrary eccentricity.”
14. The Court then examined the implications of completely shutting out a private
party from filing a petition under Article 136 on the locus standi and observed
thus: (Arunachalam case [(1980) 3 SCC 141 : 1980 SCC (Cri) 649] , SCC p. 147,
“14. Having said this, we must emphasise that we are living in times when many
societal pollutants create new problems of unredressed grievance when the State
becomes the sole repository for initiation of criminal action. Sometimes,
pachydermic indifference of bureaucratic officials, at other times politicisation of
higher functionaries may result in refusal to take a case to this Court under Article
136 even though the justice of the lis may well justify it. While ‘the criminal law
should not be used as a weapon in personal vendettas between private
individuals’, as Lord Shawcross once wrote, in the absence of an independent
prosecution authority easily accessible to every citizen, a wider connotation of the
expression ‘standing’ is necessary for Article 136 to further its mission.”
15. A reading of the aforesaid excerpts from the two judgments would reveal that
while an appeal by a private individual can be entertained but it should be done
sparingly and after due vigilance and particularly in a case where the remedy has
been shut out for the victims due to mala fides on the part of the State
functionaries or due to inability of the victims to approach the Court. In the
present matter, we find that neither the State which is the complainant nor the
heirs of the deceased have chosen to file a petition in the High Court. As this
responsibility has been taken up by the Commission at its own volition this is
clearly not permissible in the light of the aforesaid judgments.”
8. In Parvinder Kansal v. State (NCT of Delhi), (2020) 19 SCC
496 Hon’ble Supreme Court has also held as under:-
“8. Chapter XXIX of the Code of Criminal Procedure, 1973 deals with “Appeals”
and Section 372 makes it clear that no appeal to lie unless otherwise provided by
the Code or any other law for the time being in force. It is not in dispute that in the
instant case appellant has preferred appeal only under Section 372 CrPC. The
proviso is inserted to Section 372 CrPC by Act 5 of 2009. Section 372 and the
proviso which is subsequently inserted read as under:
“372. No appeal to lie unless otherwise provided.— No appeal shall lie from any
judgment or order of a criminal court except as provided for by this Code or by
any other law for the time being in force:
Provided that the victim shall have a right to prefer an appeal against any order
passed by the court acquitting the accused or convicting for a lesser offence or
imposing inadequate compensation, and such appeal shall lie to the court to which
an appeal ordinarily lies against the order of conviction of such court.”
A reading of the proviso makes it clear that so far as victim's right of appeal is
concerned, same is restricted to three eventualities, namely, acquittal of the
accused; conviction of the accused for lesser offence; or for imposing inadequate
compensation. While the victim is given opportunity to prefer appeal in the event
of imposing inadequate compensation, but at the same time there is no provision
for appeal by the victim for questioning the order of sentence as inadequate,
whereas Section 377 CrPC gives the power to the State Government to prefer
appeal for enhancement of sentence. While it is open for the State Government to
prefer appeal for inadequate sentence under Section 377 CrPC but similarly no
appeal can be maintained by victim under Section 372 CrPC on the ground of
inadequate sentence. It is fairly well-settled that the remedy of appeal is creature
of the statute. Unless same is provided either under Code of Criminal Procedure
or by any other law for the time being in force no appeal, seeking enhancement of
sentence at the instance of the victim, is maintainable. Further we are of the view
that the High Court while referring to the judgment of this Court in National
Commission for Women v. State (NCT of Delhi) [National Commission for
Women v. State (NCT of Delhi), (2010) 12 SCC 599 : (2011) 1 SCC (Cri) 774]
has rightly relied on the same and dismissed the appeal, as not maintainable.”
9. Above placed case laws makes it clear that no appeal can be
maintained by the victim under Section 372 CrPC on the ground of
inadequacy of sentence. Thus the appeal preferred by the victim of the
crime against inadequacy of sentence is not maintainable and is
dismissed as such.
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The Allahabad High Court has reiterated that no appeal can be maintained by the victim under Section 372 CrPC on the ground of inadequacy of sentence and therefore, the appeal preferred by the 'victim' [as defined under Section 2w (wa) of the Cr.P.C.] of the crime against the inadequacy of sentence is not maintainable.The bench of Justice Mohd. Faiz Alam Khan in its order clarified that...
The Allahabad High Court has reiterated that no appeal can be maintained by the victim under Section 372 CrPC on the ground of inadequacy of sentence and therefore, the appeal preferred by the 'victim' [as defined under Section 2w (wa) of the Cr.P.C.] of the crime against the inadequacy of sentence is not maintainable.
The bench of Justice Mohd. Faiz Alam Khan in its order clarified that the appeal under Section 372 Cr.P.C. [No appeal to lie unless otherwise provided] could only be filed on the happening of three situations namely
(i) When the accused person(s) have been acquitted;
(ii) When the accused person(s) have been convicted for a lesser offence;
(iii) Where inadequate compensation has been imposed by the Court (s).
The case in brief
The Court was dealing with an appeal filed by the 'victim' under Section 372 Cr.P.C. against a judgment and order passed by the Judicial Magistrate, Ambedkar Nagar whereby the trial Court had convicted the private respondents under Sections 323, 498-A, 506 I.P.C. and Section 3/4 D.P. Act.
The appeal was moved because the accused persons/private respondents were given the benefit of the Probation of Offenders Act, 1958 and released on probation, and therefore, the 'Victim' (present applicant) moved the instant appeal on the ground of inadequacy of sentence.
It may be noted that the instant appeal also challenged the judgment and order passed by the Appellate Court i.e. Additional Sessions Judge (Fast Track Court-II), Ambedkar Nagar, whereby the appeal preferred by the state against the sentence was also dismissed.
Court's observations
At the outset, the Court clarified that an appeal could only be preferred in accordance with the scheme provided in the Cr.P.C. or provided by any other law for the time being in force.
Further referring to Section 372 Cr.P.C., the Bench observed that this provision says that the victim may prefer an appeal against any judgment or order passed by the Court acquitting the accused or convicting for a lesser offence or imposing inadequate compensation, however, the Court added, no appeal could be preferred on the ground of inadequacy of sentence.
Further, the Court stressed that the issue of law in question - as to whether a victim of the crime may prefer an appeal under section 372 Crpc against the inadequacy of sentence awarded to the accused persons - has been clarified by the Apex Court in the case of National Commission For Women v. State of Delhi, (2010) 12 SCC 599 and Parvinder Kansal v. State (NCT of Delhi), (2020) 19 SCC 496.
In both these cases, the Court observed, the Apex Court held (in light of Section 372 CrPC) that no appeal can be maintained by the victim under Section 372 CrPC on the ground of inadequacy of sentence.
With this, the appeal preferred by the victim of the crime against the inadequacy of sentence was held to be not maintainable and was dismissed as such.
Case title - Shireen v. State Of U.P. And Ors [APPLICATION U/S 378 No. - 142 of 2017]
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TION: Criminal Appeal No. 624 of 1989.
From the Judgment and Order dated 31.7.
1989 of the Punjab and Haryana High Court in Crl.
W.A. No. 2365 of 1988.
K. Parasaran, Attorney General and R.S. Suri for the Appellant.
Kapil Sibal, H.S. Randhwa and Ms. Kamini Jaiswal for the Respondents.
The Judgment of the Court was delivered by K.N. SAIKIA, J.
Special leave granted.
Heard learned counsel for the parties.
The State 's appeal is from the Judgment of the High Court of Punjab and Haryana dated 31.7.1989 passed in Crimi nal Writ Petition No. 2365 of 1988 quashing the detention order of Sukhjinder Singh, father of the respondent, under the .
Sri Sukhjinder Singh has been under detention pursuant to the Government of Punjab, Department of Home Affairs and Justice 's Order dated 28.5.1988, passed in exercise of the powers conferred by 424 sub section (2) of section 3 of the (No. 65 of 1980), hereinafter referred to as 'the Act '; read with section 14A as inserted by National Security (Amendment) Act, 1987, with a view to preventing him from indulging in activities prejudicial to the security of the State and maintenance of public order and interference with efforts of Government in coping with the terrorist with disruptive activities.
He was furnished with the grounds of detention contained in 9 paragraphs thereof and saying that on account of the said activities, the President of India was satisfied that he should be detained.
As no arguments have been based on the grounds themselves, we have not extracted them.
The detenu was also informed that he had a right to make representation in writing against the deten tion order and if he wished to make any such representation, he should address it to the State Government through the Superintendent of Jail, and that as soon as possible, his case would be submitted to the Advisory Board within the stipulated period from the date of his detention and if he wished to make a representation to the Central Government, he should address it to the Secretary, Government of India, Ministry of Home Affairs (Department of Internal Security) North Block, New Delhi through the Superintendent of Jail where he was detained.
It further stated that he had also a right to appear before the Advisory Board for representing his case, and if he wished to do so, he should inform the State Government through the Superintendent of Jail in which he was detained.
It appears that the detenu 's son Sukhpal Singh filed Criminal Writ Petition No. 1393 of 1988 in the High Court of Punjab and Haryana praying, inter alia, for a writ of habeas corpus; quashing of the detention order; for production of the detenu in court on the date of hearing; for directing the respondents to arrange the presence of the detenu at Chandigarh before the Advisory Board; and for directing the respondents to make arrangements and pay for the expenses required to be incurred for arranging the presence of dete nu 's witnesses to be produced before the Board at Agartala and also of the relatives and the counsel of the detenu so as to effectively assist him in regard to presenting his case before the Advisory Board.
The High Court by order dated 27.9.1988 dismissed the Criminal Writ Petition, but ordered that "the petitioner would approach the Advisory Board stationed at Chandigarh with the request for allowing the detenu to produce evidence before it at Agartala and in case his prayer was granted by the Board, the expenses for taking those witnesses to Agar tala would be borne by the respondent/State." 425 Sukhpal Singh later moved Criminal Writ Petition No. 2365 of 1988 in the High Court of Punjab and Haryana for quashing the detention order contending, inter alia, that the order of detention was passed on 28.5.1988 in a cursory and routine manner without application of mind, much less with subjective satisfaction inasmuch as no case at all was registered against the detenu for his alleged public utter ences as stated in the grounds of detention and, therefore, the detention order was liable to be quashed; that consider ation of the detenu 's representation filed with the State Government on September 1, 1988 was inordinately delayed for two months till October 31, 1988 and even thereafter the State took 8 long days to convey its rejection and the representation addressed to the detaining authority had neither been considered nor disposed of; and that detention was confirmed without affording the detenu any chance of appearing and producing witnesses before the Advisory Board in terms of the High Court 's order dated 27.9.1988 in Crimi nal Writ Petition No. 1393 of 1988.
The High Court upheld the above contentions of the petitioner, namely, lack of subjective satisfaction, delay in considering representation and the denial of opportunity to appear before the Advisory Board; and accordingly quashed the order of detention and ordered the detenu to be set at liberty forthwith unless required in connection with any other case.
The learned Attorney General of India for the appellant assailing the findings of the High Court submits that the High Court 's finding that there was no subjective satisfac tion of the detaining authority simply because no criminal case was registered against the detenu for his public speeches is erroneous both in law and facts.
The allegations were that during the period from November 19, 1987 to May 11, 1987 the detenu made 9 provocative speeches as stated in the grounds of detention inciting communal hatred and vio lence between Hindus and Sikhs, inciting Sikhs to armed violence against the Government established by law both in the State and in the Centre and making the offer of monetary and other assistance to the terrorists.
When the detention order was passed the detenu was already detained in Burail Jail and the detention order itself said that he was already in custody and was taking steps to get himself released and there was every likelihood of his being released from custo dy; and that in the event of his release he was likely to resume such prejudicial activities in future and there was thus compelling necessity to pass the order.
He submits that the subjective satisfaction of the detaining authority was based on pertinent materials and it had in mind the question whether the pro 426 secution of the detenu would be possible and sufficient.
Mr. Kapil Sibal, learned counsel for the respondents supporting the finding of the High Court reiterates that the fact that no criminal case was registered during the period of giving the alleged speeches clearly showed that there was non application of mind preceding the detention order.
We find force in the submission of the learned Attorney General.
The detention order itself said that the detenu was already in custody and was likely to be released wherefore it was necessary to order for his preventive detention.
It is not denied that the above relevant materials were placed before the detaining authority.
The act nowhere provides that the detaining authority cannot resort to preventive detention without first criminally prosecuting the detenu.
A clear distinction has to be drawn between preventive detention in which anticipatory and precautionary action is taken to prevent the recurrence of apprehended events, and punitive detention under which the action is taken after the event has already happened.
It is true that the ordinary criminal process of trial is not to be circumvented and shortcircuit ed by apparently handy and easier resort to preventive detention.
But the possibility of launching a criminal prosecution cannot be said to be an absolute bar to an order of preventive detention.
Nor would it be correct to say that if such possibility is not present in the mind of the de taining authority the order of detention would necessarily be bad.
The failure of the detaining authority to consider the desirability of launching a criminal prosecution before ordering preventive detention may in the circumstances of a case lead to the conclusion that the detaining authority had not applied its mind to the important question as to whether it was necessary to make an order of preventive detention but such is not the case here.
In this regard one has to bear in mind the relevant facts and circumstances of a case including the time and place concerned.
In this view we find support from the decision in Fazal Ghosi vs State of U.P. & Ors., ; AIR 1987 SC 1877: , wherein it was pointed out that the Act provided for preventive detention which was intended where it was apprehended that the persons might act prejudicially to one or more considerations speci fied in the statute, and the preventive detention was not intended as a punitive measure for curtailment of liberty by way of punishment for the offence already committed.
Section 3 read with Section 14A of the Act clearly indicated that the power of detention thereunder could be exercised only with a view to preventing a person from acting in a manner which might prejudice any of the situations set forth in the Section.
To apply what was said in Rex vs Halliday, Ex parte Zadig, ; , one of the most obvious means of taking precautions against dangers such as are enumerated is to 427 impose some restriction on the freedom of movement of per sons whom there may be any reason to suspect of being dis posed to commit what is enumerated in section 3 of the Act.
No crime is charged.
The question is whether a particular person is disposed to commit the prejudicial acts.
The duty of deciding this question is thrown upon the State.
The justification is suspicion or reasonable probability and not criminal charge which can only be warranted by legal evi dence.
It is true that in a case in which the liberty of such person is concerned we cannot go beyond natural con struction of the statute.
It is the duty of this Court to see that a law depriving the person of his liberty without the safeguards available even to a person charged with crime is strictly complied with.
We have, however, to remember that individual liberty is allowed to be curtailed by an anticipatory action only in interest of what is enumerated in the statute.
In actual practice the grounds supplied operate as an objective test for determining the question whether a nexus reasonably exists between grounds of detention and the detention order or whether some infirmities had crept in.
A conjoined reading of the detention order and the grounds of detention is therefore necessary.
It is, as was heldin Ujagar Singh vs State of Punjab, AIR ; [1952] SC 350: , largely from prior events showing tendencies or inclinations of a man that inference can be drawn whether he is likely in future to act in a prejudicial manner.
But such conduct should be reasonably proximate and should have a rational connection with the conclusion that the detention of person is necessary.
The question of relation of the activities to the detention order must be carefully consid ered.
Though the possibility of prosecution being launched is not an irrelevant consideration, failure to consider such possibility would not vitiate the detention order.
In Harad han Saha vs The State of West Bengal & Ors.
, ; the Court did not lay down that possibility of a prose cution being launched was an irrelevant consideration, not to be borne in mind by detaining authority but it laid down that the mere circumstance that a detenu was liable to be prosecuted would not by itself be a bar to the making of an order of preventive detention.
It did not follow therefore that failure to consider the possibility of criminal prose cution being launched could ever lead to the conclusion that a detaining authority never applied its mind and the order of detention was therefore bad.
Is it correct to say that if such possibility was not present in the mind of the detain ing authority, the order of the detention is necessarily bad? Unless it clearly appears that preventive detention is being resorted to as the line of least resistance where criminal prosecution would be the usual course, no fault can be found with it.
428 What is to be seen is whether the detaining authority has applied its mind or not to the question whether it was necessary to make preventive detention.
In the instant case there is evidence of application of mind.
The proximity between the date of commission of an offence and of deten tion order cannot also be said to be absent in this case.
As we have already seen the power of preventive detention is qualitatively different from punitive detention.
The power of preventive detention is precautionary power exercised reasonably in anticipation and may or may not relate to an offence.
It cannot be considered to be a parallel proceed ing.
The anticipated behaviour of a person based on his past conduct in the light of surrounding circumstances may pro vide sufficient ground for detention.
It cannot be said that the satisfaction of the detaining authority on the basis of his past activities that if the detenu were to be left at large he would indulge in similar activities in future and thus act in a manner prejudicial to the maintenance of public order etc.
shall not be based on adequate materials.
Public safety ordinarily means security of the public or their freedom from danger.
Public order also implied public peace and tranquility.
There is no escape from the conclu sion that the terrorists and disruptive activities disrupt public peace and tranquility and affect the freedom of the public from danger to life and property.
Disruption means the act of bursting and tearing as under.
Disruptive means producing or resulting from or attending disruption.
Terror ism means the act of terrorising; unlawful acts of violence committed in an organised attempt to over throw a Government or like purposes.
Terrorist means one who adopts or supports the policy of terrorism.
The terrorist and disruptive activ ities are naturally disruptive of public peace, tranquillity and development.
In Hemlata Kantilal Shah vs State of Maha rashtra and Ors.
; , , it was held that the prosecution or the absence of it is not an absolute bar to an order of preventive detention but the authority is to satisfy the court that it had in mind the question of possibility of criminal prosecution while form ing the subjective satisfaction by the detaining authority.
It may be based on inference from the past conduct and antecedent history of the detenu.
The High Court under article 226 and Supreme Court under article 32 or 136 do not sit in appeal from the order of preventive detention.
But the Court is only to see whether the formality as enjoined by article 22(5) had been complied with by the detaining authority, and if so done, the Court cannot examine the materials before it and, find that the detaining authority should not have been satisfied on the materials before it and detain the detenu.
In other words, the Court cannot question the sufficiency of the grounds of detention for the subjective satisfaction of the authority as pointed out in Ashok Kumar vs Delhi Admin istration 429 & Ors.
; , Those who are responsible for the national security or for the maintenance of public order must be the judges of what the national security or public order requires.
Preventive detention is devised to afford protection to society.
The object is not to punish a man for having done something but to intercept before he does it and to prevent him from doing.
The justi fication for such detention is suspicion or reasonable probability and not criminal conviction which can only be warranted by legal evidence.
Thus, any preventive measures even if they involve some restraint or hardship upon indi viduals, do not partake in any way of the nature of punish ment, but are taken by way of prosecution to prevent mis chief to the State.
There is no reason why executive cannot take recourse to its powers of preventive detention in those cases where the executive is genuinely satisfied that no prosecution can possibly succeed against the detenu because he had influence over witnesses and against him no one is prepared to depose.
However, pusillanimity on the part of the executive has to be deprecated and pusillanimous orders avoided.
It is submitted that in the instance case, there were sufficient materials to show that the detenu would act in the future to the prejudice of the maintenance of public order, security of the State and the Government 's effort to curb terrorism.
From the nature and contents of his speeches stated in the grounds of detention there was sufficient justification for the inference that he would repeat such speeches if not preventively detained.
Again when grievous crime against the community was committed it would surely be subject to the penal law and stringent sentences, but at the same time it could be considered unsafe to allow him the opportunities to repeat prejudicial acts during :the period the penal process was likely to take.
The learned Attorney General refers us to Giani Bakshish Singh vs Government:of India & Ors., ; , Smt.
Hemlata vs State of Maharashtra & Ors., (Supra) and Raj Kumar Singh vs State of Bihar & Ors., ; 4 SCC 407, submitting that the possibility of criminal prosecution was no bar to order any preventive detention and that the court should not substitute its decision or opinion in place of decision of the authority concerned on the question of necessity of preventive deten tion.
"Possibility of a prosecution or the absence of it is not absolute bar to an order of preventive detention; the authority may prosecute the offender for an isolated act or acts of an offence for violation of any criminal law, but if it is satisfied that the offender has a tendency to go on violating such laws, then there will be no bar for the State to detain him under a Preventive 430 Detention Act in order to disable him to repeat such of fences.
The detaining authority is not the sole judge of what national security or public order requires.
But neither is the court the sole judge of the position.
When power is given to an authority to act on certain facts and if that authority acts on relevant facts and arrives at a decision which cannot be described as either irrational or unreasona ble, in the sense that no person instructed in law could have reasonably taken that view, then the order is not bad and the Court cannot substitute its decision or opinion in place of the decision of the authority concerned on the necessity of passing the order.
" Following Hemlata (supra) it could be said that in this case of prosecution it may not be possible to bring home the offender to book as witnesses may not come forward to depose against him out of fear, or it may not be possible to col lect all necessary evidence without unreasonable delay and expenditure to prove the guilt of the offender beyond rea sonable doubt.
Considering the relevant facts and circumstances includ ing the time and place, the contents of the detention order and the allegations in the grounds of detention in this case, we are of the view that nonregistration of any crimi nal case could not be said to have shown non application of mind or absence of subjective satisfaction on the part of the detaining authority.
Assailing the finding as to delay in disposing of the detenu 's representation, the learned Attorney General sub mits that on 1.9.1988 the detenu filed representation against his detention addressed to the President of India through the Home Secretary, Government of Punjab and the Superintendent of District Jail, Agartala (Tripura).
The State Government was not aware of pendency of any such representation with it.
On 13.9.1988 the Central Government issued a teleprinter message which was duly received on 14.9.1988 in which the Central Government wanted to know the date on which the grounds of detention were supplied to the detenu and also sought parawise comments on the representa tion of the detenu.
However, the Central Government did not send any copy of the representation to the State Government.
Even so, it directed the police, vide letter dated 14.9.1988, to supply the required information to the Central Government.
It was intimated to the Central Government that parawise comments on the representation could not be offered as copy of the representation was not available with the State of Punjab.
The Central Government vide teleprinter message dated 6.10.1988 which was 431 received on 10.10.1988 intimated that the photostat copy of the representation had been sent along with the post copy of the teleprinter message.
The representation was duly re ceived on 19.10.1988 by the State of Punjab and it was examined at various levels on 19.10.1988 (20.10.1988 was a holiday), 21.10.1988 (22.10.1988 and 23.10.1988 were holi days), 24.10.1988 (25.10.1988 was again a holiday), 26.10.1988, 27.10.1988 and 28.10.1988.
The representation was duly put up before the competent authority who was pleased to reject the representation after due deliberation and consideration on 28.10.1988.
Thus, according to the learned Attorney General, the State of Punjab from the time of receiving the representation and till the time of its final disposal did not take more than 9 days, obviously excluding the aforesaid 14 holidays.
According to him this was a miraculous job done in disposing of the detenu 's representation and the intimation of the rejection was conveyed to the Superintendent of Jail, Agartala vide letter dated 31.10.1988, who informed the detenu on 8.11.1988.
Thus the detenu 's representation dated 1.9.1988 was disposed of by the State Government on 28.10.1988 and the detenu was informed only on 8.11.1988 i.e. after more than two months.
It was pointed out by Mr. R.S. Suri, learned counsel for the appellant, that excepting the photostat copy received from the Central Government no separate representation was at all received by the State Government of Punjab.
The Central GOvernment also rejected the representation before them after due consideration on December 21, 1988 and duly in formed the detenu.
Mr. Kapil Sibal, the learned counsel for the detenu states that two copies, one meant for the Central Government and the other meant for the State Government, were sent by the detenu on the same date.
The learned Attorney General contends that the delay was caused by the representation having been addressed to the President of India, wherefore, the copy went to the Central Government.
Mr. Sibal, however, assets that the detention order having said; "whereas the President of India is satisfied", the detenu was required under law to address the representation to the President of India and in view of the fact that it was routed through the Superintendent of the District Jail, Agartala (Tripura) and the Home Secretary, Government of Punjab, there was no reason why it should not have been delivered to the State Government of Punjab.
The learned Attorney General points out that the detention order itself having said that if the detenu wished to make such representation, he should address it to the State Government through the Superintendent of Jail as soon as possible and the grounds of detention having also similarly stated that the 432 detenu should address the representation to the State Gov ernment through the Superintendent of Jail, the delay caused up till the receipt of the photostat copy from the Central Government must be attributed to the detenu himself and the State Government could not be blamed and the detention order could not be said to have been vitiated by any latches, negligence or delay in disposing of the representation, under the facts and circumstances stated above.
The State of Punjab having been under the President 's rule at the relevant time and the detention order itself having stated that it was the satisfaction of the President in passing the detention order Mr. Sibal points out that it could not be said to have been a fatal mistake in the repre sentation to have been addressed to the President of India, Rashtrapati Bhawan, New Delhi and the same being routed through the Superintendent of the District Jail, Agartala (TRIPURA), and the Home Secretary of the State of Punjab, there was no reason why the same should not have been re ceived by the State Government of Punjab.
However it appears that the representation said to have been meant for the State Government was not received by the State Government at all.
The detenu cannot be said to have deliberately caused the delay.
Though we feel that in view of the clear instruc tions in the grounds of detention that he should address the representation to the State Government through the Superin tendent of the Jail where he was detained should have been followed.
May be this was due to the fact that Punjab was under President 's rule at the relevant time but Rashtrapati Bhawan, New Delhi was not the proper destination of the representation to the State Government, It is a settled law that in cases of preventive deten tion expeditious action is required on the part of the authorities in disposing of the detenu 's representation.
In Jayanarayan Sukul vs State of West Bengal, ; it was laid down that the consideration of the representa tion of the detenu by the appropriate authority was entirely independent of any action by the Advisory Board including the consideration of the representation by the Advisory Board.
There should not be any delay in the matter of con sideration.
It is true that no hard and fast rule can be laid down as to the measure of time taken by the appropriate authority for consideration but it has to be remembered that the Government has to be vigilant in the governance of the citizens.
A citizen 's right imposes correlative duty on the State.
In Frances Coralie Mullin vs W.C. Khambra and Ors., ; , it was reiterated that the detaining authority must consider the representation as soon as possi ble, and this preferably, must be before the 433 representation is forwarded to the Advisory Board before the Advisory Board makes its report and the consideration by the detaining authority of the representation must be entirely independent of the hearing by the Board or its report, expedition being essential at every stage.
The time impera tive cannot be absolute and the Court 's observations are not to be so understood, and there has to be lee way depending on the facts and circumstances of the case.
However, no allowance can be made for lethargic indifference or needless procrastination but allowance has to be made for necessary consultation where legal intricacies and factual ramifica tions are involved.
The burden of explaining the departure from the time imperative is always on the detaining authori ty.
The emphasis is on the constitutional right of a detenu to have his representation considered as expeditiously as possible and it will depend upon the facts and circumstances of each case whether or not the appropriate Government has disposed of the case as expeditiously as possible.
1n F.C. Mullin 's case the representation of the detenu made on December 22, 1979 was not communicated to the Advisory Board as it ought to have been, when the Board met on January 4, 1980 and the detaining authority awaited the hearing before the Advisory Board and took a decision thereafter.
Under the facts and circumstances of that case where the detenu re quested for copies of statements and documents collection of which took time, it was held that if there appeared to be any delay, it was not deemed due to any want of care but because the representation required a thorough examination in consultation with investigators of facts and advisors on law and as such though the Administrator considered the representation of the detenu after hearing by the Board, the Administrator was not entirely influenced by the hearing before the Board and the application for habeas corpus was, therefore, dismissed.
In State of Orissa and Anr.
vs Manilal Singhania and Anr., 2 SCC 808, it was held that the representation made by the detenu may be considered by the State Government as soon as possible i.e., with reasonable despatch and if that is not done, it would have the effect of vitiating the order of detention, but it is neither possible nor desirable to lay down any rigid period of time uniformly applicable in all cases within which the representation of the detenu must be considered by the State Government.
The Court would have to consider judicially in each case on the available material whether the gap between the receipt of the representation and its consideration by the State Government is so unreasonably long and the explanation for the delay offered by the State Government was unsatisfactory as to render the detention order thereafter illegal.
434 Article 21(5) of the Constitution enjoins that when any person is detained in pursuance of an order made under any law providing for preventive detention, the authority making the order shall, as soon as may be, communicate to such person the grounds on which the order has been made and shall afford him the earliest opportunity of making a repre sentation against the order.
Since A.K. Gopalan vs The State of Madras, ; , there has been a catena of decisions of this Court taking the view that the representation of the detenu must be considered promptly by the State Government.
In John Martin vs State of West Ben gal; , it was observed that Article 22(5) does not say which is the authority to which the representa tion shall be made or which authority shall consider it.
By section 8(1) of the Act the authority making the order is re quired to communicate to the detenu his grounds of detention and to afford him the earliest opportunity of making a representation against the order to the appropriate Govern ment.
In Khudiram Das vs The State of West Bengal & Ors., ; it was explained that "the constitutional Imperatives enacted in Article 22(5) are two fold; (1) the detaining authority must, as soon as may be, that is, as soon as practicable after the detention, communicate to the detenu the grounds on which the order of detention has been made and (2) the detaining authority must afford the detenu the earliest opportunity of making a representation against the order of detention.
These are the barest minimum safe guards which must be observed before an executive authority can be permitted to preventively detain a person and thereby drown his right of personal liberty in the name of public good and social security.
" In State of Orissa & Anr. vs Manilal Singhania & Anr., (supra) the representation was made on October 21, 1974 and it was received by the District Magistrate on the same day.
The representation was processed through the different authorities.
The Chief Minister was absent from headquarters between November 7, 1974 and Novem ber 12, 1974 and immediately on return to headquarters the Chief Minister disposed of the representation and rejected it on November 12, 1974.
It was found that there was no delay at any stage in movement of the representation from one officer to another.
Every one having dealt with it promptly and after examining it submitted to the respective higher officer.
The Chief Minister was out of the Capital and as soon as she returned without any delay at all dis posed of the representation.
Accordingly this Court did not see any gap between the receipt of the representation and its consideration by the State Government which could be said to be unreasonably long and the period had been satis factorily explained in the affidavit of the State.
Accord ingly the order of detention could not be held to be invalid on that ground.
On 435 the other hand in Saleh Mohammed vs Union of India & Ors., a delay of 22 days in considering the representation of the detenu was held to have violated Article 22(5) and vitiated the detention order.
The repre sentation in that case was lying unattended in the office of the Superintendent of Jail or the Inspector General of prisons and accordingly it was held to have been a case of gross negligence and chilling indifference and on that short ground alone the detention order was quashed.
In Kamla Kanyalal Khushalani vs State of Maharashtra & Anr., ; where the disposal of detenu 's representation was delayed for 25 days it was held that the continued detention of the detenu was void and that it was of the utmost impor tance that all the necessary safeguards laid down by the Constitution under Article 21 or Article 22(5) should be complied with fully and strictly and any departure from any of the safeguards would void the order of detention.
In Rattan Singh vs State of Punjab and Ors., 1 the representation to the State Government and the Central Government were made by the detenu simultaneously though the Jail Superintendent who should either have forwarded the representation separately to the Governments concerned or else he should have forwarded them to the State Government with a request for the onward transmission of the other representation to the Central Government.
"Someone tripped somewhere and the representation addressed to the Central Government was apparently never forwarded to it" with the inevitable result that the detenu had been unaccountably deprived of a valuable right to defend and assert his funda mental right to personal liberty.
Chandrachud, C.J. speaking for the Court observed: "But the laws of preventive detention afford only a modicum of safeguards to persons de tained under them and if freedom and liberty are to have any meaning in our democratic set up, it is essential that at least those safeguards are not denied to the detenus.
Section 11(1) of COFEPOSA confers upon the Central Government the power to revoke an order of detention even if it is made by the State Government or its officer.
That power, in order to be real and effective, must imply the right in a detenu to make a representation to the Central Government against the order of detention.
The failure in this case on the part either of the Jail Superintendent or the State Government to forward the detenu 's representation to the Central Government has deprived the detenu of the valuable right to have his detention revoked by that Government.
The 436 continued detention of the detenu must there fore be held illegal and the detenu set free.
" In Youssuf Abbas vs Union of India & Ors., , the detenu claimed to have made a representation against his detention on October 1, 1981.
Government stated that an undated representation was received by it from the District Magistrate on October 23, 1981.
The Advisory Board met on October 23, 1981.
Thereafter the Government rejected the representation of the detenu on October 29, 1981.
Admit tedly the representation was not forwarded to the Advisory Board.
It appears that the representation was forwarded by the Superintendent Central Jail to the District Magistrate on October 20, 1981.
Why his representation was detained with the Superintendent, Central Jail from October 1, 1981 to October 20, 1981 was not explained.
On that ground alone the writ petition was allowed and the detenu was directed to be set at liberty forthwith.
In Asha Keshavrao Bhosale vs Union of India & Anr., ; , it was found that a representation was made by the petitioner on behalf of the detenu which was received in the office of the Chief Minis ter on November 28, 1984 and orders on that representation were passed on January 23, 1985 and the same orders were received on January 28, 1985.
In the representation made by the petitioner himself to the Chief Minister, the order of detention was casually impugned but lot of attention appears to have been bestowed on the necessity of keeping the detenu in a Bombay Jail instead of sending him to Nasik Road Prison as directed in the Order of detention.
A detailed represen tation was made by the Secretary of an association which espoused his cause and that representation was received on November 29, 1984 in the Secretariat of the Chief Minister and was forwarded to the Home Department on December 3,.
1984 and was finally disposed of on December 12, 1984 and the rejection thereof was communicated on December 13, 1984.
This Court held that the petitioner was not entitled to make tenable submission on the score of delay in disposal of the representation.
In Aslam Ahmed Zahire Ahmed Shaik vs Union of India & Ors., ; , the Superintendent of Central Prison of Bombay to whom the representation was handed over by the detenu on June 16, 1988 for more onward transmission to the Central Government has callously ignored and kept it unattended for a period of seven days and as a result of that the representation reached the Government 11 days after it was handed over to the Jail Superintendent without any explanation despite opportunity given by this Court.
Pandian, J. speaking for the Court observed: 437 "In our view, the supine indifference, slack ness and callous attitude on the part of the Jail Superintendent who had unreasonably delayed in transmitting the representation as an intermediary; had ultimately caused undue delay in the disposal of the appellant 's representation by the Government which re ceived the representation 11 days after it was handedover to the Jail Superintendent by the detenu.
This avoidable and unexplained delay has resulted in rendering the continued deten tion of the appellant illegal and constitu tionally impermissible." Similarly in T.A. Abdul Rahman vs State of Kerala & Ors., Jt.
Today , the representation was submitted originally on 25.1.1988, but was got back and resubmitted on 2.2.1988 and was received by the third respondent only on 16.2.1988 and took time upto 28.3.1988 in receiving the comments of the Collector of Customs.
Again there was a delay of seven days in forwarding the representation to the Minister of State for Revenue with the comments of the Joint Secretary, COFEPOSA section.
In the opinion of their Lord ships, the manner in which the representation had been dealt with revealed a sorry state of affair in the matter of consideration of the representation made by the detenu.
It was not clear why such a long delay from 16.2.1988 to 28.3.1988 had occasioned in getting the comments from the Collector of Customs.
Theft Lordships extracted what was said in Rama Dhondu Borade vs Shri V.K. Saraf, Commissioner of Police & Ors., [1989] 1 Scale Vol.
1 p. 22: "The detenu has an independent constitutional right to make his representation under Article 22(5) of the Constitution of India.
Corre spondingly, there is constitutional mandate commanding the concerned authority to whom the detenu forwards his representation questioning the correctness of the detention order clamped upon him and requesting for his release, to consider the said representation within rea sonable dispatch and to dispose the same as expeditiously as possible.
This constitutional requirement must be satisfied with respect but if this constitutional imperative is observed in breach, it would amount to negation of the constitutional obligation rendering the con tinued detention constitutionally impermissi ble and illegal, since such a breach would defeat the very concept of liberty the highly cherished right which is enshrined in Article 21 of the Constitution.
" 438 " . .
What is reasonably dispatch depends on the facts and circumstances of each case and no hard and fast rule can be laid down in that regard.
However, in case the gap between the receipt of the representation and its consideration by the authority is so unreason ably long and the explanation offered by the authority is so unsatisfactory, such delay could vitiate the order of detention.
" Their Lordships accordingly held that the representation of the detenu had not been given prompt and expeditious consid eration and was allowed to lie without being properly at tended to and secondly the unexplained delay in the disposal of the representation was violative of Article 22(5) of the Constitution of India, rendering the order of detention invalid.
In the instant case we are satisfied that after receipt of the Xerox copy from the Central Government, the State Government took only 13 .days including 4 holidays in dis posing of the representation.
Considering the situation prevailing and the consultation needed in the matter, the State Government could not have been unmindful of urgency in the matter.
But the facts remain that it took more than two months from the date of submission of the representation to the date of informing the detenu of the result of his repre sentation.
Eight days were taken after disposal of the representation by the State Government.
The result is that the detenu 's constitutional right to prompt disposal of his representation was denied and the legal consequences must follow.
Assailing the finding of the High Court that opportunity was not afforded to the detenu to appear and produce his witnesses before the Advisory Board, the learned Attorney General submits that the finding is not correct inasmuch as in spite of the best endeavour on the part of the detaining authority to produce the detenu and his witnesses before the Board in terms of the High Court 's order dated 27.9.1988, the detenu himself on a lame excuse avoided appearing and producing his witnesses before it and thereby left no other alternative than to tender its opinion to the State Govern ment on 17.11.
1988 whereupon the State Government confirmed the order of detention vide its order dated 22.11.1988.
It appears that it was decided to hold the sitting of the Advisory Board at Indore on 12.11.1988 which was admit tedly a week before the mandatory last date for submitting the report.
On 8.11.1988 the 439 detenu at Agartala prayed for postponement of the Board sitting.
The State Government informed the Board on the basis of Teleprinter message dated November 8, 1988 received from Agartala that the detenu was unable to undertake the journey from Agartala to Indore.
Thereafter, the arrange ments made to carry the detenu and his witnesses to Indore by plane, were also cancelled by the State Government of Punjab and the detenu was told through the Inspector General of Prisons, Tripura by communication dated 11.11.1988 as follows: "In response to this office message dated 8.11.1988, Government of Punjab has informed me that next date of hearing as fixed by the NSA Board, Punjab, will be intimated.
This is in connection with his prayer dated 8.11.1988 for postponement of hearing by the NSA Board, Punjab on 12.11.1988 in the District Jail, Indore.
This may kindly be noted.
" Admittedly, the detenu was arrested on 28.5.1988.
The total period for Advisory Board 's report under section 14A (2)(d)(i) was five months and three weeks.
Reference to Advisory Board was made on 26.8.1988.
So the period would expire on or about 19.11.1988.
The Board fixed 12.11.1988 for its sitting.
The detenu prayed for adjournment as be cause of frozen joint he was unable to perform ablution and tie his turban.
Whether that was a lame excuse or not need not be decided.
The fact remained that he was told of anoth er sitting of the Board.
Having a week in hand it would perhaps have been possible to hold another sitting of the Board and give the detenu an opportunity which however, did not come.
Of course the decision was that of the Advisory Board and not of the State Government.
The High Court right ly observed that there was a communication gap.
It is true that the Advisory Board is not a judicial body.
It is charged with the responsibility of advising the Executive Government.
But when it advises in favour of the detenu, namely, that there was no sufficient cause for detention, it would be binding upon the Government under section 12(2) of the Act to release the detenu forthwith.
The detenu in this case did not have that opportunity to show that there was no sufficient cause for this detention.
Expressing inability to appear once could not have been treated as the detenu 's not desiring to be heard under section 11(2) of the Act.
In fact he desired to be heard and to produce his witnesses.
The result was that despite the State Government 's communication he was deprived of this opportunity.
What then would be the result? As was observed in Dr. R.K. Bhardwaj vs The State of Delhi & 440 Ors.
; , preventive detention is a serious invasion of personal liberty and such meagre safeguards as the Constitution has provided against the improper exercise of the power must be jealously watched and enforced by the Court.
Following D.S. Roy vs State of West Bengal, it can be said that Article 22(4) provides that no law providing for Preventive Detention shall authorise the detention of a person for a longer period than three months unless the Advisory Board has reported within that period that there is in its opinion sufficient cause for such detention.
Law therefore mandates a reference to a Board and for it to report on the sufficiency or otherwise of the detention which should be within three months from the date of detention.
It this case it is for this reason that after the Constitution every legislation dealing with Preventive Detention has made specific provision for confirmation and continuance of detention in view of the constitutional mandate in Article 22(4).
In this case, section 11 of the Act prescribes 5 months 3 weeks.
Unless the Board has made a report to the effect that there is a sufficient cause for such detention within that period from the date of detention there can be no detention of a person under any law for a longer period than that.
Relying on the observation of M.H. Beg, J. in P.D. Deorah vs The District Magistrate, Kamrup & Ors., ; it can be said that the gravity of the evil to the community resulting from anti social activities can not furnish an adequate reason for invading the personal liberty of a citizen, except in accordance with the proce dure established by the Constitution and the laws.
The protection of personal liberty is largely through insistence on observance of the mandatory procedure.
In cases of pre ventive detention observance of procedure has been the bastion against wanton assaults on personal liberty over the years.
Social security is no doubt the most important goal of the State but it is not the only goal of a good society.
There are other important values in a society.
One of the foremost and fundamental right guaranteed in the Constitu tion is personal liberty and one cannot be deprived of it except by the procedure prescribed by law.
Libertas inesti mabilis res est.
Liberty is an inestimable thing above price.
Libertus omnibbus rebus favourabilier est.
Liberty is more favoured than all things (anything).
It would be ironic if, in the name of social security, we would sanction the subversion of this liberty.
When a certain procedure is prescribed by the Constitution or the laws for depriving a citizen of his personal liberty, we think it our duty to see that that procedure is strictly observed.
As long back as in N.P. Umrao vs B.B. Gujral & Ors., ; at page 321 it was held to be well settled that in case of preven tive detention of a citizen, the Constitution by article 22(5) as interpreted by this Court, enjoins that the obligation of the 441 appropriate Government is to afford the detenu the opportu nity to make a representation and to consider that represen tation and there is the Government 's obligation to consti tute a Board and to communicate the representation, amongst other materials, to the Board to enable it to form its opinion and to obtain such opinion.
It was also reiterated that when liberty of the subject is involved under a preven tive detention law it is the bounden duty of the court to satisfy itself that all the safeguards provided by the law have been scrupulously observed and that the subject is not deprived of his personal liberty otherwise than in accord ance with law.
Two of these safeguards under article 22 which relate to the observance of the principle of natural justice and which a fortiori are intended to act as a check on the arbitrary exercise of power, are to be found in Article 22(5) of the Constitution.
These safeguards might be desig nated as a regulative postulate of respect, that is respect for the intrinsic dignity of the human person.
The detention of individuals without trial for any length of time, howso ever short, is wholly inconsistent with the basic ideas of our Government.
As was pointed out in V.C. Jawantraj Jain vs Shri Pradhan & Ors., ; one of the two safe guards provided to a detenu is that his case must be re ferred to an Advisory Board for its opinion if it is sought to detain him for a longer period than three months and the other is that he should be afforded the earliest opportunity of making a representation against the order of detention and such representation should be considered by the detain ing authority as early as possible before any order is made confirming the detention.
Neither safeguards is dependent on the other and both have to be observed by the detaining authority.
It is no answer for the detaining authority to say that representation of the detenu was sent by it to the Advisory Board and that the Board has considered the repre sentation and then made a report expressing itself in favour of detention.
Even if the Advisory Board has made a report stating that in its opinion there is sufficient cause for the detention, the State Government is not bound by such opinion and it may still on considering the representation of the detenu or otherwise, decline to confirm the order of detention and release the detenu.
It is imperative for the State Government to consider the representation of the detenu before making the order confirming the detention.
Fazal Ali, J. emphasised in Bal Chand Choraria vs Union of India and Ors., ; that in matters where the liberty of the subject is concerned and a highly cherished right is involved, the representation made by the detenu should be construed liberally and not technically so as to frustrate or defeat the concept of liberty which is en grained in article 21 of the Constitution of India.
In Smt.
Kavita vs The State of Maharashtra & 442 Ors.
; , , it was emphasised that the Advisory Board is charged with the task of submitting the report within the prescribed period after hearing the detenu, specifying its opinion as to whether or not there is sufficient cause for the detention of the person concerned.
The Advisory Board, as was held in A.K. Roy vs Union of India, [1982] Vol. , is to consider the question whether there is sufficient cause for the detention of the person concerned and not where the detenu is guilty of any charge.
The detenu may therefore present his own evidence in rebuttal of the allegations made against him and may offer other oral and documentary evidence before the Advisory Board in order to rebut the allegations which are made against him.
If the detenu desires to examine any witnesses, he shall keep them present at the appointed time and no obligation can be cast on the Advisory Board to summon them.
The Advisory Board, like any other Tribunal, is free to regulate its own procedure within the constraints of the Constitution and the statute.
If report is submitted by the Advisory Board without hearing the detenu who desired to be heard it will be violative of the safeguards provided under Article 22 of the Constitution .and sections 10 and 11 of the Act.
Failure to produce the detenu, unless it is for wilful refusal of the detenu himself to appear, will be equally violative of those provisions.
In State of Rajasthan vs Shamsher Singh, [1985] Suppl.
1 SCR 83 the importance of the proceedings before the Advisory Board was highlighted.
In fact it is the only opportunity for the detenu of being heard along with his representation for deciding whether there was sufficient cause for his detention.
The increasing need for ensuring public safety and security in the State of Punjab and the Union Territory of Chandigarh has been reflected in the recent successive amendments of the (Act 65 of 1980) with which we are concerned.
The Act was amended by the National Security (Amendment) Ordinance, 1984, which was repealed by the National Security (Amendment) Act, 1984, (18th May, 1984) (Act NO.
24 of 1984) which was deemed to have come into force on the 15th day of April, 1984.
Section 2 of this amendment Act provided that the shall, in its application to the State of Punjab and the Union Territory of Chandigarh, have effect subject to the amendments specified in sections 3 to 5.
Section 3 was amended to the extent that in sub section (4) of section 3 of the Principal Act (detaining officer reporting to the State Government) in the proviso, for the words "10 days" the words "15 days" shall be 443 substituted and for the words "15 days" the words "20 days" shall be substituted.
Similarly in sub section (1) of sec tion 8 (communicating grounds of detention to the detenu) for the words" 10 days" the words "15 days" shall be substi tuted.
A new section namely, section 14A was inserted after section 14.
This was followed by the National Security (2nd Amendment) Act, 1984 and the National Security (Amendment) Act of 1985.
This was followed by the National Security (Amendment) Ordinance of 1987 which was repealed by the National Security Amendment Act, 1987 (Act No. 27 of 1987) which further amended the Act in its application to the State of Punjab and the Union Territory of Chandigarh.
The National Security (Amendment) Act, 1984, section 4 of the National Security (2nd Amendment) Act, 1984, the National Security (Amendment) Act, 1985 and the National Security (Amendment) Ordinance, 1987 were thereby repealed.
This was followed by the National Security (Amendment) Ordinance, 1988 which was repealed by the National Security (Amendment) Act, 1988 (Act No. 43 of 1988).
In Section 14A as inserted by the Amendment Act of 1984, the provision was "where such person had been detained with a view to preventing him from acting in any disturbed area, in any manner prejudicial to . . " It was by the National Security (Amendment) Act, 1987 (Act No. 27 of 1987) that the provision of detention without obtaining the opinion of the Advisory Board for a period longer than 3 months, but not exceeding 6 months, from the date of his detention where such person had been detained with a view to preventing him 'in any disturbed area ' (1) "from interfering with the efforts of Government in coping with the terrorists and disruptive activities", was insert ed.
We find that while sub section (2) of section 3 of the Act before the amendment of 1984 provided that the Central Government and the State Government may if satisfied with respect to any person that with a view to preventing him from acting in any manner prejudicial to the security of the State or from acting in any manner prejudicial to the main tenance of public order or from acting in any manner preju dicial to the maintenance of supplies and services essential to the community it is necessary so to do, make an order directing that such person be detained, section 14A as inserted by the Amendment Act of 1984 provided that notwith standing anything contained in the foregoing provisions of this Act any person in respect of whom an order of detention has been made at any time before the 3rd day of April, 1986 444 may be detained without obtaining the opinion of the Adviso ry Board for a period longer than three months but not exceeding six months, from the date of his detention where such person had been detained with a view to preventing him from acting, in any disturbed area, in any manner prejudi cial to (a) the defence of India; or (b) the security of India; or (c) the security of the State; or (d) the mainte nance of public order; or (e) the maintenance of supplies and services essential to the community.
The amendment Act of 1987 added of these the ground "from interfering with the efforts of Government in coping with the terrorist and disruptive activities." Thus as a result of these amendments applicable to the State of Punjab and the Union Territory of Chandigarh we find on one hand addition to the grounds of detention and on the other, extension of the period during which a person could be detained without obtaining the opinion of the Advisory Board.
There is, however, no amendment as to the safeguards provided under Article 22 and sections 9, 10 and 11 of the Act.
Indeed, there could be no such amendment.
This reminds us of what was said, of course in a slightly differ ent context. "Amid the clash of arms laws are not silent.
They may be changed, but they speak the same language in war and peace." Would laws speak in a different language in internal disturbance? Lex uno ore omnes alloquitur.
Law addresses all with one mouth or voice.
Quotiens dubia inter pretatio libertatis est secundum libertatem respondendum erit Whenever there is a doubt between liberty and bondage, the decision must be in favour of liberty.
So says the Digest.
The result in that this appeal fails and is dismissed.
As ordered by the High Court the detenu is to be set at liberty forthwith, if he is not required to be detained in connection with any other case.
R.N.J. Appeal dismissed.
|
Sri Sukhjinder Singh has been under detention pursuant to the order dated 28.5.1988 of the Government of Punjab, Department of Home Affairs and Justice passed in exercise of the powers conferred by sub section (2) of Section 3 of the hereinafter referred to as "the Act" read with section 14A as inserted by National Security (Amendment) Act, 1987 with a view to preventing him from indulging in activities prejudicial to the security of the State and maintenance of public order and interference with the efforts of the Govt.
in coping with the terrorists and disruptive activities.
The detenu 's son Sukhpal Singh filed Criminal Writ Petition No. 1393 of 1988 in the High Court praying inter alia for a writ of Habeas Corpus, quashing the detention order, production of the detenu in the Court on the date of hearing, directing the authorities to arrange for the presence of the detenu before the Advisory Board at Chandi garh and also to make arrangements & pay for the expenses required to be incurred for arranging the presence of dete nu 's witnesses to be produced before the Board at Agartala and also his relatives and counsel so as to effectively assist him in regard to the presenting of his case before the Board.
The High Court by order order 27.9.88 dismissed the Writ Petition but ordered that the petitioner would approach the Advisory Board at Chandigarh with the request for allowing the detenu to produce evidence before it at Agartala and in case his prayer was granted by the Board, the expenses for taking those witnesses to Agartala would be borne by the respondent state.
Sukhpal Singh later moved Criminal Writ Petition No. 2365 of 1988 in the High Court of Punjab & Haryana for quashing the detention 421 order contending inter alia that the order of detention was passed on 28.5.88 in a cursory and routine manner without application of mind, much less with subjective satisfaction and there was an inordinate delay of two months in consider ation of detenu 's representation and that the detention was confirmed without affording the detenu any chance of appear ing and producing witnesses before the Advisory Board in terms of orders of the High Court dated 27.9.88 made in Crl.
Writ Petition No. 1393 of 1988.
The High Court upheld the above contention of the peti tioner and accordingly quashed the order of detention and ordered the detenu to be set at liberty for with unless required in any other case.
Aggrieved by this order the State has come up before this Court by way of special leave.
The Court while dismiss ing the appeal and directing the detenu to be set at liberty forthwith as ordered by the High Court.
HELD: A clear distinction has to be drawn between pre ventive detention in which anticipatory and precautionary action is taken to prevent the recurrence of apprehended events, and punitive detention under which the action is taken after the event has already happened.
It is true that the ordinary criminal process of trial is not to be circum vented and short circuited by apparently handy and easier resort to preventive detention.
But the possibility of launching a criminal proSecution cannot be said to be an absolute bar to an order of preventive detention.
Nor would it be correct to say that if such possibility is not present in the mind of the detaining authority the order of deten tion would necessarily be bad.
[426C E] It is true that the Advisory Board is not a judicial body.
It is charged with the responsibility of advising the Executive Government.
But when it advises in favour of the detenu, namely that there was no sufficient cause for deten tion, it would be binding upon the Govt under section 12(2) of the Act to release the detenu forthwith.
[439F] Expressing inability to appear once could not have been treated as the detenu 's not desiring to be heard under section 2(2) of the Act.
In fact he desired to be heard and to produce his witnesses.
[439G] The protection of personal liberty is largely through insistence on observance of the mandatory procedure.
In cases of preventive detention observance of procedure has been the bastion against wanton 422 assaults on personal liberty over the years.
[440E] One of the foremost and fundamental right guaranteed in the Constitution is personal liberty and one cannot be deprived of it except by the procedure prescribed by law.
Libertas Inestimabilis res est.
Liberty is an inestimable thing above price.
Libertus omnibus rebus favourabilier est.
Liberty is more favoured than all things (anything).
It would be ironic if, in the name of social security, we would sanction the subversion of this liberty.
[440F G] The increasing need for ensuring public safety and security in the State of Punjab and the Union Territory of Chandigarh has been reflected in the recent successive amendments of the .
[442F] As a result of these amendments applicable to the State of Punjab and the Union Territory of Chandigarh it is found on the one hand addition to the grounds of detention and on the other, extension of period during which a person could be detained without obtaining the opinion of the Advisory Board.
There is, however, no amendment as to the safeguards provided under Article 22 and sections 9, 10 and 11 of the Act.
Indeed, there could be no such amendment.
[444C D] Lex uno ore omnes alloguitur.
Law addresses all with one mouth or voice.
Quotaiens dubia interpretatio libertatis est secundum libertatem respondentum erit Whenever there is a doubt between liberty and bondage, the decision must be in favour of liberty.
[444E] Fazal Ghosi vs State of U.P. & Ors., AIR 1987 SC 1877:1987 (3) SCR 471; Rex vs Halliday, Ex parte Zadig, ; ; Ujagar Singh vs State of Punjab, ; SCR 756; Haradhan Saha vs The State of West Bengal Maharashtra & Ors.
, ; (1) SCR 1028; Ashok Kumar vs Delhi Administration & Ors., ; ; ; Giani Bakshish Singh vs Government of India & Ors., ; ; RajKumar Singh vs State of Bihar & Ors., ; ; ; Jayanarayan Sukul vs State of West Bengal, ; ; Frances Coralie Muffin vs W.C. Khambra & Ors., ; ; State of Orissa & Anr.
vs Manilal Singha nia & Anr., ; A.K. Gopalan vs The State of Madras, ; ; John Martin vs State of West Bengal, ; ; Khudiram Das vs The State of West Bengal & Ors., ; ; Saleh Mohammed 423 vs Union of India & Ors., ; Kamla Kanyalal Khushalani vs State of Maharashtra & Anr., ; ; Rattan Singh vs State of Punjab & Ors., ; ; YoussufAbbas vs Union of India & Ors., ; Asha Keshavrao Bhosale vs Union India & Anr., ; ; Aslam Ahmed Zahire Ahmed Shaik vs Union of India & Ors., ; ; T.A. Abdul Rahman vs State of Kerala & Ors., J.T. ; Rama Dhondu Borade vs Shri V.K. Saraf, Commissioner of Police & Ors., [1989] 1 Scale Vol.
1 22; Dr. R.K. Bhardwaj vs The State of Delhi & Ors., ; ; D.S. Roy vs State of West Bengal, ; P.D. Deorah vs The District Magistrate, Kamrup & Ors.
, ; ; N.P. Umrao vs B.B. Gujral & Ors., ; at p. 321; V.C. Jawantraj Jain vs Shri Pradhan & Ors., ; ; Bal Chand Choraria vs Union of India & Ors., ; ; Smt.
Kavita vs The State of Maharashtra & Ors., ; ; A.K. Roy vs Union of India, [1982] Vol.
88 Crl.
L.J. 340; and State of Rajasthan vs Shamsher Singh, [1985] Suppl.
I SCR 83, referred to.
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% Reserved on: December 01, 2022
Pronounced on: January 11, 2023
11) + W.P.(C) 15271/2022 and CM APPL. 47344/2022
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33) + W.P.(C) 13989/2021 and CM APPLS. 19495/2022 and
34) + W.P.(C) 6137/2022 and CM APPL. 18510/2022
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63) + W.P.(C) 10511/2021 and CM APPL. 27285/2022
67) + W.P.(C) 2314/2022 and CM APPL. 6669/2022
Kumar Jha and Mr. Miraj
W.P.(C) 12712/2021 & connected petitions Page 6 of 58
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Through: Advocate (appearance not given)
Through: Mr. Jatin Singh, Advocate in
in W.P.(C) 11947/2022
Mr. J.P.N. Shahi with Ms. J. Kiran,
Advocates in W.P.(C) 12474/2022
Mr. Nirvikar Verma with Ms.
Poonam, Advocates in W.P.(C)
Singh, Senior Panel Counsel with
Pleader in W.P.(C) 14501/2022
Ojha, Advocates with Mr.Anirudh
Shukla, Government Pleader in
Advocate with Mr. Paramveer
Singh, AC, LAW, BSF in W.P.(C)
W.P.(C) 12712/2021 & connected petitions Page 8 of 58
BSF in W.P.(C) 110/2020; W.P.(C)
with Mr. Srish Kumar Mishra, Mr.
Mathai Paikaday, Advocates in
Advocate in W.P.(C) 1480/2020
Mr. Vikrant N. Goyal, Advocate in
Kwatra, Advocates in W.P.(C)
Mr. Rajesh Kumar and Mr. Shaurya
Katoch, Advocates in W.P.(C)
Counsel with SI Prahlad Devenda,
W.P.(C) 12712/2021 & connected petitions Page 9 of 58
CISF in W.P.(C) 13948/2021;
Tripathi, Government Pleader in
Counsel in W.P.(C) 14105/2021;
Pathak, Advocates in W.P.(C)
Counsel with Mr. Vedansh Anand,
in W.P.(C) 14227/2021; W.P.(C)
Ms.Ankita Gautam, Advocates in
Vikram Srivastva, Advocates with
BSF in W.P.(C) 3424/2022
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Government Counsel with Mr.
BSF in W.P.(C) 3456/2022
Mr.Jatin Teotia, Advocates in
Government Pleader in W.P.(C)
Government Standing Counsel with
Paramveer Singh, AC,LAW,BSF in
Mr. Jaswinder Singh, Advocate in
Mr.Anand Awasthi, Advocates in
Advocate with Ms. Archana Surve,
W.P.(C) 12712/2021 & connected petitions Page 11 of 58
Advocate in W.P.(C) 6156/2022
Tripathi, Advocate in W.P.(C)
Counsel with Mr. Rishav Dubey,
Govt Pleader in W.P.(C) 7168/2022
Advocates in W.P.(C) 7214/2022
Counsel with Mr. Anirudh Shukla,
Government Pleader in W.P.(C)
Mr.Sandeep Tyagi, PC for UOI
(LAW) BSF in W.P.(C) 8575/2022
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Advocate in W.P.(C) 9740/2022
Mr.Paramveer Singh, AC (LAW) in
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Counsel with Mr.Gokul Sharma,
Government Pleader in W.P.(C)
Sharma, Advocates in W.P.(C)
Panel Counsel with Mr.Reshesh
in W.P.(C) 10815/2022
Senior Panel Counsel with
Advocate for UOI in W.P.(C)
Counsel with Mr.R.M.Tripathi,
Government Pleader in W.P.(C)
Pleader with Inspector Sanjay
Kumar CISF in W.P.(C)
Counsel with Mr.Sajan Shankar
Prasad, Government Pleader in
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Pleader in W.P.(C) 11166/2022
with Mr.R.M. Tripathi,
Government Pleader in W.P.(C)
Panel Counsel in W.P.(C)
Advocates with Mr.Paramveer
Singh, AC(LAW) BSF in W.P.(C)
Counsel with Ms.Vidhi Gupta,
BSF in W.P.(C) 12838/2022
Government Pleader in W.P.(C)
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Mr.Krishan Kumar, Advocates in
Panel Counsel with Mr.Paramveer
Singh, AC (LAW) BSF in W.P.(C)
Prosecutor for CBI,Ms.Preeti
Sharma, Advocate with
BSF in W.P.(C) 13853/2022
Advocate with Mr. Amit Acharya,
Government Pleader in W.P.(C)
Government Standing Counsel with
Mr.Hussain Taqvi, Advocate with
Pleader in W.P.(C) 15809/2022
Counsel with Mr.Anukalp Jain,
Government Pleader in W.P.(C)
Counsel with Ms.Chetanya Puri,
Government Pleader in W.P.(C)
Mr.Hussain Taqvi, Advocate with
BSF in W.P.(C) 16548/2022
W.P.(C) 12712/2021 & connected petitions Page 15 of 58
1. The petitioners in the above captioned petitions are employees of
different forces i.e. Central Reserve Police Force („CRPF‟), Sashtra
Seema Bal („SSB‟), Border Security Force („BSF‟) and Central Industrial
Security Force („CISF‟) Indo Tibetan Border Police („ITBP‟) etc., who
have preferred these petitions under Article 226/227 of the Constitution of
India seeking issuance of a writ of certiorari to the respondents for
quashing of orders denying them the benefit of Old Pension Scheme
(„OPS‟) in accordance with CCS (Pension) Rules, 1972 to them vide
different Office Memorandums and Signals issued by the respondents. In
addition, also sought quashing of OM dated 17.02.2020 issued by
respondents to the extent it does not grant benefit of Old Pension Scheme
to the personnel who have been appointed pursuant to notifications/
advertisements dated 01.01.2004.
2. The primary relief sought by the petitioners in these petitions is for
grant of OPS to the personnel, who have though been appointed after
01.01.2004, but had applied for the posts prior to 01.01.2004. Since the
relief sought in these petitions is similar, therefore, vide order dated
08.08.2022 [in W.P.(C) No. 3424/2022] this Court had directed that
W.P.(C) No. 12712/2021 shall be treated as the lead matter and with the
W.P.(C) 12712/2021 & connected petitions Page 16 of 58
consent of learned counsel for the parties, Mr. Ankur Chibber, Advocate
and Harish Vaidyanathan Shankar, learned Standing Counsel, were called
upon to put-forth the case on behalf of the petitioners and respondents
respectively.
3. Mr. Ankur Chibber, learned counsel appearing on behalf of
petitioners submitted that The Special Selection Board (CPOs-2002) in
June 2002 had issued an advertisement inviting applications from eligible
candidates for filing up the Group „A‟ post of Assistant Commandants in
the Border Security Force, Central Reserve Police Force, Indo-Tibetan
Border Police Force and Special Security Bureau (Now Sashastra Seema
Bal). As per the said advertisement, the last date for applying under the
said examination was 30.06.2002. The written examination was scheduled
for 02.03.2003 and the successful candidates appeared for PET, Interview
and Medical examination between October, 2003 till February, 2004. The
final result was declared in July, 2004. The petitioners were offered
appointment for the post of Assistant Commandant during the period
October, 2004 till 2005. In the interregnum, vide Notification dated
22.12.2003, New Contributory Pension Scheme („NPS‟) was implemented
w.e.f. 01.01.2004, however, the said scheme was not applicable to Armed
Forces, as the Forces shall be governed by the OPS already existing.
4. Finding that the NPS was less beneficial than the OPS, a few
personnel whose selection process had started prior to 01.01.2004 but had
received appointment letters thereafter, preferred writ petitions before this
Court and the said petitions being Naveen Kumar Jha Vs. UOI & Ors.
W.P.(C) 12712/2021 & connected petitions Page 17 of 58
Del 7274, were allowed by this Court. The Special Leave Petition („SLP‟)
preferred by the respondents [SLP (Civil) CC No.13755/2013] against the
decision dated 02.11.2012 was dismissed by the Hon‟ble Supreme Court
vide order dated 12.08.2013 with direction to implement the order dated
02.11.2012 in three months.
5. Thereafter, Directorate General Border Security Force, Ministry of
Home Affairs, Government of India, vide order dated 13.01.2016 directed
to convert the petitioners and other similarly situated SI/DE selected
through CPOs examination 2002 as members of the OPS.
6. The similar issue was again raised and decided by this Court in
7879 and Tanaka Ram & Ors. Vs. UOI & Ors. 2019 SCC OnLine Del
6962 where-under in view of the fact that the advertisements were prior to
coming into force NPS, the relief was granted to petitioners. Even the SLP
[SLP (C) Diary No.25228/2019] preferred by the respondents/UOI was
dismissed by the Supreme Court vide order dated 02.09.2019.
7. The Ministry of Home Affairs („MHS‟) thereafter vide OM dated
13.04.2018 directed all the CAPFs to extend similar benefits of “Old
Pension Scheme to all affected personnel” in terms of decisions of this
Court in W.P.(C) No.3834/2013 and W.P.(C) No. 2810/2016. Vide
another letter dated 16.10.2018, respondent-BSF had notified that the
selections done prior to 01.01.2004 will be governed by OPS. Further,
vide Signal dated 23.10.2018, the respondents had clarified that all
candidates selected through advertisement prior to 22.12.2003, need to be
W.P.(C) 12712/2021 & connected petitions Page 18 of 58
treated as members of Old Pension Scheme.
8. Learned counsel for petitioners submitted that contrary to their own
orders, the respondents vide order dated 11.12.2018 extended the benefit
of OPS to only those personnel whose recruitment process was completed
by 31.12.2003 but joined the force after 01.01.2004. However, the
petitioners before this Court have not been granted the benefit of OPS for
the reason that their recruitment process completed after 01.01.2004 i.e.
when the NPS was in force, which is contrary to the law laid down by this
Court in Gopal Babulal & Ors. Vs. Union of India & Ors 2019 SCC
OnLine Del 11894. Learned counsel submitted that even thereafter, vide
orders dated 06.02.2019 and 19.07.2019, the benefit of OPS has been
extended to certain officials/ personnel, however, have been denied to the
petitioners.
9. Afterwards, another writ petition being Shyam Kumar Choudhary
& Ors. Vs. UOI & Ors. 2019 SCC OnLine Del 11891 was filed by a few
personnel who had joined the 37th Batch of CRPF and had had been
selected in the examination conducted in 2003; but were issued call letters
in January or February, 2004 and this Court in view of the fact that those
petitioners could not join prior to 01.01.2004 due to fault of the
respondents, granted them benefit of OPS vide order dated 09.04.2019.
Again, the SLP [SLP (C) No.31539/2019] preferred by the respondents
was dismissed by the Supreme Court vide judgment dated 27.09.2019 and
even the Review Petition preferred against the said order was dismissed
by the Supreme Court vide order dated 24.11.2020.
10. In the meanwhile, respondent-CRPF issued a Memorandum dated
W.P.(C) 12712/2021 & connected petitions Page 19 of 58
26.08.2020 whereby it decided to extend the benefit of OPS only to the
petitioners in the case of Shyam Kumar Choudhary (Supra) and 13 other
similarly situated personnel, excluding the personnel such like petitioners.
Vide Signal dated 28.08.2020, a direction was issued to the Directorate to
ensure compliance of order dated 09.04.2019. Thereby, the order dated
09.04.2019 attained finality in all respects and become the settled position
of law.
11. Further submitted that pursuant to judgment dated 09.04.2019, this
Court in vide decision dated 13.12.2019 in Niraj Kumar Singh and Ors.
Vs. Union of India and Ors. 2019 SCC OnLine Del 11892 and vide
judgment dated 16.12.2019 in W.P.(C) No.11169/2019, titled as Chander
Veer Singh and Ors. Vs. Union of India and Ors. directed the
respondents to grant the benefit of OPS to the petitioners therein. Yet
again, another SLP (being SLP No.9950/2020) preferred by the
respondents was dismissed by the Supreme Court vide order dated
16.04.2021. Thereafter, vide order dated 28.01.2020 in writ petition
bearing No.756/2020, this Court directed the respondents to grant similar
benefit to the petitioners therein and the SLP filed by respondents/Union
of India (Being SLP No.173/2021) stood dismissed by the Supreme Court.
12. Learned counsel for petitioners submitted that once vide judgment
dated 09.04.2019 in W.P. (C) No.1358/2017 it was held that the personnel
belonging to the 37th Batch, being the juniors of petitioners, will be
entitled to Old Pension Scheme; then it implies to senior batch to which
the petitioners belong. Despite being a settled law on the subject that
where an advertisement has been issued prior to 01.01.2004 but the
W.P.(C) 12712/2021 & connected petitions Page 20 of 58
successful candidates have been issued appointment letters subsequent to
the NPS due to administrative delay on the part of respondents, then all
such candidates must be given the benefit of OPS. Thus, the refusal of
respondents to grant similar benefit to persons such like petitioners is
arbitrary and illegal and deserves to be set aside.
13. Learned counsel for petitioner placed reliance upon decision of
Supreme Court in State of U.P. and Ors. Vs. Arvind Kumar Srivastava
and Ors. 2015 (1) SCC 347 to submit that when a set of employees has
been given relief by the Court, then all other identically placed persons
need to be treated alike by extending the benefit to them.
14. It was next submitted by learned petitioners‟ counsel that the OM
dated 17.02.2020 issued by the Department of Pension and Pensioner's
Welfare, which mentions that in cases where the final result for
recruitment were declared before 01.01.2004 against the vacancies
occurring on or before 31.12.2003, only those candidates shall be eligible
for OPS under the CCS (Pension) Rules, 1972, is bad in law, as it is the
settled position that in cases where the recruitment process had been
initiated prior to the notification dated 22.12.2003 but appointment letters
have been issued on a subsequent date, they shall be entitled to OPS.
15. Learned petitioners‟ counsel submitted that writ petitions filed by
the personnel of BSF, being Vipul Pandey and Ors. Vs. Union of India
and Ors. 2020 SCC OnLine Del 1243 and Ithape Pandit Kisanrao and
Ors. Vs. Union of India and Ors. 2020 SCC OnLine Del 1295, were
decided by this Court vide common Judgment dated 06.11.2020, whereby
benefit of OPS have been granted to the petitioners therein and the SLP
W.P.(C) 12712/2021 & connected petitions Page 21 of 58
(being SLP (C) No. 11543/2021) preferred by the respondents stood
dismissed on 12.07.2021 and 17.09.2021. The respondents have in
compliance of aforesaid judgment, granted benefit of OPS to the
petitioners therein, who are infact juniors to the petitioners in these
petitions.
16. The petitioners, aggrieved by the fact that they were not granted
OPS by the respondents, filed various representations praying for
extension of the benefit of coverage under CCS (Pension) Rules, 1972,
however, respondents vide Signal dated 12.10.2021, declared petitioners
ineligible for switching over to pension Scheme under the Rules.
17. Learned counsel for petitioner submitted that respondents vide
Memo dated 26.08.2020, Signal dated 28.08.2020 and order dated
22.09.2021, have granted benefit of OPS to batch-mates and juniors of
petitioners but the petitioners have been discriminatively treated for
reasons best known to respondents only.
18. Even thereafter, vide common judgment dated 15.01.2021, this
Court in W.P.(C) No.9252/2020 titled as Shabad Prakash Punia and Ors.
Vs. Union of India and Ors.; W.P.(C) No.5075/2020 titled as Sudesh
Kumar Singh and Ors. Vs. Union of India and W.P.(C) No.7445/2020,
titled as Harbir Singh and Ors. Vs. Union of India and Ors. granted
benefit of OPS to the petitioners therein and again the SLP (being SLP (C)
No. 7373/2021) preferred by the respondents against thereof, stood
dismissed by the Supreme Court vide judgment dated 09.07.2021.
19. Learned petitioners‟ counsel pointed out that furthermore, this
Court in Jas Winder Singh & Ors. Vs. UOI & Ors. 2021 SCC OnLine
W.P.(C) 12712/2021 & connected petitions Page 22 of 58
Del 3194 vide order dated 15.02.2021 directed the respondents to grant
benefit of OPS to petitioners therein on parity to their batch-mates and
the SLP[ being SLP(C) No. 11749/2021] preferred by the respondents
stood dismissed on 31.08.2021.
20. Learned counsel sturdily submitted that despite various aforesaid
decisions and the fact that the Supreme Court has clarified that CRPF is
an Armed Force of the Union of India and the notification dated
06.08.2004 issued by the Government of India stating that the CRPF is the
Armed Force of the Union, respondents are not covering the petitioners
under the OPS, as has been applied in case of Army, Air force and Navy.
21. On the other hand, Mr. Harish Vaidyanathan Shankar, learned
Standing Counsel appearing on behalf of respondents, submitted that
petitioners have joined the respective Forces during the years 2004 and
2005 and the Ministry of Finance, Government of India, vide Notification
No.5/7/2003-ECB & PR dated 22.12.2003, published in the Gazette of
India, Extraordinary, Part-I, Section 1, dated 22.12.2003 implemented
NPS for new entrants to Central Government Service, except to Armed
Forces, thereby replacing the OPS. Since the petitioners joined the
services after coming into force the aforesaid Notification, these
petitioners were not entitled to OPS under the CCS(Pension) Rules, 1972
(Old Pension Scheme. Learned Standing Counsel pointed out that the
petitioners in W.P.(C) No. 1358/2017; W.P.(C) No. 3834/2013 and
W.P.(C) No. 2810/2016 had qualified the recruitment process prior to
notification of NPS, however, the petitioners herein had not qualified the
recruitment process prior to Notification dated 22.12.2003. It was
W.P.(C) 12712/2021 & connected petitions Page 23 of 58
submitted that only one stage of examination was complete prior to
01.01.2004 and all the other three stages were conducted thereafter. It was
submitted that there were factual errors in judgment dated 09.04.2019
passed in W.P.(C) No. 1358/2017, however, since SLP against the said
order [being SLP(C) Diary No. 31539/2019] was dismissed by the
Supreme Court vide order dated 27.09.2019; the Department of Personnel
and Pensioners‟ Welfare („DOP&PW‟) advised the MHA vide OM dated
26.08.2020 to implement the judgment dated 09.04.2019 only in the case
of petitioners therein. Similarly, the benefit of OPS was extended to the
petitioners in WPC No. 6548/2020 as there were factual errors in the
Judgment dated 06.11.2020 passed by this Court and also since, SLP
against the said Judgment was dismissed by the Supreme Court of India
vide order dated 12.07.2021, the MHA accorded to implement the said
benefit to the petitioners in WP(C) No. 6548/2020 in persona.
22. Learned Standing Counsel submitted that the various
representations / references received by the DOP & PW, vide OM dated
17.02.2020 clarified that in all cases where the recruitment results were
declared before 01.01.2004 against vacancies occurring on or before
31.12.2003, the candidates declared successful for recruitment shall be
eligible for coverage under CCS(Pension) Rules, 1972 and the
Government servants appointed on or after 01.01.2004 will not be eligible
for OPS. Thereafter, the Board of Officers constituted under chairmanship
of IG, NS, CRPF to assess eligibility of officers who were appointed in
CRPF on or after 01.01.2004 by qualifying the competitive examination
advertised prior to 01.01.2004, examined their representations/ references
W.P.(C) 12712/2021 & connected petitions Page 24 of 58
made by them and found them „ineligible‟ for OPS, as their final result
was declared after 01.01.2004.
23. Next, on the pleas of petitioners that NPS is not applicable to the
members of the CRPF, learned Standing Counsel for the respondents
submitted that in terms of Section 3 of CRPF Act, 1949, CRPF is an
Armed Force of the Union of India and the Notification dated 22.12.2003,
the „ARMED Forces‟ implies to Army, Navy and Air Force and not to the
entire armed forces of the Union.
24. Lastly, learned Standing Counsel for respondents placed reliance
upon recent decision of a Division Bench of this Court in Satya Dev
Prajapati and Others Vs. Delhi High Court, through its Registrar
General and Anr. 2022 SCC OnLine Del 3911, whereby the petitioners
have been denied benefit of OPS. Also submitted that in Shyam Kumar
Choudhary (Supra) and Ithape Pandit Kisanrao (Supra) the petitioners
have been granted relief in persona and the said decisions are not
applicable to the case of petitioners herein and so, these petitions deserve
to be dismissed.
25. In rebuttal, learned counsel for petitioners submitted that
respondents have failed to appreciate that the advertisement was issued in
June, 2002; final result was declared in July, 2004 and petitioners were
appointed in November, 2004 – January, 2005, when the OPS was in
vogue and for the fault of respondents for not completing the recruitment
process in a timely manner, the petitioners cannot be made to suffer.
Further submitted that petitioners are entitled to similar benefit as has
been granted to petitioners in W.P.(C) 1358/2017; W.P.(C) 6548/2020 and
W.P.(C) 12712/2021 & connected petitions Page 25 of 58
W.P.(C) No. 6989/2020 vide judgments dated 09.04.2019 and 06.11.2020
respectively. Thus, the petitioners sought quashing of Memorandum dated
26.08.2020, Signal dated 28.08.2020 and order dated 22.09.2021 to the
extent respondents have granted benefit of OPS only to the petitioners in
W.P.(C) 1358/2017; W.P.(C) No. 6548/2020 in compliance to the order
dated 09.04.2019 and 06.11.2020 respectively, excluding the similarly
situated personnel like the petitioners. Lastly, learned petitioners‟ counsel
submitted that petitioners deserve benefit of OPS in terms of notification
dated 22.12.2003, MHA letter dated 06.08.2004 and in accordance with
CCS (Pension) Rules, 1972 by treating them members of Armed Forces of
the Union of India.
26. This Court had heard extensive arguments addressed on behalf of
both the sides. On perusal of material placed before this Court as well as
decisions relied upon by both the sides, we find that the petitioners in
these petitions are personnel belong to different Forces i.e. CRPF, BSF,
CISF, SSB, ITBP (CAPFs) etc. Subsequent upon publishing of
advertisements for filling up different posts in these Forces, the petitioners
herein claim to have applied in the years 2002-03, 2003-04. While the
recruitment/ selection process was in progress, the NPS was introduced
vide Notification dated 22.12.2003, which was to be implemented w.e.f.
01.01.2004. The petitioners, employed in various Forces, claim that
according to the said Notification, the scheme of NPS was not applicable
to the Armed Forces. Meaning thereby, the Armed Forces shall be
governed by the Old Pension Scheme already existing. However, given
that this benefit was not extended to the personnel of the armed forces, a
W.P.(C) 12712/2021 & connected petitions Page 26 of 58
quite many of them took the plea that since their recruitment/ selection
process commenced prior to Notification dated 22.12.2003, they shall be
covered under the OPS, though the respondents have treated them as a
member of NPS.
27. The petitioners claim to have made different representations before
the competent authority of their respective Force, however, their prayer
for grant of benefit of OPS was turned down vide different Office
Memorandums, Signals etc. Hence, aggrieved against the denial of
respondents to grant the petitioners these petitions have been filed. The
relief sought in the present petitions is as under:-
Writ Petition/ Relief sought and
W.P.(C) No. Quashing/modification of
16201/2022 Issue a writ of mandamus directing
the respondents to extend the
benefit of Old Pension Scheme in
accordance with CCS(Pension)
11947/2022 Letters dated 14.12.2013 and
Signal dated 12.11.2014
Memorandum dated 26.08.2020,
Signal dated 28.08.2020 and order
dated 22.09.2021
12474/2022 OM dated 17.02.2020
memorandums dated 07.10.2019,
14.01.2021, signal dated
01.02.2022, inter office note dated
25.04.2022 and memorandum dated
W.P.(C) 12712/2021 & connected petitions Page 27 of 58
14293/2022 memorandum dated 26.08.2020
14501/2022 Memorandum dated 05.07.2022
6379/2021 No reply to the representation dated
3956/2017 Issue a writ of mandamus directing
the Respondents to extend the
benefit of Old Pension Scheme in
accordance with CCS(Pension)
110/2020 letter dated 7.10.2019
12712/2021 OM dated 26.08.2020
Signal dated 28.08.2020
1480/2020 Parity with batch mates
2116/2021 OM dated 17.02.2020
OM dated 30.09.2020
6900/2021 Memorandum dated 26.08.2020
signal dated 28.08.2020
7088/2021 Direction to respondents to extend
the benefit of OPS
8759/2021 OM dated 17.02.2020
8879/2021 OM dated 17.02.2020
8995/2021 OM dated 17.02.2020
13762/2021 OM dated 17.02.2020
10511/2021 OM dated 17.02.2020
11390/2021 OM dated 17.02.2020
W.P.(C) 12712/2021 & connected petitions Page 28 of 58
11393/2021 OM dated 17.022020
12634/2021 OM dated 17.02.2020
12645/2021 OM dated 17.02.2020
13948/2021 OM dated 17.02.2020
13989/2021 OM dated 17.02.2020
14105/2021 Memorandum dated 26.08.2020
Signal dated 28.08.2020
14227/2021 OM dated 17.02.2020
14238/2021 OM dated 17.02.2020
6177/2022 OM dated 17.02.2020
15271/2022 OM dated 17.02.2020
2314/2022 OM dated 17.02.2020
3424/2022 To direct respondents to extend the
benefit of OPS
3456/2022 To direct respondents to extend the
benefit of OPS
5333/2022 OM dated 17.02.2020
6137/2022 OM dated 17.02.2020
6789/2022 Memorandum dated 26.08.2020
Signal dated 28.08.2020
14436/2021 To direct respondents to extend the
benefit of OPS
14891/2021 OM dated 17.02.2020
Letter dated 3.03.2020
W.P.(C) 12712/2021 & connected petitions Page 29 of 58
127/2022 OM dated 17.02.2020
709/2022 Order dated 29.12.2021
1347/2022 Letter dated 25.06.2019
Orders dated 22.04.2021 and
1785/2022 Memorandum dated 17.02.2020
2089/2022 OM dated 17.02.2020
2829/2022 Memorandum dated 26.08.2020
Signal dated 28.08.2020
6020/2022 OM dated 17.02.2020
order dated 04.10.2021
6156/2022 OM dated 17.02.2020
6869/2022 OM dated 17.02.2020
7065/2022 Memorandum dated 26.08.2020
Signal dated 28.08.2020
7168/2022 OM dated 17.02.2020
7214/2022 OM dated 17.02.2020
7258/2022 OM dated 17.02.2020
8575/2022 OM dated 17.02.2020
8602/2022 OM dated17.02.2020
8641/2022 OM dated 17.02 .2020
W.P.(C) 12712/2021 & connected petitions Page 30 of 58
9740/2022 Memorandum dated 26.08.2020
Signal dated 28.08.2020
10447/2022 Orders dated 10.07.2020 and
OM dated 17.02.2020
10614/2022 OM dated 17.02 .2020
10631/2022 OM dated17.02.2020
10674/2022 OM dated 17.02.2020
10815/2022 OM dated 17.02.2020
10849/2022 OM dated 17.02.2020
11059/2022 OM dated 17.02.2020
11113/2022 OM dated 17.02.2020
Order dated 12.07.2022
11133/2022 To direct respondents to extend the
benefit of OPS
11166/2022 OM dated 17.02.2020
11626/2022 OM dated17.02.2020
11737/2022 OM dated 17.02.2020
12321/2022 Memorandum dated 26.08.2020
Signal dated 28.08.2020
12838/2022 To direct respondents to extend the
benefit of OPS
13112/2022 OM dated 17.02.2020
13161/2022 OM dated 17.02.2020
13174/2022 OM dated17.02.2020
13181/2022 OM dated 17.02.2020
W.P.(C) 12712/2021 & connected petitions Page 31 of 58
13391/2022 Memorandum dated 26.08.2020
Signal dated 28.08.2020
13827/2022 To direct respondents to extend the
benefit of OPS
13853/2022 To direct respondents to extend the
benefit of OPS
15537/2022 OM dated 17.02.2020
15809/2022 To direct respondents to extend the
benefit of OPS
15951/2022 OM dated17.02.2020
15977/2022 OM dated 17.02.2020
16525/2022 OM dated 17.02.2020
16548/2022 Extend benefit of OPS
28. To submit that the personnel appointed pursuant to advertisement
which have been issued prior to 31.12.2003 shall be eligible to get OPS is
no longer res integra, learned counsel for petitioners placed reliance upon
various decisions of this Court. The relevant paras of decisions relied
upon are as under:-
(i) In Naveen Kumar Jha (Supra), it has been held as under:-
“9. With respect to the Pension Scheme it assumes
importance to note that petitioner's batch mates
were issued letters offering appointment in March
2003 and had petitioner likewise been issued a
letter offering appointment, he too would have
W.P.(C) 12712/2021 & connected petitions Page 32 of 58
been a member of the old Pension Scheme. As a
result of petitioner being offered employment in
April 2004, he has perforce been made a member
of the new Pension Scheme.
11. We highlight in the instant case the
fortuitous circumstance of the petitioners being
made to join as Assistant Commandant on
08.08.2005 is not the result of anything created by
the petitioners but is a result of a supine
indifference and negligence on the part of the
ITBP officials.
18. On the subject of the petitioner being
entitled to the old Pension Scheme, in similar
circumstances, deciding WP(C) No. 10028/
2009 Amrendra Kumar v. UOI, where the
petitioner therein was also similarly deprived the
opportunity to join with his batch on account of
delay in conducting medical re-examination, the
Court had directed that said writ petitioner would
be entitled to the benefit of the old Pension
Scheme which remained in force till December 31,
19. The petitioner would be entitled to similar
benefit and accordingly the next mandamus issued
is by way of a direction to the respondents to treat
the petitioner as a member of the pension scheme
which remained in vogue till December 31, 2003”
(ii) In Parmanand Yadav (Supra), this Court observed
and held as under:-
W.P.(C) 12712/2021 & connected petitions Page 33 of 58
“9. With respect to the Pension Scheme it assumes
importance to note that petitioner's batchmates
were issued letters offering appointment in March
2003 and had petitioner likewise been issued a
letter offering appointment, he too would have
been a member of the old Pension Scheme. As a
result of petitioner being offered employment in
April 2004, he has perforce been made a member
of the new Pension Scheme.”
(iii) In Tanaka Ram (Supra), this Court observed and held as
“6. A new Contributory Pension Scheme was
introduced on 22nd December, 2003 and was to be
implemented with effect from January, 2004. This
was monetarily less beneficial than the Old
Pension Scheme. Those who had been offered
letters of appointment on 17th December, 2003
were covered by the Old Pension Scheme whereas
those candidates like the Petitioners whose letters
of offers of appointment were issued only in
February, 2004 were deprived of the benefit of the
7. A batch of the Petitioners who were
selected pursuant to a Sub-Inspector (DE),
Examination 2002 and were also deprived of the
benefit of the Old Pension Scheme on account of
the delay on the part of the Respondents in issuing
the appointment orders. They filed WP (C) No.
3834/2013 (Parmanand Yadav v. Union of India)
in this Court. By a judgement dated 12th February,
2015 this Court allowed the said writ petition. The
W.P.(C) 12712/2021 & connected petitions Page 34 of 58
Court in doing so followed its earlier order dated
26th May, 2011 in WP (C) No. 5400/2010 (Avinash
Singh v. Union of India) which was followed in the
decision dated 2nd November, 2012 in WP (C) No.
3827/2012 (Naveen Kumar Jha v. Union of India).
14. The Court finds that in V. Ramana
Murthy, the Division Bench of this Court did not
take note of the order dated 13th January, 2016
issued by the BSF itself accepting the decision in
Parmanand Yadav. By issuing the said order
dated 13th January, 2016, the BSF was accepting
that the delay in issuing the offers of appointment
was for reasons not attributable to Parmanand
Yadav similarly situated but on account of the
Respondents. That factual situation made the
decision in Shailender Kumar v. DHC (supra)
referred to in V. Ramana Murthy (supra)
inapplicable.
17. In other words, the BSF itself has
accepted that the benefit of the decision in
Parmanand Yadav (supra) and the option to
continue the Old Pension Scheme should be
extended to all those who had been selected in the
exam conducted in 2003 but were only issued call
letters in January or February, 2004.
18. For the above reasons, the Respondents
are directed to extend the benefit of the Old
Pension Scheme to all the Petitioners in the
present petitions and pass consequential orders
within a period of eight weeks from today.”
(iv) In Inspector Rajendra Singh (Supra) it has been
W.P.(C) 12712/2021 & connected petitions Page 35 of 58
held as under:-
“17. Had the petitioners and others, who opted for
the Border Security Force, known that by opting for
the Border Security Force, they would have been
denied the benefit of the Old Pension Scheme, they
would perhaps have not opted for the Border
18. In our view, basic terms and conditions of
service, such as the right to receive pension upon
superannuation, as applicable at the time of
notification of the posts, cannot later be altered to
the prejudice of the incumbents to the post, after
commencement of the selection process.”
(v) Thereafter, in Niraj Kumar Singh and Others Vs. Union of
India and Others 2019 SCC OnLine Del 11892, in the light of
decisions in Naveen Kumar Jha (Supra), Parmanand Yadav
(Supra), Inspector Rajendra Singh (Supra) relied upon by learned
counsel for petitioners, this Court observed and held as under:-
“5. The short question that arises in this petition
is whether the Petitioners are covered by the OPS
which was replaced by the new Contributory
Pension Scheme, which came into effect from
6. It has been consistently held by this Court in a
series of orders that those who had participated in
the examination of 2003 would be covered by the
OPS, notwithstanding that they had been offered
letters of appointment only after 1st January, 2004.
Among the several orders of this Court is an order
dated 2nd November 2012 in W.P.(C) 3827 of 2012
(Naveen Kumar Jha v. Union of India) where in
W.P.(C) 12712/2021 & connected petitions Page 36 of 58
the context of a delay in the issuance of the letter
of appointment of a Sub-Inspector (SI) of the
Central Reserve Police Force (CRPF), beyond
1st January 2004, on account of the delay in the
authorities having him examined by a Review
Medical Board, it was held that the Petitioner
would be covered by the OPS.
7. By a subsequent order dated 12th February,
2015 in W.P.(C) 3834/2013 (Parmanand
Yadav v. Union of India) in the context of SIs of
the Border Security Force (BSF) whose letters of
appointment were delayed beyond 1st January
2004, it was held that they too would be covered
by the OPS. The BSF accepted this and other
judgments that followed and its Director General
(DG) issued an order dated 13th January 2016 in
which inter alia it was stated:
“therefore, in respectful compliance of
order dated 12.02.2015, passed by
Hon'ble High Court of Delhi, approval
of Competent Authority i.e. Ministry of
Home Affairs is hereby conveyed to
convert the petitioners and other
similarly situated SI/DE selected
through CPOs Exam-2002 (as per list
enclosed at Appendix A) as members of
the old pension scheme, which was in
vogue till 31/12/2003 and the NPS
corpus which were earlier subscribed
should be transferred to the GPF
accounts of each individual, subject to
the condition that they will not be
entitled for any back wages or seniority
etc.”
8. Subsequently, after a judgment dated
27th March 2017 of this Court in the case
W.P.(C) 12712/2021 & connected petitions Page 37 of 58
of Inspectors of the BSF in W.P. (C) 2810 of 2016
(Inspector Rajendra Singh v. Union of India), the
Ministry of Home Affairs (MHA) issued an Office
Memorandum (OM) dated 13th April 2018,
accepting the said judgment for implementation
and inter alia directing as under:
“5. Now, Competent authority
desires that all other CAPFs
(except BSF) may also check their
record and if any similar case is
found they may examine & take
appropriate action on the similar
lines by taking reliance of BSF
case, to avoid similar litigation in
future.”
9. Another order dated 16th October 2018 was
issued by the BSF implementing the decisions of
this Court extending the benefit of the OPS in the
case of Head Constable (Radio Operators) who
had been selected prior to 1st January 2004 but
issued appointment letters thereafter.
10. This Court, in the context of certain
Constables of BSF, by a judgment dated
12th February, 2019 in W.P. (C) 6680 of 2017
(Tanaka Ram v. Union of India) allowed the
prayers of those Petitioners and held that they
should be covered by the OPS. The order of this
Court in Tanaka Ram (supra) was affirmed by the
Supreme Court by dismissal of SLP (CC)
Diary No. 25228/2019 (Union of India v. Tanaka
Ram) on 2nd September 2019.
Choudhary v. Union of India), relief similar to the
one sought in the present case was being claimed
by certain Assistant Commandants in the CRPF,
who had successfully cleared the examinations of
W.P.(C) 12712/2021 & connected petitions Page 38 of 58
2003. They were, however, offered letters of
appointment after January, 2004. By an order
dated 9th April, 2019, their petition was allowed
by this Court. That order has been affirmed by the
Supreme Court inasmuch as SLP(C) 31539/2019
filed by Union of India has been dismissed by an
order dated 27th November, 2019.
12. In that view of the matter, the Court finds
no reason to treat the present Petitioners who
belong to the SSB, another CAPF, different from
their counterparts in the CRPF and BSF.
13. The Court accordingly allows the present
petition and quashes the order dated 25th January,
2018 passed by the Respondents by which the
Petitioners' representation dated 8th September
2017, requesting that the OPS be extended to
them, was rejected. A direction is issued to the
Respondents to extend the benefit of the OPS to
each of the Petitioners in terms of CCS (Pension)
Rules 1972, by issuing appropriate orders within
a period of 12 weeks from today.”
29. It is a matter of record that against the aforesaid decisions,
respondents preferred SLP as well as review petitions, which were
dismissed by the Supreme Court. Thereby, it is the settled position of law
that those candidates who had appeared in the selection process prior to
coming into force the NPS on 22.12.2003, but were offered letters of
appointment after 01.01.2004, would be covered by the OPS.
30. The respondents, on the other hand, have relied upon decision in
Satya Dev Prajapati (Supra). In the said case, though the advertisements
for different posts was issued in the year 2003 but the written
examination, skill test and viva voce could be completed in May, 2004
W.P.(C) 12712/2021 & connected petitions Page 39 of 58
and the appointment letters were issued between May, 2004 till August,
2004. So, the petitioners had filed the aforesaid writ petitions seeking
benefit of OPS, which was denied by the department in view of Office
Memorandum dated 17.02.2020, whereby the benefit of OPS was
confined to only those candidates who were recruited against vacancies
arising on or before 31.12.2003 and the selection results were declared on
or before 01.01.2004. The Coordinate Division Bench of this Court while
relying upon OM dated 17.02.2020 refused to grant the benefit of OPS to
the petitioners therein holding that the Central Government had thought it
fit to extend the benefit of the Old Pension Scheme to those employees,
where the selection results (for filing up vacancies that had arisen) were
declared before 01.01.2004. The Coordinate Bench in Satya Dev
Prajapati (Supra) took note of the decisions in Naveen Kumar Jha
Rajendra Singh (Supra), Niraj Kumar Singh and Others (Supra) and
Avinash Singh (Supra); relied upon by petitioners as well as in these
petitions and observed that:-
“47. It is clear from the above analysis that the
petitioners rely upon cases that follow the decision
in the case of Naveen Kumar Jha v. Union of India,
which in turn referred to the decision in the case
of Avinash Singh v. Union of India As noted above,
the decision in Naveen Kumar Jha v. Union of
India was based on the principle that there could be
no discrimination between a batch of candidates that
participated in the given recruitment process. On the
principles of parity, the Court did not accept that the
benefits of the Old Pension Scheme would be
available to some of the candidates and not to others
for no reasons attributable to them. It is also
W.P.(C) 12712/2021 & connected petitions Page 40 of 58
material to note that all of the cases referred to by
the petitioners were essentially cases pertaining to
recruitment to the paramilitary forces. The
controversy in these cases had arisen largely on
account of a delay in the petitioners joining their
services either because the letters of joining had
been issued later or a delay in the completion of the
procedure for their medical fitness, which had
placed them in a disadvantageous position vis-a-vis
other similarly placed candidates. It was also found
that there was a difference in the dates of issuing
appointment letters to candidates based on the
paramilitary service to which they were appointed.
31. Since the Coordinate Division Bench itself has noted in Para-47 of
Satya Dev Prajapati (Supra) that the cases referred to were related to
paramilitary forces where there was huge delay caused on completion of
recruitment process and so, the petitioners therein were given appointment
on parity, whereas the petitioners in Satya Dev Prajapati (Supra) were
covered under the Central Government Rules and so were denied benefit
of OPS, the said decision is of no help to the case of respondents being
distinguishable on facts.
32. To persuade this Court that the petitioners, deployed under different
Forces, were members of Armed Forces and hence, covered under the
OPS, learned petitioners‟ counsel had submitted before this Court that
under Article 246 read with List 1 Entry 2 of the Seventh Schedule of
Constitution of India, the Armed Forces of the Union of India included the
Naval, Military and Air Forces and any other armed forces of the Union.
Further submitted that even the Central Reserve Police Force was raised
as an Armed Force of Union of India and is governed by a special Act
W.P.(C) 12712/2021 & connected petitions Page 41 of 58
called CRPF Act, 1968.
33. The provisions of Section 3(1) of the CRPF Act, 1949 stipulate that
the CRPF is a part of armed forces. It reads as under:-
3. Constitution of the Force.-(l) There shall
continue to be an armed force maintained by
the Central Government and called the
34. Furthermore, Article 246 read with List 1 Entry 2 of the Seventh
Schedule of Constitution of India envisages Armed Forces of the Union of
India and includes “Naval, Military and Air Forces; any other armed
forces of the Union”.
35. Also, learned counsel for petitioners had drawn attention of this
Court to Notification dated 22.12.2003 issued by the Ministry of Finance,
Government of India as well as Circular dated 6th August, 2004 issued by
the Ministry of Home Affairs, Government of India.
36. The Contributory Pension Scheme was introduced vide Notification
dated 22.12.2003, which was to be implemented w.e.f. 01.01.2004. The
Notification dated 22.12.2003 reads as under:-
(Department of Economic Affairs)
New Delhi, the 22nd December, 2003
approved on 23rd August, 2003 the proposal to
implement the budget announcement of 2003-2004
W.P.(C) 12712/2021 & connected petitions Page 42 of 58
relating to introducing a new restructured defined
contribution pension system for new entrants to
Central Government service, except to Armed Force,
in the first stage, replacing the existing system of
defined benefit pension system.
(i) The system would be mandatory for all new
recruits to the central Government service from 1st of
January, 2004 (except the armed forces in the first
stage). The monthly contribution would be 10
percent of the salary and DA to be paid by the
employee and matched by the Central Government.
However, there will be no contribution from the
Government in respect of individuals who are not
Government employees. The contributions and
investment returns would be deposited in a non-
withdrawable pension tier-I account. The existing
provisions of defined benefit pension and GPF would
not be available to the new recruits in the central
Government service.
(ii) In addition to the above pension account,
each individual may also have a voluntary tier-II
withdrawable account at his option. This option is
given as GPF will be withdrawn for new recruits in
Central Government service. Government will make
no contribution into this account. These assets
would be managed through exactly the above
procedures. However, the employee would be free to
withdraw part or all of the „second tier‟ of his money
anytime. This withdrawable account does not
constitute pension investment, and would attract no
special tax treatment.
(iii) Individuals can normally exist at or after
age 60 years for tier-I of the pension system. At exit
the individual would be mandatorily required to
W.P.(C) 12712/2021 & connected petitions Page 43 of 58
invest 40 percent of pension wealth to purchase an
annuity (from an IRDA-regulated life insurance
company). In case of Government employees the
annuity should provide for pension for the lifetime of
the employee and his dependent parents and his
spouse at the time of retirement. The individual
would receive a lump-sum of the remaining pension
wealth, which he would be free to utilize in any
manner. Individuals would have the flexibility to
leave the pension system prior to age 60. However,
in this case, the mandatory annuitisation would be
80% of the pension wealth.
Architecture of the New Pension System
(iv) It will have a central record keeping and
accounting (CRA) infrastructure, several pension
fund managers (PFMs) to offer three categories of
schemes viz. option A, B and C.
(v) The participating entities (PFMs and CRA)
would give out easily understood information about
past performances, so that the individual would able
to make informed choices about which scheme to
choose.
2. The effective date for operationalisation of the
new pension system shall be from 1st of January,
37. A perusal of aforesaid Notification dated 22.12.2003 shows that in
Para (i) thereof it has been categorically mentioned that „the system would
be mandatory for all new recruits to the central Government service from
1st of January 2004 (except the armed forces in the first stage)”. Meaning
thereby that the Scheme was not applicable to Armed Forces and the
W.P.(C) 12712/2021 & connected petitions Page 44 of 58
Armed Forces will be governed by the Old Pension Scheme already
existing. Also, the said Notification stipulated that the scheme shall not be
applicable to Armed Forces and they shall be governed by the Old
Pension Scheme already existing.
38. The Supreme Court in Akhilesh Prasad Vs. Union Territory of
Mizoram, (1981) 2 SCC 150, has held as under:-
“10. The first question which falls for
determination by us is as to whether the
appellant was a member of the “Armed Forces
of the Union” within the meaning of that
expression as occurring in sub-section (2) of
Section 197 of the Criminal Procedure Code.
The expression “Armed Forces” has been
defined in clause (a) of sub-section (3) of
Section 132 CrPC as meaning the military,
naval and air forces, operating as land forces
and as including any other armed forces of the
Union so operating. That definition however, is
limited in its application, by the express
language of that clause itself, to the
interpretation of Sections 129 to 132 of the
Criminal Procedure Code and the argument,
therefore, advanced in support of the impugned
judgment that that definition will not govern the
interpretation of Section 197 cannot be said to
lack plausibility. Nor has it been shown to us
that the expression “Armed Forces of the
Union” as occurring in sub-section (2) of
Section 197 CrPC is governed by a definition
occurring elsewhere (either in the Criminal
Procedure Code or in any other statute). In this
situation it must be given its ordinary meaning
which, it appears to us, would certainly not be
limited to the inclusion of only the military,
naval and air forces of the Union. In this
W.P.(C) 12712/2021 & connected petitions Page 45 of 58
connection a reference to the contents of Entry
2 in List I of the Seventh Schedule to the
Constitution of India may be made with
advantage. They are: “Naval, military and air
forces; any other armed forces of the Union”.
The entry clearly envisages armed forces other
than the three well known forces of the State,
namely the naval, military and air forces. All
that remains to be done, therefore, is to find out
answers to the following two questions:
(a) Is the CRPF a force?
(b) If question (a) is answered in the
affirmative, whether CRPF is an armed force?
In our opinion the answer to both the questions
must be given in the affirmative in view of the
provisions of sub-section (1) of Section 3 of the
CRPF Act which unfortunately do not appear
to have been brought to the notice of the
learned Single Judge. That sub-section reads
thus: “There shall continue to be an armed
force maintained by the Central Government
and called the Central Reserve Police Force.”
11. The sub-section itself declares in no
uncertain terms that the CRPF is an armed
force of the Central Government which is the
same thing as saying that it is a part of the
“Armed Forces of the Union”. We may make it
clear, however, that even if the provisions just
above extracted were not available our answer
to the two questions would still be in the
affirmative. The reason given by the learned
Single Judge for holding a contrary opinion,
namely, that the force was “only a reserve
force and not a regular force” by which
expression he appears to mean that it was not a
continually operating force does not command
our concurrence. Just because the CRPF is a
reserve force it does not follow that it is not a
W.P.(C) 12712/2021 & connected petitions Page 46 of 58
regularly operating force and no provision of
the Central Reserve Police Force Act has been
pointed out to us such as may lend support to a
contrary view.
12. We hold that the CRPF squarely falls
within the expression “Armed Forces of the
Union” as used in sub-section (2) of Section
167 of the CrPC.”
39. The decision in Akhilesh Prasad (Supra), clearly shows that CRPF
is a part of armed Forces. Also, the Ministry of Home Affairs,
Government of India, vide Circular dated 6th August, 2004 clarified that
the Central Forces under the administrative control of the Ministry of
Home Affairs have been declared as Armed Forces of the Union. The
Circular dated 6th August, 2004 notified as under:-
The Chief Secretary of all the States/UTs
Subject:-Clarification about Armed Forces of Union
regarding Central Police Force.
There has been query in the past from State
Government regarding clarification about Armed
Force of Union regarding Central Police Force. In this
regard, I am directed to mention the following Central
Force; under the administrative control of the Ministry
of Home Affairs have been declared an Armed Force of
the Union.
Vide Section 4 of the Border Security Force Act,
W.P.(C) 12712/2021 & connected petitions Page 47 of 58
Vide section 3 of the Central Industrial Security
Force Act, 1968 (Amended by Act 14 of 1983).
3. Central Reserve Police force
Vide Section 3 of the Central Reserve Police Force,
Vide Section 4 of the Indo Tibetan Border Police
Vide Section 4 of the National Security Guard Act,
2. In addition, Assam Reifies and SSB are also two
Central Forces under Ministry of Home Affairs which
perform under guarding and internal security duties
New Acts for governing these forces are under process
and the Bill will be introduced in parliament shortly.
The status of these forces is also equivalent to that of
other Central Force under Ministry of Home Affairs
mentioned above. Hence, they may also be allowed
similar benefits.
40. Thereafter, the Department of Pension and PW, Government of
India issued another Office Memorandum dated 17.02.2020, relevant
portion thereof reads as under:-
New Delhi, the 17th February, 2020
Subject: Coverage under Central Civil Services
(Pension) Rules, 1972, in place of National Pension
W.P.(C) 12712/2021 & connected petitions Page 48 of 58
System, of those Central Government employees
whose selection for appointment was finalized
before 01.01.2004 but who joined Government
service on or after 01.01.2004
The undersigned is directed to say that
consequent on introduction of National Pension
System (NPS) vide Ministry of Finance (Department
of Economic Affairs) Notification No.5/7/2003-ECB
& PR dated 22.12.2003, all Government servants
appointed on or after 01.01.2004 to the post in the
Central Government service (except armed forces)
are mandatorily covered under the scheme. The
Central Civil Services (Pension) Rules, 1972 and
other connected rules were also amended vide
Notification dated 30.12.2003 and, after the said
amendment, those rules are not applicable to the
Government servants appointed to Government
service after 31.12.2003.”
41. A perusal of the afore-noted Notification dated 22.12.2003;
Clarification letter dated 06.08.2004 and Office Memorandum dated
17.12.2020 shows that the BSF, CISF, CRPF, ITBP, NSG, Assam Rifles
and SSB are part of Central Forces under the Ministry of Home Affairs
and Notification dated 22.12.2003 shall not be applicable on personnel of
these Forces.
42. At this juncture, we wish to indicate upon another Office
Memorandum dated 13.04.2018, issued by the Ministry of Home affairs,
Government of India, which is as under:-
Government of India
W.P.(C) 12712/2021 & connected petitions Page 49 of 58
Dated, the 13th April, 2018
Sub: Regarding implementation of the Court
order passed in WP(C) No.3834/2013 titled
Parmanand Vadav & 125 others v. UOI and other
& W.P.(C) 2810/2016 titled Inspector Rajendra
Singh & 29 others Vs. UOI and other before the
Hon'ble High Court of Delhi.
SSC conducted CPO's (SI) Exam during the year
2002, for which final result was declared in the
month of August, 2003. BSF issued an offer of
appointment during the month of December 2003
directing candidates to report Training Centres in
the month of January, 2004.
2. In the meantime, the Government of India had
introduced the New Pension Scheme vide GOI
Notification dtd. 22.12.2003, which is applicable to
the personnel who have entered into Government
service w.e.f. 01.01.2004 and onwards.
3. Some BSF candidates approached Hon'ble High
Court of Delhi with a prayer that issuing
appointment letter after 01.01.2004 is the
Administrative lapse on the part of CAPFs/BSF,
hence, they may be extended the benefits of Old
Pension Scheme by way of filing WP(C)
No.3834/2013 & WP(C) 2810/2016 before the
Hon'ble High Court of Delhi, which was allowed
vide order dtd. 12.02.2015 &. 27.03.2017
respectively.
4. This Ministry after detailed deliberation & in
Consultation of DoLA & DoP & PW agree to
implement the Judgment i.e. to extend the benefits of
Old Pension Scheme without any back wages
seniority in case of petitioner & other similar placed
W.P.(C) 12712/2021 & connected petitions Page 50 of 58
left over candidates.
5. Now, Competent authority desires that all other
CAPFs (except BSF) may also check their record
and if any similar case is found they may examine &
take appropriate action on the similar lines by taking
reliance of BSF case, to avoid similar litigation in
future.”
43. The extract of afore-noted Office Memorandum shows that the
Ministry of Home Affairs had directed all the CAPFs to extend the benefit
of OPS to the petitioners in W.P.(C) 3834/2013, Paramnand Yadav
(Supra) to the petitioners therein as well as other similarly situated
personnel. However, respondents in their counter affidavit have taken the
stand that pursuant to decision of this Court in W.P.(C) 1358/2017,
Shyam Kumar Chaudhary (Supra) dated 09.04.2019, the DoP& PW
noted that there were factual errors in the said decision and so, decided to
implement the order of the this Court only to the case of petitioners in the
said petitions. Learned counsel for the respondents submitted that the
direction to grant OPS to the petitioners therein was in persona and not in
rem. Whereas, the Supreme Court in State of U.P. and Ors. Vs. Arvind
Kumar Srivastava and Ors. 2015 (1) SCC 347 has held that when a set of
employees has been given relief by the Court, then all other identically
placed persons need to be treated alike by extending the benefit to them.
The plea of respondents that there were factual errors in judgment dated
09.04.2019 passed in W.P.(C) No. 1358/2017, is highly unacceptable to
this Court, in view of the fact that the said order was upheld by the
W.P.(C) 12712/2021 & connected petitions Page 51 of 58
44. It is pertinent to mention here that learned counsel arguing on
behalf of the petitioners had laid much emphasis on the contents of
Notification dated 22.12.2003 and OM dated 17.02.2020, wherein it has
been specifically mentioned that the NPS shall be applicable on the
Central Government employees, „except armed forces‟. Learned counsel
submitted that in all the earlier decisions rendered by the Courts, the
contents of Notification dated 22.12.2003 and OM dated 17.02.2020 have
not been dealt with. Thus, the larger issue that the Notification dated
22.10.2003 is applicable only upon Central Government employees and
not „armed forces‟, has not been dealt at all.
45. To refute submission of petitioners‟ counsel, learned Standing
Counsel submitted that in all the earlier decisions by this Court as well as
other High Courts, the Notification dated 22.12.2003 and OM dated
17.02.2020 have been referred and eligible personnel have been given
benefit of OPS. Learned Standing Counsel had insisted upon the fact that
in the appointment letters issued to the petitioners, it has been mentioned
that the “appointee shall be governed by the new pension scheme
introduced by the Government of India vide M.F. (CGA) OM No.1(7) (2)
2003 TA-11 dated 7-1-2004 read with OM No.1(7) (2) (2003) TA 67-74
dated 4-2-2004.”
46. On this aspect we find that the appointment letters have been issued
to the petitioners in the year 2004-2005 after conclusion of the selection
process, which took extra inordinate long time as the advertisement /
notification for appointment was released in the year 2002 & 2003 for
different posts in the Forces. It is not misplaced to mention here that the
W.P.(C) 12712/2021 & connected petitions Page 52 of 58
advertisement [in W.P.(C) No. 12712/2021 i.e. the lead matter] inviting
applications for recruitment of Assistant Commandant in
BSF/CRPF/ITBP/SSB noted that “ on joining an organization a candidate
shall be governed by the Act and Rules as applicable to that organization
and as amended from time to time”.
47. It is the settled position that appointments have to be strictly made
in terms stipulated in the advertisement and any breach would tantamount
to vitiation of the selection process.
48. In a recent decision in ASI/Pharma Biswa Prakash Jena Vs.
Union of India, (2022) 5 HCC (Del) 319 : 2022 SCC OnLine Del 2544,
wherein one of us (Suresh Kumar Kait, J) being member while dealing
with a case where the petitioners working as Pharmacist in CRPF had
sought parity with Pharmacist in ITBP, which was denied to them by the
Union of India on the ground that they were appointed beyond the period
of advertisement and selection process, had relied upon decisions in
Parmanand Yadav (Supra), Avinash Singh (Supra) and Rajendra Singh
(Supra) and held as under:-
“11. The respondents cannot change the terms and
conditions of service which were applicable at the
time of advertisement to the prejudice of the
petitioners and that too after their recruitment
process is long over. It is trite law that terms and
conditions of service applicable at the time of
notification of the post cannot be altered to the
prejudice of the incumbents to the post after the
selection process is completed, as in the instant case.
W.P.(C) 12712/2021 & connected petitions Page 53 of 58
15. In the case on hand before us, admittedly, the
advertisement was issued much prior to the alleged
cut-off date i.e. 29-3-2004 and the recruitment
process of the aforesaid petitioners already stood
concluded on 26-2-2004 prior thereto. Further the
petitioners cannot be penalised for the delay in their
appointment after the alleged cut-off date.
Furthermore, the petitioners will not and in fact
should not lose their seniority because of the
lethargy of the respondents when they cannot be
blamed for it and therefore the respondents cannot
take benefit of their own wrong.
16. Accordingly, we hold that the denial of the
extension of the benefits by the respondents to the
petitioners is discriminatory and arbitrary and thus
violative of Articles 14 and 16 of the Constitution of
49. Also, a Coordinate Division Bench of this Court in W.P.(C) No.
10028/2009, titled as Amarendra Kumar Vs. Union of India & Ors.,
decided on 02.08.2010 on the similar issue of grant of OPS observed and
held as under:-
“23. There is an additional ground which
persuades us to hold that the respondents have not
been fair to the petitioner. It is an admitted
position also that the Defined Benefit Pension
System of the respondents came to an end on 31st
24. The new Defined Contribution Pension
Scheme which came into effect from 1st April,
2004 requires a monthly contribution from the
salary equivalent to 10% of the salary and
W.P.(C) 12712/2021 & connected petitions Page 54 of 58
dearness allowance.
25. The impact of issuance of the
appointment letter with effect from 27th April,
2004 would be that the petitioner would be
deprived of the benefit of the earlier scheme which
came to an end on 31st December 2003. He would
therefore be required to make a monthly
contribution from his salary in accordance with
the new scheme. Compared against the earlier
scheme, this could certainly work tremendous
financial loss to the petitioner.
26. The justification of the respondents to the
effect that the delay occurred because the matter
was pending for correspondence with higher
authorities is also not supported by the record.
There is no warrant at all for shuttling the
petitioner between the Group Centre and Staff
Selection Committee and back when the medical
facility for undertaking the X-ray was available at
the Group Centre. In addition, it is not as if the
respondents were continuously in correspondence
over a period of four and a half months since the
issuance of the provisional appointment letter.
27. We may also note that the provisional
letter of appointment dated 24th November, 2003
does state that the appointment is provisional.
However the only consequence thereof is that
upon the completion of the stated formalities,
issuance of the formal appointment letter would
follow. The appointment obviously has to relate
back to the date of his original appointment.
28. In view of above discussion, it has to be
held that the petitioner is deemed to have been
regularly appointed with effect from 22nd
December, 2003. The petitioner would also be
entitled to the benefit of the Defined Pension
Scheme which was valid till 31st December, 2003.
The respondents are required to ensure that all
W.P.(C) 12712/2021 & connected petitions Page 55 of 58
benefits which are admissible to the petitioner
pursuant to the appointment with effect from 22nd
December, 2003 including seniority, etc. are made
available to him.”
50. The afore-noted decisions in ASI/Pharma Biswa Prakash Jena and
Amarendra Kumar (Supra), make it clear that the terms which governed
at the time of issuance of advertisement for appointment, shall hold the
field for the applicants.
51. There is no dispute to the position that at the time of publication of
the advertisements, the OPS was in force. Also, when the advertisement
itself states that the selected candidates shall be governed by the Act and
Rules in force and thereafter, the Notification dated 22.12.2003 and OM
dated 17.02.2020 specifically mention that the all the Central Government
employees “except the armed forces”, shall be governed by the NPS,
therefore, we do not find any reason for respondents to issue the
appointment letters to the personnel of armed forces mentioning that “the
appointee shall be governed by the new pension scheme introduced by the
Government of India”. When vide Circular dated 6th August, 2004 issued
by the Ministry of Home Affairs, Government of India has itself declared
that the Central Forces under the administrative control of Ministry of
Home Affairs are armed Forces of Union, the position cannot be disputed
that the Armed Forces shall remain excluded from coverage under
Notification dated 22.12.2003. We find that despite the fact that „armed
forces‟ are exception to Notification dated 22.12.2003, , however, without
application of mind, have mentioned in the appointment letters of the
candidates that the recruits shall be governed by NPS. Apparently, Article
W.P.(C) 12712/2021 & connected petitions Page 56 of 58
246 read with List 1 Entry 2 of the VII Schedule of Constitution of India
envisages Armed Forces of the Union of India includes “Naval, Military
and Air Forces; any other armed forces of the Union”, so, the personnel of
CAPFs deserve to get the benefit of OPS, as has been granted vide
Notification dated 22.12.2003.
52. The Hon‟ble Supreme Court and High Courts in various decisions
have appreciated the role of armed forces in safeguarding our country.
Having great respect for the personnel of forces, the Courts as well as
Government of India, have always ensured that any policy decision should
not be detrimental to their interest. The contents of Notification dated
22.12.2003 as well as OM dated 17.02.2020 clearly demonstrate that
when policy decision to implement NPS was taken, the armed Forces of
the country were kept out of its domain. Accordingly, we are of the
considered opinion that the Notification dated 22.12.2003 as well as OM
dated 17.02.2020 are required to be implemented in their true essence.
53. In the light of what we have observed above, we find that
Notification dated 22.12.2003 as well as OM dated 17.02.2020 create a
bar upon the respondents to not implement the Notification dated
22.12.2003, whereby New Contributory Pension Scheme („NPS‟) has
been executed w.e.f. 01.01.2004, upon the personnel of the paramilitary
Forces i.e. Central Reserve Police Force („CRPF‟), Sashtra Seema Bal
(„SSB‟), Border Security Force („BSF‟) and Central Industrial Security
Force („CISF‟) Indo Tibetan Border Police („ITBP‟) (CAPFs) etc.
Consequentially, the impugned Office Memorandums, Signals and
Orders, to the extent it deny the benefit of Old Pension Scheme to the
W.P.(C) 12712/2021 & connected petitions Page 57 of 58
petitioners and similarly situated personnel of the armed forces, are
hereby quashed.
54. A mandamus by way of direction is accordingly issued to the
respondents to issue an Order to CAPFs mentioned above to implement
the Notification dated 22.12.2003 as well as OM dated 17.02.2020 in
essence noted above. It is made clear that the Notification dated
22.12.2003 as well as OM dated 17.02.2020 granting the benefit of Old
Pension Scheme shall be applicable in rem. Meaning thereby, Old Pension
Scheme shall not only be applicable in the case of petitioners herein but
all the personnel of CAPFs at large. Accordingly, necessary orders be
issued within eight weeks.
55. With aforesaid directions, these petitions and pending application,
if any, are accordingly disposed of.
W.P.(C) 12712/2021 & connected petitions Page 58 of 58
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The Delhi High Court has ruled that the benefit of Old Pension Scheme (OPS) in accordance with CCS (Pension) Rules, 1972 shall be applicable for all the personnel of Central Armed Police Forces and directed the Centre to issue necessary orders within eight weeks.
The division bench of Justice Suresh Kumar Kait and Justice Neena Bansal Krishna, in its decision on a batch of 82 petitions seeking quashing of orders denying the benefit of OPS to personnel of CRPF, BSF, CISF and ITBP, said the notification dated 22.12.2003 as well as OM dated 17.02.2020 granting the benefit of Old Pension Scheme "shall be applicable in rem."
The court said Notification dated 22.12.2003 for New Contributory Pension Scheme (NPS) shows that in Para (i) it has been categorically mentioned that 'the system would be mandatory for all new recruits to the central Government service from 1st of January 2004 (except the armed forces in the first stage)'.
"Meaning thereby that the Scheme was not applicable to Armed Forces and the Armed Forces will be governed by the Old Pension Scheme already existing. Also, the said Notification stipulated that the scheme shall not be applicable to Armed Forces and they shall be governed by the Old Pension Scheme already existing," said the court.
It noted that the Supreme Court's decision in Akhilesh Prasad Vs. Union Territory of Mizoram, (1981) clearly shows that CRPF is a part of armed Forces. "Also, the Ministry of Home Affairs, Government of India, vide Circular dated 6th August, 2004 clarified that the Central Forces under the administrative control of the Ministry of Home Affairs have been declared as Armed Forces of the Union," said the court.
The bench further took note of an Office Memorandum issued by the Department of Pension and PW, Government of India. "A perusal of the afore-noted Notification dated 22.12.2003; Clarification letter dated 06.08.2004 and Office Memorandum dated 17.12.2020 shows that the BSF, CISF, CRPF, ITBP, NSG, Assam Rifles and SSB are part of Central Forces under the Ministry of Home Affairs and Notification dated 22.12.2003 shall not be applicable on personnel of these Forces," said the court.
Referring to another OM issued by the Ministry of Home Affairs, the court said the MHA "had directed all the CAPFs to extend the benefit of OPS to the petitioners in W.P.(C) 3834/2013, Paramnand Yadav to the petitioners therein as well as other similarly situated personnel. However, respondents in their counter affidavit have taken the stand that pursuant to decision of this Court in W.P.(C) 1358/2017, Shyam Kumar Chaudhar dated 09.04.2019, the DoP& PW noted that there were factual errors in the said decision and so, decided to implement the order of the this Court only to the case of petitioners in the said petitions."
Observing that the Supreme Court in State of U.P. and Ors. Vs. Arvind Kumar Srivastava and Ors. 2015 (1) SCC 347 has held that when a set of employees has been given relief by the Court, then all other identically placed persons need to be treated alike by extending the benefit to them, the court said that the plea of respondents that there were factual errors in judgment dated 09.04.2019 "is highly unacceptable to this Court, in view of the fact that the said order was upheld by the Supreme Court."
The court further said that when vide Circular dated 6th August, 2004 issued by the MHA, Government of India has itself declared that the Central Forces under the administrative control of MHA are armed Forces of Union, the position cannot be disputed that the Armed Forces shall remain excluded from coverage under Notification dated 22.12.2003.
"We find that despite the fact that 'armed forces' are exception to Notification dated 22.12.2003, , however, without application of mind, have mentioned in the appointment letters of the candidates that the recruits shall be governed by NPS. Apparently, Article 246 read with List 1 Entry 2 of the VII Schedule of Constitution of India envisages Armed Forces of the Union of India includes “Naval, Military and Air Forces; any other armed forces of the Union”, so, the personnel of CAPFs deserve to get the benefit of OPS, as has been granted vide Notification dated 22.12.2003," said the court.
The bench further said that the Supreme Court and High Courts in various decisions have appreciated the role of armed forces in safeguarding our country. "Having great respect for the personnel of forces, the Courts as well as Government of India, have always ensured that any policy decision should not be detrimental to their interest," it added.
The court said the contents of Notification dated 22.12.2003 as well as OM dated 17.02.2020 clearly demonstrate that when policy decision to implement NPS was taken, the armed Forces of the country were kept out of its domain. "Accordingly, we are of the considered opinion that the Notification dated 22.12.2003 as well as OM dated 17.02.2020 are required to be implemented in their true essence," it added.
"In the light of what we have observed above, we find that Notification dated 22.12.2003 as well as OM dated 17.02.2020 create a bar upon the respondents to not implement the Notification dated 22.12.2003, whereby New Contributory Pension Scheme (NPS) has been executed w.e.f. 01.01.2004, upon the personnel of the paramilitary Forces i.e. Central Reserve Police Force (CRPF), Sashtra Seema Bal (SSB), Border Security Force (BSF) and Central Industrial Security Force (CISF) Indo Tibetan Border Police (ITBP) (CAPFs) etc. Consequentially, the impugned Office Memorandums, Signals and Orders, to the extent it deny the benefit of Old Pension Scheme to the petitioners and similarly situated personnel of the armed forces, are hereby quashed."
The petitioners in the case were appointed after 01.01.2004. While the process for appointment was on, the Centre issued a notification dated 22.12.2003 for implementation of NPS with effect from 01.01.2004. The court was told that the benefit of OPS was extended to only those personnel whose recruitment process was completed by 31.12.2003 but joined the force after 01.01.2004. The petitioners before the Court were denied the benefit of OPS for the reason that their recruitment process was completed after 01.01.2004 i.e. when the NPS was in force.
While some of the personnel in CAPFs were granted the benefit of OPS previously on account of court orders, the decision was not applied across the board. It was argued before the court that despite various court decisions and the fact that the Supreme Court has clarified that CRPF is an Armed Force of the Union of India and the notification dated 06.08.2004 issued by the Government of India stating that the CRPF is the Armed Force of the Union, the authorities are not covering the petitioners under the OPS, as has been applied in case of Army, Air force and Navy.
Centre in response argued that Ministry of Finance, Government of India, vide Notification dated 22.12.2003 implemented NPS for new entrants to Central Government Service, except to Armed Forces, thereby replacing the OPS. Since the petitioners joined the services after coming into force the aforesaid Notification, these petitioners were not entitled to OPS under the CCS(Pension) Rules, 1972, the government argued.
Old Pension Scheme shall be applicable to all the personnel of Central Armed Police Forces: Delhi High Court directs Centre to issue necessary orders within 8 weeks pic.twitter.com/8KEHguOkkd— Live Law (@LiveLawIndia) January 12, 2023
Title: PAWAN KUMAR AND ORS
|
HIGH COURT OF JUDICATURE FOR RAJASTHAN AT
S.B. Civil Writ Petition No. 545/2022
1. Shobha W/o Kishana Ram D/o Shri Igya Ram, Aged About
18 Years, By Caste Jat, R/o Beganiyo Ki Dhani, Bairdo Ka
Bas, Cherai, Osian, District Jodhpur.
2. Kishana Ram S/o Shri Rupa Ram, Aged About 21 Years,
By Caste Jat, R/o Bhalu Jongsar, Tehsil Shekhala, District
Jodhpur.
1. State Of Rajasthan, Through Chief Secretary, Ministry Of
Home Affairs, Jaipur (Raj.).
2. Director General Of Police, Govt. Of Rajasthan Police Head
Quarter, Jaipur.
3. The Superintendent Of Police, Jodhpur.
4. The S.h.o., Police Station Dechu, District Jodhpur.
5. The S.h.o., Police Station Osian, District Jodhpur.
----Respondents
For Petitioner(s) : Mr. Ankit Choudhary through VC
JUSTICE DINESH MEHTA
1. By way of the present writ petition, the petitioners have
sought police protection.
2. Upon perusal of the pleadings, this Court does not find any
serious threat perception to the petitioners and, therefore, there is
no requirement of passing any order for providing police
protection to them in light of judgment of Hon’ble the Supreme
Court in the case of Lata Singh Vs. State of U.P. & Anr. (AIR
2006 SC 2522), wherein it has been held that the Courts are not
meant to provide protection to such youths, who have simply fled
to marry according to their own wishes.
3. There is no material or reason for this Court to conclude that
the petitioners’ life and liberty are at peril. There is not even an
iota of evidence to evince that private respondents (relatives of
the petitioner No.1) are likely to cause physical or mental assault
to the petitioners.
4. If the petitioners have decided to marry, they must muster
the audacity and possess tenacity to face and to persuade the
society and their family to accept the step they have taken.
5. In a deserving case, the Court can provide security to the
couple, but cannot lend them the support they have sought. They
have to learn to support each other and face the society.
6. If any person misbehaves or manhandles them, the Courts
and police authorities are there to come to their rescue, but they
cannot claim security as a matter of course or right.
7. The petition is, therefore, rejected.
8. The stay application also stands disposed of accordingly.
9. Needless to observe that petitioners have already moved a
representation before the Superintendent of Police, Sriganganagar.
In case the Superintendent of Police finds a real threat perception,
he will do the needful in accordance with law.
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The Rajasthan High Court has denied Police protection to a runaway couple, apprehending threat from their families. The court observed that there is no material or reason for it to conclude that the petitioners' life and liberty are at peril. Justice Dinesh Mehta further observed, "If the petitioners have decided to marry, they must muster the audacity and possess tenacity to face...
The Rajasthan High Court has denied Police protection to a runaway couple, apprehending threat from their families. The court observed that there is no material or reason for it to conclude that the petitioners' life and liberty are at peril.
Justice Dinesh Mehta further observed,
"If the petitioners have decided to marry, they must muster the audacity and possess tenacity to face and to persuade the society and their family to accept the step they have taken."
In the instant case, it noted that there is not even an iota of evidence to evince that the respondents (relatives of the petitioner No.1) are likely to cause physical or mental assault to the petitioners.
It added,
"In a deserving case, the Court can provide security to the couple, but cannot lend them the support they have sought. They have to learn to support each other and face the society."
The petitioner no. 1, an 18 years old girl and petitioner no. 2, a 21 years old boy, had approached the Court by way of writ petition seeking police protection.
While denying them relief, the court observed that if any person misbehaves or manhandles the couple, then Courts and police authorities are there to come to their rescue. However, the couple cannot claim security as a matter of course or right.
Relying on the case of Lata Singh Vs. State of U.P. & Anr. (AIR 2006 SC 2522) the court found that there is no serious threat perception to the petitioners and, therefore, there is no requirement of passing any order for providing police protection to them. In Lata Singh's case, the Apex Court had held that the Courts are not meant to provide protection to such youths, who have simply fled to marry according to their own wishes.
The court also observed that petitioners have already moved a representation before the Superintendent of Police, Sriganganagar. In case the Superintendent of Police finds a real threat perception, he will do the needful in accordance with law, added the court.
Case Title: Shobha and Anr. v. State of Rajasthan and Ors.
|
This is the third bail application under Section 439 of the
Code of Criminal Procedure, 1973 filed on behalf of the applicant
for grant of bail. His first bail application i.e. M.Cr.C.No.2103/2021
was disposed of on 27/04/2021 and second bail application i.e.
M.Cr.C. No.50669/2021 was dismissed as withdrawn on
09/12/2021. The applicant is in custody since 22/06/2018 in
connection with Crime No.451/2017 registered at Police Station –
Rau, District Indore (M.P.) for commission of offence punishable
under Section 363, 366, 376(2)(i), 376(2)(n) and 506-II of the
Indian Penal Code, 1860 read with Section 5(m)/6 and 5(l/6) of the
Protection of Children from Sexual Offences Act, 2012.
As per prosecution story, the prosecutrix was minor and was
11 years of age at the time of incident. She knows the present
applicant before the incident. The present applicant abducted the
minor prosecutrix and kept her at his sister's village and committed
rape upon her and threatened her to kill if she disclosed anyone
about the incident. The sister of the prosecutrix lodged a missing
person report in respect of the prosecutrix. Accordingly, crime has
been registered against the present applicant.
Learned counsel for the applicant submits that the applicant
is innocent person and he has been falsely implicated in this
offence. He is in custody since 22/06/2018. Investigation is over
and charge sheet has been filed. Nine witnesses including the
prosecutrix have been examined by the prosecution. Medical
evidence is not supporting the prosecution version. Final conclusion
of the trial is likely to take sufficient long time. The applicant is
permanent resident of Indore district. Under the above
circumstances, prayer for grant of bail may be considered on such
terms and conditions, as this Court deems fit and proper.
Per contra, learned counsel for the respondent / State
opposes the bail application and prays for its rejection by
submitting that the prosecutrix was only 11 years of the age at the
time of incident and she categorically stated in her statement against
the present applicant. Hence, he is not entitled to be enlarged on
Counsel for the objector also opposes the bail application and
prays for its rejection.
I have perused the impugned order of the trial Court as well
as the case diary.
Considering all the facts and circumstances of the case,
nature and gravity of offence, arguments advanced by the learned
counsel for the applicant and also taking note of the fact that as per
the scholar register prosecutrix's date of birth is 08/03/2006,
therefore, she was below 12 years at the time of incident.
Prosecutrix has been examined before the trial Court and she has
categorically stated in her statement that present applicant abducted
and committed rape upon her several times.
At the stage of consideration of bail, marshalling of the
prosecution witnesses is not permitted as per the judgment of
Hon'ble Supreme Court in the case of Satish Jaggi Vs. State of
Chattisgarh & Ors. (Cr.A.No.651/2007) decided on 30/07/2007,
wherein it has been held as under:-
“At the stage of granting of bail, the Court can only go
into the question of prima facie case established for granting
bail. It cannot go into the question of credibility and
reliability of the witnesses put up by the prosecution. The
question of credibility and reliability of prosecution witnesses
can only be tested during the trial.”
As per the law laid down by the Hon'ble Supreme Court in
Satish Jaggi (supra), this Court can only go into the question of the
prima facie case established for granting bail. At the stage of
consideration of bail, this Court cannot go into the question of
credibility and reliability of the witnesses put up by the prosecution.
In the statement recorded before the trial Court, the prosecutrix has
categorically stated against the present applicant about the aforesaid
In view of the evidence available on record, as above,
without commenting upon the merits of the case, at this stage, this
Court is not inclined to enlarged the applicant on bail.
Accordingly, the third bail application filed by applicant
under Section 439 of Cr.P.C. is dismissed.
Certified copy as per rules.
|
Considering the categorical statement made by a 11-yr-old rape victim, the Madhya Pradesh High Court recently rejected the bail application of the accused stating that at the stage of consideration of bail, marshalling of the prosecution witnesses is not permitted.
Justice Anil Verma observed:
"At the stage of consideration of bail, marshalling of the prosecution witnesses is not permitted as per the judgment of Hon'ble Supreme Court in the case of Satish Jaggi Vs. State of Chattisgarh & Ors. (Cr.A.No.651/2007) decided on 30/07/2007."
In that case, the Supreme Court had said that at the stage of granting of bail, the Court can only go into the question of prima facie case established for granting bail. It cannot go into the question of credibility and reliability of the witnesses put up by the prosecution, and the same can only be tested at the time of trial.
The Court was dealing with a third bail application under Section 439 CrPC filed on behalf of the applicant for grant of bail. The applicant is in custody since 22/06/2018 in connection with Crime registered for alleged commission of offences under Section 363, 366, 376(2)(i), 376(2)(n) and 506-II of the Indian Penal Code, 1860 read with Section 5(m)/6 and 5(l/6) of the Protection of Children from Sexual Offences Act, 2012.
The case of the prosecutrix is that she was a minor and was 11 years of age at the time of incident. She knew the applicant before the incident. The applicant abducted her and kept her at his sister's village and committed rape upon her and threatened her to kill if she disclosed to anyone about the incident. The sister of the prosecutrix lodged a missing person report in respect of the prosecutrix. Accordingly, crime was registered against the present applicant.
Applicant argued before court that he is innocent person and has been falsely implicated in this offence. He said that Investigation is over and charge sheet has been filed. Nine witnesses including the prosecutrix have been examined by the prosecution.
Further he said that Medical evidence is not supporting the prosecution version and final conclusion of the trial is likely to take sufficient long time. He said under the aforesaid circumstances prayer for grant of bail may be considered on such terms and conditions, as this Court deems fit and proper.
The Counsel for state opposes the bail application and prayed for its rejection by submitting that the prosecutrix was only 11 years of the age at the time of incident and she categorically stated in her statement against the present applicant. Hence, he is not entitled to be enlarged on bail.
After perusing the records the court noted that the girl was below 12 years at the time of incident.
"Prosecutrix has been examined before the trial Court and she has categorically stated in her statement that present applicant abducted and committed rape upon her several times." Court said.
In view of the above, and the decision of the Supreme Court in Satish Jaggi (supra) court decided that a case for bail is not made out.
Case Title: ASHOK v. THE STATE OF MADHYA PRADESH AND ANR.
|
Petitioners are the accused in S.C. No. 215 of 2019 on the
file of the Assistant Sessions Court, Kasaragod which
originated from the final report in Crime No. 646 of 2017 of
Kasaragod police station where offences under Sections 143,
147, 148, 341, 323, 324, 506(ii), 308 read with Section 149 of
the IPC are alleged against the accused persons, ten in number.
2. The allegation is that on 23.07.2017 at 12.30 hours, at
Thalankara old harbour and then around the premises of Malik
Dinar hospital, accused persons along with some identifiable
persons formed an unlawful assembly and in prosecution of
their common object, owing to the reason that CW1 Sanal had
taken a lady of a different community in a car, the 1 st accused
wrongfully restrained and intimidated that he would be killed;
2nd accused beat him with a wooden reaper, a dangerous
weapon and caused him injuries; accused Nos. 3 and 4
assaulted him with iron rods. Now the final report has been
laid with the above-stated allegations and the case is pending
before the Assistant Sessions Court. It appears that the trial has
already commenced. Petitioners have moved this Court seeking
to quash the proceedings on the ground of settlement reached
with the 2nd respondent.
3. I heard the learned counsel for the petitioners and also
the learned Senior Public Prosecutor who seriously opposed the
application for settlement.
4. Even though the learned Senior Public Prosecutor has
confirmed the settlement reached with the 2nd respondent, who
had given a further statement stating that the matter is settled,
has opposed quashing the proceedings. According to him,
petitioners were virtually doing moral policing. Moreover,
accused Nos. 4 and 5 are having serious criminal antecedents
to their credit. The 4th accused is involved in fifteen other cases
including two cases alleging offence under Section 307 of the
IPC and three other Sessions Cases, whereas the 5 th petitioner
has seven other cases including offence under Section 307 of
the IPC.
5. After hearing counsel on both sides, I am also
convinced that the proceedings cannot be quashed as prayed
for by the petitioners. Firstly the trial of the case is in progress,
the memorandum of evidence indicates that at least seven
witnesses have already been examined on the side of the
prosecution. Secondly, it is a case in which a violent mob was
attacking the 2nd respondent ostensibly for no reason. The
reason shown is that he had removed a lady from another
community in the car. As rightly suggested by the learned
Senior Public Prosecutor if such a case is allowed to be
quashed on the ground of settlement, that would send a wrong
message to the public.
6. In the decision reported in Gian Singh v. State of
Punjab and others [2012 (10) SCC 303] the Hon'ble Apex
Court has laid down guidelines while considering application
for quashing proceedings on the ground of settlement, invoking
jurisdiction under Section 482 of the Cr.P.C. According to the
Apex Court securing ends of justice is the ultimate guiding
factor. Serious offences like murder, rape, dacoity, etc, or other
offences of mental depravity under the Indian Penal Code or
offences of moral turpitude under special statutes are saved
from being considered for quashing on the ground of
settlement. Following these guidelines, it is certain that
petitioners are not entitled to get the proceedings quashed.
7. Firstly, as noticed earlier, it was a case in which a mob,
armed with deadly weapons were rounding up and assailing the
2nd respondent on the ground that he had removed a lady of a
different community in a car. In other words, they were doing
moral policing. That means this is an offence involving mental
depravity. Moreover, brutal attack was unleashed against an
unarmed single person and caused him serious injuries.
8. Again, at least a few of the petitioners are fugitive
criminals having very grave criminal antecedents. In the
circumstances, the alleged settlement reached with the 2 nd
respondent cannot be reckoned for quashing the proceedings
under Section 482 of the Cr.P.C. The Criminal Miscellaneous
Case is devoid of merits and is liable to be dismissed.
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The Court observed that moral policing involves "mental depravity".The Kerala High Court recently ruled that moral policing is an offence that involves mental depravity and that such cases cannot be quashed on the ground of settlement between the accused and complainant. Justice K. Haripal was adjudicating upon a case in which a violent mob had attacked an unarmed man for taking a woman belonging to a different community in his car. "... it was a...
The Kerala High Court recently ruled that moral policing is an offence that involves mental depravity and that such cases cannot be quashed on the ground of settlement between the accused and complainant.
Justice K. Haripal was adjudicating upon a case in which a violent mob had attacked an unarmed man for taking a woman belonging to a different community in his car.
"... it was a case in which a mob, armed with deadly weapons were rounding up and assailing the 2nd respondent on the ground that he had removed a lady of a different community in a car. In other words, they were doing moral policing. That means this is an offence involving mental depravity. Moreover, brutal attack was unleashed against an unarmed single person and caused him serious injuries."
Although it was informed that the parties had arrived at a settlement, the Court declined to quash the proceedings noting that it would send the wrong message to the society.
"If such a case is allowed to be quashed on the ground of settlement, that would send a wrong message to the public."
The plea was filed through Advocate S Jiji by 10 individuals accused of committing offences punishable under Sections 143, 147, 148, 341, 323, 324, 506(ii), 308 r/w Section 149 of the Indian Penal Code.
The prosecution case was that the accused formed an unlawful assembly outside a hospital and in the prosecution of their common object, threatened, restrained and injured the defacto complainant merely because they suspected him to have a woman from a different community in his vehicle.
They moved the High Court to quash the proceedings before the Assistant Sessions Court on the ground that of the settlement. The de facto complainant had also affirmed that they had reached a settlement.
However, Senior Public Prosecutor Sanal T.R while confirming the settlement, objected to quashing the proceedings and argued that the accused were engaged in moral policing.
After recording the submissions of the parties, the Court agreed wth the Public Prosecutor.
Reliance was placed on the Supreme Court decision in Gian Singh v State of Punjab & Ors. where it was held that while considering an application for quashing proceedings on the ground of settlement, the end goal is to secure the ends of justice. It was also elaborated that serious offences like murder, rape, dacoity, etc, or other offences of mental depravity under the IPC or offences of moral turpitude under special statutes are saved from being considered for quashing on the ground of settlement.
As such, the Judge refused to quash the case against the accused citing that moral policing is an offence of mental depravity.
Case Title: Muhammed Nazar & Ors. v State of Kerala & Anr.
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The Appeal has been filed seeking to set aside the order dated
11.9.2018 passed by the Additional District and Sessions Judge, Fast
Track Court, Vellore made in S.C.No.90 of 2017.
2. The appellant stands convicted and sentenced as under:-
302 IPC Life imprisonment with fine of Rs.2000/- in
default to undergo rigorous imprisonment for
another period of one year
352 IPC Simple imprisonment for 3 months.
3. Brief facts of the prosecution case:-
i) A complaint, Ex.P1 came to be filed by one Poongodi (PW1) of
Valathur in Kanchipuram Taluk, the crux of which is as under:-
She is the niece of one Chinnaponnu (the deceased). The said
Chinnaponnu (the deceased) was living with the appellant/accused for
about two years at Thiruparkuttai and she had no issues. PW1 came
to know from her aunt (the deceased) that the appellant/accused was
already a married man having three girl children. She further came to
know that two daughters of the appellant had once visited the house of
the deceased and thereafter, the appellant/accused had started
demanding the deceased to transfer the said house property in the
name of his daughters born through his first wife to which, she had
refused and thereupon, the appellant/accused, having developed doubt
on the conduct of the deceased, used to pick up frequent quarrel with
her and beat her. On such issue, the deceased had lodged a complaint
with All Women Police Station and the dispute between the parties was
settled by the police by way of compromise, however, on 20.9.2010,
when the deceased was sitting in front of her house and PW1 was
sitting on the road near the house of one Santhi, which is located
opposite to the house of the deceased, the appellant had come to the
spot and picked up quarrel with the deceased saying that the house
belongs to his wife and children and therefore, the deceased should go
out of that house, to which, the deceased had refuted and thereupon,
the appellant, picked up a wooden log which was lying in the nearby
place and gave a blow on the head of the deceased. PW1 and the
deceased raised alarm. When PW1 tried to prevent the appellant, she
was pushed down by the appellant. Again they raised alarm seeking
help. One Munusamy and Murugesan, viz., P.Ws.2 and 3, who were
near the spot, had come to their rescue, however, the appellant, had
picked up a small knife, which, he was hiding in his waist, and inflicted
a lacerated injury on the neck of the deceased. The deceased fell
down near the lamp post. The appellant/accused ran away from the
spot. The injured was taken to C.M.C. Hospital, Vellore in an
ambulance, where, she succumbed to the injuries after some time.
ii) On receipt of the complaint, Ex.P1, the Sub Inspector of
Police, Thiruvalam Police Station (PW14) had registered the same in
Crime No.272 of 2010 for the offence punishable under Section 302
IPC and sent the FIR, Ex.P15 to the Judicial Magistrate.
iii) The Circle Inspector of Katpadi (PW18), who took up the
investigation on receipt of telephonic call by the Sub Inspector of
Police (PW14) on 21.9.2010, had visited the scene of occurrence and
prepared observation mahazar, Ex.P2 and rough sketch, Ex.P21 in the
presence of witnesses Sadagopan (PW4) and one Paulraj. Thereafter,
he had arranged for taking photographs of the scene of occurrence by
the photographer John @ Sambamoorthy (PW12). The photographs
and the CD containing compilation of the photographs have been
marked as M.Os.1 and 2.
iv) Thereafter, PW18 had collected blood stains and sample earth
from the scene of occurrence in the presence of the witnesses
Sadagopan and Paulraj under seizure mahazar. The signature of the
witnesses are marked as Ex.P3. Thereafter, at 9.00 am on 21.9.2010,
PW18 had conducted inquest on the dead body at CMC Hospital,
Vellore in the presence of panchayatdars and P.Ws.1 to 3, Ramadoss
and Velu and prepared the inquest report, Ex.P23. Thereafter, He sent
the dead body to Government Hospital, Vellore through the Head
Constable Raja for conducting post mortem. Subsequently, he had
enquired Dr.Ginamaryann Chandy (PW16), who had given first aid to
the victim and record her statement.
v) Dr.Ginamaryann Chandy (PW16), who was on duty at 8.10
pm on 20.9.2010 examined the victim and found that she could not
speak and put her on ventilator as she had difficulty in breathing. She
further found that the victim had bleeding on her face, lower abdomen
and lungs and she had sustained head injury and since the victim had
some impact in her brain, she could not speak. Since there was
substantial bleeding, the victim was provided with drips, however, she
died within two hours of her admission. PW16 had recorded in the
medical records at the time of admission to the effect that the victim
had sustained injuries due to the assault by her husband, however,
she could not specifically state as to who had given her such
information. She had opined that the vital injuries found on the
deceased could be inflicted with the weapon of offence viz., wooden
log, M.O.4. The death summary issued by PW16 is Ex.P17 and the
death intimation given by the Hospital to the police is Ex.P18.
vi) On receipt of information, PW18 had reached Karikari
Hospital Bus Stand and arrested the appellant/accused, who was
standing there and recorded his voluntary confession in the presence
of witnesses Saravanan and Gokulan viz., P.Ws.5 and 6 and recorded
the same under Ex.P24. On such voluntary confession, PW18 had
seized the blood stained knife M.O.3 produced by the appellant which
was hidden in his waist under seizure mahazar, Ex.P25 and the
wooden log M.O.4 from the drainage near the house of the appellant
as identified by him, in the presence of P.Ws.5 and 6 under seizure
mahazar, Ex.P26.
vii) On return to the police station, PW18, on examining the
appellant/accused, found blood stains on the shirt of the
appellant/accused and recovered the blood stained shirt, M.O.5 under
Form 95. Thereafter, he remanded the appellant to judicial custody.
viii) On 22.9.2010, PW18 had further investigated the case,
enquired the witnesses, Malliga, Murugan, Dhanalakshmi, John @
Sambamoorthy, Senthil, Santhi, Arumugam, Baskar and Janakiraman
and recorded their statements. Then PW18 had issued requisition to
the Inspector of Police, All Women Police Station, Vellore to get the
records in the complaint in Receipt No.723 of 2010 lodged by the
deceased. On 28.9.2010, PW18 had arranged for sending the material
objects to the Forensic Sciences Department.
ix) The Scientific Officer of Forensic Sciences Laboratory, Vellore,
PW17, who received 1-blood stained earth, 2-sample earth, 3-knife, 4-
blood stained wooden log, 5-blood stained shirt, 6-blood stained saree,
7-blood stained inskirt for examination, had found that items 1 and 3
to 7 contained blood stains while item 2 contained no blood stains and
sent them to Serological Department for further examination. The
report issued by PW17 is Ex.P19. He vouchsafed the serology report,
Ex.P20 issued by the Junior Scientific Officer of Forensic Sciences
Department to the effect that the report reveals that items 1, 3 to 7
contained human blood and items 5, 6 and 7 contained 'B' group
blood, but, it was inclusive to say the blood group with regard to
items 1, 3 and 4.
x) On 1.10.2010, PW18 had submitted requisition to the Chief
Judicial Magistrate to record the Statements the eyewitnesses, viz.,
P.Ws.1 and 2 and the witnesses to confession statement viz., P.Ws.5
and 6 under Section 164 Cr.P.C. and on 6.10.2010 he had summoned
the said witnesses and produced them before Judicial Magistrate V,
xi) Judicial Magistrate V, Vellore (PW13), on request from the
police, had recorded the 164 Statements of P.Ws.1, 2, 5 and 6 under
Exs.P11 to P14 respectively.
xii) Thereafter, on 30.1.2011, PW18 had collected from the
Inspector of Police, All Women Police Station, Vellore, the case details
and the complaint lodged by the the deceased (Ex.P27) and enquired
the Inspector of Police Suriyakala and recorded her statement. On
the same day, he had received the post mortem certificate, Ex.P29 and
enquired the Doctor, who conducted the post mortem and recorded his
statement.
xiii) The Doctor, who had conducted the post mortem had opined
that the deceased would appear to have died of shock and hemorrhage
due to the injuries sustained on scalp and lungs.
xiv) Thereafter, he had issued requisition for the report in
respect of M.Os.6 and 7, which were recovered from the dead body
under the Special Report, Ex.P28. Subsequently, on transfer of
service, PW18 had handed over the case records to his successor,
xv) The Inspector of Police, PW19, who took further investigation
of the case, enquired PW17-Jaganathan, the Scientific Officer,
Venkatesan, the Village Administrative Officer, Ammundi and Head
Constable Raja and recorded their statements. On completion of
investigation, PW19 had filed final report for the offences punishable
under sections 302 and 352 IPC as against the appellant/accused.
4. Learned Judicial Magistrate, Katpadi has taken the case on file
in P.R.C.No.2 of 2012 under Sections 302, 352 IPC against the
appellant/accused and finding that the case is to be tried exclusively
by the Court of Sessions, after complying with the requirements under
Section 207 Cr.P.C., committed the case to the Principal District Court,
Vellore and in turn, it was made over to the Additional Sessions Judge
(Fast Track Court), Vellore in S.C.No.90 of 2017.
5. When the appellant/accused was confronted with the charges,
he denied the same, pleaded not guilty and sought to be tried.
6. During trial, the prosecution had examined 19 witnesses as
P.Ws.1 to 19, marked 29 documents as Exs.P1 to P29 and marked
M.Os.1 to 7. Though the appellant pleaded not guilty, no oral and
documentary evidence was let in on the side of the defence.
7. On completion of trial, the Trial Court found the
appellant/accused guilty for the offences punishable under Section 302
and 352 IPC and sentenced him thereunder as indicated above.
8. Aggrieved against the judgment of conviction and sentence,
the present Appeal has been filed by the appellant/accused.
9. The sum and substances of the submissions made by the
Mr.T.Ravi, learned counsel appearing for the appellant is as under:-
i) The judgment of conviction and sentence rendered by the Trial
Court is against law as it failed to note that the eyewitnesses viz.,
P.Ws.1 to 3 turned hostile and the other vital witnesses viz., P.Ws.7 to
11 also turned hostile and there is no admissible evidence as against
the appellant to convict him and the prosecution has not established its
case beyond all reasonable doubts.
ii) The Trial Court has erred in relying upon the Statements of
the witnesses recorded under Section 164 Cr.P.C. to convict the
appellant when such statements were recorded on 6.10.2010 with
regard to the occurrence said to have taken place on 20.9.2010.
iii) When the law makes it clear that Statements recorded under
Section 164 Cr.P.C. can either be utilised only to corroborate or
contradict the witnesses vis-a-vis statement made in court and it
cannot be a substantive piece of evidence, the Trial Court has erred in
relying upon such statements to render the conviction against the
appellant, when especially the prosecution has not taken any steps to
contradict the witnesses who have turned hostile.
iv) The Trial Court has erred in ignoring the fact that P.Ws.5 and
6, arrest and recovery mahazar witnesses had also turned hostile and
therefore, the prosecution case with regard to arrest, confession and
recovery of material objects is also unbelievable.
v) The Trial Court has failed to note that no documents were
marked by the prosecution to establish the title of the deceased to the
house property and thereby the prosecution has failed to prove the
motive attributed to the appellant that he had demanded for transfer
of ownership in the name of his daughters and on refusal of the same
by the deceased, he had attacked her.
vi) The judgment of the Trial Court merely relying on the
statements of the witnesses recorded under Section 164 Cr.P.C. has
rendered the conviction against the appellant, which is inadmissible in
law and therefore, it is liable to be set aside.
10. Mr.Babu Muthumeeran, learned Additional Public Prosecutor
would submit that it is not a novel thing in criminal cases, and turning
of the prosecution witnesses hostile cannot be a ground for acquittal
of the accused. He would further submit that the prosecution
witnesses had given a clear and cogent statement before the learned
Judicial Magistrate which is corroborated by the medical evidence viz.,
matching of blood group of the deceased with that of the blood stains
found on the dress of the appellant recovered on the basis of the
voluntary confession statement of the appellant and therefore, he
prays for dismissal of Criminal Appeal.
11. In reply, the learned counsel for the appellant would submit
that the witnesses for the recovery of weapon of offence have turned
hostile and therefore, the recovery of the alleged cloths from the
appellant cannot be believed. He would further submit that mere
matching of the blood group of the blood samples taken from the
victim and the blood stained cloths alleged to have been recovered
from the appellant/accused cannot lead to the conclusion that the
appellant/accused had been involved in the commission of crime in
question. In support of the same, he would rely upon the decision of
the Apex Court in Sonvir @ Somvir vs. State of NCT of Delhi
12. Heard the learned counsel appearing for the parties and
perused the materials available on record.
13. The appellant is alleged to have assaulted the deceased,
with whom, he was living together for about twenty years, enraged by
her action in lodging a complaint against him to the effect that he
gives torture to her demanding that the house property standing in her
name has to be transferred in the name of his children born through
his wife and the deceased had succumbed to the injuries she had
sustained.
14. It is a peculiar case where almost all the independent
prosecution witnesses including the witnesses to the arrest and seizure
of the weapon of offence produced by the prosecution have turned
hostile. The alleged author of Ex.P1 complaint, who is the niece of the
deceased, has also turned hostile. Virtually, except the official
witnesses, no independent witness has supported the case of the
prosecution and the prosecution has not taken proper initiative to
prove its case. However, the Trial Court has proceeded to rely upon
the statements recorded from such witnesses under Section 164
Cr.P.C. viz., Exs.P11 to P14 to render the conviction against the
15. The law is well settled that a statement recorded under
Section 164 of the Code of Criminal Procedure is not substantive
evidence and it can be used to corroborate the statement of a witness
and it can be used to contradict a witness. In Ram Kishan Singh vs.
Harmit Kaur and another (1972) 3 SCC 280, it has been laid down
that a statement recorded under Section 164 of the Code of Criminal
Procedure is not substantive evidence and it can be used to
corroborate the statement of a witness and it can be used to contradict
a witness.
16. In Baij Nath Sah vs. State of Bihar (2010) 6 SCC 736
also, the Apex Court has held that mere statement of the prosecutrix
recorded under Section 164 Cr.PC. is not enough to convict the
appellant and it is not substantive evidence and it can be utilised only
to corroborate or contradict the witness vis-a-vis statement made in
court.
17. In the case on hand, the Trial Court has held that though the
eyewitnesses to the occurrence had turned hostile during their
examination in court, their statements recorded under Section 164
Cr.P.C. corroborates the medical evidence viz., the wounds found on
the dead body as revealed in the post mortem certificate and thereby
found the appellant guilty. However, strangely, the Trial Court has
ignored the fact that when the occurrence is said to have taken place
on 20.9.2010 and the post mortem certificate was issued on
21.9.2010, the statements from the witnesses had been recorded on
6.10.2010. Such a long delay in recording the statements of the
witnesses speaks much.
18. Further, the Trial Court, taking presumption available under
Section 80 of the Indian Evidence Act, 1872, had proceeded to rely
upon Exs.P11 to P14, the statements recorded from the witnesses
under Section 164 Cr.P.C. to render conviction against the appellant.
19. Of course, there a presumption is available under Section 80
of the Indian Evidence Act, 1872 as to the documents produced as
record evidence. The legal provision reads as under:-
"80. Presumption as to documents produced as
record of evidence.—Whenever any document is
produced before any Court, purporting to be a record
or memorandum of the evidence, or of any part of
the evidence, given by a witness in a judicial
proceeding or before any officer authorized by law
to take such evidence, or to be a statement or
confession by any prisoner or accused person, taken
in accordance with law, and purporting to be signed
by any Judge or Magistrate, or by any such officer as
aforesaid, the Court shall presume— that the
document is genuine; that any statements as to the
circumstances under which it was taken, purporting
to be made by the person signing it, are true, and
that such evidence, statement or confession was duly
taken."
20. The question as to whether such presumption is applicable to
the statement (memorandum of identification proceedings) recorded
by a Magistrate under Section 164 Cr.P.C. has been elaborately dealt
with by a Three Judges Bench in Sheo Raj vs. State (1963) SCC
OnLine All 123) and held that a statement made under Section 164,
Cr. P. C. is not 'evidence', is not made in a 'judicial proceeding' and is
not given under oath. It has been held therein as under:-
" .... it is open to any person to make a statement
or confession before a Magistrate (of a certain
class) in to course of an investigation, or at any
time thereafter, but before the commencement of
an enquiry or trial and the statement or confession
will be recorded by the Magistrate under Sec.164
and is not subject to the bar imposed by Sec. 162.
Such a statement, being a previous statement,
may be used only to contradict the person when he
appears as a witness at the enquiry or trial of the
offence or to corroborate him. A statement made
by a person before a Magistrate of the required
class holding an identification proceeding and
recorded by him is a statement governed by Sec.
164; there is no dispute on this point. It is to be
noted that Sec. 164 simply mentions “any
statement or confession made to him in the course
of an investigation” and not “any statement or
confession made to him in the course of an
investigation by any witness or accused person.” It
does not state whose statement of confession is to
be recorded by him Actually at this stage, when the
offence is still under investigation, there are no
witnesses and no accused persons (except in the
sense of persons against whom a charge of having
committed the offence is levelled and is under
investigation). It is only after the investigation has
been completed that the police can decide who is
to be the accused of the offence before a
Magistrate and who are to be the witnesses in the
case. Till then there can be no decision about the
status of a person as an accused person or as a
witness and all persons examined by the police
during the investigation are mere interrogatories or
informants or statement-makers. The provisions in
the Code relating to investigation do not refer to
any person as a witness. Though “witness” is not
defined in the Evidence Act, Secs. 118, 119 and
120 of it make it clear that a witness is a person
who testifies before a court. Under section 59 all
facts may be proved by oral evidence and “oral
evidence” is defined in Sec. 3 to mean and include
all statements made by witnesses before a court.
The definition of “proved” shows that the question
of proof of a fact arises only before a court so long
as there is no court there is no question of a fact
being proved and consequently no question of oral
evidence and witnesses. Evidence can be given
only in respect of the existence or non-existence of
a fact in issue or a relevant fact, vide Sec. 5. Which
is a fact in issue or a relevant fact is a matter that
arises only before a court because only before a
court there can arise the question whether a
certain fact is proved or not. These provisions of
the Evidence Act make it clear that no person can
claim the status of a witness except in relation to a
proceeding before a court. It follows that while an
offence is still under investigation there is nobody
who can be called “witness” and there is no
statement that can be called “evidence.”
A Magistrate is certainly authorized by law to take
evidence but only in a case of which he has taken
cognizance; he is not authorised by law to take
evidence in a case pending before another
Magistrate or in a case that has already been
decided by himself or another Magistrate or in a
case that has not yet reached a court. He is not
authorized by law to record evidence of any person
in any matter and in any circumstance. A
Magistrate recording a statement under Sec. 164 is
not authorized by law to take evidence for the
simple reason that he is not charged with the fluty
(sic for "duty") of deciding any case and there is
no matter to be proved or disproved before him.
The other alternative is that the evidence must
have been given in a judicial proceeding. When a
Magistrate records a statement under Sec. 164
there are only two proceedings in which it can
possibly be said to have been recorded, (1) the
investigation by the police and (2) the proceeding
of recording the statement itself. The investigation
by the police is not a judicial proceeding. “Judicial
proceeding” is not defined in the Evidence Act, but
since we are concerned with a statement recorded
under the Code of Criminal Procedure the question
whether it was recorded in a judicial proceeding or
not must be decided in the light of the definition
given in the code. “Judicial proceeding” is defined
in Sec. 4(1)(m) to mean “any proceeding in the
course of which evidence is or may be legally taken
on oath.” If evidence may be legally taken on oath
it is enough even though evidence is actually not
taken on oath. An investigation is a judicial
proceeding only if it can be predicated that in the
course of it evidence may be legally taken on oath.
“In the course of which” means “in the carrying out
of which” or “in the conducting of which” and not
“during the pendency of which.” Anything that is
done while a proceeding is pending is not
necessarily done in the course of it; if it is not a
part of it or is done by one not connected with it, it
is not done in the course of it even though it is
done during its pendency. In the course of an
investigation no evidence can be legally taken on
oath by anybody concerned in the investigation.
The police have no power to administer oath. As I
explained earlier, there is no question of evidence
being taken in the course of an investigation. If a
Magistrate does something while an investigation is
pending it is not done in the course of it. An
investigation which would not be a judicial
proceeding if a Magistrate did not do something
during its pendency does not become one simply
because he does something, such as recording a
statement under Sec. 164. Since an investigation is
to be done solely by the police nothing that he
does during its pendency becomes a part of it and
can be said to have been done in the course of it.
Consequently even if a Magistrate can legally
administer oath to a person before recording his
statement under Sec. 164 the investigation does
12. Thus I find that the statement made by a
person under Sec. 164 cannot be said to be made
in a judicial proceeding. Sec. 80, Evidence Act, is,
therefore, not applicable to it."
21. The principles laid down in the above decision make it clear
that presumption under Section 80 of the Indian Evidence Act, 1872
cannot be drawn to rely upon the Statements of witnesses recorded
under Section 164 Cr.P.C during investigation to render a conviction.
22. Coming to the issue of bloodstains found in the shirt of the
appellant M.O.5, recovered at his instance, this court finds that the
witness to such recovery have also turned hostile, which, in turn,
makes the recovery itself unbelievable. Of course, it is the case of the
prosecution that the shirt of the appellant was found to have stained
with human blood of “B” group, which was the same “blood group” as
that of the deceased. However, it is relevant to note that mere
matching of blood group itself is not sufficient to convict the accused.
In Sonvir @ Somvir vs. State of NCT of Delhi (2018) 8 SCC 24, it
has been held as under:-
3. Alleged recovery of bloodstained shirt
As per the prosecution, a bloodstained shirt
was recovered at the instance of Sonvir alias Somvir
(Appellant-Accused 2) from his room in the house of
Teja Chaudhary, at the time of his arrest. The
bloodstained shirt was sent for analysis to the FSL. As
per the FSL report (Ext. PW 33/A), the shirt allegedly
recovered from Sonvir alias Somvir (Appellant-
Accused 2) was found to be stained with human
blood of “B” group, which was the same “blood
group” as that of the deceased.
In para 20, the High Court held the recovery of
the bloodstained shirt from Sonvir alias Somvir
(Appellant-Accused 2) to be incriminating against
him, since the blood samples taken from the
bedsheet at the scene of crime, were also found to be
of the same blood group.
It is relevant to note that as per the FSL report
(Ext. PW 33/A), both the bloodstained shirt allegedly
recovered from Sonvir alias Somvir (Appellant-
Accused 2) and the blood samples taken from the
bedsheet at the scene of crime were found to be
stained with human blood of “B” group.
The mere matching of the blood group of the
blood samples taken from the bedsheet at the scene
of crime, and the bloodstained shirt recovered from
Sonvir alias Somvir (Appellant-Accused 2) cannot
lead to the conclusion that the appellant had been
involved in the commission of the crime.
On this issue, reliance can be placed on two
decisions of this Court in Prakash v. State of
Karnataka [Prakash v. State of Karnataka, (2014) 12
SCC 133 : (2014) 6 SCC (Cri) 642] , paras 41 and 45
and Debapriya Pal v. State of W.B. [Debapriya Pal v.
State of W.B., (2017) 11 SCC 31 : (2017) 3 SCC
(Cri) 832] , para 8 wherein this Court while deciding
cases based on circumstantial evidence had held that
mere matching of the blood group cannot lead to the
conclusion of the culpability of the accused, in the
absence of a detailed serological comparison, since
millions of people would have the same blood group.
In the present case, the prosecution has not
proved that the room from where the bloodstained
knife and bloodstained shirt were allegedly
recovered, was in the exclusive possession of the
appellant. The prosecution case is that the said room
was in the house owned by one Teja Chaudhary. The
prosecution did not examine the said Teja Chaudhary
to prove that the said room was rented to Sonvir
alias Somvir and/or was in the exclusive custody of
the appellant.
Therefore, the recovery of the bloodstained
shirt from Sonvir alias Somvir (Appellant-Accused 2)
cannot be used as an incriminating piece of
evidence."
23. In this case, as stated above, the eyewitnesses (including
the close relative of the deceased) and the recovery witnesses have
not supported the case of the prosecution. Such being fatal to the
prosecution case, though there is medical evidence to the effect that
the bloodstains on the shirt of the appellant was found to belong "B"
group and it matched with the blood group of the deceased, PW17,
Scientific Officer, during his cross examination, had admitted that in
Ex.P20 serology report, it has not been specifically mentioned as to
whether the blood group is 'B' positive or 'B' negative. Even assuming
that it matches completely, that alone cannot lead to a conclusion of
the culpability of the appellant/accused in the absence of a detailed
serological comparison and it cannot be used as an incriminating piece
of evidence as against the appellant, when especially, the recovery of
the shirt of the appellant is unbelievable in view of the fact that the
witness to the recovery had also turned hostile.
24. Therefore, this court is of the view that the prosecution has
not proved its case beyond all reasonable doubt and in such
circumstances, it may not be proper to convict the appellant/accused
on the materials available on record. However, the Trial court, having
misled itself into a specious reasoning that there is corroboration
between the statements of the witnesses recorded under Section 164
Cr.P.C and the medical evidence, had proceeded to render a conviction
against the appellant, which, we cannot endorse, in view of the law
laid down in the decisions cited supra.
25. In view of the above, the judgment of conviction and
sentence rendered by the Additional District and Sessions Judge, Fast
Track Court, Vellore made in S.C.No.90 of 2017 dated 11.9.2018 is set
aside and the appellant is acquitted of all the charges. The appellant is
set at liberty. Bail bond executed, if any, shall stand cancelled. Fine
amount paid, if any, shall be refunded to the appellant.
1. Additional District and Sessions Judge,
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The Madras High Court recently set aside an order of conviction of a man accused of murder after observing that the trial court was misled in corroborating the statement of witnesses recorded under S. 164 CrPC with the medical evidence when in fact all the independent witnesses had turned hostile. Justice S Vaidyanathan and Justice AD Jagdish Chandira took note of the judicial...
The Madras High Court recently set aside an order of conviction of a man accused of murder after observing that the trial court was misled in corroborating the statement of witnesses recorded under S. 164 CrPC with the medical evidence when in fact all the independent witnesses had turned hostile.
Justice S Vaidyanathan and Justice AD Jagdish Chandira took note of the judicial precedents where the courts have clearly laid down that the statements recorded under Section 164 of the CrPC are not substantive evidence and that they can only be used to corroborate/contradict the statement of a witness.
In the present case, the appellant was alleged to have assaulted the deceased with whom he had been living for twenty years resulting in her death. It was alleged that the appellant was already married and had three daughters. When he demanded the deceased to transfer her title in the house property in the name of the daughters, she refused the same. The appellant then developed doubt on the conduct of the deceased and used to pick up frequent quarrel with her and beat her, it was alleged. The deceased lodged a complaint before the police and the issue was settled. However, later the appellant attacked the deceased with a wooden log and she succumbed to her injuries. The appellant was convicted by the trial court under Sections 302 and 352 of IPC.
The appellant submitted that the order of conviction was against law as the trial court failed to take note of the fact that all the eyewitnesses had turned hostile and there was no admissible evidence against the appellant to convict him. The trial court had erred in relying upon the statements of the witnesses recorded under Section 164 CrPC to convict the appellant. He submitted that the law clearly stated that statements recorded under Section 164 Cr.P.C. can either be utilised only to corroborate or contradict the witnesses vis-a-vis statement made in court and it cannot be a substantive piece of evidence. Thus, the trial court had erred in ordering conviction especially when the prosecution had not taken any steps to contradict the witnesses who turned hostile.
It was further submitted that since the mahazar witnesses had turned hostile, the recovery of material objects itself was unbelievable. Further, the prosecution had also not established the title of the deceased to the house property which was the alleged motive for the offense.
The respondent state, on the other hand argued that prosecution witnesses turning hostile could not be a ground for acquittal of the accused. He further submitted that the prosecution witnesses had given a clear and cogent statement (under Section 164 CrPC) before the Judicial Magistrate which is corroborated by the medical evidence.
The court, after hearing both the sides reiterated the legal position that a statement recorded under Section 164 of the Code of Criminal Procedure is not substantive evidence and it can be used to corroborate the statement of a witness and it can be used to contradict a witness. The same was upheld by the court in RamKishan Singh vs. Harmit Kaur and another (1972) 3 SCC 280 and later in BaijNath Sah vs. State of Bihar (2010) 6 SCC 736.
The High Court noted that in the present case, the trial court had proceeded to hold that even though the eyewitnesses had turned hostile, their statements under Section 164 CrPC corroborates the medical evidence. The trial court however, had ignored the fact that though the occurrence took place on 20.09.2010, the statements were recorded on 06.10.2010. "Such a long delay in recording the statements of the witnesses speaks much."
The trial court had taken presumption under Section 80 of the Indian Evidence Act, 1872 as to documents produced as record of evidence. However, in Sheo Raj vs. State (1963) SCC OnLine All123) a three judge bench had clearly laid down that presumption under Section 80 of the Evidence Act was not applicable to the statements recorded by a Magistrate under Section 164 CrPC as these statements were not 'evidence', was not made in a 'judicial proceeding' and was not given under oath.
Even though the prosecution contended that bloodstains found on the shirt of the appellant was the same blood group as that of the deceased, the court held that mere matching of blood group itself was not sufficient to convict the accused as was held in the case of Sonvir @ Somvir vs. State of NCTof Delhi (2018) 8 SCC 24.
Taking all these into consideration, the court opined that the prosecution had not proved its case beyond all reasonable doubt and in such circumstances, it was not proper to convict the appellant/accused on the materials available on record. The trial court had misled itself into a specious reasoning that there is corroboration between the statements of the witnesses recorded under Section 164 Cr.P.C and the medical evidence. Observing that the same could not be endorsed by the court, the court set aside the order of conviction of the trial court and acquitted the appellant of all charges.
Case Title: Siva v. State by Inspector of Police
Case No: Criminal Appeal No.642 of 2018
Counsel for the Appellant: Mr.T.R.Ravi
Counsel for the Respondent: Mr.Babu Muthumeeran, Additional Public Prosecutor
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1. Rule. Rule made returnable forthwith and, with the consent of
the counsels for the parties, heard finally.
This petition under Article 227 of the Constitution of India
calls in question the legality, propriety and correctness of an order
passed by the learned Additional Sessions Judge, Pune on 3 rd
September, 2021 on an application (Exhibit 20), in Sessions Case
No. 188 of 2019 whereby the prayer of the petitioner to discharge
him from the prosecution came to be rejected.
2. The background facts necessary for determination of this
petition can be stated as under:
a] Ms. S (hereinafter referred to as “prosecutrix”) is an actress
by profession. Her marriage was solemnized on 21 st November,
2002. However, in the year 2004, the said marriage was dissolved
by mutual consent. One of the friends of the prosecutrix introduced
the petitioner to her. In the year 2008, the petitioner represented to
her that he would assist her in procuring a flat at Mumbai under
Government’s 10% discretionary quota. The petitioner induced the
prosecutrix to part with a sum of Rs. 8 lakhs allegedly for payment
to the middlemen. The flat could not be allotted till the month of
March/April, 2010. The petitioner repaid a sum of Rs. 5 lakhs. The
petitioner, however, developed intimacy with the prosecutrix.
b] In June, 2010 the petitioner proposed the prosecutrix. The
petitioner represented that he was a bachelor. The petitioner met
the mother and brother of the prosecutrix and gained their
confidence as well. After the prosecutrix and her family members
agreed to the said proposal, the marriage of the prosecutrix was
solemnized with the petitioner on 23rd July, 2010 at Kita Cottage,
Varsova, Andheri(w). Pre-marriage ceremonies were held at Flat
No. 901, Pyramid Towers, Varsova, Andheri(w), which was taken on
rent. None from the family members of the petitioner attended the
said marriage. The petitioner claimed that since the marriage was
inter caste, his family members did not attend the same.
c] In the month of September, 2010 a lady “M” called the
prosecutrix and informed her that she was the wife of the petitioner
and they had two issues out of the said wedlock. When confronted,
the petitioner stated that the previous marriage was dissolved. The
petitioner assured to show the divorce papers and also get the
certificate of marriage with prosecutrix. In the meanwhile, the
petitioner made the prosecutrix to open a joint account with ICICI
Bank, Andheri branch, and withdrew huge amounts from the said
account behind the back of the prosecutrix.
d] On 23rd July, 2010 the prosecutrix and the petitioner
celebrated their first marriage Anniversary at Hotel Tunga, Andheri
(E), Mumbai. The said event was reported in newspapers. “M” came
to the house of the prosecutrix. In her presence, the petitioner
conceded that the documents evidencing the alleged divorce
between him and “M”, which he had shown to the prosecutrix, were
false. The petitioner claimed that he would ensure that separate
provision was made for her first wife and children.
e] Prosecutrix and her mother met the parents of the petitioner.
It transpired that the petitioner had deceived them by firstly
representing that he was a bachelor and, later on, claiming that his
first marriage was dissolved. The petitioner had allegedly obtained a
forged marriage certificate as well. The prosecutrix thus instituted a
petition for annulment of marriage in the Family Court, Pune.
3. The prosecutrix, thereafter, approached Dattwadi police
station, Pune and lodged report leading to registration of C.R. No.
148 of 2013 for the offences punishable under sections 420, 406,
467, 471, 474, 376, 323, 504, 506(i) and 494 of Indian Penal Code,
1860. Post completion of investigation, charge-sheet came to be
lodged against the petitioner.
4. The petitioner preferred an application for discharge
contending, inter alia, that the prosecutrix had made false and
baseless allegations against the petitioner. Those allegations were
vague. No specific date, time and place was mentioned with regard
to any of the events which allegedly transpired. Moreover, the
version of the prosecutrix was at variance with the averments in
the petition for annulment of marriage. There was an inordinate
delay of more than three years in lodging the first information
report. Thus, the charge against the petitioner was groundless.
Therefore, the petitioner deserved to be discharged.
5. The application was resisted by the prosecution.
6. The learned Additional Sessions Judge, after apprisal of the
contentions in the application, reply thereto and the report under
section 173 of the Code of Criminal Procedure and the documents
annexed with it as well as the submissions canvassed across the bar,
was persuaded to reject the application. The learned Additional
Sessions Judge was of the view that there were sufficient grounds to
proceed against the petitioner.
7. Being aggrieved, the petitioner has invoked the writ
jurisdiction of this Court.
8. I have heard Mr. Purwant, learned counsel for the petitioner,
Mr. Patil, learned APP for the State and Ms. Kantawala, learned
counsel for respondent No. 2/prosecutrix. With the assistance of the
learned counsel for the parties, I have perused the material on
record including the report under section 173 of the Code and the
documents annexed with it.
9. Mr. Purwant, learned counsel for the applicant, canvassed a
two-fold submission. Firstly, the claim of the prosecutrix that her
marriage was solemnized with the petitioner is required to be
repelled for the reason that there is no material to show that the
marriage between the prosecutrix and her husband, solemnized in
the year 2002, was legally dissolved. This negatives the very
premise of the prosecution case that the petitioner obtained the
consent of the prosecutrix by falsely representing that he was
unmarried and thereby committed the offence of cheating and rape.
Secondly, in any event, the offence punishable under section 376 of
the Penal Code cannot be said to have been made out, by any stretch
of imagination. The allegations in the first information report as well
as the averments in the petition for annulment of marriage,
according to Mr. Purwant, do not indicate even remotely that the
alleged physical relations between the prosecutrix and the
petitioner were without the consent of the prosecutrix. Mr. Purwant
would further urge that if the offence punishable under section 376
of the Penal Code is held to be prima facie not made out, then the
trial would be required to be held by the Court of learned
Magistrate. The learned Sessions Judge did not properly appreciate
this aspect of the offence punishable under section 376 of the Penal
Code not having been prima facie made out and rejected the
application by making general observations that there were
sufficient grounds to proceed against the petitioner, submitted Mr.
10. In order to lend support to the aforesaid submissions, Mr.
Purwant took the Court through the allegations in the first
information report and the averments in the petition for annulment
of marriage. An endevour was made to compare and contrast the
allegations in the first information report and the averments in the
petition and highlight the inconsistency therein. Mr. Purwant,
would further urge that in the written statement to the said
Marriage Petition, the petitioner has categorically asserted that the
marriage ceremony purported to be held on 23rd July, 2010 and the
anniversary celebration, the following year, were merely props as
the prosecutrix had induced the petitioner to perform the role of
‘husband’ for a programme to be aired. As the petitioner was fond of
film and TV industry, the petitioner performed those roles and, in
fact, the petitioner and the prosecutrix were never married and
cohabited as husband and wife.
11. The learned APP, countered the submissions of Mr. Purwant.
Laying emphasis on the material on record, especially the
statements of witnesses, who attended the marriage and
anniversary, the documents evidencing hiring of the premises on
Leave and Licence, bank statements and photographs, the learned
APP would urge that there is overwhelming material to lend support
to the allegations in the first information report. At this stage, the
defence of the petitioner is not required to taken into account at all,
submitted learned APP.
12. Ms. Kantawala, the learned counsel for respondent No. 2 at
the outset, submitted that the instant petition does not deserve to be
entertained as the learned Sessions Judge has framed charge
against the applicant on 14th October, 2021, after the application for
discharge came to be dismissed on 3rd September, 2021. In view of
the aforesaid development, the challenge to the impugned order
becomes unsustainable as the prayer for discharge cannot be
countenanced after the framing of the charge.
13. Ms. Aishwarya Kantawala, submitted that the very premise
of the petitioner that the marriage ceremony and the anniversary
celebrations were mere props, renders the application for discharge
untenable. In the face of the allegations in the first information
report and overwhelming documentary evidence, this issue would
surely warrant a trial. Ms. Kantawala further submitted that the
thrust of the submission on behalf of the petitioner that, in any
event the offence punishable under section 376 of the Penal Code
cannot be said to have been made out, is based on an incorrect
impression of the definition of “rape”. The case at hand, according to
Ms. Kantawala, would clearly fall within the ambit of clause
“fourthly” as the petitioner being a married man had fully known
that he was not the husband of the prosecutrix and made her to give
consent believing that he is the man to whom she is lawfully
married. Therefore, the offence punishable under section 376 of the
Penal Code is prima facie made out. Resultantly, the learned
Additional Sessions Judge committed no error in rejecting the
application, submitted Ms. Kantawala.
14. The challenge to the tenability of the petition, in the context of
its frame and the prayers therein, on the count of the framing of the
charge cannot be said to be bereft of substance. It seems that after
the application came to be rejected, on the next scheduled date the
learned Sessions Judge framed charge against the petitioner and
the petitioner abjured the guilt. Copies of the order framing charge
and the plea of the petitioner are annexed to the affidavit filed on
behalf of the respondent No. 2. It is trite that once a charge is
framed, the scope of interference by the High Court, even in
exercise of extraordinary writ jurisdiction, gets constricted. A
proper remedy for an accused aggrieved by framing of the charge is
to invoke the revisional jurisdiction. Indeed, the existence of an
alternative remedy is a self-imposed restraint. Yet, after the
framing of the charge, the High Court may not interdict the trial
unless the exercise of the jurisdiction becomes, in the peculiar facts
of a given case, absolutely imperative to prevent the abuse of the
process of the Court and secure the ends of justice.
15. In this context, Ms. Kantawala placed reliance on a judgment
of the Supreme Court in the case of Minakshi Bala vs. Sudhir Kumar
and Others1. Paragraph 7 reads as under:-
7] If charges are framed in accordance with Section 240
CrPC on a finding that a prima facie case has been made
out as has been done in the instant case the person
arraigned may, if he feels aggrieved, invoke the
revisional jurisdiction of the High Court or the Sessions
Judge to contend that the charge-sheet submitted under
Section 173 CrPC and documents sent with it did not
disclose any ground to presume that he had committed
any offence for which he is charged and the revisional
court if so satisfied can quash the charges framed against
him. To put it differently, once charges are framed under
Section 240 CrPC the High Court in its revisional
jurisdiction would not be justified in relying upon
documents other than those referred to in Sections 239
and 240 CrPC; nor would it be justified in invoking its
inherent jurisdiction under Section 482 CrPC to quash
the same except in those rare cases where forensic
exigencies and formidable compulsions justify such a
course. We hasten to add even in such exceptional cases
the High Court can look into only those documents which
are unimpeachable and can be legally translated into
relevant evidence.
16. Nonetheless in the context of the challenge, especially to the
invocation of the provisions contained in section 376 of the Penal
Code, I deem it expedient to appreciate the submissions keeping in
view the broad parameters on which a prayer for discharge from
prosecution is required to be appraised.
17. A profitable reference in this context can be made to the
judgment of the Supreme Court in the case of Union of India vs.
Prafulla Kumar Samal and Another2. The observations in
paragraph Nos. 8 and 10 are instructive and hence extracted below:
8] The scope of section 227 of the Code was
considered by a recent decision of this Court in the
case of State of Bihar v. Ramesh Singh(1) where
Untwalia, J. speaking for the Court observed as
"Strong suspicion against the accused, if the
matter remains in the region of suspicion, cannot
take the place of proof of his guilt at the conclusion
of the trial. But at the initial stage if there is a
strong suspicion which leads the Court to think that
there is ground for presuming that the accused has
committed an offence then it is not open to the
Court to say that there is no sufficient ground for
proceeding against the accused. The presumption of
the guilt of the accused which is to be drawn at the
initial stage is not in the sense of the law governing
the trial of criminal cases in France where the
accused is presumed to be guilty unless the
contrary is proved. But it is only for the purpose of
deciding prima facie whether the Court should
proceed with the trial or not. If the evidence which
the Prosecutor pro poses to adduce to prove the
guilt of the accused even if fully accepted before it is
challenged in cross-examination or rebut ted by the
defence evidence; if any, cannot show that the
accused committed the offence then there will be no
sufficient ground for proceeding with the trial".
This Court has thus held that whereas strong
suspicion may not take the place of the proof at the
trial stage, yet it may be sufficient for the
satisfaction of ths Sessions Judge in order to frame
a charge against the accused. Even under the Code
of 1898 this Court has held that a committing
Magistrate had ample powers to weigh the evidence
for the limited purpose of finding out whether or not
a case of commitment to the Sessions Judge has
been made out.
10] Thus, on a consideration of the authorities
mentioned above, the following principles emerge:
(1) That the Judge while considering the question of
framing the charges under section 227 of the Code
has the undoubted power to sift and weigh the
evidence for the limited purpose of finding out
whether or not a prima facie case against the
accused has been made out.
(2) Where the materials placed before the Court
disclose grave suspicion against the accused which
has not been properly explained the Court will be,
fully justified in framing a charge and proceeding
with the trial.
(3) The test to determine a prima facie case would
naturally depend upon the facts of each case and it
is difficult to lay down a rule of universal
application. By and large however if two views are
equally possible and the Judge is satisfied that the
evidence produced before him while giving rise to
some suspicion but not grave suspicion against the
accused, he will be fully within his right to discharge
the accused.
(4) That in exercising his jurisdiction under section
227 of the Code the Judge which under the present
Code is a senior and experienced Judge cannot act
merely as a Post office or a mouth-piece of the
prosecution, but has to consider the broad
probabilities of the case, the total effect of the
evidence and the documents produced before the
Court, any basic infirmities appearing in the case
and so on. This however does not mean that the
Judge should make a roving enquiry into the pros
and cons of the matter and weigh the evidence as if
he was conducting a trial.
18. On the aforesaid touchstone, reverting to the facts of the
case, I find it rather difficult to accede to the submissions on behalf
of the petitioner that there is no material in support of the
allegations of the prosecutrix that the petitioner made her to go
through the ceremony of marriage, they resided together as
husband and wife and there was a marriage anniversary
celebration. In addition to the statement of the relatives of the
prosecutrix, there are statement of witnesses, who attended the
marriage ceremony, including the statement of the Manager of the
Hall where the marriage ceremony was allegedly held and the Priest
who solemnized the marriage. To add to this the statement of Dr.
Murari Nanawati, indicates that the petitioner and the prosecutrix
had visited his clinic and consulted him in respect of starting a
family. There are medical reports which prima facie lend support to
the claim of Dr. Nanawati. As indicated above, the prosecution has
collected copies of the leave and licence agreement in respect of the
premises which was allegedly taken on rent by the petitioner to
cohabit with the prosecutrix, post marriage. The extract of the joint
account maintained by the petitioner and prosecutrix is also
pressed into service in support of the allegations.
19. In the face of the aforesaid material, at this juncture, it would
be impermissible to discard the prosecution version on the ground
that the petitioner has put forth a counter version, in his written
statement to the Marriage Petition. Indeed it is a matter for trial.
The necessary corollary of the aforesaid inference which, in the
circumstances of the case, appears at this stage irresistible is that
the question as to whether the petitioner forged the marriage
certificate and other documents is also a matter for evidence and
trial. I am, therefore, not persuaded to accede to the submission on
behalf of the petitioner that even the offences other than the offence
punishable under section 376 of the Penal Code are not prima facie
made out.
20. This propels me to the pivotal challenge mounted on behalf of
the applicant. Mr. Purwant urged with a degree of vehemence that
since the prosecutrix has instituted a petition for annulment of
marriage before the Family Court, by no stretch of imagination can
it be said that the physical relations were without the consent of the
prosecutrix. Amplifying the submission, Mr. Purwant would urge
that if the Family Court rules that the marriage was valid, the
prosecution under section 376 of the Penal Code would be wholly
unsustainable. In no circumstances, according to Mr. Purwant, the
physical relations, in the backdrop of the case where the
prosecutrix alleges that she was induced to solemnize the marriage
by making a false representation that the petitioner was a bachelor,
can be said to be without the consent of the prosecutrix. Therefore,
the learned Session Judge committed a grave error in not
discharging the petitioner from the prosecution at least for the
offence punishable under section 376 of the Penal Code, submitted
21. I have given anxious consideration to the aforesaid
submission. At the first blush, the submission appears attractive.
The submission, however, losses sight of the elements which vitiate
the consent of a woman for the sexual act. Clause ‘fourthly’ to
section 375 of the Penal Code addresses a situation where though
the sexual act is with the apparent consent of the prosecutrix, in
law the consent is vitiated on account of the circumstances
enumerated therein which have the effect of negating the consent.
Clause fourthly reads as under:-
Fourthly :- With her consent, when the man knows
that he is not her husband, and that her consent is
given because she believes that he is another man to
whom she is or believes herself to be lawfully
married.
22. From the text of clause fourthly, it becomes abundantly clear
that the act with the apparent consent would fall within the dragnet
of offence of rape if the man knows that -
b) the woman gave consent because she believed that he is
another man to whom she is or believes herself to be lawfully
married.
23. To bring the sexual act within the mischief of clause fourthly,
two states of mind are necessary. First, a state of mind on the part
of the man manifested in the knowledge that he is not the husband
of the prosecutrix and that the consent is given under a mistaken
belief. Second, the state of mind of the prosecutrix manifested in her
belief that she is lawfully or believes herself to be lawfully married
to the man.
24. From the point of view of the prosecutrix, her belief as to her
situation in life qua the man, accused of committing the rape, is of
decisive significance. This belief, in turn, ought to be induced by a
positive act on the part of the man to make her believe that she is
married to him. If there is evidence to show the existence of
circumstances which made the prosecutrix to entertain such belief,
then clause fourthly would be attracted as the aspect of knowledge
on the part of the man that he is not her husband is often an
objective fact. To put it in other words, clause fourthly is attracted
where there is knowledge on the part of the man about he being not
the husband of the prosecutrix and the consent is on account of
such mistaken belief that he is her husband and a belief on the part
of the prosecutrix that she is the wife of the man. If the aforesaid
twin conditions are prima facie made out then the challenge to the
prosecution on the ground that the physical relations were with the
consent of the prosecutrix does not merit acceptance.
25. In the case at hand the prosecutrix categorically alleges that
the petitioner made her to solemnize the marriage and cohabit with
her by making a representation that he is unmarried. Since the
petitioner allegedly solemnized the marriage with the prosecutrix,
during the life of his wife, the marriage was, thus, void. The
petitioner knew that he is not the husband of the prosecutrix and
yet allegedly had physical relations with her. In the circumstances
of the case, prima facie, the submission on behalf of the respondent
No. 2 that the prosecutrix would not have given consent but for the
belief induced by the petitioner by falsely representing that he was
unmarried (though much married) appears to carry substance.
26. Reliance by Ms. Kantawala on a judgment of the Supreme
Court in the case of Bhupinder Singh vs. Union of Territory of
Chandigarh3 appears to be well placed. In the said case also, the
appellant therein, who was already married and had children from
the wedlock had induced the prosecutrix to enter into a marriage
ceremony and cohabit with him. Later on, the fact that the appellant
was already married and the first marriage was subsisting when the
appellant went through the marriage ceremony with the
prosecutrix came to light. In the backdrop of the said facts a
submission was sought to be canvassed that the physical relations
were with the consent of the prosecutrix and, therefore, the offence
punishable under section 376 cannot be said to have been made out.
27. Repelling the submission, the Supreme Court enunciated the
13] Learned counsel for the accused-appellant
submitted that when the complainant knew that he
was a married man and yet consented for sexual
intercourse with him, Clause "Fourthly" of Section 375
IPC would have no application. It was also submitted
that the fact that the complainant knew about his
being a married man, is clearly established from the
averments made in a suit filed by her where she had
sought for a declaration that she is the wife of the
accused. The sentence imposed is stated to be harsh. It
was, however, pointed out that the compensation, as
awarded by the High Court, has been deposited and
withdrawn by the complainant.
14] Learned counsel for the State submitted that it is a
clear case where Clause "Fourthly" of Section 375 IPC
is applicable. Learned counsel for the complainant
submitted that this was a case where no reduction in
sentence was uncalled for. The High Court proceeded
on an erroneous impression that the complainant knew
that the accused was a married man. It was also
submitted that the compensation as awarded, is on the
lower side.
15] Clause "Fourthly" of Section 375 IPC reads as
"375 Rape - A man is said to commit "rape", who,
except in the case hereinafter excepted, has sexual
intercourse with a woman under circumstances falling
under any of the six following descriptions:-
Fourthly - With her consent, when the man knows that
he is not her husband, and that her consent is given
because she believes that he is another man to whom
she is or believes herself to be lawfully married.
16] Though it is urged with some amount of vehemence
that when complainant knew that he was a married
man, Clause "Fourthly" of Section 375 IPC has no
application, the stand is clearly without substance.
Even though, the complainant claimed to have married
the accused, which fact is established from several
documents, that does not improve the situation so far
as the accused-appellant is concerned. Since, he was
already married, the subsequent marriage, if any, has
no sanctity in law and is void ab-initio. In any event,
the accused-appellant could not have lawfully married
the complainant. A bare reading of Clause "Fourthly" of
Section 375 IPC makes this position clear.
28. The aforesaid pronouncement was followed by the Delhi High
Court in the case of Divya Oram Kujur vs. State and Anr.4 wherein in
somewhat similar fact-situation, the Delhi High Court had interfered
4 Cri. Revn. Petition No. 193 of 2012 Dt.27.02.2013
with the order passed by the learned Sessions Judge of discharging
the accused therein of the offence punishable under section 376 of
29. In the light of the aforesaid position in law, re-adverting to the
facts of the case, prima facie, clause fourthly of section 375 of the
Penal Code seems to be attracted. Firstly, there is material on record
to show that the petitioner and the prosecutrix went through the
ceremony of marriage. Secondly, there is adequate material to
demonstrate that the petitioner and prosecutrix cohabited as
husband and wife. Thirdly, it is not the case of the petitioner that his
spouse was not living on the date when he went through the
marriage ceremony. On the contrary, the petitioner asserts that the
ceremonies were mere props. Fourthly, the assertion of the
prosecutrix that she gave consent for the physical relations as she
was made to believe that she is the wife of the petitioner is also
prima facie borne out by the material on record. Conversely, it is not
the case of the petitioner, that the prosecutrix knew that he was
married and thus such a belief could not have been entertained.
30. The upshot of the aforesaid consideration is that there are
sufficient grounds to proceed against the petitioner, even for the
offence punishable under section 376 of the Penal Code. The trial
thus must proceed to its logical conclusion. Resultantly, the petition
deserves to be dismissed.
2] By way of abundant caution, it is clarified that the
observations are confined to the consideration of the prayer for
discharge and the trial Court shall decide the Session Case on its
own merits and in accordance with law without being influenced by
any of the observations made hereinabove.
3] Rule discharged.
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Consent obtained for sex in a second marriage without disclosing first marriage would prime facie constitute rape, the Bombay High Court held refusing to discharge the 'husband' in a rape case filed by a Marathi actress. Justice N.J. Jamadar held that prima facie, clause four of section 375 of the Penal Code under which the offence of rape is defined seems to be attracted in the...
Consent obtained for sex in a second marriage without disclosing first marriage would prime facie constitute rape, the Bombay High Court held refusing to discharge the 'husband' in a rape case filed by a Marathi actress.
Justice N.J. Jamadar held that prima facie, clause four of section 375 of the Penal Code under which the offence of rape is defined seems to be attracted in the present case.
"Where there is knowledge on the part of the man about he being not the husband of the prosecutrix and the consent is on account of such mistaken belief that he is her husband and a belief on the part of the prosecutrix that she is the wife of the man."
The court was dealing with a petition that challenged the Additional Sessions Judge's order rejecting the petitioner's discharge application.
The prosecutrix is an actress by profession. She had learned about her husband's alleged bigamous acts after pictures of their wedding anniversary celebration were published in the newspaper. The first wife had confronted her soon after.
In 2013, the actress filed annulment proceedings in the Family Court and lodged an FIR against the petitioner under sections 420, 406, 467, 471, 474, 376, 323, 504, 506(i) and 494 of IPC.
The police completed the investigation and chargesheet was filed against the petitioner.
Petitioner filed a discharge application stating the allegations against him are vague and the prosecutrix's story is contradictory with the annulment petition. The Additional Sessions Judge rejected the application citing sufficient grounds to proceed against the petitioner. Hence, the present petition.
Advocate Viresh Purwant for the petitioner argued that there is no evidence that the actress's first marriage was legally dissolved. Hence, prosecution's claim that the petitioner obtained her consent by pretending to be unmarried is negated.
Further, no case of rape has been made out as there is no evidence showing that physical relations with the petitioner were without the prosecutrix's consent. The petitioner has claimed that the marriage ceremony and the anniversary celebration were merely props and, in fact, he and the prosecutrix were never married and cohabited as husband and wife.
APP Patil emphasised the material on record and argued that there are sufficient grounds for the trial. At this stage the defence of the accused need not be taken into account.
Advocate Aishwarya Kantawala for the Respondent no. 2 (the prosecutrix) relied on Minakshi Bala v. Sudhir Kumar and Others and argued that the petition is not maintainable. The prayer for discharge cannot stand once the charges have been filed. She further submitted that the facts of the case fall under the 'fourthly' clause of Section 376.
The court considered the question of maintainability and stated, "It is trite that once a charge is framed, the scope of interference by the High Court, even in exercise of extraordinary writ jurisdiction, gets constricted". Alternate remedies exist and in this case the proper remedy would be to invoke the revisional jurisdiction. However, the court decided to deal with the merits of the petition due to the peculiarity of the facts.
The court relied on Union of India v. Prafulla Kumar Samal and Anr. which held that strong suspicion against the accused is be sufficient in order to frame a charge against the accused. The court stated that there is substantial material to show that the marriage ceremony between petitioner and respondent had taken place and the two cohabited as husband and wife.
The court noted that the prosecutrix has alleged that she only married the petitioner because he claimed to be unmarried. Since his first wife is alive, his marriage with the prosecutrix is void. The petitioner knew that he is not the husband of the prosecutrix and yet allegedly had physical relations with her.
The court relied on Bhupinder Singh v. Union of Territory of Chandigarh which had similar facts and the Apex Court stated that the 'fourthly' clause is applicable to the facts.
The court stated that the 'fourthly' clause of Section 376 will apply when - a) the man knows that he is not the husband of the prosecutrix and that the consent is given under a mistaken belief and b) the prosecutrix believes that she is lawfully married to the man. "If the aforesaid twin conditions are prima facie made out then the challenge to the prosecution on the ground that the physical relations were with the consent of the prosecutrix does not merit acceptance", the court added.
The court concluded that a prima facie case against the petitioner has been made out and dismissed the petition.
Case no: Writ Petition No. 3527 of 2021
Case Title: Siddharth Banthia v. State of Maharashtra and Anr.
Coram: Justice N. J. Jamadar
|
1. The appellants have challenged the judgment and
order dated 10.8.2018 passed by the Additional Sessions Judge,
Mangaon, Raigad in Sessions Case No.27/2016. By the impugned
judgment and order, the appellants, who are the original accused
Nos.1 to 4, were convicted for commission of the offence
punishable under Section 395 of the Indian Penal Code and were
sentenced to suffer RI for ten years and to pay fine of Rs.50,000/-
each and in default to suffer RI for one year. They were granted
set-off under Section 428 of Cr.P.C..
2. Heard Shri Aashish Satpute, learned Advocate
appointed for the appellants and Smt. M.R. Tidke, learned APP for
3. The prosecution case is that PW-1 Ravindra Lad and
PW-2 Ankit Dasure were the Supervisors of a Poultry Farm. They
had supplied chickens to their customers and had got money. They
were carrying amount of Rs.4 Lakhs. They were traveling on the
highway around midnight on 11.12.2015. Suddenly they were
intercepted by the accused. One of the accused gave a blow by stick
because of which both of them fell down. The other accused joined
the first accused and they were assaulted with sticks. The bag
containing more than Rs.4 Lakhs was taken away. The victims then
went to one Vilas Bait and informed the incident. All of them along
with others then went to Kolad Police Station. C.R. No.239/2015
was registered at Roha police station under Section 395 of IPC.
The investigation was carried out. All the appellants-accused were
arrested on 17.12.2015. Apart from the appellants, there was one
more offender who was below 18 years of age. His trial was
separated. The investigation was carried out. During investigation,
it is the prosecution case that the appellants were identified in the
test identification parade held in the Tahsildar office at Roha on
18.1.2016. It is also the prosecution case that during investigation
some cash amount was recovered at the instance of different
appellants. The wives of the appellants produced some ornaments
which were purchased using the amount involved in this offence.
After this recovery, the investigation was continued. Statements of
witnesses were recorded and at the conclusion of the investigation,
charge-sheet was filed. The case was committed to the court of
Sessions. The appellants were the original accused Nos.1 to 4.
4. During trial, the prosecution examined twelve witnesses
including two victims, the pancha for recovery, the Tahsildar who
had conducted the test identification parade and the investigating
officers. The defence of the appellants was of total denial. At the
conclusion of the trial, learned Judge believed the evidence of
identification parade and of recovery. He convicted and sentenced
the appellants as mentioned earlier.
5. The evidence led by the prosecution in brief is as
(i) PW-1 Ravindra Lad was the first informant. He has
deposed that he was working as a Supervisor with Modern Poultry
at Chondhi, Taluka-Alibag. The business of that poultry farm was to
supply small chicks to poultries and after growth of those chicks
into chickens they were selling them to the traders and in this
process they used to earn profit. The cash collected from the
traders used to be deposited in the company situated at Kihim,
Taluka-Alibag. On 10.10.2015, they sold their chickens to Aayan
Traders and Harshad Traders. They paid Rs.2,65,000/- and
Rs.2,20,000/- respectively. Thus, the first informant–PW.1 was
having amount of Rs.4,85,000/-. He was accompanied by his
colleague Anikt Dasure (PW-2). They were travelling on a
motorcycle bearing No.MH-06-BK-8525. They were proceedings
towards Chondhi, Taluka-Alibag from Baitwadi. At around 1.00
a.m. on 11.12.2015, they had reached a spot near Dolvahal Electric
Project. The speed of their motorcycle was slightly slow because
they were on a turn. Suddenly one person rushed towards them
with a stick. He assaulted them by stick. PW-1 lost control of his
motorcycle and both of them fell down. In the meantime, four
more persons came on the spot with sticks. All the five persons
assaulted PWs-1 & 2 with sticks. They took away the bag forcibly
which was with PW-2 Ankit. Thus, they were robbed of the cash
amount of Rs.4,85,000/- and Ankit’s mobile handset of TATA
Indicom company. PWs-1 & 2 went to Baitwadi by walk. The
motorcycle was lying at the spot. According to PW-1 he had
suffered injury over his right arm and PW-2 had suffered injury
over his legs. They met Vilas Bait at Baitwadi. He was told about
the incident. Then he along with ten other persons accompanied
PWs-1 & 2 to Kolad police station. They lodged FIR. The FIR is
produced on record at Exhibit-21. The FIR was actually registered
at Roha police station at 6.30 a.m. on 11.12.2015. On 18.1.2016,
PWs-1 & 2 were called at the Tahsildar’s office at Roha for
identification of the accused. There were twenty persons in one
room. According to PW-1, he identified four persons in the
presence of Tahisldar and two panchas. Those four persons were
the accused Nos.1 to 4 before the Court as identified by him in the
Court as well. He was told by the police that they had seized cash
of Rs.3,81,000/- and some gold and silver ornaments from the
accused. He identified the cell-phone of PW-2 produced before the
He was cross-examined on behalf of the accused. In the
cross-examination he was cross-examined as to how the amount
was in their possession. According to him, he had prepared three
copies of delivery challen and on the delivery challen itself the
receipt of amount was mentioned. A copy of the delivery challen
was given to the police, but, it is not produced on record. He
deposed that because of the stick blow, he suffered injury on his
right shoulder and PW-2 suffered injury on his leg because of fall
from motorcycle. After they fell down, the accused assaulted PW-1
on his leg with sticks. He could not explain why his FIR did not
mention that his own bag was taken away by the accused. He also
could not explain as to why the FIR did not mention that they
narrated the incident to Vilas Bait. They reached Kolad police
station at around 1.45 a.m.. He accepted that the police did not
record his statement immediately. They went to the spot of
incident at around 2.00 a.m. and they returned to police station in
that night itself. PWs-1 & 2 were referred for medical examination
and Medical Officer treated them. He has further deposed in his
cross-examination that the police had informed him to remain
present for identification parade on 14.1.2016. PWs-1 & 2
accordingly had gone to Tahisildar’s office on that day. However,
test identification parade was not held on 14.1.2016 and they were
called again on 18.1.2016 when the test identification parade was
held. He admitted that the Tahsildar’s office and Roha police
station are situated in the same building. He denied the suggestion
that on 14.1.2016 the appellants were brought to the Tahsildar’s
office. He has further deposed that all the four accused were kept in
one row of sixteen dummies. He denied the suggestion that after
arrest of the accused they were shown to him and PW-2 by the
police and even on 14.1.2016 they were shown and, therefore, he
identified the appellants on 18.1.2016. In the FIR, there are no
descriptions of the accused.
(ii) PW-2 Ankit Dasure was accompanying PW-1 Ravindra
during the incident. He has deposed in exactly the same manner as
is deposed by PW-1. However, the crucial difference is that PW-2
has deposed that there were four persons, they were initially
assaulted by one person and three more joined him. He had not
spoken about five persons. He has further deposed that on
18.1.2016 the police called both of them for test identification
parade where he identified accused Nos.1 to 4 who were present
before the Court.
In the cross-examination he deposed that the receipts
issued by Aayan Traders and Harshad Traders were also kept in the
bag along with cash and, therefore, the receipts were not available.
The first person who assaulted them was wearing black clothes. He
has given description of four persons approximately to the police.
Those four persons assaulted him by sticks on his back and then
they snatched his bag and ran away. Because of the assault, he
suffered blunt trauma on his back. He could not explain as to why
his police statement did not mention that both of them had gone to
Vilas Bait and had narrated the incident to him and then all of them
had gone to Kolad police station. He deposed that the motorcycle
was lying at the spot and both of them went to Vilas Bait by
running. He has also deposed that both of them were referred to
Medical Officer at Roha at 9.30 a.m. He had taken PW-2’s X-ray.
Initially identification parade was to be held on 14.1.2016. They
had gone to Tahsildar’s office at Roha on that day. He also
admitted that the Tahsildar’s office and the police station were
situated in the same building. He pleaded ignorance as to whether
all the four accused were brought to Tahsildar’s office on 14.1.2016
from Alibag jail. After that he was asked to remain present on
18.1.2016 when the test identification parade was held. All the
accused were kept in single row of sixteen dummies. Significantly
he was not shown his own mobile phone in the Court.
(iii) PW-3 Mahesh Mohite was a pancha in whose presence
father of the other accused, who had not faced the trial along with
the appellants, had produced some cash amount. Therefore, his
evidence is not relevant for the present appellants.
(iv) PW-4 Subhash Dahinakar was a pancha for the spot
panchnama. The spot panchnama is produced on record at
Exhibit-32. The motorcycle was lying at the spot and it was seized.
The spot panchnama does not show that there was any street lights
available or there was any other source of light at the spot. The
spot was surrounded by bushes, trees and hilly region.
(v) PW-5 Rohan Patil was an important witness but he has
turned hostile. He is not a reliable witness. He was a pancha to
three panchnamas wherein the wives of the accused-appellant
Nos.1,3 & 4 had produced their ornaments. According to the
prosecution case, those ornaments were bought with the cash
amount which was stolen by the appellants.
(vi) PW-6 Kishor Jain was a jeweller. He has deposed that on
15.12.2015 accused No.1 and his wife had come to his shop and
they had purchased golden tops and ear-chain worth Rs.30,500/-.
He produced the receipt on record at Exhibit-39. On 16.12.2015,
the accused No.4 and his wife purchased jewellery. That receipt is
produced on record at Exhibit-40.
In the cross-examination, he admitted that the receipt
does bear the details of sales-tax and VAT.
(vii) PW-7 Pinkesh Jain was another jeweller from whose shop
appellant No.1 and his wife had purchased a silver painjan on
15.12.2015. He also admitted that he had not mentioned the
details of sales tax and VAT on the receipt produced at Exhibit-42 in
that connection.
(viii) PW-8 Waman Kadam was an important witness. He
initially did not support the prosecution case and, therefore,
learned APP with permission of the Court cross-examined him. He
produced Exhbits-46, 47, 48 & 49 on record. These were the
memorandum statements given by different accused pursuant to
which different cash amounts and articles were recovered at the
instance of those accused. Accused No.2 led the police and
panchas to a farm-house of his grand-father. He removed a box
buried under a tree. There was cash amount of Rs.53,500/-. In his
memorandum statement, he had not mentioned that particular
place where he had concealed this cash amount. Immediately after
this recovery, the appellant No.3 led to another farm-house.
Another box was buried near the bushes. It was recovered and it
was found to contain Rs.45,000/-. Immediately after that accused
No.4 led the police party to Adivasiwadi and took them to his own
house. The container was buried under-ground near his house. It
was taken out. It was found to contain Rs.1,07,000/-. After that
appellant No.1 led all of them to his sister’s hut and a box which
was kept in a corner was recovered. It was found to contain
Rs.1,43,800/-. The memorandum statements and recovery
panchnamas showed that the memorandum statements were
recorded from 10.50 a.m. onwards on 19.12.2015. They were
recorded one after the other. Then all of them were kept in the
same jeep and thereafter the cash amount kept in the boxes was
recovered from different places upto around 5.45 p.m.. During all
this period, all the accused, panchas and police were together. The
prosecution chose to examine only one of the panchas Waman
Kadam. He had turned hostile. The other pancha Chandrakant
Sanap was not examined and no explanation was offered as to why
he was not examined. No other witnesses from the farm house or
the hut or the people around that area from where the boxes were
recovered were examined. None of the memorandum statements
mentions the places where the appellants had actually concealed
those boxes.
(ix) PW-9 Vikram Jain was another jeweler from whom
appellant No.1 and his wife had purchased gold-rings worth
Rs.4,000/- on 15.12.2015.
(x) PW-11 Rahul Sakpal was a pancha for panchnamas
Exhibits-61, 62 and 63. Under those panchnamas, the wives of
accused Nos.3, 4 & 5 respectively produced golden ornaments
which they had purportedly purchased from various jewellers on
15th & 16th December, 2015. The wives of these appellants had
simply produced those articles in the police station and those were
seized under panchnama in the presence of this witness.
(xi) PW-12 was the Tahsildar Amit Munde. The test
identification parade memo was produced on record vide Exhibit-
65 because the prosecution had made application for producing the
test identification parade report under the provisions of Section
291-A of Cr.P.C.. After the report was produced on record the
accused asked for the Tahsildar’s cross-examination. Their
application was allowed and PW-12 Amit Munde was cross-
examined on behalf of the accused. In the cross-examination he
deposed that the dummies were brought by the police. He also
admitted that the police station and the Tahsildar’s office were
situated in the same building. The witnesses were sitting in the
tenancy room whereas the police and the dummies were sitting in
election room. There was a passage in between two rooms. He
denied the suggestion that on 14.1.2016 the accused were brought
for T.I. parade and at that time the witnesses were shown the
accused and, therefore, they could identify the accused during test
identification parade held on 18.1.2016.
(xii) PW-10 PI Sanjay Dhumal is the investigating officer. He
has deposed about the investigation carried out by him. Spot
panchnama was conducted. He then arrested all the accused.
Initially Rs.22,800/- were seized from father of the accused who
had not faced the trial with the appellants. On 19.12.2015, the
cash was recovered at the instance of the appellants as mentioned
earlier. The mobile phone was recovered at the same time when
cash was recovered at the instance of appellant No.1. Apart from
cash some ornaments were recovered at the instance of the
appellant No.1. He then requested the Tahsildar to conduct the test
identification parade. At the conclusion of the investigation he had
filed the charge-sheet. He denied the suggestion that the accused
were taken for test identification parade on 14.1.2016 and the
witnesses too were called on that day.
. This in short is the prosecution evidence.
6. Learned counsel for the appellants submitted that
identification of the appellants is not proved by the prosecution.
There was no light at the spot of incident. It was on a highway.
PWs-1 & 2 could not have seen the features of the accused. Their
version is not supported by any medical evidence. No such
evidence is produced on record to show that they had suffered any
injury. There is no explanation offered as to why the doctor who
had treated PWs-1 & 2 was not examined. Vilas Bait, who is an
important witness as PWs-1 & 2 had gone to him at the first
instance, is not examined and, therefore, adverse inference is
required to be drawn. The FIR was registered in the morning
whereas the police had visited the place of incident before
registration of the FIR. The test identification parade was not held
as per the requirement of the Criminal Manual. Only sixteen
dummies were brought whereas the rule requires that for every
person there has to be minimum six dummies and not more than
two accused should be placed in the parade at the same time.
Whereas in the present case all the accused were asked to stand in
one row at the same time for the same parade. The other evidence
of recovery is not reliable. The pancha has turned hostile. The
evidence of the investigating officer could not be relied on in the
background of the fact that he was interested in proving the
prosecution case and his evidence shows that the investigation was
not proper. Recovery was made from the places which were
accessible to others and the places were not in exclusive control or
possession of the appellants. In any case, the recovered cash
amount could not be connected with the offence. As far as the
ornaments are concerned, they were of the wives of the appellants
and there is nothing to show that those have any connection with
the offence. The wives’ statements cannot be read in evidence.
They were not examined as witnesses. The evidence of the jewelers
only show that some ornaments were purchased by different
appellants but that by itself does not connect the appellants with
the crime.
7. Learned APP, on the other hand, submitted that PWs-1
& 2 had ample opportunity to see the appellants and, therefore,
their identification can be safely relied on. She further submitted
that the mobile handset was also recovered at the instance of
accused No.1, which is an incriminating circumstance. Apart from
that the golden ornaments were seized. They were produced by
wives of the appellants. Those were purchased from the money
taken away in the offence by the accused-appellants. She
submitted that there is sufficient material in this case.
8. I have considered these submissions. Though learned
counsel for the appellant tried to canvass argument suggesting
that the incident has not taken place, it is difficult to accept
such argument. No reason is brought on record to show as to why
PWs-1 & 2 would concoct a false story. The motorcycle was lying at
the spot and the police were immediately informed in the night.
Therefore, though there is no medical evidence supporting the
versions of PWs-1 & 2, that does not mean that the incident has not
taken place.
9. The crucial question in this case is about the identity of
the accused. In that behalf in my opinion, the prosecution has
miserably failed to establish that the appellants were the actual
10. As discussed hereinabove, the evidence shows that the
incident had taken place at a secluded spot of highway at 1.00
a.m.. There were no lights anywhere around. The motorcycle had
fallen down. The description of the accused was not mentioned in
the FIR. PW-1 has also not clearly answered as to what description
he had given of the accused. The prosecution has failed to prove
that the witnesses had sufficient opportunity to observe the features
of the accused in sufficient light.
11. Though the prosecution case is that the appellants were
identified in the test identification parade, even that evidence is
doubtful. The witnesses i.e. PWs-1 & 2 have deposed that they
were called at the Tahsildar’s office on 14.1.2016. Inspite of that
PW-10 and PW-12 have not deposed about the date of 14.1.2016.
They have deliberately kept it vague. Therefore, there is a strong
possibility that on that day the prosecution witnesses had an
opportunity to see the accused. The prosecution has to rule out
that possibility, which is not done. All the witnesses have admitted
that the Tahsildar’s office and the police station were situated in the
same premises and, therefore, it was all the more necessary for the
prosecution to have explained that all the precautions were taken
so that the accused were concealed from the witnesses not only on
18.1.2016 but also on 14.1.2016.
12. PW-12 in the cross-examination has admitted that the
dummies were brought by the police. In this background it was
also necessary for the prosecution to have led the evidence to show
that the witnesses i.e. PW-1 & PW-2 had no opportunity to see the
dummies. In this particular case, it was not sufficient to conceal
the accused but if the witnesses had an opportunity to see the
dummies before the test identification parade; then it was very easy
to identity the accused. This precaution is not shown to have been
taken by the investigating agency. PW-12 has admitted that the
witnesses were sitting in one room and the accused and the
dummies were sitting in the other room and there was a passage in
between. However, no further evidence is led to show that it was
not possible to see the persons in other room while sitting in one
room. Apart from that, as rightly submitted by learned counsel for
the appellants sixteen dummies were asked to take part in one
single identification parade for four accused. All these factors
cumulatively leads to a reasonable conclusion that identification of
the accused is extremely doubtful and, therefore, benefit in that
behalf must go to the accused.
13. Other equally important circumstance is of recovery of
ornaments and cash amount. As mentioned earlier, the ornaments
were produced by the wives of the appellants. They were not
examined and, therefore, their statements to the police in presence
of panchas cannot be read in evidence. The jewellers have only
deposed that the ornaments were purchased by different accused
and their wives on 15th & 16th December, 2015. Significantly
neither PW-6 Kishor Jain nor PW-7 Pinkesh Jain were shown the
articles which were produced by them. Only PW-9 Vikram Jain has
identified one golden-ring. Thus recovery of ornaments falls short
of the required degree of proof.
14. As far as recovery of cash amount is concerned, PW-8
was the only pancha examined by the prosecution. He had not
supported the prosecution case and, therefore, he was cross-
examined by the prosecution. In the cross-examination, he spoke
about the memorandum statements and the consequent recovery.
Thus, he is not a reliable witness at all. The other pancha
Chandrakant Sanap is not examined and no explanation is offered
as to why he was not examined. The investigating officer’s
evidence in respect of these recoveries of cash amount is vague. In
none of the statements, the accused-appellants had mentioned the
place where they had concealed the cash amount. All the accused
were taken together for effecting the recoveries. Their statements
were recorded one after the another. They were taken in the same
jeep to effect recovery. Some of the places were farm-houses and a
hut belonging to other persons and hence were accessible to others.
No other supporting evidence is led to show that only the accused
had access to those private places. Such recoveries could have been
accepted if there was an independent evidence which was reliable.
15. The pancha PW-8 Waman Kadam has stated that when
he was called to the police station that time the police told them to
proceed towards the place where the incident had taken place.
Accordingly the police took them towards the place in order to find
the articles; those were kept there. This part of his evidence makes
the police investigation doubtful about recovery of the cash
amount. After this cross-examination, he has given all the
favourable answers to the prosecution in answers to the leading
questions. In the cross-examination on behalf of the accused, he
admitted that when he and other panchas went to police station,
that time the police told them as to which articles were to be seized
and that the police themselves informed them as to which places
were to be visited. This also indicates that the recovery was made
at the instance of the accused but the police already knew the
places from where the recovery was to be effected. There was no
further re-examination on behalf of the prosecution to clarify this.
16. The evidence of the investigating officer is not
satisfactory. He has tried to cover up lapses in arranging the test
identification parade by the police and, therefore, it is not safe to
rely upon his evidence in respect of recovery of cash amount.
17. As discussed earlier, the pancha is also not reliable.
Therefore, it is not safe to rely on such type of evidence which is
the only other evidence apart from doubtful identification;
available with the prosecution against the appellants.
18. In this particular case in view of these infirmities,
benefit of doubt must go to the accused. There are no other
incriminating circumstances against the appellants.
19. The appellants are in custody since 17.12.2015.
Considering the above discussion, the appellants deserve to be
acquitted. Hence, the following order :
ii. The impugned judgment and order dated 10.8.2018 passed
by the Additional Sessions Judge, Mangaon, Raigad in
Sessions Case No.27/2016, is set aside.
iii. The appellants are acquitted from the charges faced by them
in Sessions Case No.27/2016 before the Additional Sessions
Judge, Mangaon, Raigad. The appellants shall be released
from jail, if not required in any other case.
iv. Criminal Appeal is disposed of in aforesaid terms. With
disposal of the appeal, all the connected applications are also
disposed of.
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The Bombay High Court overturned conviction of four accused in a dacoity case observing that the prosecution's evidence was unreliable due to irregularities in arranging the test identification parade. Justice Sarang V. Kotwal acquitted the appellants in a criminal appeal against their conviction. "In this particular case in view of these infirmities, benefit of doubt must...
The Bombay High Court overturned conviction of four accused in a dacoity case observing that the prosecution's evidence was unreliable due to irregularities in arranging the test identification parade.
Justice Sarang V. Kotwal acquitted the appellants in a criminal appeal against their conviction.
"In this particular case in view of these infirmities, benefit of doubt must go to the accused. There are no other incriminating circumstances against the appellants", the court held.
The appellants had been convicted under Section 395 of the IPC (Punishment for Dacoity) and were sentenced to rigorous imprisonment for ten years and fine of Rs.50,000/- each.
The prosecution's case was that the two victims were carrying amount of Rs. 4 Lakhs and traveling on the highway around midnight. They were intercepted by the appellants who assaulted them with sticks and took the bag of money. The victims then went to one Vilas Bait and informed the incident after which all three went to the police station to register an FIR. During investigation, the appellants were identified in the test identification parade.
The trial court examined 12 witnesses including two victims, the pancha for recovery, the Tahsildar who had conducted the test identification parade and the investigating officers. The court convicted the appellants on the basis of identification parade and the recovery. The appellants approached the High Court in appeal.
Advocate Aashish Satpute for the appellants submitted that identification of the appellants is not proved by the prosecution. There was no light at the spot of incident, hence the victims could not have seen the features of the accused. The test identification parade was not held as per the requirement of the Criminal Manual. Further, no medical evidence was produced to show that the victims suffered any injury.
APP M.R. Tidke for the state submitted that the victims had ample opportunity to see the appellants and, therefore, their identification can be safely relied on. There is sufficient material in this case for conviction.
The court rejected the appellants' argument that the incident has not taken place as there is no reason to show why the victims would concoct a false story. Though there is no medical evidence, that does not mean that the incident has not taken place.
The court stated that the crucial question was about the identity of the accused. The court noted that the description of the accused was not mentioned in the FIR. The victims also didn't clearly answer as to the description of the accused. "The prosecution has failed to prove that the witnesses had sufficient opportunity to observe the features of the accused in sufficient light", the court held.
The court also noted the strong possibility that the prosecution witnesses had an opportunity to see the accused before the test identification parade. The prosecution has to rule out that possibility, which was not done. Further the prosecution didn't prove that the witnesses didn't see the dummies brought by the police for the identification. "If the witnesses had an opportunity to see the dummies before the test identification parade; then it was very easy to identity the accused."
The court observed that sixteen dummies were asked to take part in one single identification parade for four accused. Proper procedure stipulates six dummies per accused and no more than two accused in a single identification parade. The court stated, "identification of the accused is extremely doubtful and, therefore, benefit in that behalf must go to the accused".
The court further observed that the investigating officer's evidence in respect of recoveries of cash amount is vague. No supporting evidence shows that the accused had exclusive access to the places from where the police recovered the cash. Recovery of ornaments from the wives of the accused also falls short of the required degree of proof as the wives weren't examined.
The court concluded that the evidence from the investigating officer was not satisfactory. "He has tried to cover up lapses in arranging the test identification parade by the police and, therefore, it is not safe to rely upon his evidence in respect of recovery of cash amount", the court held.
The court set aside the convictions and directed the release of the appellants.
Case no. – Criminal Appeal No. 1100 of 2018
Case title – Sunil Vishnu Mukane & Ors. v. State of Maharashtra
Coram – Justice Sarang V. Kotwal
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Present: - Ms.Jyoti Sareen, Advocate, for the petitioner.
Mr.ADS Sukhija, Advocate, for the respondents.
The petitioner is the proprietor of a proprietary concern by
name, M/s New Bajaj Electronics, dealing in the business of electronic
His brother was the proprietor of another proprietary concern by
These two concerns availed loan from the respondents-DCB
Bank against property to the tune of `67 lakh in 2013. The loan against
property was later enhanced to `95 lakh in September, 2015, repayable over
a period of 15 years in equal monthly installments of `1.14 lakhs each. The
petitioner, in his personal capacity, also stood a guarantor to the credit
facility availed by the firms by mortgaging his property in favour of the
When the EMIs of the loans were not paid, the respondents
declared the loan accounts as NPA on 01.12.2018 and issued notice
dt. 06.12.2018 (P1) under Section 13(2) of the Securitization &
Reconstruction of Financial Assets & Enforcement of Security Interest Act,
2002 [for short ‘the SARFAESI Act’].
Petitioner and his brother submitted an OTS proposal alongwith
a demand draft of `10 lakh on 22.08.2019 (P2) to the respondents with a
condition to encash the same subject to acceptance of the settlement
proposal. The respondents however encashed the said demand draft but did
not accept the settlement proposal.
The Second OTS dt.18.06.2020 and its refusal
Petitioner and his brother again made a joint settlement
proposal on 18.06.2020 (P3) offering `75.32 lakh to the respondents but, the
same was not accepted.
Revised Settlement proposal dt. 16.7.2020 and its acceptance
Petitioner then submitted a revised settlement proposal on
16.07.2020 (P4) offering `85 lakh.
On 25.07.2020, the respondents-Bank accepted the settlement
proposal submitted by the petitioner for `85 lakh and issued a OTS sanction
letter dt.25.07.2020 (P5).
According to the said sanction letter, `25 lakh is payable by
31.07.2020, `20 lakh by 30.08.2020 and `40 lakh by 30.09.2020.
Petitioner by 30.09.2020 paid a sum of `49 lakh as against the
total settlement amount of `85 lakh and was unable to raise the balance
amount of `36 lakh by the last date of payment i.e. 30.09.2020.
Request of petitioner for extension of time to pay amount as the OTS
sanctioned and its refusal
On 30.09.2020, petitioner requested the respondents-Bank to
grant extension of 90 days time for making payment of the balance amount
of `36 lakh. He stated that delay had occurred in making this payment as the
purchaser to whom the petitioner had sold the property did not make
payment of `40 lakh in time (which was to be paid by the said purchaser by
28.09.2020). It was also mentioned that due to Covid-19, there was slow
down in business because of which the purchaser of the property could not
raise the funds to make full payment to the petitioner by the last date and
thus, the petitioner was constrained to seek extension.
When there was no response from the respondents-Bank,
petitioner represented on 31.12.2020 seeking time to make payment of `36
lakh with interest for the delayed payment.
According to the petitioner, the official of respondent
No.2-Bank refused to receive the letter/representation dt. 31.12.2020 (P7)
and so he sent the same by registered post.
Petitioner therefore, filed the instant Writ Petition for a
direction to the respondents to accept the balance amount of `36 lakh out of
the total settlement amount of `85 lakh along with interest at 9% p.a. w.e.f.
01.10.2020 to 31.12.2020.
Contention of the counsel for the petitioner
Counsel for the petitioner contends that the letter dt.31.12.2020
(P7) was received by the respondents on 02.01.2021 and the petitioner filed
the instant Writ Petition on 24.02.2021, and thereafter, deposited the sum of
`36 lakh in the Punjab and Sindh Bank by way of a Fixed Deposit on
Counsel for the petitioner contends that since the petitioner had
made a substantial payment towards OTS of `49 lakh in the time period
granted in the OTS sanctioned letter dt. 25.07.2020 (P5) by 30.09.2020, and
due to unavoidable circumstances, the petitioner could not pay the balance of
`36 lakh before 30.9.2020, the respondents should be directed to extend the
time for the OTS and accept the amount of `36 lakh offered by the petitioner
with interest for such delayed payment.
Counsel for the petitioner places reliance on the judgment of the
Division Bench of this Court in Anu Bhalla and another Vs. District
Magistrate, Pathankot1 and also a decision in Aseem Gaind Vs. Axis Bank,
Counsel also contended that the OTS policy of the
respondents-Bank was issued pursuant to the circular issued by the Reserve
Bank of India on 04.10.2007 and 21.06.2010; that the said OTS policy was
framed on 12.01.2016 and even thereafter was reviewed by the Board of
Directors of the respondents-Bank on 01.06.2017; and it also contained
Clause 6.9 which contemplated even delayed payment of OTS by extending
timelines subject to approval by the sanctioning authority. He contended
that the Writ Petition may, therefore, be allowed as prayed for.
Events after filing of the Writ Petition
Notice of motion was issued on 26.02.2021 for 22.07.2021 and
reply was filed on behalf of the respondents on 22.11.2021. Rejoinder was
filed on 21.12.2021. Thereafter, the matter was heard on 28.03.2022 and
order was reserved.
The respondents contended that the Writ Petition was not
maintainable since the petitioner had not exhausted alternative remedy
available under law.
According to the respondents, only one OTS proposal
dt.22.08.2019 was received by them.
They however admit that they had adjusted the sum of `10
lakhs paid by the petitioner along with the said OTS proposal.
As regards the OTS sanctioned on 25.07.2020, it is contended
that the petitioner was not able to fulfill obligation as per the said OTS, that
it lapsed after 30.09.2020, and is no longer valid. It is contended that the
petitioner was informed that the Bank will no longer receive `36 lakh on
account of non-fulfillment of terms of the OTS.
Stand taken by the petitioner in rejoinder
Rejoinder was filed by the petitioner contending that no
alternative remedy is available to the petitioner under law for the relief
sought in the Writ Petition and a Writ is maintainable for seeking extension
of time to make balance amount under the OTS, which relief is sought by
him in the Writ Petition.
He contended that after the sanction of OTS, when `49 lakh
was paid by the petitioner, the respondents ought to have taken into account
the said payments and calculated interest on reducing balance, but instead
pressed the ECS against the amount deposited by the petitioner and acted
It is contended that the respondents inflated the amount payable
by charging late payment interest arbitrarily.
He reiterated the contentions raised in the Writ Petition and
stated that he had represented to respondent No.2 on 24.03.2021 enclosing
copy of the FDR along with the cheque dt. 04.3.2021 with an offer to make
payment of the balance amount of OTS with interest but, the respondents
returned the cheque for `36 lakh in May 2021 and acted arbitrarily.
Consideration by the Court
The instant Writ Petition is maintainable
As far as the maintainability of the Writ Petition is concerned, it
is not in dispute that the respondents- DCB Bank is a Scheduled Bank
mentioned in the Schedule of the Reserve Bank of India Act, 1934 and is
governed by the Banking Regulation Act, 1949 [for short ‘the Banking
Admittedly, the OTS policy framed by the respondents was
pursuant to certain circulars issued by the Reserve Bank of India.
Clause 6.1 of the OTS Policy of respondents placed before this
Court states as under: -
The Reserve Bank of India vide Circular DBOD
No.BP.BC.34/21.04.048/2007-08 dt. October 4, 2007 directed the banks to
lay down policies and guidelines covering among other things valuation
procedure to be followed to ensure that the economic value of financial
asset is reasonably estimated bases on the assessed cash flows arising out
of repayments and recovery prospects. Also, RBI vide circular BP.BC.
NO.112/21.04..048/2009-10 dt. June 21, 2010 required the sanctioning
authority to append a certificate on compromise settlement conforming to
the regulatory guidelines. To comply with the regulatory guidelines, the
Bank has put in place Board approved One Time Settlement Policy on 12th
January 2016 which was reviewed by Board of Directors on 1st June
It is not in dispute that the Reserve Bank of India is a statutory
authority and exercises supervisory power in the matter of functioning of
Scheduled Banks. It supervises the Scheduled Banks and is empowered to
issue guidelines from time to time under Section 21 of the Banking
Regulation Act, 1949 [for short ‘the 1949 Act’].
The guidelines issued by the Reserve Bank of India are binding
on all Scheduled Banks as per the decision of the Supreme Court in Central
Bank of India Vs. Ravindra3.
In Sardar Associates and others Vs. Punjab and Sind Bank
and others4, the Supreme Court held, following the above decision, that the
Reserve Bank of India, in exercise of the power conferred on it under
Section 21 of the 1949 Act, can formulate policies which banking companies
are bound to follow; and Sub Section (3) of Section 21 of the 1949 Act
mandates that every banking company shall be bound to comply with the
directions given to it in terms thereof. It also noted that Section 35-A of the
1949 Act empowers the Reserve Bank of India to issue directions inter alia
in the interest of banking policy. It held that pursuant to the guidelines issued
by the Reserve Bank of India, an OTS Scheme is framed by a Bank and so
the said Bank cannot violate the terms of the said Scheme but must act
according to the guidelines framed by the Reserve Bank of India. It
declared that if in terms of guidelines issued by the Reserve Bank of India, a
right is created in a borrower, a Writ of Mandamus can also be issued since
the guidelines of the Reserve Bank of India have statutory flavor as held in
the Central Bank of India case ( 3 Supra).
In fact a Division Bench of this Court in Anu Bhalla (1 Supra),
specifically held that in exercise of jurisdiction under Article 226 of the
Constitution of India, High Courts would have the jurisdiction to extend the
period of settlement as originally provided for in the OTS letter subject to
certain guidelines laid down in the said judgment.
It held that One Time Settlement is not cloaked with rigorous
principles which may not permit extension of period to pay the
remaining/balance settlement amount; and in fact OTS policies of certain
Banks themselves contain provisions for extension for the time period in
their respective settlement Policies.
Once this is so, the Bench held that there is no reason to hold
that the Courts, in exercise of their equitable jurisdiction under Article 226
of the Constitution of India, cannot extend such time period of settlement.
It held that the willful defaulters and fraudsters would not be
entitled to such extension, and in the case of a deserving borrower, who has
deposited substantial amount within the original stipulated period of
settlement, and proved his bona fides, and is willing to clear the remaining
amount in a reasonable period and also compensate the creditor with interest
for the period of delay, the Court can consider extending the period with
some flexibility to achieve the ultimate aim of such settlement.
It laid down certain illustrative guidelines which are required to
be considered cumulatively or individually on case to case basis to decide
whether in a given case an applicant would be entitled for the extension of
A. The original time provided in the Settlement:-
If the time period originally stipulated in the settlement letter to
pay off the settlement amount is short or is not excessive, the
case for extension could be considered, and reasonable time
must be given to the borrower to arrange the funds to clear off
the OTS.
B. Extent of payments already deposited under the settlement
or before filing of the petition:-
If the borrower has already paid substantial amounts to the
creditor under the OTS, and for some remaining amounts, is
seeking a reasonable extension, such request can be considered
favourably.
If the borrower was prevented by certain reasons or
circumstances beyond his control, it could be a reason to
consider an extension favourably. It would be imperative for the
borrower to show, that he made his best efforts to ensure that
the requisite amounts are arranged within the specified time, but
in spite of all his best efforts, he could not arrange for the same.
D. Payments having been accepted by the Bank/Financial
Institution, after the stipulated date:-
If some payments were accepted by the Bank even after the
stipulated period of time, it would show that the time was not
the essence of contract, and it would be apparent from such
conduct, that certain amount of relaxation or flexibility in
making the payment of OTS amount is reserved between the
parties.
E. Bona fide Intent of the borrower to pay the remaining
amounts under the settlement –
The bonafide intention of such an applicant could reasonably
be tested by asking such an applicant to deposit some further
amount, towards the balance amount before calling upon the
bank to consider the issue of extension. If such amounts are
deposited under the orders of Court and the bonafides are
established, such an applicant would be entitled for a favourable
consideration of an application for extension.
F. Time period being demanded by the applicant to clear the
remaining / balance settlement amount.
An applicant whose intention would be to clear the balance
settlement amounts, would not claim an unreasonable period of
time extension, as otherwise, the intention would be to gain
more time, without any actual intent to clear the settlement. In
the facts and circumstances of each case, the Courts would
therefore determine a reasonable period, to enable the borrower
to clear the remaining settlement amount, subject of course, to
payment of reasonable interest for the delayed period, to
balance the equities.
Illustrations of such factors could be the situation created by
COVID-19 pandemic, and the difficulties in arranging the
amounts could be taken note of while determining the period of
extension to be granted to an applicant. Likewise, losses
suffered on account of natural calamities, unfortunate accidents,
fire incidents, thefts, damage by floods, storms etc. could also
be the factors to be taken into account for extension of time.
H. Irreparable loss and injury to the applicant
The Division Bench in Anu Bhalla (1 Supra) clarified that the
guidelines/factors are not exhaustive but only illustrative for the
guidance of the parties and the Courts, while considering the
prayer by the borrower for extension of the time under OTS on
case to case basis. It also held that the Courts would be free to
consider the credentials of the borrower as well, being an
equitable and discretionary relief.
Several decisions rendered by different High Courts and
Supreme Court were considered by the said Division Bench while rendering
the above judgment in Anu Bhalla ( 1 supra).
Therefore, the contention of the respondent-Bank that in no
circumstance can the Court grant extension of time for completion of the
payment under the OTS, cannot be countenanced. Such a power undoubtedly
exists, though not as a matter of right, and must be exercised by a High
Court keeping in mind the above guidelines/principles.
In the instant case, not only was the OTS policy framed by the
respondents-Bank but, there was a sanction also accorded for the OTS vide
Annexure P5 dt.25.7.2020 to the petitioner by the said Bank.
In the OTS Policy framed by the respondents-Bank, Clause 6.9
“In case of all compromise proposals sanctioned by the Bank, there would
be some sacrifice of Interest and/or principal. Hence it is of paramount
importance that the Bank needs to recover the agreed amount as per
compromise arrangement in accordance with the agreed terms and in
time. If any amount is not paid as per agreed terms, follow-up with the
borrower should be immediately initiated and pursued to recover the
overdue amount as per agreed terms. Collections team should initiate
recovery action and in case default persist for more than 90 days. Any
extension of timelines for payment of agreed amount should be approved
by respective sanctioning authority. However, if the advance is not
secured and borrower is paying installments with some day, the
settlements could be continued with intimation/ratification of sanctioning
authority.” (emphasis supplied)
A reading of the above Clause itself indicates that in certain
circumstances there could be extension of timelines for payment of agreed
amount payable under the OTS though approval of the respective
sanctioning authority is stated to be required.
Having regard to the terms of the above Clause in the OTS
Policy, it is not open to the respondents-Bank to take a stand as it did in its
reply at Para 11 that once the petitioner was not able to fulfill his obligation
as per the OTS, the OTS lapses and would no longer be valid.
It was duty bound to consider whether the request made by the
petitioner on 30.09.2020 for extension of time to comply with the OTS by 90
days is justified or not. It cannot be blindly rejected.
Since the respondents-Bank has acted contrary to the terms of
its own OTS policy, framed as per the RBI directives, a right is created in the
petitioner which is certainly enforceable by way of a Writ Petition under
Article 226 of the Constitution of India.
So we reject the plea of the respondents that the instant Writ
Petition is not maintainable.
The plea of availability of alternative remedy to petitioner is rejected
The plea of alternate remedy raised by the respondents,
probably referring to the remedy available under Section 17 of the
SARFAESI Act, in our considered opinion, is not a tenable plea either.
The Debt Recovery Tribunal constituted under the Recovery of
Debts Due to Banks and Financial Institutions Act, 1993, is the Forum
mentioned in Section 17 of the SARFAESI Act, and is empowered to deal
with applications against the measures to recover secured debts, referred in
Sub Section (4) of Section 13 of the SARFAESI Act, taken by the Secured
Creditor, and under Sub Section (2) of Section 17 of the SARFAESI Act is
empowered to consider whether any such measure taken by the secured
creditor for enforcement of security are in accordance with the provisions of
this Act and the rules made thereunder.
In cases, like the instant one, where such measures have not
been initiated yet, the remedy under Section 17(1) of the SARFAESI Act
cannot be availed prima facie. Also where extension of time for OTS is to be
granted or not is not an issue normally within the purview of the DRT
having regard to the language contained in Sec.17 of the SARFAESI Act.
The decision in Phoenix ARC Private Limited is inapplicable.
Reliance placed by the counsel for the petitioner on the
Supreme Court judgment in Phoenix ARC Private Limited Vs. Vishwa
Bharati Vidya Mandir & Ors5 is of no avail because firstly the
respondents-Bank is not an Asset Reconstruction Company unlike the
appellant in the said case. Secondly, in that case a writ petition had been
moved in the High Court by the respondent in the said civil appeal against
the appellant Assets Reconstruction Company, complaining of action
initiated under Section 13(4) of the SARFAESI Act and in that context, on
the facts of the said case, the Supreme Court expressed a view that the Writ
Petition under Article 226 of the Constitution of India is not maintainable
when there is an effective alternate remedy available unless the case of the
petitioner falls within the exceptions carved out in Whirlpool Corpn. Vs.
Registrar of Trade Marks6 and other judgments mentioned therein.
The Court held that when the appellant in that case gave a
notice to the respondent-borrower to make payment within two weeks failing
which a further proceeding under Section 13(4) of the SARFAESI Act was
proposed - against such a proposed action, the Writ Petition is not
maintainable or entertainable.
There is also an observation that a Writ Petition against the
private financial institution such as Asset Reconstruction Company under
Article 226 of the Constitution of India against the proposed action/actions
under Section 13(4) of the SARFAESI Act can be said to be not
maintainable and that the said Asset Reconstruction Company was not
performing public functions which are normally expected to be performed
by the State authorities.
The attention of the Supreme Court does not appear to have
been drawn to the fact that the Asset Reconstruction Companies owe their
origin to Section 3 of the SARFAESI Act and their registration is done by
the Reserve Bank of India, and such registration can be cancelled by the
Reserve Bank of India under Section 4 of the SARFAESI Act. Under
Section 5 of the SARFAESI Act they are permitted to acquire financial
assets of any Bank or Financial Institution. Under Section 9 of the
SARFAESI Act, the Asset Reconstruction Company is empowered to adopt
certain measures for asset reconstruction, and under Sub Section (2) of
Section 9 of the SARFAESI Act, the Reserve Bank is empowered to
determine the policy and issue necessary directions including the direction
for regulation of management of the business of the borrower and fees to be
charged. Reserve Bank of India is given power to supervise over the Asset
Reconstruction Companies under Section 12A and 12B of the SARFAESI
A learned Single Judge of the Andhra Pradesh High Court in
Ltd.7 Held, after considering all the provisions of the SARFAESI Act, that a
Writ Petition under Article 226 of the Constitution of India is maintainable
against an Asset Reconstruction Company. The said decision was also
confirmed by a Division Bench constituted by Justice Anil Ramesh Dave
and Justice R. Subhash Reddy in Writ Appeal No. 412 of 2008 on
24.09.2009. The decision of the Division Bench was also confirmed as
SLP(C) No. 012697 of 2010 filed against the said judgment was dismissed
For the aforesaid reasons, we hold that the decision is Phoenix
ARC Private Limited (5 Supra) cannot be of any assistance to the
“Whether in the facts and circumstances of the case, the
petitioner is entitled to grant of extension of time for
complying with the OTS sanctioned on 25.07.2020 and if so,
Admittedly vide Annexure P-5 dt. 25.07.2020, the
respondents had sanctioned an OTS for a total amount of `85 lakh to the
petitioner as per the OTS Policy framed by them. Under the terms of the
said sanction, petitioner was to pay `25 lakh by 31.07.2020, `20 lakh by
30.08.2020 and `40 lakh by 30.09.2020.
No doubt it contains a clause that in case of default in
compliance with the above payment schedule, the settlement offer shall
stand cancelled and the Bank reserves the right to re-debit petitioner’s
account with all waivers and initiate legal action.
It is not in dispute that by 30.09.2020, petitioner had paid
`45 lakh and the balance payable was `40 lakh.
On 30.09.2020, petitioner made a request for extension of
the OTS by 90 days on account of the Covid-19 Pandemic, slowing
down of economy, slow flow of funds in the market and also on the
ground that the purchaser of the mortgaged property delayed payment of
the said amount to him.
Petitioner admittedly deposited `4 lakh with the said
letter/request dt. 30.09.2020.
So the balance payable after 30.09.2020 was `36 lakh.
Petitioner wrote a letter on 31.12.2020 that the balance
amount of `36 lakh plus interest from 01.10.2020 till that date was
arranged by him, that he did not receive consent to deposit the same to
adjust the account, and he would deposit the said amount within 48 hours
of the respondents’ giving consent.
Petitioner alleges that the incharge officer of the branch of
the respondent No.2 refused to receive the said letter and so the
petitioner sent it by Regd. Post and the same was received on 02.01.2021
by the respondent No.2.
The above facts reveal that the petitioner had deposited a
substantial amount of `49 lakhs out of `85 lakhs sanctioned as OTS by
30.09.2020, the last date for payment fixed under the sanction letter dt.
25.07.2020 and thus proved his bona fide.
The difficulties caused to borrowers on account of the
Covid-19 Pandemic in the year 2020 and 2021, the slowing down of the
economy are matters of common knowledge. The petitioner claims that
the purchaser of mortgaged property from the petitioner delayed
payment of portion of the sale consideration as a consequence of which
petitioner could not pay the same by 30.09.2020 and sought time till
31.12.2020 to pay the balance `36 lakh with interest. We see no reason
to disbelieve the petitioner’s contention.
We are of the opinion that these difficulties faced by the
petitioner cannot be brushed aside lightly and ought to be
sympathetically considered by this Court keeping in mind that only two
months and five days (the time gap between the date of sanction of OTS
on 25.07.2020 and the date of 30.09.2020 which was the last date for
payment of `85 lakh) i.e. a very short time was granted, and only 90
days (till 31.12.2020) was sought for payment of the balance `36 lakh.
The petitioner had arranged the balance `36 lakh with interest by
31.12.2020 and claims to have approached the Bank with the letter to
make the payment of the same, and when the official of the Bank refused
to receive it, he sent it by Regd. Post which was received on 02.01.2021
by the respondent No.2/Bank.
Even thereafter, there was no response from the Bank and
the petitioner had to file the instant Writ Petition on 24.02.2021.
We are satisfied that the material on record in this case
indicates that the case of the petitioner falls within the parameters fixed
in the decision of Anu Bhalla (1 Supra) by this Court, and that in the
interest of justice and equity, the time for payment of the balance OTS
amount ought to be extended, in the facts and circumstances of the case.
We are also of the opinion that the non acceptance of the
amount of `36 lakh with interest offered by the petitioner on
31.12.2020/02.01.2021 by the respondents is arbitrary and illegal and
violative of Article 14 of the Constitution of India particularly when the
OTS policy itself in Clause 6.9 contemplated extension of timelines for
payment of the sanctioned OTS.
Since the pendency of this Writ Petition till date cannot be
to the prejudice of the petitioner, the petitioner is directed to deposit the
sum of `36 lakh plus interest thereon at 9% per annum from 30.09.2020
till 02.01.2021 only within ten days from the date of receipt of a copy of
this order; and the respondents are directed to adjust the same towards
the OTS sanctioned on 25.07.2020 vide Annexure P-5, release the
securities, if any, to the petitioner within two weeks of receipt of the
above payment.
Writ petition is allowed accordingly. No costs.
|
A Division Bench comprising of Justice M.S. Ramachandra Rao and Justice Jasjit Singh Bedi of the Punjab and Haryana High Court, in the matter of Amrik Singh v DCB Bank Ltd. and Anr., has held that the High Court, in the exercise of its powers under Article 226 of the Constitution of India, can grant an extension of time for completion of the payment under the One Time Settlement (OTS),...
A Division Bench comprising of Justice M.S. Ramachandra Rao and Justice Jasjit Singh Bedi of the Punjab and Haryana High Court, in the matter of Amrik Singh v DCB Bank Ltd. and Anr., has held that the High Court, in the exercise of its powers under Article 226 of the Constitution of India, can grant an extension of time for completion of the payment under the One Time Settlement (OTS), if the guidelines given in the case of Anu Bhalla and another v District Magistrate, Pathankot, 2021 (1) RCR (Civil), are met. The order was passed on 06.04.2022.
Facts Of The Case
Two proprietary firms were being run by the Petitioner and his brother to carry out business. Both these firms had availed loan from DCB Bank ("Respondent No.1/Bank") amounting to Rs. 67 Lakh in 2013. The loan was against property, and in 2015 it was enhanced to Rs. 95 Lakh. The Petitioner also stood as a personal guarantor to the credit facility by mortgaging his property in favour of Respondent No. 1.
The loan account of the Petitioner was declared Non-Performing Asset (NPA) 01.12.2018 when EMIs were not paid on time. Accordingly, notices under Section 13(2) of the Securitization & Reconstruction of Financial Assets & Enforcement of Security Interest Act, 2002 ("SARFAESI Act") were issued.
The Petitioner had submitted its first One Time Settlement ("OTS") proposal to the Bank on 22.08.2019, along with a Demand Draft ("DD") of Rs. 10 Lakh, which was to be encashed subject to acceptance of the proposal. The Bank encashed the DD but did not accept the proposal. The Petitioner and his brother made a joint settlement proposal on 18.06.2020, offering Rs. 75.32 Lakh to the Bank; however the same was also not accepted. After that, the Petitioner submitted a revised proposal on 16.07.2020 offering Rs. 85 Lakh, which was accepted by the Bank and a sanction letter was issued on 25.07.2020. The OTS was payable in three instalments, i.e., Rs. 25 Lakh was payable by 31.07.2020, Rs. 20 Lakh by 30.08.2020 and Rs. 40 lakh by 30.09.2020.
Till 30.09.2020, the Petitioner had paid Rs. 49 Lakhs against the total OTS amount and was unable to raise the balance amount of Rs. 36 Lakh. Therefore, it requested the Bank for an extension of 90 days for paying the balance amount. The third instalment had got delayed since the purchaser to whom the Petitioner had sold his property had not made payment of Rs. 40 Lakh in time, which was to be paid by the said purchaser by 28.09.2020. Due to Covid-19 and resultant slow down in business, the purchaser of the property was unable to make full payment on time. The Petitioner had also addressed a representation to the Bank on 31.12.2020 through Registered Post requesting extension of time, to which no response was received.
Thereafter, the Petitioner filed a writ petition before the Punjab and Haryana High Court seeking direction to the Respondents to accept the balance amount of Rs. 36 lakh along with interest at 9% p.a. w.e.f. 01.10.2020 to 31.12.2020.
Contentions Of The Petitioner
The Petitioner contended that since a substantial payment of Rs. 49 Lakhs was already made towards the OTS; an extension of time should be granted for the balance payment, which remained unpaid due to unavoidable circumstances. The Petitioner also apprised the Court that the Petitioner had already deposited the sum of Rs. 36 Lakh in the Punjab and Sindh Bank by way of a Fixed Deposit on 25.03.2021.
The Petitioner placed reliance on the Division Bench judgment of Punjab and Haryana High Court passed in Anu Bhalla and another vs District Magistrate, Pathankot, 2021 (1) RCR (Civil) and in Aseem Gaind Vs. Axis Bank, Retail Assets Centre, CWP-32015-2019. It was further argued that the OTS policy of the Bank was issued pursuant to the circular issued by the RBI on 04.10.2007 and 21.06.2010, and Clause 6.9 of the said Policy contemplated even delayed payment of OTS by extending timelines subject to approval by the sanctioning authority.
Contentions Of The Respondents
The Respondents contended that the writ petition is not maintainable as Petitioner has not exhausted an equally efficacious remedy under Section 17 of the SARFAESI Act. Further, it was argued that the Bank received only the OTS proposal dated 22.08.2019 and admittedly the DD amounting to Rs. 10 Lakhs was encashed by the Bank. The Respondents argued that Petitioner failed to dispense its obligations as per the OTS, hence, the OTS lapsed and became invalid. The Bank had accordingly informed the Petitioner that it would not receive the balance amount of Rs. 36 Lakhs.
Observations Made By The Court
The Bench observed that the DCB Bank is a Scheduled Bank mentioned in the Schedule of the Reserve Bank of India Act, 1934 and is governed by the Banking Regulation Act, 1949 ("1949 Act"). Admittedly, the OTS policy framed by the Bank was pursuant to circulars issued by the RBI. The guidelines issued by the RBI are binding on all Scheduled Banks as per the decision of the Supreme Court in Central Bank of India vs Ravindra, 2002 (1) SCC 367.
Power To Issue A Writ Of Mandamus
The Bench relied on the judgment of Sardar Associates and others vs Punjab and Sind Bank and others, 2009(8) SCC 257, wherein the Supreme Court has held that the RBI, under Section 21 of the 1949 Act, is empowered to formulate policies which banking companies are bound to follow. It was observed that the OTS scheme framed by a bank could not violate the guidelines framed by RBI. If in terms of guidelines issued by the RBI, a right is created in a borrower, a Writ of Mandamus can also be issued since such guidelines have a statutory flavour.
High Courts Are Empowered To Extend The OTS Period
The Bench observed that in the case of Anu Bhalla and Anr v District Magistrate, Pathankot, 2021 (1) RCR (Civil), it has already been held that under Article 226 of the Constitution of India, High Courts would have the jurisdiction to extend the period of settlement as originally provided for in the OTS letter, subject to specific guidelines laid down in the said judgment. It was further held in the said case that OTS is not cloaked with rigorous principles, which may not permit an extension of the period to pay the balance settlement amount. Willful defaulters and fraudsters would not be entitled to such extension. However, in the case of a deserving borrower, the Court can consider extending the period to achieve the ultimate aim of such settlement, if the following conditions (as per the Anu Bhalla case) are met:
Duration of OTS is short and nor excessive;Substantial amount paid to the creditor under the OTS and for some remaining amounts a reasonable extension is being sought; Non-payment of balance amount due to circumstances beyond control;Payments accepted by the bank even after stipulated date, which shows time was not the essence of the contract; Bona fide intent of the borrower; Reasonable time period demanded by the borrower to pay remaining amount and compensation to the creditor with interest for the delay period;Attending factors and circumstances such as COVID-19 pandemic or natural disasters; andIrreparable loss and injury to the borrower.
Banks Cannot Blindly Reject The Request For An Extension
The Bench rejected the contention of the Respondent that the Court cannot grant an extension of time for completion of the payment under the OTS. It was held that "such a power undoubtedly exists, though not as a matter of right, and must be exercised by a High Court keeping in mind the above guidelines/principles." It was further held that the request for extension of time of OTS period could not be blindly rejected by the Bank, as it was duty-bound to consider whether the request made by the Petitioner on 30.09.2020 for extension of time by 90 days is justified or not.
The Bench held that the Bank had acted contrary to the terms of its own OTS policy, framed as per the RBI directives, and it is a right created in the Petitioner which is certainly enforceable by way of a Writ Petition under Article 226 of the Constitution of India. The plea of the Respondents that the petition is not maintainable was rejected.
Section 17 Of The SARFAESI Act Is Not An Alternate Remedy
The plea of the Respondents that an alternate remedy under Section 17 of the SARFAESI Act is available to the Petitioner was declared untenable. It was clarified that under Section 17 of the SARFAESI Act, the Debt Recovery Tribunal ("DRT") is empowered to deal with applications against the measures to recover secured debts taken by the Secured Creditor and consider whether such measures are in accordance with the provisions of this SARFAESI Act or not. In cases like the instant one, where such measures have not been initiated yet, the remedy under Section 17(1) of the SARFAESI Act cannot be availed prima facie. Also, whether an extension of time for OTS is to be granted or not is an issue generally within the purview of the DRT having regard to the language contained in Section 17 of the SARFAESI Act.
Grounds Considered By The Bench For Granting Extension
The Bench observed that the Petitioner had deposited a substantial amount of Rs. 49 Lakhs out of the total Rs. 85 Lakhs sanctioned as OTS by 30.09.2020, which proved its bona fide. The Bench also found substance in the Petitioner's reasoning for delay in payment. It was observed that the difficulties caused to borrowers on account of the Covid-19 Pandemic in the year 2020 and 2021, the slowing down of the economy are matters of common knowledge. The difficulties faced by the Petitioner cannot be brushed aside lightly and ought to be sympathetically considered by this Court, keeping in mind that only two months and five days were given for payment of the entire OTS amount, i.e. a very short time, and only 90 days extension was being sought for payment of the balance amount of Rs. 36 Lakh, which the Petitioner already arranged with interest by 31.12.2020.
The Bench was satisfied that the material on record indicates that the case of the Petitioner falls within the parameters fixed in the decision of Anu Bhalla and that in the interest of justice and equity, the time for payment of the balance OTS amount ought to be extended. It further opined that the non-acceptance of the amount of Rs. 36 Lakh with interest offered by the Petitioner on 31.12.2020/02.01.2021 by the Respondents is arbitrary and illegal, and violative of Article 14 of the Constitution of India. The Bank's own OTS policy in Clause 6.9 contemplates extension of timelines for payment of the sanctioned OTS.
Decision Of The Court
The Bench allowed the writ petition and passed the following order:
"Since the pendency of this Writ Petition till date cannot be to the prejudice of the Petitioner, the Petitioner is directed to deposit the sum of '36 lakh plus interest thereon at 9% per annum from 30.09.2020 till 02.01.2021 only within ten days from the date of receipt of a copy of this order; and the respondents are directed to adjust the same towards the OTS sanctioned on 25.07.2020 vide Annexure P-5, release the securities, if any, to the Petitioner within two weeks of receipt of the above payment. Writ petition is allowed accordingly. No costs."
Case Title: Amrik Singh vs DCB Bank Ltd. and Another, CWP-4631-2021.
Counsel for Petitioner: Adv. Jyoti Sareen
Counsel for Respondent: Adv. A.D.S Sukhija
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Mr. S. G. Chapalgaonkar, Advocate for Respondent no.2
1. The appellant takes exception to the order passed by the
learned Commissioner for Workmen’s Compensation and Judge
Labour Court at Latur in Application (WCA) No. 4 of 98 dated
2. The facts giving rise to the Appeal were that the appellant
was a driver with respondent no.1. Respondent No. 1 owned a
truck bearing no. Mh-04-C-6933 and was insured with respondent
no.2. He met with a vehicular accident on 13.04.1997. He
sustained the injury to his femur and toe of the left leg. He was
hospitalised for around twenty days. He sustained 35% physical
disability. He was employed with respondent no.2 on the day of
the accident. He could not work as before the accident. He served
the notices to both respondents. However, none of the
respondents has paid him the compensation. Hence, he filed an
application under Section 3 and 22 of the Workmen’s
(“1923 Act”, for short).
3. The learned Commissioner rejected his Claim for the reason
that the appellant had already approached the Motor Accident
Claims Tribunal and had received the compensation under section
140 of the Motor Vehicles Act 1988; (“M.V.Act”, for short)
therefore, the Claim is barred under section 167 of the M.V. Act.
Hence, this appeal.
4. The respondents have neither denied the accident nor the
relationship with the appellant. Respondent no.2/insurer objected
that the application is bad for no notice under section 10 of the
1923 Act. However, the learned Commissioner has discarded the
said objection and no appeal or cross-appeal is preferred against
the said finding. It has also objected that the application is hit by
section 167 of the M.V. Act.
5. Heard the learned counsel Shri. B.R. Kedar for the appellant
and the learned Counsel Shri S.G. Chapalgaonkar for respondent
no.2 at length. None appeared for respondent no.1.
6. Learned counsel for appellant Shri. Kedar would argue that
the learned Commissioner has misread and misinterpreted section
167 of the M.V. Act. An application under Section 140 of M.V. Act
has been excepted from the bar envisaged in Section 169 of M.V.
Act and an application for compensation either under the
Workmen’s Compensation Act or M.V. Act, is maintainable. He
would rely on the case of Maroti Shrawan Manghate vs Smt. Rita
Y. Sapra and Anr. [2018 (1) All MR. 700].
7. Per contra, learned counsel Shri. Chapalgaonkar for
respondent no.2 would argue that after the impugned order, the
appellant had filed another application under section 166 of M.V.
Act. The appellant had made the incorrect statement before this
court that the said application had been withdrawn. However, the
copy of the order passed in the said application reveals that the
said application was dismissed for default. The appellant was
exercising the remedies simultaneously by suppressing the
material facts from the court. If the said application had been
withdrawn, the situation would be different. But the said
application was dismissed for default. Therefore, the application
cannot be considered. There is no substance in the appeal. If the
court concludes that the appeal deserved to be allowed, the
matter should be remitted to the learned Commissioner, as the
application has been decided without answering all the issues
8. A short point that arises for consideration is, Whether the
compensation granted under chapter X of the M.V. act forfeits the
right of the employee to claim the compensation under section 3
of the 1923 Act as provided under Section 167 of the M.V. Act ?
9. Before adverting to the issue involved in the appeal, it would
rather be appropriate to reproduce Section 167 of the M.V.Act,
“167. Option regarding claims for compensation in certain cases.
— Notwithstanding anything contained in the Workmen’s
Compensation Act. 1923 (8 of 1923) where the death or bodily
injury to, any person gives rise to a claim for compensation
under this Act and also under the Workmen’s Compensation Act,
1923, the person entitled to compensation may without prejudice
to the provisions of Chapter X claim such compensation under
either of those Acts but not under both.”
10. The bare reading of the section reveals that the option as
envisaged in section 167 of the M.V. Act is available only to the
employees covered under the 1923 Act. It provides two forums.
The option lies with an employee claiming compensation either
under the 1923 Act or M. V. Act. But, employee cannot claim the
compensation under both the Acts. However, chapter X of the M.V.
Act is excepted from the bar envisaged in Section 169 of M.V. Act.
11. Chapter X of the M.V. Act deals with liability without fault in
certain cases. Said chapter contains Sections 140 to 144. Section
140 speaks of the liability to pay compensation in certain cases i.e
death and permanent disablement, on the principle of no fault.
Under this section, the person who died or sustained permanent
disablement is entitled to compensation. Section 141 speaks of
the other right to claim compensation for death or permanent
disablement. It has been provided in the said section that the
compensation under this chapter is in addition to the right to claim
compensation under the principle of fault except the right to claim
under section 163-A of the M.V.Act. Section 142 defines
permanent disablement. Section 143 speaks of the application of
this chapter to certain claims under Act 8 of 1923, and Section
144 speaks of the overriding effect of the provisions of this
chapter. As against this, Section 167 of the M.V. Act falls under
chapter XII. The said chapter includes the provisions for the
constitution of the Claims Tribunal, application for compensation
under section 166 under the principle of fault, the option of the
forum to the employees covered under 1923 Act, awards of the
Claim Tribunal, procedure and powers of the Claim Tribunal,
impleading insurer in certain cases, award of interest, award of
compensatory costs in certain cases, appeals, recovery of money
from the insurer, and the powers of the State government to make
12. Application of chapter X as envisaged in section 143 and
exception of the applicability of this chapter as envisaged in
section 167 should be read together to answer the point that has
arisen for consideration. Section 143 is very specific that the
provisions of chapter X of the M.V. Act shall apply to any claim for
compensation in respect of the death or permanent disablement to
any person under the 1923 Act resulting from an accident of the
nature involved in sub-section (1) of Section 140 and for the said
purpose the said provisions shall, with necessary modifications
have been deemed to form the part of that Act. The provisions of
the Sections are unambiguous, that where the death or
permanent disablement is caused to an employee in a vehicular
motor accident, he is entitled to the compensation under the
principle of no fault liability in addition to the compensation under
the principle of fault liability.
13. Section 167 barely provides for the choice of the forum to
the employee. Section 3 of the 1923 Act pertains to the
employer’s liability to pay compensation. The object of these two
acts is to pay the compensation to an employee if he loses his life
or suffers permanent, partial or permanent total disablement
sustained in a vehicular motor accident. The compensation for
vehicular motor accidents is covered under the M.V. Act. It also
covers the compensation for the driver of the vehicle involved in
the accident. However, in case the driver of such a vehicle is an
employee of the owner of the vehicle. In such a case, the law has
given him an option to seek compensation either under the M.V.
Act or Employee’s Compensation Act, 1923. Once the employee
exercises an option under either of the law, he can not opt for the
other forum after either forum passes the award.
14. The words in section 167 of M.V.Act, “Without prejudice to
the provisions of Chapter X” , are self speaking to interpret the
said section that an application decided by the Claims Tribunal
under section 140 of the said Act, does not bar the employee from
availing remedy for compensation under the 1923 Act on the
principles envisaged in the said Act. Reading section 167 would
reveal that chapter X of the M.V. Act has no application while
opting for the forum to claim the compensation. In other words,
the reliefs granted under chapter X of the M.V. Act would not come
in the way of claiming compensation before the Commissioner of
Employee’s Compensation or the Claims Tribunal.
15. The Bombay High Court at Nagpur Bench, in the case of
Maroti (supra), had an occasion to deal with the similar issue.
Interpreting section 167 of the M.V. Act, it has been observed in
the said case that Section 167 of the M.V. Act gives the option
only to proceed either under M.V. Act or W.C.Act. But it has no
application to Chapter X. The right to claim compensation under
W.C. Act is not forfeited upon receiving compensation on no fault
16. By discussing the facts and law, this court concludes that
Where the employee receives compensation under Chapter X of
the M.V. Act, his remedy to seek compensation either under the
1923 Act or the M.V. Act cannot be forfeited under section 167.
Such an employee has an option to move an application for
compensation either under the 1923 Act or M.V. Act. Accordingly,
the question that arisen for consideration is answered.
17. So far as the objection that the application filed under
section 166 of the M.V. Act is concerned, this court is of the view
that once the Commissioner passes an award under the
Employee’s Compensation Act 1923, no such application would lie
before the Claims Tribunal. Otherwise, that application also did not
affect the remedy availed by the appellant before the
18. The learned counsel Shri Chapalgaonkar has correctly
pointed out that the learned Commissioner did not record the
findings on all issues on merit. Therefore it would be inappropriate
to determine the compensation here.
19. For the aforesaid reasons, this court is of the opinion that
the learned Commissioner has misread and misinterpreted Section
167 of the M.V. Act and erroneously dismissed the application of
the appellant. Therefore the appeal is allowed, and the impugned
order is quashed and set aside.
20. Since all the issues have not been answered on merit, the
matter is remitted to the Commissioner of Employee’s
Compensation at Latur for determination of the compensation
afresh within six months from the receipt of this order.
21. Records and papers are sent back to the Commissioner of
Employee’s Compensation office at Latur.
22. No orders as to costs.
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The Bombay High Court recently dealt with a case wherein a truck driver, who was the employee of the owner of the truck met with a vehicular accident. As he had initiated compensation proceedings under section 140 of the Motor Vehicles Act 1988 ("M.V. Act"), his claim for compensation under the Workmen's Compensation Act 1923 (now Employees Compensation Act 1923) ("W.C. Act") was not entertained by the commissioner.
Single Judge S. G. MEHARE noted that the question before the court was, "Whether the compensation granted under chapter X of the M.V. act forfeits the right of the employee to claim the compensation under section 3 of the 1923 Act as provided under Section 167 of the M.V. Act?" This was answered in the negative by the court.
The appellant was a driver of the truck of respondent no. 1 which was insured by respondent no. 2. He met with a vehicular accident in which his left leg was injured, and he suffered 35% physical disability. He could not work as before the accident. He served the notices to both respondents. However, none of the respondents has paid him the compensation. Hence, he filed an application under Section 3 and 22 of W.C. Act.
The Commissioner rejected his claim as he had already approached the Motor Accident Claims Tribunal. He had received compensation under section 140 of the M.V. Act therefore, the Commissioner held that the claim is barred under section 167 of the M.V. Act.
Aggrieved, the appellant filed this appeal. Relying upon the case of Maroti Shrawan Manghate vs Smt. Rita Y. Sapra and Anr. [2018 (1) All MR. 700], he stated that the Commissioner has misread and misinterpreted section 167 of the M.V. Act. An application under Section 140 of M.V. Act does not fall under the bar of Section 169 of M.V. Act. An application for compensation either under the W.C. Act or M.V. Act is maintainable pursuant to a Section 140 application.
The court noted that section 140 is part of Chapter X of the M.V. Act which deals with liability without fault in certain cases. Section 140 speaks of the liability to pay compensation in certain cases i.e death and permanent disablement, on the principle of no fault. Compensation under this chapter is in addition to the right to claim compensation under the principle of fault except the right to claim under section 163-A of the M.V. Act. Section 144 provides for the overriding effect of the provisions of this chapter.
The court observed that, "The provisions of the Sections are unambiguous, that where the death or permanent disablement is caused to an employee in a vehicular motor accident, he is entitled to the compensation under the principle of no fault liability in addition to the compensation under the principle of fault liability."
Section 167 of the M.V. Act enables a driver who is also an employee to select which forum he wants to approach for compensation, reliefs granted under chapter X of the M.V. Act would not come in the way of claiming compensation before the Commissioner of Employee's Compensation or the Claims Tribunal, the court observed.
The court concluded that if the employee receives compensation under Chapter X of the M.V. Act, his remedy to seek compensation either under the W.C. Act or the M.V. Act cannot be forfeited under section 167. Such an employee has an option to move an application for compensation either under the W.C. Act or M.V. Act.
The court noted that Commissioner has misread and misinterpreted Section 167 of the M.V. Act and erroneously dismissed the application of the appellant. Therefore, the appeal is allowed, and the impugned order is quashed and set aside. Since all the issues have not been answered on merit, the matter is sent back to the Commissioner of Employee's Compensation for determination of the compensation afresh within six months from the receipt of this order.
Case Title : Narayan v Mrs. Sangita and anr
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1. This Second Review Petition has been preferred by the
petitioner, who appeared in person after dismissal of his first
review petition by this Court bearing No. 3119 of 2020 on 5 th
2. Before adverting to the legal aspect as to whether second
review is tenable in the given facts and circumstances, it would
be expedient to briefly consider the background history of the
case.
3. The petitioner was an employee of the respondent-bank. A
disciplinary proceeding initiated against him on the ground of
unauthorized absence from the service between 21 st August,
1994 to 14th September, 1995, came to be unsuccessfully
challenged by him before the Trial and the First Appellate
Court. However, it was proved before the Courts below that
the petitioner’s absence till 30th September, 1994 was
authorized. There was nothing to show that the petitioner’s
admitted absence from service after 1 st October, 1994 and until
14th September 1995, when the charge-sheet was issued against
him on the ground of unauthorized absenteeism, was
authorized.
4. The petitioner’s case before the Enquiry Officer as well as the
Courts below was that he was entitled to voluntary retirement
from the service w.e.f. 1st October, 1994 and that his application
seeking voluntary retirement was not accepted by the
respondent-employer on the ground that the voluntary
retirement was not in force. The petitioner had placed reliance
on a circular of Indian Banks Association, dated 4 th January,
1996 by contending that the voluntary retirement scheme in
terms of the settlement with the unions under the Industrial
Dispute Act, was a binding settlement and the employees of the
RPW-3 of 2022-Jud=.doc
banks were entitled to the benefit of the settlement from the
date mentioned therein, i.e. 1st November, 1993. While
dismissing Second Appeal of the petitioner, this Court in its
order dated 4th November, 2019 has categorically observed in
paragraph nos.3 and 4, which is extracted below :-
“3. The controversy in the present case is not
whether or not the Respondent-bank rightly refused to
accept the Appellant’s application for voluntary
retirement, though it was bound to accept such
application. The fact of the matter is that it did not do
so at the relevant time. If the Appellant was aggrieved
by the bank’s refusal to accept his voluntary application,
his remedy was to get the bank accept it by invoking the
appropriate provisions of law. He did not do so. He
simply cannot chose to remain absent on the ground
that he was deemed to have voluntarily retired on the
basis of the applicable scheme and his application made
in response thereof. The Enquiry Officer as well as the
Disciplinary Authority and the two courts cannot
accordingly be said to have erred in passing the
impugned orders. The charge against the Appellant was
that he was absent without a proper authorization.
Though the charge that he was absent with effect from
21 August 1994 was not proved, what was proved was
that he was absent unauthorizedly with effect from 1
October 1994 and till 15 September 1995, when a show-
cause notice was issued to him. It is no answer to this
charge of unauthorized absence that the bank was
legally bound to consider the application for voluntary
retirement preferred by the employee.
4. On these facts and in the light of the impugned
decisions of the two courts below, no substantial
question of law arises in the matter for consideration of
this court. The Second Appeal, thus, has no merit and is
dismissed accordingly.”
5. Dissatisfied with the dismissal of the Second Appeal, the
petitioner preferred First Review Petition (St.) No.3119 of
2020, which also came to be dismissed by the same Hon’ble
Judge on 5th October, 2020. Paragraph nos. 4 to 6 of the oral
judgment are extracted below for advantage, which read thus :-
“4. The ground urged by the Petitioner is no ground
for seeking review of the order passed by this Court on 4
November 2019. The order itself, as noted above, made
it clear that the question before the Court was not
whether or not the Respondent-bank rightly refused to
accept the Petitioner’s application for voluntary
retirement with effect from 1 October 2014. The fact of
the matter is that it did not accept the application, and if
that was so, the Petitioner could not have simply chosen
to remain absent on the ground that he was deemed to
have voluntarily retired on the basis of a scheme and his
application made in response thereof. This court found
nothing wrong with the conclusion of the courts below
that the Petitioner could not have done so and,
therefore, the unauthorized character of his absence
from service between 1 October 1994 and 14 September
1995 (i.e. the date of his charge-sheet) was clearly
proved. No substantial question of law accordingly
arose for consideration of this court.
5. There is no new or important matter or
evidence, which, despite exercise of due diligence, was
not within the knowledge of the Review-Petitioner, or
which could not be produced by him, at the time when
the order was made, which is brought to the notice of
this court. Likewise, there is neither an error apparent
on the face of the order nor sufficient reason to obtain a
review of the order.
6. There is, accordingly, no merit in the review
petition. The petition is dismissed.”
RPW-3 of 2022-Jud=.doc
6. As a matter of fact, Order 47, Rule 9 of the Code of Civil
Procedure specifically bars second review. Order 47 Rule 9
“R.9. Bar of certain applications. – No application to
review an order made on an application for a review or
a decree or order passed or made on a review shall be
entertained.”
7. The Second Review, therefore, cannot be entertained, but for
following few reasons, I am constrained to make a few
important observations against the petitioner in light of a
chequered history.
8. Since the petitioner was unable to put-forth his case properly
before this Court, it was suggested to engage a Counsel of his
choice. However, the petitioner submitted that “he can argue
better than any advocate”. In the second review petition, the
petitioner has literally reproduced and reiterated almost
everything what has been stated by him in the Second Appeal
as well as in his first review petition save and except anything
to show as to how second review is tenable. The grounds
raised by him cannot be said to be the grounds for seeking
second review of the order passed by this Court on 4 th
November, 2019. It is not the contention of the petitioner that
there was discovery of new and important matters or evidence
which, after the exercise of due diligence was not within his
knowledge or could not be produced by him at the time when
the decree passed or order made, or on account of some
mistake or error apparent on the face of the record, or for any
other sufficient reason. This has been clearly observed by this
RPW-3 of 2022-Jud=.doc
Court while dismissing the first review petition. The power of
review can be exercised for correction of a mistake and not to
substitute a view. The error contemplated under Order 47
Rule 1, must be such which is apparent on the face of the
record and not an error which has to be searched. It must be
an error of inadvertence which does not require any long
drawn process of hearing.
9. Indubitably, the petitioner had preferred a Writ Petition
No.2553 of 2019 before a Division Bench of this Court, which
came to be dismissed on 25 th January, 2022 (Coram : Dipankar
Datta, CJ & M.S. Karnik, J). This is a classic example of abuse
of process of Court as well as law, wherein, the petitioner has
left no stone unturned to abuse the process not only by
preferring second review which is not tenable in law, but also
by filing multiple proceedings before different Courts. Even
before institution of Special Civil Suit No.40 of 2000,
petitioner had filed a Writ Petition No.1228 of 1997 wherein a
challenge was laid to the departmental inquiry. The said
petition was disposed of on 6 th September, 2001 by a co-
ordinate bench of this Court with the following order:-
“Civil Application as well as Writ Petition allowed to be
withdrawn.
Authenticated copy be made available to the
petitioner’s Counsel”.
10. The petitioner, thereafter, had instituted 10 Criminal Writ
Petitions and several Civil Writ Petitions from the year 2004 to
2014, together with miscellaneous applications therein. In none
of those petitions, petitioner appear to have gained any
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concrete relief qua the proceedings initiated by his employer –
Bank leading to termination of his services. He had even
approached the Supreme Court under Article 136 of the
Constitution of India against the order dated 14 th October, 2016
passed by the co-ordinate bench of this Court. However, his
Special Leave Petition came to be dismissed with a direction to
the Civil Court to expedite its decision in Special Civil Suit
No.40 of 2000.
11. During the pendency of Writ Petition No. 2553 of 2019, an
attempt was made by the petitioner to seek relief before the
Supreme Court by instituting the proceedings under Article 32
of the Constitution of India on 10 th May, 2019 giving rise to
Writ Petition (C) No. 787 of 2019. The Supreme Court by an
order dated 25th October, 2019 dismissed the writ petition by
passing the following order :-
“Upon perusing papers the Court made the following
Permission to appear and argue in person is allowed.
We are not inclined to entertain this petition under
Article 32 of the Constitution of India.
The writ petition is, accordingly, dismissed.
Pending applications stand disposed of.”
12. The prayers made by the petitioner before the Supreme Court
“a) this Hon’ble Court may set aside the order
dated 01.10.1996 issued by the respondent-Bank by
which the petitioner is removed from service;
b) this Hon’ble Court may declare that the charge-
sheet issued by the respondent-Bank dated 14.09.1995
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against the petitioner may be quashed;
c) this Hon’ble Court may declare that the order
dated 18.07.2017 passed by the Hon’ble District Court,
Pune in Civil Appeal No.503 of 2016 as null and void;
d) this Hon’ble Court may consider the period
from 01.10.1994 to 01.10.1996 as “DIES-NON”.
e) this Hon’ble Court may pass an order to the
respondent-Bank to declare the petitioner as deemed to
be in service from 01.10.1994 till the retirement on
superannuation i.e. 31.10.2012, with entitlement for
deemed promotion upto officer grade VII of the Bank;
f) the respondent-Bank be ordered to pay the
eligible pension to the petitioner from 01.11.2012;
g) the respondent-Bank be ordered to pay
damages of Rs.23,75,000/- to petitioner for malfeasance
acts. The interest @ 18% p.a. may be ordered from
01.10.1996 to realization of amount.
h) the respondent-Bank be ordered to pay interest
@ 18% p.a. at bank lending rate of interest on salary
and pension till realization of amount;
i) the respondent-Bank be ordered to pay
unliquidated damages amounting to Indian Rupees 25/-
Crores (Rupees twenty-five crores) in addition to pay
damages of Rs.23,75 lacs to petitioner on which Court
j) the respondent-Bank be ordered to pay the cost
of the litigation;
k) such any other or further order/orders may be
passed as this Hon’ble Court may deem fit and proper in
the facts and circumstances of the case.”
13. The petitioner had suppressed pendency of Writ Petition in the
Supreme Court before this Court and, therefore, he can be said
to be guilty of suppressing of material facts, which also
amounts to abuse of process of Court as well as of law.
14. It would be apposite to extract paragraph nos.17 to 22 of the
order dated 25th January, 2022 passed by the Division Bench of
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this Court in Writ Petition No. 2553 of 2019, which read thus:-
“17. Prayers (a) to (d) quoted above, simply cannot
be entertained. The second appeal of the petitioner
having been dismissed, the petitioner’s attempt to have
the order reviewed has also not met with success. The
lis in such second appeal does not survive. No order in
terms of prayer (a) can thus be granted. In so far as
prayers (b) and (c) are concerned, the same were the
subject matter of challenge in Special Civil Suit No.40 of
2000 and the issue has attained finality with dismissal of
the petition filed by the petitioner seeking review of the
second appellate order under section 100 of the CPC
read with Order XLI Rule 11 thereof. Prayer (d) of the
writ petition is also thoroughly misconceived. The
judgment and decree of the first appellate court dated
18th July, 2017 having been challenged in a second
appeal under section 100 of the CPC, we wonder how
the same order could be a subject matter of challenge in
a different proceeding, and that too, in a writ petition.
The other prayers vide prayer clauses (e) to (k) relate to
the subject matter of Special Civil Suit No.40 of 2000.
This Court, albeit in a different jurisdiction, having dealt
with the disciplinary proceedings including the charge-
sheet, the inquiry and the order of removal, the present
writ petition is plainly not maintainable being barred by
res judicata and analogous principles.
18. In our view, the petitioner not having pursued
this writ petition and having approached the Supreme
Court for substantially the same relief as claimed herein,
the conclusion is inescapable that there had been a
temporary abandonment of this writ petition and only
after being unsuccessful before the Supreme Court that
the petitioner is seeking to take a chance before us once
again.
19. Since the petitioner had appealed to us that we
ought to look into his written notes of argument and
decide his claims, we have looked into the same. Such
notes are replete with contentions as to how the
disciplinary proceedings initiated against the petitioner
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together with the order of removal are bad in law and
ought to be invalidated as such. We are afraid, the issue
having attained finality cannot be reopened by this
proceeding.
20. We would have been justified in imposing
exemplary costs on the petitioner for having abused the
process of Court as well as law; however, bearing in
mind that the petitioner is in the winter years of his life,
and may not have received proper legal advice or may
have even faltered by reason of his lack of legal
knowledge, we refrain from imposing such costs.
21. The writ petition, accordingly, stands dismissed.
22. We make it clear that if the petitioner seeks to
approach this Court in future raising any grievance with
regard to the subject matter of Special Civil Suit No.40
of 2000 by instituting any proceeding, he would be
adequately dealt with.”
15. Despite clearly indicating to the petitioner as regards the
observation made by the Division Bench of this Court in Writ
Petition No. 2553 of 2019, especially, by inviting his attention
to the observations made in paragraph 20, 21 and 22 of which,
the petitioner is already aware, he insisted for deciding this
second review. The petitioner herein had sought second review
on the premise that this Court is sitting in an appeal over its
first review. A rehearing of the matter is impermissible in law.
Review is not an appeal in disguise.
16. The petitioner has also placed reliance on a judgment of the
Supreme Court in case of Jaya Chandra Mohapatra Vs. Land
Acquisition Officer, Rayagada1 I am afraid, the ratio laid down
therein would not be of any help to the petitioner for the
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simple reason that it has been held and I quote paragraph 8,
which reads thus :-
applications for review successively if the same
are otherwise maintainable in law. The civil
court herein admittedly had not granted to the
appellant the benefit of solatium at the rate of
30% of the amount of enhanced compensation
as also the additional amount and interest as
contemplated under the amending Act of 1984.
To the said benefits, the appellant was entitled
to in terms of Section 23 (1-A), Section 23 (2)
as also Section 28 of the Act. It is one thing to
say that the omission to award additional
amount under Section 23 (1-A), enhanced
interest under Section 28 and solatium under
Section 23 (2) may not amount to clerical or
arithmetical mistake in relation whereto an
executing court will not be entitled to grant
relief but it is another thing to say that the
grant thereof would be impressible in law even
if the Reference Court on an appropriate
application made in this behalf and upon
application of its mind holds that the statutory
benefits available to the claimant had not been
granted to him and pass an order in that behalf
by directing amendment of decree. In a case of
former nature, an executing court may not
have any jurisdiction to pass such an order on
the ground that it cannot go behind the decree,
but in law there does not exist any bar on a
Reference Court to review its earlier order if
there exists an error apparent on the face of
the record in terms of Order-47 Rule 1 of the
Code of Civil Procedure. Such a jurisdiction
cannot be denied to the Reference Court. Act
68 of 1984 is a beneficial statute and thus, the
benefits arising thereunder cannot ordinarily
be denied to a claimant except on strong and
cogent reasons”.
17. For the reasons already stated hereinabove, there is neither any
clerical or arithmetical mistake nor any discovery of new or
important matter or evidence, which the petitioner could not
notice despite due diligence.
18. Since 2009, till date valuable time of this Court had been
consumed by the petitioner by filing frivolous litigation.
Despite a clear warning of this Court in Writ Petition No.2553
of 2019, the petitioner was hell-bent in prosecuting second
review petition. Such conduct is highly deprecated as the
petitioner appears to be incorrigible.
19. The petitioner cannot be said to be unmindful of his several
unsuccessful attempts and its ultimate fate. He is not a naive
person. He is, indeed, fully aware that he has been fighting a
lost legal battle which has no merit at all. Looking to the
overall conduct of the petitioner, there can hardly be any
reason to take a sympathetic view due to his advanced age.
Such tendencies need to be nipped in the bud by imposing
exemplary costs. Such elements cannot be permitted to take the
system for a ride by filing unmerited multiple proceedings and
to drag the proceedings unendlessly.
20. I, therefore, reject the review petition by imposing exemplary
costs on the petitioner in the sum of Rs.1,00,000/- (Rupees
One Lakh only). The petitioner shall deposit the costs with the
Registry of this Court within three weeks from today.
21. After depositing the amount, Registry shall transmit the said
RPW-3 of 2022-Jud=.doc
amount to “The Bombay Mothers and Children Welfare
Society” having its address at 10, B.D.D. Chawls, N.M. Joshi
Marg, Lower Parel, Mumbai – 400 013. The Bank details of
said Society are as under :-
Bank : State Bank of India
22. If the petitioner fails to deposit the amount of costs as stated in
paragraph 20, it be recovered by the Collector, Pune from
petitioner’s arrears of land revenue. The Collector, thereafter,
shall submit a report of compliance to this Court on or before
5th September, 2022. Hard as well as soft copy of this judgment
be sent to Collector, Pune, in case, the petitioner fails to deposit
amount of costs as directed hereinabove within three weeks
from today.
23. The Review Petition is dismissed in the aforesaid terms.
|
The Bombay High Court recently reprimanded a Pune resident, seeking second review of the court's earlier decision, stating that the petition was without merit and constituted abuse of process and law. A penalty of Rs. 1 lakh was imposed on the petitioner. The petitioner had filed multiple similar cases in the Bombay High Court as well as Supreme Court with the same material arguments...
The Bombay High Court recently reprimanded a Pune resident, seeking second review of the court's earlier decision, stating that the petition was without merit and constituted abuse of process and law. A penalty of Rs. 1 lakh was imposed on the petitioner.
The petitioner had filed multiple similar cases in the Bombay High Court as well as Supreme Court with the same material arguments and evidence.
"Since 2009, till date valuable time of this Court had been consumed by the petitioner by filing frivolous litigation", the court stated.
Justice Prithviraj K. Chavan in his judgment said that a review is not appeal in disguise and dismissed the petition.
"In the second review petition, the petitioner has literally reproduced and reiterated almost everything what has been stated by him in the Second Appeal as well as in his first review petition save and except anything to show as to how second review is tenable", the court said.
The court said that advanced age of the petitioner cannot be a reason to take a sympathetic view as he is "fully aware that he has been fighting a lost legal battle which has no merit at all".
"Such conduct is highly deprecated as the petitioner appears to be incorrigible", the court stated.
Anand Prabhakar Joshi, a former employee of Bank of Maharashtra was seeking a second review of an order dismissing his challenge against disciplinary proceedings by his employer. He had been charged with unauthorized absence from service for close to a year in the disciplinary proceeding. He contended that he was entitled to voluntary retirement under the bank's voluntary retirement scheme but his application was not accepted.
The petitioner appealed the decision of the disciplinary authority in a special civil suit in Pune. His appeal failed and he filed a second appeal before the District Court Pune. His second appeal was also dismissed on the ground that no substantial question of law arose in the case. He filed a First Review petition in the same court which was dismissed on the ground that there was no new or important matter or evidence, neither was any error made by the courts. The petitioner then filed a second review petition before the High Court.
The court held that Order 47, Rule 9 of the Code of Civil Procedure specifically bars second review, hence this petition cannot be entertained. "The petitioner herein had sought second review on the premise that this Court is sitting in an appeal over its first review", the court stated.
The petitioner had refused to engage a counsel stating he can argue better than any advocate.
The petitioner had also filed Writ Petition before a Division Bench of the Bombay High Court in 2019 which was dismissed. "This is a classic example of abuse of process of Court as well as law, wherein, the petitioner has left no stone unturned to abuse the process not only by preferring second review which is not tenable in law, but also by filing multiple proceedings before different Courts", the court stated.
Petitioner had filed a Writ Petition in 1997 challenging the departmental inquiry which he withdrew in 2001. He instituted 10 Criminal Writ Petitions and several Civil Writ Petitions from the year 2004 to 2014, along with miscellaneous applications.
He also filed special leave petition as well as writ petition before the Supreme Court both of which were dismissed. "The petitioner had suppressed pendency of Writ Petition in the Supreme Court before this Court and, therefore, he can be said to be guilty of suppressing of material facts, which also amounts to abuse of process of Court as well as of law", the court stated.
The court ordered that the petitioner deposit the penalty within three weeks. The registry of the court was directed to transmit the amount to The Bombay Mothers and Children Welfare Society.
"Such tendencies need to be nipped in the bud by imposing exemplary costs. Such elements cannot be permitted to take the system for a ride by filing unmerited multiple proceedings and to drag the proceedings endlessly", the court held.
Case no. : RPS/3/2022
Case Title : Anand Prabhakar Joshi v. Bank of Maharashtra
Coram : Justice Prithviraj K. Chavan
|
minal Appeal Nos.
102404 of 1961, 90 Appeals by special leave from the judgment and order dated December 21, 1960 of the Allahabad High Court in Criminal Appeals Nos. 737,738 and 744 of 1960.
Frank Anthony and P.C. Agarwala, for the appellant.
G.C.Mathur and C.P. Lal, for the respondent.
April 17.
The Judgment of the Court was delivered by WANCHOO J.
These are three appeals by special leave against the judgment of the Allahabad High Court.
It will be convenient to dispose them of together, though they arise out of three different trials before the Special Judge, Saharanpur under section 5 (2) of the Prevention of Corruption Act, No. 2 of 1947, (hereinafter referred to as the Act), as the appellant is the same in all the appeals.
The brief facts necessary for present purposes are these.
Munnalal was the cashier of the Municipal Board of Hardwar and had been working as such since 1932.
He was in charge of the cash and it was his duty to see that whenever the funds in his possession exceeded Rs. 4,000/ they were deposited in the treasury or the Imperial Bank at Roorkee.
In 1949 there was an audit of the accounts of the Board and on May 24, 1949, the auditor found that the money received by the Board from April 20, 1949, to May 23, 1949, totalling Rs. 52,144/ had not been deposited in the treasury or the Imperial Bank at Roorkee.
The matter was then reported to the Chairman of the Board, who called Munnalal and took his explanation as to the alleged embezzlement.
It is said that the appellant admitted that he had spent some of the money in the .marriage of his daughter and some was used in his shop and Rs. 10,000/to 'Rs. 11,000/ had been given to the Executive Officer and the remainder was at his house.
The appellant 91 was asked to make good the loss immediately but failed to do so.
Thereupon the appellant was suspended and the matter was handed over to the police for investigation.
The police registered a case under section 409 of the Indian Penal 'Code and after investigation prosecuted the Executive Officer as well as the appellant and his brother who was the Assistant Cashier at the relevant time.
The case was transferred by the High Court to a magistrate in Meerut; but that case was not proceeded with as an application was made to withdraw it on the ground that the case was covered by section 5 (2) of the Act.
So the magistrate discharged the three accused of that case.
Thereafter necessary sanction was given for prosecution under section 5 (2) of the Act and four prosecutions were launched against the appellant and his brother.
The Special Judge, however, took the view that the joint trial of the appellant and his brothers was not possible with respect to some of the moneys said to have been embezzled.
He therefore ordered that there should be three separate trials of the appellant alone with respect to certain moneys in addition to the four trials of the appellant and his brother with respect to the remainder.
That is how seven trials took place.
In the present appeals we are not concerned with the other accused, namely, the brother of the appellant, as he was acquitted.
We arc also notconcerned with four of the trials; we arc only concerned with three trials with respect to three sums of money in these three appeals.
Appeal No. 102 is concerned with a sum of Rs. 1623/4/ , received between April 14, 1949 and May 23, 1949 and not accounted for; appeal No. 103 is concerned with a sum of Rs. 9611 9 6 received between April 20, 1949 and May 24, 1949 and not accounted for; and appeal No. 104 is concerned with a sum of Rs. 43087/ /3 received between April 20, 1949 and May 24, 1949 and not accounted for.
92 The case of the prosecution was that these sums were received by the appellant during the period mentioned above and had not been deposited either in the treasury or in the Imperial Bank at Roorkee as required by the rules.
The appellant practically admitted the receipt of the money except a few items which were also found by the Special Judge to have been received by him.
He also admitted that his duty was to deposit any sums above Rs. 4,000/ in the Imperial Bank or the treasury at Roorkee.
He was however inconsistent in his defence as to what he did with the moneys which he had undoubtedly received.
He first tried to prove that he had deposited the amounts.
, In the alternative his case was that a practice had been prevailing for many years in the office of the Board under which the Executive Officer and other employees of the Board used to take advances from the cashier from time to time by sending slips and the cashier was utilised as a banker for all officers and servants of the Board, including the Executive Officer.
Though these sums were supposed to be returned to the cashier (appellant) in the beginning of the next month when pay was drawn by those who had taken these unauthorised advances, in actual fact this did not always happen.
The result of these advances which were sometimes of large amounts was that the money could not be deposited in the treasury according to the rules as these advances were being constantly made to the officers and servants of the Board.
The appellant therefore contended that he had not converted the money to his own use and had advanced the same to the officers and servants of the Board according to the practice prevalent for a number of years and that such advances were even made to the highest officer of the Board, namely, the Executive Officer, and that the officers all knew of this practice and also knew that moneys were not being deposited in the Bank or the treasury at Roorkee as required by rules.
93 The Special Judge held on the evidence that it was proved that the moneys which were the subject matter of the charge (except for two items) had been received by the appellant.
He also held that except for certain items, the appellant had dishonestly or fraudulently misappropriated or otherwise converted to his own use the property entrusted to him or under his control as a public servant or allowed any other person so 'to do.
He therefore found the appellant guilty under section 5 (2) of the Act read with section 5 (1) (c) thereof.
The Special Judge sentenced the appellant to five years ' rigorous imprisonment in the cases from which appeals Nos. 102 and 103 arise but ordered the sentences to run concurrently.
He also sentenced the appellant in the case from which appeal No. 104 arises to five years ' rigorous imprisonment and a fine of Rs. 42,000/ .
The sentence in this case was apparently not made concurrent.
The appellant filed three appeals before the High Court which were heard together.
The High Court agreed with the conclusions of the Special .Judge and upheld the conviction of the appellant in the three cases.
In view however of the practice to which reference has been made above and which was proved to the hilt and in view also of the fact that these cases had taken almost 11 years to be disposed of, the High Court reduced the sentences in the three cases to two years ' rigorous imprisonment and made them all concurrent.
It also set aside the sentence of fine as it was of the view that though the appellant was guilty he had not converted the money to his own use but had advanced most of it to the officers and servants of the Board.
The present appeals by special leave are against these judgments of the High Court in the three appeals. ' Two points have been urged on behalf of the appellant and it is said that in view of those points the trial was illegal and should be .quashed.
In the first place it is urged that the investigation was 94 irregular and not in accordance with section 5A of the Act.
Section 5A lays down that no police officer below the rank of a Deputy Superintendent of Police shall investigate any offence punishable under the Act outside the presidency towns without the.order of a magistrate of the first class.
What happened in this case was that originally the entire investigation was done by a sub inspector of police and therearter the case under sections 409/406 of the Indian Penal Code was instituted against the appellant, his brother and the Executive Officer.
That case was later withdrawn and it was thereafter that sanction was granted for the prosecution of the appellant and his brother under section 5 (2) of the Act and investigation was made as required by section 5 A.
But the evidence shows that this investigation merely consisted of this that the duly authorised investigating officer went through the papers of the earlier investigation and decided to file four prosecutions as already indicated on the basis of the earlier investigation.
It does appears from these facts that though the letter of section 5A of the Act was complied with its spirit was not, for in reality there was no investigation by the officer authorised under that section and the real investigation was by a sub inspector of police who was never authorised.
In H.N. Rishbud & Inder Singh vs The State of Delhi (1), this Court held that "section 5A is mandatory and not directory and an investigation conducted in violation thereof is illegal".
This Court further held that "if cognizance is in fact taken on a police reporting breach of a mandatory provision relating to investigation, the results which follow cannot be set aside unless the illegality in the investigation can be shown to have brought about a miscarriage of justice".
It was further held that "an illegality committed in the course of an investigation does not affect the competence and the jurisdiction of the court for trial and where cognizance of the case has in fact been taken and the case has proceeded to ; 95 termination the invalidity of the preceding investigation does not vitiate the result unless miscarriage of justice has been caused thereby".
In view of this decision, even if there was irregularity in the investigation and section 5A was not complied with in substance, the trials cannot be held to be illegal unless it is shown that miscarriage of justice has been caused on account of the illegal investigation.
Learned counsel for the appellant has been unable to show us how there was any miscarriage of justice in these cases at all due to the irregular investigation.
As a matter of fact on the alternative case put forward by the appellant, the substance of the prosecution case was practically admitted by him and he merely pleaded certain mitigating circumstances.
Learned counsel for the appellant however drew our attention to the State of Madhya Pradesh vs Mubarak Ali.
(1) In that case an objection was taken before the trial began before the Special Judge that the investigation had been carried on in breach of section 5A of the Act.
The matter went before the High Court and it directed that in order to rectify the defect and cure the illegality in the investigation, the Special Judge should have ordered the Duputy Superintendent of Police to carry on the investigation himself while the case remained pending in the court of the Special Judge.
That order of the High Court was brought in appeal to this Court, and the appeal was dismissed.
This case in our opinion is of no assistance to the appellant, for there the objection was taken at the earliest stage before the trial began and it was in those circumstances that the trial was stayed till proper investigation was completed and a proper report made thereafter for the prosecution of the accused of that case.
In the present cases no objection was taken at the trial when it began and it was allowed to come to an end.
In these circumstances the ratio of Mubarakali 's case (1) cannot apply and the decision in Rishbud 's case (2) would apply.
The appellant therefore cannot say that the trial was (1) [1959] supp.
2 S.C.R. 201.
(2) [L955] 1 section C.R. 1150 96 vitiated unless he can show that an.
V, prejudice was caused to him on account of the illegal or irregular investigation.
We have already remarked that no such thing has been shown in this case; nor was it possible 10 show any such thing in view of the alternative defence taken by the appellant.
We therefore reject this contention.
The next contention that has been urged is that there was no proper sanction in these cases and this is based on the fact that only four cases were filed before the Special Judge with of course proper sanction; but these cases were split up into seven and the argument is that there was no sanction for the remaining three cases, and two of the present appeals namely Nos. 102 and 103 are out of these split up cases.
It is also urged that the sanction was not with respect to section 5 (1) (c) of the Act though it was under section 5 (2) of the Act and therefore it was insufficient to confer jurisdiction on the Special Judge to try the appellant under section 5(1)(c) read with section 5 (2).
We are of opinion that there is no force in either of these contentions.
It is true that the Special Judge split up the four cases before him into seven; but it is not disputed that the amounts involved in the three new cases which the Special Judge had directed for splitting up due to the difficulty of joint trial were with respect to amounts which were included in the four cases filed before him and with respect to which there was sanction.
The mere fact that in view of the provisions of section 239 of the Code of Criminal Procedure the Special Judge thought it necessary to separate the trial of Munnalal with respect to certain items for which there was sanction would not mean that these cases which were directed by the Special Judge to be split up for that reason had no sanction behind it.
The sanction of the original four cases would cover these three cases also which were split out of the original four cases.
97 As to the argument that there was no sanction for prosecution under section 5 (1) (c), it is clear that there is no force in it.
The sanction says that the appellant had received money and misappropriated it by not crediting the same into the treasury and embezzled it and was therefore guilty of criminal misconduct and liable to prosecution under sections 409/406 and s 5 (2)of the Act.
The allegations made clearly show that the sanctioning authority had section 5 (1) (e) in mind because the sanction speaks of misappropriation and embezzlement of the moneys of the Board and misappropriation and embezzlement is only to be found in section 5 (1) (c).
It is argued however that section 5 (1) (c)speaks of misappropriation or otherwise conversion to his own use any property entrusted to him or under his control by a public servant for himself.
It also speaks of a public servant allowing any other person to do so.
But the sanction seems to show as if the appellant was to be prosecuted for converting the property to his own use.
There is in our opinion no substance in this argument, for the sanction speaks of misappropriation and embezzlement and there is nothing in the words to imply that this was only with reference to conversion by the appellant to his own use.
As the words of the sanction stand they would cover a case of misappropriation or conversion to his own use by the appellant himself or by allowing others to do so.
We are therefore of opinion that the sanction was sufficient for the purpose of giving jurisdiction to ' the Special Judge to take cognizance of the cases out of which these appeals have arisen.
This brings us to the merits of the three appeals.
So far as this is concerned, learned counsel for the appellant has not urged and, in our opinion, rightly that the convictions are unjustified.
The only question that he has urged is that in view of the established facts that the appellant was using the Board 's money in order to advance it to the officers 98 and servants of the Board beginning with the highest officer of the Board, namely, the Executive Officer and that the evidence as found by the High Court does not seem to establish that there was any conversion of the moneys by the appellant to his own use, this is a case in which the appellant was more sinned against than sinning.
It is conceded that as the appellant was the cashier it was his duty in law to follow the rules with respect to the custody of the cash of the Board entrusted to him and if he did not do so he would be guilty.
But it is urged that when the highest officer of the Board, namely, the Executive Officer was himself taking out money from the funds of the Board by sending slips to the cashier and other officers and servants of the Board were doing the same thing and this was well known, presumably also to the Chairman of the Board, it is not just that the appellant should be made to suffer when he was obliging the officers and servants of the Board and might even have felt compelled to grant the demands of the Executive Officer and other officers and servants of the Board, for he was serving under some of them.
We must say that the evidence discloses, a scandalous state of affairs which was allowed to go on and even the highest officer of the Board, namely, the Executive Officer, was cognizant of this state of affairs and was himself a party to it.
The appellant 's case further was that even the Chairman knew about it and was at times party to it and this may also be not incorrect.
In these circumstances there is force in the contention on behalf of the appellant that he was more sinned against than stoning and that the misappropriation took place because he had to oblige these officers and servants of the Board or otherwise incur their displeasure which he could hardly do.
So it is urged on behalf of the appellant that as he has already been in jail for more than ten months in the circumstances that punishment along with the fact that the trial had been prolonged for eleven years since 1949 should 99 be sufficient punishment for him.
Ordinarily this Court does not interfere in the matter of sentence in appeals under article 136 but we think in the circumstances disclosed in the present appeals when the officers and servants of the Board including the highest officer were behaving as if the moneys of the Board were their private property and the misappropriation took place mainly because the appellant was obliging these officers and servants of the Board, that the sentence already undergone by the appellant would meet the ends of justice.
We ought to add that Mr. Mathur who appeared for the respondent State did not feel justified and we think rightly in pressing for the confirmation of the reduced sentence passed by the High Court in appeal.
We therefore dismiss the appeals with the modification that the sentence m each case is reduced to the period already undergone.
The appellant, if on bail, shall be discharged from his bail bonds in respect of these appeals.
Appeals dismissed.
Sentence reduced.
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The appellant was the cashier of the Municipal Board Hardwar.
He was in charge of the cash and it was his duty to see that funds above Rs. 4,000/ were deposited 'in the treasury or the Imperial Bank.
On audit it was found that money received by the Board totalling Rs. 52,144/ was not deposited as required by the rules.
On complaint by the Chairman of the Board, a Sub Inspector of Police investigated the case and a case was registered under section 409 of the Indian Penal Code, But this case was withdrawn and the accused discharged on the ground that it was covered .by section 5 (2) of the Prevention of Corruption Act.
Thereafter investigation was conducted by an officer as required by section 5A of the Act.
But this investigation consisted of this that the duly authorised investigating officer went through the papers of the earlier investigation and decided to file a fresh prosecution on the basis of the earlier investigation.
Sanction was obtained for (2) of the Act.
Subsequently the four cases, in which the appellant and his brother were jointly charged were split up into 7 cases.
In the three new cases only the appellant was tried.
The Trial Judge found the appellant guilty unders 5 (2) read with section 5 (1) of the Act and sentenced him to undergo imprisonment and to pay fine.
On appeal to the High Court, it upheld the conviction but reduced the sentence and.
set aside the sentence of fine.
The appellant appealed to this Court with special leave.
The following points were urged in the appeal before this Court.
Firstly, it was urged that the investigation 89 irregular and not in accordance. ,with section 5A of the Act in as much as the investigation was not conducted by a person authorised by that section.
Secondly, it was contended that sanction was obtained only for the first four cases and no sanction was obtained for the three new cases (after splitting up the four) out of which the present appeals have arisen.
It was further contended that the sanction was not with respect to section 5 (1) (C) or ' the Act though it was under section 5 (2)of the Act and therefore it was insufficient to confer ,jurisdiction on.the Special Judge to try the appellant under section 5 (1) (c) read with section 5 (2) of the Act.
Held that section 5A is mandatory and not directory and an investigation conducted in violation thereof is illegal.
But this illegality wilt not vitiate the results of the trial unless it is shown that it has brought about a miscarriage of justice; neither does it affect the competence or jurisdiction of the court to try the case.
In the present appeals it is not shown that there has been miscarriage of justice as a result of the illegal investigation.
H.N. Rishbud & Inder Singh vs State of Delhi, [1955] I S.C.R. 1150 followed State of Madhya Pradesh vs Mubarak All [1959] Supp. 2 S.C.R. 201 distinguished.
The mere fact that in view of the provisions of section 239 of the Code of Criminal Procedure, 1898, the Special Judge thought it necessary to separate the trial of the appellant with respect to certain items for which there was sanction would not mean that these cases had no sanction behind it.
The sanction of the original four cases would cover these three cases also.
The allegations made in the sanction show that the sanctioning authority had section 5 (1) (c) in mind because the sanction speaks of misappropriation and embezzlement of the 'money of the ' Board and misappropriation and embezzlement is only to be found in section 5 (1) (c).
As the words of the sanction stand they would cover a case of misappropriation or conversion to Ins own case by the appellant himself or by allowing others to do so.
The sanction is sufficient for the purpose of giving jurisdiction to the Special Judge to take cognizance of the cases out of which the present appeals have arisen.
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Present: Mr. R.S. Cheema, Senior Advocate with
Mr. Satish Sharma, Advocate for the petitioner.
Mr. Rajeev Anand, Standing Counsel for respondent-CBI.
Mr. R.S. Bains, Senior Advocate with
Ms. Aarushi Garg, Advocate for the complainant.
1. Through the instant petition cast under Section 439 of the Code
of Criminal Procedure, the petitioner claims relief of hers becoming
admitted to regular bail in case FIR RC No. 0512016S0004 dated
13.4.2016, under Sections 302, 120-B, 201 of Indian Penal Code and under
Section 25/27/54 of Arms Act, registered at Police Station Special Crime
Branch, Central Bureau of Investigation (CBI), Chandigarh. It is relevant to
mention that the investigations into the instant crime event, were initially
entered into by the Chandigarh Police but subsequently, through an order
No. 134-HIII(2)-2016/1339 dated 20.1.2016 of the Home Secretary,
Chandigarh Administration, the investigations were transferred to the CBI,
resultantly, the crime event became registered with the Special Crime
2. The crime event, occurred near Kothi No. 1001, Sector 27-B,
Chandigarh. An intimation was given by the Sub Inspector concerned to the
Station House Officer (SHO), Police Station, Sector 26, Chandigarh that
when the police party was present in the area of Police Station, to spot
attend, in the Government vehicle bearing registration No. CH01G1-6243,
then they at about 10 PM, received an intimation through wireless message
in the Police Station, that a person is lying near Kothi No. 1001, Sector 27-
B, Chandigarh. On receipt of the said information, the SHO of the Police
Station concerned along with ASI besides being accompanied by other
police officials arrived at the crime site in the Government vehicle, where, it
was found that a dead body of a man, aged about 34/35 years was lying in a
pool of blood on a pedestrian track in the green park adjoining Kothi No.
1015, Sector 27-B, Chandigarh. He was noticed to be carrying injuries on
his left cheek and chest and blood was oozing from the above injuries. The
police suspected that he had received gun shot injuries. Since the spot
inspection revealed that an offence under Section 302 of the Indian Penal
Code has been committed, therefore, a ruqa was sent from the crime site to
the Police Station concerned for registration of a case under Section 302 of
the Indian Penal Code against unknown persons.
3. It is but obvious that since then though the CBI on transfer to it,
of the relevant investigations, had entered into investigations in respect of
the above crime event, but obviously for almost more than six years
therefrom, the CBI did not make any headway in solving the murder of
deceased Sukhmanpreet Singh alias Sippy Sidhu. It was only on 15.6.2022
that the present petitioner was arrested, on the basis of certain inculpatory
evidence as became collected by the CBI. This Court would refer to and
would also hereafter adjudicate upon the validity or otherwise of the
inculpatory evidence collected against the present petitioner by the CBI.
4. During the course of investigations into the petition crime
event, the then Investigating Officer had on 7.12.2020 instituted an untraced
report before the learned committal Court concerned. The relevant portions
thereof, as occurring in paragraphs 16.31 to 16.65 thereof, become extracted
“16.31 Investigation has revealed that in April-May 2015,
Sippy Sidhu again managed to send the objectionable
pictures of Ms. Kalyani Singh over the mobile phone
of her friends. On enquiry by her friends, Ms.
Kalyani Singh advised them to delete the same as it
is a morphed pictures suspecting the act of Sippy
Sidhu. Ms. Kalyani Singh also raised objections with
the mother of Sippy Sidhu, who assured Ms. Kalyani
Singh that she would arrange marriage of Sippy
Sidhu. However, Ms. Kalyani Singh told her that she
do not want to marry with Sippy Sidhu. Even at this
juncture, Sippy Sidhu and Ms. Kalyani Singh were in
touch by meeting each other and also exchanged e-
mails after the incident of 27.11.2014, Ms. Kalyani
Singh remained in touch with Sippy Sidhu over his
email id sippysidhu@gmail.com from her mail id
16.32 Investigation has revealed that in the month of April-
May, 2015, Sachin Bhatia, a known to Ms. Kalyani
Singh received obscene photographs of Ms. Kalyani
Singh from mobile number 8198834127 which
continued till July, 2015, however, he could not get
the identity of the sender as Ms. Kalyani informed
him not to respond to that number. Ms. Kalyani
Singh also disclosed that her marriage could not be
materalised as mother of Sippy Sidhu does not want
intercaste marriage.
16.33 Investigation has revealed that Ms. Kalyani Singh
was frequent visitor to the office of Sippy Sidhu upto
the month of August, 2015. Ms. Kalyani Singh also
used to assist Sh. Sippy Sidhu in his office.
Sometime Ms. Kalyani Singh also used to take the
mobile phone of employees of Sippy Sidhu to call
him, when he was not available in the office.
16.34 Investigation conducted has disclosed that on
17.08.2015 night 3-4 suspects found to have visited
outside the residence of deceased Sippy Sidhu and
left the place in a small car. They left behind a black
colour pouch containing a spiral diary in which the
name, address and mobile number of Sippy Sidhu
along with Bhupinder Singh @ Yuvraj were
mentioned. A complaint was lodged with Punjab
Police at Mohali. No clue of suspects could be
worked out in spite of immediate action of Mohali
16.35 Investigation has revealed that in the spiral diary left
by the suspects on 17.08.2015 night outside the
residence of deceased Sippy Sidhu was having the
mention of date as 07.07.2015, u/s 302, Bhiwani,
Dinesh and mobile No.9999996166 besides the
names of deceased Sippy Sidhu and his friends. The
perusal of records of District and Sessions Judge,
Bhiwani has revealed that a total of 32 murder cases
were under trial as on 07.07.2015 in five different
courts of Bhiwani out of which only 10 cases were
fixed for hearing on 07.07.2015. The information
about the cases u/s 302 IPC pending at Bhiwani
Courts were scrutinized however the link of accused
persons in that cases could not be established.
Besides above the other murder cases pending in
Bhiwani with regard to heinous crime, rewarded
criminals and most wanted criminals involved in the
offences of kidnapping, ransom, murder and parole
jumpers was obtained. No link of any criminal
including the name Dinesh which was mentioned in
the spiral diary could be ascertained. The mobile No.
9999996166 mentioned in the diary found to be of
Sh. Sumit Gupta r/o Shakarpur, Delhi-92, who is
running a Photostat and Telecom shop at Shakarpur,
Delhi including selling and recharging of mobile
phone of different service providers. He denied
having knowledge of any person in the name of
Dinesh or a person of Bhiwani etc.
16.36 Investigation has revealed that on 20.08.2015, GF-1
dropped Sippy Sidhu at Railway Station, Chandigarh
to board Shatabdi train to Delhi. Sippy Sidhu stayed
with GF-II at Delhi for a night. Next day, on
21.08.2015 at 13:45 hrs, he boarded the flight no.9 W
122 from Delhi to London.
16.37 Investigation conducted has revealed that Sippy
Sidhu and Ms. Kalyani Singh exchanged numerous
mails up to 14.09.2015 including the period he
remained abroad. During the exchange of above
E.mails both shares the incident of some suspects
detected outside the house of Sippy Sidhu to which
Ms. Kalyani Singh advised him to be vigilant as he is
wrong doings with reasons and told her about his
seriousness to marry her and asked her if she found
someone else now. He offered her to clear the
things once and for all and he will make Ms.
Kalyani with GF-I to clear the things face to face.
Ms. Kalyani also replied him that she and her
family had seen him with GF-I often.
• On 30.08.2015, during exchange of mails, Sippy
Sidhu informed that news is, Aunty finding guy in
High Court, you found him, I knew it and further
Sippy informed her that he had ended all ties with
GF-I as he cannot afford to loose Kalyani over
friendship of GF-I.
• On 07.09.2015, Ms. Kalyani Singh sent E.mail to
Sippy Sidhu asking about his well being and
journey plan as per following text:
is ur trip going? How was the awards function?
Any promotion of the firm? And otherwise. How
is ur tour going on the professional forefront?
Hope you are having fun. Do take care of your
back and do not over exert yourself.”
• On 08.09.2015, in reply to the above E.mail of Ms.
Kalyani Singh, Sippy Sidhu replied as under:
“Hi I am fine here. Awards went well. I am
leaving for Toronto on 10. I will be in India on 16th
Sep. then I will stay there for couple of weeks and
then again i hv to leave abroad for few months.
How r u. Thanks.”
16.38 Investigation has revealed that during his visit to
Canada, Sippy Sidhu participated in the sports award
function on 4th September, 2015 organised by his
friend Sh. Ramandeep Singh Goldy in UK. Sippy
Sidhu stayed with him upto 7th September, 2015.
During his above visit, Sippy Sidhu told his friend
Raman Deep Goldy that he is facing some threats as
some persons were seen outside his residence and is
suspecting threat to his life. Thereafter, Sippy Sidhu
went to Toronto to meet his friends and stayed there
upto 15.09.2015. He returned to India on 16.09.2015
by flight No. 9W 229.
16.39 Investigation has revealed that on his return to India
on 16.09.2015, Sippy Sidhu was received by GF-II at
Delhi and he stayed with her upto 18.09.2015
morning. He left Delhi by Air on 18.09.2015
morning and was received by GF-I along with her
father at Chandigarh Airport. She dropped him at his
residence. On the same day at about 11.00 AM Sippy
Sidhu again met GF-I at her factory and planned to
watch a movie 'Everest' at Elante Mall, Chandigarh.
At about 8.15 PM, when Sh. Sippy Sidhu along with
GF-I was present in his car at Industrial Area,
Chandigarh, he received 02 calls over his mobile No.
9888810001 from Mobile No. 8558073647, after
which he was perplexed and decided to cancel the
movie programme, though they had advance booking
of the movie show at Elante Mall, Chandigarh. Both
came back to Mohali. At about 2100 hrs, on
18.09.2015 night, the mobile location of deceased
was seen at Sector 27, Chandigarh.
16.40 Investigation has revealed that as per CDR of mobile
number 9888810001 of Sippy Sidhu, two calls were
received to him in the presence of GF-I when his
location was at Industrial Area, Chandigarh. The
said calls were received from mobile number
8558073647 of Harishankar Gupta, a Mehndi Applier
at Sector 19, Chandigarh. It is pertinent to mention
here that at about 8:15 PM when Sippy Sidhu
received a phone call while sitting in his car beside
GF-I, he responded to the said call as “Main karda
han Main Karda han” this word was audible to GF-I.
Thereafter, he again received a call, in order to attend
the same he went out of the car and attended the same
while standing back side of the car. When Sh. Sippy
Sidhu came back to his car, he was perplexed and on
being asked by GF-I, he explained by saying “Meri
tan fatt gayi si”I. Sh. Sippy Sidhu further falsely
explained that his brother Sh. Jippy Sidhu along with
another Advocate were supposed to appear in the
court however they could not do so and daughter of
his client was lodged at Police lockup at Sector 19,
Chandigarh. Now, the mother of the client is
blaming by saying “meri kudi di life kharab kar diti
h, te main chhadna ni”. While moving towards
Elante Mall Light Points from the furniture shop he
was very nervous and upset and told GF-I that now
his reputation is at stack. Thereafter, he cancelled the
movie programme and came back to Mohali.
Accordingly, he dropped GF-I at her house.
Thereafter, at about 21:06:33 hrs, the location of
mobile phone of deceased is found to be at Sector 27,
Chandigarh before his return to his home location at
21.48.24 hrs on 18.09.2015. No girl/female was
lodged in police lock up at PS Sector 19, Chandigarh
as on 18.09.2015.
16.41 Investigation has revealed that Sh. Hari Shankar
Gupta was working as mehandi applier in Sector 19,
Chandigarh. On 18.09.2015, he was present in
Sector-19, Chandigarh. At about 8:15 PM, a girl of
the age of about 25 years, good looking, bearing
black Top and Jean Pant, a dupatta of dark
colour/black was wrapped around her neck, hair were
open upto shoulders, normal structure, height of 5'-1”
or 5'-2” approached him and asked “Mera Phone
On her request he gave his mobile phone to said girl
who after completing the call returned his mobile
after deleting the number dialed by her. The mobile
number of 8558073647 of Sh. Hari Shankar Gupta
was used to make call to Sippy Sidhu over his mobile
No. 9888810001 at 20.11.26 hrs by an unknown girl.
This call was the same call which was attended by
Sippy Sidhu in the presence of GF-I on 18.08.2015.
16.42 Investigation conducted has disclosed that
Computerized sketch of suspect girl who made calls
from Sector 19, Chandigarh on 18.09.2015 to
deceased Sippy Sidhu has been prepared on the
pointing out of above Sh. Hari Shankar Gupta, which
indicates towards similar facetive of a girl as of Ms.
16.43 Investigation conducted has disclosed that on
18.09.2015 at 20:55:21 hrs, another call of 13
seconds was received over the mobile phone
9888810001 of deceased Sippy Sidhu from the
mobile number 9216910382 which was later on
identified as of Sh. Ballnder Kumar, who was present
in the market at Sector 19, Chandigarh for purchase
of clothes. He parked his motorcycle opposite to
Manchanda Book Depot in Sector 19, Chandigarh
where one girl of height of 5'3” wearing black top
and jeans pant, having a dupatta around her neck
approached him from the back and requested for a
phone call to be made from his mobile to which he
agreed and handed over his mobile phone to said
unknown girl. The said girl made a call from his
phone to someone. The description disclosed by
above Ballnder Kumar is observed similar to that girl
who approached Sh. Hari Shanker Gupta above. 03
calls from mobile number 8558073647 of Hari
Shankar Gupta at 20:11:26 hrs for 7 seconds, at
20:11:52 hrs for 4 seconds and 20:12:25 hrs for 41
seconds and one call from Mobile No. 9216910382
of Ballnder Kumar were made over the mobile phone
of Sippy Sidhu at 20:55:21 hrs after borrowing a
phone adopting similar modus operandi. There is
strong apprehension that the same girl approached
deceased Sippy Sidhu from Sector 19-C, Chandigarh
during the period 20:11:26 hrs to 20:55:21 hrs on
18.09.2015, the impact of calls of suspect girl from
Sector 19-C Market, Chandigarh was so strong that
Sippy Sidhu reached in the location of Sector 27,
Chandigarh at 21.06.33 hrs on same evening after
dropping GF-I at her house at Mohali. The mobile
location of deceased is found at Sector 27,
Chandigarh at 21:06:33 hrs on 18.9.2015 night, he
returned to the location of house at 21:48:24 hrs.
16.44 Investigation conducted has disclosed that CCTV
footage of shop of M/s Thapar Shoes, Sector 19,
Chandigarh were obtained in which it was seen that a
girl was moving swiftly during the relevant time on
18.09.2015. The concerned CCTV footage received
from Chandigarh Police in DVD (sealed) along with
CCTV footage collected of # 1001, Sector 27,
Chandigarh were sent to CFSL, Chandigarh for frame
to frame photograph to get a clear view of the said
girl for her identification. It is to mention here that a
brief CCTV footage of 22 seconds of CCTV installed
at # 1001, Sector 27, Chandigarh was taken on record
of police file by Chandigarh Police whereas data of
DVR of CCTV at # 1001, 1049 and 164 were taken
in pen drive by the police. The loss of CCTV footage
data of # 1001 and 1049 at Sector 27, Chandigarh
hampered the investigation to proceed further to
identify the killer, vehicle and their accomplices etc.
16.45 Investigation conducted has disclosed that on
18.09.2015 after arrival of Sippy Sidhu at
Chandigarh from the house of his girl friend at Delhi,
he exchanged phone calls with numerous persons for
the purpose of his office building, installation of
CCTV Cameras and other miscellaneous routine
matters. No call/E.mail was exchanged over the
mobile/E.mail of Ms. Kalyani.
16.46 Investigation has revealed that on 18.09.2015, Ms.
Kalyani Singh in black and white saree was seen in
office of Sippy Sidhu at 4th Floor by the person
present in the building. At that time, both Ms.
Kalyani and Sippy Sidhu were discussing over some
issue. Ms. Kalyani Singh was speaking in loud voice
and Sippy Sidhu was pacifying her. On 19.09.2015,
Ms. Kalyani Singh again seen in the office of Sippy
Sidhu. After Ms. Kalyani Singh left the office on
19.09.2015, Sippy Sidhu was upset over the
behaviour of Ms. Kalyani Singh, though location of
mobile of Ms. Kalyani Singh did not corroborate so.
16.47 Investigation has disclosed that on 19.09.2015,
location of mobile of Sippy Sidhu up to 13:03:51 hrs
was at his house. During this period, he received two
calls from GF-I at 08:47:07 hrs and 13:03:51 hrs, he
also received two calls from Ms. Pawan Kaur of Sai
Aasra Paraplegic Rehab Centre, Chandigarh, an NGO
at 09:09:30 hours and 12:53:05 hrs, two calls with
Jatin Batra at 10:21:31 hrs and 10:34:00 hrs. Two
calls of Jitender of CCTV at 10:36:58 hrs. After
13:03:51 hrs to 16:26:30 hrs, Sippy Sidhu remained
at his office. Thereafter, at 18:20:04 he was in the
location of his house. After 18:32:04 hrs, he was
found in the location of Sector 27, Sector 19, Sector
16, Chandigarh upto 21:03:40 hrs and thereafter
returned to the location of his house at 21:26:02 hrs.
Thereafter, he remained at the location of his house
from 21:26:02 hrs on 19.09.2015 to 13:00 hrs on
20.09.2015. During this period, he exchanged calls
with his friends/person in his circle like GF-I,
Harshita, GF-IV besides and persons involved in
office working.
16.48 Investigation conducted has disclosed that on
20.09.2015, Sippy Sidhu attended a bhog ceremony
along with his mother at Sacha Dhan Gurudwara,
Mohali and remained there up to 1 PM. GF-I called
Sippy Sidhu on phone and invited him for family
lunch at Sector 26, Chandigarh. Sh. Sippy Sidhu had
lunch with the family of GF-I at Swagat Restaurant at
about 1.30 PM. During lunch at Swagat Restaurant,
he was excited over his plan to purchase a house at
Canada. After finishing lunch at Swagat Restaurant
both went to their respective houses. In the evening
Sh. Sippy Sidhu took GF-I in his car to Industrial
Area for purchase of furniture but the shop was
closed. While coming back to Mohali from Industrial
Area, Chandigarh, Sh. Sippy Sidhu planned to watch
already decided the movie 'Everest' at 4.20 PM show
at North Country Mall, Mohali. After watching
movie at 7 PM, Sh. Sippy Sidhu received a call from
mobile number 9815108889 of Sh. Angrez Singh, r/o
village Gandhar, PS Lakher Wali Mandi, Tehsil and
Distt. Muktsar, Punjab who was known to Sippy
Sidhu from his college days. Sippy Sidhu dropped
GF-I at her home. Thereafter, GF-I sent him last
messages through WhatsApp at 7:29 PM mentioning
“Love your sweetie”.
16.49 Investigation conducted has disclosed that Sh.
Angrez Singh, a college friend of Sippy Sidhu
discussed about a murder case of his village which
was confirmed from the recording of calls in his
mobile phone. Nothing incriminating relevant to the
case was discussed during this phone conversation.
Shri Angrej Singh preserved the recording of his
conversation because he was soon called by the local
police as well.
16.50 Investigation conducted has disclosed that on
20.9.2015, Smt. Deepinder Kaur along with his son
Sippy Sidhu visited Sacha Dhan Gurudwara to attend
a Bhog ceremony. After returning from gurudwara at
1.00 PM, Shri Sippy Sidhu changed his clothes and
went away to have lunch with GF-I. Thereafter, at
about 3.30, he again went out with GF-I and returned
to his house at about 7.00 PM after watching the
movie 'Everest' at North Country Mall, Mohali. He
came to her room and relaxed himself on her bed. He
was complaining of pain in his legs. At this, Smt.
Deepinder Kaur called her servant to give a massage
to him. Thereafter, Shri Sippy asked him that Ms.
Kalyani had called him at Sector 27 Park,
Chandigarh. Sh. Sippy Sidhu left the house at about
7.30 PM in his car after taking two apples from the
refrigerator. Thereafter, she remained busy in
kitchen etc. At about 11.00 PM, she made a call to
Sh. Sippy Sidhu which was attended by some lady
police officer, who told her about the incident with
Shri Sippy at Sector 27, Chandigarh.
16.51 Investigation has revealed that Sippy Sidhu returned
to India on 18.09.2015 and killed in mysterious
circumstances on 20.09.2015. On each evening of all
the 03 days, his location was found to be in Sector
27, Chandigarh. It is pertinent to mention here that
on 18.09.2015, after receipt of phone call, Sippy
Sidhu dropped GF-I and returned to the location of
Sector 27, Chandigarh. During the period from
18.09.2015 to 20.09.2015, Shri Parminder Singh
attended 03 functions organized on each evening i.e.
on 18.09.2015, he along with his wife, Vikas Singh
and wife of Vikas Singh visited the house of his
friend Arun Abrol, Advocate at Mohali, a dinner was
organized at his house on 19.09.2015 and on
20.09.2015, he along with his family and other
relatives attended the birthday party at the house of
Shri Kuldeep Singh, which is quite unusual in
reference to visits of Sippy Sidhu at Sector 19, Sector
27, Sector 16, Chandigarh during all these three days
from 18.09.2015 to 20.09.2015.
16.52 Investigation has revealed that Ms. Kalyani Singh
failed to explain that why she stopped calling/
contacting Sippy Sidhu w.e.f. 15.09.2015, i.e. one
day prior to his scheduled arrival in India on
16.09.2015 and further that having a long association
with Sippy Sidhu, she did not attended the
funeral/bhog of Sippy Sidhu and even did not visit
the house of Sippy Sidhu for condolence etc.
16.53 Investigation has revealed that Sh. Vikram Nagpal
along with Vishal Nagpal both r/o # 1001, Sector 27-
B, Chandigarh were present in their house situated
near to place of occurrence. At about 9.30 PM, on
hearing the sound like bursting of two crackers
followed by another two similar sounds like gun fire,
they came out from their house and observed an
unknown person lying in the park. They informed
the PCR. After about 20 minutes, the police reached
the place of occurrence. Next day, some police
personnel examined their CCTV DVR installed at
their house and took some data which covers the
movement of a small car outside their house during
the relevant time. The said car was not belongs to
them or to their relatives etc.
16.54 Investigation has revealed that Sh. Rajanbir Singh r/o
# 1015, Sector 27-B, Chandigarh was present in his
house, just meters away from the place where dead
body lying. He heard a gun shot from the park side
across boundary wall of his house. By the time he
reached near to the boundary wall, he saw a person of
a medium height of about 5'7” walking away from
the wall side. The said person stopped a while on the
walking track and turned his face to look at him. Out
of fear, he immediately got down on his knees over
the grass in his courtyard near boundary wall to avoid
any reaction.
16.55 Investigation has revealed that Smt. Amreeta Singh
w/o above Rajanbir Singh was also present in a room
situated at first floor of his house on 20.09.2015
night. She also heard the sounds of gunshots fire
followed by a screaming of a girl at about 9:30 PM.
She went out towards balcony facing the main gate
where she saw a small white coloured car parked
under the street light near to main gate of her house.
She also noticed a girl of age of about 26-27 years
swiftly coming from the sides of the park towards her
car. She opened the door of the car from driver side
and drove away towards the East Side of her house.
A computerized sketch of suspect girl seen by her
was also prepared.
16.56 Investigation conducted has revealed that Sh.
Kuldeep Singh along with Smt. Sarbjit Kaur (wife),
Shri Amandeep Singh (Son) and Smt. Amandeep
Kaur (daughter-in-law) are residing at # 113, Sector
18, Chandigarh. He is co-brother of Shri Sarjit
Singh, father-in-law of Shri Parminder Singh. On
20.09.2015, on the occasion of birthday of his wife
Smt. Sarbjit Kaur, they invited her near relatives of
Chandigarh to attend dinner at his house. Shri
Parminder Singh along with his family reached there
at around 8:15 PM and stayed till 11:00 PM. Beside
them, family of father in law of Shri Parminder
Singh, family of father in law of Shri Vikas Singh S/o
Sh. Sarjit Singh also attended the party whereas real
brother of above Kuldeep Singh and his family
residing adjoining to his house was not invited.
During celebration of birthday party, photographs
were clicked from 07:51 to 08:20 PM and thereafter
from 10:20 PM to 10:26 PM on 20.09.2015 in the
camera of Shri Amandeep Singh.
16.57 Investigation has revealed that during examination of
Ms. Kalyani Singh, her family members, they took an
alibi that on the day & time of incident on
20.09.2015, they along with their relatives were
remained present at House No. 113, Sector 10,
Chandigarh throughout the celebration of birthday
party started from 8.15 PM to 11.00 PM. The other
members of the birthday party also corroborated the
version of Ms. Kalyani Singh and her family
members w.r.t. their presence on 20.09.2015 evening.
16.58 Investigation has revealed that in order to ascertain
the veracity of the statement of Ms. Kalyani Singh
and her family members, polygraph examination of
Kalyani Singh and her father Shri Parminder Singh
was conducted at CFSL, New Delhi after recording
their consent before the court. The report of
polygraph of Ms. Kalyani Singh has revealed that on
the questions which included the relevant issues like
absence from party, presence at Sector 27,
Chandigarh and killing Sippy Sidhu, her answers
found to be deceptive. However, polygram of Shri
Parminder Singh is found to be truthful. The other
members/participants of the birthday party denied to
undergo polygraph test.
16.59 Investigation conducted has disclosed that cell ld of
tower dumps installed at Mohali, Chandigarh and
Panchkula having range over the place of occurrence
was collected from the concerned service providers.
However, no breakthrough could be find out during
scrutiny of the same. During scrutiny of tower dump
of place of occurrence at Sector 27, Chandigarh,
some mobile numbers were observed as suspicious
on the basis of their locations and common
connection with other number relevant to the case.
All the suspects were located and examined, but they
were found usual visitor to the said tower location
and explained their visit with plausible reasons.
16.60 Investigation has revealed that computerized sketch
of suspect girl who entered in White Car near to
place of occurrence i.e. Sector 27, Chandigarh has
been prepared on the pointing out of Smt. Amreeta
Singh, who had seen a girl moving from the place of
occurrence after the incident on 20.09.2015.
16.61 Investigation has revealed that Sh. Jitender Singh s/o
Sh. Gurmeet Singh working as air conditioning
mechanic at Sector 52, Chandigarh revealed that he
met Sh. Sippy Sidhu at his office F-452, Phase VIII-
B, Mohali in the year 2014. He was also in touch
with deceased Sippy Sidhu from 18.09.2015 to
20.09.2015 in connection with installation of CCTV
camera at the house of Sippy Sidhu at Mohali. They
were planning to purchase CCTV camera on
20.09.2015 accordingly Sippy Sidhu was in
possession of large amount of Rs.33230/- in his
pocket.
16.62 Investigation has revealed that scrutiny of WhatsApp
Chat No.1835 between Ms. Kalyani Singh, mobile
number 8198834127 and Sippy Sidhu for the period
from 23.12.2014 to 22.08.2015 revealed that Sippy
Sidhu sent objectionable pictures of Ms. Kalyani
Singh with Manjot Singh Cheema. On 13.04.2015 at
17:25:22 Sippy Sidhu sent postpaid mobile bill of
9646400004 of Simarandeep Singh Sandhu, in which
he indicated the duration of call exchanged by
Simrandeep Singh with Kalyani Singh. On
28.04.2015 at 19:27:25 hrs Sippy Sidhu sent
objectionable pictures of Kalyani Singh with her so
called mama. On 28.04.2015 at 19:32:12, Sippy
Sidhu again sent a screen shot of pics of Ms. Kalyani
Singh in compromise position.
16.63 Investigation conducted has revealed that scrutiny of
WhatsApp Chat No. 1703 of Ms. Kalyani Singh,
Mobile number 9888661315 with Sippy Sidhu for the
period from 22.01.2015 to 14.04.2015 revealed that:-
• On 15.02.2015 at 17:47:16 Ms. Kalyani Singh sent
message to Sippy Sidhu as “you know that just
stay with the bitch you have made out with”. “It
was so bloody important for you to do this. You
could not stop yourself. Blood hel, get lost.”
• On 17.03.2015 at 08:34:37, Sippy Sidhu sent her
screenshots of alleged recordings of mobile
number 9646400004 of Simrandeep Singh Sandhu.
He also sent a photograph showing images of CDs
related to messages, call logs, Viber etc. in respect
of mobile number 9417670318 of Kalyani Singh
and 9646400004 of Simrandeep Singh Sandhu.
• The above 07 CDs were taken on record from
Jasmanpreet Singh and sent to CFSL, Chandigarh
to retrieve the data, however, the CFSL,
2134/PHY/530/15/1605 dated 30.06.2016 and
dated 07.10.2020, it was opined that exhibits
marked CD-1 to CD-7 contain no data.
16.64 Investigation conducted has revealed that during
scrutiny of i-phone 6 make Apple, IMEI No.
358365063233444 taken from Ms. Kalyani Singh
found that on 13.09.2015, Sh. Navkiran Singh sent
message to Kalyani Singh and wished her for a
Garbage free life. On 14.09.2015, Ms. Kalyani
Singh had last contacted over E.mail with Sippy
Sidhu. On 20.09.2015 while present in same room at
# 113, Sector 10, Chandigarh Ms. Kalyani Singh also
exchanged WhatsApp message with Sabah Singh, on
20.09.2015 at 09:11 PM, Sabah to Kalyani: come in
other room, 20.09.2015 at 10:24 PM, Kalyani to
Sabah; yea just got them nothing new lol.
16.65 Investigation was conducted on the aspects i.e.
property matter, affairs of Sippy Sidhu with other
girls, activities of Sippy Sidhu with Paralympic
Committee and love affair of Sippy Sidhu with Ms.
Kalyani Singh to ascertain the motive and Mens rea
behind the murder of Sippy Sidhu which is described
(i) Property matters
Investigation w.r.t. property matters revealed
that in the year 2010 M/s Ozone Company
Omaxe India to facilitate the latter to purchase
land from farmers at Amritsar and get release
the land from acquisition by Improvement
Trust, Amritsar. Sh. Sippy Sidhu came in to
the contact with the Directors of Ozone
Company, being run by Directors namely Sh.
son-in-law of Bibi Jagir Kaur and Shri Avtar
Singh. In the year 2013 Sh. Sippy Sidhu
intervened the matter between M/s Ozone and
M/s Omaxe at his residence to settle their
purchase land from farmers at Amritsar and
get at released from acquisition by
• In the year 2013, Sh. Sippy Sidhu intervened
the matter between M/s Ozone and M/s
Omaxe at his residence to settle their issue.
The matter could not be resolved and
Thereafter, there was no interference on the
part of Sippy Sidhu in the said matter.
at F-452, Phase-8B, Mohali. The cost of the
industrial plot was considered as Rs.2.35
Crore and an equal amount was paid by Sh.
Avtar Singh for construction of the building
and share of 51% and 49% in the office
Ozone also invested in certain properties in
Mohali and Jalandhar Distt. of Punjab, of
motive of any person in the property matter has
been found which may cause the extent of
Investigation has revealed that Sippy Sidhu
was having multiple affairs with other girls.
Their names have not been incorporated in
adverse inference in the society as no role on
their part in the murder of Sippy Sidhu has
her who is a single child of an industrialist at
• Her parents proposed an engagement of their
daughter with Sippy Sidhu, however the
• Ms. Kalyani Singh objected the relation of
said girl with Sippy Sidhu. And also warned
her by sending message suggesting her to
• In the year 2004, she married to another boy
residing at Delhi.
• In the year 2011 she had strained relation
with her husband and started living
• In the year 2013-14 Sippy Sidhu approached
her and developed relation.
• Sippy Sidhu also stayed at her house number
of times prior to 20.09.2015
• Sippy Sidhu developed friendship with her
through face book.
• In the year 2014 she shifted to Chandigarh
for further studies and used to meet Sippy
• In the year 2015, she along with her friend
also visited the office of Sippy Sidhu at
• In the year 2015, she informed Sippy Sidhu
about her engagement to avoid his advances
towards her.
• In the year 2014, Sippy Sidhu called her to
his office as well at his house and developed
friendship.
even on the night of incident on 20.09.2015.
• She also helped the family of Sippy Sidhu
after the incident of murder on 20.09.2015.
• She is a divorcee with whom Sippy Sidhu
offered to settle her matter, however no help
was taken by her.”
5. After referring to all the material collected during the course of
investigations, the Investigating Officer concerned proceeded to conclude
that, an untraced report is to be filed in respect of the petition FIR, and,
ultimately he did so, through his instituting the same on 7.12.2020, before
the learned committal Court concerned. However, after the institution of
the above referred untraced report on 7.12.2020, before the learned
committal Court, the latter on 8.12.2020, made an order to declare whether
the report as became filed before it by the Investigating Officer was a final
report or an untraced report or a status report, obviously for this purpose,
the learned Court adjourned the matter to 14.12.2020.
6. On 14.12.2020, as is apparent from a reading of the order as
then made, the Investigating Officer concerned made a statement that no
investigation is pending in respect of the petition FIR, except the report of
the polygraph test being awaited. He further then states, that they are not
seeking further investigations of the case. However, the learned committal
Court concerned adjourned the committal proceedings to 12.1.2021 for the
filing of a fresh report by the CBI. However, even on 12.1.2021, the CBI
did not file any final report, but submitted that the polygraph test of some of
the suspects, is to be made by the CFSL, New Delhi, respectively on
3.3.2021 and on 4.3.2021. Therefore, for the afore purpose, the committal
proceedings were adjourned to 15.3.2021. But even on 15.3.2021, no final
report became filed before the learned committal Court, but a direction was
then made, that the CBI ensuring that the relevant tests are conducted by the
CFSL, New Delhi. The matter was adjourned to 31.3.2021. On 31.3.2021,
the CBI moved an application for conducting the polygraph test of Shri
Simarandeep Singh Sandhu and of Shri Karampal Singh as the same had
been scheduled on 19.4.2021 and on 20.4.2021 at CFSL, New Delhi.
Therefore, the committal proceedings were adjourned to 3.5.2021 for a
report about the above tests being submitted before the Court. On
22.4.2021. the learned committal Court concerned upon, being seized with
the report drawn by the PGIMER, with an opinion therein that “looking at
the enclosed prescriptions of Mr. Sandhu (applicant/suspect) from Omni
Clinics, it seems that he is on medications, which according to available
literature, have been found to have potential of interfering with the accurate
interpretation of the polygraph test, e.g. Betacap (propranolol and
Tryptomer amitriptyline).” Therefore, the learned committal Court ordered
that the reply of CBI, be furnished with respect to the veracity of the above
report making speakings about the inability of conducting of polygraph test,
upon, suspect Simrandeep Singh Sandhu. However, on 3.5.2021, the above
Simrandeep Singh Sandhu was ordered to be provided with the report
(supra). Moreover, on 1.6.2021, the learned committal Court, in view of the
medical report (supra), issued notice to the CBI, upon, the above suspect's
application, for hence his being permitted to withdraw his earlier consent
for his undertaking the polygraph test. On 7.7.2021, the learned committal
Court proceeded to allow Simrandeep Singh Sandhu to withdraw his earlier
consent as made on 12.11.2020 to undergo his polygraphy test, but yet
permitted the investigating team to employ upon them Forensic
Psychological Assessment besides Layered Voice Analysis (LVA). Even
suspect Karampal Singh moved an application for withdrawal of the earlier
consent given by him to undergo polygraph test, as such, notice of the above
application was given to the CBI, besides, notice was given to the CBI, on
Simrandeep Singh Sandhu's application, that he may not be called to CFSL,
New Delhi. On the above applications, the learned committal Court
permitted the applicants (supra) to withdraw their earlier consent for theirs
undergoing the above polygraph tests besides also denied to the CBI their
request to perform Layered Voice Analysis, upon, the above suspects.
Moreover, it also ordered that nothing more is to be done on the part of the
investigating agency rather ordered that the proceedings be listed on
16.8.2021, for the purpose of considering the acceptance/rejection of the
untraced report submitted by the CBI.
7. On 16.8.2021, notice was given to the family members of the
deceased to make a protest to the acceptance of the untraced report as
became instituted on 8.12.2020 by the CBI. In pursuance thereto, on
22.9.2021, the relatives of the deceased asked for an opportunity to file a
protest against the acceptance of the untraced report. Subsequently, various
dates became assigned to the concerned to complete the respective
pleadings. On 12.1.2022, aggrieved victims filed a protest petition before
the learned committal Court against the acceptance of the untraced report.
Moreover, an opportunity was granted to the concerned to institute a reply
thereto. On 7.2.2022 besides continuously thereafter, a perusal of the
committal proceedings, discloses that the Investigating Officer concerned
not asserting any pointed inculpatory evidence becoming collected against
the present petitioner. On 23.2.2022, a reference was made to an order
dated 14.2.2022, whereby two months' time was asked by the Investigating
Officer to conclude the investigation, and, hence, the learned committal
Court adjourned the committal proceedings to 16.3.2022 for submitting the
8. However, on 16.3.2022, the Investigating Officer submitted
before the learned committal Court, that as per source information the last
four digits of Maruti Zen Car spotted at the place of incident besides at the
relevant time are “1183” and, that the record from the Department of
Transport concerned, in respect of the above is to be collected. However, a
perusal of the subsequent proceedings thereto drawn by the learned
committal Court does not reveal that the identity of the owner of the car
became revealed to the Court. Thereafter, on 27.7.2022, the learned
committal Court directed the Investigating Officer concerned to submit in
Court the statements of the witnesses recorded under Section 161 of the
Code of Criminal Procedure besides the documents mentioned in the final
report dated 7.12.2020, but yet in a sealed cover. Moreover, it also
permitted the Investigating Agency to record supplementary statements of
any witness already examined. In addition, a perusal of the orders as made
subsequent to the order (supra), does not disclose that the learned committal
Court had proceeded to accept the untraced report as became submitted
before it on 7.12.2020 by the CBI. Therefore, then the investigations were
yet underway into the crime event.
9 (I). The crime site occurs in the neighbourhood of the house of
Rajanbir Singh, Amreeta Singh besides occurs in the vicinity of the house(s)
of Vikram Nagpal and Vishal Nagpal. The statements of all the above
including the statement of Kundan Lal, a domestic help of Rajanbir Singh
became initially recorded by the Investigating Officer concerned, but after a
period of almost six months elapsing since the happening of the crime event
at the crime site.
II. The learned counsel appearing for the petitioner submits, that
these statements are only to the effect, that qua Rajanbir Singh and Kundan
Lal, on hearing gunshot sounds, hence, leading Rajanbir Singh to move to
the boundary wall of his house, overlooking the park where the crime
occurrence took place. Moreover, he has stated that when he moved
towards the wall, he heard two more shots being fired in quick succession,
and upon, his reaching near the wall, his seeing a person of medium height
walking away from the wall side. In the above process of the said person
walking, he stopped midway at the walking track, and, turned his face to
look at this witness, but Rajanbir states that he knelt down to avoid his
being sighted. Even the domestic help of Rajanbir Singh, namely, Kundal
Lal makes an alike statement but the learned counsel for the petitioner
submits, that their statements are not worthy of any credence, as they have
not mentioned thereins, the trite factum about the physical features of the
running persons nor mentioned about each sighting any weapon of offence
being carried by the said person nor have mentioned the presence of any
lady at the relevant time at the crime site. Even otherwise, he submits that
since the statements of the above witnesses were recorded after nearly eight
months elapsing since the taking place of the crime occurrence. Therefore,
their statements cannot be relied theirs being hit by Section 162 of the Code
of Criminal Procedure. Besides, he submits that despite Rajanbir Singh
being re-examined by the CBI on 20.5.20216, his statement has been
withheld which does, prima facie, speak about the malafides of the
III. Another statement of Amreeta Singh wife of Rajanbir singh,
resident of Kothi No. 1015, Sector 27-B, Chandigarh became recorded on
20.5.2016, but evidently also with a period of more than eight months
elapsing since the crime happening at the crime site. In the above made
statement, she submits that she heard the screams of a woman and later saw
a girl walking towards her car and driving away. Therefore, he submits that
since in semi darkness, Amreeta Singh saw a fleeting glimpse of a girl,
resultantly, when she did not in her initial statement made on 20.9.2015,
rather reveal the physical features of the lady or of the girl concerned. As
such, he submits that the supplementary statement as recorded on 4.8.2020,
of one Amreeta Singh, wherein she, as submitted by learned counsel for the
CBI, recollected from memory the physical features of a girl she then saw
besides, aided the drawing of sketches by the Investigating Officer
concerned, whereafter, she related the drawn sketches of a girl to the
identity of the present petitioner, also cannot be believed. In resting the
above submission, he grooves it on the factum, that only if she had at the
initial stage in her earlier previous statement recorded by the Investigating
Officer concerned rather revealed the physical features of the present
petitioner, thus, leading to the conducting of a valid test identification
parade, whereins Amreeta Singh identified the present petitioner, thereupon,
alone may be credence could be assigned to hers validly then identifying the
petitioner, rather than through the above mode.
IV. Moreover, he submits that no reliance also can be placed on the
statement of Jatinder Singh who respectively made certain statements on
1.8.2016, on 21.11.2017, on 9.1.2018, on 1.2.2019 and on 1.9.2020, given
all the above statements being recorded with more than ten months elapsing
since the happening of the crime event at the crime site, thus, attracting
thereons the bar under Section 162 of the Code of Criminal Procedure. He
further submits that no reliance can ever be placed, upon the above
statements, as he is not an ocular witness to the crime event, but only claims
that he reached the Press Club area of Sector 27, in the vicinity of the spot,
at about 7 PM on 20.9.2015, and, but obviously not at the relevant time.
Moreover, he submits that since the statement of supra, is also mentioned in
the untraced report, therefore, when even then the CBI did not draw any
inculpation against the petitioner. Therefore, no reliance thereons even at
this stage can be placed by the CBI.
V. The learned counsel for the petitioner also submits that since
the Investigating Officer concerned, has failed to produce from the service
provider concerned, the call data even appertaining to the cell phone of
Jatinder Singh, revealing from the apposite tower locations concerned, qua
his being present at the crime site or at any other place. Therefore, he
submits that the effect of non collections (supra), is that, they do minimise
the evidentiary effect, if any, of the statement of one Jatinder Singh.
VI. In paragraphs 16.13 to 16.16, the prosecution assigns the
incriminatory fact to the petitioner qua hers nursing a motive to commit the
crime on the ground of her proposal to marry the deceased being spurned by
the relatives of the deceased, on the ground of it, being an inter-caste
VII. The learned counsel for the petitioner has argued, that the
emphasis as now made by the CBI qua the present petitioner nursing a
motive to commit the offence, thus, emerging from the deceased
transmitting her obscene photographs, to various persons including her
family members, resulting in embarrassment being caused to her, is in
complete contradiction, to what emerges in paragraphs 16.13 to 16.16 of the
untraced report. Therefore, he submits that the relevant subsequent
changings of stand by the CBI qua the foundational fact relating to
attribution of a motive to the petitioner does become suspect. He further
submits, that the above change, is the result of the CBI making alignments
with an alike attribution of motive to the present petitioner by the
complainant. Therefore, he submits that the investigations into the crime
event are completely coloured and are not fair objective and impartisan
VIII. He also submits that the projection made by the complainant
that the deceased had taken to abandon his ties with the petitioner, upon, his
acquiring knowledge of hers having other relationships, is also completely
IX. Learned counsel for the petitioner contends that even the
attribution of the above motive to the present petitioner becomes completely
a) Annexure P8 at page 116, whose readings reveals the
earnestness of the deceased to remain close to the
petitioner besides sheds light qua the deceased having
multiple affairs.
b) In para 16.37/page 53, there is a reference to an email
dated 29.8.2015. The same is placed on record as
Annexure P-8/122. This is followed by another email at
page 123 of the same date. In the same chain, it is
significant to refer to an email dated August 30, 2015 at
page 124. All these emails totally falsify the theory of
any breach of ties amongst the petitioner and the
deceased. Moreover, the above emails reflect that the
deceased had promptly conveyed to the petitioner the
perceived threat to his life from some unknown quarters.
These emails assume great importance as they relate to a
period when the deceased was abroad.
c) Strangely enough, the prosecution itself has alleged at
page 57/para 16.46, that the petitioner had visited the
office of Sippy Sidhu on 18.9.2015 as also on 19.9.2015.
Therefore, the untraced report of the CBI revealing about
breach of ties amongst the deceased and the petitioner is
false. Moreover, tears apart the contention of the
respondent that there was any animosity amongst the
deceased and the petitioner. The above assertion is
contended to falsify the so called theory of the CBI that
the petitioner had clandestinely made calls to the
deceased, on 18.9.2020, in order to conceal her identity.
X. The learned counsel for the petitioner further submits, that upto
the stage of the filing of the untraced report, before the learned committal
Court, there was no incriminatory evidence available against her but she
was named only in the column of suspects. Therefore, he contends that the
sudden emergences subsequent thereto of any incriminatory material against
her, is a result of complete twisting and skewings of investigations. Even
otherwise, he submits that since the above emails exchanges are suggestive
of no break down occurring in the ties amongst the petitioner and the
deceased. Therefore, there was no occasion for her to make calls to him
from unknown numbers. Moreover, he further submits, that even the
petitioner visiting or interacting with the deceased on two days prior to the
occurrence also does not arouse any suspicion as both were, throughout on
amicable terms. He submits, that the trite evidence with respect to call
details of the petitioner along with apposite tower locations particularly
relating to the trite factum that in and around the relevant time, she was at
the crime site, rather is completely absent. Therefore, no argument can be
raised that on the asking of the petitioner, the deceased had arrived at the
crime site.
XI. The learned counsel further submits, that it emerges from
paragraph 16.40 of the untraced report, that the relevant calls were from
some quarters which caused some fright in the mind of the deceased,
especially when the answer of the deceased to the first call was “Main
Karda Haan Main Karda Haan”, besides his response to the call at 8.12
PM being “Meri Taan Fatt Gai Si.” Therefore, they are reflective of the
caller concerned being a Mafia Don and his taking to threaten the deceased.
Resultantly, the learned counsel argues that the above aspect has remained
un-investigated into by the CBI, whereas, upon complete objective
investigations being made thereinto rather then the fact of participation in
the crime event of some other relevant offender would have emerged.
XII. The learned counsel submits that since the readings of the
emails exchanged amongst the petitioner and the deceased, thus, occurring
in Annexure P-8, especially at page 120 of the paper book, reflect that, since
some maruti car with persons carrying weapons rather occupying the same,
thus, arousing suspicion in the mind of the deceased, about theirs' rearing an
ill motive against the deceased, resulting in advise being purveyed to the
deceased by the petitioner, that an intimation about the above fact be made
to the DGP. However, the Investigating Officer concerned has not made
any investigations in respect of the above, resultantly completely skewed
investigations, are conducted, thus, excluding the role of the above in the
crime event.
XIII. The petitioner has been able to successfully establish the plea
of alibi inasmuch as at the relevant time hers being present in a party. He
submits that the above is corroborated by a positive polygraph test as made
upon the father of the petitioner, no matter the result of the polygraph test as
made upon the present petitioner being declared deceptive.
XIV. The learned counsel for the petitioner lastly submits, that since
there is a reference in the untraced report, about the deceased having
multiple affairs besides with his admitting in various emails exchanged with
the petitioner qua his taken to be holdings ties with multiple lady friends, as
such, some other girl friends may have nursed a pointed motive to murder
the deceased. He pointedly submits that even upto the evening of the
relevant day, the deceased was in the company of GF-I.
10. The learned counsel for the CBI has submitted that the
evidence collected in the year 2021 by the CBI is truthful and worthy of
credence as it contains an eye witness account with respect to the crime
event. The said eye witness account is comprised in the statement of one
Jatinder Singh. Moreover, it is also submitted that since one Jiwan Singh,
the domestic help of deceased has on 21.10.2021, got recorded his statement
that on the relevant date, the deceased apprised him that he has to meet the
petitioner. Therefore, it is contended that the petitioner was available at the
crime site.
11. The learned counsel for the complainant has argued, that the
investigations which were earlier conducted into the crime event, by the
Chandigarh Police were, highly influenced investigations, as is apparent
from the officer of the CBI, at the end of the untraced report, making a
suggestion that for destruction of evidence, the relevant proceedings be
drawn against the errant police officials concerned. He submits that the
evidence destroyed did inculpate the present petitioner. Further more, he
submits that if certain portions of the DVR or of the CCTV footage existing
within or outside the neighbourhood of the crime site, was collected and
analyzed, then the inculpation of the present petitioner would have been but
squarely revealed. He submits that with a view to suppress the participation
of the present petitioner in the crime event, the complete detail (s) of the
DVR and of the CCTV footage has been deleted at the instance of the
officers of the Chandigarh Police. Moreover, he submits that the ocular
account rendered in respect of the crime event by one Jatinder Singh, also
becomes corroborated as is evident from the identification made of the
petitioner by one Amreeta Singh, in the year 2020.
12. The motive assigned to the present petitioner, in the untraced
report which has been instituted on 7.12.2020 before the learned committal
Court, is that, owing to breach of promise of marriage by the deceased
arising from his relatives opposing the same, it being an inter-caste
marriage, hence, the petitioner developing an animosity towards the
deceased. If so, the above motive in the mind of the petitioner, may have
normally earlier led the CBI to then assign inculpability to the petitioner,
but the CBI did not then do so. However, it chose to yet file an untraced
report but kept the petitioner in the column of suspects. Therefore, if at the
time of institution of an untraced report by the CBI, apparently it did not
attach any importance to the above purported motive carried in the mind of
the petitioner. Thus, obviously then the CBI also did not collect further
incriminatory evidence against the petitioner, for its then seeking to
pointedly then inculpate the petitioner. However, rather then the CBI as
stated (supra) kept the petitioner in the column of suspects.
13. Therefore, at the above stage except the above motive, there
was no further incriminatory evidence available with the CBI to, prima
facie, firmly connect the petitioner with the crime event. The untraced report
as stated above, never became accepted by the learned committal Court. In
consequence, in the CBI now assigning any motive to the present petitioner,
is but, prima facie, an after thought besides, is prima facie a stratagem
employed by it to somehow yet on its score assign guilt to the present
petitioner. This Court, prima facie, finds that the above is but a consequence
of protest against the acceptance of the untraced report being preferred by
the aggrieved, who thereins assigned a motive to the petitioner qua the
deceased taking to share the cell phone clicked obscene pictures of the
petitioner with certain individuals and the family members of the petitioner,
resulting in embarrassment being caused to her, whereafter she allegedly
nursed an ill motive to commit the offence. The CBI has adopted a similar
stand and thus has obviously changed the above initially assigned motive
by it to the petitioner, which, however, then was also not deemed fit to
inculpate the petitioner. Therefore, it appears that the investigations made
into the aspect of an ill motive, if any, nursed by the petitioner against the
deceased are but, prima facie, a result of coloured investigations by the CBI
into the crime event and that too, for reasons best known to it, it rather
making alignments with the motive assigned to the petitioner by the
aggrieved. Therefore, the investigations into the aspect of ill motive, if any,
nursed by the petitioner against the deceased, can but be concluded to be,
prima facie, made not in an objective mode, but in a partisan and coloured
mode. The said investigations into the aspect of motive, thus prima facie do
not inspire the confidence of this Court.
14. The effect of the different motives at different stages being
assigned by the CBI to the petitioner, is that, thus the same also prima facie
becomes inconsequential.
15. The reasons for forming the above conclusion arise from the
factum that in the close proximity of the happening of the crime, it being,
but evident from all the available whatsapp messages exchanged amongst
the petitioner and the deceased, that both the petitioner and the deceased
were enjoying the most cordial relations. It is also, prima facie, evident
from a reading of Annexure P-8 at page 116 of the paper book besides from
a reading of paragraph 16.37 at page 53 of the untraced report, besides on a
perusal of Annexure P-8, pages 122-123 of the paper book, that both the
petitioner and the deceased (supra) were till the end having the most cordial
relations. The above contended break down of ties at the relevant time
amongst the concerned, is also, prima facie belied from a reading of page 57
of the paper book, whereins, it is revealed that the petitioner had visited the
office of the deceased both on 18.9.2015 and on 19.9.2015, hence, prior to
the occurrence. There is also no evidence, at this stage, on record to
suggest, that when the petitioner visited the office of the deceased, on
18.9.2015 as also on 19.9.2015, that then there occurred bickerings amongst
them. Therefore, when the above dates are close to the happening of the
crime incident, it can but be, prima facie, concluded that upto the happening
of the crime event there was no acrimony amongst them. Inconsequence, the
assignings of motive by the prosecution to the petitioner, prima facie, does
become completely enveloped in a cloud of doubt nor prima facie at this
stage, any inculpatory effect can be attached theretos.
16. The prosecution attributed to the petitioner yet the role of hers
carrying animosity towards the deceased and in doing so, it relies upon one
Hari Shankar Gupta who stated, that on that day, i.e., 18.9.2015, at 8.15 PM,
a girl of age about 25 years, wearing top and jeans and a dupatta of dark
colour wrapped around her neck, open hair upto the shoulder, with physical
features like the petitioner, had visited his premises and had asked him to
give his mobile as she stated that his phone has been left at home. On her
request, he handed over his mobile to her and after completing the call, he
submits that she returned his mobile to him but only after hers deleting the
dialled number. The above call is stated to be attended by the deceased
when he was present along with his Girl Friend-I (GF-I) at Industrial Area,
Chandigarh. However, the above call is made on 18.9.2015 and is not made
on at the relevant date inasmuch as on 20.9.2015. Therefore, it may not be
given much importance. Moreover, when on the basis of the above call, a
reference is made even in the untraced report instituted by the CBI.
Therefore, if any importance was to be assigned to the above phone call,
then the CBI may have then taken to then on its basis, hence inculpate the
petitioner, than to then file an untraced report, but it did not then do so.
Insofar as Hari Shankar Gupta from whose cell phone, some unknown calls
were made purportedly by the petitioner to the deceased, and as stated by
Hari Shankar Gupta, the caller relating to the identity of the petitioner, this
Court would deal with the same at a subsequent stage. Reiteratedly, from
the above drawn inferences, it can but be prima facie concluded that the
motive as initially assigned to the petitioner by the CBI, has not been ably
established. The above motive was earlier abandoned by the CBI, but
subsequently the CBI changed its stand to bring alignments with the motive
(supra) assigned to the petitioner, by the complainant which yet however
also for reasons (supra), does not appeal to the judicial conscience of this
Court qua, prima facie, it carrying any inculpatory effect.
17. In the neighbourhood of the crime site, there exists the house of
Rajanbir Singh, Amreeta Singh besides the house of one Vikram Nagpal
and Vishal Nagpal. Rajanbir Singh and Amreeta Singh have a domestic
help one Kundan Lal. Both Rajanbir Singh and Kundan Lal joined
investigations but after six months elapsing since the happening of the
crime event at the crime site. In their respectively made statements, they do
not reveal the identity of the petitioner nor do they reveal her physical
features. The only statement which they make, is about, theirs hearing
gunshot sounds, as emanated from the crime site. Importantly, they only
refer to a male person being sighted at the crime site. On the other hand,
Amreeta Singh wife of Rajanbir Singh who joined investigations with
almost eight months elapsing since the crime happening at the crime site,
though did then, proceed to make a statement revealing, that she had heard
the screams of a woman and that later she had seen a girl walking towards
her car and driving away. Importantly, however, except the above, she has
also not thereins disclosed the physical features of the girl concerned.
However, in her supplementary statement recorded by the CBI on 4.8.2020,
the above Amreeta Singh, appears to recollect from her memory the
physical features of the girl, she saw at the crime site besides appears to aid
the Investigating Officer concerned, to draw sketches of the girl concerned
whom she relates to the identity of the petitioner. However, the above
cannot become a valid ground for concluding that the same is a valid
substitute, to the required test identification parade being conducted, by the
Investigating Officer, whereins, Amreeta Singh, hence identifying/
identified the petitioner. Importantly during the course of investigations, no
valid test identification parade was ever held. It appears that it was not ever
held because in her initially made statement, as made with more than eight
months elapsing since the happening of the crime event, she did not thereins
mention the key characteristic identifiable physical features of the
petitioner. Though, Amreeta Singh's statement is made with more than
eight months elapsing since the crime event taking place and is prima facie
hence hit by Section 162 of the Code of Criminal Procedure. But even if it
has some credence, yet in the initial statement she was to yet detail the
marked identifiable physical features of the girl. However, she did not then
do so. If in a supplementary statement as made by her on 4.8.2020, she
from making recollections from her memory, qua the physical configuration
of the girl rather, aided the CBI to draw some sketches besides also related
the drawn sketches to the petitioner, but yet prima facie also no credence
can be assigned thereto. The reason is, but obvious, that credence could be
assigned to the above only when in her initially made statement, she had
recorded the marked identifiable physical attributes of the girl whom she
saw at the crime site. She did not then do so. Thus in hers subsequently
doing so, she is prima facie concluded to be so doing under tutorings being
given to her by the CBI. Therefore, she is prima facie concluded to be a
planted witness or an engineered witness. Moreover, since she has only
inculpated the petitioner through preparation of sketches of the girl, she saw
at the crime site. Resultantly, no credence can be assigned to the above
manner of hers identifying the petitioner. Reiteratedly, when as above
stated it is never a valid substitute to the required valid test identification
parade being conducted. The above valid test identification parade never
became conducted by the Investigating Officer concerned.
18. The pivot of the prosecution case, is rested on the statement of
one Jatinder Singh, who is claimed to be an ocular witness. He, had on four
occasions earlier to 9.11.2021 made statements to the Investigating Officer
concerned, inasmuch as, on 1.8.2016, on 21.11.2017, on 9.1.2018, 0n
1.2.2019 and on 1.9.2020. However, in none of the statements, he claimed
himself to be an eye witness of the occurrence. Surprisingly and suddenly,
in a statement made on 9.11.2021 under Section 161 of the Code of
Criminal Procedure, he claimed himself to be an eye witness, to the
occurrence, and named the present petitioner to be the prime inculpatory
participant in the crime event. The above made statement is prima facie
weak and cannot be accepted.
19. The reason being that when an untraced report was filed, his
statements as made prior thereto, were already with the CBI, where he never
claimed himself to be an eye witness of the occurrence. However, he makes
a somersault, during the phase of the learned committal Court being seized
with an untraced report and with the protest against its acceptance being
made by the aggrieved, through his making a statement on 9.11.2021
whereins he claims himself to be an eye witness of the occurrence.
Necessarily, prima facie, the above statement of Jatinder Singh which is but
completely contradistinct to his earlier statements, thus does become
enveloped in a deep shroud of suspicion. Consequently, the above is but a
planted witness as also a witness who has been coached by the Investigating
Agency only for solving the murder of the deceased.
20. In addition, the cell phone of Jatinder Singh was the best
electronic evidence for prima facie supporting his statement as made on
9.11.2021. The call data thereof, besides the apposite tower locations
revealing his presence in and around the crime site at the relevant time, may
have prima facie led this Court to assign credibility to this statement.
However, all the above never became collected by the Investigating Officer.
Absence of collections (supra) does also prima facie devalue his statements
(supra). It was but incumbent upon the Investigating Officer concerned to
not only collect his mobile phone besides also to ensure the collection of all
relevant data from the service provider concerned, revealing that he along
with his mobile phone was available at the crime site. It was then only that
this Court may have been assured that he was, at the relevant time, in and
around the vicinity of the crime site. Surprisingly, the above has not been
done, and, prima facie hence it adversely impacts the statement of Jatinder
Singh. Therefore, at this stage, the said statement does not carry any
evidentiary strength.
21. It appears that in the neighbourhood of the crime site, some
DVRs were existing and they enclosed CCTV footages of the crime event.
The above, though then became collected by the then Investigating Agency
concerned, but in para 16.44 of the untraced report, there is no disclosure
that at the relevant time, the present petitioner was revealed thereins to be
present at the crime site. The above comprised the best evidence to make
this Court, prima facie conclude that the present petitioner, at the relevant
time, was at the crime site. Despite the CBI in the untraced report making a
declaration, that only a part of the incident became enclosed in the DVR as
became collected from the neighbourhood of the crime site, but it alleges
that the then Investigating Agency taking to destroy the other portions of the
CCTV footage, besides also the DVR. However, prima facie, the above fact
could have been supported, only by the report of the CFSL, New Delhi, but
the above finding is not available on the record. Therefore, the enclosings
in the DVR, may be of only a fraction of the crime event and not of the
entire crime scene, may be rather attributable to some glitches in the DVR,
than prima facie to any tamperings or destructions being made at the
instance of the then Investigating Agency concerned. The above
attributions of tamperings/destructions, to the earlier Investigating Agency,
as, made in the untraced report filed by the CBI, appear to be prima facie
totally mis-founded besides, appear to be made to camouflage the numerous
faults committed by the CBI in the investigations as made into the crime
22. The present petitioner had remained in CBI custody for six
days, but surprisingly during the above phase the Investigating Officer
concerned did not record her disclosure statement about hers concealing and
hiding the crime weapon nor obviously any recovery thereof became
effected at her instance to the CBI. The omissions (supra) are prima facie
extremely grave inasmuch as, despite one Jatinder Singh in his statement
narrating an ocular account qua the crime event, hence inculpating the
petitioner as the principal in the first degree. However, yet the above
memos became not drawn during the course of the petitioner's spending six
days in CBI custody. The resultant effect of the above omission, is that,
“the statement of Jatinder Singh was not then available” with the CBI. Thus,
prima facie it appears that to validate the arrest of the present petitioner, the
Investigating Officer concerned, despite rather post the arrest of the
petitioner his recording the statement of one Jatinder Singh, his taking to
antedate the statement of Jatinder Singh, only for justifying the arrest of the
present petitioner. The above prima facie antedating also at this stage
makes the statement of one Jatinder Singh to be suspect. Even otherwise,
the non-recovery of the weapon of offence from the petitioner by the
Investigating Officer concerned, despite the prosecution alleging that she is
the principal in the first degree, also prima facie does not connect the
petitioner in the alleged crime.
23. Since the investigation into the crime event evidently
commenced about seven years hitherto and yet with no headway being made
for solving the crime event by the Investigating Officer except the filing of
an untraced report on 7.12.2020 before the learned committal Court. Thus,
it appears that, prima facie, there was an over anxiety on the part of the
Investigating Officer concerned, to somehow close the investigations
through his arresting the present petitioner. However, he has remained
unmindful to an untraced report being filed on 7.12.2020, whereins, the
statements of all the witnesses were reflected, yet then no inculpation being
drawn against the petitioner. In sequel, the above hastiness of the
Investigating Officer, besides his leaving aside all relevant un-investigated
facets, which become referred hereafter, also leads to a prima facie
irresistible conclusion, that rather botched and slipshod investigations,
being made into the crime event, rather only for solving the same, than his
ensuring that the role of all the relevant offenders concerned being also
completely investigated into.
24. Though one Jiwan Singh, a domestic help in the year 2021 has
stated that the deceased had left his home intimating him that he has to visit
the petitioner. But the above statement is much delayed since the happening
of the crime event. Thus, the said statement prima facie does not at this
stage, carry any credit worthiness. Importantly also, when he is not an eye
witness besides when for reasons assigned hereinabove the best electronic
evidence suggestive of the guilt of the petitioner is not available before this
Court. Moreover, when also for reasons assigned hereinafter prima facie at
this stage the petitioner has ably reared a plea of alibi.
25. Be that as it may, the plea of alibi as claimed by the present
petitioner is accepted by the CBI, even in the untraced report. The same is
prima facie established from the positive results of the polygraph test as
became conducted upon the father of the petitioner. The effect of positive
results of the polygraph test as conducted on the father of the petitioner, is
that, his being truthful in stating about the presence of the petitioner, at a
birthday party and that too at the relevant time. Therefore, any negative
results with respect to the polygraph test as conducted upon the present
petitioner, thus are prima facie unworthy. The reason being that with the
father of the petitioner as stated above assigning truthful answers with
respect to the petitioner being at a birthday party, and that too, at the
relevant time. Thus when the above is at this stage not belied, resultantly the
negative polygraph test as conducted upon the present petitioner, does at
this stage prima facie, become insignificant. Therefore, the plea of alibi
prima facie can be said to be well rested upon the positive polygraph test as
conducted upon the father of the petitioner who has therein spoken about
the presence of the petitioner at a birthday party at the time when the crime
event took place at the crime site. Therefore, also prima facie the belatedly
recorded statements of all the witnesses concerned do also at this stage
become unworthy.
26. A reading of paragraph 16.40 of the untraced report which is
extracted hereinabove reveals that certain calls, from certain unknown
quarters caused fright in the mind of the deceased. The above is discernible,
from the deceased to the first call replying that “Main Karda Haan Main
Karda Haan”, besides his response to the second call being “Meri Taan
Fatt Gai Si”. The above words reflect that the deceased was under some
threat. Even the above fact is mentioned at page 118 of the petition file,
whereins, in an email exchanged amongst the petitioner and the deceased,
there is a mentioning of some security cover being purveyed besides it being
also mentioned that weapons being provided to the deceased. However, yet
the petitioner getting surprised since he did not apply for the same.
Moreover, a car with last digits “1183” was also found to be available at the
relevant time at the crime site. A 800 maruti car chasing the deceased's car
is also mentioned thereins besides, it is mentioned that a girl and a boy were
sitting in the car. However, he states therein that a bag inside the car fell
down and that when he opened the said bag he saw a diary, and, therein he
noticed that his name with office address and house address was mentioned
as they were contract killers. The above email as sent to the present
petitioner reflects about the deep trust which the deceased reposed in her.
Moreover, it also reflects that some persons were targeting the deceased.
Therefore, when the email (supra) is blended, with a disclosure in paragraph
16.40 of the untraced report, that some calls from some quarters caused
fright in the mind of the deceased. Resultantly, it can be concluded that
some unknown persons were targeting the deceased. However, the roles of
all above such unknown persons have not been investigated into with such
thoroughness, as was expected. Moreover, neither the owners thereof have
yet been established nor they have been put to inculpation, despite prima
facie the occupants of the car with last digits “1183” being available at the
crime site, and also when the identity (ies) of the boy and the girl who are
mentioned by the deceased to be chasing and causing fright in his mind, has
yet remained untraced through employments of best forensic/scientific
techniques. Significantly, the CBI does not relate the identities of all the
above to the present petitioner.
27. The above lack of thoroughness of investigations by the CBI,
appears to be a result of its prima facie making alignments with the
aggrieved. Though, the association of the aggrieved in the relevant
investigations was necessary and may have also been taken, but, yet with
the rider that the Investigating Officer concerned never loosing his
objectivity and fairness. Contrarily, he has prima facie taken all misfounded
clues only from the victim-aggrieved. Thus has completely abandoned as
was required to make threadbare and objective investigations. Though it
was a legitimate expectation from the investigating agency that the crime
event becomes solved. However, though for certain reasons best known
only to the Investigating Officers concerned, they since the very inception
of the crime event, prima facie appear to only for solving the crime event,
but without any prima facie tangible evidence rather singularly choosing to
inculpate the petitioner in the crime event. The above endeavour appears to
a sequel of the Investigating Agency relegating into the limbo of oblivion
all the above referred defects in the investigations as made into the crime
event. Therefore also it prima facie appears that objective and fair
investigations have not been carried into the crime event.
28. The CBI is the prime Investigating Agency and has to live up to
its renowned credentials. However, prima facie in the instant case, it has
not lived up to its credentials of being the foremost Investigating Agency in
the country, from whom it was but expected that the most impartial and
objective investigations are made into the crime event, than its choosing to
only adopt the stand of the aggrieved. Though, the CBI could have taken to
seek cooperation from the aggrieved, but only when, prima facie tangible
besides credit worthy evidence to support the aggrieved's stand, did make
emergence. However, for all reasons (supra) evidence to prima facie
inculpate the petitioner is not available on record.
29. Startlingly, the untraced report became filed in the year 2020,
whereas, the investigation was handed over to the CBI in the year 2015.
Therefore, than the CBI employing the best scientific techniques to
inculpate the real offenders, has prima facie chosen to ill indulge in taking
the services of tutored and planted witnesses rather merely for solving the
crime event through causing the arrest of the present petitioner.
30. Nonetheless, justice has to be done to the aggrieved, and in that
regard, the Investigating Officer may in his wisdom but with the leave of
the Court concerned, make threadbare further investigations in respect of all
the above uninvestigated facets relating to the crime event. The judicial
conscience of this Court feels that the above further investigations may
ultimately result in all the offenders concerned being brought to inculpation.
Moreover, also hence complete justice would be done to the aggrieved
besides to the society at large.
31. Therefore, this Court becomes constrained to admit the present
petitioner to regular bail, especially when at this stage, no evidence has been
adduced by the Investigating Agency, suggestive that in the event of the bail
petitioner being enlarged on regular bail, there is every likelihood of hers
fleeing from justice, and/or, tampering with prosecution evidence.
32. In aftermath, the instant bail petition is allowed, and, the
present petitioner is ordered to be released from judicial custody,
i) subject to hers furnishing personal and surety
bonds in the sum of Rs.2 lakhs each to the
satisfaction of the learned trial Judge concerned;
ii) hers making an undertaking before the learned trial
Judge that she shall not tamper with prosecution
evidence, nor shall influence the prosecution
witnesses besides also hers undertaking to appear
before the learned trial Court concerned, as and
when directed to make her personal appearance
unless validly exempted;
iii) she shall forthwith deposit her passport with the
Investigating Officer concerned and shall leave to
foreign lands but with the permission of the Court.
33. The afore observations are meant only for the disposal of the
present petition, and, shall have no bearing on the merits of the trial arising
from the FIR (supra).
34. The records of the learned committal Court be returned
forthwith. Moreover, the records of the CBI be also returned forthwith to
the learned counsel for the CBI.
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The Punjab and Haryana High Court has granted bail to Kalyani Singh, who is the daughter of Himachal Pradesh High Court judge, Justice Sabina, in connection with the 2015 Sippy Sidhu murder case. The bail has been granted by the bench of Justice Sureshwar Thakur.Sukhmanpreet Singh Sidhu, alias Sippy Sidhu, was a national-level shooter and lawyer who was shot dead by unknown assailants at...
The Punjab and Haryana High Court has granted bail to Kalyani Singh, who is the daughter of Himachal Pradesh High Court judge, Justice Sabina, in connection with the 2015 Sippy Sidhu murder case.
The bail has been granted by the bench of Justice Sureshwar Thakur.
Sukhmanpreet Singh Sidhu, alias Sippy Sidhu, was a national-level shooter and lawyer who was shot dead by unknown assailants at around 09:00-10:00 PM in September 2015 in Sector 27 park at Chandigarh. The probe in the matter was transferred to CBI in compliance with an order of Home Secretary UT Administration Chandigarh in the year 2016.
It may be noted that Kalyani was arrested by CBI in June 2022, after the central agency filed an application seeking her police custody remand before Special Judge stating that on completion of the investigation, it had filed a final report u/s 173 Cr. P.C in 2020 and now, they want to take up further investigation w.r.t the role of suspect Kalyani Singh & others in Sidhu's murder.
After her arrest, Kalyani had approached the high court for bail on July 27, soon after her bail plea was dismissed by a trial court.
It is the case of CBI that Kalyani and Sippy were in a close relationship and she wanted to marry him, however, when her proposal was rejected by Sidhu's family, he allegedly leaked some of her objectionable photographs to her parents and friends, which caused embarrassment to her family.
Being annoyed with her pictures being leaked and her proposal being denied, she played a role in his murder. CBI has alleged that Kalyani was the woman who was accompanying Sippy's killer.
It is the case of CBI that Kalyani compelled Sippy to meet her in the park, where she was present with an unknown assailant and thereafter, she killed him by using firearms and fled the spot.
Case title - Kalyani Singh v. Central Bureau of Investigation
|
HIGH COURT OF JUDICATURE FOR RAJASTHAN AT
S.B. Criminal Revision Petition No. 629/2019
Sarvjeet Kaur W/o Sh. Lakhveer Singh D/o Sh. Mohan Singh,
Aged About 40 Years, By Caste Kamboj Sikh, R/o Gali No. 8,
W.no. 3, Nai Khunja, Hanumangarh Town, Teh. And Dist.
Hanumangarh.
2. Lakhveer Singh S/o Sh. Sohan Singh, By Caste Kamboj
Sikh, R/o Village Bani (Vakil Ki Dhani), Tehsil And Dist.
----Respondents
For Petitioner(s) : Mr. Kuldeep Sharma
For Respondent(s) : Mr. Mukesh Trivedi, PP
Mr. Mahesh Khayani
HON'BLE DR. JUSTICE PUSHPENDRA SINGH BHATI
This criminal revision petition has been preferred claiming
the following reliefs:
“It is, therefore, most respectfully prayed that this revision
petition may kindly be allowed and the order dated 06.03.2019
passed by the learned Family Court, in Criminal Misc. Case
No.101/2016 (Sarvjeet Kaur & Ors. Vs. Lakhveer Singh) may
kindly be quashed and set aside and the respondent No.2 also
ordered to be directed to pay maintenance of Rs.10,000/- to
humble petitioner.”
Learned counsel for the petitioner submits that the
petitioner-wife alongwith her two children, are living separately,
and thus, they sought maintenance, which was partly allowed and
the children were granted maintenance to a sum of Rs.3000/- per
(2 of 3) [CRLR-629/2019]
month each. The maintenance was not granted to the petitioner-
wife as she knew tailoring job and was stitching clothes for the
ladies at domestic level.
Learned counsel for the respondent No.2-husband opposes
the submissions on the ground that the respondent No.2-husband
is a welder and does not have any source of income.
On being asked, it was also reported that the maintenance
awarded to the children has not been paid after the impugned
order was passed.
This Court, after hearing the submissions and analyzing the
record of the case, is of the firm opinion that even if the
petitioner-wife is stitching clothes domestically then also she is
entitled to get the maintenance. The respondent No.2-husband is
a welder, which is almost like a skilled workman, and thus, it
cannot be presumed that he is not earning sufficiently to maintain
the petitioner-wife, even if the petitioner-wife has some income
source, then also there are three family members whom the
respondent No.2-husband is liable to maintain. In the given
circumstances, it is a fit case for grant of maintenance to the
In view of the above, the present revision petition is allowed,
the impugned order dated 06.03.2019 passed by the learned
Family Court in Criminal Misc. Case No.101/2016 (Sarvjeet Kour
and Ors. Vs. Lakhveer Singh) is quashed to the extent of denial of
maintenance to the petitioner-wife and it is directed that the
petitioner-wife shall also be paid the monthly maintenance to a
sum of Rs.3000/- from the date of filing of the initial application.
However, it is made clear that the monthly maintenance of the
(3 of 3) [CRLR-629/2019]
children awarded earlier shall remain as per the impugned order
All pending applications stand disposed of.
|
While hearing a matter pertaining to maintenance, the Rajasthan High Court observed that the husband, who is a welder, is almost like a skilled workman, and thus, it cannot be presumed that he is not earning sufficiently to maintain the petitioner-wife.
The court also opined that even if the petitioner-wife is stitching clothes domestically and has some income source, then also the husband is liable to pay maintenance to the wife along with her two children.
Dr. Justice Pushpendra Singh Bhati, while allowing the criminal revision petition, observed,
"This Court, after hearing the submissions and analyzing the record of the case, is of the firm opinion that even if the petitioner-wife is stitching clothes domestically then also she is entitled to get the maintenance. The respondent No.2-husband is a welder, which is almost like a skilled workman, and thus, it cannot be presumed that he is not earning sufficiently to maintain the petitioner-wife, even if the petitioner-wife has some income source, then also there are three family members whom the respondent No.2-husband is liable to maintain. In the given circumstances, it is a fit case for grant of maintenance to the petitioner-wife."
Essentially, the case of the petitioner-wife is that she along with her two children, are living separately with husband and had sought maintenance, which was partly allowed by the Family Court and the children were granted maintenance to a sum of Rs.3000/- per month each. However, maintenance was not granted to the petitioner wife as she knew tailoring job and was stitching clothes for the ladies at domestic level. Aggrieved by the same, the wife has filed the present criminal review petition before the High Court.
The court was informed that the maintenance awarded to the children has not been paid after the impugned order was passed.
In this regard, the court directed that the petitioner-wife shall also be paid the monthly maintenance to a sum of Rs.3000/- from the date of filing of the initial application. However, the court clarified that the monthly maintenance of the children awarded earlier shall remain as per the impugned order passed by the Family Court.
Adv. Kuldeep Sharma appeared for the petitioner while Adv. Mukesh Trivedi and PP Mahesh Khayani appeared for the respondents.
Case Title: Sarvjeet Kaur v. State of Rajasthan & Anr.
|
1. By way of this application filed under Section 482 of the
Code of Criminal Procedure read with Article 226 of the
Constitution of India, the applicants have prayed to quash and
set aside the order dated 18.11.2019 passed by the Court of
learned 13th Additional Chief Judicial Magistrate, Rajkot below
Exhibit-1 in Criminal Case No.16873 of 2019 whereby, the
complaint filed by respondent No.2 herein, original
complainant, under section 138 of the Negotiable Instruments
Act, 1881 (hereinafter referred to as the NI Act”) was ordered
to be registered and process under Section 204 of Cr.P.C. was
ordered to be issued against the applicants herein and have
also prayed to quash and set aside all the consequential
proceedings initiated under Criminal Case No.16873 of 2019.
2. The facts in brief are as under;
The applicant No.1 herein is a Company registered under
the Companies Act, 1956 and having its Registered Office at
“Dashrathvadi, Court Road, Naidad”. It is engaged in the
business of production of Grey Cast Iron and Nodular Iron
(Ductile Iron) castings weighing from 5 Kgs to 150 Kgs and is
also a supplier of fully finished parts to Original Equipment
Manufacturers since the year 1956. The factory premises of
applicant No.1 Company is located at Nadiad and it employs
around 1500 workers. The respondent No.2 herein is a
Partnership Firm registered under the provisions of the Indian
Partnership Act and is engaged in the business of manufacture
of Casting Parts. It also accepts orders and manufacturers
casting parts as per requirements of different customers.
2.1 It appears that the parties were into business relations for
several years. However, in the year 2014, problem arose in
their business relation when a large number of parts that had
been supplied by the respondent No.2 to applicant No.1
Company, which, in turn, had supplied it to its clients were
rejected and returned to applicant No.1 Company for being
defective or of inferior quality. It is the say of the applicants
that on account of the defective parts manufactured by the
No.2, which were, in turn, supplied by the applicants to the
Original Equipment Manufacturers, who were mainly into the
Automobile industry, defects were reported in the vehicles in
which the parts were used and resultantly, the automobile
manufactures had to call back several numbers of vehicles for
carrying out necessary repair works. As a result thereof, the
applicant No.1 Company had suffered huge financial loss and
had sustained a big blow on its reputation and goodwill in the
2.2 The respondent No.2 herein filed a summary suit being
Special Summary Suit No.23 of 2014 against the applicant No.1
Company before the Court of learned 4 th Additional Senior
Civil Judge at Rajkot under Order 37 of the Code of Civil
Procedure for recovery of an amount of Rs.1,12,26,500/- being
the amount payable with interest by the applicant-defendant to
the respondent-plaintiff for the work executed and goods
delivered as per the order placed by applicant No.1 Company.
In the suit proceeding, the applicant No.1 Company preferred
an application seeking Leave to Defend; however, the same
was rejected. Thereafter, vide judgment and order dated
07.05.2015, the Court of learned 4 th Additional Senior Civil
Judge at Rajkot decreed Special Summary Suit No.23 of 2014
in favour of the respondent-plaintiff and directed the applicant
No.1-Company to pay an amount of Rs.1,12,26,500/- along
with 6% interest to the respondent-plaintiff.
2.3 Against the said judgment and decree dated 07.05.2015
passed by the civil Court, the applicant No.1 Company
preferred appeal being First Appeal No.1730 of 2015 before
this Court along with an application seeking stay of the said
judgment and decree. While admitting the First Appeal vide
order dated 29.01.2016, the Division Bench of this Court
granted interim relief in favour of applicant No.1 Company by
staying operation and implementation of the judgment and
decree dated 07.05.2015 on condition that applicant No.1
Company deposits an amount of Rs.43,40,061/- before the civil
Court within the stipulated period and to furnish appropriate
security to the satisfaction of the civil Court for the remaining
amount. As the applicant No.1 Company failed to make such
deposit, the respondent-complainant instituted execution
petition being Special Execution Petition No.24 of 2015 before
the civil Court at Rajkot and upon transfer of the petition to
the Commercial Court, it was re-numbered as Execution
Petition No.10 of 2019.
2.4 In the execution proceedings, the respondent-plaintiff
moved application Exhibit-11 seeking issuance of warrant for
the attachment of the movable / immovable properties of
applicant No.1 Company. Before the said application was
decided, the respondent-plaintiff moved another application
vide Exhibit-15 seeking identical relief. It appears that the civil
at Rajkot allowed application Exhibit-15 ex-parte vide order
dated 22.03.2016 directing issuance of a Warrant of
Attachment against the applicant No.1 Company. On the same
day, the civil Court also passed an order disposing of the
application Exhibit-11 by observing that in spite of the service
of application on applicant No.1 Company, no reply had been
filed by applicant No.1 Company and necessary orders have
already been passed in application Exhibit-15. In pursuance
thereof, the Court of learned Principal Senior Civil Judge at
Rajkot issued Warrant of Attachment dated 31.03.2016 against
the applicant No.1 Company.
2.5 It is the say of the applicants that the respondent-
complainant, armed with the attachment warrant dated
31.03.2016, came at the factory premises of applicant No.1
Company situated at District : Nadiad with few men and began
to load the goods, equipments and other movable properties,
etc. kept at the factory premises into Trucks. They also
threatened to remove the machineries / equipments installed at
the factory premises and to disrupt the production process. The
applicant No.2 herein, who was present at the factory premises
at the relevant time, negotiated with the respondent-
complainant to salvage the situation. In pursuance thereof, the
parties executed a Deed of Undertaking titled “Bahedaari
Karar” dated 07.04.2016 on a Rs.100/- Stamp Paper in the
presence of the Court Bailiff, which is evident from the report
filed by the Court Bailiff vide Annexure-H. In the said Deed of
Undertaking, it has been averred that the respondent has filed
Special Summary Suit No.24 of 2015 in the civil Court at
Rajkot. In the said proceeding, the Court below issued Warrant
of Attachment on 31.03.2016 for Rs.1,23,13,879/-. When the
parties reached the factory premises of C.M. Smith at Nadiad
for serving the Warrant of Attachment, the respondent is given
11 cheques. The Eleventh cheque bearing No.807621 drawn on
Ahmedabad is of Rs.69,62,879/- and the said cheque is to be
kept as Security. It is further stated that the said cheque is not
to be deposited by the respondent in the Bank until the final
outcome of the Summary Suit and the First Appeal filed before
this High Court. It was also agreed upon that hearing of the
First Appeal filed before this High Court has to be concluded
in one year and that if the First Appeal is disposed of as
aforesaid, then appropriate decision shall be taken as regards
the aforesaid cheque given as security after carrying out due
deliberations and discussions with C.M. Smith. If C.M. Smith
becomes unsuccessful in getting the First Appeal disposed of
within two years, then the respondent shall have the right to
deposit the aforesaid cheque. It is also recorded that the said
Deed of Undertaking was executed at the free will of the
parties and without any coercion.
2.6 It appears that against the Warrant of Attachment, the
applicant No.1 Company had preferred Special Civil Application
No.7417 of 2016 before this Court. The said petition came to
be disposed of by the coordinate Bench of this Court vide
order dated 18.11.2016. Paragraphs – 4 to 6 of the order reads
“4. In light of the statement made at bar, order dated
22.03.2016 passed by the learned 12th Additional Senior
Civil Judge, Rajkot below Exh.15 in Special Execution
Petition No.24 of 2015 is hereby quashed and set aside
and the learned Executing Court is directed to decide
application Exhs.11 and 15 afresh and pass appropriate
order after hearing both sides. So far as request to return
the amount of cheque is concerned, the said request is
kept open to be agitated before the learned Executing
Court. The learned Executing Court is directed to consider
such request while deciding application Exhs.11 and 15
afresh. Meanwhile, the respondent shall not deposit the
cheques issued by the petitioner for execution of decree
till final disposal of application Exhs.11 and 15.
5. It is made clear that this Court has not examined
application Exhs.11 and 15 on merits and the learned
Executing Court shall decide the same on merits
uninfluenced by the observations recorded in the
impugned order as well as concessional statement made
at bar by the learned advocate appearing for the
respondent. Not only that, the learned Executing Court
shall pass appropriate order of refund of cheque amounts
realized while executing order dated 22.03.2016 and also
order to return unrealized cheques to the petitioner, if
application Exhs.11 and 15 are decided in favour of the
petitioner.
6. In view of the above observation and direction,
present petition stands disposed of. Direct service is
permitted...”
2.7 Pursuant to the order dated 18.11.2016 passed by this
Court, the Court of learned Principal Senior Civil Judge, Rajkot
adjudicated applications Exhibits – 11 and 15 afresh and vide
order dated 20.08.2019, the trial Court confirmed its earlier
order passed below applications Exhibits – 11 and 15. The said
order dated 20.08.2019 was challenged before this Court in
Special Civil Application No.15137 of 2019. While disposing of
the said writ petition by way of judgment and order dated
16.10.2019, the Division Bench of this Court made the
following observations:
“32. At least one thing is clear that the impugned order
is not tenable in law and it will have to be quashed and
set-aside.
33. In the result, this petition succeeds and is hereby
allowed. The impugned order passed by the Principal
Senior Civil Judge, Rajkot, dated 20th August 2019 below
Exhibits 11 and 15 respectively in the Execution Petition
No.10 of 2019 is hereby quashed and set-aside.
34. However, we reserve the liberty for the respondent
(decree holder) to prefer an application in the court
which passed the decree against the applicant for transfer
of the decree to the court within whose territorial
jurisdiction the immovable properties of the applicant are
situated. In fact, clause (2) of Section 39 also provides
that the court which passed a decree may of its own
motion send it for execution to any subordinate court of
competent jurisdiction. In other words, while sub-section
(1) deals with transfer to another competent court having
jurisdiction or assets being located within its jurisdiction,
sub-section (2) empowers the court passing the decree on
its own motion to transfer it for execution to any
subordinate court of competent jurisdiction. Sub-section
(2) confers a suo motu power to assign a decree for
execution of its own motion to any subordinate court.
The exercise of the power under sub-section (2) of
Section 39 of the Code, to send the decree for execution
to a subordinate court can be exercised without meeting
the requirements of sub-clauses (a) to (d) under sub-
section (1) of Section 39 of the Code.
35. Mr.Pandya, the learned counsel appearing for the
respondent, submitted that he would advise his client to
prefer an appropriate application at the earliest under
Section 39 of the Code for transfer of the decree. If any
such application is preferred, the court concerned shall
pass appropriate order at the earliest after giving
opportunity of hearing to the other side.
36. With the above, this petition is disposed of. Rule
made absolute to the aforesaid extent.”
2.8 It appears that the respondent-complainant presented the
cheque of Rs.69,62,879/- bearing No.807621 drawn on
Ahmedabad with the Bank on 06.09.2019. However, the
cheque got returned on 07.09.2019 with the endorsement of
“Drawers signature not as per mandate”. In pursuance thereof,
the respondent-complainant issued Notice dated 10.10.2019 to
the applicants under section 138 of the NI Act. The applicants
replied to the said notice vide reply dated 13.11.2019. On
18.11.2019 the respondent-complainant filed complaint under
section 138 of the NI Act before the Court of learned 13 th
Additional Senior Civil Judge & A.C.J.M., Rajkot, which was
numbered as Criminal Case No.16873 of 2019. On the said
complaint, the Court below passed the impugned order dated
18.11.2019 below Exhibit-1 directing issuance of process under
Section 204 of Cr.P.C. Being aggrieved by the same, the
present application has been preferred.
3. Mr. Y.S. Lakhani, learned Senior Advocate appearing with
Mr. Aditya J. Pandya for the applicants, submitted that the
process issued by the Court below is contrary to the settled
principles of law related to negotiable instruments. For a
complaint under Section 138 of the NI Act to be sustainable,
the disputed cheque should have been issued in respect of any
“enforceable debt”, which the drawer is liable to pay to the
holder in due course. If the cheque is not issued in furtherance
of any such “enforceable debt”, then no cognizance under
Section 138 of the NI Act could be taken. It was also urged
that the cheque in question was given as ‘security’, which is
evident from the Deed of Undertaking dated 07.04.2016
executed before the Court Bailiff. The said Deed of
Undertaking clarifies the fact that the cheque in question was
given as ‘security’ and not in connection with any ‘enforceable
debt’. He, therefore, contended that the Court below has
committed serious error in law and on facts in issuing process
to the applicants on the complaint filed by the respondent-
complainant under Section 138 of the NI Act.
3.1 The learned Senior Advocate further submitted that the
entire process was initiated in pursuance of the order dated
23.03.2016 passed by the Court of learned Principal Senior
Civil Judge at Rajkot below applications Exhibits – 11 and 15
in Execution Petition No.10 of 2019. It was contended that the
said order dated 23.03.2016 is void ab initio inasmuch as the
civil Court at Rajkot Court had no jurisdiction to issue Warrant
of Attachment in respect of properties which are situated
beyond the jurisdiction of Rajkot. He pointed out that the
properties of applicant No.1 Company, in respect of which the
Warrant of Attachment was issued, are situated in District
Nadiad, which does not fall within the jurisdiction of the Court
of learned Principal Senior Civil Judge at Rajkot as both the
places fall under different jurisdictions. Only the civil Court
situated at Nadiad would have the jurisdiction to pass an order
of issuance of Warrant of Attachment against the applicant
No.1 Company. Hence, the order directing issuance of Warrant
of Attachment against the applicant No.1 Company was illegal
and erroneous.
3.2 It was urged by learned Senior Advocate Mr. Lakhani
that it was in pursuance of the aforesaid Warrant of
Attachment that applicant No.2 had issued the cheque in
question in favour of the respondent-complainant. It was
pointed out that this Court has passed detailed orders on the
legality of the Warrant of Attachment issued by the civil Court
at Rajkot in Special Civil Application No.7417 of 2016 and
Special Civil Application No.15137 of 2019. Now, when the
order directing issuance of Warrant of Attachment itself is
found to be illegal, all consequential proceedings would be
rendered unsustainable. Hence, the entire proceedings under
section 138 of the NI Act, which are initiated on the basis of
the cheque given by applicant No.1 Company in pursuance of
the attachment proceedings, is erroneous and unsustainable in
the eyes of law.
4. Mr. Nilesh Pandya, learned advocate appearing with
learned advocate Mr. Haresh Patel for respondent No.2,
submitted that the cheque in question was issued in pursuance
of the settlement agreement dated 07.04.2016 executed by and
between the parties. He submitted that the execution
proceedings and the proceedings under the NI Act are totally
different and independent of each other. Therefore, even if it
may be that the settlement agreement was executed in
pursuance of the Warrant of Attachment issued in the
execution proceedings initiated before the civil Court at Rajkot,
it would not render the present proceedings under the NI Act
unsustainable in the eyes of law.
4.1 Learned advocate Mr. Pandya further submitted that the
order of the Division Bench of this Court in Special Civil
Application No.15137 of 2019, by which the orders passed by
the civil Court at Rajkot below Exhibits – 11 and 15 in
Execution Petition No. 10 of 2019 were quashed and set aside,
was passed on 16.10.2019. However, much before the said
order came to be passed, the parties had executed the
settlement agreement, i.e. Deed of Undertaking, on 07.04.2016,
which was the basis for the initiation of proceedings under the
NI Act. Therefore, the initiated of proceedings under Section
138 of the NI Act was legal and justified.
4.2 Learned advocate Mr. Pandya contended that the
applicant No.1 Company has committed default in making
payment of the goods that were delivered by the respondent-
complainant, which has not been disputed by the applicants
and it was in respect of such payment that the parties had
executed the settlement agreement dated 07.04.2016. Thus, the
cheque in question was issued against the legally enforceable
debt, which the respondent-complainant was entitled to receive
from the applicants. He pointed out that though the word
‘security’ has been used in the settlement agreement dated
07.04.2016, the same refers to the cheque being issued towards
repayment of instalment of outstanding amount. The repayment
becomes due under the settlement agreement once the terms of
the agreement are violated. In this case, the applicants had
failed to abide the terms of settlement agreement and
therefore, the dishonor of the cheque in question would fall
under Section 138 of the NI Act. Therefore, the cheque would
represent the outstanding liability. He submitted that the
applicants will have to adduce necessary evidence in trial to
show that the cheque in question was not issued against any
enforceable debt and the present proceedings under Section
482 of Cr.P.C. is not the appropriate remedy. He, therefore,
prayed that the present application deserves to be rejected.
4.3 In support of his submissions, learned advocate Mr.
Pandya placed reliance upon the decision of Apex Court in the
case of Sampelly Satyanarayana Rao v. Indian Renewable
Energy Development Agency Limited, (2016) 10 SCC 458 more
particularly, on the observations made in paragraphs – 9 and
13 to 16, which reads thus:
“9. We have given due consideration to the submission
advanced on behalf of the appellant as well as the observations of
this Court in Indus Airways (supra) with reference to the
explanation to Section 138 of the Act and the expression “for
discharge of any debt or other liability” occurring in Section 138
of the Act. We are of the view that the question whether a post-
dated cheque is for “discharge of debt or liability” depends on the
nature of the transaction. If on the date of the cheque liability or
debt exists or the amount has become legally recoverable, the
Section is attracted and not otherwise.
13. In Balaji Seafoods (supra), the High Court noted that the
cheque was not handed over with the intention of discharging the
subsisting liability or debt. There is, thus, no similarity in the facts
of that case simply because in that case also loan was advanced. It
was noticed specifically therein – as was the admitted case of the
parties – that the cheque was issued as “security” for the advance
and was not intended to be in discharge of the liability, as in the
present case.
14. In HMT Watches Ltd. versus M.A. Abida[8], relied upon on
behalf of the respondent, this Court dealt with the contention that
the proceedings under Section 138 were liable to be quashed as the
cheques were given as “security” as per defence of the accused.
Negativing the contention, this Court held : (SCC pp.779-80, paras
“10. Having heard the learned counsel for the parties, we
are of the view that the accused (Respondent 1) challenged
the proceedings of criminal complaint cases before the High
Court, taking factual defences. Whether the cheques were
given as security or not, or whether there was outstanding
liability or not is a question of fact which could have been
determined only by the trial court after recording evidence
of the parties. In our opinion, the High Court should not
have expressed its view on the disputed questions of fact in a
petition under Section 482 of the Code of Criminal
Procedure, to come to a conclusion that the offence is not
made out. The High Court has erred in law in going into the
factual aspects of the matter which were not admitted
between the parties. The High Court further erred in
observing that Section 138(b) of the NI Act stood
uncomplied with, even though Respondent 1 (accused) had
admitted that he replied to the notice issued by the
complainant. Also, the fact, as to whether the signatory of
demand notice was authorised by the complainant company
or not, could not have been examined by the High Court in
its jurisdiction under Section 482 of the Code of Criminal
Procedure when such plea was controverted by the
complainant before it.
11. In Suryalakshmi Cotton Mills Ltd. v. Rajvir Industries
Ltd. [(2008) 13 SCC 678], this Court has made the following
observations explaining the parameters of jurisdiction of the
High Court in exercising its jurisdiction under Section 482
of the Code of Criminal Procedure: (SCC pp. 685-87, paras
“17. The parameters of jurisdiction of the High Court
in exercising its jurisdiction under Section 482 of the
Code of Criminal Procedure is now well settled.
Although it is of wide amplitude, a great deal of
caution is also required in its exercise. What is
required is application of the well- known legal
principles involved in the matter.
22. Ordinarily, a defence of an accused although
appears to be plausible should not be taken into
consideration for exercise of the said jurisdiction. Yet
again, the High Court at that stage would not
ordinarily enter into a disputed question of fact. It,
however, does not mean that documents of
unimpeachable character should not be taken into
consideration at any cost for the purpose of finding
out as to whether continuance of the criminal
proceedings would amount to an abuse of process of
court or that the complaint petition is filed for causing
mere harassment to the accused. While we are not
oblivious of the fact that although a large number of
disputes should ordinarily be determined only by the
civil courts, but criminal cases are filed only for
achieving the ultimate goal, namely, to force the
accused to pay the amount due to the complainant
immediately. The courts on the one hand should not
encourage such a practice; but, on the other, cannot
also travel beyond its jurisdiction to interfere with the
proceeding which is otherwise genuine. The courts
cannot also lose sight of the fact that in certain
matters, both civil proceedings and criminal
proceedings would be maintainable.”
12. In Rallis India Ltd. v. Poduru Vidya Bhushan [(2011)
13 SCC 88], this Court expressed its views on this point as
under: (SCC p. 93, para 12)
“12. At the threshold, the High Court should not have
interfered with the cognizance of the complaints
having been taken by the trial court. The High Court
could not have discharged the respondents of the said
liability at the threshold. Unless the parties are given
opportunity to lead evidence, it is not possible to come
to a definite conclusion as to what was the date when
the earlier partnership was dissolved and since what
date the respondents ceased to be the partners of the
firm.”
15. We are in respectful agreement with the above observations.
In the present case, reference to the complaint (a copy of which is
Annexures P-7) shows that as per the case of the complainant, the
cheques which were subject matter of the said complaint were
towards the partial repayment of the dues under the loan
agreement (para 5 of the complaint).
16. As is clear from the above observations of this Court, it is
well settled that while dealing with a quashing petition, the Court
has ordinarily to proceed on the basis of averments in the
complaint. The defence of the accused cannot be considered at this
stage. The court considering the prayer for quashing does not
adjudicate upon a disputed question of fact.”
4.4 Reliance was also placed on a recent decision of the
Apex Court in the case of Sripati Singh (Since Deceased)
Through His Son Gaurav Singh v. The State of Jhardkhand
passed in Criminal Appeal Nos. 12691270 of 2021 decided on
28.10.2021 wherein similar principle has been laid down.
5. Heard learned advocates on both the sides. From the
record of the case, it appears that the parties had business
relations since the year 2008. There does not appear any
controversy on the issue that the Registered Office of applicant
No.1, which is a Company incorporated under the Companies
Act, is situated in District : Nadiad. The applicant No.1
Company is also having its factory premises in District :
Nadiad. The respondent-complainant filed Special Summary
Suit No.23 of 2014 before the Court of learned Civil Judge,
Senior Division, Rajkot against applicant No.1 Company for
recovery of an amount of Rs.1,12,26,500/- with interest. The
said suit came to be decreed in favour of the respondent-
plaintiff vide judgment and order dated 07.05.2015. Against
the said judgment and decree, the applicant No.1-defendant
preferred First Appeal No.1730 of 2015 before this Court along
with an application seeking interim stay of the judgment and
decree. While admitting the said first appeal vide order dated
29.01.2016, the Division Bench of this Court granted interim
relief in favour of applicant No.1-Company by staying
operation and implemention of the judgment and decree dated
07.05.2015 on condition that applicant No.1-Company deposits
an amount of Rs.43,40,061/- before the trial Court within the
stipulated period and to furnish appropriate security to the
satisfaction of the trial Court for the remaining amount failing
which the interim relief was ordered to get vacated
6. However, the applicants could not deposit the amount as
aforesaid and therefore, the respondent-complainant initiated
execution proceedings before the Court of learned Civil Judge,
Senior Division, Rajkot. In the execution proceedings, the
respondent-complainant moved an application Exhibit-11
seeking issuance of a Warrant of Attachment of the movable /
immovable properties of applicant No.1 Company. It appears
that before application Exhibit-11 could be adjudicated upon
on the date fixed for hearing, the respondent-decree holder
preferred another application vide Exhibit-15 seeking similar
relief on an earlier date. Without affording any opportunity of
hearing to applicant No.1-Company, the executing Court
allowed application Exhibit-15 vide order dated 22.03.2016.
7. Against the said order dated 22.03.2016, the applicant
No.1-Company preferred a writ petition before this Court in
Special Civil Application No.7417 of 2016. While granting ad-
interim relief in favour of applicant No.1-Company at the time
of issuing Notice in the writ petition, the learned Single Judge
“1. Prima facie, it appears that the respondent – decree
holder moved an application below Exh.11 in Special
Execution Petition No.24 of 2015 with a request to issue
warrant for attachment of movable/immovable properties of
the petitioner. The said application was kept for hearing
on 12.04.2016. On 22.03.2016, the respondent – decree
holder made an application to take the matter on board
and presented an application below Exh.15 for identical
relief, as prayed for, in application Exh.11. It seems that
copy of application Exh.15 was provided to the learned
advocate appearing for the petitioner but, the learned
Executing Court has not heard any submissions of the
petitioner nor granted any time and, in his absence,
passed order below Exh.15. Upon perusal of Rojkam
submitted by learned advocate for the petitioner, which
is ordered to be taken on record, it appears that learned
advocate for the petitioner was not present when order
below Exh.15 has been passed and thus, the impugned
order has been passed without extending any
opportunity to the petitioner.
2. Apart from it, it is a matter of fact that the decree under
execution was passed by the competent Court at Rajkot
whereas, warrant issued by the learned trial Judge as per
order dated 22.03.2016 came to be executed for attachment
of movable/immovable properties situated at Nadiad. Thus,
considering the provisions of Section 39(4) of the Code of
Civil Procedure, the learned Executing Court is not
authorized to issue such warrant for executing the decree
against any property outside the local limits of its jurisdiction.
Admittedly, warrant issued pursuant to application Exh.15
came to be executed in respect of properties situated at
Nadiad and, therefore, present petition deserves
consideration. Hence, issue notice to the respondent for final
disposal, making it returnable on 26.07.2016. Meanwhile, ad-
interim relief in terms of para 18(B) is granted. Direct service
is permitted. The learned advocate for the petitioner is
permitted to file additional documents with the Registry of
7.1 The aforesaid writ petition was disposed of by the
learned Single Judge of this Court vide order dated 18.11.2016.
The relevant paragraphs of the order reads as under:
“2. Learned advocate Mr.Nilesh Pandya appearing for learned
advocate Mr.H.H. Patel for the respondent, upon instructions,
states at bar that the order passed below Exh.15 may be quashed
and set aside and the learned trial Judge may be directed to hear
application Exhs.11 and 15 moved in Special Execution Petition
No.24 of 2015 afresh and pass appropriate order after hearing
both sides.
3. As against this, learned advocate Mr.S.M. Thakore for the
petitioner makes a request that the petitioner has issued cheque for
a sum of Rs.10 lacs pursuant to order passed by the learned
Executing Court on 22.03.2016 and that, the amount received
through the said cheque and other cheques obtained during the
course of execution of decree, more particularly, placed on record
at page Nos.79 to 82 to the present petition, may be ordered to be
returned back to the petitioner.
4. In light of the statement made at bar, order dated
22.03.2016 passed by the learned 12th Additional Senior Civil
Judge, Rajkot below Exh.15 in Special Execution Petition No.24
of 2015 is hereby quashed and set aside and the learned
Executing Court is directed to decide application Exhs.11 and 15
afresh and pass appropriate order after hearing both sides. So far
as request to return the amount of cheque is concerned, the said
request is kept open to be agitated before the learned Executing
Court. The learned Executing Court is directed to consider such
request while deciding application Exhs.11 and 15 afresh.
Meanwhile, the respondent shall not deposit the cheques issued by
the petitioner for execution of decree till final disposal of
application Exhs.11 and 15.
5. It is made clear that this Court has not examined application
Exhs.11 and 15 on merits and the learned Executing Court shall
decide the same on merits uninfluenced by the observations
recorded in the impugned order as well as concessional statement
made at bar by the learned advocate appearing for the respondent.
Not only that, the learned Executing Court shall pass appropriate
order of refund of cheque amounts realized while executing
order dated 22.03.2016 and also order to return unrealized
cheques to the petitioner, if application Exhs.11 and 15 are
decided in favour of the petitioner.
6. In view of the above observation and direction, present
petition stands disposed of. Direct service is permitted.”
7.2 From the above order passed by the coordinate Bench of
this Court in Special Civil Application No.7417 of 2016, it is
clear that the executing Court at Rajkot was required to
adjudicate both the applications Exhibits 11 and 15 afresh. It
was specifically brought to the notice of the executing Court at
Rajkot that the decree under execution was passed by the civil
Court at Rajkot whereas, the warrant has been issued for
attachment of movable / immovable properties situated at
Nadiad, which the executing Court at Rajkot was not legally
authorized to do. Issuance of warrant of attachment in respect
of any property situated outside the local limits of jurisdiction
is barred in view of the provisions of Section 39(4) of the
Code of Civil Procedure and hence, the executing Court at
Rajkot was directed to examine the matter afresh. This Court
had also directed the executing Court at Rajkot to pass
appropriate orders for the refund of cheque amounts realized
while executing the order dated 22.03.2016 and also to return
the unrealized cheques to applicant No.1-Company.
7.3 It was in the aforesaid background that the executing
Court at Rajkot was required to consider applications Exhibits
– 11 and 15 preferred in Execution Petition No. 10 of 2019
afresh. However, while considering the matter afresh, the
executing Court at Rajkot appears to have ignored the
observations made by this Court in Special Civil Application
No.7417 of 2016 and passed the order dated 20.08.2019 below
applications Exhibits – 11 and 15 whereby, it stood by its
earlier order dated 22.03.2016.
8. It appears that pursuant to the passing of the order dated
20.08.2019 by the executing Court at Rajkot, the respondent-
complainant deposited the cheque in question with the Bank
on 06.09.2019, which got returned on 07.09.2019.
Indisputably, the cheque in question was given as ‘security’ by
the applicant No.1-Company, which has been stated in the
Deed of Undertaking dated 07.04.2016 in unequivocal terms.
9. Against the order dated 20.08.2019 passed by the
executing Court at Rajkot below applications Exhibits – 11 and
15 in Execution Petition No.10 of 2019, the applicant No.1-
Company preferred Special Civil Application No.15137 of 2019
before this Court. By way of judgment and order dated
26.10.2019, the Division Bench of this Court allowed the writ
petition by quashing and setting aside the order dated
20.08.2019 passed by the executing Court at Rajkot.
10. From the above set of facts, it is clear that the earlier
order dated 22.03.2016 passed by the executing Court at
Rajkot below application Exhibit-15 was quashed and set aside
by the coordinate Bench of this Court vide order passed in
Special Civil Application No.7417 of 2016 dated 18.11.2016
and the matter was remanded to the executing Court at Rajkot
for consideration afresh. The executing Court at Rajkot
considered the matter afresh; however, it stood by the
conclusion arrived at in its earlier order dated 22.03.2016 by
passing the order dated 20.08.2019 below applications Exhibits
– 11 and 15. The said order dated 20.08.2019 was assailed
before this Court in Special Civil Application No.15137 of 2019
and by judgment and order dated 16.10.2019, the subsequent
order dated 20.08.2019 passed by the executing Court at
Rajkot was quashed and set aside by the Division Bench of this
Court. Thus, both the orders dated 22.03.2016 and 20.08.2019
passed by the executing Court at Rajkot below Exhibits – 11 &
15 were quashed and set aside by this Court after recording
elaborate reasons. This would render the initiation of all
proceedings, including the issuance of Warrant of Attachment
dated 31.03.2016 and the subsequent execution of the Deed of
Undertaking dated 07.04.2016 in the presence of the Court
Bailiff, as baseless because the very source of the issuance of
the Warrant of Attachment being the orders passed below
applications Exhibits – 11 & 15 have been quashed and set
aside by this Court in both rounds of litigation. When the
orders below applications Exhibits – 11 & 15 have been
quashed and set aside by this Court, the Warrant of
Attachment and all consequential proceedings, including the
Deed of Undertaking dated 07.04.2016, would not have any
legal basis.
11. Coming to the proceedings initiated under the NI Act, it
is not in dispute that the cheque in question was given as
‘security’. The Deed of Undertaking dated 07.04.2016 executed
by and between the parties in the presence of the Court Bailiff
lays down the terms and conditions of payment. It specifically
mentions that the cheque in question has been been given as
‘security’ and also lays down the conditions as to when the
said cheque shall be deposited. It is a settled proposition of
law that proceedings under Section 138 of the NI Act would
lie only in respect of any ‘enforceable debt’.
11.1 In the case of Lalit Kumar Sharma v. State of Uttar
Pradesh, 2008 (5) SCC 638, the facts were that a Company,
named M/s. Mediline India (P) Ltd. had taken loan of Rs.5
Lacs from the complainant. Against the said loan, two cheques
for Rs.3 Lacs and Rs.2 Lacs were issued in favour of the
complainant. On presentation, both the cheques were returned
upaid with the remarks - “insufficient funds”. Therefore, a
complaint under Section 138 of the N.I. Act and other sections
came to be filed. It was the say of the appellants that they
were not signatories to the cheques and that on the date when
the two cheques were issued, they had already resigned from
the post of directorship of the Company. During the pendency
of the complaint, the parties appeared to have arrived at some
compromise whereof, it was agreed that if a cheque of
Rs.5,02,050/- is issued, then the complaint would be
withdrawn. Pursuant thereto, a cheque of such amount dated
29.07.2000 was issued in favour of the complainant; however,
on presentation, it was returned with the remarks “insufficient
funds”. The complainant filed another complaint with regard
to return of cheque dated 29.07.2000 not only against the
erstwhile Directors but also against the present appellants. On
the above facts, the Apex Court held that the second cheque
dated 29.07.2000 was issued in terms of the compromise and it
did not create a new liability and therefore, the same cannot
be said to have been issued towards payment of debt, even if
the compromise had not fructified.
11.2 In the present case also, evidently, the cheque in
question was given as ‘security’ and not in respect of any
‘enforceable debt’, which the applicant No.1-Company was
required to pay to the respondent-complainant. In paragraph-1
of the complaint filed under Section 138 of the NI Act, the
respondent-complainant itself has stated that the cheque in
question has been given in view of the compromise arrived at
between the parties. Thus, as per the admission of the
complainant also, the cheque in question was not issued in
respect of any ‘enforceable debt’, which the applicant No.1-
Company was required to pay to the respondent-complainant.
Considering the aforesaid factual aspects and in view of the
principle laid down in Lalit Kumar Sharma’s case (supra), the
impugned proceedings initiated under the provisions of the NI
Act deserves to be quashed and set aside.
11.3 While disposing Special Civil Application No.7417 of 2016
vide order dated 18.11.2016, this Court had observed that the
executing Court shall pass appropriate orders for the refund of
cheque amounts realized while executing order dated
22.03.2016 and also order to return the unrealized cheques to
the applicants, if the applications Exhibits - 11 and 15 are
decided in favour of the applicants. Now when the order dated
20.08.2019 passed by the Court of learned Principal Senior
Civil Judge, Rajkot was quashed and set aside by the Division
Bench of this Court in Special Civil Application No.15137 of
2019, the holding of the cheque in question by the respondent-
complainant in connection with the proceedings under Section
138 of the NI Act would be illegal. Under the circumstances,
the respondent-complainant ought to have returned the cheque
in question to the applicant No.1-Company instead of
depositing the same. In the considered opinion of this Court, if
the proceedings under the N.I. Act are permitted to continue,
it would lead to gross miscarriage of justice and abuse of the
process of Court.
12. For the foregoing reasons, the application is allowed. The
impugned order dated 18.11.2019 passed by the Court of
learned 13th Additional Chief Judicial Magistrate, Rajkot below
Exhibit-1 in Criminal Case No.16873 of 2019 as also the
complaint filed by respondent No.2 under section 138 of the
NI Act being Criminal Case No.16873 of 2019 are quashed and
set aside. Rule is made absolute. In view of the above order,
both the civil applications stand disposed of.
After the judgment was pronounced, learned advocate
Mr. Nilesh Pandya for the respondent-complainant requested to
stay the operation of this judgment for a period of six weeks
in order to approach the higher forum. The said request is
accepted and hence, the operation of this judgment shall
remain stayed for a period of six weeks from today. It is
clarified that after the expiry of the above period, this
judgment shall come into operation or shall remain subject to
the orders that may be passed by the higher forum.
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"It is a settled proposition of law that proceedings under Section 138 of the NI Act would lie only in respect of any 'enforceable debt'", the Gujarat High Court has observed today. The Bench comprising Justice Gita Gopi made this observation in connection with an application filed under Section 482 of CrPC, seeking the quashment of the order passed by the CJM Rajkot for offence...
"It is a settled proposition of law that proceedings under Section 138 of the NI Act would lie only in respect of any 'enforceable debt'", the Gujarat High Court has observed today. The Bench comprising Justice Gita Gopi made this observation in connection with an application filed under Section 482 of CrPC, seeking the quashment of the order passed by the CJM Rajkot for offence under Section 138 of the Negotiable Instruments Act.
Background
The Applicant-Company, an organisation engaged in manufacturing cast iron, had business relations with Respondent No. 2, a partnership firm. However, due to certain defects in the products supplied by Respondent No.2 to the Applicant-Company, the Company had to encounter returns from other industries and thereby suffered losses. Respondent No. 2 filed a summary suit against the Company for the recovery of INR 1,12,26,500 for the goods delivered per the Applicant-Company's order. The Civil Judge passed a decree in favour of the Respondent and directed the payment of the sum along with interest. Subsequently, the Applicant-Company filed the First Appeal, wherein the Division Bench of the Gujarat High Court granted interim relief but directed a deposit of INR 43,40,061 as security. The Company failed to make this deposit and consequently, Respondent No. 3 moved a Special Execution Petition at the civil court, as well. The Civil Judge issued a Warrant of Attachment against the Applicant-Company.
The Applicant contended that Respondent No. 3, armed with the Warrant Attachment, threatened to remove machineries, and disrupt the production process of the Applicant-Company. The Company, subsequently, granted 11 cheques to the Respondent, one of which was to be kept as security. However, on presenting this cheque worth INR 69,62,879 to the bank, it got returned and in response, the Respondent issued notice to the Applicant-Company under Section 138 of theNI Act. The Civil Judge passed an order directing issuance of process under Section 204 of CrPC. Being aggrieved of the same, the Applicant preferred the instant application.
Key Contentions
The Applicant-Company primarily contended that the process issued by the lower Court was contrary to the settled principles of law related to negotiable instruments since under Section 138, the disputed cheque should be 'enforceable debt'. However, the instant cheque was given as 'security', as evident from the Deed of Undertaking between the parties. Further averring that the Warrant of Attachment was void ab initio, the Applicant pointed out that the Warrant pertaining to those properties which were not within the jurisdiction of the Court.
Per contra, Respondent No. 2 argued that the cheque was issued in pursuance of the settlement agreement between the parties. Additionally, the execution proceedings and the proceedings under the NI Act were independent of each other. Hence, even if the Warrant issued in the execution proceedings was illegal, the proceedings under NI Act were sustainable in law. Significantly, the Company had committed default in payment which were not delivered by the Respondent-Complainant. The Respondent relied on Satyanarayana Rao v. Indian Renewable Energy Development Agency Limited, (2016) 10 SCC 458 where it was held:
"Whether the cheques were given as security or not, or whether there was outstanding liability or not is a question of fact which could have been determined only by the trial court after recording evidence of the parties."of the parties.Whether the cheques were given as security or not, or whether there was outstanding liability or not is a question of fact which could have been determined only by the trial court after recording evidence
Judgement
The Bench while noting the facts and orders of the lower Courts, averred that that the Civil Court, Rajkot was not legally authorised to issue the Warrant, since the movable/immovable properties of the Company were not situated within its jurisdiction. This was in consonance with Section 39(4) of the CPC. Further, the orders passed by the Civil Court, Rajkot were quashed and set aside by the High Court which rendered the initiation of all proceedings, including the Warrant of Attachment and the execution of the Deed of Undertaking as baseless.
Regarding the NI Act, the Bench opined that the cheque was given as 'security'. Whereas Section 138 of the NI Act lies only in respect of 'enforceable debt' which was a settled proposition of law. To bolster this view, the Bench relied on Lalit Kumar Sharma v. State of Uttar Pradesh, 2008 (5) SCC 638, where the Apex Court had held that the cheque was issued in terms of compromise, and it did not create any new liability. Consequently, it could not have been issued towards payment of debt, even if the compromise had not fructified.
Justice Gopi opined that Respondent No. 3 ought to have returned the cheque to the Applicant-Company instead of depositing the same. The proceedings under NI Act were gross miscarriage of justice and abuse of the process of Court. Accordingly, the application was allowed. The Bench set aside the criminal case against the Applicant-Company.
Case Title: C.M. Smith And Sons. Ltd Through Deinesh Mohanlal Panchal Versus State Of GujaratCase citation: [ (Guj) 30]
Case No.: R/CR.MA/3246/2020
|
appointment was under the pension scheme.
Thereafter, he joined services as a lecturer in the
Sardar Patel University with effect from 04.10.1979.
He was appointed as a ‘Reader’ through open
selection by direct recruitment with effect from
28.06.1984. He was confirmed in service with effect
from 28.09.1986. It is his case that since the
appointment was made after 01.04.1982 on the post
of reader, his services has been counted under the
GPF scheme. He retired from service on
3. Mr.Jayraj Chauhan learned counsel for the petitioner
would submit that it is no longer in doubt that the
petitioner was entitled to the benefit of pension as
per the Government Resolution dated 15.10.1984
and the subsequent notifications. He would rely on
a decision in case of State of Gujarat and Ors. v.
Ashwinkumar Ramniklal Jani rendered in LPA
No.219 of 2017 by which, in the case of the
petitioners, the Division Bench dismissed the appeal
of the State holding that the petitioner was entitled
to the benefits of pension, confirming the decision of
the coordinate bench of this Court rendered in
Special Civil Application No.15316 of 2015 dated
4. He would submit that after the date of retirement,
he was entitled to a gratuity of Rs.10 lakhs. This
was pursuant to a notification dated 24.05.2010, by
which, the gratuity amount was enhanced to Rs.10
lakhs from Rs.3,50,000/-. Consequential
amendments made in sub-section (3) of Section 4 of
the Payment of Gratuity Act. A resolution dated
19.07.2014 was passed by the State extending the
benefit of availability of gratuity of Rs.10 lakhs given
to CPF beneficiaries effective from the date of
amendment i.e. 24.05.2010.
5. Ms.Surbhi Bhati learned AGP for the State would
submit that reading the appointment order of the
petitioner with the Sardar Patel university would
indicate that the petitioner was governed by the CPF
scheme and therefore not entitled to the gratuity.
6. Considering the submissions made by the learned
advocates for the respective parties, the following
facts would indicate that the petitioner is entitled to
an amount of Rs.10,00,000/- as gratuity pursuant to
the amended notification with effect from
24.05.2010 which became part of the Act, by which,
the ceiling of gratuity was raised to Rs.10 lakhs.
Admittedly, from the pay slip of the Sardar Patel
University of June 2013, preceding the petitioner’s
retirement indicates that GPF was deducted from
the salary of the petitioner. Admittedly therefore
the petitioner was governed by the GPF scheme.
That all was not in doubt in view of the Division
Bench affirming the decision of the learned Single
Judge in the petition filed by the petitioner as
referred to herein above.
7. Even otherwise, as held by the Division Bench of this
Court in Civil Application No.3918 of 2019 in F/LPA
No.28476 of 2019, the Division Bench dismissed the
appeal of the State upholding the order of the
coordinate bench in Special Civil Application
Nos.7746 of 2014 with 7747 of 2014 dated
23.12.2016, where the Court considered the aspect
of payment of gratuity of Rs.10 lakhs and held as
“1. Both the petitions raise identical questions of
facts and law, and therefore, they are being decided
by a common order.
2. The facts for the purpose of adjudication are
drawn from Special Civil Application No. 7746 of
2014 which is as under :-
2.1. The petitioner was serving in Shri
H.K.Commerce College, affiliated to Gujarat
University and he retired from service on 14 June,
2011. He had not opted for pension and continued
under the CPF Scheme. The petitioner had desired
the benefit of Government Resolution dated
13.4.2009 which enhanced the amount of gratuity to
Rs.10.00 Lacs. As the respondent had not paid the
amount of Rs.10.00 Lacs (Rupees Ten Lacs only)
towards gratuity, it is say of the petitioner that till
date, the respondents have not sent any reply to the
petitioner nor they have paid the remaining amount
of gratuity at par with other GPF holders. Therefore,
the petitioner has approached this Court with the
following reliefs :-
(B) to declare that the action of the
respondents in not paying the entire amount of
Rs.10 Lacs towards gratuity to the petitioner is
arbitrary and bad in law and therefore be
pleased to issue a writ of mandamus or any
other appropriate writ,k order or direction
quashing and setting aside the action of the
respondents in not paying full gratuity to the
petitioner and further be pleased to direct the
respondents to pay remaining amount of
gratuity to the petitioner forthwith along with
12% interest per annum.
(c) Pending admission, hearing and final
disposal of this petition, the respondents be
directed to pay the remaining amount of
gratuity along with interest at the rate of 12%
per annum.
(d) to award the cost of this petition.
(e) to grant any other and further relief/s as
may be deemed fit and proper in the facts and
circumstances of the case.
3. Mr.Jairaj Chauhan, learned advocate appearing
for the petitioners has submitted that to both the
petitioners, the principal amount of gratuity has
already paid on 10.10.2014 . He has urged that Rs.
3.50 Lacs (Rupees Three Lacs Fifty thousand only )
paid on 14.9.2011 and the remaining amount of
Rs.6.50 Lacs (Rupees Six Lacs Fifty Thousand only)
has been paid on 10.10.2014. Therefore, the court
needs to pass necessary directions for the interest
part only.
4. This Court has heard learned AGP Ms.Asmita
Patel who has fairly submitted the Court may pass
appropriate order considering the decision rendered
in case of H.Gangahanume Gowda Vs. Karnataka
Agro Industries Corporation Ltd. reported
in (2003) 3 SCC 40. The Apex Court in the said
authority has decided the interest on delayed
payment of gratuity. It is also held that the same is
mandatory and not discretionary. When it is not the
case of the respondent that the delay in the payment
of gratuity was due to the fault of the employee and
that it had obtained permission in writing from the
controlling authority for the delayed payment on
that ground, the respondent had been directed to
pay interest @ 10% on the amount of gratuity to
which the appellant is entitled from the date it
became payable till the date of payment of the
gratuity amount.
5.Considering the submission of both the sides and
bearing in mind the ratio sought to be relied upon by
learned AGP , the amount of gratuity has already
paid on 14.9.2011 to the tune of Rs.3.50 Lacs and
the remaining amount Rs. 6.50 Lacs was paid on
10.10.2014 as petitioner had retired on 14.6.2011.
6. The Apex Court in the above referred decision has
held that the grant of gratuity well within time
mandatory and not discretionary wherein the Apex
Court has held that :-
“9. It is clear from what is extracted above
from the order of learned Single Judge that
interest on delayed payment of gratuity was
denied only on the ground that there was
doubt whether the appellant was entitled to
gratuity, cash equivalent to leave etc., in view
of divergent opinion of the courts during the
pendency of enquiry. The learned Single Judge
having held that the appellant was entitled for
payment of gratuity was not right in denying
the interest on the delayed payment of gratuity
having due regard to Section 7(3A) of the Act.
It was not the case of the respondent that the
delay in the payment of gratuity was due to the
fault of the employee and that it had obtained
permission in writing from the controlling
authority for the delayed payment on that
ground.As noticed above, there is a clear
mandate in the provisions of Section 7 to the
employer for payment of gratuity within time
and to pay interest on the delayed payment of
gratuity. There is also provision to recover the
amount of gratuity with compound interest in
case amount of gratuity payable was not paid
by the employer in terms of Section 8 of the
Act. Since the employer did not satisfy the
mandatory requirements of the proviso to
Section 7(3A), no discretion was left to deny
the interest to the appellant on belated
payment of gratuity. Unfortunately, the
Division Bench of the High Court, having found
that the appellant was entitled for interest,
declined to interfere with the order of the
learned Single Judge as regards the claim of
interest on delayed payment of gratuity only on
the ground that the discretion exercised by the
learned Single Judge could not be said to be
arbitrary. In the light of what is stated above,
the learned Single Judge could not refuse the
grant of interest exercising discretion as
against the mandatory provisions contained in
Section 7 of the Act. The Division Bench, in our
opinion, committed an error in assuming that
the learned Single Judge could exercise the
discretion in the matter of awarding interest
and that such a discretion exercised was not
arbitrary.
10. In the light of the facts stated and for the
reasons aforementioned, the impugned order
cannot be sustained. Consequently, it is set
aside. The respondent is directed to pay
interest @ 10% on the amount of gratuity to
which the appellant is entitled from the date it
became payable till the date of payment of the
gratuity amount. The appeal is allowed
accordingly with cost quantified at Rs.
6. Adverting to the facts herein, this Court
notices that the Government Resolution has been
passed by the State on 11-13/4/09 wherein the
limit of gratuity was raised to Rs.10 Lacs. The
facts remains that the entire sum had become due
to the petitioner who retired on 14.06.2011. For
no fault of the petitioners, the entire amount of
gratuity had not been paid well within the time
period and it had been paid in two parts i.e.
Rs.3.50 Lakhs on 14.09.2011 and remaining
amount of Rs.6.50 Lakhs on 10.10.2014. Hence,
for the late payment of Rs.6.50 Lakhs, there is no
jurisdiction and the petitioners have made out
their case to that extent. This Court is therefore of
the opinion that respondent is required to be
directed to pay simple interest @ 9% on the
amount of gratuity paid late i.e. Rs.6.00 Lacs to
which the petitioner was entitled from the date it
become payable till the date of payment of the
gratuity amount, i.e. from 14.09.2011 to
7. With the above observations and directions,
these petitions stand disposed of.”
8. Accordingly the case of the petitioner is covered by
the decision reproduced herein above.
9. The petitioner retired in the year 2013 for no fault of
his. Mr.Jayraj Chauhan would rely on the following
decisions in support of his claim that the petitioner
is entitled to interest on the delayed payment of
gratuity.
(I) In case of D.D.Tiwari (D) Thr. Lrs vs Uttar
Haryana Bijli Vitran Nigam reported in (2014) 8
(II) In case of Union of India v. M.S.Abdulla
reported in (2006) 6 SCC 455
(III) In case of Vijay L. Mehrotra v. State of U.P.
& Others reported in (2001) 9 SCC 687
(IV) In case of Union of India and Another v.
M.C. Desai and Others reported in (1996) 11
(V) In case of H. Gangahanume Gowda v.
Karnataka Agro Industries Corpn. Ltd. reported
in (2003) 3 SCC 40
(VI) In case of Y.K.Singla v. Punjab National
Bank and Others reported in (2003) 3 SCC 472
10. The respondents are directed to pay to the petitioner
the amount of gratuity of Rs.10 lakhs within a period of
10 weeks from the date of receipt of copy of this order.
Since the petitioner superannuated on 14.06.2013 and
the amount of gratuity has been wrongfully withheld by
the respondents, the petitioner shall be entitled to
interest at the rate of 9% from the date of his
superannuation till the date of actual payment.
11. The petition is allowed in the aforesaid terms.
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The Gujarat High Court has reiterated that there is a clear mandate on the employer under the provisions of Section 7 to the Payment of Gratuity Act, for payment of gratuity within time and to pay interest on the delayed payment of gratuity. In light of the above, the Bench of Justice Biren Vaishnav directed the Sardar Patel University to pay Rs. 10 lakhs towards gratuity...
The Gujarat High Court has reiterated that there is a clear mandate on the employer under the provisions of Section 7 to the Payment of Gratuity Act, for payment of gratuity within time and to pay interest on the delayed payment of gratuity.
In light of the above, the Bench of Justice Biren Vaishnav directed the Sardar Patel University to pay Rs. 10 lakhs towards gratuity of the Petitioner, a retired reader, along with interest at 9% for wrongfully withholding the graturty since his retirement in 2013.
The direction was passed in petition filed under Article 226 of the Constitution where the Petitioner had prayed for the declaration that the action of the Respondents in not paying Rs. 10 lakhs along with 18% interest towards his gratuity, was arbitrary.
The Petitioner joined services as a lecturer at the Sardar Patel University from 04.10.1979 onwards. He was confirmed in service from 28.09.1986. It was the Petitioner's case that since his appointment was made after 01.04.1982 on the post of reader, his services had been counted towards the pension scheme. He retired from service on 14.06.2013.
The Petitioner claimed that he was entitled to Rs. 10 lakhs gratuity in view of a notification of 2010 pursuant to which the gratuity amount was enhanced from Rs. 3,50,000 to 10 lakhs. There were amendments in Section 4(3) of the Payment of Gratuity Act wherein the State extended this amount to CPF beneficiaries from 2010.
Per contra, the AGP contended that the Petitioner was covered by the CPF scheme and not entitled to gratuity.
The Bench noted that the Petitioner's retirement indicated that GPF was deducted from his salary. Therefore, he was governed by the GPF scheme. Additionally, in an earlier Civil Application with identical facts, the question of gratuity of Rs. 10 lakhs was raised. The High Court had then relied on H.Gangahanume Gowda Vs. Karnataka Agro Industries Corporation Ltd (2003) 3 SCC 40 to observe that the interest was payable on delayed payment of gratuity. It was also held that the same was "mandatory and not discretionary."
The Government had raised the amount of gratuity to Rs. 10 lakhs and the Petitioner therein had retired in 2011 was entitled to interest due to non-payment of gratuity worth Rs. 6.50 lakhs apart from 9% interest.
Noting that the Petitioner in the instant case had retired on 2013 "through no fault of his", the Bench opined that he was entitled to interest on the delayed payment of gratuity in accordance with D.D.Tiwari (D) Thr. Lrs vs Uttar Haryana Bijli Vitran Nigam and other. Justice Vaishnav remarked,
"Since the petitioner superannuated on 14.06.2013 and the amount of gratuity has been wrongfully withheld by the respondents, the petitioner shall be entitled to interest at the rate of 9% from the date of his superannuation till the date of actual payment," it said.
Case Title: ASHVINKUMAR RAMNIKLAL JANI Versus STATE OF GUJARAT
|
1. CRL.M.C. 533/2021 has been filed for quashing FIR No.239/2017
dated 12.05.2017, registered at Police Vasant Kunj(North), New Delhi for
offences under Sections 509, 506, 323, 341, 354, 354A and 34 IPC. The
complainant/respondent No.2 in the said FIR has alleged that on 12.05.2017,
when she was going to drop her children to school, the accused who reside
in the neighbourhood beat her and outraged her modesty and also committed
act of sexual harassment. The contents of FIR are not being repeated here.
2. CRL.M.C. 534/2021 has been filed for quashing FIR No.238/2017
dated 12.05.2017, registered at Police Vasant Kunj(North), New Delhi for
offences under Sections 509, 506, 323, 341, 354, 354A and 34 IPC.
3. The complainant in the said FIR is the accused in CRL.M.C.
533/2021. The allegation in this FIR is that the petitioners herein have
committed offences punishable under Section 354 IPC i.e. assault or use of
criminal force to woman with intent to outrage her modesty. The parties in
all the FIRs are residents of 95/9, Kisangarh, Vasant Kunj, Delhi, and are
4. It is stated that with the intervention of some common friends,
relatives and family members, the parties have settled their dispute and an
oral settlement has been reached between the parties. It is stated that both
the parties, the petitioners and respondents in CRL.M.C. 533/2021 and
CRL.M.C. 534/2021, have realised their mistake and they had decided to
compromise the matter.
5. As per the said oral settlement, the parties have agreed that they will
approach this Court for the quashing of the abovementioned FIRs. It is
stated that they had agreed that they will maintain harmonious relations with
each other. It is requested that the FIRs be quashed as the dispute has been
amicably resolved.
6. The parties have also filed their respective affidavits affirming the fact
that the matter has been settled amicably. It is also stated that the
complainants in both the petitions do not have any objection if the instant
FIRs and the proceedings emanating therefrom are quashed.
7. Unfortunately, it is now becoming a trend to register FIRs alleging
offences under Sections 354, 354A, 354B, 354C, 354D IPC either to force a
party from withdrawing a complaint instituted against them or to arm twist a
party. Offences under Sections 354, 354A, 354B, 354C, 354D IPC are
serious offences. Such allegations have the effect of tarnishing the image of
the person against whom such allegations are made. Allegations regarding
these offences cannot be made at a drop of a hat. This practice is an abuse of
the process of law. The instant case is a classic example as to how frivolous
allegations of Section 354 and 354A have been levelled by the parties
against each other. A small fight regarding parking has been escalated by
levelling allegation of outraging modesty of women. This court can take
judicial notice of the fact that the police force is very limited. Police
personnel have to spend time in investigating frivolous cases. They have to
attend court proceedings, prepare Status Report etc. The result is that
investigation in serious offences gets compromised and accused escape
because of shoddy investigation. Time has come to initiate action against
persons who file frivolous complaints under Sections 354, 354A, 354B,
354C, 354D IPC etc. only for ulterior purpose. Some of the petitioners in
these instant petitions are students who should understand not to take courts
and the police for granted and assume that anything and everything can be
settled and they can get away by filing false cases.
8. In view of the mutual settlement arrived at between the parties, this
Court is satisfied that no useful purpose will be served in prosecuting with
the present proceedings. Resultantly, the FIR No.238/2017 and FIR
No.239/2017 dated 12.05.2017, under Sections 509, 506, 323, 341, 354,
354A and 34 IPC registered at Police Vasant Kunj(North), New Delhi and
the proceedings emanating therefrom are hereby quashed. The parties shall
remain bound by the mutual settlement and the undertaking given to the
9. Since the Police has had to spend valuable time in investigating the
offence and considerable time has been spent by the Court in the criminal
proceedings initiated by the parties, this Court is inclined to impose cost on
the petitioners with a warning not to file false and frivolous cases. The
petitioners in CRL.M.C. 533/2021 are directed to deposit a sum of
Rs.30,000/-(Rupees Thirty Thousand Only) with ‘DHCBA Lawyers Social
Security and Welfare Fund’ within three weeks from today and the
petitioners in CRL.M.C.534/2021 are directed to deposit a sum of
Rs.30,000/-(Rupees Thirty Thousand Only) with ‘DHCBA Lawyers Social
Security and Welfare Fund’ within three weeks from today. Details of the
Copy of the receipts be also filed with the Registry to show compliance of
the order.
8. The petitions stand disposed of in above terms.
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Ruling that time has come to initiate action against persons who file frivolous complaints under Sections 354, 354A, 354B, 354C, 354D IPC etc. only for an ulterior purpose, the Delhi High Court recently imposed a cost of Rs.30,000 on the petitioners with a warning not to file false and frivolous cases. The Bench of Justice Subramonium Prasad sternly remarked that it is now becoming...
Ruling that time has come to initiate action against persons who file frivolous complaints under Sections 354, 354A, 354B, 354C, 354D IPC etc. only for an ulterior purpose, the Delhi High Court recently imposed a cost of Rs.30,000 on the petitioners with a warning not to file false and frivolous cases.
The Bench of Justice Subramonium Prasad sternly remarked that it is now becoming a trend to register FIRs alleging offences under Sections 354, 354A, 354B, 354C, 354D IPC either to force a party from withdrawing a complaint instituted against them or to arm-twist a party.
It may be noted that S. 354 of IPC deals with the offence of Assault or criminal force to woman with intent to outrage her modesty, S. 354-A relates to the offence of Sexual harassment and punishment for sexual harassment, S. 354B is related to the offence of Assault or use of criminal force to woman with intent to disrobe, S. 354C deals with the offence of Voyeurism and S. 354D deals with Stalking.
The matter before the Court
CRL.M.C. 533/2021 & 534/2021 were filed for quashing FIR No.239/2017 and 238/2017 (both registered alleging offence under Sections 509, 506, 323, 341, 354, 354A and 34 IPC) respectively and the Complainant in FIR No. 238/2017 happened to be the accused in FIR No.239/2017.
It was submitted that with the intervention of some common friends, relatives and family members, the parties have settled their dispute and an oral settlement has been reached between the parties.
It was also stated that both the parties, the petitioners and respondents in CRL.M.C. 533/2021 and CRL.M.C. 534/2021, have realised their mistake and they had decided to compromise the matter.
As per the said oral settlement, the parties agreed that they would approach the Court for the quashing of the abovementioned FIRs and thus, it was requested that the FIRs be quashed as the dispute had been amicably resolved.
Court's observations
At the outset, the Court noted that offences under Sections 354, 354A, 354B, 354C, 354D IPC are serious offences and that such allegations have the effect of tarnishing the image of the person against whom such allegations are made.
Further, the Court opined that allegations regarding these offences cannot be made at a drop of a hat. This practice is an abuse of the process of law.
About the instant case, the Court noted that it is a 'classic example' as to how frivolous allegations of Section 354 and 354A have been levelled by the parties against each other.
The Court observed that a small fight regarding parking was escalated by levelling allegation of outraging the modesty of women.
"This court can take judicial notice of the fact that the police force is very limited. Police personnel have to spend time in investigating frivolous cases. They have to attend court proceedings, prepare Status Report etc. The result is that investigation in serious offences gets compromised and accused escape because of shoddy investigation", remarked the Court.
However, in view of the mutual settlement arrived at between the parties, the Court was satisfied that no useful purpose will be served in prosecuting with the present proceedings.
Resultantly, the FIR No.238/2017 and FIR No.239/2017 and the proceedings emanating therefrom were quashed.
Significantly, noting that the Police had to spend valuable time in investigating the offence and considerable time was spent by the Court in the criminal proceedings initiated by the parties, the Court thought it fit to impose a cost on the petitioners with a warning not to file false and frivolous cases.
Thus, the petitioners in both CRL.M.C. 533/2021 & CRL.M.C.534/2021 were directed to deposit a sum of Rs.30,000/-(Rupees Thirty Thousand Only) with 'DHCBA Lawyers Social Security and Welfare Fund' within three weeks.
Read Order
|
Heard Mr.C.K.Chandrasekar, learned counsel appearing for the petitioners and
Mr.T.Chandrasekaran, learned Special Government Pleader appearing for the
respondents.
2. Learned counsel for the petitioners submitted that, the idol in the ancient
temple called Arulmighu Paramasivan Swamy Thirukkoil, Siviyarpalayam, Kangeyam
Taluk, Tiruppur District was stolen. Subsequently, that was retrieved by the Police and
thereafter it was produced before the concerned Court ie., the Special Court for dealing
with Idol Theft cases located at Kumbakonam. The idol has been handed over to the
temple authorities and it has been re-installed ie., Prathishtai has been again done in the
Temple, where Kumbabishekam also has been performed. The idol now is being
worshipped by large number of devotees including the village people, where the temple
is located.
3. At this juncture, now the subsequent Judicial Officer, who is dealing with the
Idol Theft cases at Kumbakonam seems to have issued a direction to produce the idol ie.,
the Moolavar itself for inspection and to complete the enquiry before the Court, for which
the date is fixed as 06.01.2022 ie., today. When an attempt was made by the Executive
Officer ie., the third respondent of the temple concerned to remove the idol for
production of the same before the Magistrate Court at Kumbakonam, it seems that there
has been a large scale objection from the devotees as well as the village people including
the petitioners.
4. Despite the said objection registered on behalf of the devotees and village
people including the petitioners, the third respondent has issued a communication dated
23.12.2021, where inter-alia he has stated the following.
“ghh;itapy; fhqk;. Ch; bghJkf;fs; fojk; ftdkhf
guprPypf;fg;gl;lJ/ ,JFwpj;J rl;l ty;Yeh;fsplk; fye;J
Mnyhrpf;fg;gl;lJ vd;w tpguk; j';fSf;F ,jd; K:yk;
bjuptpj;Jf;bfhs;sg;gLfpwJ/ Fk;gnfhzk;. khz;gk
jiyik ePjpj;Jiw eLtu; ePjpkd;wk; (rpiy jpUl;L jLg;g[
rpwg;g[ ePjpkd;wk;. Fk;gnfhzk;) cj;jut[ vd;gjhy; jpUf;nfhapy;
epu;thfk; mjid Vw;W bray;gl flikg;gl;Ls;sJ vd;gij
cWjpa[ld; bjuptpj;J. K:ytu; tpf;ufj;ij khz;g[kpF
fh';nfak; Fw;wtpay; ePjpkd;w eLtu; mtu;fs; fojj;jpy;
fz;Ls;s cj;jut[ kw;Wk; khz;g[kpF TLjy; jiyik
ePjpj;Jiw eLtu; ePjpkd;wk; (rpiy jpUl;L jLg;g[ rpwg;g[
ePjpkd;wk;. Fk;gnfhzk;) Mfpa ePjpkd;w';fs; gpwg;gpj;j
ntz;oa epiy Vw;gl;Ls;sjpid j';fSf;F ,jd; K:yk;
md;g[ld; bjuptpj;Jf;bfhs;sg;gLfpwJ/
khz;g[kpF TLjy; jiyik ePjpj;Jiw eLtu; ePjpkd;wj;jpy;
(rpiy jpUl;L jLg;g[ rpwg;g[ ePjpkd;wk;. Fk;gnfhzk;)
eilbgwt[s;s tprhuizapy; nkw;go K:ytu; tpf;uf';fis
cjtpfs; ey;FkhW Cu; bghJ kf;fshfpa j';fis md;g[ld;
nfl;Lf;bfhs;sg;gLfpwJ/ jtWk; gl;rj;jpy; rl;lg;goahd
eltof;iffis nkw;bfhz;L nkw;go. K:ytu; tpf;uf';fis
bfhz;L bry;Yk; epfH;tpid jtpu;ff ; ,ayhJ vd;gjid Cu;
bghJ kf;fshfpa j';fSf;F ,jd; K:yk; ,Wjpahf
bjuptpj;Jf;bfhs;sg;gLfpwJ/@
5. Challenging the said communication and also in order to prevent the proposed
action on the part of the third respondent Executive Officer to remove the idol from the
temple for the purpose of production of the same at the Court at Kumbakonam, these
petitioners, who are devotees as well as the village people, on their behalf also has
moved this writ petition with the aforesaid prayer.
6. Therefore, the learned counsel for the petitioners seeks the indulgence of this
Court to take suitable measures by giving orders ensuring that the idol which is the
Moolavar already been installed and everyday poojas are performed, shall not be
removed from the Temple, which will go against the Aagama Rules and also would go
against the sentiments of large number of devotees.
7. On the other hand, Mr.T.Chandrasekaran, learned Special Government Pleader
appearing for the respondents, on instructions would submit that, though it was proposed
to remove the idol and produce the same before the Court at Kumbakonam today, ie.,
06.01.2022, of course pursuant to the direction already issued by the said Court, the said
move could not be materialized today because of the stiff resistance came from the
village people as well as the devotees.
8. Learned Special Government Pleader appearing for the respondents would also
submit that, before removal of the idol, Balaalayam has to be performed and that, even
for performing the same, none of them have come forward to co-operate with the
Executive Officer and that is the reason that the Executive Officer could not remove the
idol and to comply with the order passed by the Magistrate to produce the idol on
9. I have considered the submissions made by the learned counsel for the parties
and have perused the materials placed on record.
10. The idol ie., Moolavar, which was originally stolen, has already been installed,
of course pursuant to the earlier direction issued by the Court concerned, and
Kumbabishekam has been performed, and thereafter regular poojas are being performed
and large number of devotees are visiting the temple to worship the God.
11. If it is a Urchavar ie., the idol that can be taken out for procession during
festival season, that can very well be taken to any place, of course by following the
Aagama Rules in this regard. However, in the case of Moolavar, if it is installed once
after performing Aagama Poojas pursuant to Samprokshanam or Kumbabishekam at the
Sanctum Sanctorum, then it cannot be removed instantly, even of course pursuant to the
order passed by the Court concerned.
12. In this context, this Court wants to balance the compliance of the order of the
Court concerned as well as the Aagama rituals and the sentiments of the village people
and devotees. Hence this Court is of the view that, if at all the learned Magistrate wants
to verify whether the idol is in good condition and it is being protected in the temple
concerned with performing the Poojas etc., only for the limited satisfaction of the learned
Magistrate, he can appoint an Advocate Commissioner, who can visit the temple along
with the Executive Officer and also the temple authorities, if any, with some
representatives of the village people or devotees, and after having visited the temple, the
Advocate Commissioner can prepare a detailed report and submit the same to the
concerned Court, based on which the further proceedings with regard to the conducting
of the trial or progression of the case can be undertaken by the learned Magistrate.
13. Therefore, for the said purpose, the idol ie., the Moolavar need not be removed
once and be produced before the Magistrate Court concerned, the reason being that, the
idol, according to the belief of the devotees, is the God. The God cannot be summoned
by the Court to be produced for a mere inspection or verification purposes, as if that it is a
material object of a criminal case. Therefore, this Court is of the firm view that, the
aforesaid measure would serve the purpose of the compliance of the order of the learned
Magistrate, without disturbing or wounding the feelings of large number of devotees of
the God concerned. Therefore, the aforesaid measure shall be undertaken by the learned
Magistrate and the idol ie., the Moolavar need not be removed for the said purpose. This
order shall be executed by all concerned including the learned Magistrate, to whom a copy
of this order shall be forwarded by the Registry. Post the matter after four weeks for
filing counter.
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Overturning a lower court's decision, the Madras High Court has observed that an idol is believed to be a God by the devotees cannot be summoned by the Court. While hearing a challenge to the order of the lower Court in an idol theft case, where the idol was called to be produced in the Court to enquire its condition, Justice R. Suresh Kumar observed that,"The God cannot be summoned by the...
Overturning a lower court's decision, the Madras High Court has observed that an idol is believed to be a God by the devotees cannot be summoned by the Court. While hearing a challenge to the order of the lower Court in an idol theft case, where the idol was called to be produced in the Court to enquire its condition, Justice R. Suresh Kumar observed that,
"The God cannot be summoned by the Court to be produced for a mere inspection or verification purposes, as if that it is a material object of a criminal case."
To serve the purpose of the impugned compliance order without disturbing or wounding the feelings of a large number of devotees, the Court called for the appointment of an Advocate Commissioner, who, along with others concerned, will prepare a detailed report on the condition of the idol.
Background
The petition contended that Moolavar, the idol of a deity, was stolen from the ancient temple Arulmighu Paramasivan Swamy Thirukkoil, located in the Tiruppur District. Subsequently, it was retrieved by the Police and produced before the Court dealing with the idol theft cases in the area. The idol was handed over to the temple authorities and re-installed. After that, it was worshiped by many devotees, including residents of the nearby areas.
However, in the pending idol theft case, the Judicial Officer issued directions to produce the idol for inspection. The Executive Officer's attempt to remove the idol for production before the Magistrate Court was met with objection from devotees and villagers.
Filed through Advocate Mr.C.K.Chandrasekar, the petition challenged the action of the Executive Officer and the direction of the Judicial Officer, the devotees, and villagers have moved to the Madras High Court.
Special Government Pleader Mr. T. Chandrasekaran argued that the idol could not be produced before the Kumbakonam Court today due to the stiff resistance from the devotees and village. He argued that before removing the idol, the ritual of Balaalayam was to be performed, but no one came forward to do the same and cooperate with the Executive Officer.
Findings
The High Court observed that the Moolavar idol is different from a Urchavar, which can be taken out for procession by following the Aagama Rules. However, Moolavar, once installed, cannot be removed instantly, even in pursuance of orders of a Court.
In an attempt to balance the compliance of the order with the Agama rules and sentiments of the devotees and villagers, the Court observed that if the Magistrate wants to verify the condition of the idol, he can appoint an Advocate Commissioner. The appointed Advocate Commissioner, the Executive Officer, and temple authorities can prepare a detailed report and submit it to the Court.
The High Court held that the idol could not be removed, as it is being regarded as God by the devotees, and the Court cannot summon God for inspection or verification purposes.
The matter is posted after four weeks.
Case Title: Writ Petition No. 130/22
Read The Order
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First petitioner minor child and second petitioner, its
mother are knocking at the doors of Writ Court grieving
against the non-issuance of the Transfer Certificate of the
child, by the 9th Respondent – School despite repeated
2. After service of notice, the respondents have
entered appearance through their advocates; official
respondents 1, 2 & 3 are represented by learned AGA; the
fourth respondent is represented by his Panel Counsel;
learned ASG represents respondents 5 to 8; respondents 9
& 10 are represented by their Panel Counsel; similarly, the
now impleaded respondent no.11 is also represented by his
own counsel.
3. Learned Panel Counsel appearing for
respondent School & 11th respondent being the father of
the first petitioner & husband of the second, oppose the
writ petition contending that without the consent of the
father TC cannot be issued; the counsel for the school
submits that unless school dues are cleared, the request
for issuance of TC cannot be considered; they also contend
that since the child now in Kolkata is attending the school
online and therefore, there is no reason for shifting it to
another school.
4. Having heard the learned counsel for the
parties and having perused the petition papers, this Court
is inclined to grant indulgence in the matter as under and
for the following reasons:
(a) The first petitioner is a minor daughter of second
petitioner and, now impleaded 11th respondent happens to
be its father; there appears to be some estrangement
between the spouses as is reflected from the record; the
Division Bench of this Court in father's W.P.(HC) No.
32/2021, has made some observations at paragraphs 10 &
11 of the judgment which show that the custody of the
child is with the second petitioner; that being the position,
the respondent Nos. 9, 10 & 11 are not justified in
opposing the request for the issuance of Transfer
Certificate of the child who is now stated to be admitted to
a school in Kolkata; because of estrangement between the
parents, child’s educational prospects should not be
affected by not issuing the TC.
(b) The contention of counsel for the 11th respondent
that to which school a child of the estranged parents
should be admitted, has to be a matter of consensus
between them and that one of the parents cannot take
such a decision unilaterally, cannot be countenanced as a
thumb rule; child is as yet a minor and it is a female;
admittedly it is in the exclusive custody of 2nd petitioner-
mother; ordinarily, law favours custody of minor daughters
being with the mothers, needs no elaboration; the child is
already admitted to a school in Kolkata; the legal battle for
its custody between the parents is stated to be still going
on. What is being decided in this case is only the matter
of Transfer Certificate and not the child custody or
visitation rights. Justice of the case warrants the issuance
of Transfer Certificate to facilitate educational career
progression of the child; in matters like this all agencies
involved should co-ordinate and facilitate the same. This
is reflected in the provisions of Sec.5 of the Right of
Children to free and compulsory Education Act, 2009.
In the above circumstances, this writ petition
succeeds; a Writ of Mandamus issues to the respondents
nos.1, 2 & 3 to cause issuance of Transfer Certificate by
the respondent nos. 9 & 10- School; a direction also issues
to the 10th respondent to hand the subject Transfer
Certificate to the second petitioner-mother within ten days,
failing which the respondents 9 & 10 each shall pay to the
second petitioner Rs.5,000/- for the delay brooked each
day, apart from running the risk of contempt of court.
The observations made hereinabove shall not
influence the claims for child custody or the visitation
Now, no costs.
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The Karnataka High Court has said that estrangement between a couple should not affect their child's education prospects. Justice Krishna S Dixit thus allowed the petition filed by a mother and her 8-year old daughter, seeking directions to a school in Bengaluru to issue her Transfer certificate. The plea was opposed by the Sorsfort International School on the grounds that...
The Karnataka High Court has said that estrangement between a couple should not affect their child's education prospects.
Justice Krishna S Dixit thus allowed the petition filed by a mother and her 8-year old daughter, seeking directions to a school in Bengaluru to issue her Transfer certificate.
The plea was opposed by the Sorsfort International School on the grounds that without the consent of the father TC cannot be issued. Further, unless school dues are cleared, the request for issuance of TC cannot be considered. Since the child is now in Kolkata and attending the school online, therefore, there is no reason for shifting it to another school.
The father of the child also opposed the plea, contending that to which school a child of the estranged parents should be admitted, has to be a matter of consensus between them and that one of the parents cannot take such a decision unilaterally.
The bench on going through the records said "The respondent Nos. 9, 10 (School) & 11 (father) are not justified in opposing the request for the issuance of Transfer Certificate of the child who is now stated to be admitted to a school in Kolkata."
It added "Because of estrangement between the parents, child's educational prospects should not be affected by not issuing the TC."
The court also junked the contention of the father that selection of school for the child of estranged parents, has to be a matter of consensus between them and that one of the parents cannot take such a decision unilaterally.
The bench said "This cannot be countenanced as a thumb rule. Child is as yet a minor and it is a female, admittedly it is in the exclusive custody of the 2nd petitioner mother. Ordinarily, law favours custody of minor daughters being with the mothers, needs no elaboration."
It added "The legal battle for custody between the parents is stated to be still going on. What is being decided in this case is only the matter of Transfer Certificate and not the child custody or visitation rights."
The court then opined "Justice of the case warrants the issuance of Transfer Certificate to facilitate educational career progression of the child; in matters like this all agencies involved should coordinate and facilitate the same. This is reflected in the provisions of Sec.5 of the Right of Children to free and compulsory Education Act, 2009."
Accordingly the court directed the authorities to cause issuance of Transfer Certificate by the respondent nos. 9 & 10- School and hand it to the mother within ten days. Failing which the school and principal each shall pay to the second petitioner Rs.5,000 for the delay brooked each day, apart from running the risk of contempt of court.
Case Title: AMRUSHA DAS V. STATE OF KARNATAKA
Case No: WRIT PETITION NO.19057 OF 2021
Date of Order: 13TH DAY OF JANUARY, 2022
Appearance: Advocate SWAROOP SRINIVAS for petitioner; Advocate VINOD KUMAR, FOR R1-R3; Advocate VIDYULATHA, FOR R4; ASG SHANTHI BHUSHAN FOR R5-R8; Advocate M P SRIKANTH, FOR R9 & R10; Advocate SHYAM SUNDAR H V, for R11
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1. By this appeal, the State has challenged the judgment dated
14/08/2012, delivered by the learned Additional Sessions Judge,
Kopargaon, in Sessions Case No.19 of 2010. The respondent accused
was acquitted of the charge of having committed an offence
punishable under Sections 376 and 506 of the Indian Penal Code. The
Trial Court has wrongly mentioned Section 34 of the Indian Penal
Code in the opening paragraph of the judgment. Neither in the FIR,
nor in the charge framed, Section 34 of the Indian Penal Code, has
been attracted.
2. We have considered the strenuous submissions of the learned
Prosecutor, who has taken us through the appeal paper book and the
original record & proceedings, threadbare. He has analyzed the
testimonies of all 9 witnesses. He has strenuously contended that the
version of the prosecutrix has to be properly appreciated and, in the
absence of any ulterior or oblique motive on the part of the prosecutrix
in framing the accused, the Court has to consider such testimonies in
the light of the entire oral and documentary evidence available.
3. At the very outset, we need to record our strong displeasure
about the choice of a particular word, which has been repeatedly used
by the learned Additional Sessions Judge, Kopargaon (Coram : Shri. S.
V. Ranpise) while recording the testimony of the prosecutrix, the PW1
and the testimony of the I.O., P.W.9 and also in the body of the
judgment. The Trial Court has used the words ‘F*****’ and
“F******”. These words are used in slang language, are treated to be
foul words and are utterly disrespectful to women. We have also
noticed that though the Marathi version of the testimony of the
prosecutrix indicates certain Marathi words used by her like “okÃV d`R;
dsys] okÃV dke d#u ek>h bTtr yqVyh” etc., yet the Trial Court has
repeatedly used the above mentioned objectionable words, while
recording the English version of her testimony.
4. The complaint of the prosecutrix was that the accused, who is
her cousin father-in-law, has committed an offence punishable under
Section 376 of the Indian Penal Code. On the night prior to
25/03/2010, she had served dinner to the accused as her mother-in-law
(PW7), the wife of the accused and the son of the accused had gone
outstation to Vadner for a religious function. On 25/03/2010, at
around 10.30 a.m., while she was drawing water from a jar, the
accused grabbed her from behind. She questioned him as to what was
he doing and he allegedly said that she should not worry. It was the
third day of her menstrual cycle. He forcibly pushed her and laid her
on the ground. He then lifted her sari and committed an offence. She
stated that since she was partially affected by paralysis, she was unable
to push him away. He took advantage of her weak condition. After
committing intercourse for 4 to 5 minutes, he threatened her with death
if she narrated the incident to anybody. She was frightened and
weeping. After her mother-in-law came back, she narrated the
incident to her. After her father-in-law returned from work, she
narrated the incident to him as well. Her husband had started from
Pune and after he returned in the evening, there was a consultation and
it was decided to lodge the police complaint. Hence, the FIR was
registered at about 9.00 p.m. on 25/03/2010.
5. In the examination-in-chief at Exh.11, the prosecutrix (PW1),
has stated that she was residing in a hut which had no door, adjacent to
the hut of the accused. She had given him kick blows, because she
was suffering from paralysis to her left hand. In Cross-examination,
she admitted that her husband has two wives. The second wife has
given birth to two children. The prosecutrix is childless as her first
child died and she suffered abortion during the second pregnancy. Her
husband is living at Pune along with his second wife and children and
does not financially support the prosecutrix.
6. In her lengthy cross-examination, she claimed to have suffered
injuries on her head and on her back. There was a swelling (bump) on
her head. There were abrasions on her hand and her back. The
bangles that she had worn were broken and injuries were caused to
both her hands. The children of her husband’s brother were playing in
the courtyard outside her hut. Both, the girl child and the male child
are between 10 to 15 years of age. She had suffered an injury of about
3 to 4 inches on her back which was not a bleeding injury. The
injuries caused due to the breaking of the bangles were also not
bleeding injuries. There was a swelling to her right hand and abrasions
on the wrist. She had slapped the accused on his face and had kicked
him with her legs.
7. In paragraph Nos.7 and 8 of her cross-examination, she had
stated that many statements appearing in her examination-in-chief
were told to the police and she cannot assign any reason why the said
statements do not appear in the FIR. She has also stated that she has
suffered a bleeding injury to her private part due to the violent act of
the accused and three to four stitches had to be administered.
8. We have perused the medical report Exh.13. Her medical
examination reveals no external injury. She was found to be
habituated to sexual intercourse. There were no injuries to her back or
her head. There were no injuries on her legs, thighs or on her private
part and there were no stitches thereon.
9. PW6 is the lady medical officer, who examined both, the
prosecutrix as well as the accused on 26/03/2010. He was medically
examined at 10.30 a.m. and she was examined at 11.00 a.m. She
noticed that the prosecutrix had a history of loss of strength in her left
forearm after the delivery of her first baby, which died after five
months. She noticed no external injuries. She noticed menstrual
bleeding. She found that the prosecutrix was habituated to sexual
intercourse. She had not administered stitches on the private part of
the prosecutrix as she did not notice any such injuries which would
require 3 to 4 stitches. She opined that, if a lot of force is used by a
male while committing sexual intercourse with a woman, there is
every possibility of an injury to her private part. She also did not
notice any injury on the private part of the male, who was examined
within 24 hours of the alleged incident. She did not find any injuries
on the head or the bump on her head or on her back. She did not find
any abrasion on her back or her hands which would have normally
happened with the breaking of the bangles.
10. PW7 is the mother-in-law of the prosecutrix. She has stated that
the prosecutrix had narrated her ordeal after PW7 had returned from
Vadner. The prosecutrix had then narrated the same to her
father-in-law who returned home after work. Thereafter, they
proceeded to Loni Police Station for lodging the FIR.
11. In cross-examination, PW7 had no explanation as to why she
has not stated in her statement that the prosecutrix had told her that the
accused had committed rape. There is no significant piece of evidence
emerging from the testimony of PW7.
12. PW8 is the son of PW7, who had travelled to Vadner. He
corroborated the version of PW7 that when they reached home at about
12.00 noon on 25/03/2010, the prosecutrix, who is the wife of the
brother of PW8, had told PW7 that the accused had committed rape.
In his cross-examination, he stated that he had told the police to record
his statement on the same day that the prosecutrix had told PW7 about
the said incident. The testimony of PW8 is insignificant.
13. PW9 is the Investigating Officer. He stated the manner in which
the investigation was carried out. He has mentioned about the medical
examination of the prosecutrix and the accused. The clothes of both
the persons were seized and were sent for anaylsis to the Regional
Forensic Science laboratory. He referred to the statements that were
recorded by him during investigation. He has supported the spot
panchnama, the arrest panchnama and the preparation of the sketch
map at the place of the crime.
14. In cross-examination, he has stated that the prosecutrix did not
tell him that the accused grabbed her from behind and told her that she
should not worry. He further stated that she did not tell him regarding
any injury caused to her on her body or on her private part. She did
not tell him that she had questioned the accused as to what was he
doing, when he grabbed her. He further stated that she did not tell him
that while the accused was committing the unlawful act, she had
slapped him on the face, he had pressed her nose and then had gagged
her by putting a cloth in her mouth. She did not tell him that stitches
were administered on her private part due to injuries suffered by her.
15. The Honourable Apex Court (three Judges Bench) in the matter
of Shivaji Sahebrao Bobade & anr. Vs. State of Maharashtra,
AIR 1973 Supreme Court 2622, has held that this Court has to be
extremely cautious while dealing with an appeal against acquittal.
This Court cannot get swayed by the gravity of the offence. The
principles settled by the Honourable Apex Court would indicate that
the High Court should assess the evidence in proper perspective for
avoiding, both, the exploitation of every plausible suspicion as
militating against the certitude of guilt and the unjust loading of dice
against the accused. There are no fetters on the plenary power of the
Appellate Court to review the whole evidence on which the order of
acquittal is founded and it has a duty to scrutinize the probative
material de nova.
16. We deem it apposite to reproduce paragraph Nos.5 to 9 from
“5. Before dealing with the merits of the contentions,
we may perhaps make a few preliminary remarks
provoked by the situation presented by this case. An
appellant aggrieved by the overturning of his acquittal
deserves the final court's deeper concern on fundamental
principles of criminal justice. The present accused, who
have suffered such a fate, have hopefully appealed to us
for a loaded approach against guilt in consonance with
the initial innocence presumed in their favour fortified by
the acquittal that followed. We are clearly in agreement
with this noble proposition, stated in American
Jurisprudence at, one time (not now, though) as implied
in the rule against double jeopardy, in the British system
as a branch of the benefit of reasonable doubt doctrine
and in our own on the more logical, socially relevant and
modern basis, that an acquitted accused should not be
put in peril of conviction on appeal save where
substantial and compelling grounds exist for such a
course. In India it is not a jurisdictional limitation on the
appellate court but a judge-made guideline of
circumspection. But we hasten to add even here that,
although the learned judges of the High Court have not
expressly stated so, they have been at pains to dwell at
length on all the pointed relied on by the trial court as
favourable to the prisoners for the good reason that they
wanted to be satisfied in their conscience whether there
was credible testimony warranting, on a fair
consideration, a reversal of the acquittal registered by
the court below. In law there are no fetters on the
plenary power of the Appellate Court to review the whole
evidence on which the order of acquittal is founded and,
indeed, it has a duty to scrutinise the probative material
de novo, informed, however, by the weighty thought that
the rebuttable innocence, attributed to the accused
having been converted into an acquittal the homage our
jurisprudence owes to individual liberty constrains the
higher court not to upset the holding without very
convincing reasons and comprehensive consideration. In
our view the High Court's judgment survives this
exacting standard.
6. Even at this stage we may remind ourselves of a
necessary social perspective in criminal cases which
suffers from insufficient forensic appreciation. The
dangers of exaggerated devotion to the rule of benefit of
doubt at the expense of social defence and to the soothing
sentiment that all acquittals are always good regardless
of justice to the victim and the community, demand
especial emphasis in the contemporary context of
escalating crime and escape. The judicial instrument has
a public accountability. The cherished principles or
golden thread of proof beyond reasonable doubt which
runs tho: the web of our law should not be stretched
morbidly to embrace every hunch, hesitancy and degree
of doubt. The excessive solicitude reflected in the attitude
that a thousand guilty men may go but one innocent
martyr shall not suffer is a false dilemma. Only
reasonable doubts belong to the accused. Otherwise any
practical system of justice will then break down and lose
credibility with the community. The evil of acquitting a
guilty person light-heartedly as a learned author has
sapiently observed, goes much beyond the simple fact
that just one guilty person has gone unpunished. If
unmerited acquittals become general, they tend to lead to
a cynical disregard of the law, and this in turn leads to a
public demand for harsher legal presumptions against
indicated 'persons' and more severe punishment of those
who are found guilty. Thus too frequent acquittals of the
guilty may lead to a ferocious penal law, eventually
eroding the judicial protection of the guiltless. For all
these reasons it is true to say, with Viscount Simon, that
"a miscarriage of justice may arise from the acquittal of
the guilty no less than from the conviction of the
innocent. .." In short, our jurisprudential enthusiasm for
presumed innocence must be moderated by the pragmatic
need to make criminal justice potent and realistic. A
balance has to be struck between chasing enhance
possibilities as good enough to set the delinquent free
arid chopping the logic of preponderant probability to,
punish marginal innocents. We have adopted these
cautious in analysing the evidence and appraising the
soundness of the contrary conclusions reached by the
courts below. Certainly, in the last analysis reasonable
doubts must operate to the advantage of the appellant. In
India the law has been laid down on these lines long ago.
7. This Court had ever since its inception considered
the correct principle to be applied by the Court in an
appeal against an order of acquittal and held that the
High Court has full power to review at large I the
evidence upon which the order of acquittal was founded
and to reach the conclusion that upon that evidence the
order of acquittal should be reversed. The, Privy,
Council in Sheo Swarup v. King Emperor negatived the
legal basis for the limitation which the several decisions
of the High Courts had placed on the right of the State to
appeal under Section 417 of the Code. Lord Russel
delivering the judgment of the Board pointed out that
there was "no indication in the Code of any limitation or
restriction on the High Court in the exercise of its powers
as an appellate tribunal," that no distinction was drawn
"between an appeal from an order of acquittal and an
appeal from a conviction", and that "no limitation should
be placed upon that power unless it be found expressly
stated in the Code". He further pointed out at p. 404
that, "the High Court should and will always give proper
weight and consideration to such matters as (1) the views
of the trial judge as to the credibility of the witnesses, (2)
the presumption of innocence in favour of the accused, a
presumption certainly not weakened by the fact that he
has been, acquitted at his trial, (3) the right of the
accused lo the benefit of any doubt, and (4) the slowness
of an appellate Court in disturbing a finding of fact
arrived at by a Judge who had the advantage of seeing
the witnesses". In Sanwat Singh & Others v. Sate of
Rajasthan after an exhaustive review of cases decided by
the Privy Council as well as by this Court, this Court
considered the principles laid down in Sheo Swarup's
case and held that they afforded a correct guide for the
appellate court's approach to a case against an order of
acquittal. It was again pointed out by Das Gupta, J.
delivering the judgment of five Judges in Harbans Singh
and Another v. State of Pubjab.
"In many cases, especially the earlier ones the Court has
in laying down such principles emphasised the necessity
of interference with an order of acquittal being based
only on "compelling and substantial reasons' and has
expressed the view that unless such reasons are present
an Appeal Court should not interfere with an order of
acquittal (vide Suraj Pal Singh v. The State, (1952)
S.C.R. 193; Ajmer Singh v. State of Punjab, (1953) S.C.R.
418; Puran v. State of punjab A.I.R. 1953 S.C. 459). The
use of the, words 'compelling reasons' embarrassed some
of the High Courts in exercising their jurisdiction in
appeals against acquittals and difficulties occasionally
arose as to what this Court had meant by the words
'compelling reasons'. In later years the Court has often
avoided emphasis on 'compelling reasons' but
nonetheless adhered to the view expressed earlier that
before interfering in appeal with an order of acquittal a
Court must examine not only questions of law and fact in
all their aspects but must also closely and carefully
examine the reasons which impelled the lower courts to
acquit the accused and should interfere only if satisfied
after such examination that the conclusion reached by the
lower court that the guilt of the person has not been
proved is unreasonable. (Vide Chinta v. The State of
Madhya Pradesh, Criminal Appeal No. 178 of 1959
decided on 18-11-1960 (SC); Ashrafkha Haibatkha
Pathan v. The State of Bombay, Criminal Appeal No. 38
"...... On close analysis, it is clear that the principles laid
down by the Court in this matter have remained the
same. What may be called the golden thread running
through all these decisions is the rule that in deciding
appeals against acquittal the Court of Appeal must
examine the evidence with particular care, must examine
also the reason on which the order of acquittal was based
and should interfere with, the order only when satisfied
that the view taken by the acquitting Judge is clearly
unreasonable. Once the appellate court comes to the
conclusion that the view taken by the lower court is
clearly an unreasonable one that itself is a "compelling
reason" for interference. For, it is a court's duty to
convict a guilty person when the guilt is established
beyond reasonable doubt, no less than it is its duty to
acquit the accused when such guilt is not so established."
8. Now to the facts. The scene of murder is rural, the
witnesses to the case are rustics and so their behavioural
pattern and perceptive habits have to be judged as such.
The too sophisticated approaches familiar in courts
based on unreal assumptions about human conduct
cannot obviously be applied to those given to the
lethargic ways of our villages. When scanning the
evidence of the various witnesses we have to inform
ourselves that variances on the fringes, discrepancies in
details, contradictions in narrations and embellishments
in inessential parts cannot militate against the veracity of
the core of the testimony provided there is the impress of
truth and conformity to probability in the substantial
fabric of testimony delivered. The learned Sessions Judge
as at some length dissected the evidence, spun out
contradictions and unnatural conduct, and tested with
precision the time and sequence of the events connected
with the crime, all on the touchstone of the medical
evidence and the postmortem certificate. Certainly, the
court which has seen the witnesses depose, has a great
advantage over the appellate judge who reads the
recorded evidence in cold print, and regard must be had
to this advantage enjoyed by the trial judge of observing
the demeanour and delivery, of reading the
straightforwardness and doubtful candour, rustic naivete
and clever equivocation, manipulated conformity and
ingenious unveracity, of persons who swear to the facts
before him. Nevertheless, where a judge draws his
conclusions not so much on the directness or dubiety of
the witness while on oath but upon general probabilities
and on expert evidence, the court of appeal is in as good
a position to assess or arrive at legitimate conclusions as
the court of first instance. Nor can we make a fetish of
the trial judge's psychic insight.
9. Let us now sift the evidence from the proper
perspective outlined above avoiding both the exploitation
of every plausible suspicion as militating against the
certitude of guilt and the unjust loading of the dice
against the accused merely because of a conviction
rendered by the High Court.”
17. In the case before us, the admissible evidence, after ignoring the
omissions, relevant to our conclusions, is as under :-
a) The version of the prosecutrix of having suffered injuries
due to the breaking of the bangles is found to be false in view of
there being no medical evidence and no bangle pieces found at
b) No injury or bump was found on the head of the
c) No abrasions, much less injuries, were found on the back
d) No semen stains were found on the petticoat of the
e) No injuries were found on her thighs or legs;
f) No injury was found on her private part and the story of
her vagina suffering injuries because of the forceful offensive
act of the accused, requiring 3 to 4 stitches, is also false;
g) Her story of having slapped the accused was not
supported by medical evidence as there was no slap imprint on
h) No injuries were noticed on the body of the accused or on
his private parts in the backdrop of the version of the prosecutrix
that she forcefully resisted the accused by kicking him with her
legs.
18. The report of the Regional Forensic Science Laboratory
indicates that human semen was found on the underwear of the
accused and human blood was found on the petticoat of the
prosecutrix. PW6, Doctor has explained that as the prosecutrix was
having the third day of her menstrual cycle, such blood stains appear
on the under garments. Though the accused was medically examined
around 10.15 a.m. on 26/03/2010, there was not an abrasion on his
body or any injury to his private part, and, therefore, there was no
evidence of any violence in the alleged intercourse episode between
the accused and the prosecutrix. We are not giving any weightage to
the particular statement of PW6 – Doctor, that the prosecutrix, though
deserted by her husband, after his remarriage, several years ago, was
habituated to sexual intercourse, for the reason that it is immaterial
whether she voluntarily has intercourse with anybody else. It is
important for the law to record that, if the prosecutrix has opposed a
sexual intercourse by any person, her disinclination or her refusal will
tantamount to the male counterpart offending her physically and such
intercourse committed against the will and the desire of the
prosecutrix, would constitute an offence punishable under Section 376
of the IPC.
19. Despite the strenuous submissions of the learned Prosecutor, he
is unable to convince us that though the prosecutrix does not have a
single abrasion on her body and her entire narration of several injuries
as noted above, have been proved to be false, we could still arrive at a
conclusion that the accused and the accused alone, had committed the
offence. The learned Prosecutor is also unable to convince us that the
absence of even an abrasion or any ‘tell tale’ sign of sexual assault,
there was evidence before us to convict the accused.
20. It is well settled that, when an appellate Court deals with an
appeal against acquittal, the presumption of ‘innocent until proven
guilty’, would be even stronger. If the appellate Court has to arrive at
a contradictory finding, it should be absolutely sure on the basis of the
entire evidence available, that, firstly the Trial Court committed a
patent error in delivering a finding of acquittal and secondly, the
evidence available does not leave an iota of doubt in the mind of the
appellate Court that the guilt of the accused is proved beyond any
doubt and that the accused alone and no one else has committed the
crime.
21. The question before us is as to whether, the prosecution has
been able to fully convince us, in the light of the law laid down in
Chandran @ Surendran and another vs. State of Kerala, 1991 Supp
(1) SCC 39, so as to safely draw a conclusion that the appellant and
the appellant alone and none other, has committed the murder. We
may develop a strong suspicion by the evidence before us. However,
the Honourable Apex Court has recently held on 12.02.2021 in the
case of The State of Odisha vs. Banabihari Mohapatra and another,
Special Leave Petition (Crl) No.1156/2021, that suspicion, however
strong it may be, cannot be a substitute for substantive evidence.
Suspicion can never take place of proof and the court cannot base it’s
order of conviction on the basis of suspicion.
22. In Chandran @ Surendran (supra), the Honourable Supreme
Court has held in paragraphs 12 and 13 as under:-
“12. Admittedly, there is no direct evidence connecting the
appellants with the offence. No identification parade
seems to have been conducted although PW 33 has
deposed that he requested for an identification parade.
Further, there is no evidence about the movement of
these appellants near the scene either before or after
the occurrence. Therefore, the inference of guilt of the
appellants is to be drawn from circumstantial evidence
only. It is needless to emphasise that those
circumstances should be of definite tendency pointing
towards the guilt of the appellants and in their totality
must unerringly lead to the conclusion that the offence
was committed by the appellants and none else. The
circumstantial evidence adduced by the prosecution in
(1) The recovery of MOs 1 to 3 said to have been
made in pursuance of the statement of the first accused
to the police.
(2) The evidence of PW 30, the Fingerprint
Expert to the effect that the finger impressions found on
the two glass pieces seized from the scene of the
examination as those of appellants 1 and 2.
13. As the appellants are awarded the extreme penalty of
law only on the above two pieces of evidence, we have
to scrutinise these two circumstantial pieces of
evidence in a very careful, cautious and meticulous
way and see whether this evidence can be accepted and
acted upon to mulct these appellants with this dastardly
crime. The fact that these two murders which are cruel
and revolting had been perpetrated in a very shocking
nature should not be allowed in any way to influence
the mind of the court while examining the alleged
involvement of the appellants. It is worthwhile to recall
an observation of this Court in Datar Singh v. State of
Punjab, [(1975) 4 SCC 272] articulating that (SCC p.
275, para 3) “Courts of justice cannot be swayed by
sentiment or prejudice against a person accused of the
very reprehensible crime ….””
23. In view of the above, this appeal fails and is, therefore,
dismissed.
24. The R & P. be returned to the Trial Court. Muddemal property
may be destroyed after the appeal period is over.
25. Since the learned Advocate for the respondent accused was
appointed through the High Court Legal Services Sub-Committee,
Aurangabad, her fees are quantified at Rs.10,000/-.
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"The Trial Court has used the words 'F*****' and "F******". These words are used in slang language, are treated to be foul words and are utterly disrespectful to women": Bombay High CourtThe Bombay High (Aurangabad Bench) recently pulled up an Additional Sessions Judge and expressed its displeasure as the Judge used slang language and foul words 'utterly disrespectful to women' while recording rape survivor's testimony and later in the Judgment authored by him. The Bench of Justice Ravindra V. Ghuge and Justice B. U. Debadwar sternly remarked, "The Trial Court has...
The Bombay High (Aurangabad Bench) recently pulled up an Additional Sessions Judge and expressed its displeasure as the Judge used slang language and foul words 'utterly disrespectful to women' while recording rape survivor's testimony and later in the Judgment authored by him.
The Bench of Justice Ravindra V. Ghuge and Justice B. U. Debadwar sternly remarked,
"The Trial Court has used the words 'F*****' and "F******". These words are used in slang language, are treated to be foul words and are utterly disrespectful to women."
The Court also noted that though the Marathi version of the testimony of the prosecutrix indicated certain Marathi words used by her, yet the Trial Court repeatedly used objectionable words, while recording the English version of her testimony.
The case before the Court
The Court was hearing an appeal filed by the State challenging the judgment dated 14th August 2012, delivered by the Additional Sessions Judge, Kopargaon, in Sessions Case No.19 of 2010.
The respondent accused was acquitted of the charge of having committed an offence punishable under Sections 376 and 506 of the Indian Penal Code.
The complaint of the prosecutrix was that the accused, who is her cousin father-in-law had committed an offence punishable under Section 376 of the Indian Penal Code.
Court's observations
At the very outset, the Court recorded its 'strong displeasure about the choice of a particular word', which was repeatedly used by the Additional Sessions Judge, Kopargaon (Coram: S. V. Ranpise) while recording the testimony of the prosecutrix, and also in the body of the judgment.
Further, the Court, after taking into account the admissible evidence, concluded that the version of the prosecutrix of having suffered injuries due to the breaking of the bangles is found to be false in view of there being no medical evidence and no bangle pieces found at the spot of the crime.
The Court also observed that no injury or bump was found on her head, no semen stains were found on the petticoat of the prosecutrix and that no injuries were found on her thighs or legs.
The Court also noted that her story of having slapped the accused was not supported by medical evidence as there was no slap imprint on his face or abrasions.
The Court also opined that,
"The Prosecutor was unable to convince it that though the prosecutrix does not have a single abrasion on her body and her entire narration of several injuries as noted above, have been proved to be false, we could still arrive at a conclusion that the accused and the accused alone, had committed the offence."
Further, taking into account Apex Court's recent ruling on 12th February 2021 in the case of State of Odisha vs. Banabihari Mohapatra and another [Special Leave Petition (Crl) No.1156/2021] that suspicion, however strong it may be, cannot be a substitute for substantive evidence.
"Suspicion can never take place of proof and the court cannot base it's order of conviction on the basis of suspicion", remarked the Court.
In view of the above, the appeal failed and was, therefore, dismissed.
Case title - The State of Maharashtra v. Mahadu Dagdu Shinde [Criminal Appeal No.146 of 2014]
Read Judgment
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Mr. Gaurav Agrawal, learned Amicus Curiae has drawn our attention to order dated
29.11.2022 qua the issue of undertrial prisoners who continue to be in custody despite
having been granted the benefit of bail on account of their inability to fulfill the conditions.
In this behalf the report by the NALSA has been placed before us filed on 30.01.2023.
After recording the discussions which have been held, it has been stated in para 5 of the
report that there are 5,000 undertrial prisoners who were in jail, despite grant of bail, out
of which, 2,357 persons were provided legal assistance and now 1,417 persons have
since been released.
One of the main reasons flagged why the accused are in jail despite the grant of
bail is that he may be an accused in multiple cases and is apparently not willing to furnish
bail bonds until he is given bail in all the cases as undertrial custody will be counted in all
the cases.
De hors this, it is pointed out that to ensure that the remaining undertrial prisoners
who are unable to furnish surety or bail bonds due to poverty, NALSA is in the process of
creating a master data of all such undertrial prisoners in excel sheet with all relevant
details, including, reasons for non-release and steps qua persons who are unable to
furnish bail bonds or surety are being taken up with the respective SLSAs/DLSAs and
result would be obtainable in about one or two months’ time.
Learned Amicus Curiae has also drawn our attention to the discussions with Shri
Shashikant Sharma, HOD and Sr. Technical Director of NIC recording that five meetings
were held along with the participation of Shri K.M. Nataraj, learned ASG and Home
Ministry officials. A Standard Operating Procedure (SOP) has been prepared by NIC which
also deals with this aspect. A relevant aspect is that the NIC e-prison software, which is
working in about 1,300 jails in the country, would now have a field where the date of grant
of bail would have to be entered by the jail authorities. If the accused is not released within
seven days of the date of grant of bail, the e-prison software would automatically generate
a flag/reminder and simultaneously the e-mail would be sent to the office of the concerned
DLSA so that the DLSA can find out the reason for non-release of the accused. The SOP
has para 2.4 under the heading “Bailed out but not Released” which facility enables prison
user to access the data of inmates, to assist in identifying inmates who are bailed out but
not released due to some reasons like sureties or pending cases.
Insofar as the discussion with TISS is concerned, some suggestions are stated to
be made but learned Amicus Curiae submits that a more detailed work out of that is
Another issue which has crept up during discussion is whether the Government
would give access to this portal on a protected basis to the Secretaries of the SLSAs and
DLSAs which would facilitate better follow up.
We call upon the Government of India to discuss this issue with NALSA so that
necessary directions, if any, can be passed. Learned ASG would obtain instructions in
that behalf by the next date.
With a view to ameliorate the problems a number of directions are sought. We have
examined the directions which we reproduce hereinafter with certain modifications:
“1) The Court which grants bail to an undertrial prisoner/convict would be required to
send a soft copy of the bail order by e-mail to the prisoner through the Jail Superintendent
on the same day or the next day. The Jail Superintendent would be required to enter the
date of grant of bail in the e-prisons software [or any other software which is being used
by the Prison Department].
2) If the accused is not released within aperiod of 7 days from the date of grant of bail,
it would be the duty of the Superintendent of Jail to inform the Secretary, DLSA who may
depute para legal volunteer or jail visiting advocate to interact with the prisoner and assist
the prisoner in all ways possible for his release.
3) NIC would make attempts to createnecessary fields in the e-prison software so that
the date of grant of bail and date of release are entered by the Prison Department and in
case the prisoner is not released within 7 days, then an automatic email can be sent to
4) The Secretary, DLSA with a view to findout the economic condition of the accused,
may take help of the Probation Officers or the Para Legal Volunteers to prepare a report
on the socio-economic conditions of the inmate which may be placed before the
concerned Court with a request to relax the condition (s) of bail/surety.
5) In cases where the undertrial or convictrequests that he can furnish bail bond or
sureties once released, then in an appropriate case, the Court may consider granting
temporary bail for a specified period to the accused so that he can furnish bail bond or
6) If the bail bonds are not furnished within one month from the date of grant bail, the
concerned Court may suo moto take up the case and consider whether the conditions of
bail require modification/ relaxation.
7) One of the reasons which delays therelease of the accused/ convict is the insistence
upon local surety. It is suggested that in such cases, the courts may not impose the
condition of local surety.”
We order that the aforesaid directions shall be complied with.
IA No. 203407/2022 and IA NO. 203408/2022 have been filed for intervention and
appropriate directions by the National Law University, Delhi through Fair Trial Fellowship
Programme under Project 39A.
We are of the view that instead of looking to the suggestions and directions sought,
more appropriate course of action would be for Shri Gaurav Agrawal, learned Amicus to
look into them on behalf of the NALSA and accordingly make suggestions to us taking
them as inputs.
List the applications along with SMWP(Criminal) No. 4/2021 and SLP(Crl) No.
529/2021 on 28.03.2023.
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The Supreme Court, while hearing the issue of undertrial prisoners who continue to be in custody despite having been granted the benefit of bail, has said that the country's prisons are overburdened by 5000 people every month merely because of their inability to furnish a bail bond. The top court bench comprising Justices Sanjay Kishan Kaul and Abhay S Oka was hearing a Suo Moto Writ Petition that was instituted for the purposes of issuing a comprehensive Policy Strategy for grant of bail. During the hearing, Amicus Curiae Advocate Gaurav Agrawal, while referring to a report submitted by NALSA, stated that, "There are 5000 undertrial prisoners who have been in jail despite grant of bail, out of which 2357 have been provided legal assistance and now 1417 persons have since been released." "This number is only for one and a half month. This number keeps adding on. More people languish," Agrawal further added. One of the main reasons that was flagged by Agrawal as to why accused are in jail despite the grant of bail is that they may be accused in multiple cases and apparently not willing to furnish bail bond until they are given bail in all the cases as undertrial custody will be counted in all the cases. The court after hearing the Amicus and the suggestions submitted, passed seven detailed directions on the issue. One notable guideline is this - "If the bail bonds are not furnished within one month from the date of grant bail, the concerned Court may suo moto take up the case and consider whether the conditions of bail require modification/ relaxation". Separate report on other directions can be read here. The bench observed in the order that, "...to ensure that the remaining undertrial prisoners who are unable to furnish surety or bail bonds due to poverty, NALSA is in the process of creating a master data of all such undertrial prisoners in excel sheet with all relevant details, including, reasons for non-release and steps qua persons who are unable to furnish bail bonds or surety are being taken up with the respective SLSAs/DLSAs and result would be obtainable in about one or two months’ time." The order further stated, "...the NIC e-prison software, which is working in about 1,300 jails in the country, would now have a field where the date of grant of bail would have to be entered by the jail authorities. If the accused is not released within seven days of the date of grant of bail, the e-prison software would automatically generate a flag/reminder and simultaneously the e-mail would be sent to the office of the concerned DLSA so that the DLSA can find out the reason for non-release of the accused." After passing detailed orders, Justice Kaul orally remarked, "See 5000 people have been granted bail but are still in prison. That means the country’s prison are overburdened by 5000 people because of not furnishing of bail bond." Justice Kaul then asked the Additional Solicitor General KM Nataraj, who was present in the court, to, "Keep emphasising to the government that a proactive approach is required in this." "If we declutter the jails, declutter the criminal justice system from such cases so that the system can concentrate on more heinous cases. There are multiple ramifications. Trial takes time. Then government files appeals after appeals," Justice Kaul added. Justice Kaul made the above remarks after he had inquired from the ASG regarding the status of an order order that authorities should consider granting bail to prisoners who have completed 10 years in custody and prematurely releasing those who had completed 14 years in custody. Justice Kaul said, "Some matter I had mentioned to you the issue in one of the orders of 75th year of our Independence, what has happened in that? I am only concerned with the observation I had made in the context of the Azadi Ka Amrit Mahotsav. Has something moved or not moved?" ASG Natraj replied and said, "Yes, it has moved and instructions have bene given, circulars have been issued. However, power is vested with the State governments. It is they who have to implement. We deliberated o that particular issue." Justice Kaul replied and said, "So, we can then next time issue some directions for the States. I wanted to know whether the role which was supposed to be played by you has been fulfilled. If that is then we will issue next stage of directions to the states." "I wanted to know if the Union government has formulated a policy. The we can request the states to follow. Policy in these terms that say upto 7 years or 10 years, whatever, we can be liberal on this issue, and some of them who have undergone a certain time in prison and if they agree to give a bond, finish off those cases. That was the objective. It was two-fold. Declutter the jails and Concentrate on more heinous offences," Justice Kaul added. Natraj replied and said, "We have been working on that and specially after the Hon’ble Court took up the issue the situation has changed. We are pushing for it. We can’t push the state otherwise they will say federalism issue." Justice Kaul then remarked, "On this issue I don’t think they will have any resistance especially if the court has been observing and the court gives a push whether to act. I am sure it’s not something they will not cooperate on. Afterall its a trouble for them also. They are prosecuting x number of cases. It goes on. We can give a little bit of nudge or push wherever required." Recently while hearing the Delhi riots larger conspiracy case, Justice Kaul had said, "We don't believe in unnecessary putting people behind bars." On another occasion, while delivering a lecture in Varanasi, Justice Kaul had recently said that to dispose of the pending cases on bail and remission, some kind of a revolution, an out of the box thinking, was required or it it would take 500 or even 700 years for the judiciary to dispose them.
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