Air (1 398)

2008
AIR 2008
AIR 2008 SUPREME COURT 1 "Muthu v. State"
From : Madras)
Coram : 2 A. K. MATHUR AND MARKANDEY KATJU, JJ.
Criminal Appeal No. 1511 of 2007 (arising out of SLP (Cri.) No. 1242 of
2007), D/- 2 -11 -2007.
Muthu v. State.
(A) Penal Code (45 of 1860), S.300, Exception 1, Exception 4, S.304 - MURDER -
CULPABLE HOMICIDE - Murder - Grave and sudden provocation - Deceased
throwing rubbish in shop of accused - Scuffle ensuing - During its course accused
picking up knife from table top and inflicting injury on chest of deceased -
Throwing waste and rubbish inside house or shop of somebody is certainly a grave
and sudden provocation - Incident occurred in sudden fight and in heat of passion -
Accused entitled to benefit of Exceptions 1 and 4 of S. 300. (Paras 6, 14)
(B) Penal Code (45 of 1860), S.304, Part II - MURDER - CULPABLE HOMICIDE -
Murder - Incident taking place in sudden fight and due to grave and sudden
provocation - Accused inflicting knife injury on chest of deceased - Act thus was
committed with knowledge that it is likely to cause death but without any intention
to cause death or cause such bodily injury as is likely to cause death - Offence
comes under the Part II of S. - 304 IPC. (Para 15)
Cases Referred : Chronological Paras
2006 AIR SCW 3623 : AIR 2006 SC 2659 : 2006 Cri LJ 3640 (Ref.) 13
2006 AIR SCW 4143 : AIR 2006 SC 3010 : 2006 Cri LJ 3899 (Expln.) 9
2002 AIR SCW 403 : AIR 2002 SC 760 : 2002 Cri LJ 1021 (Foll. Pnt. B) 15
2000 AIR SCW 719 : AIR 2000 SC 1876 (Foll. Pnt A) 7
(2000) 10 SCC 307 (Foll. Pnt. A) 7
1997 AIR SCW 497 : AIR 1997 SC 687 : 1997 Cri LJ 831 (Foll. Pnt. A) 15
@page-SC2
AIR 1984 SC 759 : 1984 Cri LJ 478 (Foll. Pnt. B) 15

AIR 1982 SC 126 (Foll. Pnt. B) 15
AIR 1979 SC 1532 : 1979 Cri LJ 1135 (Foll. Pnt B) 15
K. K. Mani, C. K. R. Lenin Sekar, Mayur R. Shah, for Appellant; V. G. Pragasam, S.
Joseph Aristotle, S. Prabhu Ramasubra-manian, for Respondent.
Judgement
1. MARKANDEY KATJU, J. :-Leave granted.
2. This appeal has been filed against the final judgment and order dated 20.7.2005 of a
Division Bench of the Madras High Court in Criminal Appeal No. 818 of 1999.
3. The prosecution case is that on 9.4.1998 at about 8.A.M., PW1 Radha-krishnan, PW3
Sakthivel and PW4 Arumu-gam went to a shop for taking tea. Next to the tea shop, a
waste paper merchant shop was situated. Muthu, the accused (appellant herein) was
working in that shop and after opening the shop he was arranging the articles kept inside
the shop. At that time, the deceased Siva who used to collect waste papers from the
roadside, collected the waste-papers and cardboard boxes and threw them inside the shop
of the accused. On seeing this the accused got angry and shouted at Siva "why do you do
this everyday?" and pulled his hair. The deceased thereupon pushed the accused. Then the
accused took a knife from the top of a table in the shop and stabbed Siva in the chest.
Siva fell down due to this injury and died.
4. The trial court found the appellant guilty under Section 302, IPC and sentenced him to
life imprisonment. The aforesaid conviction and sentence was upheld by the High Court
in appeal. Hence this appeal.
5. We are of the opinion that the case comes under Exception I to Section 300 IPC which
states as under:
"Exception 1. When culpable homicide is not murder. Culpable homicide is not murder if
the offender, whilst deprived of the power of self-control by grave and sudden
provocation, causes the death of the person who gave the provocation or causes the death
of any other person by mistake or accident.
6. We are satisfied that the accused was deprived of the power of self-control by grave
and sudden provocation which led him to commit the offence. If rubbish is thrown into
one's house or shop one would naturally get very upset. It is evident that the accused had
no motive or intention to cause the death of the deceased since the accused was not
carrying the knife from before, and only picked it up during the scuffle with the deceased.
7
. We find support in our view from the decisions of this Court in Kunhayippu vs. State of
Kerala, 2000 (10) SCC 307 as well as in Masumsha Hasanasha Musalman vs. State of
Maharashtra, 2000 (3) SCC 557. 2000 AIR SCW 719
8. The position may have been different if right from the beginning the appellant accused
had been carrying a knife with the intention to attack the deceased. But that is not the
case here.
9
. Learned counsel for the State relied on the decision in Pulicherla Nagaraju vs. State of
A.P., 2006 (11) SCC 444. In that decision itself it has been mentioned in paragraph 29
that whether there was an intention to cause death is to be gathered from several
circumstances, and one of the circumstances mentioned in the said paragraph is whether
the weapon was carried by the accused or was picked up from the spot. If it was carried
by the accused right from the beginning that may be a circumstance to indicate that there
was an intention to cause death if it was used for attacking the deceased on a vital part of
the body. However, when the weapon was not initially in the hand of the accused, but was
picked up from the spot during the altercation, then it cannot be said that it is a case under
Section 302, IPC, rather it is only a case of culpable homicide not amounting to murder
which comes under Section 304, IPC and not under Section 302, IPC. 2006 AIR
SCW 4143
10. The observation of the court in the above decision that "it is for the courts to ensure
that the cases of murder punishable under Section 302, are not converted into offences
punishable under Section 304 Part I/II" cannot, in our opinion, be understood to mean
that the court should somehow try to find out some way of treating the offence to be
under Section 302, IPC. In our opinion, there is a clear distinction between a case of pre-
meditated attack with intention to cause death and a case where there was
@page-SC3
no such pre-meditated intention and death was caused in the heat of the moment or fit of
anger during an altercation or quarrel.
11. No doubt, even in the heat of the moment or fit of anger one should not attack
somebody since human beings are different from animals inasmuch as they have the
power of self-control. Nevertheless, the fact remains that in the heat of the moment and in
a fit of anger people some times do acts which may not have been done after
premeditation. Hence the law provides that while those who commit acts in the heat of
the moment or fit of anger should also be punished, their punishment should be lesser
than that of premeditated offences. It is for this reason that Exceptions I and 4 have been
inserted in Section 300, IPC.
12. We may also refer to Exception 4 to Section 300, IPC which reads as under:
"Exception 4. Culpable homicide is not murder if it is committed without premeditation
in a sudden fight in the heat of passion upon a sudden quarrel and without the offender
having taken undue advantage or acted in a cruel or unusual manner".
13
. The difference between Exception I and Exception 4 to Section 300 has been explained
by this Court in Pappu vs. State of M.P., 2006 (7) SCC 391. In our opinion, the present
case also comes under Exception 4 to Section 300, IPC since the ingredients of Exception
4 are all satisfied in the facts of the present case. 2006 AIR SCW 3623
14. In our opinion, throwing waste and rubbish inside the house or shop of somebody is
certainly a grave and sudden provocation. Everyone wishes to keep his premises neat and
clean, and is likely to loose his self-control in such a situation. The incident in question
occurred in a sudden fight and a heat of passion by a sudden quarrel without the appellant
having taken undue advantage or acted in a cruel or unusual manner. Hence the appellant
is entitled to the benefit of Exceptions I and 4 and the case comes under Section 304,
IPC.
15
. The next question is whether the case will come under the first part or the second part of
Section 304, IPC. In our opinion it will come under the second part in view of the
decisions of this Court in Ramesh Vithalrao Thakre and Anr. v. State of Maharashtra, AIR
1995 SC 1453, Sarup Singh vs. State of Haryana, AIR 1995 SC 2452, Mavila Thamban
Nambiar v. State of Kerala, AIR 1997 SC 687, Sudhir Samanta v. State of West Bengal
and Anr., AIR 1998 SC 289, K. Ramakrishnan Unnithan v. State of Kerala, AIR 1999 SC
1428, Tholan v. State of Tamil Nadu, 1984 (2) SCC 133, Jagpati v. State of Madhya
Pradesh, AIR 1993 SC 1360, Tarsem Singh and Ors. vs. State of Punjab, AIR 2002 SC
760, Hari Ram v. State of Haryana, AIR 1983 SC 185, Randhir Singh v. State of Punjab
AIR 1982 SC 55, Kulwant Rai v. State of Punjab, AIR 1982 SC 126 and Shankar v. State
of Madhya Pradesh, AIR 1979 SC 1532. 1995 AIR SCW 2157
1995 AIR SCW 3619
1997 AIR SCW 497
1997 AIR SCW 4263
1999 AIR SCW 1113
AIR 1984 SC 759
1993 AIR SCW 564
2002 AIR SCW 403
16. In our opinion on the facts of the case the act committed was done with the
knowledge it is likely to cause death but without any intention to cause death or cause
such bodily injury as is likely to cause death. Hence the offence comes under the Part II
of Section 304, IPC.
17. For the reasons given above, the sentence awarded by the courts below is substituted
by the sentence of five years' simple imprisonment and any period of incarceration in jail
which the accused has already undergone shall be deducted from the aforesaid period of
five years. The judgments of the courts below are modified accordingly and the appeal
stands disposed off.
18. If the appellant is on bail, his bail bonds shall stand cancelled. He shall surrender
forthwith to serve out the remaining part of the sentence.
Order accordingly.
AIR 2008 SUPREME COURT 3 "Union of India v. Central Electrical and Mechanical
Engineering Service"
(From : 2006 (131) Delhi LT 636)
Coram : 2 S. B. SINHA AND H. S. BEDI, JJ.
Civil Appeal No. 5086 of 2007 (arising out of SLP (C) No. 2960 of 2007), D/- 1 -11
-2007.
Union of India and Anr. v. Central Electrical and Mechanical Engineering Service Group
A (Direct Recruits) Association, CPWD and Ors.
(A) Constitution of India, Art.16, Art.309, Art.162 - Ministry of Urban Affairs and
Employment (Department of Urban Development) Central Engineering (Civil) Group A
Service Rules (1996), R.3, R.4 - EQUALITY IN PUBLIC EMPLOYMENT - SERVICE
MATTERS - STATE LEGISLATURE - CADRE - Cadre -
@page-SC4
Re-organisation by Executive orders - Rules providing for separate post of Chief.
Engineer for each engineering wing of CPWD - Office order providing that disciplines
referred to therein including Civil and Electrical were to work under control of Chief
Engineer (Civil) or Chief Engineer (Electrical) - Office order thus intends to amalgamate
different cadres - Beyond legal sanction as envisaged by Rules. (Para 9)
(B) Constitution of India, Art.162 - STATE LEGISLATURE - Executive instructions -
Can only fill in gaps not covered by Rules - Cannot be in derogation of statutory rules.
(Para 10)
AIR 2004 SC 3291 (Ref.) 10
AIR 1967 SC 1910 (Ref.) 10
R. Mohan, ASG, Sunil Roy, V. K. Verma, for Appellants; Rajiv Dutta, Sr. Advocate, Uday
Gupta, Dharmendra Kumar Sinha, for Respondents.
Judgement
1. S. B. SINHA, J.:- Leave granted.
2. This appeal is directed against a judgment and order dated 24.5.2006 passed by a
Division Bench of the High Court of Delhi at New Delhi in CM Nos. 9506/2004 and
4393/2006 and W.P.(C) No. 13604/2004 and 13605/2004 dismissing an Order dated
17.12.2003 passed by the Central Administrative Tribunal, Delhi Bench, Delhi in
Original Application No. 864/2003.
3. The basic fact of the matter is not in dispute.
4. Central Public Works Department belonging to the Central Government has its own
Service Rules framed under the proviso appended to Article 309 of the Constitution of
India, known as "Ministry of Urban Affairs and Employment (Department of Urban
Development) Central Engineering (Civil) Group A Service Rules, 1996" (Rules). The
said Rules came into force with effect from 28.10.1996. Whereas Rule 3 of the Rules
provides for "Constitution of the Service", Rule 4 provides for "Grade, strength and its
review". The first schedule appended to the Rules provides for the posts in the Central
Engineering Service, 'Group A'. The hierarchy of the officers has also been provided
therein. Rules govern the field of recruitment as also the cadre strength. Despite the fact
that the terms and conditions of the employees belonging to the said cadre are governed
by the statutory Rules, on or about 1.8.2002, a purported office order was issued, the
relevant part whereof reads as under:-
"To maintain interdisciplinary coordination amongst various disciplines of CPWD, it has
been decided that at zonal level all the 4 disciplines, viz., Civil, Electrical and
Mechanical, Architecture and Horticulture of CPWD shall work under the administrative
supervision and control of the zonal head, i.e. Chief Engineer. The officers of all
disciplines in a zone will exercise their delegated powers and will report to the Chief
Engineer who will further report to the ADG(Region). This system will function under
the following guidelines:-
i) Each zone shall be headed by a CE(C) or CE(E) subject to the conditions there will be
at least one CE(E) heading a zone in each Region."
5. On or about 11.3.2003, another office order bearing No. 34/03 was issued by the
Central Public Works Department stating;
"Sub: Reorganisation of zones in New Delhi Region under ADG (SandP) for unified
control.
In pursuance of Ministry of Urban Development and Poverty Alleviation Office Order
No. 28017/2/2002-EW.1 dated 1.8.2002 and in order to maintain interdisciplinary
coordination amongst various disciplines of CPWD, DG(W) CPWD is pleased to
reorganise the circles and divisions amongst NDZ-1 and NDZ-2 and Electrical Zone,
New Delhi Region on trial basis. The Electrical Zone (NDR) thus reconstituted shall be
known as New Delhi Zone-5.
2. The officers of all disciplines in a zone will exercise their delegated financial,
administrative, technical powers and will report to the Chief Engineer of the zone, who
will further report to the ADG (SandP).
3. The Chief Engineer either Civil or Electrical as zonal heads shall exercise his/her
delegated powers for both civil and electrical works.
4. To facilitate technical sanction of estimates above the delegated powers of SEs, zonal
CEs will have one EE(P) from the other discipline in their SE(P) unit. In exceptional
cases the CE of either discipline can approach the ADG of the region for arranging
technical sanction of estimates of other disciplines."
6. Validity and/or justification of the said orders came to be questioned before the
@page-SC5
Central Administrative Tribunal, Delhi Bench at Delhi. The Tribunal upon considering
the matter at some length, opined that the purported reorganization of the cadre strength
by the appellant herein in terms of the said office orders dated 1.8.2002 and 11.3.2003
were wholly unsustainable. The original application was, therefore allowed. A Division
Bench of the Delhi High Court affirmed the said view of the Tribunal by reason of the
impugned judgment.
7. Mr. R. Mohan, learned Additional Solicitor General appearing on behalf of the
appellant in support of this appeal submitted that the Tribunal and consequently the High
Court committed a serious error in passing the impugned judgments and orders insofar as
they failed to take into consideration that reorganization of cadre was not necessary to be
brought about by amending the Rules. It was contended that as by the said office orders,
neither any change in the cadre strength nor anybody's seniority, pay packet or any other
benefit having been effected, amendment to the Rules was wholly unnecessary.
8. Mr. Rajiv Dutta, learned senior counsel appearing on behalf of the respondent, on the
other hand, submitted that the office orders are clearly ultra vires statutory rules framed
by the Union of India inasmuch as by reason thereof, another post is created which is not
contemplated under the statute.
9. The aforementioned office orders dated 1.8.2002 and 11.3.2003 are not statutory in
character. They even ex-facie do not satisfy the requirements of Article 162 of the
Constitution of India. Indisputably, the disciplines of Civil, Electrical and Mechanical in
the Central Public Works Department are different and distinct. The said office orders
provided that disciplines referred to therein including Civil and Electrical were to work
under the control of the Zonal Head being either a Chief Engineer (Civil) or Chief
Engineer (Electrical). It has not been denied or disputed that the post of Chief Engineer
(electrical or civil), was beyond the purview of the Rules. It is beyond any cavil that there
are posts of Chief Engineer in all the four wings of the Central Public Works Department.
The Rules provides for posts of Civil Engineers. As by reason of the impugned orders,
some sort of amalgamation of different cadres are sought to be made beyond the legal
sanction as envisaged under the Rules, in our opinion, the same is impermissible in law.
Appellants before the High Court have admitted that the Ministry had no intention to
merge the civil and electrical streams which were two distinct services having separate
recruitment rules. The said office orders, thus, clearly interfere with the working of the
statutory rules inasmuch as by reason thereof, a post would be created which would be
designated as a Chief Engineer either Civil or Electrical, which belongs to two different
streams.
10
. It is now a well settled principle of law that an executive order must be passed in
conformity with the Rules. Power of the State Government to issue executive instructions
is confined to filling up of the gaps or covering the area which otherwise has not been
covered by the existing Rules. See Sant Ram Sharma vs. State of Rajasthan and Anr.
[AIR 1967 SC 1910] and D.D.A. and Ors. vs. Joginder S. Monga and Ors. [(2004) 2 SCC
297]. Such office orders must be subservient to the statutory rules. AIR 2004 SC 3291
11. For the reasons aforementioned, there is no merit in this appeal which is dismissed
accordingly. In the facts and circumstances of this case however, there shall be no order
as to costs.
Appeal dismissed.
AIR 2008 SUPREME COURT 5 "Union of India v. S. Vinod Kumar"
(From : Andhra Pradesh)*
-2007.
Union of India and Ors. v. S. Vinod Kumar and Ors.
(A) Constitution of India, Art.16, Art.226 - EQUALITY IN PUBLIC EMPLOYMENT -
WRITS - APPOINTMENT - JUDICIAL REVIEW - Appointment - Eligibility criteria -
Fixation - Prerogative of employer - Judicial review not generally permissible.
It is trite that it is for the employer or the expert body to determine the cut-off marks. The
Court while exercising its power of judicial review would not ordinarily intermeddle
therewith. The jurisdiction of the Court, in this behalf, is limited. The cut-off marks fixed
will depend upon the importance of the subject for the post in
@page-SC6
question. It is permissible to fix different cut-off marks for different categories of
candidates. (Para 11)
(B) Constitution of India, Art.16 - Railway Establishment Code, Vol.II, R.2202 -
RAILWAY - EQUALITY IN PUBLIC EMPLOYMENT - ESTOPPEL - RESERVATION
- Appointment of 'gangman' - Eligibility criteria - Different cut-off marks fixed for
General, SC/ST and OBC categories - Cut-off marks for General candidates - Fixation on
basis of marks obtained by last person in quota - Not arbitrary when lesser marks were
fixed for reserved categories.
Evidence Act (1 of 1872), S.115. (Para 10)
(C) Constitution of India, Art.16, Art.226 - Railway Establishment Code, Vol.II, R.2202 -
EQUALITY IN PUBLIC EMPLOYMENT - WRITS - RAILWAY - Appointment - Post
of gangman in Railways - Quota fixed for OBC, SC/ST candidates - Different cut-off
marks also fixed as eligibility criteria - Quota for SC/ST remaining unfilled - Directions
by Court to fill that quota by open category candidates by lowering cut-off marks - Not
proper.
W. P. No. 10166 of 2001, D/- 17-3-2005, (AP), Reversed.
The Railways advertised certain posts of 'Gangman'. Quota for open and reserved
categories candidates was fixed. Eligibility criteria was also fixed. On selection of
candidates the reserved quota remained unfilled due to unavailability of candidates.
Petition was filed by unsuccessful candidates to appoint them by lowering down of cut-
off marks. The Court pass an order directing the Railways to appoint them by lowering
the cut-off marks against the posts reserved for candidates belonging to Scheduled Castes
and Scheduled Tribes candidates. The order was improper. Even assuming that the
Railways, in view of an earlier circular issued by Railway Board, should have filled up
the unfilled vacancies meant for reserved category candidates by the General candidates,
but then for the said purpose, the General candidates were required to fulfil the eligibility
clause including the cut-off marks fixed therefor.
W. P. No. 10166 of 2001, D/- 17-3-2005 (AP), Reversed. (Paras 10, 13)
It is now a well settled principle of law that even wait listed candidates have no legal
right to be appointed. It is also well settled that those candidates who had taken part in the
selection process knowing fully well the procedure laid down therein were not entitled to
question the same. (Para 18)
2007 AIR SCW 5729 (Rel. on) (Pt. C) 14
2006 AIR SCW 4930 : 2006 Lab IC 4195 17
2006 (11) Scale 5 18
2005 AIR SCW 2120 : AIR 2005 SC 2775 16
2003 AIR SCW 1984 15
2003 AIR SCW 3387 : AIR 2003 SC 2661 : 2003 All LJ 1874 (Rel. on) (Pt. C) 14
2002 AIR SCW 2457 : AIR 2002 SC 2322 : 2002 Lab IC 2168 19
1999 AIR SCW 2395 : AIR 1999 SC 2861 : 1999 Lab IC 2615 (Rel. on) (Pt.A) 11
1993 AIR SCW 2314 16
1991 AIR SCW 1609 : AIR 1991 SC 1607 : 1991 Lab IC 1468 (Rel. on) 18
AIR 1986 SC 1043 : 1986 Lab IC 796 19
Amarendra Sharan, ASG., Mrs. Asha G. Nair, R. C. Kathia and B. Krishna Prasad, for
Appellants; A. K. Ganguli, Sr. Advocate, S. Madhusudhan Babu and Mukesh K. Giri, for
Respondents.
* W. P. No. 10166 of 2001, D/- 17-3-2005 (A.P.)
Judgement
1. S. B. SINHA, J. :- Leave granted.
2. On or about 9-5-1998, 382 vacancies were advertised for the post of 'Gangman' by the
Waltair Division of the then South Eastern Railways (now known as East Coast
Railways). By a corrigendum issued, the right of the authority to increase or decrease the
number of posts projected for recruitment was reserved. The educational qualification for
the candidates was prescribed at 8th class pass. Applicants were required to be physically
strong to carry out the job. They were to pass the requisite physical test. Reservation was
provided for the candidates belonging to Scheduled Castes, Scheduled Tribes and Other
Backward Classes. The number of vacancies was, however, enhanced to 792 posts. The
appropriate authority, however, gave a final clearance for filling up 480 posts pursuant to
the notification dated 9-6-1998. The category wise vacancies were as under :
General : 240
Other Backward Classes : 115
Scheduled Castes : 72
Scheduled Tribes : 53
@page-SC7
3. Out of 480 vacancies, 240 posts were meant for general category candidates. The cut-
off marks were provided for different categories of candidates in the following terms:
General : 71
Other Backward Classes : 56
Scheduled Castes : 20
Scheduled Tribes : 20
4. Indisputably, 426 posts were filled up which were earmarked for candidates belonging
to General Category, Other Backward Classes, Scheduled Castes and Scheduled Tribes.
12 posts reserved for Scheduled Castes and 42 posts reserved for Scheduled Tribes,
however, could not be filled up owing to non-availability of the qualified eligible
candidates. Respondents herein had not been appointed although they had obtained the
qualifying marks specified in terms of the notification dated 9-6-1998. 39 unsuccessful
candidates filed an application before the Central Administrative Tribunal. The said
application was disposed of directing the Railway Administration to consider the question
in regard to lowering of cut-off marks.
5. The competent authority of the Railways, however, took a decision that it would not be
conducive to general merit of the candidates if the cut-off marks were further lowered,
whereafter another application was filed before the Tribunal. The said application was
marked as OA No. 1750 of 2000. By an order dated 2-5-2001, the said application was
dismissed by the Tribunal, inter alia, opining that the appellants could not be directed to
lower down the cut-off marks. A writ petition filed thereagainst by the respondents
herein, however, by reason of the impugned judgment has been allowed, directing the
appellants to appoint them by lowering the cut-off marks against the posts reserved for
candidates belonging to Scheduled Caste and Scheduled Tribe candidates, stating :
"According to Railways, the following is the break-up of vacancies. Out of 480
vacancies, 240 posts are meant for OC category, 72 for SC category, 53 for ST category
and 115 for OBC category. As far as OC and OBC categories are concerned, all the posts
were filled, and for want of eligible candidates the posts meant for SC category were not
filled up. In such a situation, the only way to salvage the issue is to direct the authorities
to appoint the petitioners in the posts of Gangmen in the unfilled vacancies of SC/ST
duly protecting the interests of SC/ST reservation in future selections. Out of 30
petitioners, 1 belongs to SC, 7 OC and 22 OBC. Inasmuch as the vacancy meant for SC
candidate, there is no difficulty for him to be appointed as they are vacancies in SC
category. But as far as OC candidates and OBC candidates are concerned, since their
quota had already been filled up, they should be appointed in the quota meant for SC and
ST vacancies. In the future vacancies, the quota meant for OC and OBC categories the
vacancies unfilled shall be reduced and the same could be allotted to SC and ST
categories, as in this case the petitioners are directed to be appointed from out of the
quota meant for SC and ST categories. By this process the ratio between the reserved
categories will be maintained. Since the petitioners have been languishing for the last
more than seven years, this Court has to pass this order in the interest of justice."
6. Appellants are, thus, before us.
7. Mr. Amarendra Sharan, learned Additional Solicitor General of India appearing on
behalf of the appellants, submitted :
(i) The vacancies reserved for Scheduled Castes and Scheduled Tribes should not have
been directed to be filled up by general candidates.
(ii) Having appeared at the competitive examination for public posts, the respondents had
no vested legal right and, thus, the writ of mandamus issued by the High Court directing
the appellants to fill up the vacancies is illegal.
(iii) Respondents, in any event, having participated in the selection process knowing fully
well to the procedure laid down therefor and having become unsuccessful therein, the
writ application filed by them before the Tribunal was not maintainable.
(iv) The High Court had no jurisdiction to lower the cut-off marks as it was the sole
prerogative of the employer.
8. Mr. A. K. Ganguly, learned Senior Counsel appearing on behalf of the respondents, on
the other hand, contended :
(i) The cut-off mark for the general candidates was specified in an arbitrary manner
inasmuch as the marks obtained by the 240th candidate was made the basis thereof.
@page-SC8
(ii) The Railway Board itself having directed to fill up the unfilled reserved vacancies by
general candidates in terms of their circular letter dated 12-3-1976, the impugned
judgment of the High Court should not be interfered with.
(iii) Despite the fact that the respondent did not have any legal right to be appointed but
as they have been deprived of a valuable right by reason of a mala fide action on the part
of the appellant in so far as they had not followed the aforementioned circular dated 12-3-
1976 issued by the Railway Board, the High Court must be held to have acted in
accordance with law.
9. The fact that the posts of Gangmen were required to be filled up by persons being
physically strong and healthy is not denied or disputed. That would not, however, mean
that the Railway Administration could not have fixed the other criteria therefor. As
indicated hereinbefore, even the educational qualification was prescribed. The mode and
manner of selection, as noticed hereinbefore, was laid down in the aforementioned
notification dated 9-5-1998. It was also laid down that the candidates concerned would
not only must procure the requisite educational qualification but must also pass the
written test followed by an interview as also the physical test.
10. It may be true that the cut-off marks at 71 had been fixed for unreserved candidates
on the basis that marks obtained by the last candidate, i.e. 240th candidate, calculated at
50% of the 480 candidates, but concededly 56 marks were fixed for Other Backward
Classes candidates and 20 marks were fixed for Scheduled Caste and Scheduled Tribe
candidates. Only because the cut-off marks at 71 had been fixed on the basis of the
aforementioned criteria, the same by itself, in our opinion, would not mean that no cut-off
mark had been fixed. The fact that the Railway Administration intended to fix the cut-off
mark for the purpose of filling up the vacancies in respect of the general category as also
reserved category candidates is evident from the fact that different cut-off marks were
fixed for different categories of candidates. We are, therefore, unable to accept the
submission of the learned counsel that the cut-off marks fixed was wholly arbitrary so as
to offend the principles of equality enshrined under Article 14 of the Constitution of
India. The power of the employer to fix the cut-off marks is neither denied nor disputed.
If the cut-off mark was fixed on a rational basis, no exception thereto can be taken.
11. Respondents herein had approached the Tribunal in the year 2000. The Tribunal
directed the appellants to consider this case of lowering of the cut-off marks. An
inference, therefore, can be drawn from the aforementioned fact that the main prayer of
the respondents was that the cut-off marks should be lowered. Appellants admittedly did
not agree to the said proposal. The action of the appellants impugned before the Tribunal
must, therefore, be considered from the viewpoint as to whether it had the requisite
jurisdiction to do so. The Tribunal upheld the contention of the appellant. Once it is held
that the appellants had the requisite jurisdiction to fix the cut-off marks, the necessary
corollary thereof would be that it could not be directed to lower the same. It is trite that it
is for the employer or the expert body to determine the cut-off marks. The Court while
exercising its power of judicial review would not ordinarily intermeddle therewith. The
jurisdiction of the Court, in this behalf, is limited. The cut-off marks fixed will depend
upon the importance of the subject for the post in question. It is permissible to fix
different cut-off marks for different categories of candidates. (See Banking Service
Recruitment Board, Madras v. V. Ramalingam and others (1998) 8 SCC 523).
12. So far as the submission of the learned senior counsel in regard to the Railway
Board's circular letter dated 12-3-1976 is concerned, we may at the outset notice that such
a contention had not been raised before the Tribunal. Respondents herein did not have
any occasion to meet the said contention. In any event, only because in a case of this
nature, the said circular had not been complied with, the same, in our opinion would not
lead to a conclusion that action on the part of the appellants in its entirety was
unwarranted or mala fide in nature.
13. Even assuming that the appellants should have filled up the unfilled vacancies meant
for the reserved category candidates by the general candidates, but then for the said
purpose, the general candidates were required to fulfill the eligibility clause including the
cut-off marks fixed therefor. Respondents admittedly did not do so. The High Court, in
our opinion, committed a serious error in directing the appellants to lower the
@page-SC9
cut-off marks. The cut-off mark 20 was fixed for the Scheduled Caste and Scheduled
Tribe candidates. The same was not meant to be applied to the general category
candidates. The jurisdiction of the appellants to fix different cut-off marks for different
category of candidates has never been questioned and in that view of the matter only
because the Railway Board had issued a circular as far back as in the year 1976 to fill up
the vacancies by unreserved candidates in the event the reserved category of candidates
was not available therefor, in our opinion, the same would not mean that irrespective of
the qualification and performance of general category candidates they were entitled to be
appointed.
14
. It is now a well settled principle of law that even wait-listed candidates have no legal
right to be appointed. (See Ashwani Kumar Singh v. U. P. Public Service Commission
and others (2003) 11 SCC 584 and State of Rajasthan and Ors. v. Jagdish Chopra (2007
(10) SCALE 470). 2003 AIR SCW 3387
2007 AIR SCW 5729
15
. It was for the appellant to decide as to whether the posts were to be dereserved or
carried forward. (See Rajasthan Public Service Commission and Another etc. v. Harish
Kumar Purohit and Others etc. (2003) 5 SCC 480). 2003 AIR SCW 1984
16
. In any view of the matter, the respondents appeared in a competitive examination. The
posts advertised were public posts. They did not have any vested right for appointment. It
is well known that even selected candidates do not have legal right in this behalf. [(See
Shankarasan Dash v. Union of India, 1991 (2) SCR 567 : (1991) 3 SCC 47)], Asha Kaul
(Mrs.) and Another v. State of Jammu and Kashmir and others (1993) 2 SCC 573; All
India SC and ST Employees Association and Another v. A. Arthur Jeen and Others (2001)
6 SCC 380; Food Corporation of India and others v. Bhanu Lodh and others (2005) 3
SCC 618). 1991 AIR SCW 1583
1993 AIR SCW 2314
2001 AIR SCW 1720
2005 AIR SCW 2120
17
. In Pitta Naveen Kumar and others v. Raja Narasaiah Zangiti and others (2006) 10 SCC
261, this Court observed : 2006 AIR SCW 4930
"The legal position obtaining in this behalf is not in dispute. A candidate does not have
any legal right to be appointed. He in terms of Article 16 of the Constitution of India has
only a right to be considered therefor. Consideration of the case of an individual
candidate although ordinarily is required to be made in terms of the extant rules but strict
adherence thereto would be necessary in a case where the rules operate only to the
disadvantage of the candidates concerned and not otherwise......."
18
. It is also well settled that those candidates who had taken part in the selection process
knowing fully well the procedure laid down therein were not entitled to question the
same. [See Munindra Kumar and others v. Rajiv Govil and others, AIR 1991 SC 1607].
[See also Rashmi Mishra v. Madhya Pradesh Public Service Commission and others -
2006 (11) SCALE 5]. 1991 AIR SCW 1609
19
. In Chandra Prakash Tiwari and others v. Shakuntala Shukla and others [(2002) 6 SCC
127], it was held : 2002 AIR SCW 2457
"32. In conclusion, this Court recorded that the issue of estoppel by conduct can only be
said to be available in the event of there being a precise and unambiguous representation
and it is on that score a further question arises as to whether there was any unequivocal
assurance prompting the assured to alter his position or status - the situation, however,
presently does not warrant such a conclusion and we are thus not in a position to lend
concurrence to the contention of Dr. Dhawan pertaining the doctrine of Estoppel by
conduct. It is to be noticed at this juncture that while the doctrine of estoppel by conduct
may not have any application but that does not bar a contention as regards the right to
challenge an appointment upon due participation at the interview/selection. It is a remedy
which stands barred and it is in this perspective in Om Prakash Shukla (Om Prakash
Shukla v. Akhilesh Kumar Shukla and Ors.), a three-Judge Bench of this Court laid down
in no uncertain terms that when a candidate appears at the examination without protest
and subsequently found to be not successful in the examination, question of entertaining a
petition challenging the said examination would not arise." AIR 1986 SC 1043
It was further observed :

"34. There is thus no doubt that while question of any estoppel by conduct would
@page-SC10
not arise in the contextual facts but the law seem to be well settled that in the event a
candidate appears at the interview and participates therein; only because the result of the
interview is not 'palatable' to him, he cannot turn round and subsequently contend that the
process of interview was unfair or there was some lacuna in the process."
20. We are, however, not oblivious that there are certain exceptions to the aforementioned
rules but we are not concerned therewith in the present case.
21. For the reasons aforementioned, the impugned judgment cannot be sustained, which
is set aside accordingly. The appeal is allowed. However, in the facts and circumstances
of the case, there shall be no order as to costs.
Appeal allowed.
AIR 2008 SUPREME COURT 10 "State of Rajasthan v. Parthu"
(From : Rajasthan)*
Criminal Appeal No. 325 of 2002, D/- 13 -9 -2007.
State of Rajasthan v. Parthu.
(A) Evidence Act (1 of 1872), S.32 - DYING DECLARATION - Dying declaration -
Certificate by doctor about fitness of deceased - Absent - But declaration recorded in
presence of doctor - Doctor also attesting thumb impression of deceased taken on her
statement - Refusing to rely on declaration on ground that there could not have any
attestation of such statement - Is too technical view - Order acquitting accused liable to
be set aside.
D.B. Cri. Appeal No. 37 of 1997, D/- 30-4-2001 (Raj.), Reversed. (Para 10)
(B) Penal Code (45 of 1860), S.300 - Evidence Act (1 of 1872), S.106 - MURDER -
EVIDENCE - BRIDE BURNING - Bride burning - Deceased and her husband, living
separately from family - Accused-husband was present in house at time of incident -
Homicidal nature of death not disputed - After incident accused absconded - Burden,
therefor, lies on accused to explain how death took place - In absence of sufficient
explanations Court would be entitled to consider same as circumstances against accused.
D.B. Cri. Appeal No. 37 of 1997, D/- 30-4-2001 (Raj.), Reversed. (Paras 12, 13)
2007 AIR SCW 295 : 2007 Cri LJ 1174 (Rel. on) 13
2006 AIR SCW 5768 : AIR 2007 SC 144 (Rel. on) 14
2003 AIR SCW 4065 : AIR 2003 SC 3609 : 2003 Cri LJ 3892 (Rel. on) 14
1999 AIR SCW 2751 : AIR 1999 SC 2571 : 1999 Cri LJ 4055 11
Aruneshwar Gupta, Naveen Kumar Singh and Shashwat Gupta, for Appellant; Ranbir
Singh Yadav, V. K. Pandita and H. M. Singh, for Respondent.
* D. B. Cri. Appeal No. 37 of 1997, D/- 30-4-2001 (Raj.)
Judgement
S. B. SINHA, J. :- The Officer In-charge of Hamirgarh Police Station received a
telephonic message that one Smt. Lali wife of Parthu, appellant herein has received burn
injuries and was lying in a serious condition. An entry to that effect was made in the
Rojnamcha register whereafter Head Constable P.W.-6 Narayan Singh along with some
other police personnel proceeded to the spot. They took her to Mahatma Gandhi Hospital
at Bhilwara for treatment. The said Narayan Singh recorded her statement which was
treated as dying declaration wherein she disclosed that she was burnt by her husband. On
the basis of the said statement a First Information Report for an offence under Section
307, I.P.C. was recorded by P.W.9- Shankar Singh, SHO Police Station Hamirgarh. He
took up the investigation in relation to the said incident. P.W.9-Shankar Singh also
recorded the statement of the deceased on 8.6.1995.
2. Lali died on 19.6.1995 whereafter Section 302, I.P.C. was added in the First
Information Report.
3. Before learned trial Judge eleven prosecution witnesses were examined. Some of the
prosecution witnesses who were relatives of the deceased turned hostile.
4. Respondent, however, in his cross-examination under Section 313 stated that the death
of Lali was an accidental one, as when
@page-SC11
she had been pouring kerosene in the stove and lit the match stick, suddenly the fire
broke out.
5. Learned trial Judge relying on or on the basis of the aforementioned two dying
declarations, which were marked as Exhibit P-6 and Exhibit P-14 respectively, held the
respondent guilty of commission of the said offence. The High Court, however, on an
appeal having been preferred thereagainst by the respondent was of the opinion that as no
statement had been made by P.W.10-Dr. Avdesh Mathur that the deceased was in a fit
state of mind to make a statement before the Investigating Officer P.W.6.- Narayan Singh
and furthermore in view of the fact that he had not treated the deceased, was sufficient to
arrive at a conclusion that no reliance could be placed on the said dying declarations.
6. The High Court was furthermore of the opinion that keeping in view the fact that the
incident took place on 27.5.1995 and the death took place on 19.6.1995, the dying
declarations of the deceased should have been recorded by a Magistrate.
7. On the finding, the High Court recorded a judgment of acquittal. The State of
Rajasthan, is thus, before us.
8. We may at the outset notice that the High Court itself has proceeded on the basis that
the 'homicidal nature of the death of the deceased is not in dispute'. The fact that she had
died of burn injuries is also not in dispute. The short question which arises for our
consideration is as to whether the aforementioned two dying declarations could be relied
upon or not.
9. We have gone through the said two dying declarations Exhibit P-6 and Exhibit P-14.
Similar statements in regard to nature of offence appear to have been made in the said
two dying declarations; although the dying declaration recorded by the Investigating
Officer-Shankar Singh PW-9 on 8.6.1995 is a bit more detailed one. It has been recorded
by both the Courts below that Dr. Avdesh Mathur PW-10 was present when the dying
declaration (Exhibit P-14) was recorded. It is true that in the said dying declaration, no
certificate to the effect that the deceased was in a fit state of mind to have such statement,
was subscribed but after recording of the dying declaration was over, the Doctor attested
her thumb impression as also her statement before the Investigating Officer.
10. The High Court commented thereupon opining that there could not have any
attestation of such statement. Technically the High Court may be right but what was
meant by P.W.10-Dr. Avdesh Kumar by issuing such a certificate in the dying declaration
was that the statement of the deceased was made by her before the Investigating Officer
in his presence and the same has correctly been recorded by the latter, P.W.10-Dr. Avdesh
Kumar is a Medical Jurist. He himself also had inquired about the incident in question
from the deceased. She had revealed that a quarrel had taken place between the husband
and wife whereafter he had poured kerosene on her and lit the fire.
11. We may notice that P.W.10-Dr. Avdesh Kumar had in his cross-examination
categorically stated :
"No note had been put on the report Exhibit P6 to the effect that deceased is in fit
condition to give statement, but she was in a fit condition to give statement. It is incorrect
to say that the deceased was not in a position to give statement and when she was in the
condition, she was not in her consciousness."
We may notice that in Laxman vs. State of Maharashtra (2002) 6 SCC 710, this Court
opined as under : 2002 AIR SCW 3479
"5. The Court also in the aforesaid case relied upon the decision of this Court in Harjit
Kaur vs. State of Punjab, wherein the Magistrate in his evidence had stated that he had
ascertained from the doctor whether she was in a fit condition to make a statement and
obtained an endorsement to that effect and merely because an endorsement was made not
on the declaration but on the application would not render the dying declaration
suspicious in any manner. For the reasons already indicated earlier, we have no hesitation
in coming to the conclusion that the observations of this court in Paparambaka Rosamma
vs. State of A.P. (At SCC p.701 para 8) to the effect that 1999 AIR SCW 2751
1999 AIR SCW 3440, Para 8
"in the absence of a medical certification that the injured was in a fit state of mind at the
time of making the declaration it would be very much risky to accept the subjective
satisfaction of a Magistrate who opined that
@page-SC12
the injured was in a fit state of mind at the time of making a declaration"
has been too broadly stated and is not the correct enunciation of law. It is indeed a
hypertechnical view that the certification of the doctor was to the effect that the patient is
conscious and there was no certification that the patient was in a fit state of mind
especially when the Magistrate categorically stated in his evidence indicating the
questions he had put to the patient and from the answers elicited was satisfied that the
patient was in a fit state of mind whereafter he recorded the dying declaration. Therefore,
the judgment of this Court in Paparambaka Rosamma vs. State of A.P. must be held to be
not correctly decided and we affirm the law laid down by this Court in Koli Chunilal
Savji vs. State of Gujarat." 1999 AIR SCW 3727
12. It is now a well settled principles of law that a judgment of conviction can be
recorded on the basis of the dying declaration alone subject of course to the satisfaction
of the Court that the same was true and voluntary. For the purpose of ascertaining truth or
voluntariness of the dying declaration, the Court may look to the other circumstances.
Apart from the fact, as noticed hereinbefore, that the homicidal nature of death was not
disputed by the respondent herein and furthermore as he in his statement under Section
313 had raised a positive defence that she died of an accident, we are of the opinion the
High Court adopted a wrong approach. It is not disputed that the deceased and the
appellant were living separately from their family. It has also not been disputed that at the
time when the incident occurred, the respondent was in his house together with the
deceased. It is furthermore not in dispute that after the incident took place, the respondent
was not to be found. He was arrested only on 20-6-1995. If the deceased and the
respondent were together in their house at the time when the incident took place which
was at about 10 O'clock in the night, it was for the respondent to show as to how the
death of the deceased took place.
13
. In the absence of sufficient or cogent explanations in that behalf the Court would be
entitled to consider the same as the circumstances against the accused.(See Raj Kumar
Prasad Tamakar vs. State of Bihar, 2007 (1) SCALE 19). 2007 AIR SCW 295
14
. This Court in a large number of decisions in a case of this nature had also applied the
principles of Section 106 of the Indian Evidence Act.(See State of Rajasthan vs. Kashi
Ram, 2006 (XI) SCALE 440 and State of Punjab vs. Karnail Singh (2003) 11 SCC 271.
2006 AIR SCW 5768
2003 AIR SCW 4065
15. For the reasons stated above, the impugned judgment cannot be sustained. It is set
aside accordingly. The appeal is allowed. The judgment of the learned trial Judge is
affirmed. The respondent who is on bail shall surrender to serve out the remaining
sentence. His bail bonds are cancelled.
Appeal allowed.
AIR 2008 SUPREME COURT 12 "Tama v. State of West Bengal"
(From : Calcutta)
Criminal Appeal No. 1228 of 2007 (arising out of SLP (Cri.) No. 6546 of 2006), D/- 11
-9 -2007.
Tama @ Tamal Mal v. State of W.B.
(A) Criminal P.C. (2 of 1974), S.154 - FIR - F. I. R. - Delay - Police Station situated far
away from place of occurrence - Torrential rains further making it impossible for
informant to reach police station - Substantial explanation for delay. (Para 10)
(B) Constitution of India, Art.134 - APPEAL - MURDER - WITNESS - Criminal appeal
- Interference - Murder case - Veracity of testimony of eye-witness - Not questioned in
cross- examination - Conviction based by lower Courts on testimony of eye-witnesses -
Not liable to be interfered with - Fact whether bloodstains collected from place of
occurrence had been sent for chemical examination or not, or weapon of offence (knife)
was recovered or not - Not of much importance. (Para 12)
Anil Kumar Karnwal (A. C.) and Altaf Hussain, for Appellants; Tara Chandra Sharma
and Kishan Datta, for Respondents.
Judgement
JUDGMENT :-Leave granted.
2. Sole appellant is before us being aggrieved by and dissatisfied with the
@page-SC13
judgment of conviction and sentence dated 6-3-2006 passed by a Division Bench of the
Calcutta High Court in Criminal Appeal No. 191/2002 whereby and whereunder the
appeal preferred by the appellant herein from a judgment of conviction and sentence
dated 1-2-2002 passed by the Additional District and Sessions Judge, Jangipur,
Murshidabad, in Sessions Case No. 49/99/Sessions Trial No.3 of 2000, convicting the
appellant for commission of offence under Section 302 of the Indian Penal Code and
sentencing him to rigorous imprisonment for life and a fine of Rs. 2000/-, was dismissed.
3. The occurrence took place at about 1.30 p. m. on 29th September, 1990 in a village
known as Jindighi in the District of Murshidabad. The case of the prosecution is that the
deceased Alimat alias Aliul Zaman, younger brother of the first informant Badiuzzaman
(PW-1), along with one Samir Seikh (PW-2) had gone to the said village for purchasing
paddy. He did not find any paddy and walked around with the appellant in that village.
While returning home along the western side of the village when he reached near the
house of one Surath Dewan (PW-4), Surath Dewan began talking with him. One Samir
Seikh (PW-2) was also with the appellant at that time. When PW-2 Samir Seikh had
walked about 60 cubits away from the deceased, he met Giyasuddin who was coming
from the opposite direction. PW-2 stated that when he looked behind, found that although
the appellant and the deceased were walking together, the appellant suddenly became
agitated and stabbed the deceased on his chest with a knife.
4. On being informed of the said incident, the first informant Badiuzzaman (PW-1) went
to the said village. Indisputably the first information report was lodged at 0615 hours on
30th September, 1990.
5. The prosecution in support of its case, besides examining the first informant
Badiuzzaman (PW-1), also examined Samir Seikh (PW-2) and Gias Seikh (PW-3) who
were the eye-witnesses to the occurrence.
6. As noticed hereinbefore, the learned Trial Judge as also the High Court relied on the
testimonies of the said eye-witnesses PW-2 and PW-3 and convicted the appellant for
commission of an offence under Section 302 of the IPC.
7. Learned counsel appearing on behalf of the appellant in support of this appeal, would,
inter alia, submit that the learned Trial Judge and consequently the High Court committed
an error in passing the judgment of conviction and sentence as; (i) the First Information
Report was lodged after considerable delay; (ii) the Investigating Officer could not
collect any bloodstains from the place of occurrence as on his own saying by the first
informant (PW-1) that there was heavy torrential rains; (iii) the weapon of attack, namely,
knife was not recovered.
8. We have been taken through the evidence of PW-1, PW-2 and PW-3 as also the
evidence of Dr. S. K. Chakrabarty (PW-9). The fact that the deceased met a homicidal
death is not in dispute. From the evidence of the Doctor (PW-9), who conducted the post-
mortem examination, it appears that following injuries were found on the person of the
deceased:
(1) One punctured injury - (stab wound) on the right side of the chest in its sixth
intercostals space, cutting sixth rib 2½" x chest cavity deep.
(2) One stab wound on the left lateral side of the chest in its fifth intercostals space.
Blood in chest cavity.
9. PW-1, the informant was not an eye-witness. He was informed about the occurrence by
PW-2. PW-2 in his evidence has categorically stated that when they were going together,
he walked ahead of the deceased and was talking with one Giyasuddin who had been
coming from opposite direction. When he looked behind he found that the appellant had
stabbed the deceased with a knife on his chest and he had been fleeing away. PW-3 in his
deposition substantially corroborated the statement of PW-2 stating that while he was
talking to Samir Seikh, Alimat (the deceased) was standing about 60 cubits away from
him near the house of Surat Dewan, the incident occurred and he saw the appellant
stabbing the deceased, whereafter the appellant fled away.
10. The submission of the learned counsel for the appellant that the First Information
Report was lodged after some delay is not of much substance. It has been stated by PW-1
first informant in his deposition before the Court that as there was torrential rains, he
could not go to the police station that day. We may also place on record that the police
station is situate at a distance of about 21 kilometres from the place of occurrence.
@page-SC14
11. We may furthermore notice that the veracity of the testimony of PW-2 had not been
questioned in the cross-examination. There has hardly been any cross-examination of the
said witnesses. Except making some stray suggestions that the appellant did not stab the
deceased, no other question in regard to the veracity of his statement had been put.
Nothing has elicited by the defence from the cross-examination of PW-2.
12. When the testimonies of two eye-witnesses had been believed by the learned Trial
Judge as also by the High Court and in view of the fact that we did not see any reason to
differ with the findings of the two Courts, in our opinion, the fact whether the bloodstains
collected from the place of occurrence by the Investigating Officer had been sent to the
Forensic Expert for chemical examination or not, pales into insignificance. We are
furthermore of the opinion that whether the knife was recovered or not is also not of
much importance.
13. Our attention was drawn to the statement of Dr. Chakrabarty (PW-9) to the fact that
according to the said witness, the injury suffered by the deceased could be caused if
anybody falls on iron railing. Such a statement made by PW-9 does not lead us anywhere.
It was not the case of the defence that there was any iron railing or the deceased had
fallen on any iron railing. Even such a question was not put to PW-2 and PW-3 in the
cross examination.
14. For the aforementioned reasons, we are of the opinion that there is no merit in this
appeal. It is dismissed accordingly.
Appeal dismissed.
AIR 2008 SUPREME COURT 14 "Netraj Singh v. State of M.P."
(From : Madhya Pradesh)*
Coram : 2 Dr. A. PASAYAT AND R. V. RAVEENDRAN, JJ.
Criminal M.P. No. 10384 of 2006 in Criminal Appeal No. 1006 of 2006, D/- 22 -3 -2007.
Netraj Singh v. State of M.P.
Criminal P.C. (2 of 1974), S.378 - APPEAL - APPEARANCE - HIGH COURT - Appeal
against acquittal - Appeal heard in absence of counsel of accused - Non-appearance of
counsel due to mistake in cause list - Order reversing acquittal liable to be set aside -
Matter remitted to High Court for fresh considerations.
Criminal Appeal No. 741 of 1992, D/- 2-5-2006 (M.P.), Reversed. (Paras 5, 6)
R. P. Gupta, Sr. Advocate, Parmanand Gaur, Jamshed Bey, for Appellant; Ms. Vibha
Datta Makhija, for Respondent.
* Cri. Appeal No. 741 of 1992, D/- 2-5-2006 (MP).
Judgement
Dr. ARIJIT PASAYAT, J. :- Challenge in this appeal is to the judgment rendered by a
Division Bench of the Madhya Pradesh High Court reversing the order of acquittal
passed by the trial Judge i.e. learned Additional Sessions Judge, Narsinghpur. Appellant
was tried for alleged commission of offences punishable under Section 302 read with
Section 149 of the Indian Penal Code, 1860 (in short the 'IPC'). The trial Court found the
evidence to be inadequate and held the accused-appellant not guilty and accordingly
directed the acquittal.
2. The State preferred an appeal questioning the said order of acquittal. It appears that the
matter was listed for hearing on 1.5.2006. There was no appearance on behalf of the
present appellant who was the respondent in the appeal before the High Court when the
matter was taken up for final hearing. The High Court proceeded to hear the appeal in the
absence of learned counsel and reversed the order of acquittal and held the appellant
guilty of charged offences.
3. It is the stand of learned counsel for the appellant that during the pendency of the
appeal the appellant filed an application for permission to change the counsel and sought
permission to engage one Mr. Ashutosh Singh, Advocate to appear on his behalf in place
of Mr. Anil Nima who was earlier appearing at the time of hearing. By order dated
31.1.2005 the application was allowed and the Court granted permission to Mr. Ashutosh
Singh to appear on behalf of the appellant in place of earlier counsel. But in the cause list
for the concerned day in respect of the appeal, the name of earlier counsel appeared.
According to learned counsel for the appellant in view of the aforesaid position, the
appellant was unrepresented.
4. Learned counsel for the respondent did not dispute the factual position as stated by the
appellant.
@page-SC15
5. Since the name of learned counsel who had been permitted to appear on behalf of the
present appellant was not reflected in the cause list, obviously the appellant has been
prejudiced. This is a case where the order of acquittal passed in favour of the appellant
has been reversed by the impugned judgment of the High Court.
6. In the aforesaid circumstances, we set aside the order of the High Court and remit the
matter for fresh consideration. To avoid unnecessary delay, let the parties appear before
the High Court on 13th April, 2007 so that appropriate orders can be passed by the
concerned bench. The name of Mr. Ashutosh Singh who was permitted to appear on
behalf of the present appellant by order dated 31.1.2005 shall be indicated in the cause
list and not the name of learned counsel who was earlier appearing. We make it clear that
by remitting the matter to the High Court for fresh consideration we have not expressed
any opinion on the merits of the case.
7. The appeal is allowed to the aforesaid extent.
Appeal allowed.
AIR 2008 SUPREME COURT 15 "Central Bank of India v. Madan Chandra Brahma"
(From : 2001 (1) Gauhati LR 540)
Coram : 2 K. G. BALAKRISHNAN, C.J.I., AND P. K. BALASUBRAMANYAN, J.
Civil Appeal No. 5786 of 2000, D/- 22 -8 -2007.
Central Bank of India and Ors. v. Madan Chandra Brahma and Anr.
(A) Banking Regulation Act (10 of 1949), S.45 - Central Bank of India (Officers) Service
Regulations (1979), Regn.19 - BANKING - SERVICE MATTERS - RETIREMENT -
Retirement age - 60 years for officers recruited before appointed date - Recruits joining
appellant bank on amalgamation - Cannot claim that his date of recruitment in appellant
bank is date of his initial recruitment in amalgamating bank - Cannot claim benefit of
retirement at 60 years.
2001 (1) Gauhati LR 540, Reversed.
The service Regulations of appellant bank provides for 60 years as age of retirement for
officers recruited/promoted before 19-7-1969 or promoted after 1969. The respondent
employee entered bank service in Gauhati Bank prior to 19-7-1969 he was promoted as
an officer after that date. The Gauhati Bank amalgamated with Purbanchal Bank. The
Purbanchal Bank amalgamated with appellant bank on 29-8-1990, well after 19-7-1969.
Strictly speaking, respondent was not recruited in the appellant Bank if the expression
'recruited' occurring in the Regulation is literally construed. But obviously the expression
includes those who have become officers of the appellant Bank by way of amalgamation
or merger. Here, the merger took place only on 29-8-1990, long after 19-7-1969. In this
situation, it is clear that respondent could be deemed to have been recruited to the service
of the appellant Bank only after 19-7-1969 and would not get benefit of 60 years.
2001 (1) Gauhati LR 540, Reversed. (Para 6)
Cl. 10 of Notification sanctioning amalgamation provides that employees like the
respondent are deemed to have been appointed by the appellant Bank on the same terms
and conditions of service as were applicable to them before the close of business on 14-7-
1990. The right to be treated on a par with the employees of the appellant Bank is one
thing, but the right to insist that the employee must be deemed to have become an
employee of the appellant Bank even before the amalgamation is another. Even S. 45 (5)
(i) of the Act, gives protection only as regards remuneration and as to terms and
conditions of service. (Para 7)
Even though, respondent may carry his date of appointment in Gauhati Bank for the
purpose of service benefits to the extent specified, the same does not extend to supporting
a claim that he must be deemed to have been recruited in the appellant Bank prior to 19-
7-1969. (Para 8)
(B) Constitution of India, Art.142 - SUPREME COURT - RETIREMENT - Power to do
complete justice - Exercise of - Bank Officer raising dispute about age of retirement -
Divergence in views of High Court - In circumstances of case direction given to pay Rs. 1
lac as ex gratia to bank officer - Supreme Court further clarified that direction issued not
to be precedent. (Para 10)
@page-SC16
AIR 1987 SC 1706 : 1987 Lab IC 1327 9

Sunil Murarka, Dinesh Mathur, M/s. J. B. Dadachanji and Co., for Appellants; Manoj
Goel, Shurodeep Roy, Wajiih Shafiq, Rahul Agarwal, for Respondents.
Judgement
1. P. K. BALASUBRAMANYAN, J. :-On 9.6.1969, Respondent No. 1 was appointed
temporarily as an Assistant in Gauhati Bank. On 19.7.1969, the Central Bank (hereinafter
referred to as "the appellant Bank") along with other banks was nationalized. As per the
relevant Regulation, the age of superannuation was fixed as 58 years in all Nationalized
Banks including the appellant Bank. On 1.8.1975, the Gauhati Bank was merged with the
Purbanchal Bank. The Scheme of Amalgamation between the Gauhati Bank and the
Purbanchal Bank was not brought on record. Suffice it to say, that the age of
superannuation in the Purbanchal Bank was also 58 years. Respondent No. 1, who had
meanwhile been confirmed in the Gauhati Bank, had been promoted on 1.7.1975 as an
officer in that Bank. On amalgamation, respondent No. 1 thus became an officer of the
Purbanchal Bank with effect from 1.8.1975, the age of superannuation being 58 years.
2. On 29.8.1990, the Purbanchal Bank merged with the appellant Bank under a Scheme
of Amalgamation under the Banking Regulation Act, 1949. The Appellant Bank was to
frame Regulations with a view to bring the employees of Purbanchal Bank on a par with
those of the Appellant Bank. On 6.5.1991, the appellant Bank, in terms of clause 11 of the
Scheme of Amalgamation, fixed the pay and other service conditions of officers and
employees of the erstwhile Purbanchal Bank and made the Central Bank of India Service
Regulations 1991 applicable to them with effect from 1.4.1991. Respondent No. 1, whose
date of birth had been recorded as 1.8.1934, was to attain the age of 58 years by
31.7.1992. On 17.7.1992, the appellant Bank informed respondent No. 1 that he would be
reaching the age of superannuation on 1.8.1992. Respondent No. 1 by his reply dated
23.7.1992, sought to dispute his date of birth. That apart, he also claimed that he would
retire not on attaining the age of 58 years but only on the attaining the age of 60 years, as
per Regulation 19 of the Service Regulations 1979 on the basis that his original
appointment in the Gauhati Bank was on 9.6.1969 and hence he was entitled to continue
in service of the appellant Bank, till he attained the age of 60 years. The appellant Bank
did not accept this stand of respondent No. 1 and retired him on his attaining the age of
58 years.
3. Respondent No. 1 approached the High Court challenging his being retired on
attaining the age of 58 years and, of course, also raising an issue about his date of birth.
The learned single judge held that there was no merit in the challenge to the date of birth
recorded in the records of the Bank. He further held that respondent No. 1 was entitled to
continue in service only till he attained the age of 58 years in the face of the Regulations.
The learned single Judge, hence, dismissed the Writ Petition. Respondent No. 1 filed an
appeal. The Division Bench of the High Court held that even though the age of
superannuation in the entry Bank, the Gauhati Bank, was 58 years and continued to be so
until its amalgamation with the Purbanchal Bank and the age of retirement in the
Purbanchal Bank was also 58 years, since Respondent No. 1 must be deemed to be an
employee of the Central Bank right from the inception, he was entitled to continue in
service until he attained the age of 60 years. It was reasoned that respondent No. 1 must
be taken to be an officer recruited in the appellant Bank prior to 19.7.1969 but promoted
as an officer on or after 19.7.1969 in terms of the Regulations of the appellant Bank and
entitled to continue till he attained the age of 60 years. Thus, setting aside the decision of
the learned Single Judge, the Division Bench of the High Court allowed the Writ Petition
and taking note of the fact that respondent No. 1 had attained the age of 60 years as on
the date of the judgment, directed the appellant Bank to pay within the time fixed by that
court, all the arrears of salary and other allowances as admissible to respondent No. 1, if
he were allowed to continue in service up to the age of 60 years.
4. Feeling aggrieved by this decision, the appellant Bank along with its officers has filed
this appeal. The Union of India has been impleaded as Respondent No. 2.
5. Regulation 19 of the Central Bank of India (Officers) Service Regulations, 1979 to the
extent it is relevant reads:
"(1) Rules for age of retirement. The age of retirement of an officer in the Bank on or
after the appointed date be determined as under-
@page-SC17
1.1 An officer employee of the Bank recruited/promoted prior to 19th July, 1969 shall
retire on completion of 60 years of age.
1.2 An Officer employee of the Bank recruited prior to 19th July, 1969 but promoted as
an officer on or after 19th July, 1969 shall retire on completion of 60 years of age.
1.3 An officer employee of the Bank recruited whether as an Award Staff or as an officer
employee on or after 19th July, 1969 shall retire on completion of 58 years of age"
Whereas the case of the appellant Bank is that clause 1.3 of Regulation 19 is attracted
since respondent No. 1 became an employee of the Bank only after 19.7.1969 and must
be taken to be an employee recruited after 19.7.1969, the claim of respondent No.1 is
that, since he was recruited to the Gauhati Bank prior to 19.7.1969 and promoted as an
officer after 19.7.1969 in the Gauhati Bank, he must be taken to have been recruited to
the appellant Bank prior to 19.7.1969 and was entitled to continue in service till he
attained the age of 60 years in terms of clause 1.2 of the Regulation. While the learned
single Judge held that clause 1.3 would apply, the Division Bench has taken the view that
clause 1.2 of the Regulation 19 would apply.
6. On a plain understanding of the factual situation, it appears to us that respondent No. 1
could be taken to have become an officer of the appellant Bank only on the amalgamation
of the Purbanchal Bank with the appellant Bank. Admittedly, that was on 29.8.1990, well
after 19.7.1969. Strictly speaking, respondent No. 1 was not recruited in the appellant
Bank, if we literally construe the expression 'recruited' occurring in the Regulation. But
obviously the expression includes those who have become officers of the appellant Bank
by way of amalgamation or merger. Here, the merger took place only on 29.8.1990, long
after 19.7.1969. In this situation, it is clear that respondent No. 1 could be deemed to
have been recruited to the service of the appellant Bank only after 19.7.1969. If so, it
would be clause 1.3 of Regulation 19 that would apply and not clause 1.2 of that
Regulation. We may also notice that there is nothing inequitable or unjust in the result
thus reached, since the age of superannuation insofar as respondent No. 1 and those
similarly situated were concerned, was 58 years both in Gauhati Bank, the entry Bank
and the Purbanchal Bank with which the Gauhati Bank merged on 1.8.1975.
7
. Chairman, Canara Bank, Bangalore v. M.S. Jasra and Ors., (1992 (2) SCR 68) relied on
was a case where an employee of Lakshmi Commercial Bank, which came to be
amalgamated with Canara Bank, claimed that he was entitled to continue in service of the
Canara Bank until he attained the age of 60 years, since that was the age of
superannuation in the Lakshmi Commercial Bank of which he was the employee, prior to
its amalgamation. His claim was rejected by the Canara Bank and he challenged that
decision in a writ petition in the High Court. The High Court allowed the Writ Petition
and held that the employee was entitled to continue until he attained the age of 60 years.
It was contended on behalf of the Canara Bank that on the basis of Section 45 of the
Banking Regulation Act, 1949 and the consequent amalgamation of Lakshmi
Commercial Bank with Canara Bank, the service conditions under Lakshmi Commercial
Bank would not be available to the employee; and that the terms and conditions of
service applicable to employees of corresponding rank and status in Canara Bank would
only apply. This Court upheld the contention of the Canara Bank and held that the
employee became an employee of Canara Bank and was, therefore, entitled only to the
right given by proviso (ii) to clause (i) of sub-section (5) of Section 45 of the Banking
Regulation Act, 1949 which entitled him to the same terms and conditions of service as
employees of the corresponding rank or status in Canara Bank. Age of superannuation of
the employees in Canara Bank being 58 years only, the employee could not claim to retire
at the age of 60 years. In the case on hand, the age of superannuation both in the Gauhati
Bank and the Purbanchal Bank, which subsequently got amalgamated with the appellant
Bank, was only 58 years. The notification sanctioning the amalgamation under Section
45(7) of the Banking Regulation Act is dated 29.8.1990. Clause 10 provides that
employees like the respondent are deemed to have been appointed by the appellant Bank
on the same terms and conditions of service as were applicable to them before the close
of business on 14.7.1990.They were to be granted the same pay as employees of the
appellant Bank, were to hold office on the same terms and conditions of 1992 AIR
SCW 982
@page-SC18
service that are applicable to the employees of the appellant Bank. The communication
from the central office dated 6.5.1991 relating to pay and other conditions of service of
such officers, by paragraph 6, has elaborately provided for the reckoning of their prior
services in the Purbanchal Bank on matters specified herein. It does not contemplate the
treating of the employee as having joined the appellant Bank on the day the employee
joined the Purbanchal Bank. Thus, the scheme adopted, worked and accepted by all, does
not provide for treating such an employee as having entered the service of the appellant
Bank even prior to the amalgamation, except for the purposes specified. If at all, the Pay
and other service conditions of officers of the erstwhile Purbanchal Bank Limited dated
6.5.91 gives an indication, it is that the original date of appointment has relevance only
for purposes such as provident fund, gratuity, for sanction of loans, etc. It has to be
noticed that in the matter of placement in the appellant bank, the service of one and a half
years in the Purbanchal Bank has to be treated as service for one year only in the
appellant bank. That resolution heavily relied on by the Division Bench of the High Court
only provides that officers like Respondent No.1 would be governed by the Central Bank
of India (Officers) Service Regulations, 1979 with effect from 1.4.1999. The fact that the
regulation had been made applicable, would not mean that such officers must be taken to
have been recruited from the date of their entry in the Purbanchal Bank. The applicability
of the Regulations with effect from 1.4.1991 is subject to exceptions provided thereunder.
It is in that context that the non-reckoning of service for one year in Purbanchal Bank as
equivalent to service of one year in the appellant bank assumes significance. In this
situation, while applying Regulation 19, it is not possible to uphold the plea that the
respondent should be taken to have been recruited to the appellant bank prior to
19.7.1969 so as to attract paragraph 1.2 thereof. The right to be treated on a par with the
employees of the appellant Bank is one thing, but the right to insist that the employee
must be deemed to have become an employee of the appellant Bank even before the
amalgamation is another. It may be noted that clause (i) of sub-section (5) of Section 45
of the Banking Regulation Act, 1949 has only provided that an employee, such as the
respondent, had the right to get the same remuneration and to have the same terms and
conditions of service which they were getting or by which they were being governed
immediately before the date of the order of moratorium. The right to be treated on a par
with the employees of the appellant Bank cannot extend to a right to be treated as having
entered the service of the appellant Bank even before the very amalgamation. The
decision referred to above also shows that it is the age of superannuation in the transferee
Bank that would govern and the age of superannuation in the transferee Bank subsequent
to 19.7.1969, is only 58 years.
8. As we have noticed earlier, the age of superannuation, when respondent No. 1 joined
service in the Gauhati Bank was 58 years and when that Bank merged with the
Purbanchal Bank, it continued to be 58 years. As far as we can see, there is nothing in the
Regulations or the Resolution which would enable respondent No. 1 to claim that he was
entitled to continue until the age of 60 years when the age of superannuation of even an
officer originally recruited to the appellant Bank after 19.7.1969 was only 58 years. Even
though, respondent No. 1 may carry his date of appointment in Gauhati Bank for the
purpose of service benefits to the extent specified, the same does not extend to supporting
a claim that he must be deemed to have been recruited in the Central Bank prior to
19.7.1969. We are, therefore, of the view that the High Court was in error in holding that
respondent No. 1 was entitled to continue in service in the appellant Bank till he attained
the age of 60 years and was entitled to monetary benefits on that basis. On a plain reading
of Regulation 19 in the context of the materials available, we are satisfied that respondent
No. 1 was bound to retire on attaining the age of 58 years. The learned single Judge was,
therefore, justified in dismissing the Writ Petition. The Division Bench was not justified
in allowing it.
9
. We may notice here that in B.S. Yadav and another vs. Chief Manager, Central Bank of
India and others (1987 (3) SCC 120) this Court upheld the rule providing for different
retirement ages for the employees recruited by the Central Bank before its nationalization
and for those recruited to the Bank AIR 1987 SC 1706
@page-SC19
after its nationalization. The age of superannuation of the former was 60 years and of the
latter only 58 years. When this is the position and the date of retirement is 58 years after
nationalization of the bank we find no reason to hold that those who came to the bank
after nationalization by way of amalgamation should stand on a better footing than the
employees recruited to the Central Bank itself after nationalization.
10. Having held on law that the respondent is not entitled to the relief claimed by him,
we feel that some compensation should be directed to be paid to him, in the
circumstances, in exercise of our jurisdiction under Article 142 of the Constitution of
India. The respondent, we notice, was fighting on a question of interpretation of the
Regulation of the appellant bank and has remained in court for a considerable time.
Taking note of the divergence in the views of the High Court, our conclusion and the
circumstances of the case, we feel that it would be appropriate to direct the appellant to
pay a sum of Rs.1 lakh to the respondent ex gratia. We clarify that the direction is not
intended to be a precedent in any manner.
11. We, therefore, allow this appeal and setting aside the decision of the High Court
dismiss the Writ Petition filed by respondent No. 1 in the High Court. We direct the
appellant to pay a sum of Rs.1 lakh to Respondent No.1 ex gratia within three months
from today. In the circumstances, we direct the parties to suffer their costs here and in the
High Court.
Appeal allowed.
AIR 2008 SUPREME COURT 19 "Nallapati Sivaiah v. Sub-Divisional Officer, Guntur,
A. P."
(From : Andhra Pradesh)
Coram : 2 R. V. RAVEENDRAN AND B. SUDERSHAN REDDY, JJ.
Nallapati Sivaiah v. Sub-Divisional Officer, Guntur, A. P.
(A) Penal Code (45 of 1860), S.300 - Evidence Act (1 of 1872), S.32 - MURDER -
DYING DECLARATION - Murder - Two dying declarations one recorded by Police
Officer and another by Magistrate - Deceased received 63 injuries - Unimpeached
evidence of Forensic Expert raised doubt as to fit condition of victim to make voluntary
and truthful statement - Doctor present at time of recording of both dying declarations not
examined - Conflict and inconsistency between two dying declarations - Accused, held,
entitled to benefit of doubt.
Cri. Appeal No. 193 of 2003, D/- 30-3-2005 (A.P.), Reversed.
In the instant case, three accused including the appellant-accused chased the deceased
and attacked him with knives causing multiple injuries leading to his death. The sub-
Inspector of Police reached the scene of offence by 5.30 p.m. and found the injured
(deceased) on the road. He shifted him to General Hospital. At about 6.00 p.m., Police
Inspector recording a Dying Declaration in which the deceased implicated the appellant
and four others. That another dying declaration was recorded by the 6th Additional
Magistrate which commenced at 6.35 p.m. The victim succumbed to the injuries and died
at about 9.30 p.m. on the same day in the hospital. Professor and Doctor of Forensic
Medicine conducted the post-mortem on examination found as many as 63 injuries on the
body of the deceased. He expressed his opinion that the cause of death was due to
multiple injuries. He found diffused subarchanoid haemorrhage present all over the brain
which normally results in patient going into coma. He also expressed his opinion that the
deceased must have died within one or two hours after receiving the injuries. There is no
evidence and details of any treatment administered to the victim. Casualty Doctor, first
noticed the victim dead at 9.30 p.m. There is no positive evidence as to when the victim
died even though he was admitted into the hospital with multiple injuries.
Held, the cumulative factors and surrounding circumstances make it impossible to rely
upon the dying declarations. These are the circumstances in which the evidence of Doctor
and Professor of Forensic Medicine cannot be ignored. It is not a question of choosing
between the eye-witness account as regards the condition of the victim to make a
statement on the one hand and the evidence of the Professor and Doctor of Forensic
Medicine. The conflict and inconsistency between the two dying declarations and the
evidence of the Forensic Expert which remained unimpeached raises a very great
suspicion in the mind of the Court. It is the duty of the prosecution to establish the charge
against the accused beyond reasonable doubt. The benefit of doubt must
@page-SC20
always go in favour of the accused. It is true that dying declaration is a substantive piece
of evidence to be relied on provided it is proved that the same was voluntary and truthful
and the victim was in a fit state of mind. The evidence of Professor of Forensic Medicine
casts considerable doubt as regards the conditions of the deceased to make a voluntary
and truthful statement. It is for that reason non-examination of Casualty Medical Officer,
who was said to have been present at the time of recording of both the Dying
Declarations attains some significance. It is not because it is the requirement in law that
the doctor who certified about the condition of the victim to make a Dying Declaration is
required to be examined in every case. But it was the obligation of the prosecution to lead
corroborative evidence available in the peculiar circumstances of the case. The medical
evidence and surrounding circumstances altogether cannot be ignored and kept out of
consideration by placing exclusive reliance upon the testimony of person recording a
dying declaration.
In the facts and circumstances the prosecution failed to prove its case against the
appellant beyond reasonable doubt. Appellant would, therefore, entitled to the benefit of
doubt.
Case law discussed.
Cri. Appeal No. 193 of 2003, D/- 30-3-2005 (AP), Reversed. (Paras 32, 33, 38, 41,
42)
(B) Evidence Act (1 of 1872), S.32 - DYING DECLARATION - Dying declaration -
Reliability - Suspicion raised as to correctness of dying declaration - Conviction cannot
be recorded on its basis alone - Court may have to look for some corroborative evidence.
The dying declaration must inspire confidence so as to make it safe to act upon. Whether
it is safe to act upon a dying declaration depends upon not only the testimony of the
person recording dying declaration - be it even a Magistrate but also all the material
available on record and the circumstances including the medical evidence. The evidence
and the material available on record must be properly weighed in each case to arrive at
proper conclusion. The Court must satisfy to itself that the person making the dying
declaration was conscious and fit to make statement for which purposes not only the
evidence of persons recording dying declaration but also cumulative effect of the other
evidence including the medical evidence and the circumstances must be taken into
consideration. It is unsafe to record conviction on the basis of a dying declaration alone in
cases where suspicion is raised as regards the correctness of the dying declaration. In
such cases, the Court may have to look for some corroborative evidence by treating dying
declaration only as a piece of evidence. (Paras 39, 40)
(2006) 11 SCC 420 36
2002 AIR SCW 3479 : AIR 2002 SC 2973 : 2002 Cri LJ 4095 28, 30
1995 Supp (4) SCC 118 26
AIR 1989 SC 1519 : 1989 Cri LJ 1485 21
AIR 1988 SC 912 : 1988 Cri LJ 936 21
AIR 1985 SC 416 : 1986 Cri LJ 836 21
AIR 1983 SC 164 : 1983 Cri LJ 221 21
AIR 1983 SC 554 : 1983 Cri LJ 985 25
AIR 1982 SC 1021 : 1982 Cri LJ 986 21
AIR 1981 SC 617 : 1981 Cri LJ 9 21
AIR 1981 SC 457 : 1980 Cri LJ 1507 24
(1981) 2 SCC 654 21
AIR 1979 SC 1505 : 1979 Cri LJ 1122 21
AIR 1976 SC 2199 : 1976 Cri LJ 1718 21
AIR 1976 SC 1994 : 1976 Cri LJ 1548 21, 22
AIR 1974 SC 332 : 1974 Cri LJ 361 21
Ms. Nitya Ramakrishna and Ms. Anitha Shenoy, for Appellant; Mrs. D. Bharathi Reddy,
for Respondent.
Judgement
B. SUDERSHAN REDDY, J. :- This appeal arises out of judgment dated 30th March,
2005 of the High Court of Andhra Pradesh at Hyderabad in Criminal Appeal No.
193/2003. The appellant and two
@page-SC21
others were tried for having committed the murder of Dasari Srinivasa Rao alias Bujji by
hacking him with knives. The appellant and the two others were also tried for various
offences including the one punishable under the provisions of Scheduled Castes and
Scheduled Tribes (Prevention of Atrocities) Act, 1989. Accused No.2 was acquitted of all
the charges by the learned Sessions Judge, Guntur. The learned Sessions Judge however
convicted the appellant and another (A.3) for the offence punishable under Section 302
IPC and were sentenced to imprisonment for life. They were also fined Rs.5,000/- in
default, each has to suffer rigorous imprisonment for two months. Both of them were
acquitted of the charges framed under the provisions of the Scheduled Castes and
Scheduled Tribes (Prevention of Atrocities) Act, 1989. The appellant and accused No.3
preferred Criminal Appeal Nos.193/03 and 161/03 respectively. The High Court upon
appreciation of the evidence on record confirmed the conviction of the appellant under
Section 302 IPC and accordingly confirmed the sentence of the life imprisonment. The
Criminal Appeal No. 161/03 preferred by A.3 was allowed setting aside the conviction
and sentence imposed upon him. The sole appellant who is A.1 has preferred this
Criminal Appeal by Special leave, challenging his conviction and sentence under Section
302 IPC.
2. The case of the prosecution in nutshell is that the deceased Dasari Srinivasa Rao alias
Bujji was an accused in a case relating to the murder of brother of the appellant. On
05.01.1998 at about 4.30 or 5.00 p.m, the three accused including the appellant herein
chased the deceased and attacked him with knives while he was returning from
Vishnupriya Cinema theatre, Gorantala, Guntur, after seeing a movie causing multiple
injuries leading to his death. The Sub-Inspector of Police (P.W. 9) reached the scene of
offence by 5.30 p.m. and found the injured (deceased) on the road. He shifted him to
Guntur General Hospital. At about 6.00 p.m., P.W.9 recorded a Dying Declaration (Ex.P-
10) in which the deceased implicated the appellant and four others. That another dying
declaration was recorded by the 6th Additional Magistrate, Guntur (P.W.7) which
commenced at 6.35 p.m. on 05.01.1998. The victim succumbed to the injuries and died at
about 9.30 p.m. on the same day in the hospital. P.W.10 Professor and Doctor of Forensic
Medicine conducted the post-mortem examination on 06.01.1998. Ex.P-18 is the post-
mortem Report issued by him. He found as many as 63 injuries on the body of the
deceased. He expressed his opinion that the cause of death was due to multiple injuries.
P.W.11 continued the investigation and filed charge-sheet against the appellant and two
others.
3. The prosecution examined 11 witnesses. P.W.1 to 4 were alleged to be the direct eye-
witness (the Supervisor of the cinema theatre, owners of a Hotel and tea stall on the road
side near the cinema theatre and person who accompanied the deceased to the movie). All
of them turned hostile and did not support the prosecution case. P.W.5, the mother of the
deceased speaks only about the motive. Therefore, the entire prosecution case rests upon
the dying declarations in Ex.P-8 and Ex.P-10 recorded respectively by P.W.7 and P.W.9.
The Sessions Court as well as the High Court relying upon the dying declarations
convicted the appellant. The High Court found that before the dying declarations were
recorded "opinions of the doctors attending on the deceased were also obtained in Ex.P-7
and Ex.P-11, which clearly show that the deceased was fit enough to make the statement
when these dying declarations were recorded. Strange are the ways in which human
bodies react to different situations. Though superficially it appears that with 63 injuries
on the body of a person he would not be in a position to make a statement but it appears
that he was fit enough to make a statement." The High Court came to the conclusion that
the dying declarations contained truthful statement of a dying man. The High Court
accordingly confirmed the conviction passed by the trial court as against the appellant.
It is convenient now to return to the critical submissions made at the bar.
SUBMISSIONS :
4. Ms. Nitya Ramakrishna, learned counsel appearing for the appellant argued with
vehemence that the two dying declarations cannot be relied upon inasmuch as Dr. T.
Narasimha Rao, the Casualty Medical officer, Government General Hospital, Guntur who
examined and allegedly certified about the fitness of the deceased to give statement, was
not examined as a witness. There is no evidence on record indicating the physical
@page-SC22
and mental condition of the deceased to the effect that he was in a fit condition to make
the statement. The learned counsel also highlighted the inconsistencies between the two
dying declarations namely one recorded by the Police Officer (P.W.9) and another by the
learned Judicial First Class Magistrate (P.W.7). The learned counsel also further urged
that the evidence of P.W. 10 Professor of Forensic Medicine who conducted the post-
mortem which is relevant and material has altogether been ignored by the courts below.
5. Ms. D. Bharathi Reddy, learned counsel for the respondent on the other hand
submitted that the dying declarations which have been relied upon by the High Court in
the facts and circumstances have been rightly held to be a truthful and voluntary and,
therefore, in law, can form the sole basis for conviction. The learned counsel strenuously
contended that the dying declaration recorded by the Magistrate cannot be held to be a
doubtful one. Besides the learned counsel submitted that the doctor did make an
endorsement in both the dying declarations certifying that the deceased was in a fit
condition to make statement and was present at the time of recording of the statement.
Non examination of the doctor is not fatal to the prosecution case was the submission.
POINT FOR CONSIDERATION :
6. In view of the rival submissions made during the course of the hearing of the appeal,
only one question really arises for our consideration, namely, whether the two dying
declarations can be held to be true and voluntary and can be relied upon to convict the
appellant ? Whether the dying declarations suffer from any serious infirmities requiring
their exclusion from consideration ?
7. In order to consider the said question it is just and necessary to notice the contents of
both the dying declarations. Ex.P-10 Dying Declaration recorded by Police Officer P.W.9
on 05.01.1998 at 6.00 p.m. at Casualty, Guntur General Hospital is to the following
effect:
"............This day i.e. on 5.1.1998 Noon having went to the cinema in the cinema hall
situated at Gorantla; having witnessed the Cinema came out, there Sivayya the younger
brother of Ankamma, resident of Koritepadu and Rajka by caste and four others came
upon me and of them Nallapaati Sivayya cut my face and head with hunting-sickle. The
remaining 4 persons cut me with hunting sickles (VETAKODAVLU) indiscriminately, on
my legs and hands. I am an accused in the Ankamma's murder case. Keeping it in mind,
they cut me like this. The time was 4.30 5.00 hours. I cannot sign as there (are) cut-
injuries on my two hands. I can subscribe the right thumb impression............."
Dr. T. Narasimharao, C.M.O., Guntur General Hospital, made an endorsement as "Pt.
Conscious coherent, fit mind to give statement."
8. The Inspector of Police P.W.9 in his evidence stated that the deceased was profusely
bleeding and his condition was precarious even when the deceased was shifted to Guntur
General Hospital. He did not verify from the deceased as to whether he was in a fit
condition to give his statement. He noticed number of persons gathering around the
victim at the scene of occurrence. He did not verify the case sheet. He was not aware as
to whether any treatment has been administered to the victim. He commenced recording
the Dying Declaration (Ex.P-10) at 6.00 p.m. and completed it by 6.25 p.m.
9. Ex.P-8 is the dying declaration recorded by the learned VIth Additional Magistrate,
Guntur (P.W.7) in which the learned Magistrate certified that the declarant was conscious,
coherent and in a fit condition to give statement. It is in his evidence that he did not
verify from the doctor as to whether the victim was in a fit condition to make the
statement before commencing the recording of dying declaration. He also did not verify
the case sheet. Even on the second Dying Declaration, Dr. T. Narasimharao made an
endorsement to the effect that "patient is conscious and coherent. Fit mind to give
statement while recording his statement. Statement recorded in my presence. Multiple cut
injuries on both hands and blood is oozing." The material part of the dying declaration
Ex.P-8 is to the following effect :
"................This day evening at 5.00 hours time I went to the Cinema Hall at Gorantla
with an intention to see cinema. By the time I went to the Vishnu Priya Cinema Hall,
Nallapati Sivayya and other three persons whom I do not know, all four in total came and
cut me indiscriminately with hunt sickles. A number of people are there. But none
@page-SC23
came to my rescue. I fell down for those hits. Then some police having reached brought
me to the hospital. This is the matter occurred..........."
10. The learned Magistrate in his evidence stated that he received the requisition from
Casualty Medical Officer on 05.01.1998 at 6.25 p.m. to record the dying declaration of
the victim. He immediately rushed to the hospital and identified the victim through the
Casualty Medical officer Dr. T. Narasimharao. He did not verify the case sheet either
before or after recording the statement. He admitted that before recording the Dying
Declaration (Ex.P-8), he did not obtain any certificate or endorsement of the doctor as to
the fitness of the victim to give statement. The Magistrate found multiple cut injuries on
both hands, thumbs and right foot and in the circumstances obtained the left great toe
impression on Ex.P-8. It is specifically stated by him that the blood was oozing from both
the hands and it was difficult to obtain either left or right thumb impression of the
declarant.
11. An objective and critical assessment of the material available on record discloses that
recording of dying declarations commenced immediately after the victim was taken to the
hospital right from 6.00 p.m. onwards and went on till 7.10 p.m. It means the victim was
speaking coherently right from 6.00 p.m. to 7.10 p.m. on 05.01.1998. It is not known as
to what was the treatment administered to the victim immediately after he was brought to
the hospital. No explanation is forthcoming as to why duty doctor at Casualty was not
examined. There is no evidence of treatment if any given to the victim except the routine
and mechanical endorsement that patient was conscious and coherent and fit to give
statement.
12. Be it noted that there is no evidence by any of the doctor as to when the deceased
succumbed to the injuries except that he was found dead at 9.30 p.m., that is to say,
within two hours from the time of recording of Ex.P-8 Dying Declaration.
13. It may also be noted that altogether 63 injuries were found on the body of the victim
including injuries 1 to 13 and 19 on the parietal and occipital regions, which were
grievous in nature. Injuries 1 to 22 were on the neck and above neck. According to the
evidence of P.W.10 Professor and Doctor of Forensic Medicine, who conducted the post-
mortem examination, diffused subarchanoid haemorrhage was present all over the brain.
He stated that subarchanoid haemorrhage results in patient going into coma and persons
receiving such injuries cannot be coherent. He further stated in his evidence that on
account of bleeding from injury of cut laceration 15 X 2 cms. bone deep present on both
the sides of maxillary and middle of nose the patient would be gasping for breath and will
not be in a position to take respiration through nose but can breath through mouth. The
deceased might have died within one or two hours after receiving the injuries mentioned
in Ex.P-18 Post-mortem examination. The evidence of this witness suggest that the
victim could not have deposed for such a long duration of about an hour continuously.
His condition was found to be precarious by Inspector of Police (P.W.9) even at 5.30 p.m.
Evidentiary value of Dying Declaration :
14. There is a historical and a literary basis for recognition of dying declaration as an
exception to the Hearsay Rule. Some authorities suggest the rule is of Shakespearian
origin.
15. In "The Life and Death of King John", Shakespeare has Lord Melun utter what a
"hideous death within my view, retaining but a quantity of life, which bleeds away,..lost
the use of all deceit" and asked,"Why should I then be false, since it is true that I must die
here and live hence by truth?" William Shakespeare, The Life and Death of King John
act. 5, sc.2, lines 22-29.
16. In passing upon admissibility of an alleged dying declaration, all attendant
circumstances should be considered, including weapon which injured the victim, nature
and extent of injuries, victim's physical condition, his conduct, and what was said to and
by him.
17. This Court has consistently taken the view that where a proper and sufficient
predicate has been established for the admission of a statement under dying declaration,
Hearsay exception is a mixed question of fact and law.
18. It is equally well settled and needs no restatement at our hands that dying declaration
can form the sole basis for conviction. But at the same time due care and caution must be
exercised in considering weight to be given to dying declaration in asmuch as there could
be any number of
@page-SC24
circumstances which may affect the truth. This court in more than one decision cautioned
that the courts have always to be on guard to see that the dying declaration was not the
result of either tutoring or prompting or a product of imagination. It is the duty of the
courts to find that the deceased was in a fit state of mind to make the dying declaration.
In order to satisfy itself that the deceased was in a fit mental condition to make the dying
declaration, the courts have to look for the medical opinion.
19. It is not difficult to appreciate why dying declarations are admitted in evidence at a
trial for murder, as a striking exception to the general rule against hearsay. For example,
any sanction of the oath in the case of a living witness is a thought to be balanced at least
by the final conscience of the dying man. Nobody, it has been said, would wish to die
with a lie on his lips. A dying declaration has got sanctity and a person giving the dying
declaration will be last to give untruth as he stands before his creator. There is a legal
maxim "Nemo Moriturous Praesumitur Mentire" meaning, that a man will not meet his
maker with lie in his mouth. Woodroffe and Amir Ali, in their treatise on Evidence Act
state : "when a man is dying, the grave position in which he is placed is held by law to be
a sufficient ground for his veracity and therefore the tests of oath and cross-examination
are dispensed with."
20. The court has to consider each case in the circumstances of the case. What value
should be given to a dying declaration is left to court, which on assessment of the
circumstances and the evidence and materials on record, will come to a conclusion about
the truth or otherwise of the version, be it written, oral, verbal or by sign or by gestures. It
is also a settled principle of law that dying declaration is a substantive evidence and an
order of conviction can be safely recorded on the basis of dying declaration provided the
court is fully satisfied that the dying declaration made by the deceased was voluntary and
reliable and the author recorded the dying declaration as stated by the deceased. This
court laid down the principle that for relying upon the dying declaration the court must be
conscious that the dying declaration was voluntary and further it was recorded correctly
and above all the maker was in a fit condition - mentally and physically - to make such
statement.
21
. In Smt. Paniben v. State of Gujarat1, this court while stating that a dying declaration is
entitled to great weight however cautioned to note that the accused has no power to cross-
examination. 1992 AIR SCW 2050, Para 17
1 (1992) 2 SCC 474.

"Such a power is essential for eliciting the truth as an obligation of oath could be. This is
the reason the Court also insists that the dying declaration should be of such a nature as to
inspire full confidence of the Court in its correctness. The Court has to be on guard that
the statement of deceased was not as a result of either tutoring, prompting or a product of
imagination. The Court must be further satisfied that the deceased was in a fit state of
mind after a clear opportunity to observe and identify the assailants. Once the Court is
satisfied that the declaration was true and voluntary, undoubtedly, it can base its
conviction without any further corroboration. It cannot be laid down as an absolute rule
of law that the dying declaration cannot form the sole basis of conviction unless it is
corroborated. The rule requiring corroboration is merely a rule of prudence. This Court
has laid down in several judgments the principles governing dying declaration, which
could be summed up as under:
(i) There is neither rule of law nor of prudence that dying declaration cannot be acted
upon without corroboration (Munnu Raja v. State of M.P.) (1976) 3 SCC 104; 1976 SCC
(Cri.)376; (1976) 2 SCR 764. AIR 1976 SC 2199
(ii) If the Court is satisfied that the dying declaration is true and voluntary it can base
conviction on it, without corroboration. (State of U.P. v. Ram Sagar Yadav) (1985) 1 SCC
552 : 1985 SCC (Cri) 127: AIR 1985 SC 416; Ramavati Devi v. State of Bihar (1983) 1
SCC 211: 1983 SCC (Cri) 169: AIR 1983 SC 164.
(iii) This Court has to scrutinise the dying declaration carefully and must ensure that the
declaration is not the result of tutoring, prompting or imagination. The deceased had
opportunity to observe and identify the assailants and was in a fit state to make the
declaration. (K. Ramchandra Reddy v. Public Prosecutor) (1976) 3 SCC 618: 1976 SCC
(Cri) 473:AIR 1976 SC 1994.
(iv) Where dying declaration is suspicious it should not be acted upon without AIR
1974 SC 332
@page-SC25
corroborative evidence. (Rasheed Beg v. State of M.P., (1974) 4 SCC 264 : 1974 SCC
(Cri) 426).
(v) Where the deceased was unconscious and could never make any dying declaration the
evidence with regard to it is to be rejected. (Kake Singh v. State of M.P.) 1981 Supp. SCC
25 : 1981 SCC (Cri.) 645 : AIR 1982 SC 1021.
(vi) A dying declaration which suffers from infirmity cannot form the basis of conviction.
(Ram Manorath v. State of U.P.) (1981) 2 SCC 654 : 1981 SCC (Cri) 581.
(vii) Merely because a dying declaration does not contain the details as to the occurrence,
it is not to be rejected. (State of Maharashtra v. Krishnamurti Laxmipati Naidu) 1980
Supp. SCC 455 : 1981 SCC (Cri) 364 : AIR 1981 SC 617.
(viii) Equally, merely because it is a brief statement, it is not be discarded. On the
contrary, the shortness of the statement itself guarantees truth. (Surajdeo Oza v. State of
Bihar) 1980 Supp. SCC 769 : 1979 SCC (Cri) 519 : AIR 1979 SC 1505.
(ix) Normally the court in order to satisfy whether deceased was in a fit mental condition
to make the dying declaration look up to the medical opinion. But where the eye-witness
has said that the deceased was in a fit and conscious state to make this dying declaration,
the medical opinion cannot prevail. (Nanahau Ram and Anr. v. State of M.P.) 1988 Supp.
SCC 152 : 1988 SCC (Cri) 342 : AIR 1988 SC 912.
(x) Where the prosecution version differs from the version as given in the dying
declaration, the said declaration cannot be acted upon. (State of U.P. v. Madan Mohan)
(1989) 3 SCC 390 : 1989 SCC (Cri) 585 : AIR 1989 SC 1519."
22
. In K. Ramachandra Reddy and another v. The Public Prosecutor2, the court having
noticed the evidence of P.W.20 therein who conducted the post-mortem that there were as
many as 48 injuries on the person of the deceased out of which there were 28 incised
wounds on the various parts of the body including quite a few gaping incised injuries
came to the conclusion that in view of those serious injuries it was difficult to believe that
the deceased would have been in a fit state of mind to make a dying declaration. It was
also a case where the Magistrate did not put a direct question to the injured whether he
was capable mentally to make any statement. In the circumstances this court came to the
conclusion that the Magistrate committed a serious irregularity in "not putting a direct
question to the injured whether he was capable mentally to make any statement." It has
been observed that even though the deceased might have been conscious in the strict
sense of the term, "there must be reliable evidence to show, in view of his intense
suffering and serious injuries, that he was in a fit state of mind to make statement
regarding the occurrence." The certificate issued by the doctor that the deceased was in a
fit state of mind to make statement by itself would not be sufficient to dispel the doubts
created by the circumstances and particularly the omission by the Magistrate in not
putting a direct question to the deceased regarding the mental condition of the injured.
AIR 1976 SC 1994
2 (1976) 3 SCC 618
23. In the case in hand before the actual recording of Ex.P-8 dying declaration, the
Magistrate (P.W.7) did not seek and obtain any opinion and a certificate or endorsement
from the duty doctor as to the physical and mental condition of the declarant to give
statement. The Magistrate did not put any question as to whether the declarant was
making a voluntary statement and whether he was in a fit condition to make the statement
and whether any sedatives had been administered.
24
. In Padman Meher and anr. v. State of Orissa3 relying upon the evidence of doctor
expressing the opinion that after receiving the injury the victim would not be able to talk
and the injury would have caused great shock and part of the body could have been
paralysed, this court came to the conclusion that the nature of the injury was such that
whether death was instantaneous or not, the shock would have been such that the
deceased would not have been in a position to talk. AIR 1981 SC 457
3 (1980) Supp SCC 434.

25
. In Darshan Singh alias Bhasuri and Ors. v. State of Punjab4, relying on the evidence of
the Medical Officer who conducted the post-mortem examination on the body of victim
to the effect that the victim's vital AIR 1983 SC 554
@page-SC26
organs like peritoneum, stomach and spleen were completely smashed and that there were
remote chances of his remaining conscious after receipt of such injury, this court
observed "it is impossible to believe that he was in a fit state of mind and body to make
any kind of coherent or credible statement relating to the circumstances which resulted in
his death. True, he was quite near his Creator, dangerously so indeed, and we may accept
that his mind was then free from failings which afflict the generality of human beings,
like involving enemies in false charges. But; was too ill to entertain any thoughts, good or
bad, and he could not possibly even in a position to make any kind of intelligible
statement." The court accordingly refused to place any reliance on the dying declaration
and excluded the same from consideration.
4 (1983) 2 SCC 411.
26. In Kanchy Komuramma v. State of A.P.5, this court while considering the evidentiary
value of a dying declaration noted that the prosecution for reasons best known to it did
not examine the doctor who made the endorsement on dying declaration certifying that
"the patient was in a fit state of mind to depose" and having further noticed that no other
witness was examined to prove the certificate of the doctor held that the same creates a
doubt as to whether the patient was actually in a proper mental condition to make a
consciously truthful statement. It was held :
5 (1995) 4 SCC 118.
"This infirmity renders it unsafe to rely on the dying declaration. As a matter of fact, the
failure of the prosecution to establish that the deceased, before she made the dying
declaration, was in proper mental condition to make the dying declaration detracts
materially from the reliability of the dying declaration and it would not be safe to rely
upon it. That the dying declaration has been recorded by Judicial Magistrate, by itself is
not a proof of truthfulness of the dying declaration, which in order to earn acceptability
has still to pass the test of scrutiny of the court. There are certain safeguards which must
be observed by a magistrate when requested to record a dying declaration. He must
record the dying declaration satisfying himself that the declarant is in a proper mental
state to make the statement. He must also obtain the opinion of the doctor, if one is
available, about the fitness of the patient to make a statement and the prosecution must
prove that opinion at the trial in the manner known to law."
(Emphasis supplied)
27
. We may now refer to the decisions upon which strong reliance was placed by the
learned counsel for the State in support of her submissions that the Dying Declaration
recorded by the Magistrate cannot be held to be unreliable merely because the doctor who
issued the certificate regarding fitness has not been examined by the prosecution. A three
Judges Bench of this court in Koli Chunilal Savji and Anr. v. State of Gujarat6while
referring to the judgment this court in Maniram v. State of M.P.7, in which this court held
that when the declarant was in the hospital itself, it was the duty of the person recording
the dying declaration to do so in the presence of the doctor and after being duly certified
by the doctor that the declarant was conscious and in his senses and was in a fit condition
to make the declaration observed that the said requirements "are of merely rule of
prudence and the ultimate test is whether the dying declaration can be held to be a
truthful one and voluntarily given." This court took the view that non-examination of the
doctor and the doctor not making any endorsement on the dying declaration itself is no
ground to exclude the dying declaration from consideration. This observation is to be
understood in the factual background and the circumstances in that case in which the
Magistrate who recorded the dying declaration, in his evidence categorically stated that
the doctor introduced the victim and when she asked the doctor about the condition of the
victim, the said doctor categorically stated that the victim was in a conscious condition.
The doctor made an endorsement on the Police yadi indicating that victim was fully
conscious. It was a case where the doctor certified about the condition of the victim
before the learned Magistrate undertook to record the dying declaration. That apart there
were two dying declarations corroborating each other and there was no inconsistency in
those two dying declarations made. 1999 AIR SCW 3727
1994 AIR SCW 211
6 (1999) 9 SCC 562.

7 (1974) Supp 2 SCC 539.
28
. In Laxman v. State of Maharashtra8, a Constitution Bench of this court held : 2002

AIR SCW 3479, Para 3
8 (2002) 6 SCC 710.

@page-SC27
"The court, however, has always to be on guard to see that the statement of the deceased
was not as a result of either tutoring or promoting or a product of imagination. The court
also must further decide that the deceased was in a fit state of mind and had the
opportunity to observe and identify the assailant. Normally, therefore, the court in order
to satisfy whether the deceased was in a fit mental condition to make the dying
declaration looks up to the medical opinion. But where the eyewitnesses state that the
deceased was in a fit and conscious state to make the declaration, the medical opinion
will not prevail, nor can it be said that since there is no certification of the doctor as to the
fitness of the mind of the declarant, the dying declaration is not acceptable. A dying
declaration can be oral or in writing and any adequate method of communication whether
by words or by signs or otherwise will suffice provided the indication is positive and
definite. In most cases, however, such statements are made orally before death ensues and
is reduced to writing by someone like a magistrate or a doctor or a police officer. When it
is recorded, no oath is necessary nor is the presence of a magistrate absolutely necessary,
although to assure authenticity it is usual to call a magistrate, if available for recording
the statement of a man about to die. There is no requirement of law that a dying
declaration must necessarily be made to a magistrate and when such statement is
recorded by a magistrate there is no specified statutory form for such recording.
Consequently, what evidential value or weight has to be attached to such statement
necessarily depends on the facts and circumstances of each particular case. What is
essentially required is that the person who records a dying declaration must be satisfied
that the deceased was in a fit state of mind. Where it is proved by the testimony of the
magistrate that the declarant was fit to make the statement even without examination by
the doctor the declaration can be acted upon provided the court ultimately holds the same
to be voluntary and truthful. A certification by the doctor is essentially a rule of caution
and therefore the voluntary and truthful nature of the declaration can be established
otherwise."
[Emphasis supplied]
29
. The Constitution Bench in its authoritative pronouncement declared that there is no

requirement of law that dying declaration must necessarily contain a certification by the
doctor that the patient was in a fit state of mind especially when a dying declaration was
recorded by a Magistrate. It is the testimony of the Magistrate that the declarant was fit to
make the statement gains the importance and reliance can be placed upon declaration
even in the absence of the doctor provided the court ultimately holds the same to be
voluntary and truthful. The judgment does not lay down a proposition that medical
evidence, even if available on record, as also the other attending circumstances should
altogether be ignored and kept out of consideration to assess the evidentiary value of a
dying declaration whenever it is recorded by a Magistrate. The Constitution Bench
resolved the difference of opinion between the decisions expressed by the two Benches of
three learned Judges in Paparambaka Rosamma and Ors. v. State of A.P.9and Koli
Chunilal Savji and Anr. v. State of Gujarat (supra) and accordingly held that there is no
requirement of law that there should be always a medical certification that the injured
was in a fit state of mind at the time of making a declaration and such certification by the
doctor is essentially a rule of caution and even in the absence of such a certification the
voluntary and truthful nature of the declaration can be established otherwise. 1999
AIR SCW 3440
1999 AIR SCW 3727
9 (1999) 7 SCC 695

30
. This court in Shanmugam alias Kulandaivelu v. State of Tamil Nadu10held the

proposition laid down in Paparambaka Rosamma v. State of A.P. that "in the absence of
medical certification that the injured was in a fit state of mind at the time of making the
declaration, it would be very much risky to accept subject to the satisfaction of a
Magistrate" is no longer good law in view of the larger Bench decision in Laxman v.
State of Maharashtra. It is further held the mere fact that the doctor, in whose presence
dying declaration was recorded, was not examined does not affect the evidentiary value
to be attached to the dying declaration. Neither of the decisions held that the medical
evidence, if any, is available on record and the 2002 AIR SCW 4653
2002 AIR SCW 3479
@page-SC28
attending circumstances altogether be ignored merely because dying declaration has been
recorded by a Judicial Magistrate.
10 (2002) 10 SCC 4.
PECULIAR FEATURES OF THIS CASE :
31. In the light of the stated legal principles we now proceed to discuss the peculiar and
striking features found in the case in hand. There are two dying declarations, one
recorded by Police Officer P.W.9 in Ex.P-10 and another by the Magistrate P.W.7 in Ex.P-
8. The incident of attack on the deceased is alleged to have taken place at about 5.00 p.m.
on 05.01.1998. The first dying declaration in Ex.P.10 has been recorded at 6.00 p.m. at
Casualty, Guntur Hospital, Guntur. The victim stated that on 05.01.1998 in the afternoon
he went to see a cinema in the cinema hall situated at Gorantala; "having witnessed the
cinema came out. Sivayya, the younger brother of Ankamma, resident of Koritepadu and
Rajka by caste and four others came upon me and all of them cut my face and head with
hunting sickles. The remaining four persons cut me with hunting sickles indiscriminately
on my legs and hands." He affixed his right thumb impression on the declaration. There is
a certificate at the end of the dying declaration issued by Casualty Medical Officer to the
effect that "Patient conscious, coherent, fit mind to give statement." In the second dying
declaration recorded by Judicial Magistrate of First Class P.W.7 in Ex.P8 the victim
stated that he went to the cinema hall at Gorantala in the evening at 5.00 p.m. with an
intention to see cinema. There Nallapati Sivayya (appellant) and other three persons,
whom he cannot identify, in all four in number came and cut him indiscriminately with
hunting sickles; and though number of people were present at the place of incident, none
came to his rescue. He also stated that he was one of the accused in Ankamma's murder
case and for that reason Sivayya who is known to be his younger brother developed
grudge and cut him with sickle along with three persons. The recording of this second
dying declaration commenced at 6.35 p.m. on 05.01.1998 and completed by 7.10 p.m.
The Judicial First Class Magistrate made an endorsement to the effect that he obtained
the great toe impression of left foot of the victim as his both hands and his right foot were
bleeding with multiple cut injuries and blood was oozing from them. The victim did not
state anything about the dying declaration recorded by P.W.9 in Ex.P-10. In Ex.P-10
recorded by the police officer, he implicated the appellant and four others and stated that
appellant has cut his face and head with hunting sickle and the other four cut his legs and
hands with hunting sickles. In the second Dying Declaration (Ex.P-8) he implicated the
appellant and only three other persons. He made omnibus allegations against the
appellant and three other persons and not four other persons as stated in the first Dying
Declaration. It is strange that at 6.35 p.m. he was able to affix his right thumb impression
but could not do so at 7.10 p.m when it is clear that blood was oozing on account of
multiple cut injuries from his both hands and right foot. In the first dying declaration he
allegedly stated that he went to see cinema in the noon and came out of the theatre around
5.00 O'clock but in the second Dying Declaration he allegedly stated that he went to see
the cinema at around 5.00 p.m. in the evening and at that time the incident had taken
place.
32. In the circumstances can it be said that the victim was conscious and coherent and in
a fit condition to give the statement? This aspect of the matter is required to be
considered in the background of victim receiving as many as 63 injuries on his body
including injuries 1 to 13 and 19 on the parietal and occipital regions on account of which
the victim could have gone into coma. The Professor of Forensic Medicine and Medical
Officer who conducted the post-mortem, examined as P.W.11, is an important witness
whose evidence has been altogether ignored. He found diffused subarchanoid
haemmorrhage present all over the brain which normally results in patient going into
coma. He also expressed his opinion that the deceased must have died within one or two
hours after receiving the injuries. Can we ignore this vital piece of evidence ? Do we
have to accept that the victim having received 63 multiple injuries went on speaking
coherently from 6.00 p.m. onwards till 7.10 p.m., for about one hour and ten minutes?
There is no evidence and details of any treatment administered to the victim. Dr. B.G.
Sugunavathi, Casulalty Doctor, first noticed the victim dead at 9.30 p.m. on 05.01.1998
itself. There is no positive evidence as to when the victim died even though he was
admitted into the hospital with multiple injuries. These cumulative factors and
surrounding circumstances
@page-SC29
make it impossible to rely upon the dying declarations that were recorded in Ex.P-10 and
Ex.P-8. These are the circumstances which compel us not to ignore the evidence of
P.W.10 - Doctor and Professor of Forensic Medicine. It is not a question of choosing
between the eye-witness account as regards the condition of the victim to make a
statement on the one hand and the evidence of the Professor and Doctor of Forensic
Medicine. The conflict and inconsistency between the two dying declarations and the
evidence of the Forensic Expert which remained unimpeached raises a very great
suspicion in the mind of the court.
33. It is the duty of the prosecution to establish the charge against the accused beyond
reasonable doubt. The benefit of doubt must always go in favour of the accused. It is true
that dying declaration is a substantive piece of evidence to be relied on provided it is
proved that the same was voluntary and truthful and the victim was in a fit state of mind.
The evidence of Professor of Forensic Medicine casts considerable doubt as regards the
condition of the deceased to make a voluntary and truthful statement. It is for that reason
non-examination of Dr. T. Narasimharao, Casualty Medical Officer, who was said to have
been present at the time of recording of both the Dying Declarations attains some
significance. It is not because it is the requirement in law that the doctor who certified
about the condition of the victim to make a Dying Declaration is required to be examined
in every case. But it was the obligation of the prosecution to lead corroborative evidence
available in the peculiar circumstances of the case.
34
. This court in Sabbita Satyavathi v. Bandala Srinivasarao and Ors.11refused to place

reliance upon the dying declaration of the victim recorded by the Assistant Civil Surgeon
at Government Hospital where the deceased was brought in injured condition. The court
came to the conclusion that having regard to the injuries sustained by the deceased he
would not have been in a position to make any statement even if he was alive when
brought to the hospital. He must have become unconscious soon after suffering the
injuries and there was no question of his either making a statement before P.W.1 or before
the Medical Officer. Medical Officer admitted that the death of the deceased was due to
injuries to vital organs such as heart and lung. This court having regard to nature of
injuries, entertained a serious doubt as to whether the injured could have given two dying
declarations as alleged by the prosecution, one at about 7.00 p.m. and another at about
8.45-9.00 p.m. The court relied upon the medical evidence on record inasmuch as doctor
herself stated that if such an injury is caused to heart the injured would become
unconscious immediately. There was, therefore, no question of his making a dying
declaration to anyone thereafter. 2004 AIR SCW 3774
11 (2004) 10 SCC 620.

35
. In State of Haryana and Ors. v. Ram Singh and Anr.12this court while considering the
significance of the evidence of the doctor observed :2002 AIR SCW 219, Para 1
12 (2002) 2 SCC 426.

"While it is true that the post-mortem report by itself is not a substantive piece of
evidence, but the evidence of the doctor conducting the post-mortem can by no means be
ascribed to be insignificant. The significance of the evidence of the doctor lies vis-a-vis
the injuries appearing on the body of the deceased person and likely use of the weapon
therefore and it would then be the prosecutor's duty and obligation to have the
corroborative evidence available on record from the other prosecution witnesses."
36. In Kailash v. State of M.P.13this court while adverting to the question as to the course
open to the courts where oral evidence is to be found inconsistent with the medical
evidence observed :
13 (2006) 11 SCC 420
"When, however, oral evidence is found to be inconsistent with the medical evidence, the
question of relying upon one or the other would depend upon the facts and circumstances
of each case. No hard-and-fast rule can be laid down therefor."
Can the medical evidence be altogether ignored ?
37
. This court in State of Rajasthan v. Bhanwar Singh14observed : 2004 AIR SCW 5245,
Para 6
14 (2004) 13 SCC 147.

"Though ocular evidence has to be given importance over medical evidence, where the
medical evidence totally improbabilises the
@page-SC30
ocular version that can be taken to be a factor to affect credibility of the prosecution
version."
38. In our considered opinion, the medical evidence and surrounding circumstances
altogether cannot be ignored and kept out of consideration by placing exclusive reliance
upon the testimony of person recording a dying declaration.
39. The Dying Declaration must inspire confidence so as to make it safe to act upon.
Whether it is safe to act upon a Dying Declaration depends upon not only the testimony
of the person recording Dying Declaration - be it even a Magistrate but also all the
material available on record and the circumstances including the medical evidence. The
evidence and the material available on record must be properly weighed in each case to
arrive at proper conclusion.The court must satisfy to itself that the person making the
Dying Declaration was conscious and fit to make statement for which purposes not only
the evidence of persons recording dying declaration but also cumulative effect of the
other evidence including the medical evidence and the circumstances must be taken into
consideration.
CONCLUSION :
40. It is unsafe to record conviction on the basis of a dying declaration alone in cases
where suspicion is raised as regards the correctness of the dying declaration. In such
cases, the court may have to look for some corroborative evidence by treating dying
declaration only as a piece of evidence.
41. In the present case it is difficult to rest the conviction solely based on the dying
declarations. The deceased sustained as many as 63 injuries. Having regard to the nature
of injuries the deceased may not have been in a position to make any statement before
P.W. or before P.W.7. P.W.7- the Inspector admitted that the condition of the deceased
even at 5.30 p.m. was very precarious. P.W.10 Professor and Doctor of Forensic Medicine
admitted injuries 1 to 13 and 19 could have resulted in the deceased going into coma.
42. We are not satisfied that the prosecution has proved its case against the appellant
beyond reasonable doubt. Appellant is entitled to the benefit of doubt. We, therefore,
allow this appeal and acquit the appellant of the charges levelled against him. The
appellant is, therefore, directed to be released forthwith provided he is not required in
connection with any other case or cases.
Appeal allowed.
AIR 2008 SUPREME COURT 30 "Mohammad Sadiq v. State of U. P."
(From : 2004 All LJ 2744 : 2004 Lab IC 3719)
Coram : 2 Dr. A. PASAYAT AND LOKESHWAR SINGH PANTA, JJ.
Civil Appeal No. 4590 with 4606 of 2004, D/- 21 -9 -2007.
Mohammad Sadiq and Ors. v. State of U.P. and Ors.
Constitution of India, Art.309, Art.16 - U.P. Absorption of Retrenched Employees of
Government or Public Corporations in Government Service Rules (1991), R.2(b) -
SERVICE MATTERS - EQUALITY IN PUBLIC EMPLOYMENT - RETRENCHMENT
- SOCIETIES REGISTRATION - CORPORATION - Applicability of Rules - To Public
Corporations - Fundamental requirement is that Corporation should be constituted by or
under U. P. Act - Institute of Engineering and Rural Technology (IERT) registered under
the Societies Registration Act - Not a public Corporation - There is basic distinction
between a society and a Corporation - Undisputedly IERT is a body registered under
Central Act - Rules would thereupon not apply to retrenched employees of IERT. (Paras
7, 9, 10)
(2002) 5 SCC 111 (Ref.) 7
AIR 1981 SC 487 (Ref.) 7
AIR 1962 SC 458 (Rel. on) (Pt. B) 7
P. Vishwanantha Shetty, Sr. Advocate, S. J. Aristotle, Yatish Mohan, E. C. Vidya Sagar,
Shekhar Prit Jha and Dr. Bheem Pratap Singh, for Appellants; Dinesh Dwivedi, Sr.
Advocate, Ms. Niranjana Singh, Abhishek Chaudhary and Ms. Seita Vaidyalingam, for
Respondents.
Judgement
1. Dr. ARIJIT PASAYAT, J. :- These appeals are inter-linked and are directed against
common judgment of the Allahabad High Court. By the impugned judgment the order
passed by the learned Single Judge was set aside.
2. Background facts in a nutshell are as follows :
Retrenched employees of Institute of Engineering and Rural Technology (for short
'IERT'), 105 in number, filed a writ petition against the State of U.P. and its
@page-SC31
functionaries as well as the IERT praying for quashing the order dated 24.3.1999 by
which it was decided that the Training-cum-Production Centre of IERT was to be closed
down w.e.f. 31.3.1999 and the workmen employed were to be retrenched after paying
compensation.
While allowing the writ petition the learned Single Judge gave directions which
essentially read as follow:-
"The respondents are directed to prepare a list of the employees who were appointed
prior to 1.10.1986 in the production-cum-training Centre of IERT, and were working
continuously till the date of their retrenchment i.e. 31.3.1999 by excluding those who
have retired, or have not given their option for absorption, to be absorbed in the vacancies
in other polytechnics of the State of Government, which are recognized and funded or in
any other technical institution, or any post which it may deem to be fit, in accordance
with their eligibility and after relaxing age and other terms and conditions of recruitment.
As and when petitioners are offered absorption on any equivalent post, they will vacate
the quarters occupies by some of them in the premises of IERT. Since petitioners have
accepted retrenchment compensation, no direction with regard to payment of salary is
required to be given. The State Government is directed to draw the list, prepare the
scheme and to offer appointment by absorption, preferably within a period of four
months. There is no order as cost."
3. The present respondents questioned correctness of the order by filing special appeal
before the High Court. By the impugned judgment the High Court allowed the special
appeal. It held that IERT is not an instrumentality of the State and/or could not be termed
to be State Government or a public Corporation. It was held that the finding of learned
Single Judge that IERT is wholly owned, controlled and managed by the State
Government is not correct.
4. Learned counsel for the appellants submitted that the basic questions are as follows:-
(a) Whether IERT was an instrumentality of the State.
(b) Whether the Uttar Pradesh Absorptions of Retrenched Employees of
Government/Corporations in Government Service Rules, 1991 (in short the 'Absorption
Rules') is applicable to the writ petitioners-appellants.
(c) Whether after receiving compensation, the concerned employees could question the
closure.
5. It was submitted that IERT is registered under the Societies Registration Act, 1860 (in
short the 'Societies Act') and in terms of the Absorption Rules the concerned employees
were entitled to be given protection of the Absorption Rules. It is submitted that the
expression "established" means that the institution has come into existence and, therefore,
even though IERT has been registered under the Societies Act, that does not mean it is not
established or constituted under any Uttar Pradesh Act.
6. In response, learned counsel for the respondent submitted that the concept of
"established" or "constituted" is different from a body registered under the Societies Act.
7
. The contentions raised need consideration. It has been accepted that there was no
material placed before the High Court to establish that IERT is an instrumentality of the
State. In Pradeep Kumar Biswas v. Indian Institute of Chemical Biology and Ors. (2002
(5) SCC 111), it has been clearly stated that even if a society or institute is registered
under the Societies Act and some functionaries of the State Government and other
members of the institute, such an institute may not be termed as an instrumentality of the
State, if deep and pervasive control over the affairs of the institute was not with the State
Government. Texts formulated in Ajay Hasia and Ors. v. Khalid Mujib Sehravardi and
Ors. (1981 (1) SCC 722) were highlighted. There is basic distinction between a society
and a corporation. In Board of Trustees, Ayurvedic and Unani Tibia College, Delhi v.
State of Delhi (Now Delhi Administration) and another (AIR 1962 SC 458), it was inter
alia held as follows: AIR 1981 SC 487
"(9) The first and foremost question is whether the old Board was a corporation in the
legal sense of that word. What is a Corporation? Corporations may be divided into two
main classes, namely, corporations aggregate and corporations sole. We are not concerned
in the present case with corporation sole. "A Corporation aggregate has been defined as a
collection of individuals united into one body under a special denomination, having
perpetual succession
@page-SC32
under an artificial form, and vested by the policy of the law with the capacity of acting in
several respects as an individual, particularly of taking and granting property, of
contracting obligations and of suing and being sued, of enjoying privileges and
immunities in common, and of exercising a variety of political rights, more or less
extensive, according to the design of its institution, or the powers conferred upon it,
either at the time of its creation or at any subsequent period of its existence". (Halsbury's
Laws of England, 3rd Edn. Vol. 9, page 4.) A corporation aggregate has therefore only
one capacity, namely, its corporate capacity. A corporation aggregate may be a trading
corporation or a non-trading corporation. The usual examples of a trading corporation are
(1) charter companies, (2) companies incorporated by special acts of parliament, (3)
companies registered under the Companies Act, etc. Non-trading corporations are
illustrated by (1) municipal corporations, (2) district boards, (3) benevolent institutions,
(4) universities etc. An essential element in the legal conception of a corporation is that
its identity is continuous, that is, that the original member of members and his or their
successors are one. In law the individual corporators, or members, of which it is
composed are something wholly different from the corporation itself; for a corporation is
a legal persona just as much as an individual. Thus, it has been held that a name is
essential to a corporation; that a corporation aggregate can, as a general rule, only act or
express its will by deed under its common seal; that at the present day in England a
corporation is created by one or other of two methods, namely, by Royal Charter of
incorporation from the Crown or by the authority of Parliament that is to say, by or by
virtue of statute. There is authority of long standing for saying that the essence of a
corporation consists in (1) lawful authority of incorporation, (2) the persons to be
incorporated, (3) a name by which the persons are incorporated, (4) a place, and (5)
words sufficient in law to show incorporation. No particular words are necessary for the
creation of a corporation; any expression showing an intention to incorporate will be
sufficient.
10. The learned Advocate for the petitioners has referred us to various provisions of the
Societies Registration Act, 1860 and has contended that the result of these provisions was
to make the Board a corporation on registration. It is necessary now to read some of the
provisions of that Act. The Act is entitled an Act for the registration of literary, scientific
and charitable societies and the preamble states that it was enacted for improving the
legal condition of societies established for the promotion of literature, science, or the fine
arts, or for the diffusion of useful knowledge etc., or for charitable purposes. Section 1 of
the Act states that any seven or more persons associated for any literary, scientific, or
charitable purpose, or for any such purpose as is described in Section 20 of the Act may,
by subscribing their names to a memorandum of association and filing the same with the
Registrar or Joint-stock Companies form themselves into a society under the Act. Section
2 lays down that the memorandum of association shall contain and one of the particulars
it must contain is "the objects of the society". Section 3 deals with registration and the
fees payable therefor. Sections 5 and 6 are important for our purposes and should be read
in full.
"5. The property, movable and immovable, belonging to a society registered under this
Act, if not vested in trustees, shall be deemed to be vested, for the time being, in the
governing body of such society, and in all proceedings, civil and criminal, may be
described as the property of the governing body of such society by their proper title.
6. Every society registered under this Act may sue or be sued in the name of the
president, chairman, or principal secretary, or trustees, as shall be determined by the rules
and regulations of the society, and, in default of such determination, in the name of such
person as shall be appointed by the governing body for the occasion :
Provided that it shall be competent for any person having a claim or demand against the
society, to sue the president or chairman, or principal secretary of the trustees thereof, if
on an application to the governing body some other officer or person be not nominated to
be the defendant."
Section 7 provides for non-abatement of suits or proceedings and the continuance of such
suits or proceedings in the name of or against the successor of the person by or against
whom the suit was brought. Section 8 says that if a judgment is recovered against a
person or officer named on behalf
@page-SC33
of the society, such judgment shall not be put in force against the property, movable or
immovable, or against the body of such person or officer, but against the property of the
society. Section 10 provides that in certain circumstances mentioned therein a member of
the society may be sued by the society; but if the defendant shall be successful in any
such suit brought at the instance of the society and shall be adjudged to recover his costs,
he may elect to proceed to recover the same from the officer in whose name the suit was
brought, or from the society. Sections 13 and 14 provide for dissolution of societies and
the consequences of such dissolution. These provisions have also an important bearing on
the questions before us and are quoted in full.
"13. Any number not less than three-fifths of the members of any society may determine
that it shall be dissolved, and thereupon it shall be dissolved forthwith, or at the time then
agreed upon, and all necessary steps shall be taken for the disposal and settlement of the
property of the society, its claims and liabilities, according to the rules of the said society
applicable thereto, if any, and, if not then as the governing body shall find expedient,
provided that, in the event of any dispute arising among the said governing body or the
members of the society, the adjustment of its affairs shall be referred to the principal
court of Original civil jurisdiction of the district in which the chief building of the society
is situate, and the Court shall make such order in the matter as it shall deem requisite :
Provided that no society shall be dissolved unless three-fifths of the members shall have
expressed a wish for such dissolution by their votes delivered in person, or by proxy, at a
general meeting convened for the purpose :
Provided that whenever any Government is a member of, or a contributor to, or otherwise
interested in any society registered under this Act, such society shall not be dissolved,
without the consent of the Government of the State of registration.
14. If upon the dissolution of any society registered under this Act there shall remain,
after the satisfaction of all its debts and liabilities, any property whatsoever, the same
shall not be paid to or distributed among the members of the said society or any of them,
but shall be given to some other society, to be determined by the votes of not less than
three-fifths of the members present personally or by proxy at the time of the dissolution,
or, in default thereof, by such Court as aforesaid :
Provided, however, that this clause shall not apply to any society which shall have been
founded or established by the contributions of shareholders in the nature of a Joint Stock
Company."
8. The other crucial question is whether the Absorption Rules applied to IERT. The
relevant provisions in the rules read as follows:
"In exercise of the powers conferred by the proviso to Article 309 of the Constitution, the
Governor is pleased to make the following rules to provide for the absorption in
Government Service of the retrenched employees of the Government or of Public
Corporations.
THE UTTAR PRADESH ABSORPTION OF RETRENCHED EMPLOYEES OF
GOVERNMENT OR PUBLIC CORPORATIONS IN GOVERNMENT SERVICE
RULES, 1991.
xx xx xx xx
2(b) "Public Corporation" means a body corporate established or constituted by or under
any Uttar Pradesh Act except a University or local authority constituted for the purpose of
Local Self Government and includes a government Company within the meaning of
Section 617 of the Companies Act, 1956 in which the State Government has
prepondering interest.
2(c) "Retrenched Employees" means a person who was appointed on a post under the
Government or a public corporation on or before October 1, 1986 in accordance with the
procedure laid down for recruitment to the post and was continuously working in any
post under the Government or such corporation up to date of his retrenchment due to
reduction in, or winding up of, any establishment or the Government of the Public
Corporation, as the case may be and in respect of whom a certificate of being retrenched
employees has been issued by his appointing authority."
9. A bare reading of the provisions makes the positions clear that in order to bring
application of the Rules the public corporation has to be a body corporate established or
constituted by or under any Uttar Pradesh Act.
@page-SC34
10. The fundamental requirement is that the corporation should have been constituted by
or under any Uttar Pradesh Act. Undisputedly, the Societies Act is a Central Act.
11. The impugned judgment of the High Court does not suffer from any infirmity to
warrant interference. The appeals are dismissed but without any order as to costs.
Appeals dismissed.
AIR 2008 SUPREME COURT 34 "Fruit Commission Agents Association v. Government
of Andhra Pradesh"
Civil Appeal Nos. 2426-2428 of 2000, D/- 20 -9 -2007.
Fruit Commission Agents Association and Ors. v. Government of Andhra Pradesh and
Ors.
A.P. Agricultural Produce and Live Stock Markets Act (16 of 1966), S.7 - Constitution of
India, Art.226, Art.162, Art.50 - AGRICULTURAL PRODUCE - WRITS - STATE
LEGISLATURE - DIRECTIVE PRINCIPLES - Lease of shops by market committee -
Fixation of Rent - Administrative function - Court would not sit in appeal over it -
Montesquieu's theory of separation of powers broadly applies in India. (Paras 14, 15)
2007 AIR SCW 5480 (Rel. on) 15
1994 AIR SCW 3344 : AIR 1996 SC 11 14
M. N. Rao and I. C. Narayana, Sr. Advocates, T. N. Rao, Ms. Manjeet Kirpal, Paramjeet
and D. Mahesh Babu, with them for the Appellants; S. Sundarvardan, Sr. Advocate, B.
Sridhar, K. Ram Kumar, Mrs. D. Bharathi Reddy and Debojit Borkakati, with him for the
Respondents.
* W. P. No. 2820 of 1992, D/- 17-2-1997 and W. P. Rev. Misc. P. Nos. 9554 and 9555 of
1997, D/- 29-4-1999 (A.P.)
Judgement
1. JUDGMENT :- Heard learned counsels for the parties.
2. These appeals under Article 136 of the Constitution have been filed against the
impugned judgment of the Andhra Pradesh High Court dated 17.2.1997 in W.P. No.2820
of 1992 which has followed the decision of the High Court dated 17.2.1997 in W.P.
No.2806 of 1992.
3. We have carefully perused the decision of the High Court in W.P. No.2806 of 1992 and
find no infirmity therein.
4. The facts of the case are that the wholesale business in fruits was located at Jambagh
area in Hyderabad city. Because of its location on either side of the road it gave rise to a
lot of traffic problems, and there were no facilities to the sellers and purchasers. Hence to
ease the growing traffic problems and provide better marketing facilities the Agricultural
Market Committee acquired 22 acres of spacious land at Gaddiannaram on the outskirts
of Hyderabad city at a cost of Rs.3.5 crores in 1985 for shifting of the wholesale market
there. It is alleged by the respondents that the type-design and proposed construction of
shop-cum-godowns (sheds) was taken up only after consultation with the representatives
of the Fruit Commission Agents who were doing business in Jambagh area, and shops
were constructed accordingly.
5. A procedure was formulated duly constituting a sub-committee for allotment of shops,
and the sub-committee invited the representatives of the Fruit Commission Agents, and
after consultation with them the shop-cum-godowns were allotted on lease for eleven
months based on the quantum of business turnover of each individual subject to payment
of monthly rent as fixed by the Agricultural Market Committee, Hyderabad.
6. On allotment of shop-cum-godowns the Commission agents have shifted their
wholesale business to the Fruit Market at Gaddiannaram. It is stated that the Market
Committee has constructed shop-cum-godowns on semi-permanent basis, the height of
each shed wall being 14' with brick masonry wall in cement mortar, well fabricated steel
tubular trusses covered by CGI sheets.
7. The appellants have alleged that the sheds are not pucca constructions and are not
permanent in nature, but this has been denied by the respondents. It is not possible for
this Court to adjudicate on this issue, and there is no discussion on this question in the
impugned judgment of the High Court. Hence it is evident that this point was not pressed
before the High Court.
8. The dispute in this case is about the rent. The rent was fixed by the Market Committee
taking into consideration the view expressed by the Fruit Commission Agents, and the
Government vide G.O. Rt. No. 589
@page-SC35
Food and Agriculture Department dated 6.4.1987 approved of the rent. The Market
Committee reviewed the rent after two years on the recommendation of the Executive
Engineer of the Market Committee.
9. The respondents have alleged that they have spent Rs.3.50 crores for purchase of the
land, and have provided various amenities and facilities to the traders e.g. bank building,
ryot rest house, open auction platforms, laying of cement roads in the market yard
incurring expenditure of Rs.3 crores etc. apart from spending Rs.2 lacs every month for
upkeep of the market yard. Water and electric supply, drainage and sanitation
arrangements have also been made there.
10. It may be mentioned that the appellant Fruit Commission Agents Association had also
filed W.P. No.10026 of 1992 in the High Court praying for a direction to the respondents
to construct a pucca permanent market complex and a learned Single Judge by order
dated 4.12.1992 directed the Market Committee to construct permanent sheds and hand
them over to the traders within six months. Aggrieved, appeals were filed being W.A.
No.342 of 1993 and 172 of 1993 which were disposed of with a direction to make certain
improvements. It is alleged by the respondents that accordingly cement concrete was laid
in between the two platforms, and other improvements were made. It is alleged that if the
present sheds are converted into R.C.C. structures it will involve a huge further cost. It is
alleged that the present shops-cum-godowns were constructed by the Market Committee
in 1986 after consultation with the appellant association. Concessional rent was initially
charged, and when the rent was revised W.P. Nos.2806 of 1992, 2820 of 1992 and 3565
of 1992 were filed, in which the impugned judgment was passed.
11. It is alleged by the respondents that they have already spent Rs.6.50 crores for this
purpose (Rs.3 crores for the land, and Rs.3.5 crores for the constructions). Two big size
platforms for auction of the fruits have been built in the market yard at a cost of Rs.62
lacs. Apart from that, one electronic weigh bridge and one cold storage plant with
capacity 3000 M.T. have been provided there. The Market Committee has constructed
RCC platforms for conduct of auctions, and has provided for free electricity, garbage
disposal etc. Rs.1.75 lac is spent every month for garbage disposal.
12. It is alleged that if pucca shops have to be built by the Market Committee it will entail
further expenditure of Rs.3.70 crores for only 51 shops-cum-godowns.
13. On the facts and circumstances of this case, we find there is no merit in these appeals.
In the judgment in W.P. No.2806 of 1992 which has been followed in the impugned
judgment in W.P. No.2820 of 1992 of 17.2.1997, it has been clearly mentioned that
various factors were taken into consideration by the Market Committee before fixing the
revised rent.
14
. Fixation of rent is an administrative function and the court cannot sit as a Court of
Appeal over administrative decisions vide Tata Cellular vs. Union of India AIR 1996 SC
11. Hence the view taken by the High Court is correct. 1994 AIR SCW 3344
15
. As we have held in S.C. Chandra and Ors. vs. State of Jharkhand and Ors. JT 2007 (10)
4 SC 272, the judiciary should exercise restraint and should not ordinarily encroach into
the legislative or executive domain. In our opinion fixing of the rent is an executive
function and hence the judiciary cannot interfere with the same except on Wednesbury
principles. There is broad separation of powers under the Constitution and ordinarily one
organ of the State should not encroach into the domain of another. Montesquieu's theory
of separation of powers (XIth Chapter of his book 'The Spirit of Laws') broadly applies in
India too. 2007 AIR SCW 5480
16. In the facts and circumstances of this case, we dismiss these appeals but with the
request to the Market Committee to consider any genuine grievances of the appellant
expeditiously. No costs.
Appeal dismissed.
AIR 2008 SUPREME COURT 35 "State of Punjab v. Deepak Mattu"
(From : Punjab and Haryana)*
-7 -2007.
State of Punjab v. Deepak Mattu. @page-SC36
Criminal P.C. (2 of 1974), S.389, S.362 - SENTENCE SUSPENSION - JUDGMENT -
APPEAL - HIGH COURT - Suspension of conviction pending appeal - No special
reasons assigned by High Court while passing order - Possible delay in disposal of appeal
and existence of arguable points - Not by itself be sufficient to grant suspension - High
Court while passing the said Order merely noticed some points which could be raised in
appeal - Grounds so taken do not suggest that respondent was proceeded against by State,
mala fide or in bad faith - Order was thus passed on wrong, illegal premise - High Court
has inherent power to modify its own interlocutory order when matter is yet to be finally
disposed of - Order declining to recall its own order - Liable to be set aside.
Cri. Misc. No. 51635 of 2005 in Cri. A. No. 1022-SB of 2004, D/- 17-1-2006 (P and H),
Reversed. (Paras 7, 9, 10, 11)
(2003) 12 SCC 434 8
2001 AIR SCW 3339 : AIR 2001 SC 3320 : 2001 Cri LJ 4234 3, 7, 8
Ms. Ruchira Gupta and Kuldip Singh, for Appellants; Neeraj Kumar Jain, Bharat Singh,
Sanjay Singh, Sandeep Chaturvedi and Ugra Shankar Prasad, for Respondents.
* Cri. Misc. No. 51634 of 2005 in Cri. A. No. 1022-SB of 2004, D/- 17-1-2006 (P and
H).
Judgement
2. Respondent is a public servant. He was proceeded against in a case under Prevention
of Corruption Act. He was sentenced to one and a half years (18 months) rigorous
imprisonment. A fine of Rs. 1,000/- (Rupees One Thousand Only) was also imposed upon
him by Special Judge, Fatehgarh Sahib, Punjab. He preferred an appeal thereagainst
marked as Criminal Appeal No. 1022-SB/04. In the said appeal, an application was filed
by the respondent for suspending of conviction purported to be under Section 389 of the
Code of Criminal Procedure, 1973. By reason of the Order dated 11.1.2005, learned
Judge of the Special Court allowed the said application holding;
"I have heard Ld. Counsel for the applicant-appellant Deepak Mattu and Deputy
Advocate General, Punjab appearing for the respondent on an application moved under
Section 389 Cr.P.C. for suspension of conviction recorded under Sections 7 and 13(2) of
the Prevention of Corruption Act.
The sentence of the appellant has already been suspended. He is working as Junior
Engineer in Punjab State Electricity Board. It is argued that if his conviction is not
suspended, he may have to face dismissal from service. Three flaws in the impugned
judgment have been pointed out. Firstly, that shadow witness has not been examined;
secondly, that the alleged demand was of Rs. 2000/- and this bribe money was allegedly
paid but at the time of recovery, only an amount of Rs. 1900/- was recovered; and thirdly,
there is no corroboration to the demand inasmuch as the complainant alone proved the
same and the shadow witness in whose presence it was made has not been examined.
It will take a long time to decide the appeal. There are fairly good points to argue. This
application is allowed and the conviction of the appellant is suspended during the
pendency of the appeal."
3
. An application was filed by the appellant herein for vacation of stay of conviction
granted to him by reason of the said order with a prayer to recall the same, whereby the
Court's attention was drawn to a judgment of this Court in K.C. Sareen Vs. C.B.I.,
Chandigarh [(2001) 6 SCC 584]. By reason of the impugned judgment while the Court
accepted that an order suspending the conviction could be allowed only in a very
exceptional case, dismissed the application of stay holding; 2001 AIR SCW 3339
"The present petition is not maintainable. Order dated 11.1.2005 can neither be reviewed
nor recalled. It was passed in the presence of the Deputy Advocate General, Punjab, who
represented the respondent-State. The merits of the case were considered. It was
considered that it will take a long time to decide the appeal and there are fairly good
points to be argued. Hence, application under Section 389 Cr.P.C. was allowed and the
conviction of the appellant recorded under Sections 7 and 13(2) of the Prevention of
Corruption Act was suspended during pendency of appeal. There is no blanket bar
imposed on the Appellate Court to grant stay of conviction in corruption cases. After
going through the 'grounds of appeal' and the contents of the application moved under
Section 389 Cr.P.C., it was
@page-SC37
considered that it was an exceptional case. Hence, the conviction was stayed during
pendency of the appeal. Sentence imposed on the appellant had already been stayed.
Now, there exists no reason, either for vacation of the order dated 11.1.2005 or to
review/recall the same."
4. Ms. Ruchira Gupta, learned counsel appearing on behalf of the appellant would submit
that the High Court being aware of the decisions of this Court holding that ordinarily the
suspension of conviction should not be granted, must be held to have committed a
manifest error in passing the impugned judgment. Mr. Neeraj Kumar Jain, learned
counsel appearing on behalf of the respondent on the other hand would submit that the
respondent being a government servant and he having been convicted only for a period of
one and a half years, the High Court cannot be said to have committed any error in
suspending the judgment of conviction. In any event, the learned counsel submitted that
the Court for all intent and purport having arrived at a decision that an exceptional case
have been made out, no interference therewith by this Court is warranted.
5. Section 389 of the Code of Criminal Procedure, 1973 reads as under :-
"389. Suspension of sentence pending the appeal; release of appellant on bail - (1)
Pending any appeal by a convicted person, the Appellate Court may, for reasons to be
recorded by it in writing, order that the execution of the sentence or order appealed
against be suspended and, also, if he is in confinement, that he be released on bail or on
his own bond:
Provided that the Appellate Court shall, before releasing on bail or on his own bond a
convicted person who is convicted of an offence punishable with death or imprisonment
for life or imprisonment for a term of not less than ten years, shall give opportunity to the
Public Prosecutor for showing cause in writing against such release.
Provided further that in cases where a convicted person is released on bail it shall be open
to the Public Prosecutor to file an application for the cancellation of the bail.
(2) The power conferred by this section on an Appellate Court may be exercised also by
the High Court in the case of an appeal by a convicted person to a Court subordinate
thereto.
(3) Where the convicted person satisfies the Court by which he is convicted that he
intends to present an appeal, the Court shall-
(i) where such person, being on bail, is sentenced to imprisonment for a term not
exceeding three years, or
(ii) where the offence of which such person has been convicted is a bailable one, and he
is on bail,
order that the convicted person be released on bail, unless there are special reasons for
refusing bail, for such period as will afford sufficient time to present the appeal and
obtain the orders of the Appellate Court under sub-section (1), and the sentence of
imprisonment shall, so long as he is so released on bail, be deemed to be suspended.
(4) When the appellant is ultimately sentenced to imprisonment for a term or to
imprisonment for life, the time during which he is so released shall be excluded in
computing the term for which he is so sentenced."
6. An order of suspension of conviction admittedly is not to be readily granted. The High
Court in its order dated 11.1.2005 passed a judgment irrespective of conviction and
sentence, only on two grounds;
(i) A long time may be taken to decide the appeal.
(ii) There are good points to argue.
7
. While passing the said Order, the High Court did not assign any special reasons.
Possible delay in disposal of the appeal and there are arguable points by itself may not be
sufficient to grant suspension of a sentence. The High Court while passing the said Order
merely noticed some points which could be raised in the appeal. The grounds so taken do
not suggest that the respondent was proceeded against by the State, mala fide or any bad
faith. In K.C. Sareen (supra), this Court opined; 2001 AIR SCW 3339, Paras 10 and
11
"11. The legal position, therefore, is this: though the power to suspend an order of
conviction, apart from the order of sentence, is not alien to Section 389(1) of the Code, its
exercise should be limited to very exceptional cases. Merely because the convicted
person files an appeal in challenge of the conviction the court should not suspend the
operation of the order of conviction. The court has a duty to look at all aspects
@page-SC38
including the ramifications of keeping such conviction in abeyance. It is in the light of the
above legal position that we have to examine the question as to what should be the
position when a public servant is convicted of an offence under the PC Act. No doubt
when the appellate court admits the appeal filed in challenge of the conviction and
sentence for the offence under the PC Act, the superior court should normally suspend the
sentence of imprisonment until disposal of the appeal, because refusal thereof would
render the very appeal otiose unless such appeal could be heard soon after the filing of
the appeal. But suspension of conviction of the offence under the PC Act, dehors the
sentence of imprisonment as a sequel thereto, is a different matter.
12. Corruption by public servants has now reached a monstrous dimension in India. Its
tentacles have started grappling even the institutions created for the protection of the
republic. Unless those tentacles are intercepted and impeded from gripping the normal
and orderly functioning of the public offices, through strong legislative, executive as well
as judicial exercises the corrupt public servants could even paralyse the functioning of
such institutions and thereby hinder the democratic polity. Proliferation of corrupt public
servants could garner momentum to cripple the social order if such men are allowed to
continue to manage and operate public institutions. When a public servant is found guilty
of corruption after a judicial adjudicatory process conducted by a court of law,
judiciousness demands that he should be treated as corrupt until he is exonerated by a
superior court. The mere fact that an appellate or revisional forum has decided to
entertain his challenge and to go into the issues and findings made against such public
servants once again should not even temporarily absolve him from such findings. If such
a public servant becomes entitled to hold public office and to continue to do official acts
until he is judicially absolved from such findings by reason of suspension of the order of
conviction, it is public interest which suffers and sometimes, even irreparably. When a
public servant who is convicted of corruption is allowed to continue to hold public office,
it would impair the morale of the other persons manning such office, and consequently
that would erode the already shrunk confidence of the people in such public institutions
besides demoralising the other honest public servants who would either be the colleagues
or subordinates of the convicted person. If honest public servants are compelled to take
orders from proclaimed corrupt officers on account of the suspension of the conviction,
the fallout would be one of shaking the system itself. Hence it is necessary that the court
should not aid the public servant who stands convicted for corruption charges to hold
only (sic) public office until he is exonerated after conducting a judicial adjudication at
the appellate or revisional level. It is a different matter if a corrupt public officer could
continue to hold such public office even without the help of a court order suspending the
conviction."
8
. In State of Maharashtra Vs. Gajanan and Another [(2003) 12 SCC 432], relying upon
another decision of this Court in Union of India Vs. Atar Singh [(2003) 12 SCC 434] and
also K.C. Sareen (supra), it was held;2004 AIR SCW 80
2001 AIR SCW 3339
"5. In the said judgment of K. C. Sareen this Court has held that it is only in very
exceptional cases that the court should exercise such power of stay in matters arising out
of the Act. The High Court has in the impugned order nowhere pointed out what is the
exceptional fact which in its opinion required it to stay the conviction. The High Court
also failed to note the direction of this Court that it has a duty to look at all aspects
including ramification of keeping such conviction in abeyance. The High Court, in our
opinion, has not taken into consideration any of the above factors while staying the
conviction. It should also be noted that the view expressed by this Court in K.C. Sareen
case was subsequently approved followed by the judgment of this Court in Union of India
v. Atar Singh".
9. Relying on the aforementioned two decisions, an order is passed in a wrong, illegal
premise. There is no impediment which comes on its way not to correct an apparent error.
Article 362 of the Code of Criminal Procedure is only operative in a situation where a
final order has been passed. The Code of Criminal Procedure confers inherent power in
the High Court unlike the lower court's.
10. We, therefore, see no reason as to why High Court cannot modify its own
interlocutory order when the matter is yet to
@page-SC39
be finally disposed of.
11. We, therefore, are of the opinion that the High Court was not correct in its view. We,
therefore, allow this appeal by setting aside both the orders. No costs.
Appeal allowed.
AIR 2008 SUPREME COURT 39 "Mohan Mahto v. M/s. Central Coal Field Ltd."
(From : Jharkhand)*
Civil Appeal No. 4339 of 2007(arising out of SLP (C) No. 13935 of 2006), D/- 18 -9
-2007.
Mohan Mahto v. M/s. Central Coal Field Ltd. and Ors.
(A) Industrial Disputes Act (14 of 1947), S.18, Sch.2, Item 6 - INDUSTRIAL DISPUTE -
COMPASSIONATE APPOINTMENT - SERVICE MATTERS - Industrial settlement -
Compassionate appointment made term of service conditions - Bona fide compliance
with settlement laying down service conditions expected of P.S. U. - Petitioner applying
for compassionate appointments - Application first rejected on ground of minority of
petitioner, then as his brother being employed - Thereafter as filed belated - Action of
PSU not bona fide - Petitioner directed to be appointed.
L. P. A. No. 142 of 2004, D/- 20-2-2006 (Jhar), Reversed. (Paras 16, 20)
(B) Industrial Disputes Act (14 of 1947), S.18 - INDUSTRIAL DISPUTE -
COMPASSIONATE APPOINTMENT - SERVICE MATTERS - Industrial settlement -
Service conditions fixed thereby - Compassionate appointment one of terms - No
limitation provided for filing application - Limitation provided by issuing Circular - Even
if jurisdiction of employer to do so is presumed - Circular Letter when it provided for
limitation with power of relaxation - Cannot be construed to be of imperative character.
(Para 17)
2007 AIR SCW 1169 : AIR 2007 SC 1155 13
2007 AIR SCW 1571 (Ref.) 14
2007 AIR SCW 3305 : 2007 (4) ALJ 308 (Ref.) 13
2005 AIR SCW 4102 : AIR 2005 SC 3275 : 2005 Lab IC 3597 (Disting.) 7, 8
2005 AIR - Jhar HCR 1099 7
1994 AIR SCW 2305 (Disting.) 19
AIR 1987 SC 1015 : 1987 Lab IC 707 13
Rajesh Kumar and D. B. Vohra, for Appellant; A. M. Singhvi, Sr. Advocate, Sunil Roy,
with him for Respondents.
* L.P.A. No. 142 of 2004, D/- 20-2-2006 (Jhar).
Judgement
2. Appellant's father Rameshwar Mahto was employed as a Fitter, Category IV, in a coal
mine belonging to the respondent known as Kuju Colliery. He died in harness on
23.02.1997. The terms and conditions of the service of the workmen working in coal
mines are inter alia governed by a 'Settlement' known as National Coal Wage Agreement
(N.C.W.A.) V. Indisputably, the said settlement, in terms of Sub-section (3) of Section 18
of the Industrial Disputes Act, 1947 is binding on the parties. Clause 9.3.2 of N.C.W.A. V
refers to appointment of dependants of the deceased employees working in the coal
mines; sub-clause (iii) of Clause 9.5.0 whereof reads as under:
"(iii) In case of death either in mine accident or for other reasons or medical unfitness
under clause 9.4.0, if no employment has been offered and the male dependent of the
concerned worker is 15 years and above in age he will be kept on a live roster and would
be provided employment commensurate with his skill and qualifications when he attains
the age of 18 years. During the period the male dependant is on live roster, the female
dependant will be paid monetary compensation as per rates at paras (i) and (ii) above."
3. Appellant filed an application for appointment on compassionate ground on
25.10.1997. The same was denied to him inter alia on the premise that he was a minor at
the relevant time. He filed an application in prescribed form upon attaining majority on
26.09.1999 which was rejected by an order dated 3.08.2000 stating :
"With reference to the letter No. GM(K)/PD-9.3.2/2000/749 dated Nil of Staff Officer
(P), Kuju Area this is to inform you that the proposal has not been agreed by the
competent authority since the dependent was not eligible for employment as he was
under age and also his name was not kept in live roaster. Also there was considerable
delay in applying for employment by the dependent."
4. Respondent purported to have issued
@page-SC40
a circular letter on 12.12.1995 providing for six months' limitation for filing such an
application for appointment on compassionate ground from the date of death of the
concerned employees in the following terms :
"It has been observed from the details of the statements prepared and submitted by the
Area for Placement Interview under para 9.4.2 of NCWA-IV, that cases pertaining to the
period beyond 6 months are also entertained without any reasoning. Considering this
situation also in order to streamline the activities of the manpower and to have effective
control over it, it has been decided that the cases falling beyond 6 months from the date
of death of the concerned employees, the dependent of the deceased employees will not
be entertained, unless express permission is given by Hqtrs. after thorough scrutiny of the
case. Now as action will be taken against those who fail to complete the work within
stipulated time.
Therefore, all the Staff Officers (Pers.) should discuss this matter with the Personnel
Executives of the Unit/Establishments and advise them accordingly."
5. It was replaced by another circular letter issued in the year 2000 stating :
"It has been observed from the case files received from areas for appointment of
dependants of ex-employees under para 9.3.2 of NCWA V/VI that the cases pertaining to
the period beyond six months are also entertained and sent without any reasoning.
Therefore, vide circular No. PD/MP/9.4.2/95/1151, dated 12.12.95 all areas were advised
that the cases falling beyond six months from the date of death of the concerned
employee will not be entertained unless express permission is given by Hqtrs. after
thorough scrutiny of the case.
Now in view of the persistent demands of unions relaxation was granted for one year
from Feb. 2000 which was subsequently discussed and reviewed in the meeting held with
unions at Corporate Level. It was decided that henceforth application submitted under
clause 9.3.2 within one year after demise of an employee will not be treated as belated
case. Thus the application submitted by dependant concerned after expiry of one year
from the date of death of ex-employee will not be considered for employment."
6. A writ petition was filed by the appellant before the High Court of Jharkhand, Ranchi
which was marked as WPS No. 471 of 2003 questioning the order declining him the grant
of appointment on compassionate ground by the respondent. Before the High Court, the
respondent took a stand that as the elder brother of the appellant has already been in
employment, he was not entitled thereto. The said contention has since been given up. A
learned Single Judge of the High Court took notice of the aforementioned circulars vis-a-
vis the relevant provisions of N.C.W.A. V holding :
"From the scheme quoted herein above, it is clear that if on the date of death of the
deceased employee, the male dependant is 15 years and above in age then he will be kept
on a live roster and would be provided employment commensurate with his skill and
qualification when he attains the age of 18 years. During the period the male dependant is
on live roster, the female dependant will be paid monetary compensation. Admittedly, in
1997 petitioner was more than 15 years of age and an application was filed by the
petitioner in 1997 but neither the petitioner was kept in live roster nor the widow of the
deceased employee was paid monetary compensation. After attaining 18 years of age
petitioner as per the aforesaid clause applied for compassionate appointment in 1999
which has been arbitrarily rejected by the respondents on the ground of delay. While the
petitioner approached this court by filing instant writ application third case has been
made out by the respondents that petitioner's appointment was refused on the ground of
his elder brother, having been in employment of the subsidiary company. This fact was
subsequently falsified in the manner discussed herein above.
For the aforesaid reasons, this writ application is allowed and the impugned letters are
quashed. Respondents are directed to give benefit of National Coal Wage Agreement VI
to the petitioner by appointing him in place of his deceased father, who died in harness,
as regular employee of the Company."
7. An intra-court appeal was preferred thereagainst by the respondent herein which by
reason of the impugned judgment was allowed by a Division Bench stating:
@page-SC41
"In the case of Commissioner of Public Instructions Vrs. K. R. Vishwa-nath, reported in
2005 (7) SCC 206, the Supreme Court held that the Court has no jurisdiction to extend
the period of limitation and so was of the view of the Division Bench of this Court in the
case of Sushil Kumar Vengra Vrs. Union of India reported in 2005 (1) JCR 282 (Jhr.)"
2005 AIR SCW 4102
2005 AIR Jhar HCR 1099
8. Mr. Rajesh Kumar, learned counsel appearing on behalf of the appellant, inter alia
submitted :
(i) the Division Bench of the High Court committed a serious error in relying upon the
judgment of this Court in Commissioner of Public Instructions and Others v. K.R.
Vishwanath [(2005) 7 SCC 206] as therein a statutory rule was made providing for a
limitation of one year for filing an application for appointment on compassionate ground
from the date of death of the employee; 2005 AIR SCW 4102
(ii) The period of six months envisaged under the circular letter dated 12.12.1995 will
have no application as : (a) it is directory in nature and (b) the same was substituted by
another circular of 2000.
9. Dr. A.M.Singhvi, learned senior counsel appearing on behalf of the respondents, on the
other hand, urged:
(i) Respondent as an employer is entitled to take a policy decision in regard to
implementation of the settlement.
(ii) Grant of appointment on compassionate ground, being an exception to Article 16 of
the Constitution of India, should be strictly construed.
(iii) As the circular letter issued in 2000 is prospective in nature, the same will have no
application in the instant case.
10. A settlement within the meaning of Sub-section (3) of Section 18 of the Industrial
Disputes Act is binding on both the parties and continues to remain in force unless the
same is altered, modified or substituted by another settlement. No period of limitation
was provided in the settlement. We would assume that the respondent had jurisdiction to
issue such circular prescribing a period of limitation for filing application for grant of
appointment on compassionate ground. But, such circular was not only required to be
strictly complied with but also was required to be read keeping in view the settlement
entered into by and between the parties. The expanding definition of workman as
contained in Section 2(s) of the Industrial Disputes Act would confer a right upon the
appellant to obtain appointment on compassionate ground, subject, of course, to
compliance of the conditions precedent contained therein.
11. The right to obtain appointment on compassionate grounds emanates from the
settlement. Settlement is defined in Section 2(p) of the Industrial Disputes Act to mean 'a
settlement arrived at in the course of conciliation proceeding and includes a written
agreement between the employer and workmen arrived at otherwise than in the course of
conciliation proceeding where such agreement has been signed by the parties thereto in
such manner as may be prescribed and a copy thereof has been sent to an officer
authorized in this behalf by the appropriate Government and the conciliation officer'.
12. Even in regard to prescription of a period of limitation, the respondent ought to have
kept in view the spirit thereof.
13. We are not oblivious that grant of appointment on compassionate ground is an
exception to Article 16(1) of the Constitution of India.
In I.G. (Karmik) and Ors. v. Prahalad Mani Tripathi [2007 (6) SCALE 370], this Court
observed : 2007 AIR SCW 3305
"An employee of a State enjoys a status. Recruitment of employees of the State is

governed by the rules framed under a statute or the proviso appended to Article 309 of the
Constitution of India. In the matter of appointment, the State is obligated to give effect to
the constitutional scheme of equality as adumbrated under Articles 14 and 16 of the
Constitution of India. All appointments, therefore, must conform to the said constitutional
scheme. This Court, however, while laying emphasis on the said proposition carved out
an exception in favour of the children or other relatives of the officer who dies or who
becomes incapacitated while rendering services in the police department. See Yogender
Pal Singh and Others v. Union of India and Others [A.I.R. 1987 SC 1015].
Public employment is considered to be a wealth. It in terms of the constitutional scheme
cannot be given on descent. When
@page-SC42
such an exception has been carved out by this Court, the same must be strictly complied
with. Appointment on compassionate ground is given only for meeting the immediate
hardship which is faced by the family by reason of the death of the bread earner. When an
appointment is made on compassionate ground, it should be kept confined only to the
purpose it seeks to achieve, the idea being not to provide for endless compassion.
In National Institute of Technology and Ors. v. Niraj Kumar Singh [2007 (2) SCALE
525], this Court has stated the law in the following terms :- 2007 AIR SCW 1169
"16. All public appointments must be in consonance with Article 16 of the Constitution of
India. Exceptions carved out therefore are the cases where appointments are to be given
to the widow or the dependent children of the employee who died in harness. Such an
exception is carved out with a view to see that the family of the deceased employee who
has died in harness does not become a destitute. No appointment, therefore, on
compassionate ground can be granted to a person other than those for whose benefit the
exception has been carved out. Other family members of the deceased employee would
not derive any benefit thereunder."
14
. In State Bank of India and Another v. Somvir Singh [(2007) 4 SCC 778], this Court held
: 2007 AIR SCW 1571
"10. There is no dispute whatsoever that the appellant-Bank is required to consider the
request for compassionate appointment only in accordance with the scheme framed by it
and no discretion as such left with any of the authorities to make compassionate
appointment dehors the scheme. In our considered opinion the claim for compassionate
appointment and the right, if any, is traceable only to the scheme, executive instructions,
rules etc. framed by the employer in the matter of providing employment on
compassionate grounds. There is no right of whatsoever nature to claim compassionate
appointment on any ground other than the one, if any, conferred by the employer by way
of scheme or instructions as the case may be."
15. The period of six months' limitation prescribed in the circular letter dated 12.12.1995
was not statutory. It is also not imperative in character. Even for entertaining such an
application beyond the period of six months, the Headquarters of the Central Coal Field
Limited is entitled to consider the facts and circumstances of each case. Admittedly,
Appellant filed an application for grant of appointment on compassionate ground when
he was a minor. His application was rejected on that premise at the first instance but even
at that point of time the respondent did not take a stand that the same had not been
entertained on the ground that the same was filed after expiry of the period of six months.
16. It is neither in doubt nor in dispute that the case for grant of compassionate
appointment of a minor was required to be considered in terms of sub-clause (iii) of
Clause 9.5.0 of the N.C.W.A.V. In terms of the said provision, the name of the appellant
was to be kept on a live roster. He was to remain on the live roster till he attained the age
of 18 years. Respondents did not perform their duties cast on them thereunder. It took an
unilateral stand that an application has been filed in the year 1999 in the prescribed form.
For complying with the provisions of a settlement which is binding on the parties, bona
fide or otherwise of the respondent must be judged from the fact as to whether it had
discharged his duties thereunder or not. In this case, not only it failed and/or neglected to
do so, but as indicated hereinbefore it took an unholy stand that the elder brother of the
appellant being employed, he was not entitled to appointment on the compassionate
ground. Thus, what really impelled the respondent in denying the benefit of
compassionate appointment to the appellant is, therefore, open to guess. We expect a
public sector undertaking which is a 'State' within the meaning of Article 12 of the
Constitution of India not only to act fairly but also reasonably and bona fide. In this case,
we are satisfied that the action of the respondent is neither fair nor reasonable nor bona
fide.
17. We have indicated hereinbefore, that it is not necessary for us to go into the question
as to whether on the teeth of the provision of N.C.W.A.V., the respondent at all had any
power to fix a time limit and thereby curtailing the right of the workman concerned. We
would assume that even in such a matter, it had a right. But, even for the said purpose,
keeping in view the fact that
@page-SC43
a beneficial provision is made under a settlement, the 'State' was expected to act
reasonably. While so acting, it must provide for a period of limitation which is
reasonable. Apart from the fact that the period of limitation provided for in the circular
letter with a power of relaxation can never be held to be imperative in character, the
matter should also be considered from the subsequent conduct of the respondent insofar
as it had issued another circular letter in the year 2000 providing for filing of an
application for appointment on compassionate ground within a period of one year. It may
be that the said circular letter has prospective operation but even in relation thereto we
may notice that whereas the said circular letter was issued upon holding discussion with
the Unions, the circular letter of the year 1995 was an unilateral one. Furthermore, in its
letter dated 2/3.08.2000, it will bear repetition to state, expiry of the period of limitation
was not taken as a ground for rejecting his application. Under-age and non-placement of
his name in live roster are stated to be the reasons. It is, therefore, unfair on the part of the
respondent to raise such a plea for the first time in its counter-affidavit to the writ
petition. If he was under-age, definitely, it was obligatory on the part of the respondent to
keep his name in the live roster. It was not done.
18
. Reliance placed by the High Court on K. R. Vishwanath (supra), with respect, is

misplaced. Therein, the terms and conditions of the parties were governed by a statute
known as 'Karnataka Civil Services (Appointment on Compassionate Grounds) Rules,
1996'. Rule 5 of the said Rules provided for a period of limitation. The said decision,
therefore, cannot be said to have any application whatsoever in the instant case. 2005
AIR SCW 4102
19
. In Umesh Kumar Nagpal v. State of Haryana and Others [(1994) 4 SCC 138]
whereupon reliance has been placed by Dr. Singhvi, this Court held : 1994 AIR
SCW 2305
"6. For these very reasons, the compassionate employment cannot be granted after a lapse
of a reasonable period which must be specified in the rules. The consideration for such
employment is not a vested right which can be exercised at any time in future. The object
being to enable the family to get over the financial crisis which it faces at the time of the
death of the sole breadwinner, the compassionate employment cannot be claimed and
offered whatever the lapse of time and after the crisis is over."
What should be a reasonable period would depend upon the rules operating in the field.
20. For the reasons aforementioned, the impugned judgment cannot be sustained which is
set aside accordingly. The appeal is allowed. Respondent is hereby directed to offer
appointment to the appellant on a suitable post within eight weeks from date. As the
appellant is not in employment for a long time, he is entitled to costs throughout.
Counsel's fee assessed at Rs. 25,000/-.
Appeal allowed.
AIR 2008 SUPREME COURT 43 "Sunil Kumar Parimal v. State of Bihar"
(From : Patna)
Coram : 2 H. K. SEMA AND LOKESHWAR SINGH PANTA, JJ.
-2007.
Sunil Kumar Parimal and Anr. v. State of Bihar and Ors.
National Council for Teacher Education Act (73 of 1993), S.16 - Bihar School
Examination Board Rules (1963), R.7 - EDUCATION - SUPREME COURT - Provisions
of Act have prospective application - Students admitted in Colleges which were earlier
recognised - Completing D.P. Ed. and C.P. Ed. Courses before enforcement of Act - But
unable to undertake exam. because of School Board's failure to hold exam. - Cannot be
debarred from undertaking exam. on ground that their Colleges have lost recognition
after enforcement of Act - Court by exercising powers under Art. 142 directed State Govt.
and Board to permit such students to appear at next Board exam. (Paras 21, 22)
Dr. Rajeev Dhawan, Sr. Advocate, T. V. George and Lokesh Kr. Gunjan, with him for
Appellants; Gopal Singh, Anukul Raj, Rituraj Biswas, M. P. Jha, Ram Ekbal Roy,
Harshvardhan Jha and Gaurav Agrawal, for Respondents.
Judgement
1. LOKESHWAR SINGH PANTA, J. :- Special leave granted.
2. This appeal, by special leave, has been preferred by the appellants against the judgment
and order dated 24.01.2007 of a
@page-SC44
Division Bench of the High Court of Judicature at Patna by which L.P.A. No. 697/2006
filed by the appellants was dismissed and thereby the order of the learned Single Judge
dated 12.09.2006 dismissing the C.W.J.C. No. 8091/2006 of the appellants came to be
affirmed.
3. The facts in brief giving rise to the filing of this appeal are as follows :-
Tirhut Physical Education College, Muzaffarpur respondent No. 7 (hereinafter referred to
as respondent College) was established in the year 1938. The State of Bihar respondent
No. 1 (for short 'respondent-State') by Notification No. 25 dated 6.11.1993 granted
permission to the respondent-College to enroll one hundred students in C.P. Ed. and one
hundred students in D.P. Ed. Courses for the Sessions 1993-94 to 1995-96.
4. Sunil Kumar Parimal-appellant No. 1 herein claims to be a first class post-graduate in
Geography from Mithila University. He was enrolled in the respondent-College in C.P.
Ed. Course for the academic session 1993-94. He completed his C.P. Ed course in March,
1995. His name was sent by the respondent-College for appearing in the examination to
be conducted by the Bihar School Examination Board, Bihar, Patna-respondent No. 4
(hereinafter referred to as the "respondent-Board").
5. Shiv Shankar Roy-appellant No. 2 is a Graduate in Commerce from Mithila University.
He took admission to the D.P. Ed. course for the academic session 1995-96. He
completed his course in March, 1996. The name of appellant No. 2 was also sent by the
respondent-College to the respondent-Board for taking the examination. However, no
examination was conducted by the respondent-Board who is entrusted the responsibility
of holding the examination for the said courses by the respondent-State.
6. The appellants and other similarly placed candidates along with the Principal of the
respondent-College, made several representations requesting the respondent-authorities to
take the examinations of C.P. Ed and D.P. Ed. courses for the academic sessions 1994-95
and 1995-96. It appears that on 26.11.1998, the Deputy Secretary (Art, Culture and Youth
Department), Government of Bihar, wrote a letter to the Secretary of respondent-Board,
directing the latter to conduct the postponed examination of the students of C.P. Ed and
D.P. Ed for the academic sessions 1994-95 and 1995-96. It is the case of the appellants
that on 18.12.1999, the Department of Art, Culture and Youth Affairs, Government of
Bihar forwarded the list of the students to the respondent-Board who had to appear in the
examination of C.P. Ed and D.P. Ed from respondent-College for the sessions 1994-95
and 1995-96. On 26.06.2001, the respondent-Board wrote a letter to the Deputy Secretary
(Art, Culture and Youth Affairs Department), Government of Bihar, in which it was stated
that the list of the candidates of two colleges, namely, respondent-College and Urs Line
Women Physical Education College, Lohardugga, had been received but the list of
candidates of remaining three colleges was not received which was requested to be sent
so that steps to hold the examination collectively could be taken. After it was learnt that
the respondent-Board was contemplating to hold the examination for the said courses in
the month of November, 2002, the students made representation to the respondent-State
and a copy thereof was forwarded to the respondent-Board requesting the authorities to
allow them to appear in the examination likely to be conducted in November, 2002.
7. It appears that on 5.10.2002 the Deputy Secretary (Art Culture and Youths
Department) wrote one more letter to the respondent-Board asking the Examination
Committee of the Board to conduct the examination of students of C.P. Ed and D.P. Ed
courses who were enrolled by the respondent-College for sessions 1994-95 and 1995-96
along with examination of students of Government Health and Physical Training College,
Bihar, Rajendra Nagar, Patna. Again on 8.10.2002, the Principal of the respondent-
College wrote a letter to the Secretary of the respondent-Board bringing to his notice the
sad and miserable plights of the students of C.P. Ed and D.P. Ed. courses who were to
appear in the examination for the academic sessions 1994-95 and 1995-96. He also
requested the Secretary to permit those students to appear in the examination with the
students of Government Health and Physical Education
@page-SC45
College, Rajendra Nagar, Patna. It appears from the record that in November, 2002 the
respondent-Board had conducted examinations for C.P. Ed and D.P. Ed courses for the
students of Government Health and Physical Education College, Rajendra Nagar, Patna,
but it did not allow the students of the respondent-College to take the examination. In the
year 2006, when the appellants again came to know that the respondent-Board was
contemplating to conduct examination of C.P. Ed and D.P. Ed courses for the students of
Government Health and Physical Education College, Rajendra Nagar, Patna, and also
former students of Koshi Physical Education College, Madepura, they immediately
approached the Principal of the respondent-College, who informed them that the
candidates of their institution were debarred by the respondent-Board from taking the
examinations.
8. The appellants left with no other alternative remedy but to approach the High Court on
17.8.2006 by means of C.W.J.C. No. 8091/2006 seeking a writ of mandamus against the
State of Bihar-respondent No. 1, Joint Secretary (Art, Culture and Youth Affairs
Department), Government of Bihar respondent No. 2, Director (Art, Culture and Youth
Affairs Department), Government of Bihar-respondent No. 3, Bihar School Examination
Board-respondent No. 4, Chairman, Bihar School Examination Boardrespondent No. 5,
Secretary, Bihar School Examination Board-respondent No. 6 and Vice Principal, Tirhut
Physical Education College-respondent No. 7, to allow them to appear in the examination
and thereafter publish their result. The appellants filed IA No. 3323/2006 praying for an
interim direction to the respondent-State to consider their applications for the posts of
Physical Training Teachers during ensuing recruitment. The learned Single Judge on
19.8.2006 directed the respondent-State to consider the said request of the appellants.
9. On 12.09.2006, learned Single Judge dismissed the writ petition of the appellants
primarily on the ground that on and with effect from the day of enforcement of the
National Council for Teacher Education Act, 1993, the respondent-College was de-
recognised and as a result thereof the respondent-Board is not competent to allow the
students to appear in the examination, who is pursuing or has pursued the course in a
non-recognised institution.
10. Being aggrieved by the order of the learned Single Judge, the appellants preferred
Letters Patent Appeal No. 697/2006 before the Division Bench of the High Court. The
Division Bench, as stated above, dismissed the LPA on 24.01.2007. Hence, the appellants
are before this Court by way of this appeal.
11. This Court on 26.02.2007 ordered issue of notice to the respondents made returnable
within two weeks. In response to the notice, Shri Janardhan Prasad Singh, Deputy
Director (Youth Affairs) Department of Art, Culture and Youth Affairs, Government of
Bihar-respondent No. 4 has filed counter affidavit in which it is fairly admitted that the
National Council for Teacher Education Act, 1993 (hereinafter referred to as the NCTE
Act) will not be applicable to the students who had completed their courses before the
enforcement of the Act, and the provisions of clause B of Section 16 of the NCTE Act
will not apply with regard to examination of those candidates who have completed their
courses from a recognized institution before the commencement of the Act. It is next
submitted that for the purpose of conducting the timely examination for the courses of
C.P. Ed and D.P. Ed, the list of students of the respondent-College for the sessions of
1994-95 and 1995-96 was sent to the Secretary of respondent-Board vide letter No. 386
dated 18.12.1999 followed by reminder letter No. 646 dated 05.10.2002 with clear
instructions to conduct the said examination. It is also stated that vide letter No. 137
dated 24.10.2002 the Secretary to the respondent-Board informed the Department that as
the said list of the candidates was not verified, therefore, the examination could not be
conducted without proper verified list. The Deputy Director in the counter affidavit has
categorically stated that the Department of Art, Culture and Youth Affairs is not the
verifying authority. The deponent stated that the recognitions of all Physical Training
Colleges have been cancelled with retrospective effect vide Departments order dated
13.04.2004.
12. Shri Raghavendra Nath Tiwary, Law Officer in the respondent-Board has filed joint
counter affidavit on behalf of the Chairman and the Secretary of the respondent-Board.
The stand projected in the counter is that vide Memo No. 382 dated 13.4.2004, the
Department of Art, Culture and Youth Welfare of the respondent-State has cancelled the
recognition of the respondent-College and the respondent-Board will conduct department
examinations including diploma in Physical Education/Certificate in
@page-SC46
Physical Education in terms of Rule 7 of the Bihar School Examination Board Rules,
1963 on such terms and conditions, as may be laid down by the State Government. The
respondent-Board has stated that the appellants could not be permitted to take
examination in the year 2004 because by that time the recognition of the respondent-
College was cancelled.
13. It appears from the record that on 23.07.2007, this Court passed the following order :
"After hearing learned counsel for the parties, it is seen that by a letter dated 05.10.2002
addressed to the Secretary, Bihar School Examination Committee, Patna, the State
Government has requested that the examination of neglected students of C.P. Ed. and D.P.
Ed. of Tirhut Physical Training College, Muzaffarpur belonging to the Sessions 1994-95
to 1995-96 be conducted with Government Health and Physical Training College, Bihar,
Rajendra Nagar, Panta.
Mr. M.P. Jha, learned counsel appearing for the Board, shall receive a definite instruction
as to what action has been taken pursuant to the aforesaid letter. He shall also receive a
definite instruction as to any impediment in holding the examination in respect of the
petitioners, namely, Sunil Kumar Parimal and Shiv Shankar Roy.
14. In pursuance to the above said order, respondent Nos. 4 to 6 have filed joint
additional affidavit stating therein that the Chairman of the respondent-Board wrote a
letter No. K-137 dated 24.10.2002 to the Secretary to respondent-State requesting him to
send the verified list of students but till date, no verified list of students was sent by the
Department and as such, the students of the respondent-College could not appear in the
examination held by the respondent-Board. It is also stated that the respondent-Board
before holding the examination in the year 2006, has also requested the Department of
Art, Culture and Youth, Government of Bihar, to send the details of eligible colleges, but
till date, no such details of the eligible colleges have been sent by the Department.
15. The appellants in the rejoinder affidavit filed to the additional affidavit of respondent
Nos. 4 to 6, have stated that the contents of the additional affidavit filed by the
respondent Nos. 4 to 6 are misleading and contrary to the stand of the respondent-State.
They stated that in spite of repeated requests of the concerned Department of the
respondent-State, the respondent-Board has miserably failed to discharge its function, as
a result thereof, the appellants have suffered for no fault on their part.
16. We have heard learned counsel for the parties and perused the material on record.
17. In the backdrop of the pleadings of the parties and documents appearing on record,
the undisputed facts emerging therefrom are that both the appellants took their admission
in C.P. Ed. and D.P. Ed. courses for the sessions 1994-95 and 1995-96 in the recognised
respondent-College. The examinations for the said courses were to be held by the
respondent-Board. The respondent-Board has not taken any steps to discharge its
obligation and responsibility of holding the examinations for the sessions 1994-95 and
1995-96. On 18.12.1999, the Department of Art, Culture and Youth Affairs, Government
of Bihar, forwarded a list of the eligible students who were to appear in the examination
of C.P. Ed and D.P. Ed. courses from different Colleges in the State of Bihar for the
academic sessions 1994-95 and 1995-96 to the respondent Board. The Secretary to the
respondent-Board on 26.06.2001 wrote a letter to the Deputy Secretary, Department of
Art, Culture and Youth Affairs, which reads as under :-
"You have made the recommendation to hold the examination of five colleges, out of the
above, list of the candidates of two colleges, namely :
1. Tirhut College of Physical Education, Muzaffarpur
2. Urs Line Women Physical Education College, Lohardugga.
List of the remaining three colleges has not been sent as yet.
Thus, it is again requested as per the directions that send the list of the candidates of
remaining three colleges be sent so that steps to hold the examination collectively could
be taken.
18. In reply to the above-said letter, the Deputy Secretary (Art, Culture and Youth Affairs
Department), Government of Bihar, vide letter No. 19/12/98-Youth dated 5.10.2002
requested the Examination Committee of the respondent-Board to conduct
@page-SC47
the examination for students of C.P. Ed. and D.P. Ed. course of the respondent-College
along with the examination proposed to be held for the students of Government Health
and Physical Training College, Bihar, Rajendra Nagar, Patna. The Principal of the
respondent-College on 8.10.2002 also wrote a letter to the Secretary of the respondent-
Board bringing to his notice the sad and miserable plight of the appellants and other
students of the C.P. Ed. and D.P. Ed. courses for academic sessions 1994-95 and 1995-96
and requested the Examination Committee of the respondent Board to conduct the
examination of those students along with the examination likely to be conducted for the
Government Health and Physical Education College, Rajendra Nagar, Patna. The
respondent-Board in November, 2002 conducted the examinations for C.P. Ed. and D.P.
Ed. courses for the students of Government Health and Physical Education College,
Rajendra Nagar, Patna, but it refused to admit the appellants and other students to take
the examinations.
19. It appears from the record that Memo No. 1172 dated 31.10.2006 was sent by Shri
Rama Shankar Tiwari, Secretary (Art, Culture and Youth Affairs Department) to the
Government of Bihar, to the Secretary, Bihar School Examination Board, which reads as
under :-
"With reference to your aforesaid subject letter No. 411 dated 26.06.2001, it is to say that
the list of sent-up students of C.P. Ed. and D.P.Ed. course of Tirhut Physical Training
College, Muzaffar for the sessions 1994-95 to 1995-96 was sent for conducting
examination vide departmental letter-386 dated 18.12.2001 of whose examination has not
been conducted till date.
Therefore, it is requested that the examination of sent-up students of C.P. Ed. and D.P. Ed.
course of Tirhut Physical Training College, Muzaffar for the sessions 1994-95 to 1995-96
be conducted along with State Health and Physical Training College, Rajendra Nagar,
Bihar, Patna."
20. Despite clear and categorical instructions and repeated suggestions by the Deputy
Secretary (Art, Culture and Youth Affairs Department), Government of Bihar, vide letter
No.19/12/98-Youth dated 5.10.2002 and also by the Secretary of the concerned
Department in terms of Memo No.1172 extracted hereinabove, the respondent-Board has
failed to discharge its function and responsibility of holding the examination entrusted to
it by the State Government, which has resulted in irreparable loss to the appellants. The
respondent-Board has not given any plausible and tenable explanation for debarring the
appellants from taking examination with the students of C.P. Ed. and D.P. Ed. courses of
the Government Health and Physical Training College, Bihar, Rajendra Nagar, Patna.
21. In the above-noted peculiar facts and circumstances of the case, we are of the opinion
that it is a fit case where we should not hesitate to exercise our jurisdiction under Article
142 of the Constitution of India to do complete justice to the appellants to whom palpable
injustice is shown to have been done because of the sheer fault and inefficiency of the
respondent-Board, who, despite repeated requests of the State authorities, did not take
steps to admit the appellants to appear in the examination till the respondent-College was
de-recognised in terms of the provisions of the NCTE Act. It is again unfortunate that in
spite of fighting a long legal battle for vindicating their genuine and legitimate claims, the
appellants could not get any justice even from the court of law. Thus, in our considered
view, the order of the learned Single Judge as affirmed by the Division Bench of the High
Court holding that the respondent-College has since been de-recognised after the
enforcement of the NCTE Act, therefore, the appellants could not be granted the
permission to take examination of the C.P. Ed. and D.P. Ed. courses from the
unrecognized institution, is erroneous and untenable. The NCTE Act came into force with
effect from 17.08.2005 and its provisions will be applicable prospectively to those
students who have undertaken examination after 17.08.2005 from recognised institution.
The respondent-College has lost its recognition only with effect from 17.08.2005 when
the NCTE Act was enforced and before that date, the respondent-College was duly
recognised institution by the State Government. Therefore, the finding and reasoning of
the High Court holding the appellants not eligible to appear in the examination of C.P.
Ed. and D.P. Ed. courses from the respondent-College are not based on proper
appreciation of facts of the case and principles of law.
22. We, in the interest of justice to the appellants, direct respondent Nos. 1 to 6 to
@page-SC48
permit the appellants to appear in the examination for the courses of C.P. Ed. and D.P. Ed.
for the sessions 1994-95 and 1995-96 to be conducted by the respondent-Board on the
next available opportunity in the near future and thereafter the result of the appellants
shall be declared without loss of further time.
23. For the reasons afore-stated, the impugned judgment and order dated 24.01.2007 of
the Division Bench of the High Court in LPA No. 697/2006 upholding the judgment and
order dated 12.09.2006 of the learned Single Judge passed in C.W.J.C. No. 8091/2006 is
not justified and cannot be sustained in law. It is, accordingly, set aside. The appeal is
allowed accordingly. The C.W.J.C. No. 8091/2006 filed by the appellants in the High
Court of Judicature at Patna shall stand allowed. However, the parties are left to bear their
own costs.
24. We make it clear that the observations made by us are only prima facie and tentative
observations for the disposal of this appeal and the same would not be construed as an
expression of opinion on the merits of any future proceedings of any nature, if any,
between the parties in this appeal.
Appeal allowed.
AIR 2008 SUPREME COURT 48 "Dhampur Sugar Mills Ltd., M/s. v. State of U. P."
(From : 2005 (5) All WC 5089)
Coram : 2 C. K. THAKKER AND ALTAMAS KABIR, JJ.
Civil Appeal No. 4466 of 2007 (arising out of SLP (Civ.) No. 4137 of 2005), D/- 24 -9
-2007.
M/s. Dhampur Sugar Mills Ltd. v. State of U.P. and Ors.
(A) Constitution of India, Art.226 - U.P. Sheera Niyantran Adhiniyam (24 of 1964), S.9 -
WRITS - APPEAL - POLICY DECISION - Alternative remedy - Petition challenging
Govt. order directing Sugar Mills to supply 20% of molasses to manufacturer of country
liquor - Appeal provided under Act - Would be an empty formality - Being against policy
decision of Govt. - Writ petition is maintainable. (Para 16)
(B) U.P. Sheera Niyantran Adhiniyam (24 of 1964), S.14, S.22 - U.P. Sheera Niyantran
Niyamavali (1974), R.14 - AGRICULTURAL PRODUCE - IMPORT AND EXPORT -
Sugar Mill - Compulsory supply of molasses to country liquor manufacturers - Order
dated 9-6-2004, Cl. (3) - Makes supply compulsory only in case sugar mill has "balance
stock" available.
2005 (5) All WC 5089, Reversed. (Paras 20, 46)
(C) U.P. Sheera Niyantran Adhiniyam (24 of 1964), S.3, S.22 - U.P. Molasses Advisory
Committee Rules (1965), R.3 - INTERPRETATION OF STATUTES - Advisory
Committee - Constitution of - Mandatory on Govt. - Use of word 'may' in S. 3 - Cannot
be construed as directory.
Interpretation of Statutes - Word "may" - Connotation.
The Govt. ought to constitute an "advisory committee" as provided under Act. From the
mere use of expression 'may' in S. 3 it cannot be said that the provision is directory. Mere
use of word 'may' or 'shall' is not conclusive. The question whether a particular provision
of a statute is directory or mandatory cannot be resolved by laying down any general rule
of universal application. Such controversy has to be decided by ascertaining the intention
of the Legislature and not by looking at the language in which the provision is clothed.
And for finding out the legislative intent, the Court must examine the scheme of the Act,
purpose and object underlying the provision, consequences likely to ensue or
inconvenience likely to result if the provision is read one way or the other and many more
consideration relevant to the issue. (Para 29)
Considering the legislative scheme as also Rules and particularly Rules relating to
constitution of Committee the investment of power in the State Government is not merely
enabling or discretionary. It is obligatory on the Government to constitute a Committee to
carry out the purpose and object of the Act. The Committee has to perform an important
role of advising the State Government "on matters relating to the control of storage,
preservation, gradation, price, supply and disposal of molasses". The constitution of the
Committee, as envisaged by Rule 3 of Rules clearly shows the representation of various
groups and interests likely to be affected. Rule 11 requires the Chairman (Controller of
Molasses) to "give due consideration of the resolutions passed by the Committee and
forward it to the State
@page-SC49
Government for orders together with a copy of the proceedings and his
recommendations". It is not open to the State Government to ignore this salutary
provision taking specious plea that the provision relating to constitution of Committee is
enabling, directory or discretionary and State, therefore, is not obliged to constitute such
Committee. (Para 45)
1998 AIR SCW 2985 : AIR 1998 SC 3076 : 1998 All LJ 2239 14, 15
1995 AIR SCW 313 7, 9
AIR 1980 SC 1622 : 1980 Cri LJ 1075 41
AIR 1978 SC 955 (Rel on) (Pt-C) 37
(1968) AC 997 : (1968)1 All ER 694 : (1968)2 WLR 924 (HL) 36
AIR 1952 SC 16 39
AIR 1923 PC 138 (Rel on) (Pt C) 38
(1911)2 QB 1311 37
(1980) 44 Ch D 262 : 59 LJ Ch 661 31
(1889) 60 LT 963 37
(1880) 5 AC 214 : 49 LJ QB 577 : (1874-80) All ER (Rep) 43 (HL)32, 44
Dushyant Dave, Sr. Advocate, Rajesh Kumar and Bharat Singh, for Appellants; Dinesh
Dwivedi, Sr. Advocate, Raj Kumar Gupta, Rajeev Dubey and Kamlendra Mishra, for
Respondents.
Judgement
C. K. THAKKER, J. :- Leave granted.
2. The present appeal is directed against the judgment and final order passed by the
Division Bench of the High Court of Judicature at Allahabad dated October 29, 2004 in
Civil Miscellaneous Writ Petition No. 1369 of 2004. By the said order, the High Court
dismissed the writ petition filed by the writ petitioner-appellant herein.
3. Facts in nutshell giving rise to the writ petition as well as present appeal may now be
stated.
4. The appellant-M/s Dhampur Sugar Mills Ltd. ('Company' for short) is a Public Limited
Company incorporated under the Companies Act, 1956 having its registered office at
Dhampur (Bijnor). The appellant has sugar mill in the State of Uttar Pradesh and has also
a distillery. The distillery manufactures ethyl alcohol, used for blending of petrol,
manufacture of chemicals and rectified spirit for medicines. It is also having a similar
business at Asmouli, District Moradabad, Mansurpur, District Muzaffarnagar and
Rozagaon, District Barabanki The writ petitioner approached the High Court by invoking
Article 226 of the Constitution against the respondents for issuance of appropriate writ,
direction or order quashing certain Government Orders said to have been passed by the
Authorities under the Uttar Pradesh Sheera Niyantran Adhiniyam, 1964 [Act XXIV of
1964] (hereinafter referred to as the Act) directing the writ-petitioner to supply 20% of
the molasses produced by the sugar mills for manufacturing country made liquor by
distilleries for the financial years 2003-04 and 2004-05. The writ petitioner also
challenged consequential action of issuance of show cause notices as to why it should not
be prosecuted for committing offences punishable under the Act since it has not complied
with the orders issued by the Authorities and has not supplied 20% molasses for
manufacturing country liquor. The main challenge of the writ petitioner was that though
the Company was producing molasses, the entire production was required by the
Company itself which was used for captive consumption and even that was not sufficient.
The Company had, therefore, obtained permission from the Government for import of
molasses from other States as also other Countries. Since the writ petitioner did not have
balance or extra stock of molasses for being supplied to distilleries for manufacturing
country-made liquor, the Authorities could not compel the writ petitioner to supply
molasses as directed in various Government Orders and Letters. Such action was
improper, illegal, arbitrary and unreasonable, inconsistent with the provisions of the Act
as also violative of Articles 14 and 19(1)(g) of the Constitution. The action was also
against public policy reflected in Article 47 of the Constitution. It was contended that
since the above directives could not have been issued by the Authorities, issuance of
show cause notices as to why the writ petitioner should not be prosecuted also were not
legal and the prosecution should be quashed. It was also the case of the writ petitioner
that the State Government ought to have constituted 'Advisory Committee' under Section
3 of the Act.
5. The stand of the Government before the High Court was that in accordance with the
provisions of the Act and the Uttar Pradesh Sheera Niiyantran Niyamavali, 1974
(hereinafter referred to as 'the Rules'), it was open to the Authorities to ask the writ
petitioner to supply 20% molasses for the
@page-SC50
purpose of manufacturing country liquor. As the said action was in consonance with law,
the Company was bound to supply 20% molasses for the said purpose and the action
could not be termed as illegal or unlawful.
6. It was also contended by the respondents that an alternative and equally efficacious
remedy of filing an appeal under Section 9 of the Act was available to the Company and
hence writ petition was not maintainable.
7
. As to Article 47 of the Constitution, the case of the State Government was that the point
was finally concluded by a decision of this Court in Khoday Distilleries Ltd. and Ors. v.
State of Karnataka and Ors., (1995) 1 SCC 574 : JT 1994 (6) SC 588 in favour of the
State. Section 3 of the Act, according to the State, was merely an enabling provision and
thus directory in nature and the writ petitioner could not compel the State to constitute
'Advisory Committee'. 1995 AIR SCW 313
8. The High Court, after hearing the parties, held that preliminary objection raised by the
respondents was not well-founded. Considering the totality of facts and circumstances
and the decisions taken by the respondents, the High Court held that approaching the
Appellate Authority would be a 'futile attempt'. The High Court, considering various
decisions of this Court on the point, held that it would not be justified in dismissing the
petition on the ground of alternative remedy and the said objection was not well-founded.
9. The Court ruled that apart from the fact that Article 47 of the Constitution could not be
enforced by a Court of Law, the point no longer survived in the light of decision of the
Apex Court in Khoday Distilleries Ltd. Section 3 of the Act, according to the High Court,
was only directory and if 'Advisory Committee' was not constituted by the State, the
powers under the Act could be exercised by the Controller appointed by the State.
10. On merits, the Court held that the reservation for 20% of molasses and directive
issued to the writ petitioner to supply such stock for manufacturing country liquor was
neither contrary to law nor against public policy. The order, therefore, could have been
issued by the Authorities as it was open to the Authorities to ask for 20% molasses from
the writ petitioner for manufacturing country liquor. The Company was bound to supply
the stock and as it was not done, the Authorities were right in taking appropriate action in
accordance with law. Accordingly, the High Court dismissed the writ petition.
11. On May 2, 2005, notice was issued by this Court. The matter appeared on Board
thereafter from time to time and ultimately on March 2, 2007, the Registry was directed
to place the matter for final disposal on a non-miscellaneous day. That is how the matter
has been placed before us.
12. We have heard the learned counsel for the parties.
13. The learned counsel for the appellant contended that Section 3 of the Act enjoins the
State Government to constitute an 'Advisory Committee' to advise on matters relating to
the control of storage, preservation, gradation, price, supply and disposal of molasses
under the Act. It was, therefore, incumbent on the State Government to constitute such
Committee. There is no such Committee at present as envisaged by the Act though such
Committee was there in past. This is contrary to law and against the legislative mandate.
In absence of such Committee, no directive can be issued by the Controller to supply
molasses. All the directives are, therefore, without authority of law and are required to be
set aside. It was also contended that such directives are against public policy reflected in
the Directive Principles of State Policy enshrined in Part IV of the Constitution and in
particular, Article 47 which requires the State to endeavour to bring about prohibition of
intoxicating drinks. The State Government wedded with implementation of principles
enumerated in Part IV of the Constitution cannot issue an order that molasses should be
reserved for manufacturing 'country liquor' and such a directive cannot be enforced. On
that ground also, the impugned directives are liable to be quashed. It was further urged
that alternatively the impugned directive is explicitly clear and requires a sugar mill to
reserve 20% of molasses from the balance stock i.e. over and above actual consumption
by the industry for manufacturing country liquor. Since the writ petitioner did not have
balance stock of molasses and the record clearly revealed that even for captive
consumption, it had to import molasses from other States in the country and from foreign
countries for which necessary permission was granted by the Government, it could not be
@page-SC51
compelled to reserve 20% molasses for manufacturing country liquor. It was submitted
that even if the directive is held to be legal, lawful and in consonance with law, the writ
petitioner could not be asked to supply 20% molasses for manufacturing country liquor.
The directive could not be applied to the writ petitioner and notices could not be issued to
show cause as to why the Company should not be prosecuted. On that limited ground
also, the writ petition ought to have been allowed and the High Court was wrong in
dismissing it.
14
. The learned counsel for the respondents, on the other hand, submitted that the
constitutional validity of the Act has not been challenged by the writ-petitioner. Even
otherwise, the validity has been upheld by this Court in SIEL Ltd. and Ors. v. Union of
India and Ors., (1998) 7 SCC 26 : JT 1998 (6) SC 323. It was, therefore, open to the
respondents to implement the provisions of the Act. Section 8 of the Act empowers the
Authorities to issue necessary directions relating to sale and supply of molasses and in
exercise of the said power, orders were issued by the Authorities and the High Court was
right in upholding them. Regarding Advisory Committee, it was submitted that it is in the
discretion of the State Government to constitute the Committee and if no such Committee
is constituted, there is no violation of law. The High Court was right in holding that in
absence of Advisory Committee, Controller could have exercised the power conferred on
him by the State Government. As to public policy and provisions in Part IV of the
Constitution, the counsel contended that the High Court was called upon to consider a
limited question as to whether the action was illegal or unconstitutional and once it was
held that it was in consonance with law, the Court was right in upholding it and in
dismissing the petition. It was, therefore, submitted that the appeal deserves to be
dismissed. 1998 AIR SCW 2985
15. Having considered the rival contentions of the parties, in our opinion, the appeal
deserves to be partly allowed. So far as the constitutional validity of the Act is concerned,
it is rightly not challenged by the writ petitioner since the point is concluded by a
decision of this Court in SIEL Ltd. decided in 1998. It was held by this Court that the Act
was within the legislative competence of the State and the State Act was not inconsistent
with the Industries (Development and Regulation) Act, 1951, i.e. Central Act. But even
otherwise, the U.P. Act having received the assent of the President as required by Article
254(2) of the Constitution, would operate.
16. As to alternative remedy available to the writ petitioner, a finding has been recorded
by the High Court in favour of the writ-petitioner and the same has not been challenged
by the State before us. Even otherwise, from the record, it is clear that the decision has
been taken by the Government. Obviously in such cases, remedy of appeal cannot be
terms as alternative, or equally efficacious. Once a policy decision has been taken by the
Government, filing of appeal is virtually from 'Caesar to Caesar's wife', an 'empty
formality' or 'futile attempt'. The High Court was, therefore, right in overruling the
preliminary objection raised by the respondents.
17. On merits, the learned counsel for the appellant drew our attention to an order dated
June 9, 2004 which was relied upon by the High Court for dismissing the writ petition.
Clause (3) of the said order relates to supply of 20% molasses for manufacturing country
liquor. The High Court in its order reproduced the said clause which is in Hindi and reads
thus;
"PRATYEK CHINI MILL KE SHEERE KE AWASHESHA STAAK ME SE DESHI
MADIRA KE LIYE 20 PRATISHAT SHEERE KA AARKSHAN EISI AASHWANI YO
KE LIYE HOGAA JO USKAA UPYOG DESHI MADIRA UTPADAN ME KAREGI.
AISI CHINI MILE JINKI SWAYAM KI BHI AASHWANIYA HAI, UKTANUSAR
KIYE JA RAHE SHEERE KE AARAKSHAN SE OOS SEEMA TAK BAHAR RAHEGI
KI CHINI MILL SAH-AASHWANI DWARA SWAYAM KE VASTAVIK UPBHOG KE
ATIRIKT JO SHEERA BACHATA HAI, OOS PER 20 PRATISHAT KA AARAKSHAN
LAGOO HOGA."
18. The English translation supplied by the appellant at Annexure P-3 reads thus;
"From the balance stock of molasses with each sugar mill, 20% of molasses shall be
reserved for the distilleries manufacturing country liquor. The sugar mills having their
own distilleries shall not be covered with this reservation to the extent that after the actual
consumption of molasses in their captive distillery, 20% reservation shall be applicable
on the balance stock".
@page-SC52
19. The learned counsel for the writ petitioner, in our opinion, is right in contending that
the said order applies only to balance stock (Avshesh staak). According to the High
Court, 20% molasses must be reserved by each and every sugar mill for manufacturing
country liquor notwithstanding whether there is balance stock or not. In other words, the
High Court held that 20% molasses must be reserved by every sugar mill for the purpose
of manufacturing country liquor. If such sugar mill is having facility of manufacturing
country liquor, it should utilize the said stock for the said purpose, otherwise it should
supply to the Authorities.
20. In our opinion, however, clause (3) applies only to excess stock of molasses, that is,
molasses which is in excess of and not used for captive consumption by sugar factory and
is thus balance stock. It is the assertion of the writ petitioner that the Company has no
excess stock of molasses. Not only that, but it has to import molasses from other sources
even for its own requirement for manufacturing industrial alcohol and such permission
has been granted by the Central Government as well as by the State Government. If it is
so, the case does not fall within the mischief of clause (3) and said clause cannot be
pressed in service by the Authorities. The High Court, in our opinion, was not right in
holding that all sugar mills were bound to supply 20% molasses to the Authorities under
clause (3) of the Government Order dated June 9, 2004 irrespective of stock possessed.
Only on that ground, the appeal deserves to be allowed.
21. So far as the submission of the learned counsel as to Article 47 of the Constitution in
Part IV comprising of Directive Principles of State Policy is concerned, in our opinion,
on the facts and in the circumstances, it is not necessary to express any opinion one way
or the other and we refrain from doing so.
22. Before the High Court as well as before us it was strenuously urged by the writ
petitioner that it was obligatory on the State Government to constitute Advisory
Committee under Section 3 of the Act. Section 3 reads thus :
3. Constitution of Advisory Committee.- (1) The State Government may, by notification
in the Gazette, constitute an Advisory Committee to advise on matters relating to the
control of storage, preservation, gradation, price, supply and disposal of molasses.
(2) The Committee shall consist of such number of persons and shall be constituted on
such terms and conditions as may be prescribed.
23. Section 22 is a rule making power and enables the State Government to make rules to
carry out the purposes of the Act. Sub-section (2) enacts that in particular and without
prejudice to the generality of the power, such rules may provide for-
(a) the composition of the Advisory Committee, the manner in which its members shall
be chosen, the term of office of its members, the allowances, if any, payable to them, the
manner in which the Advisory Committee shall tender its advice and the procedure for
the conduct of its business;
(b) the procedure relating to the removal of members of the Advisory Committee;
(c) ...
24. Rule 14 of 1974 Rules is also relevant and reads thus;
14. Orders regarding sale or supply of molasses.-- A consolidated statement of the
estimated availability of molasses will be drawn up and placed before the Advisory
Committee, constituted under Section 3(1) of the Act, by the Controller who may make
orders regarding the sale or supply of molasses in accordance with the provisions of
Section 8 of the Act.
25. In exercise of power under Clauses (a) and (b) of sub-section (2) of Section 22 read
with Section 3 of the Act, the Governor of Uttar Pradesh framed rules known as the U.P.
Molasses Advisory Committee Rules, 1965. Rule 3 provides for constitution of
Committee and reads as under :
3. Constitution- (1) The Advisory Committee to be constituted under Section 3 of the Act
shall consist of :
(i) the Controller who shall be ex officio Chairman.
(ii) the Assistant Excise Commissioner, In charge of Molasses at the Headquarters of the
Excise Commissioner, Uttar Pradesh who shall be ex officio Secretary.
(iii) The Director of Industries, Uttar Pradesh or his representative not below the rank of
Deputy Director of Industries;
(iv) The Cane Commissioner,
@page-SC53
Uttar Pradesh, or his representative not below the rank of Deputy Cane Commissioner;
(v) Three representatives of sugar factories in Uttar Pradesh to be nominated by the
Indian Sugar Mills' Association (U.P. Branch);
(vi) Three representatives of distilleries in Uttar Pradesh to be nominated by the Uttar
Pradesh Distillers Association;
(vii) One representative of the alcohol based industries in Uttar Pradesh to be nominated
by the Uttar Pradesh Alcohol Based Industries Development Association.
(viii) One representative of Moulding and Foundry Industry in Uttar Pradesh to be
nominated by the Excise Commissioner, Uttar Pradesh; and
(ix) Managing Director, the Uttar Pradesh Co-operative Sugar Factories Federation Ltd.
(2) If a representative is not nominated by the concerned Association under Clause (v),
(vi) or (vii) of sub-rule (1) within the time specified in that behalf by the State
Government, it shall be lawful for the State Government to nominate the representative or
representatives, as the case may be, under that clause.
26. While Rule 6 prescribes term of office of members and reconstitution of the
Committee, Rule 7 deals with vacancy caused by death, resignation or removal of
members. Rule 8 provides for quorum for meeting. Rules 9 and 10 prescribe time, place
and agenda for the meeting of the Committee and preparation of minutes of resolutions
passed and decisions taken. Rule 11 requires the Chairman of the Committee to forward
such resolutions to the State Government.
27. It further appears that by a notification dated November 24, 1965, such Committee
had been constituted. The Notification was also published in U.P. Government Gazette,
Extraordinary and reads thus :
Notification No.5586-E/XIII-251-65, dated 24th November, 1965, published in U.P.
Gazette, Extra., dated November 24, 1965.
In exercise of the powers under Section 3 of Uttar Pradesh Sheera Niyantran Adhiniyam,
1964 (Uttar Pradesh Act XXIV of 1964) read with Rules 3 and 5 of the Uttar Pradesh
Molasses Advisory Committee Rules, 1965, the Governor of Uttar Pradesh is pleased to
constitute an Advisory Committee to advise on matters relating to the control on storage,
supply, gradation and prices of molasses with effect from the date of issue of this
notification and further pleased to direct that the said Committee shall consist of the
following persons :
(a) the Controller of Molasses, Uttar Pradesh-Ex Officio Chairman
(b) the Assistant Excise Commissioner (Molasses), Uttar Pradesh-Ex Officio Secretary.
(i) The representatives of Sugar Factories - Sri V.D. Jhunjhunwala Kamlapat Moti Lal
Sugar Mills, Motinagar, district Faizabad.
Sri B.C. Kohli, Ganga Sugar Corporation Ltd., Deoband, district Saharanpur.
Sri L.N. Wahi, Indian Sugar Mills Association, Uttar Pradesh Branch, Sri Niwas, I, Kabir
Marg, Lucknow.
(ii) Three representatives of Distilleries-
Sri Bansi Dhar, Director, Managing Agents, Messrs Delhi Cloth and General Mills Co.
Ltd., Bara Hindu Rao, Post Box No.1039, Delhi.
Sri D.S. Majithia Messrs, Saraya Distillery, Sardarnagar, Gorakhpur.
Sri V.R. Mohan, Dyer Meakin Brewery Ltd., Lucknow.
(iii) One representative of Moulding and Foundry Industries-
Sri Raman, Secretary, Agra Iron Founders Association, Agra.
(iv) One representative of Tobacco Manufacturers Association, Varanasi.
(v) The Director of Industries, U.P. or his representative.
(vi) Sri Ram Surat Prasad, M.L.A., Mohalla Mohaddipur, Gorakhpur.
28. Reading the substantive provisions in the Act as also subordinate legislation by way
of Rules, there is no doubt in our minds that the submission of the learned counsel for the
writ petitioner that such a Committee ought to have been constituted by the State is well-
founded and must be upheld. The High Court dealt with the submission of the writ
petitioner but did not accept it observing that the Legislature had used the expression
'may' and not 'shall' in Section 3 of the Act. The Court ruled that the provision was merely
directory and not mandatory.
29. We are unable to subscribe to the
@page-SC54
above view. In our judgment, mere use of word 'may' or 'shall' is not conclusive. The
question whether a particular provision of a statute is directory or mandatory cannot be
resolved by laying down any general rule of universal application. Such controversy has
to be decided by ascertaining the intention of the Legislature and not by looking at the
language in which the provision is clothed. And for finding out the legislative intent, the
Court must examine the scheme of the Act, purpose and object underlying the provision,
consequences likely to ensue or inconvenience likely to result if the provision is read one
way or the other and many more considerations relevant to the issue.
30. Several statutes confer power on authorities and officers to be exercised by them at
their discretion. The power is in permissive language, such as, 'it may be lawful', 'it may
be permissible', 'it may be open to do', etc. In certain circumstances, however, such power
is coupled with duty and must be exercised.
31. Before more than a century in Baker, Re, (1890) 44 Ch D 262, Cotton, L.J. stated;
I think that great misconception is caused by saying that in some cases 'may' 'means'
must. It never can mean must, so long as the English language retains its meaning; but it
gives a power, and then it may be question in what cases, where a Judge has a power
given by him by the word may, it becomes his duty to exercise it.
(Emphasis supplied)
32. In leading case of Julius v. Lord Bishop of Oxford, (1880) 5 AC 214 : 49 LJ QB 580 :
(1874-80) All ER Rep 43 (HL), the Bishop was empowered to issue commission of
inquiry in case of alleged misconduct by a clergyman, either on an application by
someone or suo motu. The question was whether the Bishop had right to refuse
commission when an application was made. The House of Lords held that the Bishop had
discretion to act pursuant to the complaint and no mandatory duty was imposed on him.
33. Earl Cairns, L.C., however, made the following remarkable and oft-quoted
observations :
"The words 'it shall be lawful' are not equivocal. They are plain and unambiguous. They
are words merely making that legal and possible which there would otherwise be no right
or authority to do. They confer a faculty or power and they do not of themselves do more
than confer a faculty or power. But there may be something in the nature of the thing
empowered to be done, something in the object for which it is to be done, something in
the title of the person or persons for whose benefit the power is to be exercised, which
may couple the power with a duty, and make it the duty of the person in whom the power
is reposed, to exercise that power when called upon to do so". (Emphasis supplied)
34. Explaining the doctrine of power coupled with duty, de Smith, (Judicial Review of
Administrative Action, 1995; pp.300-01) states :
Sometimes the question before a court is whether words which apparently confer a
discretion are instead to be interpreted as imposing duty. Such words as 'may' and 'it shall
be lawful' are prima facie to be construed as permissive, not imperative. Exceptionally,
however, they may be construed as imposing a duty to act, and even a duty to act in one
particular manner.
(Emphasis supplied)
35. Wade also says (Wade and Forsyth; 'Administrative Law' : 9th Edn. : p.233) :
"The hallmark of discretionary power is permissive language using words such as 'may'
or 'it shall be lawful', as opposed to obligatory language such as 'shall'. But this simple
distinction is not always a sure guide, for there have been many decisions in which
permissive language has been construed as obligatory. This is not so much because one
form of words is interpreted to mean its opposite, as because the power conferred is, in
the circumstances, prescribed by the Act, coupled with a duty to exercise it in a proper
case."
(Emphasis supplied)
36. In the leading case of Padfield v. Minister of Agriculture, Fisheries and Food, 1968
AC 997 : (1968) 1 All ER 694 : (1968) 2 WLR 924 (HL), the relevant Act provided for
the reference of a complaint to a committee of investigation 'if the Minister so directs'.
The Minister refused to act on a complaint. It was held that the Minister was required to
act on a complaint in absence of good and relevant reasons to the contrary.
37. Likewise, it was held that the licensing authorities were bound to renew licences of
cab drivers if the prescribed procedural requirements had been complied with
@page-SC55
[R.V. Metropolitan Police Commissioner, (1911) 2 QB 1131]. Similarly, local authorities
were held bound to approve building plans if they were in conformity with bye-laws
[R.V. Nescastle-upon-Tyne Corporation, (1889) 60 LT 963]. Again, the court was
required to pass a decree for possession in favour of a landlord, if the relevant grounds
existed [Ganpat Ladha v. Shashikant, (1978) 3 SCR 198 : (1978) 2 SCC 573].
38. In Alcock v. Chief Revenue Authority, 50 IA 227 : AIR 1923 PC 138, the relevant
statute provided that if in the course of any assessment a question arises as to the
interpretation of the Act, the Chief Revenue Authority 'may' draw up a statement of the
case and refer it to the High Court. Holding the provision to be mandatory and following
Julius, Lord Phillimore observed :
"When a capacity or power is given to a public authority, there may be circumstance
which couple with the power of duty to exercise it".
39. In Commissioner of Police v. Gordhandas Bhanji, 1952 SCR 135 : AIR 1952 SC 16,
Rule 250 of the Rules for Licensing and Controlling Theatres and Other Places of Public
Amusement in Bombay City, 1884 read as under :
"The Commissioner shall have power in his absolute discretion at any time to cancel or
suspend any licence granted under these Rules....."
40. It was contended that there was no specific legal duty compelling the Commissioner
to exercise the discretion. Rule 250 merely vested a discretion in him but it did not
require him to exercise the power. Relying upon the observations of Earl Cairns, L.C., the
Court observed :
"The discretion vested in the Commissioner of Police under Rule 250 has been conferred
upon him for public reasons involving the convenience, safety, morality and the welfare
of the public at large. An enabling power of this kind conferred for public reasons and for
the public benefit is, in our opinion, coupled with a duty to exercise it when the
circumstances so demand. It is a duty which cannot be shirked or shelved nor can it be
evaded..."
(Emphasis supplied)
41
. In Ratlam Municipality v. Vardichan, (1981) 1 SCR 97 : (1980) 4 SCC 162; some

residents of Ratlam Municipality moved the Sub-Divisional Magistrate under Section 133
of the Code of Criminal Procedure, 1973 for abatement of nuisance by directing the
municipality to construct drainpipes with flow of water to wash the filth and stop the
stench. The Magistrate found the facts proved and issued necessary directions. The
Sessions Court, in appeal, reversed the order. The High Court, in revision, restored the
judgment of the Magistrate and the matter was carried to the Supreme Court. AIR
1980 SC 1622
42. Krishna Iyer, J. pithily summarized the principle thus;

"The key question we have to answer is whether by affirmative action a court can compel
a statutory body to carry out its duty to the community by constructing sanitation
facilities at great cost and on a time-bound basis. At issue is the coming of age of that
branch of public law bearing on community actions and the court's power to force public
bodies under public duties to implement specific plans in response to public grievances."
43. Holding the provision obligatory, the Court observed :
"Judicial discretion when facts for its exercise are present, has a mandatory import.
Therefore, when the sub-Divisional Magistrate, Ratlam, has, before him, information and
evidence, which disclose the existence of a public nuisance and, on the materials placed,
he considers that such unlawful obstruction or nuisance should be removed from any
public place which may be lawfully used by the public, he shall act....... This is a public
duty implicit in the public power to be exercised on behalf of the public and pursuant to a
public proceeding".
(Emphasis supplied)
44. We do not wish to refer to other cases on the point. We are, however, in agreement
with the observations of Earl Cairns, L.J. in Julius referred to above wherein His
Lordship stated;
"(W)here a power is deposited with a public officer for the purpose of being used for the
benefit of persons who are specifically pointed out, and with regard to whom a definition
is supplied by the Legislature of the conditions upon which they are entitled to call for its
exercise, that power ought to be exercised, and the Court will require it to be exercised."
(Emphasis supplied)
45. In the case on hand, considering the
@page-SC56
legislative scheme as also Rules and particularly Rules relating to constitution of
Committee, namely, the U.P. Molasses Advisory Committee Rules, 1965, in our opinion,
investment of power in the State Government is not merely enabling or discretionary. It is
obligatory on the Government to constitute a Committee to carry out the purpose and
object of the Act. The Committee has to perform an important role of advising the State
Government "on matters relating to the control of storage, preservation, gradation, price,
supply and disposal of molasses". The constitution of the Committee, as envisaged by
Rule 3 of the 1965 Rules clearly shows the representation of various groups and interests
likely to be affected. Rule 11 requires the Chairman (Controller of Molasses) to "give due
consideration of the resolutions passed by the Committee and forward it to the State
Government for orders together with a copy of the proceedings and his
recommendations". In our considered opinion, it is not open to the State Government to
ignore this salutary provision taking specious plea that the provision relating to
constitution of Committee is enabling, directory or discretionary and State, therefore, is
not obliged to constitute such Committee. In our judgment, the High Court was not right
in upholding the argument of the respondents. We, therefore, hold that in accordance with
the provisions of 1964 Act, the Rules framed thereunder as also under 1965 Rules, it is
the duty of the State Government to constitute Advisory Committee. We accordingly
direct the State of Uttar Pradesh to constitute Advisory Committee as expeditiously as
possible.
46. For the foregoing reasons, in our opinion, the appeal deserves to be allowed and the
order of the High Court deserves to be set aside. It is, accordingly held that the directive
issued by the respondents would not apply in case there is no balance stock of molasses
with any sugar mill. The respondent-authorities have no right to compel such sugar mills
to supply 20% molasses for the purpose of manufacturing country liquor.
47. We may, however, make one thing clear. As seen above, the assertion of the appellant
was that it has no balance stock and even for its own requirement, it has to import
molasses. On the other hand, the allegation of the respondents is that excess and balance
molasses was available with the appellant which it had sold in open market. The High
Court, in the impugned order has not decided the question finally. Quoting certain
paragraphs from the writ-petition, the High Court observed that there was no proper
pleading and as such, the Court was not in a position to go into the question. It is,
therefore, made clear that it is open to the respondents to take appropriate action in
accordance with law on the basis of our decision and observations made in this judgment.
48. The appeal is allowed to the extent indicated above. On the facts and in the
circumstances of the case, however, the parties will bear their own costs.
Order accordingly.
AIR 2008 SUPREME COURT 56 "Haryana State Industrial Development Corpn. v. M/s.
Cork Manufacturing Co."
Coram : 2 TARUN CHATTERJEE AND P. K. BALASUBRAMANYAN, JJ.**
-2007.
Haryana State Industrial Development Corporation v. M/s. Cork Manufacturing Co.
(A) Civil P.C. (5 of 1908), O.41, R.27 - APPEAL - EVIDENCE - Additional evidence -
Production in appeal - Inadvertence or lack of proper legal advice - Not ground to admit
additional evidence - That also does not constitute "substantial cause".
Per Tarun Chatterjee, J. :- Order 41, Rule 27 of the C. P. C. does not empower an
appellate Court to accept additional evidence on the ground that such evidence could not
be produced or filed either before the trial Court or before the first appellate Court due to
inadvertence or lack of proper legal advice. Neither can it be said that lack of proper legal
advice or inadvertence to produce the legal notice in evidence is a ground to hold that
there was substantial cause for acceptance of the additional evidence. Similarly, non-
realization of the importance of the documents due to inadvertence or lack of proper legal
advice also would not bring
@page-SC57
the case within the expression "other substantial cause" in Order 41, Rule 27 of the C. P.
C. (Para 17)
(B) Civil P.C. (5 of 1908), O.41, R.27 - APPEAL - EVIDENCE - INJUNCTION -
Additional evidence - Production in appeal - Suit for permanent injunction restraining
Corporation from dispossessing plaintiff of Flat allotted on ground of resumption order -
Knowledge of resumption order denied by plaintiff - Notice sent by plaintiff sought to be
adducd as additional evidence in second appeal - Whether liable to be admitted.
The respondent was alloted an industrial plot by appellant, Corporation. The plot was
resumed for violation of terms of allotment order. The respondent filed a suit praying for
a decree of permanent injunction restraining the appellant from interfering and/or
disturbing in any manner the possession of the suit plot and further restraining the
appellant from re-allotting the plot to any other person on the basis of resumption order,
if any. Against concurrent finding that suit ought to be decreed, the appellant filed second
appeal. Application for production of legal notice issued by respondent to the appellant as
additional evidence was filed by appellant. The ground raised in support was that the
legal notice could not be produced in evidence before the trial Court or before the first
appellate Court due to inadvertence and lack of proper legal advice.
Held, Per Tarun Chatterjee, J. :- In facts and circumstances of case, legal notice could not
be admitted as additional evidence. The legal notice issued by the counsel for the
respondent to the appellant which was sought to be admitted as additional evidence at the
second appellate stage was lying with the appellant during the pendency of the suit and
also during the pendency of the first appeal. The appellant in its written statement had
categorically taken the plea of limitation which was also one of the main issues in the
suit. It is, therefore, difficult to conceive that the said notice issued by the lawyer of the
respondent could not either be produced before the trial Court or before the first appellate
Court due to lack of proper legal advice. It cannot also be imagined that the appellant
having taken a specific plea in the written statement regarding limitation of the suit could
not produce the same due to inadvertence. (Para 17)
Moreover, the legal notice was not at all required by the appellate Court to pronounce a
proper judgment in the appeal. (Para 17)
Per P. K. Balasubramanyan, J. (Contra) :- Not even an objection was filed on behalf of
the plaintiff to the application under Order 41, Rule 27 of the Code denying the issue of a
notice by the plaintiff respondent. There was no denial of the status of the counsel who
had issued the notice on behalf of the plaintiff respondent. There is a presumption that
when an Advocate sends a notice on behalf of a client, the notice is sent by him on
instructions from his client. After all, the purpose for which the notice was produced was
only to show that the plaintiff respondent was aware of the resumption. Even otherwise,
the letters produced at the trial do indicate that the respondent was aware of the
resumption of the plot. Therefore, this was a case where the document produced under
Order 41, Rule 27 of the Code was required to enable the High Court to pronounce a
judgment more satisfactory to its conscience constituting other sufficient cause within the
meaning of Order 41, Rule 27 of the Code for production of additional evidence. (Para
35)
Per Court :- Matter referred to Larger Bench in view of difference in opinion. (Para
40)
(C) Civil P.C. (5 of 1908), S.100 - APPEAL - ALLOTMENT OF PREMISES - LARGER
BENCH - Finding of fact - Interference - Plaintiff allotted plot by Corporation -
Allotment made on condition of putting up industry and starting production within 2 yrs.
- Resumption of plot on plaintiff's failure - Legality - Plea by plaintiff that construction
was impossible because of H. T. Pole on plot agreed to be removed by Corporation -
Findings of fact that explanation of plaintiff needs to be accepted - Not perverse - Not
liable to be interfered with (Per Tarun Chatterjee, J.) - When allotment order did not
contain stipulation as to removal of H. T. Pole plaintiff could not raise plea on basis of
subsequent understanding - Finding that resumption order is invalid is, therefore,
perverse - Liable to interference. (Per P. Balasubramanyan, J.) - Matter referred to Larger
Bench. (Paras 18, 32)
@page-SC58

2006 AIR SCW 2169 : AIR 2006 SC 1864 14
(2004)10 SCC 779 16
AIR 1980 SC 446 15
AIR 1968 SC 406 (Rel. on) 17
AIR 1965 SC 1008 14
R. Mohan, ASG., Ravindra Bana, for Appellant; Gaurav Bhatia and Abhishek Chaudhary,
for Respondent.
* Second Appeal No. 2320 of 2005, D/- 20-1-2006 (PandH).
** The judgments are Printed in the order in which they are given in the certified
copy ...Ed.)
Judgement
TARUN CHATTERJEE, J. :- Leave granted.
2. This appeal is directed against the judgment and order dated 20th January, 2006 of the
Punjab and Haryana High Court at Chandigarh whereby the High Court affirmed the
concurrent judgments of the courts below decreeing the suit of the plaintiff/respondent
(for short the respondent') and declaring the resumption of plot allotted to the respondent
by the defendant/appellant (for short 'the appellant') as illegal.
3. The appellant allotted an industrial plot bearing Plot No.259, Udyog Vihar, Phase IV,
Gurgaon to the respondent vide its allotment letter dated 24th November, 1987. Pursuant
to the allotment letter dated aforesaid, the appellant entered into an agreement on 12th
February, 1988 with the respondent, Clause 8 of which provides that the respondent shall
start construction on the plot for setting up of an industry within a period of three months
and complete the construction thereof within one and a half years from the date of
issuance of the allotment letter and further, the respondent shall complete the erection and
installation of machinery and commence production within a period of two years from
the date of allotment of plot failing which the plot shall be liable to be resumed and the
security amount equivalent to ten per cent of the cost of the plot deposited by the
respondent at the time of allotment shall stand forfeited. Clause 28 of the agreement
provides that in case of breach of any of the terms and conditions of the agreement
including Clause 8, the appellant reserves the right to exercise its right of resumption of
the plot. The appellant, when found that the respondent had violated Clause 8 of the
agreement, issued a show cause notice to it as to why the suit plot should not be resumed
and the possession not be taken back. On 13th September, 1991, the appellant issued a
resumption order for non compliance of Clause 8 of the agreement by the respondent
stating that the respondent had contravened the terms and conditions of the allotment
order. According to the appellant, possession of the suit plot was taken back from the
respondent on 20th September, 1991.
4. The respondent filed a Civil Suit before the Addl. Civil Judge (Senior Division),
Gurgaon in 1995 more precisely on 5th October, 1995 praying for a decree of permanent
injunction restraining the appellant from interfering and/or disturbing in any manner the
possession of the suit plot and further restraining the appellant from re-allotting the plot
to any other person on the basis of resumption order, if any. In the plaint, it was alleged
that it was not possible for the respondent to comply with Clause 8 of the agreement
because of high tension wires existing over the suit plot and until and unless the said high
tension wires were removed from the suit plot, the respondent was not in a position to
raise construction on the same within the time specified in Clause 8 of the agreement. For
the reasons aforesaid, the appellant had no right to disturb possession of the suit plot or
initiate any proceeding against them. In spite of several letters written by the respondent
to the appellant for removing high tension electric wires and electric pole, the appellant
did not remove the same till in the year 1995, when suit was already pending, but instead
the appellant sought to resume the suit plot for non compliance of Clause 8 of the
agreement. Accordingly, a decree for permanent injunction restraining the appellant from
interfering and/or disturbing the possession of the respondent in respect of the suit plot
and other reliefs as noted herein above was prayed for.
5. After appearance in the suit, the appellant filed a written statement in which the
appellant alleged that a resumption order was passed by it on 13th September, 1991 and
possession of the suit plot was resumed on 20th September, 1991 for alleged violation of
Clause 8 of the agreement. The plea of limitation was also raised saying that since the suit
plot was resumed on 13th September, 1991 by the appellant and the suit was filed on 5th
October, 1995, the suit must be held to be barred by limitation. In the written statement, it
was also alleged by the appellant that the respondent had suppressed the fact regarding
knowledge of the resumption order and also
@page-SC59
regarding taking over of the possession of the suit plot. Accordingly, the appellant had
prayed for dismissal of the suit.
6. The following issues were framed by the trial court :
1. Whether the order dated 13.9.91, if any, is illegal, null and void and not binding upon
the plaintiff ?
2. Whether the plaintiff is in possession over the plot in question ?
3. Whether the plaintiff has got no locus-standi to file the present suit ?
4. Whether the suit is barred by limitation ?
5. Whether the plaintiff is estopped from filing the present suit by his own act and
conduct ?
6. Whether the suit is bad for non-joinder of the necessary parties ?
7. Relief.
7. The trial court, after the parties had adduced evidence, both oral and documentary, in
support of their respective claims, decreed the suit of the respondent inter alia on the
following findings of fact :-
(I) As the high tension line and an electric pole which existed, was removed on 30th
November, 1995 when the suit was already pending, the Construction in compliance with
Clause 8 of the agreement could not be raised on the suit plot.
(II) Other allottees in the same area were granted extension of time to raise construction
on identical facts and accordingly it was the duty of the appellant to extend the time for
the respondent also after removing the electric wire and pole which existed on the suit
plot.
(III) Even if the appellant had resumed the suit plot on 13th September, 1991, the same
was so done without giving any opportunity of hearing to the respondent.
(IV) No show cause notice was served by the appellant on the respondent and no
procedure was followed to resume the suit plot.
On the above findings of fact arrived at by the trial court on appreciation of the evidence,
oral and documentary on record, the following conclusions were drawn :-
1. The order of resumption passed by the appellant dated 13th September, 1991 whereby
the suit plot was allegedly resumed, was illegal and against the principles of natural
justice and therefore liable to be set aside.
2. The suit was not barred by limitation as the respondent was in possession of the suit
plot and resumption order of the appellant was not served upon the respondent.
3. The respondent had by cogent evidence proved his possession over the suit plot and
accordingly the respondent was entitled to a decree of permanent injunction as prayed for.
8. Feeling aggrieved, the appellant preferred an appeal by which the decree of the trial
court was affirmed. The appellate court also echoed the finding of the trial court and held
that the appellant instead of removing the high tension wire and electric pole from the
suit plot resumed the plot in question on 13th September, 1991 without affording the
respondent any opportunity of being heard and, therefore, held that the resumption order
was ineffective and not binding on the respondent. The appellate court also held that the
suit was not barred by limitation because no cogent evidence was produced by the
appellant to show that the respondent was served with the copy of the resumption order at
all or that the respondent had any prior knowledge of the resumption order.
9. A second appeal was, thereafter, filed by the appellant before the High Court and in the
second appeal, the appellant filed an application under Order 41 Rule 27 read with
Section 151 of the CPC for acceptance of an additional evidence which was nothing but a
legal notice dated 8th October, 1991 sent by the counsel for the respondent wherein the
respondent had acknowledged the receipt of resumption order of the appellant dated 13th
September, 1991. The appeal as well as the application for acceptance of additional
evidence under Order 41 Rule 27 of the CPC was taken up for final hearing and by the
impugned judgment, the High Court rejected the said application filed under Order 41
Rule 27 of the CPC and also the appeal of the appellant. Before the High Court in second
appeal, the main thrust of the argument of the learned counsel for the appellant was that
the legal notice allegedly served by the respondent on the appellant should be permitted
to be produced on record as additional evidence in the exercise of its power under Order
41 Rule 27 of the CPC to show that the suit filed in 1995 was barred by limitation. On the
merits of
@page-SC60
the second appeal, the High Court recorded the following :-
"Nothing has been shown that the findings recorded by both the courts below suffer from
any infirmity or are contrary to the record. No question of law, much less any substantial
question of law arises in the present appeal."
10. Feeling aggrieved by the judgment of the High Court, the instant special leave
petition has been filed in respect of which leave has already been granted.
11. On behalf of the appellant, Mr. R. Mohan, Additional Solicitor General submitted at
the first instance that the High Court was not justified in rejecting the application for
acceptance of additional evidence filed under Order 41, Rule 27 of the CPC. By the
application under Order 41, Rule 27 of the CPC, a legal notice alleged to have been
served by the counsel for the respondent on the appellant was in fact sought to be
admitted in evidence to prove that the respondent had clear knowledge of the resumption
order passed on 13th September, 1991 and if such fact was accepted, the suit filed in the
year 1995 was clearly barred by limitation. The High Court, however, while rejecting the
application for acceptance of additional evidence, held that the legal notice which was
alleged to have been served on the appellant was per se not admissible in evidence nor
was it proved that the legal notice was issued by the respondent. The High Court also
held that even if the same was issued, such a legal notice did not advance the case of the
appellant.
12. Before we deal with the aforesaid submission of Mr.Mohan, we may remind
ourselves of the provisions of Order 41 Rule 27 of the CPC which are as follows:
"27. Production of additional evidence in Appellate Court- [1]The parties to an appeal
shall not be entitled to produce additional evidence, whether oral or documentary, in
Appellate Court. But if-
[a] the court from whose decree the appeal is preferred has refused to admit evidence
which ought to have been admitted, or
[aa] the party seeking to produce additional evidence, establishes that notwithstanding the
exercise of due diligence, such evidence was not within his knowledge or could not, after
the exercise of due diligence, be produced by him at the time when the decree appealed
against was passed, or
[b] the Appellate Court requires any document to be produced or any witness to be
examined to enable it to pronounce judgment, or for any other substantial cause, the
Appellate Court may allow such evidence or document to be produced, or witness to be
examined.
[2] Whenever additional evidence is allowed to be produced by an Appellate Court, the
Court shall record the reason for its admission."
13. We have carefully examined the provisions made under Order 41 Rule 27 of the CPC.
The parties to an appeal shall not be entitled to produce additional evidence, oral or
documentary, before the appellate court except on the grounds enumerated in Clause (a),
(aa) and (b) of Order 41 Rule 27(1) of the CPC. The court may permit additional
evidence to be produced only when it is satisfied with the three grounds namely, (i) if the
Court from whose decree the appeal is preferred has refused to admit evidence which
ought to have been admitted; (ii) a party seeking to produce additional evidence
establishes that notwithstanding the exercise of due diligence, such evidence was not
within his knowledge or could not, after the exercise of due diligence, be produced by
him at the time when the decree appealed against was passed; and (iii) when the appellate
court requires any document to be produced or any witness to be examined to enable it to
pronounce judgment; or for any other substantial cause.
14
. In Municipal Corporation For Greater Bombay Vs. Lal Pancham of Bombay and Ors.
[1965 (1) SCR 542], this Court held that power under Order 41 Rule 27 of the CPC could
not be used for removing a lacuna in the evidence and did not entitle the appellate court
to let in fresh evidence at the appellate stage when even without such evidence it could
pronounce judgment in the case. Following the aforesaid decision in Municipal
Corporation For Greater Bombay Vs. Lal Pancham of Bombay and Ors. [1965 (1) SCR
542], this Court again in State of Gujarat and Anr. Vs. Mahendra Kumar Parshottambhai
Desai [Dead] by LRs [(2006) 9 SCC 772] in para 10 page 775 observed as follows :
AIR 1965 SC 1008
AIR 1965 SC 1008
2006 AIR SCW 2169, Para 10
@page-SC61
".... Though the appellate court has the power to allow a document to be produced or a
witness to be examined under Order 41 Rule 27, the requirement of the said Court must
be limited to those cases where it found it necessary to obtain such evidence for enabling
it to pronounce judgment. This provision did not entitle the appellate court to let in fresh
evidence at the appellate stage where even without such evidence it can pronounce
judgment in the case. It does not entitle the appellate court to let in fresh evidence only
for the purposes of pronouncement of judgment in a particular way. The High Court
referred to the earlier proceedings before various authorities and came to the conclusion
that though the appellants had sufficient opportunity to bring the evidence on record, for
reasons best known to it, the State did not produce the entire evidence before the trial
court and it was only 8 years after the dismissal of the suit that the applications were filed
for adducing additional evidence in the appeal."
(Emphasis supplied)
15
. In Smt. Pramod Kumari Bhatia Vs. Om Prakash Bhatia and Ors. [(1980) 1 SCC 412], it
has been held that the High Court was not unjustified in refusing to admit the additional
evidence under Order 41 Rule 27 of the CPC when such additional evidence purported to
defeat the claim of one of the parties and such additional evidence was sought to be laid
many years after filing of the suit. In that circumstance, this Court has held in the
aforesaid decision that the discretion used by the appellate court in refusing to receive
additional evidence at the late stage cannot be interfered with. AIR 1980 SC 446
16. In a recent decision of this court in the case of Karnataka Board of Wakf Vs.
Government of India and Ors. [(2004) 10 SCC 779], this Court has again clearly laid
down the principles for acceptance or refusal of additional evidence at the appellate stage
observing that the scope of Order 41 Rule 27 of the CPC is very clear to the effect that
the parties to an appeal shall not be entitled to produce additional evidence, whether oral
or documentary, unless they have shown that in spite of due diligence, they could not
produce such documents and that such documents are required to enable the court to
pronounce a proper judgment.
17. Keeping the aforesaid principles in mind and applying the same on the facts and
circumstances of this case, we are unable to accept the contention of the learned
Additional Solicitor General appearing for the appellant that the legal notice dated 8th
October, 1991 could not be produced in evidence before the trial court or before the first
appellate court due to inadvertence and lack of proper legal advice. For this purpose, we
have examined the pleadings made in the application for acceptance of additional
evidence closely and in detail. Admittedly, the legal notice issued by the counsel for the
respondent to the appellant which was sought to be admitted as additional evidence at the
second appellate stage was lying with the appellant during the pendency of the suit and
also during the pendency of the first appeal. The appellant in its written statement had
categorically taken the plea of limitation which was also one of the main issues in the
suit. It is therefore difficult for us to conceive that the said notice issued by the lawyer of
the respondent could not either be produced before the trial court or before the first
appellate court due to lack of proper legal advice. It cannot also be imagined that the
appellant having taken a specific plea in the written statement regarding limitation of the
suit could not produce the same due to inadvertence. In any view of the matter, Order 41
Rule 27 of the CPC also does not empower an appellate court to accept additional
evidence on the ground that such evidence could not be produced or filed either before
the trial court or before the first appellate court due to inadvertence or lack of proper legal
advice. Mr. Mohan, learned Additional Solicitor General however sought to argue that the
pleadings made in the application for acceptance of additional evidence would come
within the meaning of "substantial cause" under Order 41 Rule 27 (1)(b) of the CPC
which would require the appellate court to accept the legal notice in order to pronounce
its judgment. We are unable to accept this submission of Mr. Mohan. In our view, lack of
proper legal advice or inadvertence to produce the legal notice in evidence is not a
ground to hold that there was substantial cause for acceptance of the additional evidence.
Mr. Mohan, Learned Additional Solicitor General further sought to argue that the
importance of the legal notice was not realized and it was due to inadvertence and lack of
proper legal advice that the same could not be produced
@page-SC62
before the courts below. In our view, we do not think that non realization of the
importance of the documents due to inadvertence or lack of proper legal advice as noted
hereinabove also would bring the case within the expression "other substantial cause" in
Order 41 Rule 27 of the CPC. In this connection, reference can be made to a decision of
this court in the case of Sunder Lal and Son Vs. Bharat Handicrafts Pr. Ltd. [(AIR) 1968
SC 406]. In any view of the matter, we do not find that the legal notice was required by
the appellate court to pronounce a proper judgment in the appeal. It was open for the
High Court to decide the second appeal on merits with the documents and evidence
already on record. Therefore, we are in agreement with the High Court that the additional
evidence namely the legal notice issued by the counsel for the respondent to the appellant
ought not to have been admitted at the stage of the second appeal. As noted hereinabove,
the suit was filed by the respondent on 5th October 1995. The Trial Court decreed the suit
about nine years thereafter more precisely on 12th March 2004. An appeal was carried
against the aforesaid judgment of the trial court which was disposed of on 31st January
2005. The appellant had failed to satisfy the High Court as to why the legal notice which
was admittedly lying with them could not be produced during all these years i.e. from 5th
October 1995 till 31st January 2005. Such being the position and in view of the
discussions made herein above, we are unable to hold that the High Court was not
justified in rejecting the application for acceptance of additional evidence at the second
appellate stage.
18. Let us now consider whether the three courts below were justified in decreeing the
suit of the respondent. Before we consider the findings of the courts below, it may be kept
on record that in the second appeal, the High Court held that no question of law much
less any substantial question of law arose in the same. On a perusal of the judgment of the
High Court in the second appeal, we also do not find that any substantial question of law,
as enumerated in Section 100 of the CPC was in fact raised before the High Court. So far
as the trial court is concerned, it came to a finding of fact that the respondent was found
to be in possession of the suit plot in spite of resumption notice having been issued by the
appellant. The trial court also came to a finding of fact that it was due to inaction on the
part of appellant to remove the electric wires and poles from the suit plot and the
explanation given by the respondent for not being able to take any step to raise
construction in compliance with Clause 8 of the agreement must be accepted and
therefore a decree for permanent injunction should be granted in favour of the
respondent. These findings of fact were echoed by the appellate court as well. It is well
settled that in a second appeal, High Court is not permitted to set aside the findings of
fact arrived at by the two courts below until and unless it is shown that such findings of
fact are either perverse or arbitrary in nature. Mr. Mohan learned Additional Solicitor
General, however, could not satisfy us that the findings of the courts below which were
also accepted by the High Court in the second appeal were either perverse or arbitrary.
Accepting this position, the High Court in second appeal found that the appellant had
failed to satisfy it that the findings recorded by the courts below suffered from any
infirmity or that they were contrary to the record. The High Court also concluded that
there was no question of law much less any substantial question of law which arose in the
second appeal. Before we part with this judgment, we keep on record that Mr. Mohan
appearing for the appellant substantially argued before us on the issue that the High Court
was not justified in rejecting the application for acceptance of additional evidence. We
have already discussed this aspect of the matter herein before and after such discussion,
we have already held that there was no infirmity in that part of the judgment by which the
High Court had rejected the application for acceptance of additional evidence.
19. For the reasons aforesaid, we do not find any ground for which interference with the
judgment of the courts below can be called for. Accordingly, the appeal requires to be
dismissed and is dismissed as such. There will be no order as to costs.
20P. K. BALASUBRAMANYAN, J. :- Leave granted.
21. The defendant in Suit No. 8 of 1995 in the court of Senior Sub-Judge, Gurgaon is the
appellant in this appeal. The appellant allotted plot No. 259 on 12.3.1986 to the
respondent through its sole proprietor Om Prakash Saharan. The approximate area of the
plot is 1000 square meters and the
@page-SC63
tentative price was Rs. 1,20,000/-. On 12.2.1988, a formal agreement was entered into
between the parties. According to the agreement, the allottee had to start construction of a
building for the setting up of an industrial unit within a period of three months and had to
complete the construction within one and half years from the date of issue of the letter of
allotment. The construction had to be completed and the installation of the machinery had
also to be completed and the commercial production was to be started within a period of
two years from the date of allotment. The Agreement also provided that failing
compliance with the above condition by the allottee, the plot was liable to be resumed
and 10% of the cost of the plot deposited by the allottee at the time of allotment was
liable to be forfeited. The letter of allotment was issued on 24.12.1987. The allottee did
not fulfil the condition of starting commercial production within two years of the letter of
allotment. This fact is not in dispute. The appellant thereupon issued various notices to
the allottee. On 19.7.1991, the allottee requested for extension of time. That request was
rejected. On 13.9.1991, according to the appellant, the appellant issued an order of
resumption which specifically referred to the contravention of the terms and conditions of
allotment by the allottee. According to the appellant, possession was taken back on
20.9.1991. The plot was thereafter re-allotted to M/s. Insulation and Electrical Products
(P) Ltd., New Delhi on 2.4.1992. Since that allottee also did not fulfil the conditions, the
said allotment was cancelled on 6.1.1994.
22. The respondent, the plaintiff, filed an application for referring the dispute to
Arbitration. The same was rejected. Respondent then approached the Consumer Forum,
but that complaint was also dismissed.
23. On 5.10.1995, the respondent filed the present suit No. 8 of 1995 for a permanent
injunction restraining the defendant appellant from interfering, disturbing or in any
manner tampering with the possession of the plaintiff over the plot in dispute, and
restraining the defendant appellant from re-allotting the plot in question to any other
person on the basis of the resumption order, if any, or otherwise. Though there was no
prayer regarding any resumption order, it was asserted that the resumption order, if any
passed by the defendant was void, illegal, non est and not binding upon the plaintiff in
any manner. A decree for mandatory injunction directing the defendant appellant to
remove an existing high-tension wire going over the plot in question and also to remove
an electrical pole existing in the plot and to make available the plot free from all kinds of
hindrances for raising the construction was also prayed for. The plaint was signed by one
Uma Shankar who was said to be a power of attorney of the plaintiff firm. The plaint
proceeded on the footing that there was also an agreement between the parties that the
electric pole located in the plot would be got removed by the appellant and it was in view
of the failure of the appellant to get it done, that the construction could not be started by
the plaintiff. It was also admitted in the plaint that there might have been an order of
resumption of the plot, but if there was any such order, it was illegal, void and ineffective
and not binding on the rights of the plaintiff because of lack of opportunity of hearing
given to the plaintiff. The plaint proceeded to state that the defendant was threatening to
dispossess the plaintiff pursuant to that order of resumption; that the plaintiff was in
possession and that the plaintiff was entitled to relief as claimed.
24. The defendant filed a written statement contending that the plot in question was
resumed on 13.9.1991 in view of the plaintiff contravening the terms of the allotment and
possession was taken back on 25.9.1991. The plot had been re-allotted to another
concern. The plaintiff had neither any right over the plot in question nor any possession
over the same. Since the plaintiff had defaulted, the plot had been rightly resumed. There
was no stipulation or condition in the allotment that the appellant had the obligation to
remove the electric post located in the plot or the overhead electrical line. The plaintiff
was not in posssession. The suit was liable to be dismissed.
25. On behalf of the plaintiff, one Jai Bhagwan was examined as P.W. 6. He gave
evidence to the effect that the plot in dispute was allotted to Om Parkash Saharan. He had
been appointed as General Power of Attorney by the said Om Parkash Saharan on
9.4.1996. Om Parkash Saharan was the sole proprietor of the business of the plaintiff
company. Obviously, this witness who entered the picture by virtue of a power of
attorney executed on 9.4.1996, was not a party to any of the things that had taken
@page-SC64
place prior to the grant of power of attorney in his favour and had no knowledge of them.
Om Parkash Saharan in whose name the allotment was made did not go to the box. In the
box, P.W. 6 admitted that the company had received the letter warranting of the proposal
to resume the plot because of its failure to fulfil the condition of allotment. He stated that
because of the high-tension wire passing over the plot in dispute, it was not possible to
raise construction thereon. He admitted that one week prior to the institution of the
present suit, the plaintiff came to know that defendant had resumed the plot in dispute
and had also prepared a report that possession had been taken back. He asserted that the
plaintiff had not surrendered the possession of the suit property and the plaintiff was in
possession till date. He stated that letters sent intimating the proposal to resume the plot
were illegal and void. No opportunity of hearing was afforded prior to the resumption of
plot in dispute. He admitted that the defendant had issued Exhibit PW4/11 letter to Om
Parkash Saharan, but no payment was made by Saharan in pursuance thereof. He stated
that he knew Om Parkash Saharan since 1983. He admitted that the allottee had to start
construction within two years from the date of allotment. He admitted that within the
prescribed period, no construction was raised but claimed that that was because of the
passing of the high-tension wire over the property. He denied the suggestion that the plot
was resumed on 13.9.1991 and possession was taken on 25.9.1991. He pleaded ignorance
of the fact that the plot in question was re-allotted to another Om Parkash, son of Arjan
Lal and that possession had been given to him since 2.9.1994. He denied the suggestion
that he was aware at the time of execution of the Power of Attorney in his favour that the
plot in dispute was re-allotted to Om Parkash son of Arjan Lal. He pretended ignorance of
the filing of a complaint in the District Consumer Forum earlier by the plaintiff and about
the dismissal of the same. He also pretended ignorance of the fact that a petition under
the Arbitration Act was filed by the plaintiff and that was also dismissed. But, he admitted
that no construction was started by the time the suit was filed. He denied the suggestion
that he had no right to file the present suit. The power of attorney in his favour was
marked as PW6/1.
26. Letter PW-4/5 produced by the plaintiff and proved through P.W. 4 examined on
behalf of the plaintiff, was a final show cause notice given to the plaintiff company on its
failure to set up an industrial unit in the plot in question. In that notice, after informing
the plaintiff that no further extension of time was possible, the plaintiff was called upon
to show cause within a period of 35 days from the date of issue of that letter as to why the
plot allotted to the plaintiff be not resumed on account of the failure of the plaintiff to set
up the unit within the extended period. The plaintiff was informed that in case no
satisfactory explanation was received within the period specified, the Corporation would
be constrained to resume the plot without making any further reference to the plaintiff.
Exhibit PW4/16, the letter dated 1.4.1991 sent in reply to the above letter dated 4.3.1991
after acknowledging the threat of resumption stated that the plaintiff was quite eager and
sincere in its desire to set up an industrial unit but since Shri Om Parkash Saharan, who
signed the letter, was under severe stress and strain due to a serious accident which made
him almost incapacitated for a long period, he could not take effective steps to undertake
the work, and that the plaintiff hoped to take up the work and complete it in four months
and praying that some more time may be allowed for that purpose. It is also seen from an
earlier letter PW 4/6 dated 27.3.1991, that the appellant had specifically brought to the
notice of the plaintiff that the plaintiff had contravened the terms of the agreement by not
taking up the construction and calling upon the plaintiff to show cause within 35 days
why the plot of land should not be cancelled. This was followed by PW4/9 dated
15.9.1991 conveying the decision of the appellant to resume the plot for non-compliance
with the terms of allotment. Thus the correspondence marked on the side of the plaintiff
itself clearly indicated that the plaintiff had been given notice of the resumption for
failure of the plaintiff to fulfil the terms of the allotment. The correspondence produced
by the plaintiff also indicates that there was no stipulation outside the terms of the written
allotment letter about any promise of removal of any electrical pole or electrical line
passing over the plot in question. Otherwise, that would have been mentioned in Ex.
PW4/16 dated 1.4.1991.
@page-SC65
27. The case tottered out on behalf of the plaintiff in the trial court was that the
authorities had agreed to have the electrical pole removed from the plot and since it was
not removed, the work could not be started. This is not reflected by the written allotment
letter. In other words, there is no term therein to that effect. Such a claim is also belied by
the letters written by the plaintiff which have been marked on the side of the plaintiff as
exhibits and reference to one of them has been earlier made. Some correspondence with
some officers of the appellant regarding the removal of the electric pole was relied on to
say that outside the written agreement, the appellant had agreed to get the electric pole
and overhead line removed. There was also no evidence to prove the possession claimed
by the plaintiff as on the date of suit.
28. In spite of such glaring factors emerging, the trial court proceeded to accept the story
of the plaintiff that it had not been given notice of the resumption of the land and that it
continued to be in possession and that there was a condition for removal of the electric
pole and the electrical line and since the pole and the line were removed only by
30.11.1995, the plaintiff had time to take up the project thereafter. I must say that the
decision of the trial court shows total lack of application of mind and non consideration
of the pleadings and the evidence in the case. The suit was thus decreed declaring the
resumption order dated 13.9.1991 illegal and against the principles of natural justice and
setting it aside, a relief that does not even seen to be sought in the plaint. The lower
appellate court also toed the line of the trial court and dismissed the appeal, again,
without proper advertence to the relevant materials available in the case and even without
adverting to the fact that P.W. 6, the power of attorney holder had no knowledge of what
had transpired earlier even on his own showing and that the original grantee Om Parkash
Saharan had not even come forward to speak to the case of the plaintiff. The appeal was
dismissed by the Appellate Court. I must say that as a court of first appeal and as the final
court of facts, the Appellate Court had a duty to reappraise the entire material to decide
the points arising and the appellate court in this case has miserably failed to perform its
duty.
29. The defendant filed a Second Appeal. Along with the Second Appeal, since the
plaintiff had pretended ignorance of the order of resumption, on behalf of the defendant, a
legal notice sent by counsel for the plaintiff was also produced by way of additional
evidence by invoking Order 41 Rule 27 of the Code of Civil Procedure. We must say with
regret that the Second Appellate Court without any application of mind . . . . . . . . in fact
it pains me to record out of my experience in this Court for three years, that the particular
High Court is disposing of Second Appeals in such a cavalier manner that nothing else is
needed to bring discredit the system itself . . . . rejected the Second Appeal by stating that
no substantial questions of law arose in the Second Appeal. This was after dismissing the
application filed under Order 41 Rule 27 of the Code, I get the impression, even without
trying to understand what the suit is for, what was the nature of disposal of the suits by
the courts below and what that document implied and what it established. The decree thus
granted is under challenge before us.
30. Learned counsel for the appellant submitted that it was not a condition of the grant or
allotment, that the appellant would get removed an existing electric pole or electric wire
passing over the property before handing over possession to the respondent. It is pointed
out that the plaintiff had unconditionally taken possession pursuant to the allotment.
Learned counsel pointed out that the written letter of allotment does not contain any such
stipulation, on the other hand it contained a clear stipulation that the allottee had to
complete the entire construction and start the commercial production within two years
from the date of issue of the letter of allotment. Learned counsel further pointed out that
even the letters on the side of the plaintiff seeking extension of time did not put forward
any such claim and what was put forward was only the incapacitation of the proprietor of
the plaintiff and the consequent delay in starting the construction. Learned counsel further
pointed out that P.W. 6 examined as the power of attorney of the plaintiff, came into the
picture only in the year 1996 and had no knowledge of things that transpired in the year
1991 when the allotment was cancelled, the resumption order was passed and the land
was resumed. Om Parkash Saharan who was the eo nominee allottee, had not even gone
to the box to speak about the letters relating to the failure of the plaintiff to
@page-SC66
fulfil the conditions of allotment and speak about the so called absence of knowledge
about the order of resumption. Learned counsel submitted that it was in that context that
the original notice sent by one P. Bhaskaran, Advocate on behalf of the plaintiff to the
appellant-defendant was sought to be produced in the Second Appeallate Court so that the
conscience of the court may be satisfied in that regard since the said notice clearly
acknowledged the letter conveying the factum of the resumption of the plot allotted to the
plaintiff by the appellant. Learned counsel submitted that the High Court was clearly in
error in rejecting the application under Order 41 Rule 27 even without applying its mind
as to the purpose for which the said document was produced and the need for that
document for rendering a decision more satisfactory to the conscience of the Court and
without even properly understanding the scope of Section 100 of Code of Civil Procedure
and the duty a Second Appellate Court is called upon to perform. Learned counsel
pointed out that even a finding of fact ignoring vital documents or without advertence to
the relevant evidence and without asking itself the relevant questions, was a finding that
was not binding on a Second Appellate Court under Section 100 of the Code. Learned
counsel pointed out that there was no evidence of the possession being with the plaintiff
as on the date of the suit and even the local Commissioner's report taken at the instance of
the plaintiff showed that the land was lying vacant. The appellant had allotted the land to
another person though it had to be resumed again because of failure of that person to
fulfil the terms of the allotment to him. The decree for injunction in favour of the plaintiff
restraining the appellant from interfering with the so called possession of the plaintiff was
clearly a decree not supported by the necessary finding required under law and a relief
granted, unsupported by the necessary finding based on evidence in that behalf, clearly
amounted to the lower appellate court making a substantial error of law warranting
correction by the High Court in Second Appeal. Learned counsel submitted that the relief
of declaration granted was also unwarranted in the nature of the reliefs claimed in the
plaint.
31. On behalf of the respondent-plaintiff, it was contended that the understanding was
that the electric pole and the overhead electric lines will be got removed by the
defendant-Corporation and since that was not done till the year 1995, there was no
default on the part of the plaintiff. The High Court was justified in not admitting fresh
evidence in Second Appeal since the defendant had the opportunity to produce the same
before the trial court. Learned counsel also submitted that the finding of possession was a
finding of fact and the High Court was justified in not interfering with the same. Learned
counsel submitted that there is no reason to interfere with the decree passed in the case.
32. The plaintiff had come forward with a dubious case regarding the order of resumption
of the plot in question. There was clearly a default on the part of the plaintiff in
complying with the requirement of putting up an industry in the plot and starting
commercial production within two years of allotment. The excuse put forward by the
plaintiff for not doing anything in the plot was the existence of a electric pole and
overhead electric wires, which stood in the way of the construction. It was the further
case of the plaintiff that it was for the defendant Corporation to have got them removed
while delivering possession of the plot. We find from the written instrument of allotment,
that there was no such stipulation therein. Having accepted the allotment on its basis and
taken possession of the plot, it is not open to the plaintiff to raise a contention based on
some other subsequent understanding between the plaintiff and some of the officers of the
defendant or outside the agreement. In fact, in the letter PW4/16, when such a case if
true, should have been put forward, such a case is not put forward. There is also no
evidence of any subsequent agreement in that regard. Merely because the officers of the
appellant were induced to write letters regarding removal of the pole long after the
resumption does not establish any such condition of allotment.
33. The plaintiff's plea that it was not aware of the order of resumption is belied by the
letters marked on its side through PW4 and the admission of PW6. These letters clearly
show that the plaintiff was given notice of the resumption and was informed that if he did
not comply with the requirement and sent satisfactory reply, the land will be resumed
without any further notice within the time stipulated therein. Thus obviously, adequate
notice and adequate
@page-SC67
opportunity was given to the plaintiff before the order of resumption was passed. The
non-examination of Om Prakash Saharan was fatal to the case of the plaintiff under the
circumstances. The courts below acted perversely in entering a finding that the order of
resumption was illegal and was not binding on the plaintiff. I find that the courts below
have not adverted to the relevant materials available. Moreover, it is seen that P.W.6, who
is examined on behalf of the plaintiff came into the picture only in the year 1996 and was
not a competent witness to speak about anything that transpired in the year 1991 and that
the original allottee Om Parkash Saharan had not even come forward to give evidence on
behalf of the plaintiff. It was a clear case for drawing an adverse inference against the
plaintiff for non examination of Om Parkash Saharan. These vital aspects have been
ignored by the trial court and by the first appellate court when they purported to find that
the order of cancellation was not binding on the plaintiff. I am of the view that a finding
ignoring legal evidence available in the case and ignoring the inferences to be drawn
from the circumstances established, is a finding that can only be described as perverse
and such a finding is not binding on a Second Appellate Court under Section 100 of the
Code. In fact, it compels interference by the Second Appellate Court. The High Court has
unfortunately not adverted to anything relevant and was incorrect in thinking that the
findings of fact are not liable to be interfered with in the case on hand. At least, it should
have seen that parole evidence to alter the terms of a written instrument was not
permissible and the fact that the courts below had relied on such evidence justified
interference by the High Court in Second Appeal.
34. Same is the position regarding the finding on possession. The correspondence with
the Electricity Board does not establish that the plaintiff continued to be in possession
notwithstanding its default and the order of resumption with notice to the plaintiff. The
evidence of P.W. 6 is not evidence at all of possession of the plaintiff as on the date of the
suit or of possession subsequent to 1991. There is no evidence to show that the plaintiff
Om Parkash Saharan, the allottee continued in possession until the power of attorney was
executed in favour of P.W. 6. The suggestion to P.W. 6 that he was aware of the
resumption and re-allotment to another entity when he filed the suit, is a justifiable
suggestion on the facts of this case. The finding on possession is also found to be based
on no legal evidence and consequently infirm and liable to be interfered with by this
Court as it should have been interfered with by the Second Appellate Court.
35. I am also of the view that the Second Appellate Court was clearly in error in refusing
to admit in evidence the notice sent on behalf of the plaintiff by its advocate to the
defendant. It must be noticed that not even an objection was filed on behalf of the
plaintiff to the application under Order 41, Rule 27 of the Code denying the issue of such
a notice. There was no denial of the status of the counsel who had issued the notice on
behalf of the plaintiff. There is a presumption that when an Advocate sends a notice on
behalf of a client, the notice is sent by him on instructions from his client. The plaintiff
had no case before the High Court that it had not instructed the concerned counsel to send
such a notice. After all, the purpose for which the notice was produced was only to show
that the plaintiff was aware of the resumption made in the year 1991 and the specific
acknowledgment of receipt of the concerned letters in that behalf. Even otherwise, the
letters produced at the trial do indicate that the plaintiff was aware of the resumption of
the plot. Therefore, this was a case where the document produced under Order 41, Rule
27 of the Code was required to enable the High Court to pronounce a judgment more
satisfactory to its conscience constituting other sufficient cause within the meaning of
Order 41, Rule 27 of the Code for production of additional evidence. The authenticity of
the notice had not been questioned by filing an objection and the High Court was
therefore in error in thinking that it was not a document which could be straightway
accepted.
36. Thus, on the whole, I am satisfied that the plaintiff had not made out any case for
relief in the present suit. The judgments of the courts below therefore call for
interference. I am satisfied that the appeal deserves to be allowed. If the decree now
passed is not set aside, I apprehend that I would be failing in my duty exercising
jurisdiction under Article 136 of the Constitution of India. After all, the jurisdiction of
this
@page-SC68
Court is a corrective jurisdiction and not a restricted one.
37. The appeal is therefore allowed. The judgments and decrees of the courts below are
set aside and the suit filed by the plaintiff is dismissed with costs throughout.
38. During the course of the hearing, the defendant-appellant offered that the plot could
be allotted afresh to the plaintiff, if the plaintiff was willing to pay the price at the rate of
Rs.13,000/- per square meter which is the current rate. The plaintiff was not willing to
pay that price. But learned counsel for the plaintiff contended that the plaintiff had,
obviously subsequent to the decreeing of the suit, had put up a construction in the
property. It is obvious that on the date of suit, there was no construction. The Local
Commissioner's report establishes that and the evidence of P.W. 6 also indicates that. In
that situation, taking note of the circumstances, I think it proper to give the plaintiff an
opportunity to have the land allotted to it afresh, on its paying a price for the plot at the
rate of Rs.10,000/- per square meter. In other words, if the plaintiff respondent pays to the
defendant appellant, the price of the plot at Rs.10,000/- per square meter within four
months from today, there will be a fresh allotment of the plot by the defendant to the
plaintiff. While calculating the amount, the plaintiff will be entitled to adjust any sum that
might have been paid towards the allotment of the plot originally made in the year 1987
and it need only pay the balance amount. In case, the price at the rate of Rs.10,000/- per
square meter is not paid by the plaintiff to the defendant within a period of four months as
stipulated above, the defendant would forthwith take physical possession of the land and
report that fact to the trial court by way of the affidavit and deal with the plot in
39. Before leaving this case, I think it necessary to issue a direction and to make an
observation. The direction is to the appellant to initiate action against those officers who
were dealing with the cancellation of the allotment and taking possession of the property,
and more particularly those who were in charge of the litigation and who failed to
produce vital documents including the notice issued on behalf of the plaintiff that was
sought to be produced in Second Appeal. It is absolutely necessary to take such action in
the interests of the appellant, the citizens and the State since it should not be forgotten
that the appellant is a trustee of public property and is expected to deal with it as a trustee
with all care and caution. The second is to exhort the trial courts, the first appellate courts
and the second appellate courts in the State to show better application of mind while
deciding a lis keeping in mind that what they are performing is a divine function that is
onerous and at the same time challenging. I am making these observations regarding the
courts in the concerned State since for the last three years I have been noticing with regret
the lack of application in many a case that had come before this Court.
40. In view of the difference of opinion between us, let this matter be placed before
Hon'ble the Chief Justice of India for placing the matter before an appropriate larger
Bench.
Order accordingly.
AIR 2008 SUPREME COURT 68 "State of Rajasthan v. Chanda"
(From : Rajasthan)*
-9 -2007.
State of Rajasthan v. Chanda @ Chandkori and Ors.
(A) Constitution of India, Art.136 - SPECIAL LEAVE PETITION - Special leave petition
- Long delay in filing by Govt. - Deprecated by Court if causes grave injustice to parties.
(Para 4)
(B) Criminal P.C. (2 of 1974), S.378 - APPEAL - DISMISSAL - Leave to appeal against
acquittal - Dismissal of application by cryptic, unreasoned order. (Para 4)
Manish Kumar and Ansar Ahmad Choudhary, for Appellant; B. S. Jain, Ajay Veer Singh,
Ms. Mamta Jain, Ms. Neha Tiwari and Dr. (Mrs.) Vipin Gupta, for Respondents.
* D.B. Cri. Leave to Appeal No. 165 of 2005, D/- 14-7-2005 (Raj.) (Jaipur Bench)
Judgement
JUDGMENT :-We have heard learned counsel for the parties.
2. Delay condoned.
@page-SC69
3. Leave granted.
4. This appeal is barred by time by 260 days. Ordinarily we may not have condoned such
a long delay, and we do not appreciate the delays caused in filing Special Leave Petitions
by the Government before this Court. Such kind of delay causes grave injustice to the
parties. However, in the peculiar facts and circumstances of the case, we condone the
delay. This appeal is directed against the judgment and order dated 14th July, 2005 passed
by the High Court of Judicature for Rajasthan at Jaipur Bench, Jaipur in D. B. Criminal
Leave to appeal No. 165 of 2005 whereby the Division Bench of the High Court had
passed a cryptic order dismissing the application for leave to appeal against an acquittal
judgment without giving proper reasons and without showing due application of mind.
While disposing of an application for leave to appeal against an acquittal, it is expected
that the High Court should pass a speaking order showing due application of mind. Of
course the said order need not be as elaborate as a full fledged judgment, but at least
briefly some reasons should be given. That has not been done in this case. Hence we
cannot sustain the impugned order dated 14th July, 2005 passed by the High Court. We
set aside the order of the High Court and remit the matter back to the High Court for
passing an order after showing due application of mind.
5. The appeal is accordingly, allowed.
Appeal allowed.
AIR 2008 SUPREME COURT 69 "Malleshappa v. State of Karnataka"
(From : Karnataka)*
Coram : 2 R. V. RAVEENDRAN AND B. SUDERSHAN REDDY, JJ.
Malleshappa v. State of Karnataka.
Penal Code (45 of 1860), S.300 - MURDER - EVIDENCE - Murder - Circumstantial
evidence - "Last seen together" - No proximity of time and place between 'last seen'
evidence and recovery of dead body - Veracity of other evidence extremely doubtful -
Singular circumstance of "last seen" - Not sufficient to base conviction - Non-explanation
by accused as to what happened to deceased - Cannot lead to proof of guilt against
accused.
Crl. Appeal No. 1337 of 2005, D/- 19-10-2005 (Kant), Reversed.
The prosecution case was that the deceased was employee of accused. Accused doubted
that deceased has illicit relations with his wife. The deceased left his job. The accused
with others came to house of deceased and asked for his services for digging bore-well.
The deceased who was sitting with his family members refused but was forcibly taken.
The deceased did not return home thereafter. No report was made to the police by family
members of deceased. Around 10 days thereafter dead body in a highly decomposed state
was found in river. It was alleged that mother of deceased identified it. F. I. R. was lodged
thereafter. The evidence of mother and wife of deceased was full of contradictions. No
evidence was led as to allegation of illicit relation between deceased and wife of accused.
Held, there being no proximity as to time and place between evidence of last seen and
recovery of dead body, conviction could not be based on singular circumstances of "last
seen". (Paras 24, 25)
The first information report lodged after so called identification of dead body by mother
of deceased itself is highly doubtful. Evidence of mother of deceased which is full of
contradictions does not reveal any circumstances to hold that the prosecution has
established the charge against the appellant. The appellant's failure to offer any
explanation as to what happened to deceased after he took deceased from his house, in his
statement under Section 313 Cr. P. C. is not a circumstance to hold appellant guilty of the
charge.
Crl. Appeal No. 1337 of 2005, D/- 19-10-2005 (Kant), Reversed. (Para 23)
2002 AIR SCW 3523 : AIR 2002 SC 3064 (Rel. on) (Pt.A) 23
2002 AIR SCW 3596 : AIR 2002 SC 3119 : 2002 All LJ 2217 24
1991 AIR SCW 2038 : AIR 1991 SC 1853 : 1991 Cri LJ 2653 (Disting) 26
Sushil Kumar, Sr. Advocate, Girish Ananthamurthy, Mrs. Vaijayanthi Girish, Jagdish Patil
and P. P. Singh, for Appellant; Anil Mishra (for Sanjay R. Hedge), for Respondent.
@page-SC70
* Cri. Appeal No. 1337 of 2005, D/- 19-10-2005 (Kant).

Judgement
B. SUDERSHAN REDDY, J. :- The appellant along with six others was tried by the
Court of Session for the offence punishable under Section 302 of the Indian Penal Code
(hereinafter referred to as 'IPC') and sentenced to undergo life imprisonment and to pay a
fine of Rs. 2,000/-. He was also convicted for the offence punishable under Section 364
IPC and sentenced to undergo rigorous imprisonment for 5 years and to pay a fine of Rs.
1,000/- and in default of payment of fine, to undergo rigorous imprisonment for 3
months. Further, he was convicted for the offence punishable under Section 201 IPC and
sentenced to undergo rigorous imprisonment for 1 year and to pay a fine of Rs. 1,000/-
and in default of payment, to undergo rigorous imprisonment for 3 months. All sentences
were directed to run concurrently. The Sessions Court acquitted accused Nos. 2, 3, 4 and
5. The appeal of the appellant was dismissed by the High Court of Karnataka by the
impugned judgment, however, accused Nos. 6 and 7 were acquitted by the High Court of
all the charges levelled against them. In this case we are concerned with the sole
appellant (Accused No. 1).
2. The conviction of the appellant is based on circumstantial evidence.
3. In brief, the case of the prosecution is that the deceased-Yankanna Balakannavar had
illicit intimacy with the wife of the appellant Smt. Hanamawwa (PW19). Deceased was
working as the driver of the tractor of the appellant during 2001. The appellant's
suspicion about the deceased having illicit intimacy with his wife led to serious
misunderstanding between them because of which, deceased left his job as the tractor
driver. On 12.7.2001 at about 8.00 p.m., the appellant and accused Nos. 6 and 7 went in
the car of the appellant to the house of the deceased. He was not at home. The appellant
and accused Nos.6 and 7 told deceased Yankanna's mother Yallawwa (PW-10) that they
required the services of her son in connection with digging of a borewell in the land of
the appellant. When deceased Yankanna returned home within half an hour, he was
immediately taken by the appellant and accused Nos. 6 and 7 with them. On that night,
deceased-Yankanna did not return home. On the next day, Yallawwa (PW-10) went in
search of her son but could not find him. On questioning, the appellant informed PW-10
that he had brought back deceased Yankanna at about 11.00 p.m. on the same night and
had left him in the village. Not satisfied with the answer given by the appellant, PW-10
went to accused Nos. 6 and 7 and inquired about the whereabouts of her son but they also
did not give any satisfactory answer. Thereafter, PW-10 and her nephew-Kamanna
Parameshwar (PW-18) went in search of the deceased Yankanna and in the process, made
inquiries in nearby villages namely Dadanatti, Rugi, Chabbi etc. but could not find him.
4. On 21.7.2001, Inspector of Bilagi Police Station (PW-29) received information that
there was a dead body found floating in the Ghataprabha river. Immediately, he rushed to
the place and found the dead body of a person near the pump house. The dead body was
taken out from the river. It was found that the head and rest of the portion of the body had
been severed. The body was highly decomposed and the bones were exposed. The legs of
the dead body were found folded and tied with a rope. The body was tied by another rope
at the place of neck also. Inspector of police (PW-29) lodged information with regard to
the same and the same was registered as Crime No. 91/2001 of Bilagi Police Station for
the offences punishable under Sections 302 and 201 of the IPC. The First Information
Report is exhibit P-23 dated 21.7.2001. Thereafter, PW-29 conducted inquest in the
presence of PWs-1 and 2 and sent for the medical officer to conduct the post mortem
examination. Dr. Sabu Satihal, Medical Officer, KIMS, Hubli (PW-21) conducted the
post mortem examination. The Medical Officer could not confirm as to whether the body
was that of a male or female since the genital portion had been highly decomposed.
However, there was underwear found on the body which was taken out and the body was
preserved for two days for identification.
5. In the meanwhile, PW-10 along with PW-18 had gone to Kaladgi police station and
lodged a complaint on 22.7.2001 inter alia alleging that her son was working as a tractor
driver for about 3-4 years with the appellant and about 3 months back, her deceased son
left the job on account of some disputes between them. She suspected that there was
some dispute between her son and the appellant, accused Nos. 6 and 7 since
@page-SC71
they were frequently roaming around her house, making inquiries about her son. She
made inquiries with her deceased son in that regard who did not respond. She
apprehended that the appellant may cause harm to her son. It is further alleged that about
11 days back i.e. on 12.7.2001, herself, the deceased and Lacchavva-wife of the deceased
(PW-11) were sitting in their house and at that time the appellant, accused Nos. 6 and 7
came to her and stated that they required her son in connection with digging of a borewell
in the land of the appellant. The deceased refused to go but they took her son forcibly and
the same was noticed by her neighbours. It was about 8.00 p.m. Thereafter, her son did
not return to home. She made inquiries with the appellant who stated that he had dropped
her son in the village at 11.00 p.m. Other accused also did not give any satisfactory
explanation. She suspected that the said three persons might have killed her son. On the
basis of the said information a case was registered by Sub-Inspector (PW-28), Kaladgi
Police Station as Crime No. 50/01 for the offence under Section 364 read with 34 IPC.
Intimation of detection of dead body in Ghataprabha river was flashed to the
neighbouring police stations and the same was received by Kaladgi police station and in
furtherance of the same, PW 10 and PW-11 were taken to the place. PW-10 identified the
body as that of her son Yankanna on the basis of the underwear found on the body. On
26.7.2001, appellant and accused Nos. 2 and 3 were arrested. In furtherance of the
voluntary information given by the appellant, PW 29 could ascertain the places where the
deceased had been taken by the appellant and other accused, who were involved in the
incident as well as the place where the dead body of Yankanna had been thrown into
river. Weapons of offence were also recovered on the basis of the voluntary information
furnished by the appellant. As it was revealed that the incident occurred within Kaladgi
limits, PW-29 submitted the entire papers on 8.8.2001 to Kaladgi Police Station for
further investigation. Police Inspector of Bagalkot police station (PW-26) took up further
investigation on 9.8.2001 and filed charge sheet against the appellant and accused Nos. 2
to 7 for offences punishable under Sections 143, 147, 148, 354, 302, 201 read with 149 of
the IPC.
6. The accused pleaded not guilty of the charges and claimed to be tried. The prosecution,
in order to establish the case, examined in all 30 witnesses. No witness was examined on
behalf of the accused. The learned Sessions Judge found that the materials were not
sufficient and no case was made out as against accused Nos. 2 to 5 and consequently,
acquitted them of all the charges. The remaining accused namely appellant and Accused
Nos. 6 and 7 were convicted for the offences punishable under Sections 302 , 364, and
201 of the IPC. On appeal, the High Court allowed the appeal of accused Nos. 6 and 7
and acquitted them. The High Court dismissed the appeal of the appellant and confirmed
the conviction and sentences imposed as against the appellant.
7. We have elaborately heard the learned counsel appearing for the appellant as well as
for the State.
8. Shri Sushil Kumar, learned senior counsel for the appellant contended that the High
Court committed a serious error in holding that the burden shifted to the appellant to
show what happened to the deceased in view of the evidence of PW-10 and PW-11 that
he took the deceased and this amounts to requiring the accused to prove his innocence.
He pointed out another error committed by the High Court in coming to the conclusion
that the appellant with the help of some others (not the other accused who had been
acquitted) were responsible for committing the murder of the deceased-Yankanna. The
learned counsel submitted that the chain of circumstances is not complete and, therefore,
the conviction of the appellant cannot be sustained. Further contention of the learned
counsel was that assuming that the prosecution has been able to establish the
circumstance of being last seen together, namely, the deceased having left with the
appellant on 12th July, 2001, that by itself, could not connect the appellant with the
commission of crime in the circumstances of the case.
9. On the other hand, the learned counsel for the State submitted that the evidence of PWs
10 and 11 which is consistent and the circumstances in which the dead body was found in
the river clearly indicated that the dead body had been thrown into Ghataprabha river
after committing murder of the person and the identification by PW-10 that the dead body
was that of Yankanna, the chain of events is complete and in the
@page-SC72
absence of any explanation by the appellant, only conclusion to be arrived at is that the
appellant was responsible and liable for the murder of the deceased-Yankanna.
10. Having heard learned counsel for the parties and on perusal of the record, we find that
the prosecution miserably failed to establish the charge against the appellant.
11. It is required to notice that most of the witnesses namely, PW Nos. 1 to 9, 13, 14, 15,
6, 17, 19, 23 and 30 had turned hostile and did not support the prosecution case. The
whole case of the prosecution rests on the evidence of the mother and wife of the
deceased (PW Nos. 10 and 11) and the police officers ( PW Nos. 28 and 29). We may
proceed now to consider the evidence of PW Nos. 10 and 11 in somewhat detail.
12. PW-10, in her evidence, stated that the appellant along with accused Nos. 6 and 7
came to her house at about 8.00 p.m. and took her son Yankanna as his assistance was
required in connection with digging of a borewell in the land of the appellant. Thereafter,
her son has not returned. She had searched for her son in neighbouring villages but could
not find him. The appellant and accused No. 6 came along with her and also searched for
the deceased-Yankanna. Thereafter she and her relatives demanded the appellant to
produce the deceasedYankanna. Having waited for about 5-6 days, she filed a written
complaint, written through PW-18 addressed to Kaladagi Police Station marked as
Exhibit P-6. The police traced the dead body of Yankanna. It was found in Anagwadi
river. She specifically states that "I saw the body and his head was chopped off and hands
and legs were cut-off and the rope was tied to the body. I saw and identified the
underwear (M.O.1) and identified the body as it belongs to my son." she suspected the
appellant had committed the murder of her son. She further stated that when she insisted
the appellant to produce her son, the appellant told her deceased Yankanna had illicit
connection with his wife - Hanamawwa (PW-19) - "because of that he killed my son".
13. In the cross-examination, she stated in categorical terms that at the time of arrival of
the appellant at her house, her son Yankanna was not present at home and only half an
hour later he returned home and immediately the appellant took him away. Prior to the
arrival of the deceased, she and the appellant and PW-11 were present in the house. The
appellant took the deceased and went away. She accepted that on receipt of information
about floating of a dead body in the Ghataprabha river, she went there and identified the
dead body as that of her son. She did not file any complaint to the Bilagi Police Station.
Bilagi Police Station took her to Kaladgi Police Station in the police jeep where she
lodged Exhibit P-6.
14. In Exhibit P-6 (FIR), it is stated by PW-10 that her deceased son Yankanna left his job
about 3 months prior to the date of the incident. It is further stated in the Exhibit P-6 that
on 12.7.2001 in the evening she was sitting in her house along with the deceased and his
wife-Lacchavva (PW-11) and that time the appellant, accused Nos. 6 and 7 came to her
house and she invited them inside. She did not state that her son was not present when the
appellant along with other accused came to her house and her son returned home only
after half an hour. In Exhibit P-6 there is no mention of her coming to the Ghataprabha
river and anything about the identification of the dead body of her son. Had she really
identified the dead body of her son on 21.7.2001 nothing prevented her from referring to
it in Exhibit P-6. In her evidence, she stated that she did not claim the dead body of her
son nor the police told her to take away the body of the deceased. She did not attend the
funeral of her son.
15. PW-11 is none other than the wife of the deceased. She stated in her evidence that
about 3 years ago at 8.00 p.m., appellant with two others came to her house and took
away her husband with them. Thereafter, her husband did not return home. That after 7-8
days having received the information about a dead body floating in the Ghataprabha
river, PW-10 and herself went and saw the dead body and found it to be of her husband.
PW-10 filed the complaint to the police. According to her, appellant suspected that her
deceased husband had illicit intimacy with his wife because of that, appellant and accused
No.2 took her husband and committed the murder. Looking at M.O.1 first time in the
court, she identified the same as underwear of her husband. It is admitted by her in the
cross-examination while she was waiting in Bilagi police station, her mother-in-law (PW-
10) went and saw the dead body of her husband and she came and told her that it was the
dead body of her husband Yankanna. On the next day,
@page-SC73
she along with PW-10 went to Kaladagi police station where PW-10 filed the complaint
Exhibit P-6. She did not see the body of her husband. She did not perform the funeral.
She further stated in her evidence, it is the police who told her that there was illicit
relationship between deceased and Hanamawwa, wife of the appellant.
16. PW-29, Inspector of Police, Bilagi police station stated in his evidence that on
receiving information on 21st July, 2001 about floating a dead body at the Northern bank
of Ghataprabha river near the pump house, went there and found one unknown dead body
was floating in the Ghataprabha river near the pump house. He returned to the Bilagi
police station and lodged information exhibit P-22. On that basis he registered the case as
Crime No. 91/01 for the offence under Sections 302 and 201 IPC and dispatched the first
information report to the court at 1430 hours and again proceeded to the spot where the
dead body was found. The dead body was taken out of the river. It was in a highly
decomposed condition. He summoned the Medical Officer (PW-21) to conduct post
mortem examination at the spot and thereafter buried the body there itself. He also says
that he got the photos of the body taken prior to 'cremation'. Post mortem examination
was conducted at the spot itself by PW-21 between 4.45 p.m. to 6.15 p.m. It is on 24th
July, 2001, PW-10 to 12 came to the police station Bilagi and he had shown M.O. 1
(underwear), M.O. 6 (Waist thread) and photos to PW-10 to 12 based on which they
identified the dead body as that of Yankanna. He undertook further investigation and
arrested the accused. He claims to have made certain recoveries. It is on 8th August, 2001
he made over the case for further investigation to the C.P.I of Bagalkot, Rural Circle
through Kaladgi police station.
17. The evidence of PW-10 is full of contradictions apart from being at variance with
exhibit P-6 (FIR) lodged by her before the Kaladgi police station and the evidence of the
Investigating Officer (PW-29). In Exhibit P-6 she stated that her deceased son was taken
away forcibly by the appellant, accused Nos. 6 and 7. In the FIR, PW-10 does not say that
the deceased-Yankanna was working with the appellant as tractor driver but in her
evidence she stated that deceased-Yankanna was working with the appellant. In the first
information report she does not say anything about the illicit relationship of deceased-
Yankanna and appellant's wife-Hanamawwa(PW-19). She merely stated that there was
some dispute between the appellant and the deceased but in evidence, she stated that the
appellant told her that deceased-Yanakanna had illicit connection with his wife-
Hanamawwa (PW-19) because of that he killed her son. PW-11, Lacchawa-wife of the
deceased admitted in her cross-examination that she learnt that there was illicit
relationship between the deceased and the wife of the appellant only when the police told
her. She asserted that PW-10 filed a complaint to the police "as we came to know about
the illicit relationship between the deceased and Hanamawwa-wife of the appellant
through police."
18. On an analysis of the evidence referred to herein above, we find it very difficult to
believe the evidence of PW-10 and PW-11. They are not trustworthy witnesses. It is
doubtful as to how and in what circumstances Exhibit P-6 came into existence. If PW-10
had seen the dead body and identified it as that of her son there is no reason why she
could not have stated about it in Exhibit P-6. If one goes by the contents of Exhibit P-6 it
becomes clear that she knew nothing about the dead body found in the Ghataprabha river.
The question of identifying the dead body as that of her son does not arise. PW-29, in his
evidence, stated that PW-10 to 12 identified the body as that of deceased-Yankanna only
on the basis of M.O. 1 (underwear) and M.O. 6 (Waist thread) and some photos on
24.7.2001. No photographs are marked as material objects. It is difficult to believe that
one could identify the highly decomposed and mutilated dead body as that of deceased-
Yankanna when the Medical Officer (PW-21) was not even in a position to say whether
the dead body was that of a male or female. It is only the Forensic Expert (PW-22) who
stated the body as that of a male after examining the bones. PW-10 and 11 assert that
dead body was identified by PW-10 even on 21st July, 2001 but PW-29 says that dead
body was buried immediately after the post mortem examination. Exhibit P-6 is
obviously got into existence may be after prolonged consultation with the police. The
dead body remained unidentified.
19. PW-11's evidence is also not trustworthy. She states, in her evidence, that Bilagi
police came in a jeep and informed
@page-SC74
her and PW-10 that a dead body was found in the river and thereafter, she and PW-10
went to Bilagi police station but she did not see the dead body of her husband. She was
waiting in Bilagi police station but PW-10 and her father-in-law went to see the dead
body of her husband. But her father-in-law (PW-12) does not say that he saw the body of
his son. Next day they went in police jeep to Kaladagi police station where PW-10 lodged
first information report (Exhibit P-6). The version given by PW-11 is also highly artificial
and cannot be accepted. It is difficult to believe that she did not go to the spot where the
body was found. It is difficult to reconcile the statements of PW-10 and PW-29. It is
doubtful that PW-10 at all had seen the dead body of her son. PW-29, in his evidence,
stated that he could not trace the relatives of the dead person since it was highly
decomposed and had therefore got buried the body on 21.7.2001 itself. Thus in effect no
one identified the body buried on 21.7.2001 as that of Yankanna.
20. Yet another aspect of the matter is that there is no explanation as to why no complaint
has been made ever since 12th July, 2001 when Yankanna was forcibly taken away till
lodging the first information report on 22nd July, 2001 at 1900 hours.
21. There is no convincing evidence placed by the prosecution to show that there was
motive and that the deceased Yankanna had illicit relationship with Hanamawwa (PW-19)
wife of the appellant. Be it noted, PW-19 also turned hostile and did not support the
prosecution case. In this regard, the evidence of PW-11 gains some significance wherein
she admitted that the complaint was filed only after they were informed by the police
about the illicit relationship of the deceased-Yankanna and Hanamawwa (PW-19). No
witness has spoken about the alleged illicit relationship between the deceased and PW-19
except PW-10 and 11 who got the information from the police.
22. Next, we shall refer to the evidence of PW-21 who conducted the post mortem
examination. It is in his evidence that the body was highly decomposed, head was
missing, both legs were flexed and tied with rope over the abdomen. Hands were missing.
Survival bone was exposed, external genitalia was highly decomposed and unable to
make out sex organs. He could not make out as to whether the body was of a male or
female, age and cause of death, time of death, he accordingly preserved the samples and
sent to the Forensic Expert. The Forensic Expert examined as PW-22 stated that he
received a sealed box containing bones from PW-21 and on opening the box, he found 8
human bones as mentioned in his report. They were of male body. He admitted that by
examining the bones, exact age of the deceased cannot be given. Even the time of death
cannot be given exactly.
23
. In the light of the evidence available on record, can it be said that the circumstances of
last seen together by itself and necessarily lead to the inference that it was the appellant
who committed the crime? The High Court took the view that accused Nos. 6 and 7 are
entitled to the benefit of doubt though, PW-10 stated in her evidence that the appellant,
accused Nos. 6 and 7 took her son Yankanna on the fateful day. No motive was shown
with regard to accused Nos. 6 and 7 for their involvement in the crime. It is under those
circumstances, the High Court said that the burden shifts to the appellant to show as to
what happened to the deceased-Yankanna. In our considered opinion, the High Court
committed serious error in arriving at such conclusion. The first information report
lodged by PW-10 itself is highly doubtful. PW-10's evidence itself does not reveal any
circumstances to hold that the prosecution has established the charge against the
appellant. The appellant's failure to offer any explanation in his statement under Section
313 Cr.P.C. is not a circumstance to hold appellant guilty of the charge. The prosecution
has failed to establish as to when the death of Yankanna took place, it could be at any
time between 12th July, 2001 to 21st July, 2001. There is nothing on record to show as to
what transpired between 12th July, 2001 to 21st July, 2001. Mere non-explanation on the
part of the appellant, in our considered opinion, by itself cannot lead to proof of guilt
against the appellant. Learned counsel for the State relied upon the decision in Mohibur
Rahman and Anr. Vs. State of Assam [ (2002) 6 SCC 715] which in fact is in support of
the defence and nor the prosecution. 2002 AIR SCW 3523, Para 10
"The circumstance of last seen together does not by itself and necessarily lead to the
inference that it was the accused who committed the crime. There must be something
@page-SC75
more establishing connectivity between the accused and the crime. There may be cases
where on account of close proximity of place and time between the event of the accused
having been last seen with the deceased and the factum of death a rational mind may be
persuaded to reach an irresistible conclusion that either the accused should explain how
and in what circumstances the victim suffered the death or should own the liability for the
homicide. In the present case there is no such proximity of time and place. As already
noted the dead body has been recovered about 14 days after the date on which the
deceased was last seen in the company of the accused. The distance between the two
places is about 30-40 kms. The event of the two accused persons having departed with
the deceased and thus last seen together (by Lilima Rajbongshi, PW6) does not bear such
close proximity with the death of victim by reference to time or place. According to Dr.
Ratan Ch. Das the death occurred 5 to 10 days before 9.2.1991. The medical evidence
does not establish, and there is no other evidence available to hold, that the deceased had
died on 24.1.1991 or soon thereafter. So far as the accused Mohibur Rahman is concerned
this is the singular piece of circumstantial evidence available against him. We have
already discussed the evidence as to recovery and held that he cannot be connected with
any recovery. Merely because he was last seen with the deceased a few unascertainable
number of days before his death, he cannot be held liable for the offence of having caused
the death of the deceased. So far as the offence under Section 201 IPC is concerned there
is no evidence worth the name available against him. He is entitled to an acquittal."
24
. In the present case also, there is no proximity of time and place. We have already noted
that the dead body, even if it is to be accepted, was that of the deceased-Yankanna, had
been recovered after 10 days after the date of which the deceased was last seen in the
company of the appellant. This singular piece of circumstantial evidence available against
the appellant, even if the version of PW-10 is to be accepted, is not enough. It is fairly
well settled that the circumstantial evidence in order to sustain the conviction must be
complete and incapable of explanation of any other hypothesis than that of the guilt of the
accused. It is true as has been held by this Court in Lakshmi and Ors. Vs. State of U.P.
[ (2002) 7 SCC 198] that it is not an inflexible rule that the identification of the body,
cause of death and recovery of weapon with which the injury may have been inflicted on
the deceased though are factors to be established by the prosecution but it cannot be held
as a general rule and broad proposition of law that where these aspects are not
established, it would be fatal to the case of the prosecution and in all eventualities, it
ought to result in acquittal of those who may be charged with the offence of murder
provided the charges against the accused otherwise can be established on the basis of the
other reliable and trustworthy evidence. 2002 AIR SCW 3596
25. There is no reliable and trustworthy evidence in the present case. The High Court in
the present case took the view that as to what happened to the deceased-Yankanna was
within the knowledge of the appellant and he having failed to explain, and mutilated body
of Yankanna having been found, having shown that Yankanna had been murdered, the
only conclusion one can arrive at is that the appellant with the help of some others
committed the murder of Yankanna, cut off head and some part of the body and threw the
body in Ghataprabha river. Too many surmises and conjectures ! it is highly dangerous to
convict any accused on the basis of which the High Court has chosen to do so.
26
. It is not the case of the prosecution that the appellant together with some unidentified
persons kidnapped the deceased-Yankanna and killed him. The specific case of the
prosecution is that the appellant along with accused Nos. 2 to 7 committed the crime of
kidnapping and murder of the deceased. The trial court as well as the High Court gave the
benefit of doubt to the rest of the accused. The High Court in the circumstances could not
have propounded a new theory that the appellant with the help of some others may have
committed the murder of Yankanna. Neither there are any circumstances nor any
evidence available on record to take such a view in the matter in order to convict the
appellant. The decision of this Court in Khujji @ Surendra Tiwari Vs. State of Madhya
Pradesh [(1991) 3 SCC 627] upon which, the reliance has been placed by the learned
counsel for the State to sustain the conviction of the appellant has no 1991 AIR
SCW 2038
@page-SC76
application whatsoever to the facts and situation in the present case. It was the case where
this Court on an independent appreciation of the evidence of the three eye-witnesses
came to the conclusion that several persons had participated in the commission of the
crime including the appellant but for some reasons all other accused except the appellant
therein were acquitted of the charge under Section 302 read with 149 IPC. This Court
took the view that in the absence of the State appeal, it is not possible to interfere with
their acquittal but this Court was not bound by the facts found proved on the appreciation
of evidence by the courts below and is, in law, entitled to reach its own conclusion
different from the one recorded by the courts below on a review of the evidence. It is
under those circumstances, this Court sustained the conviction of the appellant under
Section 302 IPC with the aid of Sections 34 and 149 IPC and maintained the sentence
awarded to him. In the present case, there is no evidence available on record to arrive at
any conclusion that accused Nos. 2 to 7 were also involved in the commission of the
crime though they were acquitted by the trial court. We, accordingly, hold that the
judgment have no application to the present case in hand.
27. For all the aforesaid reasons, we hold that the prosecution did not establish the
charges framed against the appellant under Sections 302, 364 and 201 IPC. The
conviction and sentence awarded against the appellant is, accordingly, set aside and he is
acquitted of all the charges. He is ordered to be released forthwith unless required in any
other case.
28. The appeal is, accordingly, allowed.
Appeal allowed.
AIR 2008 SUPREME COURT 76 "Nanshibhai v. Bhupendra P. Popat"
(From : Bombay)*
-2007.
Nanshibhai s/o Ganeshbhai Mirani v. Bhupendra P. Popat and Anr.
Civil P.C. (5 of 1908), O.23, R.3 - COMPROMISE - DECREE - PUBLIC TRUST -
TRUST - Compromise decree - Violation of terms of decree - Application for directions -
Tenability - Suit relating to functioning of public trust - Disposed of by consent decree
directing holding of general body meeting to consider many items including election of
new body - Meeting held as per decree had to be adjourned after election - Remaining
items considered and adopted on later date by newly elected body - Order holding that
resolutions passed by new body in meeting held on adjourned date after due notice, on
left over agenda items - Was in breach of consent order - Improper - Matter remitted back
to High Court to consider maintainability of application challenging resolutions passed
by new body. (Paras 7, 8, 9)
R. F. Nariman, Sr. Advocate, H. A. Raichura, S. H. Raichura and R. M. Vithlani, for

Appellant; Rajeev N. Narula and Hardeep Singh Anand, for Respondents.
* C. A. No. 915 of 2005 in A. F. O. No. 427 of 2005, D/- 9-9-2005 (Bom).
Judgement
Dr. ARIJIT PASAYAT, J. :- Leave granted.
2. Challenge in this appeal is to the judgment rendered by a learned Single Judge of the
Bombay High Court allowing prayer made by respondent No.1 for certain directions and
directing to have a fresh meeting of Sri Lohana Mahaparishad (hereinafter referred to as
the 'Mahaparishad').
3. A brief reference as projected by the appellant to the factual aspects would suffice.
4. A suit was filed relating to the function of Mahaparishad. On the basis of the consent
order i.e. in an appeal from the order No.427/2005 the High Court directed to have a
General Body Meeting containing 23 Agendas including the agenda for holding the
election of President of the Mahaparishad and four trustees. The suit was accordingly
disposed of. A Court Commissioner was appointed and the agenda notice containing the
details of 23 agenda items were circulated to more than 650 members and the meeting
was fixed at Ahmedabad on 3.7.2005. The meeting of the Madhyastha Maha Samiti (in
short 'Maha Samiti') of Mahaparishad was held. On the request of majority of members,
item No.9 pertaining to the election of four trustees in place of the retiring trustees and
agenda No.22 pertaining to election of the President was taken up first after first formal
agendas. Shri
@page-SC77
Jayantilal Govindji Kundalia was elected as a President and four persons including one
T.R. Chitwani were elected as trustees. It is to be noted that in the election for the post of
President and trustees both Shri Kundalia and Shri Chitwani were contesters. As noted
earlier Shri Kundalia was elected as President while Shri Chitwani was elected as a
trustee. Respondent No.1 Sri Bhupendra P. Popat was the Chief Polling Agent of Shri
Chitwani. It is not disputed that considering the paucity of time the meeting was
adjourned for consideration of the remaining agenda items at the later date. According to
appellant after due notice to all the members the meeting was held on 4.9.2005 and the
remaining items of agenda were considered and adopted. Respondent No.1 Sri
Bhupendra P. Popat filed an application making grievance that the decision could not
have been taken at a subsequent meeting and it was only the earlier Board which could
have taken up the remaining agenda items and not the newly elected governing body. The
appellant questioned correctness of the acceptability of the stand of the respondent No.1.
It was highlighted that after the new governing body was elected, the question of the old
body whose term had expired on 31.12.2004 could not have taken any decision. The High
Court accepted that the old governing body was the only body which could have taken
the decision so far as the remaining items of the agenda are concerned and, therefore,
there was violation of the specific order as contained in the consent order.
5. Learned counsel for the appellant submitted that the High Court has clearly fallen into
error by holding that it was the old body which had to take the decision. That would put
the clock back and process of the election of the new body would be an exercise in
futility. In fact, there was a meeting held on 4.9.2005 where after due notice to eligible
persons, decisions were taken. Respondent No.1 Sri Bhupendra P. Popat at the behest of
Shri Chitwani who lost presidential election had filed application in a disposed of case.
The High Court had erroneously entertained the application.
6. In response, learned counsel for the respondents held that various vital agenda items
were to be considered. It was only the old governing body which had taken various
resolutions which were to be discussed in terms of various agenda items and the new
governing body had no role to play so far as these items are concerned.
7. We find that the High Court failed to consider two very relevant aspects. Firstly, the
scope of re-opening the entire matter in the case after passing of the consent order was
required to be considered. Secondly, it has failed to consider the effect of the
decisions/resolutions taken at the meeting held on 4.9.2005. It is the stand of the
appellant that due notice was given to the respondents and all eligible members and the
resolutions were adopted after thorough discussion.
8. We do not think it proper to say anything about the effect of the resolutions/decisions.
It would be appropriate for the High Court to consider the maintainability of the
application filed by respondent No.1 in the matter and the effect of resolutions taken on
4.9.2005, if it comes to hold that the application was maintainable. Accordingly, we remit
the matter to the High Court for fresh consideration of the aforesaid two aspects for
which we express no opinion.
9. Since the matter is of urgency, we request the High Court to dispose of the matter
within three months from the date of receipt of order.
10. The appeal is disposed of accordingly with no order as to costs.
Order accordingly.
AIR 2008 SUPREME COURT 77 "Narpat Singh v. Rajasthan Financial Corporation"
(From : 2000 Lab IC 3445 (Rajasthan))
IA Nos. 15-16 of 2007 in Civil Appeal Nos. 2181 - 2182 of 2001 with Contempt Petn. (C)
Nos. 151-152 of 2007, D/- 24 -9 -2007.
Narpat Singh v. Rajasthan Financial Corporation
Constitution of India, Art.133 - APPEAL - Appeal - Interlocutory application -
Maintainable only during pendency of case - Not after case is finally disposed of - Except
for correcting clerical or accidental mistakes. (Para 2)
Sudhir Kumar Gupta, for Appellant; Sushil Kumar Jain, Puneet Jain, Piyush Jain and H.
D. Thanvi, for Respondent.
Judgement
ORDER :- We have heard learned counsel for the parties.
2. I.A. Nos. 15-16 for clarification and
@page-SC78
direction of Court's Order dated 3-5-2007 are totally misconceived. Moreover, ordinarily
No I.A. lies after a case is finally disposed of. Ordinarily, an I.A. is maintainable only in a
pending case. Once a case is finally disposed of the Court becomes functus officio, and
thereafter an I.A. lies ordinarily only for correcting clerical or accidental mistakes. The
same are accordingly, dismissed.
3. Put up the Contempt Petitions (C) No. 151-152 of 2007 in Civil Appeal No. 2181-2182
of 2001 after six months.
Application dismissed.
AIR 2008 SUPREME COURT 78 "Dinesh Dalmia v. C. B. I."
(From : Madras)
Criminal Appeal No. 1249 of 2007 (arising out of SLP (Cri.) No. 513 of 2007), D/- 18 -9
-2007.
Dinesh Dalmia v. C. B. I.
(A) Criminal P.C. (2 of 1974), S.173(2) - INVESTIGATION - POLICE OFFICERS -
Final report by Police - Against absconding accused - Can be filed if I.O. finds sufficient
evidence against accused - Need not wait till his arrest.
A charge sheet is a final report within the meaning of Section 173(2). It is filed so as to
enable the Court concerned to apply its mind as to whether cognizance of the offence
thereupon should be taken or not. The report is ordinarily filed in the form prescribed
therefor. One of the requirements for submission of a police report is whether any offence
appears to have been committed and, if so, by whom. In some cases, the accused having
not been arrested, the investigation against him may not be complete. There may not be
sufficient material for arriving at a decision that the absconding accused is also a person
by whom the offence appears to have been committed. If the investigating officer finds
sufficient evidence even against such an accused who had been absconding, law does not
require that filing of the charge sheet must await the arrest of the accused. (Para 15)
(B) Criminal P.C. (2 of 1974), S.173(8), S.173(2) - INVESTIGATION - Further
investigation - After filing of final report - Permissible - Further investigation can be
undertaken even after cognisance.
The power of the investigating officer to make a prayer for making further investigation
in terms of sub-section (8) of Section 173 is not taken away only because a charge sheet
under sub-section (2) thereof has been filed. A further investigation is permissible even if
order of cognizance of offence has been taken by the Magistrate. (Para 16)
(C) Criminal P.C. (2 of 1974), S.173(5) - INVESTIGATION - POLICE OFFICERS -
Final report by Police - Non-filing of all documents with final report - Plea of prejudice
not raised by accused - Does not vitiate final report.
Ordinarily all documents accompany the charge sheet. In instant case, some documents
could not be filed which were not in the possession of the CBI. The said documents,
however, were filed before arrest of accused. Appellant does not contend that he has been
prejudiced by not filing of such documents with the charge sheet. No such plea in fact
had been taken. Even if all the documents had not been filed, by reason thereof
submission of charge-sheet itself does not become vitiated in law. (Para 18)
(D) Criminal P.C. (2 of 1974), S.173, S.309 - INVESTIGATION - BAIL -
ADJOURNMENTS - Statutory bail - Right to be released on - Available only, till
investigation remains pending - Right is lost once charge-sheet is filed - Does not get
revived only because further investigation is pending.
The power of a Court to direct remand of an accused either in terms of Section 167(2) or
Section 309(2) will depend on the stages of the trial. Whereas Section 167(2) would be
attracted in a case where cognizance has not been taken, Section 309(2) would be
attracted only after cognizance has been taken. Even in the same case depending upon the
nature of charge-sheet filed by the investigating officer in terms of Section 173 of the
Code, a cognizance may be taken as against the person against whom an offence is said to
have been made out and against whom no such offence has been made out even when
investigation is pending. So long a charge- sheet is not filed within the meaning of
Section 173(2) investigation remains pending. It, however, does not preclude an
investigation officer to carry on further investigation despite filing of a police report, in
terms of Section 173(8). The statutory scheme does not lead to a conclusion in
@page-SC79
regard to an investigation leading to filing of final form under Sec. 173(2) and further
investigation contemplated under S. 173(8). Whereas only when a charge-sheet is not
filed and investigation is kept pending, benefit of S. 167(2) proviso would be available to
an offender; once, however, a charge-sheet is filed, the said right ceases. Such a right
does not revive only because a further investigation remains pending within the meaning
of Section 173(8). (Paras 22, 28)
(2006) 7 SCC 296 (Ref.) 21
1997 AIR SCW 2434 : AIR 1997 SC 2494 : 1997 Cri LJ 2989 8, 25, 26
1994 AIR SCW 3857 : 1995 Cri LJ 477 27
1994 Cri LJ 1854 (Bom) 26
1992 AIR SCW 1976 : AIR 1992 SC 1768 : 1992 Cri LJ 2768 (Disting.) 25
(1991) 3 SCC 655 (Rel. on Pnt. C) 17
AIR 1980 SC 506 17
Mukul Rohatgi, Ranjeet Kumar, C. M. Nayar, Sr. Advocates., Siddarath Luthra, Rajendra
Singhvi, Ms. Maitreyi Singhvi, A. Krishna, Sanjay Abbot and E. C. Agrawala with them,
for Appellant; A. Sharan, ASG., Amit Anand Tiwari, Abhishek Kumar and P.
Parmeswaran with him, for Respondents.
Judgement
2. Interpretation of sub-section (2) of Section 167 of the Code of Criminal Procedure,
1973 (for short "the Code") vis-a-vis sub-section (2) of Section 309 thereof falls for
consideration of this Court in this appeal which arises out of an order dated 22.12.2006
passed by a learned Single Judge of the High Court of Judicature at Madras in Crl. R.C.
No. 1173 of 2006 setting aside an order dated 25.08.2006 passed by the 5th Additional
Sessions Judge, Chennai in R.C. 4/(E)/03/BSC/FC/CBI, New Delhi in Crl. R.C. No. 115
of 2006 whereby an order dated 30.05.2006 passed by the Special Court in Crl. M.P. No.
788 of 2006 in C.C. No. 19189 of 2005 was set aside.
3. Appellant was proceeded against for commission of offences under Sections 409, 420
and 120-B of the Indian Penal Code.
4. The Central Bureau of Investigation (CBI) lodged a first information report against the
appellant and three companies registered and incorporated under the Companies Act,
1956 on a complaint made by the Securities and Exchange Board of India. Indisputably,
Appellant was named therein. He was, however, evading arrest. He had gone to the
United States. The learned Magistrate by an order dated 14.02.2005, on a prayer made in
that behalf by the CBI, issued a non-bailable warrant of arrest against him. Upon
completion of investigation, a charge-sheet was submitted before the Magistrate in terms
of sub-section (2) of Section 173 of the Code. In the said charge-sheet, name of the
appellant appeared in Column No. 1 along with the said three companies. Name of one of
the companies named in the first information report, viz., M/s. DSQ Software Ltd., has
been shown in Column No. 2. In the said charge-sheet, it was stated:
"Investigation has revealed that Sh. Dinesh Dalmia, the then Managing Director and
Custodian of properties, including shares, of M/s. DSQ Software Ltd., fraudulently got
dematerialized un-allotted and unlisted share of DSQ Software Ltd. In the name of three
entities namely New Vision Investment Ltd., UK; Dinesh Dalmia Technology Trust and
Dr. Suryanil Ghosh, Trustee - Softec Corporation and thereafter these shares were sold in
the market and the proceeds of sale of said shares were credited in the accounts of M/s.
DSQ Holdings Ltd., M/s. Hulda Properties and Trade Ltd. and M/s. Powerflow Holding
and Trading Pvt. Ltd. and thereby dishonestly misappropriated and cheated investors
including existing shareholders and obtained undue gain to the tune of Rs.
5,94,88,37,999/-.
Thus, Sh. Dinesh Dalmia has committed fraudulent acts prima facie disclosing
commission of offences of cheating, breach of trust, forgery and using forged documents
as genuine by getting wrongful gain in the matter of partly paid shares. DSQ Software
Ltd. in the name of New Vision Investment Ltd., UK; unallotted shares in the name of
Dinesh Dalmia Technology Trust and "Dr. Suryanil Ghosh Trustee - Softec Corporation".
M/s. DSQ Holdings Ltd., M/s. Hulda Properties and Trades Ltd. and M/s. Powerflow
Holding and Trading Pvt. Ltd. have
@page-SC80
also committed offence of cheating in the matter of above-mentioned shares and the
above facts disclose commission of offences punishable u/S. 409, 420, 468 and 471 IPC
on the part of accused Sh. Dinesh Dalmia (A-1) and u/S. 420, IPC on the part of accused
companies namely M/s. DSQ Holdings Ltd. (A-2) represented by Sh. Dinesh Dalmia,
Director, M/s. Hulda Properties and Trades Ltd. (A-3) represented by Sh. Ashok Kumar
Sharma, Director and M/s. Powerflow Holding and Trading Pvt. Ltd. (A-4) represented
by Sh. Ashok Kumar Sharma, Director.
During investigation the allegations against DSQ Software Ltd. could not be
substantiated and hence it is not being charge sheeted.
Accused Dinesh Dalmia is evading arrest and has absconded to USA. He has not joined
investigation. Ld. ACMM, Egmore, Chennai issued an open ended non-bailable warrant
of his arrest and a Red Corner Notice (RCN) has been issued against him through
INTERPOL for locating him. His examination is necessary in this case as only he alone is
aware of the end use of the funds.
Further investigation on certain vital points including end use of the funds, foreign
investigation in the matter of genuineness of New Vision Investment Ltd. and as shown
as its authorized signatory, Sh. Hitendra Naik, in United Kingdom and other foreign
investigation are still continuing and after completion of the remaining investigation the
report of the same will be filed under section 173(8) Cr. P. C. in due course.
The questioned documents have been sent to GEQD for expert opinion, it is still awaited.
After being obtained, the same will be submitted with additional list of documents.
The list of witnesses and list of documents are enclosed herewith and additional list of
documents and witnesses, if necessary, will be submitted in due course.
It is, therefore, prayed that this Hon'ble Court may be pleased to take cognizance of the
offences, issue the process to secure the presence of the accused and they may be tried
according to law."
5. Although statements made by the witnesses under Section 161 of the Code
accompanied the charge sheet, the relevant documents could not be filed as they were
sent for examination before the Government Examiner of Questioned Documents
(GEQD). Cognizance was taken by the Magistrate on the said charge-sheet by an order
dated 25.10.2005. It was specifically noted that non-bailable warrant as against the
appellant was still pending.
The CBI contended that the appellant entered into India illegally as no endorsement had
been made in his passport showing a valid travel undertaken by him. He was produced
before a Magistrate in Delhi for transit remand to Chennai. An order to that effect was
passed. On 14.02.2006, when he was produced before the concerned Magistrate at
Chennai, an order for police custody was prayed for and was granted till 24.02.2006.
Another application was filed for further police custody for four days on 21.02.2006. An
application was also filed seeking permission to conduct brain mapping, polygraph test,
on the appellant which was allowed.
6. Appellant had been handed over to the police for conducting investigation till
8.03.2006. He, however, was remanded to judicial custody till 14.03.2006 by an order
dated 9.03.2006. Allegedly, on the plea that further investigation was pending, the CBI
prayed for and obtained order of remand to judicial custody from the learned Magistrate
on 14.03.2006, 28.03.2006, 10.04.2006 and 28.04.2006. All the applications were made
purported to be under sub-section (2) of Section 167 of the Code.
7. Appellant, on expiry of 60 days from the date of his arrest, filed an application for
statutory bail purported to be in terms of the proviso appended to sub-section (2) of
Section 167 of the Code on the premise that no further charge-sheet in respect of the
investigation under sub-section (8) of Section 173 of the Code has been filed. When the
said application was pending consideration, the CBI sought for his remand in judicial
custody under sub-section (2) of Section 309 thereof.
The said application for statutory bail was rejected by the learned Magistrate opining :
"...Because, in this case, the petitioner was arrested on the basis of Non-bailable warrant
issued by this Court, after taking cognizance of the offences in charge-sheet. Further, the
respondent side has clearly stated that before further investigation commenced on
14.2.2006, the petitioner was remanded to police custody, hence he was in the custody of
the court since his arrest
@page-SC81
on 12.2.2006. Therefore, after expiry of the police custody, the petitioner should be
remanded to judicial custody u/S. 309(2), Cr. P.C. and not u/S. 167(2) Cr.P.C. However,
in this case, by mistake, provision of law under which the petitioner was remanded to
judicial custody was mentioned as Section 167(2), Cr.P.C. in the remand report. In fact
for remanding an accused in custody against whom charge-sheet has already been filed
and an application for remand is not required. Hence this court is inclined to state that the
petitioner was remanded to police custody u/S. 167(2), Cr.P.C. and thereafter was
remanded to judicial custody u/S. 309, Cr.P.C."
The learned Magistrate further took note of the fact that two other cases have been
registered against him by the Calcutta Police.
8
. A revision application filed by the appellant herein before the learned Sessions Judge
was allowed inter alia relying on or on the basis of the decision of this Court in State
Through CBI v. Dawood Ibrahim Kaskar and Others [(2000) 10 SCC 438] stating :
1997 AIR SCW 2434
"23. Taking into consideration of all these facts and circumstances of the case and
principle of law laid down by the Hon'ble Apex Court I feel that in view of the positive
conduct of the respondent in relying upon Section 167(2), Cr. P.C. in all their applications
(up to the filing of the bail application), the petitioner can also rely upon it and seek
necessary orders thereunder, that the respondent is now estopped from pleading opposite
to their own previous conduct and that Section 309(2) cannot be applied to a person like
the petitioner, who was arrested in the course of further investigation."
9. The CBI moved the High Court thereagainst. Its application was registered as Crl. R.C.
No. 1173 of 2006. The decision of the learned Sessions Judge was over-turned by the
High Court by reason of the impugned judgment stating :
"Because of this interpretation the learned Magistrate is empowered to give "Police
custody". Once police custody is completed the accused reverts back to judicial custody
of post-cognizance stage. Even if further investigation continues as far as such accused
are concerned scope of section 167 comes to an end. "Subject to fulfillment of the
requirement and the limitation of Section 167" only refers to the investigation during
"police custody" especially when an accused is in remand under Section 167. When
further investigation keeping him in police custody during post-cognizance stage is
completed, the remand of an accused is only governed under Section 309, Cr.P.C. Under
such circumstances, invoking of proviso to section 167 and demand for a benevolent
provision is inapplicable to such accused.
27. The object of enactment of such proviso in Section 167, Cr. P.C. is to have control
over a lethargic, delayed investigation, especially keeping a person in custody. It is a
specific direction to the police to collect material without any delay. If sufficient
incriminating materials are not collected against the accused with the crime alleged. It
safeguards the interest of such accused person. If materials are collected and reported to
the Magistrate within the period stipulated by filing charge-sheet, then the scope of
proviso to section 167 extinguishes and an accused can claim bail only on merit.
28. In the instant case most of the materials have been collected. The materials to connect
the accused with the crime is already available. Final conclusion also was reached and
charge-sheet filed. However, custodial interrogation of the accused felt necessary. Such
interrogation entrusting him in police custody was done between 12.02.2006 and
27.02.2006 cognizance of the case was taken much earlier on 25.10.2005. Only for
custodial interrogation he was entrusted under Section 167 to the CBI. Section 167,
Cr.P.C. can be invoked only for such purpose in a post-cognizance case. Otherwise a
remand must be made only under Section 309, Cr.P.C. If a wrong provision is quoted for
further remand under section 167, Cr.P.C. instead of 309 one cannot claim the benefit of a
benevolent proviso to section 167. Proviso to section 167 is available only to safeguard
an innocent person or a person against whom no materials collected in spite of detaining
him for 60/90 days. In the instant case abundant materials have been already collected
and final report filed. Two years after the cognizance he was apprehended. He was
entrusted with police custody only for custodial interrogation. Further investigation may
be pending to comply with other formalities. There may be delay to receive opinion from
experts and such delay cannot be taken
@page-SC82
advantage of by invoking the proviso to Section 167, Cr.P.C."
10. Appellant is, thus, before us.
11. Mr. Mukul Rohatgi, learned senior counsel appearing on behalf of the appellant, has
raised two contentions before us :
(i) The charge-sheet filed against the appellant and cognizance taken thereupon is illegal
and invalid and by reason thereof, a valuable right of the appellant to be released on bail
has been taken away.
(ii) Even if the charge-sheet is legal, the right of the appellant under sub-section (2) of
Section 167 of the Code continued to remain available in the facts and circumstances of
the case.
Elaborating his submission, Mr. Rohatgi urged that a police report must strictly conform
to the requirements laid down under Section 173 of the Code and the prescribed form for
submission of the final form wherefrom it would be evident that no charge-sheet can be
filed upon purported completion of investigation against the appellant as he had been
absconding. As the CBI kept investigation as against the appellant open, as would appear
from the charge-sheet itself as also the prayers made and granted by the learned
Magistrate which is permissible only under sub-section (2) of Section 167 of the Code,
no charge-sheet in law can be said to have been filed so far as the appellant was
concerned. The CBI moreover itself proceeded on the basis that the investigation against
the appellant had been pending and only in that view of the matter applications for
remand were filed under sub-section (2) of Section 167 of the Code. It was contended
that only when the appellant applied for grant of statutory bail, the CBI changed its stand
and filed an application for remand under sub-section (2) of Section 309 of the Code.
12. Mr. Amarendra Sharan, learned Additional Solicitor General appearing on behalf of
the CBI, on the other hand, would submit that a charge-sheet having been submitted
before the Court and cognizance having been taken on the basis thereof, the only
provision applicable for remand of the accused would be sub-section (2) of Section 309
of the Code and, thus, even if a wrong provision has been mentioned by CBI in their
applications for remand, the same by itself would not render the order of the Court
invalid in law.
In this case the CBI took a conscious decision to file charge-sheet against the appellant.
His name was shown in Column No. 1 thereof although he was absconding. It was found
that a case for trial has been made out. There were five accused against whom allegations
were made by the complainant. One of the companies was not sent for trial as nothing
was found against it. All the other accused named in the first information report had been
sent for trial.
13-14. The learned Magistrate took cognizance of the offence. The said power can be
exercised only under Section 190(1)(b) of the Code. The learned Magistrate noticed the
fact, while taking cognizance of the offence, that the appellant had been absconding and a
non-bailable warrant of arrest had been issued against him.
Whereas the charge-sheet was submitted on 24.10.2005, the appellant was arrested only
on 12.02.2006. According to Mr. Sharan, the additional documents were filed on
20.01.2006.
15. A charge-sheet is a final report within the meaning of sub-section (2) of Section 173
of the Code. It is filed so as to enable the court concerned to apply its mind as to whether
cognizance of the offence thereupon should be taken or not. The report is ordinarily filed
in the form prescribed therefor. One of the requirements for submission of a police report
is whether any offence appears to have been committed and, if so, by whom. In some
cases, the accused having not been arrested, the investigation against him may not be
complete. There may not be sufficient material for arriving at a decision that the
absconding accused is also a person by whom the offence appears to have been
committed. If the investigating officer finds sufficient evidence even against such an
accused who had been absconding, in our opinion, law does not require that filing of the
charge-sheet must await the arrest of the accused.
16. Indisputably, the power of the investigating officer to make a prayer for making
further investigation in terms of sub-section (8) of Section 173 is not taken away only
because a charge-sheet under sub-section (2) thereof has been filed. A further
investigation is permissible even if order of cognizance of offence has been taken by the
Magistrate.
17. We may notice that a Constitution
@page-SC83
Bench of this Court in K. Veeraswami v. Union of India and Others [(1991) 3 SCC 655]
stated the law in the following terms :
"76.....As observed by this Court in Satya Narain Musadi v. State of Bihar that the
statutory requirement of the report under Section 173(2) would be complied with if the
various details prescribed therein are included in the report. This report is an intimation to
the Magistrate that upon investigation into a cognizable offence the investigating officer
has been able to procure sufficient evidence for the Court to inquire into the offence and
the necessary information is being sent to the Court. In fact, the report under Section
173(2) purports to be an opinion of the investigating officer that as far as he is concerned
he has been able to procure sufficient material for the trial of the accused by the Court.
The report is complete if it is accompanied with all the documents and statements of
witnesses as required by Section 175(5). Nothing more need be stated in the report of the
Investigating Officer. It is also not necessary that all the details of the offence must be
stated. The details of the offence are required to be proved to bring home the guilt to the
accused at a later stage i.e. in the course of the trial of the case by adducing acceptable
evidence. AIR 1980 SC 506
18. It is true that ordinarily all documents accompany the charge-sheet. But, in this case,
some documents could not be filed which were not in the possession of the CBI and the
same were with the GEQD. As indicated hereinbefore, the said documents are said to
have been filed on 20.01.2006 whereas the appellant was arrested on 12.02.2006.
Appellant does not contend that he has been prejudiced by not filing of such documents
with the charge-sheet. No such plea in fact had been taken. Even if all the documents had
not been filed, by reason thereof submission of charge-sheet itself does not become
vitiated in law. The charge-sheet has been acted upon as an order of cognizance had been
passed on the basis thereof. Appellant has not questioned the said order taking cognizance
of the offence. Validity of the said charge- sheet is also not in question.
Application of sub-section (2) of Section 173 of the Code vis-a-vis sub-section (2) of
Section 309 must be considered having regard to the aforementioned factual and legal
backdrop in mind.
19. Concededly, the investigating agency is required to complete investigation within a
reasonable time. The ideal period therefor would be 24 hours, but, in some cases, it may
not be practically possible to do so. The Parliament, therefore, thought it fit that remand
of the accused can be sought for in the event investigation is not completed within 60 or
90 days, as the case may be. But, if the same is not done with the stipulated period, the
same would not be detrimental to the accused and, thus, he, on the expiry thereof would
be entitled to apply for bail, subject to fulfilling the conditions prescribed therefor.
Such a right of bail although is a valuable right but the same is a conditional one; the
condition precedent being pendency of the investigation. Whether an investigation in fact
has remained pending and the investigating officer has submitted the charge-sheet only
with a view to curtail the right of the accused would essentially be a question of fact.
Such a question strictly does not arise in this case inasmuch as, according to the CBI,
sufficient materials are already available for prosecution of the appellant. According to it,
further investigation would be inter alia necessary on certain vital points including end
use of the funds.
20. Apart from the appellant, three companies, registered and incorporated under the
Companies Act, have been shown as accused in the charge-sheet. It was, therefore, not
necessary for the CBI to file a charge sheet so as to curtail the right of the accused to
obtain bail. It is, therefore, not a case where by reason of such submission of charge-sheet
the appellant has been prejudiced in any manner whatsoever.
21
. It is also not a case of the appellant that he had been arrested in course of further
investigation. A warrant of arrest had already been issued against him. The learned
Magistrate was conscious of the said fact while taking cognizance of the offence. 1995
AIR SCW 3937
It is now well settled that the court takes cognizance of an offence and not the offender.
[See Anil Saran v. State of Bihar and another (1995) 6 SCC 142 and Popular Muthiah v.
State, represented by Inspector of Police (2006) 7 SCC 296].
22. The power of a court to direct remand of an accused either in terms of sub-section (2)
of Section 167 of the Code or
@page-SC84
sub-section (2) of Section 309 thereof will depend on the stages of the trial. Whereas sub-
section (2) of Section 167 of the Code would be attracted in a case where cognizance has
not been taken, sub-section (2) of Section 309 of the Code would be attracted only after
cognizance has been taken.
23
. If submission of Mr. Rohatgi is to be accepted, the Magistrate was not only required to
declare the charge-sheet illegal, he was also required to recall his own order of taking
cognizance. Ordinarily, he could not have done so. [See Adalat Prasad v. Rooplal Jindal
and Ors. (2004) 7 SCC 338; Subramanium Sethuraman v. State of Maharashtra and Anr.,
2004 (8) SCALE 733 and Everest Advertising Pvt. Ltd. v. State, Govt. of NCT of Delhi
and Ors. JT 2007 (5) SC 529]. It is also well-settled that if a thing cannot be done
directly, the same cannot be permitted to be done indirectly. If the order taking
cognizance exists, irrespective of the conduct of the CBI in treating the investigation to
be open or filing applications for remand of the accused to police custody or judicial
remand under sub-section (2) of Section 167 of the Code stating that the further
investigation was pending, would be of no consequence if in effect and substance such
orders were being passed by the Court in exercise of its power under sub-section (2) of
Section 309 of the Code. 2004 AIR SCW 5174
2004 AIR SCW 5326
2007 AIR SCW 2510
24. We, however, have no words to deprecate the stand of the CBI. It should have taken a
clear and categorical stand in the matter.
We, however, are proceeding on the basis that irrespective of the stand taken by the CBI,
law will prevail. We may notice the law operating in the field in this behalf.
25
. In support of the submission in regard to interpretation of sub-section (2) of Section 167
and sub-section (2) of Section 309 of the Code, strong reliance has been placed by Mr.
Rohatgi on Central Bureau of Investigation, Special Investigation Cell I, New Delhi v.
Anupam J. Kulkarni [(1992) 3 SCC 141] and Dawood Ibrahim Kaskar (supra). 1992
AIR SCW 1976
1997 AIR SCW 2434
In Anupam J. Kulkarni (supra), the question which inter alia arose for consideration of
this Court was as to whether the period of remand ordered by an Executive Magistrate in
terms of Section 57 of the Code should be computed for the purpose of sub-section (2) of
Section 167 thereof. This Court, keeping in view the provisions of Clause (2) of Article
22 of the Constitution of India, answered the question in the affirmative. It was held that
a total period of remand during investigation is fifteen days. In that context, this Court
observed : 1992 AIR SCW 1976, Para 10
"...However, taking into account the difficulties which may arise in completion of the
investigation of cases of serious nature the legislature added the proviso providing for
further detention of the accused for a period of ninety days but in clear terms it is
mentioned in the proviso that such detention could only be in the judicial custody. During
this period the police are expected to complete the investigation even in serious cases.
Likewise within the period of sixty days they are expected to complete the investigation
in respect of other offences. The legislature however disfavoured even the prolonged
judicial custody during investigation. That is why the proviso lays down that on the
expiry of ninety days or sixty days the accused shall be released on bail if he is prepared
to and does furnish bail..."
In regard to the question as to whether such an order of remand would be permissible in
law when an accused is wanted in different cases, the answer was again rendered in
affirmative. We are not faced with such a problem in the instant case.
26
. In Dawood Ibrahim Kaskar (supra), this Court held : 1997 AIR SCW 2434, Para
10
"11. There cannot be any manner of doubt that the remand and the custody referred to in
the first proviso to the above sub-section are different from detention in custody under
Section 167. While remand under the former relates to a stage after cognizance and can
only be to judicial custody, detention under the latter relates to the stage of investigation
and can initially be either in police custody or judicial custody. Since, however, even after
cognizance is taken of an offence the police has a power to investigate into it further,
which can be exercised only in accordance with Chapter XII, we see no reason
whatsoever why the provisions of Section 167 thereof would not apply to a person who
comes to be later arrested by the police in course of such investigation. If Section 309(2)
is to be interpreted - as has 1994 Cri LJ 1854
@page-SC85
been interpreted by the Bombay High Court in Mansuri (supra) - to mean that after the
Court takes cognizance of an offence it cannot exercise its power of detention in police
custody under Section 167 of the Code, the Investigating Agency would be deprived of
an opportunity to interrogate a person arrested during further investigation, even if it can
on production of sufficient materials, convince the Court that his detention in its (police)
custody was essential for that purpose. We are therefore of the opinion that the words
"accused if in custody" appearing in Section 309(2) refer and relate to an accused who
was before the Court when cognizance was taken or when enquiry or trial was being held
in respect of him and not to an accused who is subsequently arrested in course of further
investigation. So far as the accused in the first category is concerned he can be remanded
to judicial custody only in view of Section 309(2), but he who comes under the second
category will be governed by Section 167 so long as further investigation continues. That
necessarily means that in respect of the latter the Court which had taken cognizance of
the offence may exercise its power to detain him in police custody, subject to the
fulfilment of the requirements and the limitation of Section 167."
27
. We had noticed the dicta of the Constitution Bench judgment of this Court. At this
juncture, we may notice the dicta laid down by this Court in Sanjay Dutt v. State Through
C.B.I., Bombay (II) [(1994) 5 SCC 410] wherein it was held : 1994 AIR SCW 3857,
Para 55
"53...(2)(b) The 'indefeasible right' of the accused to be released on bail in accordance

with Section 20(4)(bb) of the TADA Act read with Section 167(2) of the Cr.P.C. in
default of completion of the investigation and filing of the challan within the time
allowed, as held in Hitendra Vishnu Thakur is a right which enures to, and is enforceable
by the accused only from the time of default till the filing of the challan and it does not
survive or remain enforceable on the challan being filed. If the accused applies for bail
under this provision on expiry of the period of 180 days or the extended period, as the
case may be, then he has to be released on bail forthwith. The accused, so released on bail
may be arrested and committed to custody according to the provisions of the Cr.P.C. The
right of the accused to be released on bail after filing of the challan, notwithstanding the
default in filing it within the time allowed, is governed from the time of filing of the
challan only by the provisions relating to the grant of bail applicable at that stage."
28. It is a well-settled principle of interpretation of statute that it is to be read in its
entirety. Construction of a statute should be made in a manner so as to give effect to all
the provisions thereof. Remand of an accused is contemplated by the Parliament at two
stages; pre-cognizance and post-cognizance. Even in the same case depending upon the
nature of charge-sheet filed by the investigating officer in terms of Section 173 of the
Code, a cognizance may be taken as against the person against whom an offence is said to
have been made out and against whom no such offence has been made out even when
investigation is pending. So long a charge-sheet is not filed within the meaning of sub-
section (2) of Section 173 of the Code, investigation remains pending. It, however, does
not preclude an investigating officer, as noticed hereinbefore, to carry on further
investigation despite filing of a police report, in terms of sub-section (8) of Section 173 of
the Code.
29. The statutory scheme does not lead to a conclusion in regard to an investigation
leading to filing of final form under sub-section (2) of Section 173 and further
investigation contemplated under sub-section (8) thereof. Whereas only when a charge-
sheet is not filed and investigation is kept pending, benefit of proviso appended to sub-
section (2) of Section 167 of the Code would be available to an offender; once, however,
a charge-sheet is filed, the said right ceases. Such a right does not revive only because a
further investigation remains pending within the meaning of sub-section (8) of Section
173 of the Code.
30. The High Court, in our opinion, is correct in its finding that, in the fact-situation
obtaining, the appellant had no statutory right to be released on bail.
31. We do not, thus, find any infirmity in the judgment of the High Court. Accordingly,
the appeal is dismissed.
Appeal dismissed.
@page-SC86
AIR 2008 SUPREME COURT 86 "State of Gujarat v. Turabali Gulamhussain Hirani"
(From : Gujarat)
-10 -2007.
State of Gujarat v. Turabali Gulamhussain Hirani and Anr.
(A) Constitution of India, Art.226 - WRITS - SUMMONS - Extraordinary jurisdiction -
Power to summon Chief Secretary, Secretaries to Govt. and other Senior Govt. Officials -
To be exercised only in rare and exceptional cases - In case higher official has to be and
is summoned he should be shown due respect - Should not be made to stand all the time
during hearing. (Paras 7, 9, 10, 11)
(B) Criminal P.C. (2 of 1974), S.386 - APPEAL - APPELLATE COURT - LIMITATION
- Powers of appellate Court - Belated appeal - Application for condonation of delay -
High Court directing Chief Secretary and Law Secretary of State Government to be
personally present to directly enquire about steps taken to provide additional staff to
office of GP/PP - Direction is unwarranted - Liable to be set aside.
Cri. Misc. Appln. No. 13747 of 205 in Cri. A. No. 728 of 2005, D/- 11-4-2007 (Guj),
Reversed. (Para 13)
(2007) Spl. Civil Appln. No. 8209 of 1998, D/- 28-2-2007 (Guj) 5
(2007) Spl. Civil Appln. Nos. 13969 and 6896 of 1993, D/- 18-1-2007 (Guj) 4
Ms. Hemantika Wahi, Ms. Pinky and Ms. Shivangi, for Appellant.
Judgement
1. MARKANDEY KATJU, J. :- Leave granted.
2. This appeal has been filed against the impugned interim order dated 11.4.2007 of the
Gujarat High Court in Criminal Miscellaneous Application No. 13747/2005 in Criminal
Appeal No. 728/2005.
3. A perusal of the impugned interim order shows that a Criminal Appeal was filed with a
delay of 25 days. The learned Judge of the Gujarat High Court (Hon'ble R.S. Garg, J.) on
the application for condonation of delay in filing the appeal passed the impugned order
directing the Chief Secretary and Law Secretary of the Gujarat Government to be
personally present before him on 20.4.2007 "so that the Court may have a direct dialogue
with them that what effective steps they are taking to provide sufficient staff to the office
of the Government Pleader/Public Prosecutor and to avoid delay at every stage". It may
be mentioned that the reason given for the delay of 25 days was the shortage of staff
including stenographers in the office of the Public Prosecutor.
4. In our opinion, the learned Judge of Gujarat High Court was totally unjustified in
summoning the Chief Secretary and Law Secretary merely because there was a delay of
25 days in filing the appeal. It may be mentioned that the same Hon'ble Judge (Hon. R. S.
Garg, J.) in several other cases also summoned the Chief Secretary to appear before him
personally. Thus, in Special Civil Application Nos. 13969/1993 and 6896/1993 titled
Gujarat Hotels Ltd. and others vs. State of Gujarat and others, dated 18.1.2007 he
summoned the Chief Secretary to appear before him personally. That case related to an
incentive scheme of the State Government for attracting new entrepreneurs.
5. In another case, Special Civil Application No. 8209/1998 titled Gujarat Revenue
Tribunal vs. A.K. Chakraborty, IAS, the Bench of Hon'ble R.S. Garg and Hon'ble M.R.
Shah, JJ. by an order dated 28.2.2007 ordered the Chief Secretary to be personally
present on 6.3.2007 "so that the Court may discuss the niceties with him and may ask him
certain questions hovering in the mind of the Court".
6. A large number of cases have come up before this Court where we find that learned
Judges of various High Courts have been summoning the Chief Secretary, Secretaries to
the Government (Central and State), Director Generals of Police, Director, CBI or BSF or
other senior officials of the Government.
7. There is no doubt that the High Court has power to summon these officials, but in our
opinion that should be done in very rare and exceptional cases when there are compelling
circumstances to do so. Such summoning orders should not be passed lightly or as a
routine or at the drop of a hat.
8. Judges should have modesty and humility. They should realize that summoning
@page-SC87
a senior official, except in some very rare and exceptional situation, and that too for
compelling reasons, is counter-productive and may also involve heavy expenses and
valuable time of the official concerned.
9. The judiciary must have respect for the executive and the legislature. Judges should
realize that officials like the Chief Secretary, Secretary to the Government,
Commissioners, District Magistrates, senior police officials etc. are extremely busy
persons who are often working from morning till night. No doubt, the Ministers lay down
the policy, but the actual implementation of the policy and day-to-day running of the
Government has to be done by the bureaucrats, and hence the bureaucrats are often
working round the clock. If they are summoned by the Court they will, of course, appear
before the Court, but then a lot of public money and time may be unnecessarily wasted.
Sometimes High Court Judges summon high officials in far off places like Director, CBI
or Home Secretary to the Government of India not realizing that it entails heavy
expenditure like arranging of a BSF aircraft, coupled with public money and valuable
time which would have been otherwise spent on public welfare.
10. Hence, frequent, casual and lackadaisical summoning of high officials by the Court
cannot be appreciated. We are constrained to make these observations because we are
coming across a large number of cases where such orders summoning of high officials
are being passed by the High Courts and often it is nothing but for the ego satisfaction of
the learned Judge.
11. We do not mean to say that in no circumstances and on no occasion should an official
be summoned by the Court. In some extreme and compelling situation that may be done,
but on such occasions also the senior official must be given proper respect by the Court
and he should not be humiliated. Such senior officials need not be made to stand all the
time when the hearing is going on, and they can be offered a chair by the Court to sit.
They need to stand only when answering or making a statement in the Court. The senior
officials too have their self-respect, and if the Court gives them respect they in turn will
respect the Court. Respect begets respect.
12. It sometimes happens that a senior official may not even know about the order of the
High Court. For example, if the High Court stays the order of the Collector of suspension
of a class-III or class IV employee in a government department, and certified copy of that
order is left with the Clerk in the office of the Collector, it often happens that the
Collector is not even aware of the order as he has gone on tour and he may come to know
about it only after a few days. In the meantime a contempt of court notice is issued
against him by the Court summoning him to be personally present in Court. In our
opinion, this should not be readily done, because there is no reason why the Collector
would not obey the order of the High Court. In such circumstances, the Court should only
request the government counsel to inform the concerned Collector about the earlier order
of the Court which may not have been brought to the notice of the Collector concerned,
and the High Court can again list the case after a week or two. Almost invariably it will
be found that as soon as the Collector comes to know about the stay order of the High
Court, he orders compliance of it.
13. In the present case, we find no occasion or reason for the learned Judge to summon
the Chief Secretary or the Law Secretary by the impugned order. If the learned Judge was
concerned about the lack of enough Stenographers in the office of the Public Prosecutor
he could have called the Advocate General or Govt. Advocate to his chamber and have
asked him to convey the Court's displeasure to the Government, but where was the need
to summon the Chief Secretary or Law Secretary ? Hence, we set aside the impugned
interim order dated 11.4.2007 and condone the delay of 25 days in filing the appeal
before the High Court. The High Court may now proceed to hear the Criminal Appeal in
accordance with law. The appeal is allowed.
14. The Secretary General of this Court is directed to circulate a copy of this judgment to
the Registrar Generals/Registrars of all the High Courts, who shall circulate copies of the
said judgment to all Hon'ble Judges of the High Courts.
Appeal allowed.
@page-SC88
AIR 2008 SUPREME COURT 88 "Vanga Sriniwas v. Public Prosecutor, High Court of
A. P."
(From : Andhra Pradesh)
Coram : 2 C. K. THAKKER AND P. SATHASIVAM, JJ.
Vanga Sriniwas v. Public Prosecutor, High Court of A. P.
Penal Code (45 of 1860), S.304B - DOWRY DEATH - MURDER - EVIDENCE -
COMMISSION OF OFFENCE - Dowry death - Evidence of prosecution witnesses,
neighbours that accused harassed deceased, threatened her on many occasions for not
fulfilling his demand of dowry - Accused also doubted her fidelity and not able to bear
with her when she interacts with others - Evidence of attestors of inquest report showing
that deceased had not committed suicide but was throttled and hanged to fan - Material
circumstances coupled with medical evidence, lead to conclusion that death of deceased
was on account of strangulation - Accused-husband and deceased-wife alone were inside
house at time of occurrence - Accused, alone, held, was responsible for commission of
offence - Liable to be convicted under S. 304-B and not under S. 302, IPC.(Paras 11, 12,
14, 15, 16)
I. Venkatnarayana, Sr. Advocate, T. N. Rao, Ms. Manjeet Kirpal and Paramjeet Singh, for
Appellant; Debojit Borkakati, Mrs. D. Bharathi Reddy, for Respondent.
Judgement
P. SATHASIVAM, J. :- This appeal has been preferred by the appellant being aggrieved
by the judgment of the High Court of Judicature, Andhra Pradesh at Hyderabad in
Criminal Appeal No. 2339 of 2004, dated 11.10.2006 reversing the order of the acquittal
passed by the II Addl. District and Sessions Judge (FTC), Nizamabad in Sessions Case
No. 314 of 1998 convicting and sentencing him to undergo life imprisonment.
2. The case of the prosecution is briefly stated hereunder:-
The appellant herein was the sole accused in Sessions Case No. 314 of 1998 on the file of
II Addl. District and Sessions Judge (FTC), Nizamabad. On 24.01.1997, at about 11.00
a.m., the accused caused the death of his wife - Vanga Vimala by throttling her neck and
in order to screen the said offence, hanged her dead body to the ceiling fan. The further
charge was that the accused was harassing the deceased for dowry. The father of the
deceased was examined as PW 1 and PW 2 is wife of PW 1. The deceased was given in
marriage to the accused one year prior to the date of incident. The accused and the
prosecution witnesses are residents of Gajulapet village. PWs 3 to 6 who are all residents
of the same village deposed about the quarrel between the deceased and the accused
regarding dowry and other matters. The offence took place on 24.01.1997 at about 11.00
a.m. After coming to know the incident, PW 1 rushed to the house of the accused and
found the deceased-her daughter hanging to the ceiling fan with a new saree. He made a
complaint to the police (Ex. P-1) based on which a crime was registered. Based on the
complaint of PW 1, the police took up investigation, noted the scene of offence,
conducted inquest over the dead body of the deceased, sent the dead body for post-
mortem examination, examined the witnesses and recorded their statements. The accused
was arrested on 03.02.1997 and after receipt of the final opinion from the doctor, who
conducted post-mortem examination and after completion of the investigation, the police
laid the charge-sheet.
3. The prosecution, in order to prove the guilt of the accused, examined as many as PWs
1 to 14 and marked Ex. P1 to P14. No oral or documentary evidence was adduced on the
defence side. The learned Sessions Judge, by judgment dated 25.04.2003 after finding
that the doctor who conducted post-mortem cannot decide preliminarily that the death
was suicidal or homicidal and the prosecution failed to establish that the accused himself
is connected with the death of the deceased, acquitted the accused under Section 235(1),
Cr.P.C. for the offence under Sections 302, 201 or 304-B, IPC.
4. Questioning the correctness of the acquittal of the trial Court, the State through its
Public Prosecutor filed Criminal Appeal No. 2339 of 2004 before the Andhra Pradesh
High Court. The Division Bench, by the impugned order dated 11.10.2006, after
accepting the case of the prosecution and considering the entire circumstances and
finding that the prosecution has established the guilt for offence under Section 302
beyond reasonable doubt sentenced the accused to undergo imprisonment for life and also
to pay a fine of Rs.1,000/-, in default, to suffer simple imprisonment for 6 months.
Challenging the said order of the Division Bench, the accused has preferred the present
appeal before this Court.
@page-SC89
5. We heard Mr. I. Venkatnarayana, learned senior counsel for the appellant and Mr.
Debojit Borkakati, learned counsel for the respondent.
6. The only point for consideration in this appeal is whether the prosecution proved the
guilt of the accused beyond reasonable doubt and the High Court is justified in convicting
and sentencing the accused for the offence under Section 302, I.P.C.
7. Before analyzing the case of the prosecution, it is relevant to mention that during the
pendency of this appeal, the appellant/accused filed I.A. No. 8289 of 2007 praying for
permission to file additional documents, namely, Annexure-A1 copy of alteration of
Section of law filed by the Inspector of Police before the trial Court on 25.01.1997 and
Annexure-A2 copy of the charge-sheet filed by the Sub- Divisional Police Officer,
Nizamabad.
8. It is seen from the documents - Annexures A1 and A2, the investigating agency, based
on the materials, arrived at a conclusion that the accused Vanga Sriniwas suspected the
character of the deceased and also tortured her for dowry and when she failed to get the
same, the accused murdered her by strangulation and hanged the dead body to the ceiling
fan with an intention to screen the offence and, therefore, the offence under Section 304-
B and Section 201, IPC has been established against the accused. In view of the above
facts and circumstances, the Section of law has been altered from 302, IPC to 304-B and
201, IPC.
9. It is not in dispute that the prosecution has not examined eye-witness to the occurrence.
In other words, there is no direct witness who, in fact, saw the alleged offence. The
prosecution case rests mainly on the circumstantial evidence and let us consider whether
the prosecution placed acceptable materials to substantiate the charges levelled against
the accused. It is pertinent to mention that even after the alteration of charge, both the
trial Court as well as the High Court proceeded with a case as if the charge relates to
Section 302, IPC. As said earlier, the trial Judge mainly based on the post-mortem report
of the doctor acquitted the accused whereas the High Court accepted the case of
prosecution in toto and found guilty accused under Section 302, IPC and imposed life
imprisonment. With this background, let us analyze the case of the prosecution and the
defence of the accused.
10. The appellant/accused after marriage with the deceased Vanga Vimala were staying in
rented accommodation in H.No.9-8-734 in Gajulapet. The deceased used to attend the
household work of other houses. PW 1, who is the father of the deceased, in his evidence
deposed that after marriage the accused now and then bring his daughter to his home. The
accused was not bearing his wife going to market and often questioned her while she was
speaking with others. He used to beat her by locking the house. He was demanding
dowry and her daughter used to tell all these whenever the accused brought her to his
home. He was harassing her for money and once gave her poison by mixing it into water,
made her to drink and when she refused; he pressed her throat and made her to consume
it. At the time of the incident, PW 1 was at factory and on receipt of information, he went
to the house of the accused and found her daughter hanging to a fan with a new saree. It
was he who made a complaint to the police. The complaint is Ex. P-1. PW 2 wife of PW
1 and mother of the deceased also reiterated the same.
11. Mr. I. Venkatnarayana, learned senior counsel, by drawing our attention to Ex. P-1
(complaint to the police), submitted that in the absence of any reference to dowry
demand/harassment, the statement of PW 1 as well as PW 2 before the Court regarding
demand of dowry by the accused is an afterthought and hence the same was rightly not
accepted by the learned trial Judge and the High Court committed an error in convicting
the accused. It is true that though there is no reference in the complaint about the dowry
demand, however, PWs 1 and 2 who are none else than the parents of the deceased, in
their evidence stated about torture and dowry harassment by the accused. In this regard, it
is relevant to refer to the evidence of other witnesses, namely, PWs 3, 4 and 6. PW 3 is a
resident of Boigally, which is nearby to the vegetable market, Gajulapet. According to
her, on the date of incident, while she was going to the market she saw the accused and
his wife quarrelling with regard to dowry amount. She also heard the quarrels between
the accused and his wife and asserted that Vimala died for not bringing dowry. PW 4,
resident of Gajulapet, also reiterated and asserted that there were quarrels between the
accused and
@page-SC90
his wife over demand for dowry. Though PW 5, another resident of the same village
turned hostile, PW 6, who is also a resident of Gajulapet, deposed before the Court that
he observed on many occasions the accused and his wife quarelling and the accused
demanding her to bring more dowry. The statement of these witnesses i.e. PWs 3, 4 and 6
cannot be lightly ignored when admittedly all of them are residents of the same village
particularly residing in and around the house of the accused. As said earlier, though no
specific reference was made to dowry demand in the complaint, if we consider the entire
evidence of PWs 1, 2, 3, 4 and 6 coupled with other circumstances, we are of the view
that the accused harassed the deceased and threatened her on many occasions for not
fulfilling his demand of dowry. No doubt, he not only threatened her but also doubted her
fidelity and was not able to bear with her when she interacts with others. It is not in
dispute that at the time of occurrence, the deceased and the accused alone were inside the
house. If it is a mere case of suicide, as rightly pointed out by the prosecution, on seeing
the same he could have raised an alarm or even prevented her, instead he ran away from
the scene of occurrence.
12. It is useful to refer to the evidence of PW 8 and PW 9 who are attestors of inquest
report. PW 8 also a resident of Gajulapet, Nizamabad in her evidence has stated that she
along with PW 9 found Vanga Vimala hanging to the ceiling fan and it appeared the neck
of the deceased Vimala was tied with a saree. Both PWs 8 and 9 expressed that the
deceased had not committed suicide but she was throttled and was hanged to the fan.
They also observed that the feet of the dead body was touching the cot beneath and the
saree noose is loose. The above statement of PW 8 and PW 9 is available in Ex. P-8
which is inquest panchnama. It is also seen that during the inquest, the abovesaid panchas
also opined that the accused used to suspect the fidelity of the deceased and he used to
beat her. PW 11 - Mandal Revenue Officer deposed that the inquest was held in his
presence and found marks around the neck and ear. In view of the fact that the accused
alone was in the company of the deceased, the evidence of PWs 8, 9 and 11 strengthen
the case of prosecution that the deceased died due to strangulation.
13. Now let us consider the medical evidence. Dr. R. Balaiah, who conducted post-
mortem on the body of the deceased, was examined as PW 10. According to him, on
25.01.1997, he received a requisition from MPO, Nizamabad to conduct autopsy on the
body of Vimala. He and Dr. Rama Devi conducted autopsy and found the following
injuries:
"1. Abrasions numbering four in the shape of nail markings vertically placed on the left
side of the neck.
2. Contusion measuring 2 x 1 inches on the right side of neck horizontally placed.
3. Ligature mark around the neck with a gap on the left side behind the ear.
The above injuries are anti-mortem in nature. Injury No.1 is caused by nails and injury
Nos. 2 and 3 with a blunt object.
Internal Injuries:
1. Fracture of hyoid bone right corn.
2. Fracture of 3, 4, 5, 6, 7th ribs on r/s and 4, 5, 6, 7th ribs on the I/s near steno castle
junction. Lungs were congested, heart congested and peritorial cavity contains about 200
cc of clotted blood. Intestine and omentum stained with blood.
Small intestine contused in different places. Liver, Spleen, Kidney are congested. Uterus
stained with blood. Viscera was sent for chemical analysis.
The result of analysis is there was no poisonous substance. The FBL report is Ex.P-10.
Ex.P11 is preliminary Post-Mortem Examination Report issued by myself and Doctor
Smt. Ramadevi.
Final opinion as to cause of death is Asphyxia due to throttling. The final report issued by
both of us is Ex.P-12. The approximate time of death is 24-36 hours prior to PME."
Though in his preliminary report Ex. P-11, the doctor has not offered his opinion as to the
cause of death but in the final opinion, he has specifically stated that the cause of death is
"Asphyxia due to throttling". The analysis of post-mortem report coupled with the
evidence of doctor clearly show (a) presence of nail marks, (b) contusion over the neck,
(c) ligature marks around the neck, (d) fracture of hyoid bone corn, and (e) fracture of 9
ribs right and left sides. Though there was a suspicion that the deceased
@page-SC91
might have been poisoned on account of the presence of some powder in the glass and a
tablet that were present at the scene of occurrence, in view of FSL report i.e. Ex. P-10,
there is no proof to the effect that the death was due to poison. On the other hand, the
evidence of panchas PWs 8 and 9 coupled with the medical evidence PW 10 as well as
the final report (Ex.P-12) clearly show that the deceased died on account of strangulation.
14. The scene of observation report (Ex .P-9) prepared by the investigating officer show
that the house of the accused is located in the middle of other houses. In view of the
medical evidence and in conjunction with the other circumstances, particularly the
undisputed fact that at or about the time of Vanga Vimala's death, no third person
excepting the accused and the deceased, was present in the house, it will inescapably lead
to the conclusion that within all human probability, it was the accused-appellant and none
else, who had murdered the deceased by strangulating her to death. We have already
noted that the accused alone was inside the house along with his wife, namely, the
deceased. As rightly pointed out by the prosecution, it is not the case of the accused that
any other person was residing with them in the same house particularly on the fateful day.
Further, as rightly pointed out, there was no explanation from the accused as to when he
left the house and came to know about the hanging of the dead body and it would be right
in arriving at a conclusion that he alone was responsible for the commission of the
offence. If we consider all the above- mentioned material circumstances coupled with the
medical evidence, it is safe to conclude that the death of the deceased was on account of
strangulation. As rightly pointed out, there was no possibility of any other person
committing the offence and the accused alone was responsible for the commission of the
offence. In such circumstances, we agree with the contention of the State counsel that the
prosecution placed sufficient evidence to establish the guilt of the accused beyond
reasonable doubt. As observed by the High Court, the trial Court acquitted the accused
only on the simple ground that the doctor, who conducted post-mortem examination, did
not offer cause of death in his preliminary report, forgetting that in the final report
particularly after receipt of FSL report, the very same doctor has opined that the death
was due to "Asphyxia due to throttling". In the light of the materials available, the
conclusion of the trial Judge cannot be accepted and the High Court taking into
consideration the totality of the circumstances and the entire materials was right in
accepting the case of the prosecution and found the accused guilty.
15. Mr. I.Venkatnarayana, learned senior counsel, submitted that even if this Court
accepts the prosecution case in view of alteration of the charge, namely, from Sections
302 to 304-B and 201, IPC, the conviction and sentence for an offence under Section 302,
IPC by the High Court cannot be sustained. In the earlier part of the judgment, we have
referred to Annexures A1 and A2 which clearly show that based on the materials
collected the investigating agency altered the offence from Sections 302, IPC to 304-B
and 201, IPC. The altered charge has not been taken note of by the High Court while
arriving at a conclusion against the accused. In the earlier part of our judgment, we have
referred to the relevant materials with regard to demand of dowry, suspicion, harassment
and torture by the accused and the medical evidence as to the cause of death. In view of
the same and in the light of the altered charge memo as one of Section 304-B instead of
302, IPC, it is but proper to convict the accused only under Section 304-B, IPC and not
under Section 302, IPC as ordered by the High Court. As per sub-section (2) of Section
304-B, IPC, the minimum sentence prescribed is 7 years and may extend to imprisonment
for life.
16. Considering the fact that the alleged occurrence took place on 24.01.1997 and the
appellant/accused undergone the agony for more than ten years, we are of the view that a
sentence of seven years would meet the ends of justice. Accordingly, we modify the
conviction and sentence imposed by the High Court; instead the appellant/accused is
convicted under Section 304-B, IPC and impose a sentence of seven years' rigorous
imprisonment.
17. In the result, the appeal is allowed in part subject to the above modification.
Appeal partly allowed.
@page-SC92
AIR 2008 SUPREME COURT 92 "State of Punjab v. Mohinder Singh"
(From : Punjab and Haryana)
Coram : 2 Dr. A. PASAYAT AND D. K. JAIN, JJ.
Criminal Appeal Nos. 330 and 331 of 2000, D/- 28 -9 -2007.
State of Punjab v. Mohinder Singh and Ors.
(A) Criminal P.C. (2 of 1974), S.154 - Penal Code (45 of 1860), S.300 - FIR - MURDER
- HIGH COURT - Delay in lodging FIR - Categorical statement in FIR that nobody came
forward to accompany complainant-wife of deceased to police station in dark night - She
had to wait till morning - No question regarding reason for alleged delay in lodging FIR
was asked to said witness during cross-examination - Neither any such suggestion was
made - Finding by High Court that there was delay and same was not explained -
Improper. (Para 8)
(B) Penal Code (45 of 1860), S.300 - MURDER - Murder - Alleged non-explanation of
injuries on accused - Not fatal in absence of claim that accused had suffered injuries at
hands of deceased - Moreso when matter was not reported to police by accused persons.
(Para 9)
(C) Penal Code (45 of 1860), S.300 - MURDER - APPEAL - TRIAL COURT - Murder -
Acquittal - Appeal against - Trial Court on analysing evidence noticed that since accused
persons had dragged dead body of deceased to house of accused there was possibility of
their clothes being stained with blood rather than leaving trail of blood - Investigating
Officer has categorically stated that he had collected blood stained earth from several
places - Therefore, it is not a case where there is absence of blood at spot of occurrence or
nearby - High Court has not discussed as to why it did not concur with view of trial Court
in said regard - Judgment of acquittal set aside and that of trial Court restored.
Criminal P.C. (2 of 1974), S.378. (Paras 10, 11)
Ajay Pal, for Appellants; M/s. Seema Gulati, Ms. Sadhana Sandhu, Mrs. Hemantika
Wahi, for Respondents.
Judgement
1. Dr. ARIJIT PASAYAT, J. :- These two appeals are directed against a common judgment
of the Punjab and Haryana High Court dated 30th August, 1995 in Criminal Appeal No.
208-DB of 1994. In the said appeal, the present respondents questioned correctness of the
order of conviction passed by the learned Sessions Judge, Amritsar. Accused-respondent
Major Singh was found guilty of offence punishable under Section 302 of the Indian
Penal Code, 1860 (in short the 'IPC'). The co-accused Jeet Singh alias Ajit Singh,
Mohinder Singh and Kulwant Singh were found guilty of offence punishable under
Section 302 read with Section 34, IPC. Each of the accused was sentenced to
imprisonment for life and to pay a fine of Rs. 2,000/- with default stipulation. For the
offence relatable to Section 460, IPC, each of the accused was sentenced to rigorous
imprisonment for five years and to pay a fine of Rs. 500/- with default stipulation.
2. Background facts as projected by the prosecution during the trial are as follows:
On 17.5.1991 at 8 p.m. Surjit Kaur (PW-4) and her husband Dalip Singh (hereinafter
referred to as 'deceased') were present in their house in village Leharka. At that time,
accused Mohinder Singh and Kulwant armed with dang, Jeet Singh armed with a barchhi
and Major Singh armed with a kirpan came there and told her husband that he had been
abusing them in connection with the land dispute which existed between them, so he
would be taught a lesson. Saying this, Mohinder Singh raised a lalkara to the effect that
Dalip Singh should be taught a lesson for asking his share of the agricultural land,
whereupon Kulwant Singh caught hold of Dalip Singh and threw him on the ground. Jeet
Singh then gave a blow with barchhi, which hit Dalip Singh on the right side of the chest
while Major Singh gave a blow with kirpan, which hit Dalip Singh on his left ear. Major
Singh again gave a blow with the kirpan, which hit Dalip Singh on his neck. In the
meantime, Surjit Kaur cried for help which attracted Karnail Singh son of Shangara
Singh and Ajit Singh son of Chanan Singh. They all tried to intervene to save Dalip
Singh. Major Singh told them to stand aside lest they shall be assaulted. Hearing this,
Surjit Kaur, Karnail Singh and Ajit Singh stood aside and Jeet Singh and his co-accused
took the body of Dalip Singh to the house of Ajit Singh. An electric bulb was on in the
courtyard of the house and Surjit Kaur (PW-4) was thus, able to identify the accused. She
thereafter, left for the police Station Kathu Nangal and on the way near Talwandi Phuman
met ASI Rajinder Singh, (PW-9) and made statement
@page-SC93
regarding the circumstances in which her husband had been attacked by the accused and
removed from his house. PW9 recorded the statement (Ex.PF) into writing and read over
the same to the witness whereafter she signed the same in token of its correctness. He
then, made endorsement Ex. PF/2 and sent the same to the Police Station for recording of
formal FIR (Ex.PF/1). The Investigating Officer, thereafter, went to the spot and in the
house of Ajit Singh, found the dead body of Dalip Singh. He prepared inquest report
Ex.PB and after drawing up request for post-mortem Ex-PD sent the dead body to the
mortuary through Head Constable Charan Singh and Constable Sat Pal Singh. He also
prepared injury statement Ex.PC and lifted blood, stained earth and took the same into
possession through recovery memo (Ex.PO) which was attested by SI Kishan Singh and
ASI Surinder Kumar. They went to the house of Dalip Singh and lifted blood-stained
earth from the courtyard of the house and that was also taken into possession through
recovery memo Ex.PQ. This recovery memo was also got attested from the aforesaid
witnesses. He prepared rough site plan Ex. PR and Ex.PG showing the houses of Ajit
Singh and Dalip Singh. The marginal notes thereof are correct according to the spot. On
return to the police station, he deposited the case property with Moharir HC with seals
intact. Thereafter, he searched for the accused and on 1.6.1991 when he was present at
Bus adda, Talwandi Phuman, he joined Darshan Singh, PW-5 and left towards village
leharka in search of the accused. When he reached near the canal minor Darshan Singh
pointed out the four accused and they were apprehended and detained in the case. In the
presence of Darshan Singh and other police officials, ASI Rajinder Singh interrogated
Major Singh who made disclosure statements (Ex.PL) to the effect that he had kept
concealed a kirpan in the heap of wheat straw which was lying in his cattle shed and he
had the exclusive knowledge about the same. His statement was reduced into writing and
was got thumb marked by the accused and was got attested from Darshan Singh and
Amrik Singh, PWs. Thereafter, ASI Rajinder Singh interrogated Jeet Singh who had
made disclosure statement to the effect that he had kept concealed barchhi in the heap of
toori lying in the toori wala kotha and he had the exclusive knowledge of the same and
could get the same recovered. This statement Ex.PJ was also reduced into writing and got
attested from the aforesaid witnesses. Thereafter, the accused had led the police party to
the place of concealment already disclosed by them and got discovered kirpan (Ex.P2)
and barchhi (Ex.P1) which were taken into possession through recovery memo Ex.PM
and Ex.PK after making rough sketches thereof, which are Ex.PN and Ex.PK/1
respectively. The memos, were attested by Darshan Singh and Amrik Singh, PWs. On
return to the police station, the Investigating Officer deposited the case property in the
malkhana with seals intact. Rough sketches of the places of discoveries Ex.PT and PU
were also prepared during the investigation and on completion of the same, the challan
was put in the court of Ilaqa Magistrate, against the accused. Charge-sheet was filed after
completion of investigation. Accused persons pleaded innocence.
3. Placing reliance on the evidence of PW4, informant, the trial Court found the accused
persons guilty and convicted and sentenced, as aforesaid. The main stand of the accused
persons before the trial Court were (a) there was a delay in lodging the FIR (b) the
injuries on the accused were not explained and (c) evidence of the complainant PW4, eye
witness, was at variance with medical evidence and (d) there was no trail of blood seen
by the Investigating Officer, though the complainant stated about the presence of a trail of
blood when the accused persons dragged the deceased to the house of Ajit Singh alias
Jeet Singh. The trial court negatived each of the contentions holding as follows:
(a) there was no delay in lodging the FIR as no person came to rescue the deceased and,
therefore, the helpless lady, PW4 could not have come to the police station in the night.
(b) injuries on the accused were not grievous in nature and could be self inflicted.
(c) statement of eye witness/complainant, PW4 corroborates the medical evidence.
(d) Lack of trail of blood has been explained.
4. In spite of lengthy cross-examination it remained unshattered. The complainant had
nothing to gain by implicating the accused. Recovery of weapons at the instance of the
accused has been established. If any of the accused was injured by unidentified
@page-SC94
assailants as claimed, there was no reason for them not to report the matter to the Police
and kept mum.
5. Being aggrieved, accused persons filed appeal before the High Court. The stands
before the trial Court were reiterated before the High Court. By the impugned judgment,
the High Court found that the trial court's judgment was unsustainable and accordingly
set aside the conviction and sentence imposed by the trial Court and directed acquittal.
Hence, State has filed the present appeals by special leave.
6. In support of appeals, learned counsel for the appellant submitted that the High Court
has erroneously come to hold that there was delay in lodging the FIR. The High Court
wrongly concluded that in the FIR or in the statement in court the delay was not
explained. This is clearly contrary to the factual position. In fact, there was no
requirement for explaining the delay in lodging the FIR by giving details. In any event,
that criticism is not factually correct. So far as non-explanation of injuries on the accused
persons is concerned, the accused persons never claimed that they suffered injuries at the
hands of the deceased. Therefore, the question of explaining the injuries did not arise.
Finally, the trial court, by an elaborate analysis, indicated as to why there could not be
trail of blood, as stated by PW4.
7. In response, learned counsel for the respondents submitted that PW4's presence on the
spot was doubtful. The High Court has rightly referred to the background of the deceased
and the motivation for false implication of the respondents. It is submitted that the High
Court's judgment being one of the acquittal, there is no scope for interference in these
appeals.
8. As submitted by learned counsel for the appellant, three factors weighed with the High
Court for acquitting the respondents. Firstly, the alleged non-explanation of delay in
presentation of the FIR. The High Court has wrongly recorded that there was no
explanation for the delay in lodging the FIR. There was no requirement for offering any
such explanation. Even otherwise, in the FIR it has been categorically stated that nobody
came forward to accompany the complainant to the police station in the dark night.
Therefore, she had to wait till the morning to come to the police station. In the cross-
examination to this witness, no question regarding the reason for the alleged delay in
lodging the FIR was asked, though, the witness was cross-examined at length. There was
not even a suggestion that she had wrongly stated about the reason as to why she was
lodging the FIR on the next morning. The conclusion of the High Court is, therefore,
clearly unsustainable.
9. Next comes the conclusion of the High Court relating to the alleged non-explanation
of the injuries on the accused. It was not the case of the accused, nor even in their cross-
examination under Section 313 of the Code of Criminal Procedure, 1973 (for short 'the
Code'), that they were assaulted by the deceased. It was not the defence version that the
accused persons had suffered injuries at the hands of the deceased. Their clear case was
that they have been falsely implicated and the killing was done by unidentified assailants
because of the bad reputation of the deceased. They claimed to have sustained injuries at
the hands of the unidentified assailants when they tried to intervene. As rightly observed
by the trial Court, if they had really sustained injuries in that manner, the least that could
have done was to report the matter to the police. Admittedly, that was not done. Since the
accused did not claim to have suffered injuries at the hands of the deceased, the question
of explaining the injuries on the accused in that sense did not arise. Here again the
conclusion of the High Court is clearly unsustainable.
10. The last question relates to the Investigating Officer's evidence that he did not find
trail of blood. The trial court on analysing the evidence noticed that since the accused
persons were dragging the dead body of the deceased to the house of the accused Ajit
Singh alias Jeet Singh, there was possibility of their clothes being strained with blood
rather than leaving trail of blood. The Investigating Officer has categorically stated that
he had collected blood stained earth from several places. Therefore, it is not a case where
there is absence of blood at the spot of occurrence or nearby. This aspect has been
completely lost sight by the High Court. It is not even discussed as to why it did not
concur with the view of the trial court in this regard.
11. Looking from any angle the impugned judgment of the High Court directing acquittal
of the respondents is clearly unsustainable. The same is set aside. The order of the
@page-SC95
trial court is restored. Respondents who are on bail shall be taken into custody forthwith
to serve out the remaining sentence.
12. The appeals are allowed accordingly.
Appeals allowed.
AIR 2008 SUPREME COURT 95 "Guriya v. State of Bihar"
(From : Patna)*
-9 -2007.
Guriya @ Tabassum Tauquir and Ors. v. State of Bihar and Anr.
Criminal P.C. (2 of 1974), S.319 - ADDITIONAL ACCUSED - SUMMONS -
EXAMINATION OF ACCUSED - Summoning additional accused - Some of prosecution
witnesses stated in their evidence about presence of appellants at place of occurrence
without any definite role being ascribed to them - Nothing has been stated about
appellants by other witnesses - No steps taken by complainant thereafter to summon
appellants as accused - Their names mentioned in FIR - Protest petition filed by
complainant after filing of charge sheet was dismissed - Non-filing of application under
S. 319 earlier, not explained - No new material after examination of accused under S.
313, Cr. P. C., which threw any light on incident - Order summoning appellants as
accused under S. 319 - Liable to be set aside.
Cri. Revn. No. 745 of 2004, D/- 22-7-2005 (Pat), Reversed. (Para 16)
AIR 1990 SC 2158 : 1990 Cri LJ 2302 13
AIR 1983 SC 67 : 1983 Cri LJ 159 12
AIR 1979 SC 339 : 1979 Cri LJ 333 10, 12
S. Wasim A. Qadri, Lakshmi Raman Singh, for Appellants; Gopal Singh, Anukul Raj
Rituraj Biswas, Shashi Bhushan Kumar, for Respondents.
* Cri. Revn. No. 745 of 2004, D/- 22-7-2005 (Pat.).
Judgement
2. The appellants call in question legality of the order passed by a learned Single Judge
of the Patna High Court dismissing the Criminal Revision filed by them. Challenge
before the High Court was to the revisional order passed by learned Additional Sessions
Judge, Fast Track Court No.1, Motihari. By order dated 10.09.2004, learned Additional
Sessions Judge set aside the order of learned Judicial Magistrate, Motihari in G.R.
No.996 of 99/Tr. No.693 of 2004.
3. Background facts in a nutshell are as follows:
FIR was lodged on 29.05.1999 by Manzoor Baitha alleging that his parents, brother and
sisters had a fight with his family members. Annu Siddiqui hit on the head of his son
Akbar Hawari with the butt of a pistol and he also snatched away a wrist watch of his
son. Cognizance was taken on 27.9.1999 and charge-sheet was filed on 09.09.1999.
Charges were framed on 14.3.2000. Only three persons were arrayed as accused persons
and the present appellants were not arrayed as accused. It appears that a protest petition
was filed before charges were framed on 14.03.2000 but the same was rejected.
Recording of prosecution evidence commenced on 16.04.2001 and continued till
29.04.2002. The prosecution evidence was thereafter closed and the statement of accused
persons was recorded in terms of Section 313 of the Code of Criminal Procedure, 1973
(in short 'Cr.P.C.') on 19.02.2003. Thereafter on 07.05.2003, an application in terms of
Section 311 Cr.P.C. was filed and was allowed and two more witnesses i.e. PWs 4 and 5
were examined. An application under Section 319 Cr.P.C. was filed on 14.01.2004 stating
that new evidence has surfaced which requires the trial of the present appellants. It is to
be noted that PWs 4 and 5 were examined on 6.1.2004 pursuant to the order in the
application filed under Section 311 Cr.P.C. The petition filed under Section 319 Cr.P.C.
was rejected by the Trial Court holding that no case was made out for putting the
appellants on trial. Learned Sessions Judge was moved for revision and the same was
allowed. The High Court dismissed the revision petition filed on the ground that there
@page-SC96
are materials against the appellants.
4. Learned counsel for the appellants submitted that the application under Section 319
Cr.P.C. was nothing but an abuse of process of the court as the narration of facts above
would go to show. Every possible attempt was made to introduce materials against the
appellants which were not on record. Even after the examination of the accused under
Section 313 Cr.P.C., an application under Section 311 Cr.P.C. was allowed. Two
witnesses were examined on 6.1.2004. Even their evidence in no way connects the
appellants to the alleged incident. PWs 1, 2 and 3, who were examined on 16.04.2001,
8.01.2002 and 29.04.2002 merely stated about the alleged presence of the appellants. No
definite role was ascribed to them. Therefore, the application in terms of Section 319
Cr.P.C. was not maintainable and in any event was mala fide.
5. Learned counsel for the State submitted that the prosecution has not filed any
application under Section 319 Cr.P.C. It was only PW-1, the informant who had filed such
an application. Learned counsel for the complainant -respondent No. 2 submitted that the
appellants were named in the FIR. PWs 1, 2 and 3 spoke about their presence. Therefore,
they should have been arrayed as accused persons.
6. The parameters for dealing with an application under Section 319 Cr.P.C. have been
laid down by this Court in several cases.
7
. In Michael Machado and Anr. v. Central Bureau Of Investigation and Anr. (2000 (3)
SCC 262) it was observed as follows:- 2000 AIR SCW 734, Paras 11, 12 and 14
"The basic requirements for invoking the above section is that it should appear to the
court from the evidence collected during trial or in the inquiry that some other person,
who is not arraigned as an accused in that case , has committed an offence for which that
person could be tried together with the accused already arraigned. It is not enough that
the court entertained some doubt, from the evidence, about the involvement of another
person in the offence. In other words, the court must have reasonable satisfaction from
the evidence already collected regarding two aspects. First is that the other person has
committed an offence. Second is that for such offence that other person could as well be
tried along with the already arraigned accused.
But even then what is conferred on the court is only a discretion as could be discerned
from the words "the court may proceed against such person." The discretionary power so
conferred should be exercised only to achieve criminal justice. It is not that the court
should turn against another person whenever it comes across evidence connecting that
other person also with the offence. A judicial exercise is called for, keeping a conspectus
of the case, including the stage at which the trial has proceeded already and the quantum
of evidence collected till then, and also the amount of time which the court had spent for
collecting such evidence. It must be remembered that there is no compelling duty on the
court to proceed against other persons.
The court while deciding whether to invoke the power under Section 319 of the Code,
must address itself about the other constraints imposed by the first limb of sub-section
(4), that proceedings in respect of newly-added persons shall be commenced afresh and
the witnesses re-examined. The whole proceedings must be recommended from the
beginning of the trial, summon the witnesses once again and examine them and cross-
examine them in order to reach the stage where it had reached earlier. If the witnesses
already examined are quite large in number the court must seriously consider whether the
objects sought to be achieved by such exercise are worth wasting the whole labour
already undertaken. Unless the court is hopeful that there is a reasonable prospect of the
case as against the newly-brought accused ending in being convicted of the offence
concerned we would say that the court should refrain from adopting such a course of
action".
8
. Shashikant Singh v. Tarkeshwar Singh and Anr. (2002 (5) SCC 738), it was, inter alia
observed as follows:- 2002 AIR SCW 2079, Para 10
"The intention of the provision here is that where in the course of any enquiry into, or
trial of, an offence, it appears to the court from the evidence that any person not being the
accused has committed any offence, the courts may proceed against him for the offence
which he appears to have committed. At that stage, the court would consider that such a
person could be tried together with the accused who is already before the
@page-SC97
court facing the trial. The safeguard provided in respect of such person is that, the
proceedings right from the beginning have mandatorily to be commenced afresh and the
witnesses reheard. In short, there has to be a de novo trial against him. The provision of
de novo trial is mandatory. It vitally affects the rights of a person so brought before the
court. It would not be sufficient to only tender the witnesses for the cross-examination of
such a person. They have to be examined afresh. Fresh examination-in-chief and not only
their presentation for the purpose of the cross-examination of the newly added accused is
the mandate of Section 319 (4). The words "could be tried together with the accused" in
Section 319 (1), appear to be only directory. "Could be" cannot under these circumstances
be held to be "must be". The provision cannot be interpreted to mean that since the trial in
respect of a person who was before the court has concluded with the result that the newly
added person cannot be tried together with the accused who was before the court when
order under Section 319(1) was passed, the order would become ineffective and
inoperative, nullifying the opinion earlier formed by the court on the basis of the
evidence before it that the newly added person appears to have committed the offence
resulting in an order for his being brought before the court."
9
. Again in Krishnappa v. State of Karnataka (2004 (7) SCC 792), it was observed as
follows:- 2004 AIR SCW 4809, Paras 6, 7, 9, and 10
"It has been repeatedly held that the power to summon an accused is an extraordinary
power conferred on the court and should be used very sparingly and only if compelling
reasons exist for taking cognizance against the other person against whom action has not
been taken.
In the present case, we need not go into the question whether prima facie the evidence
implicates the appellant or not and whether the possibility of his conviction is remote, or
his presence and instigation stood established, for in our view the exercise of discretion
by the Magistrate, in any event of the matter, did not call for interference by the High
Court, having regard to the facts and circumstances of the case.
In Michael Machado v. Central Bureau of Investigation construing the words "the court
may proceed against such person" in Section 319 CrPC, this Court held that the power is
discretionary and should be exercised only to achieve criminal justice and that the court
should not turn against another person whenever it comes across evidence connecting that
other person also with the offence. This Court further held that a judicial exercise is
called for, keeping a conspectus of the case, including the stage at which the trial has
already proceeded and the quantum of evidence collected till then, and also the amount of
time which the Court had spent for collecting such evidence. The court, while examining
an application under Section 319 CrPC, has also to bear in mind that there is no
compelling duty on the court to proceed against other persons. In a nutshell, it means that
for exercise of discretion under Section 319 CrPC, all relevant factors, including the one
noticed above, have to be kept in view and an order is not required to be made
mechanically merely on the ground that some evidence had come on record implicating
the person sought to be added as an accused. 2000 AIR SCW 734
Applying the test as aforesaid to the facts of the present case, in our view, the trial
Magistrate is right in rejecting the application. The incident was of the year 1993.
Seventeen witnesses had been examined. The statements of the accused under Section
313 CrPC had been recorded. The role attributed to the appellant, as per the impugned
judgment of the High Court, was of instigation. Having regard to these facts coupled with
the quashing of proceedings in the year 1995 against the appellant, it could not be held
that the discretion was illegally exercised by the Trial Magistrate so as to call for
interference in exercise of revisional jurisdiction by the High Court."
10. The scope and ambit of Sec. 319 of the Code have been elucidated in several
decisions of this Court. In Joginder Singh and another v. State of Punjab and another
(AIR 1979 SC 339), it was observed:
"6. A plain reading of Sec. 319 (1) which occurs in Chapter XXIV dealing with general
provisions as to inquiries and trials, clearly shows that it applies to all the Courts
including a Sessions Court and as such a Sessions Court will have the power to add any
person, not being the accused before it, but against whom there appears during trial
sufficient evidence indicating his involvement in the offence, as an accused and
@page-SC98
direct him to be tried along with the other accused;.........."
11. It was further observed in paragraph 9 :
"9. As regards the contention that the phrase 'any person not being the accused' occurred
in Sec. 319 excludes from its operation an accused who has been released by the police
under Sec. 169 of the Code and has been shown in column No. 2 of the charge sheet, the
contention has merely to be stated to be rejected. The said expression clearly covers any
person who is not being tried already by the Court and the very purpose of enacting such
a provision like Sec. 319(1) clearly shows that even persons who have been dropped by
the police during investigation but against whom evidence showing their involvement in
the offence comes before the Criminal Court are included in the said expression."
12
. In Municipal Corporation of Delhi v. Ram Kishan Rohtagi and Ors. (1983 (1) SCC 1)
after referring to the decision in Joginder Singh's case (supra), it was observed:- AIR
1983 SC 67
AIR 1979 SC 339
"19. In these circumstances, therefore, if the prosecution can at any stage produce
evidence which satisfies the Court that the other accused or those who have not been
arrayed as accused against whom proceedings have been quashed have also committed
the offence the Court can take cognizance against them and try them along with the other
accused. But, we would hasten to add that this is really an extraordinary power which is
conferred on the Court and should be used very sparingly and only if compelling reasons
exist for taking cognizance against the other person against whom action has not been
taken. More than this we would not like to say anything further at this stage. We leave the
entire matter to the discretion of the Court concerned so that it may act according to law.
We would, however, make it plain that the mere fact that the proceedings have been
quashed against respondent Nos. 2 to 5 will not prevent the court from exercising its
discretion if it is fully satisfied that a case for taking cognizance against them has been
made out on the additional evidence led before it."
13. On a careful reading of Sec. 319 of the Code as well as the aforesaid two decisions, it
becomes clear that the trial court has undoubted jurisdiction to add any person not being
the accused before it to face the trial along with other accused persons, if the Court is
satisfied at any stage of the proceeding on the evidence adduced that the persons who
have not been arrayed as accused should face the trial. It is further evident that such
person even though had initially been named in the F.I.R. as an accused, but not charge
sheeted, can also be added to face the trial. The trial court can take such a step to add
such persons as accused only on the basis of evidence adduced before it and not on the
basis of materials available in the charge-sheet or the case diary, because such materials
contained in the charge sheet or the case diary do not constitute evidence. Of course, as
evident from the decision reported in Sohan Lal and others v. State of Rajasthan, (AIR
1990 SC 2158) the position of an accused who has been discharged stands on a different
footing.
14
. Power under Section 319 of the Code can be exercised by the Court suo motu or on an
application by someone including accused already before it, if it is satisfied that any
person other than accused has committed an offence and he is to be tried together with
the accused. The power is discretionary and such discretion must be exercised judicially
having regard to the facts and circumstances of the case. Undisputedly, it is an
extraordinary power which is conferred on the Court and should be used very sparingly
and only if compelling reasons exist for taking action against a person against whom
action had not been taken earlier. The word "evidence" in Section 319 contemplates
evidence of witnesses given in Court. Under sub-section (4)(1)(b) of the aforesaid
provision, it is specifically made clear that it will be presumed that newly added person
had been an accused person when the Court took cognizance of the offence upon which
the inquiry or trial was commenced. That would show that by virtue of sub-section (4)(1)
(b) a legal fiction is created that cognizance would be presumed to have been taken so far
as newly added accused is concerned. (See Lok Ram v. Nihal Singh and Anr. (AIR 2006
SC 1892)). 2006 AIR SCW 2129
15. The factual position noted above goes to show that there was no new material after
examination of the accused persons under Section 313 Cr.P.C., which threw any
@page-SC99
light on the incident. The evidence of PWs 4 and 5 is not the basis of the application
under Section 319 Cr.P.C. as they have not spoken anything about the appellants.
16. As noted above, PWs 1,2 and 3 have stated about the presence of the appellants
without any definite role being ascribed to them in their evidence recorded on
16.04.2001, 08.01.2002 and 29.04.2002. If really the complainant had any grievance
about the appellants being not made accused, that could have, at the most, be done
immediately after the recording of evidence of PWs 1,2 and 3. That has apparently not
been done. Additionally, after the charge-sheet was filed, a protest petition was filed by
the complainant which was dismissed. No explanation whatsoever has been offered as to
why the application in terms of Section 319 Cr.P.C. was not filed earlier. The revisional
court did not deal with these aspects and came to an abrupt conclusion that all the PWs
have stated that the appellants have committed overt acts and their names also find place
in the protest petition. Undisputedly, no overt act has been attributed to the appellants by
PWs 1, 2 and 3. Nothing has been stated about the appellants by PWs 4 and 5. There was
mention of their names in the FIR. A protest petition was filed. Same was also rejected.
These could not have formed the basis of accepting the prayer in terms of Section 319
Cr.P.C. The High Court's order, to say the least, is bereft of any foundation. It merely
states that there are materials against the petitioners before it. It also did not deal with
various aspects highlighted above.
17. Above being the position, the order of the High Court and that of learned Additional
Sessions Judge cannot be maintained and are set aside. The Trial Court had rightly
rejected the application filed under Section 319 Cr.P.C.
18. The appeal is, accordingly, allowed.
Appeal allowed.
AIR 2008 SUPREME COURT 99 "U. B. Gadhe v. G. M., Gujarat Ambuja Cement Pvt.
Ltd."
(From : 2006 Lab IC 502 (Guj))
U. B. Gadhe and Ors. etc. etc. v. G.M., Gujarat Ambuja Cement Pvt. Ltd.
(A) Industrial Disputes Act (14 of 1947), S.11A - INDUSTRIAL DISPUTE - LABOUR
COURT - REINSTATEMENT - Powers of Labour Court - Workmen in public utility
service - Participating in prolonged illegal strike - Imposition of punishment of dismissal
- Cannot be reduced and substituted by lesser punishment by Labour Court - Alleged
agreement by employer to take sympathetic review of situation and reinstate them - Non-
compliance - Not illegal in view of serious allegations against them.
When the Labour Court found that the workmen had proceeded on illegal strike and that
they were leading participants in such a strike, the Labour Court ought not to have
interfered with the quantum of punishment especially when it was established that the
employer is a Public Utility service and that the strike prolonged for a period of four to
five months. Even in the absence of any further proof of involvement of the workmen for
other misconduct of unruly behaviour, abusing superior officers, preventing officers from
entering the premises, preventing co-workers from resuming duties and threatening the
family members of the workmen and collecting union subscription illegally, it is doubtful
whether the Labour Court could have reduced the punishment and substituted the order of
dismissal of lesser punishment.
AIR 1958 SC 311, Foll. (Para 14)
Further failure of employer to take sympathetic review of situation and to reinstate the
workmen concerned as agreed by employer before Conciliation Officer, would not in the
facts and circumstances render the order illegal. (Paras 13, 15)
(B) Industrial Disputes Act (14 of 1947), S.11A - INDUSTRIAL DISPUTE -
PENOLOGY - Quantum of punishment - Interference with decision of management -
Relief granted by Courts should not incur and justify criticism that jurisdiction of Courts
tends to degenerate into misplaced sympathy, generosity and private benevolence.
The power under said S. 11-A has to be exercised judiciously and the Industrial Tribunal
or the Labour Court, as the case may be, is expected to interference with the decision of a
management under S. 11-A only when it is satisfied that punishment imposed by the
management is wholly and
@page-SC100
shockingly disproportionate to the degree of guilt of the workman concerned. To support
its conclusion, the Industrial Tribunal or the Labour Court, as the case my be, has to give
reasons in support of its decision. The power has to be exercised judiciously and mere use
of the words 'disproportionate' or 'grossly disproportionate' by itself will not be sufficient.
The relief granted by the Courts must be seen to be logical and tenable within the frame
work of the law and should not incur and justify the criticism that the jurisdiction of the
Courts tends to degenerate into misplaced sympathy, generosity and private benevolence.
It is essential to maintain the integrity of legal reasoning and the legitimacy of the
conclusions. They must emanate logically from the legal findings and the judicial results
must be seen to be principled and supportable on those findings. Expansive judicial mood
of mistaken and misplaced compassion at the expense of the legitimacy of the process
will eventually lead to mutually irreconcilable situations and denude the judicial process
of its dignity, authority, predictability and respectability.
2005 AIR SCW 6271 and 1994 AIR SCW 2534, Foll. (Paras 18, 19, 20, 22)
2005 AIR SCW 6271 : AIR 2006 SC 615 (Foll.) 21
1994 AIR SCW 2534 (Foll.) 19
2004 (3) Guj LR 24453
AIR 1958 SC 311 (Foll.) 14
J. K. Das, Sr. Advocate, Amit Sharma, Anupam Lal Das, Gaurav Agrawal, for Appellants;
Shyam Diwan, Sr. Advocate, Rahul Ray, Vikram Bajaj, Sanjeev Kumar, Basumen (M/s.
Khaitan and Co.), for Respondent.
Judgement
Dr. ARIJIT PASAYAT, J. :- Appellants call in question the judgment rendered by a
learned Single Judge of the Gujarat High Court allowing the Special Civil Applications
filed by the respondent (hereinafter referred to as the 'employer').
2. The respondent had filed the applications questioning correctness of the award dated
31.12.2004 passed by the Labour Court. Another set of petitions were filed by the
employer questioning correctness of the said award by which the Labour Court had
partially allowed the reference of the concerned workmen. By the said award the
workmen were directed to be re-instated in service with continuity but without back
wages. Challenge of the workmen was to the award insofar as it provided for no
back wages and only re-instatement.
Respondent is involved in providing public utility services. In the year 1989-1990, there
were certain disputes between the management and the employees. There was an
extended strike in which a large number of employees employed by the respondent-
company participated. This disrupted the working of the plant where the concerned
workmen were employed. The respondent-company, therefore, initiated disciplinary
action against the striking employees. Against the workmen concerned, charge sheet
came to be issued. Since the workmen did not participate they were proceeded ex-parte.
Eventually, eight workmen were dismissed from the service by the respondent-company
by order dated 01.03.1990. The concerned workmen, therefore, raised industrial disputes
challenging their dismissal orders.
Earlier once the references were disposed of by the Labour Court by an award dated
23.04.1999. The workmen concerned were directed to be reinstated in service with full
back-wages from the date of dismissal till reinstatement. The employer challenged the
award of the Labour Court by filing Special Civil Application No.6055/1999. The learned
Single Judge disposed of the application on 14.5.2004 by giving certain directions, and
the proceedings were remanded back to the Labour Court. These directions read as
follows:
"11. For the reason stated above, it is necessary to quash and set aside the impugned
judgment and awards while giving the following directions:-
I. The proceedings of aforesaid Reference Cases are remanded back to the Labour Court
for re-trial.
II. When the proceedings of the aforesaid cases are remanded back to the Labour Court,
the petitioner will be at liberty to lead additional evidence to substantiate its action taken
against the respondents.
III. The respondents will be at liberty to lead evidence contra.
IV. The material already adduced before the Labour Court including the oral evidence
@page-SC101
led on behalf of the respondents will remain as it is.
V. The Labour Court to complete the hearing and final declaration of the judgment and
awards on or before 30th September, 2004.
VI. That parties to the aforesaid Reference cases will fully cooperate the Labour Court
with the hearing of the cases and no adjournment will be sought without compelling
reasons. The common judgment and award passed in Reference L.C.A. Nos. 139/1998,
146/1998, 162/1998, 145/1998 and 150/1998 dated 23rd April, 1999 are hereby ordered
to be quashed and set aside. The petitions are allowed. Rule made absolute with no order
as to costs".
4. After remand, the Labour Court took up the proceedings afresh, recorded the evidence
and passed the awards on 31.12.2004.
5. Before recording the observations and conclusions of the Labour Court in the
impugned award, it would be useful to notice the allegations made against the concerned
workmen by the employer.
6. Charges against all the workmen were identical. Twelve different charges were
levelled against them. By way of illustration the High Court took the case of appellant
No.1. The charges read as follows:
"(1) Use of impertinent languages, insult to superiors, indecent behaviour,
insubordination and any act which is subversive of discipline.
(2) Unlawful cessation of work or going on illegal strike in contravention of the
provisions of law and the standing orders and participation in a sit down strike.
(3) Inciting and/or instigating other employees to take part in an illegal strike, sit down
strike and action in furtherance of such strike launched in contravention of the provision
of law.
(4) Disorderly behaviour and conduct endangering the life or safety of any person within
the factory premises.
(5) Act of sabotage of causing damage to the work in progress or to any property of the
management wilfully.
(6) Wilful interference with the work of another workman or of a person authorised by
the management to work on its premises.
(7) Holding or participating in the meetings, demonstrations and shouting of slogans
inside the factory premises or mines or residential colony.
(8) Unauthorised absence from duty for more than eight consecutive days.
(9) Committing a nuisance in the premises of the factory, breach of these standing orders.
(10) Canvassing for trade union membership and collection of union funds within the
premises except as permissible under law.
(11) Making a false, vicious or malicious statement in public against management/factory
or officer.
(12) Instigation, incitement, abetment or furtherance of any of the above acts.
7. Out of the said charges, charge Nos. 2, 4, 7, 8, 9 and 11 were held to have been proved
while charge No.1 was held to be partially proved. Other charges were not proved.
8. The question relating to legality of the departmental proceedings was examined first.
The Labour Court held that the enquiry conducted was legal and proper, but the Labour
Court found that some of the charges were not proved. It was held that so far as the strike
is concerned it was established that the workmen were not justified in going on strike. It
was noted that undisputedly the concerned workmen had participated in a strike.
Accordingly, the Labour Court had held that denial of back wages for a period of 14 to 15
years for which the concerned workmen remained out of employment would be sufficient
punishment for the misconduct proved against them. The High Court held that once the
charges have been proved, the Labour Court ought not to have interfered with the
quantum of punishment. Accordingly, the employer's Special Civil Applications were
allowed and those filed by the workmen were dismissed. It was concluded inter alia as
follows:
"7.3 The above observations were made with regard to the scope of jurisdiction of the
High Court under Article 226 of the Constitution of India, same would however, apply
also to the powers of the Labour Court or Industrial Tribunal while examining the
conclusions arrived at by the employer during the course of departmental inquiry.
7.5 I do not find that Labour Court considered the evidence on record to come to the
above conclusions. The power of the
@page-SC102
Labour Court to interfere with the findings arrived at by the employer are extremely
narrow. If there is some evidence on record to permit the employee to draw such
conclusions, it is not for the Labour Court to decide the sufficiency of such evidence and
unless the conclusions are based on no evidence and, therefore, perverse, Labour Court
could not have interfered with the same.
7.7. The Labour Court also proceeded to consider the question of quantum of
punishment on the basis that the charge of going on illegal strike was proved against the
workmen. The Labour Court ultimately found that for the proved misconduct,
punishment of withholding of the back wages for a period of 14 to 15 years would be
sufficient punishment. The Labour Court found that order of dismissal cannot be
sustained."
9. It was concluded that since the Labour Court had held that the workmen had
proceeded on illegal strike and they were leading participants in such a strike, the Labour
Court ought not to have interfered with the quantum of punishment, specially when it was
established that the employer is a public utility service and the strike prolonged for a
period of five months.
10. The stand of learned counsel for the workmen was that before the Conciliation
Officer the employer had agreed to re-instate the workmen and to take a sympathetic
view.
11. The main plank of the appellants' arguments was that the parameters of Section 11-A
of the Act had not been considered by the High Court.
12. After the amendment of Section 11-A, the Labour Court or the Tribunal, as the case
may be, had ample power to decide the question relating to quantum of punishment.
Decisions relied upon by the High Court either related to a stage where amendment to
Section 11-A was not there or under Article 226 of the Constitution of India, 1950 (in
short the 'Constitution'). The situation is different in cases in which Section 11-A of the
Act can apply.
13. Learned counsel for the respondent submitted that the primary stand of the
respondent before the High Court was alleged agreement to consider the cases
sympathetically. That aspect was considered by the High Court in proper perspective,
considering the fact that after the arrangement was agreed to, the employer appointed a
Committee to examine the matter that no sympathy was required to be shown. The High
Court's approach is clearly correct in view of the serious nature of the allegations against
the appellants.
14. When the Labour Court found that the workmen had proceeded on illegal strike and
that they were leading participants in such a strike, the Labour Court ought not to have
interfered with the quantum of punishment especially when it was established that the
employer is a Public Utility service and that the strike prolonged for a period of four to
five months. Even in the absence of any further proof of involvement of the workmen for
other misconduct of unruly behaviour, abusing superiors officers, preventing officers
from entering the premises, preventing co-workers from resuming duties and threatening
the family members of the workmen and collecting union subscription illegally, it is
doubtful whether the Labour Court could have reduced the punishment and substituted
the order of dismissal of lesser punishment. As noted earlier, this Court in Mill Manager,
Model Mills Nagpur Ltd. v. Dharam Das, Etc. (AIR 1958 SC 311) had upheld the action
of the employer in dismissing the employees who were found to have gone on illegal
strike.
15. We are unable to accept the contention of the learned counsel for the workmen that
before the Conciliation Officer, the employer had agreed to reinstate the workmen
concerned as also the contention that having agreed to take a sympathetic review of the
situation, the employer failed to do so and that therefore, the order is rendered illegal.
16. In the agreement, the following terms were provided:
"(1) The case of eight disputed workmen will be reviewed sympathetically within a
period of one month.
(2) The workmen will give undertaking as decided.
(3) The management has proposed the principle of "No work no pay" as against which
the demand has been raised by the union which will be decided jointly by Shri
Sureshbhai and Managing Director.
(4) If the company finds that the workman has committed any misconduct or has done
something wrong after taking him in service it will be open for the management to take
steps in accordance with law."
@page-SC103
17. The High Court, as noted above, has not considered the case in the background of
Section 11-A of the Act. Under Section 11-A, wide discretion has been vested in the
Tribunal in the matter of awarding relief according to the circumstances of the case,
whereas in the writ jurisdiction it is extremely limited.
18. It is not necessary to go into in detail regarding the power exercisable under Section
11-A of the Act. The power under said Section 11-A has to be exercised judiciously and
the Industrial Tribunal or the Labour Court, as the case may be, is expected to interfere
with the decision of a management under Section 11-A of the Act only when it is satisfied
that punishment imposed by the management is wholly and shockingly disproportionate
to the degree of guilt of the workman concerned. To support its conclusion, the Industrial
Tribunal or the Labour Court, as the case may be, has to give reasons in support of its
decision. The power has to be exercised judiciously and mere use of the words
'disproportionate' or 'grossly disproportionate' by itself will not be sufficient.
19
. In recent times, there is an increasing evidence of this, perhaps well-meant but wholly
unsustainable, tendency towards a denudation of the legitimacy of judicial reasoning and
process. The reliefs granted by the Courts must be seen to be logical and tenable within
the framework of the law and should not incur and justify the criticism that the
jurisdiction of the Courts tends to degenerate into misplaced sympathy, generosity and
private benevolence. It is essential to maintain the integrity of legal reasoning and the
legitimacy of the conclusions. They must emanate logically from the legal findings and
the judicial results must be seen to be principled and supportable on those findings.
Expansive judicial mood of mistaken and misplaced compassion at the expense of the
legitimacy of the process will eventually lead to mutually irreconcilable situations and
denude the judicial process of its dignity, authority, predictability and respectability. [See:
Kerala Solvent Extractions Ltd. v. A. Unnikrishnan and Anr. [1994 (1) SCALE 631)].
1994 AIR SCW 2534
20. Though under Section 11-A, the Tribunal has the power to reduce the quantum of
punishment, it has to be done within the parameters of law. Possession of power is itself
not sufficient; it has to be exercised in accordance with law.
21
. These aspects were highlighted in Life Insurance Corporation of India v. R. Dhandapani

(AIR 2006 SC 615). 2005 AIR SCW 6271
22. Power and discretion conferred under the Section needless to say have to be
exercised judicially and judiciously. The Court exercising such power and finding the
misconduct to have been proved has to first advert to the question of necessity or
desirability to interfere with the punishment imposed and if the employer does not justify
the same on the circumstances, thereafter to consider the relief that can be granted. There
must be compelling reason to vary the punishment and it should not be done in a casual
manner.
23. We would have asked the High Court to consider that aspect. But considering the
long passage of time, it would not be proper to do so since the employer seems to be a
public utility service and the workmen's continued utility to the employer is gravely
doubtful in view of their conduct. After such a long period, it would not be in the interest
of parties to direct the High Court to consider parameters of Section 11-A of the Act.
Therefore, we have considered the matter, taking into account the background facts. The
proved misconduct is definitely serious. The respondent has, as a matter of good gesture,
offered to pay each of the appellant rupees one lakh, in view of the fact that they have
received payment upto December, 2004.
24. Taking into account all relevant aspects, the offer of respondent appears to be fair and
reasonable. Let the payment be made within eight weeks from today.
25. The appeal is disposed of accordingly with no order as to costs.
Order accordingly.
AIR 2008 SUPREME COURT 103 "Oriental Insurance Co. Ltd. v. Syed Ibrahim"
(From : 2005 AIR-Kant HCR 416)
Civil Appeal No. 4308 of 2007 (arising out of SLP (C) Nos. 8499-8500 of 2005), D/- 17
-9 -2007.
Oriental Insurance Co. Ltd. v. Syed Ibrahim and Ors.
(A) Motor Vehicles Act (59 of 1988), S.147 - MOTOR VEHICLES - INSURANCE -
PLEA -
@page-SC104
Compensation - Liability of insurer - Death of child due to dash by lorry - Plea by insurer
that it was not liable to pay compensation as there was breach of terms of policy
inasmuch as driver was not having license to drive heavy motor vehicle - Plea by insured
that he did not know as to what type of licence driver possessed could not be believed as
insured was father of driver - Insurer not liable to indemnify award.
2004 AIR SCW 663, Followed. (Paras 3, 10)
(B) Motor Vehicles Act (59 of 1988), S.168 - MOTOR VEHICLES - Compensation -
Quantum - Death of seven years old child due to dash by lorry - Award of compensation
of Rs. 51,500/- - Not liable to be interfered with.
There are some aspects of human life which are capable of monetary measurement, but
the totality of human life is like the beauty of sunrise or the splendor of the stars, beyond
the reach of monetary tape-measure. The determination of damages for loss of human life
is an extremely difficult task and it becomes all the more baffling when the deceased is a
child and/or a non-earning person. The future of a child is uncertain. A child, is earning
nothing but has a prospect to earn. Therefore, neither the income of the deceased child is
capable of assessment on estimated basis nor the financial loss suffered by the parents is
capable of mathematical computation. Thus, where child aged about 7 years died in an
accident, Award of Rs. 51,500/- by Tribunal was not liable to be interfered with. (Paras
6, 9, 10)
2006 AIR SCW 1649 : AIR 2006 SC 3440 : 2006 (3) AIR Kar R 215 10
2004 AIR SCW 663 : AIR 2004 SC 1531 (Foll.) 3, 10
2003 AIR SCW 4198 : AIR 2003 SC 3696 5
2001 AIR SCW 3086 : AIR 2001 SC 3218 7, 8
1998 AIR SCW 3105 : AIR 1998 SC 3191 5
1913 AC 1 : 107 LT 564 7
M. K. Dua, Kishore Rawat, for Appellant; K. K. Mani, R. S. Hegde, Chandra Prakash,
Rahul Tyagi, P. P. Singh, for Respondents.
Judgement
2. Challenge in these appeals is to the order passed by a learned Single Judge of the
Karnataka High Court. Appeal was preferred before the High Court questioning
correctness of the judgment and Award dated 18.01.2000 passed by the Motor Accidents
Claims Tribunal, Shimoga (in short the 'Tribunal'). The owner of lorry bearing
registration No.MYJ-6666 had filed an appeal questioning correctness of the order passed
by the Tribunal fixing the liability on him to pay compensation awarded. A cross-
objection was filed by the complainants questioning the correctness of the compensation
granted. The claim petition related to an accident which occurred on 20.11.1994 when a
child aged seven years, who was the son of claimants, had lost his life. The claimants had
filed the cross objections for enhancement of the compensation. Considering the
materials on record, the Tribunal awarded a sum of Rs.51,500/- as compensation. The
High Court by the impugned order enhanced the sum to Rs.1,52,000/-. The appellant
(hereinafter referred to as the 'insurer') was directed to indemnify the award. Insurer's
stand before the Tribunal and the High Court was that the driver driving the lorry was not
authorized to drive the lorry because he was only licenced to drive a Light Motor Vehicle
(in short the 'LMV'). When the accident took place, i.e. on 20.11.1994, the driver was
authorized to drive LMV. Subsequently, on 11.10.1996 at the time of renewal of licence it
was endorsed that he was authorized to drive Heavy Goods Vehicle (in short the 'HGV').
The High Court was of the view that the owner is not expected to know as to what type of
licence the driver possessed. If the driver was authorized to drive one type of vehicle and
was driving another type of vehicle, it cannot be said that there was wilfil breach on the
part of insured. The insurer was required to prove that there was violation of terms and
conditions of the policy and wilful breach on the part of insured as he was holding the
licence to drive any type of vehicle for which he was not licenced. It was noted by the
High Court that the owner of the vehicle may not be knowing as to what was the nature
of the licence held by the driver. Accordingly, the quantum of compensation was
enhanced and the appellant was held to be liable to pay the entire compensation.
3
. Learned counsel for the appellant-insurer submitted that the quantum, as fixed, 2004
AIR SCW 663
@page-SC105
is extremely high and is without any basis. Further the insured was the father of the driver
and it is hard to believe that he did not know as to what type of vehicle the driver was
authorized to drive. Reliance is placed on National Insurance Co. Ltd. v. Swaran Singh
(2004 (3) SCC 297) to contend that on the facts established and proved appellant has no
liability.
4. Learned counsel for the respondents submitted that a very young child lost his life and
the insurance company should not take such technical stand.
5
. In State of Haryana and Anr. v. Jasbir Kaur and Ors. (2003(7) SCC 484) it was held as
under: 2003 AIR SCW 4198
"7. It has to be kept in view that the Tribunal constituted under the Act as provided in
Section 168 is required to make an award determining the amount of compensation which
is to be in the real sense "damages" which in turn appears to it to be "just and
reasonable". It has to be borne in mind that compensation for loss of limbs or life can
hardly be weighed in golden scales. But at the same time it has to be borne in mind that
the compensation is not expected to be a windfall for the victim. Statutory provisions
clearly indicate that the compensation must be "just" and it cannot be a bonanza; not a
source of profit; but the same should not be a pittance. The courts and tribunals have a
duty to weigh the various factors and quantify the amount of compensation, which should
be just. What would be 'just" compensation is a vexed question. There can be no golden
rule applicable to all cases for measuring the value of human life or a limb. Measure of
damages cannot be arrived at by precise mathematical calculations. It would depend upon
the particular facts and circumstances, and attending peculiar or special features, if any.
Every method or mode adopted for assessing compensation has to be considered in the
background of 'just" compensation which is the pivotal consideration. Though by use of
the expression "which appears to it to be just" a wide discretion is vested in the Tribunal,
the determination has to be rational, to be done by a judicious approach and not the
outcome of whims, wild guesses and arbitrariness. The expression 'just" denotes
equitability, fairness and reasonableness, and non-arbitrary, if it is not so it cannot be just.
(See Helen C. Rebello v. Maharashtra SRTC (1999 (1) SCC 90) 1998 AIR SCW 3105
6. There are some aspects of human life which are capable of monetary measurement,
but the totality of human life is like the beauty of sunrise or the splendor of the stars,
beyond the reach of monetary tape-measure. The determination of damages for loss of
human life is an extremely difficult task and it becomes all the more baffling when the
deceased is a child and/or a non-earning person. The future of a child is uncertain. Where
the deceased was a child, he was earning nothing but had a prospect to earn. The question
of assessment of compensation, therefore, becomes stiffer. The figure of compensation in
such cases involves a good deal of guesswork. In cases, where parents are claimants,
relevant factor would be age of parents.
7. In case of the death of an infant, there may have been no actual pecuniary benefit
derived by the parents during the child's life-time. But this will not necessarily bar the
parents' claim and prospective loss will find a valid claim provided the parents establish
that they had a reasonable expectation of pecuniary benefit if the child had lived. This
principle was laid down by the House of Lords in the famous case of Taff Vale Rly. v.
Jenkins (1913) AC 1, and Lord Atkinson said thus:
".....all that is necessary is that a reasonable expectation of pecuniary benefit should be

entertained by the person who sues. It is quite true that the existence of this expectation is
an inference of fact - there must be a basis of fact from which the inference can
reasonably be drawn; but I wish to express my emphatic dissent from the proposition that
it is necessary that two of the facts without which the inference cannot be drawn are, first
that the deceased earned money in the past, and, second, that he or she contributed to the
support of the plaintiff. These are, no doubt, pregnant pieces of evidence, but they are
only pieces of evidence; and the necessary inference can I think, be drawn from
circumstances other than and different from them." (See Lata Wadhwa and Ors. v. State
of Bihar and Ors. (2001 (8) SCC 197)) 2001 AIR SCW 3086, Para 11
8. This Court in Lata Wadhwa's case (supra) while computing compensation made
distinction between deceased children
@page-SC106
falling within the age group of 5 to 10 years and age group of 10 to 15 years.
9. In cases of young children of tender age, in view of uncertainties abound, neither their
income at the time of death nor the prospects of the future increase in their income nor
chances of advancement of their career are capable of proper determination on estimated
basis. The reason is that at such an early age, the uncertainties in regard to their academic
pursuits, achievements in career and thereafter advancement in life are so many that
nothing can be assumed with reasonable certainty. Therefore, neither the income of the
deceased child is capable of assessment on estimated basis nor the financial loss suffered
by the parents is capable of mathematical computation.
10
. In view of what has been stated in Swaran Singh's case (supra) we are of the view that
the appellant-insurer was not liable to indemnify the award. However, at this juncture it
would be relevant to take note of paragraphs 11 and 19 of National Insurance Co. Ltd. v.
Kusum Rai and Others [2006(4) SCC 250]. The quantum, as awarded by the Tribunal and
deposited pursuant to the order of this Court dated 29.4.2005, is maintained. The
claimants shall be permitted to withdraw the amount so deposited along with accrued
interest. 2004 AIR SCW 663
2006 AIR SCW 1649
11. The appeals are allowed to the aforesaid extent with no order as to costs.
Appeals allowed.
AIR 2008 SUPREME COURT 106 "K. Subba Reddy v. State of Andhra Pradesh"
Criminal Appeal No. 1309 of 2007 (arising out of SLP (Cri.) No. 6306 of 2005, D/- 28 -9
-2007.
K. Subba Reddy v. State of A.P.
Prevention of Corruption Act (49 of 1988), S.7 - CORRUPTION - ILLEGAL
GRATIFICATION - COMPLAINT - Demand and acceptance of illegal gratification -
Complaint that Excise Sub-Inspector demanded bribe from complainant for return of
stock register - Complainant was asked to pay amount to accused in case Sub-Inspector
was not available - Tainted money paid and recovered from accused - No evidence to
show that accused had any knowledge that money paid was bribe money - Accused, a
home guard had no role to play in return of stock register - Evidence insufficient to
convict accused.
Cri. A. No. 1362 of 1999, D/- 9-9-2005 (AP), Reversed. (Paras 8, 9)
C. S. N. Mohan Rao, for Appellant; Mrs. D. Bharathi Reddy, for Respondent.

* Cri. Appeal No. 1362 of 1999, D/- 9-9-2005 (AP).
Judgement
1. Dr. ARIJIT PASAYAT, J. :- Leave granted.
2. Challenge in this appeal is to the judgment rendered by a learned single Judge of the
Andhra Pradesh High Court upholding the conviction of the appellant punishable under
Section 7 of the Prevention of Corruption Act, 1988 (in short the 'Act'). The appellant had
faced trial along with another accused and for the sake of convenience he is described as
A-2 hereinafter. Both the accused persons were convicted for the offence punishable
under Section 7 of the Act and sentenced to undergo rigorous imprisonment of one year
each and to pay a fine of Rs.1,000/- with default stipulation. They were, however,
acquitted of the other charges.
3. Sans unnecessary details, the prosecution version as unfolded during trial is as
follows :
A-1 worked as an Excise Sub Inspector, at Mydukur, Cuddapah District and A-2 worked
as a Home Guard. PW.1 is the de facto complainant. His father by name Subba Reddy
was running a wine shop at Mydukur known as "Eswara Wines" since 1987. PW.1
obtained a license to run another wine shop known as "New Eswara Wines" and was
running the said wine shop. He was assisting his father in the said business. On 7.2.1988
the enforcement wing of the Excise Department raided the shop of his father in his
presence. The raiding party found some stock without license. A case was registered
against PW.1 and his father and it ended in conviction in April, 1994. They preferred an
appeal and it was pending at the relevant point of time. On 27.4.1994 the Excise
Superintendent issued a show cause notice to PW-1 for cancellation of license issued in
his favour. On 3.5.1994 A.1 sealed his shop pursuant
@page-SC107
to the directions of the Excise Superintendent. On 4.5.1994 PW-1 sent Ex.P4 reply, which
was received by the Excise Superintendent under Ex.P5 acknowledgment. Subsequently,
PW.1 filed W.P. No. 9460 of 1994 before the High Court seeking a direction for the
release of the stock seized by A.1 from his shop known as "New Eswara Wines". The
High Court passed an order on 11.5.1994 in W.P.M.P. No. 11535 of 1994, in favour of
PW. 1, directing the excise officials to release the seized stocks. On 15.5.1994 PW.1
approached the Superintendent of Excise along with the order of the High Court for the
release of the stock. On the same day, the Excise Superintendent directed A.1 to open the
seal of the shop and handover the stock to PW.1. PW.1 approached A-1 to remove the
seals and to open the doors of the shop. At that time A-1 demanded Rs. 5,000/- towards
bribe for opening the seals and when PW.1 expressed his inability, A.1 reduced the
amount to Rs.3,000/-. Though A.1 opened the shop by removing seals, he refused to give
the stock register unless and until the bribe of Rs.3,000/- is paid. PW.1, who had no
inclination to pay the bribe to A.1, preferred Ex.P-10 complaint to Anti Corruption
Bureau (for short 'ACB') officials on 16.5.1994. On the same day, PW.7 and members of
the trap party reached the office of A-1 at about 5.00 p.m. Immediately, PWs. 1 and 2
went to A.1. When A-1 demanded the bribe, PW.1 told him that the money was ready, but
A-1 told him to come on the next day i.e. 17.5.1994 and further told that in case he goes
for checking of shops, the amount may be paid to A.2, i.e. the present appellant. On the
next day i.e. 17.4.1994 at about 11.30 a.m. PW-1 met PW-2 enquiring about A-l and A-2
came and asked PW-1 to give the bribe of Rs. 3,000/- as demanded by A-l. Accordingly,
PW-1 paid the amount to A.2. A.2 counted the notes, kept the amount in his left pocket.
Subsequently, the amount was recovered from A-2 and the phenolphthalein test
conducted on the fingers of both the hands and the left pant pocket of A-2 proved
positive. PW-8 after completion of investigation laid the charge sheet. Charges were
framed. Appellant denied the charges and claimed for trial.
4. The prosecution in order to establish the guilt of the accused persons examined 8
witnesses and marked 23 documents and produced 9 material objects. As noted above,
the trial Court considering the oral and documentary evidence recorded the conviction.
Before the trial Court the prosecution referred to the evidence of PW-1 who claimed that
as per the instructions of A-1 money was handed over to A-2. A-1 denied the demand and
acceptance of the bribe and pleaded that PW-1 paid the amount to A-2 to hand over the
same to one person namely, Subbarayudu for the purpose of remitting the same to the
treasury. The trial Court held that the tainted money was delivered to A-2 and it was
recovered from A-2. Accordingly, both A-1 and A-2 were guilty. The High Court by the
impugned order upheld the conviction of the two accused persons.
5. In support of the appeal, learned counsel for the appellant submitted that no definite
role was ascribed to the present appellant and no material has been adduced to show that
A-2 had any knowledge that the money was being paid to A-1 as bribe. There is not even
any suggestion, much less, no evidence to show that A-2 had any knowledge that he was
being used as a conduit for the purpose of payment of bribe to A-1. It is, therefore,
submitted that the conviction is not maintainable.
6. Learned counsel for the State on the other hand submitted that the connected SLP
(Crl.) No.2113/2006 filed by A-1 has been dismissed. Though there is no direct evidence
about the knowledge of A-2-the present appellant about the money being bribe to A-1, it
can reasonably be inferred from the background facts that he was actually a conduit and
the money was paid to him and he was asked to hand over the same to A-1. On the
contrary, the totally unaccepted plea that money was to be paid to somebody else has
been raised which has been rightly rejected by the trial Court and the High Court. The
evidence of PW-1 is of vital importance.
7. There is no material to show about the knowledge of A-2 regarding the money being
bribe. He had offered the explanation that the money was to be paid to Subbarayudu. In
this connection, reference is made to the evidence of PW-1. He has only stated that A-1
asked him to hand over the money to A-2 if he had gone out for checking of shops.
8. Appellant (A-2) at the relevant point of time was working as a Home Guard. He was
assigned different duties at different places. It is accepted in the cross
@page-SC108
examination by PW-1 that there is no Sub-treasury at Mydukur and if anybody wants to
remit money to the Government, one has to go out to different places. It is also accepted
that there is a practice of giving money to some boys working in the shops or some places
to remit the money to the Government treasury at different places indicated by the shop
owners. It was also accepted that Subbarayudu was a person who used to remit the
amount to Government on behalf of shop owners. It is the accepted position that the
present appellant had no role to play in the return of the stock register. It is the
prosecution case that A-1 had wanted the bribe to be paid for the return of the stock
register.
9. Above being the position, the material is not sufficient to hold the appellant guilty. His
conviction is accordingly set aside. He was released on bail pursuant to the order of this
Court dated 27.2.2006. His bail bonds shall stand discharged.
10. The appeal is allowed.
Appeal allowed.
AIR 2008 SUPREME COURT 108 "State of Karnataka v. Ameer Jan"
(From : 2001 (1) Kant LJ 533)
State of Karnataka v. Ameer Jan.
Prevention of Corruption Act (49 of 1988), S.19 - CORRUPTION - SANCTION FOR
PROSECUTION - INVESTIGATION - Sanction to prosecute - Given solely on basis of
report made by I.G. Police - Material collected during investigation not available before
sanctioning authority - Sanction granted is illegal - Observations to effect that since bribe
amount involved is relatively small, sanction granted is illegal - Does not lay down
correct law. (Paras 8, 15, 16)
2007 AIR SCW 1415 : AIR 2007 SC 1274 (Disting.) 13
2006 AIR SCW 1695 : AIR 2006 SC 1599 14
(1998) 2 SCC 268 12
AIR 1984 SC 684 : 1984 Cri LJ 613 11
AIR 1979 SC 677 : 1979 Cri LJ 633 10, 11
AIR 1958 SC 124 : 1958 Cri LJ 265 9
AIR 1948 PC 82 : 1948 (49) Cri LJ 261 9
Sanjay R. Hegde, Ramesh S. Jadhav, for Appellant; Sanjay Parikh, A. M. Singh, Jitin
Sahni, for Respondent.
Judgement
S. B. SINHA, J. :- Interpretation and/ or application of the provisions of Section 19 of the
Prevention of Corruption Act, 1988 (for short "the Act") falls for our consideration in this
appeal which arises out of a judgment and order dated 19.06.2000 passed by the High
Court of Karnataka at Bangalore in Criminal Appeal No. 222 of 1995.
2. Respondent herein was working as a Second Division Assistant in the Office of the
Registrar of Firms and Co-operative Societies. D.V. Thrilochana (PW-3) approached him
for grant of a certificate. He allegedly demanded a sum of Rs. 300/- from him. He was
put to trial for alleged commission of an offence under Sections 7, 13(1)(d) read with
13(2) of the Act.
3. An order of sanction was issued by the Commissioner of Stamps solely relying on or
on the basis of a purported report issued by the Inspector General of Police, Karnataka
Lokayuktha. The purported order of sanction being dated 20.07.1992 reads as under :
"In exercise of the powers conferred under Section 19(1)(c) of the Prevention of
Corruption Act, 1988, I hereby accord sanction to prosecute Sri Ameerjan, Second
Division Assistant in the office of the Registrar of Firms and Societies, Bangalore, Urban
District, Bangalore for offences punishable under Sections 7 and 13(1)(d) read with 13(2)
of the Prevention of Corruption Act, 1988 in the competent court of law."
4. The sanctioning authority examined himself before the learned Trial Judge as PW-8.
He, however, did not produce the report of the Inspector General of Police, Karnataka
Lokayuktha. Even otherwise the same was not brought on records. The learned Trial
Judge upon considering the materials brought on records by the prosecution opined that
the respondent was guilty of commission of the said offence.
By reason of the impugned judgment, the High Court, however, reversed the same
opining that the order of sanction being illegal, the judgment of conviction could not be
sustained.
5. Mr. Sanjay R. Hegde, learned counsel
@page-SC109
appearing on behalf of the State of Karanataka, in support of this appeal would submit
that an order of sanction should not be construed in a pedantic manner. The learned
counsel urged that the High Court committed a manifest error in proceeding to determine
the legality or validity of the order of sanction having regard to an irrelevant factor, viz.,
that the offence involved only a sum of Rs. 300/-.
In particular, the following findings of the High Court was criticized submitting that the
same do not lay down the correct legal position :
"...The additional reason for this view is because there is an entirely different aspect of
the law which applies to cases of this category insofar as the courts have now held that if
the amount involved is relatively small if it is a single isolated instance and there is no
evidence of habitual bribe taking or assets dis-proportionate to the known sources of
income, that the sanctioning authority will have to carefully evaluate as to whether the
interest of justice will not be adequately served by taking disciplinary action rather than
by burdening the courts with full fledged prosecution in a case of relatively trivial facts.
These are all areas of deep seated evaluation which can only be truly justified through a
proper perusal of the records. I am unable to accept the submission put forward by the
learned Public Prosecutor that the reference to the receipt of the records is sufficient to
get over the basic infirmity in the sanction order wherein the authority is quick to state
that he acted only on the basis of the letter from the Inspector General of Police..."
6. Mr. Sanjay Parikh, learned counsel appearing on behalf of the respondent, however,
would submit that the purported order of sanction dated 20.07.1992 ex facie shows a total
non-application of mind on the part of PW-8 and, thus, the impugned judgment is
unassailable.
7. We agree that an order of sanction should not be construed in a pedantic manner. But, it
is also well settled that the purpose for which an order of sanction is required to be passed
should always be borne in mind. Ordinarily, the sanctioning authority is the best person to
judge as to whether the public servant concerned should receive the protection under the
Act by refusing to accord sanction for his prosecution or not.
8. For the aforementioned purpose, indisputably, application of mind on the part of the
sanctioning authority is imperative. The order granting sanction must be demonstrative of
the fact that there had been proper application of mind on the part of the sanctioning
authority. We have noticed hereinbefore that the sanctioning authority had purported to
pass the order of sanction solely on the basis of the report made by the Inspector General
of Police, Karnataka Lokayuktha. Even the said report has not been brought on record.
Thus, whether in the said report, either in the body thereof or by annexing therewith the
relevant documents, IG Police Karnataka Lokayuktha had placed on record the materials
collected on investigation of the matter which would prima facie establish existence of
evidence in regard to the commission of the offence by the public servant concerned is
not evident. Ordinarily, before passing an order of sanction, the entire records containing
the materials collected against the accused should be placed before the sanctioning
authority. In the event, the order of sanction does not indicate application of mind as to
the materials placed before the said authority before the order of sanction was passed, the
same may be produced before the court to show that such materials had in fact been
produced.
9. The Privy Council as far back in 1948 in Gokulchand Dwarkadas Morarka v. The King
[AIR 1948 PC 82] opined that the object of the provision for sanction is that the authority
giving it should be able to consider for itself the evidence before it comes to a conclusion
that the prosecution in the circumstances be sanctioned or forbidden stating :
"In Their Lordships' view, to comply with the provisions of clause 23 it must be proved
that the sanction was given in respect of the facts constituting the offence charged. It is
plainly desirable that the facts should be referred to on the face of the sanction, but this is
not essential, since clause 23 does not require the sanction to be in any particular form,
nor even to be in writing. But if the facts constituting the offence charged are not shown
on the face of the sanction, the prosecution must prove by extraneous evidence that those
facts were placed before the sanctioning authority. The sanction to prosecute is an
important matter; it constitutes a condition precedent to the
@page-SC110
institution of the prosecution and the Government have an absolute discretion to grant or
withhold their sanction."
The said decision has been referred to by this Court, with approval, in Jaswant Singh v.
State of Punjab [AIR 1958 SC 124].
10
. Yet again in Mohd. Iqbal Ahmed v. State of Andhra Pradesh [(1979) 4 SCC 172], this
Court opined that the sanctioning authority cannot rely on the statutory presumption
contained in Section 4 of the Prevention of Corruption Act, 1947 stating : AIR 1979 SC
677, Para 4
"...In the first place there is no question of the presumption being available to the
Sanctioning Authority because at that stage the occasion for drawing a presumption never
arises since there is no case in the Court. Secondly, the presumption does not arise
automatically but only on proof of certain circumstances, that is to say, where it is proved
by evidence in the Court that the money said to have been paid to the accused was
actually recovered from his possession. It is only then that the Court may presume the
amount received would be deemed to be an illegal gratification. So far as the question of
sanction is concerned this arises before the proceedings come to the Court and the
question of drawing the presumption, therefore, does not arise at this stage..."
11
. In R.S. Nayak v. A.R. Antulay [(1984) 2 SCC 183] following Mohd. Iqbal Ahmed
(supra), this Court held : AIR 1984 SC 684, Para 23
AIR 1979 SC 677
"...The Legislature advisedly conferred power on the authority competent to remove the
public servant from the office to grant sanction for the obvious reason that that authority
alone would be able, when facts and evidence are placed before him to judge whether a
serious offence is committed or the prosecution is either frivolous or speculative. That
authority alone would be competent to judge whether on the facts alleged, there has been
an abuse or misuse of office held by the public servant. That authority would be in a
position to know what was the power conferred on the office which the public servant
holds, how that power could be abused for corrupt motive and whether prima facie it has
been so done. That competent authority alone would know the nature and functions
discharged by the public servant holding the office and whether the same has been abused
or misused. It is the vertical hierarchy between the authority competent to remove the
public servant from that office and the nature of the office held by the public servant
against whom sanction is sought which would indicate a hierarchy and which would
therefore, permit inference of knowledge about the functions and duties of the office and
its misuse or abuse by the public servant. That is why the Legislature clearly provided
that that authority alone would be competent to grant sanction which is entitled to remove
the public servant against whom sanction is sought from the office."
12
. In Mansukhlal Vithaldas Chauhan v. State of Gujarat [(1997) 7 SCC 622], this Court
held : 1997 AIR SCW 3478
"14. From a perusal of Section 6, it would appear that the Central or the State
Government or any other authority (depending upon the category of the public servant)
has the right to consider the facts of each case and to decide whether that "public servant"
is to be prosecuted or not. Since the section clearly prohibits the courts from taking
cognizance of the offences specified therein, it envisages that the Central or the State
Government or the "other authority" has not only the right to consider the question of
grant of sanction, it has also the discretion to grant or not to grant sanction."
[See also State of T.N. v. M.M. Rajendran, (1998) 9 SCC 268]
13
. Our attention, however, was drawn to a recent decision of this Court in Prakash Singh
Badal and Another v. State of Punjab and Others [(2007) 1 SCC 1] by Mr. Hegde to
contend that having regard to Sub-sections (3) and (4) of Section 19 of the Act, only
because an order of sanction contains certain irregularities, the court would not set aside
an order of conviction. 2007 AIR SCW 1415
In Prakash Singh Badal (supra), the question which arose for consideration before this
Court was as to whether an order of sanction is required to be passed in terms of Section
197 of the Code of Criminal Procedure in relation to an accused who has ceased to be a
public servant. It was in that context a question arose before this Court as to whether the
act alleged to be performed under the colour of office is for the benefit of the officer or
for his own pleasure. In the context of question as to whether the public
@page-SC111
servant concerned should receive continuous protection, it was opined :
"29. The effect of sub-sections (3) and (4) of Section 19 of the Act are of considerable
significance. In sub-section (3) the stress is on "failure of justice" and that too "in the
opinion of the court". In sub-section (4), the stress is on raising the plea at the appropriate
time. Significantly, the "failure of justice" is relatable to error, omission or irregularity in
the sanction. Therefore, mere error, omission or irregularity in sanction is ( sic not)
considered fatal unless it has resulted in failure of justice or has been occasioned thereby.
Section 19(1) is a matter of procedure and does not go to the root of jurisdiction as
observed in para 95 of Narasimha Rao case 2 . Sub-section (3)( c ) of Section 19 reduces
the rigour of prohibition. In Section 6(2) of the old Act [Section 19(2) of the Act]
question relates to doubt about authority to grant sanction and not whether sanction is
necessary."
Prakash Singh Badal (supra), therefore, is not an authority for the proposition that even
when an order of sanction is held to be wholly invalid inter alia on the premise that the
order is a nullity having been suffering from the vice of total non-application of mind.
We, therefore, are of the opinon that the said decision cannot be said to have any
application in the instant case. 2007 AIR SCW 1415
14
. We may notice that in Sankaran Moitra v. Sadhna Das and Anr. [(2006) 4 SCC 584 : JT
2006 (4) SC 34], the Majority, albeit in the context of Section 197 of the Code of
Criminal Procedure, opined : 2006 AIR SCW 1695, Para 70
"22. Learned counsel for the complainant argued that want of sanction under Section
197(1) of the Code did not affect the jurisdiction of the Court to proceed, but it was only
one of the defences available to the accused and the accused can raise the defence at the
appropriate time. We are not in a position to accept this submission. Section 197(1), its
opening words and the object sought to be achieved by it, and the decisions of this Court
earlier cited, clearly indicate that a prosecution hit by that provision cannot be launched
without the sanction contemplated. It is a condition precedent, as it were, for a successful
prosecution of a public servant when the provision is attracted, though the question may
arise necessarily not at the inception, but even at a subsequent stage. We cannot therefore
accede to the request to postpone a decision on this question."
15. In this case, the High Court called for the original records. It had gone thereinto. It
was found that except the report, no other record was made available before the
sanctioning authority. The order of sanction also stated so. PW-8 also did not have the
occasion to consider the records except the purported report.
16. We are, therefore, of the opinion that the impugned judgment does not suffer from
any legal infirmity although some observations made by the High Court, as noticed
hereinbefore, do not lay down the correct legal position. The appeal is dismissed.
Appeal dismissed.
AIR 2008 SUPREME COURT 111 "K. Radhai v. C.B.I., Cochin Unit"
(From : Kerala)
Coram : 2 C. K. THAKKER AND ALTAMAS KABIR, JJ.
-9 -2007.
K. Radhai v. C.B.I., Cochin Unit.
Constitution of India, Art.134 - Criminal P.C. (2 of 1974), S.386 - Penal Code (45 of
1860), S.420, S.468 - Prevention of Corruption Act (49 of 1988), S.13 - APPEAL -
CHEATING - FORGERY - CORRUPTION - SENTENCE REDUCTION - Accused,
bank clerk - Convicted for fraudulent withdrawal of money - Sentence of R.I. for two
years imposed for every offence - Appeal - Sentence for offence under S. 420, IPC and
for offence under Corruption Act - Reduced to imprisonment for one year by High Court
- Despite reduction period of imprisonment to be undergone remaining same as sentence
for offence under S. 468, IPC was not reduced - In circumstances of case sentence of two
years for offence under S. 468, IPC reduced to one year. (Paras 8, 9)
Romy Chacko, for Appellant; P. Parmeswaran, for Respondent.
Judgement
1. C. K. THAKKER, J. :- Leave granted.
2. This appeal is filed against the judgment and final order passed by the High Court of
Kerala on October 12, 2006 in Criminal Appeal No. 9 of 1997. By the said
@page-SC112
appeal, the High Court confirmed the conviction of the appellant recorded by the Court of
the Special Judge (CBI), Ernakulam on December 27, 1996 but reduced the sentence.
3. The facts in nutshell are that the appellant was employed as a Clerk in Syndicate Bank
at Fort Branch, Trivandrum. It was the case of the prosecution that a false bank account
got opened with Account No. 15799 in the said Branch and an amount of Rs. 42,000/-
was fraudulently withdrawn by the accused. After investigation, charge was framed
against the accused-appellant in the Court of the Special Judge, Central Bureau of
Investigation (CBI), Ernakulam for offences punishable under Sections 465, 468, 471 and
420 of the Indian Penal Code (IPC) as also under Section 13(2) read with Section 13(1)
(d) of the Prevention of Corruption Act, 1988.
4. The Special Judge, after appreciating the evidence of prosecution witnesses, held the
charge proved, convicted the appellant and ordered her to undergo rigorous imprisonment
for two years each for offences punishable under Sections 420 and 468, IPC, rigorous
imprisonment for six months each under Sections 465 and 471, IPC and rigorous
imprisonment for two years for an offence punishable under Section 13(2) read with
Section 13(1)(d) of the Prevention of Corruption Act, 1988. Fine was also imposed by the
Court.
5. Being aggrieved by the order passed by the trial Court, the appellant preferred an
appeal. The High Court held that no illegality was committed by the trial Court in finding
the appellant-accused guilty and in convicting her. With regard to sentence, however, the
High Court observed that on the facts and in the circumstances of the case, liberal view
was required to be taken. The High Court, therefore, in the operative part of the
judgment, observed :
"Last question is regarding the punishment. Counsel for the appellant argued that the
alleged offence was in 1993 and the money was taken during a catastrophic situation as
mentioned in Ext. P-19. It is further submitted that her husband has deserted her, that she
has to maintain her children, that she lost the job also because of the misconduct she has
committed and that a lenient view may be taken. Taking into account all these
circumstances together, the sentence of imprisonment for two years each imposed for the
offence punishable under Section 13(2) read with Section 13(1)(d) of the Prevention of
Corruption Act and Section 420, IPC is reduced to an imprisonment for one year each.
No interference is required with regard to the imposition of fine or punishment imposed
for other offences. The sentence of imprisonment shall run concurrently."
6. The appellant approached this Court against the order passed by the High Court. On
March 9, 2007, when the matter was called out for admission hearing, it was submitted
by the learned counsel that though the sentence of imprisonment for two years imposed
by the trial Court for an offence punishable under Section 13(2) read with Section 13(1)
(d) of the Prevention of Corruption Act, 1988 was reduced from two years to one year as
also sentence of imprisonment for two years for an offence punishable under Section 420,
IPC was reduced from two years to one year, no order of reduction of sentence was
passed so far as the offence punishable under Section 468, IPC was concerned. The
resultant effect was that though the High Court had reduced substantive sentence of the
appellant-accused from two years to one year for certain offences, sentence of two years
imposed on the appellant-accused has remained as it is in view of the fact that for an
offence punishable under Section 468, IPC, no reduction was ordered and the sentence
imposed by the trial Court continued to remain as it was. Notice was, therefore, issued by
the Court only on question of reduction of sentence.
7. We have heard learned counsel for the parties.
8. On the facts and in the circumstances of the case, in our opinion, the submission of the
learned counsel for the appellant is well founded and must be accepted. It appears that the
High Court was of the view that an order of conviction recorded by the trial Court did not
call for interference and, hence, it confirmed the conviction of the appellant. It, however,
exercised discretion by reducing the sentence imposed on the appellant. Precisely,
because of that the High Court reduced the sentence from two years to one year for the
offences punishable under the Prevention of Corruption Act, 1988 as also for an offence
punishable under Section 420, IPC. Since there was no mention
@page-SC113
of Section 468, IPC, the sentence of two years imposed on the appellant has remained as
it was.
9. On the facts and in the circumstances of the case, in our opinion, ends of justice would
be met if conviction of the appellant-accused for an offence punishable under Section
468, IPC is maintained but the substantive sentence imposed on her for the said offence is
reduced from two years to one year.
10. For the foregoing reasons, in our opinion, the appeal deserves to be partly allowed
and is accordingly allowed to the extent that the conviction of the appellant for an offence
punishable under Section 468, IPC is confirmed but the substantive sentence imposed by
the trial Court and confirmed by the High Court is reduced from two years to one year. In
other words, the appellant-accused who is convicted for offences punishable under the
Indian Penal Code and under the Prevention of Corruption Act, 1988 is ordered to
undergo rigorous imprisonment for one year. The appeal is allowed to the extent
indicated above.
Order accordingly.
AIR 2008 SUPREME COURT 113 "Bureau of Indian Standards v. S. K. Kanojia"
(From : Delhi)*
Coram : 2 Dr. A. PASAYAT AND TARUN CHATTERJEE, JJ.
Civil Appeal Nos. 4657 to 4660 of 2007 (arising out of SLP (C) Nos. 8051, 8363, 8579
and 8592 of 2006), D/- 5 -10 -2007.
Bureau of Indian Standards v. S. K. Kanojia.
Bureau of Indian Standards Act (63 of 1986), S.38 - Bureau of Indian Standards
(Recruitment to Scientific Cadre) Regulations (1988), Regn.9 (as amended in 1998 and
2004) - PROMOTION - CADRE - SERVICE MATTERS - Promotion to cadre of
Scientist Grade 'D' - Respondent-employee promoted to post of Scientific Officer Grade
'C' under Flexible Complementing Scheme (F. C. S.) - Entitled to further promotion as
Scientists in Grade 'D' upon completion of five years of service i.e. w.e.f. March, 1999 -
However, promotion scheme itself was modified on 9-11-1998 - Under revised scheme
promotion under FCS made more rigorous providing more emphasis on evaluation of
scientific and technical knowledge - Thus, promotion was not automatic - Under revised
scheme for promotion in Scientists Grade 'D' 7 years of service required in Grade of
Scientists Grade 'C' - Held, in circumstances respondent would not become eligible for
promotion to Grade 'D' in year 1999. (Paras 21, 22)
(2003) C. W. No. 4555 of 2001, D/- 16-9-2003 (Del) (reported in 2003 (107) DLT 242
9
1993 AIR SCW 1021 9
AIR 1990 SC 405 : 1990 Lab IC 369 9
Vikas Singh, A. S. G., B. K. Sood and Ms. Indra Sawhney, for Appellant; J. P. Singh and
S. S. Jauhar, for Respondent.
* LPA No. 1689 of 2005, D/- 6-2-2006 (Del.).
Judgement
1. Dr. ARIJIT PASAYAT, J. :-Leave granted.
2. These appeals are directed against the judgment of a Division Bench of the Delhi High
Court dismissing the appeals preferred against the order of a learned Single Judge who
allowed the writ petitions filed by the respondents.
3. Background facts in a nutshell are as follows :
The respondents had claimed for directions to the appellants-Bureau of Indian Standards
(hereinafter referred to as 'BIS') to promote them as Scientists-D in the pay-scale of
Rs.12000-375-16500 on the date of their completion of 5 years of service in the lower
grade under a scheme known as the "Flexible Complementing Scheme" (hereinafter
referred to as 'FCS').
The BIS is governed by statutory regulations. The relevant provision, viz. Regulation 9 of
Bureau of Indian Standards (Recruitment to Scientific Cadre) Regulation, 1988 (in short
the "Regulation") reads as follows :
"9. Promotion to the Posts upto System Scientist-E [Director (Selection Grade)] - "(1)
The selection for promotions shall be made from amongst the scientific cadre officers
serving in the next lower grade by the standing staff committee or Selection Committee
'A' as the case may be, on the recommendations of the Assessment Committee appointed
by the Director General under sub-regulation (3). Selection of officers for promotion shall
be made on the basis of assessment procedure as laid down by the Executive Committee
which shall take into
@page-SC114
account qualifications, performance, merit, seniority, potential, annual confidential
reports for previous five years and interview.
(2) The promotion of selected officers to next higher grade upto the System Scientist-E
shall be made in the same manner as laid down in the Scheme of Flexible
Complementing formulated from time to time by the Department of Science and
Technology for promotion of Scientists in scientific organizations under the Central
Government and shall be effective from the date of eligibility."
4. The BIS adopted recommendations of the Fifth Central Pay Commission, with effect
from 1-1-1996, and implemented the FCS. The FCS contemplated promotion, after
completion of certain prescribed periods of service, in relation to each post (known as the
"residency period"). These pertained not only to posts, but also to scales of pay. The
relevant residency periods were as follows :
Scales of Pay Designation Residency Minimum period linked to Performance
a) Rs. 8000-13500 Scientist B 3 years

b) Rs. 10000-15200 Scientist C 4 years
c) Rs. 12000-16500 Scientist D 4 years
d) Rs. 14300-18300 Scientist E 5 years
5. The respondents were in the pay-scale of Rs.10,000-15,200, and working as Scientist-

C, with effect from 10.3.1994 and were to have been promoted to Scientist-D, after five
years in 1999. The promotions were granted only in March, 2003, with effect from
March, 2001. The delay was attributed by the BIS, to a contemplated change in the
Service Regulations. Changes were introduced to the FCS by an Office Memorandum
dated 9th November, 1998 which modified the eligibility for benefits of the FCS linked to
the Annual Confidential Reports of the person concerned. Regulation 9 was amended by
notification dated 3rd May, 2002, in exercise of the powers conferred by Section 38 of
the Bureau of Indian Standards Act, 1986 (in short the "Act") to read as follows :
"9. Protmotion to the Posts up to Scientist-G- "(1) The selection for promotions shall be
made from amongst the Scientific Cadre Officers serving in the next lower grade by the
Assessment Committee appointed by the Director General under sub-regulation (2).
Selection of officers for promotion shall be made in the same manner as laid down in the
Scheme of Flexible Complementing formulated from time to time by the Central
Government for promotion of Scientists in Scientific Organizations under the Central
Government and shall be effective from the date of eligibility. The Scheme of Flexible
Complementing as formulated by the Central Government vide OM No.2/41/P1C-97,
dated the 9th November, 1998 would be effective for Scientific Cadre Officers upto and
inclusive of the level of Scientist-E from 9th November, 1998 and for the levels of
Scientist-F and Scientist G, the date of promotion would be effective from the date of
Gazette Notification of this revised regulation."
6. The rationale for the amendment was spelt out in Explanatory Memorandum to the
notification, which stated, inter alia that :
"The Scheme of Flexible Complementing (FCS) was earlier introduced based on the
guidelines issued by the Department of Science and Technology (DST) in November,
1983 for all Scientific and Technical Organizations/Institutions of the Government of
India, which was later modified vide Department of Science and Technology's OM
No.A.42014/2/86-Admn.1(A) dated the 28th May, 1986. According to this scheme, the
promotion of an officer in scientific service from one grade to the next higher grade
would take place after a prescribed period of five years' residency service on the basis of
assessment procedure as laid down by individual organization. Promotions made under
this Scheme would be insitu and with effect from the date of their eligibility as per the
residency period and personal to the officer concerned irrespective of the occurrence of
the vacancy in the higher grade. Accordingly, in Bureau of Indian Standards, all Scientific
Cadre Officers were considered eligible for promotion from one grade to the next higher
grade after they had put in 5
@page-SC115
years of residency service in that grade. Thereafter, based on the assessment procedure as
laid down by the Executive Committee of Bureau of Indian Standards, which shall take
into account qualifications, performance, merit, seniority, potential, annual confidential
reports for previous five years and interview by the' Assessment Committee appointed by
the Director General, the officers would be promoted to the next higher grade as per their
date of eligibility."
7. The respondents had approached the court, complaining that the BIS acted arbitrarily
in withholding promotions to them to the cadre of Scientist-D, from the date of their
eligibility; instead of the promotion rightfully due to them in 1999, they were given the
benefit in 2001. During the pendency of their writ petitions, another notification was
issued on 12-8-2004, and published in the Gazette of India. By this notification
Regulation 9 was again amended. The Explanatory Memorandum clarified the purpose
behind the change. It stated that BIS Regulations, 2002 adopted the Scheme formulated
by the Central Government and its benefits were to be given to employees with effect
from 9th November, 1998. It was felt that the BIS did not possess powers to implement
the Scheme retrospectively. The policy of the Central Government was that the Scheme
should apply to the Scientific Cadre Officers of the BIS only prospectively. Therefore, the
Notification was issued to rectify a mistake. Regulation 9, as amended in 2004, read as
follows :
"9. Promotion to the Posts up to Scientist-G- "(1) The selection for promotions shall be
made from amongst the Scientific Cadre Officers serving in the next lower grade by the
Assessment Committee appointed by the Director General under sub-regulation (2).
Selection of officers for promotion shall be made in the same manner as laid down in the
Scheme of Flexible Complementing formulated from time to time by the Central
Government for promotion of Scientists in Scientific Organizations under the Central
Government subject to the condition that the said Scheme shall be applicable to the
Scientific Cadre Officers of the Bureau from the date of commencement of the Bureau of
Indian Standards (Recruitment of Scientific Cadre) Amendment Regulations, 2004."
8. The original writ petitioners had also urged that other employees, viz Shri H.J.S.
Pasricha, Smt. D.G. Dastidar, Shri G. Bhaskar, Shri Bijender Kumar Jain, Shri Jayanta
Roy Chowdhury and Smt. Mala Ayyappan, had been given the benefit of automatic
'promotion' to Class-D in December 1998, although by that time the proposed changes
had already been effected.
9
. The learned Single Judge allowed the writ petitions of the respondents, relying upon the
decisions of this Court in State of Andhra Pradesh and Ors. v. Sreenivasa Rao and Ors.
(1993 (3) SCC 285); P. Mahendran and Ors. v. State of Karnataka and Ors. (1990 (1)
SCC 411); P. Murugesan and Ors. v. State of Tamil Nadu and Ors. (1993 (2) SCC 340);
and a decision of this Court, in CW No. 4555/2001 entitled Mr. N.C.Jain and Ors. v. New
Delhi Municipal Council and Ors., decided on September 16, 2003. He rejected the
contention of the appellant BIS that by virtue of the amendments, particularly of 2004, it
was no longer possible to grant benefit of retrospective promotion to any official or
employee. AIR 1990 SC 405
1993 AIR SCW 1021
10. The learned Single Judge held as follows :

"In 1999 the Petitioners had become entitled to 'promotion' to Group-D and at that time
Rules to the contrary did not exist. The then prevailing FCS ought to have therefore been
implemented in 1999 itself and had this been so done the Petitioners would have been
promoted to Group-D after the expiry of five years' service in Group-C. It should also not
be overlooked that the effect of the Notification of 12th August, 2004 was to return to the
regime which entitled the Petitioner to automatic progression to Group-D on their
completing five years in Group-C.
In these circumstances, the Writ Petitions are allowed and the respondents are directed to
promote the Petitioners to the post of Scientist-D in the pay-scale of Rs. 12,000-375-
16,500/- as soon as each of the petitioners had rendered five years' service in the post of
Scientist-C as per the Flexible Complementing Scheme applicable on the said date."
11. The appellants preferred writ appeals before the High Court which by the impugned
judgment, dismissed the same. The conclusions of the High Court are set out in
paragraphs 13 and 14 of the judgment. The High Court was of the view that the
amendment introduced in 2004 for the first time
@page-SC116
sought to introduce a bar against retrospective promotions i.e. from the date the eligibility
conditions of the officials aspiring for promotion were fulfilled. Before the amendment
no such prohibition or condition existed. It was held that the amendment is not
retrospective in its operation. It was held that though the term "retrospective" was used,
the promotion under the previous scheme as modified in 1996 and amended in 1998 and
2002 created an entitlement in favour of the officer in a feeder cadre to be promoted from
the date he fulfilled the eligibility condition. This, according to the High Court, is evident
from the Notification dated 9.11.1998 and the amendment to Regulation 9 effective from
2002. The limiting condition of the date of promotion being after the due date of
application of the notification was in respect of promotions above the level of Scientist-E.
The High Court felt that the rationale for this conclusion was that merely the post was
included in the Scheme for the first time on 3.5.2002 and the right to be considered and
granted 'in situ' promotion to the petitioners from the dates they acquired eligibility after
completion of the residency period did not stand altered. The prohibition introduced in
2004 was prospective and could not take away their right to be dealt with as on the date
they became eligible to be promoted, which indeed was the date when the promotion was
to be effective. It was held that the respondents were promoted in 2003.
12. In support of the appeals, learned counsel for the appellants submitted that the true
effect of Regulation 9 has not been duly considered. The issue relates to entitlement of
Scientific Officers in Grade 'C' to promotion under Scientific Officer in Grade 'D'. FCS
was introduced by a Notification issued in the year 1983/1986 wherein the same to be
applicable to three levels i.e. S-I level in the pay scale of Rs.700-1300, S-II level in the
pay scale of Rs.1100-1600 and S-III level in the pay scale of Rs.1500-2000. It was further
provided in the Scheme that in exceptional cases the Scheme may be extended to next
higher level i.e. S-IV in the pay scale of Rs.1800-2250 on merits depending upon the
extent of stagnation at that level. In the year 1988 the BIS recruitment to Scientific Cadre
Regulations were promulgated. In order to give benefit to Scientific Cadre Officers of the
BIS, Regulation 9 made the requisite provision.
13. It is pointed out that the order of the learned Single Judge and the judgment of the
Division Bench have failed to take notice of a very crucial expression i.e. 'from time to
time'. On 16.3.1994 the respondents were promoted to the post of Scientific Grade 'C'
under the FCS. As the Scheme stood then the respondents would be entitled to further
promotion as Scientists in Grade 'D' under FCS upon completion of five years of service
i.e. w.e.f. March, 1999 provided the respondents made it under assessment procedure laid
down by BIS. Before the respondents became eligible for promotion the Scheme itself
was modified on 9.11.1998 where the minimum residency period for promotion was
reduced from five years to four years. However, the number of years in which the
Scientific Officer became eligible was to be determined under a graded Scheme
depending upon the merits in the ACR. Under the revised Scheme of 1998 the promotion
under FCS was made more rigorous providing more emphasis on evaluation of scientific
and technical knowledge so that only scientists with demonstrable achievements or
higher level of technical merit would be recommended for promotion under the FCS.
Under the revised Scheme, respondents became eligible for promotion in Scientists Grade
'D' after completion of 7 years of service in the Grade of Scientists Grade 'C'. Under the
amended Scheme of 9.11.1998 Scientists in Grade 'F' as well as in Grade 'G' were also
included for being given the benefit of FCS. Since the Regulations of 1998 more
particularly, Regulation 9 provided for the benefit of FCS only upto Scientists Grade 'E',
there was necessity to amend the Regulation so that Scientists Grade 'F' and 'G' could also
be given the benefit. With effect from 3.5.2002, Regulation 9 was amended.
14. It is submitted that before the respondents became eligible the Scheme itself had
undergone a change and 1986 Scheme had been superseded in view of introduction of the
new Scheme on 9.11.1998. There was no vested right to be considered for promotion
merely on completion of 5 years of service. The High Court erroneously held that even if
the amendment existed there was vested right. In essence, it was submitted that both the
learned Single Judge as well as the Division Bench committed a manifest mistake by
holding that the respondents had a vested right in the
@page-SC117
year 1999 to be promoted to the Grade of Scientists Grade 'D' on mere completion of five
years of service. It was also submitted that out of 180 officers who were covered by the
change in the Scheme w.e.f. 9.11.1998 only four had filed writ petitions and rest accepted
the change.
15. In response, learned counsel for the respondents submitted that the explanatory
memorandum at the time of amendment on 12.8.2004 made the position clear and the
High Court's view was right. It was clearly stated that the appellant had no power to
implement the scheme retrospectively. The respondents are entitled to be considered as
per the earlier FCS and promoted in situ w.e.f. 10.3.1999. Therefore, it was submitted that
the appeals deserve to be dismissed.
16. Under the amended Scheme there are gradings according to the ACRs and the criteria
for being considered for promotion under the FCS have been laid down. They read as
follows :
"(a) All officers will be first screened on the basis of gradings in the Annual Confidential
Reports (ACRs) for consideration for promotion; the ACRs should be assessed on a 10
point scale giving 10 marks for "outstanding", 8 marks for "very good", 6 marks for
"good", 4 marks for "average" and 0 for "poor" and only those officers who satisfy the
minimum residency period linked to their performance as
Number of years in the grade

3 4 5 6 7 8
Minimum percentage for eligibility
Scientist B to Scientist C 90% 80% 70% 65% 60% ....

Scientist C to Scientist D ... 90% 80% 75% 70% 60%
Scientist D to Scientist E ... 90% 80% 75% 70% 60%
Scientist E to Scientist F ... ... 90% 80% 75% 70%
Scientist F to Scientist G ... ... 90% 80% 75% 70%
Exceptionally meritorious candidates with all outstanding gradings may be granted

relaxation in the residency period, the relaxation being not more than one year on any
single occasion. Such a relaxation will be limited to a maximum of two occasions in their
entire career."
17. The revised Scheme of 1998 shows the assessment norms for promotion. Definite
focus was on evaluation of scientific and technical knowledge. Under the revised Scheme
the respondents became eligible for promotion on completion of 7 years of service.
Undisputedly, the Regulations of 1998 in Regulation 9 provided that the benefit of FCS
was available upto Scientists grade 'E'. It was therefore necessary to amend the
Regulation so that the Scientists grade "F' and 'G' could be given the benefit of FCS.
18. The crucial expressions in the Notification of 9th November, 1998 contain certain
stipulations which are as under. In clause 2 it has been inter alia stated as follows :
".........It has also been decided that assessment norms for promotions under the Flexible
Complementing Scheme should be rigorous with due emphasis on evaluation of scientific
and technical knowledge so that only the scientists who have to their credit demonstrable
achievements or higher level of technical merit are recommended for promotion under
the Flexible Complementing Scheme."
19. Again in Clause 3 it has been stated as follows :
".....................Accordingly, all the posts covered under the Flexible Complementing
Scheme shall carry the following uniform scales of pay, designations and the minimum
residency period linked to performance :-
Scales of Pay Designation Minimum Residency Period linked to Performance

a) Rs. 8000-13500 Scientist B 3 years
b) Rs. 10000-15200 Scientist C 4 years
c) Rs. 12000-16500 Scientist D 4 years
d) Rs. 14300-18300 Scientist E 5 years
e) Rs. 16400-20000 Scientist F 5 years
f) Rs. 18400-22400 Scientist G Not available
@page-SC118
In order to give immediate effect to the decision contained in this para an umbrella
Notification has been issued vide G.S.R. No.660(E) dated 9.11.1998"
20. As a bare reading of above quoted clause goes to show that it was intended to give
immediate effect to the decision, an umbrella Notification G.S.R.No.660(E) dated
9.11.1998 was being issued. The criteria for promotion have already been quoted above.
21. Stand before the High Court was that the eligibility was after 1999 and there was a
vested right. It is to be noted that under the 1998 Regulations also the same could not
have been applied to Grade 'F' and 'G' and so the amendment as noted above was
necessary. Learned Single Judge was not right in holding that in 1999 the respondents
had become eligible for promotion to Grade 'D' and at that time rules to the contrary did
not exist, overlooking the fact that in 1998 itself amendment had brought in the
prevailing FCS on the basis of 1998 Notification and not under 1986 Regulations.
Learned Single Judge was also not correct in directing promotion because promotion is
not automatic and the Annual Confidential Reports had to be looked into. The change in
2004 does not in any way cover the respondents.
22. Regulation 9 provided that the promotion of selected officers under the FCS was to be
on the basis of evaluation from "time to time". That being so, the learned Single Judge
and the Division Bench were not correct in their views. The appeals deserve to be
allowed which we direct. The order of the learned Single Judge as affirmed by the High
Court stands set aside. There will be no order as to costs.
Appeals allowed.
AIR 2008 SUPREME COURT 118 "Citibank N. A. v. TLC Marketing PLC"
Coram : 1 LOKESHWAR SINGH PANTA, J.
Arbitration Appln. (C) No. 1 of 2007, D/- 5 -10 -2007.
Citibank N. A. v. TLC Marketing PLC and Anr.
Arbitration and Conciliation Act (26 of 1996), S.10(1), S.10(2) - ARBITRATION AND
CONCILIATION - APPOINTMENT - Appointment of arbitrator - Arbitration Clause
imports in itself all disputes between parties - Assertion of claim by applicant in form of
letters and notices issued to respondents - Not rejected outright by respondents -
However, parties failed to determine even number of arbitrators as per S. 10(1) - Thus,
requirement of S. 10(2) fully attracted - Sole arbitrator appointed to resolve disputes and
differences between parties.
The contract is a commercial document and must be interpreted in a manner to give
efficacy to the contract rather than to invalidate it. Narrow technical approach is not
proper. The Arbitration Clause imports in itself all disputes and the arbitration agreement
cannot be said to be as vague or uncertain as to be unenforceable. In said clause of the
agreement, the words "any controversy, claim or dispute arising out of the interpretation,
application or in connection with this agreement which cannot be resolved amicably"
could embrace within its fold all matter which can legitimately arise in connection with
the agreement. The arbitration clause does not put any cap on the powers of the arbitrator
to decide any particular claim or counter claim. The words contained in arbitration clause
are wide enough and as the question turned upon the true interpretation of the contract
and the parties have to take recourse to the contract to establish their claim and counter
claim, if any, having regard to the fact that the existence of an agreement is not denied
and that there has been an assertion of claim
@page-SC119
by the applicant in the forms of letters and notices issued to the respondents and
responses of respondents thereto, the matter would be arbitrable. The conduct of the
respondents would show that on receipt of the communications and notices of the
applicant, the same were not rejected outright by them. Therefore, in view of the
instances of breaches of the terms and conditions of the relevant clauses of the agreement
coupled with the breaches of specific obligations and responsibilities contained in the
Appendix(s) and Enclosures attached and incorporated by reference as an integral part of
the agreement and having regard to the words used in arbitration clause of the agreement
and having regard to the fact that the parties have failed to determine an even number of
arbitrators as per the provisions of S. 10(1) the requirement of S. 10(2) would be fully
attracted in present proceedings, in other words, the arbitration agreement deemed to be
one providing for a sole arbitrator. Therefore, Court appointed sole arbitrator to resolve
the disputes and differences between the parties emanating from the contract.
AIR 1988 SC 1007, Disting. (Paras 29, 30)
A composition of the arbitral tribunal comprising of three arbitrators, as suggested by the
respondents, is not necessary or expedient nor it can be said to be fair and reasonable in
the larger interests of the parties because such an order may lead to burdening the parties
to bear extra amounts of money in prosecuting the arbitral proceedings which as per the
objectives of the Act are less expensive and more efficacious remedy to the parties to
settle their disputes. (Para 16)
AIR 1988 SC 1007 (Disting.) 15
R. S. Suri, for Petitioner; A. K. Ganguly and Soli J. Sorabjee, Sr. Advocates, Nikhil
Nayyar, Ankit Singha, TVSR Sreyas and N. Ganpathy, for Respondents.
Judgement
ORDER :- The applicant-Citibank, N.A. preferred this application under Sections 11(5),
11(10) and 11(12) read with Section 10 of the Arbitration and Conciliation Act, 1996
[hereinafter referred to as 'the Act'] praying for appointment of sole Arbitrator in an
'international commercial arbitration' in terms of Section 2(f) of the Act, to adjudicate the
dispute between the parties.
2. The applicant-Citibank, is a national banking association duly constituted, registered
and in existence in accordance with the laws of the United State of America now in force
and having its head office at 399 Park Avenue, Borough of Manhattan, City of New York
and having an office in India among other places at Citigroup Centre, G. C-61, Bandra-
Kurla Complex, Bandra (East), Mumbai. The applicant-Citibank, being engaged in
banking business in India pursuant to licences and approvals from relevant authorities
including Reserve Bank of India, inter alia, issues Credit and Debit Cards collectively
[hereinafter referred to as 'Citibank Cards'].
3. The respondent No.1-TLC Marketing PLC (for short 'TLC'], is a company
incorporated under the provisions of the laws in force in the United Kingdom having its
registered office at 54, Banker Street, London WIU 7BU. TLC is a company engaged in
the business of marketing and selling inter alia leisure, life-style and travel services.
4. The respondent No.2-Wunderman India Pvt. Ltd. (for short 'WIPL'] is an Indian
company incorporated under the provisions of the Companies Act, 1956 and has its
registered office at Kalpataru Synergy, 2nd Floor, Opp. Grand Hyatt, Off Western
Highway, Vakola, Santa Cruz (East), Mumbai. Respondent No.2-WIPL is an exclusive
marketing and fulfilling agent of respondent No.1-TLC for the Indian sub-continent.
5. The applicant-Citibank states that the respondents-TLC and WIPL are the alter ego of
each other and their interests are identical, co-existent and co-terminus and for all
practical purposes they are one party and their obligations are joint and several in respect
of the subject-matter of the present application. It is the case of the applicant-Citibank
that in September, 2005, both the respondents-TLC and WIPL had approached the
Citibank and made a series of claims and representations about their expertise,
background, financial wherewithal and intent to associate with the applicant-Citibank to
implement a Scheme to reward and acknowledge the valued association of loyal
customers of the applicant- Citibank. The respondents-TLC and WIPL represented to the
applicant-Citibank that they were the promoters and incentive companies operating in
various markets around the world and they could offer their clients fabulous consumer
propositions and the corresponding
@page-SC120
service to support such promotions in order to help their clients to meet their objectives
such as customer retention, loyalty, etc. etc. Respondent No.2-WIPL further represented
to the applicant-Citibank that its proposition was designed to meet the expectations
desired to be achieved by the applicant-Citibank. It is pleaded by the applicant-Citibank
that relying upon the said claims, assurances and representations made by the
respondents-TLC and WIPL, as regards their expertise in handling such arrangements, a
tripartite agreement was entered into between the parties on 04.10.2005. The agreement
became operational w.e.f. 01.10.2005 and was to be valid till 31.08.2006.
6. It is pleaded by the applicant-Citibank that under the Scheme it was agreed to by the
parties to the agreement that the eligible credit card customers of the applicant-Citibank,
having fulfilled certain specific criteria, were entitled to 'Free return flight vouchers' on
air routes within India subject to the applicable terms and conditions. As and when, any
of the customers of the applicant-Citibank qualified/fulfilled the eligibility criteria he/she
would get a voucher from the applicant-Citibank. The customers, after the receipt of the
vouchers, had the option to voluntarily complete the details required in the voucher
including the choice of three destinations and three dates of travel but not earlier than 30
days from the date of signing the voucher and sending the same to the applicant-Citibank.
The respondent No.2-WIPL was required to perform various tasks including, but not
limited to contacting the customer, checking seat availability, confirming the booking
request according to preferences and sending confirmation to customers of their
preference of travel date/destination. The applicant-Citibank and the respondents - TLC
and WIPL agreed to the Scheme called the "Fly for Sure" programme, which was
envisaged by the applicant-Citibank to be effective from 01.10.2005 until 31.12.2005.
The applicant-Citibank contracted for buying 1,00,000 return air-ticket vouchers from the
respondents-TLC and WIPL in anticipation of the success of the Scheme for a
consideration of Rs.432/- plus applicable taxes per voucher and, accordingly, had paid for
the same in accordance with Appendix-II of the agreement. According to the applicant-
Citibank, it was the responsibility of the respondents-TLC and WIPL to ensure
fulfillment of the Scheme to the satisfaction of the customers. It is stated that under the
Scheme, 35,000 card members of the applicant-Citibank were found to be eligible for
availing of the 'free return air-ticket' to be provided by the respondents-TLC and WIPL.
The applicant-Citibank forwarded the vouchers completed by the eligible and interested
card members to respondent No.2-WIPL in accordance with the procedure agreed to by
the parties. The vouchers/requests forwarded by the applicant-Citibank were to be
honoured by the respondents-TLC and WIPL by conducting themselves in a manner as
stipulated under the agreement. It is further stated that the respondents-TLC and WIPL
could only have offered alternative dates or destinations to the customer(s) after having
obtained the consent of the said customer(s) towards such alterations.
7. It is also stated that at the initial stage the operation and implementation of the Scheme
progressed as per the agreement between the parties. However, since January, 2006 the
applicant-Citibank started receiving complaints from its eligible customers indicating
deficiencies on the part of the respondents-TLC and WIPL. Both the respondents seemed
to have started indulging in a number of questionable practices, such as deliberately not
fulfilling/honouring their commitments which they had made to the eligible
customers/card members in the 'booking confirmation' by calling them on the dates close
to their travel dates and forcing them to postpone dates of travel and further pressurizing
the customers/card members into opting for destinations and dates not
preferred/requested for and cancelling the original 'booking confirmations'. The
applicant-Citibank through various communications has brought all the complaints to the
notice of the respondents-TLC and WIPL and repeatedly requested both of them to
discharge their commitments as contained in the agreement. It is stated that in spite of
repeated communications being sent by the representatives and officials of the applicant-
Citibank to the respondents-TLC and WIPL, they merely gave assurances and no actual
measures were undertaken by the respondents to solve such complaints of the customers.
The applicant-Citibank indicated various instances of breaches of the terms of the
agreement which were being repeatedly committed by the respondents
@page-SC121
-TLC and WIPL that needed to be remedied, failing which the applicant-Citibank stood in
a position of incurring irreparable losses, loss of goodwill and reputation along with the
possibility of being subjected to various proceedings that were being threatened by the
affected customers. The responses dated 30.04.2006 and 04.05.2006 received from the
legal counsel of respondent No. 1-TLC indicated that the respondents have found the
Scheme to be 'over sold' and allegedly to be commercially unviable to honour the
commitments and there was a clear indication in the said responses of abdication on the
part of the respondents-TLC and WIPL of their responsibilities and obligations under the
agreement inasmuch as new conditions to perform the obligations were set out which
suggested payment of further amount which was dehors the terms of the agreement itself.
It is also submitted that in the circumstances created by the respondents-TLC and WIPL,
the applicant-Citibank vide its letter dated 10.05.2006 informed the respondents-TLC and
WIPL of the termination of their involvement under the agreement w.e.f. 10.05.2006
which was necessitated due to the acts of omission and commission on their part and
continued loss of goodwill and reputation of the applicant-Citibank. The applicant-
Citibank, subsequent to the termination of the involvement of the respondents-TLC and
WIPL under the agreement, was compelled to take the remedial action of providing
return air-tickets to its eligible customers/card holders. In view of the failure of the
respondents-TLC and WIPL to perform their respective obligations in terms of the
agreement and in order to resolve the disputes, the applicant-Citibank issued a legal
notice dated 15.07.2006 through its counsel to the respondents-TLC and WIPL, thereby
invoking the provisions of Clause 10 of the agreement dealing with the resolution of
disputes which have arisen between the parties. The applicant-Citibank in the said notice
suggested the name of Hon'ble Mr. Justice S. P. Bharucha, Former Chief Justice of India,
to act as the sole Arbitrator.
8. In response to the legal notice dated 15.07.2006 of the applicant-Citibank, respondent
No. 1-TLC vide its communication dated 14.08.2006 and respondent No. 2-WIPL vide its
communication dated 11.08.2006 not only repudiated the claim of the applicant-Citibank,
but also declined to accept the nomination of Hon'ble Mr. Justice S. P. Bharucha, Former
Chief Justice of India, as the sole Arbitrator. They recommended the disputes to be
referred to arbitration comprising of three arbitrators, one nominated by each of the three
parties to the agreement. They proposed the name of Hon'ble Mr. Justice M. H. Kania,
Former Chief Justice of India, to be appointed as an Arbitrator.
9. In the above stated premises, the applicant-Citibank has now filed the present
application praying for the appointment of sole Arbitrator in terms of the agreement and
the law.
10. In response to the application, respondent No. 1-TLC submitted that the Scheme
offered by the applicant-Citibank to its qualified card members was not the Scheme
contracted for in the agreement and, therefore, in any event there could be no liability on
respondent No.1-TLC for any alleged loss or damage under the agreement. It is stated
that the application is not maintainable inasmuch as no valid notice invoking arbitration
under Section 21 of the Act has at all been issued and notice dated 15.07.2006 does not
even state as to what are the losses alleged to have been suffered which the applicant-
Citibank seeks to claim in the arbitration proceedings. The said notice is very vague as no
particular dispute or claim is sought to be referred to and it does not state what, if any,
losses were caused to the applicant as a result of the alleged breach of the agreement. It is
also submitted that the terms of the agreement are limited to the provisions of warranties,
confidentiality, indemnification, governing law and obligations of parties arising prior to
the expiration or termination. There is no valid or binding arbitration clause in existence
on and with effect from 10.05.2006, i.e. the date of wrongful repudiation of contract by
the applicant-Citibank, which was accepted by the respondents, therefore, there exists no
dispute that needs reference to the arbitration. It is contended that the respondents-TLC
and WIPL are separate and different companies incorporated in different jurisdictions,
with different ownership and control and under no circumstances can they be treated as
one party. It is clarified that the applicant-Citibank did not strictly incorporate the terms
of Appendix-V to the agreement in its offer to its card members, but offered a Scheme in
material variation
@page-SC122
without the consent of respondent No. 1-TLC, a fact which came to its knowledge only
after the offer was sent out by the applicant-Citibank. Further, it is stated that the
conditions required for satisfaction of Sections 11(5), 11(10) and 11(12) of the Act are not
satisfied by the applicant-Citibank and, therefore, on the above-stated premises, the
application is liable to be dismissed.
11. Shri T. R. Ramachandran, Business Manager-Credit Cards of the applicant-Citibank
in rejoinder affidavit has reiterated and reasserted the averments made in the arbitration
application and repudiated the defence pleaded by respondent No. 1-TLC in its counter
affidavit. It is submitted that notwithstanding the obligations of the respondents-TLC and
WIPL as provided for in the agreement, they had repeatedly refused to take action to
correct the breaches of the agreement as intimated by the applicant-Citibank. Further, in
the e-mail dated 21.04.2006 sent by Mr. Sean Langley (Operations Director), followed by
communication dated 04.05.2006 sent through counsel, respondent No. 1-TLC had
offered two "options" for proceeding, each of which would have modified substantially
the prior agreement without addressing or correcting the breaches cited by the applicant-
Citibank, i.e. failing to rectify their failure to provide return tickets to the eligible
customers/card members as envisaged under the agreement and as such the offer in
question per se tantamounts to a fundamental breach of the agreement on the part of the
respondents-TLC and WIPL. It is also stated that irrespective of the number of the
customers who would have redeemed their vouchers, in terms of Clause 7 and, in
particular, Appendix-I to the agreement, it was clearly the responsibility of the
respondents-TLC and WIPL to ensure fulfillment of the Scheme to the satisfaction of the
customers.
12. No counter has been filed by respondent No.2-WIPL.
13. I have heard learned counsel for the parties and perused the record.
14. Mr. R. S. Suri, learned counsel appearing for the applicant contended that Citibank
had received various complaints from thousands of its eligible customers indicating series
of deficiencies on the part of the respondents-TLC and WIPL in implementation of the
Scheme offering 'Free return flight voucher' and 'World for free destinations' to such
Citibank card- members, who have fulfilled certain specified criteria on selective
domestic air routes in India and the applicant-Citibank taking serious note of the said
complaints, sent various communications and repeatedly requested the respondents-TLC
and WIPL to comply with the terms of the agreement, but both the respondents have
failed to settle the dispute amicably. He submitted that in order to save its goodwill,
reputation and high standards of service and to mitigate the damages directly resulting
from the breach of the terms of the agreement, the applicant-Citibank was compelled to
take the remedial action of providing return air tickets to its eligible customers/card
members, the expenses of which were, of course, to be borne by both the respondents as
provided in the agreement and the circumstances created by the respondents-TLC and
WIPL manifestly provided grounds for termination of the agreement under Clause 23 and
having invoked the arbitration Clause 10, the applicant-Citibank had issued notices under
Clause 24 to both the respondents requesting them to resolve the disputes/differences
under the Act through a sole Arbitrator in terms of Section 10(2) of the Act.
15
. Mr. A. K. Ganguli, learned Senior Advocate appearing on behalf of respondent No.1-
TLC, resisted the aforesaid submissions of Mr. R. S. Suri. According to Mr. Ganguli, the
applicant-Citibank has made vague assertion of existence of dispute and has not
identified or pointed out as to what exactly is the dispute or precise claim, which has
arisen for invoking the arbitration clause, but despite the communications and
representations made by respondent No.1-TLC to the applicant-Citibank to spell out the
disputes which are referable to arbitration, no valid notice invoking arbitration clause has
at all been issued to the respondent. He submitted that notice dated 15.07.2006 issued by
the applicant-Citibank is vague as it does not state as to what are the obligations which
were breached and what, if any, loss was caused as a result of such alleged breaches to
the applicant-Citibank. He next contended that the respondents-TLC and WIPL are
separate and different companies incorporated in different jurisdictions, with different
ownership and control and under no circumstances can they be treated as one party as
contended by the applicant-Citibank. He finally prays for the dismissal of the application.
In AIR 1988 SC 1007
@page-SC123
support of the submission that there must be a precise dispute raised by the parties,
reliance is placed in the case of Major (Retd.) Inder Singh Rekhi v. Delhi Development
Authority [(1988) 2 SCC 338]. I have the advantage of going through the said judgment
in which it is held by this Court that the existence of dispute is essential for appointment
of an arbitrator under Section 8 or a reference under Section 20 of the Arbitration Act,
1940. There can be a dispute only when a claim is asserted by one party and denied by
other on whatever grounds. Mere failure or inaction to pay does not lead to the inference
of the existence of dispute. Further, it is observed that whether in a particular case a
dispute has arisen or not has to be found out from the facts and circumstances of the case.
The proposition of law is well known and well-settled in the cited case but the said
decision does not fully advance the case of the respondents-TLC and WIPL, in any
manner, in the facts and circumstances of the present case.
16. Mr. Soli J. Sorabjee, learned senior counsel appearing on behalf of respondent No.2-
WIPL, has sought to support the arguments of Mr. Ganguli. He made an alternative
argument that if this Court is inclined to accept the prayer of the applicant-Citibank, then
the dispute, if any, arising out of the agreement dated 04.10.2005 may be referred to an
arbitral tribunal comprising of three arbitrators and selection/appointment of the third
arbitrator may be left to the choice of the two named arbitrators already nominated by the
applicant-Citibank and the respondents-TLC and WIPL jointly. I am afraid to accept this
submission. A composition of the arbitral tribunal comprising of three arbitrators, in my
considered opinion, is not necessary or expedient nor it can be said to be fair and
reasonable in the larger interests of the parties because such an order may lead to
burdening the parties to bear extra amounts of money in prosecuting the arbitral
proceedings which as per the objectives of the Act are less expensive and more
efficacious remedy to the parties to settle their disputes.
17. In the backdrop of the above narrated factual situation and respective contentions of
the parties, the question that arises for consideration of this Court is whether in view of
the various communications followed by reminders and legal notices sent by the
applicant-Citibank to the respondents-TLC and WIPL whereby certain serious instances
of complaints having been received from the eligible customers/card members regarding
deficiencies in services rendered to them and other disputes/differences as set out in
Appendix-II of the agreement and also having failed to provide 'Free return flight
voucher' in relation to "Fly for Sure" programme in accordance with the provisions of
Appendix-I to the agreement, an arbitration clause contained in the agreement could be
invoked.
18. The tripartite agreement made by and entered into between the parties on 04.10.2005
is not in dispute. The agreement came into force w.e.f. 01.10.2005 and was valid till
31.08.2006, which could be extended by mutual consent on such terms as parties
mutually agree in writing as per Clause 3.1 of the agreement. It appears from the record
that respondent No.2-WIPL approached the applicant-Citibank and expressed its keen
desire to be appointed as the Fulfillment Agency for implementation of 'Free return flight
voucher' and 'World for Free destinations' Scheme of the applicant-Citibank and
providing related services to the customers in terms of Clause 4 of the agreement.
Respondent No. 1-TLC had agreed to ensure the performance by WIPL of its obligations
under Clause 6 of the agreement. In terms of Clause 8, on representation having been
made by the respondents to the applicant-Citibank, the parties had entered into the
agreement on exclusive basis on the terms and conditions contained in the Appendix(s)
and Enclosures attached and incorporated by reference as an integral part of the
agreement. In order to appreciate the controversy in this matter, it is, therefore, necessary
to refer to the relevant clauses of the arbitration agreement in relation to the dispute or
controversies arising out of the said agreement. Clause 2.2 deals with "Services" and
Clause 2.3 defines "Free return flight voucher", whereas "World for Free destinations" is
defined in Clause 2.4.
19. Clause 4 of the agreement dealing with "Services" reads as under :-
"4. WIPL shall be liable and responsible to provide services to the Citibank and its
customers in accordance with the provisions of Appendix-I hereto.
TLC shall be liable and responsible for ensuring that WIPL provides the services to
@page-SC124
Citibank and its customers in accordance with the provisions of this Agreement including
Appendix-I hereto."
20. Clause 7 of the Agreement envisages General obligation of WIPL and TLC.
21. Clauses 7.1, 7.2 and 7.2.2 read as under :-
"7.1 WIPL shall be solely responsible to provide services to Citibank and its customers in
accordance with the provisions of Appendix-I. WIPL shall provide the effective services
as per the Appendix-I to the customers of Citibank and act in the interest of both Citibank
and its customers. WIPL hereby indemnifies Citibank and shall keep Citibank safe,
harmless and indemnified from time to time and at all times hereafter, from and against
(i) all loss, harm and injury suffered or incurred by Citibank, (ii) all claims, demands,
customer complaints, suits, actions and/or proceedings either civil or criminal in nature,
made or adopted against Citibank and (iii) all costs, charges and expenses suffered or
incurred by Citibank directly or indirectly on account of or as a consequence of WIPL
failing to fulfill any of its obligations under this Agreement and/or failing to fulfill all or
any of its responsibilities and obligations under this Agreement and Appendix-I hereto.
7.2 WIPL and TLC hereby undertake to be solely liable and responsible, to the exclusion
of Citibank, for all claims, demands, disputes, suits, actions and/or proceedings either
civil or criminal in nature arising out of non-fulfillment of any of their obligations or
responsibilities arising under this Agreement and the Appendix-I hereto.
7.2.2 ...................................................
WIPL shall be solely and absolutely responsible for providing the Services and for
issuing the free return flight vouchers in accordance with the provisions of Appendix-I, to
the customers of Citibank as also for ensuring that the carriers with which it has entered
into any arrangements in pursuance of this Agreement, strictly comply with their
obligations and accept the honour of all return free flight vouchers issued to the
customers of Citibank in pursuance of this Agreement."
22. Clause 10 of the agreement is the arbitration clause, which is to the following effect :-
"10. The parties hereby agree that any controversy, claim or dispute arising out of the
interpretation, application or in connection with this Agreement which cannot be resolved
amicably, shall be conclusively resolved by arbitration under Indian Arbitration and
Conciliation Act, 1996 and any amendments made thereto. The place of arbitration shall
be Mumbai and the arbitration shall be conducted in English language only. This
Agreement shall be governed by Indian Laws and shall be amenable to the exclusive
jurisdiction of courts in Mumbai only."
23. Clause 23 deals with "Termination of the Agreement" and reads as under :-
"23. Termination Citibank may terminate this Agreement upon 30 days' prior notice to
WIPL and TLC in this behalf.
In the event that either Citibank on the one part and WIPL and TLC on the other part
shall, at any time during the term of this Agreement, commit any material breach of any
requirement, obligation and covenant and warranty herein contained, and shall fail to
remedy such breach within 7 (seven) days after written notice thereof, the other party(ies)
may at its/their discretion, and in addition to any other remedy that might be available in
law or equity, terminate this Agreement by written notice to such effect..........."
24. Clause 24 of the agreement prescribes giving of notice by either party.
25. The obligations and responsibilities on the part of the parties to the agreement are
incorporated in Appendix-I, which inter alia envisaged that respondent No. 2-WIPL shall
be liable and responsible for ensuring that it would provide the required services to the
applicant-Citibank and its eligible customers/card members in accordance with the terms
of the agreement. The satisfactory service to be rendered by the respondents-TLC and
WIPL was the material obligation on their part as per the terms of the agreement and it
was a pre-requisite condition that the applicant-Citibank would pay a commission of cost
of tickets in terms of Appendix-II to the agreement. Further, the respondents-TLC and
WIPL jointly and severally undertook to indemnify the applicant-Citibank from and
against all costs, charges and expenses suffered or incurred by the applicant-Citibank,
directly or indirectly, on account of or as a consequence of the respondents-TLC and
WIPL failing to fulfill any of their responsibilities and obligations
@page-SC125
under the agreement read with Appendix-I thereto. Under the "Fly for Sure" programme
envisaged in the agreement, 35,000 card members of the applicant-Citibank were found
to be eligible to avail the opportunity of the 'Free return flight voucher' to be provided by
respondents-TLC and WIPL. The applicant-Citibank forwarded the vouchers completed
by the eligible and interested card members to respondent No. 2-WIPL in accordance
with the procedure as agreed by the parties. The vouchers/requests forwarded by the
applicant-Citibank were to be honoured by the respondents jointly by conducting
themselves in a manner as stipulated under the agreement, including issuing 'return air-
tickets' towards any one of the three dates, for any one of the three destinations, as
indicated by the customers. The respondents-TLC and WIPL could only have offered
further or other alternative dates or destinations to the customers and 35,000 card
members after having obtained their consent towards such alterations. The material
documents placed on record would show that the applicant-Citibank requested the
respondents-TLC and WIPL to comply with the terms of the agreement in regard to the
complaints of eligible customers indicating series of deficiencies in services on the part
of the respondents-TLC and WIPL. However, in spite of repeated communications being
sent by the representatives and officials of the applicant-Citibank to the respondents-TLC
and WIPL, they merely made assurances and no actual measures were undertaken by
them to rectify their acts of omission and commission. The applicant-Citibank in various
communications (copies whereof are placed on record of these proceedings) including
courier e-mail notice dated 10.05.2006 (Annexure A-8) has given specific instances of
disputes and differences that have arisen between the applicant-Citibank on the one hand
and the respondents-TLC and WIPL on the other hand which are to be resolved by the
arbitral tribunal in terms of the arbitration Clause 10 of the agreement. Legal notice dated
15.07.2006 (copy Annexure A-9) as envisaged under the agreement and the provisions of
the Act has been issued by the legal firm of the applicant-Citibank to the respondents-
TLC and WIPL suggesting the name of Hon'ble Mr. Justice S. P. Bharucha, Former Chief
Justice of India, to be appointed as the sole Arbitrator. In response thereto, respondent
No.2-WIPL vide registered A.D. fax - e-mail - courier dated 11.08.2006 denied all the
allegations of the applicant-Citibank averred in the said communications and notice dated
15.07.2006. Respondent No.2-WIPL also stated that all the alleged allegations made in
the notice or made by way of any prior correspondence shall be dealt with by it by way of
a comprehensive reply or by way of a counter claim, if any arbitration proceedings are
likely to be initiated by the applicant-Citibank. Respondent No.2-WIPL, however,
recommended that the disputes be referred to an arbitral tribunal comprising of three
arbitrators to be nominated by all the three parties to the agreement, namely, the
applicant-Citibank and the respondents-TLC and WIPL respectively. Respondent No.2-
WIPL, however, nominated Hon'ble Mr. Justice M. H. Kania, Former Chief Justice of
India, as its nominee.
26. Respondent No. 1-TLC in its reply dated 14.08.2006 to the notice dated 15.07.2006
sent by the Solicitors on behalf of the applicant-Citibank, denied the unsubstantiated
allegations of non-fulfillment or breach of any obligation by it under the agreement dated
04.10.2005 entered into between the parties. In reply, respondent No. 1-TLC states that
notice invoking an arbitration is not valid as the same does not comply with the
requirement of Section 21 of the Act applicable in India as it is completely unclear from
the contents of the notice as to what disputes the applicant-Citibank has sought to be
referred to the arbitration and the applicant-Citibank first should provide quantification of
its alleged claims and disputes. However, respondent No.1- TLC agrees to the suggestion
of respondent No.2-WIPL for appointment of arbitral tribunal comprising of three
members, one each to be appointed by the parties to the agreement.
27. As noticed above, the disputes arising out of the arbitration agreement between the
parties are covered under the definition of "international commercial arbitration" in terms
of Section 2(f) of the Act. The parties have entered into an arbitration agreement as
provided under Section 7 of the Act. Section 10(1) of the Act provides that the parties are
at liberty to determine the number of arbitrators provided such number shall not be an
even number. In default of determination referred to in sub-section (1), the arbitral
tribunal shall consist of a sole
@page-SC126
arbitrator in terms of Section 10(2) of the Act. Section 21 of the Act lays down that unless
otherwise agreed by the parties, the arbitral proceedings in respect of a particular dispute
would commence on the date on which a request for that dispute to be referred to
arbitration is received by the respondent.
28. The contract is a commercial document and must be interpreted in a manner to give
efficacy to the contract rather than to invalidate it. Narrow technical approach is not
proper. The above-extracted Clause 10 of the arbitration imports in itself all disputes and
the arbitration agreement cannot be said to be as vague or uncertain as to be
unenforceable. In Clause 10 of the agreement, the words "any controversy, claim or
dispute arising out of the interpretation, application or in connection with this agreement
which cannot be resolved amicably" could embrace within its fold all matter which can
legitimately arise in connection with the agreement. The arbitration clause does not put
any cap on the powers of the arbitrator to decide any particular claim or counter-claim,
the details of which shall be submitted by the parties in their pleadings before the
arbitrator. The words contained in Clause 10 are wide enough and as the question turned
upon the true interpretation of the contract and the parties have to take recourse to the
contract to establish their claim and counter-claim, if any, having regard to the fact that
the existence of an agreement is not denied and that there has been an assertion of claim
by the applicant-Citibank in the form of letters and notices issued to the respondents and
responses of TLC and WIPL thereto, the matter would be arbitrable. The conduct of the
respondents-TLC and WIPL would show that on receipt of the communications and
notices of the applicant-Citibank, the same were not rejected outright by them. The
existence of arbitration agreement was accepted and the matter, if any, was suggested to
be referred to an arbitral tribunal of three members, one to be appointed by each party.
29. In view of the instances of breaches of the terms and conditions of the relevant
clauses of the agreement coupled with the breaches of specific obligations and
responsibilities contained in the Appendix(s) and Enclosures attached and incorporated
by reference as an integral part of the agreement and having regard to the words used in
Clause 10 of the agreement and having regard to the fact that the parties have failed to
determine an even number of arbitrators as per the provisions of Section 10(1) of the Act,
the requirement of Section 10(2) of the Act is fully attracted in the present proceedings, in
other words, the arbitration agreement deemed to be one providing for a sole arbitrator.
30. In the above-said circumstances, taking into consideration the fact that the disputes
and differences between the parties emanating from the contract are required to be
resolved through arbitration, Hon'ble Mrs. Justice Sujata V. Manohar, retired Judge of this
Court, is hereby appointed to act as a sole Arbitrator.
31. The Arbitration Application, accordingly, stands disposed of. There will be no order
as to costs.
Order accordingly.
AIR 2008 SUPREME COURT 126 "U.P. Co-op. Spg. Mills Federation Limited v. Ram
Pratap Yadav"
(From : Allahabad)
Coram : 2 H. K. SEMA AND ALTAMAS KABIR, JJ.
U.P. Co-op. Spg. Mills Federation Limited and Anr. v. Ram Pratap Yadav and Ors.
U.P. Co-operative Societies Act (11 of 1966), S.122 - U.P. Co-operative Societies
Employees Service Regulation (1975), Regn.84 - U.P. State Textile Corporation Ltd.
Service Rules, R.4 - CO-OPERATIVE SOCIETIES - TEXTILE - REMOVAL FROM
SERVICE - SERVICE MATTERS - General Manager of Spinning Mill - Alleged
financial irregularities by him - Removal from service - Petition against - Concurrence of
Board as per 1975 Regulations - Not necessary in view of exclusion of Textile Mills from
purview of 1975 Regulations - Order of High Court setting aside removal passed in
ignorance of notification - Liable to be set aside - Plea that Textile Mills are excluded
from purview of 1975 Regulations and not Spinning Mills - Not tenable as Spinning
Mills and Textile Mills are complementary to each other and 'Spinning Mills' would also
come under description of 'Textile Mills'.
W. P. No. 51699 of 2000, D/- 18-1-2005 (All), Reversed. (Paras 21, 24, 25)
Rakesh Uttamchandra Upadhyay, for Appellants; V. Shekhar, Sr. Advocate, Yatish

Mohan, E. C. Vidya Sagar, for Respondents.
@page-SC127
Judgement
ALTAMAS KABIR, J. :- This appeal by way of special leave is directed against the
judgment and order dated 18th January, 2005 passed by the High Court of Judicature at
Allahabad in Civil Misc. Writ Petition No. 51699 of 2000, whereby the order challenged
in the writ petition was quashed and the writ petition was allowed.
2. As will appear from the materials on record, the respondent No. 1 herein, Shri Ram
Pratap Yadav, was appointed as Secretary/General Manager of the Mau-Aima Sarkari
Katai Mills Limited at Mau-Aima in Allahabad on 24th January, 1990 by the U.P. Co-
operative Spinning Mills Federation Limited (hereinafter referred to as Federation),
which is the apex body of various Co-operative Spinning Mills in the State of Uttar
Pradesh. During his tenure as such General Manager of the Mau-Aima Spinning Mill
various complaints were received against him in regard to serious financial irregularities
alleged to have been committed by him. A charge-sheet containing 15 charges was served
on him, of which the Enquiry Officer found charges 1, 4, 11 and 14 to have been fully
proved, while charges 3, 8, 9, 12 and 13 were held to have been partly proved. The other
6 remaining charges, were held not to have been proved. The enquiry report was
thereafter placed before the Disciplinary Authority, which, while confirming the report of
the Enquiry Officer, omitted charge No. 8 holding that the same had not been proved
either fully or partly.
3. On the basis of his findings the Disciplinary Authority removed the respondent No. 1
from the service of the U.P. Co-operative Spinning Mill Federation Limited by his order
dated 9th May, 1996. The order of his removal was challenged by the respondent No. 1
before the Appellate Authority after three years on 7th July, 1999. The said appeal filed
by the respondent No.1 was ultimately dismissed on 11th July, 2000.
4. It may, however, be stated that the respondent No. 1 had challenged his removal by
way of a writ petition in 1996 and the same was disposed of with leave to make a
representation before the concerned authority of the Federation. Subsequently, he filed
Civil Misc. Writ Petition No. 51699 of 2000 challenging the order dated 9th May, 1996
by which he was removed from the service of the Federation.
5. The main contention of the respondent No.1/Writ Petitioner was set out in paragraphs
14, 15, 16 and 17 of the writ petition which have been extracted in the judgment of the
Allahabad High Court impugned in the instant proceedings and are also re-produced
hereinbelow for the sake of reference :-
"14. That before dispensing with the services of the petitioner no approval of the U.P. Co-
operative Institutional Service Board as envisaged by Regulation 87 read with Section 84
of U.P. Co-operative Societies Employees Service Regulation, 1975 has been obtained.
15. That the U.P. Co-operative Institutional Service Board has been established by means
of a notification dated 4.3.1972 under Section 122(1) of the U.P. Co-operative Societies
Act, 1965 conferring power upon the U.P. Co-operative Industrial Service Board with
regard to employees of the categories of co-operative societies specified in the said
notification.
16. That the aforesaid notification covers "apex level societies". The apex level society
are defined under Section 2(1-4) of the 1965 Act as including co-operative societies
whose membership includes at least one other Central Co-operative Society, whose area
of operation covers the whole of U.P. and whose primary object is to facilitate the
operation of co-operative society affiliated to it. For convenience Section 2(a-4) of the
1965 Act is extracted below :
2(a-4) "Apex society", "Apex level society" or "State level co-operative society" means-
(1) U.P. State Co-operative Land Development Bank Ltd. Lucknow;
(2) U.P. Co-operative Bank Ltd., Lucknow;
(3) U.P. Co-operative Federation Ltd., Lucknow;
(4) Pradeshik Co-operative Dairy Federation Ltd., Lucknow;
(5) U.P. Co-operative Union Ltd., Lucknow;
(6) U.P. Upbokta Sahkari Sangh Ltd., Lucknow;
(7) U.P. Co-operative Sugar Federation Ltd.
(8) U.P. Cane Unions Federation Ltd., Lucknow;
(9) U.P. Industrial Co-operative Association Ltd., Kanpur; or
(10) Any other central co-operative society fulfilling the following conditions :-
@page-SC128
(i) it includes in its membership at least one other central co-operative society in the same
time of business or trade; and
(ii) its area of operation covers the whole of Uttar Pradesh; and
(iii) its primary object is to facilitate the operation of the co-operative societies affiliated
to it as ordinary members;
17. That the termination of service of the petitioner in the absence of approval from the
Co-operative Institutional Service Board is totally without authority and illegal.
6. As will appear from a reading of the aforesaid paragraphs, his service conditions were
said to be governed and regulated by the U.P. Co-operative Societies Employees Service
Regulations, 1975, which came into effect in the State of U.P. upon publication in the
U.P. Gazette Extraordinary dated 6th January, 1976. It was the petitioners case that
Regulation 87 of the said Regulations made it incumbent for the concerned co-operative
societies to impose major penalty only with prior concurrence of the U.P. Co-operative
Institutions Service Board. For the sake of reference Regulation 87 is reproduced
hereinbelow :-
"87. Order imposing penalty under sub-clause (e) to (g) of clause (1) of Regulation No.
84 shall not be passed except with the prior concurrence of the Board."
7. It was the contention of the Respondent No. 1 that since the Federation had not
obtained the prior concurrence of the aforesaid Board the major punishment of dismissal
imposed on the respondent was void and was liable to be quashed.
8. The Allahabad High Court confined itself mainly to the question regarding non-
compliance of the provision of Regulation 87 by the Federation, which did not contest the
contention of the Respondent No. 1 in that regard. The High Court also held that although
it was pleaded in the writ petition that no proper enquiry had been held, the same had not
been specifically denied, and consequently such an allegation must be deemed to have
been admitted.
9. The High Court also recorded that from the orders of the Disciplinary Authority as well
as the Appellate Authority, it was clear that they did not consider the defence set out by
the respondent No. 1 and merely concurred with the report of the Enquiry Officer. On the
aforesaid findings, the Allahabad High Court allowed the Writ Petition and quashed the
order of removal from service impugned in the Writ Petition. On the strength of the
judgment and order of the High Court the respondent No. 1 was reinstated in service on
3rd December, 2005 and he is continuing to work with the Federation since his
reinstatement.
10. The Federation is in appeal before us against the said judgment and order of the
Allahabad High Court.
11. On behalf of the appellant it has been submitted that the High Court had wrongly
proceeded on the basis that the services of the Respondent No. 1 were governed by the
U.P. Co-operative Societies Employees Service Regulations, 1975 which contains
Regulation 87 referred to hereinabove.
12. It was submitted that at the first meeting of Committee of the Management of the
Federation held on 4th March, 1983 Agenda No. 10 was included to consider the
adoption of Service Rules, Medical and other allowances as well as advances to the staff
of the Federation. In the minutes of the said meeting the Resolution adopted in respect of
the said Agenda was recorded as follows :
"It is Resolved that till the Federation is able to frame its own Service Rules, T.A.,
Medical, other allowances and advances rules for the Staff of the Federation, the rules
prevailing in this direction in U.P. State Textile Corporation Ltd. may be adopted as they
are.
13. Accordingly, the Service Rules of the employees of the Federation were taken out of
the purview of the 1975 Regulations and were brought under the Rules of the U.P. State
Textile Corporation Ltd. from 4th March, 1983.
14. Under the said Rules of the U.P. State Textile Corporation provision has been made in
Rule 4 for imposition of penalties. Clause B thereof indicates the major penalties, which
could be imposed on an employee, which include removal from service, which would not
ordinarily be a disqualification for future employment. The said rules also provide for
dismissal, which would be a bar against future employment.
15. Rule 14 sets out the procedure for imposing major penalties and Rule 21 provides for
appeal that an employee may file against an order imposing upon him any of the
prescribed penalties, within one month from the date of the communication of the order
appealed against.
@page-SC129
16. It was submitted that a glance at the enquiry report would indicate that the enquiry
had been held fairly and upon offering sufficient opportunity to the respondent to meet
the charges brought against him and on consideration of the materials on record the
Enquiry Officer held that some of the charges had been fully proved against the
respondent and that some of the charges had been partly proved against him. The Enquiry
Officer also recorded that the remaining charges had not been proved. The enquiry report
was placed before the Disciplinary Authority, which disagreed with the finding of the
Enquiry Officer as far as charge No. 8 was concerned, and, accordingly, the said charge
was also held not to have been proved against the respondent. It was submitted that the
High Court, without discussing the enquiry report or the order passed by the Disciplinary
Authority, simply made an observation that there was no specific denial of the averments
made in the writ petition in that regard. On the other hand, it was pointed out that such an
allegation had been specifically denied in paragraph 8 of the counter-affidavit filed on
behalf of the respondent Nos. 3 to 6 before the Allahabad High Court and it was
categorically stated that the termination order had been passed after due examination of
relevant materials and after offering full opportunity to the respondent herein. It was
submitted further that the same averments had been reiterated in paragraph 9 of the
counter- affidavit, which the High Court appears to have overlooked.
17. It was, therefore, urged that since the order of the High Court was on the
understanding that the 1975 Regulations applied in the petitioner's case, the same was
passed on mis-application of the law governing the service conditions of the respondent
and the same was, therefore, liable to be set aside.
18. Mr. Shekhar, learned senior counsel appearing for the respondent, based his
submissions on the understanding that it was the 1975 Regulations which were applicable
to the respondent and that the High Court did not commit any error in holding that in the
absence of prior concurrence from the Board, in terms of Regulation 87, the order of
removal from service was erroneous and was liable to be quashed.
19. Mr. Shekhar submitted that the notification dated 16th October, 1981, by which
textile mills had been excluded from the purview of the 1975 Regulations, had not been
brought to the notice of the High Court, and, in any event, the same did not refer to
spinning mills, such as Mau-Aima Spinning Mill, where the respondent had been posted
as Secretary/General Manager after his appointment by the Federation.
20. Mr. Shekhar sought to make a distinction between 'spinning mills' and 'textile mills'
and submitted that notwithstanding the aforesaid notification dated 16th October, 1981,
spinning mills continued to remain within the purview of the 1975 Regulations and the
High Court had, therefore, rightly held, that in the absence of prior concurrence of the
Board, the order removing the petitioner from service had been passed without
jurisdiction.
21. On a careful consideration of the submissions advanced on behalf of the parties and
the materials on record, it appears to us that had the notification dated 16th October,
1981, and Minutes of the first meeting of the Committee of the Management of the
Federation held on 4th March, 1983, been placed before the High Court, the High Court
may not have proceeded on the understanding that the 1975 Regulations applied to the
respondent and that the order of removal from service passed without prior concurrence
of the Board, was in violation of the said Regulations and could not, therefore, be
sustained.
22. The Notification dated 16th October, 1981, issued by the State Government makes it
quite clear that co-operative textile mills were to be excluded from the purview of 1975
Regulations. The subsequent resolution adopted by the Federation on 4th March, 1983
made the position even more clear by resolving that till the Federation was able to frame
its own Service Rules, the Rules prevailing in the U.P. State Textile Corporation were to
be adopted as they were.
23. In other words, the Regulations of 1975 were not to apply to the employees of the
Federation from 4th March, 1983. However, Mr. Shekhar had taken the stand that
notwithstanding the notification of 16th October, 1981, the 1975 Regulations continued
to apply to spinning mills since only co-operative textile mills had been excluded from
the operation of the 1975 Regulations. Mr. Shekhar invited us to make a distinction
between spinning mills and textile mills, which we are unable to appreciate, since
@page-SC130
basically spinning mills and textile mills are complementary to each other. In our view,
"spinning mills" would also come under the description of "textile mills".
24. We have no hesitation, therefore, in agreeing with the submissions made on behalf of
the appellant that the service of the respondent was governed not by the 1975 Regulations
but by the Rules of the U.P. State Textile Limited. The question of compliance with the
provisions of the Regulations which provide for obtaining prior concurrence of the
Board, would not arise in the instant case. It is unfortunate that neither the Notification of
16th October, 1981 nor the Minutes of the Meeting of Federation held on 4th March,
1983 had been brought to the notice of the High Court by the appellant, but since the
same has been brought to our notice, we cannot allow the erroneous application of the
1975 Regulations to continue.
25. We, therefore, allow the appeal and set aside the order of the High Court impugned in
the appeal. We, however, make it clear that no recovery shall be made from the
respondent on account of his services after reinstatement.
26. Having regard to the peculiar facts of this case, the respective parties will bear their
own costs.
Appeal allowed.
AIR 2008 SUPREME COURT 130 "U.P. Roller Flour Mills Association v. Govt. of
India"
Coram : 2 Dr. A. PASAYAT AND P. SATHASIVAM, JJ.
Writ Petition (Civil) No. 274 of 2005, D/- 5 -10 -2007.
U.P. Roller Flour Mills Association and Ors. v. Govt. of India and Ors.
Essential Commodities Act (10 of 1955), S.3 - Assam Food Grains (Licensing and
Control Order) (1961), Cl.5 - Constitution of India, Art.32 - ESSENTIAL
COMMODITIES - WRITS - Public distribution system - Misuse - Diversion of
foodgrains (wheat) to rolling flour mills alleged - Permission granted by Central
Government to State of Assam to continue to undertake custom milling of wheat since
beneficiaries were not interested to take whole grain and wanted 'Atta' - Modalities to be
adopted by State to ensure proper distribution of foodgrains/Atta formulated. (Para
7)
Dinesh Kumar Garg, V. K. Biju, for Petitioners; M. L. Lahoty, Paban K. Sharma,

Himanshu Shekhar, for Applicant; C. A. Sundaram, Sr. Advocate, Riku Sharma, (for M/s.
Corporate Law Group), Tara Chandra Sharma, Ms. Neelam Sharma, Rajeev Sharma,
Kishan Datta, G. Prakash, Sunil Roy, R. C. Kathia and V. K. Verma, for Respondents.
Judgement
1. Dr. ARIJIT PASAYAT, J. :-In this petition under Article 32 of the Constitution of India,
1950 (in short the 'Constitution') the petitioners have highlighted that that there has been
alarming increase in diversion of food stocks meant to be supplied under the Public
Distribution System (in short 'PDS'). It is stated that highly subsidized wheat stocks
supplied by the Central Government for distribution through PDS under several schemes
are being diverted to rolling flour mills of different States. These stocks have been
procured by the Central Government from Food Corporation of India (in short 'FCI').
Special reference has been made to the State of West Bengal and North-East States. It is
alleged that instead of supplying them to the needy consumers and the intended
beneficiaries they are being diverted to the open market. Several statistical data have been
furnished. The States of Assam and West Bengal have filed counter-affidavits and have
denied the allegations and have submitted that all possible measures have been adopted to
ensure that the foodgrains reach the intended beneficiaries.
2. Learned counsel for the petitioners have referred to some newspaper reports indicating
that foodgrains worth more than rupees thirty one thousand crores have been siphoned off
from public distribution system.
3. These allegations have been refuted by the learned counsel for the different States. It is
to be noted that the Government of India, Ministry of Food and Consumer Affairs,
Department of Food and Civil Supplies, by letter dated 13th December, 1997 brought to
the notice of the Food Secretaries of all State Governments and Union Territories
Administration that the scheme of custom milling was extended for a period of one year
upto 31.10.1997 on the express conditions stipulated by letter dated 4th November, 1996.
It was stated that the scheme was further reviewed and it was decided not to extend it
further. The scheme
@page-SC131
of custom milling of PDS wheat stood withdrawn/discontinued.
4. The Government of Assam, it is urged by learned counsel for the State, took follow up
action on the basis of the aforesaid letter. A writ petition was filed before the Gauhati
High Court questioning the action taken by the Assam Government in terms of aforesaid
letter of the Government of India. The impugned Annexures were quashed by a learned
Single Judge. The matter was carried in writ appeals before the Division Bench which set
aside the orders of the learned Single Judge. However, direction was given to work out
the modalities to ensure that the beneficiaries are not affected.
5. It appears that the Government of Assam found that the beneficiaries were not
interested in taking the whole grain and instead wanted Atta. This aspect was also
examined by the Central Government. It was noted that the workers in the tea gardens
had shown reluctance to take whole grain and instead preferred Atta. The Government of
India also took note of the request of the Assam Government for continuation of milling
Above Poverty Line (in short 'APL') into whole mill Atta for distribution through PDS. It
was suggested by learned counsel for the Government of Assam that the distribution can
be made through Gram Panchayats who in turn can get the wheat converted into Atta for
supply to the beneficiaries.
6. Learned counsel for the petitioners on the other hand submitted that it would not be
desirable to adopt such a course as there is possibility of manipulations and lack of
accountability. It is undisputed that the distribution under the PDS is done through the
Fair Price Shops (in short 'FPS').
7. Considering the intention behind the programme, we direct following modalities to be
adopted :
(1) The concerned Associations/Gram Panchayats/Local bodies shall assess the need of
wheat for the intended beneficiaries. The need shall be indicated to the State Government.
(2) They shall indicate the quantum of wheat which is to be converted into Atta to be
given to the beneficiaries on the basis of their option. In other words, those beneficiaries
who want to take wheat shall indicate to them and those who want to take Atta shall
similarly indicate their option. On the basis of such intimation as noted above,
Associations/Gram Panchayats/Local Bodies shall convey the requirement to the State
Government.
(3) The quantity indicated for conversion into Atta shall be given to the Mills, who after
converting wheat into Atta, shall supply it to the FPS so that the intended beneficiaries
can get them from the FPS at rates fixed by the concerned Governments.
(4) The State Governments shall ensure that the actual requirement is being projected by
the Associations/Gram Pancha-yats/Local Bodies and similarly whether after milling the
supply is made to the FPS to be supplied finally to the consumer.
(5) The State Governments shall quarterly submit the necessary data for the information
of the Central Government who shall also ensure that all possible steps are being taken by
the State Governments to fulfil the intended objectives.
8. The writ petition is accordingly disposed of.
Order accordingly.
AIR 2008 SUPREME COURT 131 "Bishan Singh v. State"
(From : Uttarakhand)*
-10 -2007.
Bishan Singh and Anr. v. The State.
(A) Penal Code (45 of 1860), S.308, S.323, S.325 - CULPABLE HOMICIDE -
GRIEVOUS HURT - HURT - Culpable homicide - Intention - Necessary ingredient - Six
accused persons armed with Lathis alleged to have assaulted injured - Enmity alleged -
However, only one single grievous injury found on injured - That too on non-vital part,
wrist - Accused not liable to be convicted under S. 308 - Liable to be convicted under Ss.
323, 325. (Para 12)
(B) Penal Code (45 of 1860), S.323, S.325 - HURT - GRIEVOUS HURT - SENTENCE
REDUCTION - Simple hurt - Punishment - Old incident - Accused had all along
remained on bail - Had never misused privilege of bail - Substantive sentence reduced to
period already undergone - Fine of Rs. 15,000/- imposed. (Para 14)
Gaurav Agrawal, for Appellants; Ms. Rachna Srivastava, A.A.G. and Anuvrat Sharma, for
Respondent.
@page-SC132
* Cri. Appeal No. 343 of 2001, D/- 14-3-2007 (UTR).

Judgement
2. Bishan Singh son of Bachchi Singh and Govind Ballabh son of Krishnanand, the two
surviving accused, who were tried and convicted for commission of an offence under
Sections 147 and 308/149 of the Indian Penal Code (IPC) are before us; the other four
accused, namely, Arjun Singh, Shivraj, Govind Singh and Bhairav Dutt having expired.
3. One Harish Bhatt was the complainant. On 30.09.1984 at about 06.30 p.m. when he
was going towards his village, the accused persons allegedly assaulted him with lathis
and took out a sum of Rs.400/- from his pocket. His brother Ghanshyam Dutt Bhatt
intervened. It was alleged that the accused persons were inimically disposed of towards
the injured and had attacked him with an intention to cause his death. The injuries
suffered by Harish Bhatt as per the injury report prepared by Dr. J.S. Pangti (PW-6) are as
under :
1. Lacerated wound 3 cm x 1 cm on scalp at right parietal region, 14 cm above the right
eye-brow. Scalp deep. Fresh bleeding present.
2. Lacerated wound 5 cm x ½ cm x scalp deep on scalp, at right parietal area, 19 cm
above the right eye-brow.
3. Lacerated wound 3 cm x ¼ cm x skin deep, 4 cm above the right eye-brow at right
forehead, 6 cm x 7 cm swelling around the wound.
4. Abrasion 1 cm x ½ cm, at upper lip, 3 cm from the right angle of the mouth.
4/1. Abrasion 1 cm x ½ cm at lower lip right angle of mouth.
5. Contusion mark 10 cm x 5 cm above right shoulder reddish in colour. Swelling 2 cm
around the wound.
6. Contusion mark 6 cm x 6.5 cm on above and front and middle of left arm, 13 cm below
the shoulder joint 1 cm swelling around the injury.
7. Contusion 12 cm x 10 cm at fore-arm, 8 cm from the left wrist joint ½ cm swelling
around the injury.
8. Complain of pain in both lower legs and thigh, but no injury seen.
4. Admittedly, all the injuries except injury No.7 were simple ones. Injury No. 7 being a
fracture with dislocation of wrist joint was found to be grievous one. The injured witness
examined himself as PW-5. In his deposition, he alleged :
"..........I used to stop the accused from fighting with the poor people and I was witness
against the accused persons in the litigation between Shanti Joshi and accused persons.
That is why the accused beat me. My head was wounded. My kurta was full of blood and
seizure report of kurta had been made in the hospital........"
5. The learned Trial Judge relying on or on the basis of the testimonies of the said witness
as also his brother, convicted the appellants for commission of an offence under Sections
147 and 308/149 IPC and sentenced them to undergo rigorous imprisonment for one year
for the offence punishable under Section 147 IPC and rigorous imprisonment for four
years for the offence punishable under Section 308/149, IPC.
6. Although in the First Information Report, the informant had alleged that all the six
accused had earlier threatened to kill him as also burn his hut and the said attack was with
an intention to kill him, but the offence recorded therein was under Sections 147 and 323,
IPC. The charge-sheet was, however, submitted, inter alia, under Section 308, IPC.
7. We have noticed hereinbefore that in his deposition PW-5 stated about the existing
enmity between the parties. It does not appear from his deposition that he had made any
statement to the effect that the accused had attacked him with an intention to kill. The
learned Trial Judge in his judgment solely relying upon the allegations made in the First
Information Report opined that a case under Section 308, IPC was made out.
8. Interestingly, the learned Trial Judge observed that the charge under Section 308, IPC
read with Section 149 thereof was proved, because the eye-witnesses had clearly stated
that they were armed with lathis.
9. The learned Trial Judge did not notice the ingredients of Section 308, IPC which
provides for existence of an intention or knowledge.
10. The High Court also dismissed the appeal, opining :
"33. From perusal of record it has been established that the intention of the accused
persons was to commit culpable homicide.
@page-SC133
They had enmity with the injured Harish Bhatt. Threats were also given to him by the
accused persons to ruin his life. PW-4, Ghanshyam Dutt has clearly stated that when he
reached at the spot he saw that the accused persons were beating the injured recklessly
with Lathis-Dantas. Injuries were also caused on scalp. Looking to the seat of injuries and
the fact and circumstances of the case the prosecution has been able to prove the offence
u/S. 308/149, IPC against the accused persons. The finding of the trial court is just and
proper and need no interference by the appellate Court.
11. Before an accused can be held to be guilty under Section 308 IPC, it was necessary to
arrive at a finding that the ingredients thereof, namely, requisite intention or knowledge
was existing. There cannot be any doubt whatsoever that such an intention or knowledge
on the part of the accused to cause culpable homicide is required to be proved. Six
persons allegedly accosted the injured. They had previous enmity. Although overt-act had
been attributed against each of the accused who were having lathis, only seven injuries
had been caused and out of them only one of them was grievous, being a fracture on the
arm, which was not the vital part of the body.
12. The accused, therefore, in our opinion, could not be said to have committed any
offence under Section 308, IPC. The same would fall under Sections 323 and 325 thereof.
13. The question now is what punishment should be awarded.
14. While imposing punishment in a case of this nature, the Court is required to take into
consideration the factors which may weigh with the Court for taking a lenient view in the
matter. The incident is of 1984. 23 years have elapsed. Appellants had all along remained
on bail. It is not stated that they had ever misused the privilege of bail. The incident does
not reflect any cruelty on their part or any mental depravity. They had been in custody for
more than five months. In a situation of this nature, we are of the opinion that it may not
be proper for this Court to send the accused persons back to prison. However, the injured
had suffered pains at the hands of the appellants. We are, therefore, of the opinion that
while their substantive sentence may be reduced to the period undergone, they should pay
a fine of Rs. 15,000/- (Rupees fifteen thousand) each; failing which they should undergo
simple imprisonment for a period of one year each. If the aforementioned amount is
realized, a sum of Rs. 25,000/- (Rupees twenty-five thousand) out of the sum, may be
paid to the informant.
15. Appellants who are in custody shall be released forthwith, if not required in
connection with any other case, subject to the aforementioned conditions.
16. The appeal is allowed to the aforementioned extent.
Order accordingly.
AIR 2008 SUPREME COURT 133 "Kishan Chand v. State of U.P."
(From : Allahabad)*
-10 -2007.
Kishan Chand and Ors. v. State of U.P.
(A) Penal Code (45 of 1860), S.100 - PRIVATE DEFENCE - Right of self defence -
Against property - Available even if property in question is open plot. (Para 19)
(B) Penal Code (45 of 1860), S.100, S.300, S.149 - PRIVATE DEFENCE - MURDER -
UNLAWFUL ASSEMBLY - COMMON OBJECT - Right of self defence of property -
Availability - Dispute between villagers and accused-allottee of open plot over right to
raise construction pending adjudication - Accused along with others going to plot armed
with guns and lathis to raise construction - Villagers who were unarmed protesting -
Accused using abusive language - On protest by villagers one of accused going to roof
top of house and firing indiscriminately - Others using lathis - Many villagers injured and
two persons dying of bullet injuries - Accused were aggressors - Right of self defence not
available - Number of injuries sustained by villagers and their nature - Clearly indicate
that all accused shared common object. (Paras 19, 21, 22)
(C) Penal Code (45 of 1860), S.300, S.149 - MURDER - UNLAWFUL ASSEMBLY -
Murder - Injuries on accused - Relevance - Accused firing on unarmed villagers
protesting against raising of construction on disputed plot - Plea that accused had
received injuries from
@page-SC134
protesting villagers - Accused not lodging FIR of incident - Did not get themselves
examined by Government doctor - Had gone to private doctor and that too on next day -
Plea held, was not tenable. (Paras 27, 28)
2007 AIR SCW 3234 : 2007 Cri LJ 3277 (Rel. on, Pt. B) 26
2006 AIR SCW 1058 : AIR 2006 SC 3555 : 2006 Cri LJ 1632 (Disting; Pnt. B) 18
2006 AIR SCW 3419 : AIR 2006 SC 2531 : 2006 Cri LJ 3297 (Rel. on, Pnt. B) 25
2005 AIR SCW 5798 : AIR 2006 SC 302 (Rel. on, Pnt. B) 16
2005 AIR SCW 5824 : AIR 2006 SC 321 (Rel. on, Pnt. B) 17
1994 AIR SCW 4406 : AIR 1995 SC 254 (Rel. on., Pnt. B) 24
AIR 1982 SC 1228 : 1982 Cri LJ 1742 (2) 18
AIR 1978 SC 1492 : 1978 Cri LJ 1538 18
AIR 1960 SC 725 : 1960 Cri LJ 1144 (Rel. on, Pnt. B) 23
AIR 1959 SC 572 (Rel. on, Pnt. B) 15
(1895) ILR 22 Cal 306 23
Ms. Sandhya Goswami, for Appellants; Shail Kumar Dwivedi, Addl. A.G., Wasim
Ahmad Quadri, Vijay Pratap Singh and Anil Kumar Jha with him, for Respondent.
* Cri. A. No. 57 of 1982, D/- 28-3-2003 (All) (LB).
Judgement
2. Phool Chand (Accused No. 1) was a retired Army Officer. He was allegedly allotted
some land bearing plot No. 596 at village Paigamberpur Hamlet, Jarganwan, title whereof
was in dispute. He was in possession thereof but his right to make any construction
thereupon was in dispute. His earlier attempt to raise constructions on the said land had
met with resistance by the villagers. They made a complaint to the officers of the Tehsil.
Before the police authorities, Phool Chand is said to have given an undertaking not to
make any construction.
We may place on record that he had also intended to put up constructions earlier but did
not succeed. Villagers were claiming their right to make common use of the land in
question, viz., for keeping 'Ghoor' of the village folks.
3. On 3.02.1978 at about 9 a.m., the said Phool Chand armed with a double barrel gun,
his brother Kishan Chand (Accused No. 2) armed with a single barrel gun in the company
Bhagauti (Accused No. 3), Badadin (Accused No. 4) and Sheo Prasad (Accused No. 5)
who were said to have been armed with lathis came to the land in question. They started
construction thereupon with the help of hired labourers. A large number of villagers
assembled at the place. Accused were requested not to make any construction till the
disputes between them were determined by the competent Court.
4. Amongst the villagers, Ram Asrey (since deceased), his son Mishri Lal (first
informant), Hardev, Suraj Lal, Ram Singh, Ram Dass, Vishram, Ram Saran, Shiv Pal,
Mohan Lal, Shiv Prasad, Umrao, Pyare, Ram Lakhan, Karam Ali and Ram Prasad were
present.Allegedly, Phool Chand and others started abusing them. Mishri Lal and his co-
villagers asked him not to do so. Accused Nos. 3 to 5, viz., Bhagauti, Badadin and Sheo
Prasad, allegedly exhorted Phool Chand and Kishan Chand to shoot Mishri Lal and others
whereupon Phool Chand ran towards the roof of the nearby 'Kothri' owned by Mishri Lal
and from the roof thereof, he started firing. Kishan Chand is also said to have fired from
his gun. Ram Asrey standing at the Galiyara received a gun shot injury. He died at the
spot. Mishri Lal and others also received firearm injuries. One of the persons, viz., Ram
Harak who had also sustained gun shot injuries breathed his last in the hospital. On
receipt of such gun shot injuries, the condition of Suraj Lal, Hardev, Mohan Lal, Ram
Dass and Ram Singh allegedly became serious.
Mishri Lal son of the deceased Ram Asrey lodged a First Information Report at about
11.30 a.m. on the said date alleging death of Ram Asrey and Ram Harak at the hands of
the accused persons and receipt of injuries by as many as 15 persons, viz., Mishri Lal,
Pyare, Shiv Pal, Mohan Lal, Ram Dass, Suraj Lal, Ram Singh, Hardev, Karam Ali, Shiv
Prasad, Umrao, Vishram, Prem Prasad, Ram Saran and Ram Lakhan.
5. The defence version in regard to the incident was that the Patta of the disputed land
was executed in the name of Phool Chand in the year 1973. He allegedly had raised
constructions on eastern and western wall. However, in the year 1977, i.e., after his
retirement when he was going to construct his house thereupon, his attempt to do so was
opposed by Mishri Lal, Hardev, deceased Ram Asrey and others. An undertaking was
said to have forcibly been taken by Lekhpal and Station House Officer of the police
station. However, at a later stage, the
@page-SC135
Tahsildar of the area allegedly directed the Station House Officer of police station
Asandra to render all help to him. However, the said order was not complied with. In the
written statement filed by the accused persons, the incident that had taken place on
3.02.1978 at about 9.00 a.m. was accepted but it was contended that while the said Phool
Chand with the help of others including hired labourers started constructions, the
deceased Ram Asrey and Ram Harak along with a large number of persons being armed
with guns and lathis reached there and caused obstructions. Upon protest having been
lodged, all of them advanced towards him with a view to kill him. He then ran to the roof
of his fathers Baithaka but Ram Asrey and his companions surrounded his house. They
also entered therein. An attempt was also made to molest Smt. Shakuntala Devi, sister of
Phool Chand. Only at that time, with a view to save the modesty and honour of his sister
as also save the life of other members of the family, they caused injuries to various
persons. It was alleged that an endeavour was made to lodge a First Information Report
by Smt. Shakuntala Devi but the same was not registered. It was further alleged that Smt.
Shakuntala Devi came to Barabanki with her father, uncle and brother Gokul Chand and
all of them were medically examined by a private doctor whereafter a report was sent to
the District Magistrate.
6. The prosecution in support of its case examined 13 witnesses. Mishri Lal (PW-1),
Suraj Lal (PW-2) and Ram Saran (PW-3) examined themselves as eye-witnesses to the
occurrence. They proved the genesis of the occurrence as also the manner in which it
took place. Other witnesses examined by the prosecution were the doctors who had
conducted post mortem examination on the body of the deceased Ram Asrey and Ram
Harak as also examined the injuries on the body of 15 injured persons.
7. The defence examined Dr. L.K. Shukla (DW-1) who allegedly had examined Smt.
Shakuntala Devi, Sri Dutt, Ramfal and Gokul Chand. Smt. Shakuntala Devi examined
herself as DW-2.
8. The defence story was disbelieved both by the learned Trial Judge as also the High
Court. They came to the conclusion that all the five accused were present at the place of
occurrence and participated therein and used their respective weapons to inflict injuries
upon the victims in execution of their common object and for the said purpose they had
formed an unlawful assembly. The plea of right of private defence raised by the accused
was also negatived. The purported injuries found on the person of the defence witnesses
and others were held to be self-inflicted ones.
9. On the aforementioned findings, Phool Chand and Kishan Chand were convicted under
Sections 148, 302/149 and 307 of the Indian Penal Code and Bhagauti, Badadin and Sheo
Prasad were convicted under Sections 147, 302/149 and 307/149 thereof. They were
sentenced to undergo rigorous imprisonment for life, four years rigorous imprisonment
for attempt to murder, two years rigorous imprisonment under Section 148 of the Indian
Penal Code and one year rigorous imprisonment under Section 147 thereof.
10. Indisputably, Accused No. 1 Phool Chand died during pendency of the appeal in the
High Court. Accused No. 3 also is said to have died about three years back. Kishan
Chand, Badadin and Sheo Prasad are before us.
11. Ms. Sandhya Goswami, learned counsel appearing on behalf of the appellants, took us
through the evidences of Mishri Lal (PW-1), Suraj Lal (PW-2) and Ram Saran (PW-3)
and submitted that from the deposition of the said witnesses, it would appear that the
injuries having been caused only by Phool Chand (since deceased), the appellants cannot
be said to have formed a common object so as to attract the provisions of Section 149 of
the Indian Penal Code.
The learned counsel would point out that a large number of villagers took part in the
incident. Had the appellants been present, they would have also sustained some injuries
and, thus, their presence and participation in the occurrence becomes doubtful.
It was urged that Phool Chand (since deceased) had exercised his right of private defence
inasmuch as from the prosecution case itself it would appear that there were at least 16
persons who intended to cause bodily harm to the accused persons apart from outraging
the modesty of Smt. Shakuntala Devi. In the event, it is found, it was urged, that the said
Phool Chand exceeded his right of private defence, other accused persons could not have
been convicted
@page-SC136
under Section 302/149 of the Indian Penal Code particularly when it has been brought on
record that Phool Chand alone had climbed up the roof and fired causing the deaths.
Ms. Goswami submitted that the courts below committed a manifest error in passing the
impugned judgments insofar as they failed to take into consideration that the injuries had
been sustained by the family of the accused.
It was further urged that in view of the finding of the High Court that the accused Phool
Chand was in possession of the site and the side walls. It was brought to our notice that
the Superintendent of Police Shri Jangi had passed an order (Ex. Kha-1) dated 27.01.1978
validating the possession of Phool Chand after he had given an undertaking to the officer
incharge.
12. Mr. Shail Kumar Dwivedi, learned Additional Advocate General for the State of U.P.
appearing on behalf of the respondent, on the other hand, took us through the judgments
of the learned Trial Judge as also the High Court and submitted that for determining the
question as to whether the accused shared common intention or common object, the
backdrop of events including the fact that they had tried to raise constructions earlier
which had been resisted by the villagers, the fact that the accused were armed with deadly
weapons whereas the prosecution parties were absolutely unarmed, the undertaking of
Accused No. 1 not to make any construction and the prejudice which would be caused to
the villagers if such constructions are allowed to be made, viz., it will take away the right
of some of the villagers to take their carts through the pathway concerned, the false
defence raised by the accused persons are the determination factors.
13. The land in question was allotted to Phool Chand. He indisputably was in possession
thereof. The ownership of the land was, however, disputed. Whether allotment in his
favour was valid keeping in view the fact that the villagers in general had been claiming
user of the said land for a particular purpose is not in dispute. It is furthermore not in
dispute that the accused persons had made several attempts to raise constructions
thereupon. Such attempts on their part had been foiled. Accused No. 1 had also given an
undertaking that he would not make any construction.
14. From the materials brought on record, it is evident that the villagers never intended to
dispossess Phool Chand. They were only resisting his right to raise any constructions
thereupon. When the appellants together with Phool Chand and Accused No. 3 went to
raise constructions, they were armed with deadly weapons. Accused Nos. 1 and 2 were
armed with a double barrel gun and a single barrel gun respectively, the others were
having lathis in their hands. They had hired labourers also with them. Only when they
started raising constructions, the deceased and the prosecution witnesses objected thereto.
It had come on record that they were not required to raise construction till the lis is
determined. The accused persons did not listen to the said advice. They started abusing
the members of the prosecution party. They were requested not to use abusive language.
At that juncture, it is alleged that Accused Nos. 3, 4 and 5 asked Accused Nos. 1 and 2 to
kill them or to assault them.Accused No. 1 went to the roof top of a house. He was
holding a double barrel gun. He fired shots at least aiming at two persons standing at two
different places.He must have fired some other shots also. Deceased No. 1 Ram Asrey
was standing at the Galiyara whereas deceased No. 2 was standing near the wall towards
the West of the said Kothi. It has been proved that Accused No. 2 also fired shots. 17
persons received injuries.
Dr. H. C. Nigam (PW-4) who conducted the post mortem examination on the body of the
deceased Ram Harak found the following injuries :
"(1) Lacerated wound 3/1/2 cm x ½ cm.Bone deep on the forehead 6 cm over the nose
bridge. There was swelling on all four sides of this injury. Multiple firearm entry wounds
in an area of 36 cm x 30 cm spread over chest and right side of abdomen and on chest and
left side of abdomen.
(2) Multiple firearm entry wounds on entero-medival aspect of right hand in an area of 7
cm x cm (sic), 7/1/2 cm above right side.
(3) Multiple firearm entry wounds in an area of 11 cm x 8 cm towards the front side of
right forearm 7 cm below the elbow.
(4) Multiple firearm entry wounds in an area of 9 cm x 6/1/2 cm on the backside of the
palm of right hand,7 cm below from the wrist joint."
@page-SC137
Dr. Gopal Swaroop (PW-5) who conducted the post mortem examination on the body of
the deceased Ram Asrey found the following injuries:
"1. Multiple punctured wound (caused by firearm) found over right side of face in an area
of 8 cm x 6 cm muscle deep on which 4-5 marks of pellets were found, they were marks
of black colour of shots whose margins were inverted.These wounds of entry were of
varying size of ¼ x ¼ cm to 3 cm x - cm.
2. Multiple punctured wounds (firearm wounds) over the right side of neck in an area of
15 cm x 6 cm x muscle deep marks of 2-3 pellets in number which were towards the
inner side. These were inverted wound of entry of varying size of ¼ x ¼ cm to 3 cm x -
cm.
3. Multiple punctured wound in an area of 21 cm x 6 cm x muscle deep over the right
shoulder in the upper limbs just below the shoulder joint of black colour. The wounds of
entry were of varying size of ¼ cm x ¼ cm to - cm x - cm.
4. Multiple punctured wound (firearms) 42 cm x 26 cm x muscle deep towards the front
side of right chest on which approximately mark of 50 to 60 pellets were present which
were wounds of entry whose size differed from ¼ x ¼ cm to - cm x - cm.
The injuries on the deceased, therefore, must have been caused as a result of more than
one shots fired at each of them.
Dr. P. N. Pandey (PW-6) examined Mishri Lal, Pyare and Shiv Pal. The following injuries
were found on the body of the Mishri Lal :
(1) Firearm wound 0.5 cm x 0.4 cm on left side neck 12 cm above left sterno clavicle
joint.
(2) Lacerated wound 1 cm x 0.5 cm on left palm in between middle and lateral fingers.
(3) Abrasion 0.5 cm x 0.5 cm on joint of right side knee.
On the body of Pyare, the following injuries were found :
"(1) Abrasion 0.2 cm x 0.2 cm on left side back of chest 10 cm away from vertebral
column.
(2) Abrasion 0.2 cm x 0.2 cm on inner side on left foot 6 cm beneath the knee joint."
The following injuries were found on the body of Shiv Pal:
(1) Abrasion 0.5 cm x 0.5 cm on left side of chest 8 cm above the left nipple.
(2) Abrasion 0.5 cm x 0.5 cm on left side thigh upper part 35 cm above left knee joint."
As regards injuries on the body of Mishri Lal, Dr. Pandey opined :
"........Injury No. 1 of Mishri Lal can be caused by a pellet fired from rifle. Injury No. 2
can be caused by some blunt weapon, for instance, lathi. The remaining injuries can be
caused by pellets from the rifles of the three accused."
As regards injuries on the persons of Pyare and Shiv Pal, Dr. Pandey opined that the
injuries were caused by friction.
Participation by all the accused in causing death of two persons and injuries sustained by
others is, therefore, apparent.
15
. This Court in Mizaji and Another v. The State of U.P. [(1959) Supp (1) SCR 940] opined
that there are two parts of Section 149 of the Indian Penal Code. To attract the first part, it
was not necessary that there should be a pre-concert. In regard to the second part, it was
stated : AIR 1959 SC 572, Para 6
".........Even if the offence committed is not in direct prosecution of the common object of
the assembly, it may yet fall under Section 149 if it can be held that the offence was such
as the members knew was likely to be committed. The expression know does not mean a
mere possibility, such as might or might not happen. For instance, it is a matter of
common knowledge that when in a village a body of heavily armed men set out to take a
woman by force, someone is likely to be killed and all the members of the unlawful
assembly must be aware of that likelihood and would be guilty under the second part of
Section 149. Similarly, if a body of persons go armed to take forcible possession of the
land, it would be equally right to say that they have the knowledge that murder is likely to
be committed if the circumstances as to the weapons carried and other conduct of the
members of the unlawful assembly clearly point to such knowledge on the part of them
all..........."
16
. In Bishna Alias Bhiswa-deb Mahato and Ors. v. State of West Bengal [(2005) 12 SCC
657 : 2005 (9) Scale 204], this Court held : 2005 AIR SCW 5798, Para 49
" For the purpose of attracting Section 149

@page-SC138
and/or 34, IPC, a specific overt act on the part of the accused is not necessary. He may
wait and watch. Inaction on the part of an accused may some time go a long way to hold
that he shared a common object with others."
17
. In Triloki Nath and Others v. State of U.P. [(2005) 13 SCC 323], the law has been stated
in the following terms : 2005 AIR SCW 5824, Para 70
" For the purpose of attracting Section 149 of the IPC, it is not necessary that there should
be a pre-concert by way of a meeting of the persons of the unlawful assembly as to the
common object. If a common object is adopted by all the persons and shared by them, it
would serve the purpose."
18
. Ms. Goswami relied upon a decision of this Court in Munna Chanda v. State of Assam
[(2006) 3 SCC 752] wherein the accused persons were held to have not formed any
common object keeping in view the genesis of the said occurrence which took place at
three different stages. Appellants therein were involved only at the third stage. It was in
the peculiar fact situation obtaining therein this Court opined : 2006 AIR SCW 1058,
Para 13
" The appellants herein were not armed with weapons. They except Bhuttu were not
parties to all the three stages of the dispute. At the third stage of the quarrel, they wanted
to teach the deceased and others a lesson. For picking up quarrel with Bhuttu, they might
have become agitated and asked for apologies from Moti. Admittedly, it was so done at
the instance of Nirmal, Moti was assaulted by Bhuttu at the instance of Rattan. However,
it cannot be said that they had common object of intentional killing of the deceased.
Moti,however, while being assaulted could free himself from the grip of the appellants
and fled from the scene. The deceased, was being chased not only by the appellants
herein but by many others. He was found dead next morning. There is, however, nothing
to show as to what role the appellants either conjointly or separately played. It is also not
known as to whether if one or all of the appellants were present, when the last blow was
given. Who are those, who had assaulted the deceased is also not known. At whose hands
he received injuries is again a mystery. Neither Section 34 nor Section 149 of the Indian
Penal Code is, therefore, attracted. [See Dharam Pal and Others v. State of Haryana
(1978) 4 SCC 440 and Shambhu Kuer v. State of Bihar AIR 1982 SC 1228]. AIR
1978 SC 1492
19. Right of self-defence is a plea which is available to the accused but the burden to
prove the same would be on them.
The High Court, in our opinion, committed an error in rejecting the plea of self-defence
raised on behalf of the accused stating that the incident took place at an open space. There
is no law that right of self-defence cannot be exercised in relation to a dispute over an
open space. But the factual matrix obtaining in the instant case being absolutely different,
we are of the opinion that right of self-defence on the part of the accused was not
available. Accused persons were the aggressors. They had gone to the scene of
occurrence with weapons. Phool Chand and other accused, in all probability, thought that
having regard to the order passed by the Superintendent of Police asking his subordinate
officers to afford them protection, they could take law in his own hands. Thus, they could
raise construction by show of force.
Evidences adduced on behalf of the prosecution in no unmistakable terms point out that
all the overt acts started from the side of the accused persons. They rejected the advice
not to raise any construction till the dispute is determined. They started using abusive
language and even when asked not to do so they continued to do so. Only when a protest
was made by the villagers, Accused No. 1 Phool Chand went to the roof top of a house
and started indiscriminate firing. He was in army. He was presumably a good marks man.
Shots fired by him hit the deceased on vital parts of their bodies.
20. It is not the case of the appellants that the villagers intended to dispossess them. We
have noticed hereinbefore that they were not armed at all. They had assembled at the
place only with a view to resist the attempt on the part of the accused persons to raise
constructions in respect whereof Accused No. 1 himself had given an undertaking that he
would not do so. The Superintendent of Police might have issued certain directions to the
Sub-Inspector but indisputably the lis was pending adjudication before a competent
authority. Accused could not have taken law in their own hands only because the
Superintendent of Police has asked his police officer to give protection to him.
21. It has been found by the learned Trial
@page-SC139
Judge as also the High Court that the prosecution witnesses did not enter into their house.
The plea that the modesty of Smt. Shakuntala Devi was outraged has been rejected by
both the Courts. The accused did not lodge any First Information Report in that behalf.
They, for reasons best known to them, did not go to a government doctor to get their
purported injuries examined on their persons. Although the offence took place in the
morning of 3.02.1978, they went to DW-1 only on the next day to get their purported
injuries examined. For valid and cogent reasons, the testimonies of the DWs had not been
accepted. The question as to whether in a situation of this nature the right of private
defence could be exercised by the accused persons must be considered having regard to
the following facts :
(i) the prosecution witnesses were not armed;
(ii) there is nothing to show that they attempted to dispossess Accused No. 1.
(iii) They did not dismantle the structures.
(iv) Accused persons themselves started abusing them.
(v) They intended to establish their right of raising constructions for which they were
fully prepared.
(vi) Had the matter been otherwise, the villagers would have also gone to the site with
arms.
(vii) Why all the five accused persons were armed has not been explained.
22. The fact that number of injuries sustained by the prosecution witnesses and the nature
thereof, viz., they suffered gun shot injuries as also injuries caused by lathis, goes a long
way to show that the accused persons had shared common object.
From the post mortem as also the injury report, it is evident that more than one gun was
used for commission of the offence. The prosecution witnesses also suffered injuries
which could only be caused by lathis. It is, therefore, a case where all the appellants
together with Phool Chand had taken part in the commission of the offence.
23. In Shambhu Nath Singh and others v. State of Bihar [AIR 1960 SC 725], this Court
opined :
"6. Section 149 of the Indian Penal Code is declaratory of the vicarious liability of the
members of an unlawful assembly for acts done in prosecution of the common object of
that assembly or for such offences as the members of the unlawful assembly knew to be
likely to be committed in prosecution of that object. If an unlawful assembly is formed
with the common object of committing an offence, and if that offence is committed in
prosecution of the object by any member of the unlawful assembly, all the members of
the assembly will be vicariously liable for that offence even if one or more, but not all
committed the offence. Again, if an offence is committed by a member of an unlawful
assembly and that offence is one which the members of the unlawful assembly knew to
be likely to be committed in prosecution of the common object, every member who had
that knowledge will be guilty of the offence so committed. But "members of an unlawful
assembly may have a community of object upto a certain point, beyond which they may
differ in their objects, and the knowledge possessed by each member of what is likely to
be committed in prosecution of their common object may vary not only according to the
information at his command, but also according to the extent to which he shares the
community of object and as a consequence of this the effect of Section 149 of the Indian
Penal Code may be different on different members of the same unlawful assembly."
Jahiruddin v. Queen Empress, ILR 22 Cal 306.
24
. In Shivalingappa Kallayanappa and Others v. State of Karnataka [1994 Supp (3) SCC
235], this Court opined : 1994 AIR SCW 4406, Para 8
"9. From the above discussion it is established by the prosecution that A-1 to A-5 formed
into an unlawful assembly variously armed and participated in the occurrence during
which two deceased persons died and P.Ws. 2 to 4 received injuries. The next question is
whether the common object of the unlawful assembly was to commit the murders.
Whether there was such a common object or not, depends upon various factors. A-1 and
A-2, though armed with axes, did not use the sharp side but only gave one or two blows
on the heads with the butt ends. A-4 and A-5 who were armed with sticks dealt blows
only on the legs and or on the hands which were not serious. A-3 did not participate in the
attack on any of the two deceased persons. These circumstances show that the common
object of the unlawful assembly cannot be said to be to cause murders and at any rate it
cannot be
@page-SC140
said that all the accused shared the same and that they had knowledge that the two
deceased persons would be killed and with that knowledge continued to be the members
of the unlawful assembly. However, taking all the circumstances of the case into
consideration, the common object can be held to be only to cause grievous hurt. A-1 and
A-2, however, dealt blows with the butt ends of the axes on the two deceased persons and
the injuries on the heads caused by them proved to be fatal. Having given our earnest
consideration to this aspect of the case, we are of the view that A-1 and A-2 must be held
liable for their individual acts and they would be liable to be punished under Section 302,
I.P.C. and A-3 to A-5 under Sections 326/149, I.P.C. so far as the attack on the two
deceased persons is concerned.
25
. In Bunnilal Chaudhary v. State of Bihar [(2006) 10 SCC 639], this Court held : 2006
AIR SCW 3419
"13....... We may say here that it is now the settled law that under Section 149, IPC, the
liability of other members for the offence committed during the continuance of the
occurrence rests upon the fact whether the other persons knew before hand that the
offence actually committed was likely to be committed in prosecution of the common
object. Such knowledge may reasonably be collected from the nature of the assembly,
arms or behaviour on or before the scene of occurrence........."
26
. In Sunil Balkrishna Bhoir v. The State of Maharashtra [2007 (7) Scale 184], this Court
held : 2007 AIR SCW 3234
"17. Section 149 per se constitutes a substantive offence. The object of this section is to
make clear that an accused person whose case falls within its terms cannot put forward
the defence that he did not, with his own hand, commit the offence committed in
prosecution of the common object of the unlawful assembly or such as the members of
the assembly knew to be likely to be committed in prosecution of that object. Unlawful
assembly was formed originally to assault and something might have happened all of a
sudden."
27. In a case of this nature, the injuries on the part of the defence witnesses need not
detain us as sufferance of such injuries at the hands of the prosecution witnesses had not
been believed by both the courts below.We do not see any reason to differ with the said
findings.
28. If Phool Chand was armed by the purported order passed by the Superintendent of
Police that he should have assistance from the police officers.We fail to see any reason as
to why he could not go to the police station and lodge a First Information Report. Why
the injured persons did not go to a Government Hospital for getting themselves examined
on that date itself. It betrays common sense as to why they had to go to a private doctor
and that too on the next date. The accused persons even did not mind setting up a false
plea to the effect that modesty of Smt. Shakuntala Devi had been outraged. The testimony
of Smt. Shakuntala Devi has been discarded by the courts below. No attempt even had
been made before us to assail the correctness of that part of the judgment.
29. For the reasons aforementioned, we do not find any merit in this appeal which is
dismissed accordingly.
Appeal dismissed.
AIR 2008 SUPREME COURT 140 "Sunil Gupta v. Kiran Girhotra"
(From : Delhi)
Civil Appeal No. 4729 of 2007 (arising out of SLP (Civil) No. 6795 of 2007) with
Contempt Petn. No. 270 of 2007, D/- 9 -10 -2007.
Sunil Gupta v. Kiran Girhotra and Ors.
Succession Act (39 of 1925), S.283 - SUCCESSION - PROBATE - Probate proceedings -
Parties - Transferee during pendency of proceedings - Not necessary party - Citations are
necessary to be made to only those who, inter alia, claim through or under Will or deny or
dispute execution thereof. (Paras 13, 17, 20)
2005 AIR SCW 2368 : AIR 2005 SC 2813 (Rel. on.) 21
2003 AIR SCW 5858 : AIR 2004 SC 173 (Rel. on.) 20
AIR 2003 Del 292 19
2002 AIR SCW 2873 : AIR 2002 SC 2572 21
AIR 1977 SC 63 (Expln.) 6, 18
AIR 1973 MP 69 6, 15
Raju Ramchandran, Sr. Advocate, Ms. Meenakshi Arora, for Appellant; O. P. Khadaria,
M/s. Mitter and Co., Ms. Indra, for Respondents.
@page-SC141
Judgement
1. S. B. SINHA, J. :-Leave granted.
2. The question as to whether a purchaser of a property belonging to the deceased testator
should be impleaded as a party in a probate proceedings is the question involved in this
appeal which arises out of judgments and orders dated 31.08.2006 in C.M. (Main) No.
285 of 2005 and 13.11.2006 passed in Review Petition No. 393 of 2006 by a learned
single Judge of the Delhi High Court.
3. The property in question admittedly belonged to one Har Bhagwan. He died on
03.11.1997. He was survived by his wife, four daughters and two sons. Respondents
herein are daughters of the said Har Bhagwan. One of the sons of Har Bhagwan was Raj
Kumar. Wife of Har Bhagwan has passed away. Allegedly, another son of Har Bhagwan
was given in adoption.
4. Har Bhagwan executed a Will on 09.09.1997. Respondents herein are the beneficiaries
thereof. They filed an application for grant of probate in the year 2000. Both the sons of
Har Bhagwan filed objections thereto. Raj Kumar propounded another Will of the said
Har Bhagwan which was allegedly executed on 30.10.1997. Indisputably, Raj Kumar
executed two deeds of sale dated 20.06.2003 and 27.06.2003 in favour of one Amit
Pahwa. The properties purported to have been transferred by reason of the said deeds of
sale forming subject-matter of the grant under the Will. No probate was obtained in
respect of the said Will dated 30.10.1997. Even no objection from other legal heirs of the
late Har Bhagwan was obtained. Immediately after execution of the said deeds, the said
Amit Pahwa entered into an agreement to sell dated 25.07.2003 in respect of one of the
properties. In furtherance thereto, a purported deed of sale is said to have been executed
in respect of the other property on 29.08.2003.
5. Appellant herein filed an application for his impleadment in the said probate
proceedings. It was allowed by an order dated 24.12.2004. By reason of the impugned
judgment, the High Court has reversed the said judgment and order on an application
filed under Article 227 of the Constitution of India by the respondents herein.
6
. Mr. Raju Ramachandran, learned Senior Counsel appearing on behalf of the appellant,
in support of the appeal, would submit that the High Court committed a serious error
insofar as it failed to take into consideration that in a proceeding under the Indian
Succession Act, 1925, (for short, the Act) the court should always make an endeavour to
avoid multiplicity of proceedings. It was contended that the courts power to implead a
party, who, stricto sensu, may not be a necessary party is wide. Strong reliance in this
behalf has been placed on a decision in Banwarilal Shriniwas v. Kumari Kusum Bai and
Others [AIR 1973 MP 69] as also in Seth Beni Chand (since Dead) Now by L.Rs. v. Smt.
Kamla Kunwar and Others [(1976) 4 SCC 554]. AIR 1977 SC 63
7. Mr. O.P. Khadaria, learned counsel appearing on behalf of Respondent Nos. 1 to 3 and
Respondent No. 4, who appeared in person, on the other hand, submitted that the
appellant is not a necessary party to the proceeding and, thus, the impugned judgment
should not be interfered with.
8. Chapter I of Part IX of the Act provides for grant of Probate and/or Letters of
Administration. A probate can be granted only to an executor appointed by the Will.
Chapter III of the Act provides for revocation or annulment for just cause. Illustration
appended to Section 263 of the Act reads as under :
"Illustration
(i) The Court by which the grant was made had no jurisdiction.
(ii) The grant was made without citing parties who ought to have been cited.
(iii) The will of which probate was obtained was forged or revoked.
(iv) A obtained letters of administration to the estate of B, as his widow, but it has since
transpired that she was never married to him.
(v) A has been taken administration to the estate of B as if he had died intestate, but a will
has since been discovered.
(vi) Since probate was granted, a latter will has been discovered.
(vii) Since probate was granted, a codicil has been discovered which revokes or adds to
the appointment of executors under the will.
(viii) The person to whom probate was, or letters of administration were, granted has
@page-SC142
subsequently become of unsound mind."
9. Illustration (ii) provides for revocation of grant if made without citing parties who
ought to have been cited.
10. Section 283 of the Act provides for the powers of the District Judge to grant probate,
which is in the following terms :
"283. Power of District Judge.- (1) In all cases the District judge or District Delegate
may, if he thinks proper, -
(a) examine the petitioner in person, upon oath;
(b) require further evidence of the due execution of the will or the right of the petitioner
to the letters of administration, as the case may be;
(c) issue citations calling upon all persons claiming to have any interest in the estate of
the deceased to come and see the proceedings before the grant of probate or letters of
administration.
(2) The citation shall be fixed up in some conspicuous part of the court-house, and also
the office of the Collector of the district and otherwise published or made known in such
manner as the Judge or District Delegate issuing the same may direct.
(3) Where any portion of the assets has been stated by the petitioner to be situate within
the jurisdiction of a District Judge in another State, the District Judge issuing the same
shall cause a copy of the citation to be sent to such other District Judge, who shall publish
the same in the same manner as if it were a citation issued by himself, and shall certify
such publication to the District Judge who issued the citation.".
11. Section 307(1) of the Act provides for power of the Executor or Administrator to
dispose of property in the following terms :
"307. Power of executor or administrator to dispose of property.- (1) Subject to the
provisions of sub-section (2), an executor or administrator has power to dispose of the
property of the deceased, vested in him under section 211, either wholly or in part, in
such manner as he may think fit."
12. Sons of late Har Bhagwan had entered Caveats. Their objections would be considered
in the probate proceedings. Raj Kumar is not only opposing grant of probate in favour of
the respondents herein in respect of the Will dated 09.09.1997; but he himself is said to
be claiming under a Will executed by Late Har Bhagwan on 30.10.1997.
13. A transferee of a property during the pendency of a proceeding is not a necessary
party. Citations are necessary to be made to only of those who, inter alia, claim through
or under the Will or deny or dispute the execution thereof.
14. The High Court in its impugned judgment has noticed that the attesting witnesses of
the Will had already been examined. If the appellant herein is impleaded as a party, the
clock would be put back. Before the High Court as also before us, arguments have been
advanced in regard to conduct of the appellant as also the fact that they are only
speculators who had purchased litigated properties. But we may not go thereinto.
15
. In Banwarilal Shrinivas (supra) whereupon Mr. Rama-chandran has placed reliance, the
High Court was considering the case of a purchaser in a proceeding under Section 263 of
the Act. AIR 1973 MP 69
16. Raj Kumar evidently was aware of the proceedings. If a proceeding had been initiated
for grant of probate, the appellant and/or his predecessor, Shri Amit Pahwa would be
deemed to have notice thereof.
17. Citation, as is well-known, should be conspicuously displayed on a notice board.
Before purchasing the properties, Amit Pahwa and consequently the appellant had taken a
calculated risk. In a situation of this nature, he is not a necessary party. He took the risk
of the result of the probate proceedings. His apprehension that Raj Kumar may not take
any interest in the litigation cannot by itself a ground for interfering with the impugned
judgment. It is speculative in nature.
18
. In Seth Beni Chand (supra), whereupon reliance has been placed by Mr. Ramachandran,
this Court was considering an argument as to whether alienees of properties are entitled
to citation in probate proceedings. This Court proceeded on the assumption that
Banwarilal Shrinivas (supra) lays down the correct law. But even therein a distinction
was made stating that the alienee was a transferee pendent lite. The said decision,
therefore, is an authority for the proposition that no citation need be issued to any person
who had no right to the property prior to the AIR 1977 SC 63
AIR 1973 MP 63
@page-SC143
commencement of the probate proceedings. This Court in no uncertain term opined that
the alienees had no right to be heard in the appeal The said decision, therefore, runs
counter to the submission of Mr. Ramachandran.
19
. We may notice that a Division Bench of the Delhi High Court in Indian Associates v.
Shivendra Bahadur Singh and Others [104 (2003) DLT 820], opined that the court must
be satisfied in regard to the execution of the Will. It is not concerned with any other
arrangement. It was held : AIR 2003 Delhi 292
" 26. The respondent on the other hand have tried to distinguish the cases relied upon by
the appellant by contending that all those were cases where, certain persons were allowed
to intervene or were impleaded but all were cases of family members and as such as the
appellant-herein, could apply to be made a party in probate proceedings.
27. During the hearing of the matter, we drew the attention of both the parties to the
provisions of Section 307 of the Succession Act, which made the permission of the court
to be mandatory for purposes of transfer of property by an administrator. Both the parties
were heard on this aspect."
20
. Even otherwise ordinarily a transferee pendent lite without leave of the court cannot be
impleaded as a party. [See Bibi Zubaida Khatoon v. Nabi Hassan Saheb and Another
(2004) 1 SCC 191]. 2003 AIR SCW 5858
21
. Furthermore, the plaintiff in the suit is the dominus litis. If he intends to take a
calculated risk in the matter, the court may not exercise its discretionary jurisdiction. [See
Kasturi v. Iyyamerumal and Others (2005) 6 SCC 733 Para 18 and Dhannalal v.
Kalawatibai and Others (2002) 6 SCC 16 Para 23] 2005 AIR SCW 2368
2002 AIR SCW 2873
22. For the reasons aforementioned, we do not find any merit in this appeal, which is
dismissed accordingly with costs. Counsel's fee assessed at Rs. 10,000/-.
23. In view of the aforementioned judgment and order, no orders are necessary to be
passed in the contempt petition.
Appeal dismissed
AIR 2008 SUPREME COURT 143 "Sita Ram v. Radhey Shyam"
(From : Rajasthan)*
-2007.
Sita Ram and Ors. v. Radhey Shyam.
Specific Relief Act (47 of 1963), S.16(c) - CONTRACT - PLEADINGS - DISMISSAL -
Ready and willing to perform - Pleading and proof - Specific performance - Suit for -
Plaintiff has to show that his conduct has been blemishless throughout - Provision
imposes personal bar in event of plaintiff failing to do so - In suit, there was claim in
respect of particular khasra number which did not form part of agreement - Plaint itself
indicated that said khasra number was added later on - There was also an averment to
effect that agreement related to a completed sale - Dismissal of suit on ground that
requirements of S. 16(c) were not met - No interference.
2005 AIR SCW 4789, 2000 AIR SCW 2554, 1999 AIR SCW 2959, AIR 1968 SC 1355,
Rel. on. (Paras 10, 11)
1999 AIR SCW 2959 : AIR 1999 SC 3029 (Rel. on) 7, 8
AIR 1990 SC 682 8
AIR 1971 SC 1238 8
(1969) 2 SCC 539 8
AIR 1968 SC 1355 (Rel. on) 6
AIR 1928 PC 208 6
(1851) 117 ER 1229 9
Ajay Choudhary, Vijay Pal Singh, for Appellants; Sushil Kumar Jain, Puneet Jain, Ms.
Christi Jain, Piyush Jain, Ms. Pratibha Jain, for Respondent.
* S.B. Civil S.A. No. 535 of 2005, D/- 24-10-2005 (Raj) (Jaipur Bench).
Judgement
2. Challenge in this appeal is to the order passed by a learned Single Judge of the Jaipur
Bench of Rajasthan High Court dismissing the Second Appeal filed by the plaintiffs-
appellants. It is to be noted that the
@page-SC144
trial court decreed the suit, which was one for specific performance of a contract while
the first appellate court set aside the decree. The appellate court dismissed the suit on the
ground that the pleadings were not in accordance with the provisions of Section 16(c) of
the Specific Relief Act, 1963 (in short the 'Act'). Learned Single Judge dismissed the
Second Appeal holding that no substantial question of law was involved as essentially the
conclusions of the first appellate court were factual findings.
3. In support of the appeal, learned counsel for the appellants submitted that in the plaint,
in essence, specific statement had been made about the fact that the plaintiffs had
mentioned to the defendant that they were ready and willing to do such effort or act as
would be necessary to be done by the plaintiffs for performance of the contract. It was,
therefore, submitted that the first appellate court and the High Court were not justified in
holding that the requirements of Section 16(c) of the Act were not met.
4. Per contra, learned counsel for the respondent submitted that the bare reading of the
plaint itself indicated that Khasra No. 866 was later on added and, therefore, the question
of the plaintiffs being ready and willing to perform the contract as originally stood, does
not really arise. Specific reference was made to the pleadings to the effect that though the
documents were executed on 1.9.1977, the same was complete and on that basis the sale
has been concluded. It is submitted that if the sale was concluded as pleaded, the question
of filing the suit for specific contract does not arise. Moreover, the plaintiffs themselves
had stated that Khasra No.866 was added later on.
5. In order to appreciate the rival submissions, Section 16(c) needs to be quoted along
with the Explanations. The same reads as follows :
"16. Personal bars to relief :
(a) .........
(b) .........
(c) who fails to aver and prove that he has performed or has always been ready and
willing to perform the essential terms of the contract which are to be performed by him,
other than terms of the performance of which has been prevented or waived by the
defendant.
Explanation- For the purpose of clause (c)-
(i) where a contract involves the payment of money, it is not essential for the plaintiff to
actually tender to the defendant or to deposit in Court any money except when so directed
by the Court;
(ii) the plaintiff must aver performance of, or readiness and willingness to perform, the
contract accordingly to its true construction."
6. In Ardeshir H. Mama v. Flora Sassoon (AIR 1928 PC 208), the Privy Council observed
that where the injured party sued at law for a breach, going to the root of the contract, he
thereby elected to treat the contract as at an end himself and as discharged from the
obligations. No further performance by him was either contemplated or had to be
tendered. In a suit for specific performance on the other hand, he treated and was required
by the Court to treat the contract as still subsisting. He had in that suit to allege, and if the
fact was traversed, he was required to prove a continuous readiness and willingness from
the date of the contract to the time of the hearing, to perform the contract on his part.
Failure to make good that averment brings with it and leads to the inevitable dismissal of
the suit. The observations were cited with approval in Prem Raj v. The D.L.F. Housing
and Construction (Private) Ltd. and Anr. (AIR 1968 SC 1355).
7
. While examining the requirement of Section 16(c) this Court in Syed Dastagir v. T.R.
Gopalakrishna Settty (1999 (6) SCC 337) noted as follows : 1999 AIR SCW 2959,
Para 9
"So the whole gamut of the issue raised is, how to construe a plea specially with
reference to Section 16(c) and what are the obligations which the plaintiff has to comply
with in reference to his plea and whether the plea of the plaintiff could not be construed
to conform to the requirement of the aforesaid section, or does this section require
specific words to be pleaded that he has performed or has always been ready and is
willing to perform his part of the contract. In construing a plea in any pleading, courts
must keep in mind that a plea is not an expression of art and science but an expression
through words to place fact and law of one's case for a relief. Such an expression may be
pointed, precise, sometimes vague but still it could be gathered what he wants to convey
through only by reading the whole pleading, depending on the person drafting
@page-SC145
a plea. In India most of the pleas are drafted by counsel hence the aforesaid difference of
pleas which inevitably differ from one to the other. Thus, to gather true spirit behind a
plea it should be read as a whole. This does not distract one from performing his
obligations as required under a statute. But to test whether he has performed his
obligations, one has to see the pith and substance of a plea. Where a statute requires any
fact to be pleaded then that has to be pleaded may be in any form. The same plea may be
stated by different persons through different words; then how could it be constricted to be
only in any particular nomenclature or word. Unless a statute specifically requires a plea
to be in any particular form, it can be in any form. No specific phraseology or language is
required to take such a plea. The language in Section 16(c) does not require any specific
phraseology but only that the plaintiff must aver that he has performed or has always
been and is willing to perform his part of the contract. So the compliance of "readiness
and willingness" has to be in spirit and substance and not in letter and form. So to insist
for a mechanical production of the exact words of a statute is to insist for the form rather
than the essence. So the absence of form cannot dissolve an essence if already pleaded."
8
. Again in Motilal Jain v. Ramdasi Devi (Smt.) and Ors. (2000 (6) SCC 420) it was noted
as follows : 2000 AIR SCW 2554
"7. The other contention which found favour with the High Court, is that plaint averments
do not show that the plaintiff was ready and willing to perform his part of the contract
and at any rate there is no evidence on record to prove it. Mr. Choudhary developed that
contention placing reliance on the decision in Varghese case ((1969) 2 SCC 539). In that
case, the plaintiff pleaded an oral contract for sale of the suit property. The defendant
denied the alleged oral agreement and pleaded a different agreement in regard to which
the plaintiff neither amended his plaint nor filed subsequent pleading and it was in that
context that this Court pointed out that the pleading in specific performance should
conform to Forms 47 and 48 of the First Schedule of the Code of Civil Procedure. That
view was followed in Abdul Khader case ((1989) 4 SCC 313 : AIR 1990 SC 682).
8. However, a different note was struck by this Court in Chandiok case ((1970) 3 SCC
140 : AIR 1971 SC 1238). In that case 'A' agreed to purchase from 'R' a leasehold plot. 'R'
was not having lease of the land in his favour from the Government nor was he in
possession of the same. 'R', however, received earnest money pursuant to the agreement
for sale which provided that the balance of consideration would be paid within a month at
the time of the execution of the registered sale deed. Under the agreement 'R' was under
obligation to obtain permission and sanction from the Government before the transfer of
leasehold plot. 'R' did not take any steps to apply for the sanction from the Government.
'A' filed the suit for specific performance of the contract for sale. One of the contentions
of 'R' was that 'A' was not ready and willing to perform his part of the contract. This
Court observed that readiness and willingness could not be treated as a straitjacket
formula and that had to be determined from the entirety of facts and circumstances
relevant to the intention and conduct of the party concerned. It was held that in the
absence of any material to show that 'A' at any stage was not ready and willing to perform
his part of the contract or that he did not have the necessary funds for payment when the
sale deed would be executed after the sanction was obtained, 'A' was entitled to a decree
for specific performance of contract.
9. That decision was relied upon by a three-Judge Bench of this Court in Syed Dastagir
case ((1999) 6 SCC 337) wherein it was held that in construing a plea in any pleading,
courts must keep in mind that a plea is not an expression of art and science but an
expression through words to place fact and law of one's case for a relief. It is pointed out
that in India most of the pleas are drafted by counsel and hence they inevitably differ
from one to the other; thus, to gather the true spirit behind a plea it should be read as a
whole and to test whether the plaintiff has performed his obligations, one has to see the
pith and substance of the plea. It was observed : 1999 AIR SCW 2959
"Unless a statute specifically requires a plea to be in any particular form, it can be in any
form. No specific phraseology or language is required to take such a plea. The language
in Section 16(c) of the Specific Relief Act, 1963 does not require any specific
phraseology but only that the plaintiff must aver that he has performed or has
@page-SC146
always been and is willing to perform his part of the contract. So the compliance of
'readiness and willingness' has to be in spirit and substance and not in letter and form."
It is thus clear that an averment of readiness and willingness in the plaint is not a
mathematical formula which should only be in specific words. If the averments in the
plaint as a whole do clearly indicate the readiness and willingness of the plaintiff to fulfil
his part of the obligations under the contract which is the subject-matter of the suit, the
fact that they are differently worded will not militate against the readiness and
willingness of the plaintiff in a suit for specific performance of contract for sale."
9. Lord Campbell in Cork v. Ambergate etc. and Railway Co. (1851) 117 ER 1229
observed that in common sense the meaning of such an averment of readiness and
willingness must be that the non-completion of the contract was not the fault of the
plaintiffs, and that they were disposed and able to complete it had it not been renounced
by the defendant.
10
. The basic principle behind Section 16(c) read with Explanation (ii) is that any person
seeking benefit of the specific performance of contract must manifest that his conduct has
been blemishless throughout entitling him to the specific relief. The provision imposes a
personal bar. The Court is to grant relief on the basis of the conduct of the person seeking
relief. If the pleadings manifest that the conduct of the plaintiff entitles him to get the
relief on perusal of the plaint he should not be denied the relief. (See Aniglase Yohannan
v. Ramlatha and Ors. (2005(7) SCC 534). 2005 AIR SCW 4789
11. That being so, considering the background facts tested on the anvil of the principles
of law formulated above, the inevitable conclusion is that the appeal deserves to be
dismissed. There is no dispute that there was claim in respect of Khasra 866 which did
not form part of the agreement. There was also an averment to the effect that the
agreement related to a completed sale. There shall be no orders as to costs.
Appeal dismissed.
AIR 2008 SUPREME COURT 146 "U. P. Power Corporation Ltd. v. M/s. Bonds and
Beyonds (India) (P) Ltd."
(From : Allahabad)*
-2007.
U. P. Power Corporation Ltd. and Ors. v. M/s. Bonds and Beyonds (India) (P) Ltd.
Electricity Act (9 of 1910), S.22B - U.P. Electricity (Regulation of Supply, Distribution,
Consumption and Use) Order (1977), Cl.9 (as amended by 1st and 2nd Amendment
Order of 1984) - ELECTRICITY - Penalty for violation of peak hour restrictions -
Circulars issued by Board D/- 15-10-1998 and 7-4-1999 - Interpretation of - One meter
reading inspection report storing data for 35 days - Cannot be treated as one
contravention irrespective of fact that many contraventions have been made of peak hour
restriction as per one meter reading - One time concession given only for first time and
not for all times to come - For each contravention in future penalty will be levied
separately.
Civil Misc. Writ Petition No. 4214 of 2001, D/- 25-5-2001 (All), Reversed. (Para
5)
2006 AIR SCW 4707 : 2006 (6) ALJ 71 : 2006 (6) AIR Kar R 99 (Foll.) 6
Subodh Gokhale, Pravin S. Vate, Naresh Kumar, Pradeep Misra, for Appellants.
* Civil M.W.P. No. 4214 of 2001, D/- 25-5-2001 (All.).
Judgement
2. Challenge in this appeal is to the order passed by a Division Bench of the Allahabad
High Court holding that the demand raised by the appellant-Corporation through various
bills purporting to realize penalty for violation of peak hour restrictions cannot be
maintained. The question was whether one Meter Reading Inspection Report (in short
'MRI') should be construed as single violation of the commercial restrictions irrespective
of the fact that a number of contraventions might have been made by consumers during
the period covered by the said report.
3. The State Government of Uttar
@page-SC147
Pradesh issued a notification under Section 22-B of the Electricity Act, 1910 (hereinafter
to be referred to as "the Act of 1910") known as the U.P. Electricity (Regulation of
Supply, Distribution, Consumption and Use) Order, 1977 which was published in the
Official Gazette. This order was amended on 30-4-1984, known as the U.P. Electricity
(Regulation of Supply, Distribution, Consumption and Use) (1st Amendment) Order,
1984 by which clause 9 of the 1977 Order was amended and it was substituted by the
following :
"9. (1) Without prejudice to the provisions contained in Section 42 of the Indian
Electricity Act, 1910, all Chief Zonal Engineers, Superintending Engineers, Executive
Engineers, Assistant Executive Engineers and Assistant Engineers of the Uttar Pradesh
State Electricity Board, the Chief Electrical Inspector, all Deputy Electrical Inspectors
and all Assistant Electrical Inspectors to the State Government are authorised to
disconnect the supply summarily without notice in relation to such installation as are
found upon inspection made by them to have contravened the provisions of this Order.
The supply shall remain disconnected for the period specified below-
(a) Contravention first in point of time 5 days
(b) Contravention second in point of time 10 days
(c) Contravention third in point of time 20 days
(d) Contravention beyond third point of time - Permanently:
Provided that for the purposes of this clause any contravention prior to 1-5-1984 shall not
be taken into account.
(2) In addition to above, such consumers shall be liable to pay the penalty for each
contravention as follows :
(a) Consumers having contracted load up to 100 kVA, at Rs 50 per kVA on their
contracted load.
(b) Consumers having contracted load above 100 kVA and up to 500 kVA at Rs.30 per
kVA on their contracted load subject to minimum of Rs 5000.
(c) Consumers having contracted load above 500 kVA at the rate of Rs 20 per kVA on
their contracted load subject to minimum of Rs 15,000.
The reconnection shall only be done after payment of penalty and expiry of the above
specified disconnection period whichever is later."
4. The amended Order of 1984 was initially applied from 1-5-1984 to 21-5-1984. The
State Government again issued another order known as the U.P. Electricity (Regulation of
Supply, Distribution, Consumption and Use) (Second Amendment) Order, 1984 on 21-5-
1984 and it was made applicable with effect from 1-5-1984. By this, clause III of the First
Amendment Order was substituted and the same was made applicable with effect from 1-
5-1984 and was to remain in force until withdrawn. It is alleged that the said Order was
not withdrawn by the State Government and is still in force. The Corporation in order to
check the malpractice by the consumers installed electronic meters which are
computerised and can be downloaded for 35 days which will show the details of
consumption including any violation of peak hours restriction in the last 35 days.
Thereafter, the Board issued a circular on 15-10-1998 to the effect that penalty for peak
hours restrictions will be imposed as per the meter reading inspection report. However, it
was pointed out by the communication dated 7-4-1999 that for violation of restriction of
peak hours on the basis of meter reading inspection report for the first time, one penalty
for one month may be imposed on the bill. However, for the second bill and thereafter,
the procedure for penalty will remain the same as mentioned in the circular dated 15-10-
1998. In this factual matrix, the Division Bench of the Allahabad High Court after
reading these two circulars dated 15-10-1998 and 7-4-1999 took the view that in view of
the order dated 7-4-1999, the consumer cannot be levied with penalty for each alleged
contravention but once only on the basis of alleged meter reading report, meaning thereby
that each such report will be treated as one contravention. One meter reading inspection
report which stores data for 35 days, shall be treated as one contravention irrespective of
the fact that in the report a number of contraventions might have been made of peak hour
restriction but one meter reading inspection report shall be construed as one
contravention. Aggrieved against this order dated 25.5.2001 passed by the Division
Bench of the Allahabad High Court in Civil Miscellaneous Writ Petition No.4214 of
2001,
@page-SC148
the appeal has been filed by grant of special leave.
5. A perusal of both these notifications makes it very clear that by communication dated
7-4-1999 the relief was given only for one time and it was not meant to be operated in
future. For violation of restrictions of peak hours on the basis of MRI report for the first
time, one penalty for one month could be imposed. For second bill and subsequent bills,
the procedure of penalty will remain the same as mentioned in the circular dated 15-10-
1998. Therefore, according to the circular dated 15-10-1998, whenever MRI computer
print is taken, the number of violations by a consumer shall be taken to be as many times
as indicated in MRI and it was clearly mentioned that there will be no relaxation nor the
violations will be considered to be as one violation and will be treated separately. It was
also mentioned that the SDO, Junior Engineer and Lineman in whose area the violation
has been committed by the consumers should be considered to be penalised at the Chief
Engineer level because of their failure to stop the violation. The circular also further
clarified that whenever MRI has not been got done in time, the temporary disconnection,
on the basis of situation of the case can be considered. But at least 5 days' disconnection
penalty will be imposed for the first disobedience. Therefore, reading of these two
circulars makes it very clear that for violation of restrictions of peak hours on the basis of
MRI report for the first time, one penalty for one month was to be imposed in the bill.
Therefore, by the circular dated 7-4-1999 one-time concession was given to the
consumers but it was not meant to be for all times to come. Both these circulars clearly
contemplate that for each contravention penalty will be levied and not simply because the
violations have been recorded in one MRI report, therefore, the same will be considered
to be as one violation. Hence, the view taken by the Division Bench of the Allahabad
High Court is clearly, unsuitable, and cannot be sustained.
6
. A similar issue was considered in U.P. Power Corpn. Ltd. and Another v. Lohia Brass
(P) Ltd.and Ors. (2006 (7) SCC 220) and it was held that High Court's view is
unsustainable. 2006 AIR SCW 4707
7. The appeal is accordingly allowed with no order as to costs.

Appeal allowed.
AIR 2008 SUPREME COURT 148 "Trivedi Himanshu Ghanshyambhai v. Ahmedabad
Municipal Corpn."
(From : Gujarat)*
Coram : 2 TARUN CHATTERJEE AND P. SATHASIVAM, JJ.
-2007.
Trivedi Himanshu Ghanshyambhai v. Ahmedabad Municipal Corporation and Ors.
(A) Constitution of India, Art.16 - EQUALITY IN PUBLIC EMPLOYMENT -
APPOINTMENT - MUNICIPALITIES - Appointment - Post of Assistant Manager in
Municipal Corporation - Eligibility - 10 years' Administrative experience - Finding by
Corporation that candidate discharged not only technical duties (as X-ray Technician) but
also performed administrative work and fulfill the criteria of experience - Appointment of
said candidate not liable to be quashed for want of requisite administrative experience.
L. P. A. No. 623 of 2006 in S. C. A. No. 4364 of 2000, D/- 5-7-2006 (Guj.), Reversed.
Bombay provincial Municipal Corporation Act (59 of 1949), S.50.
The Municipal Corporation invited applications for the posts of Assistant Manager from
amongst the qualified existing employees of the Corporation. An eligible candidate
required to be a graduate with second class from any recognized University with ten
years of administrative experience. The appellant discharging his duty as X-ray
Technician and also regularly and compulsorily, carrying out the clerical and
administrative work connected therewith, had applied for appointment in prescribed
form. The said form was forwarded through the Medical Officer of the Corporation under
whom he was working. The said form was duly scrutinized and after it was found that the
appellant was eligible, the same was sent to the Corporation for consideration. The
appellant appeared in written test and oral interview and selected for the post.
Respondents challenging the appointment of appellant did not raise any objection, by
making a prayer, either before the Examination Committee or before the Interview Board.
Held, the respondents cannot be permitted to raise the objection that the appellant could
not have been considered for appointment, he being a technical hand without any
@page-SC149
administrative experience, after the appellant was selected along with the other selected
candidates. It was open to them to raise such an objection at the initial stage, either in the
written examination or at the time of the oral interview. Such objection was raised, for the
first time, after the appellant successfully completed four months in his capacity as an
Assistant Manager (his promoted post in the Corporation).
The administrative experience enlisted by the appellant in his application form, duly
endorsed by the Medical Officer, could be considered as an administrative experience of
over ten years and, therefore, the appointment of the appellant could not be cancelled. In
any view of the matter, it is not for the Courts to find out whether a candidate, from the
technical side, was having administrative experience of ten years when he applied for the
post of Assistant Manager as the manual of the Corporation clearly states that it was the
sole discretion of the Municipal Commissioner to consider as to which post was technical
or administrative. The Corporation, being the employer, is the best Judge to decide
whether the appellant had discharged the responsibilities on the administrative side and
once the Corporation came to a finding that the appellant had discharged not only the
duties of an X-ray Technician but also performed clerical/administrative work,
particularly in view of the admitted fact that since 1984, no post of clerks was created in
the concerned Hospital, the High Court was not justified in concluding that the appellant
did not possess the administrative experience of more than ten years. Further, quashing
the appointment of the appellant only, although, the Corporation had appointed seven
other candidates, holding such technical posts, was not proper.
L. P. A. No. 623 of 2006 in S. C. A. No. 4364 of 2000, D/- 5-7-2006 (Guj.), Reversed.
(Paras 7, 10)
(B) Constitution of India, Art.16, Art.226 - EQUALITY IN PUBLIC EMPLOYMENT -
WRITS - APPOINTMENT - Appointment - Challenge as to - Petition by candidates who
passed written examination but failed in interview - They did not figure in merit list -
Cannot challenge selection list and appointment of other selected candidates.
(1992) 2 JT (SC) 169, Disting.
1995 AIR SCW 1109, Foll. (Paras 8, 9, 10, 11)
(C) Constitution of India, Art.16 - EQUALITY IN PUBLIC EMPLOYMENT -
APPOINTMENT - Selection - Challenge as to - Ground of Mala fide - Failure of
employer-Corporation to produce before Court record of marks obtained by candidates in
written test and oral interview because they were lost and thus not available - No mala
fide intention can be attributed to Corporation in absence of any material on record to
show that Corporation conducted tests in unlawful manner - Appointments cannot be
cancelled on said ground. (Para 11)
1995 AIR SCW 1109 : AIR 1995 SC 1088 : 1995 Lab IC 1575 (Foll.) 9
(1990) 2 JT (SC) 169 (Disting.) 11
AIR 1986 SC 1224 11
Ms. Meenakshi Arora and Ms. Poli Kataki, for Appellant; Mahendra Anand, Sr.
Advocate, H. S. Parihar, Kuldeep Parihar, Amar Dave and E. C. Agrawala, Advocates
with him, for Respondents.
* L. P. A. No. 623 of 2006 in S. C. A. No. 4364 of 2000, D/- 5-7-2006 (Guj).
Judgement
1. TARUN CHATTERJEE, J. :- Leave granted.
2. This appeal is directed against the judgment and order dated 5th of July, 2006 passed
by a Division Bench of the High Court of Gujarat at Ahmedabad affirming the order of
the learned Single Judge holding that the appointment of the appellant as an Assistant
Manager in Ahmedabad Municipal Corporation [for short the Corporation] was bad,
illegal and invalid and accordingly, liable to be quashed.
3. Before we deal with the question raised before us, we may narrate the facts involved in
the present case leading to the filing of this appeal.
4. The appellant was appointed as an X-Ray Technician in Beherampura Referral
Hospital, run under the supervision and control of the Corporation on 1st of February,
1988. In the Referral Hospital, there was no post of clerks since 1983. Since 1984, the
appellant, apart from discharging his duty as an X-ray Technician was also, regularly and
compulsorily, carrying out the clerical and administrative work connected therewith.
According to the appellant, the administrative activities carried out by him, inter alia,
included: [i] taking X-ray of the patients; [ii] collecting fees for X-ray; [iii] entering the
amount received in the cash book; [iv] preparation of the case papers; [v] maintaining of
the register of the patients
@page-SC150
whose X-ray is taken; [vi] maintaining the record of the purchase of X-ray films; [vii]
purchase of X-ray films; [viii] to fill in the octroi forms and V forms; and [ix] maintain
X-ray date stock register and audit the same and several such activities which were purely
administrative in nature. On 13th of November, 1997, a circular, viz., Circular No. 80 was
issued by the Corporation inviting applications for 19 posts of Assistant Manager from
amongst the qualified existing employees of the Corporation. The aforesaid circular
clearly specified that an eligible candidate should be a graduate with second class from
any recognized University with ten years of administrative experience. The circular also
provided that preference would be given to candidates holding a degree in law or any
other higher degree. The appellant, in pursuance of the aforesaid circular of the
Corporation dated 13th of November, 1997, applied for appointment to the post of
Assistant Manager in the prescribed form, which was forwarded through the Medical
Officer of the Corporation under whom he was working. The said form, filled in by the
appellant, was duly scrutinized and after it was found that the appellant was eligible, the
same was sent to the Corporation for consideration. Accordingly, the Corporation,
thereafter, directed the appellant to appear for a written test. A mode of selection was
prescribed by the Corporation, which comprised a two-tier system, namely a written test
of 150 marks and a viva-voce test of 50 marks. The written test was conducted under the
supervision of Indian Institute of Management, Ahmedabad. On the basis of performance
and marks scored, 58 candidates, including the appellant and respondents 2 and 3 were
selected and asked to appear for an oral interview. The oral interview was conducted by a
Five Member Interview Committee comprising (i) Municipal Commissioner,
Ahmedabad; (ii) Prof. Pestonjee, Indian Institute of Management, Ahmedabad; (iii) Dr.
N.R. Dixit, Director, Som Lalit Institute and visiting faculty of Indian Institute of
Management, Ahmedabad; (iv) Deputy Municipal Commissioner [Finance]; and (v)
Chief Auditor, Municipal Corporation, Ahmedabad. From the above, it would be evident
that barring two members, the remaining members of the Interview Committee were the
employees of the Corporation. Therefore, it cannot be said that all the members of the
Interview Committee were under the employment of the Corporation. The Corporation
prepared a merit list of the candidates, with their qualifications and date of appointment
in the Corporation, on the basis of their performance in the oral interview before the
aforesaid Committee and also in the written examination. The appellant figured at Sl. No.
4 in the merit list and was shown to possess degrees in B.Sc. and LL.B. and his date of
appointment in the Corporation was shown as 17th of May, 1984. On 22nd of December,
1999, a resolution was adopted by the Corporation, whereby, it was communicated to the
selected candidates that they had been appointed as Assistant Managers on probation for
a period of one year in the scale of Rs. 8000-275-13500 and that after completion of the
probation period, their appointments would be made acting on the basis of report of their
performance. As the appellant was figuring at Sl. No. 4 of the said resolution, he was
posted in the engineering department against the vacancy of one Lokendre Singh Rathod.
Challenging the legality and validity of the appointments, to the post of Assistant
Manager, made by the Corporation by its resolution dated 22nd of December, 1999, a
writ petition was filed by respondents 2 and 3 in the High Court of Gujarat at Ahmedabad
wherein, the appellant was arrayed as respondent No. 3. Since, in this case, we are
concerned only with the appointment of the appellant, which has been set aside by the
High Court by the impugned judgment, we feel it proper to refer only to the case of the
appellant. In the writ petition, it was, inter alia, alleged, by respondents 2 and 3 herein,
against the appellant that he was working as an X-ray Technician which is purely a
technical post having nothing to do with administrative work and accordingly, the
requirement as to ten years' experience on the administrative side for appointment to the
post of Assistant Manager was not fulfilled. In view of the aforesaid, the respondents 2
and 3 herein prayed for setting aside the appointment of the appellant to the aforesaid
post of Assistant Manager. A learned Single Judge of the High Court allowed the writ
petition, which was affirmed by the Division Bench, thereby quashing the appointment of
the appellant to the post of Assistant Manager in the Corporation.
5. The core question that needs to be decided in this appeal is whether the
@page-SC151
appellant fulfilled the requirement of ten years' experience on the administrative side for
appointment to the post of Assistant Manager. As noted herein-earlier, according to
respondents 2 and 3, the appellant was not qualified for being appointed to the post of
Assistant Manager inasmuch as he was working in the technical department as a technical
hand and accordingly, the condition of ten years' administrative experience could not be
said to have been fulfilled in his case.
6. Before we deal with this question, we may state that respondents 2 and 3, who had
challenged the appointments of the appellant and other selected candidates, were
themselves unsuccessful and their names did not figure in the merit list as they had failed
to pass the oral interview. Therefore, it is an admitted position that challenge to the
appointment of appellant, to the post of Assistant Manager, was made by candidates who
were themselves unsuccessful in the examination. Keeping this fact in mind, let us now
proceed to consider whether the High Court was justified in setting aside the appointment
of the appellant as an Assistant Manager in the Corporation. As noted herein-earlier,
although the appellant was working as an X-ray Technician, he claimed that he had the
requisite experience of ten years on the administrative side as well. To substantiate his
claim, he has pointed out a number of administrative duties performed by him while
working as an X-ray Technician and which have already been narrated by us herein-
earlier. It may be noted that for the purpose of applying for the post in question, the
candidates were required to fill in forms, which were to be forwarded by the heads of
their departments under whom they were working. Each form was required to be
scrutinized by the respective heads and only after being satisfied that a candidate was
having more than ten years' administrative experience, he was to make an endorsement in
the application form and approve the same for being forwarded to the Corporation.
Therefore, from the above, it would be evident that it was only after scrutiny by the
respective heads of the departments that the candidature of employees was forwarded to
the Corporation for permitting them to appear in the written test and if successful, for an
oral interview. In this case, there is no dispute that the application form of the appellant
was duly signed by the Medical Officer who had endorsed and certified that the appellant
was eligible to sit in the written test and if successful, in the oral interview, as he had
fulfilled the requisite requirements. As noted herein-earlier, a bare perusal of the form
filled in by the appellant would clearly show that he had satisfied the condition of ten
years' experience on the administrative side. The certificates of administrative experience,
in favour of all the candidates falling in the technical category, were issued by the
Medical Officer of Health and countersigned by the Medical Officer-in-Charge of
Municipal Referral Hospital, Behrampura, AMC. Insofar as the appellant was concerned,
the Medical Officer in-charge of the Municipal Referrel Hospital, Behrampura, AMC,
AM (Health), under whom the appellant was working as an X-ray Technician issued the
certificate on 10th of May, 2000, which was placed before the High Court in the writ
petition. The certificate runs as under:
"It is hereby certified that Shri Himanshu Ghanshyambahi Trivedi is rendering service
since last 12 years at Health Department as X-ray Technician. Since 22nd December,
1999 as per the GDEST 8313, he is holding the post of Assistant Manager in the higher
grade as well as from the same date he has attended Engineering (Project) Division.
By the Health Department in the city of Ahmedabad five Referral Hospitals are run.
Since 1983 Referral Hospitals began and since then no post of clerk is opened. Therefore,
the technicians in each division as to compulsorily discharge the duties as technicians as
well as administrative clerk. As a X-ray Technician he has to perform the following
administrative duties.
i) He has to perform the duty of taking X-ray of the patient. From each patient as per the
rules of the Corporation he has to collect the money and issue receipt as well as to enter
those amount collected in the case paper.
ii) He has to prepare X-ray register in which he has to record the name of the patient
whose X-ray is taken.
iii) He has also to maintain the book and enter therein the details of the X-ray plates and
X-ray films purchased by him and also to enter in the register the X-ray used by him and
also to prepare the expense book, submit the same for audit by the Corporation and also
to answer any queries
@page-SC152
regarding the same.
v) He has also to maintain X-ray date stock register and that is also audited from time to
time and the responsibility of auditing is also upon him.
vi) The X-ray Technician is holding independent charge and, therefore, in his department
he is responsible for reparation as well as for proper maintenance and also has to
maintain other such registers. Thus for the records of the X-ray department as well as of
other departments, he is responsible.
vii) That in the X-ray department need also arises for the sale of old X-ray films for
which he has to contact the part whom the Corporation has approved and thereafter as per
the rules of the Corporation he has to sell the old X-ray filings, collect money from him
and issue receipt thereof and deposit the amount so collected with the Corporation. All
these responsibilities are to be shouldered by him.
Thus X-ray Technician has to discharge the obligation and has also to perform other
duties. Over and above that he has also been discharging the administrative duties and
works aforesaid compulsorily.
He has discharged technical as well as administrative duties diligently, honestly and
satisfactorily. Till date has not allowed any complaint of any sort in his department. He
holds a good moral character.
Sd/-
Medical Officer-In-Charge
Municipal Referred Hospital,
Behrampura, AMC
AM (Health) Health Officer"
From the aforesaid certificate, it would be evident that the appellant was having
administrative experience, even though he was working as an X-ray Technician. The
stand taken by the Corporation before the High Court was also to the effect that the
appellant had satisfied the requirement as to ten years' administrative experience and,
therefore, he could be appointed as an Assistant Manager. Insofar as the appellant was
concerned, the Corporation in paragraph 9 of the affidavit, filed before the High Court,
stated as under:
"It is alleged that one Mr. Trivedi Himanshu is X-ray Technician and therefore ought not
to have been selected on the ground of lack of administrative experience. It is stated that
Mr. Trivedi is holding the qualification of B.Sc. and LL.B. plus course of Radiology
Branch. It is stated that Mr. Trivedi is working as X-ray Technician since 1984 and he is
responsible not only for the technical work, but also for clerical and administrative work
of the said department. It is stated that there is no clerk in the Radiology Department of
the Hospital and X-ray Technician has to do clerical work and has to work as an
Administrative help qua the administration for maintaining the records about working of
the Radiology Department."
(Emphasis supplied)
7. Before the High Court, an affidavit-in-reply was also filed by the appellant along with
the other selected candidates, inter alia, stating that the only allegation made against the
appellant was to the effect that he was a man of technical cadre and lacked administrative
experience and that it was put to rest by the certificate dated 10th of May, 2000 issued by
the Corporation. It may be noted that the certificate dated 10th of May, 2000 was issued
by the Corporation, at a time, when the writ petition was pending before the High Court.
But, it must also be remembered that the application form of the appellant was forwarded
by the Medical Officer under whom he was working, endorsing his signature thereon and
thereby approving that the appellant was having more than ten years' experience on the
administrative side as well. Even if an objection is raised that the certificate dated 10th of
May, 2000 issued by the Corporation cannot be looked into because it was issued at the
time when the writ petition was already pending and not at the time of selection before
the Selection Committee, even then, the endorsement and approval of the Medical
Officer, under whom the appellant was working, was duly made and therefore cannot be
overlooked. In categorical terms, the Corporation had taken the stand before the High
Court that insofar as the technicians are concerned, no clerks were appointed and,
therefore, the clerical/administrative work was also required to be done by the
technicians. Apart from the aforesaid certificate, which enlisted the different
administrative duties performed by the appellant, the endorsement in the application form
by the Medical Officer approving the nature of administrative work performed by the
appellant and forwarding the duly scrutinized form to the Corporation, would clearly
show that the appellant was performing
@page-SC153
administrative work for more than ten years in the Corporation. The said form was then
examined and scrutinized by the Committee, which conducted the written test and
thereafter, permitted the appellant to appear in the written examination for the post in
question. The application form was also placed before the Interview Committee, which
had conducted the oral interview of the appellant. It may be mentioned, as noted herein-
earlier, that the oral interview was conducted by a Five Member Interview Committee
consisting of (i) Municipal Commissioner, Ahmedabad; (ii) Prof. Pestonjee, Indian
Institute of Management, Ahmedabad; (iii) Dr. N.R. Dixit, Director, Som Lalit Institute
and visiting faculty of Indian Institute of Management, Ahemdabd; (iv) Deputy
Municipal Commissioner [Finance]; and (v) Chief Auditor, Municipal Corporation,
Ahmedabad, who are all respected persons of the society. The five member Interview
Committee, which consisted of eminent persons of the society, would not have allowed
the appellant, who is a technical hand, to appear before them without first satisfying
themselves that the appellant had possessed ten years' administrative experience. If the
administrative experience shown in the application form could not be treated as a
sufficient compliance with the requirement as to ten years' experience on the
administrative side, the Interview Committee, being an expert committee, could have
rejected the candidature of the appellant on the ground that he did not possess the
requisite administrative experience for appointment to the post of Assistant Manager in
the Corporation. That apart, on the question of administrative experience of the appellant,
who was working as an X-ray Technician, no objection was raised either by the
Examination Committee which conducted the written examination or by the Interview
Board which conducted the oral interview. Even the candidates namely, the writ
petitioners-respondents 2 and 3 herein did not raise any objection, by making a prayer,
either before the Examination Committee or before the Interview board, that the appellant
lacked the requisite administrative experience for selection to the post in question. After
scrutinizing and considering the application forms of all the candidates, they were
directed to appear in the written test and thereafter, those who were found to have passed
the written examination were directed to appear before the Interview Board for an oral
interview. From the record, it also appears that in the past, many persons, who were
holding technical posts were promoted to administrative posts and subsequently have
been further promoted. That apart, the Corporation, at the time of inviting applications for
appointment to the post in question, had never stated that the persons of technical cadre
should not apply. On the contrary, the circular dated 13th of November, 1997 clearly
stated that candidates of all the departments were qualified to apply, on fulfilling the
requirements laid down in the circular. The writ petitioners-respondents 2 and 3 herein
cannot be permitted to raise the objection that the appellant could not have been
considered for appointment, he being a technical hand without any administrative
experience, after the appellant was selected along with the other selected candidates. It
was open to the respondents 2 and 3 to raise such an objection at the initial stage, either
in the written examination or at the time of the oral interview. Such objection was raised,
for the first time, by the respondents 2 and 3, after the appellant successfully completed
four months in his capacity as an Assistant Manager (his promoted post in the
Corporation). That apart, it appears from the judgment of the High Court that the High
Court has quashed the appointment of the appellant only, although, the Corporation had
appointed seven other candidates, holding such technical posts. Therefore, we are unable
to agree with the High Court that the administrative experience enlisted by the appellant
in his application form, duly endorsed by the Medical Officer, could not be considered as
an administrative experience of over ten years and, therefore, the appointment of the
appellant should be cancelled. In any view of the matter, it is not for the courts to find out
whether a candidate, from the technical side, was having administrative experience of ten
years when he applied for the post of Assistant Manager as we find that the manual of the
Corporation clearly states that it was the sole discretion of the Municipal Commissioner
to consider as to which post was technical or administrative. In our view, the High Court
had failed to appreciate that the Corporation, being the employer, is the best judge to
decide whether the appellant had discharged the responsibilities on the administrative
side and once the
@page-SC154
Corporation came to a finding that the appellant had discharged not only the duties of an
X-ray Technician but also performed clerical/administrative work, particularly in view of
the admitted fact that since 1984, no post of clerks was created in the Behrampura
Referral Hospital, the High Court was not justified in concluding that the appellant did
not possess the administrative experience of more than ten years.
8. As noted herein-earlier, respondents 2 and 3 who had filed the writ petition before the
High Court, challenging the appointment of the appellant were themselves unsuccessful
in the examination, even though they claimed that they had passed the written
examination but failed in the interview. Since the names of respondents 2 and 3, who
were the writ petitioners before the High Court, did not figure in the merit list, in our
view, it was not open to them to challenge the said selection list and the appointment of
the appellant before the High Court.
9
. It is not in dispute that the respondents 2 and 3 as well as the appellant were all found
eligible, in the light of the marks obtained in the written test, to be called for the oral
interview. Up to this stage, there was no doubt. The Respondents 2 and 3 and the
appellant appeared before the Committee constituted by the Corporation for conducting
the oral interview. The respondents 2 and 3 could not clear the oral interview and were
not selected whereas the appellant was found successful and accordingly, selected.
Therefore, there cannot be any dispute that only because the respondents 2 and 3 could
not get selected and named in the final merit list, as a result of their combined
performance, both in the written test as well as in the oral interview, they challenged the
appointment of the appellant and other selected candidates by moving the writ petition.
Such being the position, we are of the view that the High Court was not justified in
exercising its power under Article 226 of the Constitution by granting relief to the writ
petitioners, who are now respondents 2 and 3 in this appeal. As we are of the opinion that
the appellant did possess the administrative experience of ten years required for selection
to the post of Assistant Manager in view of the varied nature of work performed by him
while working as an X-ray Technician, we do not find any reason to take a view, different
from the one taken by the Corporation and the Selection Committee. Therefore, we are of
the view that it was not open to the respondents 2 and 3 to challenge the appointment of
the appellant and other selected candidates, as they were themselves unsuccessful in the
test. In this connection, reliance can be placed on a decision of this Court in the case of
Madan Lal and Others v. State of J. and K. and Others [(1995) 3 SCC 486]. 1995
AIR SCW 1109
10. Accordingly, we are of the view that the High Court was neither justified in
interfering with the appointment of the appellant by holding that he did not possess the
requisite administrative experience of ten years while working as an X-ray Technician
nor was it open to the High Court to entertain the writ petition challenging the
appointment of the appellant and other selected candidates at the instance of the
unsuccessful candidates.
11
. Before parting with this judgment, we may deal with a short submission of the learned
counsel appearing on behalf of the respondents 2 and 3. It is an admitted position that
although, the respondents 2 and 3 had passed the written examination conducted under
the supervision of the Indian Institute of Management, Ahmedabad, they were
unsuccessful in the oral interview. Therefore, according to the learned counsel for the
respondents 2 and 3, they did have the locus standi to move the writ application for
challenging the appointment of the appellant because they were successful in the written
examination. In this connection, a decision of this Court in the case of Alocious
Fernandez v. Union of India, reported in [JT 1990 SC 169] was strongly relied on. In that
decision, this Court had laid down that an appointment in disregard to the rules is a
matter not between the appointing authority and the appointee himself, but, all those who
had similar qualification and could not apply as they did not possess the qualifications
mentioned in the advertisement, are also affected. Neither do we accept this submission
of the learned counsel for the respondents 2 and 3, nor can we rely on the decision of this
Court in the case of Alocious Fernandez [supra], for the simple reason that in this case,
admittedly, respondents 2 and 3 were not selected on the combined performance of the
candidates in the written test and the oral interview. Although, the selection process itself
was challenged before the High Court, it is AIR 1986 SC 1224
@page-SC155
to be noted that the learned Single Judge, while allowing the writ application, had turned
down the argument of the respondents 2 and 3 holding that the entire selection process
could not be said to be illegal or tainted with mala fides. So far as the Division Bench is
concerned, we do not find any argument advanced by the respondents 2 and 3 challenging
the selection process before it. That being the position, we are unable to hold that even
though, the respondents 2 and 3 were unsuccessful in the test and could not figure in the
merit list, they would be entitled to challenge the appointment of the appellant. Another
decision of this Court in the case of Atul Khuller and Others v. State of J. and K. and
others reported in [(1986) Suppl SCC 225] was also relied on by the learned counsel for
the respondents 2 and 3 in support of the contention that it was open for an unsuccessful
candidate to challenge an appointment by way of a writ petition. Learned counsel for the
respondents 2 and 3 relied on paragraph 20 of the said decision in which it has been
observed by this Court that the Selection Committee conducting the viva test should
maintain the entire record, including the original worksheets on which marks were
recorded by each member separately, for a minimum period of one year after the
examination and failure to do so can strengthen an allegation of mala fide against the
Selection Committee. Since the Corporation could not produce the record before the High
Court, the learned counsel for the respondents 2 and 3 submitted that a case of mala fide
on the part of the Corporation for not producing the records before the High Court ought
to have been found and therefore, the appointment of the appellant ought to be cancelled
as done by the High Court. In our view, this submission of the learned counsel for the
respondents 2 and 3 cannot be accepted. It is true that the records relating to the marks
obtained by the candidates in the written test as well as the oral interview could not be
produced before the High Court because they were lost and thus not available. In our
view, in the absence of any material on record, we are unable to accept the contention of
the learned counsel appearing for the respondents 2 and 3 that the records were not
produced by the Corporation due to mala fide intention. In this connection, the finding of
the learned single judge on the question whether an adverse inference could be drawn
against the Corporation for non-production of the records before the High Court and
whether for such non-production, a case of mala fide could be found, may be seen. The
learned single Judge, while allowing the writ petition, on consideration of the entire
materials on record, came to a finding that in the absence of any specific averment of
mala fides against the Members of the Committee holding the interview test, it was
neither possible to strike down the result of the interview nor would it be proper to
conclude that the Corporation had conducted the interview in an illegal or unlawful
manner. We also endorse the same view and hold that only because the records could not
be produced in view of the fact that they were lost and not available, the appointment of
the appellant could not be cancelled, particularly when no mala fide had been attributed
by the writ petitioner-respondents 2 and 3 in the writ petition.
12. For the aforesaid reasons, this appeal must succeed and accordingly, the judgments of
the Division Bench of the High Court as well as of the single Judge are set aside and the
writ petition filed by the respondents 2 and 3 stands dismissed. No order as to costs.
Appeal allowed.
AIR 2008 SUPREME COURT 155 "State of Maharashtra v. Mohd. Sajid Husain Mohd.
S. Husain"
(From : 2007 All MR (Cri) 2283)
Criminal Appeal Nos. 1402-1409 of 2007 (arising out of SLP (Cri.) Nos. 3820-27 of
2007), D/- 10 -10 -2007.
State of Maharashtra and Anr. v. Mohd. Sajid Husain Mohd. S. Husain etc.
(A) Criminal P.C. (2 of 1974), S.438 - Penal Code (45 of 1860), S.376, S.342 - Immoral
Traffic (Prevention) Act (104 of 1956), S.5 - ANTICIPATORY BAIL - RAPE -
WRONGFUL CONFINEMENT - IMMORAL TRAFFIC - Anticipatory bail - Allegation
that a minor girl was driven to flesh trade by accused persons - Accused were police
officers, politicians and a businessman - Prosecution had disclosed manner in which
victim was being taken from place to place and subjected to immoral trafficking - Same
finds some corroboration from testimonies of witnesses - No reason for victim to falsely
implicate accused - Accused including police
@page-SC156
officers, had been absconding for long time - No anticipatory bail can, therefore, be
granted to accused.
2007 All MR (Cri) 2383, Reversed. (Paras 18, 24, 26, 28, 29)
(B) Criminal P.C. (2 of 1974), S.438 - ANTICIPATORY BAIL - Anticapatory bail - A
minor girl was driven to flesh trade by accused persons - Accused persons comprised of
police officers, politicians and a businessman - All were absconding for long time - There
cannot be any direct proof of accused tampering with evidence - But that question will
have to be considered at appropriate stage and not at stage of grant of anticipatory bail.
(Para 20)
(C) Criminal P.C. (2 of 1974), S.438 - ANTICIPATORY BAIL - Anticipatory bail - Grant
of - Court must record reasons therefor. (Para 21)
(D) Criminal P.C. (2 of 1974), S.438 (as amended by Maharashtra Amendment Act No.
24 of 1993) - ANTICIPATORY BAIL - Anticipatory bail - Allegation that accused
lured/forced a minor girl to flesh trade - Plea that prosecutrix was a girl of easy virtue -
This may be so but same by itself may not be a relevant consideration.
2004 AIR SCW 6563, Relied on. (Para 22)
(E) Criminal P.C. (2 of 1974), S.154 - FIR - F.I.R. - A minor girl was driven to flesh trade
by accused persons, who were police officers, politicians and businessman - Accused
persons could not be named in F.I.R. - F.I.R. may be encyclopedic - No hard and fast rule
that F.I.R. must always contain names of all culprits.
(F) Evidence Act (1 of 1872), S.45 - Penal Code (45 of 1860), S.376, S.342 - Immoral
Traffic (Prevention) Act (104 of 1956), S.5 - EVIDENCE - RAPE - WRONGFUL
CONFINEMENT - IMMORAL TRAFFIC - Age of prosecutrix - Determination - A girl
was driven to flesh trade by accused persons - In F.I.R. as well as in her first
supplementary examination age of prosecutrix was recorded as 18 years - She had been
medically examined and her approximate age on basis of radiological test was determied
to be between 14 to 16 years - Possibility of her trying to shield from prosecution at time
of her arrest and for that purpose disclosing her age to be 18 years cannot be ruled out.
(Paras 14, 15)
(G) Evidence Act (1 of 1872), S.74 - Penal Code (45 of 1860), S.376, S.342 - Immoral
Traffic (Prevention) Act (104 of 1956), S.5 - DOCUMENTS - RAPE - WRONGFUL
CONFINEMENT - IMMORAL TRAFFIC - Age of prosecutrix - Public documents
produced by prosecution in support thereof - A mistake in regard to her age in F.I.R. or
first medical document or even in her supplementary affidavit should yield to public
documents. (Para 25)
2007 AIR SCW 1379 : AIR 2007 SC 1253 : 2007 (3) AIR Bom R 221 (Rel. on.) 17
2007 AIR SCW 1896 : AIR 2007 SC 1450 : 2007 Cri LJ 1827 : 2007 (2) AIR Jhar R 851
24
2005 AIR SCW 4763 : AIR 2005 SC 3490 : 2005 Cri LJ 4149 : 2005 All LJ 3368 9, 27
2004 AIR SCW 6563 : AIR 2005 SC 1248 : 2005 Cri LJ 331 : 2004 All LJ 4127 (Rel.
on.) 22
(1985) 4 SCC 508 9
Ravindra Keshavrao Adsure, Subhash Tambe and Gautam Godara, for Appellants;
Paramjit Singh Patwalia, Sr. Advocate, Sushil Karanjkar, Vishal Joganand, K. N. Rai,
Mrs. Varuna Bhandari Gugnani, Rameshwar Prasad Goyal and Sohrab Samsay, for
Respondents.
Judgement
S. B. SINHA, J :- Leave granted.
2. This appeal is directed against a judgment and order dated 27.06.2007 passed by the
High Court of Bombay, Aurangabad Bench at Aurangabad granting anticipatory bail to
the respondents herein for commission of an offence punishable under Sections 376, 342
read with Section 34 of the Indian Penal Code (IPC) and under Section 5 of the
Prevention of Immoral Trafficking Act.
3. Respondents herein comprise of police officers, politicians and a businessman.
4. A First Information Report was lodged by a girl, who is said to be minor, showing how
she was driven to the flesh trade by accused Shamim Tabassum.
5. One Maruti Chandre had seven sisters, two of them are Mahananda and
@page-SC157
Sunita. Mahananda was unmarried. Sunita's first husband was Dilip Deshmukh, who
died. She married to Sahebrao Mhaske, who also died leaving behind prosecutrix and one
Santosh. After the death of Sahebrao Mhaske, she again married to Vasantrao Hudgir.
There are two issues from the said marriage. Mahananda allegedly was taking care of the
prosecutrix as well as Santosh. Before us some documents have been placed to show that
the date of birth of Puja is 28.06.1991.
Once she had left her house at Parbhani having been abused and assaulted by
Mahananda; but returned after some time. However, after her return to Parbhani, she was
again abused and assaulted by her cousin. She again came back to Aurangabad and
started residing at Mukundwadi, where she met accused Tabassum @ Baji. She was
asked to work at her place as a maid-servant. According to Puja, in Tabassum's house
some girls used to come. After a few days, as one girl did not come, she was asked to go
with her. They reached a Dhaba at Mhaismal in a white coloured vehicle, where they
found a person sitting. She was offered a soft drink. Having consumed it, she felt reeling
in her head. She was also not able to walk. Allegedly, against her will , she was subjected
to rape. She was taken back to the house by accused Tabassum. She thereafter allegedly
had regularly been sent out with various persons. Sometimes, the amount she received
was to be divided in the ratio of 50 : 50. Sometimes Tabassum herself used to keep the
amount with her. She purchased clothing, jewelleries etc. from the amount she used to
earn. Respondents herein, according to the girl, had taken her to a hotel, government
guest house and even on one occasion to their own apartment. On 22.04.2007, the
accused persons, named in the First Information Report, came to the house of Accused
No. 1 for taking her to Mumbai. They were to travel in a bus. They, however, went to a
hotel to take liquor, before boarding the bus. However, when the accused persons started
behaving indecently with her, the police came and took all of them to the police station.
She was medically examined on 22.04.2007. Her Radiological (Bone) Assessment
suggested her age to be between 14-16 years. Respondents herein were not named in the
First Information Report. However, Puja made several statements thereafter implicating
the respondents herein.
She also gave her statement under Section 164 of the Code of Criminal Procedure
(Cr.P.C.).
Respondents, having come to know that they have been named by the said girl,
absconded. They filed an application for anticipatory bail before the learned Sessions
Judge, Aurangabad. The same was dismissed by an order dated 24.05.2007.
6. Respondents moved the High Court thereagainst and by reason of the impugned
judgment dated 27.06.2007, the said application for anticipatory bail was allowed, inter
alia, holding that the prosecutrix being major and having willingly consented for sex for
consideration, prima facie, a case under Section 376 IPC has not been made out.
It was furthermore held that she being stationed in the Remand Home at Aurangabad, was
fully protected and, thus, the question of the respondents being in a position to influence
her, does not arise.
7. The State is, thus, before us.
8. Mr. Ravindra Keshavrao Adsure, learned counsel appearing on behalf of the State,
would, inter alia, submit that the High Court committed a serious error in passing the
impugned judgment inasmuch as from various public documents, it is evident that the
date of birth of the prosecutrix is 28.06.1991 and, thus, at all material times, namely, from
January 2007 to 22.04.2007, she was minor and in that view of the matter, the purported
consent given by her would not be of much significance.
The learned counsel would contend that it is true that in the First Information Report, the
names of the respondents had not been taken, but in a case of this nature, the court should
have considered the fact that she had been arrested by the police and as such it is just
possible that she was not in a position to recollect all the details.
In any event, the First Information Report being not encyclopedic, any evidence which
has been collected by the prosecution during the course of investigation should have been
taken into consideration having regard to the nature and gravity of the offence.
The learned counsel would submit that the prosecutrix in her statement recorded by the
police, had made categorical allegations against Accused Nos. 7, 9, 10, 11,
@page-SC158
12, 13, 14 and 15. She made a similar statement before the learned Magistrate, which was
recorded under Section 164 Cr. P.C. on 28.04.2007.
It was pointed out that all the accused persons had been absconding from 24.05.2007 to
11.06.2007. The learned counsel would submit that as an investigation had been
conducted by the CID under the supervision of a Superintendent of Police, it cannot be
said that any attempt had been made to falsely implicate the respondents. It was pointed
out that a charge-sheet had been submitted against the six accused persons on 18.07.2007
and they have been refused bail by the same learned Judge. Keeping in view the fact that
she was taken to a hotel, guest houses and apartment, custodial interrogation of the
accused is imperative.
9. Mr. Paramjit Singh Patwalia, learned Senior Counsel appearing on behalf of the
respondents, on the other hand, pointed out that in the First Information Report, in her
medical examination as also in her supplementary statement, the prosecutrix stated her
age to be 18 years. Even her aunt stated her age to be 18 years. It was in the
aforementioned situation, it was urged, no reliance can be placed on the purported birth
certificate, which was issued on 29.05.2007 by the Parbhani Municipal Council and the
School Leave Certificates by different schools as also the medical certificate, stating her
age to be between 14 to 16 years.
The learned counsel would submit that prima facie the girl was above 16 years and she
being a consenting party and having been getting consideration, no case under Section
376 IPC having been made out and, thus, this Court should not interfere with the
impugned judgment.
It was contended that pursuant to the interim order passed by the High Court, the
respondent have fully been cooperating with the Investigating Officer and except for four
days, they have scrupulously complied with the conditions imposed by interim order
passed by the High Court as also the conditions imposed upon them by the High Court in
the impugned judgment.
It was furthermore pointed out that during the aforementioned period, they subjected
themselves to medical examination and took part in the test identification parade, but no
recovery was made from them. It was pointed out that charge-sheet had been submitted
against six persons who are in custody and in that view of the matter, it is not a case
where custodial interrogation would be necessary.
The learned counsel would contend that although there exists a distinction in regard to the
exercise of jurisdiction of this Court on an appeal from an order granting or refusing the
prayer for grant of anticipatory bail and one of cancellation of bail; it is trite that this
Court ordinarily would not interfere. Strong reliance, in this behalf, has been placed on
State of U.P. through CBI v. Amarmani Tripathi etc. [(2005) 8 SCC 21] and Jagdish and
Others v. Harendrajit Singh [(1985) 4 SCC 508]. 2005 AIR SCW 4763
10. When the matter came up before us on 27.07.2007, a report was called for from the
Superintendent of Police, Crime Investigation Department, Aurangabad. The said
authority has sent a report to this Court wherein it has, inter alia, been pointed out, that
the respondents-accused persons had been absconding for a long time and they during the
course of interrogation have been giving evasive answers.
11. It was furthermore stated that from the residence of Accused No. 3, thirteen CDs of
blue films and books instigating sex had been seized. It was also submitted that recovery
of vehicles used by the respondents from time to time for commission of the offence are
yet to be seized and if they are released on bail, they would tamper with evidence.
12. Section 438 of Cr.P.C. has been amended by the State of Maharashtra by Act No. 24
of 1993, which reads as under :
438 Direction for grant of bail to person apprehending arrest.-
(1) When any person has reason to believe that he may be arrested on an accusation of
having committed a non-bailable 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 factors:-
(i) the nature and gravity or seriousness of the accusation as apprehended by the
applicant;
(ii) the antecedents of the applicant
@page-SC159
including the fact as to whether he has, on conviction by a Court previously undergone
imprisonment for a term in respect of any cognizable offence;
(iii) the likely object of the accusation to humiliate or malign the reputation of the
applicant by having him so arrested, and
(iv) the possibility of the applicant, if granted anticipatory bail, fleeing from justice,
either reject the application forthwith or issue an interim order for the grant of
anticipatory bail:
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.
13. The four factors, which are relevant for considering the application for grant of
anticipatory bail, are :
(i) the nature and gravity or seriousness of accusation as apprehended by the applicant;
(ii) the antecedents of the applicant including the fact as to whether he has, on conviction
by a Court, previously undergone imprisonment for a term in respect of any cognizable
offence;
(iii) the likely object of the accusation to humiliate or malign the reputation of the
applicant by having him so arrested; and
(iv) the possibility of the appellant, if granted anticipatory bail, fleeing from justice.
14. It is not in dispute that if the prosecutrix was a minor, consent on her part will pale
into insignificance. She had been medically examined and her approximate age on the
basis of radiological test was determined to be between 14 to 16 years. Her date of birth
was recorded on 04.07.1996 by the Parbhani Municipal Council, Parbhani as 28.06.1991.
The name of her father was also mentioned therein as Sahebrao Mhaske. The said
certificate was issued on 29.05.2007, but evidently the date of registration of the said
certificate was 04.07.1996 i.e. much before any controversy arose. Three school leaving
certificates had been placed before us which have been issued by : (i) Sarjudevi Bhikulal
Bharuka Arya Kanya Vidyalaya, Hingoli; (ii) Bal Vidya Mandir, High School Parbhani;
and (iii) Model English Educational Societies, Sharda Vidya Mandir, Parbhani, wherein
her date of birth was shown as 28.06.1991. She had been, as per the said certificates,
studying in 9th standard. She dropped out from the school.
15. It may be true that the date of issuance of the certificates had not been stated, but
evidently such certificates had been obtained by the prosecution. It may be true that in the
First Information Report as also in her first supplementary examination, her age was
recorded as 18 years, but she had been examined medically. The possibility of her trying
to shield her from prosecution at the time of her arrest and for that purpose disclosing her
age to be 18 years cannot be ruled out.
16. So far as the fact that the respondents have not been named in the First Information
Report is concerned, suffice it to say that the First Information Report may be
encyclopedic.
17
. In Vinod G. Asrani v. State of Maharashtra [2007 (3 ) SCALE 241], this Court stated :
2007 AIR SCW 1379, Para 9
As pointed out by Mr. Ahmed, this Court in the case of Kari Choudhary v. Sita Devi and
Ors., had while considering a similar question observed that the ultimate object of every
investigation is to find out whether the offences alleged to have been committed and, if
so, who had committed it. The scheme of the Code of Criminal Procedure makes it clear
that once the information of the commission of an offence is received under Section 154
of the Code of Criminal Procedure, the investigating authorities take up the investigation
and file charge sheet against whoever is found during the investigation to have been
involved in the commission of such offence. There is no hard and fast rule that the First
information Report' must always contain the names of all persons who were involved in
the commission of' an offence. Very often the names of the culprits are not even
mentioned in the F.I.R. and they surface only at the stage of the investigation..." 2001
AIR SCW 5051
18. Out of the eight respondents, five are police officers, two are politicians and one is
owner of a hotel. It is not in dispute that
@page-SC160
after having come to learn that their names had been taken by the prosecutrix in her
supplementary statement, they had been absconding for a long time. It is not necessary
for us to record their respective period of abscondance. We may furthermore notice that
the respondents had not scrupulously complied with the conditions imposed upon them.
Admittedly, at least on four occasions, some of them were not present.
19. We need not go into the question as to whether they had been cooperating with the
Investigating Officer or not. We may, however, point out that before us a copy of the
affidavit dated 10.05.2007 affirmed by Sunita Sahebrao Mhaske was placed, wherein she
alleged that Puja was born on 30.12.1988. On that basis the Gram Panchayat, Dhanki had
also issued a certificate showing the same to be her date of birth. We have an uncanny
feeling that evidently the evidences are being collected by somebody who intends to save
the accused.
20. There cannot be any direct proof that the respondents have been tampering with
evidence, but that question will have to be considered by the appropriate authority at the
appropriate stage.
21. Immoral trafficking is now widespread. Victims, who are lured, coerced or threatened
for the purpose of bringing them to the trade should be given all protection. We at this
stage although cannot enter into the details in regard to the merit of the matter so as to
prejudice the case of one party or the other at the trial, but it is now well-settled principle
of law that while granting anticipatory bail, the court must record the reasons therefor.
22
. The High Court has in regard to the first factor envisaged under the Maharashtra
Amendment of Section 438 of the Code of Criminal Procedure proceeded on the basis
that the prosecutrix was a girl of easy virtue. This may be so but the same by itself may
not be a relevant consideration. [See State of U.P. v. Pappu alias Yunus and Another -
(2005) 3 SCC 594]. 2004 AIR SCW 6563
23. A case of this nature should be allowed to be fully investigated. Once a criminal case
is set in motion by lodging an information in regard to the commission of the offence in
terms of Section 154 Cr. PC, it may not always be held to be imperative that all the
accused persons must be named in the First Information Report. It has not been denied
nor disputed that the prosecutrix does not bear any animosity against the respondents.
There is no reason for her to falsely implicate them. It is also not a case that she did so at
the behest of some other person, who may be inimically disposed of towards the
respondents. The prosecution has disclosed the manner in which she was being taken
from place to place which finds some corroboration from the testimonies of the other
witnesses and, thus, we can safely arrive at a conclusion that at least at this stage her
evidence should not be rejected outrightly.
24
. Parameters for grant of anticipatory bail in such a serious offence, being under Section
376, 376(2)(g) IPC, in our opinion, are required to be satisfied. [See e.g. D.K. Ganesh
Babu v. P.T. Manokaran and Others [(2007) 4 SCC 434]. 2007 AIR SCW 1896
25. A mistake in regard to her age as recorded in the First Information Report or the first
medical document or even in her supplementary affidavit should yield to the public
documents which have been produced by the prosecution at this stage. Even before the
learned Chief Judicial Magistrate, she disclosed her date of birth to be 22.06.1991.
Therefore, even according to that she was below 16 years of age.
26. Immoral conduct on the part of police officers should not be encouraged. We fail to
understand as to how the police officers could go underground. They had been changing
their residence very frequently. Although most of them were police officers, their
whereabouts were not known. During the aforementioned period attempts had been made
even by Mahananda to obtain the custody of the girl at whose instance, we do not know.
On the one hand, Mahananda had been praying for the custody of the girl and Sunita, the
mother of the girl, as noticed hereinbefore, had affirmed an affidavit in relation to her
date of birth. These may not be acts of voluntariness on their part. It, therefore, in our
opinion, is a case where no anticipatory bail should have been granted.
27
. Reliance has been placed by Mr. Patwalia on Amarmani Tripathi (supra). This Court
therein opined that in an application for cancellation of bail, conduct subsequent to
release on bail and the supervening 2005 AIR SCW 4763
@page-SC161
circum-stances alone are relevant. But the court while considering an appeal against grant
of anticipatory bail would keep in mind the parameters laid down therefor. The matter,
however, may be different for deciding an appeal from an order granting bail, where the
accused has been at large for a considerable time, in which event, the post-bail conduct
and other supervening circumstances will also have to be taken note of.
This Court in Amarmani Tripathi (supra) aforementioned case upon considering even the
subsequent events came to the conclusion that the accused therein had tried to interfere
with the course of the investigation, tamper with the witnesses, fabricate evidence,
intimidate or create obstacles in the path of investigation officers and derail the case. In
that case, the appeal granting bail was set aside.
28. We may also notice that the High Court itself has refused to grant regular bail to the
accused against whom charge-sheet has been submitted. The learned Session Judge also
did not grant bail to some of the accused persons. If on the same materials, prayer for
regular bail has been rejected, we fail to see any reason as to why and on what basis the
respondents could be enlarged on anticipatory bail.
29. In the peculiar facts and circumstances of the case, we are of the opinion that the
High Court ought not to have granted anticipatory bail to the respondents. The impugned
judgment, therefore, cannot be sustained which is set aside accordingly. The appeal is
allowed.
30. The respondents may surrender before the Chief Judicial Magistrate and move an
application for regular bail, which may be considered on its own merit without being
influenced, in any way, by the judgment of this Court.
Appeal allowed.
AIR 2008 SUPREME COURT 161 "Manilal Hiraman Chaudhari v. State of Maharashtra"
(From : Bombay)*
Manilal Hiraman Chaudhari v. State of Maharashtra.
(A) Evidence Act (1 of 1872), S.3 - EVIDENCE - WITNESS - Evidence - Credibility -
Fact that witness was inimical towards accused persons as he had filed complaint against
accused that they attempted to kill him - Same by itself not valid ground to discredit said
witness who was otherwise trustworthy. (Para 7)
(B) Criminal P.C. (2 of 1974), S.154 - FIR - FIR - Lodged promptly - Failure to examine
motorcyclist who had taken informant to police station on his motorcycle - Would not
lead to conclusion that no FIR was lodged by informant. (Para 12)
(C) Penal Code (45 of 1860), S.300 - MURDER - EVIDENCE - Murder - Proof -
Evidence of prosecution witness that he found deceased in injured condition and that
deceased disclosed names of assailant - Cannot be doubted only on ground that as
deceased was profusely bleeding he could not speak. (Para 14)
(D) Penal Code (45 of 1860), S.300 - MURDER - MOTIVE - COMMISSION OF
OFFENCE - WITNESS - Murder - Proof - Direct evidence of eye-witnesses - Motive for
commission of offence also proved - Disclosure statement by one of accused leading to
recovery weapon of offence - Another accused showing place where blood stained
clothes were burnt - Weapon found to be tainted with blood - Blood group of blood found
on said material objects same as blood group of deceased - Statement by witness that vow
was taken by accused for killing deceased - Fact that witness did not inform police or
others about such vow cannot be ground to discard his evidence - Conviction of accused
upheld.(Paras 6, 16, 17, 18, 19)
2006 AIR SCW 5918 : 2007 Cri LJ 315 4
Shekhar Naphade, Sr. Advocate, Sudhanshu Choudhari, Mrs. Rajshri Dubey, Sunil
Kumar Verma, for Appellant; Dr. Rajeev B.Masodkar, Ravindra Keshavrao Adsure, for
Respondent.
* Cri. A. No. 60 of 1992, D/- 17-10-2005 (Bom) (Aurangabad Bench).
Judgement
1. S. B. SINHA, J :-One Manilal Hiraman Chaudhari is before us being aggrieved by and
dissatisfied with the judgment and order dated 17.10.2005 passed by a Division Bench of
the High Court of Judicature at Bombay, Aurangabad Bench
@page-SC162
at Aurangabad.
Appellant herein along with Anil Shivram Pawar (Accused No.1), Premraj Hirman
Chaudhary (Accused No. 3) and Bapu @ Gangaram Shantaram Salunkhe (Accused No.4)
were tried for committing the murder of one Bhaulal Jadhav. Bhaulal Jadhav was an
accused in a case of murder of the father of the appellant and accused No. 3. Allegedly,
when cremation of Hiraman was taking place, the appellant took a vow to take revenge of
murder of his father. Bhaulal (deceased) on or about 13.02.1991 at about 11.00 a.m. was
going to Jalgaon on a motorcycle. He was accompanied by Lotu Eko Patil (PW-4). When
they were at distance of about 3 k.m. from Jalgaon, the accused persons who were in a
Maruti van parked the vehicle by the side of road got down. The motorcycle was stopped
by Accused Nos. 2, 3 and 4. Premraj (Accused No. 3) is said to have caught hold Bhaulal
and Manilal (Accused No.2) and Gangaram (Accused No. 4) inflicted stab injuries with
knives. An attempt to rescue the deceased by PW-4 resulted in a threat to him, whereupon
he started running towards Jalgaon. Bhaulal also tried to save himself by running away
from the said place. He was chased by Accused Nos. 2 and 3 and was again assaulted
with knives.
PW-4 immediately went to the Taluka Police Station Jalgaon on a vehicle of a passer by.
A First Information Report was lodged at about 11.45 a.m. Bhaulal was taken to the
hospital in a tractor. At about 12.45 p.m. he died.
2. At the trial, the prosecution examined 17 witnesses. Lotu Eco Patil (PW-4) and
Govinda Shamrao Marathe (PW-5) were examined as eye-witnesses to the occurrence.
3. We have noticed hereinbefore that PW-4 was the informant. PW-5 was the driver of the
Maruti van, which was taken on hire by the accused persons. They had gone to
Onkareshwar and Saptashringi Gad in the District of Nasik. The learned Trial Judge upon
considering the evidence brought on record convicted all the accused persons under
Section 302 read with Section 34 and Section 120B of the Indian Penal Code (IPC). The
High Court by reason of the impugned judgment in the criminal appeal filed by the
accused persons, however, set aside the conviction and sentence of Accused No.1.
Accused Nos. 2, 3 and 4 were convicted under Section 302 read with Section 34 IPC.
Accused Nos. 2 and 3 were also convicted under Section 341 read with Section 34 IPC.
Accused No. 2 was further convicted under Section 506 IPC.
4
. Indisputably, Gangaram Shantaram Salunkhe preferred an appeal before this Court

against the said judgment of conviction and sentence passed by the High Court, which
was marked as Criminal Appeal No. 241 of 2006. The said appeal has since been
dismissed by this Court by a judgment and order dated 22.11.2006. [See Gangaram
Shantaram Salunkhe v. The State of Maharashtra [2006 (12) SCALE 259]. Premraj
Hiraman Chaudhari (Accused No. 3) has not preferred any appeal. 2006 AIR SCW 5918
5. Mr. Shekhar Naphade, learned Senior Counsel appearing on behalf of the appellant,
inter alia, would submit that it would be hazardous to rely upon the statements of PWs 4
and 5 to base a judgment of conviction against the appellant.
The learned counsel would urge that the contention of Sukhlal in regard to the purported
vow taken by the appellant to take revenge of murder of his father cannot be said to have
been proved inasmuch as no complaint was made in regard thereto, nor any other person
was informed thereabout.
6. PW-2 was a labour contractor. He was also a member of the Panchayat. He
categorically stated about the vow taken by the appellant herein for killing the deceased
Bhaulal. It may be true that he did not inform the police or others, but the same by itself,
in our opinion, cannot be a ground for discarding his evidence.
7. We may now notice the evidence of PW-4. He was a Peon in the Village Gram
Panchayat. He was accompanying the deceased on the motorcycle. He categorically
stated that a Maruti van overtook them. It was found standing at a distance. Both the
deceased as well as he recognized the Maruti van. They saw the accused persons coming
down therefrom. The accused had stopped the motorcycle. Premraj caught hold of the
deceased and Manilal started inflicting blows on the person of the deceased with a
dagger. There was an unknown person also who inflicted blows with a sickle. On
intervention, PW-4 was threatened by Manilal. He gave the details of the infliction of
blows by the weapons in the hands of the accused
@page-SC163
persons on the deceased. He upon having been threatened started running towards
Jalgaon. He found a motorcyclist coming towards him; gave a signal and came to the
police station to make a report at about 11.45 a.m. The First Information Report was
lodged without any delay whatsoever. In fact, the police came to the place of occurrence
and removed the deceased to the hospital in a tractor.
Mr. Naphade submitted that PW-4 was inimically disposed of towards the accused
persons as he had made a complaint to the police that Hiraman, Prabhakar Motiram and
others on 26.05.1985 had attempted to kill him. We, however, are of the opinion, the
same by itself would not be a valid ground to discredit the said witness, who is otherwise
truthful.
8. It may be true that there are two groups in the said village. PW-4 accepted the said fact.
Hiraman and Manilal were prosecuted for attempting to murder of Bhaulal. They were,
however, acquitted. Bhaulal and some 8-9 persons were said to have committed the
murder of Hiraman, father of Accused Nos. 2 and 3, wherefor a criminal case was
initiated against them.
9. The vehicle was said to be of chocolate colour; but he is said to have been shown a
blue colour Maruti van. Our attention was also drawn to the statement of PW-5, who was
the driver of the said Maruti van to show that the colour of the Maruti van was not dark
blue but it was light blue. Such minor contradictions, in our opinion, are of not much
significance.
10. PW-5 was an independent witness. He was driving the Maruti van wherein the
accused persons were travelling. He had no axe to grind. He gave a vivid description in
regard the places visited by the accused persons. He was an eye-witness to the
occurrence. He intended to flee away from the place, but he was threatened by the
accused. They after assaulting the deceased sat in the said vehicle and asked him to take
them to the temple of Vani Gadh. They reached there in the evening. There also he was
threatened. He thereafter came to Jalgaon and disclosed the incident to the owner of the
vehicle Yogesh Aggarwal.
11. Mr. Naphade submitted that the said Yogesh Aggarwal should have been examined by
the police. We do not think that it was essential to do so. He was not an eye witness.
Except the fact that his vehicle was taken on hire, he could not have proved anything else.
12. We, therefore, do not see any infirmity in the deposition of PWs 4 and 5. We may also
notice that according to Mr. Naphade, the motorcyclist who had taken the PW-4 to the
police station had not been examined. The said person has again nothing to do in the
matter. He was not a witness to the occurrence. The fact that the First Information Report
was lodged promptly and the deceased was removed to the hospital for treatment in a
tractor is not the subject-matter of any controversy. How PW-4 reached the police station
may be relevant for judging his conduct. Failure to examine the owner of the motorcycle
itself, in our opinion, would not lead to the conclusion that no First Information Report
was lodged by PW-4.
13. PW-6 is Namdev. He was also going to Jalgaon. He found Bhaulal in an injured
condition. He intended to ascertain from him the names of the assailants. Bhaulal
disclosed the same to him. Both the courts below have placed implicit reliance on the
testimony of this witness also.
14. Mr. Naphades contention that as according to this witness heavy bleeding took place
and about two liters of blood accumulated around the body of the deceased and, thus, it
was impossible for the deceased to disclose the names of the assailants, cannot be
accepted. Only because there had been profuse bleeding, the same by itself would not
lead to the conclusion that the deceased was not in a position to speak.
15. We may also notice that the doctor found the following external injuries on the person
of the deceased :
"1. Injury over the right ear 4½" in length and 2" in breadth. It was brain deep.
2. Injury extending to as occiput to left mastoroid 4" in length x 1" breadth.
3. Incised wound from medial aspect of scapula to the upper border up to upper one-third
of the shoulder. Parallel to the first to the first injury.
4. Incised wound, 3" in length 1½" in breadth bone deep from the medial aspect of the
scapula to the left shoulder joint.
5. Penetrating wound above the right superior 1" x 1" x 1" brain deep.
6. Incised wound from right angle of the
@page-SC164
mouth extending to the mandible of the size of 3" x 1".
7. Incised wound over the lower end of the scapula transverse in direction 1" x ½".
8. Incised wound on the right midclavical line 3" below postal margin, transverse in
direction 3½" x ½".
9. Incised wound 3" below umbilicus transverse in direction, 3½" on the left side and 2"
on the right side.
10. Incised wound 4" above the wrist joint 1" x 1" round shape.
11. Amputated left three fingers from the proximal M.P. joint.
12. Right thumb was cut only the skin tap was left.
13. Penetrating wound arising from the 8th rib, at midaxillary line on the left side, 4
curve in shape up to point 4" from the L 3 level extending to the abdominal cavity with
exposure of abdominal viscera.
Apart from the external injuries, the doctor noticed the following internal injuries:
"1. There was a fracture of the right temporal bone.
2. Superior orbito bone was fractured, on opening the skull the brain was lacerated on the
right side.
3. Fracture of the 8th, 9th, 10th, 11th, 12th ribs on the left side.
16. PW-13 is Dr. Ulhas Patil. According to the said witness, injuries Nos. 5 and 13 were
on the vital parts of the body and were sufficient in the ordinary course of nature to cause
death. The nature of the injuries suffered by him as also opinion of the doctor is not in
question. It is furthermore accepted that more than one weapon was used in commission
of the murder of Bhaulal. The investigation of the offence was made by Dhanraj
Gopalrao (PW-17) and Popat (PW-15). Recovery of knife as also the blood-stained
clothes of Accused No. 3 was made.
17. Apart from the direct evidence of PWs 4, 5 and 6, that motive for commission of the
offence has also been proved by PW-2. The fact that the First Information Report was
lodged against Hiraman, father of the Accused Nos. 2 and 3 and Manilal (Accused No. 2)
for attempting murder of Bhaulal and Crime No. 81 of 1990 was registered against the
deceased and some 8-9 persons for committing the murder of Hiraman is not disputed.
18. We have also noticed that Accused No.2 has also made a disclosure statement leading
to recovery of the weapon of offence, which was concealed at Saptashringi Gadh. Even
Accused No. 1 made a disclosure statement and showed the place where the blood-
stained clothes were burnt. The weapon was found to be tainted with blood. The place
where the weapon of offence was concealed was at a distance of 250 k.m. from the place
of incident. The said material objects were said to be containing blood which was found
to be belonging to Group-B. The blood group of the deceased was also B.
19. We, therefore, are of the opinion that there is no infirmity in the impugned judgment.
The appeal being devoid of any merit is hereby dismissed.
Appeal dismissed.
AIR 2008 SUPREME COURT 164 "Accounts Officer, J.S.E.B. v. Anwar Ali"
Civil Appeal No. 4734 of 2007* (arising out of SLP (C) No. 25840 of 2004), D/- 9 -10
-2007.
Accounts Officer, Jharkhand State Electricity Board and Anr. v. Anwar Ali.
Consumer Protection Act (68 of 1986), S.2(o), S.21 - CONSUMER PROTECTION -
WORDS AND PHRASES - ELECTRICITY - NATIONAL COMMISSION - Consumer -
Definition - Consumer of electricity whether covered - Challenge to disconnection of
electricity on ground of non-issuance of prior notice - Order of National Commission
holding disconnection invalid without determining question whether consumer of
electricity is covered by the definition of 'Consumer' - Liable to be set aside - Matter
remitted back.
Electricity Act (36 of 2003), S.126, S.145. (Para 10)
2006 AIR SCW 4065 : 2006 (5) ALJ 696 9
Nagendra Rai, Sr. Advocate and T. Mahipal, for Appellants; Mansoor Ali, Ms. Payal
Mahajan and Ashok K. Mahajan, for Respondent.
* From Judgment and Order of the National Consumers Disputes Redressal Commission,
New Delhi in R.P. No. 355 of 2004, D/- 19-2-2004.
Judgement
@page-SC165
2. Challenge in this appeal is to the order passed by the National Consumer Disputes
Redressal Commission, New Delhi (in short the National Commission).
3. The appellants had questioned correctness of the findings recorded by the District
Consumer Forum, Ranchi (in short District Forum) and the State Consumer Disputes
Redressal Commission, Jharkhand, Ranchi (in short the State Commission) before the
National Commission.
4. The basic grievance of the respondent was that the electricity supply was discontinued
without notice. Compensation of Rs.50,000/- was awarded along with 12% interest per
annum by the District Forum and upheld by the State Commission. The National
Commission took the view that since notice was given after disconnection, the action was
clearly unsustainable.
5. In support of the appeal, learned counsel for the appellant submitted that the District
Forum, the State Commission and the National Commission failed to appreciate that the
notice of disconnection was given on 20.12.1999 and the disconnection was made on
29.1.2000. Additionally, it was submitted that whether the consumer of electricity can be
covered under the provisions of the Consumers Protection Act, 1986 (in short the Act)
has not been considered by the National Commission.
6. Stand of the appellants is that the definition of Consumer as defined in Section 2(o) of
the Act does not cover a consumer of electricity.
7. Learned counsel for the respondent, on the other hand, submitted that the District
Forum, the State Commission and the National Commission have categorically found that
no notice was given prior to disconnection and the respondent has taken a categorical
stand that the notice dated 20.12.1999 has not been served on him.
8. In this case we are concerned with the scope and extent of the beneficial consumer
jurisdiction, particularly with regard to technical subjects falling under provisions such as
the Electricity Act, 2003. Under Section 2(c) of the Act complaint is defined to mean
allegation in writing made by a complainant that the service provider has charged for the
services, a price in excess of the price fixed under the law for the time being in force
[See: Section 2(c) (iv)]. Under Section 2(d) consumer is defined to mean any person who
hires or avails of any services for a consideration which has been paid or promised or
partly paid and partly promised. Under Section 2(g) of the Act the word deficiency is
defined to mean any fault, imperfection, shortcoming or inadequacy in the quality, nature
and manner of performance which is required to be maintained by or under any law for
the time being in force or under a contract or otherwise in relation to any service. The
word goods is defined under Section 2(i) to mean goods as defined in the Sale of Goods
Act, 1930. Service also defined under Section 2(o) of the Act to mean service of any
description which is made available to users in connection with banking, financing,
insurance, transport, processing, supply of electrical energy, entertainment etc. Therefore,
supply of electric energy by the Nigam falls under Section 2(o) of the Act. However, the
question which arises for determination and which has not been decided is : whether the
beneficial consumer jurisdiction extends to determination of tortuous acts and liability
arising therefrom by the Consumer Forum. In this connection, it is urged on behalf of the
Nigam that assessment of the duty for unauthorized use of electricity, tampering of
meters, distribution of meters and calibration of electric current are matters of technical
nature which cannot be decided by the Consumer Forum. It is urged that under the
Electricity Act, 2003 the jurisdiction of the civil court is excluded. In this connection
reliance was placed on Section 145 of the said 2003 Act under which the jurisdiction of
the civil court to entertain suits in respect of matters falling under Section 126 is
expressly barred. These are mattes of assessment. It is stated that the 2003 Act is a
complete Code by itself and, therefore, in matters of assessment of electricity bills the
Consumer Forum should have directed the respondent to move before the competent
authority under the Electricity Act, 2003 read with rules framed thereunder either
expressly or by incorporation.
9
. The above position was noted in Haryana State Electricity Board v. Mam Chand (2006
(4) SCC 649). 2006 AIR SCW 4065
10. In view of the fact that the National Commission has not addressed the question as to
whether consumer of electricity is covered by the definition of Consumer as defined in
Section 2(o) of the Act, we set aside
@page-SC166
the impugned order and remit the matter to the National Commission to record a positive
finding on the aspect. It shall also take into consideration the dispute raised regarding the
alleged service of notice dated 20.12.1999.
11. The appeal is allowed to the aforesaid extent with no order as to costs.
Appeal allowed.
AIR 2008 SUPREME COURT 166 "Hariom Agrawal v. Prakash Chand Malviya"
Coram : 3 B. N. AGRAWAL, PRAKASH PRABHAKAR NAOLEKAR AND P.
SATHASIVAM, JJ.
Civil Appeal No. 4696 of 2007 (arising out of SLP (Civ.) No. 12573 of 2006), D/- 8 -10
-2007.
Hariom Agrawal v. Prakash Chand Malviya.
Stamp Act (2 of 1899), S.33, S.35, S.37, S.48B - M.P. Stamp Rules (1942), R.19 -
STAMP - DOCUMENTS - Original Instrument bearing stamp of sufficient amount but of
improper description - Copy of such instrument - Neither can be validated by impounding
nor can be admitted as secondary evidence - S. 37 applies to document and not copy of
document.
Where in respect of the original instrument, proper Stamp Duty of Re. 1/- under the Act
has not been paid but a notarized stamp of Rs. 4/- is affixed on the document, the Court
has no power to impound the photocopy of the instrument sought to be produced as
secondary evidence and to admit such document as secondary evidence. (Paras 8, 13,
14)
An instrument which is not duly stamped can be impounded and when the required fee
and penalty has been paid for such instrument it can be taken in evidence under Section
35. Sections 33 or 35 are not concerned with any copy of the instrument and party can
only be allowed to rely on the document which is an instrument within the meaning of
Section 2(14). There is no scope for the inclusion of the copy of the document for the
purpose of the Act. The copy of the instrument cannot be validated by impounding and
this cannot be admitted as secondary evidence under the Act.
AIR 1962 SC 110 and AIR 1971 SC 1070, Followed. (Para 8)
The power under Section 37 and Rule 19, even after framing the rules by the State
Government, could only be exercised for a document which is an instrument as described
under Section 2(14). An instrument is held to be an original instrument and does not
include a copy thereof. Therefore, Section 37 and Rule 19 would not be applicable where
a copy of the document is sought to be produced for impounding or for admission as
evidence in a case. (Para 13)
The words "the Collector may proceed in the manner provided in this Chapter" in S. 48-B
has reference to Section 48 of the Act. S. 48-B only authorizes the Collector to recover
the adequate stamp duty which has been avoided at the time of execution of the original
instrument. This Section does not authorize the Collector to impound the copy of the
instrument. (Para 15)
AIR 1971 SC 1070 (Foll.) 7
AIR 1962 SC 110 (Foll.) 7
(1899) 26 Ind App 262 (PC) 7
Siddharth Bhatnagar and T. Mahipal, for Appellant; M. P. Acharya, Pradeep Acharya,
Kuldeep Acharya and Dharmendra Kumar Sinha, for Respondent.
* W.P. No. 11625 of 2005, D/- 3-5-2006 (MP).
Judgement
P. P. NAOLEKAR, J. :- Leave granted.
2. The facts necessary for deciding the question involved in the case are that one
Maganlal Jain was the original tenant of Prakash Chand Malviya, the respondent-
landlord. Maganlal Jain had given the shop to the appellant for carrying out the business.
On a dispute being arisen between the respondent-landlord, the original tenant Maganlal
Jain and the appellant herein, an agreement was executed on 28.3.1988 by the respondent
(landlord) and the appellant (subsequent tenant), whereby the landlord tenanted the shop
to the appellant on payment of an advance amount of Rs.4,75,000/- which was received
by the landlord in cash in front of the witnesses. The agreement further provided that in
case the landlord requires eviction of the tenant from the shop he will have to give notice
of 6 months to the tenant and will also refund the payment of Rs.4,75,000/- to the tenant.
On the other hand, if the tenant wants to vacate the shop he will have to give prior notice
of 6 months to the landlord and the landlord will pay back Rs.4,75,000/- to the
@page-SC167
tenant. This document was affixed with a notarial stamp of Rs.4/-. Under the Indian
Stamp Act, 1899 (for short the Act), agreement of this nature requires affixture of a stamp
of Re.1/- under Schedule I, Item 42 of the said Act.
3. On 12.5.2003 a suit for eviction was filed by the respondent-landlord before the Civil
Judge, Bhopal under Section 12(1)(f) of the Madhya Pradesh Accommodation Control
Act, stating the bona fide need for the use of the accommodation by his elder son. It was
the case of the appellant-tenant that the original copy of the agreement which was with
him was stolen and thus he was unable to produce the original document dated 28.3.1988,
but was in possession of a photostat copy of the agreement and made a prayer for receipt
of the photocopy of the agreement as secondary evidence under Section 63 of the Indian
Evidence Act, 1872. The trial court allowed the application for admission of the
photocopy of the document and admitted it as secondary evidence under Section 63 of the
Evidence Act.
4. On being aggrieved by the order of the trial court, the respondent-landlord filed a writ
petition before the High Court. The High Court set aside the order of the trial court and
remitted the matter back to decide the question as to whether a photocopy of an
improperly stamped original document can be received in secondary evidence. After
hearing the parties, the trial court by its order dated 9.8.2005 ordered that the document
be impounded, it being insufficiently stamped; the document was sent to the Collector of
Stamps for affixing appropriate stamp duty and thereafter for sending the document back
to the court. This order was challenged by the respondent in a review petition which was
dismissed by the trial court. Thereafter, a writ petition was filed before the High Court.
The High Court by its judgment dated 3.5.2006 held that the impugned document which
is a photocopy of the agreement, original of which is lost, cannot be admitted in
evidence; and that such a document can neither be impounded nor can be accepted in
secondary evidence.
5. It is an admitted fact that the photostat copy which is sought to be produced as
secondary evidence does not show that on the original agreement proper stamp duty was
paid. The photostat copy of the agreement shows that the original agreement carried only
a notarial stamp of Rs.4/-. Thus the original instrument bears the stamp of sufficient
amount but of improper description. From the facts of the case, the issue which requires
consideration is: Whether the court can impound the photocopy of the instrument
(document) of improper description exercising its power under the provisions of the
Indian Stamp Act, 1899?. For answering this question, Sections 33 and 35 of the Act
might render some help. Relevant extracts of the Sections are :
"33. Examination and impounding of instruments (1) Every person by law or consent of
parties, authority to receive evidence, and every person in charge of a public office,
except an officer of police, before whom any instrument, chargeable, in his opinion, with
duty, is produced or comes in the performance of his functions, shall, if it appears to him
that such instrument is not duly stamped, impound the same.
(2) For that purpose every such person shall examine every instrument so chargeable and
so produced or coming before him, in order to ascertain whether it is stamped with a
stamp of the value and description required by the law in force in (India) when such
instrument was executed or first executed:
"35. Instruments not duly stamped inadmissible in evidence, etc.- No instrument
chargeable with duty shall be admitted in evidence for any person having by law or
consent of parties to receive evidence, or shall be acted upon, registered or authenticated
by any such person or by any public officer, unless such instrument is duly stamped :
... ... ... ... ..."
6. Section 33 gives power to the authority to check whether the instrument has been duly
stamped and in case it is not duly stamped, to take steps to impound the same by proper
stamp duty on the said document. This power can be exercised in regard to an
'instrument'. Section 2(14) of the Act defines 'instrument' as:
Instrument includes every document by which any right or liability is, or purports to be,
created, transferred, limited, extended, extinguished or record.
7. The instrument as per definition under Section 2(14) has a reference to the original
instrument. In State of Bihar v. M/s. Karam Chand Thapar and Brothers Ltd., AIR 1962
SC 110, this Court in paragraph 6 of
@page-SC168
the judgment held as under :-
"6. It is next contended that as the copy of the award in court was unstamped, no decree
could have been passed thereon. The facts are that the arbitrator sent to each of the parties
a copy of the award signed by him and a third copy also signed by him was sent to the
court. The copy of the award which was sent to the Government would appear to have
been insufficiently stamped. If that had been produced in court, it could have been
validated on payment of the deficiency and penalty under S.35 of the Indian Stamp Act,
1899. But the Government has failed to produce the same. The copy of the award which
was sent to the respondents is said to have been seized by the police along with other
papers and is not now available. When the third copy was received in court, the
respondents paid the requisite stamp duty under S.35 of the Stamp Act and had it
validated. Now the contention of the appellant is that the instrument actually before the
court is, what it purports to be, a certified copy, and that under S.35 of the Stamp Act
there can be validation only of the original, when it is unstamped or insufficiently
stamped, that the document in court which is a copy cannot be validated and acted upon
and that in consequence no decree could be passed thereon. The law is no doubt well-
settled that the copy of an instrument cannot be validated. That was held in Rajah of
Bobbili v. Inuganti China Sitaramasami Garu, 26 Ind App 262, where it was observed :
"The provisions of this section (section 35) which allow a document to be admitted in
evidence on payment of penalty, have no application when the original document, which
was unstamped or was insufficiently stamped, has not been produced; and, accordingly,
secondary evidence of its contents cannot be given. To hold otherwise would be to add to
the Act a provision which it does not contain. Payment of penalty will not render
secondary evidence admissible, for under the stamp law penalty is leviable only on an
unstamped or insufficiently stamped document actually produced in Court and that law
does not provide for the levy of any penalty on lost documents
... ... ...."
This Court had an occasion again to consider the scope and ambit of Sections 33(1), 35
and 36 of the Act and Section 63 of the Indian Evidence Act in Jupudi Kesava Rao v.
Pulavarthi Venkata Subbarao and others, AIR 1971 SC 1070 and held that :-
"13. The first limb of Section 35 clearly shuts out from evidence any instrument
chargeable with duty unless it is duly stamped. The second limb of it which relates to
acting upon the instrument will obviously shut out any secondary evidence of such
instrument, for allowing such evidence to be let in when the original admittedly
chargeable with duty was not stamped or insufficiently stamped, would be tantamount to
the document being acted upon by the person having by law or authority to receive
evidence. Proviso (a) is only applicable when the original instrument is actually before
the Court of law and the deficiency in stamp with penalty is paid by the party seeking to
rely upon the document. Clearly secondary evidence either by way of oral evidence of the
contents of the unstamped document or the copy of it covered by Section 63 of the Indian
Evidence Act would not fulfil the requirements of the proviso which enjoins upon the
authority to receive nothing in evidence except the instrument itself. Section 35 is not
concerned with any copy of an instrument and a party can only be allowed to rely on a
document which is an instrument for the purpose of Section 35. 'Instrument is defined in
Section 2(14) as including every document by which any right or liability is, or purports
to be created, transferred, limited, extended, extinguished or recorded. There is no scope
for inclusion of a copy of a document as an instrument for the purpose of the Stamp Act.
14. If Section 35 only deals with original instruments and not copies Section 36 cannot be
so interpreted as to allow secondary evidence of an instrument to have its benefit. The
words an instrument in Section 36 must have the same meaning as that in Section 35. The
legislature only relented from the strict provisions of Section 35 in cases where the
original instrument was admitted in evidence without objection at the initial stage of a
suit or proceeding. In other words, although the objection is based on the insufficiency of
the stamp affixed to the document, a party who has a right to object to the reception of it
must do so when the document is first tendered. Once the time for raising objection to the
admission of the documentary evidence is passed, no objection based on the same ground
can be
@page-SC169
raised at a later stage. But this in no way extends the applicability of Sec.36 to secondary
evidence adduced or sought to be adduced in proof of the contents of a document which
is unstamped or insufficiently stamped."
8. It is clear from the decisions of this Court and a plain reading of Sections 33, 35 and
2(14) of the Act that an instrument which is not duly stamped can be impounded and
when the required fee and penalty has been paid for such instrument it can be taken in
evidence under Section 35 of the Stamp Act. Sections 33 or 35 are not concerned with
any copy of the instrument and party can only be allowed to rely on the document which
is an instrument within the meaning of Section 2(14). There is no scope for the inclusion
of the copy of the document for the purposes of the Indian Stamp Act. Law is now no
doubt well settled that copy of the instrument cannot be validated by impounding and this
cannot be admitted as secondary evidence under the Indian Stamp Act, 1899.
9. The learned counsel for the appellant submitted that the High Court was guided by the
decisions rendered by this Court while deciding the question involved in the case whether
original document was unstamped or not properly stamped and not in regard to a
document which was although stamped but was improperly stamped. As per the learned
counsel, the case in hand shall be governed by Section 37 of the Act and not by Section
33 read with Section 35 of the Act. The learned counsel further urged that the High Court
has committed an error in overlooking Section 48-B inserted by Indian Stamp (Madhya
Pradesh Amendment) Act, 1990 (No. 24 of 1990], which received assent of the President
and was published in the Madhya Pradesh Gazette (Extraordinary) dated 27.11.1990,
applicable in the State of Madhya Pradesh whereby the Collector is authorized even to
impound copy of the instrument.
10. Section 33 refers to the power of the authority to impound the instrument not duly
stamped, and by virtue of Section 35 any document which is not duly stamped shall not
be admitted in evidence.
11. Section 37 of the Act reads as under:
"37. Admission of improperly stamped instruments.- The State Government may make
rules providing that, where an instrument bears a stamp of sufficient amount but of
improper description, it may, on payment of the duty with which the same is chargeable
be certified to be duly stamped, and any instrument so certified shall then be deemed to
have been duly stamped as from the date of its execution.
Under this provision, the State Government is authorized to make rules providing therein
to impound any instrument which bears a stamp of sufficient amount but of improper
description and on payment of chargeable duty to certify it to be duly stamped and to
treat such document as duly stamped as on the date of its execution.
12. In the State of Madhya Pradesh, Rule 19 of the Madhya Pradesh Stamp Rules, 1942
permits payment of duty on the instrument which carries stamp of proper amount but of
improper description. The said Rule reads as under:
"When an instrument bears a stamp of proper amount but of improper description, the
Collector may, on payment of the duty with which the instrument is chargeable, certify by
endorsement that it is duly stamped :
Provided that if application is made within three months of the execution of the
instrument, and Collector is satisfied that the improper description of stamp was used
solely on account of the difficulty of inconvenience of procuring one of the proper
description, he may remit the further payment of duty prescribed in this rule."
13. Section 37 of the Act would be attracted where although the instrument bears a stamp
of sufficient amount but such stamp is of improper description, as in the present case
where the proper stamp duty of Re.1/- under the Act has not been paid but a notarized
stamp of Rs.4/- was affixed on the document. The sufficient amount of the stamp duty
has been paid but the duty paid by means of affixture of notarized stamp is of improper
description. By virtue of Rule 19 of the Madhya Pradesh Stamp Rules, 1942, the
Collector of Stamp is authorized to receive the proper stamp duty on an instrument which
bears a stamp of proper amount but of improper description, and on payment of the
adequate duty chargeable under the Act he would certify by endorsement on the
instrument that the instrument is duly stamped. Under the proviso to the Rule, the
Collector may pardon the further
@page-SC170
payment of duty prescribed in this Rule provided the person holding the original
instrument moves the Collector within three months of the execution of the instrument
for certification by endorsement and the Collector is satisfied that the stamp of improper
description was used solely on the account of the difficulty or inconvenience of the
holder of the instrument to procure the adequate stamp duty required to be paid on the
instrument. But the power under Section 37 and Rule 19, even after framing the rules by
the State Government, could only be exercised for a document which is an instrument as
described under Section 2(14). By various authorities of this Court, an instrument is held
to be an original instrument and does not include a copy thereof. Therefore, Section 37
and Rule 19 would not be applicable where a copy of the document is sought to be
produced for impounding or for admission as evidence in a case.
14. Section 48-B is a provision applicable in the State of Madhya Pradesh which was
inserted by Indian Stamp (M.P. Amendment) Act, 1990 (No. 24 of 1990] in Chapter IV
under heading Instrument not duly stamped of the Act. This Section reads as under:
"48-B. Original instrument to be produced before the Collector in case of deficiency.
Where the deficiency of stamp duty is noticed from a copy of any instrument, the
Collector may by order require the production of original instrument from a person in
possession or in custody of the original instrument for the purpose of satisfying himself
as to the adequacy of amount of duty paid thereon. If the original instrument is not
produced before him within the period specified in the order, it shall be presumed that the
original document is not duly stamped and the Collector may proceed in the manner
provided in this Chapter:
Provided that no action under this section shall be taken after a period of five years from
the date of execution of such instrument."
15. On a plain reading of Section 48-B, we do not find that the submission of the learned
counsel for the appellant that by virtue of this provision the Collector has been authorized
to impound even copy of the instrument, is correct. Under this Section where the
deficiency of stamp duty is noticed from the copy of any instrument, the Collector may
call for the original document for inspection, and on failure to produce the original
instrument could presume that proper stamp duty was not paid on the original instrument
and, thus, recover the same from the person concerned. Section 48-B does not relate to
the instrument, i.e., the original document to be presented before any person who is
authorized to receive the document in evidence to be impounded on inadequacy of stamp
duty found. The Section uses the phraseology where the deficiency of stamp duty is
noticed from a copy of any instrument. Therefore, when the deficiency of stamp duty
from a copy of the instrument is noticed by the Collector, the Collector is authorised to
act under this Section. On deficiency of stamp duty being noticed from the copy of the
instrument, the Collector would order production of original instrument from a person in
possession or in custody of the original instrument. Production is required by the
Collector for the purpose of satisfying himself whether adequate stamp duty had been
paid on the original instrument or not. In the notice given to person in possession or in
custody of original instrument, the Collector shall provide for time within which the
original document is required to be produced before him. If, in spite of the notice, the
original is not produced before the Collector, the Collector would draw a presumption
that original document is not duly stamped and thereafter may proceed in the manner
provided in Chapter IV. By virtue of proviso, the step for recovery of adequate stamp
duty on the original instrument on insufficiency of the stamp duty paid being noticed
from the copy of the instrument, can only be taken within five years from the date of
execution of such instrument. The words the Collector may proceed in the manner
provided in this Chapter has reference to Section 48 of the Act. Under this Section, all
duties, penalties and other sums required to be paid under Chapter IV, which includes
stamp duty, would be recovered by the Collector by distress and sale of the movable
property of the person who has been called upon to pay the adequate stamp duty or he
can implement the method of recovery of arrears of land revenue for the dues of stamp
duty. By virtue of proviso to Section 48-B, the Collectors power to adjudicate upon the
adequacy of stamp duty on the original instrument on the basis of copy of the instrument
is restricted to the period of five years
@page-SC171
from the date of execution of the original instrument. This Section only authorizes the
Collector to recover the adequate stamp duty which has been avoided at the time of
execution of the original instrument. This Section does not authorize the Collector to
impound the copy of the instrument.
16. For the reasons stated above, the appeal fails and is dismissed.
17. There shall be no order as to costs.
Appeal dismissed.
AIR 2008 SUPREME COURT 171 "Shiv Kumar Sharma v. Santosh Kumari"
(From : Delhi)
-2007.
Shiv Kumar Sharma v. Santosh Kumari.
(A) Civil P.C. (5 of 1908), O.2, R.2, O.7, R.7, S.96 - PLAINT - APPEAL - CIVIL
PROCEDURE - Additional issues - Issues which do not arise for consideration in
suit/appeal - Cannot be framed by Court on its own.
Issues that do not arise for consideration in a suit/appeal cannot be framed by Court on its
own. A suit is ordinarily tried on the issues raised by parties. (Paras 23, 14)
In the instant case the plaintiff and defendant agreed to sell their respective properties
(shops) for consideration. As no registered deed got executed plaintiff filed a suit for
possession and permanent injunction restraining defendant from selling, alienating,
letting or otherwise parting with possession of the shop. The suit was decreed. In appeal
the question whether the defendant had any subsisting legal right to stay in occupation of
the shop owned by the plaintiff and if he did not have any such right, as to whether
restoration of possession could be demanded back by him as a condition precedent for
surender of possession of suit shop was answered in favour of the plaintiff and against the
defendant. The appellate Court, however, raised an additional issue as to whether a
direction could be issued to the defendant to compensate the plaintiff for non-payment of
the amount which he had to additionally pay to the plaintiff under the agreement.
Considering facts direction was issued to the defendant to pay compensation to plaintiff
with interest.
Held, the High Court was not correct in framing the additional issue of its own which did
not arise for consideration in the suit or in the appeal. Even otherwise the High Court
should have formulated the points for its consideration in terms of Order 41, Rule 31. On
the pleadings of the parties and in view of the submissions made, no such question arose
for its consideration. (Para 23)
If the plaintiff intended to claim damages and/or mesne profit, in view of O. 2, R. 2 itself,
he could have done so, but he chose not to do so. Having omitted to make any claim for
damages, the plaintiff cannot be permitted to get the same indirectly. (Para 17)
No doubt, the Court in an appropriate case, even in a civil suit may mould a relief but its
jurisdiction in this behalf would be confined to O. 7, R.7. (Para 18)
(B) Civil P.C. (5 of 1908), S.96 - Constitution of India, Art.226 - OBJECT OF AN ACT -
WRITS - HIGH COURT - JUDICIAL REVIEW - Appeal - Jurisdiction of High Court -
Scope - High Court while deciding appeal is bound to act within four corners of statute -
However, while exercising powers of judicial review, the High Court exercises a wider
jurisdiction. (Para 18)
(C) Civil P.C. (5 of 1908), S.9 - CIVIL COURT - Civil Court - Jurisdiction - Courts in
India exercise jurisdiction both in equity as well as law - But exercise of equity
jurisdiction is always subject to the provisions of law. (Para 21)
(D) Civil P.C. (5 of 1908), O.2, R.4 - CIVIL PROCEDURE - CIVIL COURT - Joinder of
cause of action - Leave of Court - Civil Court does not grant leave to file another suit - If
the law permits, the plaintiff may file another suit but not on the basis of observations
made by a superior Court. (Para 23)
2006 AIR SCW 5594 : AIR 2007 SC 226 (Rel. on, Pnt A) 18
2005 AIR SCW 6314 : AIR 2006 SC 586 (Rel. on, Pnt A) 18
(2004) 8 SCC 569 22
(1948) 1 KB 339 : (1947) 2 All ER 751 20
(1946)1 All ER 284 20
1943 AC 32 : (1942) 2 All ER 122 20
@page-SC172
Ashok Bhasin, Sr. Advocate, Shantanu Rastogi and R. S. Lambat, with him, for
Appellant; Ms. Geeta Luthra, D. N. Goburdhan, Ms. Pinky Anand, Piyush Singhal and
Ms. Riva Gujral, for Respondent.
Judgement
2. Propriety or otherwise of certain directions issued by a Division Bench of the Delhi
High Court is in question in this appeal which arises out of a judgment and order dated
28.8.2006 passed by the said Court in RFA No. 229 of 2004.
4. The parties had entered into an agreement to sell their respective properties situate at
598/1, Gali Kaitwali, Sangtrashan, Paharganj, Delhi and 1241, Sangtrashan, Paharganj,
Delhi for a price which was subsequently determined at Rs. 4,75,000/- and Rs. 3,25,000/-
respectively. Appellant's title over the property which was owned and possessed by him
appeared to be defective; although the said agreement was acted upon partially in terms
whereof both the parties gave vacant possession of the property in their possession to the
other.
5. However, no registered deed of sale could be executed. Respondent issued a notice on
or about 21.03.1996 asking the appellant to hand over possession. Respondent thereafter
filed a suit praying inter alia for the following reliefs:
"a) a decree for possession in favour of the Plaintiff and against the Defendant in respect
of shop bearing No. 1241, situated on the ground floor duly shown in red colour in
Annexure 'A' forming part of building bearing No. 1241, Bazar Sangtrashan, Paharganj,
New Delhi;
b) by means of a decree for permanent injunction in favour of the Plaintiff against the
Defendant that the Defendant be restrained from selling, alienating, letting or otherwise
parting with possession of the shop situated on ground floor or any part thereof shown in
red colour in the Plan Annexure 'A' forming part of Building No. 1241, Bazar
Sangtrashan, Paharganj, New Delhi;
c) costs of the suit be awarded."
6. The defence raised by the appellant in his written statement was that he had all along
been ready and willing to perform his part of the contract but the plaintiff became
dishonest when the value of the property in the area increased and he started demanding
more money from him on the plea that his business on the ground floor of the property
had flourished in no time and the value of the property was more than the agreed sale
consideration.
On the pleadings of the parties, the learned Trial Judge framed the following issues:
"i) Whether the suit is not maintainable in view of the provisions of Sections 38 and 41 of
the Specific Relief Act?
ii) Whether the suit has not been properly valued for the purposes of court-fee and
jurisdiction?
iii) Whether the agreement dated 30.5.95 as alleged is executed between the parties?
iv) Whether the agreement dated 30.5.95 is forged and fabricated? If so, to what effect.
v) Whether the defendant is the owner of property No. 598/1, Gali Kaitwali, Sangtrashan,
Paharganj, New Delhi?
vi) Whether the Plaintiff is entitled to the possession and injunction prayed for?
vii) Relief."
7. The suit was decreed. The learned Trial Judge passed the decree for possession in
respect of the shop premises bearing No. 1241, Gali Kaitwali, Bazar Sangtrashan,
Paharganj, New Delhi. A decree for permanent injunction was also passed restraining the
defendant from selling, alienating, letting or otherwise parting with the possession of the
shop situated on ground floor or any part thereof.
8. Aggrieved thereby and dissatisfied therewith, the appellant preferred an appeal before
the High Court. During pendency of the appeal, the said decree was acted upon by the
parties. Plaintiff got back possession of the premises in question.
A Division Bench of the High Court, however, sought to explore the possibility of an
amicable settlement between the parties. It referred the parties to the High Court
Mediation Centre but it did not succeed.
9. The short question which was posed and answered by the High Court was as to
whether the defendant had any subsisting legal right to stay in occupation of the shop
owned by the plaintiff and if he did not have any such right, as to whether restoration of
@page-SC173
possession could be demanded back by him as a condition precedent for surrender of
possession of shop No. 1241.
10. The said question was answered in favour of the plaintiff and against the defendant.
The High Court, however, did not stop there. It raised a question as to whether transfer of
possession of the shop in possession of the plaintiff to the defendant would suffice and
provide for an equitable solution without any further direction to the defendant to
compensate the plaintiff for non-payment of the amount which he had to pay to the
plaintiff under the agreement executed between them.
The High Court noticed that the defendant was required to pay a sum of Rs. 1,50,000/- to
the plaintiff over and above the price specified in the agreement in respect of transferring
the title and possession of shop No. 598/1 but he did not pay. The High Court, therefore,
thought it fit to direct payment of suitable amount of compensation to the plaintiff. It was
opined that grant of 6% interest per annum calculated from 30th May, 1995 till the date
of actual payment would serve the purpose.
It was further directed:
"Subject to all just exceptions including limitations, liberty is given to the plaintiff to
claim relief by way of damages/ mesne profits in a separate suit filed before the
competent court."
11. Appellant is, thus, before us.
12. Mr. Ashok Bhasin, learned senior counsel appearing on behalf of the appellant would
submit that the impugned directions are not legally sustainable as the parties hereto had
been in possession of the shop premises belonging to other and in that view of the matter
the question of payment of any damages or compensation by way of mesne profit or
otherwise did not and could not arise.
13. Ms. Geeta Luthra, learned counsel appearing on behalf of the respondent, on the other
hand, would submit that damages could have been granted in the facts and circumstances
of this case particularly when the appellant himself accepted that his business had
flourished at the premises belonging to the plaintiff.
The learned counsel would furthermore contend that although Order II, Rule 2 of the
Code of Civil Procedure (Code) bars a second suit; Rule 4 of the said Order being an
exception thereto, the High Court cannot be said to have committed any error in passing
the impugned judgment.
14. A suit is ordinarily tried on the issues raised by the parties. The plaintiff-respondent
did not ask for payment of any damages. No prayer for payment of damages by way of
mesne profit or otherwise was also made by the plaintiff. If the plaintiff was to ask for a
decree, he was required to pay requisite court-fees on the amount claimed. In such a
situation, having regard to Order XX, Rule 12 of the Code, a preliminary decree was
required to be passed. A proceeding for determination of the actual damages was required
to be gone into.
15. Order II, Rules 2, 3 and 4 of the Code read as under:
"2 . Suit to include the whole claim -
(1) Every suit shall include the whole of the claim which the plaintiff is entitled to make
in respect of the cause of action; but a plaintiff may relinquish any portion of his claim in
order to bring the suit within the jurisdiction of any Court.
(2) Relinquishment of part of claim. -Where a plaintiff omits to sue in respect of, or
intentionally relinquishes, any portion of his claim, he shall not afterwards sue in respect
of the portion so omitted or relinquished.
(3) Omission to sue for one of several reliefs.-A person entitled to more than one relief in
respect of the same cause of action may sue for all or any of such reliefs; but if he omits,
except with the leave of the Court, to sue for all such reliefs, he shall not afterwards sue
for any relief so omitted.
Explanation.-For the purposes of this rule an obligation and a collateral security for its
performance and successive claims arising under the same obligation shall be deemed
respectively to constitute but one cause of action.
3. Joinder of causes of action -
(1) Save as otherwise provided, a plaintiff may unite in the same suit several causes of
action against the same defendant, or the same defendants jointly; and any plaintiffs
having causes of action in which they are jointly interested against the same defendant or
the same defendants jointly may unite such causes of action in the same suit.
@page-SC174
(2) Where causes of action are united, the jurisdiction of the Court as regards the suit
shall depend on the amount or value of the aggregate subject-matters at the date of
instituting the suit.
4. Only certain claims to be joined for recovery of immovable property-
No cause of action shall, unless with the leave of the Court, be joined with a suit for the
recovery of immovable property, except-
(a) claims for mesne profits or arrear of rent in respect of the property claimed or any part
thereof;
(b) claims for damages for breach of any contract under which the property or any part
thereof is held ; and
(c) claims in which the relief sought is based on the same cause of action :
Provided that nothing in this rule shall be deemed to prevent any party in a suit for
foreclosure or redemption from asking to be put into possession of the mortgaged
property."
16. In terms of Order II, Rule 2 of the Code, all the reliefs which could be claimed in the
suit should be prayed for. Order II, Rule 3 provides for joinder of causes of action. Order
II, Rule 4 is an exception thereto. For joining causes of action in respect of matters
covered by Clauses (a), (b) and (c) of Order II, Rule 4, no leave of the court is required to
be taken. Even without taking leave of the court, a prayer in that behalf can be made. A
suit for recovery of possession on declaration of one's title and/or injunction and a suit for
mesne profit or damages may involve different cause of action. For a suit for possession,
there may be one cause of action; and for claiming a decree for mesne profit, there may
be another. In terms of Order II, Rule 4 of the Code, however, such causes of action can
be joined and therefor no leave of the court is required to be taken. If no leave has been
taken, a separate suit may or may not be maintainable but even a suit wherefor a prayer
for grant of damages by way of mesne profit or otherwise is claimed, must be instituted
within the prescribed period of limitation. Damages cannot be granted without payment
of court-fee. In a case where damages are required to be calculated, a fixed court-fee is to
be paid but on the quantum determined by the court and the balance court-fee is to be
paid when a final decree is to be prepared.
17. If the respondent intended to claim damages and/or mesne profit, in view of Order II,
Rule 2 of the Code itself, he could have done so, but he chose not to do so. For one
reason or the other, he, therefore, had full knowledge about his right. Having omitted to
make any claim for damages, in our opinion, the plaintiff cannot be permitted to get the
same indirectly.
Law in this behalf is absolutely clear. What cannot be done directly cannot be done
indirectly.
18
. Scope and ambit of jurisdiction of the High Court in determining an issue in an appeal
filed in terms of Section 96 of the Code of Civil Procedure (which would be in
continuation of the original suit) and exercising the power of judicial review under
Articles 226 and 227 of the Constitution of India would be different. While in the former,
the court, subject to the procedural flexibility has laid down under the statute is bound to
act within the four corners thereof, in adjudicating a lis in exercise of its power of judicial
review, the High Court exercises a wider jurisdiction. No doubt, the court in an
appropriate case, even in a civil suit may mould a relief but its jurisdiction in this behalf
would be confined to Order VII, Rule 7 of the Code of Civil Procedure. [See Bay Berry
Apartments Pvt. Ltd. and Anr. v. Shobha and Ors. 2006 (10) SCALE 596 and U.P. State
Brassware Corpn. Ltd. and Anr. v. Udai Narain Pandey (2006) 1 SCC 479]. 2006
AIR SCW 5594
2005 AIR SCW 6314
19. Submission of Ms. Luthra that the High Court had the requisite jurisdiction in equity
to pass the impugned decree, in a situation of this nature, therefore, in our opinion, is not
correct.
20. Learned Trial Judge has relied upon Fibrosa v. Fairbairn [1943 AC 32] and Nelson v.
Larholt [(1948) 1 KB 339]. In support of its findings, reliance has also been placed by
Ms. Luthra on Cumberland Consolidated Holdings Ltd. v. Ireland [1946 (1) All ER 284].
Those decisions have no application to the facts and circumstances of the instant case.
21. In England, the Court of Equity exercises jurisdiction in equity. The courts of India do
not possess any such exclusive jurisdiction. The Courts in India exercise
@page-SC175
jurisdiction both in equity as well as law but exercise of equity jurisdiction is always
subject to the provisions of law. If exercise of equity jurisdiction would violate the
express provisions contained in law, the same cannot be done. Equity jurisdiction can be
exercised only when no law operates in the field.
22. A court of law cannot exercise its discretionary jurisdiction dehors the statutory law.
Its discretion must be exercised in terms of the existing statute.
In Shamsu Suhara Beevi v G. Alex and Another [(2004) 8 SCC 569], this Court, while
dealing with a matter relating to grant of compensation by the High Court under Section
21 of the Specific Relief Act in addition to the relief of specific performance in the
absence of prayer made to that effect either in the plaint or amending the same at any
later stage of the proceedings to include the relief of compensation in addition to the
relief of specific performance, observed:
"Grant of such a relief in the teeth of express provisions of the statute to the contrary is
not permissible. On equitable consideration court cannot ignore or overlook the
provisions of the statute. Equity must yield to law."
23. We, therefore, are of the opinion that the High Court was not correct in framing the
additional issues of its own which did not arise for consideration in the suit or in the
appeal. Even otherwise, the High Court should have formulated the points for its
consideration in terms of Order XLI, Rule 31 of the Code. On the pleadings of the parties
and in view of the submissions made, no such question arose for its consideration. In any
event, if a second suit was maintainable in terms of Order II, Rule 4 of the Code, as was
submitted by Ms. Luthra, no leave was required to be granted therefor. A civil court does
not grant leave to file another suit. If the law permits, the plaintiff may file another suit
but not on the basis of observations made by a superior court.
24. In view of our findings aforementioned, it is not necessary for us to determine the
question as to whether in a situation of this nature, the plaintiff was entitled to damages.
He might have been entitled thereto but no prayer having been made, that part of the
judgment of the High Court which is impugned before us cannot be sustained.
However, in exercise of our discretionary jurisdiction under Article 142 of the
Constitution of India and having regard to the conduct of the defendant, we direct that the
costs shall be payable by the appellant in favour of the respondent in terms of Section
35A of the Code, besides the costs already directed to be paid by the learned Trial Judge
as also by the High Court. We direct the appellant to pay a sum of Rs. 50,000/- by way of
costs to the respondent.
25. The appeal is disposed of with the aforementioned directions.
Order accordingly.
AIR 2008 SUPREME COURT 175 "Bhagga v. State of Madhya Pradesh"
Coram : 2 PRAKASH PRABHAKAR NAOLEKAR AND ALTAMAS KABIR, JJ.
Bhagga and Ors. v. State of M.P.
(A) Evidence Act (1 of 1872), S.3 - EVIDENCE - WITNESS - MURDER - Interested
witness - Credibility - Murder case - Eye witnesses belonging to one family - Not ground
to disbelieve their evidence when they were on spot of incident. (Para 15)
(B) Penal Code (45 of 1860), S.300, S.149 - MURDER - UNLAWFUL ASSEMBLY -
DYING DECLARATION - EVIDENCE - Murder - Accused persons alleged to have
assaulted deceased with deadly weapons - Dying declaration naming all accused -
Medical evidence supporting prosecution case - Evidence of eye-witness however
discrepant as regards participation of some accused - Held, common object of all accused
appellants could not be said to be established - Appeal allowed in part - Some of
appellants liable to be given benefit of doubt in view of discrepancy in evidence of eye
witnesses. (Para 15)
Dr. T. N. Singh, Sr. Advocate, Lakhan Singh Chauhan and Dr. Kailash Chand for
Appellants; Ms. Vibha Datta Makhija for Respondent.
* Cri. Appeal No. 30 of 1989, D/- 31-10-2003 (MP) (Gwalior Bench)
Judgement
ALTAMAS KABIR, J. :- This appeal by
@page-SC176
way of special leave granted on 4th February, 2005, is directed against the judgment and
sentence passed by the Madhya Pradesh High Court on 31st October, 2003, affirming the
judgment of the second Additional Sessions Judge, Shivpuri, (M.P.) in Session Trial No.
133 of 1987 convicting the appellants under Sections 148, 302/149 and 323/149 of the
Indian Penal Code and sentencing them for two years R.I. under Section 148 and for life
imprisonment under Section 302/149 and for one year R.I. under Section 323/149 Indian
Penal Code.
2. Of the 12 accused persons, who had originally been charge-sheeted, Shyamlal s/o
Munna was found not guilty of the charges against him and he was, therefore, acquitted.
Apart from Shyamlal s/o Munna, one other accused, Jairam, was found to be a juvenile
during the course of trial and his case was accordingly separated and sent to the Juvenile
Court for disposal.
3. Consequently, only 10 of the 12 accused persons filed Criminal Appeal No. 30 of 1989
before the Madhya Pradesh High Court, which affirmed the judgment of conviction and
sentence passed by the learned Sessions Judge. All the said 10 accused are also the
appellants in this appeal.
4. The case made out by the prosecution is that on 4th June, 1986, all the appellants who
were armed with lethal weapons such as axe, lathi and Lohangi gathered at Village
Burhanpur under Bamorkalan Police Station and formed an unlawful assembly and after
entering the house of one Babulal, committed his murder and caused injury to his wife,
Raina Bai.
5. The facts leading to the aforesaid incident is that appellant Malkhan is alleged to have
cut down two Khair trees from the field of deceased Babulal. Babulal thereupon asked
Malkhan to return the trees and Malkhan is said to have promised to return the trees cut
by him to Babulal. On 4th June, 1987 at about 7 in the morning, Malkhan went to
Babulals house and told him to take back the trees which had been cut down by Malkhan.
Once Babulal reached Malkhans house, he was assaulted by all the appellants. The
incident was witnessed by Raina Bai (P.W.1), Raj Kumari Bai (P.W.4), Gyan Bai (P.W.6),
Bhawani Singh (P.W.7), Harkunwar (P.W.8) and Lakhan Singh (P.W.14).
6. It is the further case of the prosecution that when Raina Bai and Gyan Bai tried to
intervene, they too suffered injuries. Due to severe assault on Babulal he succumbed to
his injuries and during post mortem the doctor found as many as 10 injuries, which in the
opinion of doctor was the cause of Babulal's death, which was homicidal in nature.
7. Relying on the evidence of Raina Bai (P.W.1), Raj Kumari Bai (P.W.4) and Gyan Bai
(P.W.6), the High Court was of the view that the evidence of the eye-witnesses was
relevant and cogent and that the trial court after appreciation of the evidence had
convicted the appellants. The High Court also observed that from the evidence the
presence of the injured witnesses at the place of occurrence could not be doubted and
their evidence inspired confidence. Consequently, the High Court dismissed the appeal.
8. The evidence as adduced by the prosecution indicates that on the day of incident Raj
Kumari (P.W.4) was present at the house of her maternal uncle, Tej Raj, at Burhanpur. In
the morning at 7 a.m. she had come out of the house to throw cow dung, when she heard
a commotion from the side of the house of Shyamlal, Malkhan and Santosh. On hearing
the commotion, she went to the spot and saw Malkhan, Santosh, Munna, Ramcharan and
other accused, who were present in the Court, assaulting Babulal. She then went and
informed Raina Bai (P.W.1) who is her sister-in-law that the accused persons were
assaulting Babulal. She and Raina Bai came to the place of occurrence and saw Munna
and Malkhan armed with Lohangis, Harnam and Shyamlal son of Balu armed with axes
and the remaining accused persons armed with lathis and they were all beating Babulal.
According to P.W.-1 when she tried to rescue Babulal from the accused persons she too
was assaulted and accused Munna hit her with a Lohangi on the left hand, on the
shoulder, right elbow and thigh. It is also in her evidence that her elder brother-in-law
Bhawani Singh, elder sister-in-law, Raj Kunwar, Lakhan Singh and Har Kunwar also
reached there. Thereafter, the accused persons took Babulal inside Malkhans house.
9. P.W. 6 Gyan Bai's evidence indicates that on the day of incident she was in her house
when Raina Bai and Harkunwar came and told her that her son had been killed. She then
went to the house of Malkhan and saw that the accused had confined her son
@page-SC177
inside the house. She too deposed that Malkhan, Kalyan, Munna and Shyamlal were
armed with Lohangis, Santosh was armed with lathi and Harnam was armed with an axe.
On her protests Kalyan and Munna dropped her at the door-step of the house from where
she saw blood flowing from the mouth of her son Babulal, as Santosh had hit him on the
mouth with a lathi. At the same time she also deposed that Harnam hit Babulal with an
axe while Shyamlal son of Balu hit him with Lohangi and Ramcharan hit him with lathi.
She also deposed that her elder son, Bhawani Singh and daughter-in-law, Raj Kunwar
reached the place of occurrence at the same time. Both Bhawani Singh and Raina Bai
went to Banmore Police Station and later on Head Constable of Police came to the spot
and recorded the statement of Babulal which was subsequently treated to be his dying-
declaration. P.W.-7 Bhawani Singh, P.W.-8 Har Kunwar, P.W.-9 Amol Singh, P.W.-14
Lakhan Singh have all supported the prosecution case and reiterated that the appellants
had surrounded Babulal and had assaulted him with different weapons, as a result of
which he fell down and subsequently the accused persons lifted him and took him into
the house of Malkhan.
10. The defence taken on behalf of the accused was that all the accused are members of
the same family and in the same way the deceased and all the eye-witnesses were also
members of the same family and that Exhibits P6 and P7 would reveal that there was
continuous enmity between the two families. According to the defence, only family
members of the deceased had been examined as witnesses on behalf the prosecution and
although many villagers had assembled at the spot, no independent witness was examined
by the prosecution. It was also the case of the defence that there were several
discrepancies in the statement of the witnesses recorded in court and in the FIR as also
the police statement, dying declaration and doctors evidence. It was contended that there
was contradiction even in regard to the place of incident. Furthermore, no human blood
was found on the weapons recovered and no motive as such had been attributed to the
accused persons for committing Babulal's murder.
11. As indicated hereinbefore, placing reliance on P.W.1, P.W.4 and P.W.6 who had
witnessed the assault on Babulal by the accused persons and Babulal's dying declaration
before the Head Constable, Dayanand Tyagi (P.W.15), the trial court was satisfied that the
prosecution had been able to prove its case fully and accordingly convicted all the
accused persons as mentioned hereinabove.
12. The High Court agreed with the findings of the trial court as to the veracity of the
evidence of the eye-witnesses and maintained the order of conviction and sentence.
13. During the hearing of the appeal, we had occasion to look into the evidence of the
eye-witnesses on which reliance has been placed by both the courts below and the names
of Malkhan, Santosh, Harnam, Munna, Ramcharan, Shyamlal and Kalyan have been
attributed specific roles by PWs 1,6,7 and 14, who claimed to have witnessed the assault
on Babulal. Of course, P.W.4 who was the first witness to witness such assault has
initially named only Malkhan, Santosh, Munna and Ramcharan as having assaulted the
deceased, but from her deposition it is quite possible that she did not witness anything
further after coming back to the place of occurrence with P.W.1 Raina Bai. Apart from
Shyamlal s/o Munna who was acquitted by the Trial Court, the role attributed to Bhagga,
Shankara and Bahadura by the prosecution witnesses appears to be doubtful. As
mentioned hereinbefore, P.W.4 Raj Kumari appears to have been the first witness from
the side of the prosecution to have witnessed the assault on the deceased, Babulal and she
has specifically named Malkhan, Santosh, Munna and Ramcharan as the persons who
along with the other accused were assaulting Babulal. When she returned to the spot
along with her sister-in-law, Raina Bai, the name of Harnam was added. However, it may
be pointed out that from the evidence of P.W. 4 it appears that on returning with Raina
Bai to the place of occurrence she remained at some distance, and Raina Bai alone went
to the actual spot. Raina Bai, thereafter, named Bhagga, Kalyan, Ramcharan and
Shankara as being the other persons who were assaulting her husband. P.W.6, Gyan Bai,
has also named Kalyan who was present and had assisted Malkhan in carrying her and
throwing her down at Malkhan's door-step. She has also alleged that Malkhan and Kalyan
caught hold of both her hands and put their legs on her waist. P.W.7 Bhawani Singh and
P.W.14 Lakhan Singh mention that
@page-SC178
Bahadura and Shankara alongwith the others had surrounded Babulal and were assaulting
Babulal. Except for making such a general statement, no specific role has been assigned
to them in regard to the incident.
14. Apart from the fact that all the eye-witnesses were consistent about the incident and
involvement of Malkhan, Santosh, Munna, Ramcharan, Harnam, Shyamlal and Kalyan,
there is also Babulal's dying declaration which implicates all the accused persons, except
Shyamlal son of Munna. The evidence of P.W.12 Dr. Ramesh Kumar who performed the
post mortem on the deceased and the injuries found by him on the body of the deceased is
consistent with the prosecution case of assault of the victim by the accused persons.
15. PWs 1, 4 and 6 have been believed both by the trial court and the High Court, but
having regard to the fact that P.W.4 on returning to the spot with P.W.1 remained at a
distance of about 100 yards and also having regard to the fact that the eyesight of P.W.6
was weak, we will have to treat their evidence with caution. As held by both the courts
below, the mere fact that all the said eye-witnesses belong to one family cannot be a
reason to disbelieve their evidence, since they were all on the spot or nearby the spot
when the incident occurred. There is also no reason to disbelieve the dying declaration of
the deceased in its entirety, but having regard to some amount of discrepancy in the
evidence of the eye-witnesses, we are inclined to hold that the common object of all the
accused to kill Babulal has not been established by the prosecution and Bhagga, Shankara
and Bahadura, who are the appellant Nos. 2, 4 and 10 before us are entitled to be given
the benefit of doubt.
16. It may be mentioned that upon his failure to surrender, the special leave petition of
Santosh was dismissed on 30th August, 2004.
17. Accordingly, we allow the appeal in part. The judgment of conviction and sentence of
the trial court as confirmed by the High Court is affirmed as far as Harnam, Shyamlal,
Kalyan, Munna and Malkhan are concerned. The said appellants, if on bail, shall
surrender before the Chief Judicial Magistrate, Shivpuri, within a month from date to
undergo their sentence. If the said appellants fail to surrender in terms of this order, the
Chief Judicial Magistrate, Shivpuri, shall take steps to ensure that the said appellants are
apprehended and made to undergo their sentence. The bail bonds, if any, in respect of
these appellants shall stand cancelled.
18. The appeal is allowed as regards Bhagga, Shankara and Bahadura. The judgment of
the trial court as affirmed by the High Court are set aside as far as they are concerned.
Their bail bonds, if any, are discharged and they be set at liberty forthwith, if not required
in connection with any other case.
Order accordingly.
AIR 2008 SUPREME COURT 178 "Rajinder Singh Katoch v. Chandigarh
Administration"
Criminal Appeal 1432 of 2007 (arising out of SLP (C) No. 3360 of 2006), D/- 12 -10
-2007.
Rajinder Singh Katoch v. Chandigarh Administration and Ors.
(A) Criminal P.C. (2 of 1974), S.154 - FIR - POLICE OFFICERS - F.I.R. - Duty of police
to register in case of cognizable offence - Does not take away right of police officer to
make preliminary inquiry before registering it.
Although the officer in charge of police station is legally bound to register a first
information report in terms of S. 154 if the allegations made gives rise to an offence
which can be investigated without obtaining any permission from the Magistrate
concerned; the same by itself, however, does not take away the right of the competent
officer to make a preliminary enquiry, in a given case in order to find out as to whether
the first information sought to be lodged had any substance or not. (Para 8)
(B) Penal Code (45 of 1860), S.339 - WRONGFUL RESTRAINT - CRIMINAL
PROCEEDINGS - Wrongful restraint - Joint family property - Denial of right to co-
sharer to enjoy joint family property - Should be enforced through remedies available
under civil Law - Criminal proceedings cannot be taken recourse to. (Para 8)
2006 AIR SCW 1021 : AIR 2006 SC 1322 : 2006 Cri LJ 1622 (Expln.) 8
@page-SC179
Ms. Asha Jain Madan, Mukesh Jain and Dushyant Parashar, for Appellant; Romesh
Gautam, Ms. Geetanjali Shankar, Dr. Kailash Chand and Ms. Kamini Jaiswal for
Respondents.
* Cri. Misc. No. 2206-M of 2005, D/- 12-12-2005 (P and H).
Judgement
1. S. B. SINHA, J.:-Leave granted.
2. Appellant and respondent No.4 herein are brothers and co-sharers. They jointly possess
some properties. Appellant herein allegedly came to Chandigarh to reside in the family
house sometimes in 2001. He allegedly kept his belongings there and came back to Delhi.
3. In 2002, he, when came to Chandigarh, was allegedly restrained by his brother from
entering into the house. His complaint to the Police Station went unheeded. First
Information Report, according to him, was not registered despite the fact that it disclosed
a cognizable offence.
4. He filed an application under Section 482 of the Code of Criminal Procedure before
the Punjab and Haryana High Court. The said application was dismissed by reason of the
impugned judgment, stating :
"The petitioner has filed this petition under Section 482 of the Cr.P.C. for issuing
directions to respondents Nos.2 and 3 to register a case against respondent No.4 for house
trespass and theft.
Respondent No.4 is the real brother of the petitioner. The said house in question is a joint
property of seven legal heirs. After the death of father of the petitioner, the same has been
inherited by seven persons. In the reply, it has been stated that the petitioner was not
residing in the aforesaid house and the allegations levelled by him found to be false being
family dispute."
5. Appellant, is, thus, before us.
6. Ms. Asha Jain Madan, learned counsel appearing on behalf of the appellant, in support
of this appeal, would submit that despite the fact that the property was a joint property,
having regard to the provisions contained in Section 339 of the Indian Penal Code, the
respondent could not have wrongfully restrained the appellant from occupying the first
floor of the property and have access to his belongings. It was urged that in terms of
Section 154 of the Code of Criminal Procedure, the Police Officers had a duty to register
the first information report once the allegations disclosed commission of a cognizable
offence.
7. Ms. Kamini Jaiswal, learned counsel appearing on behalf of the respondent and Mr.
Ramesh Gautam, learned counsel appearing on behalf of respondent No.4, however,
supported the judgment.
8. Although the officer in charge of a police station is legally bound to register a first
information report in terms of Section 154 of the Code of Criminal Procedure, if the
allegations made by them gives rise to an offence which can be investigated without
obtaining any permission from the Magistrate concerned; the same by itself, however,
does not take away the right of the competent officer to make a preliminary enquiry, in a
given case, in order to find out as to whether the first information sought to be lodged had
any substance or not. In this case, the authorities had made investigations into the matter.
In fact, the Superintendent of Police himself has, pursuant to the directions issued by the
High Court, investigated into the matter and visited the spot in order to find out the truth
in the complaint of the petitioner from the neighbours. It was found that the complaint
made by the appellant was false and the same had been filed with an ulterior motive to
take illegal possession of the first floor of the house.
Ms. Madan contended that the right of the appellant to live in the joint family cannot be
taken away. Right of a co-sharer to enjoy the joint family property is a civil right. Such a
right, if denied by the other co-sharers for one reason or the other, must be enforced by
taking recourse to the remedies available under the civil laws.
Criminal proceedings, in our opinion, cannot be taken recourse to for enforcing such a
civil right. In any event, in a case of this nature where the authorities bound by law have
already investigated into the matter and found that the allegations made by the appellant
against respondent No.4 were not correct, it would not be proper for us to issue any
direction to the respondent Nos.1 to 3 to lodge a first information report.
We are not oblivious to the decision of this Court in Ramesh Kumari v. State (NCT of
Delhi) and Ors. [(2006) 2 SCC 677] wherein such a statutory duty has been found in the
Police Officer. But, as indicated hereinbefore, 2006 AIR SCW 1021
@page-SC180
in an appropriate case, the Police Officers also have a duty to make a preliminary enquiry
so as to find out as to whether allegations made had any substance or not.
In Shashikant v. Central Bureau of Investigation and Ors. [2006 (11) SCALE 272], this
Court stated : 2006 AIR SCW 6182, Para 23
"Only an anonymous complaint was made in June 2004. Evidently it was within the
province of the first respondent to commence a preliminary inquiry. The procedure laid
down in the CBI Manual and in particular when it was required to inquire into the
allegation of the corruption on the part of some public servants, recourse to the provisions
of the Manual cannot be said to be unfair. It did not find any reason to convert the
preliminary inquiry into a regular case. Pursuant to or in furtherance of the
recommendations made by the first respondent, which had received the imprimatur by the
Central Vigilance Commission, departmental proceedings were initiated. The Central
vigilance Commission advised the Railway Board to initiate minor penalty proceedings
against the delinquent officers by a letter dated 04.08.2005."
There is no merit in the appeal. It is dismissed accordingly.
Appeal dismissed.
AIR 2008 SUPREME COURT 180 "M. C. Mehta v. Union of India"
Coram : 3 S. B. SINHA, S. H. KAPADIA AND D. K. JAIN, JJ.
I. A. No. 465 in W. P. (C) No. 13381 of 1984, D/- 10 -10 -2007.
M. C. Mehta v. Union of India and Ors.
Constitution of India, Art.32 - Criminal P.C. (2 of 1974), S.197 - PUBLIC INTEREST
LITIGATION - PUBLIC SERVANTS - CBI - SANCTION FOR PROSECUTION -
Public interest litigation - Scope - PIL entertained to ensure proper investigation by CBI
in Taj Heritage Corridor Project - CBI after proper investigation filing FIR - Once proper
investigation is carried out Court would not go further and take over functions of
Magistrate - Question of legality of refusal of sanction to prosecute Chief Minister and
others - Refused to be gone into.
Judiciary may step in where it finds the actions on the part of the Legislature or the
executive are illegal or unconstitutional but the same by itself would not mean that public
interest litigation, should be converted into an adversarial litigation. The jurisdiction of
the Court to issue a writ of continuous mandamus is only to see that proper investigation
is carried out in Taj Heritage Corridor Project. Once the Court satisfies itself that a proper
investigation has been carried out, it would not venture to take over the functions of the
Magistrate or pass any order, which would interfere with its judicial functions.
Constitutional scheme of this country envisages disputes resolution mechanism by an
independent and impartial tribunal. No authority, save and except superior Court in the
hierarchy of judiciary, can issue any direction which otherwise take away the
discretionary jurisdiction of any Court of law. Once a final report has been filed in terms
of S. 173 of Criminal P. C. it is the Magistrate and Magistrate alone who can take
appropriate decision in the matter one way or the other. Application was filed in the P.I.L.
requesting the Court to decide upon legality of refusal of sanction by Governor to
prosecute the Chief Minister and Minister for Environment. The Court refused to go into
the question on a presupposition that order would not be challenged. (Paras 8, 13)
2007 AIR SCW 1025 : AIR 2007 SC 1087 3, 9, 11
2006 AIR SCW 4287 8
1998 AIR SCW 645 : AIR 1998 SC 889 : 1998 Cri LJ 1208 (Rel. on) 7, 9
Ghoolam E. Vahanvati, S.G., A. Sharan, ASG, Jyotindra Mishra, Adv. Gen., Ajay Siwach,
AAG, Shail Kumar Dwivedi, AAG, Dipankar Gupta, M. N. Rao, K. K. Venugopal,
Dinesh Dwivedi, Sr. Advs., Krishan Mahajan, (AC), Ms. Shilpa Chauhan, K. Uma
Shankar, Rajesh Singh, A. D. N. Rao, Devadatt Kamat, P. Parmeshwaran, Gaurav
Agrawal, Mrs. Varuna Bhandari Gugnani, Mrs. Rekha Pandey, R. C. Kathia, E. C.
Agrawala, Gaurav Goel, Amit Kumar Sharma, Nikhil Nayyar, Ankit Singhal, B. V.
Balramdas, Pradeep Mishra, T. Mahipal, Suraj Singh, Mohd. Taiyab Khan, Shakil Ahmad
Syed, Sanjay R. Hegde, Anil Kr. Mishra, Ashok K. Srivastava, Saurabh Trivedi, T. V.
George, S. Wasim A. Qadri, Vijay Pratap Singh, Anil Kumar Jha, Vijay Panjwani,
Santosh Kumar, Dr. Kailash Chand, Rakesh K. Khanna,
@page-SC181
Dr. Rashmi Khanna, Miss. Jahanvi Warah, Reetesh Singh, Mrs. Anil Katiyar, Atishi
Dipankar, Ajay Kumar Aggarwal, Ms. Binu Tamta, Rajiv Tyagi, Ranjan Mozumdar, Ms.
Chanchal Biswal, V. K. Verma, Pranab Kumar Mullick, K. K. Mohan, Vishwajit Singh,
Ms. Mridula Ray Bhardwaj, Ms. S. Dutta, for appearing parties. M. C. Mehta, Petitioner
in person and Ajay K. Agrawal (in person).
Judgement
1. S. B. SINHA, J. :- Whether this Bench should consider the correctness of an order
passed by the Governor of Uttar Pradesh refusing to grant sanction for prosecution of Ms.
Mayawati and Shri Naseemuddin Siddiqui is the prime question involved in this
application.
2. A public interest litigation was entertained by this Court in a writ application filed by
the writ petitioner. This Court with a view to ensure proper maintenance of cultural
heritage of India as also the ecology has been passing orders in the writ petition from
time to time.
3. A project known as Taj Heritage Corridor Project was initiated by the Government of
Uttar Pradesh. One of the main purpose for which the same was undertaken was to divert
the River Yamuna and to reclaim 75 acres of land between Agra Fort and the Taj Mahal
and use the reclaimed land for constructing food plazas, shops and amusement activities.
The said activities on the part of the Government of Uttar Pradesh was brought to the
notice of this Court. An exception thereto was taken. A detailed inquiry was directed to be
made by the Central Bureau of Investigation (CBI). Upon consideration of the report
submitted before it by CBI, this Court in its order dated 18.09.2003 directed it to register
a First Information Report and make further investigation in accordance with law. CBI
investigated into the matter, including the roles played by Ms. Mayawati, the then Chief
Minister, and Mr. Naseemuddin Siddiqui, the then Minister for Environment,
Government of Uttar Pradesh. Investigations were also carried out against some officers.
CBI was later on asked to furnish a self-contained note as regards its findings against the
erring officers and holders of public posts. A detailed report was submitted by it. A
question arose as to what directions, if any, should be issued by this Court having regard
to the conflict in opinions expressed by different authorities of CBI in regard to Ms.
Mayawati and Mr. Naseemuddin Siddiqui.
The said question was considered by this Court in its judgment and order dated
27.11.2006 in M.C. Mehta (Taj Corridor Scam) v. Union of India and Others [(2007) 1
SCC 110]. 2007 AIR SCW 1025
4. Indisputably, the said order of this Court has been complied with. It now appears that
the learned Special Judge directed CBI to obtain sanction of the Governor of Uttar
Pradesh. By reason of an order dated 03.06.2007 the Governor of Uttar Pradesh has
refused to accord the same.
5. Mr. Krishan Mahajan, learned Amicus Curiae, who has been assisting this Court very
ably in the matter, filed an application, inter alia, praying for :
"In the light of the facts and circumstances mentioned above it is most humbly prayed
that this Hon'ble Court may kindly be pleased to issue an appropriate writ, direction or
order :
(i) Concerning the legal validity of the CBI seeking a sanction for the prosecution of
Uttar Pradesh Chief Minister Ms. Mayawati and Minister Naseemuddin Siddiqui under
Section 197 Cr. P.C. by calling for the records of the materials it placed before the
Governor for seeking such sanction.
(ii) Directing the CBI to produce a copy of the June 3, 2007 sanction order of His
Excellency the Governor of U.P. passed in connection with the case pending before the
Special Judge/competent court based on FIR RC 0062003A0018.
(iii) Passing appropriate directions on the legal validity or otherwise of the June 3, 2007
order of His Excellency the U.P. Governor refusing under Section 197 (1) Cr. P.C.
sanction for the prosecution of Chief Minister Ms. Mayawati and Minister Naseemuddin
Siddiqui in relation to FIR RC 0062003A0018 registered against them by the CBI
pursuant to the September 18, 2003 order of this Hon'ble Court in I.A. 376 in CWP
13381/1984 and the investigation on which with the opinion of the CBI Superintendent of
Police was directed by this Hon'ble Court on Nov. 27, 2006 to be placed before the
concerned court/Special Judge for deciding the matter in accordance with law.
@page-SC182
(iv) Declaring that the sanction orders passed under Section 197(1) Cr. P.C. are in the
public domain and hence cannot be classified as secret.
6. Mr. Mahajan, in support of the said application, would submit that the task of
protection of cultural heritage having been undertaken by this Court and keeping in view
the provisions of Article 49 of the Constitution of India, the Court should interfere in the
matter and set aside the order of the Governor of Uttar Pradesh refusing to accord
sanction to prosecute Ms. Mayawati and Mr. Naseemuddin Siddqui, keeping in view the
political scenario in the country, as CBI may not show any further interest in the matter at
all.
It was urged that in a case of this nature, sanction in terms of Section 197 of the Code of
Criminal Procedure is not imperative
7
. No doubt it is an unique case. In exercise of its jurisdiction under Article 32 of the

Constitution of India and having regard to Article 49 and clause (g) of Article 51A of the
Constitution of India, this Court while entertaining the public interest litigation at the
instance of the writ petitioner had been taking all steps which have been thought
necessary and proper in the matter. The question which, however, has arisen for our
consideration is, should we undertake such an exercise. No doubt, a First Information
Report has been lodged at the instance of this Court. Yet again this Court thought it fit to
issue requisite directions in its order dated 27.11.2006 directing the learned Special Judge
to apply its mind on the materials collected during investigation by CBI and pass
appropriate orders thereupon. This Court has been exercising its jurisdiction in public
interest. It has been exercising its jurisdiction to issue a writ of continuous mandamus in
the light of the decision of this Court in Vineet Narain and Others v. Union of India
[(1998) 1 SCC 226]. 1998 AIR SCW 645
8
. We have no doubt in our mind that judiciary may step in where it finds the actions on
the part of the Legislature or the Executive are illegal or unconstitutional but the same by
itself would not mean that public interest litigation, in a case of this nature, should be
converted into an adversarial litigation. The jurisdiction of the court to issue a writ of
continuous mandamus is only to see that proper investigation is carried out. Once the
court satisfies itself that a proper investigation has been carried out, it would not venture
to take over the functions of the Magistrate or pass any order which would interfere with
its judicial functions. Constitutional scheme of this country envisages dispute resolution
mechanism by an independent and impartial tribunal. No authority, save and except a
superior court in the hierarchy of judiciary, can issue any direction which otherwise take
away the discretionary jurisdiction of any court of law. Once a final report has been filed
in terms of sub-section (1) of Section 173 of the Code of Criminal Procedure, it is the
Magistrate and Magistrate alone who can take appropriate decision in the matter one way
or the other. If it errs while passing a judicial order, the same may be a subject-matter of
appeal or judicial review. There may a possibility of the prosecuting agencies not
approaching the higher forum against an order passed by the learned Magistrate, but the
same by itself would not confer a jurisdiction on this Court to step in. We should not
entertain the application of the learned Amicus Curiae on such presupposition. A judicial
order passed by a Magistrate may be right or wrong, but having regard to the hierarchy of
the courts, the matter which would fall for consideration before the higher court should
not be a subject-matter of a decision of this bench. In an unlikely event of the interested
parties in not questioning such orders before the higher forum, an independent public
interest litigation may be filed. Instances are not unknown where this Court has
entertained public interest litigation in cases involving similar question under Article 32
of the Constitution of India. [See Rajiv Ranjan Singh Lalan VIII v. Union of India
[(2006) 6 SCC 613]. 2006 AIR SCW 4287
. It will not be out of place to mention that in Vineet Narain (supra), this Court
categorically stated that unless a proper investigation is made followed by a proper
prosecution under the general law applicable to such investigation, the rule of law will
lose its significance. This Court in its order dated 27.11.2006 upon noticing Vineet Narain
(supra) and Union of India v. Prakash P. Hinduja and Another [(2003) 6 SCC 195] held :
reported in 2007 AIR SCW 1025, Para 39
1998 AIR SCW 645
2003 AIR SCW 3258
@page-SC183
"26. Analysis of the above judgments shows that there is a clear-cut and well-demarcated
sphere of activities in the field of crime detection and crime punishment. Investigation of
an offence is the field reserved for the executive through the Police Department, the
superintendence over which vests in the State Government. The executive is charged with
a duty to keep vigilance over the law and order situation. It is obliged to prevent crime. If
an offence is committed allegedly, it is the State's duty to investigate into the offence and
bring the offender to book. Once it investigates through the Police Department and finds
an offence having been committed, it is its duty to collect evidence for the purposes of
proving the offence. Once that is completed, the investigating officer submits report to
the court requesting the court to take cognizance of the offence under Section 190 CrPC
and his duty comes to an end. Therefore, there are well-defined and well-demarcated
functions in the field of crime detection and their subsequent adjudication by the court.
Lastly, the term investigation under Section 173(2) of the Criminal Procedure Code
includes opinion of the officer in charge of the police station as to whether there is
sufficient evidence or reasonable ground of suspicion to justify the forwarding of the case
to the court concerned or not. This opinion is not legal evidence. At the stage of Section
173(2) the question of interpretation of legal evidence does not arise. In any event, that
function is that of the courts."
10. The parameters within which this Court should function in such matters are,
therefore, well-defined.
11
. It is one thing to say that this Court will not refrain from exercising its jurisdiction from
issuing any direction for protection of cultural heritage and the ecology and environment;
but then in discharge of the said duty, this Court should not take upon itself the task of
determining the guilt or otherwise of an individual involved in the criminal proceeding. It
should not embark upon an enquiry in regard to the allegations of criminal misconduct so
as to form an opinion one way or the other so as to prima facie determine guilt of a
person or otherwise. Any direction which could be issued, in our opinion, has already
been issued by us on 27.11.2006, stating : 2007 AIR SCW 1025, Para 47
"34. We, accordingly, direct CBI to place the evidence/material collected by the
investigating team along with the report of the SP as required under Section 173(2) CrPC
before the court/Special Judge concerned who will decide the matter in accordance with
law. It is necessary to add that, in this case, we were concerned with ensuring proper and
honest performance of duty by CBI and our above observations and reasons are confined
only to that aspect of the case and they should not be understood as our opinion on the
merits of accusation being investigated. We do not wish to express any opinion on the
recommendations of the SP. It is made clear that none of the other
opinions/recommendations including that of the Attorney General for India, CVC shall be
forwarded to the court/Special Judge concerned.
12. We do not think that we should go beyond the same.
13. We may observe that while entertaining a public interest litigation in a given case, this
Court may exercise a jurisdiction to set aside the decision of a constitutional authority,
but we are not concerned with such a situation. We, therefore, are of the view that we
need not go further than what we have already said in our order dated 27.11.2006 to go
into the correctness or otherwise of the order of the Governor. If no sanction of the
Governor was required or if he has committed an error in passing the said order, the
appropriate court, in our opinion, would be entitled to deal therewith, but not this Bench.
14. We, therefore, are of the opinion that this Bench should not entertain the application
filed by the learned Amicus Curiae. The said application is dismissed with the aforesaid
observations.
Application dismissed.
AIR 2008 SUPREME COURT 183 "Vishal Properties Pvt. Ltd., M/s. v. State of U. P."
(From : 2005 All LJ 2688)
Civil Appeal No. 4732 of 2007 with T. P. (C) No. 846 of 2005, (arising out of SLP (C)
No. 12531 of 2005), D/- 9 -10 -2007.
M/s. Vishal Properties Pvt. Ltd. v. State of U. P. and Ors.
Constitution of India, Art.14 - EQUALITY - UNAUTHORISED CONSTRUCTION -
LEASE DEED - DEED - Illegalities - Cannot be perpetuated
@page-SC184
Unauthorised construction by appellant in violation of building bye-laws and terms and
conditions in lease deed prejudicially affecting proper planning of industrial development
area - Appellant cannot claim that benefit extended to others though illegally should be
extended to him - Art. 14 provides for positive equality and not negative equality. (Paras
9, 12, 18)
2007 AIR SCW 4884 : AIR 2007 SC 2701 17
2006 AIR SCW 3601 : AIR 2006 SC 2609 17
2001 AIR SCW 4774 (Foll.) 14
(1999) 9 SCC 240 (Foll.) 16
1997 AIR SCW 1574 : 1997 Lab IC 1541 (Foll.) 13
(1997) 1 SCC 35 (Foll.) 13, 17
1995 AIR SCW 493 : AIR 1995 SC 705 17
Sanjay Jain, Om Prakash Mishra and Ghan Shyam Vasisht, for Appellant; R. G. Padia,
Harish N. Salve, Sr. Advocates, Pradeep Misra, Sandeep Singh, T. Mahipal, Ms. Reena
Singh, Ravindra Kumar, for Respondents.
Judgement
High Court dismissing the writ petition filed by the appellant questioning correctness of
the orders dated 27.10.2004 and 31.3.2005 passed by the officers of New Okhla Industrial
Development Authority (in short NOIDA) and praying for a direction to the respondents
not to interfere with the possession of the appellant with plot No. P-1, Sector -18,
NOIDA.
3. The notice in question was issued for unauthorized additional construction and change
of user of land. The notice dated 21.4.2004 was issued by NOIDA under Section 10(1) of
the U.P. Industrial Development Act, 1976 (hereinafter referred to as the Act). It was
indicated in the notice that at the time of inspection on 21.4.2004 it was found that the
appellant had violated the building bye-laws and directions and terms and conditions in
the lease deed which act prejudicially affected the proper planning and amenities of the
industrial development area which was against interest of general public. Therefore,
appellant was required to remove the unauthorized construction within a period of 15
days and bring the construction in conformity with the sanctioned plan so that interest of
the general public was not adversely affected. It was subsequently pointed out that the
appellant was not using the ground floor as per the rules and conditions imposed. It was
also mentioned that in the event the appellant failed to do the needful, NOIDA was to get
the illegal construction removed at the cost of the appellant. Since there was no
compliance with the direction, another notice dated 23.8.2004 was sent to the appellant.
He was again required to comply with the directions contained in the earlier notice as the
ground floor and service floor were not being used as per the conditions of the lease deed.
Reply dated 23.9.2004 was submitted by the appellant. It was pointed out that the
appellant had completed the construction on 9.10.1992 and completion certificate was
issued thereafter. The appellant had not made any construction and the allegations
contained in the notice were incorrect. The letter was followed by another letter dated
7.10.2004 in which the request was made by the appellant for changed user of ground
floor and upper ground floor. This request of the appellant was rejected by the NOIDA in
terms of the communication dated 27.10.2004. It was pointed out that the ground floor
was required for exclusive use for parking, but it was being used otherwise and even the
basement was being used as office.
4. Challenging the order dated October 27, 2004, the appellant filed writ petition before
the Allahabad High Court which was disposed of on December 23, 2004, with direction
that the appellant reply dated December 8, 2004 should be decided if not
@page-SC185
already done by a speaking order. On 31.3.2005, representation filed by the appellant was
rejected. The appellant took the stand that he should be permitted to use these floors as
was done in the cases of lessees of plot Nos. P-4 and P-5 and P-6. The High Court found
that appellant made a bare denial relating to allegations contained in the notices that
ground floor and the service floors were not being used in accordance with the terms and
conditions.
5. Stand of the appellant that there was no contravention was also turned down. The High
Court also noted that there was no question of any advantage being granted by the
appellant for the purpose of permission granted to the lessor in respect of some other
plots. Even in case of allotment of plot Nos. P-2 and P-3 a departure was made. The writ
petition was accordingly dismissed.
6. Stand of the appellant in the appeal was that discrimination is being made vis-a-vis
some others. It is stated that change of policy on the question of regularization was done
and the benefit which has been extended to others should be allowed to the appellant.
7. It is stated that there is nothing sacrosanct about clause 10(a) upon which the
respondents have relied. The same can be modified by the Chief Executive Officer,
NOIDA.
8. Learned counsel for the respondents submitted that there is no question of any
discrimination. In fact, the NOIDA have already issued notice to the persons to whom
certain benefits as claimed by the appellant were purportedly given. There is no dispute
that unauthorized additions have been made. It is submitted that construction was
completed in 1990. The completion certificate was issued on 19.4.1993. The
representations were made on 11.5.1993 and 5.7.1993. In 1995-96 a new scheme with
fresh policy was introduced which was made applicable to all adjoining plots P-3, P-4, P-
5 and P-6. Additional affidavit has been filed on behalf of the respondents 2, 3 and 4,
inter alia, stating that on 29.6.2004, the Chairman of the Industrial Committee vide
communication to the Chief Secretary, Industrial Development, Government of U.P., and
others informed that irregularities have been committed by NOIDA during the period
from 20.5.2002 to 29.8.2003 in the construction of the plot Nos. P-5 and P-6. Further
action has also been taken against allottees in respect of plot Nos. P-5 and P-6 for
violating the norms/conditions of the allotment/lease. It is also stated that the notice has
been issued/is being issued to find out the irregularities, if any, committed in respect of
other plots.
9. When the representation was made by the appellant in 1993 there was no policy in
question. In fact, the change of policy came subsequently. The authorities may have acted
in an irregular manner in case of some others. That does not confer any legal right on the
appellant to claim a similar benefit. So far as the allotment of plot Nos. P-5 and P-6 are
concerned, they stand on different footing. The conditions in the brochure issued in the
year 1995-96 were different. Relevant Clause of the aforesaid scheme reads as follows :
"........Use/Uses: The basement and ground floor may be used for shops/showrooms,
subject to the conditions that the activities considered to be a public nuisance/hazard shall
not be out and that on all other floors the commercial activities institutional/residential
use shall be allowed got the act to the condition that no public nuisance is caused.
10. Immediately, after completion of the commercial building appellant submitted letters
dated 1.5.1993 and 5.7.1993 for change in user of ground floor from parking place to
shops. No approval was granted for such change or user and change the user for which
notices were issued. The relevant terms and conditions contained in the brochure in
question read as follows :
6. "Approval of drawings
(a) The successful bidder will start the construction after obtaining due approval of
building plans by competent authority.
(b) The architectural control drawings for the plot shall be exhibited at the time of
auction. The successful bidder shall have to purchase the architectural control drawings
from New Okhla Industrial Development Authority on payment. Thereafter the allottee
shall get the plans prepared from the architects on the basis of the architectural control
drawings received from New Okhla Industrial Development Authority and obtain
sanction of the same from New Okhla Industrial Development Authority as per Building
Regulations and Directions and procedures laid down by the Authority. The allottee will
then carry on the construction
@page-SC186
of the building strictly in accordance with the sanctioned plans obtained from New Okhla
Industrial Development Authority. On completion of the building, the allottee shall obtain
completion certificate from New Okhla Industrial Development Authority as per the
procedure laid down by the Authority before occupying the building. The notes,
specifications and other stipulations mentioned in the architectural control drawings shall
be strictly adhered to. No addition/alteration shall be carried out by the allottee or the
purchasers of floor area after obtaining completion certificate, without getting necessary
permission and sanction from the Authority.
6. (c)(i) The Ground floor (of the building constructed on the allotted commercial office
plot) will be exclusively used for parking and no temporary or permanent construction of
any sort would be allowed in any circumstances.
6. (c)(ii) Construction of basement is optional and if constructed shall be as per
architectural control drawings and building plans approved by the Authority. The
basement shall be strictly used for services and storage purpose.
6. (c)(iii) No barricade or boundary wall will be permitted on any side on the plot and
there will be free access from one plot to another on the ground floor.
6. (c)(iv) The first floor of the building constructed on the allotted plot will be used for
showroom-cum-office only.
6. (c)(v) The remaining upper floors constructed will be exclusively used for offices only
and for no other purpose.
6. (c)(vi) The area on each floor includes area of balcony also. No projection on any side
will be allowed beyond proposed plot line." (Emphasis Supplied)
11. Subsequently the lease deed dated 8th August, 1990 was executed between the
appellant and NOIDA. The terms and conditions contained in the brochure were repeated
in the lease deed. The relevant clauses of the lease deed are quoted below:
X(A). The ground floor (of the building constructed on the allotted office plot) will be
exclusively used for parking and no temporary or permanent construction of any sort
would be allowed in any circumstances.
X(B). Construction of basement is optional and if constructed, shall be as per
architectural control drawing and building plans approved by the lessor.
X(C). No barricade or boundary wall will be permitted on any side of the plot and there
will be free access from one plot to another on the ground floor.
X(D). The first and above floors of the building constructed on the allotted plot will be
exclusively used for showroom-cum-office only. The above floors of the building
constructed on the allotted plot will be exclusively used for office only and for no other
purpose.
XI. That the lessee shall obey and submit the rules, building regulations and directions of
the lessor, and proper municipal or other authority now existing or hereinafter to exist, so
far as the same relate to the immovable property in the said area so far as they affect the
health, safety and convenience of the other inhabitants of the place.
......................................................
......................................................
XIV. (A) The plot or building thereon shall not be used for a purpose other than that
specified in the lease deed and architectural control drawings prescribed by the lessor.
The architectural control drawings will be supplied by the lessor on payment of the
prescribed fee by the allottee who shall carry out construction of the plot strictly in
accordance with the same after the approval from the lessor.
......................................................
......................................................
XXI. If the lessee does not abide by the terms and conditions and building rules or any
other rules framed by the Authority, the lease may be cancelled by the lessor and the
lessee in such event will not be entitled to claim any compensation in respect thereof.
(Emphasis Supplied)
12
. Even otherwise, Article 14 is not meant to perpetuate an illegality. It provides for
positive equality and not negative equality. Therefore, we are not bound to direct any
Authority to repeat the wrong action done by it earlier. In Sushanta Tagore and Ors. v.
Union of India and Ors., (2005 (3) SCC 16), this Court rejected such a contention as
sought to be advanced in the present case by observing:- 2005 AIR SCW 1299, Para
41
Only because some advantages would ensue to the people in general by reason of the
@page-SC187
proposed development, the same would not mean that the ecology of the place would be
sacrificed. Only because some encroachments have been made and unauthorised
buildings have been constructed, the same by itself cannot be a good ground for allowing
other constructional activities to come up which would be in violation of the provisions
of the Act. Illegal encroachments, if any, may be removed in accordance with law. It is
trite law that there is no equality in illegality.
13
. This view also finds support from the judgments of the this Court in Snehprabha v. State
of U.P. and Ors., (AIR 1996 SC 540); Secretary, Jaipur Development Authority, Jaipur v.
Daulat Mal Jam and Ors., (1997 (1) SCC 35), State of Haryana and Ors. v. Ram Kumar
Mann, (1997 (3) SCC 321), and Faridabad C.T. Scan Centre v. D.G. Health Services and
Ors. (1997 (7) SCC 752). 1995 AIR SCW 4449
1997 AIR SCW 1574
1997 AIR SCW 3716
14. In Finance Commissioner (Revenue) v. Gulab Chandra and Anr. (2001 AIR SCW
4774) this Court rejected the contention that as other similarly situated persons had been
retained in service, persons senior to the petitioner could not have been discharged during
the period of probation observing that even if no action had been taken in similar
situation against similarly situated persons then too it did not confer any legal right upon
the petitioner.
15
. In Jalandhar Improvement Trust v. Sampuran Singh, (AIR 1999 SC 1347) and Union of
India and Ors. v. Rakesh Kumar (AIR 2001 SC 1877), this Court held that Courts cannot
issue a direction that the same mistake be perpetuated on the ground of discrimination or
hardship. 1999 AIR SCW 1047
2001 AIR SCW 1458
16
. Any action/order contrary to law does not confer any right upon any person for similar
treatment. (See: State of Punjab and Ors. v. Dr. Rajeev Sarwal, (1999 (9) SCC 240);
Yogesh Kumar and Ors. v. Government of NCT Delhi and Ors., (2003 (3) SCC 548);
Union of India and Anr. v. International Trading Company and Anr., (2003 (5) SCC 437)
and M/s. Anand Button Ltd. v. State of Haryana and Ors. (2005 AIR SCW 67). 2003
AIR SCW 1630
2003 AIR SCW 2828
17
. Recently in State of Kerala v. K. Prasad and Anr. (JT 2007 (9) SC 140), it was inter alia
held as follows: 2007 AIR SCW 4884
14. Dealing with such pleas at some length, this Court in Chandigarh Administration and
Anr. v. Jagjit Singh and Anr. has held that if the order in favour of the other person is
found to be contrary to law or not warranted in the facts and circumstances of his case, it
is obvious that such illegal or unwarranted order cannot be made the basis of issuing a
writ compelling the authority to repeat the illegality or to pass another unwarranted order.
The extraordinary and discretionary power of the High Court under Article 226 cannot be
exercised for such a purpose. This position in law is well settled by a catena of decisions
of this Court. [See: Secretary, Jaipur Development Authority, Jaipur v. Daulat Mal Jain
and Ors. and Exta Shakti Foundation v. Govt. of N.C.T. of Delhi. It would, thus, suffice
to say that an order made in favour of a person in violation of the prescribed procedure
cannot form a legal premise for any other person to claim parity with the said illegal or
irregular order. A judicial forum cannot be used to perpetuate the illegalities. 1995
AIR SCW 493
2006 AIR SCW 3601
18. In view of the factual position, the actions of the respondents are not without sanction
of law. Appeal is sans merit, deserves dismissal, which we direct.
T. P. (C) No. 846 of 2005
19. In view of our order in Civil Appeal No. 4732 of 2007 (arising out of S.L.P. (C) No.
12531 of 2005), no further order is necessary to be passed in Transfer Petition.
Order accordingly.
AIR 2008 SUPREME COURT 187 "Carona Ltd. v. Parvathy Swaminathan and Sons"
(From : Bombay)
Carona Ltd. v. M/s. Parvathy Swami-nathan and Sons.
(A) Sick Industrial Companies (Special Provisions) Act (1 of 1986), S.22 - SICK
INDUSTRIAL UNDERTAKING - EVICTION - HOUSES AND RENTS - Suspension of
proceedings against sick company - Eviction proceeding - Not barred by S. 22.
Maharashtra Rent Control Act (18 of 2000), S.16.
1992 AIR SCW 1517, Rel. on. (Para 19)
@page-SC188
(B) Civil P.C. (5 of 1908), S.9 - CIVIL COURT - Jurisdiction - Jurisdictional fact and
adjudicatory fact - Distinction.
The fact or facts upon which the jurisdiction of a Court, a Tribunal or an Authority
depends can be said to be a 'jurisdictional fact'. If the jurisdictional fact exists, a Court,
Tribunal or Authority has jurisdiction to decide other issues. If such fact does not exist, a
Court, Tribunal or Authority cannot act. It is also well settled that a Court or a Tribunal
cannot wrongly assume existence of jurisdictional fact and proceed to decide a matter.
The underlying principle is that by erroneously assuming existence of a jurisdictional
fact, a subordinate Court or an inferior Tribunal cannot confer upon itself jurisdiction
which it otherwise does not possess. There is distinction between 'jurisdictional fact' and
'adjudicatory fact' An 'adjudicatory fact' is a 'fact in issue' and can be determined by a
Court, Tribunal or Authority on 'merits', on the basis of evidence adduced by the parties.
It is no doubt true that it is very difficult to distinguish 'jurisdictional fact' and 'fact in
issue' or 'adjudicatory fact'. Nonetheless the difference between the two cannot be
overlooked. For assumption of jurisdiction by a Court or a Tribunal, existence of
jurisdictional fact is a condition precedent. But once such jurisdictional fact is found to
exist, the Court or Tribunal has power to decide adjudicatory facts or facts in issue.
(Paras 21, 24, 31)
(C) Maharashtra Rent Control Act (18 of 2000), S.3(1)(b) - HOUSES AND RENTS -
EVICTION - POSSESSION - Exemption from Rent Act - Public Ltd. companies with
paid up share capital of over Rs. 1 crore - Eviction suit against appellant company -
Appellant having 'paid up share capital' of more than Rs. one crore, not only when notice
to quit was issued but also when suit for possession was instituted - Resolution to reduce
paid up share capital below one crore not approved by BIFR - Finding that Rent Act did
not apply to appellant - Proper. (Paras 32, 34)
(D) Maharashtra Rent Control Act (18 of 2000), S.3(1)(b), S.16 - Civil P.C. (5 of 1908),
O 41, R.23 - REMAND OF MATTER - APPELLATE COURT - TENANCY - Eviction
suit - Subsequent events - Consideration - Tenant company having paid up share capital
of over Rs. 1 crore on date quit notice was issued - Right to evict thus got accrued to
landlord - Unilateral Act of passing a resolution to reduce 'paid up share capital' of
Company - Cannot set at naught such accrued right.
The basic rule is that the rights of the parties should be determined on the basis of the
date of institution of the suit. Thus, if the plaintiff has no cause of action on the date of
the filing of the suit, ordinarily, he will not be allowed to take advantage of the cause of
action arising subsequent to the filing of the suit. Conversely, no relief will normally be
denied to the plaintiff by reason of any subsequent event if at the date of the institution of
the suit, he has a substantive right to claim such relief. (Para 37)
On the date quit notice was issued and tenancy was determined the paid up share capital
of tenant company was over one crore. The Rent Act as such did not apply to tenancy. A
right thus accrued in landlord to evict tenant-company. By subsequent unilateral act of
tenant of passing resolution to bring down its paid up share capital the right so accrued in
landlord cannot be set at naught. (Paras 38, 44)
(E) Constitution of India, Art.136 - SPECIAL LEAVE APPEAL - EVICTION - DECREE
- Equity jurisdiction - Conduct of party - Appeal against eviction decree - Tenant
appellant has not paid 'rent'/ 'mesne profits' since more than ten years - After filing appeal
except depositing part payment as per interim order nothing was paid thereafter although
two years have passed - Such conduct disentitles tenant from any equitable relief. (Para
45)
2007 AIR SCW 2472 : 2007 Lab IC 1963 28
AIR 2002 Bom 65 8, 10, 13, 15
1994 AIR SCW 5011 14
AIR 1990 SC 2286 14
AIR 1975 SC 1409 (Ref. Pt. D) 35, 36
AIR 1975 SC 2156 (Rel. on Pt. D) 39
AIR 1974 SC 471 14
AIR 1969 SC 1291 40, 41
(1969)10 Guj LR 837 (Rel. on Pt D) 42
AIR 1962 SC 646 29
AIR 1959 SC 492 28
(1950)2 All ER 211 26
(1819)1 BandB 432 26
159 SW 2nd 35 27
@page-SC189
Jaideep Gupta, Sr. Advocate, Chander Sekhar Ashri, for Appellant; P. H. Parekh, E. R.
Kumar, Sanand Ramakrishnan, Rajeev Mishra (for M/s. P. H. Parekh and Co.), for
Respondents.
Judgement
1. C. K. THAKKER, J. :-This appeal by special leave is filed by the appellant-Carona
Ltd. (hereinafter referred to as 'the tenant') against the judgment and order passed by the
High Court of Judicature at Bombay on November 1, 2004 in Writ Petition No. 8781 of
2004. By the said order, the learned Single Judge of the High Court dismissed the writ
petition filed by the tenant and confirmed the order passed by a Bench of Small Cause
Court at Bombay on August 3, 2004 in Appeal No. 277 of 2003 which in turn confirmed
the judgment and decree of eviction dated February 11, 2003, passed by a Judge of Small
Cause Court at Bombay in T.E. and R. Suit No. 226/240 of 2001 in favour of the
respondent-partnership firm (hereinafter referred to as 'the landlord').
FACTS
2. To appreciate the controversy raised in the present appeal, few relevant facts may be
stated.
3. The appellant-tenant was the original defendant whereas the respondent-landlord was
the original plaintiff in the suit instituted in the Court of Small Causes at Bombay. The
landlord is a partnership firm registered under the Partnership Act, 1932. It owned a
premises, bearing Shop No. 2, situated at ground floor of Plot No. 3, A.M. Ward,
Chembur, Govind Road, Mumbai (hereinafter referred to as 'the suit premises').
According to the landlord, the suit premises was let out to the tenant. It was alleged that
tenant was not paying rent regularly. It also initiated certain proceedings against the
landlord. The landlord did not want the tenant to continue to occupy the suit premises.
Accordingly, by a notice dated February 23, 2001, the landlord determined the tenancy
with effect from March 31, 2001. In spite of determination of tenancy, the tenant did not
hand over vacant and peaceful possession of the suit premises to the landlord. The
landlord, therefore, filed a suit in the Small Cause Court, Bombay on April 2, 2001. In a
written statement, dated August 1, 2001, the tenant disputed the averments made and
allegations levelled by the landlord and contended that it was not liable to be evicted. The
Small Cause Court, Bombay, however, passed a decree of eviction against the tenant on
December 16, 2002 which was confirmed by a Bench of that Court as also by the High
Court. The said order is challenged in the present appeal.
INTERIM ORDER BY THIS COURT
4. On February 21, 2005, notice was issued by this Court. Status quo as regards
possession was ordered to be maintained. On April 18, 2005, leave was granted. Pending
appeal, stay of dispossession was continued subject to the tenant depositing a sum of Rs.
twenty four lakhs with the Registry of the Court within eight weeks which was allowed to
be withdrawn by the landlord without furnishing security. The matter was ordered to be
placed for final hearing and that is how the matter is before us.
SUBMISSIONS
5. We have heard the learned counsel for the parties.
6. Mr. Gupta, learned counsel for the appellant-tenant contended that all the courts
committed an error of law and of jurisdiction in passing the decree of eviction against the
tenant. He submitted that the suit filed by the landlord was not maintainable and it ought
to have been dismissed by the courts below. He also submitted that the question as to
constitutional validity of clause (b) of sub-section (1) of Section 3 of the Maharashtra
Rent Control Act, 1999 (hereinafter referred to as 'the Rent Act') is pending before this
Court and in view of the said fact, the courts below ought not to have proceeded to decide
the matter. Alternatively, it was argued that even if it is assumed that the provision is
legal, valid and intra vires, it would not apply to the case on hand inasmuch as tenant's
net worth/paid up share capital has been substantially eroded and it was not rupees one
crore or more when the proceedings were initiated by the landlord. The provisions of the
Rent Act, therefore, applied to the suit premises and unless and until one of the grounds
of eviction specified in the Rent Act had been made out, the landlord was not entitled to a
decree for possession. The learned counsel urged that the fact as to 'paid up capital' of the
Company was a 'jurisdictional fact' and in absence of such fact, the Court had no power,
authority or jurisdiction to consider, deal with and decide the matter.
7. It was further contended that the proceedings could not have been continued in
@page-SC190
view of the fact that the tenant was a 'sick company' within the meaning of the Sick
Industrial Companies Act, 1985 (hereinafter referred to as 'SICA'). In accordance with
Section 22 of that Act, hence, all proceedings against a sick company stood suspended.
No order of eviction, therefore, could have been passed by the courts below. On all these
grounds, it was submitted that all the courts were wrong in passing a decree of eviction
against the tenant and the said order deserves to be set aside by this Court.
8. Mr. Parekh, learned counsel for the respondent-landlord, on the other hand, supported
the decree passed by the Small Cause Court, confirmed by a Bench of that Court as also
by the High Court. He submitted that as far as constitutional validity of Section 3(1)(b) of
the Rent Act is concerned, the point is covered by a decision of the Division Bench of the
High Court of Bombay in M/s. Crompton Greaves Ltd. v. State of Maharashtra, AIR 2002
Bom 65. The Small Cause Court as well as the High Court were, therefore, wholly
justified in proceeding with the matter and in deciding it on merits. He submitted that
tenancy was terminated in accordance with law. It was, therefore, obligatory on the tenant
to hand over vacant and peaceful possession of the property to the landlord, but it failed
to do so. The landlord was, therefore, constrained to approach a Court of law which
passed a decree for possession in favour of the landlord holding that since the paid-up
share capital of the Company was more than rupees one crore, the provisions of the Act
were not applicable to it. The counsel urged that there was no illegality in the said finding
and obviously, therefore, the landlord was entitled to possession of suit-premises and the
tenant could not resist eviction. An appellate Court confirmed the said decree. Before the
High Court it was contended by the tenant that a unanimous resolution was passed by the
Company to decrease the share capital to less than rupees one crore (Rs.41 lakhs from
Rs.8.20 crores). Such unilateral action at a subsequent stage, submitted the counsel,
would not deprive the owner of the property to the 'right accrued' in favour of the
landlord. The 'jurisdictional fact' (paid up share capital of more than rupees one crore)
was very much in existence at the time when the proceedings were initiated against the
Company. But even otherwise, considering the factual situation, the tenant was not
entitled to any relief. It was stated that though the so-called resolution was said to have
been passed, it had not been approved by the Board for Industrial and Financial
Reconstruction (BIFR). In the eye of law, therefore, there was no decrease of share
capital. The High Court was, hence, wholly right in observing that even on that ground,
the tenant was not entitled to any relief. The counsel also submitted that this Court is
exercising discretionary and equitable jurisdiction under Article 136 of the Constitution.
The tenant is not entitled to such equitable relief. It was submitted that the tenant has not
paid rent since several years i.e. from January 1, 1995. According to the counsel, the
amount due and payable by the tenant as on August 31, 2007 comes to Rs. 56,22,000/-
pursuant to interim order passed by this Court on April 18, 2005, an amount of Rs. 24
lakhs was deposited by the appellant in this Court which was withdrawn by the landlord,
but even excluding that amount, the tenant is liable to pay to the landlord an amount of
Rs.32,22,000/-. It was further stated that after order dated April 18, 2005 i.e. for more
than two years, the tenant has not paid even a pie to the landlord. Such tenant, urged the
counsel, does not deserve sympathy and cannot claim equitable relief. On all these
grounds, the counsel prayed for dismissal of the appeal.
CONSIDERATION OF CONTENTIONS
9. We have given anxious and thoughtful consideration to the rival contentions of the
parties. And in our opinion, no case has been made out by the appellant-tenant for grant
of discretionary and equitable relief from this Court.
CONSTITUTIONAL VALIDITY OF SECTION 3(1)(b)
10
. As far as constitutional validity of Section 3(1) (b) of the Rent Act is concerned, in our
opinion, the courts below were right in rejecting the contention raised by the tenant and in
proceeding to decide the matter on merits in view of the decision in M/s. Crompton
Greaves Ltd. AIR 2002 Bom 65
11. Our attention has been invited by the learned counsel for the parties to the relevant
provisions of the Act. The Act came into force with effect from March 31, 2000. It
repealed the Bombay Rents, Hotel and Lodging House Rates Control Act, 1947. The
@page-SC191
Preamble of the Act recites;
An Act to unify, consolidate and amend the law relating to the control of rent and repairs
of certain premises and of eviction and for encouraging the construction of new houses
by assuring a fair return on the investment by landlords and to provide for the matters
connected with the purpose aforesaid.
Whereas it is expedient to unify, consolidate and amend the laws prevailing in the
different parts of the State relating to the control of rents and repairs of certain premises
and of eviction and for encouraging the construction of new houses by assuring a fair
return and to provide for the matters connected with the purposes aforesaid.
12. Section 3 grants exemption and enacts that the Act would not apply to certain
premises. Clause (b) of sub-section (1) of the said section declares that the Act would not
apply "to any premises let or sub-let to Banks, or any Public Sector Undertakings or any
Corporation established by or under any Central or State Act, or Foreign Missions,
International Agencies, Multinational Companies, and Private Limited Companies and
Public Limited Companies having a paid up share capital of rupees one crore or more".
(Emphasis supplied)
13
. It is an admitted fact that the appellant-tenant is a Public Limited Company having a

paid up share capital of rupees more than one crore (Rs.8.20 crores). The Courts below
considered the contention as to constitutional validity of clause (b) of Section 3(1) of the
Rent Act and observed that the vires of the provision was upheld by the High Court in
M/s. Crompton Greaves Ltd. In that case, constitutional validity of Section 3(1)(b) was
challenged on the ground that it was arbitrary, discriminatory and unjust. It was
contended that the so-called distinction between the Companies having a paid up share
capital of less than rupees one crore and the Companies having a paid up capital of more
than rupees one crore was arbitrary, discriminatory and unreasonable neither founded on
any intelligible differentia nor the so-called classification has rational or reasonable nexus
to the object sought to be achieved by the Legislation. It was urged that denial of
protection of the Act to the Companies solely on the basis of 'paid up share capital' was
based on irrational criterion and was hit by Article 14 of the Constitution. AIR 2002
Bom 65
14. The Court, however, negatived the contention and upheld the validity of the
provision. The Court stated;
"10. We do not see any force in any of these contentions. The Bombay Rent Act was
enacted originally as a temporary measure in order to protect the tenants from eviction
from their premises and also from arbitrary enhancement of rent. The necessity for the
control of rents by special legislation for properties located within the urban areas was
felt during World War II. At that time not much by way of new construction for civil
population was possible. A good proportion of private accommodation was requisitioned
by the authorities for the war effort. In consequence, rents were beginning to shoot up.
Landlords were trying to get rid of their existing tenants to get better rents. The
legislation was undertaken primarily to save the tenants from harassment of unscrupulous
landlords. To quote the words of Sarkaria J, Nagindas Ramdas v. Dalpatram Ichharam,
(1974) 1 SCC 242 at page 248 : (AIR 1974 SC 471) (at page 474). "The strain of the last
World War, industrial Revolution, the large scale exodus of the working people to the
urban areas and the social and political changes brought in their wake social problems of
considerable magnitude and complexity and their concomitant evils. The country was
faced with spiralling inflation, soaring cost of living, increasing urban population and
scarcity of accommodation. Rack renting and large scale eviction of tenants under the
guise of the ordinary law, exacerbated those conditions making the economic life of the
community unstable and insecure. To tackle these problems and curb these evils the
Legislatures of the States in India enacted "Rent Control Legislations".
11. The rent control laws are in force in the State for more than 60 years. As a result of
these legislations a host of problems have cropped up. These problems have been
discussed by various committees appointed by the Central Government and State
Governments. The reports of such committees indicate that freezing of rentals at old
historic levels, the excessive protection of tenancy rights and the extreme difficulties of
recovering possession even for the owner's own use hit hard the house owners of modest
means; rendered investment in housing
@page-SC192
for rental unattractive; inhibited the letting out of available accommodation and thus had
aggravated the acute scarcity of accommodation for hire. It was felt that the laws were
being often abused by the rich tenants against the poor or middle class landlords.
12. The State of Maharashtra appointed a Committee known as Rent Acts Enquiry
Committee (for short Tembe Committee) which observed as under :
"........The result of all this has been that the supply of rental housing in the market is
gradually shrinking. Except in the public sector, the growing tendency is to dispose of
houses on ownership or hire purchase basis. Rental housing has, therefore, almost come
to a halt in cities like Bombay. This has adversely affected the economically weaker
sections of the society";
"....The rent law that was enacted for the benefit of the tenants is thus operating to the
detriment of their interest in that the flow of rental housing is gradually shrinking".
Tembe Committee had recommended exemption of premises of floor area more than 65
sq. meters for business, trade or storage and 125 sq. meters for residential purpose".
The Court, therefore, concluded;
"It is already seen from the Statement of Objects and Reasons that the object of the Act is
not merely, to protect tenants but also to provide fair returns to the landlords and to
encourage housing activity so as to augment rental housing in the form of construction of
buildings and letting them out. It is also meant to legitimise the pagadi or premium
system which was prohibited earlier. Thus the Act has been enacted in order to strike a
balance between the interests of landlords and tenants and for giving a boost to house
building activity and in doing so the legislature in its wisdom has decided and thought it
fit not to extend the protection of the Rent Act to certain class of tenants like
multinationals scheduled banks, public sector undertakings and private and public limited
companies having share capital of more than Rs. 1 crore. This is essentially a matter of
legislative policy. The legislature would have repealed the Rent Act altogether. It could
also withdraw the protection under the Rent Act on rental basis [see D.C. Bhatiya v.
Union of India, (1995) 1 SCC 104] or on income basis [see Delhi Cloth and General
Mills Ltd. v. S. Paramjit Singh, (1990) 4 SCC 923] or any other understandable basis. In
our view it is for the legislature to decide what should be the appropriate basis for the
purpose of classification and the legislature as of necessity must have a lot of latitude in
this regard. Whether any particular category of tenants needs to be protected under the
Rent Act is a matter of legislative determination. There is nothing arbitrary if such
protection is taken away in case of certain categories of tenants having regard to their
position determined on objective and reasonable criterion. These are essentially matters
of policy. Unless the provision is shown to be arbitrary, capricious or to bring about
grossly unfair results, judicial policy should be one of judicial restraint. The prescriptions
may be somewhat cumbersome or produce some hardship in their application in some
individual cases; but they cannot be struck down as unreasonable, capricious or
arbitrary". 1994 AIR SCW 5011
AIR 1990 SC 2286
15. It also appears that as the point was concluded by a decision in M/s. Crompton
Greaves Ltd., the issue as to vires was not pressed by the tenant before the Trial Court.
This is clear from the following observations made by the Court;
"However, the advocate for Defendant not argued on this issue, may be in view of
judgment dated 20.7.2001 of the Hon'ble High Court of Judicature at Bombay. The said
judgment is reported in AIR 2002 Bombay 65 (M/s. Crompton Greaves Ltd., v. State of
Maharashtra) (not cited at Bar). In the said ruling, Hon'ble High Court upheld the
constitutional validity of the provisions of Section 3(1)(b) of the Maharashtra Rent
Control Act. Therefore, this issue does not survive. Accordingly issue No.2 is answered".
16. The courts below were, therefore, in our opinion, fully justified in proceeding to
decide the matter on merits.
MERITS OF THE MATTER
17. The Trial Court framed necessary issues and held that the defendant-Company was
the tenant; the Rent Act was not applicable; the tenancy was legally and validly
terminated; and defendant was liable to be evicted. A prayer was also made by the
plaintiff for payment of mesne profits. The Court held that the landlord was entitled to a
decree for possession. But since the proceedings were pending before BIFR, Section 22
@page-SC193
of SICA was applicable and the landlord could recover amount of mesne profits only
after taking requisite permission from BIFR. The Court, in the light of the above findings,
issued the following directions; "The Defendants shall deliver vacant repossession of the
suit premises to the Plaintiffs within 4 months.
The Defendants shall pay mesne profits to the plaintiffs in respect of suit premises for the
period from the date Operating Agency suit till the Plaintiffs recover possession of the
suit premises.
For determination of quantum of mesne profits, enquiry under O. 20, R. 12(c) of the
Code of Civil Procedure is directed.
However, the order to pay mesne profits shall be subject to the Plaintiffs obtain
permission of the BIFR to recover mesne profits against the Defendants.
Preliminary decree be drawn accordingly".
18. A Bench of Small Causes Court, Bombay confirmed the above order and dismissed
the appeal. Before the High Court, again all the contentions were reiterated by the tenant,
but the High Court negatived them and dismissed the writ petition. The High Court noted
that it was not in dispute between the parties that notice terminating the tenancy was
issued by the landlord on February 23, 2001 and tenancy was determined with effect from
March 31, 2001. On that day, i.e. March 31, 2001, paid up share capital of the Company
(tenant) was more than rupees one crore. If it were so, observed the High Court, Small
Cause Court was right in proceeding with the matter and in passing the decree of eviction
against the tenant.
19
. The Courts were also right in relying upon Shree Chamundi Mopeds Ltd. v. Church of
South India Trust Association, (1992) 3 SCC 1 and in holding that eviction proceedings
initiated by the landlord against the tenant were maintainable even if the Company was
'sick' under SICA and Section 22 of that Act would not operate as bar to such
proceedings. 1992 AIR SCW 1517
JURISDICTIONAL FACT
20. The learned counsel for the appellant-Company submitted that the fact as to 'paid up
share capital' of Rs. one crore or more of a Company is a 'jurisdictional fact' and in
absence of such fact, the Court has no jurisdiction to proceed on the basis that the Rent
Act is not applicable. The learned counsel is right. The fact as to 'paid up share capital' of
a Company can be said to be a 'preliminary' or 'jurisdictional fact' and said fact would
confer jurisdiction on the Court to consider the question whether the provisions of the
Rent Act were applicable. The question, however, is whether in the present case, the
learned counsel for the appellant tenant is right in submitting that the 'jurisdictional fact'
did not exist and the Rent Act was, therefore, applicable.
21. Stated simply, the fact or facts upon which the jurisdiction of a Court, a Tribunal or an
Authority depends can be said to be a 'jurisdictional fact'. If the jurisdictional fact exists,
a Court, Tribunal or Authority has jurisdiction to decide other issues. If such fact does not
exist, a Court, Tribunal or Authority cannot act. It is also well settled that a Court or a
Tribunal cannot wrongly assume existence of jurisdictional fact and proceed to decide a
matter. The underlying principle is that by erroneously assuming existence of a
jurisdictional fact, a subordinate Court or an inferior Tribunal cannot confer upon itself
jurisdiction which it otherwise does not possess.
22. In Halsbury's Laws of England, (4th Edn.), Vol.1, para 55, p.61; Reissue, Vol.1(1),
para 68, pp.114-15, it has been stated:
"Where the jurisdiction of a tribunal is dependent on the existence of a particular state of
affairs, that state of affairs may be described as preliminary to, or collateral to the merits
of the issue. If, at the inception of an inquiry by an inferior tribunal, a challenge is made
to its jurisdiction, the tribunal has to make up its mind whether to act or not and can give
a ruling on the preliminary or collateral issue; but that ruling is not conclusive".
23. The existence of a jurisdictional fact is thus a sine qua non or condition precedent to
the assumption of jurisdiction by a Court or Tribunal.
JURISDICTIONAL FACT AND ADJUDICATORY FACT
24. But there is distinction between 'jurisdictional fact' and 'adjudicatory fact' which
cannot be ignored. An 'adjudicatory fact' is a 'fact in issue' and can be determined by a
Court, Tribunal or Authority on 'merits', on the basis of evidence adduced by the parties.
It is no doubt true that it is very difficult to distinguish 'jurisdictional fact' and 'fact in
issue' or 'adjudicatory fact'.
@page-SC194
Nonetheless the difference between the two cannot be overlooked.
25. In Halsbury's Laws of England, (4th Edn.), Vol.1, para 55, p.61; Reissue, Vol.1(1),
para 68, pp.114-15, it is stated:
"There is often great difficulty in determining whether a matter is collateral to the merits
or goes to the merits. The distinction may still be important; for an erroneous decision on
the merits of the case will be unimpeachable unless an error of law is apparent on the face
of the record of the determination or unless a right of appeal lies to a court in respect of
the matter alleged to have been erroneously determined. An error of law or fact on an
issue collateral to the merits may be impugned on an application for an order of certiorari
to quash the decision or in any other appropriate form of proceedings, including indirect
or collateral proceedings. Affidavit evidence is admissible on a disputed issue of
jurisdictional fact, although the superior courts are reluctant to make an independent
determination of an issue of fact on which there was a conflict of evidence before the
inferior tribunal or which has been found by an inspector after a local inquiry".
26. In R. v. Fulham Rent Tribunal, (1950) 2 All ER 211, it was held that the question
whether premium for renewal of tenancy was or was not paid was a jurisdictional fact
and, therefore, was held to be a condition precedent for the lawful exercise of jurisdiction
by a Rent Tribunal. In Brittain v. Kinnaird, (1819) 1 BandB 432, however, the factum as
to possession of a 'boat' with gunpowder on board was held to be a part of the offence
charged and thus a finding of fact or adjudicatory fact. It was stated: "The logical basis
for discriminating between these cases and other falling on opposite sides of the line, is
not easily discernible".
(Emphasis supplied)
27. Likewise, the fact whether the petitioner was an 'adult' in adoption proceedings was
not held to be a 'jurisdictional' fact (Eversole v. Smith, 159 SW 2nd 35).
28
. In Jagdish Prasad v. Ganga Prasad, 1959 Supp (1) SCR 733, the question was whether
the landlord was entitled to enhancement of rent. Under the Act, he was not entitled to
such rent unless a 'new construction' had been made after June 30, 1946. It was held by
this Court that the question whether construction was new or not was a 'jurisdictional fact'
and if the court wrongly decided the said fact and thereby conferred jurisdiction not
vested in it, the High Court could interfere with the order. The Court stated that "once it
had the power it could determine whether the question of the date of construction was
rightly or wrongly decided". [See also Arun Kumar v. Union of India, (2007) 1 SCC 732].
AIR 1959 SC 492
2007 AIR SCW 2472
29
. But, in Roshanlal v. Ishwardas, (1962) 2 SCR 947, this Court held that the Rent
Controller had jurisdiction to fix standard rent for new construction made after March 24,
1947. The question was as to when the construction was made. The Rent Controller
recorded a finding of fact that the construction was put up after March 24, 1947. The
finding was confirmed by the District Judge. But the High Court interfered in revision.
AIR 1962 SC 646
30. Setting aside the decision of the High Court, this Court stated:
"It is clear from the orders of the Rent Controller and of the District Judge in appeal that
the question whether the second floor was newly constructed or not was really a question
of fact, though undoubtedly a jurisdictional fact on which depended the power of the
Rent Controller to take action under S. 7A. If the Rent Controller had wrongly decided
the fact and assumed jurisdiction where he had none, the matter would be open to
reconsideration in revision. The High Court did not, however, go into the evidence, nor
did it say that the finding was not justified by the evidence on record. The High Court
referred merely to certain submissions made on behalf of the landlord and then expressed
the opinion that what was done to the second floor was mere improvement and not a new
construction. We think that the High Court was in error in interfering with the finding of
fact by the Rent Controller and the District Judge, in support of which finding there was
clear and abundant evidence which had been carefully considered and accepted by both
the Rent Controller and the District Judge". (Emphasis supplied)
31. It is thus clear that for assumption of jurisdiction by a Court or a Tribunal, existence
of jurisdictional fact is a condition precedent. But once such jurisdictional fact is found to
exist, the Court or Tribunal has power to decide adjudicatory facts or facts
@page-SC195
in issue.
32. As already seen earlier, in the case on hand, the appellant Company was having 'paid
up share capital' of more than Rs. one crore, not only when the notice was issued and
tenancy was determined but also when the suit for possession was instituted. What was
stated was that a resolution was passed by the Board of Directors to reduce 'paid up share
capital' from Rs.8.20 crores to Rs.41 lakhs (less than Rs.1 crore). But it was not approved
by BIFR. The Small Cause Court considered this aspect and stated;
"The reasons are that the above suit is filed on 4.4.2001. Whereas undisputed document
Ex.B. annual report of the Defendant Company shows that on 30.9.1999 the paid up share
capital of the Defendant Company was more than Rs.1 crore. If the Defendants have
moved BIFR by reference of 1997, by that time the Defendant ought to have received
favourable orders reducing the paid-up capital of the Defendants to less than Rs. one
crore. But no such evidence is produced by the Defendants to rebut the annual report
Ex.B of the Defendants showing paid up capital of more than Rs.8 crores as on
30.9.1999. There is nothing before the court to show that the paid up share capital of the
Defendants is brought down to Rs.41 lacs as per para 1.3(1) of the revised rehabilitation
proposal in BIFR case No.74/1999 (Ex.4). The advocate for Defendants has not pointed
out any order to show that the said proposal is accepted.
In the absence of such order of the appropriate court or authority accepting the proposal
Ex.1 to reduce share capital to less than 1 crore rupees, I am unable to accept the case of
the Defendants that the said share capital of the Defendant Company is reduced to less
than Rs.1 crore". (Emphasis supplied)
33. The High Court also dealt with this aspect and concluded;
"It is not in dispute between the parties that the tenancy of the petitioners was terminated
with effect from 31.3.2001 and on that day the paid up share capital of the
petitioners/Company was more than Rupees one crore, no fault can be found with trial
Court taking cognizance of the eviction proceedings initiated against the petitioners, as
the trial Court definitely had jurisdiction to entertain such proceedings, considering the
provisions of law comprised under Section 3(1)(b) of the said Act, as rightly submitted by
the learned advocate for the respondents. The clause (b) of Section 3(1) of the said Act
clearly provides that "the said Act shall not apply to any premises let or sub-let to banks,
or any Public Sector Undertaking or any Corporation established by or under any Central
or State Act, or foreign missions, international agencies, multinational companies, and
private limited companies and public limited companies having a paid up share capital of
rupees one crore or more". Undisputedly, the petitioner/Company is a Public Limited
Company having share capital of more than Rupees one crore". (Emphasis supplied)
34. All the Courts were, therefore, in our considered opinion, right in holding that the
provisions of the Rent Act were not applicable to the present case.
SUBSEQUENT EVENTS
35
. The learned counsel for the tenant then submitted that it was obligatory on the courts
below including the High Court to take into consideration subsequent events. In support
of the submission, our attention has been invited by the counsel to a leading decision of
this Court in Pasupuleti Venkateswarlu v. Motor and General Traders, (1975) 1 SCC 770.
In that case, the plaintiff filed a suit for possession on the ground of personal requirement
for starting business. A decree for possession was passed in his favour which was
confirmed by the Appellate Court. At the stage of Revision, however, due to subsequent
event of acquisition of non-residential building by the plaintiff-landlord, an application
for amendment was made by the defendant-tenant. The High Court allowed the
amendment. The plaintiff challenged the said order by approaching this Court. It was
contended that the High Court committed an error in taking cognizance of subsequent
event which was 'disastrous'. This Court, however, held that the High Court had not
committed any illegality in doing so. AIR 1975 SC 1409
36
. Referring to leading cases on the point, Krishna Iyer, J. stated; AIR 1975 SC 1409,
Para 4
"We feel the submissions devoid of substance. First about the jurisdiction and propriety
vis-a-vis circumstances which come into being subsequent to the commencement of the
proceedings. It is basic to our processual jurisprudence that the right to
@page-SC196
relief must be judged to exist as on the date a suitor institutes the legal proceeding.
Equally clear is the principle that procedure is the handmaid and not the mistress of the
judicial process. If a fact, arising after the lis has come to court and has a fundamental
impact on the right to relief or the manner of moulding it, is brought diligently to the
notice of the tribunal, it cannot blink at it or be blind to events which stultify or render
inept the decretal remedy. Equity justifies bending the rules of procedure, where no
specific provision or fairplay is not violated, with a view to promote substantial justice -
subject, of course, to the absence of other disentitling factors or just circumstances. Nor
can we contemplate any limitation on this power to take note of updated facts to confine
it to the trial Court. If the litigation pends, the power exits, absent other special
circumstances repelling resort to that course in law or justice. Rulings on this point are
legion, even as situations for applications of this equitable rule are myriad. We affirm the
proposition that for making the right or remedy claimed by the party just and meaningful
as also legally and factually in accord with the current realities, the Court can, and in
many cases must, take cautious cognizance of events and developments subsequent to the
institution of the proceeding provided the rules of fairness to both sides are scrupulously
obeyed." (Emphasis supplied)
37. In our judgment, the law is fairly settled. The basic rule is that the rights of the parties
should be determined on the basis of the date of institution of the suit. Thus, if the
plaintiff has no cause of action on the date of the filing of the suit, ordinarily, he will not
be allowed to take advantage of the cause of action arising subsequent to the filing of the
suit. Conversely, no relief will normally be denied to the plaintiff by reason of any
subsequent event if at the date of the institution of the suit, he has a substantive right to
claim such relief.
38. In the instant case, in our opinion, the courts below were right in holding that the date
on which tenancy was determined, the right in favour of the landlord got accrued. Such
right could not have been set at naught by the tenant by unilateral act by passing a
resolution to reduce 'paid up share capital' of the Company.
39
. In this regard, it may be profitable to refer to a decision of this Court in Gajanan

Dattatraya v. Sherbanu Hosang Patel and Ors., (1975) 2 SCC 668. In Gajanan, the Court
was called upon to consider clause (e) of Section 13(1) of the Bombay Rents, Hotel and
Lodging House Rates Control Act, 1947 which read thus; AIR 1975 SC 2156, Para 4
13(1)(e). That the tenant has, since the coming into operation of this Act, unlawfully
sublet, or after the date of commencement of the Bombay Rents, Hotel and Lodging
House Rates Control (Amendment) Act, 1943, unlawfully given on licence, the whole or
part of the premises or assigned or transferred in any other manner his interest therein.
(Emphasis supplied)
40
. The tenant took on lease the premises on January 1, 1960. He, however, sublet a part of
the premises in August, 1965. The landlord issued a notice on April 1, 1967 and
terminated the tenancy. The tenant denied that there was unlawful sub-letting of a part of
the premises. It was further submitted that in any case, the so-called sub-tenant vacated
the premises on April 14, 1967 i.e. before the suit was instituted by the landlord and
hence, cause of action did not survive. It was contended on behalf of the tenant that
Section 13(1)(e) used the expression "has sub-let", i.e. the present perfect tense which
contemplated the event connected in some way with the present time. Since the sub-
tenant had already vacated and left the premises, at the most it could be said that the
tenant 'had sub-let' the premises but it was not a ground for eviction under the Act and
hence no decree could have been passed. Reliance was also placed on an earlier decision
of this Court in Goppulal v. Thakurji Shriji Shriji Dwarkadheshji, (1969) 3 SCR 989 :
(1969) 1 SCC 792. AIR 1969 SC 1291
41. Negativing the contention, upholding the decree of eviction and distinguishing
Goppulal, this Court said;
"The provisions of the Bombay Rents, Hotel and Lodging House Rates Control Act, 1947
indicate that a tenant is disentitled to any protection under the Act if he is within the
mischief of the provisions of Section 13(1)(e), namely, that he has sublet. The language is
that if the tenant has sublet, the protection ceases. To accede to the contention of the
appellant would mean that a tenant would not be within the mischief of unlawful
subletting if after the landlord gives
@page-SC197
a notice terminating the tenancy on the ground of unlawful subletting the sub-tenant
vacates. The landlord will not be able to get any relief against the tenant in spite of
unlawful subletting. In that way the tenant can foil the attempt of landlord to obtain
possession of the premises on the ground of subletting every time by getting the sub-
tenant to vacate the premises. The tenant's liability to eviction arises once the fact of
unlawful subletting is proved. At the date of the notice, if it is proved that there was
unlawful subletting, the tenant is liable to be evicted". (Emphasis supplied)
42. The Court approved the view taken by the High Court of Gujarat in Maganlal
Narandas Thakkar v. Arjan Bhanji Kanbi, (1969) 10 Guj LR 837. In Maganlal, the High
Court of Gujarat had an occasion to consider a pari materia provision under the
Saurashtra Rent Control Act, 1951*.
* Clause (e) of sub-section (1) of section 13 of the Act reads as under :
?That the tenant has, since the coming into operation of this Act, unlawfully sub-let the
whole or part of the premises or assigned or transferred in any other manner his interest
therein"
43. A similar argument was advanced before the Court. However, considering the scheme
of the Act, the Court refuted the contention. The Division Bench observed;
"So far as the first point is concerned, Mr. Desai laid great stress, and relied very heavily,
on the grammatical meaning of the words 'has sub-let'. His argument is that the meaning
of the words 'has sub-let' include the element that the subletting must be continuing on
the date when the plaintiff filed his suit. He stated, and there is no dispute on the point,
that the words 'has sub-let' do not use of the verb 'sub-let' in the present perfect tense. He
referred to page 61 of the Handbook of English Grammar by R.W. Zandvoort. In
paragraph 140 of this Book it is stated that when a verb is used in present perfect tense, it
denotes "a completed past action connected, through its result, with the present moment".
The argument of Mr. Desai was that the subletting which started sometime after 1951,
that is after the Act came into operation, must be connected with the present moment
through its result; and his argument was that once the sub-tenancy was created, it must be
connected with the present moment-the date of filing the suit-by its result by the sub-
tenant continuing in possession of the premises upto that date. Mr. Desai thus urged
before us that unless a sub-tenant were in possession of the property sublet on the date of
the suit it cannot be said that the tenant 'has sub-let' the premises, even though a sub-
tenancy was in fact created by the tenant. In our opinion if this interpretation were to be
accepted, the result would be that a tenant can with impunity put some other person in
possession of the premises as a sub-tenant and avoid an order for delivery of possession
against him by seeing to it that the sub-tenant departs from the property before the
plaintiff files a suit. Having regard to the scheme of the Rent Control Act, particularly the
scheme of Sections 12 and 13 of the Act and the context in which the words 'has sub-let'
are used, it appears to us that that is not the way in which the meaning of the words 'has
sub-let' should be gathered. If the Rent Control Act were not in force and the parties were
left to their ordinary rights under the Transfer of Property Act, the landlord will have a
vested right to recover possession in him as soon as he terminates the tenancy of the
tenant in the manner provided in the Transfer of Property Act. After terminating the
tenancy he can immediately call upon the tenant to hand over possession to him. By
enacting Section 12 of the Rent Control Act, the landlord's right to terminate the tenancy
is not affected, but the enforcement of his right to recover possession immediately
thereafter from the tenant is affected. The provisions of Section 12 prevent a landlord
from recovering possession of the property from a tenant even after a lawful termination
of his tenancy, provided the tenant fulfils the conditions mentioned in Section 12. Section
12 does not take away the right of the landlord to recover possession of the premises but
merely postpones the enforcement of this right of the landlord so long as the tenant fulfils
the conditions laid down in that section. Having put this impediment in the enforcement
of the right of possession of the landlord or in other words, having clothed the tenant with
an immunity from dispossession, the Legislature proceeds in Section 13 to lay down
those conditions on the fulfilment of which the landlord is entitled to recover possession
of the premises from the tenant. Section 13, therefore, provides for those contingencies
on proof of which the tenant loses
@page-SC198
the immunity from dispossession under Section 12. Some discussion took place on the
question whether the tenant has a right of possession or whether he has merely an
immunity from being dispossessed. Whether it be called an immunity from dispossession
or whether it be called a personal right of possession, the fact remains that by Section 13,
the Legislature has provided for dispossession of tenant, despite provisions of Section 12,
if the Court is satisfied that any one of the grounds mentioned in Section 13 does exist.
One of such grounds is the subletting of the premises or a part thereof by the tenant. In
view of this scheme of the provisions in Sections 12 and 13 of the Act, it is necessary for
us to construe the meaning of the words 'has sub-let' keeping in mind that the verb 'sub-
let' is used in the present perfect tense. First, it must be a completed past action, that is the
subletting must be completed. A subletting is complete as soon as the sub-tenant is put in
possession of the premises given to him on sublease. Now, this completed act of
subletting must have a result. What would be that result in the context of Sections 12 and
13 of the Act? The result of subletting would be removal of the impediment in the way of
the landlord to recover possession of the premises. In other words, the result of subletting
would be to take away that personal right of possession which the tenant enjoyed under
the provisions of the Rent Act. Now, this result must be connected with the present
moment. The present moment will be the moment when the suit is filed. How is this
result connected with the filing of the suit? The answer is quite obvious. It is this removal
of the impediment in the way of the landlord's recovery of possession which induces him
to go forthwith to the Court and file a suit for possession. Therefore, the words 'has sub-
let' mean that a sub-letting has taken place and as a result of that subletting the
impediment in the way of the landlord to recover possession has been removed, thus,
inducing him to go to Court and ask for recovery of possession. It is the result of the
completed act, i.e. the removal of the impediment in his way, which permits the landlord
to go to the Court and ask for a decree for possession. It is not necessary, therefore, that
subletting must continue enough if the premises have been sub-let sometime after the
coming into operation of the Act. The provisions of Section 15 of the Saurashtra Rent
Control Act make subletting unlawful. Therefore, any subletting by the tenant after the
Act came into operation immediately removes the impediment in the way of the landlord
to recover possession and entitles him immediately to go to the Court and ask for
recovery of possession. In order to convey the correct meaning of the words 'has sub-let'
it is not necessary to show that the subletting was in existence on the date of suit. It is
enough that the subletting has taken place sometime after the Act came into operation; it
does not matter that the subletting came to an end before the landlord gave notice or
before the landlord filed a suit". (Emphasis supplied)
44. In our opinion, the ratio laid down in the above cases applies to the present case as
well. Admittedly, on the date the tenancy was terminated, the tenant (Public Limited
Company) was having a paid up share capital of rupees more than one crore. Under
clause (b) of Section 3(1) of the Act, therefore, the provisions of the Act were not
applicable to the suit-premises. It is true that a resolution was passed by the Company to
reduce the paid up share capital to less than rupees one crore, but the said resolution was
never approved by BIFR. But even otherwise, once it is proved that the tenancy was
legally terminated and the Act would not apply to such premises, a unilateral act of tenant
would not take away the accrued right in favour of the landlord. Unless compelled, a
Court of Law would not interpret a provision which would frustrate the legislative intent
and primary object underlying such provision. We, therefore, see no infirmity in the
conclusions arrived at by the courts below.
EQUITABLE CONSIDERATIONS
45. The learned counsel for the respondent-landlord is also right in submitting that the
appellant-tenant does not deserve equitable relief under Article 136 of the Constitution.
The tenant has not paid 'rent'/'mesne profits' since more than ten years. Even after
approaching this Court, it had made part payment pursuant to interim order made in
April, 2005. But nothing was paid/deposited thereafter even though two years have
passed. These facts have not been disputed by the appellant. We are, therefore, of the
view that even on that ground, the appellant-tenant cannot ask for discretionary and
equitable relief and we are not inclined to grant such relief.
@page-SC199
46. For the foregoing reasons, the appeal deserves to be dismissed and is, accordingly,
dismissed with costs.
Appeal dismissed.
AIR 2008 SUPREME COURT 199 "Morgina Begum v. Managing Director, Hanuma
Plantation Ltd."
(From : Gauhati)*
Civil Appeal No. 4548 of 2007 (arising out of SLP (C) No.18345 of 2006) D/- 26 -9
-2007.
Morgina Begum v. Managing Director, Hanuma Plantation Ltd.
(A) Workmen's Compensation Act (8 of 1923), S.21(1)(b), Proviso - WORKMEN'S
COMPENSATION - Venue of proceedings - Claim petition - Can be filed at place where
claimant ordinarily resides - Not necessary that it should be filed where accident takes
place.
Misc. F. A. No. 86 of 2002, D/- 10-2-2006 (Gau.), Reversed.
A claimant can apply before the Commissioner having jurisdiction over the area where
the claimant ordinarily resides, and it is not always necessary to prefer a claim petition
where the accident has taken place. This is for the facility of the workmen and advances
the cause of welfare of the workmen. S. 21(1)(b) read with its proviso is a beneficial
legislation for the welfare of the workmen and giving such interpretation will advance the
cause of the workmen.
Misc. F. A. No. 86 of 2002, D/- 10-2-2006 (Gau.), Reversed.
1998 Lab IC 3253 (Ori.), 1999(3) TAC 276 (A.P.), Approved. (Para 7)
(B) Workmen's Compensation Act (8 of 1923), S.21(1)(b) - WORKMEN'S
COMPENSATION - Venue of proceedings - Place of ordinary residence of claimant -
Proof - Father and mother of deceased workman stating that they had shifted from place
of accident to place of their son-in-law - Claimants not cross-examined on their testimony
- Plea that claimants should produce documents to show the place where they are residing
- Not tenable. (Paras 8, 9)
1999(3) TAC 276 (AP) (Approved) 7
1998 Lab IC 3253 (Ori) (Approved) 7
AIR 1986 SC 842 : 1986 Lab IC 850 (Rel. on) 7
Manish Goswami (M/s. Map and Co.), for Appellant; C. Mukund, Ashok Jain, Pankaj
Jain, Bijoy Kumar Jain, for Respondent.
Judgement
JUDGMENT :- Leave granted.
2. This appeal by special leave is directed against the judgment and order dated 10-2-
2006 of the Division Bench of the High Court of Gauhati whereby the High Court has set
aside the order of the Commissioner, Workmen's Compensation, Tezpur dated 4-10-2002.
3. For convenient disposal of this case, a few facts may be mentioned. Deceased Md.
Rajik Ahmed was an employee of the respondent company. He died on 14-7-2000. A
petition for claiming compensation under the Workmen's Compensation Act was filed by
the father and mother of the deceased before the Commissioner, Workmen's
Compensation, Zone-III, Tezpur. In the said petition, the learned Commissioner, Tezpur
awarded compensation of Rs. 2,70,520/-. Aggrieved against the said order passed by the
Commissioner, Workmen's Compensation, Tezpur, the respondent company preferred an
appeal before the High Court of Gauhati. Two arguments were raised before the High
Court on behalf of the respondent company (appellant in the High Court), (1) that the
Commissioner, Workmen's Compensation, Tezpur had no jurisdiction to entertain the
claim petition and (2) the death of the deceased did not occur during the course of
employment. So far as the first contention of the respondent is concerned, the High Court
answered the same against the claimant and held that the Commissioner, Tezpur had no
jurisdiction to entertain the claim petition and accordingly it allowed the appeal filed by
the respondent herein and set aside the order of the Commissioner, Workmen's
Compensation, Tezpur, without going into the second argument. Hence, the present
appeal has been preferred by the claimants.
4. In order to appreciate the controversy involved in the present case whether the
Commissioner, Workmen's Compensation, Tezpur had jurisdiction to entertain the claim
petition or not, it will be necessary for us to refer to the necessary provisions of the
Workmen's Compensation Act, 1923 (hereinafter for short 'The Act'). Section 21(1) of the
Act which is relevant for our purposes is reproduced hereunder :-
"21. Venue of proceedings and transfer :-
@page-SC200
(1) Where any matter under this Act is to be done by or before a Commissioner, the same
shall, subject to the provisions of this Act and to any rules made hereunder, be done by or
before the Commissioner for the area in which-
(a) the accident took place which resulted in the injury; or
(b) the workman or in case of his death, the dependent claiming the compensation
ordinarily resides; or
(c) the employer has his registered office:
Provided that no matter shall be processed before or by a Commissioner, other than the
Commissioner having jurisdiction over the area in which the accident took place, without
his giving notice in the manner prescribed by the Central Government to the
Commissioner having jurisdiction over the area and the State Government concerned :
Provided further that, where the workman, being the master of a ship or a seaman or the
captain or a member of the crew of an aircraft or a workman in a motor vehicle or a
Company, meets with the accident outside India any such matter may be done by or
before a Commissioner for the area in which the owner or agent of the ship, aircraft or
motor vehicle resides or carries on business or the registered office of the Company is
situate, as the case may be."
5. There is no dispute that the accident in the present case took place at Nagaon and
hence the Commissioner, Workmen's Compensation at Nagaon also had jurisdiction to
entertain the claim petition. However, in the present case the claim petition was filed at
Tezpur because both the claimants, i.e., the father and mother of deceased Md. Rajik
Ahmed, started residing at Tezpur with their son-in-law after the death of their son Md.
Rajik Ahmed. The question to be decided in the present case is when the accident took
place at Nagaon and the claimants were residing at the time of the death of their son at
Nagaon but after the death of their son Ms. Rajik Ahmed, they had shifted to Tezpur can
the Commissioner, Workmen's Compensation at Tezpur legitimately entertain the claim
petition ?
6. Section 21(1)(b) of the Act clearly provides that the claim petition may be filed by the
claimant where the claimant ordinarily resides. In our opinion, the expression 'ordinarily
resides' means where the person claiming compensation normally resides at the time of
filing the claim petition. The proviso to Section 21(1) which is also relevant for the
present controversy, provides that in case the Commissioner, other than the
Commissioner having jurisdiction over the area in which the accident took place,
entertains the claim petition then he shall give a notice to the Commissioner having
jurisdiction over the area and the State Government concerned. The amended Section 21
has been specifically introduced in the Act by Amending Act No. 30 of 1995 with effect
from 15th September, 1995 in order to benefit and facilitate the claimants. The Statement
of Objects and Reasons for the Amendment of the Act, a copy of which has been
produced before us, clearly mentions that the amendment has been brought about for
benefits of the claimants viz. either the workmen or their dependents. The relevant
portion of the Statement of Objects and Reasons, read as under :-
"It is also proposed to introduce provision for facilitating migrant workmen to file
compensation claims before the Commissioners having jurisdiction over the area where
they or their dependents ordinarily reside. Provision for transfer of compensation from
one Commissioner to another has also been made."
7
. The idea behind introduction of this amendment is that migrant labourers all over the
country often go elsewhere to earn their livelihood. When an accident takes place then in
order to facilitate the claimants they may make their claim not necessarily at the place
where the accident took place but also at the place where they ordinarily resides. This
amendment was introduced in the Act in 1995. This was done with a very laudable object,
otherwise it could cause hardship to the claimant to claim compensation under the Act. It
is not possible for poor workmen or their dependents who reside in one part of the
country and shift from one place to another for their livelihood to necessarily go to the
place of the accident for filing a claim petition. It may be very expensive for the
claimants to pursue in such a claim petition because of the financial and other hardship. It
would entail the poor claimant travelling from one place to another for getting
compensation. Labour statutes are for the welfare of the workmen. This Court has in the
case of AIR 1986 SC 842
1998 Lab IC 3253
@page-SC201
Bharat Singh v. Management of New Tuberculosis Centre, New Delhi and others (1986)2
SCC, 614 has taken the view that welfare legislation should be given a purposive
interpretation safeguarding the rights of the have-nots rather than giving a literal
construction. In case of doubt the interpretation in favour of the worker should be
preferred. The view which we are taking has been taken by a Division Bench of the
Orissa High Court in the case of S. K. Saukat Ali alias Sekho S. K. v. Commissioner for
Workmen's Compensation-cum-Deputy Labour Commissioner, Cuttack and others 1999
(2) Transport and Accident Cases 638 (Ori) and the Andhra Pradesh High Court in the
case of Noorjahan v. National Insurance Co. Ltd. Hyderabad and another 1999 (3) T. A.
C. 276 (AP). Hence, we are of the opinion that the view taken by both these High Courts
is correct. A claimant can apply before the Commissioner having jurisdiction over the
area where the claimant ordinarily resides, and it is not always necessary to prefer a claim
petition where the accident has taken place. This is for the facility of the workmen and
advances the cause of welfare of the workmen. Therefore, the view taken by the Gauhati
High Court in the impugned order that the claim petition could only be filed at the place
where the accident had taken place, cannot be sustained. Section 21(1)(b) read with its
proviso is a beneficial legislation for the welfare of the workmen and by the above
interpretation, it will advance the cause of the workmen. Therefore, we are of the opinion
that the view taken by the Gauhati High Court in the impugned order cannot be sustained
and accordingly we set aside the impugned order.
8. Now, adverting to the facts of the present case, in the present case, both the claimants,
i.e., the father and mother of the deceased have been examined and they appeared in the
witness box as PW-1 and PW-2. PW-1, the father of the deceased Md. Rajik Ahmed, has
clearly stated in his examination in chief that they are residing with their son-in-law at
Tezpur for their livelihood. Similarly, the mother of the deceased has stated on the same
lines that they are residing at Tezpur with their son-in-law. A suggestion given to her that
they were residing at Nagaon has been emphatically denied by her. The statement of these
two witnesses makes it clear that they are presently residing at Tezpur for their livelihood.
The statement of both these witnesses was believed by the Commissioner, Workmen's
Compensation, Tezpur. Learned counsel for the respondent submitted that simply by
saying that they are residing at Tezpur is not enough to prove their statement but they
should produce documents to show that in fact they are residing at Tezpur. We see no
reason to agree with the learned counsel for the respondent when there is a clear
statement by both the claimants that they started residing at Tezpur after the death of their
son. If the respondent wanted to prove that they were deposing falsely, he should have
cross-examined these witnesses and challenged their testimony in the witness box on this
point, which has not been done. In the present case, we are satisfied that the statement of
the deceased's father and mother is trustworthy that they are ordinarily residing at Tezpur,
and hence the Commissioner, Workmen's Compensation, Tezpur has jurisdiction to
entertain the claim petition. The Commissioner, Tezpur has also given notice to the
Commissioner, Workmen's Compensation, Nagaon as well as the State Government in
compliance with the proviso to Section 21(1) of the Act.
9. In these circumstances, we are of the view that the Commissioner, Workmen's
Compensation, Tezpur had jurisdiction to entertain the claim petition of the appellants.
Accordingly, we set aside the impugned judgment and order of the High Court. Learned
counsel for the respondent submitted that the High Court has considered the appeal only
on the ground of jurisdiction and not on merits. Learned counsel for the appellant has
fairly conceded this fact. Therefore, we remit the matter to the High Court to consider the
case of the respondent herein on merits with regard to the second point urged before it
and decide the same expeditiously.
10. The appeal is allowed. No order as to costs.
Appeal allowed.
@page-SC202
AIR 2008 SUPREME COURT 202 "Bank of Rajasthan v. Keshav Bangur"
(From : Calcutta)*
Coram : 2 S. H. KAPADIA AND B. SUDERSHAN REDDY, JJ.
Criminal Appeal Nos. 1327-1328 with 1329-1335 of 2007 (arising out of SLP (Cri.) Nos.
5566-5567 of 2004) and T. P. (Cri.)Nos. 104, 387-388 of 2004, 82 of 2005 and T. P. (C)
Nos. 236-243 of 2002, D/- 3 -10 -2007.
Bank of Rajasthan v. Keshav Bangur and Anr.
Criminal P.C. (2 of 1974), S.173(2) and S.173(8) - INVESTIGATION - FIR - Two
Information Reports arising out of same incident - Same Investigation Agency (CBI)
carrying out investigation under both FIR - Valid - Investigating Agency is not precluded
from further investigation in spite of forwarding report u/S. 173 (2) on a previous
occasion.
2001 AIR SCW 5051, Foll. (Paras 15, 16)
2001 AIR SCW 5051 : AIR 2002 SC 441 : 2002 Cri LJ 923 (Foll.) 15
R. Mohan, ASG, Shyam Divan, Ranjit Kumar, Mrs. Indira Jaising, Sr. Advocates, Paras
Kuhad, Hemant Sharma, Prateek Jalan, AjayKumar, Ms. Rachan Srivastav, Tarun Johri,
Barun K. Sinha, Arun Monga, Ms. Pratibha Sinha, B. K. Satija, Anupam Lal Das, P.
Parmeswaran, A. Mariarputham, Aruna Mathur, E. C.Agrawala, S. K. Sabharwal, Ms.
Naresh Bakshi, Tushar Bakshi, Avijit Bhattacharjee, Saumya Kundu, Ms. Indra Sawhney
and Sunil Kumar Jain, for appearing parties.
* C. R. A. N. No. 1595 of 2004 in C. R. R. No. 2545 of 2003, D/- 13-9-2004 and 1-10-
2004 (Cal).
Judgement
KAPADIA, J. :-Leave granted.
2. Akhil Bhartiya Karamchari Sangh filed Writ Petition No.2094 of 1999 in the Rajasthan
High Court alleging that Bangur Group ("Bangurs" for short) was responsible for
siphoning off funds of the Bank of Rajasthan ("BOR" for short). As per the order dated
27.9.99, the CBI registered a preliminary enquiry. This was on 25.10.99. CBI submitted
Interim Reports between 28.3.00 and 14.7.00. On 11.12.00, CBI submitted its Final
Enquiry Report. Vide order dated 27.4.01 the Single Judge directed BOR to file criminal
complaints. Against the said order dated 27.4.01, BOR filed special appeal before the
Division Bench of Rajasthan High Court saying that since CBI had enquired into the
whole matter it (i.e. CBI) should alone be directed to continue with the investigation.
Vide Order dated 31.5.02, the Division Bench directed CBI to continue with the
investigation. Pursuant to the said order dated 31.5.02 CBI registered sixteen cases and
filed charge sheets as per details given below:
@page-SC203
3. In the meantime, one Navneet Baheti buys 500 shares of BOR during the period
between 13.7.01 and 20.7.01.
4. On complaint being filed by Navneet Baheti under Section 156(3) Cr.P.C., the Chief
Judicial Magistrate, Alipore, vide order dated 23.7.01, directed the officer-in-charge of
Alipore Police Station to register and investigate under Sections 156(3) Cr.P.C. after
treating his complaint as FIR. Accordingly, on 25.7.01 Alipore Police Station registered
FIR No.138 of 2001 against Bangurs under Section 120B, 406, 409, 420, 467, 468, 471
and 477A IPC. On 24.9.2001 BOR filed Writ Petition No.14491/2001 in Calcutta High
Court challenging the registration of FIR No.138 of 2001. On 25.9.01 Navneet Baheti
also filed Writ Petition No.14538/2001 in Calcutta High Court praying for expedition of
the investigations by the State Police. In the meantime on 27.9.01 Bangurs filed an
affidavit before the Division Bench of Rajasthan High Court in Special Appeal No.333 of
2001 in which they contended that since Alipore Police station had registered FIR No.138
of 2001 on 25.7.01, Information Report registered by CBI on 31.5.02 did not constitute
an FIR in law. They accordingly prayed for the discontinuance of the process in the hands
of CBI.
5. By order dated 3.10.01 in W.P. No.14491 of 2001 the Calcutta High Court directed the
Alipore Police Station to proceed with the investigations in FIR No.138/01 in accordance
with law.
6. On 28.11.01 Bangurs filed an application before the Rajasthan High Court in Writ
Petition No. 2094/99 in which they contended that in view of FIR No.138/01 filed in
Alipore Police Station, Calcutta, the directions passed by the single Judge for
investigations by CBI be set aside. That, the said Writ Petition No.2094/99 filed by the
Akhil Bhartiya Karamchari Sangh be dismissed accordingly.
@page-SC204
7. On 31.5.02, the Division Bench of Rajasthan High Court passed the following order in
Special Appeal No.333 of 2001 which reads as follow:
"In our view, the directions issued by the learned Single Judge for the bank to prosecute
the criminal proceedings by filing a private complaint in the criminal court is neither just
nor fair nor proper and is not in accordance with the law. Considering the facts revealed
in the report submitted by the CBI. Accordingly, we quash the directions given by the
learned Single Judge in its order 27.4.2001 directing the bank to file a criminal complaint
in regard to the facts revealed in the CBI report and instead thereof direct the CBI to
continue, with the enquiry/investigation in accordance with the
@page-SC205
law and proceed further to take up the matter before the appropriate criminal court by
taking appropriate steps."
8. On 12.7.02 a Closure Report was filed in Final Form in FIR 138/01 by Alipore Police
Station stating that since investigation has been taken by CBI and since documents have
been transferred to CBI, the said FIR 138/01 be ordered to be closed. That prayer was
ultimately accepted by Sub Divisional Judicial Magistrate, Alipore, Calcutta. However, it
may be noted that the said closure was not on merits.
9. On 27.11.03, Keshav Bangur filed Criminal Revision Application Nos.2545 and 2852
of 2003 under Section 482 Cr.P.C. for quashing the sixteen FIRs by CBI on the ground
that they were second FIRs, the first being FIR No.138/2001 arising from the complaints
filed by Navneet Baheti. Vide interim order dated 13.9.04, the Calcutta High Court
directed CBI to proceed with the investigations in all sixteen cases, however, it directed
that cognizance should not be taken without prior permission from High Court. Similarly,
by interim order 1.10.04 the Calcutta High Court stayed further proceedings pending
before the Special Judge, CBI, Mumbai.
10. The above interim orders were challenged by BOR before this Court vide Special
Leave Petitions. This Court vide order dated 3.12.04 stayed the interim orders of the
Calcutta High Court.
11. By impugned judgment dated 23.12.04, the above two criminal revisions filed by
Keshav Bangur came up for hearing when the Calcutta High Court vacated all interim
orders and directed CBI to take up investigation of Alipore PS Case No.138/01. The High
Court further observed that in course of investigation of Alipore PS Case No.138/01, it
would be open to the CBI to take into consideration the said sixteen FIRs also. Thus, the
investigation of FIR No.138/01 and the sixteen FIRs was ordered to be done by one
common agency viz. CBI.
12. Aggrieved by the decision of the Calcutta High Court dated 23.12.04, BOR came to
this Court vide two Special Leave Petitions. By order dated 8.3.07, this Court directed
CBI to proceed with the investigation into FIR No.138/01 and submit its report in a
sealed cover within six weeks which has been done.
13. In this batch of cases the controversy raised is as follows: "Whether registration of
FIR No.138/01 by Calcutta Police constituted the first FIR and, if so, whether the process
in the hands of CBI initiated at the instance of the Rajasthan High Court stood
discontinued when the Calcutta Police registered the first FIR No.138/01."
14. The main contention raised in Crl. Appeal No.... of 2007 arising out of SLP(Crl.)
No.781/2007 - filed by Keshav Bangur is that the investigative power of the police in a
cognizable offence originates from lodging of an FIR under Section 154 of Cr.P.C. and
when an FIR is already pending registration of a series of FIRs in respect of the same
cognizable offence would be a gross abuse of the process of the Court.
15
. The above question has now become academic for the following reasons. Firstly, in our
order dated 8.3.07 we directed CBI to proceed with investigation into FIR No.138 of
2001 filed in P.S. Alipore, Calcutta. Under the said order we also directed CBI to submit
their report under a sealed cover within six weeks. That Report has been placed before us.
We have gone through that Report. We do not wish to discuss the contents of the Report
at this stage. By the impugned judgment, the Calcutta High Court has directed CBI to
take up the investigation of Alipore PS Case No.138/01 and has further directed that in
the course of such investigation of the said Case No.138/01 it would be open to CBI to
take into consideration the aforestated sixteen FIRs, the period during which the alleged
offence were committed and thereafter to decide the course of action to be taken in
accordance with law. The learned Sub Divisional Judicial Magistrate was also directed to
transmit the record of Alipore PS Case No.138/01 to the Third Special Judge, CBI,
Calcutta. We agree with the said direction. The said direction of the Calcutta High Court
contained in the impugned judgment read with our order dated 8.3.07 indicates that
investigation into FIR No.138/01 as well as into sixteen FIRs have been entrusted to one
single agency, namely, CBI. In the circumstances, the question of First FIR has become
academic. That question no more survives. Consequently, two civil revision applications
filed by Keshav Bangur in the High Court bearing Nos.2545 and 2852 of 2003 will not
survive. They stand dismissed as infructuous. Secondly, on 12.7.02 a Closure Report in
Final Form was 2001 AIR SCW 5051
@page-SC206
drawn up in connection with FIR No.138/01 inasmuch as CBI had taken up the
investigation. The hearing on the Final Report of Closure was concluded before Sub
Divisional Judicial Magistrate, Alipore. It was allowed by Sub Divisional Judicial
Magistrate. However, it may be clarified that the said Closure was not on merits of the
case. The said Closure was only on account of the fact that the investigation stood
transferred to CBI. Consequently, now the Alipore Police Station has no role to play.
Lastly, in the case of Kari Choudhary v. Most. Sita Devi and others AIR 2002 SC 441 at
page 443, this Court has explained the legal position in case of FIRs being filed against
the same accused in respect of the same case. This Court has held that when there are
rival versions in respect of the same incident, they would normally take the shape of two
different FIRs and investigation can be carried on under both by the same investigating
agency. That, to set aside the proceedings merely on the ground that the final report has
been laid in the first FIR is, to say the least, too technical as the ultimate object of every
investigation is to find out whether the offences alleged have been committed and if so
who has committed them. Even otherwise, the investigating agency is not precluded from
further investigation in respect of an offence in spite of forwarding a report under Section
173(2) on a previous occasion. We quote hereinbelow paragraphs 11 and 12 of the said
judgment which read as follow:
"11. Learned counsel adopted an alternative contention that once the proceeding initiated
under FIR No. 135 ended in a final report the police had no authority to register a second
FIR and number it as FIR 208. Of course the legal position is that there cannot be two
FIRs against the same accused in respect of the same case. But when there are rival
versions in respect of the same episode, they would normally take the shape of two
different FIRs and investigation can be carried on under both of them by the same
investigating agency. Even that apart, the report submitted by the court styling it as FIR
No. 208 of 1998 need be considered as an information submitted to the Court reading the
new discovery made by the police during investigation the persons not named in FIR No.
135 are the real culprits. To quash the said proceeding merely on the ground that final
report had been laid in FIR No. 135 is, to say the least, too technical. The ultimate object
of every investigation is to find out whether the offences alleged have been committed
and, if so, who have committed it.
12. Even otherwise the investigating agency is not precluded from further investigation in
respect of an offence in spite of forwarding a report under sub-section (2) of Section 173
on a previous occasion. This is clear from Section 173(8) of the Code." (Emphasis
supplied)
16. Applying the above test to the present batch of cases, in our view, suffice it to state
that since investigation has been done by CBI (common agency) the report submitted by
it to this Court, pursuant to our order dated 8.3.07, would also be placed before the Third
Special Judge, CBI, Calcutta and it would be for that court to decide whether the aspects
covered in FIR No.138/01 stand covered by the report of CBI in the said sixteen FIRs or
whether FIR No.138/01 deals with some aspect which is left out by CBI in the said
sixteen cases. Accordingly, it would decide whether the sixteen cases cover all aspects
including those falling under FIR No.138/01 or whether FIR No.138/01 has some aspects
which do not fall in the sixteen cases and, accordingly, it would decide whether to accept
the report submitted by CBI before us pursuant to our order dated 8.3.07. Similarly, it
would be for that court to decide whether alleged siphoning off took place under same
transaction or under separate transactions. Suffice it to state, all the above cases from
Calcutta, Mumbai and Delhi shall be tried and disposed of in accordance with law by the
Third Special Judge, CBI, Calcutta.
17. In Transfer Petition (Crl.) No.104 of 2004 filed by Keshav Bangur versus CBI, the
applicant has prayed for transfer of Special Case No.97 of 2003 filed before the Court of
Special Judge, CBI, Greater Mumbai, (City Sessions Court) be transferred to the Third
Special Judge, CBI, Calcutta.
18. That, Transfer Petition (Crl.) No.104 of 2004 filed by Keshav Bangur accordingly
stands allowed and consequently the Special Case No.97 of 2003 arising out of
RC7/E/2002/Mumbai and RC6/E/2002/Mumbai shall stand transferred from the Court of
Special Judge, CBI, Mumbai, (City Sessions Court) to the Third Special Judge, CBI,
Calcutta.
19. We are informed that six cases filed
@page-SC207
before the Special Judge, Delhi, have already been transferred to the Third Special Judge,
CBI, Calcutta.
CONCLUSION
20. We direct all the aforestated sixteen cases to be tried and disposed of in accordance
with law by the Third Special Judge, CBI, Calcutta. We direct the Third Special Judge,
CBI, Calcutta, to proceed on day-to-day basis and complete the trial as expeditiously as
possible.
21. Consequently, Crl. Appeal No. 1327-1328 of 2007 arising out of SLP (Crl.)
Nos.5566-67 of 2004, Crl. Appeal No. 1329-1330 of 2007 arising out of SLP (Crl.)
Nos.5568-5569 of 2004, Crl. Appeal No. 1331-1332 of 2007 arising out of SLP (Crl.)
Nos.5572-73 of 2004, T.P. (C) Nos.236-243/2002, T.P. (Crl.) Nos.387-388/2004 and T.P.
(Crl.) No.82/2005 shall stand dismissed as infructuous as they pertain to interim orders
passed by the High Court.
22. Accordingly, our above judgment is delivered in Crl. Appeal No. 1333 of 2007 arising
out of SLP (Crl.) No.634 of 2005, Crl. Appeal No. 1334 of 2007 arising out of SLP (Crl.)
No.635 of 2005, Crl. Appeal No. 1335 of 2007 arising out of SLP (Crl.) No.781 of 2007,
which are all disposed of in light of this judgment along with T.P. (Crl.) No.104 of 2004.
In view of our aforestated judgment, Writ Petition No.2094 of 1999 filed by the Akhil
Bhartiya Karamchari Sangh in the Rajasthan High Court also stands disposed of.
23. Accordingly, the above matters are disposed of with no order as to costs.
Order accordingly.
AIR 2008 SUPREME COURT 207 "Sanjay Bansal v. Jawajarla Vats"
(From : Allahabad)*
-10 -2007.
Sanjay Bansal and Anr. v. Jawajarla Vats and Ors.
Criminal P.C. (2 of 1974), S.190, S.173 - INVESTIGATION - COGNIZANCE OF
OFFENCE - MAGISTRATE - Cognisance of offence - Final report - Consideration by
Magistrate - Magistrate bound to give notice to informant if he decides not to take
cognizance or not to take cognizance as regards some accused - But Magistrate cannot
compel police to change their opinion - Direction given by H. C. to informant to file
protest petition and keep writ petition pending till it receives order passed by Magistrate -
Not proper.
Crl. Misc. W. P. No. 13182 of 2006, D/- 16-3-2007 (All), Reversed. (Paras 7, 13)
AIR 1989 SC 885 : 1989 Cri LJ 963 (Ref.) 8
AIR 1985 SC 1285 : 1985 Cri LJ 1521 (Rel. on) 5, 8, 10, 11
AIR 1968 SC 117 : 1968 Cri LJ 97 (Rel. on) 7
Mukul Rohatgi, Sr. Advocate, Vinay Arora, Ramesh Sinha, Sudershan Singh Rawat,
Mukesh Kumar and Sanjay Jain, for Appellants; R. K. Gupta, Rajiv Dubey, Kamlendra
Mishra, Manoj K. Mishra, Javed M. Rao, Jitendra Mohan Sharma and Ajit Sharma, for
Respondents.
* Cri. Misc. W. P. No. 13182 of 2006, D/- 16-3-2007 (All).
Judgement
High Court in Criminal Misc. Writ Petition No.13182 of 2006 which was filed under
Article 226 of the Constitution of India, 1950 (in short the Constitution). In the writ
petition, the writ petitioner, i.e. respondent No.1, had prayed for a direction to the
investigating agency to proceed with "fair and proper investigation in case No.147 of
2006 under Section 307 of the Indian Penal Code, 1860 (in short the IPC) registered at
Police Station Nauchandi, district Meerut". The writ petitioner alleged that his son had
sustained fire arm injuries at the hands of some unknown miscreants on 30.3.2006 at
10.00 a.m. and in regard to it a case was registered. Initially, Sri R.P. Singh, Station
Officer, Nauchandi had recorded the statement of the informant and the injured-
Dhananjay who had categorically stated that the present appellants had caused fire arm
injuries on him. Subsequently, the investigation was undertaken by one Chet Singh, SI
who submitted the final report excluding the afore-named accused i.e. the present
appellants in the offence. The final report was on the basis of alibi claimed by
@page-SC208
the accused persons. The High Court was of the view that from the beginning the writ
petitioner was apprehending that there would be no fair and proper investigation into the
case as the accused persons are influential persons. The High Court was of the view that
whether any alibi can be accepted is for the trial court to decide. Accordingly, the High
Court inter alia gave the following directions:
"In above view of the matter the petitioner is directed to approach the learned Magistrate
concerned within 10 days and file protest petition and the learned Magistrate concerned
taking into account the statement of the injured and the injury report press a proper and
appropriate order in accordance with law within a week thereafter and till then the final
report No.32 of 2006 shall not be given effect to and in case the final report has already
been accepted the same shall be treated to have been rejected.
This Court is anxious to know the order passed by the learned Magistrate, list this writ
petition before us on 20th April, 2007 for the report of the learned Magistrate concerned.
3. In support of the appeal, learned counsel for the appellants submitted that the
directions given by the High Court are not sustainable in law. The course to be adopted
when the final report is submitted has been indicated by this Court in several cases. In
this case what the High Court indirectly directed was rejection of the final report as
would be evident from the fact that the High Court expressed its anxiety to know the
order passed by the Magistrate and kept the writ petition pending for report of the
concerned learned Magistrate. It was submitted that in view of the clear indication of
view made by the High Court, the trial court was bound to be influenced. In fact the order
by the High Court was passed on 16.3.2007. This Court directed interim stay of the High
Courts order by order dated 20th April, 2007. Before the said order could be passed, the
trial court in fact had rejected the final report by order dated 16th April, 2007. In the said
order, the learned Magistrate categorically referred to the order passed by the High Court.
Therefore, there was no independent application of mind.
4. In response, learned counsel for respondent No.1 has submitted that the Magistrate has
decided the matter uninfluenced by any observation of the High Court and he exercised
the jurisdiction dehors the High Courts order.
5
. There is no provision in the Code of Criminal Procedure, 1973 (in short the Code) to file
a protest petition by the informant who lodged the first information report. But this has
been the practice. Absence of a provision in the Code relating to filing of a protest
petition has been considered. This Court in Bhagwant Singh v. Commissioner of Police
and Another (AIR 1985 SC 1285), stressed on the desirability of intimation being given
to the informant when a report made under Section 173 (2) is under consideration. The
Court held as follows: (Para 4)
"There can, therefore, be no doubt that when, on a consideration of the report made by
the officer in charge of a police station under sub-section (2)(i) of Section 173, the
Magistrate is not inclined to take cognizance of the offence and issue process, the
informant must be given an opportunity of being heard so that he can make his
submission to persuade the Magistrate to take cognizance of the offence and issue
process. We are accordingly of the view that in a case where the Magistrate to whom a
report is forwarded under sub-section (2)(i) of Section 173 decides not to take cognizance
of the offence and to drop the proceeding or takes the view that there is no sufficient
ground for proceeding against some of the persons mentioned in the First Information
Report, the Magistrate must give notice to the informant and provide him an opportunity
to be heard at the time of consideration of the report"
6. Therefore, there is no shadow of doubt that the informant is entitled to a notice and an
opportunity to be heard at the time of consideration of the report. This Court further held
that the position is different so far as an injured person or a relative of the deceased, who
is not an informant, is concerned. They are not entitled to any notice. This Court felt that
the question relating to issue of notice and grant of opportunity as afore-described was of
general importance and directed that copies of the judgment be sent to the High Courts in
all the States so that the High Courts in their turn may circulate the same among the
Magistrates within their respective jurisdictions.
7. In Abhinandan Jha and Another v. Dinesh Mishra (AIR 1968 SC 117), this Court while
considering the provisions of Sections
@page-SC209
156(3), 169, 178 and 190 of the Code held that there is no power, expressly or impliedly
conferred, under the Code, on a Magistrate to call upon the police to submit a charge
sheet, when they have sent a report under Section 169 of the Code, that there is no case
made out for sending up an accused for trial. The functions of the Magistrate and the
police are entirely different, and the Magistrate cannot impinge upon the jurisdiction of
the police, by compelling them to change their opinion so as to accord with his view.
However, he is not deprived of the power to proceed with the matter. There is no
obligation on the Magistrate to accept the report if he does not agree with the opinion
formed by the police. The power to take cognizance notwithstanding formation of the
opinion by the police which is the final stage in the investigation has been provided for in
Section 190(1)(c).
8
. When a report forwarded by the police to the Magistrate under Section 173(2)(i) is
placed before him several situations arise. The report may conclude that an offence
appears to have been committed by a particular person or persons and in such a case, the
Magistrate may either (1) accept the report and take cognizance of the offence and issue
process, or (2) may disagree with the report and drop the proceeding, or (3) may direct
further investigation under Section 156(3) and require the police to make a further report.
The report may on the other hand state that according to the police, no offence appears to
have been committed. When such a report is placed before the Magistrate he has again
option of adopting one of the three courses open i.e., (1) he may accept the report and
drop the proceeding; or (2) he may disagree with the report and take the view that there is
sufficient ground for further proceeding, take cognizance of the offence and issue
process; or (3) he may direct further investigation to be made by the police under Section
156(3). The position is, therefore, now well-settled that upon receipt of a police report
under Section 173(2) a Magistrate is entitled to take cognizance of an offence under
Section 190(1)(b) of the Code even if the police report is to the effect that no case is
made out against the accused. The Magistrate can take into account the statements of the
witnesses examined by the police during the investigation and take cognizance of the
offence complained of and order the issue of process to the accused. Section 190(1)(b)
does not lay down that a Magistrate can take cognizance of an offence only if the
Investigating Officer gives an opinion that the investigation has made out a case against
the accused. The Magistrate can ignore the conclusion arrived at by the Investigating
Officer and independently apply his mind to the facts emerging from the investigation
and take cognizance of the case, if he thinks fit, exercise of his powers under Section
190(1)(b) and direct the issue of process to the accused. The Magistrate is not bound in
such a situation to follow the procedure laid down in Sections 200 and 202 of the Code
for taking cognizance of a case under Section 190(1)(a) though it is open to him to act
under Section 200 or Section 202 also. [See M/s. India Sarat Pvt. Ltd. v. State of
Karnataka and another (AIR 1989 SC 885)]. The informant is not prejudicially affected
when the Magistrate decides to take cognizance and to proceed with the case. But where
the Magistrate decides that sufficient ground does not subsist for proceeding further and
drops the proceeding or takes the view that there is material for proceeding against some
and there are insufficient grounds in respect of others, the informant would certainly be
prejudiced as the First Information Report lodged becomes wholly or partially
ineffective. Therefore, this Court indicated in Bhagwant Singh's case (supra) that where
the Magistrate decides not to take cognizance and to drop the proceeding or takes a view
that there is no sufficient ground for proceeding against some of the persons mentioned in
the First Information Report, notice to the informant and grant of opportunity of being
heard in the matter becomes mandatory. As indicated above, there is no provision in the
Code for issue of a notice in that regard. AIR 1985 SC 1285
9. We may add here that the expressions charge-sheet or final report are not used in the
Code, but it is understood in Police Manuals of several States containing the Rules and
the Regulations to be a report by the police filed under Section 170 of the Code,
described as a charge-sheet. In case of reports sent under Section 169, i.e., where there is
no sufficiency of evidence to justify forwarding of a case to a Magistrate, it is termed
variously i.e., referred charge, final report or summary. Section 173 in terms does not
refer to any notice to be given to raise any protest to the report submitted by
@page-SC210
the police. Though the notice issued under some of the Police Manuals states it to be a
notice under Section 173 of the Code, though there is nothing in Section 173 specifically
providing for such a notice.
10
. As decided by this Court in Bhagwant Singh's case (supra), the Magistrate has to give
the notice to the informant and provide an opportunity to be heard at the time of
consideration of the report. It was noted as follows:-AIR 1985 SC 1285
"....the Magistrate must give notice to the informant and provide him an opportunity to be
heard at the time of consideration of the report..."
11. Therefore, the stress is on the issue of notice by the Magistrate at the time of
consideration of the report. If the informant is not aware as to when the matter is to be
considered, obviously, he cannot be faulted, even if protest petition in reply to the notice
issued by the police has been filed belatedly. But as indicated in Bhagwant Singh's case
(supra) the right is conferred on the informant and none else.
12
. The aforesaid position was highlighted by this Court in Gangadhar Janardan Mhatre v.
State of Maharashtra and Ors. (2004 (7) SCC 768). 2004 AIR SCW 5414
13. The High Court could not have directed the writ petitioner to lodge the protest
petition. It was for the informant to do so if he intended to do so. The High Court further
could not have kept the matter pending and indicated its anxiety to know the order passed
by the learned Magistrate. As rightly contended by learned counsel for the appellants it is
clearly indicative of the fact that the High Court wanted the rejection of the final report
though it was not specifically spelt out.
14. In the circumstances, we set aside the order passed by the High Court and the
consequential order dated 16.4.2007 passed by the Magistrate. The protest petition, if
filed, shall be considered by the learned Magistrate in accordance with law uninfluenced
by any observation made by the High Court. We make it clear that we have not expressed
any opinion on the merits of the case. The writ petition filed before the High Court shall
be treated to have been disposed of and not pending.
15. The appeal is accordingly disposed of.
Order accordingly.
AIR 2008 SUPREME COURT 210 "B. Suresh Yadav v. Sharifa Bee"
-10 -2007.
B. Suresh Yadav v. Sharifa Bee and Anr.
Penal Code (45 of 1860), S.420 - Criminal P.C. (2 of 1974), S.482 - CHEATING -
INHERENT POWERS - EXECUTION - SALE DEED - DEED - Cheating - Dishonest
concealment of facts - Complaint that accused vendor before execution of sale deed
surreptitiously demolished structure standing on land sold to complainant - Complainant
in a civil suit pending regarding same matter however, taking contrary and inconsistent
stand - Though liability of a person can be both civil and criminal at the same time -
Inconsistent stand taken by complainant assumes significance - In facts no case of
cheating held was made out - Complaint liable to be quashed.
Crl. P. No. 3498 of 2006, D/- 6-11-2006 (AP), Reversed. (Paras 13, 14)
2006 AIR SCW 3830 : AIR 2006 SC 2780 : 2006 (5) AIR Bom R 437 (Ref.) 17
2005 AIR SCW 989 : AIR 2005 SC 1047 : 2005 AIR Kant HCR 747 17
(2005) 10 SCC 228 (Ref.) 16
2000 AIR SCW 296 : AIR 2000 SC 754 : 2000 Cri LJ 824 : 2000 All LJ 496 (Ref.)
15
M. N. Rao, Sr. Advocate, T. N. Rao, P. Sriniwas Reddy, Ms. Manjeet Kirpal, Paramjeet,
for Appellant; Naveen R. Nath, for Respondents.
* Cri. Petn. No. 3498 of 2006, D/- 6-11-2006 (AP).
Judgement
S. B. SINHA, J. :- Leave granted.
2. An application for quashing the complaint being CC No.216 of 2006 filed in the Court
of the Metropolitan Magistrate, Cyberabad at Malkagiri filed by the petitioner under
Section 482 of the Code of Criminal Procedure, has been dismissed by the High Court of
Andhra Pradesh by reason of the
@page-SC211
impugned judgment.
3. Basic fact of the matter is not in dispute.
4. First respondent herein filed a complaint petition. The parties hereto entered into an
agreement for sale in respect of a house admeasuring 350 square yards for a consideration
of Rs.23,80,000/-. A sum of Rs.5,00,000/- was paid by way of advance. A sale deed was
executed on 30.9.2005 by the appellant herein on receipt of the balance sum of
Rs.18,79,000/-.
5. Indisputably on or about 29.9.2005, two rooms, allegedly, constructed on the said lands
were demolished. A suit was filed in relation thereto. Respondent No.1 was also
defendant in the said suit. In the written statement, she stated :
"Whereas it is the Plaintiffs who by demolishing existing structure when the defendant
No.2 and her family members are away and even the electricity connection meter was
thrown away and in that regard this defendant No.2 herein has reported the matter to the
concerned police and this Plaintiffs herein have also filed a caveat application having got
signed the same in the affidavit. And whereas before this Hon'ble Court, the same
Plaintiffs herein has put his thumb impression and the Plaintiff herein by taking
advantage of ad interim orders, are trying to forcibly encroach upon the suit schedule
property."
6. Respondent herein, in the said suit, inter alia, contended that the suit properties are
different from the subject-matter of the deed of sale. Although the aforementioned written
statement was filed only in March, 2006, first respondent herein filed a complaint in the
court of Metropolitan Magistrate, Cyberabad at Neredmet alleging commission of an
offence by the appellant purported to be under Section 420 of the Indian Penal Code.
7. Submission of Mr. M.N. Rao, learned Senior Counsel appearing on behalf of the
appellant, is that the allegations contained in the complaint petition, even if given face
value and taken to be correct in their entirety, do not disclose any offence. Learned
counsel would contend that from a perusal of the written statement filed by the first
respondent, it would appear that she at all material times was aware of the purported
demolition of the said rooms.
8. Section 415 of the Indian Penal Code reads thus :
"Section 415 Cheating. Whoever, by deceiving any person, fraudulently or dishonestly
induces the person so deceived to deliver any property to any person, or to consent that
any person shall retain any property, or intentionally induces the person so deceived to do
or omit to do anything which he would not do or omit if he were not so deceived, and
which act or omission causes or is likely to cause damage or harm to that person in body,
mind, reputation or property, is said to "cheat".
Explanation.- A dishonest concealment of facts is a deception within the meaning of this
section."
Section 415 of the Indian Penal Code is required to be read with the definition of the
expression dishonestly as contained in Section 24 thereof in terms whereof something
must be done with an intention of causing wrongful gain to one person or wrongful loss
to another.
9. There exists a dispute as to whether the property whereupon the said two rooms were
allegedly situated was the same property forming the subject-matter of the deed of sale or
not. A civil suit has already been filed in relation thereto. Respondent No.1 herein was
aware of the fact that the said two rooms stood demolished. It is furthermore not in
dispute that the demolition was not caused by the appellant herein. In her written
statement filed in the said suit, the first respondent did not make any allegation against
the appellant herein. The High Court, in its judgment, inter alia, opined that, prima facie,
the appellant concealed the fact of demolition of the premises from the first respondent
before execution of the aforementioned deed of sale.
10. The short question which arises for consideration is as to whether a case of cheating
within the meaning of Section 415 of the Indian Penal Code has been made out or not.
11. Ingredients of cheating are :
(i) deception of a person either by making a false or misleading representation or by other
action or omission; and
(ii) fraudulent or dishonest inducement of that person to either deliver any property to any
person or to consent to the retention thereof by any person or to intentionally induce that
person to do or omit to do anything which he would not do or omit if he
@page-SC212
were not so deceived and which act or omission causes or is likely to cause damage or
harm to that person in body, mind, reputation or property.
12. While executing the sale deed, the appellant herein did not make any false or
misleading representation. There had also not been any dishonest act of inducement on
his part to do or omit to do anything which he could not have done or omitted to have
done if he were not so deceived. Admittedly, the matter is pending before a competent
civil court. A decision of a competent court of law is required to be taken in this behalf.
Essentially, the dispute between the parties is a civil dispute.
13. For the purpose of establishing the offence of cheating, the complainant is required to
show that the accused had fraudulent or dishonest intention at the time of making promise
or representation. In a case of this nature, it is permissible in law to consider the stand
taken by a party in a pending civil litigation. We do not, however, mean to lay down a law
that the liability of a person cannot be both civil and criminal at the same time. But when
a stand has been taken in a complaint petition which is contrary to or inconsistent with
the stand taken by him in a civil suit, it assumes significance. Had the fact as purported to
have been represented before us that the appellant herein got the said two rooms
demolished and concealed the said fact at the time of execution of the deed of sale, the
matter might have been different. As the deed of sale was executed on 30.9.2005 and the
purported demolition took place on 29.9.2005, it was expected that the complainant/first
respondent would come out with her real grievance in the written statement filed by her
in the aforementioned suit. She, for reasons best known to her, did not choose to do so.
14. In this view of the matter, we are of the opinion that in the facts and circumstances
obtaining herein, no case has been made out for proceeding with the criminal case.
15. In G. Sagar Suri and Anr. v. State of U.P. and Ors. [(2000) 2 SCC 636], this Court
opined :
"8. Jurisdiction under Section 482 of the Code has to be exercised with great care. In
exercise of its jurisdiction the High Court is not to examine the matter superficially. It is
to be seen if a matter, which is essentially of a civil nature, has been given a cloak of
criminal offence. Criminal proceedings are not a short cut of other remedies available in
law. Before issuing process a criminal court has to exercise a great deal of caution. For
the accused it is a serious matter. This Court has laid certain principles on the basis of
which the High Court is to exercise its jurisdiction under Section 482 of the Code.
Jurisdiction under this section has to be exercised to prevent abuse of the process of any
court or otherwise to secure the ends of justice.
Therein, having regard to the fact that a criminal complaint under Section 138 of the
Negotiable Instruments Act had already been pending, the criminal complaint under
Section 406/420 found to be an abuse of the due process of law.
16. In Anil Mahajan v. Bhor Industries Ltd. and Anr. [(2005) 10 SCC 228], this Court
held :
"8. The substance of the complaint is to be seen. Mere use of the expression cheating in
the complaint is of no consequence. Except mention of the words deceive and cheat in the
complaint filed before the Magistrate and cheating in the complaint filed before the
police, there is no averment about the deceit, cheating or fraudulent intention of the
accused at the time of entering into MOU wherefrom it can be inferred that the accused
had the intention to deceive the complainant to pay. According to the complainant, a sum
of Rs.3,05,39,086 out of the total amount of Rs.3,38,62,860 was paid leaving balance of
Rs.33,23,774. We need not go into the question of the difference of the amounts
mentioned in the complaint which is much more than what is mentioned in the notice and
also the defence of the accused and the stand taken in reply to notice because the
complainants own case is that over rupees three crores was paid and for balance, the
accused was giving reasons as above-noticed. The additional reason for not going into
these aspects is that a civil suit is pending inter se the parties for the amounts in
question."
17
. In Hira Lal Hari Lal Bhagwati v. CBI, New Delhi [(2003) 5 SCC 257], this Court
opined : 2003 AIR SCW 2735, (Para 45)
"It is settled law, by a catena of decisions, that for establishing the offence of cheating,
the complainant is required to show that
@page-SC213
the accused had fraudulent or dishonest intention at the time of making promise or
representation. From his making failure to keep promise subsequently, such a culpable
intention right at the beginning that is at the time when the promise was made cannot be
presumed. It is seen from the records that the exemption certificate contained necessary
conditions which were required to be complied with after importation of the machine.
Since the GCS could not comply with it, therefore, it rightly paid the necessary duties
without taking advantage of the exemption certificate. The conduct of the GCS clearly
indicates that there was no fraudulent or dishonest intention of either the GCS or the
appellants in their capacities as office-bearers right at the time of making application for
exemption . As there was absence of dishonest and fraudulent intention, the question of
committing offence under Section 420 of the Indian Penal Code does not arise."
{See also Hira Lal Hari Lal Bhagwati v. CBI, New Delhi [(2005) 3 SCC 670] and Indian
Oil Corporation v. NEPC India Ltd. and Ors. [(2006) 6 SCC 736]}. 2006 AIR SCW 3830
18. For the reasons aforementioned, the impugned judgment cannot be sustained. It is set
aside accordingly. Appeal is allowed. No costs.
Appeal allowed.
AIR 2008 SUPREME COURT 213 "Mohanakumaran Nair v. Vijayakumaran Nair"
(From : AIR 2006 Ker 243)
-2007.
Mohanakumaran Nair v. Vijayakumaran Nair.
(A) Civil P.C. (5 of 1908), S.20 - CIVIL PROCEDURE - Territorial jurisdiction -
Determination - Relevant date - Is date of institution of suit - Parties residing outside
India on date of suit - Fact that subsequent to filing of suit defendant starts residing
within jurisdiction of Court - Would not clothe Court with jurisdiction to entertain suit.
Determination in regard to maintainability of the suit must be made with reference to the
date of the institution of the suit. If a cause of action arises at a later date, a fresh suit may
lie but that would not mean that the suit which was not maintainable on the date of its
institution, unless an exceptional case is made out therefor can be held to have been
validly instituted. Application of doctrine of dominus litus is confined only to the cause
of action which would fall within Ss. 15 to 18, Civil P. C. It will have no application in a
case where the provision of S. 20 thereof is sought to be invoked. (Paras 11, 12)
Plaintiff filed a suit for recovery of money advanced on a promissory note. Suit was filed
in a Court in India. At all material times, the parties were at Saudi Arabia. They were
residing and working there only. It is also not a case where under the promissory note the
amount was to be paid in India. There is nothing on record to show that any demand was
made within the State in India. Merely because after institution of suit defendant starts
residing within jurisdiction of Court, the suit would not become maintainable. (Paras
13, 18)
(B) Constitution of India, Art.133 - APPEAL - PLEA - RECOVERY OF DUES - New
plea - Suit for recovery of money - Finding that no part of cause of action arose in India
not questioned - New plea that commitment to pay money in India was made by
defendant - Cannot be raised. (Paras 15, 16)
2007 (8) Scale 488 10
206 AIR SCW 5130 : 2006 (6) AIR Bom R 458 11
2006 (11) Scale 208 5
2004 AIR SCW 2379 : AIR 2004 SC 2154 9
2004 AIR SCW 2766 : AIR 2004 SC 2321 10
P. S. Narasimha, M. Gireesh Kumar, Khwairakpam Nobin Singh, for Appellant; Harish
Beeran, Radha Shyam Jena, for Respondent.
Judgement
2. Appellant is said to have borrowed a sum of Rs.6,02,000/- (Rupees Six Lacs Two
Thousand Only) from the respondent. The said transaction was carried out at Saudi
Arabia. Appellant executed a promissory note on 8.5.1999. Admittedly, the parties were
residing at Saudi Arabia at the relevant time. No part of the cause of action arose within
the jurisdiction of the Court of Subordinate Judge, Attingal. Respondent herein filed a
suit for recovery of the
@page-SC214
aforementioned amount in the Subordinate Court at Attingal. Although both the parties
were residing in Saudi Arabia, Plaintiff filed a suit in the Court of Subordinate Judge,
Attingal for recovery of the said amount sometime in the year 2002. Appellant having
been summoned, appeared in the suit. He, inter alia, raised an issue of lack of territorial
jurisdiction on the part of the said court to entertain the suit. By an Order dated
15.3.2005, the application of the appellant was dismissed by the Ld. Trial Judge holding:
"Admittedly the transaction took place at Riyadh in Saudi Arabia which is beyond the
jurisdiction of this court. According to the defendant since the transaction took place
beyond jurisdiction of this court it lacks territorial jurisdiction to entertain the suit. At the
same time plaintiff would contend that this court has territorial jurisdiction since the
defendant is a resident within the jurisdiction of this court. As per Section 20(a) C.P.C.
every suit shall be instituted in a Court within the local limits of whose jurisdiction the
defendant actually and voluntarily resides or carries on business or personally works for
gain. From the address given in the plaint and from the averments in the plaint it can be
seen that defendant is a resident of Kadinamkulam Village which is within the
jurisdiction of this court. Defendant himself has no case that he is not a resident within
the jurisdiction of this Court. That being so this court has territorial jurisdiction to
entertain the suit. Contention to the contrary raised by the defendant is devoid of any
merit and is liable to be rejected. Issue No. 1 is thus found in favour of the plaintiff."
3. Appellant filed a civil revision thereagainst before the High Court of Kerala which was
marked as CRP No. 820 of 2005. By reason of the impugned judgment, a learned Single
Judge of the said Court relying or on the basis of Section 20 (c) of the Code of Civil
Procedure and upon placing the legislative history of the said provision, opined :
"20. Thus I agree with the learned counsel for the revision petitioner that strictly the court
did not have territorial jurisdiction to entertain the suit on the date of the suit. The
question of the nature of relief that has to be granted to the defendant arises for
consideration now. Even if the suit were to be returned, on admitted facts that has to be
represented to the same court now as admittedly after the filing the suit the
petitioner/defendant is residing permanently, actually and voluntarily in India. Any and
every error will not persuade the court to exercise its revisional jurisdiction. Such
jurisdiction has to be invoked only in aid of justice. I take note that there is no serious
dispute raised about liability or the execution of the promissory note. There is also no
serious contention that if the plaint were returned accepting the plea regarding
jurisdiction, it has to be represented to the same court as by then the petitioner had started
permanent, actual and voluntary residence in India. I am in these circumstances satisfied
that the suit is liable to be considered and disposed of by the court of Subordinate Judge
of Attingal and the same need not be directed to be returned."
4. Mr. P.S. Narasimha, learned counsel appearing on behalf of the appellant in support of
this appeal submitted that the High Court itself having arrived at a finding that the suit
was not maintainable, could not have refused to exercise its revisional jurisdiction.
Although, no oral argument was advanced before us on behalf of the respondents, a
Written Submission has been filed supporting the impugned judgment.
5. The Court undoubtedly, exercises a discretionary jurisdiction in terms of Section 115
of the Code of Civil Procedure. Discretion, however, as is well known must be exercised
in accordance with law and not dehors the same. See Reliance Airport Developers Pvt.
Ltd. v. Airports Authority of India and Ors. [2006 (11) SCALE 208].
6. A suit can be filed only when there exists a cause of action and which have arisen
within the jurisdiction of the Court.
7. Sections 15 and 20 of the Code of Civil Procedure provides for the place where a suit
can be filed. Section 15 mandates that suit shall be instituted in the Court which is
competent to try.
8. The question in regard to the jurisdiction is required to be determined with reference to
the date on which the suit is filed and entertained and not with reference to a future date.
Sections 15 and 19 regulates the filing of the suit at the places where cause of action has
arisen. Section 20 operates subject to the limitation contained in Sections 15 to 19. Place
of residence of the defendant being one of the exceptions thereto. Plaintiff is the dominus
litus, but
@page-SC215
he can file a suit only at one or the other places specified in the Code of Civil Procedure
and not at any place where he desires.
9
. In New Moga Transport Company v. United India Insurance Co. Ltd. and Ors. [AIR
2004 SC 2154], this Court held; 2004 AIR SCW 2379
"19. The intention of the parties can be culled out from use of the expressions only, alone,
exclusive and the like with reference to a particular Court. But the intention to exclude a
Court's jurisdiction should be reflected in clear, unambiguous, explicit and specific terms.
In such case only the accepted notions of contract would bind the parties. The first
appellate Court was justified in holding that it is only the Court at Udaipur which had
jurisdiction to try the suit."
10
. A distinction must be borne in mind between exercise of jurisdiction by a Civil Court

and a Writ Court in this behalf. See M/s. Kusum Ingots and Alloys Ltd. v. Union of India
and another [AIR 2004 SC 2321]. See also Ambika Industries v. Commissioner of
Central Excise [2007 (8) SCALE 488]. 2004 AIR SCW 2766
11
. Ordinarily, the rights and obligations of the parties are to be worked out with reference
to the date of institution of the suit. See Jindal Vijayanagar Steel (JSW Steel Ltd.) v.
Jindal Praxair Oxygen Company Ltd. [2006(8)SCALE 668]. Determination in regard to
maintainability of the suit, it is trite, must be made with reference to the date of the
institution of the suit. If a cause of action arises at a later date, a fresh suit may lie but that
would not mean that the suit which was not maintainable on the date of its institution,
unless an exceptional case is made out therefor can be held to have been validly
instituted. Discretion, as is well known, cannot be exercised, arbitrarily or capriciously. It
must be exercised in accordance with law. When there exists a statute, the question of
exercise of jurisdiction which would be contrary to the provisions of the statute would not
arise. 2006 AIR SCW 5130
12. Application of doctrine of dominus litus is confined only to the cause of action which
would fall within Sections 15 to 18 of the Code of Civil Procedure. It will have no
application in a case where the provision of Section 20 thereof is sought to be invoked.
13. It is one thing to say that the parties had their residences in India but the same would
not mean that a suit could be filed at any of the places where the defendant resides. At all
material times, the parties were at Saudi Arabia. They were residing there only. They had
been working for gain in that country. It is also not a case where under the promissory
note the amount was to be paid in India. There is nothing on record to show that any
demand was made within the State of Kerala and the defendant was under any contractual
obligation to pay the said amount in Kerala where the demand has been communicated.
14. The High Court itself has held that no part of cause of action arose in the State of
Kerala. Respondent has not questioned that part of the order before this Court questioning
the said finding.
15. Respondent, therefore, in our opinion cannot be permitted to raise the said plea before
us for the first time.
16. The contention raised on behalf of the respondent that a part of cause of action not
arise within the jurisdiction of the trial court as the appellant made a commitment of
payment of the amount within the jurisdiction thereof, cannot be accepted for more than
one reason. Firstly, because no such contention had been raised before the High Court.
Secondly, because the High Court itself has arrived at a finding that the learned Trial
Judge had no territorial jurisdiction to entertain the suit. It is also not a case where the
petitioner had been residing within the local limits of the jurisdiction of the court where
the defendant at the time of commencement of the suit was actually or voluntarily
residing or carried on business or personally worked for gain.
17. He, at the material time, had been residing in Saudi Arabia.
18. The material date for the purpose invoking Section 20 of the Code of Civil Procedure
is the one of institution of the suit and not the subsequent change of residence. Change of
residence subsequent to decision of the Court would not confer territorial jurisdiction in
the Court which it did not have.
set aside accordingly. The appeal is allowed. But, in the facts and circumstances of the
case, there shall be no order as to costs.
Appeal allowed.
@page-SC216
AIR 2008 SUPREME COURT 216 "Gopal v. State of Maharashtra"
(From : Bombay)*
Criminal Appeal No. 1428 of 2007 (arising out of SLP (Cri) No. 6738 of 2006), D/- 12
-10 -2007.
Gopal v. State of Maharashtra.
(A) Penal Code (45 of 1860), S.300, Exception 4 - MURDER - CULPABLE HOMICIDE
- Culpable homicide not amounting to murder - For application of Exception 4 to S. 300,
it is not sufficient to show that there was sudden quarrel and there was no premeditation -
It must further be shown that offender has not taken undue advantage or acted in cruel or
unusual manner.
The help of Exception 4 to S. 300 of I.P.C. can be invoked if death is caused (a) without
premeditation, (b) in a sudden fight; (c) without the offender's having taken undue
advantage or acted in a cruel or unsual manner; and (d) the fight must have been with the
person killed. To bring a case within Exception 4 all the ingredients mentioned in it must
be found. It is to be noted that the 'fight' occurring in Exception 4 is not defined in the
IPC. It takes two to make a fight. Heat of passion requires that there must be no time for
the passions to cool down. A fight is a combat between two or more persons whether with
or without weapons. It is not possible to enunciate any general rule as to what shall be
deemed to be a sudden quarrel. It is a question of fact and whether a quarrel is sudden or
not must necessarily depend upon the proved facts of each case. For the application of
Exception 4, it is not sufficient to show that there was a sudden quarrel and there was no
premeditation. It must further be shown that the offender has not taken undue advantage
or acted in cruel or unusual manner. (Para 10)
(B) Penal Code (45 of 1860), S.302, S.304, Part I - MURDER - CULPABLE HOMICIDE
- ASSAULT - Murder or culpable homicide - Proof - Solitary injury - Accused allegedly
dealt blow of wooden log on head of deceased - Assault was made in course of sudden
quarrel - Parties had worked themselves into a fury on account of verbal altercation in
beginning - Accused had given only one blow with wooden log and had not acted in cruel
manner - Exception 4 to S. 300 would apply - Conviction of accused under S. 302
therefore altered to one under S. 304, Part I. (Paras 7, 9, 10, 11)
2003 AIR SCW 3596 : AIR 2003 SC 2855 10
G. Prakash, for the Appellant; Ravindra Keshavrao Adsure, for the Respondents.
* Cri. A. No. 541 of 2003, D/- 25-1-2005 (Bom).
Judgement
2. Challenge in this appeal is to the judgment of the Division Bench of the Bombay High
Court, Aurangabad Bench, upholding the conviction of the appellant for offences
punishable under Section 302 of the Indian Penal Code, 1860 (in short the IPC).
Pandharinath Vaidya (P.W.7), P. S. I. attached to M.I.D.C. Police Station, Jalgaon,
recorded the complaint of Sumanbai (P.W. 1) on l5th June, 2002. On the basis of the said
complaint, an offence vide crime No.136 of 2002, under Section 302 of Indian Penal
Code, 1860 (in short IPC), was registered. Inquest Panchanama came to be drawn in the
presence of Sunanda (P.W.2) of the dead body of Devkabai (hereinafter referred to as
deceased). The dead body was thereafter referred for post-mortem examination and post-
mortem was conducted by Dr. Chaudhari (P.W.6). According to Dr. Chaudhari, the cause
of death was shock due to head injury. P. S. 1. Pandharinath Vaidya, thereafter, drew the
scene of the offence Panchanama in the presence of Sanjay (P.W.3) and seized from the
scene of the offence a wooden log, control soil and blood mixed soil. He thereafter,
recorded the statements of the two minor sons of deceased Devkabai viz. Rahul (P.W.4)
and Sunil (P.W.5). Clothes of deceased Devkabai came to be seized by Panchanama. The
Appellant was arrested and arrest Panchanama was drawn. The clothes, which were on
the person of the appellant, also came to be seized and the same are Article Nos.5 and 6.
The seized property was referred to the Chemical Analyzer at Aurangabad vide
requisition. Further to the completion of investigation, a charge sheet against the
appellant, came to be filed.
4. Prosecution version was as follows:
@page-SC217
Rahul (P.W.4) son of the appellant and deceased Devkabai, stated that the appellant was
unemployed and was addicted to liquor and would pick up quarrels with deceased
Devkabai often. On the day of the incident Rahul (P.W.4) was sleeping on a cot along
with his younger brother Sunil (P.W.5). They were awakened on hearing the noise of
quarrel between the appellant and Devkabai. According to him, at that time, his mother
was cooking and was preparing bread. The appellant dealt a blow of wooden log on her
head, as a result she sustained bleeding injuries. He accordingly went running to call his
maternal aunt Sumanbai (P.W.1). He narrated the incident to her and along with her
immediately rushed back to the house. On seeing Sumanbai (P.W.1), the appellant fled
from the house. Near to the scene of the offence the wooden log Article-3 was lying. He
noticed two bleeding injuries on the head of his mother Devkabai. Devkabai was shifted
to the hospital by Sumanbai (P.W.1) and Sunanda (P.W.2). Devkabai succumbed to her
injuries in the hospital.
5. On the case being committed to the Court of Session, trial Judge framed a charge
against the appellant for offence punishable under Section 302 of Indian Penal Code.The
appellant denied the guilt and claimed to be tried. Prosecution, in its effort to substantiate
the charge, examined eight witnesses. The trial Judge accepted the evidence of the eye
witnesses viz. Rahul (P.W. 4) and Sunil (P.W. 5) and convicted and sentenced the accused
as afore stated.
6. Before the High Court the accused appellant contented that the evidence of PWs. 4 and
5, who were the child witnesses, could not be accepted. In any event offence is not
covered under Section 302 IPC. This plea was resisted by the State by supporting the
judgment of conviction as recorded by the trial court. As noted above, the appeal was
dismissed.
7. The stands taken before the High Court were reiterated. According to the appellant
prosecution version, accepted in toto, goes to show that the assault was made in course of
sudden quarrel and by a piece of wood blow was given and, therefore, the Section 302
IPC has no application, and Exception 4 to Section 300 IPC applies.
8. Learned counsel for the State supported the judgment of the High Court.
9. For bringing in operation of Exception 4 to Section 300 IPC it has to be established
that the act was committed without premeditation, in a sudden fight in the heat of passion
upon a sudden quarrel without the offender having taken undue advantage and not having
acted in a cruel or unusual manner.
10
. The Fourth Exception of Section 300, IPC covers acts done in a sudden fight. The said
exception deals with a case of prosecution not covered by the first exception, after which
its place would have been more appropriate. The exception is founded upon the same
principle, for in both there is absence of premeditation. But, while in the case of
Exception 1 there is total deprivation of self-control, in case of Exception 4, there is only
that heat of passion which clouds men's sober reasons and urges them to deeds which
they would not otherwise do. There is provocation in Exception 4 as in Exception 1; but
the injury done is not the direct consequence of that provocation. In fact Exception 4
deals with cases in which notwithstanding that a blow may have been struck, or some
provocation given in the origin of the dispute or in whatever way the quarrel may have
originated, yet the subsequent conduct of both parties puts them in respect of guilt upon
equal footing. A sudden fight implies mutual provocation and blows on each side. The
homicide committed is then clearly not traceable to unilateral provocation, nor in such
cases could the whole blame be placed on one side. For if it were so, the Exception more
appropriately applicable would be Exception 1. There is no previous deliberation or
determination to fight. A fight suddenly takes place, for which both parties are more or
less to be blamed. It may be that one of them starts it, but if the other had not aggravated
it by his own conduct it would not have taken the serious turn it did. There is then mutual
provocation and aggravation, and it is difficult to apportion the share of blame which
attaches to each fighter. The help of Exception 4 can be invoked if death is caused (a)
without premeditation, (b) in a sudden fight; (c) without the offenders having taken undue
advantage or acted in a cruel or unusual manner; and (d) the fight must have been with
the person killed. To bring a case within Exception 4 all the ingredients mentioned in it
must be found. It is to be noted that the fight occurring in Exception 4 to 2003 AIR
SCW 3596 : AIR 2003 SC 2855
@page-SC218
Section 300, IPC is not defined in the IPC. It takes two to make a fight. Heat of passion
requires that there must be no time for the passions to cool down and in this case, the
parties have worked themselves into a fury on account of the verbal altercation in the
beginning. A fight is a combat between two or more persons whether with or without
weapons. It is not possible to enunciate any general rule as to what shall be deemed to be
a sudden quarrel. It is a question of fact and whether a quarrel is sudden or not must
necessarily depend upon the proved facts of each case. For the application of Exception
4, it is not sufficient to show that there was a sudden quarrel and there was no
premeditation. It must further be shown that the offender has not taken undue advantage
or acted in cruel or unusual manner. The expression undue advantage as used in the
provision means unfair advantage. These aspects have been highlighted in Dhirajbhai
Gorakhbhai Nayak v. State of Gujrat [2003 (5) Supreme 223]. When the factual scenario
is considered in the legal principles indicated above, the inevitable conclusion is that
Exception 4 to Section 300 IPC has application to the facts of the case.
11. In the light of the principles set out above the conviction is to be made under Section
304 Part I IPC and not Section 302 IPC. The conviction is accordingly altered. Custodial
sentence of ten years would meet the ends of justice. The appeal stands partly allowed.
Appeal partly allowed.
AIR 2008 SUPREME COURT 218 "Naresh Kumar Yadav v. Ravindra Kumar"
(From : Patna)*
-10 -2007.
Naresh Kumar Yadav v. Ravindra Kumar and Ors.
(A) Criminal P.C. (2 of 1974), S.438 - ANTICIPATORY BAIL - Anticipatory bail -
'Reason to believe' that applicant may be arrested - Must be founded on Reasonable
grounds - Blanket order that applicant whenever arrested for whichever offence should be
released - Not to be passed.
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 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 some one is going to make an accusation against him in pursuance of
which he may be arrested. Grounds on which the belief on the applicant is based that he
may be arrested in non-bailable 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 the relief sought. The
provisions cannot be invoked after arrest of the accused. A belief an 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. (Para
15)
Normally a direction shoud not be issued 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 evey 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. (Paras 5, 15)
(B) Criminal P.C. (2 of 1974), S.207, S.208, S.438 - DOCUMENTS - ANTICIPATORY
BAIL - Case diary - Unauthorised access - Reference to several positions in case diary at
hearing of anticipatory bail application - Court to take serious note. (Para 24)
(C) Criminal P.C. (2 of 1974), S.438, S.439 - ANTICIPATORY BAIL - Anticipatory bail -
Power to grant is extraordinary power - To be exercised in exceptional cases -
Anticipatory bail should be granted for limited duration only - Otherwise provision for
regular bail after arrest in S. 439 would be rendered redundant. (Paras 6, 14)
@page-SC219
2004 AIR SCW 7116 : AIR 2005 SC 498 (Expln.) 11, 13
(2004) 7 SCC 558 11, 13
1996 AIR SCW 531 : AIR 1996 SC 1042 : 1996 Cri LJ 1368 9, 11, 13, 14
1996 (7) Scale 20 10
AIR 1980 SC 785 : 1980 Cri LJ 426 12
AIR 1980 SC 1632 : 1980 Cri LJ 1125 6
AIR 1977 SC 366 : 1977 Cri LJ 225 6
AIR 1964 SC 286 : 1964 (1) Cri LJ 167 (Ref.) 23
Sunil Kumar, Rajiv Shankar Dwivedi and Ajay Choudhary, for Appellants; P. S. Mishra
and Ranjit Kumar, Sr. Advocate, Amit Pawan, Gopal Singh and Manish Kumar, for
Respondents.
* Cri. Misc. Nos. 34337 with 35682 and 34139 of 2005, D/- 10-7-2006 (Pat.).
Judgement
2. Challenge in this appeal is by the informant to the order passed by a learned Single
Judge of the Patna High Court disposing of three petitions filed by respondent Nos. 1, 2
and 3. By the said petitions, the prayer for protection in terms of Section 438 of the Code
of Criminal Procedure, 1973 (in short the Code') was accepted.
3. Learned counsel for the appellant submitted that while allowing the protection in terms
of Section 438 of the Code the High Court has not kept in view the parameters indicated
by this Court for granting such protection. Even otherwise, the High Court has pre-
empted the framing of charges. It is also pointed out that the High Court has committed
several errors on facts, for example it observed that the accused persons were not named
in the first information report (in short the 'FIR') though they were specifically named in
the FIR.
4. Learned counsel for the respondents on the other hand submitted that without any
material to show that the accused persons were involved in any conspiracy to do away
with the deceased, false implications have been made with mala fide intent. The deceased
was involved in several cases. It was submitted that the High Court had taken note of the
position that the materials so far as the respondents are concerned for alleged conspiracy
were contained in Paragraphs 39, 41 and 42 of the case diary. It is submitted that learned
counsel for the informant before the High Court had also conceded that they contained
the materials relating to the accused persons.
5. As rightly contended by learned counsel for the appellant, granting blanket protection
under Section 438 of the Code is not envisaged. There is also substance in the submission
of learned counsel for the appellant that the High Court has wrongly noted that the
accused persons were not named in the FIR, in fact they were specifically named.
6
. The facility which Section 438 of the Code gives is generally referred to as 'anticipatory
bail'. This expression which was used by the Law Commission in its 41st Report is
neither used in the section nor in its marginal note. But the expression 'anticipatory bail' is
a convenient mode of indication that it is possible to apply for bail in anticipation of
arrest. Any order of bail can be effective only from the time of arrest of the accused.
Wharton's Law Lexicon explains 'bail' as 'to set at liberty a person arrested or imprisoned,
on security being taken for his appearance.' Thus bail is basically release from restraint,
more particularly the custody of Police. The distinction between an ordinary order of bail
and an order under Section 438 of the Code is that whereas the former is granted after
arrest, and therefore means release from custody of the Police, the latter is granted in
anticipation of arrest and is therefore effective at the very moment of arrest. (See : Gur
Baksh Singh v. State of Punjab 1980 (2) SCC 565). Section 46(1) of the Code, which
deals with how arrests are to be made, provides that in making an arrest the Police Officer
or other person making the same "shall actually touch or confine the body of the person
to be arrested, unless there be a submission to the custody by word or action". The order
under Section 438 of the Code is intended to confer conditional immunity from the touch
as envisaged by Section 46(1) of the Code or any confinement. This Court in Balachand
Jain v. State of Madhya Pradesh (AIR 1977 SC 366) has described the expression
'anticipatory bail' as misnomer. It is well-known that bail is ordinary manifestation of
arrest, that the Court thinks first to make an order is that in the event of arrest AIR
1980 SC 1632
@page-SC220
a person shall be released on bail. Manifestly there is no question of release on bail unless
the accused is arrested, and therefore, it is only on an arrest being effected the order
becomes operative. The power exercisable under Section 438 is somewhat extraordinary
in character and it is 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 then power is to be
exercised under Section 438. The power being of important nature it is entrusted only to
the higher echelons of judicial forums, i.e. the Court of Session or the High Court. It is
the power exercisable in case of an anticipated accusation of non-bailable offence. The
object which is sought to be achieved by Section 438 of the Code is that the moment a
person is arrested, if he has already obtained an order from the Court of Session or High
Court, he shall be released immediately on bail without being sent to jail.
7. Sections 438 and 439 operate in different fields. Section 439 of the Code reads as
follows :
"439. (1) A High Court or Court of Session may direct-
(a) that any person accused of an offence and in custody be released on bail, and if the
offence is of the nature specified in sub-section (3) of Section 437, may impose any
condition which it considers necessary for the purposes mentioned in that sub-section;
(b) that any condition imposed by the Magistrate when releasing any person on bail be set
aside or modified."
(Underlined for emphasis)
8. It is clear from a bare reading of the provisions that for making an application in terms
of Section 439 of the Code a person has to be in custody. Section 438 of the Code deals
with "Direction for grant of bail to person apprehending arrest".
9
. In Salauddin Abdulsamad Shaikh v. State of Maharashtra (AIR 1996 SC 1042) it was

observed as follows : 1996 AIR SCW 531
"Anticipatory bail is granted in anticipation of arrest in non-bailable cases, but that does
not mean that the regular court, which is to try the offender, is sought to be bypassed and
that is the reason why the High Court very rightly fixed the outer date for the continuance
of the bail and on the date of its expiry directed the petitioner to move the regular court
for bail. That is the correct procedure to follow because it must be realised that when the
Court of Session or the High Court is granting anticipatory bail, it is granted at a stage
when the investigation is incomplete and, therefore, it is not informed about the nature of
evidence against the alleged offender. It is, therefore, necessary that such anticipatory bail
orders should be of a limited duration only and ordinarily on the expiry of that duration or
extended duration the Court granting anticipatory bail should leave it to the regular Court
to deal with the matter on an appreciation of evidence placed before it after the
investigation has made progress or the charge-sheet is submitted".
(Emphasis supplied)
10. In K. L. Verma v. State and Anr. (1996 (7) SCALE 20) this Court observed as follows
-:
"This Court further observed that anticipatory bail is granted in anticipation of arrest in
non-bailable cases, but that does not mean that the regular court, which is to try the
offender, is sought to be bypassed. It was, therefore, pointed out that it was necessary that
such anticipatory bail orders should be of a limited duration only and ordinarily on the
expiry of that duration or extended duration the court granting anticipatory bail should
leave it to the regular court to deal with the matter on an appreciation of evidence placed
before it after the investigation has made progress or the charge-sheet is submitted. By
this, what the Court desired to convey was that an order of anticipatory bail does not
enure till the end of trial but it must be of limited duration as the regular court cannot be
bypassed. The limited duration must be determined having regard to the facts of the case
and the need to give the accused sufficient time to move the regular court for bail and to
give the regular court sufficient time to determine the bail application. In other words, till
the bail application is disposed of one way or the other the Court may allow the accused
to remain on anticipatory bail. To put it differently, anticipatory bail may be granted for a
duration which may extend to the date on which the bail application is disposed of or
even a few days thereafter to enable the accused persons to move the higher Court, if they
so desire." (Emphasis supplied)
@page-SC221
11
. In Nirmal Jeet Kaur v. State of M.P. and Another (2004 (7) SCC 558) and Sunita Devi v.
State of Bihar and Anr. Criminal Appeal arising out of SLP (Crl.) No. 4601 of 2003
disposed of on 6.12.2004 certain grey areas in the case of K. L. Verma's case (supra) were
noticed. The same related to the observation "or even a few days thereafter to enable the
accused persons to move the Higher Court, if they so desire". It was held that the
requirement of Section 439 of the Code is not wiped out by the above observations.
Section 439 comes into operation only when a person is "in custody". In K. L. Verma's
case (supra) reference was made to Salauddin's case (supra). In the said case there was no
such indication as given in K. L. Verma's case (supra), that a few days can be granted to
the accused to move the higher Court if they so desire. The statutory requirement of
Section 439 of the Code cannot be said to have been rendered totally inoperative by the
said observation. Reported in 2004 AIR SCW 7116
1996 AIR SCW 531
12. In view of the clear language of Section 439 and in view of the decision of this Court
in Niranjan Singh and Anr. v. Prabhakar Rajaram Kharote and Ors. (AIR 1980 SC 785),
there cannot be any doubt that unless a person is in custody, an application for bail under
Section 439 of the Code would not be maintainable. The question when a person can be
said to be in custody within the meaning of Section 439 of the Code came up for
consideration before this Court in the aforesaid decision.
13
. After analyzing the crucial question is when a person is in custody, within the meaning
of Section 439 of the Code, it was held in Nirmal Jeet Kaur's case (supra) and Sunita
Devi's case (supra) that for making an application under Section 439 the fundamental
requirement is that the accused should be in custody. As observed in Salauddin's case
(supra) the protection in terms of Section 438 is for a limited duration during which the
regular Court has to be moved for bail. Obviously, such bail is bail in terms of Section
439 of the Code, mandating the applicant to be in custody. Otherwise, the distinction
between orders under Sections 438 and 439 shall be rendered meaningless and redundant.
2004 AIR SCW 7116
1996 AIR SCW 531
14
. If the protective umbrella of Section 438 is extended beyond what was laid down in
Salauddin's case (supra) the result would be clear bypassing of what is mandated in
Section 439 regarding custody. In other words, till the applicant avails remedies up to
higher Courts, the requirements of Section 439 become dead letter. No part of a statute
can be rendered redundant in that manner. 1996 AIR SCW 531
15. 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' that he
may be arrested in a non-bailable offence. Use of the expression 'reason to believe' shows
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 some one is going to make an accusation against him in
pursuance of which he may be arrested. Grounds on which the belief on the applicant is
based that he may be arrested in non-bailable 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 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
@page-SC222
and all kinds of accusations likely or unlikely. On the facts of the case, considered in the
background of 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
. These aspects have been highlighted in Adri Dharan Das v. State of West Bengal (2005
(4) SCC 303). 2005 AIR SCW 1013
17. In view of the principles of law as set out above and the factual scenario involved, we
direct that within a period of four weeks from today the respondents shall surrender
before the concerned Court and shall seek regular bail.
18. We make it clear that we are not expressing any opinion on the merits of the case.
When the bail application is moved in terms of Section 439 of the Code before the
concerned Court the same shall be considered in its proper perspective in accordance
with law. If an application for bail is moved, the concerned Court would do well to
dispose it of on the day it is filed. Learned counsel appearing for the State has undertaken
that all relevant records shall be produced before the Court dealing with the bail
application and no adjournment shall be asked for on the ground of non-availability of
records if the accused-respondents intimate the date on which they propose to surrender
three days in advance.
19. It is to be noted that apprehension of the appellant that framing of charge pre-empted
is based on the following observations of the High Court :
"If upon the completion of the investigation charge sheet is submitted against the
petitioners on material other than noticed presently, the petitioners shall have their
remedies in accordance with law."
20. Sofar as filing of the charge sheet and framing of charge concerned, needless to say
that charge sheet shall be submitted on the basis of materials collected during
investigation and while considering the charge sheet filed the concerned Court shall take
note of the relevant factors and decide as to whether on the materials on record framing
of charge against the accused persons is warranted. We make it clear that we have
expressed no opinion in that regard.
21. Before we part with the case, we feel it necessary to indicate that both the accused
and the informant referred to several portions in the case diary.
22. Sections 207 and 208 of the Code deal with documents which are commonly known
as police papers, which are to be supplied to the accused. The said sections read as
follows :
"Section 207- Supply to the accused of copy of police report and other documents : In
any case where the proceeding has been instituted on a police report, the Magistrate shall
without delay furnish to the accused, free of cost, a copy of each of the following - :-
(i) the police report;
(ii) the first information report recorded under Section 154;
(iii) the statements recorded under sub-section (3) of Section 161 of all persons whom the
prosecution proposes to examine as its witnesses, excluding therefrom any part in regard
to which a request for such exclusion has been made by the police officer under sub-
section (6) of Section 173;
(iv) the confessions and statements, if any, recorded under Section 164;
(v) any other document or relevant extract thereof forwarded to the Magistrate with the
police report under sub-section (5) of Section 173 :
Provided that the Magistrate may, after perusing any such part of a statement as is
referred to in clause (iii) and considering the reasons given by the police officer for the
request, direct that a copy of that part of the statement or of such portion thereof as the
Magistrate thinks proper, shall be furnished to the accused :
Provided further that if the Magistrate is satisfied that any document referred to in clause
(v) is voluminous, he shall, instead of furnishing the accused with a copy thereof, direct
that he will only be allowed to inspect it either personally or through pleader in Court.
Section 208 Supply of copies of statements and documents to accused in other cases
triable by Court of Session- Where, in a case instituted otherwise than on a police report,
it appears to the Magistrate issuing process under Section 204 that the offence is triable
exclusively by the Court of Session, the Magistrate shall without delay furnish to the
accused, free of cost, a copy of each of the following :-
(i) the statements recorded under Section 200 or Section 202, or all persons
@page-SC223
examined by the Magistrate;
(ii) the statements and confessions, if any, recorded under Section 161 or Section 164;
(iii) any documents produced before the Magistrate on which the prosecution proposes to
rely :
Provided that if the Magistrate is satisfied that any such document is voluminous, he
shall, instead of furnishing the accused with a copy thereof, direct that he will only be
allowed to inspect it either personally or through pleader in Court."
23
. The documents in terms of Sections 207 and 208 are supplied to make the accused
aware of the materials which are sought to be utilized against him. The object is to enable
the accused to defend himself properly. The idea behind the supply of copies is to put him
on notice of what he has to meet at the trial. The effect of non-supply of copies has been
considered by this Court in Noor Khan v. State of Rajasthan (AIR 1964 SC 286) and
Shakila Abdul Gafar Khan (Smt.) v. Vasant Raghunath Dhoble and Anr. (2003 (7) SCC
749). It was held that non-supply is not necessarily prejudicial to the accused. The Court
has to give a definite finding about the prejudice or otherwise. Even the supervision notes
cannot be utilized by the prosecution as a piece of material or evidence against the
accused. If any reference is made before any court to the supervision notes, as has noted
above they are not to be taken note of by the concerned court. As many instances have
come to light when the parties, as in the present case, make reference to the supervision
notes, the inevitable conclusion is that they have unauthorized access to the official
records. 2003 AIR SCW 5343
24. Further, it is baffling to note that the accused and informant referred to particular
positions of case diary. At the stage the bail applications were heard by the High Court,
legally they could not have been in a position to have access to the same. The papers
which are to be supplied to the accused have been statutorily prescribed. The Courts
should take serious note when the accused or the informant refers to the case diary to
buttress a stand.
25. The appeal is disposed of accordingly.
Order accordingly.
AIR 2008 SUPREME COURT 223 "Balakrushna Behera v. Satya Prakash Dash"
(From : Orissa)*
-2007.
Balakrushna Behera and Anr. v. Satya Prakash Dash.
Contempt of Courts Act (70 of 1971), S.12 - CONTEMPT OF COURT - EQUALITY IN
PUBLIC EMPLOYMENT - WRITS - UNIVERSITY - Disobedience of order of Court -
Order of Court to complete selection process for post of lecturer and to publish results
complied with by University - However, candidate could not be appointed in view of
second proviso to Statute 4(1) and also subsequent abolition of post - Candidate cannot
claim right to post - No question of contempt.
Constitution of India, Art.16, Art.226.
Utkal University Act (20 of 1966), S.22.
Utkal University of Culture First Statute (2001), Statute 4(3).
Where the direction of the High Court to complete the selection process for post of
lecturer and to publish the results, were followed by University. However, the respondent
was not appointed to the post as in view of second proviso to Statute 4(1) of the Statutes
of the University no appointment could be made without the prior approval of the State
Government and the State Government having subsequently abolished the posts in
question, the respondent cannot claim a right to the post, nor is there any contempt of
Court. Moreover the respondent even after selection has no indefeasible right to be
appointed on the post because a selection does not confer a right of getting appointment
which can be enforced by filing a writ petition under Article 226 of the Constitution.
Since the respondent has only an inchoate right to the post, there is no question of
contempt. Moreover, the initial direction of the High Court was to complete the selection
process and publish the results. That was done by the appellants herein. There was no
order of the High Court directing that the respondent be appointed. (Paras 10, 11)
@page-SC224
Janaranjan Das and Swetaketu Mishra, for Appellants; B. K. Pattnaik, Rutwik Panda and
Jana Kalyan Das, for Respondent.
* Misc Case No. 151 of 2005, D/- 24-1-2006 and 27-1-2006 (Orissa).
Judgement
JUDGMENT :- Heard learned counsel for the parties.
2. Leave granted.
3. This appeal is directed against the judgment and orders dated 24-1-2006 and 27-1-2006
of the High Court of Orissa whereby contempt proceedings were initiated against the
appellants herein and they were directed to be present in Court for further proceeding in
the matter of Contempt.
4. The brief facts necessary for the disposal of the present appeal are that the respondent
herein filed a writ petition against the Utkal University of Culture and sought a
mandamus that the University be directed to complete the entire selection process for the
post of Lecturer in South and South East Asian Studies. The Division Bench of the High
Court vide order dated 10-3-2005 disposed of the writ petition and directed that "it is a fit
case where the opposite parties should be directed by issuing a writ in the nature of
mandamus to complete the entire process of selection and publish the result." The Court
accordingly issued a writ in the nature of mandamus commanding opposite parties 1 and
2 to complete the entire process of selection and publish the result in respect of the post
of Lecturer in South and South East Asian Studies within a period of two months from
the date of communication of the said order. It was further observed that "it was needless
to mention that after declaration of the result, consequences to follow by opposite parties
1 and 2".
5. After passing of the said order, the same allegedly having not been complied with by
the University authorities within the time stipulated, a contempt petition was filed by the
respondent herein (writ petitioner before the High Court). In reply to the contempt
petition, the appellants herein (the Registrar and Vice-Chancellor of the University) stated
that in view of Statute 4(3) of the Utkal University of Culture First Statute, 2001 since the
Board of Management differed from the recommendation of the Selection Committee, the
matter had to be referred to the Chancellor of the University. In the meantime, the High
Court issued notice for contempt of Court for alleged disobedience of its judgment dated
10-3-2005, but in view of the results having been published, the contempt proceedings
were dropped. It is alleged that despite the selection of the respondent herein, no
appointment letter was issued to the respondent. Hence, he filed yet another contempt
petition on which the impugned orders dated 24-1-2006 and 27-1-2006 were passed. By
the said orders the Vice-Chancellor and Registrar of the University were directed to be
personally present in Court.
6. The plea taken by the appellants herein in the reply to show cause was that as per the
second proviso to Statute 4(1) of the Utkal University of Culture First Statute, 2001, all
appointments have to be approved by the State Government. The secnd proviso to Statute
4(1) of the Utkala University of Culture First Statute, 2001 reads as under :
"Provided further that the appointment of all the teaching faculties including Professors,
Deans, Experts and Consultants are subject to availability of funds and on prior approval
of administrative department and Finance Department of State Government."
7. The State Government took the stand that in view of the restructuring/reorganizing of
the whole set up the posts of Lecturer in South and South East Asian Studies have been
abolished and therefore the respondent herein could not be appointed to the said post. The
appellants herein of course wrote to the State Government for grant of approval for their
appointment and funds for the said posts but the State Government declined to grant
approval and abolished the posts and consequently no appointments could be made to the
said post. Thereafter, the Division Bench by the impugned order dated 24-1-2006 directed
the Registrar and Vice-Chancellor of the University (appellants herein) to be present in
Court on 27-1-2006.
8. Aggrieved against the impugned orders dated 24-1-2006 and 27-1-2006 passed by the
Division Bench of the High Court, the present appeal by special leave has been filed.
9. We have heard learned counsel for the parties and perused the record.
10
. The first and foremost question is whether the Court can direct the State Government by
a writ of mandamus to appoint a person against a post which has been abolished by the
State Government. Our answer to this question is in the negative. The respondent even
after selection has no 1991 AIR SCW 1583
@page-SC225
inde-feasible right to be appointed on the post because a selection does not confer a right
of getting appointment which can be enforced bny filing a writ petition under Article 226
of the Constitution. In this view we are supported by a Constitution Bench decision of
this Court in the case of Shankarsan Dash v. Union of India, (1991) 3 SCC 47. Since the
respondent has only an inchoate right to the post, there is no question of contempt against
the appellants herein. The initial direction of the High Court was to complete the
selection process and publish the results. That was done by the appellants herein. There
was no order of the High Court directing that the respondent be appointed. Hence we fail
to see how there is any contempt of Court.
11. Subsequently some developments took place and the State Goverment abolished the
posts in question and re-organised the set up of the University. In the facts and
circumstances of the case, in our view the High Court could not have directed the
initiation of contempt proceedings againat the appellants when the respondent has no
perfect or complete right to seek a mandamus for appointment to the post. The appellants
have complied with the order of the Division Bench of the High Court and completed the
process of selection and published the results within the time granted by the High Court.
In view of second proviso to Statute 4(1) of the Statutes of the University, since no
appointment could be made without the prior approval of the State Government, and the
State Government having abolished the posts in question, the respondent cannot claim a
right to the post, nor is there any contempt of Court.
12. In view of the aforegoing reasons, we are of the view that no contempt is made out
against the appellants herein and the orders dated 24-1-2006 and 27-1-2006 are
accordingly set aside and the notice of contempt against the appellants is discharged.
13. The appeal is allowed. No order as to costs.
Appeal allowed.
AIR 2008 SUPREME COURT 225 "Niyamat Ali Molla v. Sonargon Hsg Co-op. Society
Ltd."
(From : Calcutta)*
-2007.
Niyamat Ali Molla v. Sonargon Housing Co-operative Society Ltd. and Ors.
(A) Civil P.C. (5 of 1908), S.152, S.151 - DECREE - INHERENT POWERS -
AMENDMENT - Correction of decree - Provision under S. 152 not to be construed in
pedantic manner - Decree can be corrected by Court under S. 151 as well as under S. 152
- Statements in body of plaint sufficiently described suit lands - Correction of schedule of
property in decree accordingly by executing Court - No interference.
Code of Civil Procedure recognises the inherent power of the Court. It is not only
confined to the amendment of the judgment or decree as envisaged under S. 152 of the
Code but also inherent power in general. The Courts also have duty to see that the records
are true and present the correct state of affair. There cannot, however, be any doubt
whatsoever that the Court cannot exercise the said jurisdiction so as to review its
judgment. It cannot also exercise its jurisdiction when no mistake or slip occurred in the
decree or order. This provision should, however, not be construed in a pedantic manner. A
decree may, therefore, be corrected by the Court both in exercise of its power under S.
152 as also under S. 151. Such a power of the Court is well recognised. (Para 19)
In the instant case the plaintiff, filed suit for possession and declaration of title. The
defendant did not file written statement however, examined himself as a witness. He did
not prefer any appeal against the said judgment and decree. The said decree indisputably
has been affirmed up to Supreme Court. Subsequently plaintiff filed application for
amendment of the plaint as also of the decree containing the Schedule describing the said
property. The objection by the defendant that the application for amendment, if allowed,
would give rise to substitution of one property in place of another, particularly, having
regard to the change in the J. L. number was rejected by executing Court and said order
upheld by the High Court.
@page-SC226
Held, it is not a case where the defendants could be said to have been misled. It is now
well settled that the pleadings of the parties are to be read in their entirety. They are to be
construed liberally and not in a pedantic manner. It is also not a case where by reason of
an amendment, one property is being substituted by the other. If the Court has the
requisite power to make an amendment of the decree, the same would not mean that it
had gone beyond the decree or passing any decree. The statements contained in the body
of the plaint have sufficiently described the suit lands. Only because some blanks in the
schedule of the property have been left, the same, by itself, may not be a ground to
deprive the plaintiffs from the fruit of the decree. If the defendant did not file any written
statement, he did so at its own peril. Admittedly, he examined himself as a witness in the
case. He, therefore, was aware of the issues raised in the suit. It is stated that an
Advocate-Commissioner has also been appointed. Therefore, only because the JL
numbers in the schedule was missing, the same by itself would not be a ground to
interfere with the order of the executing Court in allowing correction of schedule of
property in decree. AIR 1952 Cal 86, Approved. (Para 26)
(B) Civil P.C. (5 of 1908), O.21, R.97, R.99 - EXECUTION - DECREE - Execution of
decree - Impleadment of party - Applicants not being parties to suit are not bound by
decree - They would be entitled to take recourses to such remedies which are available to
them in law including filing of an application under O. 21, Rr. 97 and 99, if any occassion
arises therefor. (Para 27)
2003 AIR SCW 5488 : AIR 2003 SC 4179 25
2002 AIR SCW 4853 : AIR 2003 SC 351 23
2002 AIR SCW 5308 : AIR 2003 SC 643 24
2001 AIR SCW 1013 : AIR 2001 SC 1084 25
1999 AIR SCW 663 : AIR 1999 SC 1031 25
AIR 1967 SC 1440 20
AIR 1962 SC 633 20
AIR 1952 Cal 86 (Approved) 12, 21
AIR 1948 Mad 13 21
AIR 1935 Oudh 92 21
AIR 1935 Rang 522 21
AIR 1934 All 100 (2) 21
AIR 1934 Oudh 352 21
AIR 1933 All 102 21
AIR 1919 All 264 21
(1885) 30 Ch 239 20, 21, 23
(1879) 12 Ch D 88 21
Chimony Khaladkar, Bimal Chakroborty, Ms. Rukhsana Choudhury, for Appellant;
Jaideep Gupta, Sr. Advocate, Rauf Rahim, Dipak Bhattacharya, S. Ray, B. K. Paul, Ms.
Suruchi Agarwal, for Respondents.
* Revn. Appln. being C. O. No. 1622 of 2006, D/- 16-5-2006 (Cal).
Judgement
2. Respondent No.1 filed a suit for declaration and possession as also for damages in the
Court of Civil Judge (Senior Division) at Baruipur, 24-Parganas (South) in the State of
West Bengal. An ex-parte decree was passed against the appellant herein who was
arrayed as defendant No.6 in the suit. In the plaint, the suit property was described as
under :
"That within the township area 2.09 acres comprising of R.S. Dag Nos.340, 341, 342, 343
and 344 of Mouza Tegharia morefully described in the Schedule A hereunder written and
hereinafter referred to as the suit property, is situated.
3. Plaintiff claimed title over the suit property on the basis of purchases made under two
registered deeds of conveyances dated 27.1.1968 comprising of 12 shares of Plot No.340,
341, 342 and 343 of Mouza Tegharia admeasuring 1.39 acres from defendant No.1 and
his three sisters. However, in the Schedule of Property, described in the schedule to the
plaint, it was stated :
"All that acres of land now developed for Housing Township appertaining to Rs.Dag No.
under Khatian Nos. - - - of Mouza Tegharia, J.L. No.6, lying and situate within
Sonargaon Park, P.S. Sonarpore, District South 24 Parganas (South)."
4. A decree was passed wherein again the same Schedule of Property was described as the
property involved in the suit. It was directed :
The plaintiff do get a decree for declaration of title and permanent injunction against the
defendants in respect of the suit property.
It is declared that the plaintiff has right, title and interest in the suit property.
Defendants are restrained by an order of permanent injunction from disturbing or
interfering with the peaceful possession of
@page-SC227
the plaintiff over the suit property in any way or in any manner whatsoever. The other
prayer of the plaintiff is refused in view of my discussion made in the body of judgment.
5. Appellant herein did not file any written statement in the said suit. He, however,
examined himself as a witness. He did not prefer any appeal against the said judgment
and decree. The said decree indisputably has been affirmed upto this Court.
6. An application for amendment of the plaint as also of the decree containing the
Schedule describing the said property was, however, filed on 27.6.2000, inter alia, stating
:
"That both parties went on trial and adduced both oral and documentary evidence in
respect of the suit property and there was never any dispute as to the identity of the suit of
the suit property.
That at the time of drafting of the plaint through inadvertence the total area of the land,
R.S. Plot Number and Khatian Number have not been mentioned in the Schedule of the
plaint through inadvertence.
That it is an accidental error.
That it is a clear case of misdescription of the suit property and no prejudice will be
caused to the defendant if the plaint and the decree are amended at this stage."
7. On the said averments, the proposal for amendment which was made is as under :
"In the Schedule of the Suit Property described in the plaint in the 1st line after the word
"all that" the figure "2.09" shall be inserted.
In the schedule of the suit property described in the plaint in the 2nd line after the word
R.S. Dag Number the following plot number 340, 341, 342, 343 and 344 shall be
inserted.
In the schedule of the suit property described in the plaint in the 3rd line after the word
Khatian Numbers following Khatian Number shall be inserted "80, 310, 83".
8. An objection was filed to the said application for amendment by the appellant, inter
alia, contending :
"Whereas after decree in the suit, plaintiff filed an application under Section 151 of CPC
stating that the plaintiff claimed title on the basis of two deeds of conveyances by
purchase from heir of Dilbahar Molla and Malekjan Bibi wife of Dolbahar Molla with the
prayer to add different Schedule of property with a new case, which is not permissible in
law. As such plaintiffs application is liable to be dismissed summarily."
9. It was urged that the application for amendment, if allowed, would give rise to
substitution of one property in place of another, particularly, having regard to the change
in the J. L. number.
10. The said objection of the appellant was, however, rejected by the learned Executing
Court. The said order has been upheld by the High Court.
11. Mr. Chinmoy Khaladkar, learned counsel appearing for the appellant, would submit
that having regard to the fact that the sisters of the defendant No.1 who were owners of
the property had not been impleaded as parties in the suit and an ex parte decree was
obtained by the respondent against the appellant herein, an irreparable injury would be
caused to him if the application for amendment is allowed.
12. Mr. Jaideep Gupta, learned senior counsel appearing on behalf of the respondents, on
the other hand, submitted that the Court's power to amend a decree is not only confined to
a clerical or arithmetical error but also the pleadings of the parties, if a mistake had
occurred in the pleadings and the same is continued. Reliance in this behalf has been
placed on Bela Debi v. Bon Behary Roy and Ors. [AIR 1952 Cal 86]. It was furthermore
urged that the suit being for enforcing a sale deed, the Dag and Khatian number stated in
the plaint was determinative as regards identification of the property. J. L. number, it was
urged, has nothing to do with the identification of the property or the village in which it is
situated. It was pointed out that the plots in question had also been ordered to be mutated
in favour of the respondent. Even an Advocate-Commissioner had also been appointed
who has also submitted a report.
13. In this appeal an application for impleadment has been filed by one Niyamat Ali
Molla. It has been contended therein that the said applicant was not impleaded as a party
in the proceedings although he had been in possession of the property in question. It was
submitted that the applicant has been seriously prejudiced by reason of the impugned
order as he had acquired lawful interest in J.L. No.52 appertaining to
@page-SC228
R.S. Khatian No.80, R.S. Dag No.340, 341 and 342 which had been recorded in his name
in the finally published revisional survey settlement record of rights. In the said
application, it has also been claimed that the applicants had been in possession of the said
property.
14. Respondent is said to have purchased the property by reason of two sale deeds of sale
dated 27.1.1968. Properties described in the first deed of sale are as under :
"ka' schedule particulars of the property
1. In the District of 24 Parganas is under Police Station and sub-registry office Sonarpur,
Pargana Medanmalla at Mouza Teghari, village, included in Touzi No.294 having Ryoti
Mukarari right, under Khatian No.80, out of 1.36 decimals of land in one jama bearing
annual rent of Rs.5-10-10 pics 1.02 decimals of land bearing proportionate rent of
Re.0.26 paise J.L. No.52 Re.Sur No.126 Khatian No.8 owner West Bengal Govt. There is
no other co-sharer. In dag No.340 three hundred forty .79 decimals N other Mouza. In
dag No.342 three hundred forty two .24 decimals N Farez
Khatian No. - 81
In dag No.341 three hundred forty one .33 decimals N Alta Bibi
Total 1.36 one acre thirty six decimals.
Out of that in 12 annas share 1.02 one Acre two decimals of land
2. In the said Police Station at the said Mouza included in the said Touzi, under the said
owner, having Ryot Stitiban right, under part Khatian 310 from Khatian No.200 out of 19
decimals in one plot . 37 decimal being proportionate annual rent .75 paise. There is no
other co-sharer. In dag No.343 three hundred forty three out of 49 decimals Danga land
37 decimals of land. There is no other co-sharer.
15. In the second deed of sale, the property of transferor has been described as :
" 'ka' schedule particulars of the property
1. In the District of 24 Parganas under Police Station and sub registry office -Sonarpur,
Pargana Medanmalla, at Mouza - Teghari, village, included in Touzi No.294 Re.Sur
No.126, J.L. No. - 52 having Ryoti Mokarari right under Khatian No.80, out of 1.36
decimals of land in our jama bearing annual rent of Rs.5-10-10 pies 34 decimals of land
bearing proportionate rent of Re.1.42 paise owner West Bengal Govt. There is no other
cosharer.
In dag No.340 three hundred forty .79 decimals N other Mouza
In dag No.342 three hundred forty two .24 decimals N Farez.
Khatian No. - 81
In dag No.341 three hundred forty one .33 decimals N Alta Bibi
Total 1.36 one Acre thirty six decimals
Out of that in 4 annas share .34 thirty four decimals of land.
2. In the said Police Station, at the said Mouza, included in the said Touzi under the said
owner, having Ryot Stitiban Right, under part Khatian 310 from Khatian No.200 twelve
decimals of land bearing annual rent of .25 paise. There is no other cosharer.
In dag No.343 three hundred forty three .49 decimals Danga land out of that in 4 annas
share 12 decimals of land
under two khatians total 46 decimals forty six decimals
Particulars of property mentioned in Schedule 'kha'
In the District of 24 Parganas, under Police Station and sub-registry - Sonarpur, Pargana -
Medan Malla, at Mouza Teghari village included in Touzi No. - 294, J.L. No. 52 Re. Sur
No.126, having Korfa possessory Right, in one jama under Khatian No. - 83, .24 twenty
four decimals of land bearing annual jama of Rs.14.00 owner West Bengal Government.
There is no other co-sharer.
In dag No.344 three hundred forty four Danga 24 twenty four decimals N. Sudhir and
others.
In two schedules total land .70 seventy decimals.
The Society will bear the cost of Registration of this Deed of Sale.
16. Respondent herein had filed an application in the said suit for injunction. An affidavit
in opposition thereto was filed therein by the defendant No.4 stating it was stated :
"That before dealing with the plaintiffs allegation paragraphwise, these defendants state
the facts of this case as follows :
a) That .79 dec. in Dag No.340, .33 dec, in Dag No.341, .24 dec, in Dag No.342 .49 dec
in Dag No.343 originally belonged to
@page-SC229
Alta Bibi and the same has been correctly recorded in C.S. R.O.R. from her the same was
inherited by Bibijan Bibi wife of Dilbahar Molla, During his life time said Bibijan Bibi
transferred .79 dec in Dag No.340, .24 in Dag No.342 and .33 in Dag No.341 by an oral
Heba in favour of Dilbahar Molla and in terms with the said oral Heba, the possession of
the said properties were delivered in favour of said Dilbahar Molla, remain in possession
of the said properties as the absolute owner thereof denying everybody elses right, title
and interest thereon. In the R.S. R.O.R., the said Dilbahar Molla has been recorded as
Rayat Mokrari Sattiban. In respect of .49 dec in Dag No.343, said Dilbahar inherited
from said Bibijan Bibi his wife on her demise 1/4th share under the Mohammedan law
and thus said Dilbahar became owner in respect of .12 dec. The same is also correctly
recorded in R.S. R.O.R.
b) That in Dag No.344 said Dilbahar Molla had .24 dec, land and the same is also
correctly recorded in R.S.R.O.R.
c) That after the demise of Bibijan Bibi, the first wife of Dilbahar, said Dilbahar married
Malekjan Bibi and by a registered deed of conveyance said Dilbahar Molla transferred .
70 dec. in favour of his wife Malekjan Bibi out of his total property, i.e. .79 dec in Dag
No.340, .33 dec in Dag No.341, .24 dec in Dag No.342, .12 dec in Dag No.343 and .24
dec in Dag No.344 total being 1.72.
d) Subsequently, said Dilbahar Molla died leaving behind one son and two daughters
through the first wife and three sons and two daughters through the second wife. Thus out
of remain 1.02 dec of Dilbahar, the second wife Malekjan Bibi had 8th each son had
7/48th and each daughter had 7/96. The co-sharers of the said property have never
partitioned the same and they are in joint possession thereof.
17. What was, therefore, denied and disputed was the claim of the plaintiffs-respondents
in respect of purchase of the property from Niyamat Ali and others. Similar statements
were also made in the written statement. From a perusal of the judgment passed by the
Assistant District Judge, 24 Parganas, Baruipur in Title Suit No. 144 of 1993, it appears
that the possession and title of defendant No.4 had been taken into consideration therein.
No issue was framed in regard to identification of the said property. The learned Judge
held :
"On perusal of the same, I am of the view that the plaintiff has title as well as possession
in the suit property and the defendants have failed to prove their possession and title in
the suit property. In view of the documentary evidence adduced by the plaintiff, the
R.S.R.O.R. appears to be erroneous and baseless. The defendants have no right to
interfere with the peaceful possession of the plaintiff over the suit property. To my mind,
it is a fit and proper case where the plaintiff can get decree for declaration of title and
permanent injunction and nothing more."
18. Section 152 of the Code of Civil Procedure empowers the Court to correct its own
error in a judgment, decree or order from any accidental slip or omission. The principle
behind the said provision is actus curiae nemenim gravabit, i.e., nobody shall be
prejudiced by an act of Court.
19. Code of Civil Procedure recognises the inherent power of the Court. It is not only
confined to the amendment of the judgment or decree as envisaged under Section 152 of
the Code but also inherent power in general. The Courts also have duty to see that the
records are true and present the correct state of affair. There cannot, however, be any
doubt whatsoever that the Court cannot exercise the said jurisdiction so as to review its
judgment. It cannot also exercise its jurisdiction when no mistake or slip occurred in the
decree or order. This provision, in our opinion, should, however, not be construed in a
pedantic manner. A decree may, therefore, be corrected by the Court both in exercise of
its power under Section 152 as also under Section 151 of the Code of Civil Procedure.
Such a power of the Court is well recognized.
20
. In Samarendra Nath Sinha and Anr. v. Krishna Kumar Nag [(1967) 2 SCR 18, this Court
held : AIR 1967 SC 1440, Para 11
"Now it is well settled that there is an inherent power in the Court which passed the
judgment to correct a clerical mistake or an error arising from an accidental slip or
omission and to vary its judgment so as to give effect to its meaning and intention. Every
Court, said Bowen L.J. in Mellor v. Swira [30 Ch. 239] has inherent power over its own
records so long as those records are within its power and that it can set right any mistake
in them. An order even when passed and entered may be amended by the Court so as to
carry out its intention and express
@page-SC230
the meaning of the Court when the order was made. In Jankirama Iyer v. Nilakanta Iyer
[AIR 1962 SC 633] the decree as drawn up in the High Court had used the words mesne
profits instead of net profits. In fact the use of the words mesne profits came to be made
probably because while narranting the facts, those words were inadvertently used in the
judgment."
21
. The question came up for consideration before the Calcutta High Court in Bela Debi
(supra), wherein it was held :- AIR 1952 Cal 86
"It will thus be seen that there is a diversity of judicial opinion as to how far a Court can
go in rectifying its own decree. Where, of course, the amendment is in order to carry out
its own meaning, there is no doubt about the power of the Court in effecting such
corrections (see In re St. Nazaire Co., (1879) 12 Ch. D. 88; Preston Banking Go. v.
Allsop, (1895) 1 Ch. 141). Nor can it be disputed that it has power to rectify mistakes
which are of a ministerial kind (see Mellor v. Swire, (1885) 30 Ch. D 239). But the
difficulty arises when it is found that the mistake is not one of the Court but is a mistake
of the parties themselves. Mistakes in the description of properties in deeds, is illustrative
of this kind of mistake. It is the parties who have made the mistake, and the mistake is
continued in the pleadings and the decree. According to one view, section 152 is confined
to acts of the Court and, therefore, mistakes of parties made in the pleadings or deeds and
documents evidencing the transaction cannot be corrected (Ramchander Sarup v. Mazhar
Hussain, AIR (6) 1919 All 264). The second view is that under this section and section
151, plaint, judgment and decree all can be amended (see Shiam Lal v. Mt. Moona Kuar,
AIR (21) 1934 Oudh 352 at p. 354; Ram Chandra v. Jamna Prosad, AIR (22) 1935 oudh
92). A third view is that it is permissible under such circumstances to amend the decree
and it is unnecessary to amend the plaint (Badri Pande v. Chhangur Pandey/AIR (20)
1933 All 102; Jamini Bala Biswas v. Bank of Chettinad Ltd., AIR (22) 1935 Rang. 522 at
p. 523). Lastly, there is the view, which I have already noted, which goes to the extent of
holding that the Court cannot only rectify pleadings and decrees but rectify documents
evidencing the transactions themselves, upon which the suit was founded.
I shall now state, what in my opinion, is the true meaning of section 152, Civil P. C. I am
not in favour of giving a narrow construction to section 152. I do not agree that section
152 must necessarily refer to an 'accidental slip or omission' of the Court itself, or its
ministerial officers. It does not say so in the section itself, and should not be interpreted
as such. Where it is the Court's own accidental slip or omission, or that of its ministerial
officers, there can be no doubt that the section applies. But it gives power to rectify any
accidental slip or omission in a judgment, decree or order, and might include an
accidental slip or omission traceable to the conduct of the parties themselves. But it must
be an 'accidental slip or omission'. A mistake made by the parties in a, deed upon which
the suit is founded, and repeated in the judgment, decree or order, may or may not be an
'accidental slip or omission.' Where it is clear, that such is the case, then I do not see why
the Court cannot set it right. In doing so, what is going to be rectified is, the judgment
decree or order, and it is not at all necessary to rectify either the pleadings or the deed. In
making such corrections, however, the Court can only proceed on the footing that there
could be no reasonable doubt as to what it really intended to say in its judgment decree or
order. It cannot go into any disputed questions. If there is a particular description of a
property in a deed, and a suit has been instituted on the strength of that description, and a
decree passed, it is not permissible in proceedings under section 152 to go into disputed
questions as to what property was intended to be dealt with, by the parties in the deed. I
agree with Gentle C. J. that such a question can only be dealt with, in appropriate
proceedings under the Specific Relief Act (see T. M. Ramakrishnan Chettiar v. G.
Ramakrishnan Chettiar, AIR (35) 1948 Mad 13). But it may so happen that the mistake is
so palpable that nobody can possibly have any doubt as to what the parties meant or what
the Court meant when it passed its judgment, decree or order. For example, suppose in a
conveyance a property is described as '24 Chowringhee Road, Bhawanipur'. It would be
clear to everybody what property was meant, and it cannot be seriously doubted that in
abating that the property was in 'Bhawanipur', the parties had committed an 'accidental
slip or omission'. In such a case, I would not go to the extent of holding that the Court has
no
@page-SC231
power to correct the judgment, decree or order which has repeated the mistake. In doing
so, the Court need not correct the pleadings or the document but its own decision. In my
opinion, it is not necessary in such a case to amend the pleadings or to rectify the deed,
therefore, no question arises as to whether the Court has power to do so. It is, however,
quite clear that such cases must be of rare occurrence, and the scope thereof is severely
limited. The power cannot be extended to the resolving of controversial points, and a
decision as to what the parties intended or did not intent to do. Apart from this
exceptional case, I hold that the Court cannot correct errors anterior to the proceedings
before it. For such a purpose, the proper proceeding is by way of a suit under Section 31,
Specific Relief Act. To this extent, I agree respectfully with the view enunciated by
Gentle C. J. in T. M. Rama-krishnan Chettiar v. G. Radhakrishnan Chettiar, AIR (35)
1948 Mad 13 and the view expressed by Young J. in Shujaatmand Khan v. Gobind
Behari, AIR (21) 1934 All. 100 (2). Applying these principles to the facts of this case, I
think that the rectification asked for is impossible. If there has been a mistake in the
original agreement it is a mistake which is fundamental, and it is impossible without
going into evidence, to decide as to what the parties meant. There are facts in favour of
the contention put forward by either party and I cannot describe it as an error (if there is
at all any error) as can be called "an accidental slip or omission" as contemplated in
section 152. In any event, such slips or omissions cannot be rectified in proceedings
under Section 152 or even under S. 151 of the Code.
22. We, with respect, agree with the aforenoticed view.
23
. In Lakshmi Ram Bhuyan v. Hari Prasad Bhuyan and Ors. [AIR 2003 SC 351, this Court
opined that when a decree had been drawn up by the High Court, the Court can take
recourse to Section 152 of the Code stating : 2002 AIR SCW 4843, Para 14
In our opinion, the successful party has no other option but to have recourse of Section
152 of CPC which provides for clerical or arithmetical mistakes in judgments, decrees or
orders or errors arising therein from any accidental slip or omission being corrected at
any time by the Court either on its own motion or on the application of any of the parties.
A reading of the judgment of the High Court shows that in its opinion the plaintiffs were
found entitled to succeed in the suit. There is an accidental slip or omission in
manifesting the intention of the Court by couching the reliefs to which the plaintiffs were
entitled in the event of their succeeding in the suit. Section 152 enables the Court to vary
its judgment so as to give effect to its meaning and intention. Power of the Court to
amend its orders so as to carry out the intention and express the meaning of the Court at
the time when the order was made was upheld by Bowen L.J. in re Swire; Mellor V.
Swire, (1885) 30 Ch D 239, subject to the only limitation that the amendment can be
made without in justice or on terms which preclude injustice. Lindley L.J. observed that
if the order of the Court, though drawn up, did not express the order as intended to be
made then "there is no such magic in passing and entering an order as to deprive the
Court of jurisdiction to make its own records true, and if an order as passed and entered
does not express the real order of the Court, it would, as it appears to me, be shocking to
say that the party aggrieved cannot come here to have the record set right, but must go to
House of Lords by way of appeal.
24
. The same Bench again in Pratibha Singh and Ors. v. Shanti Devi Prasad and Anr. [AIR
2003 SC 643] held : 2002 AIR SCW 5308, Para 17
When the suit as to immovable property has been decreed and the property is not
definitely identified, the defect in the court record caused by overlooking of provisions
contained in Order 7 Rule 3 and Order 20 Rule 3 of the CPC is capable of being cured.
After all a successful plaintiff should not be deprived of the fruits of decree. Resort can
be had to Section 152 or Section 47 of the CPC depending on the facts and circumstances
of each case - which of the two provisions would be more appropriate, just and
convenient to invoke. Being an inadvertent error, not affecting the merits of the case, it
may be corrected under Section 152 of the CPC by the Court which passed the decree by
supplying the omission. Alternatively, the exact description of decretal property may be
ascertained by the Executing Court as a question relating to execution, discharge or
satisfaction of decree within the meaning of Section 47, CPC. A decree of a competent
Court should not, as far as practicable, be
@page-SC232
allowed to be defeated on account of an accidental slip or omission. In the facts and
circumstances of the present case we think it would be more appropriate to invoke
Section 47 of the CPC.
25
. In State of Punjab v. Darshan Singh [AIR 2003 SC 4179], however, it was held : 2003
"Section 152 provides for correction of clerical or arithmetical mistakes in judgments,

decrees or orders or errors arising therein from any accidental slip or omission. The
exercise of this power contemplates the correction of mistakes by the Court of its
ministerial actions and does not contemplate of passing effective judicial orders after the
judgment, decree or order. The settled position of law is that after the passing of the
judgment, decree or order, the same becomes final subject to any further avenues of
remedies provided in respect of the same and the very Court or the tribunal cannot, on
mere change of view, is not entitled to vary the terms of the judgments, decrees and
orders earlier passed except by means of review, if statutorily provided specifically
therefor and subject to the conditions or limitations provided therein. The powers under
Section 152 of the Code are neither to be equated with the power of review nor can be
said to be akin to review or even said to clothe the Court concerned under the guise of
invoking after the result of the judgment earlier rendered, in its entirety or any portion or
part of it. The corrections contemplated are of correcting only accidental omissions or
mistakes and not all omissions and mistakes which might have been committed by the
Court while passing the judgment, decree or order. The omission sought to be corrected
which goes to the merits of the case is beyond the scope of Section 152 as if it is looking
into it for the first time, for which the proper remedy for the aggrieved party if at all is to
file appeal or revision before the higher forum or review application before the very
forum, subject to the limitations in respect of such review. It implies that the Section
cannot be pressed into service to correct an omission which is intentional, however
erroneous that may be. It has been noticed that the courts below have been liberally
construing and applying the provisions of Sections 151 and 152 of Code even after
passing of effective orders in the lis pending before them. No Court can, under the cover
of the aforesaid sections, modify, alter or add to the terms of its original judgment, decree
or order. Similar view was expressed by this Court in Dwaraka Das v. State of Madhya
Pradesh and Anr. and Jayalakshmi Coelho v. Oswald Joseph Coelho (2001 (4) SCC 181).
1999 AIR SCW 663
2001 AIR SCW 1013
26. It is not a case where the defendants could be said to have been misled. It is now well
settled that the pleadings of the parties are to be read in their entirety. They are to be
construed liberally and not in a pedantic manner. It is also not a case where by reason of
an amendment, one property is being substituted by the other. If the Court has the
requisite power to make an amendment of the decree, the same would not mean that it
had gone beyond the decree or passing any decree. The statements contained in the body
of the plaint have sufficiently described the suit lands. Only because some blanks in the
schedule of the property have been left, the same, by itself, may not be a ground to
deprive the respondents from the fruit of the decree. If the appellant herein did not file
any written statement, he did so at its own peril. Admittedly, he examined himself as a
witness in the case. He, therefore, was aware of the issues raised in the suit. It is stated
that an Advocate-Commissioner has also been appointed. We, therefore, are of the
opinion that only because the JL numbers in the schedule was missing, the same by itself
would not be a ground to interfere with the impugned order.
27. So far as the application for impleadment of the applicants are concerned, they being
not parties to the suit are not bound by the decree. They would, thus, be entitled to take
recourse to such remedies which are available to them in law including filing of an
application under Order 21 Rules 97 and 99 of the Code of Civil Procedure, if any
occasion arises therefor. As and when the said applicants take recourse to law, the same
has to be determined in accordance with law.
28. This appeal and the application for impleadment are dismissed accordingly. It would,
however, for the Executing Court to consider at the time of execution of the decree to
ascertain whether there exists any difficulty in executing the decree or not. In the facts
and circumstances of the case, however, there shall be no order as to costs.
Order accordingly.
@page-SC233
AIR 2008 SUPREME COURT 233 "Kishan Singh v. State of Punjab"
(From : 2005 (2) Hindu LR 328 (P and H))
Kishan Singh and Anr. v. State of Punjab.
(A) Penal Code (45 of 1860), S.304B - DOWRY DEATH - Dowry death - Demand for
scooter in dowry - Proof - Fact that accused already possessed scooter and even
motorcycle - Not ground to hold that such demand was not made - When mother, brother
and cousin of deceased had testified that demand was made soon after marriage and was
repeated thereafter. (Para 26)
(B) Criminal P.C. (2 of 1974), S.482 - Evidence Act (1 of 1872), S.3 - INHERENT
POWERS - WITNESS - Adverse remarks - Against witness - Witness committed some
mistake in his evidence - That portion can be disbelieved by Court - But only for that
reason, Court should not make disparaging remarks that there was falsehood on part of
witness. (Paras 32, 39)
(C) Penal Code (45 of 1860), S.304B - DOWRY DEATH - Dowry death - Demand for
dowry - Contradiction in evidence of witnesses as to whether demand was made at time
of 'shagun' or marriage - Not relevant when accused insisted on payment as they had
obliged parents of deceased by allowing deceased to marry with their son. (Para 27)
AIR 1990 SC 1737 (Ref.) 38
AIR 1987 SC 251 : 1987 Tax LR 1830 (Ref.) 37
AIR 1964 SC 703 : 1964 (1) Cri LJ 549 (Ref.) 36
R. K. Kapoor, M. K. Verma and Anis Ahmed Khan, for Appellants; Kuldip Singh, R. K.
Pandey, T. P. Mishra and H. S. Sandu, for Respondent.
Judgement
1. C. K. THAKKER, J. :- The present appeal is filed by the two appellants against an
order of conviction and sentence recorded by the Addl. Sessions Judge, Gurdaspur on
April 30, 2002 in Sessions Case No. 128 of 1999 and confirmed by the High Court of
Punjab and Haryana at Chandigarh on May 4, 2005 in Criminal Appeal No.950-SB of
2002. By the said order, the Courts below convicted the appellants herein for offences
punishable under Sections 304B and 315, Indian Penal Code (IPC). For an offence
punishable under Section 304B, IPC the appellants were ordered to undergo rigorous
imprisonment for seven years and to pay a fine of Rs.1,000/- and in default of payment of
fine, to further undergo rigorous imprisonment for three months, whereas for an offence
punishable under Section 315, IPC, they were ordered to undergo imprisonment for three
years.
2. The facts of the case in nutshell are that Reeta Kumari, daughter of Tilak Singh and
Sudershana Rani-PW2, got married to Manmohan Singh (original accused No.1) on
February 19, 1999 as per Hindu rites and ceremonies. According to the prosecution,
sufficient dowry was given by the parents of Reeta Kumari at the time of marriage as per
their financial status and capacity. However, Reeta Kumari, immediately after marriage,
disclosed on her first visit to parental home after 3-4 days that the accused were
subjecting her to taunts and harassments for not bringing scooter and golden bangle
(kara) in dowry. The young bride was told in clear terms that if the demands of the
accused of scooter and golden bangle would not be met with, she should not come back
to matrimonial home. Even thereafter, during her visit to parental home at 2-3 occasions,
Reeta Kumari informed her family members that the accused were repeating their
demand of scooter and golden bangle. She was, however, pacified by Sudershana Rani
and other family members to return to matrimonial home on an assurance that scooter and
golden bangle would be given when the complainants husband (Manmohan Singh) would
come on leave. It may be stated that the husband of deceased Reeta Kumari was serving
in Indian Army. It is further the version of the prosecution that about 14 days prior to the
occurrence, PW7-Dharminder Singh, brother of Reeta Kumari went to village Kahnuwan
at the matrimonial home of deceased Reeta Kumari to enquire about the welfare of his
sister. On return, he informed his mother Sudershana Rani that Reeta Kumari was being
subjected to maltreatment by the accused on account of demand of dowry and that he had
brought Reeta Kumari with him to parental home. Complainant Sudershana Rani,
thereafter, had a talk with the accused persons and assured that their demand of scooter
and golden bangle would be fulfilled after Manmohan Singh would return. Reeta Kumari
was,
@page-SC234
therefore, again sent back to matrimonial home along with PW4-Gopal Singh, cousin of
Reeta Kumari. On June 20, 1999, at about 3.30 p.m., one Mangat Ram, who acted as
mediator for the marriage between Reeta Kumari and Manmohan Singh, informed
parents of Reeta Kumari that Reeta Kumari died after consuming some poisonous
substance. On hearing the news, Sudershana Rani-complainant, along with her son
Dharminder Singh and nephew Daulat Singh went to the house of the accused at village
Kahnuwan where they found dead body of Reeta Kumari lying in a room. Statement of
Sudershana Rani was recorded at Ex.PB (FIR 111) on the same day by PW 9 Swinder
Singh (Station Inspector) who met them at the bus stand, Kahnuwan.
3. The prosecution case also disclosed that at the time of death, Reeta Kumari was
pregnant with a child of about 12 weeks gestation period in her womb. It was alleged by
the prosecution that death was caused by the accused and it was a dowry death. Challan
was, therefore, presented against the accused for offences punishable under Sections
304B, 315 and 498A, IPC. Since an offence punishable under Section 304B, IPC was
exclusively triable by a Court of Session, the trial Magistrate committed the case to the
Sessions Court, Gurdaspur. Charge was framed against the accused, the contents thereof
were read over and explained to them. The accused pleaded not guilty to the charge and
claimed to be tried.
4. The accused denied to have committed any offence. According to them, they were
falsely implicated by the police. It was further stated that accused Manmohan Singh and
deceased Reeta Kumari (husband and wife) had gone to Vaishno Devi and were returning
from the temple on the previous day of the occurrence. When they reached near
Pathankot, the deceased insisted that they should first visit her parental village Kahnuwan
whereas husband Manmohan Singh, accused No.1 insisted that they should go to the
matrimonial home first. That was the reason for consuming Aluminium Phosphate by the
deceased Reeta Kumari and thus the deceased committed suicide.
5. The prosecution, in order to bring home the guilt of the accused, examined nine
witnesses including important witnesses, PW2-Sudershana Rani, complainant and mother
of deceased Reeta Kumari; PW4-Gopal Singh, cousin brother of deceased Reeta Kumari
and PW7-Dharminder Singh, brother of deceased Reeta Kumari.
6. The charge was framed against five accused i.e. accused No.1-Manmohan Singh,
husband of the deceased; accused No.2-Janak Singh, brother-in-law of the deceased,
accused No. 3, Kishan Singh, father-in-law of the deceased, accused No. 4, Bachni Rani,
mother-in-law of the deceased and accused No.5-Sushma Rani, sister-in-law of the
deceased.
7. The trial Court, after appreciating the evidence on record and on the basis of
depositions of PW2 Sudarshana Rani-complainant, PW 4 Gopal Singh and PW 7
Dharminder Singh held that as far as accused No.5-Sushma Rani was concerned, she had
already married prior to the marriage of Manmohan Singh and was staying with her
husband and two children at matrimonial home at village Kaulsher which was at a
distance of 60-70 KMs. from Kahnuwan. She had been referred to in the FIR as the sister
of accused No. 1, Manmohan Singh. She would not have been benefited by the demand
of dowry of scooter and golden bangles. The trial Court, therefore, held that it could not
be said that she was a party to demand of dowry as also in causing death of deceased
Reeta Kumari. She was accordingly ordered to be acquitted by the Court.
8. Regarding Manmohan Singh-accused No.1, husband of Reeta Kumari, the trial Court
observed that he was serving in Indian Army. He took leave from February 15, 1999 to
March 26, 1999. The marriage was performed on February 19, 1999. After the marriage,
he again joined service. Thereafter he came on leave from June 14, 1999 to July 9, 1999.
In the circumstances, according to the trial Court, it could not be said that he was
responsible for committing offences punishable under Sections 304B and 315, IPC. The
Court, however, held that there was demand of dowry by accused No.1-Manmohan
Singh, husband of Reeta Kumari as stated by PW 2 Sudarshana Rani, PW 4 Gopal Singh
and PW 7 Dharminder Singh. Accused No. 1 Manmohan Singh was, therefore, held liable
for an offence punishable under Section 498A, IPC.
9. As to accused No.2-Janak Singh, brother in law of the deceased, accused No.3-Kishan
Singh and accused No.4-Bachni Rani, father-in-law and mother-in-law of deceased Reeta
Kumari, the Court
@page-SC235
held that it was proved beyond reasonable doubt that they had committed offences
punishable under Sections 304B and 315, IPC. As already stated earlier, sentence was
awarded on accused No.3-Kishan Singh and accused No.4-Bachni Rani, father-in-law
and mother-in-law of the deceased by the trial Court. So far as accused No.2-Janak Singh
was concerned, the trial Court held that he was a juvenile when the offence was
committed which was clear from the perusal of his birth certificate. The Court, therefore,
forwarded him to the Juvenile Court for passing an appropriate order of sentence in
10. Being aggrieved by the order of conviction and sentence, three accused persons, viz.
accused No.1-Manmohan Singh-husband, accused No.3-Kishan Singh- father-in-law and
accused No.4-Bachni Rani-mother-in-law preferred an appeal before the High Court.
11. The High Court again examined the evidence on record, heard the arguments of the
parties and considered the reasons recorded and conclusions arrived at by the trial Court.
It held that as far as accused Nos. 3 and 4, parents-in-law of deceased Reeta Kumari were
concerned, the trial Court was fully justified in convicting both of them for offences
punishable under Sections 304B and 315, IPC. Accordingly, their conviction as well as
order of sentence was maintained.
12. As to accused No.1-Manmohan Singh-husband, however, the High Court held that
from the evidence, it was not proved that he was responsible for committing an offence
punishable under Section 498A, IPC. The Court observed that he was serving in Indian
Army and was occasionally attending matrimonial home after taking leave. There was no
sufficient evidence of demand of dowry by accused No. - 1. The trial Court, hence, was
not right in convicting him under Section 498A, IPC. He was, therefore, ordered to be
acquitted.
13. The order convicting accused Nos. 3 and 4, father-in-law and mother-in-law of
deceased Reeta Kumari under Sections 304B and 315, IPC recorded by the trial Court
and confirmed by the High Court is challenged in the present appeal.
14. On September 23, 2005, notice was issued on Special Leave Petition as also on the
application for bail. On November 28, 2005, leave was granted and the appellants were
directed to be released on bail on their executing a bond for a sum of Rs.25,000/- each to
the satisfaction of the Addl. Sessions Judge, Gurdaspur, Punjab. On September 18, 2006,
an order was passed by the Court directing the Registry to post the appeal at an early
date. The matter thus has been placed before us.
15. We have heard learned counsel for the parties.
16. The learned counsel for the appellant contended that both the Courts committed an
error in convicting the appellants for offences punishable under Sections 304B and 315,
IPC. According to the learned counsel, there was no demand of dowry by the accused and
it could not be said that death of deceased Reeta Kumari was due to harassment because
of demand of dowry. It was also urged that the evidence of PW2-Sudershana Rani, PW4-
Gopal Singh and PW7-Dharminder Singh was not reliable and they ought not to have
been believed by Courts below. According to the counsel, all the three witnesses were
interested witnesses being close relatives of the deceased, PW2-Sudershana Rani-mother,
PW4-Gopal Singh and PW7-Dharminder Singh-cousin brother and real brother,
respectively. It was also contended that there were material contradictions in their
evidence as to when so called demand of scooter and golden bangle was made. According
to one version, such demand was made at the time of shagun, whereas according to other
version, it was towards the dowry. Witnesses were aware that shagun and dowry were not
one and same. Thus, the prosecution was not certain as to the occasion of alleged
demand. It was also stated that from the evidence of Harbhajan Singh-DW1 and Ramesh
Shirodkar-DW2, it was proved that the accused were having scooter as also motorcycle.
If it were so, there was no occasion to demand scooter which was the case of the
prosecution. On all these grounds, it was submitted that both the Courts were wrong in
convicting the appellants and appeal deserves to be allowed.
17. The learned counsel for the State submitted that the order of conviction and sentence
recorded by the trial Court and confirmed by the High Court does not call for
interference. According to him, from the prosecution evidence, it was clearly established
that deceased Reeta Kumari was
@page-SC236
maltreated and harassed for dowry. Immediately after her marriage on February 19, 1999,
when she came to parental home within few days, she complained that dowry demand
was made by her in-laws and even thereafter, the demand was repeated. Reeta Kumari
was pregnant at the time of death. Both the Courts were, therefore, right in convicting the
appellants under Sections 304B and 315, IPC.
18. Having heard learned counsel for the parties, in our opinion, no case has been made
out by the appellants so as to interfere with the decision of the Courts below. Admittedly,
Reeta Kumari married to accused No.1-Manmohan Singh on February 19, 1999. The case
of the prosecution is very clear that in-laws of Reeta Kumari started harassing her by
making demand of dowry. She was told that her parents should give to accused persons
scooter and golden bangle. She was also told by the accused that she should not return to
matrimonial home if she would not bring scooter and golden bangle. Both the Courts
considered the evidence of prosecution witnesses and recorded a finding that prosecution
was able to prove the case beyond reasonable doubt as to demand of dowry by the
accused.
19. Section 304B (Dowry death) was inserted by Act 43 of 1986 with effect from
November 19, 1986. The said section reads thus :
304B. Dowry death
(1) Where the death of a woman is caused by any burns or bodily injury or occurs
otherwise than under normal circumstances within seven years of her marriage and it is
shown that soon before her death she was subjected to cruelty or harassment by her
husband or any relative of her husband for, or in connection with, any demand for dowry,
such death shall be called "dowry death", and such husband or relative shall be deemed to
have caused her death.
Explanation- For the purpose of this sub-section, "dowry" shall have the same meaning as
in section 2 of the Dowry Prohibition Act, 1961 (28 of 1961).
(2) Whoever commits dowry death shall be punished with imprisonment for a term which
shall not be less than seven years but which may extend to imprisonment for life.
20. In order that this section may apply, the following ingredients must be satisfied;
(i) the death of a woman must have been caused by burns or bodily injury or otherwise
than under normal circumstances;
(ii) such death must have occurred within seven years of her marriage;
(iii) the woman must have been subjected to cruelty or harassment by her husband or by
relatives of her husband;
(iv) cruelty or harassment must be for or in connection with demand for dowry;
(v) such cruelty or harassment is shown to have been meted out to the woman soon
before her death.
21. In the instant case, the prosecution has examined PW3-Dr. Swinder Kumar. He
deposed that on June 21, 1999, he conducted the post mortem on the dead body of Reeta
Kumari and found the following injuries;
1. 3 x ½ cm. abrasion on right side of the anterior of the middle of the neck.
2. 2 x 1 cm. abrasion on right side of the anterior of the middle of the neck just 1 cm.
below injury No.1
3. 4 x 2 cm. abrasion on left side of the anterior of the middle of the head.
22. He deposed;
"On dissection of injuries Nos. 1, 2 and 3, subcutaneous tissues of the neck shows
extravagation of blood beneath the injured areas. On further dissection, fracture of
projection in laryngeal cartilage seen."
23. He proceeded to state :
"The time between injuries and death was immediate and between death and postmortem
within 24 hours. In our opinion, based on the report of the Chemical Examiner, which is
Ex.PC, the cause of death in this case was ante mortem throttling and consumption of
aluminium phosphide, which is a pesticide, Ex.PD is the correct copy of the postmortem
report, the original of which I have brought today in the Court which is signed by me and
Dr. H.S. Dhillon and Mrs. Raminder Kaler."
24. In cross-examination, he stated that the injuries near the mouth were possible if an
attempt had been made by someone to prevent taking tablet or trying to take it out.
Similarly, injury on the neck could be possible in such a struggle.
25. Thus, from the evidence of Dr.Swinder Kumar-PW3, it was proved that Reeta Kumari
died unnatural death. As already noted earlier, Reeta Kumari married
@page-SC237
to Manmohan Singh on February 19, 1999 and she died on June 20, 1999 i.e. within a
period of four months. Thus, the death was caused within seven years of her marriage.
From the prosecution evidence, it was proved beyond reasonable doubt that deceased
Reeta Kumari was subjected to cruelty and harassment by the accused in connection with
demand of dowry from day of her marriage. The demand was repeated from time to time
and it resulted in sad and untimely death of a young bride. But for continuous demand of
dowry by the accused and constant harassment, two lives would have been saved. We are,
therefore, of the considered opinion that both the Courts were right in convicting the
appellants for the offences with which they were charged.
26. In our judgment, both the Courts were right in rejecting defence version that since the
accused possessed scooter as well as motorcycle, there was no necessity to make demand
of scooter. The High Court observed that it was a matter of common knowledge that even
if in-laws had several things in the house, still they demand dowry. Even if we may not
go to that extent, in our opinion, in the present case, there was sufficient evidence in the
form of sworn testimony of PW2-Sudershana Rani, PW4-Gopal Singh and PW7-
Dharminder Singh that there was a demand of dowry by accused and deceased Reeta
Kumari had made such complaint immediately after marriage which was repeated and
reiterated. The deceased used to inform about such demand by the accused to her parents.
It is, therefore, totally irrelevant whether accused possessed motorcycle or scooter.
Demand of dowry in this case was clearly proved and conclusively established by the
prosecution.
27. We also find no substance in the contention of the appellants that there was material
contradiction in the deposition of prosecution witnesses as to the occasion of making
demand, i.e. as shagun or as dowry. From the evidence, it is proved that accused persons
insisted for scooter and golden bangle as they had obliged parents of Reeta Kumari by
allowing her to marry to accused No.1-Manmohan Singh. In our opinion, therefore, both
the Courts were right in coming to the conclusion that there was demand of dowry by the
accused.
28. The trial Court convicted accused No.1-Manmohan Singh for an offence punishable
under Section 498A, IPC. The High Court, however, set aside the said conviction
observing that he was not regularly staying with Reeta Kumari as he was serving in Army
and used to come only for few days by taking leave. Prosecution witnesses have, no
doubt, deposed that demand of dowry was also made by accused No.1-Manmohan Singh-
husband of Reeta Kumari and believing the said evidence, the trial Court convicted him.
But the High Court was of the view that there was no sufficient evidence to prove
demand of dowry by accused No.1-Manmohan Singh and acquitted him. The said
acquittal is not challenged by the State. That part of the order thus has become final. The
matter, therefore, rests there.
29. For the foregoing reasons, in our opinion, both the Courts were wholly right and fully
justified in recording an order of conviction and in imposing sentence on appellants-
accused Nos. 3 and 4. We see no infirmity therein and dismiss the appeal and confirm the
order of conviction and sentence. Since they are on bail, we direct them to surrender to
undergo the remaining period of sentence.
30. Before parting with the matter, we may advert to one aspect. The trial Court, while
not accepting the evidence of PW4-Gopal Singh as to demand of dowry by accused No.1-
Manmohan Singh-husband of Reeta Kumari, had observed that no such demand could
have been made by him. It was because PW4-Gopal Singh had stated that accused No.1-
Manmohan Singh ill-treated deceased Reeta Kumari soon after her death. He further
stated that 10/12 days prior to the incident, accused No.1-Manmohan Singh reiterated the
demand of scooter and golden bangle. Now, accused No.1-Manmohan Singh was on
leave from February 15, 1999 to March 26, 1999. Thus, after marriage ceremony on
February 19, 1999, accused No.1-Manmohan Singh stayed with his wife for more than a
month before reporting for duty. Thereafter, he again sought leave from June 14, 1999 to
July 9, 1999. According to the trial Court, he must have reached his village on or after
June 16, 1999 from Goa and Reeta Kumari died on June 20, 1999. Thus, according to the
trial Court, accused No.1-Manmohan Singh could not have made demand of scooter and
golden bangle 10/12 days prior to the incident. The trial Court, therefore, did not believe
that part of the statement of Gopal Singh.
@page-SC238
31. The trial Court, however, proceeded to state;
"But falsehood in this part of the statement of Gopal Singh, regarding the demand of
scooter and golden kara made by accused Manmohan Singh, just 10/12 days prior to the
death of deceased is utterly glaring. As already said above the accused Manmohan Singh
had taken leave from 15.2.1999 to 26.3.1999, for marriage and after that from 14.6.1999
to 9.7.1999. This leave record was produced by DW2. If accused Manmohan Singh had
taken leave from 14.6.1999, he must have reached his village from Goa on or after
16.6.1999. Therefore, the presence of Manmohan Singh in his house at village
Kahnuwan, just 10/12 days prior to the alleged occurrence when Gopal Singh made visit
does not crop up at all."
32. It is unfortunate that the trial Court has made a caustic remark that there was
falsehood on the part of PW4-Gopal Singh as to demand of dowry by accused No.1-
Manmohan Singh. A Court of law may not accept a particular part of the evidence
considering the other facts and circumstances on record. But that does not necessarily
mean that what was stated by the witness was false. In fact, PW4-Gopal Singh was
believed by the trial Court as well as by the High Court. It may be that the witness had
committed some mistake in giving the period during which dowry demand was made by
accused No.1-Manmohan Singh. If that part of the evidence is not consistent with the
facts on record, the Court may not accept it. But only for that reason, the Court should not
make disparaging remarks as has been done by the Court.
33. While dealing with a matter, the Presiding Officer of a Court may extend benefit of
doubt to the accused in the light of omissions, contradictions or discrepancies in the
deposition of prosecution witnesses. He may also offer comment on the conduct of
parties or witnesses. He may as well make necessary observations keeping in view their
demeanour. It has been rightly said that the Judges are flesh and blood mortals with likes
and dislikes, preferences and prejudices and they are also normal human traits.
34. Thomas Reed Powell once said; "Judges have preferences for social policies as you
and I. They form their judgments after the varying fashions in which you and I form ours.
They have hands, organs, dimensions, senses, affections, passions. They are warmed by
the same winter and summer and by the same ideas as a layman is."
35. Justice John Clarke has also stated; "I have never known any judges, no difference
how austere of manner, who discharged their judicial duties in an atmosphere of pure,
unadulterated reason. Alas! we are 'all the common growth of the Mother Earth' - even
those of us who wear the long robe."
(Emphasis supplied)
36
. At the same time, however, it cannot be overlooked that judicial restraints and discipline
are equally necessary to orderly administration of justice. One must always keep in view
golden advice given by S.K. Das, J. in State of U.P. v. Mohd. Naim, (1964) 2 SCR 363 :
AIR 1964 SC 703; (Para 10)
"If there is one principle of cardinal importance in the administration of justice, it is this :
the proper freedom and independence of Judges and Magistrates must be maintained and
they must be allowed to perform their functions freely and fearlessly and without undue
interference by anybody, even by this Court. At the same time it is equally necessary that
in expressing their opinions Judges and Magistrates must be guided by considerations of
justice, fair-play and restraint. It is not infrequent that sweeping generalizations defeat the
very purpose for which they are made. It has been judicially recognized that in the matter
of making disparaging remarks against persons or authorities whose conduct comes into
consideration before courts of law in cases to be decided by them, it is relevant to
consider (a) whether the party whose conduct is in question is before the court or has an
opportunity of explaining or defending himself; (b) whether there is evidence on record
bearing on that conduct justifying the remarks; and (c) whether it is necessary for the
decision of the case, as an integral part thereof, to animadvert on that conduct. It has also
been recognized that judicial pronouncements must be judicial in nature, and should not
normally depart from sobriety, moderation and reserve."
(Emphasis supplied)
37
. In State of M.P. v. Nandlal, (1986) 4 SCC 566, while disposing the writ petition, the
High Court made certain sweeping observations attributing mala fides, corruption and
underhand dealings to the State Government. AIR 1987 SC 251, (Para 42)
@page-SC239
Holding the disparaging remarks as unjustified, hypothetical and unwarranted, Bhagwati,
C.J. observed :
"We may observe in conclusion that Judges should not use strong and carping language
while criticising the conduct of parties or their witnesses. They must act with sobriety,
moderation and restraint. They must have the humility to recognise that they are not
infallible and any harsh and disparaging strictures passed by them against any party may
be mistaken and unjustified and if so, they may do considerable harm and mischief and
result in injustice. Here, in the present case, the observations made and strictures passed
by B.M. Lal, J. were totally unjustified and unwarranted and they ought not to have been
made."
38
. We are reminded of the following observations of Shetty, J. in A. M. Mathur v. Pramod

Kumar, (1990) 2 SCC 533 : JT 1990 (1) SC 545; AIR 1990 SC 1737, (Para 14)
"The Judges Bench is a seat of power. Not only do judges have power to make binding
decisions, their decisions legitimate the use of power by other officials. The Judges have
the absolute and unchallenged control of the Court domain. But they cannot misuse their
authority by intemperate comments, undignified banter or scathing criticism of counsel,
parties or witnesses. We concede that the Court has the inherent power to act freely upon
its own conviction on any matter coming before it for adjudication, but it is a general
principle of the highest importance to the proper administration of justice that derogatory
remarks ought not to be made against persons or authorities whose conduct comes into
consideration unless it is absolutely necessary for the decision of the case to animadvert
on their conduct. "
(Emphasis supplied)
39. In the case on hand, in our judgment, there was no occasion for the trial Court to go to
the extent of describing the evidence of PW4-Gopal Singh to be false. Even if it is
conceded that in the light of other evidence on record, the Court was not convinced as to
the demand of dowry by accused No. 1 Manmohan Singh, 10/12 days prior to the
incident, the Court could have acquitted accused No.1 on that ground. In our considered
opinion, however, it was certainly not a case of making scathing remarks against the
witness. All those remarks are, therefore, ordered to be deleted from the record.
40. The appeal is disposed of accordingly.
Order accordingly.
AIR 2008 SUPREME COURT 239 "Dimple Gupta v. Rajiv Gupta"
(From : 2002 Cri LJ 493 (Him. Pra.))
Dimple Gupta (Minor) v. Rajiv Gupta.
(A) Constitution of India, Art.136 - Criminal P.C. (2 of 1974), S.125 - SPECIAL LEAVE
PETITION - MAINTENANCE - Special Leave Petition - Tenability - Maintenance claim
by illegitimate child - Denial - Illegitimate child has no other right except right to claim
maintenance under S. 125 - S.L.P. against, is maintainable. (Para 5)
(B) Criminal P.C. (2 of 1974), S.125 - MAINTENANCE - Maintenance - Claim by
illegitimate child - Claimant alleging that respondent was her father - Claim supported by
evidence of mother and several other villagers - Birth register showing name similar to
respondent's name as her father - Column pertaining to father's name in school admission
form kept blank as expected from un-wed mother - Claim liable to be allowed.
2002 Cri LJ 493 (H.P.), Reversed. (Paras 6, 7)
(C) Evidence Act (1 of 1872), S.3 - EVIDENCE - Appreciation of evidence - Illiterate
villager - Evidence that claimant's mother and respondent had lived in her house long
before cannot be rejected on ground that she had been in Sri Lanka at relevant time and
could not have, therefore, been host - It is impossible to lay down with precision chain of
events more particularly when illiterate villagers with no sense of time are involved.
(Para 6)
AIR 1960 SC 882 : 1960 Cri LJ 1246 (Rel. on, Pnt. A) 5
1997 (2) Sim LC 277 (HP) (Ref.) 7
Ravi Bakshi and Yash Pal Dhingra, for Appellant; O. P. Sharma, Sr. Advocate, Anil Nag,
Rajeev Kumar Bansal, Akshay K. Ghai and K. R. Gupta, with him, for Respondent.
@page-SC240
Judgement
HARJIT SINGH BEDI, J.:- This appeal by special leave arises out of the following facts.
2. The appellant herein, Dimple Gupta, filed an application under section 125 of the Code
of Criminal Procedure through her mother Narain Dassi claiming maintenance at
Rs.500/- per month from the respondent Rajiv Gupta alleging that he was her father as
she had been born out of a relationship between him and her mother. It was alleged in the
application that she was living with her mother at village Nogali Tehsil Rampur,
Himachal Pradesh at the time of the filing of the petition and that she had been conceived
out of wedlock when her mother was a student in the Xth Class in the Government High
School at village Nogali. It was further alleged that when the respondent got to know that
Narain Dassi had conceived she had been taken by him to Chandigarh in order to get the
foetus aborted but the Doctor advised that as the pregnancy was at an advanced stage it
was not possible to undergo the procedure. It was further alleged that the respondent had
then abandoned her mother whereafter she was born on 8.7.1991 at village Kalpa.
3. The Trial Magistrate after recording evidence and in the course of an elaborate
judgment held that the appellant was indeed the illegitimate child of Rajiv Gupta born
from Narain Dassi. For arriving at this conclusion the Magistrate relied on the ocular
evidence of Narain Dassi PW1, Smt. Kanchuk Doma PW2, Smt. Chandra Devi PW3 and
PW4 Bhag Rath Pradhan of village Kalpa who proved an abstract (Ex.PW-4/A) of the
Birth and Death Register showing Rajiv Gupta as the father of Dimple Gupta, and PW5
Devender Singh a Teacher who proved the admission forms filled in at the time of the
appellant's admission in school on 3.9.1996 showing her caste to be Gupta. The attempt
of the respondent on the other hand to show that Narain Dassi was a woman of loose
character and had been available to several other male companions was sought to be
proved by the evidence of RW-3 Hem Raj, the Manager of Gopal Guest House at Rampur
who brought the record showing that a girl under the name of kavita would often
entertain guests in the Guest House and that Kavita was in fact Narain Dassi as he knew
her personally.
4. Aggrieved by the judgment of the trial Judge, respondent Rajiv Gupta filed Criminal
Revision No.62 of 2001 In the High Court at Shimla. The learned Single Judge of the
High Court reversed the judgment of the trial Judge holding that in the light of several
judgments of the High Court in identical matters it had been held that in a case of a child
born out of an illicit relationship the mother was in the capacity of an accomplice to the
crime and as such it was essential that her statement be corroborated by other evidence to
prove the case. The High Court also observed that it was not sufficient for the applicant to
show that the respondent was indeed her father but the court had also to give a finding
that in all reasonableness no one else could have been the father and examining the
evidence in the light of the above principles discarded the statement of PW1 Narain Dassi
as unworthy of credence and also rejected the evidence of PW2 Kanchuk Dolma on the
ground that as she had disowned her initial statements in Court after she had been re-
called for evidence and had supported the respondent's case, whereas PW3 Chandra Devi
was a liar as she had admitted that at the relevant time she may have been in Sri Lanka
and thus could not have witnessed the presence of Narain Dassi and Rajeev Gupta in the
Guest House. The court also observed that in the school admission form Ex. D.A. the
column pertaining to the father's name had been left blank whereas in the Birth entry Ex.
PW4/A the father's name had been entered as Rajiv Kumar and as such could not be
connected with the respondent whose name was Rajiv Gupta. The High Court
accordingly upset the judgment of the trial Magistrate, allowed the revision petition and
dismissed the application leading to the filing of this appeal .
5. At the very outset, the learned counsel for the appellant has pointed out that the finding
recorded by the trial Magistrate was based on a correct appreciation of the evidence and
the statement of Narain Dassi had been corroborated by several other witnesses and
documentary evidence on record and that the High Court was not justified in reversing
the judgment without adequate reason and on mere conjectures. The learned counsel for
the respondent has, however, placed reliance on Nand Lal Misra v. Kanhaiya Lal Misra
AIR 1960 SC 882 to argue that a matter such as the present one did
@page-SC241
not justify the entertainment of a petition under Article 136 of the Constitution and that in
any case the findings recorded by the High Court called for no interference as it had been
held in several judgments that in the case of a claim based on illegitimacy, the statement
of the mother was to be treated with some suspicion and could only be accepted with
other corroborative evidence.
6. We have considered the arguments advanced by the learned counsel for the parties.
Concededly Narain Dassi and Rajiv Gupta were not married. The appellant therefore has
virtually no rights which she can enforce during her minority except through an
application under section 125 of the Code of Criminal Procedure. We are of the opinion
that the entertainment of a petition under Article 136 of the Constitution of India is thus
justified on the facts of the case and this is also the ratio of the judgment in the Nand
Lal's case. We have also perused the judgments of the trial Magistrate and the High
Court. We find no reasons to justify a reversal of the findings that had been recorded by
the trial Magistrate as the application was supported by the statement of PW1 Narain
Dassi and several other witnesses. PW3 Chandra Devi specifically deposed that Narain
Dassi and respondent Rajiv Gupta had stayed in her house in village Kalpa several years
earlier. The High Court has held that statement of PW3 could not be relied upon as it
appeared that she had been in Sri Lanka at the relevant time and could not have therefore
been host to Narain Dassi and Rajiv Gupta in Kalpa. We are of the opinion that in such
matters it is impossible to lay down with precision the chain of events more particularly
when illiterate villagers with no sense of time are involved. We find no reason therefore
to hold as to why the statement of PW3 should not be believed. Likewise, we find that
PW4 Bhag Rath Pradhan of village Kalpa has proved the extracts of the birth register
Ex.PW-4/A which shows the father's name of Dimple Gupta as Rajiv Kumar whereas
PW5 Devender Singh, a teacher has proved the admission form of Dimple Gupta where
the column pertaining to the father's name has been left blank as would perhaps be
expected from an unwed mother as it would be best to keep silent on the subject to avoid
embarrassment to all concerned particularly at the time when the child was being
admitted to school. Much has been made of the fact that the PW2 Kanchka Dolma who
had not supported the claim of the appellant although she had been cited as her witness.
In this connection it has to be noticed that when PW2 had first been examined in court on
25.10.1994 she had fully supported the case of the applicant but on recall for evidence on
29.02.1996 she did a volte face and disowned her earlier statements. The trial Magistrate
was therefore justified in observing that this witness had been won over in the
interregnum.
7. The High Court has placed reliance on Dorje Wangial vs. Kaaram Singh 1997 (2)
Sim.L.C.277 to contend that the statement of Narain Dassi being in the nature of
accomplice evidence was liable to be corroborated by other evidence to be accepted.
Even assuming this statement to be a correct enunciation of the law we find that Narain
Dassi's statement gets adequate corroboration from the evidence which we have already
noted above. We accordingly allow the appeal, set aside the judgment of the High Court
and restore that of the trial Magistrate. The appellant shall be paid all the arrears upto date
within a period of three months from today and continue to receive the maintenance
regularly as per law.
Appeal allowed.
AIR 2008 SUPREME COURT 241 "Parayya Allayya Hittalamani v. Parayya
Gurulingayya Poojari"
(From : Karnataka)*
-2007.
Parayya Allayya Hittalamani v. Parayya Gurulingayya Poojari and Ors.
(A) Evidence Act (1 of 1872), S.92 - DOCUMENTS - DECREE - Construction of
document - Consent decree - Not covering entire disputes between parties and some
vagueness remained - Factual background as also manner in which existence of rights
have been claimed by parties - Would be relevant - S. 92 would not be attracted in such
situation. (Para 18)
(B) HINDU LAW - DECREE - Hindu Law - Temple - Right of worship - Parties
hereditary poojaris of
@page-SC242
temple - Dispute between them as to right of pooja and receiving offerings - Consent
decree - On subsequent differences between parties Courts were required to construe
terms implied in consent decree having regard to customs in regard to holding of
religious and other functions in temple by devotees - Equally important was conduct of
parties soon thereafter - Statements made by father of defendant in deeds of sale executed
in favour of plaintiff's father - Accepting equal right of plaintiff's father to offerings - No
fraud or inducement or threat on part of plaintiff's father - Said statements were relevant -
Taking the same into consideration by Courts for determining rights of parties - Not
illegal.
R.S.A. No. 250 of 1992, D/- 20-1-2005 (Kant), Reversed. (Para 22)
2002 (100) Delhi LT 278 (Ref.) 14
AIR 1972 SC 1371 (Ref.) 16
AIR 1970 SC 406 (Ref.) 14
AIR 1956 SC 346 (Ref.) 15
S. K. Mahale, Rajesh Mahale, for Appellant; G. V. Chandrashekhar, Ms. Anjana
Chandrashekar, for Respondents.
* R.S.A. No. 250 of 1992, D/- 20-1-2005 (Kant).
Judgement
2. There is a temple in the village Terdal under the Jharkhandi Taluk in the State of
Karnataka, commonly known as Sri Prabhudeva Temple. Parties hereto are the hereditary
poojaris of the said temple. They are entitled to bless the devotees, receive alms and other
offerings made by the devotees throughout the year. The turn of worship has been
amicably divided and settled, inter alia, amongst the plaintiffs and the defendants.
3. There were three branches with which we are concerned; one is the branch of the
plaintiff, second is the branch of the defendants and the third is the branch represented by
Parayya Allayya Hittalamani. The said Allayya and his wife Neelawwa died without any
issue. The plaintiffs and the defendant No.1 inherited their right to worship.
4. Disputes and differences having arisen between the parties in regard to right of
inheritance of offering poojas in the said temple, the father of the plaintiff filed a suit
which was marked as OS No.143 of 1956. Parties therein purported to settle their
disputes. The consent terms were filed which were accepted by the Court. The said terms
are :
"For the present year and the turn of Pooja which will come after 12 years, the defendant
No.1 with the plaintiff herein and with his help perform the pooja as usual of Prabhudeva
in Neelavvas pooja turn.
During the abovesaid poojas time the offerings of Naivedya to Prabhudeva, fruits, corns,
Oil and Milk and Curd, Sugar, Jaggery etc. in perishable goods, defendant No.1 should
give half share of perishable goods to plaintiff and take half of the perishable goods to
himself.
In the abovenoted pooja turn the defendant No.1 in his individual capacity as a poojari
receiving gold, silver, offering (dakshina) etc. the non-perishable goods the defendant
No.1 shall take in that he need not give any share or goods".
5. Indisputably, the turn of worship so far as the said Allayya was concerned, comes once
in 12 years. After 1956, the said turn came in 1968. There exists a dispute as to how the
parties hereto shared the offerings in 1968. However, when the turn again came in 1980,
the plaintiffs filed a suit praying, inter alia, for the following reliefs :
"It may be declared that plaintiffs and their family members have a joint right of pooja
and receiving offerings of Prabhudev Temple at Terdal along with defendant No.1 or his
successors regarding the turn of deceased Neelawwa's branch once in 12 years in
perpetually.
Consequently perpetual injunction may kindly be issued against the defendants, their
relatives and agents from threatening, obstructing or causing obstruction to the joint right
of the plaintiffs to perform the Pooja and receive offering during the turn of Neelawwas
branch every twelve years."
6. The said suit was decreed by the learned Trial Judge. Defendants preferred an appeal
thereagainst. The learned Court of First Appeal also affirmed the said decree, inter alia,
opining :
"The term in para 2 of Ex.P-2 makes it clear that silver, gold, money which are non-
perishable commodities given to deft.1 in his individual capacity being a poojari should
be taken by himself and he need not give any share to the plaintiff therein. It makes it
clear that any non-perishable commodities
@page-SC243
offered to deft.1 in his individual capacity as poojari of the deity such as gold, silver and
money should be taken by himself and he need not give share therein to the plaintiff. So,
any offerings given in individual capacity of deft.1 as poojari should be taken by deft.1.
Once example is sufficient to what kind of offerings given to poojari in his individual
capacity is given, i.e., if the poojari removes hairs of a child during Javala ceremony and
parents of the child give any offerings such gold, silver and money to poojari he should
take it as it is given to him being poojari in his individual capacity for performing Javala
ceremony. Such offerings made to poojari in his individual capacity should be taken by
the father of deft.1 and deft.1 should take same but not offering made in the form of gold,
silver and money to deity and they should be shared by deft.1 and plaintiffs together as
per the decree at Ex.P.2. If it was the intention of the parties, the father of deft.1 should
have taken all the offerings made to deity in non-perishable commodities for himself in
1955-56 and 1968-69."
7. Both the Trial Judge as also the First Appellate Court furthermore took into
consideration the documents marked as Exhibit P-1 as also Exhibit P-3 executed by the
father of the defendant No.1 in favour father of the plaintiff wherein it was categorically
stated that plaintiff's branch had equal right in worshipping the deity during the turn of
Nilawwa and he had right to receive alms equally. In this respect, the learned Court of
appeal held :
"This goes to prove that father of deft.1 has admitted that father of the plaintiffs was the
nearest heir of Neelawwa and he has also right in the property of Neelawwa such as land
Sy.No.759 and right to worship of Prabhuswami. Ex.P.3 is dated 23.03.1965. Even
subsequent to Ex.P.2 father of deft.1 confirmed that father of the plaintiffs is nearest heir
to Neelawwa and he has no objection for the property to be shared by father of the
plaintiffs such as land and right to worship during turn of Neelawwa. The evidence led by
the plaintiff is overwhelming the evidence of the defendants and as such after considering
the evidence the learned Munsiff has rightly held that the plaintiffs are entitled to receive
half of non-perishable offerings such as gold, silver and money made to deity and deft.1
should perform puja along with the plaintiffs and they have equal right in worshipping
deity and there is no distinction between the plaintiffs and deft.1 in worshiping the deity
and he has rightly decreed the suit of the plaintiffs".
8. Defendants filed a second appeal before the High Court which was marked as Revision
Second Appeal No.250 of 1992. The High Court, however, was of the opinion that as
both the parties would get their turns alternatively, i.e., once in 12 years, the courts below
committed a mistake in mixing up that issues wrongly with the real dispute, stating :
"The reference to the individual functions in the decree is very clearly to the fact that
since the right to perform the pooja was alternative, that it was a reference to the
functions performed by the party in that particular year when the officiating party was in
charge. This cannot be confused with a situation whereby the poojari may perform
individual functions at some other place dehors these functions and for which he may
receive separate offerings. This is basically the essence of the matter and since it has been
very clearly and conclusively decided in the earlier compromise terms, there could be no
question of re-opening that issue. To this extent, therefore, the submission canvassed by
the appellants learned counsel that the suit itself as farmed was not maintainable, is fully
justified.
9. The matter, however, was taken to this Court by the respondents being SLP (C)
No.2109 of 1999 and on leave having been granted, this Court by a judgment and order
dated 15.9.2004 noticed that even no substantial question of law was formulated by the
High Court whereupon the same was set aside and the matter was remitted to the High
Court for formulating substantial questions of law.
10. The High Court thereafter formulated the following substantial questions of law :
(1) Whether both the Courts ignored the weight of preponderating circumstances while
construing the contents of compromise decree arrived at between the predecessors-in-title
of the parties to the suit and allowed their judgments to be influenced by inconsequential
matters, whether High Court would be justified in re-appreciating the evidence and in
coming to its own independent conclusion?
(2) Whether both the Courts below erred
@page-SC244
in misconstruing Ex.P-2, the compromise arrived at between the predecessors-in-title in
question for purposes of ascertaining the foundation of the suit itself and if so whether
that error is to be interfered with in the exercise of High Court's power under Section 100
of CPC?
11. Both the aforementioned questions were answered by the High Court in the
affirmative. It was of the view that as compromise decree was binding between the
parties and the dispute between them was governed by the said compromise decree, the
plaintiff's suit was not maintainable, stating :
"It is clear from the conditions of performance of pooja as per the terms of the
compromise decree that the right of performing pooja during the turn of Neelawwa and
Allayya is conferred upon the father of the first defendant and the pooja during that turn
has to be performed by the father of the first defendant with the assistance of the father of
the plaintiffs and no joint right has been conferred and regarding the offerings made by
the devotees so far as the perishable articles are concerned, they are to be divided equally
and non-perishable offerings such as gold, silver, dakshina (cash) etc. which are not
perishable, offered individually to the father of the first defendant shall be taken by him
exclusively and no such offerings shall be given to Parayya Allayya Hittalamani, i.e.,
father of the plaintiffs and the plaintiffs being the legal representatives, being the sons of
Parayya Allayya Hittalamani cannot claim of a higher share than that is conferred upon
them by the father of the defendant and which is in fact the basis of the plaint and,
therefore, it is clear that the judgment and decree passed by the Courts below cannot be
sustained and the same are liable to be set aside as they are perverse and arbitrary being
based upon irrelevant material and being contrary to the terms of compromise decree
which is admitted by both the parties as binding upon them.
12. Mr. Mahale, learned counsel appearing on behalf of the appellant, submitted that the
High Court committed a serious error in passing the impugned judgment insofar as it
failed to take into consideration that in terms of condition No.2(C) of the agreement, the
first respondent was not entitled to gold, sliver and money etc. which were offered to the
deity and not to himself in his personal capacity.
13. Mr. Chandrashekhar, learned counsel appearing on behalf of the first respondent, on
the other hand, urged that the High Court having rightly arrived at a decision that the
plaintiff's suit was barred by res judicata and the disputes between the parties being
covered by the consent decree, the impugned judgment is unassailable.
14
. A consent decree, as is well known, is a contract between the parties with the seal of the
Court superadded to it. {See Baldevdas Shivlal and Anr. v. Filmistan Distributors (India)
P. Ltd. and Ors. [(1969) 2 SCC 201] and Hindustan Motors Ltd. v. Amritpal Singh Nayar
and Anr. [100 (2002) DLT 278]}. AIR 1970 SC 406
15. We are, however, not oblivious of the fact that such consent decree may operate as an
estoppel. {See Sailendra Narayan Bhanja Deo v. The State of Orissa (AIR 1956 SC
346)}.
16. It is equally well settled that which construing a decree, the court can and in
appropriate case ought to take into consideration the pleadings as well as the proceedings
leading upto the decree. In order to find out the meaning of the words employed in a
decree, the Court has to ascertain the circumstances under which these words came to be
used. {See Bhavan Vaja and Ors. v. Solanki Hanuji Khodaji Mansang and Anr. [AIR 1972
SC 1371]}.
17. It is now also a trite law that in the event the document is vague, the same must be
construed having regard to surroundings and/or attending circumstances.
18. The nature of the document also plays an important part for construction thereof. The
suit filed by the parties, inter alia, involved the question of interpretation of the said
consent decree. Parties adduced evidences, inter alia, in regard to the nature of poojas and
offerings made to the priest in their individual capacity. The dispute between the parties
related to right of worship upon inheritance thereof from their predecessor. Their rights in
regard to offer poojas in the temple are itself not in dispute. In a case of this nature where
a consent decree does not refer to the entire disputes between the parties and some
vagueness remained, the factual background as also the manner in which existence of
rights have been claimed by the parties would be relevant.
The consent decree, appears to be meant
@page-SC245
to be operative for a limited period viz. 1956 and 1961.
Section 92 of the Evidence Act in a situation of this nature, in our opinion, cannot be said
to be attracted.
19. A consent decree must be construed keeping in view the legal principles as noticed
hereinbefore. The right of the parties to offer pooja had not been disputed. Clause 2(A) of
the consent decree was not determinative of the status of the parties. Their rights and
obligations are not clearly spelt out thereby. In the aforementioned situation, the recital to
the effect that Pooja has to be performed as usual is significant.
20. No difficulty arises in giving effect to clause 2(B) of the consent decree. It is not
necessary for us to consider the same. Clause 2(C), however, deserves our attention. It
speaks of offerings of non-perishable goods were to be offered to the defendant No.1 in
his individual capacity. The parties to the compromise knew as to why the said expression
had been used. If any of the party to the suit was entitled to keep with him even such non-
perishable goods which were to be offered to the Deity, the question of using the terms
"in his individual capacity" was not necessary. The parties, therefore, were allowed to
lead evidence, to show as to what ceremonies are performed by the Priest in his
individual capacity and not necessarily offering pooja to the Deity. A devotee may
arrange a special ceremony or a special pooja and entrust the same to be done by one or
the other Priest of the said temple. The courts, therefore, were required to construe the
terms implied in the consent decree having regard to the customs in regard to holding of
religious and other functions in the temple by the devotees.
21. Equally important was the conduct of the parties soon thereafter. We have noticed
hereinbefore that the father of the defendant No.1 executed deeds of sale in favour of the
plaintiff's father. The relationship between the parties and their status were referred to
therein. Defendant No.1's father in the said document accepted the right of the plaintiff's
father of having equal right to the offerings and offer poojas during the turn of said
Neelawwa. It is not the case of the defendants that such statements came to be made by
reason of any fraud or inducement or threat on the part of the plaintiff's father.
22. That being so, the said statements were relevant. The learned Trial Judge as also the
Court of the First Appeal, in our opinion, cannot be said to have committed any mistake
in taking the same into consideration for determining the rights of the parties. The High
Court, in our opinion, was, thus, not correct in reversing the judgment and decree passed
by the learned Trial Judge as also the Court of Appeal.
23. We, however, make it clear that we have not gone into the question as to whether any
offerings made in Hundies for development shall go to any of the parties or not. Such a
question having not been gone into by the courts below, we refrain ourselves from doing
so.
24. For the reasons mentioned above, the impugned judgment is set aside. The appeal is
allowed. However, in the facts and circumstances of the case, there shall be no order as to
costs.
Appeal allowed.
AIR 2008 SUPREME COURT 245 "Thokchom Ongoi Sangeeta v. Oriental Insurance
Co. Ltd."
(From : Gauhati)*
Civil Appeal Nos. 4946-4947 of 2007 (arising out of SLP (C) Nos. 3871-3872 of 2005),
D/- 23 -10 -2007.
Smt. Thokchom Ongoi Sangeeta and Anr. v. Oriental Insurance Co. Ltd. and Ors.
(A) Motor Vehicles Act (59 of 1988), S.147 - MOTOR VEHICLES - INSURANCE -
CARRIAGE OF GOODS - Liability of insurer - Passenger travelling in goods carriage -
Insurer have no liability therefor.
The difference in the language of "goods vehicle" as appearing in the Old Act and "goods
carriage" in the Act is of significance. A bare reading of the provisions makes it clear that
the legislative intent was to prohibit goods vehicle from carrying any passenger. This is
clear from the expression "in addition to passengers" as contained in definition of "goods
vehicle" in the Old Act. The position becomes further clear because the expression used
is "goods carriage" is solely for the "carriage of goods". Carrying of passengers in a
goods carriage is not contemplated in the Act. There is no provision similar to clause (ii)
of the proviso appended to S. 95 of the Old Act prescribing requirement
@page-SC246
of insurance policy. Even S. 147 of the Act mandates compulsory coverage against death
of or bodily injury to any passenger of "public service vehicle". The proviso makes it
further clear that compulsory coverage in respect of drivers and conductors of public
service vehicle and employees carried in goods vehicle would be limited to liability under
the Workmen's Compensation Act, 1923. There is no reference to any passenger in
"goods carriage". The inevitable conclusion, therefore, is that provisions of the Act do not
enjoin any statutory liability on the owner of a vehicle to get his vehicle insured for any
passenger travelling in a goods carriage and the insurer would have no liability therefor.
2003 AIR SCW 513, 2003 AIR SCW 4120, Foll. (Paras 10, 12)
(B) Motor Vehicles Act (59 of 1988), S.173 - MOTOR VEHICLES - APPEAL -
TRIBUNALS - HIGH COURT - Appeal - Against award of compensation - High Court
found that Insurance Company had no liability - However failed to fix responsibility of
person who is to satisfy the Award made by Tribunal - Matter remitted. (Para 13)
Aribam Guneshwar Sharma for Appellants; M. K. Dua and Kishor Rawat for
Respondents.
* F. A. O. Nos. 3 and 4 of 2003, D/- 4-11-2004 (Gau.) (Imphal Bench)
Judgement
Dr. ARIJIT PASAYAT, J. - :-Leave granted.
2. Challenge in these appeals is to the order passed by a Division Bench of the Guwahati
High Court, Imphal Bench, allowing the appeal filed by respondent No.1 (hereinafter
referred to as 'the insurer').
3. Briefly stated, the facts are that on 19.12.1994 at about 7.30 a.m., near Lungthulien
village about 7 km. southwest from Parbung Police Station on Tipaimukh Road, a Tata
Truck bearing registration No.MN-01/3578 while proceeding towards Mizorm met with
an accident. Two claim cases were filed before the Motor Accident Claims Tribunal,
Manipur (in short 'Tribunal'), under Motor Vehicles Act, 1988 (in short the 'Act'). The
Tribunal by common judgment and award dated 31.12.2002, awarded compensation of
Rs.2,99,464/- in MAC Case No.61/95 and also an award of Rs.1,62,000/- in MAC Case
No.27/95.
4. The Insurance Company assailed the said common judgment and award only on the
ground that the vehicle involved in the accident is a Tata Truck which is a goods vehicle
and, therefore, the Insurance Company is not liable to pay compensation.
5
. The question of liability of the insurer with regard to the goods carrier has been dealt
with by this Court in Oriental Insurance Company Ltd. v. Devireddy Konda Reddy and
Ors. (AIR 2003 SC 1009). In the said case the provisions of Section 95(1) of Motor
Vehicles Act, 1939 (hereinafter referred to as the 'Old Act') as well as Section 147 (1) of
the Act were dealt with. 2003 AIR SCW 513
6. The High Court by the impugned judgment, accepted the plea and held that the insurer
was not liable to pay the compensation.
7. In support of the appeal, learned counsel for the appellants submitted that the High
Court ought to have directed the insurer to pay and recover the amount from the insured.
Learned counsel for the insurer submitted that no such direction could have been given
on the basis of the position in law stated by this Court.
8. Third party risks in the background of vehicles which are subject-matter of insurance
are dealt with in Chapter VIII of the Old Act and Chapter XI of the Act. Proviso to
Section 147 needs to be juxtaposed with Section 95 of the Old Act. Proviso to Section
147 of the Act reads as follows - :
"Provided that a policy shall not be required (i) To cover liability in respect of the death
arising out of and in the course of his employment, of the employee of a person insured
by the policy or in respect of bodily injury sustained by such an employee arising out of
and in the course of his employment other than a liability arising under the Workmen's
Compensation Act, 1923 (8 of 1923) in respect of the death of or bodily injury to, any
such employee-
(a) engaged in driving the vehicle or
(b) if it is a public service vehicle engaged as conductor of the vehicle or in examining
tickets on the vehicles, or
(c) if it is a goods carriage, being carried in the vehicle, or
@page-SC247
(ii) to cover any contractual liability.
"It is of significance that proviso appended to Section 95 of the Old Act contained in
clause (ii) does not find place in the new Act. The same reads as follow - :
"except where the vehicle is a vehicle in which passengers are carried for hire or reward
or by reason of or in pursuance of a contract of employment, to cover liability in respect
of the death of or bodily injury to persons being carried in or upon or entering or
mounting or alighting from the vehicle at the time of the occurrence of the event out of
which a claim arises."
9. The difference in the language of "goods vehicle" as appearing in the Old Act and
"goods carriage" in the Act is of significance. A bare reading of the provisions makes it
clear that the legislative intent was to prohibit goods vehicle from carrying any passenger.
This is clear from the expression "in addition to passengers" as contained in definition of
"goods vehicle" in the Old Act. The position becomes further clear because the
expression used is "goods carriage" is solely for the "carriage of goods". Carrying of
passengers in a goods carriage is not contemplated in the Act. There is no provision
similar to clause (ii) of the proviso appended to Section 95 of the Old Act prescribing
requirement of insurance policy. Even Section 147 of the Act mandates compulsory
coverage against death of or bodily injury to any passenger of "public service vehicle".
The proviso makes it further clear that compulsory coverage in respect of drivers and
conductors of public service vehicle and employees carried in goods vehicle would be
limited to liability under the Workmen's Compensation Act, 1923. There is no reference
to any passenger in "goods carriage".
10. The inevitable conclusion, therefore, is that provisions of the Act do not enjoin any
statutory liability on the owner of a vehicle to get his vehicle insured for any passenger
travelling in a goods carriage and the insurer would have no liability therefor.
11
. The above position was highlighted in Devireddy Konda Reddy and Ors.'s case (supra)
and National Insurance Company Ltd. v. Ajit Kumar and Ors. (AIR 2003 SC 3093).
2003 AIR SCW 513
2003 AIR SCW 4120
12. The High Court was, therefore, justified in holding that the insurer was not liable.
13. But the further question that ought to have been dealt with by the High Court was the
person who had the liability to pay the amount awarded as compensation. Such a finding
has not been recorded by the High Court. While issuing notice on 4.3.2005, it was
indicated that the matter requires to be remitted to the High Court to fix the responsibility
of the person who is to satisfy the Award made by the Tribunal even though, in law, the
High Court was justified in holding that the Insurance Company had no liability.
Accordingly, we remit the matter to the High Court for the limited purpose of fixing the
responsibility of the person who is to satisfy the Award made by the Tribunal.
14. The appeals are disposed of accordingly.
Order accordingly.
AIR 2008 SUPREME COURT 247 "All Cargo Movers (I) Pvt. Ltd. v. Dhanesh Badarmal
Jain"
(From : Gujarat)*
Criminal Appeal No. 1443 of 2007(arising out of SLP (Cri.) No. 1547 of 2007), D/- 12
-10 -2007.
All Cargo Movers (I) Pvt. Ltd. v. Dhanesh Badarmal Jain and Anr.
Penal Code (45 of 1860), S.406, S.420 - CHEATING - BREACH OF TRUST -
CONTRACT - NEGLIGENCE - Criminal breach of trust and cheating - Complaint
petition not containing averments in regard to ingredients of offence - Allegations of
negligence and breach of contract on part of carriers and their agent - Breach of contract
simpliciter does not constitute offence - Civil suit also pending - Criminal petition filed
one year after filing of civil suit - Court in such case, Cannot notice correspondences
exchanged by parties and other admitted documents for finding out whether allegations
were prima faice made - Order taking cognizance against appellant - Set aside.
Misc. Cri. Appln. No. 3585 of 1998, D/? 19-1-2007 (Guj.), Reversed. (Paras 14, 17,
22)
@page-SC248
(2005)10 SCC 228 (Foll.) 20

C. S. Nariman, Siddharth Luthra, Sr. Advocates, Sanjiv Sen, R. N. Karanjawala, Ms.
Nandini Gore, Ms. Pragya Singh Baghel, Ms. Simran Brar, Mrs. Manik Karanjawala, for
Appellant; P. H. Parekh, Lalit Chauhan, Sumit Goel, Arjun Garg, Ms. Pallavi (M/s. P. H.
Parekh and Co.), Ms. Hemantika Wahi, Ms. Pinky, for Respondents.
* Misc. Cri. Appln. No. 3585 of 1998, D/- 19-1-2007 (Guj.)
Judgement
1. S. B. SINHA, J. - :-Leave granted.
2. The parties hereto entered into a contract of carriage. First Respondent approached the
appellants which are companies registered and incorporated under the Indian Companies
Act for delivery of six consignments valued at US $ 98,715.29 to the original consignee,
M/s. Universal Apparels (EPZ), Mombassa, Kenya. By reason of a fax message,
Appellants asked their counterparts in Mombassa, Kenya (Walford Meadows) to confirm
delivery of consignment asking it to see that the cargo is delivered only against
presentation of original Bills of Lading. The goods in question were said to have been
delivered by the agent of the petitioner to the original consignee but the same allegedly
was rejected on the ground of being inferior in quality. Goods are said to have been
delivered to M/s. Fashionette Industries Ltd. Complainant-Respondent issued a notice to
the accused persons as also the aforementioned Walford Meadows and M/s. Universal
Apparels stating - :
"That with utter disregard to the procedures and practice prevalent internationally, and
being fully conscious of the consequences of delivering the consignments without
production of the Bills of Lading, you M/s. Walford Meadows Ltd., as agents of the
Carrier at Mombassa Ltd. effected delivery of the consignments covered under the
aforesaid original bills of lading to the consignees, without their producing the Bills of
Lading. That my clients are shocked at your act of negligence, which is contrary,
violative and in breach of your duties under the Contract and Law."
3-4. Negligence was, thus, attributed to the agencies in delivering the cargo without the
original Bill of Lading. It was also alleged that the carriers and their agent have
committed a breach of carriage and acted in violation of their contract and obligation. A
claim for a sum of US$ 84,353.31 was made. In the said notice, it was stated :
"That you, M/s. Walford Meadows, sent a fax dated 19.9.1996 to M/s. Universal
Apparels, copy of which was faxed to my clients by you M/s. All Cargo Movers (India)
Pvt. Ltd. By the said fax, you M/s. Walford Meadows Ltd. have clearly pointed out the
procedures to be followed in respect of Through Bills of Lading or House Bills of Lading
and have admitted that no cargo should be released to the importer without the
presentation of the original Bills of Lading. That you, M/s. Walford have gone one step
further and stated that you had delivered the consignments to Universal Apparels as a
favour, since Universal Apparels were your regular customers etc. etc. and lodged a claim
for the value of the said consignments being the amount they have been debited with you,
M/s. All Cargo."
5. On or about 14.9.1996, Mahabir Apparels in a letter addressed to the petitioner
company, lodged a statement of claim stating :
"PLEASE TREAT THIS AS OUR FORMAL CLAIM FOR RS. - 27,87,795/-
INVOLVED ON THIS CONSIGNMENT. YOU ARE HEREBY ADVISED TO LOOK
INTO THE MATTER AND GIVE US THE EXACT STATUS OF THE ABOVE
CARGOES IMMEDIATELY."
6. Yet again by a fax message dated 19.9.1996 sent by Darius Macharo to the Universal
Apparels, it was stated :
"The above shipments were realeased and delivered to you without your showing to us
the original Bills of Lading.
The procedure of the through bills of lading or house bills of lading (illegible) should be
released to the importer without presentation of the original bills of lading. However, this
favour was extended to you because
1. You are our regular customer.
2. To save you for heavy post storage charges which you would ((illegible) you were to
wait until you got the original bill from your supplier.
3. You needed the material very urgently as you were out of stock.
We have now been advised by our Principals, All Cargo that your supplier Mahavir
Apparels is demanding US Dollar 84,353.31 from us as we released the goods in absence
@page-SC249
of the original B/L. (illegible)
Please revert now as we have to advise our Principal in India before close of business
today.
In the meantime we are holding all your shipments until this matter is resolved."
7. A copy of the said fax message was sent to the appellant herein stating - :
"CC - : All Cargo India, Mumbai.
Attn : Vevek Kele
We shall come back to you with full details upon receiving reply from Universal
Apparels. Cargo was released without Bank Guarantee."
8. A bare perusal of the aforementioned letters/notices would clearly indicate that no
allegation had been made at the material time that it was the appellant who had caused
delivery of the goods.
9. It is furthermore not in dispute that a suit has been filed by the respondent herein in the
Original Side of the Bombay High Court which has been marked as suit No.1861 of
1997.
10. In the said suit, the following have been arrayed as defendants - :
"1. ACE Lines Ltd. a company Incorporated under Foreign Laws, Having its office at 29
Bis Mere Bathelemy Street, Port Louis, Mauritius.
2. All Cargo Container Lines Ltd. A company incorporated under Foreign laws having its
office at 29, Bis Mere, Bathelemy Street, Port Louis Mauritius.
3. All Cargo Movers (India) Pvt. Ltd. A company incorporated in India Under the
Companies Act, 1956 And having its office at 204, National Insurance Building, Dr. D.N.
Road, Bombay 400001.
4. M/s. Walford Meadows Limited, A company incorporated under Foreign Laws having
its office at 1st American Bank Building, 2nd Floor, No.1 Avenue, Mombassa.
11. Whereas defendant Nos.1 to 3 are alleged to be inter-related/sister companies, the
fourth defendant is said to be their agent. In the said suit, neither the aforementioned M/s.
Walford Meadows Ltd. nor M/s. Universal Apparels have been implicated as parties.
Plaintiff in the said suit averred that entrustment of the six consignments have been made
to Mahabir Apparels. The case made out in the plaint by the first respondents is as under -
:
"The respective ships carrying the said six consignments sailed from the Port of Bombay
on different dates and arrived at Mombassa. The 3rd Defendants addressed 2 fax
messages dated 30.8.1996 and 2.9.1996 to the 4th Defendant specifically instructing them
to deliver the said six consignments only against presentation of original Bills of Lading.
The Plaintiff crave leave to refer to and rely upon the aforesaid correspondence.
xxx xxx xxx
The plaintiff immediately addressed a fax dated 11.9.1996 to the 3rd Defendant (with a
copy to M/s. Harilal Bhawanji) questioning the legality, propriety in giving delivery of
the cargo without production of the Bills of Lading. The plaintiff also pointed out that
they had not given any written permission to give delivery of the cargo without
production of the Bills of Lading. The Plaintiff whilst emphasizing that the matter was
very serious informed the 3rd Defendant to inform their Mombassa Agents not to release
the goods without production of the original Bills of Lading in respect of their
consignments. The plaintiff craves leave to refer to and rely upon the said correspondence
when produced.
12. The said suit is still pending. More than one year after filing of the said suit, i.e., on or
about 6.5.1998, a complaint petition was filed wherein, inter aila, it was alleged - :
"Thereafter in and subsequent to September, 1996, the complainant was shocked to learn
that the accused have delivered away the goods - materials of the complainants above-
described 6 consignments without-presentation of and securing the original 6 Bills of
Lading, which were till with the complainant and not negotiated i.e. paid off by the
purchasing party and thus the accused in abetment of each other and acting in common
concern have committed criminal breach of Trust by causing criminal misappropriation
of the valuable property of the complainant and have committed offences punishable
u/s.407, 34 and 114 of I.P. Code.
By issuing their said Bills of Lading in acceptance and compliance of the complainants
invoices, the accused represented, assured and induced the complainant to believe that the
complainants goods-material delivered to the accused by the complainant would be
delivered by the accused to
@page-SC250
the receiving party only TO ORDER i.e. only on the presentation of original bills of
Lading to the party receiving the delivery of the goods material. If the accused had not so
represented, assured and induced the complainant, he would not have risked his goods-
material of the value of US$ 98,715.29 (i.e. Rs.38,49,896.31 at dollar rate about Rs.39/-)
to be delivered to the accused. Thus, the accused have in abetment and concert of each
other, cheated the complainant and committed offences u/Ss. 420, 34 and 114 of I.P.
Code.
13. Agent of the Kenyan counterpart of the petitioner, namely M/s. Walford Meadows
Ltd. against whom allegations have been made that it had delivered the consignments to
the assignee without original bills of lading had not been made an accused.
14. A bare perusal of the complaint petition would show that it did not contain any
averment in regard to the ingredients of the offence under Sections 406 and 420 of the
Indian Penal Code. There is no allegation that it was the petitioner who had delivered the
goods.
15. An application for quashing of the order issuing summons to the appellant by the
learned Metropolitan Magistrate has been dismissed by the High Court of Gujarat by
reason of the impugned judgment dated 19.1.2007 holding - :
"Perusing the complaint in light of the above arguments and legal propositions, it was
clear that the allegations made therein, prima facie, disclosed the offence of breach of
trust and the important averments were substantiated by the statement on oath of the
complainant. There is no reason to examine the documents and defences of the petitioner
at this stage to find out whether the complainant was likely to result in conviction. It is
not established though alleged, either that the complainant did not disclose any offence or
that the criminal proceedings were a gross abuse of the process of law, instead, it appears
from the record that hearing of the present petition is unduly delayed after grant of ex
parte interim relief on 1.9.1998. Therefore, petition is dismissed, Rule is discharged and
interim relief is vacated with no order as to costs."
16. Mr. P.H. Parekh, learned counsel appearing on behalf of the respondents, has drawn
our attention to several documents to show that it had all along been contended by the
first respondent that the appellant was also guilty of violating the terms of the Bills of
Lading.
17. We are of the opinion that the allegations made in the complaint petition, even if
given face value and taken to be correct in its entirety, do not disclose an offence. For the
said purpose, This Court may not only take into consideration the admitted facts but it is
also permissible to look into the pleadings of the plaintiff-respondent No.1 in the suit. No
allegation whatsoever was made against the appellants herein in the notice. What was
contended was negligence and/or breach of contract on the part of the carriers and their
agent. Breach of contract simpliciter does not constitute an offence. For the said purpose,
allegations in the complaint petition must disclose the necessary ingredients therefor.
Where a civil suit is pending and the complaint petition has been filed one year after
filing of the civil suit, we may for the purpose of finding out as to whether the said
allegations are prima facie cannot notice the correspondences exchanged by the parties
and other admitted documents. It is one thing to say that the Court at this juncture would
not consider the defence of the accused but it is another thing to say that for exercising
the inherent jurisdiction of this Court, it is impermissible also to look to the admitted
documents. Criminal proceedings should not be encouraged, when it is found to be mala
fide or otherwise an abuse of the process of the Court. Superior Courts while exercising
this power should also strive to serve the ends of justice.
18
. In G. Sagar Suri and Anr. v. State of U.P. and Ors. [(2000) 2 SCC 636, this Court opined
-: 2000 AIR SCW 296
"8. Jurisdiction under Section 482 of the Code has to be exercised with great care. In
exercise of its jurisdiction the High Court is not to examine the matter superficially. It is
to be seen if a matter, which is essentially of a civil nature, has been given a cloak of
criminal offence. Criminal proceedings are not a short cut of other remedies available in
law. Before issuing process a criminal court has to exercise a great deal of caution. For
the accused it is a serious matter. This Court has laid certain principles on the basis of
which the High Court is to exercise its jurisdiction under Section 482 of the Code.
Jurisdiction under this section has to be exercised to prevent abuse of the
@page-SC251
process of any court or otherwise to secure the ends of justice.
19. Therein also, having regard to the fact that a criminal complaint under Section 138 of
the Negotiable Instruments Act had already been pending, a criminal complaint under
Section 406/420 was initiated which was found to be an abuse of the due process of law.
20. In Anil Mahajan v. Bhor Industries Ltd. and Anr. [(2005) 10 SCC 228], this Court
held - :
"8. The substance of the complaint is to be seen. Mere use of the expression cheating in
the complaint is of no consequence. Except mention of the words deceive and cheat in the
complaint filed before the Magistrate and cheating in the complaint filed before the
police, there is no averment about the deceit, cheating or fraudulent intention of the
accused at the time of entering into MOU wherefrom it can be inferred that the accused
had the intention to deceive the complainant to pay. According to the complainant, a sum
of Rs.3,05,39,086 out of the total amount of Rs.3,38,62,860 was paid leaving balance of
Rs.33,23,774. We need not go into the question of the difference of the amounts
mentioned in the complaint which is much more than what is mentioned in the notice and
also the defence of the accused and the stand taken in reply to notice because the
complainant's own case is that over rupees three crores was paid and for balance, the
accused was giving reasons as above-noticed. The additional reason for not going into
these aspects is that a civil suit is pending inter se the parties for the amounts in
question."
21
. In Hira Lal Hari Lal Bhagwati v. CBI, New Delhi [(2003) 5 SCC 257], this Court
opined - : 2003 AIR SCW 2735, Para 45
"It is settled law, by a catena of decisions, that for establishing the offence of cheating,
the complainant is required to show that the accused had fraudulent or dishonest intention
at the time of making promise or representation. From his making failure to keep promise
subsequently, such a culpable intention right at the beginning that is at the time when the
promise was made cannot be presumed. It is seen from the records that the exemption
certificate contained necessary conditions which were required to be complied with after
importation of the machine. Since the GCS could not comply with it, therefore, it rightly
paid the necessary duties without taking advantage of the exemption certificate. The
conduct of the GCS clearly indicates that there was no fraudulent or dishonest intention
of either the GCS or the appellants in their capacities as office-bearers right at the time of
making application for exemption. As there was absence of dishonest and fraudulent
intention, the question of committing offence under Section 420 of the Indian Penal Code
does not arise."
{See also Hira Lal Hari Lal Bhagwati v. CBI, New Delhi [(2005) 3 SCC 670] and Indian
Oil Corporation v. NEPC India Ltd. and Ors. [(2006) 6 SCC 736]}. 2005 AIR SCW 989
2006 AIR SCW 3830
aside accordingly. Appeal is allowed and the order taking cognizance against the
appellant is set aside.
Appeal allowed.
AIR 2008 SUPREME COURT 251 "Inder Mohan Goswami v. State of Uttaranchal"
(From : Uttaranchal)
Coram : 3 K. G. BALAKRISHNAN, C.J.I., R. V. RAVEENDRAN AND DALVEER
BHANDARI, JJ.
-10 -2007.
Inder Mohan Goswami and Anr. v. State of Uttaranchal and Ors.
(A) Criminal P.C. (2 of 1974), S.482 - AGREEMENT TO SELL - INHERENT POWERS
- CHEATING - CRIMINAL CONSPIRACY - FORGERY - Abuse of process of Court -
Dispute about cancellation of agreement to sell property - Is civil dispute - Institution of
criminal proceedings under Ss. 420, 120-B, 467, IPC against vendor - An abuse of
process of Court - Court must ensure that criminal prosecution is not used as an
instrument of harassment or for seeking private vendentta or with an ulterior motive to
pressurise accused - Refusal to quash criminal proceedings - Improper. (Paras 21, 22,
45, 58)
(B) Criminal P.C. (2 of 1974), S.482 - INHERENT POWERS - Inherent powers - Exists
for advancement of justice - Injustice by abuse of process of Court can be prevented by
exercising inherent powers. (Para 24)
@page-SC252
(C) Criminal P.C. (2 of 1974), S.482 - INHERENT POWERS - Inherent powers -
Exercise - Powers not to be exercised when facts of case are incomplete and hazy and no
evidence is produced before Court. (Para 27)
(D) Penal Code (45 of 1860), S.415 - CHEATING - Cheating - Intention is an essential
ingredient - It has to be shown that accused had a fraudulent or dishonest intention at time
of making promise - From mere fact that promisor could not keep his promise it cannot
be presumed that he all along had a culpable intention to break promise from beginning.
(Paras 41)
(E) Criminal P.C. (2 of 1974), S.73 - Constitution of India, Art.21 - WARRANT - RIGHT
TO LIFE - Non-bailable warrant - Issuance - Deprives person of his liberty - Must be
issued with due care - Circumstances in which non-bailable warrant should be issued -
Innumerated.
The issuance of non-bailable warrants involves interference with personal liberty. Arrest
and imprisonment means deprivaion of the most precious right of an individual.
Therefore, the Courts have to be extremely careful before issuing non-bailable warrants.
Just as liberty is precious for an individual so is the interest of the society in maintaining
law and order. Both are extremely important for the survival of a civilized society.
Sometimes in the larger interest of the Public and the State it becomes absolutely
imperative to curtail freedom of an individual for a certain period, only then the non-
bailable warrants should be issued. (Paras 50, 51)
Non-bailable warrant should be issued to bring a person to Court when summons or
bailable warrants would be unlikely to have the desired result. This could be when :
(i) It is reasonable to believe that the person will not voluntarily appear in Court; or
(ii) The police authorities are unable to find the person to serve him with a summon; or
(iii) It is considered that the person could harm someone if not placed into custody
immediately.
As far as possible, if the Court is of the opinion that a summon will suffice in getting the
appearance of the accused in the Court, the common or the bailable warrants should be
preferred. The warrants either bailable or non-bailable should never be issued without
proper scrutiny of facts and complete application of mind, due to the extremely serious
consequences and ramifications which ensue on issuance of warrants. (Paras 52, 53)
In complaint cases, at the first instance, the Court should direct serving of the summons.
In the second instance, should issue bailable warrant. In the third instance, when the
Court is fully satisfied that the accused is avoiding the Court's proceedings intentionally,
the process of issuance of the non-bailable warrant should be resorted to. (Para 54)
2006 AIR SCW 3830 : AIR 2006 SC 2780 (Ref.) 37
(2004) 4 SCC 425 (Ref.) 47
1992 AIR SCW 237 : AIR 1992 SC 604 : 1992 Cri LJ 527 (Ref.) 32, 38
AIR 1988 SC 709 : 1988 Cri LJ 853 (Ref.) 31
AIR 1982 SC 1238 : 1982 Cri LJ 1731 (Ref.) 29
AIR 1977 SC 1489 : 1977 Cri LJ 1125 (Ref.) 28
1977 AC 1 : (1976) 2 All ER 497 25
AIR 1976 SC 1750 : 1976 Cri LJ 1373 (Rel. on, Pnt. C) 48
1964 AC 1254 : (1964) 2 All ER 401 25
AIR 1960 SC 866 : 1960 Cri LJ 1239 (Ref.) 26
Shanti Bhushan, Sr. Advocate, Prashant Bhushan, Rohit Kumar Singh and Sumeet
Sharma with him, for Appellants; Jaspal Singh, Sr. Advocate, J. K. Bhatia, B. N. Jha, R.
K. Kapoor, M. K. Verma, Anis Ahmad Khan and Anil Nag with him, for Respondents.
Judgement
DALVEER BHANDARI, J. - :- Leave granted.
2. This appeal is directed against the judgment dated 16th July, 2004 passed in Criminal
Miscellaneous Application No. - 248 of 2003 under section 482 of the Code of Criminal
Procedure (for short Cr.P.C.) by the
@page-SC253
High Court of Uttaranchal at Nainital. The appellants had to file an application under
Section 482, Cr.P.C. because the Special Judicial Magistrate, Rishikesh issued a non-
bailable warrant against the appellants on the basis of First Information Report under
Sections 420/467, IPC filed by the respondents.
Basic Facts
3. In 1923, Pt. Madan Mohan Malviya founded Sanatan Dharma Pratinidhi Sabha, Punjab
(hereinafter referred as the 'Sabha'). Some of the objects of the Sabha are to open and
maintain temples, dharamshalas, ashrams and to manage schools and colleges for the
overall development of children. Moreover, it seeks to open hospitals for the poor and to
develop the physical and mental state of the youth etc. It is averred that the Sabha from
its inception is engaged in the work of uplifting backward and downtrodden people and is
a grass-root organization in the field of social development. The Sabha was registered in
the year 1949 under the Societies Registration Act.
4. In order to develop a Ghat on the bank of river Ganga near Sapatrishi Ashram in
Hardwar, the Sabha issued an advertisement in the newspapers; it invited bids from the
eligible civil contractors to construct the Ghat in consideration of 13.5 Bighas
(approximately) of its land situated in old Khasra No.140 and new Khasra Nos. - 61, 62,
63, 64, 65, 66, 67, 68 and part of 89, 90 in village Haripur Kalan, Rishikesh, Dehradun
out of the total land of 26 Bighas owned by the Sabha. The Ghat was so constructed by
one Himmat Rai Ahuja, respondent No. - 3 herein, on behalf of M/s. Ahuja Builders.
5. On completion of the construction of the Ghat, the Sabha through its President Pt.
Mohan Lal Sharma executed a General Power of Attorney on 13.12.1996 in favour of
respondent No. 3 in regard to the abovementioned land measuring 13.5 Bighas (out of the
total of 26 Bighas approximately). On the same date, a receipt of Rs.17,92,000/- lakhs
(approximately) was issued by the Sabha to respondent No. 3 as an adjustment towards
the cost of construction of the Ghat for which the said land of 13.5 Bighas was
transferred by executing a General Power of Attorney dated 13.12.1996 in favour of
respondent No. 3. On the same day the parties executed an agreement to sell the
remaining land situated at Old Khasra No.140 and new Khasra No. 89 in Village Haripur
Kalan, Rishikesh at the rate of Rs.1,35,000/- per Bigha (which was approx. 11.19
Bighas). In pursuance to this, an earnest money of Rs. - 4,00,000/- was received by the
Sabha from respondent No.3. As per the agreement, respondent No. 3 had to pay another
Rs.1,00,000/- to the Sabha by 31.1.1997. This amount was paid by respondent No.3 on
21.3.1997 and the balance amount of Rs.10,10,650/- had to be paid by 31.3.1997.
6. According to the appellants, time was the essence of the contract and respondent No. -
3 had failed to pay the balance amount by Rs.10,10,650/-. The Sabha had sent a legal
notice dated 3.4.1999 (first legal notice) to respondent No. 3 to fulfill his contractual
obligations under the sale agreement and informing that if he failed to do so, the
agreement to sell would stand cancelled and the amount paid as earnest money would be
forfeited. In reply to the said notice, respondent No. - 3 vide his reply dated 5.5.1999
stated that he had not defaulted in payment of the remaining amount. He stated in the
reply that as per the agreement the land had to be measured and that he was ready to pay
the balance amount once that was done.
7. Pt. Mohan Lal Sharma, the President of the Sabha, expired on 30.8.1999. On 5.1.2000,
both the parties i.e. the representative of the Sabha and the representatives of M/s. Ahuja
Builders met at the site of the disputed land in the presence of Patwari (Revenue
Official). The land of old Khasra No.140 and new Khasra Nos. - 61, 62, 63, 64, 65, 66,
67, 68 and part of 89, 90 was measured by the Patwari. The balance land, after adjusting
the land given in lieu of construction of the Ghat, came out to be 11.19 Bighas. The total
sale consideration for this land worked out to be Rs. - 15,10,650/?. Respondent No. 3 had
already paid Rs. 4,00,000/- as earnest money out of this amount. He had paid a further
sum of Rs.1,00,000/- on 21.3.1997. On the request of respondent No. 3, the Sabha
reduced the amount owed of Rs.1,50,000/- to him in view of the existence of a passage
on the said land. Out of the balance of Rs.8,60,650/-, a further concession of Rs. 60,650/-
was given to Respondent No. - 3. He thus had to pay the balance amount of Rs.
8,00,000/-. The said measurement sheet was endorsed by respondent Nos. 3 and 4 and the
representatives of the Sabha on 19.3.2000.
@page-SC254
8. The General Power of Attorney executed by Late Mohan Lal Sharma, President of the
Sabha, had ceased to be in effect after his death. Therefore, the need of a fresh power of
attorney was felt and respondent No. 3 desired that the fresh Power of Attorney be
executed in the name of his son, Suresh Ahuja (respondent No. 4 herein) for the very
same 13.5 Bighas of land in regard to which earlier Power of Attorney dated 13.12.1996
had been given. Accordingly, General Secretary of the Sabha, appellant No.1 herein,
executed a fresh General Power of Attorney on 15.1.2000 in respect of 13.5 Bighas of
land situated in part of Old Khasra No.140 (new Khasra Nos. 61, 62, 63, 64, 65, 66, 67,
68 and part of 89, 90) in Village Haripur Kalan, Rishikesh, Dehradun, in favour of Suresh
Ahuja (respondent No. 4) as per the request of respondent No. 3.
9. According to the appellants, the Sabha made several requests to respondent Nos. 3 and
4 asking them to pay the balance amount of Rs. 8,00,000/-. However, despite repeated
requests, the respondents failed to do so.
10. The appellants submitted that the Sabha had learnt from reliable sources and from the
office of the Registrar of Properties that respondent No. 3, by misrepresentation and by
misusing his General Power of Attorney for the 13.5 Bighas of land, was attempting to
sell the entire 26 Bighas of the Sabha's land to other parties and was executing sale deeds
without any right whatsoever in respect of the remaining 11.19 Bighas. The appellants
learnt that respondent No. 4 had executed at least 29 registered sale deeds consisting of
13.5 Bighas of land in favour of various parties. The Sabha also discovered that 11.19
Bighas of land, for which there was only an agreement to sell between respondent No. 3
and the Sabha, was also sold by respondent No.4 to his father (respondent No. 3 herein)
by executing three registered sale deeds. Such sales could not give any title to respondent
No. 3.
11. On 30.4.2001, appellant No.1 sent a legal notice (second notice) to respondent Nos. 3
and 4 informing them that if the balance amount of Rs. 8,00,000/- was not paid, he would
have to cancel the General Power of Attorney. No reply to the said notice was received
from the respondents nor was Rs. 8,00,000/- paid. In these circumstances, appellant No. 1
(I. M. Goswami) cancelled the power of attorney issued in favour of respondent No. 4
and informed respondent No. 4 accordingly. A public notice of the same was also
published by the Sabha in a local newspaper Amar Ujala, a Hindi daily on 25.10.2002.
The notice informed the general public about the cancellation of the General Power of
Attorney given to respondent No. 4. According to the appellants, in order to protect the
interest of the Sabha, the remaining land of 11.19 Bighas of Khasra No.140 was sold to
one Sunil Kumar on as is where is basis on 18.12.2002.
12. Having committed breach of his contractual obligations, respondent No.3 filed a
criminal complaint to the SHO of Raiwala, Rishikesh Police Station on 23.4.2003 against
the appellants and three other persons alleging that he had been cheated by the appellants
in connivance with other persons by selling a portion of his land to a third party and by
cancelling the General Power of Attorney. After examining the matter, the SHO arrived at
the conclusion that no cognizable offence had been committed and the dispute in question
was of civil nature for which the civil remedy is available in law.
13. Respondent No. - 3 filed another complaint on the same day, i.e. 23.4.2003, to the
Senior Superintendent of Police, Dehradun and got the FIR registered against the
appellant and three other persons. The allegation of respondent No. 3 was that the
appellants in connivance with other persons had sold the part of land situated in Old
Khasra No.140 and new Khasra No. 89 which had been transferred to them by way of
General Power of Attorney. The FIR was registered on 23.4.2003 as Case No. - 26 of
2003 under Sections 420, 467 and 120-B, IPC.
14. It may be pertinent to mention that on 27.5.2003, respondent No. 3 filed a civil suit in
the court of Civil Judge (Senior Division) against the Sabha bearing Original Suit No.
302 of 2003 titled Himmat Rai Ahuja v. Sanatan Dharam Pratinidhi Sabha. In this suit,
respondent No. 3 prayed for cancellation of sale deed executed by the Sabha in favour of
Sunil Kumar and for permanent injunction against the appellants herein restraining them
from interfering in his alleged property. Thus, the issues relating to ascertaining the right,
title of the land in dispute and also the issue of correct demarcation of land in Khasra
No.140 are pending
@page-SC255
adjudication in a competent civil court.
15. On the basis of the FIR registered, the case was investigated by the Sub-Inspector,
Raiwala Police Station. Later on the investigation was transferred to Rishikesh Police
Station. Thereafter, the investigation was again transferred to Raiwala Police Station and
a charge-sheet was filed in the Court of the Special Judicial Magistrate, Rishikesh.
16. Aggrieved by the filing of the false and incorrect charge-sheet in the court of Special
Judicial Magistrate, Rishikesh in Criminal Case No.1728 of 2003 titled State v. Inder
Mohan Goswami and others, the appellants filed a Criminal Miscellaneous Application
No. 248 of 2003 in the High Court of Uttaranchal at Nainital under Section 482, Cr.P.C.
for quashing the proceedings against them. The High Court was pleased to pass the
interim order on 22.10.2003 staying further proceedings. A reply was filed on behalf of
the State by Shri Dinesh Kumar Sharma, SHO, Raiwala Police Station, in which two
points were raised - :
1. That, appellant No.1 has wrongly cancelled the General Power of Attorney given to
respondent No. 4; and
2. That, appellant No.1 has wrongly and illegally executed the sale deed of land
comprising in Khasra No.140 (new Khasra Nos. 61 to 68, 89 and 90) without returning
the earnest money of respondent Nos. 3 and 4.
17. The High Court by order dated 16.7.2004 dismissed the petition under Section 482,
Cr.P.C. filed by the appellants on the ground that the records show that the allegations in
the FIR constitute an offence as alleged by the complainant. The said order is challenged
in this appeal by special leave.
18. The appellants submitted that first appellant cancelled the power of attorney by a
registered cancellation deed after informing respondent No. 4. The cancellation was
necessary to protect its interests because respondent No. 4 was selling the Sabha's land by
misusing the power of attorney. The Sabha sold the land to Sunil Kumar only after
respondent Nos. - 3 and 4 failed to fulfill their obligations under the contract and had
mala fide intention to grab the land without paying the balance amount. Accordingly, the
sale deeds executed by respondent No. 4 in favour of respondent No. 3 were illegal. The
appellants cancelling the power of attorney and selling a part of the land to Sunil Kumar
to protect the interests of the Sabha by no stretch of the imagination attracts ingredients
of the offences of sections 467, 420 and 120-B IPC. According to the appellants, the
entire issue relates to ascertaining the right, title of the land in dispute and also the issue
of correct demarcation of the land Khasra No.140, all of which are pending adjudication
before a competent civil court. The appellants contended that they filed a criminal
miscellaneous application under section 482, Cr.P.C. for quashing the FIR because no
offence under sections 467, 420 and 120-B of the I.P.C. could be made out. The
controversy between the parties is purely of a civil nature. A civil suit has already been
filed and is pending adjudication. The appellants submitted that the High Court gravely
erred in dismissing the application under section 482, Cr.P.C; whereas, according to the
respondents, the High Court was justified in declining to quash the FIR because of the
conduct of the appellants. In the counter-affidavit, it was also alleged that the loss had not
been suffered by the appellants but in fact it had been suffered by the respondents.
19. The appellants in the rejoinder submitted that the trial court was not justified in taking
cognizance of the matter when no prima facie case was made out against the appellants.
The trial court gravely erred in not appreciating the complete facts of the case in the
proper perspective. The trial court has not properly comprehended the complete
investigation reports, which were conducted by two different investigating officers. It was
pointed out that it was the respondents who had committed criminal breach by purporting
to sell that part of the land for which an agreement to sell was procured, by misusing the
Power of Attorney given to them for some other part of the land. Respondent No. 4 was
clearly guilty of offences under sections 420 and 467, IPC and the appellants had also
filed a criminal complaint against respondent Nos. 3 and 4 before the Special Judicial
Magistrate, Rishikesh under sections 120-B/467/468/471, IPC. The criminal case was
registered as Case No.1306 of 2003 titled as I.M. Goswami v. Suresh Ahuja. The Special
Judicial Magistrate vide order dated 12th May, 2005 had issued summons to respondent
Nos. 3 and 4.
20. The appellants submitted that in the impugned judgment, the High Court had
@page-SC256
also disregarded the settled legal position crystallized by various judgments of this court
and declined to quash the criminal proceedings against the appellants.
21. We have heard the learned counsel for the parties at length. The appellants who are
office-bearers of a charitable organization, namely, Sanatan Dharma Pratinidhi Sabha, in
order to protect the interests of the Sabha cancelled the Power of Attorney by executing a
registered Cancellation Deed after giving notice to the Power of Attorney holders. The
appellants sold only that part of the land to Sunil Kumar on behalf of the Sabha for which
an agreement to sell with the complainants (respondents) had already been terminated.
The respondent's earnest money had been forfeited. All of this was only done after
appellants had given respondents due notice.
22. The veracity of the facts alleged by the appellants and the respondents can only be
ascertained on the basis of evidence and documents by a civil court of competent
jurisdiction. The dispute in question is purely of civil nature and respondent No. 3 has
already instituted a civil suit in the court of Civil Judge. In the facts and circumstances of
this case, initiating criminal proceedings by the respondents against the appellants is
clearly an abuse of the process of the court.
Scope and ambit of court's powers under section 482, Cr.P.C.
23. This court in a number of cases has laid down the scope and ambit of courts powers
under section 482, Cr.P.C. Every High Court has inherent power to act ex debito justitiae
to do real and substantial justice, for the administration of which alone it exists, or to
prevent abuse of the process of the court. Inherent power under section 482, Cr.P.C. can
be exercised - :
(i) to give effect to an order under the Code;
(ii) to prevent abuse of the process of court, and
(iii) to otherwise secure the ends of justice.
24. Inherent powers under section 482, Cr.P.C. though wide have to be exercised
sparingly, carefully and with great caution and only when such exercise is justified by the
tests specifically laid down in this section itself. Authority of the court exists for the
advancement of justice. If any abuse of the process leading to injustice is brought to the
notice of the court, then the Court would be justified in preventing injustice by invoking
inherent powers in absence of specific provisions in the Statute.
Discussion of decided cases
25. Reference to the following cases would reveal that the courts have consistently taken
the view that they must use this extraordinary power to prevent injustice and secure the
ends of justice. The English courts have also used inherent power to achieve the same
objective. It is generally agreed that the Crown Court has inherent power to protect its
process from abuse. In Connelly v. DPP [1964] AC 1254, Lord Devlin stated that where
particular criminal proceedings constitute an abuse of process, the court is empowered to
refuse to allow the indictment to proceed to trial. Lord Salmon in DPP v. Humphrys
[1977] AC 1, stressed the importance of the inherent power when he observed that it is
only if the prosecution amounts to an abuse of the process of the court and is oppressive
and vexatious that the Judge has the power to intervene. He further mentioned that the
court's power to prevent such abuse is of great constitutional importance and should be
jealously preserved.
26. In R.P. Kapur v. State of Punjab, AIR 1960 SC 866, this court summarized some
categories of cases where inherent power can and should be exercised to quash the
proceedings - :
(i) where it manifestly appears that there is a legal bar against the institution or
continuance of the proceedings;
(ii) where the allegations in the first information report or complaint taken at their face
value and accepted in their entirety do not constitute the offence alleged;
(iii) where the allegations constitute an offence, but there is no legal evidence adduced or
the evidence adduced clearly or manifestly fails to prove the charge.
27. The powers possessed by the High Court under section 482 of the Code are very wide
and the very plenitude of the power requires great caution in its exercise. The court must
be careful to see that its decision in exercise of this power is based on sound principles.
The inherent power should not be exercised to stifle a legitimate prosecution. The High
Court should normally refrain from giving a prima facie decision in
@page-SC257
a case where all the facts are incomplete and hazy; moreso, when the evidence has not
been collected and produced before the court and the issues involved, whether factual or
legal, are of such magnitude that they cannot be seen in their true perspective without
sufficient material. Of course, no hard and fast rule can be laid down in regard to cases in
which the High Court will exercise its extraordinary jurisdiction of quashing the
proceedings at any stage.
28
. This court in State of Karnataka v. L. Muniswamy and others (1977) 2 SCC 699,
observed that the wholesome power under section 482, Cr.P.C. entitles the High Court to
quash a proceeding when it comes to the conclusion that allowing the proceeding to
continue would be an abuse of the process of the court or that the ends of justice require
that the proceeding ought to be quashed. The High Courts have been invested with
inherent powers, both in civil and criminal matters, to achieve a salutary public purpose.
A court proceeding ought not to be permitted to degenerate into a weapon of harassment
or persecution. The court observed in this case that ends of justice are higher than the
ends of mere law though justice must be administered according to laws made by the
legislature. This case has been followed in a large number of subsequent cases of this
court and other courts.AIR 1977 SC 1489
AIR 1982 SC 1238 at P. 1239, Para 1
29. In Chandrapal Singh and others v. Maharaj Singh and another (1982) 1 SCC 466, in a
landlord and tenant matter where criminal proceedings had been initiated, this Court
observed in para 1 at page 467 as under - :-
"A frustrated landlord after having met his waterloo in the hierarchy of civil courts, has
further enmeshed the tenant in a frivolous criminal prosecution which prima facie appears
to be an abuse of the process of law. The facts when stated are so telling that the further
discussion may appear to be superfluous.
30. The court noticed that the tendency of perjury is very much on the increase. Unless
the courts come down heavily upon such persons, the whole judicial process would come
to ridicule. The court also observed that chagrined and frustrated litigants should not be
permitted to give vent to their frustration by cheaply invoking jurisdiction of the criminal
court.
31
. This court in Madhavrao Jiwajirao Scindia and others v. Sambhajirao Chandrojirao

Angre and others (1988) 1 SCC 692, observed in para 7 as under - : AIR 1988 SC
709
"7. The legal position is well settled that when a prosecution at the initial stage is asked to
be quashed, the test to be applied by the court is as to whether the uncontroverted
allegations as made prima facie establish the offence. It is also for the court to take into
consideration any special features which appear in a particular case to consider whether it
is expedient and in the interest of justice to permit a prosecution to continue. This is so on
the basis that the court cannot be utilized for any oblique purpose and where in the
opinion of the court chances of an ultimate conviction is bleak and, therefore, no useful
purpose is likely to be served by allowing a criminal prosecution to continue, the court
may while taking into consideration the special facts of a case also quash the proceeding
even though it may be at a preliminary stage."
32
. In State of Haryana and others v. Bhajan Lal and others, 1992 Supp (1) SCC 335, this
court in the backdrop of interpretation of various relevant provisions of the Cr.P.C. under
Chapter XIV and of the principles of law enunciated by this court in a series of decisions
relating to the exercise of the extraordinary power under Article 226 of the Constitution
of India or the inherent powers under section 482, Cr.P.C. gave the following categories
of cases by way of illustration wherein such power could be exercised either to prevent
abuse of the process of the court or otherwise to secure the ends of justice. Thus, this
court made it clear that it may not be possible to lay down any precise, clearly defined
and sufficiently channelised and inflexible guidelines or rigid formulae and to give an
exhaustive list to myriad kinds of cases wherein such power should be exercised - :
1992 AIR SCW 237
"(1) Where the allegations made in the first information report or the complaint, even if
they are taken at their face value and accepted in their entirety do not prima facie
constitute any offence or make out a case against the accused.
(2) Where the allegations in the first information report and other materials, if any,
@page-SC258
accompanying the FIR do not disclose a cognizable offence, justifying an investigation
by police officers under Section 156(1) of the Code except under an order of a Magistrate
within the purview of Section 155(2) of the Code.
(3) Where the uncontroverted allegations made in the FIR or complaint and the evidence
collected in support of the same do not disclose the commission of any offence and make
out a case against the accused.
(4) Where, the allegations in the FIR do not constitute a cognizable offence but constitute
only a non-cognizable offence, no investigation is permitted by a police officer without
an order of a Magistrate as contemplated under Section 155(2) of the Code.
(5) Where the allegations made in the FIR or complaint are so absurd and inherently
improbable on the basis of which no prudent person can ever reach a just conclusion that
there is sufficient ground for proceeding against the accused.
(6) Where there is an express legal bar engrafted in any of the provisions of the Code or
the concerned Act (under which a criminal proceeding is instituted) to the institution and
continuance of the proceedings and/or where there is a specific provision in the Code or
the concerned Act, providing efficacious redress for the grievance of the aggrieved party.
(7) Where a criminal proceeding is manifestly attended with mala fide and/or where the
proceeding is maliciously instituted with an ulterior motive for wreaking vengeance on
the accused and with a view to spite him due to private and personal grudge.
33
. This court in Janata Dal v. H. S. Chowdhary and others (1992) 4 SCC 305, observed
thus - : 1993 AIR SCW 248, Para 130
"132. The criminal courts are clothed with inherent power to make such orders as may be
necessary for the ends of justice. Such power though unrestricted and undefined should
not be capriciously or arbitrarily exercised, but should be exercised in appropriate cases,
ex debito justitiae to do real and substantial justice for the administration of which alone
the courts exist. The powers possessed by the High Court under section 482 of the Code
are very wide and the very plentitude of the power requires great caution in its exercise.
Courts must be careful to see that its decision in exercise of this power is based on sound
principles."
34
. In G. Sagar Suri and another v. State of U.P. and others (2000) 2 SCC 636, this court
observed that it is the duty and obligation of the criminal court to exercise a great deal of
caution in issuing the process particularly when matters are essentially of civil nature.
2000 AIR SCW 296
35
. This court in Roy V. D. v. State of Kerala (2000) 8 SCC 590, observed thus - : 2000
AIR SCW 4005
"18. It is well settled that the power under section 482, Cr.P.C has to be exercised by the
High Court, inter alia, to prevent abuse of the process of any court or otherwise to secure
the ends of justice. Where criminal proceedings are initiated based on illicit material
collected on search and arrest which are per se illegal and vitiate not only a conviction
and sentence based on such material but also the trial itself, the proceedings cannot be
allowed to go on as it cannot but amount to abuse of the process of the court; in such a
case not quashing the proceedings would perpetuate abuse of the process of the court
resulting in great hardship and injustice to the accused. In our opinion, exercise of power
under section 482, Cr.P.C. to quash proceedings in a case like the one on hand, would
indeed secure the ends of justice."
36
. This court in Zandu Pharmaceutical Works Ltd. and others v. Mohd. Sharaful Haque and
another (2005) 1 SCC 122, observed thus - :- 2004 AIR SCW 6185, Para 8
"It would be an abuse of process of the court to allow any action which would result in
injustice and prevent promotion of justice. In exercise of the powers, court would be
justified to quash any proceeding if it finds that initiation/continuance of it amounts to
abuse of the process of court or quashing of these proceedings would otherwise serve the
ends of justice. When no offence is disclosed by the complaint, the court may examine
the question of fact. When a complaint is sought to be quashed, it is permissible to look
into the materials to assess what the complainant has alleged and whether any offence is
made out even if the allegations are accepted in toto.
37
. In Indian Oil Corporation v. NEPC India Ltd. and others (2006) 6 SCC 736, this court
again cautioned about a growing tendency 2006 AIR SCW 3830
@page-SC259
in business circles to convert purely civil disputes into criminal cases. The court noticed
the prevalent impression that civil law remedies are time consuming and do not
adequately protect the interests of lenders/creditors. The court further observed that any
effort to settle civil disputes and claims, which do not involve any criminal offence, by
applying pressure through criminal prosecution should be deprecated and discouraged."
38
. The question before us is - whether the case of the appellants comes under any of the
categories enumerated in Bhajan Lal (supra) - ? Is it a case where the allegations made in
the first information report or the complaint, even if they are taken at their face value and
accepted in entirety, do not make out a case against the accused under Sections 420, 467
and 120B IPC - ? For determination of the question it becomes relevant to note the nature
of the offences alleged against the appellants, the ingredients of the offences and the
averments made in the FIR/complaint. 1992 AIR SCW 237
39. In the instant case, the first information report has been registered under sections
420/467/120B IPC. The allegations levelled in the first information report are of (1)
cheating and (2) forgery.
Analysis of relevant provisions of law
40. Firstly, we shall deal with the section 420 IPC. Cheating is defined in section 415 IPC
and is punishable under section 420 IPC. Section 415 is set out below - :
"415. Cheating.- Whoever, by deceiving any person, fraudulently or dishonestly induces
the person so deceived to deliver any property to any person, or to consent that any
person shall retain any property, or intentionally induces the person so deceived to do or
omit to do anything which he would not do or omit if he were not so deceived, and which
act or omission causes or is likely to cause damage or harm to that person in body, mind,
reputation or property, is said to 'cheat'.
Explanation.- A dishonest concealment of facts is a deception within the meaning of this
section."
Section 415 IPC thus requires-
1. deception of any person.
2. (a) fraudulently or dishonestly inducing that person -
(i) to deliver any property to any person; or
(ii) to consent that any person shall retain any property; or
(b) intentionally inducing that person to do or omit to do anything which he would not do
or omit if he were not so deceived, and which act or omission causes or is likely to cause
damage or harm to that person in body, mind, reputation or property.
41. On a reading of the aforesaid section, it is manifest that in the definition there are two
separate classes of acts which the person deceived may be induced to do. In the first class
of acts he may be induced fraudulently or dishonestly to deliver property to any person.
The second class of acts is the doing or omitting to do anything which the person
deceived would not do or omit to do if he were not so deceived. In the first class of cases,
the inducing must be fraudulent or dishonest. In the second class of acts, the inducing
must be intentional but need not be fraudulent or dishonest. Therefore, it is the intention
which is the gist of the offence. To hold a person guilty of cheating it is necessary to
show that he had a fraudulent or dishonest intention at the time of making the promise.
From his mere failure to subsequently keep a promise, one cannot presume that he all
along had a culpable intention to break the promise from the beginning.
42. We shall now deal with the ingredients of section 467 IPC. Section 467 IPC reads as
under - :
"467. Forgery of valuable security, will etc.- Whoever forges a document which purports
to be a valuable security or a will, or an authority to adopt a son, or which purports to
give authority to any person to make or transfer any valuable security, or to receive the
principal, interest or dividends thereon, or to receive or deliver any money, moveable
property, or valuable security, or any document purporting to be an acquittance or receipt
acknowledging the payment of money, or an acquittance or receipt for the delivery of any
moveable property or valuable security, shall be punished with imprisonment for life, or
with imprisonment of either description for a term which may extend to ten years, and
shall also be liable to fine."
43. The following ingredients are essential for commission of the offence under
@page-SC260
section 467 IPC - :
1. the document in question so forged;
2. the accused who forged it.
3. the document is one of the kinds enumerated in the aforementioned section.
The basic ingredients of offence under Section 467 are altogether missing even in the
allegations of the FIR against the appellants. Therefore, by no stretch of the imagination,
the appellants can be legally prosecuted for an offence under Section 467 IPC.
44. Even if all the averments made in the FIR are taken to be correct, the case for
prosecution under sections 420 and 467 IPC is not made out against the appellants. To
prevent abuse of the process and to secure the ends of justice, it becomes imperative to
quash the FIR and any further proceedings emanating therefrom.
45. The court must ensure that criminal prosecution is not used as an instrument of
harassment or for seeking private vendetta or with an ulterior motive to pressure the
accused. On analysis of the aforementioned cases, we are of the opinion that it is neither
possible nor desirable to lay down an inflexible rule that would govern the exercise of
inherent jurisdiction. Inherent jurisdiction of the High Courts under Section 482 Cr.P.C.
though wide has to be exercised sparingly, carefully and with caution and only when it is
justified by the tests specifically laid down in the Statute itself and in the aforementioned
cases. In view of the settled legal position, the impugned judgment cannot be sustained.
46. Before parting with this appeal, we would like to discuss an issue which is of great
public importance, i.e., how and when warrants should be issued by the Court? It has
come to our notice that in many cases that bailable and non-bailable warrants are issued
casually and mechanically. In the instant case, the court without properly comprehending
the nature of controversy involved and without exhausting the available remedies issued
non-bailable warrants. The trial court disregarded the settled legal position clearly
enumerated in the following two cases.
47. In Omwati v.State of UP and Another (2004) 4 SCC 425, this court dealt with a rather
unusual matter wherein the High Court firstly issued bailable warrants against the
appellant and thereafter by issuing non-bailable warrants put the complainant of the case
behind bars without going through the facts of the case. This Court observed that the
unfortunate sequel of such unmindful orders has been that the appellant was taken into
custody and had to remain in jail for a few days, but without any justification whatsoever.
She suffered because facts of the case were not considered in proper perspective before
passing the orders. The court also observed that some degree of care is supposed to be
taken before issuing warrants.
48
. In State of U.P. v. Poosu and Another (1976) 3 SCC 1 at para 13 page 5, the Court
observed - : AIR 1976 SC 1750, Para 13
"Whether in the circumstances of the case, the attendance of the accused respondent can
be best secured by issuing a bailable warrant or non-bailable warrant, is a matter which
rests entirely in the discretion of the court. Although, the discretion is exercised
judiciously, it is not possible to computerize and reduce into immutable formulae the
diverse considerations on the basis of which this discretion is exercised. Broadly
speaking, the court would take into account the various factors such as the nature and
seriousness of the offence, the character of the evidence, circumstances peculiar to the
accused, possibility of his absconding, larger interest of the public and the State.
Personal liberty and the interest of the State
49. Civilized countries have recognized that liberty is the most precious of all the human
rights. The American Declaration of Independence 1776, French Declaration of the
Rights of Men and the Citizen 1789, Universal Declaration of Human Rights and the
International Covenant of Civil and Political Rights 1966 all speak with one voice -
liberty is the natural and inalienable right of every human being. Similarly, Article 21 of
our Constitution proclaims that no one shall be deprived of his liberty except in
accordance with the procedure prescribed by law.
50. The issuance of non-bailable warrants involves interference with personal liberty.
Arrest and imprisonment means deprivation of the most precious right of an individual.
Therefore, the courts have to be extremely careful before issuing non-bailable warrants.
51. Just as liberty is precious for an individual so is the interest of the society in
maintaining law and order. Both are
@page-SC261
extremely important for the survival of a civilized society. Sometimes in the larger
interest of the Public and the State it becomes absolutely imperative to curtail freedom of
an individual for a certain period, only then the non-bailable warrants should be issued.
When non-bailable warrants should be issued
52. Non-bailable warrant should be issued to bring a person to court when summons of
bailable warrants would be unlikely to have the desired result. This could be when - :
it is reasonable to believe that the person will not voluntarily appear in court; or
the police authorities are unable to find the person to serve him with a summon; or
it is considered that the person could harm someone if not placed into custody
immediately.
53. As far as possible, if the court is of the opinion that a summon will suffice in getting
the appearance of the accused in the court, the summon or the bailable warrants should be
preferred. The warrants either bailable or non-bailable should never be issued without
proper scrutiny of facts and complete application of mind, due to the extremely serious
consequences and ramifications which ensue on issuance of warrants. The court must
very carefully examine whether the Criminal Complaint or FIR has not been filed with an
oblique motive.
54. In complaint cases, at the first instance, the court should direct serving of the
summons along with the copy of the complaint. If the accused seem to be avoiding the
summons, the court, in the second instance should issue bailable warrant. In the third
instance, when the court is fully satisfied that the accused is avoiding the courts
proceeding intentionally, the process of issuance of the non-bailable warrant should be
resorted to. Personal liberty is paramount, therefore, we caution courts at the first and
second instance to refrain from issuing non-bailable warrants.
55. The power being discretionary must be exercised judiciously with extreme care and
caution. The court should properly balance both personal liberty and societal interest
before issuing warrants. There cannot be any strait-jacket formula for issuance of
warrants but as a general rule, unless an accused is charged with the commission of an
offence of a heinous crime and it is feared that he is likely to tamper or destroy the
evidence or is likely to evade the process of law, issuance of non-bailable warrants should
be avoided.
56. The Court should try to maintain proper balance between individual liberty and the
interest of the public and the State while issuing non-bailable warrant.
57. On consideration of the totality of facts and circumstances of this case, the impugned
judgment and order of the High Court cannot be sustained.
58. Needless to mention that the concerned civil court (where the suit is pending) shall
decide the suit without being influenced by any observation made by us in this judgment
regarding the merits of the civil suit.
59. Reverting to the facts of this case, we are of the considered view that the impugned
judgment of the High Court in declining to exercise its inherent power has led to grave
miscarriage of justice. Consequently, we set aside the impugned judgment and in order to
prevent abuse of the process of the court and to otherwise secure the ends of the justice
we direct that all the proceedings emanating from the FIR shall stand quashed. The
appeal is disposed of accordingly. In the facts and circumstances of this case, we direct
the parties to bear their own costs.
Appeal allowed.
AIR 2008 SUPREME COURT 261 "Devinder Singh v. State of Punjab"
(From : 2007 (1) Pun LR 337)
Civil Appeal No. 4843 with 4844 of 2007 (arising out of SLP (C) No. 9954 with 10182 of
2006), D/- 12 -10 -2007.
Devinder Singh and Ors. v. State of Punjab and Ors.
(A) Land Acquisition Act (1 of 1894), S.6(3) - Constitution of India, Art.226 -
ACQUISITION OF LAND - WRITS - JUDICIAL REVIEW - Acquisition of land -
Declaration as to purpose of acquisition - Open to judicial review - If it suffers from
jurisdictional errors.
Where an action taken is without jurisdiction, even an order which is conclusive may be
subject to judicial review. Jurisdictional errors, as is well known, are divided in two broad
categories - (i) an order passed which is wholly without jurisdiction; and (ii)
@page-SC262
although the action is not ultra vires, the jurisdictional error has been committed while
exercising jurisdiction. When an order is passed without jurisdiction it amounts to
colourable exercise of power. Formation of opinion must precede application of mind.
Such application of mind must be on the materials brought on records. The materials
should be such which are required to be collected by the authorities entitled therefor. The
authorities must act within the four corners of the statute. An opinion formed even on the
basis of an advice by an authority which is not contemplated under the statute render the
decision bad in law. A statutory authority is bound by the procedure laid down in the
statute and must act within the four-corners thereof. (Paras 29, 32)
(B) Land Acquisition Act (1 of 1894), S.6, S.41 - ACQUISITION OF LAND -
Acquisition of land - For public purpose or for company - Declaration under S. 6 has to
clearly specify purpose for acquisition - A declaration is to be made either for a public
purpose or for a company - It cannot be for both. (Para 39)
(C) Land Acquisition Act (1 of 1894), S.6, S.41 - Land Acquisition (Companies) Rules
(1963), R.4 - ACQUISITION OF LAND - Acquisition for public purpose or for company
- Acquisition made on request by Public Ltd. Company - Satisfaction that acquisition was
for public purpose and decision by Govt. to pay part of compensation - Not formed at
time of agreement between govt. and company - Subsequent payment of nominal amount
by Govt. - Acquisition would not be under Part II.
The acquisition was made on the request of the public company. Apart from the inquiry
conducted by the Land Acquisition Committee in terms of the provisions of Part VII of
the Act, admittedly an agreement had also been entered into between company and Govt.
On basis of the agreement a satisfaction of the Govt. in that behalf for acquisition of the
piece of land described therein was arrived at on the premise that the said work is likely
to be useful for the company. Under the terms and conditions of the agreement the
company was to pay to the Govt. the amount of compensation in advance. Only on
payment by the company it was to get possession wherefor also the Govt. reserved its
discretion. Restriction on use of land and time schedule was also to be followed by
Company. It is not clear as to at what stage the State thought it fit to meet a part of the
expenses for acquisition of land. Such an opinion on the part of the State having regard to
the statutory scheme should have been formed prior to entering into the agreement itself.
The agreement does not mention about any payment of a part of compensation by the
State. In absence of any other material on record, it can be said that the State had not
formed any opinion in that behalf at least when the agreement was executed. Satisfaction
on the part of the State required to be arrived at upon formation of opinion on the basis of
materials brought on records for the purpose of Part II of the Act are different from that of
Part VII. Once the appropriate Govt. arrives at a decision that the land sought to be
acquired is needed for a public purpose, the Court would not go behind it, as the same
may furnish a valid argument for upholding an acquisition under Part II. But when an
acquisition is made under Part VII, the condition precedents therefor as contained in the
Companies Rules must be satisfied. (Paras 35, 36)
Land Acquisition Act is a expropriatory legislation. In the case of acquisition of land for a
private company, existence of a public purpose being not requisite criteria, other statutory
requirements call for strict compliance, being imperative in character.
(Para 41)
(D) Land Acquisition Act (1 of 1894), S.1 - ACQUISITION OF LAND - LEGISLATION
- Act is expropriatory legislation - Requires strict construction. (Para 41)
(E) Land Acquisition Act (1 of 1894), S.55 - Land Acquisition (Companies) Rules (1963),
R.4 - ACQUISITION OF LAND - Acquisition for company - Inquiry under R. 4 - Is
imperative /mandatory - Even if it is directory, same should be substantially complied
with - It cannot be ignored in its entirety - Non compliance renders exercise of
jurisdiction under Part VII erroneous. (Paras 43, 53, 54)
(F) WORDS AND PHRASES - Words and Phrases - Word 'shall' - Is imperative in
character. (Para 43)
(G) Land Acquisition Act (1 of 1894), S.55 - Land Acquisition (Companies) Rules
(1963), R.4 - ACQUISITION OF LAND - Acquisition for company - Inquiry under R. 4 -
Stage at which to be held. (Para 50)
@page-SC263
2007 AIR SCW 4387 : AIR 2007 SC 2458 40
2005 AIR SCW 4796 : AIR 2005 SC 3520 (Rel. on) (Pt. C) 40
2003 AIR SCW 3830 : AIR 2003 SC 3140 21, 22
1994 AIR SCW 3261 52
AIR 1985 SC 736 (Ref.) 46
AIR 1985 SC 1622 : 1985 All LJ 887 (Ref.) 49
AIR 1981 SC 866 (Rel. on) (Pt. E) 45, 50
AIR 1975 SC 629 (Rel. on) (Pt. E) 44, 50
AIR 1971 SC 1033 34
(1969)2 All ER 274 (Rel. on) (Pt. A) 29
AIR 1968 SC 432 51
AIR 1965 SC 427 37
AIR 1963 SC 151 (Rel. on) (Held Per Incuriam in view of AIR 1975 SC 629 and AIR
1981 SC 866) 31, 33, 50, 52
AIR 1962 SC 764 (Rel. on) (Pt. A) 30
AIR 1959 SC 781 20
AIR 1927 Mad 245 33
P. N. Lekhi, Sr. Advocate, Jaspreet Rai, Rajan Chaurasia, Rohit Nagpal, Rakesh Kumar,
M. K. Garg, Virender Goswami, Ms. Vijayalakshmi Menon, Nitish Massey, for
Appellants; Soli J. Sorabjee, Sr. Advocate, Dhruv Mehta, Harshvardhan Jha, Yashraj
Singh Deora, H. S. Munjral, Ajay Pal, Kulraj Rai, Sunil Roy, D. S. Mahra, for
Respondents.
Judgement
1. S. B. SINHA, J.:-Leave granted in both the Special Leave Petitions.
2. Appellants herein are owners of various tracts of agricultural lands situate in Village
Chak Gujran, Tehsil and District Hoshiarpur in the State of Punjab. Respondent No. 5,
M/s. International Tractors Limited, is a Company incorporated under the Companies
Act, 1956. It intended to set up a project named 'Ganesha Project'. It requested the State
to acquire lands in question in terms of the provisions of the Land Acquisition Act, 1894
(for short, 'the Act'). A notification was issued by the State purported to be under Section
4 of the Act on 15.02.2002, stating - :
"Whereas it appears to the Governor of Punjab that land is likely to be required to be
taken by the Government at the public expense, for a public purpose namely for setting
up of Ganesha Project, M/s. International Tractors Ltd. at Village Chak Gujran, Tehsil
and Distt. Hoshiarpur, it is hereby notified that the land in locality described below is
likely to be required for the above purpose.
This notification is made under the provisions of Section 4 of the Land Acquisition Act,
1894 to all whom it may concern.
In exercise of powers conferred by the aforesaid section, the Governor of Punjab is
pleased to authorize the officers for the time being engaged in undertaking with their
servants and workmen to enter upon and survey any land in the locality and do all other
acts required or permitted by that section.
Any person interested who has any objection to the acquisition of any land in the locality
may within thirty days of the publication of this notification file an objection in writing
before the Collector, Land Acquisition Department of Industries and Commerce, Punjab,
17-Bays Building, Chandigarh."
3. Objections having been called for, the appellants herein filed their objections in terms
of Section 5A of the Act, inter alia, stating - :
"5. That the proposed acquisition by the Punjab Government is unconstitutional, uncalled
for and against law and fact of the case, just in order to cause loss to the objectors and to
give unlawful gain to other party, i.e., the proposed Ganesha Project M/s. International
Tractor Ltd.
... ... ...
7. That the acquisition of the proposed land belonging to the objectors is against the
interest of the objectors keeping in view the policies of the State. The land in question is
cultivable fertile land and the proposed project if any can be shifted some where else at
some barren land as well as in the industrial zone according to Industries Master Plan and
in this way, it is in the interest of the Pollution Control Department.
... ... ...
9. That the objectors are cultivating the land for the last over 25 years, it is consolidated
at one place where in the objector has installed electric motors and planted popular trees
around the fields. The objectors do not want that the land in question be acquired since it
is against their interest and objectors are dependent on this Acquisition land. The
Agriculturist/Farmer is entirely dependent on his land for his livelihood. There are
various projects in the name of Escorts Tractors, Mohindra Tractors,
@page-SC264
Massy Furgon Tractors and so many other tractors companies/industries fulfilling the
needs of the public and as such there is no need at all of the proposed industry to be set
up in the lands of the objectors.
10. That in any way the proposed acquisition is against the rules of the acquisition and the
act itself keeping in view the interest of the objectors thus causing wrongful loss to the
objectors and causing wrongful gain to the proposed objectors".
4. Indisputably, a declaration was issued in terms of Section 6 of the Act and an
agreement was entered into by and between the Company and the State on 27.02.2003.
5. Writ petitions were filed by the appellants herein questioning the said purported
acquisition proceedings praying, inter alia, for the following relief : (b) Quash the
notifications dated 15.02.2002 (Annexure P-2) and 27.02.2003 (Annexure P-5) issued by
the respondent No.1 under Sections 4 and 6 of the Land Acquisition Act, 1894,
respectively.
6. During the pendency of the said writ petitions, notices in terms of Section 9 of the Act
were issued on 31.05.2004. An award was made on 18.02.2005. Allegedly, during the
pendency of the said writ petitions, a sum of Rs.100/- was deposited by the State as a
token amount for acquisition of the said lands in question.
7. By reason of the impugned judgment, the High Court opined :
(i) The acquisition was for a public purpose in view of the report submitted under the Act,
relevant portion whereof is as under :
"In case of M/s. International Tractors Ltd. the company has entered into an agreement
with a French company named M/s. Renault Agriculture France for manufacture of latest
technology tractors. M/s. Renault Agriculture France holds 20% equity in the company.
Production of these latest technology tractors will boost export, which will contribute to
the general welfare and prosperity of the whole community.
Therefore, in view of the facts and the relevant law as mentioned above, it is proved
beyond doubt that the profits have actually gone to the general public......
(ii) Acquisition of the lands in question was not a colourable exercise of power.
(iii) Acquisition was made in terms of the provisions contained in Part II of the Act and
not Part VII thereof, as the State had also contributed a sum of Rs.100/- for the purpose
of acquisition of lands.
(iv) Execution of the agreement with Respondent No.5-Company and declaration made
under Section 6 of the Act although were made on the same day, the same did not suffer
from the vice of non-application of mind.
(v) Respondent No. 5 being not a private company, statutory limitations contained in
Section 44B of the Act are not attracted.
(vi) Rule 4 of the Land Acquisition (Companies) Rules, 1963 (for short, 'the Companies
Rules') being directory in nature, it was not necessary to comply with the provisions
thereof.
8. Mr. P.N. Lekhi, learned Senior Counsel appearing on behalf of the appellants, in
support of these appeals, would, inter alia, submit :
i) The High Court erred in opining that the lands in question could be compulsorily
acquired for a company, other than private company, in accordance with the provisions of
Part II of the Act.
ii) In view of the insertion of clause (viii) of sub-section (f) in Section 3 by Act No. 3 of
1984, provision of Part II were not available for acquisition of land for companies.
iii) Action on the part of the State in entering into the agreement and issuing a declaration
under Section 6 of the Act on the same day was in excess of its power under the Act.
9. Mr. Soli J. Sorabjee, learned Senior Counsel appearing on behalf of Respondent No.5,
on the other hand, submitted :
i) Acquisition having been made for a public purpose, and a part of the expenses having
been made from the public exchequer, provisions of Part VII of the Act were not
attracted.
ii) Principles of natural justice as contained in Section 5A of the Act having been
complied with, the State was not required to carry out any inquiry as envisaged under
Rule 4 of the Companies Rules.
iii) Declaration made under Section 6 of the Act in regard to the existence of public
purpose being conclusive in nature, the court cannot go beyond the same.
(iv) Rule 4 of the Companies Rules being directory in nature, strict compliance thereof
@page-SC265
was not necessary.
10. The Act was enacted to amend the law for the acquisition of land for public purposes
and for companies. Section 3 of the Act provides for interpretation clauses. Clause (cc) of
Section 3 of the Act defined the expression "corporation owned or controlled by the
State" in the following terms :
"(cc) the expression "corporation owned or controlled by the State" means any body
corporate established by or under a Central, Provincial or State Act, and includes a
Government company as defined in Section 617 of the Companies Act, 1956 (1 of 1956),
a society registered under the Societies Registration Act, 1860 (21 of 1860), or under any
corresponding law for the time being in force in a State, being a society established or
administered by Government and a co-operative society within the meaning of any law
relating to co-operative societies for the time being in force in any State, being a co-
operative society in which not less than fifty-one per centum of the paid-up share capital
is held by the Central Government, or by any State Government or Governments, or
partly by the Central Government and partly by one or more State Governments.
11. The expression 'company' has been defined under clause (e) of Section 3 of the Act to
mean :
"(i) a company as defined in section 3 of the Companies Act, 1956 (1 of 1956), other than
a Government company referred to in clause (cc);
(ii) a society registered under the Societies Registration Act, 1860 (21 of 1860), or under
any corresponding law for the time being in force in a State, other than a society referred
to in clause (cc);
(iii) a co-operative society within the meaning of any law relating to co-operative
societies for the time being in force in any State, other than a co-operative society
referred to in clause (cc)
The expression 'Public purpose' has been defined in Section 3(f) of the Act to mean :
"(f) the expression "public purpose" includes-
(i) the provision of village-sites, or the extension, planned development or improvement
of existing village-sites;
(ii) the provision of land for town or rural planning;
(iii) the provision of land for planned development of land from public funds in
pursuance of any scheme or policy of Government and subsequent disposal thereof in
whole or in part by lease, assignment or outright sale with the object of securing further
development as planned;
(iv) the provision of land for a corporation owned or controlled by the State;
(v) the provision of land for residential purposes to the poor or landless or to persons
residing in areas affected by natural calamities, or to persons displaced or affected by
reason of the implementation of any scheme undertaken by Government, any local
authority or a corporation owned or controlled by the State;
(vi) the provision of land for carrying out any educational, housing, health or slum
clearance scheme sponsored by Government, or by any authority established by
Government for carrying out any such scheme, or, with the prior approval of the
appropriate Government, by a local authority, or a society registered under the Societies
Registration Act, 1860 (21 of 1860), or under any corresponding law for the time being in
force in a State, or a co-operative society within the meaning of any law relating to co-
operative societies for the time being in force in any State;
(vii) the provision of land for any other scheme of development sponsored by
Government or, with the prior approval of the appropriate Government, by a local
authority;
(viii) the provision of any premises or building for locating a public office,
but does not include acquisition of land for companies.;
12. Indisputably, the Land Acquisition Act is an expropriatory legislation. The State
ordinarily can acquire a property in exercise of its power of 'Eminent Domain' subject to
existence of public purpose and on payment of reasonable compensation in terms of the
provisions of the Act. However, the State has been empowered to acquire land also for
'companies' and for purposes other than public purpose.
13. Companies Act, 1956 provides for different types of company. A Government
Company is defined in Section 617 thereof. Respondent No. 5 may be a public limited
company, but it is not a Government Company. When it filed an application requesting
the State to acquire the lands for its
@page-SC266
purpose evidently an inquiry was caused to be made.
14. In its counter affidavit, the State has, inter alia, contended that Respondent No. 5 is an
existing unit for manufacturing tractors and lands sought to be acquired are adjoining
their factory. The State appointed a Sub-Committee of Land Acquisition Committee
constituted by the State recommending acquisition of 30 acres of lands. Approval of the
State, therefor was sought for. 'Ganesha Project' was not a project of the State but one
undertaken by Respondent No. 5. Such a project would come within the purview of
clause (aa) of Section 40(1) of the Act.
15. When a request is made by any wing of the State or a Government company for
acquisition of land for a public purpose, different procedures are adopted. Where,
however, an application is filed for acquisition of land at the instance of a 'company', the
procedures to be adopted therefor are laid down in Part VII of the Act. Although it may
not be decisive but the conduct of the State as to how it intended to deal with such a
requisition, is a relevant factor. The action of the State provides for an important
condition to consider as to whether the purpose wherefor a company requests it for
acquisition of land is a public purpose and/or which could be made at public expenses
either as a whole or in part, wherefor evidently provisions laid down in Part II shall be
resorted to. On the other hand, if the State forms an opinion that the acquisition of land at
the instance of the company may not be for public purpose or, therefor the expenses to be
incurred therefor either in whole or in part shall not be borne by the State, the procedures
laid down in Part VII thereof have to be resorted to. The procedures laid down under Part
VII of the Act are exhaustive. Rules have been framed prescribing the mode and manner
in which the State vis-a-vis the company should proceed. It provides for previous consent
of the Appropriate Government, execution of the agreement, previous inquiry before a
consent is accorded, publication of the agreement, restriction on transfer, etc. It also
provides for statutory injunction that no land shall be acquired except for the purpose
contained in clause (a) of sub-section (1) Section 40 of the Act for a private company
which is not a Government company. For the purpose of Section 44B of the Act, no
distinction is made between a private company and a public limited company.
16. The Land Acquisition (Companies) Rules, 1963 for acquisition of land for the
companies have been framed by the Central Government in exercise of its power under
Section 55 of the Act. It is not in dispute that the guidelines provided thereunder are
followed by the State Government. Concept of constitution of a Land Acquisition
Committee appears only from the Companies Rules; no other provision in respect thereof
has been made either under the Act or the rules framed thereunder. A bare perusal of sub-
rule (1) of Rule 4 of the said Rules categorically states that the same shall be applicable
where acquisition of land is to be made for the company envisaged under Part VII. The
State, as indicated hereinbefore, before this Court has categorically stated that advice
rendered by a Sub-Committee of the Land Acquisition Committee had been taken into
consideration by it with a view to proceed further in the matter. Rule 4 mandates the
appropriate Government to arrive at a satisfaction in regard to the factors enumerated
therein. Rule 4 of the Rules reads as under :
"4. Appropriate Government to be satisfied with regard to certain matters before initiating
acquisition proceedings- (1) Whenever a company makes an application to the
Appropriate Government for acquisition of any land, that Government shall direct the
Collector to submit a report to it on the following matters, namely:
(i) that the company has made its best endeavour to find out lands in the locality suitable
for the purpose of acquisition;
(ii) that the company has made all reasonable efforts to get such lands by negotiation with
the persons interested therein on payment of reasonable price and such efforts have
failed;
(iii) that the land proposed to be acquired is suitable for the purpose;
(iv) that the area of land proposed to be acquired is not excessive;
(v) that the company is in a position to utilise the land expeditiously; and
(vi) where the land proposed to be acquired is good agricultural land, that no alternative
suitable site can be found so as to avoid acquisition of that land.
(2) The Collector shall, after giving the
@page-SC267
company a reasonable opportunity, to make any representation in this behalf, hold an
inquiry into the matters referred to in sub-rule (1) and while holding such enquiry he
shall-
(i) in any case where the land proposed to be acquired is agricultural land consult the
Senior Agricultural Officer of the district whether or not such land is good agricultural
land;
(ii) determine, having regard to the provisions of Secs. 23 and 24 of the Act, the
approximate amount of compensation likely to be payable in respect of the land, which,
in the opinion of the Collector, should be acquired for the company; and
(iii) ascertain whether the company offered a reasonable price (not being less than the
compensation so determined), to the persons interested in the land proposed to be
acquired.
Explanation - For the purpose of this rule "good agricultural land" means any land which,
considering the level of agricultural production and the crop pattern of the area in which
it is situated, is of average or above average productivity and includes a garden or grove
land.
(3) As soon as may be after holding the enquiry under sub-rule (2), the Collector shall
submit a report to the Appropriate Government and a copy of the same shall be forwarded
by the Government to the Committee.
(4) No declaration shall be made by the Appropriate Government under Sec. 6 of the Act
unless-
(i) the Appropriate Government has consulted the Committee and has considered the
report submitted under this rule and the report, if any, submitted under Sec. 5-A of the
Act; and
(ii) the agreement under Sec. 41 of the Act has been executed by the company."
17. The State is also enjoined with a duty to make an inquiry wherefor an opportunity of
hearing to the company is required to be given. When the State intends to proceed with
the acquisition of land it must form an opinion that the lands which are going to be
acquired are not good agricultural lands. The rules by and large lay down a statutory
policy in that behalf and question of ignoring the same by the State does not arise.
18. We would consider the question as to whether Rule 4 aforementioned is mandatory or
directory or at what stage an inquiry is required to be made, a little later. But we must
record that it is not the case of the State that Rule 4, despite the fact that acquisition is
made in terms of Part VII of the Act, can be ignored.
19. The High Court proceeded on the basis that as the State formed an opinion that the
purpose for which the provisions of the Act were taken recourse to is a public purpose,
the provisions of Part II would apply in the instant case. We are not unmindful of the fact
that the definition of 'public purpose' as contained in Section 3(f) of the Act is an
inclusive one. Therefore, the said definition need not be kept confined to the matters
referred to therein. But with a view to ascertain as to what should be a public purpose, we
may notice its dictionary meaning as contained in Blacks Law Dictionary, Fifth Edition
which is as under :
"Public purpose: In the law of taxation, eminent domain, etc., this is a term of
classification to distinguish the objects for which, according to settled usage, the
government is to provide, from those which, by the like usage, are left to private interest,
inclination, or liberality. The constitutional requirement that the purpose of any tax,
police regulation, or particular exertion of the power of eminent domain shall be the
convenience, safety, or welfare of the entire community and not the welfare of a specific
individual or class of persons.
The term is synonymous with governmental purpose. As employed to denote the objects
for which taxes may be levied, it has no relation to the urgency of the public need or to
the extent of the public benefit which is to follow; the essential requisite being that a
public service or use shall affect the inhabitants as a community, and not merely as
individuals. A public purpose or public business has for its objective the promotion of the
public health, safety, morals, general welfare, security, prosperity, and contentment of all
the inhabitants or residents within a given political division, as, for example, a State, the
sovereign powers of which are exercised to promote such public purpose or public
business.
20. General meaning of the word 'public policy' has always been held to be an unruly
horse by this Court. [See Gherulal Parakh v. Mahadeodas Maiya and Others [See AIR
1959 SC 781].
@page-SC268
21
. Our attention has been drawn to a recent decision of this Court in Pratibha Nema and
Others v. State of M.P. and Others [(2003) 10 SCC 626]. Therein, for establishment of a
diamond park, 73.3 hectares of dry land was to be acquired. The proposal emanated from
the General Manager of the District Industries Centre. Sanction in principle for
acquisition was given by the Government of Madhya Pradesh; even Section 17 of the Act
was taken recourse to. The State contributed a token sum of Rs.100/- towards the cost of
acquisition. This Court clearly noticed that where the acquisition is for a company, its
cost is to be borne entirely by the company itself, provisions of Part 7 would apply. But
we must hasten to add that the Bench did not have any occasion to consider the question
as to whether the State is entitled to take recourse to the provisions of both Part II and
Part VII of the Act simultaneously. The Bench furthermore proceeded to consider the
requirements to hold that a public purpose need not be ascertained only from the point of
view of applicability of Part II but also the provisions of Part VII, stating : 2003 AIR
SCW 3830
"22. Thus the distinction between public purpose acquisition and Part VII acquisition has
got blurred under the impact of judicial interpretation of relevant provisions. The main
and perhaps the deceive distinction lies in the fact whether cost of acquisition comes out
of public funds wholly or partly. Here again, even a token or nominal contribution by the
Government was held to be sufficient compliance with the second proviso to Section 6 as
held in a catena of decisions. The net result is that by contributing even a trifling sum, the
character and pattern of acquisition could be changed by the Government. In ultimate
analysis, what is considered to be an acquisition for facilitating the setting up of an
industry in the private sector could get imbued with the character of public purpose
acquisition if only the Government comes forward to sanction the payment of a nominal
sum towards compensation. In the present state of law, that seems to be the real position.
22
. We need not go into the nicety of the question, keeping in view the fact that there are
binding precedentsDevinder Singh v. State of Punjab in that behalf that in a case of
acquisition for a public company, public purpose is not to be assumed and the point of
distinction between acquisition of lands under Part II and Part VII would be the source of
funds to cover the cost of acquisition. This Court in Pratibha Nema (supra) held : 2003
AIR SCW 3830
".........In other words, the second proviso to Section 6(1) is the main dividing ground for
the two types of acquisition.........."
23. The undisputed fact is that apart from the inquiry conducted by the Land Acquisition
Committee in terms of the provisions of Part VII of the Act, admittedly an agreement had
also been entered into on 27.02.2003.
24. The agreement in terms of the provisions referred to above by the Company and the
Government, a satisfaction of the Government in that behalf for acquisition of the piece
of land described in therein was arrived at on the premise that the said work is likely to be
useful for the company.
25. Section 41 of the Act has specifically been mentioned for the purpose of entering into
the agreement. The terms and conditions of the agreement envisaged : (i) the company
was to pay to the Government of Punjab the amount of compensation; (ii) it was to
deposit all the sums demanded by the Collector in anticipation, which may be necessary
therefor; (iii) only on payment by the company it was to get possession wherefor also the
Government reserved its discretion; (iv) use by the company of the land only for the
purpose for which acquisition was made was insisted.; (v) provision in regard to time for
completion of the project.
26. The Government reserved the right of resumption of the land, if time schedule
prescribed therein is not adhered to; in which event land shall vest in the Government.
The opinion of the Government in that behalf is said to be final.
27. Whether in the aforementioned situation, the provisions of Part II can be said to have
been complied with, is the question.
28. Submission of Mr. Sorabjee is that any declaration that the land has been acquired for
public purpose is conclusive.
29. We would proceed on the said assumption but it is a well-settled principle of law that
where an action taken is without jurisdiction, even an order which is conclusive may be
subject to judicial review. Jurisdictional errors, as is well-known, are divided in two
broad categories- (i) an order passed which is wholly without jurisdiction;
@page-SC269
and (ii) Although the action is not ultra vires, the jurisdictional error has been committed
while exercising jurisdiction. [See John v. Rees and Others (1969) 2 All ER 274].
30
. In R.L. Arora v. State of U.P. [(1962) Supp 2 SCR 149], this Court held : AIR 1962 SC
764, Para 18
"Then it was urged on behalf of the respondents that S. 6(3) makes the purpose noted in
the notification under S. 6(1) not justiciable. We have not been able to understand how
that provision helps the respondents. All that S. 6(3) says is that the declaration shall be
conclusive evidence that the land is needed for a public purpose or for a company. In this
case the declaration was that the land was needed for a company and that according to S.
6(3) is conclusive evidence that the land is so needed. Now it is not the case of the
appellant that the land was not needed for the Works in the present case, nor does the
appellant say that though the land was needed for some other purpose, the notification
falsely declares that it was needed for the Works. In the circumstances the conclusiveness
envisaged by S. 6(3) is of no assistance to the solving of the problem with which we are
concerned in the present case."
31. Mr. Sorabjee has strongly relied upon a decision of this Court in Smt. Somawanti and
Others v. The State of Punjab and Others [AIR 1963 SC 151 : 1963 (2) SCR 774].
In Somawanti (supra), this Court opined - :
"Though we are of the opinion that the courts are not entitled to go behind the declaration
of the Government to the effect that a particular purpose for which the land is being
acquired is a public purpose we must emphasise that the declaration of the Government
must be relatable to a public purpose as distinct from a purely private purpose. If the
purpose for which the acquisition is being made is not relatable to a public purpose then a
question may well arise whether in making the declaration there has been, on the part of
the Government a fraud on the power conferred upon it by the Act. In other words the
question would then arise whether that declaration was merely a colourable exercise of
the power conferred by the Act, and, therefore, the declaration is open to challenge at the
instance of the party aggrieved. To such a declaration the protection of S. 6(3) will not
extend. For, the question whether a particular action was the result of a fraud or not is
always justiciable, provisions such as S. 6(3) notwithstanding."
[Emphasis supplied]
32. When an order is passed without jurisdiction it amounts to colourable exercise of
power. Formation of opinion must precede application of mind. Such application of mind
must be on the materials brought on records. The materials should be such which are
required to be collected by the authorities entitled therefor. The authorities must act
within the four-corners of the statute. An opinion formed even on the basis of an advice
by an authority which is not contemplated under the statute render the decision bad in
law. A statutory authority is bound by the procedure laid down in the statute and must act
within the four-corners thereof.
33. The effect of contribution of a sum of Rs.100/- by the State purported to be towards
the amount of compensation, may not be noticed.
In Somawanti (supra) although this Court while upholding that contribution of sum of
Rs.100/- as a part of the cost of acquisition may subserve the requirement of law,
proceeded to opine : AIR 1963 SC 151
"We would like to add that the view taken in Senga Naicken's case [I.L.R. 50 Mad. 308 :
AIR 1927 Mad. 245] has been followed by the various High Courts of India. On the basis
of the correctness of that view the State Governments have been acquiring private
properties all over the country by contributing only token amounts towards the cost of
acquisition. Titles to many such properties would be unsettled if we were now to take the
view that 'partly at public expense' means substantially at public expense. Therefore, on
the principle of stare decisis the view taken in Senga Naicken's case [I.L.R. 50 Mad. 308 :
AIR 1927 Mad. 245] should not be disturbed. We would, however, guard ourselves
against being understood to say that a token contribution by the State towards the cost of
acquisition will be sufficient compliance with the law in each and every case. Whether
such contribution meets the requirements of the law would depend upon the facts of
every case. Indeed the fact that the State's contribution is nominal may well indicate, in
particular circumstances that the action of the State was a colourable exercise of power.
In our opinion 'part' does not necessarily mean a
@page-SC270
substantial part and that it will be open to the Court in every case which comes up before
it to examine whether the contribution made by the State satisfies the requirement of the
law. In this case we are satisfied that it satisfies the requirement of law. What is next to be
considered is whether the acquisition was only for a company because the compensation
was to come almost entirely out of its coffers and, therefore, it was in reality for a private
purpose as opposed to public purpose. In other words, the question is whether there was
on the part of the Government a colourable exercise of power. Elaborating the point it is
said that the establishment of a factory for manufacturing refrigeration equipment is
nothing but an ordinary commercial venture and can by no stretch of imagination fall
within the well-accepted meaning of the expression 'public purpose', that even if it were
to fall within that expression the factory is to be established not by the Government, nor
by Government participation but solely by the respondent No. 6, a public limited concern
and that, therefore, the concern could acquire land for such a purpose only after
complying with the provisions of Part VII and that the use of the provisions of S. - 6(1) is
merely a colourable device to enable the respondent No. 6 to do something which, under
terms of S. 6(1), could not be done."
[Emphasis supplied]
34. Strong reliance has also been placed by the High Court in Jage Ram and Others v.
The State of Haryana and Others [AIR 1971 SC 1033 : (1971) 1 SCC 671] for the
proposition that once the Government had contributed any sum towards the cost of the
acquisition of land, it was not necessary for the Government to proceed under Part VII of
the Act and, therefore, does not lie in the mouth of State that acquisition was under Part
II.
35. In this case we may notice that purported contribution had been made only after the
writ petitions were filed. Ordinarily, this Court would not have gone into the said
question but the agreement provides for payment of entire compensation by the company.
We do not know as to at what stage the State thought it fit to meet a part of the expenses
for acquisition of land. Such an opinion on the part of the State having regard to the
statutory scheme should have been formed prior to entering into the agreement itself. The
agreement does not mention about any payment of a part of compensation by the State.
We, in absence of any other material on record, must hold that the State had not formed
any opinion in that behalf at least when the agreement was executed. The wisdom in all
probabilities dawned on the officers of the State at a later stage.
36. Satisfaction on the part of the State required to be arrived at upon formation of
opinion on the basis of materials brought on records for the purpose of Part II of the Act
are different from that of Part VII. Once the appropriate Government arrives at a decision
that the land sought to be acquired is needed for a public purpose, the court would not go
behind it, as the same may furnish a valid argument for upholding an acquisition under
Part II. But when an acquisition is made under Part VII, the conditions precedents
therefor as contained in the Companies Rules must be satisfied. On the face of record, if
it can be shown that the Government had ignored the mandatory provisions of the Act,
the acquisition would have to be struck down.
37
. In Shyam Behari and Others v. State of Madhya Pradesh and Others [1964 (6) SCR
636], it was held : AIR 1965 SC 427, (Para 3)
".........In the second place, the declaration under S. 6 may be made that land is needed for
a company in which case the entire compensation has to be paid by the company. It is
clear therefore that where the entire compensation is to be paid by a company, the
notification under S. 6 must contain a declaration that the land is needed for a company.
No notification under S. 6 can be made where the entire compensation is to be paid by a
company declaring that the acquisition is for a public purpose, for such a declaration
requires that either wholly or in the part, compensation must come out of public revenues
or some fund controlled or managed by a local authority......."
38. Distinction between acquisition under Part II and Part VII are self-evident. The State
was not only obligated to issue a notification clearly stating as to whether the acquisition
is for a public purpose or for the company. Section 6 categorically states so, as would
appear from the second proviso appended thereto.
39. A declaration is to be made either for
@page-SC271
a public purpose or for a company. It cannot be for both.
40
. It is furthermore trite that Land Acquisition Act is an expropriatory legislation. [See

Hindustan Petroleum Corporation Ltd. v. Darius Shapur Chenai and Ors. (2005) 7 SCC
627; and Chairman, Indore Vikas Pradhikaran v. M/s. Pure Industrial Cock and Chem.
Ltd. and Others [2007 (8) SCALE 110] 2005 AIR SCW 4796
2007 AIR SCW 4387
41. Expropriatory legislation, as is well-known, must be strictly construed. When the

properties of a citizen is being compulsorily acquired by a State in exercise of its power
of Eminent Domain, the essential ingredients thereof, namely, existence of a public
purpose and payment of compensation are principal requisites therefor. In the case of
acquisition of land for a private company, existence of a public purpose being not a
requisite criteria, other statutory requirements call for strict compliance, being imperative
in character.
42. Another question which arises for our consideration is as to whether Rule 4 of the
Companies Rules is mandatory or directory in nature. The High Court held it to be
directory.
43. Rule 4 of the Rules employs the word 'shall' not once place but twice. Ordinarily, it is
imperative in character. No reason has been shown before us as to why it should be held
to be directory provision particularly when the Land Acquisition Act is an expropriatory
legislation.
44. In State of Gujarat and Another v. Patel Chaturbhai Narsibhai and Others [AIR 1975
SC 629], this Court held :
"15. The contention of the State that the enquiry under Rule 4 is administrative and that
the owner of the land is not entitled to be given an opportunity to be heard at the enquiry
cannot be accepted for these reasons. The enquiry under Rule 4 shows that the Collector
is to submit a report among other matters that the Company has made all reasonable
efforts to get such lands by negotiation with the persons interested therein on payment of
reasonable price and such efforts have failed. The persons interested therein are the
owners of the land which is proposed to be acquired. The Company at such an enquiry
has to show that the company made negotiations with the owners of the land. The owners
of the land are, therefore, entitled to be heard at such an enquiry for the purpose of
proving or disproving the reasonable efforts of the company to get such land by
negotiation. The contention on behalf of the State that the owners of the land will get an
opportunity when an enquiry is made under Section 5A of the Act is equally unsound.
Section 17 of the Act provides that the appropriate Government may direct that the
provisions of Section 5A shall not apply, and if it does so direct a declaration may be
made under Section 6 at any time after the publication of the notification under Section 4
of the Act. Therefore, the enquiry under Section 5A may not be held.
45
. In General Government Servants Co-operative Housing Society Ltd., Agra etc. v. Sh.
Wahab Uddin and Others etc. [(1981) 2 SCC 352], this Court held :AIR 1981 SC 866,
(Para 7)
"13. Sub-rule (1) requires the Government to direct the Collector to submit a report to it
on the matters enumerated in Clauses (i) to (vi) of the Sub-rule (1) which is for the
benefit of the Company. The purpose is to avoid acquisition of land not suitable for a
Company. Clause (ii) of Sub-rule (1) requires that the Company has to make all
reasonable efforts to get such lands by negotiation with the person interested therein on
payment of reasonable prices and that such efforts have failed. The purpose of Clause (ii)
seems to be to avoid unnecessary land acquisition proceedings and payment of exorbitant
prices. The purpose of Clauses (iii), (iv) and (v) is obvious. The purpose of Clause (vi) is
to avoid acquisition of good agricultural land, when other alternative land is available for
the purpose. Sub-rule 2 of Rule 4 requires the Collector to give reasonable opportunity to
the Company so that the Collector may hold an inquiry into the matters referred in Sub-
rule (1). The Collector has to comply with Clauses (i), (ii) and (iii) of Sub-rule 2 during
the course of the inquiry under Sub-rule (1). The Collector under Sub-rule 3 then has to
send a copy of his report of the inquiry to the appropriate Government and a copy of the
report has to be forwarded by the Government to the Land Acquisition Committee
constituted under Rule 3 for the purpose of advising the Government in relation to
acquisition of land under Part VII of the Act, the duty of the Committee being to advise
the Government on all matters relating to or arising out of acquisition of land
@page-SC272
under Part VII of the Act (Sub-rule (5) of Rule 3). No declaration shall be made by the
appropriate Government under Section 6 of the Act unless the Committee has been
consulted by the Government and has considered the report submitted by the Collector
under Section 5A of the Act. In addition, under Clause (ii) of Sub-rule (4) of Rule 4, the
Company has to execute an agreement under Section 41 of the Act. The above
consideration shows that Rule 4 is mandatory; its compliance is no idle formality, unless
the directions enjoined by Rule 4 are complied with, the notification under Section 6 will
be invalid. A consideration of Rule 4 also shows that its compliance precedes the
notification under Section 4 as well as compliance of Section 6 of the Act."
46
. In M/s. Fomento Resorts and Hotels Ltd. v. Gustavo Ranato Da Cruz Pinto and Others
[(1985) 2 SCC 152], a three-Judge Bench of this Court categorically held : AIR
1985 SC 736, (Para 15)
"17. Reading the Act and the Rules and keeping in view the scheme of the Act, it is
apparent, in our opinion, that before the issuance of Section 4 notification, there is no
requirement as such of compliance with the procedure contemplated by Rule 4 of the
Rules. We are therefore unable to subscribe to the view that enquiry by Rule 4 must
precede the issuance of notification under Section 4(1) of the Act. Furthermore as
indicated before certain matters which are required to be done under Rule 4 can not be
done because the officer or the person authorised by him would have no authority unless
notification under Section 4 is issued."
47. Repelling a contention that the provisions of Sections 6 to 37 are not required to be
complied with in view of Section 39 thereof, it was held :
"......This Section, in our opinion, has no relevance for determining whether to be a
proper acquisition, enquiry contemplated under Rule 4 must precede issuance of the
notification under Section 4 of the Act........"
48. The lands in question are recorded as Shahi lands. It is not in dispute that they are
agricultural lands. The Act contemplates that such lands may not be acquired.
49
. We may notice that in Collector (District Magistrate) Allahabad and Another etc. v. Raja
Ram Jaiswal etc., (1985) 3 SCC 1] this Court held that such a contention requires an
indepth study, stating : AIR 1985 SC 1622
"27. The validity of the impugned notification was also challenged on the ground that
even though the acquisition is for the Sammelan, a company, the notification was issued
without first complying with the provisions of Rule 4 of the Land Acquisition
(Companies) Rules, 1963. The High Court has negatived this challenge. We must frankly
confess that the contention canvassed by Mr. Nariman in this behalf would necessitate an
indepth examination of the contention. However, we consider it unnecessary in this case
to undertake this exercise because the judgment of the High Court is being upheld for the
additional reason that the acquisition in this case was mala fide. Therefore, we do not
propose to examine the contention under this head."
It is, on that premise, we have undertaken some study in this behalf.
50
. The decision of this Court in Somawanti (supra) holding that the stage at which Rule 4
is required to be complied with is not the stage prior to issuance of a notification under
Section 4 of the Act, but declaration under Section 6 does not appear to be correct from
the decisions of this Court in Patel Chaturbhai Narsibhai (supra) and Wahab Uddin
(supra), the earlier binding precedent, with utmost respect, having not been taken into
consideration in its entirety. AIR 1963 SC 151
AIR 1975 SC 629
AIR 1981 SC 866
51
. In Abdul Husein Tayabali and Others v. State of Gujarat and Others 1968 (1) SCR 597],
this Court observed : AIR 1968 SC 432, Para 11
"........Next it was urged that the inquiry under Rule 4 has to be held after the notification
under section 4 is issued and not before and therefore the inquiry held by Master was not
valid. We do not find anything in Rule 4 or in any other Rule to warrant such a
proposition. The inquiry, the report to be made consequent upon such inquiry, obtaining
the opinion of the Land Acquisition Committee, all these are intended to enable the
Government to come to a tentative conclusion that the lands in question are or are likely
to be needed for a public purpose and to issue thereafter section 4 notification........"
@page-SC273
52
. In Srinivasa Co-operative House Building Society Ltd. v. Madam Gurumurthy Sastry

and Others [(1994) 4 SCC 675], noticing Somavanti (supra) wherein it was held that the
manufacturing of the articles was for the benefit of the community and to save
substantive part of foreign exchange and staff quarters to workmen, it was held : 1994
AIR SCW 3261
AIR 1963 SC 151
?........On the other hand, in the case of an acquisition for a company, the compensation
has to be paid by the company. In such a case there can be an agreement under Section 41
for transfer of the land acquired by the Government to the company on payment of the
cost of acquisition, as also other matters. The agreement contemplated by Section 41 is to
be entered into between the company and the appropriate Government only after the
latter is satisfied about the purpose of the proposed acquisition, and subject to the
condition precedent that the previous consent of the appropriate Government has been
given to the acquisition. Section 6 is in terms, made subject to the provisions of Part VII
of the Act. The declaration for acquisition for a company shall not be made unless the
compensation to be awarded for the property is to be paid by a company. In the case of an
acquisition for a company simipliciter, the declaration cannot be made without satisfying
the requirements of Part VII. But that does not necessarily mean that an acquisition for a
company for a public purpose cannot be made otherwise than under the provisions of Part
VII, if the cost or a portion of the cost of the acquisition is to come out of public funds. In
other words, the essential condition for acquisition is for a public purpose and that the
cost of acquisition should be borne, wholly or in part, out of public funds. Hence an
acquisition for a company may also be made for a public purpose, within the meaning of
the Act, if a part or the whole of the cost of acquisition is met by public funds. If, on the
other hand, the acquisition, for a company is to be made at the cost entirely of the
company itself, such an acquisition comes under the provisions of Part VII..........?
53. The approach of the High Court in this behalf, in our opinion, is totally erroneous. A
provision of a statute is either mandatory or directory. Even if a provision is directory, the
same should be substantially complied with. It cannot be ignored in its entirety only
because the provision is held to be directory and not an imperative one.
54. In this case admittedly there has been no compliance of Rule 4. If Rule 4 has not been
complied with, the exercise of jurisdiction under Part VII must be held to have been
erroneous.
55. For the reasons aforementioned, the impugned judgment cannot be sustained, which
is set aside accordingly. The appeals are allowed with costs. Counsel's fee assessed at
Rs.25,000/- (Rupees twenty five thousand only).
Appeal allowed.
AIR 2008 SUPREME COURT 273 "State of Haryana v. Aravali Khanij Udyog"
Civil Appeal No. 5874 of 2000, with C. A. No. 4855 of 2007 (arising out of SLP (C) No.
12611 of 2001), D/- 12 -10 -2007.
State of Haryana and Anr. v. Aravali Khanij Udyog and Anr.
Mines and Minerals (Regulation and Development) Act (67 of 1957), S.4A -
Metalliferrous Mines Regulations (1961), Regn.106 - MINES AND MINERALS -
LEASE - SUPREME COURT - Respondent granted mining lease for silica sand - Lease
for ordinary sand over corresponding area not applied for - Lease hence terminated -
Restoration ordered after lease for ordinary sand was applied for - Mining lease for
ordinary sand granted for period corresponding to silica lease - Extension claimed for
period silica lease stood terminated - Rejection of - Proper as on expiry of respondent's
lease mining area was auctioned - Also because mining in area was prohibited by
Supreme Court.
C. W. P. No. 3007 of 2000, D/- 9-5-2000 (Pand H), Reversed. (Paras 10, 11)
Manjit Singh, AAG, Anup G. Chaudhary, Mrs. June Chaudhari, Sr. Advocates, Harikesh
Singh, Devendra Kumar Singh, T. V. George, K. B. Rohtagi, for Appearing Parties.
Judgement
P. SATHASIVAM, J. :-CIVIL APPEAL NO. 5874 OF 2000
Secretary to Government, Mines and Geology Department, Haryana and Director of
Mines and Geology, Government of Haryana
@page-SC274
aggrieved by the order of the Punjab and Haryana High Court dated 09.05.2000 made in
C.W.P. No. 3007 of 2000 have filed the above appeal.
BRIEF FACTS:
2. On 18.02.1980, lease of mining silica sand was granted to the respondent M/s. Aravali
Khanij Udyog in respect of 139 hectares of land in certain areas of village Chelaka and
sand in Tehsil Nuh, Dist. Gurgaon, Haryana for a period of 20 years by the appellants.
Silica sand is a major mineral and is found underneath the ordinary sand, a minor
mineral. In order to exploit the silica, every lessee is required to remove the overlaying
ordinary sand in the interest of safe, systematic and scientific mining. As both ordinary
and silica sand occur one above the other, the State Government took a policy decision in
August, 1984 to grant the mining lease of ordinary sand also to the lessee of silica sand
for the purpose of systematic and harmonious mining in accordance with the Regulation
No. 106 of Metalliferrous Mines Regulation, 1961.
3. As per the said decision, on 27.09.1984, the respondent-herein was advised to apply for
the mining lease of ordinary sand. According to the Department, in spite of four
reminders, no steps were taken by the respondent to apply for the mining lease for the
ordinary sand. A notice dated 12.07.1985 was also served upon them. Finally, the
mining lease was prematurely terminated on 06.05.1986. Aggrieved by the said order,
the respondent filed a revision before the Central Government. On the basis of the
undertaking of the lessee, the Central Government, vide its order dated 28.03.1998, while
restoring the mining lease of the respondent also directed them to apply for the mining
lease of ordinary sand within 30 days of the order. Subsequent to the order of restoration,
the respondent applied for the grant of mining lease of ordinary sand which was granted
to them for a period corresponding with the mining lease period of silica sand i.e. up to
17.02.2000. Since the period of mining lease was to expire on 17.02.2000, the
respondent submitted a representation on 01.03.1999 to the State Government requesting
for extension of the mining lease by 850 days on the ground that for 850 days his mining
lease remained terminated in past. Since no decision was taken by the State Government
on the request of the respondent, the respondent filed a writ petition No. 602 of 2000 in
the Punjab and Haryana High Court, which, by order dated 16.02.2000, directed the State
to take a decision on the representation of the respondent within a period of one month.
Pursuant to the said direction and after hearing the counsel for the respondent herein, by
order dated 03.03.2000, the Financial Commissioner and Secretary to Government of
Haryana, Mines and Geology Department rejected the representation for extension of the
mining lease period.
4. Questioning the rejection order of the Financial Commissioner, the respondent herein
filed C.W.P. No. 3007 of 2000 in the Punjab and Haryana High Court for quashing the
same. Though serious objection was raised by the State through their reply statement, the
Division Bench of the High Court, by order dated 09.05.2000, allowed the writ petition
and directed that the writ-petitioner shall be put into possession of the lease by
01.06.2000. Challenging the said order, the State of Haryana filed the above appeal.
5. We heard Mr. Anoop G. Chaudhari, Mrs. June Chaudhari, learned senior counsel and
Mr. Manjeet Singh, AAG for the appellants and Mr. K.B. Rohtagi, learned counsel for the
respondents.
6. In view of the fact that the lease granted in favour of the respondent had expired long
ago and in the light of the subsequent developments as well as orders of this Court, it is
unnecessary to traverse the claim of both the parties in detail. It is not in dispute that the
lease of mining granted in favour of the respondent-herein expired on 17.02.2000.
However, it is the grievance of the respondent that because of the conduct of the Mining
Department, they were not in a position to mine for a period of 850 days, hence they are
entitled to extension of mining lease by 850 days for which they made a representation on
01.03.1999. Though the said representation was considered and rejected by the Financial
Commissioner and Secretary to Government of Haryana, Mines and Geology
Department, the said order was set aside by the Punjab and Haryana High Court which is
a subject-matter of the present appeal.
7. Learned senior counsel appearing for the appellants by placing an affidavit of Shri
S.K.Gupta, Assistant, Mining Engineer, Gurgaon, Department of Mines and
@page-SC275
Geology, Haryana dated 11.10.2007 (copy of which was supplied to counsel for the
respondent) submitted that after expiry of lease period granted in favour of the
respondent, the extraction rights for minor mineral from the site in question were
auctioned on 20.12.2001 and given to M/s. Dolphin Minerals, Gurgaon who was the
highest bidder. He also submitted that the said auction was challenged by the respondent-
herein by filing C.W.P. 19798 of 2001 before the High Court of Punjab and Haryana and
ultimately the High Court dismissed the said writ petition on 12.09.2002. The following
information in the affidavit of the Mining Engineer is relevant which reads as under:-
"4.... ...Thereafter, the aforesaid bid (auction) was confirmed in favour of M/s. Dolphin
Minerals, 182 Phase-IV, Udyog Vihar, Gurgaon on 12.11.2002. Since then the aforesaid
party i.e. M/s. Dolphin Minerals is the lawful lessee of the said site and the lease period is
still existing. Hence, third party rights have been created and no effective order could be
passed without hearing the said third party i.e. M/s. Dolphin Minerals."
8. In view of the above factual information, as rightly pointed out by learned senior
counsel for the appellants and in view of the third party rights having been created, no
relief could be granted in favour of the respondent-herein at this juncture.
9. In the same affidavit, the officer has stated that the mineral extraction of the said site,
along with all other sites falling in Aravalis in Dist. Gurgaon has been stopped pursuant
to the orders passed by this Court in M.C. Mehta and T.N. Godavarman Thirumalpad
case. In this regard, learned senior counsel for the appellants placed an order passed by
this Court on 16.12.2002 wherein this Court prohibited mining operation in forest areas.
Among the various directions, the direction relating to Haryana State reads thus:
"2. Under Notification dated 29th November, 1999 issued under Section 23 of the
Environment (Protection) Act for certain Districts including Gurgaon District in the State
of Haryana, the Ministry has delegated power to grant approval for mining purposes to
the State. The mining activities are being regulated under the Notification dated 7th May,
1992 issued by the Ministry of Environment and Forest (Annexure A-1 in IA No. 833).
We direct that, for the time being, no mining shall be permitted within the areas of
Gurgaon District in the State of Haryana where mining is regulated under the Notification
dated 7.5.1992 issued under Section 3 of the Environment (Protection) Act, pursuant to
permission granted after 29th November, 1999."
As on date, the said direction is in force.
10. From the above discussion, the following conclusion would emerge:
a) the mining lease granted on 18.02.1980 in favour of the respondent-herein had expired
even on 17.02.2000;
b) after expiry of the lease, the site in question was auctioned on 20.12.2001 and given to
M/s. Dolphin Minerals, Gurgaon, who was the highest bidder. Though the said order was
challenged by the respondent-herein, admittedly the writ petition was dismissed by the
Punjab and Haryana High Court.
c) As per the order of this Court dated 16.12.2002, the mining operation in the entire area
of Gurgaon Dist. is prohibited.
11.In view of the same, the direction of the High Court granting relief in favour of the
respondent-herein cannot be implemented at this juncture. However, the respondent is
free to approach the appropriate court for damages/compensation if the same are
permissible in accordance with law.
12. With the above observation, the appeal is allowed. However, there shall be no order
as to costs.
CIVIL APPEAL NO. 4855 OF 2007
(Arising out of SLP (C) No. 12611 OF 2001)
13. Leave granted.
14. The respondent-herein questioning the order of the very same High Court dated
21.03.2001 passed in C.W.P. 14277 of 1999 against cancellation of the lease filed the
above appeal by way of special leave.
15. In view of our conclusion in Civil Appeal No. 5874 of 2000, the appeal filed by the
respondent-herein M/s. Aravali Khanij Udyog is dismissed.
Appeal allowed.
@page-SC276
AIR 2008 SUPREME COURT 276 "Mahabir Singh v. Subhash"
-2007.
Mahabir Singh v. Subhash and Ors.
Civil P.C. (5 of 1908), O.9, R.13 - DECREE - LIMITATION - Ex parte decree - Setting
aside of - Application for - Limitation - Date of knowledge of decree - Relevant -
Defendant admitting that he had approached plaintiff for not giving effect to decree one
and half year prior to filing of application - Deemed to have knowledge about passing of
said ex parte decree - Period of limitation would, thus be reckoned from that day -
Application under O. 9, R. 13 filed one and a half year after defendant came to know
about passing of ex parte decree - Barred by limitation.
Civil Revn. Petn. No. 5999 of 2003, D/- 14-2-2005 (Punj. and Har.), Reversed. (Paras
6, 8, 10)
A. Nehra, Sr. Advocate, Gagandeep Sharma, Rameshwar Prasad Goyal, for Appellant;
Manjit Singh, B. K. Satija, D. Mahesh Babu, for Respondents.
Judgement
S. B. SINHA, J. :-Leave granted.
2. Appellant is before us being aggrieved by and dissatisfied with a judgment and order
dated 14.2.2005 passed by the High Court of Punjab and Haryana in Civil Revision
Petition No.5999 of 2003 whereby and whereunder the Revision Application filed by the
first respondent herein was allowed.
3. Appellant filed a civil suit on or about 6.4.1985. Summons of the suit were served
upon the first respondent. He did not appear. An ex parte decree was passed against him
on 19.2.1986. An application for mutation on the basis thereof was filed which was
allowed on 07.03.1996. Allegedly, the first respondent having come to know about
passing of the said ex parte decree on 03.02.1997, filed an application on 07.02.1997 for
setting aside the same, in terms of Order IX, Rule 13 of the Code of Civil Procedure. The
learned Trial Judge, by reason of an order dated 28.07.2000, dismissed the said
application, inter alia, holding that summons had been duly served upon the first
respondent. It was furthermore noticed that the first respondent herein, while examining
himself in the said proceedings under Order IX, Rule 13 of the Code of Civil Procedure
in his cross-examination, admitted that one and a half year prior to filing of the said
application, he and his brother approached Dharam Singh for getting the judgment and
decree set aside but he negated their plea.
4. An appeal was preferred thereagainst. The Appellate Court also affirmed the said
finding holding :
"12. In this case, Ex.A1 to Ex.A3 are the record of ownership which is not disputed. Ex.
R3 I the copy of summon which clearly shows that Subhash refused to accept the service
of summons. It also shows that the copy of summons was also affixed on his house. This
report is duly attested by clerk of Court as per Ex.R4/B and affidavit has also been given
by Jogi Ram process server and affidavit has also been given by Jogi Ram process server
and Subhash was to appear in court on 7.5.85 but he did not appear in the court and then
the court has ordered for substituted service. But after munadi effected in the village
also, the defendant failed to appear in court as per Ex.R1, Ex.R2 is the report of Ram
Mehar, process server who got effected the munadi. No doubt Nand Lal Chowkidar has
denied his thumb impression but it carried no help to the defendant in view of the
statement of RW-1 Ram Mehar, process server. There is no report on the file that the
summons does not bear the thumb impression of Nand Lal Chowkidar. Statement of
PW2 Nand Lal is self contradictory as he has pleaded that he has no knowledge that the
process server has affixed the copy of summons on the house of Subhas. He has also
stated that he has no knowledge that about ten years back court officials brought this
summon to him. He has shown his ignorance about the pendency of the case. He has also
shown his ignorance about the munadi effected by him twelve years back. He has even
not been able to tell that he was shown as a witness. There is no reason to disbelieve the
statement of Ram Mehar, process server with regard to the report of refusal of Subhas,
appellant RW-2 Dilbag Rai Jain has also proved that the summons were duly executed
upon the defendant who refused to accept the same. So there is no illegality or
irregularity in the service of summons. Rather the learned trial court has given double
opportunity not only after the refusal by the defendant to appear in the court but
@page-SC277
as well as by getting the defendant served through munadi. Since the defendant
intentionally did not appear in the court so the learned trial court has rightly passed the ex
parte judgment and decree dated 19.2.86.
13. Admittedly the decree under challenge was passed in the year 1986 while the present
application for setting aside the ex parte judgment and decree was filed on 6.2.97 i.e.
almost after eleven years of passing of the impugned decree. So far as the delay in filing
the application is concerned, no doubt the defendant has tried to prove that he came to
know recently about the decision of the case but this version is not tanable when PW1
Ram Mehar, process server has categorically stated that about 1-1/2 years back he
alongwith his brother, went to Dharam Singh and Dharam Singh told them that they have
got no concern with the plot in question and that he would not set aside the decree. He
has also stated that he has told his relatives that 10/11 days prior filing this application.
This clearly shows that the defendant was well aware of the decree in question and he can
file the present application within one month of the passing of the decree. He is to
explain each days delay. So it can be safely held that the application is time barred. Thus,
the findings of the learned trial court recorded under issue Nos. 1 and 2 are hereby
affirmed and these issues are decided against the appellant-defendant and in favour of the
respondents-plaintiffs.
5. The Revision Application filed thereagainst by the first respondent herein was allowed
by the High Court. The High Court in the impugned judgment opined that the appellant
had played fraud on the Court as neither the summons were properly served, nor the
publication was made in the newspapers. Order V, Rule 19A of the Code of Civil
Procedure, which, according to the High Court, could have been taken recourse to, had
also not been resorted to. Adverse comments were also made by the High Court in regard
to the application for mutation filed by the appellant only after 10 years, i.e., in the year
1996.
6. The approach of the High Court, in our opinion, was not correct. There exists a
presumption that the official act has been done in ordinary course of business.
Admittedly, an ex parte decree was passed. Defendant for getting it set aside was required
to establish that either no summons was served on him or he had sufficient cause for
remaining absent on the date fixed for hearing the suit ex parte.
7. Article 123 of the Limitation Act, 1963 provides for 30 days time for filing such an
application. The said provision reads thus :
Description of application Period of Limitation Time from which period begins to

run
123. To set aside a decree passed ex parte or to re-hear an appeal decreed or heard ex
parte. Thirty days The date of decree or where the summons or notice was not duly
served, when the applicant had knowledge of the decree.
Explanation: For the purpose of this article,substituted service under Rule 20 of Order V
of the Code of Civil Procedure, 1908 (5 of 1908) shall not be deemed to be due service.
8. Thus, even assuming for the sake of argument that no proper step was taken by the
appellant herein for service of summons upon the respondent and/or the service of
summons was irregular, evidently, it was for the defendant-respondent to establish as to
when he came to know about the passing of the ex parte decree. Even in his cross-
examination, the first respondent has categorically
@page-SC278
admitted that he had approached the appellant herein for not giving effect thereto one and
half year prior to filing of the application, and, thus, he must be deemed to have
knowledge about passing of the said ex parte decree. The period of limitation would,
thus, be reckoned from that day. As the application under Order IX, Rule 13 of the Code
of Civil Procedure was filed one and a half year after the first respondent came to know
about passing of the ex parte decree in the suit, the said application evidently was barred
by limitation.
9. In terms of Section 3 of the Limitation Act, 1963, no court shall have jurisdiction to
entertain any suit or application if the same has been filed after expiry of the period of
limitation. The High Court could not have ignored the said jurisdictional fact.
aside accordingly. The appeal is allowed with costs. The counsel fee assessed at
Rs.10,000/- (Rupees ten thousand only).
Appeal allowed.
AIR 2008 SUPREME COURT 278 "John K. John v. Tom Varghese"
(From : Kerala)
Criminal Appeal Nos. 1433-34 of 2007 (arising out of SLP (Cri.) Nos. 6038-6039 of
2005), D/- 12 -10 -2007
John K. John v. Tom Varghese and Anr.
Negotiable Instruments Act (26 of 1881), S.138, S.139 - DISHONOUR OF CHEQUE -
SPECIAL LEAVE APPEAL - DOCUMENTS - Dishonour of cheque - Discharge of debt
- Rebuttal of presumption under S. 139 - Court can take notice of conduct of parties -
Respondent alleged to have borrowed huge sum from appellant-complainant despite suits
for recovery of defaulted amount filed against him by appellant - No document executed -
Amount advanced carrying no interest - Finding of fact by High Court that respondent
did not issue cheques in discharge of any debt and discharged burden of proof cast on
him under S. 139 - Being not perverse cannot be interfered with under Art. 136.
Constitution of India, Art.136.
In the instant case the appellant-complainant is Partner in business of running chitty fund.
The fact that the respondent subscribed three chitties and that he could not pay the
instalments of the prized amount is not in dispute. Pendency of three civil suits filed by
the firm through the appellant against the respondent is also not in dispute. Thus, the
relationship between the parties is not in dispute. The appellant alleged that despite the
fact that the respondent was a defaulted subscriber of two prized chitties, he took
personal loan from him in his personal capacity. Respondent allegedly issued two
cheques in favour of the appellant. The said cheques when presented were dishonoured
for want of sufficient funds. The High Court upon analyzing the materials brought on
records by the parties arrived at a finding of fact that in view of the conduct of the parties
it would not be prudent to hold that the respondent borrowed a huge sum despite the fact
that the suits had already been filed against him by the appellant. Presumption raised in
terms of Section 139 of the Act is rebuttable. If upon analysis of the evidence brought on
records by the parties, in a fact- situation obtaining in the instant case, a finding of fact
has been arrived at by the High Court that the cheques has not been issued by the
respondent in discharge of any debt, the view of the High Court cannot be said to be
perverse warranting interference in exercise of discretionary jurisdiction under Art. 136.
2006 AIR SCW 4652 and 2007 AIR SCW 3571, Relied on. (Para 10)
The High Court was entitled to take notice of the conduct of the parties. It has been found
by the High Court as of fact that the complainant did not approach the Court with clean
hands. His conduct was not that of a prudent man. Why no instrument was executed
although a huge sum of money was allegedly paid to the respondent was a relevant
question which could be posed in the matter. It was open to the High Court to draw its
own conclusion therein. Not only no document had been executed, even no interest had
been charged. It would be absurd to form an opinion that despite knowing that the
respondent even was not in a position to discharge his burden to pay instalments in
respect of the prized amount, an advance would be made to him and that too even after
institution of three civil suits. The amount advanced even did not carry any interest. If in
a situation of this nature, the High Court has arrived at a finding that the respondent has
discharged his burden of proof cast on him under Section 139 of the
@page-SC279
Act, no exception thereto can be taken. (Para 10)
2007 AIR SCW 3571 : 2007 Cri LJ 3209 : 2007 (4) AIR Bom R 452 (Rel. on) 11
2006 AIR SCW 4652 : AIR 2006 SC 3366 : 2006 Cri LJ 4607 : 2006 CLC 1533 : 2006
(6) AIR Kar 84 (Rel. on) 11
B. V. Deepak, Ajay K. Jain and M. P. Vinod, for Appellant; R. Sathish, M. T. George and
P. S. Sudheer, for Respondents.
Judgement
2. The complainant is before us being aggrieved by and dissatisfied with a judgment and
order dated 24.08.2005 passed by a learned Single Judge of the High Court of Kerala in
Crl. R.P. Nos. 2255 and 2256 of 2004 whereby and whereunder the judgment of
conviction and sentence passed by the learned Trial Judge and affirmed by the Appellate
Court, was set aside.
3. Respondent allegedly issued two cheques in favour of the appellant herein. The said
cheques when presented were dishonoured for want of sufficient funds. As despite
service of notice, the respondent did not make any payment, two complaint petitions were
filed against him.
4. The question which arose for consideration before the learned Trial Judge and
consequently before the Court of Appeal as also the Revisional Court was as to whether
the said cheques had been issued towards discharge of any existing debt.
5. Relationship between the parties is not in dispute. The complainant used to run
chitties. Respondent was a subscriber to three chitties conducted by the firm of the
appellant. In respect of one of the chitties, the bid was held on 7.10.1997 for a sum of Rs.
1,00,000/-. The amount was paid on 3.11.1997. Bid was again made by the respondent
in relation to another chitty on 7.04.1998, for a sum of Rs. 1,00,000/-. The amount was
paid on 25.06.1998. Allegedly, Respondent committed defaults in payment of the
instalments in relation thereto with effect from 7.04.1998.
Indisputably, a suit for realization of the said amount was filed by the appellant against
the respondent in the Court of the Subordinate Court, Kottayam which was marked as
O.S. No. 1 of 2000. Another suit being O.S. No. 168 of 2000 was instituted before the
Munsiff Court, Changancherry claiming a sum of Rs. 55,900/-. Respondent, apart from
the aforementioned two chitties, was a subscriber to another chitty for a sum of Rs.
50,000/-. It was not prized by the respondent. On an allegation that the respondent along
with three others had borrowed a sum of Rs. 1,00,000/- from him on 26.03.1998 wherefor
he executed a demand promissory note and as despite demand, the said amount was not
paid to him, the appellant instituted another suit being O.S. No. 362 of 1999 in the
Subordinate Court, Kottayam for recovery of a sum of Rs. 1,00,000/- with interest.
6. Appellant herein admittedly was conducting chitty transactions in the name of a firm
known as 'Karappara Chitty Funds'. He is a partner of the said firm. The suits were
instituted by him representing the said firm. Appellant contended that despite the fact
that the respondent herein was a defaulted subscriber of two prized chitties, he took
personal loan from him in his personal capacity.
7. Before the learned Trial Judge, the respondent examined two witnesses who proved the
aforementioned fact. The learned Trial Judge, in its judgment, took notice of the
pendency of the several civil litigations by and between the parties hereto. It, however,
proceeded on the basis that as admittedly cheques have been issued by the respondent
which on presentation were not honoured, he committed an offence under Section 138 of
the Negotiable Instruments Act (for short "the Act"). The said findings of the learned
Trial Judge was upheld in appeal by Shri K. Ramakrishnan, learned Additional Sessions
Judge by a judgment and order dated 17.03.2004.
8. The High Court, however, in the revision application filed by the respondent herein
opined that the learned Trial Judge as also the Appellate Court could not have rejected the
evidence adduced by the respondent and in particular those of DWs 1 and 2 in view of
the fact that admitted and proved facts strengthened their versions or at least probabilised
the same. Holding that the respondent herein has successfully rebutted the presumption
arising under Section 139 of the Act, it was held that the appellant did not succeed in
proving that the respondent had borrowed any sum for which the said cheques were
issued.
9. Mr. B.V. Deepak, learned counsel
@page-SC280
appearing on behalf of the appellant, submitted that the High Court was not correct in
reversing the findings of the learned Trial Judge as also the Court of Appeal in exercise of
its revisional jurisdiction. There was no reason, the learned counsel contended, as to why
a presumption in terms of Section 139 of the Act could not have been raised against the
accused as admittedly the cheques were issued by him which, on presentation, were
dishonoured.
10. Relationship between the parties is not in dispute. The complainant is a partner of a
firm which is in the business of running chitty fund. The fact that the respondent
subscribed three chitties and that he could not pay the instalments of the prized amount is
not in dispute. Pendency of three civil suits filed by the firm through the appellant
against the respondent is also not in dispute. The High Court upon analyzing the materials
brought on records by the parties had arrived at a finding of fact that in view of the
conduct of the parties it would not be prudent to hold that the respondent borrowed a
huge sum despite the fact that the suits had already been filed against him by the
appellant. Presumption raised in terms of Section 139 of the Act is rebuttable. If, upon
analysis of the evidence brought on records by the parties, in a fact-situation obtaining in
the instant case, a finding of fact has been arrived at by the High Court that the cheques
had not been issued by the respondent in discharge of any debt, in our opinion, the view
of the High Court cannot be said to be perverse warranting interference by us in exercise
of our discretionary jurisdiction under Article 136 of the Constitution of India. The High
Court was entitled to take notice of the conduct of the parties. It has been found by the
High Court as of fact that the complainant did not approach the court with clean hands.
His conduct was not that of a prudent man. Why no instrument was executed although a
huge sum of money was allegedly paid to the respondent was a relevant question which
could be posed in the matter. It was open to the High Court to draw its own conclusion
therein. Not only no document had been executed, even no interest had been charged. It
would be absurd to form an opinion that despite knowing that the respondent even was
not in a position to discharge his burden to pay instalments in respect of the prized
amount, an advance would be made to him and that too even after institution of three
civil suits. The amount advanced even did not carry any interest. If in a situation of this
nature, the High Court has arrived at a finding that the respondent has discharged his
burden of proof cast on him under Section 139 of the Act, no exception thereto can be
taken.
11. It is now a well-settled principle of law that this Court in exercise of its jurisdiction
under Article 136 of the Constitution of India would ordinarily not interfere with the
judgment of acquittal, if two views are possible.
In M.S. Narayana Menon alias Mani v. State of Kerala and another [(2006) 6 SCC 39],
this Court held: 2006 AIR SCW 4652, (Para 59)
"54. In any event the High Court entertained an appeal treating to be an appeal against
acquittal, it was in fact exercising the revisional jurisdiction. Even while exercising an
appellate power against a judgment of acquittal, the High Court should have borne in
mind the well-settled principles of law that where two views are possible, the appellate
court should not interfere with the finding of acquittal recorded by the court below.
[See also Mahadeo Laxman Sarane and Anr. v. State of Mahara-shtra, 2007 (7) SCALE
137] 2007 AIR SCW 3571
12. For the reasons aforementioned, there is no merit in these appeals which are
dismissed accordingly.
Appeals dismissed.
AIR 2008 SUPREME COURT 280 "Suresh Jindal v. BSES Rajdhani Power Ltd."
(From : 2006 (132) Delhi L T 339)
Civil Appeal No. 4789 of 2007 (arising outof SLP (C) No. 14308 of 2006), D/- 11 -10
-2007.
Suresh Jindal v. BSES Rajdhani Power Ltd. and Ors.
(A) Evidence Act (1 of 1872), S.115 - ESTOPPEL - ELECTRICITY - Estoppel - Change
of electricity meter - From electromechanical to electronic meter permitted by consumer -
He cannot turn round to contend that electronic meters do not record correct consumption
- It is one thing to say that electronic meters do not register actual consumption, but it is
another thing to say
@page-SC281
that it was legally impermissible. (Para 38)
(B) Electricity Act (9 of 1910), S.20, S.26 - ELECTRICITY - INTERPRETATION OF
STATUTES - Replacement of electromechanical meters with electronic meters - Power of
licensee - Not circumscribed by S. 26.
Interpretation of Statutes - Creative interpretation - Necessary to get benefit of
technological advancement.
Section 20 operate in one field namely conferring a power of entry on the licensee. The
said provision empowers the licensee inter alia to alter a meter, which would include
replacement of a meter. It is an independent general provision. In absence of any statutory
provision, there is no reason to put a restrictive meaning thereto. Even under the General
Clauses Act, a statutory authority while exercising statutory power may do all things,
which are necessary for giving effect thereto. There does not exist any provision, which
precludes or prohibits the licensee to replace one set of meter by another. If such a
provision were read into the statute, the same would come in the way of giving effect to
the benefits of new technological development. Creative interpretation of the provisions
of the statute demands that with the advance in science and technology, the Court should
read the provisions of a statute in such a manner so as to give effect thereto. Section 26 of
the Act operates in different field. It comes into being only when there exists a dispute.
Section 26 which operates in different field does not govern power of licensee to replace
one set of meter by another. (Paras 43, 44, 45)
2003 AIR SCW 1885 : AIR 2003 SC 2053 : 2003 Cri LJ 2033 (Rel. on Pnt.-B) 43
2002 AIR SCW 4706 : AIR 2003 SC 250 35
1997 AIR SCW 2773 : AIR 1997 SC 2793 (Rel. on and Epln.) 47
Sanjay Parikh, Lalit Kumar, Ms. Anitha Shenoy, Nitin R., Jatin Sahni, A. N. Singh, for
Appellant. A. Sharan, ASG, Arun Jaitely, R. Srivastava, Sr. Advocates, Amit Kapur,
Mansoor Ali, Ms. Vibha Datta Makhija, Ms. Sadhna Sandhu, D. S. Mahra, Suresh
Chandra Tripathy, for Respondents.
Judgement
2. Appellant is a consumer of electrical energy. Respondent is a licensee. A meter for the
purpose of recording consumption of electrical energy was installed at his premise. It was
replaced by an electronic meter.
3. The electronic meter was tested by the officials of the respondent and it was found that
the same was running fast by about +1.79% which is said to be beyond the BIS standard,
as the meter installed in the premises was of Class-I category. He filed a writ petition
before the High Court inter alia contending;
"4. That the meter installed in the premises of the Petitioner was intact and OK and was
recording the consumption as per Section 57 of the Electricity Supply Rules, 1956 and
there was no percentage error in the recording of the consumption in the meter earlier
installed by the agents of the Respondent in the premises of the Petitioner.
5. That the Petitioner believing the intention of the Respondent has permitted the
Respondent to install the meter of their own choice believing that the meter which was
installed in the premises of the Petitioner is of approved design and specification of ISI
and also in accordance with the Rules and Regulations under the Electricity Act, 2003."
In the writ petition, the following prayers were made by him :
a. A writ, order or direction in the nature of a writ of mandamus, thereby declaring the
acts of the officials of the Respondents as illegal and mala fide in replacing the correct
and working meter of the Petitioner by another meter in respect of electricity connection
bearing K.No.2540F320018 installed for 134, First Floor, Sunder Nagar, Delhi.
b. A writ, order or direction in the nature of a writ of mandamus, thereby quashing the
meter testing report prepared on 03/03/2005 in respect of electricity connection bearing
K.No. 2540F320018 installed for 134, First Floor, Sunder Nagar, Delhi.
c. A writ, order or direction in the nature of a writ of mandamus thereby directing the
Respondent to get the meter of the Petitioner tested as per rule 57 of the Electricity
Supply Rules, 1956 through an independent agency or in any other manner as this Honble
Court deems fit in the facts and circumstances of the case.
d. A writ, order or direction thereby directing the Respondent to calibrate, seal and install
at the premises of the Petitioner, the electro-mechanical energy meter of ISI make
procured by the Petitioner in respect of
@page-SC282
electricity connection bearing K.No. 2540F320018 for 134, First Floor, Sunder Nagar,
Delhi after replacing the existing meter."
4. The writ petition was dismissed by a learned Single Judge of the Delhi High Court by a
Judgment and Order dated 14.12.2005. A Letters Patent Appeal was preferred
thereagainst and by reason of the impugned judgment, the same has been dismissed.
Appellant is, thus, before us.
5. Mr. Sanjay Parikh, learned counsel appearing on behalf of the appellant in support of
the appeal, inter alia, would submit;
(i) Respondent being a licensee governed by the Indian Electricity Act, 1910 (hereinafter
referred as "1910 Act"); the provisions of Electricity (Supply) Act, 1948 (hereinafter
referred as "1948 Act") or the subsequent Acts namely Delhi Electricity Reforms Act,
2000 (hereinafter referred to as "2000 Act") or Indian Electricity Act, 2003 being not
applicable, the High Court committed a serious error in passing the impugned judgment.
(ii) Rule 57 of the Indian Electricity Rules, 1956 whereupon reliance was placed by the
respondents in their counter-affidavit is clearly inapplicable and thus reliance placed
thereupon by the High Court in this behalf was wholly unwarranted.
(iii) The tariff framed by Delhi Vidyut Board also did not confer any jurisdiction upon the
respondents to remove the correct meter and replace the same by another correct meter.
(iv) The only provision which could have been taken recourse to for replacement of a
meter being Section 26 of the 1910 Act and the same being not applicable in this case, the
impugned Judgment cannot be sustained.
(v) Margin of error in the meter being 1.79% in one case and 3.79% in the other which is
in excess of 1 per cent of error provided for in the proviso appended to Rule 57 of the
Indian Electricity Rules, the appellant had a legal right to obtain a writ of or in the nature
of mandamus directing the respondents not to rely thereupon for the purpose of
calculating the amount of consumption of electrical energy recorded therein.
(vi) In any view of the matter, replacement of the meter having taken place prior to
coming into force of the 2003 Act and the regulations framed thereunder, the High Court
was wholly incorrect in arriving at its findings.
6. Mr. Arun Jaitley, the learned senior counsel appearing on behalf of the respondents, on
the other hand, would principally rely upon Section 20 of the 1910 Act to submit that by
reason thereof a general power has been conferred on the licensee to remove a correct
meter and replace the same by another meter which records more accurately the actual
consumption of electrical energy having regard to the development of technology and
thus such an action, being de hors provisions of Section 26 of the Act, would not be
controlled thereby. Appellant being a consumer of electrical energy from Delhi Vidyut
Board which was a State Electricity Board within the meaning of 1948 Act and the
respondent being its successor in terms of 2000 Act and 2003 Act, the impugned
judgment is unassailable.
7. The 1910 Act was enacted on 18th March, 1910.
8. The said Act regulated the terms and conditions of supply of electrical energy to the
consumers. Licensees in those days used to be private companies. Actual terms of the
contract for supply of electrical energy by the licensees to its consumers were governed
by the terms and conditions of contract entered into by and between the parties thereto.
The said Act provide for powers and obligations of the licensee on the one hand as also
the rights and obligations on the part of the consumers on the other. By reason thereof,
licensees under the said Act being public utility concerns were bound thereby. It could
exercise the statutory powers conferred upon it, which was otherwise not available under
the common law or the terms of the contract entered into by and between the parties.
9. Section 20 of the Act confers power on the licensee to enter into the premises, inter
alia, for the purpose of inspecting, testing, repairing or altering meters instituted in the
premises of the consumers. The said provision ex facie is not controlled by any other
provision thereto. Section 21 of the Act empowers a licensee to prescribe any form of
appliance in utilising energy supplied by him. All kinds of utilisation of appliances is
governed by the said provisions. The said provision has nothing to do with installation or
testing or replacing any meter. Section 26 ensures installation of correct meter so that the
consumption of electrical
@page-SC283
energy may be recorded. A meter can be installed either by the licensee or by the
consumer. An obligation, thus, to keep the meter correct will be either on the licensee or
the consumer, as the case may be. Sub-section (4) of Section 26 empowers the licensee
to have access for the purpose of inspecting and testing the meters and for the said
purpose the same could be taken off or removed.
10. In case however of any dispute or difference and in the event the meter installed in
the premises of the consumer is found to be not correct, in regard to the quantum amount
of reasonable expenses for the purpose of taking off or removal of the meter, the
Electrical Inspector would be the sole authority to determine the same. The Electrical
Inspector as a statutory authority was also empowered to enter into and determine the
disputes and differences between the parties not only in regard to the correctness of the
meter but also quantify the amount payable by the consumer to the licensee if he comes
to the opinion that the meter has ceased to be correct subject of course to the condition
that the same would not exceed the period of six months.
11. The principal question which arises for our consideration is as to whether the power
conferred upon the licensee under Section 20 of the Act is controlled by Section 26
thereof. We would deal with the said question a little later.
12. We may now have a quick look at the provisions of the other statutes. The provisions
of 1948 Act, which is a post-independence Act, cast a duty on the State to constitute a
Board for the purpose of generation, transmission, distribution and supply of electrical
energy. It is a body corporate and can sue and be sued in its own name. Section 26 of the
1948 Act provides for conferment of powers and obligations of the licensees in the Board
as provided for under the 1910 Act wherefor a legal fiction has been raised. The proviso
appended to Section 26 of 1948 Act reads as under:-
"Provided that nothing in sections 3 to 11, sub-sections (2) and (3) of section 21 and
section 22, sub-section (2) of Section 22A and sections 23 and 27 of that Act or in clauses
1 to V, clause VII and clauses IX to XII of the Schedule to that Act relating to the duties
and obligations of a licensee shall apply to the Board."
13. Section 20 of the 1910 Act was, therefore, made operative under the 1948 Act so far
as the Board is concerned and thus the said power was exercisable by it. Rules were
made in terms of Section 37 of the 1910 Act only in the year 1957. Rule 57(1) of the
Rules reads as under:-
"57(1) Any meter or maximum demand indicator or other apparatus placed upon a
consumers premises in accordance with section 26 shall be of appropriate capacity and
shall be deemed to be correct if its limits of error are within the limits specified in the
relevant Indian Standard Specification and where no such specification exists, the limits
of error do not exceed 3 per cent above or below absolute accuracy at all loads in excess
of one-tenth of full load and up to full load."
14. Although reliance has been placed by the respondents in their counter-affidavit on the
said rule, ex facie the same is not very relevant for our purpose. We would, however, deal
with the contention of Mr. Parikh with regard to the construction of the said provision at a
later stage.
15. The Parliament enacted Electricity Regulatory Commission Act in the year 1998
wherewith we are not concerned. It may however be noticed that the National Capital
Territory of Delhi enacted the Delhi Electricity Reforms Act, 2000 (hereinafter referred to
as "2000 Act").
16. Section 2(e) thereof defines "licence" to mean a licence granted under the Indian
Electricity Act, 1910.
17. Section 14 provides for re-organisation of electricity industries; sub-section (1)
whereof reads as under:-
"Sec. 14(1) The Government may, as soon as may be after the commencement of this
Act, cause one or more companies to be incorporated and set up under the provisions of
the Companies Act, 1956 (1 of 1956) for the purpose of generation, transmission or
distribution of electricity, including companies engaged in more than one of the said
activities, in the National Capital Territory of Delhi and may transfer the existing
generating stations or the transmission system or distribution system, or any part of the
transmission system or distribution system, to such company or companies."
Sub-sections (3) and (6) of Section 14 of the said Act read as under :
Sec. 14(3) The companies incorporated
@page-SC284
and set up under sub-section (1) shall undertake the functions specified in this section and
such other functions as may be assigned to them by the Government.
Sec. 14(6) The Government may convert the companies set up under this Act to joint
venture companies through a process of disinvestment, in accordance with the transfer
scheme prepared under the provisions of this Act.
18. Section 15 provides for reorganisation of Delhi Vidyut Board and transfer of
properties, functions and duties thereof.
19. Delhi Vidyut Board was constituted by the National Capital Territory of Delhi in
terms of the provisions of 1948 Act.
20. By reason of sub-section (1) of Section 15 all the powers conferred upon the
Companies as had been existing in the Boards under Section 26 of the 1948 Act were
saved.
21. By reason of Section 63, the provisions thereof were to prevail over the provisions of
1910 Act and 1948 Act in regard to the matters which were inconsistent therewith or
contrary thereto. Sub-section (3) of Section 63 provides that upon establishment of the
Commission, the provisions of the 1910 Act and 1948 Act were to be read subject to the
modifications and reservations contained therein, the relevant clauses whereof are as
under:-
"(i) All references to State Electricity Board in the Indian Electricity Act, 1910 (9 of
1910) insofar as the National Capital Territory of Delhi is concerned shall be read as
references to the Delhi Electricity Regulatory Commission or the companies established
under section 14 or other licensees or wherever it relates to general policy matters, to the
Government.
(ii) In respect of matters provided in sections 3 to 11, 28, 36(2), 49A, 50 and 51 of the
Indian Electricity Act, 1910 (9 of 1910), to the extent this Act has made specific
provisions, the provisions of the Indian Electricity Act, 1910 (9 of 1910) shall not apply
in the National Capital Territory of Delhi."
So far as 1948 Act is concerned, it is provided :
"(v) All references to State Electricity Board in the Electricity (Supply) Act, 1948 (54 of
1948) insofar as the National Capital Territory of Delhi is concerned shall be read as
references to the Delhi Electricity Regulatory Commission or the companies established
under section 14 or other licensees or where it relates to general policy matters, to the
Government.
(vi) In respect of matters provided in sections 5 to 18, 19, 20, 23 to 27, 37, 40 to 45, 46 to
54, 56 to 69, 72 and 75 to 83 of the Electricity (Supply) Act, 1948 (54 of 1948), to the
extent this Act has made specific provisions, the provisions of the Electricity (Supply)
Act, 1948 (54 of 1948) shall not apply in the National Capital Territory of Delhi."
22. Section 26 of the 1948 Act therefore, would not apply only when there exist any
corresponding provision in the 2000 Act. It is not disputed that no such provision is in
existence. If there does not exist any provision contrary to or inconsistent with Section 26
of the Act, the same would, indisputably, continue to apply.
23. Section 64 of the said Act provides for the saving clause.
24. We may now notice constitution of various entities in terms of the 2000 Act and the
Rules framed thereunder. The National Capital Territory of Delhi in exercise of its power
conferred by Section 60 read with Sections 15 and 16 of 2000 Act made Rules known as
Delhi Electricity Reform (Transfer Scheme) Rules, 2001. The said Rules are statutory in
nature. They provide for transfer and vesting of assets, liabilities, proceedings and
personnel of Delhi Vidyut Board in the successor entities and for determining the terms
and conditions on which such transfer or vesting shall take effect.
25. In the said Rules, "Board" has been defined to mean Delhi Vidyut Board constituted
under Section 5 of the Electricity (Supply) Act, 1948. Rule 2(f) defines "DISCOM 2" to
mean "South-West Delhi Electricity Distribution Company Limited", a company
incorporated under the Companies Act, 1956 (1 of 1956) with the principal object of
engaging in the business of distribution and supply of electricity in the area as specified
in Part-II of Schedule 'H'.
26. The term "transferee" has been defined in Rule 2(r) to mean 'GENCO', 'TRANSCO',
'DISCOMS' and 'PPCL', as the case may be, in whom the undertaking or undertakings or
the assets, liabilities, proceedings and personnel of the Board, as the case may be, are
vested in terms of these
@page-SC285
rules and shall include the holding company.
27. Rule 4(1) provides that assets, liabilities and proceedings transferred to the
Government under sub-rule (1) of rule 3 shall stand classified as under:
(a) Rights and interests in Pragati Power Project as set out in Schedule 'A'.
(b) Generation Undertaking as set out in Schedule 'B'.
(c) Transmission Undertaking as set out in Schedule 'C'.
(d) Distribution Undertaking as set out in Schedule 'D'.
(e) Distribution Undertaking as set out in Schedule 'E'.
(f) Distribution Undertaking as set out in Schedule 'F'.
(g) Holding Company with assets and liabilities as set out in Schedule 'G'.
28. Rule 5(1)(d) of the Rules provides that the undertaking forming part of the
Distribution Undertaking as set out in Schedule-D, shall stand transferred to and vest in
the DISCOM 1, on and from the date of the transfer appointed for the said purpose.
29. Sub-rule (2) of Rule 5 provides for the consequences of such transfers in the
following terms :
"Rule 5(2) On such transfer and vesting of the undertakings in terms of sub-rule (1), the
respective transferee shall be responsible for all contracts, rights, deeds, schemes, bonds,
agreements and other instruments of whatever nature, relating to the respective
undertaking and assets and liabilities transferred to it, to which the Board was a party,
subsisting or having effect on the date of the transfer, in the same manner as the Board
was liable immediately before the date of the transfer, and the same shall be in force and
effect against or in favour of the respective transferee and may be enforced effectively as
if the respective transferee had been a party thereto instead of the Board."
30. Rule 10 provides for the rights and powers of the transferees, sub-rule (2) whereof
reads as under :
"Rule 10(2) Within sixty days of the effective date of transfer, the DISCOMS shall apply
to the Commission for the grant of licence under the Act to undertake the business of
distribution and retail supply of electricity in the respective areas of supply as specified in
Schedule 'H}' :"
31. Indisputably, pursuant thereto and/or in furtherance thereof, applications were made
for grant of license by the first respondent herein and such license have since been
granted in its favour by the Commissioner.
32. We may also notice that regulations have been framed in terms of Section 61 of the
2000 Act known as The Delhi Electricity Regulatory Commission (Performance
Standards - Metering and Billing) Regulations, 2002.
33. Chapter 5 of the said Regulations provide for metering, laying down that all
installations subject to exemption shall be serviced with a meter and all the requirements
as laid down in Section 26 of the 2000 Act shall be complied with.
34. To complete the narration of the statutory Scheme, we may also notice that Delhi
Electricity Supply Company undertaking framed conditions of supply whereupon strong
reliance has been placed by the High Court in arriving at its finding. But, we may ignore
the same inasmuch as the same are not statutory in nature.
35. Before embarking on other questions raised at the Bar, we would like to place on
record that the High Court had placed strong reliance on the rationale of replacing the
existing meters with electronic meters, but, we are of the opinion that the same is not at
all relevant as in the event it is held that the respondent had no authority to replace the
existing meters with electronic meters, rationale or other justifications in support thereof
would not legalise an illegal act.
[See Hindustan Times and Others v. State of U.P. and Anr. ((2003) 1 SCC 591) Para 30].
2002 AIR SCW 4706
36. We have referred to at some details the statutory scheme only for the purpose of
showing that there had all along been a continuity in the matter of supply of electrical
energy in the National Capital Territory of Delhi either by a private company or by a
State Electricity Board, as the case may be. We, at this stage, make it clear that we do not
intend to go into the question of applicability of the provisions of the 2003 Act and the
regulations made thereunder, for the reason that regulations made under Section 50 of the
2003 Act came into force on and from 8.4.2007 and Section 55 thereof came into force on
10.3.2006 and, thus, the said Act was not in force at the relevant time.
@page-SC286
37. Our attention has also been drawn to Section 49 of the 1948 Act and the regulations
and the tariff framed by the Delhi Vidyut Board.
38. At the outset we have noticed that the appellant did not object to the change of the
meter. It proceeded on the basis that the change of the meter is permissible in law. He
being allegedly unaware of his rights allowed the respondent to enter into his premises
and change a correct meter by another one which according to him is also correct. It,
therefore, in our opinion does not lie in the mouth of the appellant now to turn round and
contend that electronic meters do not record correct consumption of electrical energy. It is
one thing to say that electronic meters when tested do not register the actual
consumption, as a result whereof, the consumer would have to pay the energy charges
more than he is otherwise liable but it is another thing to say that it was legally
impermissible. It is not, however, denied or disputed that whether meter is installed by
the licensee or by the consumer himself, the same must have the requisite certificate
granted in terms of the regulations, the provisions wherefor have been made in the
regulations made under the 2000 Act.
39. If Section 20 of the 1910 Act conferred a power which is not otherwise controlled by
Section 26 thereof, the question of the respondent acting wholly without jurisdiction or
arbitrarily would not arise. Indisputably, after the Electricity Regulatory Commission
came into being, it issued certain directions. It had to make tariff. For the purpose of
making tariff, certain checks and balances were required to be made. The loopholes then
existing in the matter of transmission of electrical energy which resulted in a huge
transmission loss was to be taken care of. Therefore, a direction was issued by the
Commission that all the existing meters should be replaced by electronic meters. We do
not see any illegality therein.
40. Various steps had been taken by the respondent No. 2 to resolve the grievances of the
consumers. Grievance Redressal Forum was established in terms of Section 42(5) of the
2003 Act. Regulations made in the year 2002 provided for detailed guidelines in regard to
the procedures required to be followed by the utilities for providing new connections,
replacement of defective meters etc. The said Regulations admittedly were amended in
2003 providing for payment of compensation to consumers in case of repeated levy of
arrears for bills already paid. If there had been any violation of the meter and billing
regulation, the utilities could be imposed with penalties. It is at that stage, a policy-
decision was taken for replacement of old electromechanical meters with new electronic
meters as a part of the Scheme. The Commission in its Order on Annual Revenue
Requirement issued directions with regard to replacement of meters which were carried
out pursuant thereto or in furtherance thereof, which reads as under :
"Replacement of meters is the responsibility of the DISCOMs and the DISCOMs have
submitted details of the meter replacement programme to the Commission, the
Commission would like to inform the objector that the old electromechanical meters are
subject to mechanical wear and tear and tend to record lower consumption over a period
of time. Moreover, these meters are also more susceptible to tamper. The replacement of
such meters with electronic meters will enable the utility to record the consumption more
accurately as well as reduce the chances of tampering. The DISCOMs have submitted
that the existing meters are being replaced by the electronic meters which is a good step."
41. Under the 1948 Act, the State had a role to play. Its directions in relation to the policy
matters were binding on the State Electricity Boards. Such a power continued to be
operative. If, therefore, the Electricity Regulatory Commission which was an independent
body could make tariff and for that purpose had the statutory authority to issue certain
directions, no exception thereto can be taken.
42. We, therefore, are required to consider as to whether the authority to make such
replacement of meter by the licensee is contained in Section 20 of the 1910 Act or not.
Even if a harmonious construction is given to the Scheme of the Indian Electricity Act as
was submitted by Mr. Parikh, we do not see as to how Section 26 would govern Section
20 of the 1910 Act.
43. Section 20 operate in one field namely conferring a power of entry on the licensee.
The said provision empowers the licensee inter alia to alter a meter which would include
replacement of a meter. It is
@page-SC287
an independent general provision. In absence of any statutory provision, we do not see
any reason to put a restrictive meaning thereto. Even under the General Clauses Act, a
statutory authority while exercising statutory power may do all things which are
necessary for giving effect thereto. There does not exist any provision in any of the
statutes referred to hereinbefore which precludes or prohibits the licensee to replace one
set of meter by another. If such a provision is read into the statute, the same would come
in the way of giving effect to the benefits of new technological development. Creative
interpretation of the provisions of the statute demands that with the advance in science
and technology, the Court should read the provisions of a statute in such a manner so as
to give effect thereto.
[See State of Maharashtra and Anr. v. Dr. Praful B. Desai and Anr. (2003) 4 SCC 601]
2003 AIR SCW 1885
44. Section 26 of the Act operates in different fields. It comes into being only when there
exists a dispute. The dispute may be in regard to the quantum of the amount required to
be expended for removing the meter or the correctness of the meter. The dispute may also
be, in the event, the meter is held to be not recording the consumption of electrical energy
correctly, the amount to which the consumer would be liable to pay, in relation thereo.
45. Electrical Inspector acts as a statutory authority. He has been conferred with a quasi-
judicial power to determine the disputes of particular kinds. His decision thereupon is
final and conclusive. The correctness of such decision can be questioned only before a
superior court of law. Subject of course to a decision of a superior court, the decision of
the Electrical Inspector is final and binding on the parties.
46. It is correct that the matter at the relevant point of time was not covered by any
statutory regulations, but even otherwise, the respondent had the said authority under
Section 20 of the 1910 Act.
47
. Construction of Section 20 vis-a-vis Section 26 of the 1910 Act came up for

consideration before this Court in Belwal Spinning Mills Ltd. and others v. U.P. State
Electricity Board and another [(1997) 6 SCC 740], wherein a Division Bench of this
Court clearly opined; 1997 AIR SCW 2773
"37. After giving our careful consideration to the facts and circumstances of the cases in
these appeals and the submissions made by Mr. Gupta, Mr. Sen and Mr. Andhya-rujina,
the learned Solicitor General, it appears to us that Section 20 of the Electricity Act
authorises the licensee to enter the premises of the consumer to remove fittings and other
apparatus installed by the licensee. Clause (a) of sub-section (1) of Section 20 authorises
the licensee to enter the premises of the consumer for "inspecting, testing, repairing or
altering the electric supply lines, meters, fittings, works and apparatus for the supply of
energy belonging to the licensee". The licensee, therefore, cannot only enter the premises
of the consumer for inspecting, testing etc. but the licensee can also alter the meter
whenever such alteration is needed. Such power under Section 20 does not depend on the
adjudication of correctness of the meter and other apparatus by the Electrical Inspector on
a reference under Section 26(6) of the Electricity Act. But such power flows from the
statutory duties and functions of the licensee to maintain the correct meter for recording
the quantum of electricity supplied to the consumer. Such duty to ensure maintenance of
correct meter in the premises of the consumer has been indicated in sub-section (1) and
sub-section (2) of Section 26. The power of removing the meter under Section 20,
however, is circumscribed by the proviso to sub-section (4) of Section 26 only when the
dispute as to the functioning of the meter has been referred to the Electrical Inspector
under sub-section (6) of Section 26. A licensee is authorised under sub-section (7) of
Section 26 to place, in addition to the meter installed in the premises of the consumer as
referred to in sub-section (1) of Section 26, other meter or apparatus as the licensee
deems fit for the purpose of recording or regulating the amount of energy supplied to the
consumer. Such power also does not depend on the existence of any dispute as to the
correctness of the meter installed."
48. Reliance on the said decision has also been placed by the High Court. Mr. Parikh,
however, would submit that the High Court failed to notice paragraph 48 of the said
decision wherein it was laid down that Section 26(6) would apply where the meter is not
correct and the power to remove the meter could be exercised only in such a situation and
not otherwise.
@page-SC288
49. We may, however, notice that the observations made in paragraph 48 were made
while considering the question as to whether the decision in terms of sub-section (6) of
Section 26 should be limited to a statutory period or not. Observations in paragraph 48 of
the said decision having been made in the aforementioned context, the same cannot be
said to have any application whatsoever in the instant case.
50. For the reasons stated hereinbefore, we are of the opinion that there is no merit in this
appeal. It is dismissed accordingly. There shall be no order as to costs.
Appeal dismissed.
AIR 2008 SUPREME COURT 288 "Iqbal v. State of Kerala"
(From : Kerala)*
Criminal Appeal No. 1463 of 2007 (arising out of SLP (Cri) No. 1287 of 2007), D/- 24
-10 -2007.
Iqbal v. State of Kerala.
(A) Penal Code (45 of 1860), S.376 - RAPE - Rape - Age of victim less than 16 years -
Her consent, therefore would be of no consequence - Conviction under Section 376 -
Proper. (Para 8)
(B) Penal Code (45 of 1860), S.366A - PROCURATION OF MINOR GIRL - Procuration
of minor girl - Victim leaving in company of accused of her own will - She was not
forced to sexual intercourse with any person other than accused - Since essential
ingredient that intercourse must be with a person other than accused has not been
established - S. 366A would have no application. (Para 10)
U. U. Lalit, Sr. Advocate, M. Gireesh Kumar and Vijay Kumar, for Appellant.
* Cri. A. No. 708 of 1998, D/- 27-9-2006 (Ker).
Judgement
2. The challenge in this appeal is to the judgment of the learned Single Judge of Kerala
High Court dismissing the appeal filed by the appellant, while directing the acquittal of
the co-accused. Both the accused were convicted by the learned IInd Additional Assistant
Sessions Judge, Thrissur for offences punishable under Sections 366A and 376 read with
Section 34 of the Indian Penal Code, 1860 (in short 'IPC').
3. Custodial sentence of two years and fine of Rs.10,000/- with default stipulation,
sentences of three years and fine of Rs.3,000/-were with default stipulation for the
offences punishable under Sections 376 and 366A read with Section 34, IPC respectively.
4. The background facts, as projected by prosecution in nutshell are as follows:
On 18.10.1993 at 7.00 a.m. both the accused, in furtherance of their common intention of
kidnapping, induced and procured a minor teenage girl (P.W.2), who had not attained the
age of 14 and seduced her to have illicit intercourse with the first accused and first
accused took her to Mahadevapuram in Coimbatore District and committed rape in the
house of CW8 at Mahadevapuram. Since PW2 did not come back to her house, after
making necessary enquiries, PW1, father of PW2, went to Cheruthuruthy Police Station
and lodged first information statement and originally man-missing case was registered as
Crime No.96 of 1993. The girl was not found out. Finally, a criminal M.C. was filed
before the High Court and on the basis of the direction of the High Court, the Circle
Inspector of Police found out PW2 and subsequently arrested the accused, continued the
investigation and charge was laid. The girl was produced before the Judicial First Class
Magistrate's Court, Wadakkancherry on 30.11.1993 and it was recorded that she had
stated to the Magistrate that she was studying in ninth standard and she was staying with
her father. She was taken from the tuition center while she was going to Akshaya Tuition
Centre, Cheruthuruthy. She stated that she went with Iqbal, appellant and first accused,
on her own will to Coimbatore on 18.10.1993 from Akshaya Tuition Centre. They were
friends. Friend of first accused, namely, Sasi was also with them. They changed the
vehicles and finally second accused, Sasi did not accompany them till Coimbatore. She
also stated that she had intercourse with Iqbal, first accused, at Coimbatore and not with
any other persons, that she was aged thirteen years and six months at that time and she
was with Iqbal till she was produced before the Court. Statement under Section 161 of the
Code of Criminal Procedure, 1973 (in short 'Cr.P.C.') given by her to the police was also
more or
@page-SC289
less on the same lines. But, before the Court, she deposed in examination-in-Chief that
she and her friend PW4 went to the tuition center and an autorikshaw came there. From
the autorikshaw, A2 Sasi and A1 Iqbal, got down and A1 told her to get into the
autorikshaw to tell something and on his persuasion she got into the autorikshaw and both
of them took her to a place called Kolappully. Thereafter, A2 brought a car and they went
upto Palakkad and A2 Sasi left. From there, they went to Coimbatore by bus. They took
food and A1 took her to a hotel and forced her for intercourse and thereafter they went to
cinema etc. Thereafter, they came to the house of CW8 and they were staying in that
house. During cross-examination main endeavour of the accused was to show that she
came with him on her own will. Letters written by PW2, Exts. D1 to D3, were also
produced and marked to show that PW2 and A1 were in love and that was not allowed by
the parents. Further, in cross examination, he asked specifically whether she agreed for
intercourse willingly to show that intercourse was committed with consent. Evidence of
PW4 also supports the evidence of PW2. Evidence of PWs 8 and 9 doctors show that she
had intercourse. Evidence shows that she went with her own will and intercourse also
was done voluntarily and not by force. It is clear from the evidence that they were in love
and wanted to marry, but parents of PW2 objected. Hence, they together eloped and there
is no kidnapping. School certificate as well as the deposition of father of PW2 shows that
she was aged only 13 years and nine months at the time of incident. Hence, consent
cannot be taken as valid.
5. Placing reliance on evidence of PW2, who is the victim, the learned Trial Court found
both the accused persons guilty and sentenced them as aforesaid. In appeal, the High
Court by the impugned judgment, noted that the charges have been established so far as
the appellant is concerned, while directing the co-acquittal of the co-accused.
6. In support of the appeal, learned counsel for the appellant submitted that the evidence
of the victim PW2 clearly shows that she was in love with the appellant and had gone
with him on her own will. Letters (Ex. D1 to D3) clearly established this fact. It was
further submitted that the evidence of PW2 indicated that though victim and appellant
were in love, the parents objected to it. It is also pointed out that in the cross-examination
she had admitted that she had sexual intercourse with the appellant on her own free will
and consent and there was no force used. The High Court, however, found that girl victim
was aged about 13 years and 9 months and, therefore, the consent was of no consequence
so far as allegation of rape is concerned. The conviction as recorded by the Trial Court
was affirmed. However, on special circumstances which had weighed, the High Court
imposed the sentence below the prescribed minimum, reduced the sentence to three years
rigorous imprisonment and fine of Rs.10,000/- in respect of the offence punishable under
Section 376 IPC. However, his conviction and sentence relating to Section 366A was
affirmed. The sentences imposed were directed to run concurrently. As noted above, the
stand of the appellant was that there was no rape involved and in any view, Section 366A
has no application.
7. So far as the legality of conviction for offence punishable under Section 376 IPC is
concerned, Section 375 IPC needs to be noted. The same reads as follows :
375. Rape.- A man is said to commit "rape" who, except in the cases hereinafter excepted,
has sexual intercourse with a woman under circumstances falling under any of the six
exceptions :-
First - Against her will.
Secondly- Without her consent. Thirdly - With her consent, when her consent has been
obtained by putting her on any person in whom she is interested in fear of death or of
hurt.
Fourthly- With her consent, when the man knows he is not her husband, and that her
consent is given because she believed that he is another man to whom she is or believed
herself to be lawfully married.
Fifthly- With her consent, when, at the time of giving such consent, by reason of
unsoundness of mind or intoxication or the administration by him personally or through
another of any stupefying or unwholesome the nature and consequences of that to which
she gives consent.
Sixthly- with or without her consent, when she is under sixteen years of age."
8. Clause 'sixthly' clearly stipulates that sexual intercourse with a woman with her or
without her consent when she is under 16 years of age, amounts to rape. The
@page-SC290
evidence on record clearly establishes that the victim was less than 16 years of age and,
therefore, the conviction for offences punishable under Section 376 IPC cannot be
faulted.
9. The residual question is of applicability of Section 366A IPC. In order to attract
Section 366A IPC, essential ingredients are (1) that the accused induced a girl; (2) that
the person induced was a girl under the age of eighteen years; (3) that the accused has
induced her with intent that she may be or knowing that it is likely that she will be forced
or seduced to illicit intercourse; (4) such intercourse must be with a person other than the
accused; (5) that the inducement caused the girl to go from any place or to do any act.
10.In the instant case, the admitted case of the prosecution is that girl had left in the
company of the accused of her own will and that she was not forced to sexual intercourse
with any person other than the accused. The admitted case is that she had sexual
intercourse with the accused for which, considering her age, conviction under Section
376, IPC has been maintained. Since the essential ingredient that the intercourse must be
with a person other than the accused has not been established, Section 366A has no
application.
11. In the result, the conviction for offence punishable under Section 366A, IPC is set
aside while the conviction and sentence imposed in respect of offence punishable under
Section 376, IPC is maintained.
Order accordingly.
AIR 2008 SUPREME COURT 290 "Ratnabali Capitals Markets Ltd. v. Securities and
Exchange Board of India"
Coram : 2 S. H. KAPADIA AND B. SUDERSHAN REDDY, JJ.
Civil Appeal Nos. 4945 with 3674 of 2007, D/- 23 -10 -2007.
Ratnabali Capitals Markets Ltd. v. Securities and Exchange Board of India and Anr.
(A) Securities and Exchange Board of India Act (15 of 1992), S.11(2) - SEBI (Stock
Brokers and Sub-Brokers) Rules and Regulations (1992), Sch.3 - Circular D/- 30-9-2002,
Para 7 - SECURITIES AND EXCHANGE - COMPANY - Registration fee for stock
brokers - Benefit of fee continuity under circular - Merger of two companies - New entity
emerged/constituted given right to operate in derivative segment - Has to pay fresh
registration fees on turnover basis - Not entitled to benefit of circular regarding continuity
of fees deposited earlier by transferor company - Demand of fresh registration fees from
transferee Company - Not derogatory of provisions of Companies Act.
Companies Act (1 of 1956), S.391.
As a regulator, SEBI is entitled to charge registration fees for enabling it to carry out the
functions stipulated in S. 11(2) of the 1992 Act. There is a dichotomy between functions
of the stock exchange and the functions performed by SEBI. The licenses given by the
stock exchange enables the stock-broker to buy and sell securities on the exchange
whereas the regulation of the trade per se is done by SEBI for which it is entitled to
charge requisite registration fees. In the instant case, on merger of the two companies
'RSL, RCML', a new entity stood emerged /constituted, which was given a right to
operate in the derivative segment and, therefore, it had to pay fresh registration fees on
the turnover basis. That new entity (RCML) was not entitled to the benefit of continuity
of fees deposited earlier by RSL, which got merged into RCML. (Paras 11, 14)
Under circular dated 30-9-2002 what SEBI intends to say is that fresh turnover
/registration fees would not be payable by a company which goes for
amalgamation/merger as an alternative to liquidation. In other words, if the company's net
worth is negative and if that company is on the brink of liquidation, which compels it to
go for a scheme under S. 391, then in such cases SEBI exempts such companies from
payment of fresh turnover/registration fees. Such is not the case herein. On the contrary,
in the present case, amalgamation has taken place in order to increase the 'reserves'
component of the net worth. The difference between the amount recorded as fresh share
caital issued by the Transferee Company on amalgamation and the amount of shares
capital of the Transferor Company to be reflected in the Revenue reserve (s) of the
Transferee Company was the sole object behind amalgamation. Therefore, SEBI was
right, in refusing to give the benefit of exemption to the transferee companies. These
transferee companies were not on the brink of liquidation. The scheme under S. 391 was
@page-SC291
not an alternative to liquidation. Hence, the transferee companies were not entitled to
claim the benefit of Circular dated 30-9-2002. It cannot be said that the demand raised by
SEBI for fresh turnover/registration fees constituted an act derogatory of the provisions
of the Companies Act. On the emergence of a new entity, which was entitled to operate in
derivative market, SEBI was certainly entitled to regulate its trade in the derivative
segment for which it was entitled to charge requisite fees. (Para 17)
(B) Companies Act (1 of 1956), S.391 - COMPANY - Scheme of amalgamation - Each
Scheme under S. 391 could not be construed as alternative to liquidation - It depends on
facts of each case. (Para 17)
AIR 1961 Punj 550 16
AIR 1950 East Punj 111 (FB) 16
AIR 1939 Mad 318 16
AIR 1935 Lahore 779 16
AIR 1932 Bom 78 16
(1893) 3 Ch 540 16
R. F. Nariman, Ranjeet Kumar, Sr. Advocates, Ratnako Banerjee, Dheeraj Nair, Mayank
Mishra, Ms. Bina Gupta, Karan Bharioke, Ms. Shweta Verma, Gaurav Singh, Ms.
Suruchii Aggarwal, Viraj Kadam, for appearing parties.
Judgement
KAPADIA, J. :- Delay condoned.
2. Admit.
3. The above two civil appeals are directed against the decisions dated 18.5.2006 and
4.5.2007 delivered by the Securities Appellate Tribunal, Mumbai in appeal Nos. 267/04
and 245/04 respectively.
4. The short question that arises for our consideration in these civil appeals filed under
Section 15Z of the Securities and Exchange Board of India Act, 1992 (for short the "1992
Act") is whether the appellants were entitled to the benefit of fee continuity under para 7
of Circular dated 30.9.2002 issued by SEBI.
5. For the sake of convenience, we may mention hereinafter the facts in the case of
Ratnabali Capital Markets Ltd. ("RCML") which are as under.
6. In 1995 Ratnabali Securities Ltd. ("RSL") was registered as a broker with National
Stock Exchange ("NSE"). In terms of Schedule III of SEBI (Stock-brokers and Sub-
brokers) Regulations, 1992 ("the Regulations"), RSL had paid initial registration fees for
the first year and thereafter it had paid fees on turnover basis for subsequent four years.
No further fees on turnover basis was paid by RSL under the said Regulations for
continuation of registration except a fee of rupees five thousand for a block of next five
years. RSL operated in cash and spot market.
7. SEBI adopted recommendations of Gupta Committee stating that no company whose
net worth was less than rupees three crores would be allowed to trade as a broker in the
derivative segment of the Stock Exchange. To meet this net worth criteria, RSL and
RCML merged under the Scheme of Amalgamation sanctioned by the order of the
Calcutta High Court. Under that order, all rights, licences, assets, properties and
registrations of RSL stood transferred by operation of law to RCML.
8. On 30.9.2002 SEBI issued a circular stating that in the case of merger carried out as a
result of compulsion of law, fees would not have to be paid afresh by a transferee entity
provided that majority shareholders of transferor entity (RSL) continues to hold majority
shareholding in the transferee entity (RCML).
9. After the merger of RSL with RCML, a demand was made by SEBI for registration
fees on turnover basis. Under the said Regulations, no stock-broker can buy, sell or deal
in securities unless he holds a certificate granted by SEBI under its Regulations. Under
the said Regulations, the stock-broker is required to pay fees for registration in the
manner provided in the Regulations. Under Regulation 10, every applicant eligible for
grant of a certificate has to pay fees in the manner specified in Schedule III. Under that
Schedule, every stock-broker whose annual turnover does not exceed rupees one crore
during any financial year has to pay rupees five thousand as registration fees for each
financial year and whereas the annual turnover exceeds rupees one crore during any
financial year he has to pay rupees five thousand plus one hundredth of one per cent of
the turnover in excess of rupees one crore for each financial year. We quote hereinbelow
clause (c) of para 1 of Schedule III, which reads as under: "After the expiry of five
financial years from the date of initial registration as a stock-broker, he shall pay a sum of
rupees five thousand for every block of five financial years commencing from the sixth
financial year after the date of grant of initial registration to keep his registration in force"
A reading of clause (c) makes it clear that where the stock-broker has paid registration
fees either under clause (a) or clause (b) he shall have to pay rupees five thousand for
every block of
@page-SC292
five financial years commencing from the sixth financial year after the date of initial
registration in order to keep his registration in force.
10. What RCML is now claiming is the benefit of initial registration of RSL as a stock-
broker. According to RCML, when the above two companies stood merged on 9.2.2000,
which merger was approved by Calcutta High Court, all assets and liabilities, including
benefits in the form of licences obtained by RSL, stood transferred by operation of law in
the hands of RCML. According to RCML, the concept of merger constitutes transfer by
operation of law. According to RCML, the concept of merger operates on account of legal
compulsion or compulsion in law. According to RCML, in the case of merger, which
takes place after complying with the procedure prescribed by Sections 391 to 394 of the
Companies Act, duly approved by the High Court, the assets and liabilities of the
transferor company comes into the hands of RCML on account of legal compulsion.
There is nothing voluntary in such cases of merger. According to RCML, the registration
fees once paid by RSL should be given the benefit of continuity vide para 7 of Circular
dated 30.9.2002 issued by SEBI. In other words, RCML now claims that it is entitled to
the benefit of registration fees which RSL had paid from time to time as a broker in the
cash and spot market. This claim of RCML has been rejected by the impugned decision.
Hence, this civil appeal.
11. In the present case, the two companies merged because after 2000, derivative markets
opened out. RSL basically operated under the licences in cash and spot markets. They did
not operate in the derivative markets. When the two companies merged, a new entity
emerged. That entity was RCML. At this stage, it is important to bear in mind that licence
from NSE/BSE only provided a platform to RSL/RCML to carry on the business of
buying and selling shares on the stock exchange. However, trade had to be regulated by
SEBI. The Companies Act has been enacted with a view to consolidate and amend the
law relating to companies and certain other associations. On the other hand, the 1992 Act
has been enacted to provide for the establishment of a Board to protect the investors'
interests in securities and to regulate the securities market and for matters connected
thereto. Under the said 1992 Act, SEBI is required to provide for regulating the business
in stock exchanges, registering and regulating the working of stock brokers and numerous
other functions which are enlisted in Section 11(2) of the said 1992 Act. Under Section
11B of the 1992 Act, SEBI is also empowered to issue directions inter alia to any person
associated with the securities market. As a regulator, therefore, SEBI is entitled to charge
registration fees for enabling it to carry out the functions stipulated in Section 11(2) of the
1992 Act. We repeat that there is a dichotomy between functions of the stock exchange
and the functions performed by SEBI. The licences given by the stock exchange enables
the stock-broker to buy and sell securities on the exchange whereas the regulation of the
trade per se is done by SEBI for which it is entitled to charge requisite registration fees.
In the present case, we have no doubt in our mind that, on merger of the above two
companies, a new entity stood emerged/constituted, which was given a right to operate in
the derivative segment and, therefore, it had to pay fresh registration fees on the turnover
basis. That new entity (RCML) was not entitled to the benefit of continuity of fees
deposited earlier by RSL, which got merged into RCML. According to RCML, the two
companies were required to merge because of acceptance of recommendations of Gupta
Committee by SEBI. According to the report of the said Committee, if a broker desires to
enter derivative market then he is required to have a net worth of at least rupees three
crores. According to RCML, the said requirement constituted a pre-condition for entering
the derivative market. According to RCML, this pre-condition of possessing net worth of
rupees three crores constituted compulsion of law, which made RSL merged into RCML
and, in the circumstances, the appellants were entitled to the benefit of Circular dated
30.9.2002 issued by SEBI. Under the said circular, mergers/amalgamations carried out as
a result of compulsion of law stood excluded from payment of fees afresh.
12. We quote hereinbelow the said
@page-SC293
provision, which reads as under:
"Merger/Amalgamations
Where mergers/amalgamations are carried out as a result of compulsion of law, fees
would not have to be paid afresh to hold majority shareholding in transferee entity. The
Exchange would have to enumerate what constitutes "compulsion of law" resulting in
such merger/amalgamations, for consideration of SEBI."
13. Placing reliance on the aforesaid clause, RCML contended that, in the present case,
RSL had merged into RCML on account of compulsion of law and, therefore, they were
entitled to the benefit of continuity of fees earlier paid by RSL. According to RCML, but
for the recommendations of Gupta Committee, RSL would not have merged into RCML.
According to RCML, because of Gupta Committee prescribing the net worth of rupees
three crores for entering into derivative market, RSL had to merge in RCML, which,
according to the appellant, constituted legal compulsion.
14. We do not find any merit in the above arguments. Two points arises for determination
in the present case. They are interconnected. Firstly, whether RCML, on amalgamation,
duly sanctioned by Calcutta High Court, was entitled to claim the benefit of Fee
Continuity and, secondly, whether the demand made by SEBI imposing fresh
turnover/registration fees on the merged entity (RCML) constituted an act in derogation
of the provisions of any other law for the time being in force in terms of Section 32 of the
said 1992 Act.
15. As stated above, on 30.9.2002 SEBI had issued a circular stating that in the case of
amalgamation/merger carried out as a result of compulsion of law, fresh
turnover/registration fees would not have to be paid afresh by a transferee entity. We are
concerned with the expression "compulsion of law" in that circular. It is true that, in the
present case, RSL had merged into RCML after complying with the provisions of
Sections 391 to 394 of the Companies Act. It is equally true that the Scheme of
Amalgamation has been approved by the Calcutta High Court. However, what is
"compulsion of law" has not been defined by SEBI. The reason is obvious. Under Section
391 of the Companies Act, a compromise or arrangement is proposed generally as an
alternative to liquidation. Where a scheme appears to be feasible and workable, it should
be preferred to a winding up order.
16. In the case of Himalaya Bank Ltd. v. L. Roshan Lal Mehra reported in AIR (48) 1961
Punjab 550 it has been held vide para 6 that the scheme of arrangement under section 391
is an alternative to liquidation. We quote hereinbelow para 6 of the said judgment :
"(6) Mr. D.N. Avasthy, learned counsel for the bank has next drawn my attention to
Section 37 of the Banking Companies Act which provides that the High Court may on the
application of a banking company which is temporarily unable to meet its obligations,
make an order staying commencement or continuance of all actions and proceedings
against the company for a fixed period of time on such terms and conditions as it shall
think fit and proper.
The High Court is empowered under Section 37(3) to appoint a special officer who is
required to take into custody or control the assets, books etc., including actionable claims
to which the banking company may be entitled. Section 38 empowers the High Court to
order the winding up of banking company if it is unable to pay its debts. Mr. D.N.
Avasthy also maintains that the scheme of arrangement is an alternative mode of winding
up and, therefore, such powers as the High Court possesses under Section 45-D of the
Banking Companies Act, 1949, will also entitle it to exercise the same powers for
enforcement of the scheme of arrangement etc.
He has rested his argument on three decisions reported in Madan Gopal v. Peoples Bank
of Northern India, Ltd., AIR 1935 Lah 779 (SB), Motilal Kanji and Co. v. Natwarlal M.
Jhaveri, AIR 1932 Bom 78, In re Travancore National and Quilon Bank Ltd., AIR 1939
Mad 318. In AIR 1935 Lah 779 (SB), Tek Chand J. said :
'Section 153, Companies Act, makes provision not merely for schemes for the
'resuscitation' or 're-organisation' of companies, but it also provides for 'schemes of
arrangement', which in the words of Vaughan Williams J. (used in reference to the
corresponding section of the English Act) provide an alternative mode of liquidation,
which the law allows the statutory majority of creditors to substitute for winding-up
whether voluntary or under the Court. In re London Chartered Bank of Australia, (1893)
3 Ch
@page-SC294
540 at p 546.'
On the strength of these decisions, it was argued that the scheme of arrangement was an
alternative mode of liquidation. This does not appear to be so either under the Companies
Act, 1956, or under the Indian Companies Act, 1913, which preceded the present statute.
Provisions of the Companies Act relating to "Arbitration, Compromises, Arrangements
and Reconstruction" covered by Sections 389 to 396 are placed in Chapter V of Part VI
which deals with Management and Administration. Part VII is devoted to Winding Up. A
scheme, therefore, cannot be said to be an alternative mode of liquidation but only an
alternative to liquidation. The incidents of scheme of arrangement and of winding up are
distinct both in principle and in consequences.
The dictum of Vaughan Williams, J., which was cited in the three decisions referred to
above, was examined by a Full Bench of this Court in Sm. Bhagwanti v. New Bank of
India Ltd., Amritsar, AIR 1950 EP 111. It was held by the Full Bench that in the
corresponding English Act all the sections relating to the scheme were contained within
the bar dealing with winding-up; and, therefore, a scheme of that particular kind was
correctly described as an alternative mode of winding up. That particular provision which
was being considered was applicable only to a company in liquidation.
This is also clear from the observations of Vaughan Williams, J., only a portion of which
was noticed in the three decisions referred to above. He said:
'The scheme of arrangement under the Act of 1879 is - as I have had occasion to point out
in several cases - an alternative mode of liquidation which the law allows the statutory
majority of Creditors to substitute for the pending winding-up, whether voluntary or
under the Court, just as the Bankruptcy Act, 1869, allowed the creditors the substituted
liquidation by arrangement under Section 125, or composition under Section 126, of that
Act, for a pending bankruptcy ........'
In view of this, I am not persuaded by this argument of the learned counsel for the bank,
that the scheme of arrangement should be treated as a specie of liquidation. I am,
therefore, satisfied that this Court has jurisdiction to entertain the petition and to pass
appropriate order in view of the provisions of section 392 of the Companies Act read with
Section 391."
17. We make it clear that it would depend on the facts of each case whether a scheme
under Section 391 could be construed as an alternative to liquidation. It is not in every
matter that the scheme under Section 391 would constitute an alternative to liquidation.
Therefore, it would depend on the facts of each case. Under circular dated 30.9.2002
what SEBI intends to say is that fresh turnover/registration fees would not be payable by
a company which goes for amalgamation/merger as an alternative to liquidation. In other
words, if the company's net worth is negative and if that company is on the brink of
liquidation, which compels it to go for a scheme under Section 391, then in such cases
SEBI exempts such companies from payment of fresh turnover/ registration fees. Such is
not the case herein. On the contrary, in the present case, amalgamation has taken place in
order to increase the "reserves" component of the net worth. The difference between the
amount recorded as fresh share capital issued by the transferee company on
amalgamation and the amount of share capital of the transferor company to be reflected
in the Revenue Reserve(s) of the transferee company was the sole object behind
amalgamation. (see page 429 of Vol. II in Civil Appeal No. 3674/07). Therefore, SEBI
was right, in the present case, in refusing to give the benefit of exemption to the
transferee companies. These transferee companies were not on the brink of liquidation.
The scheme under Section 391 was not an alternative to liquidation. Hence, the transferee
companies were not entitled to claim the benefit of Circular dated 30.9.2002. Further, we
do not find any merit in the argument that the demand raised by SEBI for fresh
turnover/registration fees constituted an act derogatory of the provisions of the
Companies Act. In our view, on the emergence of a new entity, which was entitled to
operate in derivative market, SEBI was certainly entitled to regulate its trade in the
derivative segment for which it was entitled to charge requisite fees. Under the 1992 Act,
a duty is cast on SEBI to protect the interest of investors in securities and to regulate the
trade in securities on the Stock Exchange. Such Regulation is not a part of the Companies
Act. Derivative market is highly speculative. It carries lot of risks. In fact,
@page-SC295
history shows that many investors and traders lost money earlier when badla transactions
were prevalent. Derivative market, to a certain extent, replaces badla. The point to be
noted is that Gupta Committee recommended the net worth of rupees three crores in order
to secure the interests of investors and traders who regularly play in derivatives. In the
circumstances, it cannot be said that raising of an amount of rupees three crores as net
worth constituted legal compulsion for RSL to merge into RCML. As stated above, the
Government decided to vest SEBI with statutory powers in order to deal effectively with
all matters relating to capital market. The main function of SEBI is to regulate the trade
which takes place in the securities market and for that purpose it is entitled to charge
registration fees. In the present case, we are concerned with merger of two distinct
independent companies. In the present case, we are not concerned with merger of firms.
In the present case, we are not concerned with joint ventures. After the merger of RSL
into RCML a new entity has emerged. In the circumstances, SEBI was entitled to charge
the stipulated fees. For the aforestated reasons, we find no merit in these two civil
appeals.
18. Before concluding, we may note that, according to the appellants, in the past SEBI
has not charged registration charges at the rates prescribed in case of two other
companies. According to the appellants, SKP Securities Ltd. and BNK Securities Pvt.
Ltd. were given in the past the benefit of fee continuity under para 7 of Circular dated
30.9.2002 whereas the said benefit has been denied to RCML. We do not know all the
facts of those transactions. Be that as it may, we are concerned with the position in law.
We reiterate that there is no merit in these civil appeals.
19. For the aforestated reasons, we see no reason to interfere with the impugned orders
passed by the Securities Appellate Tribunal, Mumbai. Accordingly, both the civil appeals
stand dismissed with no order as to costs.
Appeal dismissed.
AIR 2008 SUPREME COURT 295 "Basanti Devi v. Raviprakash Ramprasad Jaiswal"
(From : Bombay)*
-2007.
Basanti Devi v. Raviprakash Ramprasad Jaiswal.
(A) Hindu Succession Act (30 of 1956), S.15, S.18 - SUCCESSION - Heirs of Hindu
female - Her agnates - Not excluded. (Para 12)
(B) Succession Act (39 of 1925), S.263 - SUCCESSION - PROBATE - Probate -
Revocation - All places where properties of testator were situated - Not disclosed in
application for grant - Citations requisite could not, therefore, be published in all places -
Sufficient ground to claim revocation of probate. (Para 17)
(C) Succession Act (39 of 1925), S.263 - SUCCESSION - PROBATE - Probate -
Revocation - Who can claim - Person aggrieved by grant and having no knowledge of
probate proceedings - Can claim revocation.
Appeal No. 544 of 2006 in Misc. Petn. No. 1 of 2000 in T. and I.J. Petn. No. 734 of
1996, D/- 29-8-2006 (Bom), Reversed.
An application for grant of probate is a proceeding in rem. A probate when granted not
only binds all the parties before the Court but also binds all other persons in all
proceedings arising out of the Will or claims under or connected therewith. Being a
judgment in rem, a person, who is aggrieved thereby and having had no knowledge about
the proceedings and proper citations having not been made, is entitled to file an
application for revocation or probate on such grounds as may be available.
Appeal No. 544 of 2006 in Misc. Petn. No. 1 of 2000 in T. and I.J. Petn. No. 734 of
1996, D/- 29-8-2006 (Bom), Reversed. (Para 22)
1993 AIR SCW 1439 21
AIR 1954 SC 280 (Ref.) 19
Raju Ramchandran, Sr. Advocate, Arun K. Sinha, Rakesh Singh and Mukesh Kumar
Sinha with him, for Appellant; R. P. Bhatt,
@page-SC296
Sr. Advocate, Mukesh Kumar and Chirag M. Shroff with him, for Respondent.
* Appeal No. 544 of 2006 in Misc. Petn. No. 1 of 2000 in T. and I.J. Petn. No. 734 of
1996, D/- 29-8-2006 (Bom).
Judgement
1. S. B. SINHA, J.:- Leave granted.
2. A short but interesting question which arises for consideration in this appeal is as to
whether an application under Section 263 of the Indian Succession Act for revocation of
grant of probate would be maintainable, inter alia, on the premise that the appellants
name was not cited in the said application for grant of probate.
4. A Will was executed by one Lakhpati Devi widow of late Mahadeo Jaiswal in favour
of the respondent herein who was one of the grandsons of late Bhagwatidina, one of the
brothers of late Mahadeo Prasad. Appellant herein claimed that the said Lakhpati Devi
had executed another will on or about 12.3.1996. The said Lakhpati Devi admittedly
expired on 13.03.1996. Whereas the appellant did not file any application for grant of
probate in relation to the aforementioned will dated 12.03.1996, the respondent did so on
6.9.1996. In the said application, it was contended that the properties under the Will are
situated in Bombay stating :
"That the said deceased at the time of her death had a fixed place of abode at Room
No.10-11, Bharat Building, Sonapur Lane, Chira Bazar, Mumbai 400 002 and left
property within Greater Bombay in the State of Maharashtra."
It was furthermore stated :
"That no application has been made to any District Court or District Delegate or to any
other High Court for probate of any Will of the said deceased or for Letter of
Administration with or without the Will annexed to her property and credits."
5. However, an application for amendment of the application for grant of probate was
filed in the said testamentary proceedings which was allowed. On the basis of the
averments made by the respondent in the amended application, citations were published
only at Bombay on 28.1.1997. Respondent, however, filed an application for amendment
of the petition for grant of probate on 21.03.1997, inter alia, stating:
"That the said deceased at the time of her death had a fixed place of abode at Room
No.10-11, Bharat Building, Sonapur Lane, Chira Bazar, Mumbai -400 002 and left
property within Greater Bombay in the State of Maharashtra and elsewhere in Union of
India".
It was, therefore, not disclosed at what other places the properties are situated.
6. It was furthermore averred that there was no heir known to the petitioner on the side of
husband of the deceased. The schedule of assets allegedly left by the deceased was also
inserted in the schedule of the properties stating :
1. All that piece and parcel of pension tax land of ground (since redeemed) with the
messauges tentament or dwelling house standing thereon situate lying behind at Sonapur
Street Girgaum Road outside the Fort of Bombay in the Registration Sub-District of
Bombay in the land of the Bombay contained by admeasurement 243 (two hundred and
forty three) square yards or thereabouts and registered in the Books of Collector New No.
980 New Survey No.8158 and Cadastral Survey No.567 of Bhuleshwar Division and in
the books of the Collector of Municipal Rates and Taxes under (C) wards No.3385 and
Street No.6 and bounded as follows : that is to say on or towards the East by the
properties bearings Cadastral Survey Nos.570, 571, 572, 573 and 574 on or towards the
west partly by the properties bearing Cadastral Survey No.565 and 566 and partly by a
passage on or towards the north by the property bearing Cadastral Survey No.568 and or
towards the south by the Sonapur Street Valued at Rs. 1,00,000/-
Accrued gross rent of the above immoveable property from the date of death till filing of
this petition Rs. 7,500/-
2. S.B.A/c No.21416 with Bank of India, Kolabadevi Branch Mombai-2 standing in
the name of deceased @page-SC297 with accrued interest upto date of filing this petition
Rs. 1,000/-
3. Amount standing to the credit of the deceased in current A/c No.31080 with Bank
of India Kolabadi Branch Mumbai standing in the name of M/s Mahadeo forthwith in
which deceased was sole Proprietor Rs. 3,000/-
4. The Milk shop being shop No.1/11 situated at Bharat Building Sonapur lane Chira
Bazar Mumbai-2 currently infrastructure in the name and style of Mahadeo farm :
together with valued at
IN THE STATE OF UTTAR PRADESH Rs. 50,000/-
5. One open piece of land situate at Dist. Pratap Gad, Village Mahadeo Nagar,
(U.P.) Valued at Rs. 1,000/-
The above plot does not fetch any rent of income.
TOTAL Rs. 1,62,500/-
7. However, no citation was made in the State of Uttar Pradesh. A probate was granted in
favour of the respondent by the High Court by order dated 7.4.1997. An application for
revocation of the said grant of probate was made by the petitioner herein, inter alia, on
the premise that although she was one of the heirs of the said Lakhpati Devi, no citation
was made. Furthermore, a Will had also been executed in her favour.
8. A learned Single Judge of the Bombay High Court dismissed the application for
revocation of probate filed by the petitioner which was marked as Miscellaneous Petition
No.1 of 2000 by a judgment and order dated 23.6.1996 opining :
"The requirements for letter of administration and grant of probate are different. It is an
admitted position that public notice was issued before issuing a probate. The petitioner
neither filed any caveat nor filed any objection after the publication. Therefore, this
petition does not survive for consideration."
8A. On an intra court appeal having been preferred thereagainst, a Division Bench of the
said Court, on the premise that the appellant was not a legal heir of the deceased being an
agnate, dismissed the same.
9. Mr. Raju Ramachandran, learned senior counsel appearing on behalf of the appellant,
inter alia, would submit that the High Court committed a grave error in passing the
impugned judgment insofar as it failed to take into consideration that an agnate is also an
heir in terms of the provisions of the Hindu Succession Act. It was furthermore
contended that the said application should have been entertained also having regard to
Explanation (c) appended to Section 263 of the Indian Succession Act irrespective of the
fact as to whether the appellant had any notice of the probate of the said Will or not.
Even on the ground of non-compliance of the requirement of sub-section (3) of Section
283 of the Indian Succession Act, the learned counsel would contend, probate was
granted without complying with the requirements of law.
10. Husband of late Lakhpati Devi late Mahadeo Prasad was one of the five sons of
Vindeshwari Prasad-Ganesh Jaiswal; his brothers being late Bhagwatidina, late Gayadin,
late Mahavir Prasad and late Kailash. Late Bhagwatidina had three sons, namely, late
Mata Prasad, late Ram Prasad and late Moti Lal. Respondent herein is one of the sons of
late Rama Prasad. Late Ramaprasad died leaving behind his widow Sursati and three
sons, Suresh, Ramesh and Ravi Prakash (Respondent). Other brothers of Mahadeo
Prasad have died leaving behind their respective heirs and legal representatives. Late
Mahabir Prasad had six sons. Appellant is widow of late Harihar Prasad, one of the sons;
other sons being late Ganga Prasad, Jamuna Prasad, Babulal, Late Amrit Lal and Surya
Lal.
11. Parliament enacted the Hindu Succession Act, 1956 to amend and codify the law
relating to intestate succession among Hindus. Section 3(f) of the Hindu Succession Act
defines heir to mean any person, male or female, who is entitled to succeed to the
property of an intestate under the Act. Section 15 of the Act lays down the general rules
of succession in the case of female Hindus in the following terms :
"15. General rules of succession in the case of female Hindus.- (1) The property of a
female Hindu dying intestate shall devolve according to the rules set out in Section 16.-
@page-SC298
(a) firstly, upon the sons and daughters (including the children of any pre-deceased son or
daughter) and the husband;
(b) secondly, upon the heirs of the husband;
(c) thirdly, upon the mother and father;
(d) fourthly, upon the heirs of the father; and
(e) lastly, upon the heirs of the mother.
(2) Notwithstanding anything contained in sub-section (1),-
(a) any property inherited by a female Hindu from her father or mother shall devolve, in
the absence of any son or daughter of the deceased (including the children of any pre-
deceased son or daughter) not upon the other heirs referred to in sub-section (1) in the
order specified therein, but upon the heirs of the father; and
(b) any property inherited by a female Hindu from her husband or from her father-in-law
shall devolve, in the absence of any son or daughter of the deceased (including the
children of any pre-deceased son or daughter) not upon the other heirs referred to in sub-
section (1) in the order specified therein, but upon the heirs of the husband."
12. For the purpose of ascertaining as to who would be heirs of the husband if the
deceased did not leave any sons and daughters or husband; reference has to be made to
Section 8 of the Act which reads as under:
"Section 8. General rules of succession in the case of males.- The property of a male
Hindu dying intestate shall devolve according to the provisions of this Chapter-
(a) firstly, upon the heirs, being the relatives specified in class I of the Schedule;
(b) secondly, if there is no heir of class I, then upon the heirs, being the relatives specified
in class II of the Schedule;
(c) thirdly, if there is no heir of any of the two classes, then upon the agnates of the
deceased; and
(d) lastly, if there is no agnate, then upon the cognates of the deceased."
It is, therefore, not correct to say that agnates of the deceased are not heirs.
13. Mr. R.P. Bhatt, senior counsel appearing on behalf of the respondent, however, would
contend that in terms of the Rules framed by the Bombay High Court, it was not
necessary to make any citation in the State of Uttar Pradesh. Rule 683 of the Bombay
High Court Rules reads as under :
"683. Notice to next-of-kin- In all applications for Probate, Letters of Administration and
Succession Certificate, Notice of the application shall be given to all the heirs and next-
of-kin of the deceased mentioned in the Petition except to those whose consent has been
filed in the proceedings."
14. It is, therefore, not correct to contend that no citation in regard to the heirs of
Lakhpati Devi was necessary. The properties left by the deceased-Lakhpati Devi were
situated at two places, one in the State of Maharashtra and another in the district of
Pratapgarh in the State of Uttar Pradesh.
15. We have noticed hereinbefore that the respondent, for the reasons best known to him,
did not, at the first instance, disclose that any property belonging to the testator was
situated at a place other than the State of Maharashtra. Such disclosure was required to be
made in terms of sub-section (3) of Section 283. Citations were also required to be
published by the concerned District Judge in terms thereof.
16. In the application for amendment of the application, a vague statement was made.
Even therein it was not disclosed that another property is situated in the District of
Pratapgarh in the State of Uttar Pradesh, the reason therefor is beyond anybody's
comprehension.
17. The provisions contained in sub-section (3) of Section 283 are mandatory in nature.
Once the statutory requirements are found to have not been complied with, an application
for revocation of the grant of probate would be maintainable in terms of Section 263 of
the Act, apart from the fact that non-publication of citation could be one of the grounds to
revoke the grant of probate. Explanation (c) appended thereto in a case of this nature
would be attracted. The said provision reads thus :
263. Revocation or annulment for just cause.- The grant of probate or letters of
administration may be revoked or annulled for just cause.
Explanation.- Just cause shall be deemed to exist where-
(a) and (b) ...
(c) the grant was obtained by means of an untrue allegation of a fact essential in point of
law to justify the grant, though such
@page-SC299
allegation was made in ignorance or inadvertently; or
(d) to (e)..."
18. It may, therefore, be permissible for the appellant to show that a Will was executed by
said Lakhpati Devi in her favour also on 12.03.1996. Mr. Bhat contends that the
appellant had given up the right to the property under the said Will. Even if that is so,
this Court is not concerned therewith at this stage.
Appellant had merely filed an application. The said application has not been entertained
although the same, in our opinion, should have been done. The question, therefore, is as
to whether the said application should have been entertained.
19
. Reliance has been placed by Mr. Bhat on a decision of this Court in Ishwardeo Narain
Singh v. Smt. Kamta Devi and Ors. [AIR 1954 SC 980] wherein, inter alia, it was held :
Para 2 of AIR
"The Court of Probate is only concerned with the question as to whether the document
put forward as the last Will and testament of a deceased person was duly executed and
attested in accordance with law and whether at the time of such execution the testator had
sound disposing mind. The question whether a particular bequest is good or bad is not
within the purview of the probate Court."
20. The Probate Court, indisputably, exercises a limited jurisdiction. It is not concerned
with the question of title. But if the probate has been granted subject to compliance of
the provisions of the Act, an application for revocation would also lie.
21
. In Chiranjilal Shrilal Goenka v. Jasjit Singh and Ors. [(1993) 2 SCC 507], whereupon
again Mr. Bhat relied upon, this Court held : 1993 AIR SCW 1439, Para 20
"On a conspectus of the above legal scenario we conclude that the Probate Court has been
conferred with exclusive jurisdiction to grant probate of the Will of the deceased annexed
to the petition (suit); on grant or refusal thereof, it has to preserve the original Will
produced before it. The grant of probate is final subject to appeal, if any, or revocation if
made in terms of the provisions of the Succession Act. It is a judgment in rem and
conclusive and binds not only the parties but also the entire world. The award deprives
the parties of statutory right of appeal provided under Section 299. Thus the necessary
conclusion is that the Probate Court alone has exclusive jurisdiction and the Civil Court
on original side or the Arbitrator does not get jurisdiction, even if consented to by the
parties, to adjudicate upon the proof or validity of the Will propounded by the executrix,
the applicant. It is already seen that the executrix was nominated expressly in the Will is a
legal representative entitled to represent the estate of the deceased but the heirs cannot get
any probate before the Probate Court. They are entitled only to resist the claim of the
executrix of the execution and genuineness of the Will. The grant of probate gives the
executrix the right to represent the estate of the deceased, the subject-matter in other
proceedings. We make it clear that our exposition of law is only for the purpose of
finding the jurisdiction of the arbitrator and not an expression of opinion on merits in the
"probate suit"."
22. It is now well settled that an application for grant of probate is a proceeding in rem.
A probate when granted not only binds all the parties before the Court but also binds all
other persons in all proceedings arising out of the Will or claims under or connected
therewith. Being a judgment in rem, a person, who is aggrieved thereby and having had
no knowledge about the proceedings and proper citations having not been made, is
entitled to file an application for revocation of probate on such grounds as may be
available to him. We are, therefore, of the opinion that the application for revocation of
the grant of probate should have been entertained.
23. The impugned judgment, therefore, is set aside and the appeal is allowed and the
matter is remitted to the learned Single Judge of the Probate Court with costs. However,
we make it clear that we have not entered the merit of the matter.
Appeal allowed.
@page-SC300
AIR 2008 SUPREME COURT 300 "Savithri v. Karthyayani Amma"
(From : Kerala)*
-2007.
Savithri and Ors. v. Karthyayani Amma and Ors.
(A) Succession Act (39 of 1925), S.63 - SUCCESSION - WILL -
CONSTITUTIONALITY OF AN ACT - Will - Validity - Plea of undue influence and
coercion - Testator a cancer patient living with his sister - Sister, her son and grandsons
looking after him - Bequest of property in such circumstances, in favour of nephew and
nieces of testator - Natural - Will registered - Not cancelled though testator lived for 7
years after its execution - Fact by itself sufficient to uphold Will. (Para 12)
(B) Succession Act (39 of 1925), S.63 - SUCCESSION - WILL - EXECUTION -
WITNESS - Will - Execution - Attesting witness - Scribe of Will one of attesting
witnesses - He had witnessed Will being read over to testator - Witnessed signing of Will
by testator - Can be an attesting witness. (Para 13)
(C) Succession Act (39 of 1925), S.63 - Evidence Act (1 of 1872), S.101, S.102, S.103,
S.104 - SUCCESSION - EVIDENCE - WILL - EXECUTION - Will - Execution -
Suspicious circumstances - Plea of coercion - Burden to prove is on party alleging
coercion. (Para 15)
(D) Succession Act (39 of 1925), S.63 - SUCCESSION - WILL - Will - Suspicious
circumstances - Will depriving natural heirs of their share.
Deprivation of a due share to the natural heirs itself is not a factor which would lead to
the conclusion that there exist suspicious circumstances surrounding execution of Will.
For the said purpose, the background facts should also be taken into consideration. The
son was not meeting his father (testator). He had not been attending to him. He was not
even meeting the expenses for his treatment from a long, when father lost his job till his
death. The testator was living with sister and her children. If in that situation, he executed
a Will in favour of his nephew and nieces who looked after him no exception thereto can
be taken. Even then, under the Will something was left for the son. (Para 19)
2007 AIR SCW 203 : AIR 2007 SC 614 (Ref.) 16
2007 AIR SCW 3886 : AIR 2007 SC 2219 : 2007 (4) AIR Kar R 537 (Rel. on) 13
2006 AIR SCW 2184 : AIR 2006 SC 1895 (Disting.) 23
2006 AIR SCW 6115 : AIR 2007 SC 311 : 2007 (1) AIR Kar R 572 (Ref.) 15
2005 AIR SCW 605 : AIR 2005 SC 780 : 2005 AIR - Kant HCR 443 17
2003 AIR SCW 4018 : AIR 2003 SC 3109 (Rel. on, Pnt. D) 20
2002 AIR SCW 242 : AIR 2002 SC 637 16
2001 AIR SCW 4951 : AIR 2002 SC 317 (Rel. on, Pnt. D) 20
1998 AIR SCW 1695 : AIR 1998 SC 2861 (Ref.) 21
AIR 1959 SC 443 8, 17
Nishe Rajen Shonker (for M/s. T.T.K. Deepak and Co.), for Appellants; T.L.V. Iyer, Sr.
Advocate, S. Prasad, Jay Kishor Singh and Subramonium Prasad, for Respondents.
* A.S. No. 617 of 1992 (B), D/- 17-8-2004 (Ker).
Judgement
2. The question involved in this appeal is the validity of a Will dated 07.08.1971 executed
by one Sankaran Nair.
3. For the sake of convenience, the genealogical table may be noticed at the outset :
4. The properties in suit were purchased by Krishanan Nair and Kochukutty @

Kuttipennamma, mother of Respondent Nos. 1 and 2 and grandmother of Respondent
Nos. 3 to 8 herein. Krishnan Nair was a bachelor. Kochukutty had two children, Sankaran
Nair and Nanikutty Amma. They were governed by Marumakkattayam School of Law.
Appellants herein are wife, son and daughters of Madhavan Nair son of Sankaran Nair
(Plaintiff). Respondent Nos. 1 and 2 herein (Original Defendant Nos. 1 and 2) and
Respondent Nos. 3 to 8 herein (Original Defendant Nos. 3 to 8) are
@page-SC301
children and grandchildren respectively of Nanikutty Amma (sister of Sankaran Nair).
Sankaran Nair died in 1978. Indisputably, the relationship between Sankaran Nair and his
wife was strained. They were living separately. Sankaran Nair had been living with his
sister and her children. They were looking after him. He was suffering from cancer.
Respondents herein were bearing all costs for his treatment.
Execution of the said Will is not in dispute. What is contended is that the same was
surrounded by suspicious circumstances which, according to the appellants, were :
1. Registrar was brought to the house of the propounder which proves that the testator
was not in good health and mental condition at the time of execution of the Will.
2. DW-2, who was an attesting witness to the Will, in his deposition stated that he had not
seen the execution of the Will. He had also no previous acquaintance with the parties.
3. Other witnesses to the execution of the Will were beneficiaries under the Will.
4. Even when execution and registration of the Will had taken place at the house, there
was no reason as to why anybody from the locality had not attested the Will as a witness.
5. In the year 1986, Plaintiff having come to know that Respondent No. 3 was going to
construct a house on the said land, filed a suit for partition as also for cancellation of the
said Will. The said suit was decreed by the learned Subordinate Judge by a judgment and
order dated 18.01.1992, holding, inter alia, :
"........The plaintiff had stated that at the time of execution of the Will the testator was not
in a sound disposing state of mind and he did not sign the document after knowing the
contents of the same. In such circumstances, the propounder has to prove that the testator
signed the document in the presence of two attesting witnesses who signed it in the
presence of each other. The important aspect is that Sankaran Nair was not having
testamentary capacity at the time of execution of Ext. A1 is more or less admitted by the
defendants. In chief examination of PW-4 he has stated that the Sankaran Nair was not
able to execute Ext. A4 and he was not in such a mental condition to execute such a
document. That statement in chief examination is not cross-examined................."
It was further observed :
".........The definite case of the plaintiff is that all the documents were executed at the
instance of Narayanan Nair. On cardinal scrutiny of the entire evidence as a whole it can
be seen that Narayanan Nair is the actual person behind the execution of all the
documents............"
The learned Trial Judge also observed :
"........It is also not proved whether the testator signed the document after knowing the
contents of the documents. If the relationship of the testator with the son was so strange,
there was no necessity for him to reserve Rs. 500/- to his son in Ext.A4. If he reserves Rs.
500/- to his son in Ext. A4 that means he has an affection towards his son during his
lifetime. Therefore, he might have intended to give the property to his son after his death.
There was no necessity for him to bequeath his property to the defendants who are living
along with him and taking the income from the property. That income is sufficient for his
maintenance and there is no necessity for bequeathing the entire property to the
defendants as Ext. A4.........."
6. An appeal preferred thereagainst, however, has been allowed by reason of the
impugned judgment dated 17.8.2004, holding :
".........The plaintiff who could claim as legal heir of Sankaran Nair has no right to
challenge the partition deed executed by Sankaran Nair and others except on
establishment of the fact that Sankaran Nair was not in a position to understand the
contents of the partition deed or that fraud was played on him while effecting partition
which he did not find out during his life time............"
The High Court further observed :
".............In the Will it is stated that the property bequeathed under the Will was obtained
by his uncle and his mother and there was a partition between himself, uncle and others
and the property allotted to him in the partition was being bequeathed under the Will. In
the Will Sankaran Nair has also directed an amount of Rs. 500/- to be given to the
plaintiff. Therefore, there is nothing unnatural in Sankaran Nair directing the property
obtained by him to be enjoyed by his nephew and niece and their children as they were
looking after him during the major portion of his lifetime. In such
@page-SC302
circumstances I do not think that it can be said that mere disinheritance of the legal heir
by itself in the peculiar facts of this case will amount to a suspicious circumstance........"
7. Appellants are, thus, before us.
8. Mr. Nishe Rajen Shonker, learned counsel appearing on behalf of the appellants, in
support of the appeal, would submit that the High Court committed a serious error in
passing the impugned judgment insofar as it failed to take into consideration the
suspicious circumstances surrounding the Will which have been noticed by the learned
Trial Judge.
It was contended that as the beneficiaries under the said Will took an active role in the
matter of execution thereof, the same by itself would be sufficient to hold that the
execution thereof had not been proved. Strong reliance, in this behalf, has been placed on
[H. Venkatachala Iyengar v. B.N. Thimmajamma and others, AIR 1959 SC 443].
9. Mr. T.L.V. Iyer, learned Senior Counsel appearing on behalf of the respondents, on the
other hand, would submit that the findings of the learned Trial Judge are perverse being
beyond the pleadings in the suit.
The learned counsel would contend that the learned Trial Judge failed to notice that
although two Wills had been executed - one by Krishnan Nair on 06.08.1971 and another
by Sankaran Nair on 07.08.1971, only the latter one was in question. The learned Counsel
urged that although the partition had taken place on 27.07.1971, as the testators intended
to keep life interest for themselves, the said Wills were executed soon after the partition.
10. We may notice certain peculiar features of this case. The value of the joint family
properties was assessed at Rs. 4,000/-. The share of Sankaran Nair being ¼th therein, the
value of the properties allotted in his favour was only Rs. 1,000/-. Out of the said
properties, in terms of the said Will, a sum of Rs. 500/- was to be paid to the plaintiff.
In the said Will it was stated :
"My day-to-day affairs as well as treatment are being looked after and is rendered in a
sincere manner and according to my wishes by Sankunny Menon and Karthyayani Amma
who are (the children of my late sister Nani Kutty Amma) and her children.
And I do believe that they will continue to behave in the same was (sic) future also. And
I, hereby declare that after my death, all the assets in my name as well as the property in
the B Schedule which has devolved upon me by the above-mentioned deed, shall vest in
and be taken possession of and enjoyed by my late sister Nanikutty Amma's children,
Sankunni Menon and Karthyayani and her children and nobody else will have any right
whatsoever over my assets or property. Within an year of my death, a sum of rupees five
hundred shall be given to my son Madhavan and a receipt for the same shall be obtained
by Karthyayani Amma. If the above- mentioned sum is not given to Madhavan within 1
year and for that a receipt is not obtained, he is entitled to get an interest of ½% per
hundred rupees, until he receives the money. If the amount is not accepted even after
knowing about the above amount he shall not have any right to claim any interest as
stated above. Item No. 2 of the Schedule which I have received as my lawful share, is
hereby charged for the realization of the abovesaid amount. If my uncle, Krishnan Nair,
expires after my death, then for his funeral and other related rituals an amount which may
extend up to Rs. 250/-, shall be borne by Karthyayani Amma. This Will shall come into
force only in the event of and on my death. I hereby retain and have all rights and
authority to cancel this Will or re-draft the same or dispose of my properties as per my
wish. I also hereby state that, in the event of any such act, the same shall be done only
through a document made to that end. After deciding and agreeing as above the witnesses
signs below. I have signed in this Will only in Pullapra Village and is being numbered
after producing it in the Trichur Registrar Office.
11. We would proceed on the basis that at the time of execution of the said Will, the
testator was unwell. The test, however, is as to whether he possessed mental capacity to
understand the contents of the Will and whether the same was free and/or voluntary.
12. Submission of the learned counsel that if both Krishnan Nair and Sankaran Nair were
to bequeath their entire right, title and interest in the properties in favour of the
respondents herein, by way of family arrangement or otherwise, no deed of partition was
required to be executed, cannot be accepted as thereby they would have lost
@page-SC303
their interest in the property during their lifetime. They evidently intended to have life
interest in the property, bequeathing the same in favour of the respondents. It must also
be borne in mind that the parties are governed by Marumakkattayam School of Hindu
Law. The sisters in the family have a role to play. The fact that the testator was totally
dependent on his nephew and nieces is beyond any dispute. He lost his employment in
the year 1959. Apart from the properties which were subject-matter of the Will, he had no
other independent source of income. Being totally dependent on the respondents having
been suffering from cancer, he was bound to place implicit faith and confidence only
upon those who had been looking after him. The Will was admittedly registered. The
testator lived for seven years after execution of the Will. He could change his mind; he
did not. The very fact that he did not take any step for cancellation of the Will is itself a
factor which the Court may take into consideration for the purpose of upholding the
same. The question as to whether the Register was brought to the house of the
propounder or he had gone to the Registrar's office is not a matter which requires serious
consideration. But we may notice that the witness examined on behalf of the respondents,
Raveendran (DW-2), categorically stated that he had gone to the Registrar's office to get
the same registered. Execution of the Will might have taken place at the house of
Krishnan Nair, but according to DW-2 he came to his office even after registration. Even
the other Will was also scribed by him and he was an attesting witness therein also.
13
. It is not correct to contend that DW-2 could not have the attesting witness. He in his
deposition categorically stated that he had seen the Will being read over to the
propounder. The witnesses and he had seen Krishnan Nair putting his signature on the
Will. Krishnan Nair had also seen the witnesses putting their signatures. This satisfies the
requirements of the provisions of Section 63 of the Indian Succession Act, 1925 and
Section 68 of the Indian Evidence Act, 1872. [See Apoline D' Souza v. John D' Souza,
2007 (7) Scale 766]. 2007 AIR SCW 3886
14. The legal requirements in terms of the said provisions are now well-settled. A Will
like any other document is to be proved in terms of the provisions of the Indian
Succession Act and the Indian Evidence Act. The onus of proving the Will is on the
propounder. The testamentary capacity of the propounder must also be established.
Execution of the Will by the testator has to be proved. At least one attesting witness is
required to be examined for the purpose of proving the execution of the Will. It is
required to be shown that the Will has been signed by the testator with his free will and
that at the relevant time he was in sound disposing state of mind and understood the
nature and effect of the disposition. It is also required to be established that he has signed
the Will in the presence of two witnesses who attested his signature in his presence or in
the presence of each other. Only when there exist suspicious circumstances, the onus
would be on the propounder to explain them to the satisfaction of the court before it can
be accepted as genuine.
15
. We may, however, notice that according to the appellants themselves, the signature of
the testator on the Will was obtained under undue influence or coercion. The onus to
prove the same was on them. They have failed to do so. If the propounder proves that the
Will was signed by the testator and he at the relevant time was in sound disposing state of
mind and understood the nature and effect of disposition, the onus stands discharged. For
the aforementioned purpose the background fact of the attending circumstances may also
be taken into consideration. [See B. Venkatamuni v. C.J. Ayodhya Ram Singh and Others
(2006) 11 Scale 148]. 2006 AIR SCW 6115
16
. In Niranjan Umesh-chandra Joshi v. Mrudula Jyoti Rao and Ors. [2006 (14) Scale 186],
this Court held : 2007 AIR SCW 203
"Section 63 of the Indian Evidence Act lays down the mode and manner in which the
execution of an unprivileged Will is to be proved. Section 68 postulates the mode and
manner in which proof of execution of document is required by law to be attested. It in
unequivocal terms states that execution of Will must be proved at least by one attesting
witness, if an attesting witness is alive subject to the process of the court and capable of
giving evidence. A Will is to prove what is loosely called as primary evidence, except
where proof is permitted by leading secondary evidence. Unlike other documents, proof
of execution of any other document under the Act would not be sufficient
@page-SC304
as in terms of Section 68 of the Indian Evidence Act, execution must be proved at least by
one of the attesting witnesses. While making attestation, there must be an animus
attestandi, on the part of the attesting witness, meaning thereby, he must intend to attest
and extrinsic evidence on this point is receivable.
The burden of proof that the Will has been validly executed and is a genuine document is
on the propounder. The propounder is also required to prove that the testator has signed
the Will and that he had put his signature out of his own free will having a sound
disposition of mind and understood the nature and effect thereof. If sufficient evidence in
this behalf is brought on record, the onus of the propounder may be held to have been
discharged. But, the onus would be on the applicant to remove the suspicion by leading
sufficient and cogent evidence if there exists any. In the case of proof of Will, a signature
of a testator alone would not prove the execution thereof, if his mind may appear to be
very feeble and debilitated. However, if a defence of fraud, coercion or undue influence is
raised, the burden would be on the caveator. [See Madhukar D. Shende v. Tarabai
Shedage (2002) 2 SCC 85 and Sridevi and Ors. v. Jayaraja Shetty and Ors. (2005) 8
SCC 784]. Subject to above, proof of a Will does not ordinarily differ from that of
proving any other document."2002 AIR SCW 242
2005 AIR SCW 605
17
. Therein, this court also took into consideration the decision of this Court in H.
Venkatachala Iyengar (supra), wherein the following circumstances were held to be
relevant for determination of the existence of the suspicious circumstances : AIR
1959 SC 443
"(i) When a doubt is created in regard to the condition of mind of the testator despite his
signature on the Will;
(ii) When the disposition appears to be unnatural or wholly unfair in the light of the
relevant circumstances;
(iii) Where propounder himself takes prominent part in the execution of Will which
confers on him substantial benefit."
18. We do not find in the fact situation obtaining herein that any such suspicious
circumstance was existing. We are not unmindful of the fact that the Court must satisfy its
conscience before its genuineness is accepted. But what is necessary therefor, is a rational
approach.
19. Deprivation of a due share by the natural heirs itself is not a factor which would lead
to the conclusion that there exist suspicious circumstances. For the said purpose, as
noticed hereinbefore, the background facts should also be taken into consideration. The
son was not meeting his father. He had not been attending to him. He was not even
meeting the expenses for his treatment from 1959, when he lost his job till his death in
1978. The testator was living with his sister and her children. If in that situation, if he
executed a Will in their favour, no exception thereto can be taken. Even then, something
was left for the appellant.
20
. In Ramabai Padmakar Patil (Dead) through L.Rs. and others v. Rukminibai Vishnu
Vekhande and others [(2003) 8 SCC 537], this Court held : 2003 AIR SCW 4018
"8. A Will is executed to alter the mode of succession and by the very nature of things it
is bound to result in either reducing or depriving the share of a natural heir. If a person
intends his property to pass to his natural heirs, there is no necessity at all of executing a
Will. It is true that a propounder of the Will has to remove all suspicious circumstances.
Suspicion means doubt, conjecture or mistrust. But the fact that natural heirs have either
been excluded or a lesser share has been given to them, by itself without anything more,
cannot be held to be a suspicious circumstance, especially in a case where the bequest has
been made in favour of an offspring....."
[See also S. Sundaresa Pai and others v. Sumangala T. Pai (Mrs.) and Another - 2002 (1)
SCC 630]. 2001 AIR SCW 4951
21
. Strong reliance has been placed by the learned counsel on Gurdial Kaur and others v.
Kartar Kaur and others [(1998) 4 SCC 384], wherein it was held : 1998 AIR SCW 1695
"4. The law is well settled that the conscience of the court must be satisfied that the Will
in question was not only executed and attested in the manner required under the Indian
Succession Act, 1925 but it should also be found that the said Will was the product of the
free volition of the executant who had voluntarily executed the same after knowing and
understanding the
@page-SC305
contents of the Will. Therefore, whenever there is any suspicious circumstance, the
obligation is cast on the propounder of the Will to dispel the suspicious circumstance. As
in the facts and circumstances of the case, the court of appeal below did not accept the
valid execution of the Will by indicating reasons and coming to a specific finding that
suspicion had not been dispelled to the satisfaction of the Court and such finding of the
court of appeal below has also been upheld by the High Court by the impugned judgment,
we do not find any reason to interfere with such decision. This appeal, therefore, fails and
is dismissed without any order as to costs."
22. There is no dispute in regard to the proposition that the conscience of the court must
be satisfied. In the instant case, the High Court has considered the relevant factors. It has
been found that the Will was the product of the free will. He had executed the Will after
knowing and understanding the contents thereof.
23
. Joseph Antony Lazarus (Dead) by L.Rs. v. A.J. Francis [(2006) 9 SCC 515], whereupon
again reliance was placed, one of the circumstances was that the names of the two sons of
the testator had not been mentioned therein. The said decision cannot be said to have any
application to the instant case. 2006 AIR SCW 2184
24. For the reasons aforementioned, we do not find any legal infirmity in the judgment of
the High Court. The appeal is dismissed. However, in the facts and circumstances of the
case, there shall be no order as to costs.
Appeal dismissed.
AIR 2008 SUPREME COURT 305 "G. K. Mohan v. Union of India"
(From : Karnataka)
G. K. Mohan and Ors. v. Union of India and Ors.
Constitution of India, Art.16, Art.309 - Defence Research and Development Organisation
Technical Cadre Recruitment Rules (1995), R.6(4)(a) - EQUALITY IN PUBLIC
EMPLOYMENT - SERVICE MATTERS - Classification between employees - Can be
based on educational qualification - Chargeman grade II in defence service - R. 6(4)(a)
placing only those possessing qualifications prescribed in Sch. III in higher category of
grade 2 of Category II - Does not violate equality clause. (Paras 8, 9)
G. Umapathy, A. Leo G. Rozario and Rakesh K. Sharma, for Appellants; Ashok Bhan, R.
S. Rana, Aman Sinha, R. C. Kathia and B. V. Balaram Das, for Respondents.
Judgement
MARKANDEY KATJU, J. :-These appeals have been filed against the final judgment
and orders of the Karnataka High Court dated 15.2.2001 in W.P. Nos. 11728-755/2000,
CW W.P. Nos. 11701-11727/2000 and W.P. No. 10723/2000.
2. Heard learned counsel for the parties and perused the record.
3. The appellants before us filed O.A. Nos. 1040/1998, 1055-1081/1998 etc. before the
Central Administrative Tribunal, Bangalore Bench seeking a direction to quash Rule 6(4)
(a) of the Defence Research and Development Organization, Technical Cadre
Recruitment Rules, 1995 (hereinafter referred to as the Rules) as being violative of
Articles 14 and 16 of the Constitution, and for a direction to place the
applicants/appellants in grade II of category II with effect from 26.8.1995 with all
consequential benefits.
4. The applicants (appellants before us) were Chargemen grade II in the service of the
Union of India, Ministry of Defence. The Union of India introduced the aforesaid Rule on
26.8.1995. We are, however, only concerned with Rule 6(4)(a) which states as under :
"(4)(a). All persons holding the posts of Chief Glass Blower, Artist-cum-Photographer,
Commercial Artist, Junior Scientific Assistant Grade I, Chargeman Grade II and
Draughtsman Grade II shall be placed in grade 2 of category II provided that they possess
the qualifications prescribed for recruitment to the grade of Technical Assistant A as laid
down in Schedule III failing which they shall be placed in grade 4 of category I.
NOTE: For this purpose, the existing incumbents of the posts of Draughtsman Grade II,
possessing a certificate or a diploma in Draughtsmanship of a minimum duration of one
year shall be deemed to possess the required qualifications"
5. A perusal of Rule 6(4)(a) shows that
@page-SC306
those Chargemen who possess the qualifications prescribed in Schedule III shall be
placed in grade 2 of category II while those who do not possess the same will be placed
in grade 4 of category I.
6. Admittedly, the applicants/petitioners did not possess the qualifications in Schedule III
to the Rules and hence they were placed in grade IV of category I. Their grievance is that
they have been discriminated against because before coming into force of the Rules in
1995 all Chargemen grade II were in the same category, while now under Rule 6(4)(a) the
erstwhile Chargemen grade II have been divided into two categories, namely, those who
possess the qualifications in schedule III and those who do not.
7. Learned counsel for the appellants submitted that this is violative of Article 14 of the
Constitution because chances of promotion of the appellants have been adversely
affected.
8. We regret we cannot agree. It is well settled by a series of decisions now that there can
be categorization on the basis of educational qualifications. The erstwhile Chargemen
grade II who had the qualifications mentioned in Schedule III have been placed in a
higher category while those like the appellants who do not have the said qualifications
have been placed in the lower category. In our opinion, there is no violation of Article 14
on such a categorization.
9. It is well settled that categorization can be done on the basis of educational
qualifications and there will be no violation of Article 14 if this is done.
10. Learned counsel for the appellants then submitted that the Draughtsmen grade II have
been placed better off by the Note to Rule 6(4)(a) vis-a-vis the erstwhile Charge-men
grade II who did not have the qualifications in Schedule III.
11. In our opinion, this submission too has no merit. It is well settled that Article 14
applies within the same class. Draughts-man and Chargeman are two different classes,
and hence there is no question of discrimination between them.
12. For the reasons aforementioned, there is no merit in these appeals. The appeals are
accordingly dismissed. No order as to costs.
Appeal dismissed.
AIR 2008 SUPREME COURT 306 "Kanwarjit Singh Dhillon v. Hardyal Singh Dhillon"
Coram : 2 TARUN CHATTERJEE AND DALVEER BHANDARI, JJ.
-2007.
Kanwarjit Singh Dhillon v. Hardyal Singh Dhillon and Ors.
Specific Relief Act (47 of 1963), S.34 - Succession Act (39 of 1925), S.217, S.227 -
DECLARATION OF TITLE - INJUNCTION - SUCCESSION - PROBATE - Suit for
declaration of title and permanent injunction - Mere fact that probate of Will was granted
by competent Court in respect of property - Does not bar civil suit for declaration of title
and permanent injunction in respect of self-same property - Probate Court is not
competent to decide title or whether property was joint ancestral property.
AIR 1984 SC 1866, Explained.
It is well settled law that the functions of a probate Court are to see that the Will executed
by the testator was actually executed by him in a sound disposing state of mind without
coercion or undue inference and the same was duly attested. It was, therefore, not
competent for the probate Court to determine whether testator had or had not the
authority to dispose of the suit properties which he purported to have bequeathed by his
Will. The probate Court is also not competent to determine the question of title to the suit
properties nor will it go into the question whether the suit properties bequeathed by the
Will were joint ancestral properties or acquired properties of the testator.
In the instant case the plaint clearly states that the civil suit was for a declaration to the
effect that the suit properties were joint Hindu family properties of the HUF of which the
appellant and his two brothers, mother and unmarried daughter were the members.
Consequential relief for permanent injunction was also sought restraining the respondent
No. 1 from alienating the suit properties, in any manner, whatsoever. Besides claiming
that the suit properties were the joint family properties, it was also averred in the plaint
that testator was the Karta of the aforesaid HUF and by utilizing the income from their
ancestral agricultural land had acquired various properties including the suit properties.
@page-SC307
The dismissal of suit by holding that after the probate having been granted by the
competent probate Court and affirmed by this Court, the Civil Court had no jurisdiction
to proceed with the suit was improper. (Paras 10, 11)
1993 AIR SCW 1439 11
AIR 1984 SC 1866 (Explained) 10, 11
AIR 1954 SC 280 11
Anil Nauriya, Ms. Sumita Hazarika, for Appellant; Pradeep Gupta, K. K. Mohan, Suresh
Bharati, Gangandeep Singh Kandhari, Ms. Mithilesh Arya, Ms. Laxmibai, for
Respondents.
Judgement
JUDGMENT :- Delay condoned.
2. Leave granted.
3. This appeal is directed against the judgment and final order dated 22nd of March, 2004
passed by the High Court of Punjab and Haryana at Chandigarh in Civil Revision No.
3861 of 2002 whereby an order dated 18th of January, 2000 of the learned Civil Judge,
Jallandhar, dismissing a suit for declaration and permanent injunction of the appellant,
was affirmed.
4. Originally, the suit properties stood in the name of Ishar Singh (paternal grandfather of
the appellant) which was subsequently mutated in the name of his two sons, S. Hazara
Singh and S. Kirpal Singh. Late S. Kirpal Singh was the father of the appellant. Late S.
Kirpal Singh died leaving behind some properties, both movable and immovable
comprising agricultural land measuring 48 Kanal 10 Marlas situated at Jallandhar, a
residential house bearing No. 148, Sector 27A, Chandigarh and two deposits of Rs.
20,000/- and Rs. 10,000/- respectively (hereinafter referred to as "the suit properties").
According to the appellant, the suit properties left behind by late S. Kirpal Singh were
their ancestral properties. After eight years of the death of late S. Kirpal Singh, the
respondent No.1 propounded an unregistered Will left behind by late S. Kirpal Singh and
applied for probate thereof in the High Court of Punjab and Haryana. As per the said Will
executed by late S. Kirpal Singh, the suit properties, both movable and immovable, were
bequeathed by late S. Kirpal Singh in favour of respondent No. 1 herein. Only a right of
residence was given in favour of the widow of late S. Kirpal Singh and his unmarried
daughter. In the aforesaid probate proceeding, objections were, however, filed by the
appellant alleging that the said Will was a forged and fabricated one. However, the
probate was granted to the respondent No.1 by the High Court and thereafter, the matter
came up before this Court which also affirmed the order of the High Court granting
probate in respect of the Will executed by late S. Kirpal Singh. Subsequent to the grant of
probate of the Will of late S. Kirpal Singh in respect of the suit properties more precisely
on 9th of March, 1995, the appellant instituted a civil suit for declaration and injunction
wherein the appellant sought a declaration to the effect that the suit properties were joint
Hindu family properties.
5. In the suit filed at the instance of the appellant, the respondent No.1 raised a
preliminary issue by filing an application saying that after the probate having been
granted of the Will executed by late S. Kirpal Singh, the Civil Court had no jurisdiction to
proceed with the suit for declaration of title and permanent injunction and accordingly the
suit should be dismissed. The preliminary issue framed by the Civil Court is to the
following effect:
"Whether this Court has jurisdiction in view of the probate granted by the Hon'ble Punjab
and Haryana High Court vide order dated April 5, 1991, confirmed by the Divisional
Bench of Punjab and Haryana High Court on 1st December, 1993 and confirmed by the
Hon'ble Supreme Court of India on 2-7-1994."
6. By an order dated 18th of January, 2000, the learned Civil Judge, Jallandhar dismissed
the suit on a finding that once the probate was granted by a competent probate Court, and
in view of the fact that in the suit the appellant had not challenged the probate
proceeding, the Civil Court cannot have any jurisdiction to entertain the suit on the
aforesaid ground and the suit was dismissed.
7. Feeling aggrieved, a revision petition was filed before the High Court and the High
Court by the impugned judgment and order had also affirmed the order of the Civil Court
holding that the suit was not maintainable after the grant of probate by the competent
probate Court. The present special leave petition has been filed against the aforesaid
order of the High Court in respect of which leave has already been granted.
8. In our view, the High Court as well as the civil Court have acted illegally and with
@page-SC308
material irregularity in the exercise of their jurisdiction in dismissing the suit on the
aforesaid preliminary issue by holding that after the probate having been granted by the
competent probate Court and affirmed by this Court, the Civil Court had no jurisdiction
to proceed with the suit.
9. It is true that probate of the Will executed by late S. Kirpal Singh has been granted by
the competent probate Court which relates to the suit properties. But we have to look into
the allegations made in the plaint. The plaint clearly states that the civil suit was for a
declaration to the effect that the suit properties were joint Hindu family properties of the
HUF of which the appellant and his two brothers Hardyal Singh Dhillon and Harbans
Singh Dhillon, mother Surjit Kaur and unmarried daughter Amarjit Kaur were the
members. Consequential relief for permanent injunction was also sought restraining the
respondent No.1 from alienating the suit properties, in any manner, whatsoever. Besides
claiming that the suit properties were the joint family properties, it was also averred in the
plaint that late S. Kirpal Singh was the Karta of the aforesaid HUF and by utilizing the
income from their ancestral agricultural land had acquired various properties including
the suit properties.
10
. The High Court by the impugned order, relying on a decision of this Court in the case of
Smt. Rukmani Devi and Ors. v. Narendra Lal Gupta (1985 (1) SCC 144) affirmed the
order of the civil Court by holding that a probate granted by a competent probate Court
was conclusive of the validity of the Will of late S. Kripal Singh until it was revoked and
no evidence could be admitted to impeach the said Will except in a proceeding taken for
revoking the probate. According to the High Court, a decision of the probate Court would
be a judgment in rem which would not only be binding on the parties to the probate
proceeding but would be binding on the whole world. Upon the aforesaid finding, the
High Court had affirmed the order of the civil Court holding that the suit must be
dismissed in view of the fact that the probate Court had already granted probate in respect
of the Will executed by late S. Kirpal Singh relating to the suit properties. We are not in a
position to agree with the views expressed by the High Court in the impugned order nor
are we in agreement with the order passed by the Civil Court. As noted herein earlier, the
suit for declaration of title and injunction has been filed by the appellant inter alia on the
allegations that the suit properties are joint family properties of the HUF of which the
appellant and his two brothers Hardyal Singh Dhillon and Harbans Singh Dhillon, mother
Surjit Kaur and unmarried daughter Amarjit Kaur are members. It has also been claimed
by the appellant in the suit that by utilizing the income from the ancestral agricultural
land, various properties including the suit properties were acquired. Such being the
allegations made in the plaint which can only be decided on trial after parties are
permitted to adduce evidence in respect of their respective claims, it is difficult to hold
that only because probate of the Will of late S. Kirpal Singh has been granted, the suit for
title and injunction must be held to be not maintainable in law. It is well settled law that
the functions of a probate Court are to see that the Will executed by the testator was
actually executed by him in a sound disposing state of mind without coercion or undue
inference and the same was duly attested. It was, therefore, not competent for the probate
Court to determine whether late S. Kirpal Singh had or had not the authority to dispose of
the suit properties which he purported to have bequeathed by his Will. The probate Court
is also not competent to determine the question of title to the suit properties nor will it go
into the question whether the suit properties bequeathed by the Will were joint ancestral
properties or acquired properties of the testator. AIR 1984 SC 1866
11
. In Chiranjilal Shrilal Goenka v. Jasjit Singh and Ors. ((1993)2 SCC 507), this Court
while upholding the above views and following the earlier decisions of this Court as well
as of other High Courts in India observed in paragraph 15 at page 515 which runs as
under :- 1993 AIR SCW 1439 at P. 1446, Para 15
"In Ishwardeo Narain Singh v. Smt. Kamta Devi this Court held that the Court of probate
is only concerned with the question as to whether the document put forward as the last
Will and testament of a deceased person was duly executed and attested in accordance
with law and whether at the time of such execution the testator had sound disposing
mind. The question whether a particular bequest is good or bad is not within the purview
of the AIR 1954 SC 280
@page-SC309
probate Court. Therefore, the only issue in a probate proceeding relates to the
genuineness and due execution of the will and the Court itself is under duty to determine
it and preserve the original will in its custody. The Succession Act is a self contained code
insofar as the question of making an application for probate, grant or refusal of probate or
an appeal carried against the decision of the probate Court. This is clearly manifested in
the fascicule of the provisions of the Act. The probate proceedings shall be conducted by
the probate Court in the manner prescribed in the Act and in no other ways. The grant of
probate with a copy of the Will annexed establishes conclusively as to the appointment of
the executor and the valid execution of the Will. Thus, it does no more than establish the
factum of the will and the legal character of the executor. Probate Court does not decide
any question of title or of the existence of the property itself". (Emphasis supplied).
That being the position and in view of the nature of allegations made in the plaint, we do
not find any reason as to how the High Court as well as the civil Court could come to a
conclusion that after the probate of the Will executed by late S. Kirpal Singh was granted,
the suit for declaration for title and injunction on the above allegation could not be said to
be maintainable in law. The High Court also while holding that the suit was not
maintainable, in view of the probate granted of the Will of late S. Kirpal Singh had relied
on a decision of this Court, as noted herein earlier, in the case of Rukmani Devi
(supra).We are not in a position to agree with the High Court that this decision could at
all be applicable in the facts and circumstances of the present case. A plain reading of this
decision would not show that after the grant of probate by a competent Court, the suit for
title and permanent injunction cannot be said to be maintainable in law. What this Court
held in that decision is that once a probate is granted by a competent Court, it would
become conclusive of the validity of the Will itself, but, that cannot be decisive whether
the probate Court would also decide the title of the testator in the suit properties which, in
our view, can only be decided by the civil Court on evidence. It is true that the probate of
the Will granted by the competent probate Court would be admitted into evidence that
may be taken into consideration by the civil Court while deciding the suit for title but
grant of probate cannot be decisive for declaration of title and injunction whether at all
the testator had any title to the suit properties or not.AIR 1984 SC 1866
12. Such being the position, we, therefore, hold that the High Court as well as the trial
Court had acted illegally in dismissing the suit of the appellant on the aforesaid sole
ground after framing the preliminary issue. For the reasons aforesaid, the judgments of
the High Court as well as of the trial Court are set aside. The appeal is allowed to the
extent indicated above. The trial Court is now directed to decide the suit after framing
issues, including the issue of maintainability of the suit after the probate being granted, if
not already framed in the meantime and dispose of the same within a year form the date
of production of a copy of this order before the trial Court.
13. Before parting with this judgment, we may express one more aspect. As noted herein
earlier, a suit was dismissed by the trial Court which was affirmed by the High Court in
revision after framing preliminary issue which we have already noted herein earlier. A
question may arise whether the preliminary issue could be raised without deciding the
other issues and the suit could be dismissed in view of Order XIV, Rule 2 of the Code of
Civil Procedure. In view of our decision in this matter, we do not feel it proper to dwell
on this aspect which is kept open for future consideration.
14. For the aforesaid reasons, the impugned order is set aside. The appeal is allowed.
There will be no order as to costs.
Appeal allowed.
AIR 2008 SUPREME COURT 309 "Maruti Udyog Ltd., M/s. v. Mahinder C. Mehta"
Contempt Petition (Civil) No. 289 of 2003 (in S.L.P. (Civ) No. 13305 of 2002), D/- 10
-10 -2007.
M/s. Maruti Udyog Ltd. v. Mahinder C. Mehta and Ors.
Constitution of India, Art.129 - Contempt of Courts Act (70 of 1971), S.2 - SUPREME
COURT - CONTEMPT OF COURT - Undertakings given before Supreme Court -
Breach of - Contemnors did not furnish bank guarantee before arbitrator despite
undertaking given before Supreme Court - Not only, they went back from said
undertaking they also sold away
@page-SC310
only property which was in their possession - Contemnors even did not disclose that said
property was an encumbered one - Thus contemnors misled Court and committed gross
contempt of Supreme Court.
2006 AIR SCW 2218, Foll. (Paras 23, 28, 29)
2003 AIR SCW 7223 : AIR 2004 SC 942 24
(2000) 4 SCC 400 26
AIR 1979 SC 1528 25
Shyam Divan, D. K. Ganju, Sr. Advocates, T. Sudhakar Reddy, S. Udaya Kumar Sagar,
Ms. Bina Madhavan, Ms. Nupur (for M/s. Lawyers Knit and Co.) Pramod Dayal, A. K.
Thakur and Nikunj Dayal, with them, for Appellants; Gopal Subramanium, ASG, Manoj
Saxsena, Rajnish Kumar Singh, Rahul Shukla, T. V. George, Raghenth Basant, Balaji and
Asheesh Jain with him, for the Respondents.
Judgement
S. B. SINHA, J. :- This contempt petition arises in a somewhat peculiar circumstance.
Petitioner herein is manufacturer of cars. Alleged contemnors were Directors of a
Company known as M/s. Mahalaxmi Motors Limited (Company). The Company
obtained various advances from the customers on behalf of the petitioner. It, however,
did not pay the amount to petitioner herein. Respondents admitted their liability of the
petitioner to the extent of Rs. 7.63 crores in respect of supply of vehicles made by it, as
would appear from the minutes of the meeting dated 5.04.1997 which is as under:
"7. MML also provided a letter No. 021/MML/97 dated 5.4.1997 wherein they admitted
that there was a shortfall of Rs. 7.63 Cr."
Respondents also by an affidavit filed before the Andhra Pradesh High Court admitted
their liability stating:
"15. In this instance also the Petitioner company had on its own given the particulars of
the amounts due from it to the complainant company by its letter dated 5th April, 1997
wherein it accepted a liability of Rs. 763.22 lakhs and also gave the repayment schedule.
Prior to that it gave a list of all the pending customers at Hybderabad and Vijayawada. In
fact vehicles have been delivered to meet of these in the said list, and deliveries are still
on to the remaining persons. The complainant company had been delivering these
vehicles through other dealers as with the advent of this dispute with the Petitioner
company it terminated its dealership.
16. It is respectfully submitted that after the Petitioner company gave the said
undertaking to pay off the due about Rs. 763.22 lakhs, there has been a change in
thinking in the concerned officials of the complainant company had they started making
exaggerated claims over and above the amounts actually due to it from customer
bookings. As far as the Petitioner company is concerned it also made funds available to
honour its commitment to the complainant company and took a draft for the said amount
in May, 1997 itself which is to the knowledge of the complainant company."
2. As the Company or its Directors did not pay even the said admitted amount to the
petitioner, it filed a suit for recovery thereof. Indisputably, there existed an arbitration
agreement in the contract entered into by and between the parties, Clause 57 whereof
reads as under:
"If the differences or disputes, except dispute pertaining to termination, shall arise
between the parties hereto as to the construction or true intent and meaning of any of the
terms and conditions herein contained or as to any payment to be made in pursuance
hereof or as to any other matter arising out of or connected with or/ incidental to these
presents or as to the rights, duties and obligation of either party, such difference or
dispute whenever and so often as the same shall arise, shall be referred to the Indian
Council of Arbitration, New Delhi under their rules for the time being in force and the
award in pursuance thereof shall be binding on the parties."
3. Relying on or on the basis of the said arbitration agreement, the respondents herein
filed an application purported to be under Section 8 of the Arbitration and Conciliation
Act, 1996 (for short the Act). A learned Single Judge of the Delhi High Court rejected
the said application. An appeal was preferred thereagainst before a Division Bench
which was also dismissed. A Special Leave Petition was filed before this Court.
Petitioner herein agreed for reference of the disputes and differences between the parties
to arbitration inter alia on the condition that the respondents shall deposit the amount or
furnish security and/ or comply
@page-SC311
with the directions of the learned Arbitrator in case such directions and/ or interim orders
are passed by the learned Arbitrator in the following terms:
"4. All the parties to this S.L.P. shall by way of affidavit give undertaking to this Hon'ble
Court to furnish the security and/ or comply with the directions of learned Arbitrator in
case the learned Arbitrator directs any of the parties to furnish the security and/ or comply
with any other interim order of the learned Arbitrator."
The proposed term of reference was also agreed to by the respondents.
4. On the basis of the said representations, this Court by an order dated 6.09.2002
referred the subject matter of the dispute to the arbitration of Justice A.M. Ahmadi, a
former Chief Justice of this Court.
5. The question as to whether the respondents should furnish bank guarantee or not came
up for consideration before the learned Arbitrator and by an order dated 25.03.2003 a
direction was issued upon the respondents to furnish bank guarantee for the sum of Rs.
763.22 lakhs within a period of four weeks from the said date directing:
"Since the documents relied upon by the claimant company in support of its claim for Rs.
763.22 lakhs are in dispute, I am not inclined to make an interim award under section 17
of the Act read with Order 12, Rule 6, CPC. However, I am prima facie satisfied that the
claimant company has made out a prima facie case for an interim order directing the
respondents to furnish a bank guarantee in the sum of Rs. 763.22 lakhs within a period of
four weeks from today. Needless to state that under the Supreme Court order dated
6.9.2002 (paragraph 3) the interim order has to be complied with within four weeks from
the date of the order."
6. An interlocutory application was filed by the respondents before this Court being IA
No. 2 of 2003. But, the same was withdrawn on 6.05.2003. An application was thereafter
filed by them before the learned Arbitrator for modification of the said order dated
25.03.2003 by offering to furnish property security purported to have been situate at
Secunderabad in the State of Andhra Pradesh instead of bank guarantee. Curiously
enough, it was not disclosed that the said property was encumbered in more than one way
and, as would appear from the discussions made hereinafter, the property was being
claimed by the State of Andhra Pradesh as having vested in it. However, on or about
28.06.2003, it was disclosed that the property was encumbered. The learned Arbitrator
rejected the application for modification by an order dated 2.08.2003 but extended time
for furnishing bank guarantee up to 27.08.2003. In the meantime, the petitioner filed a
contempt petition before this Court on 26.07.2003.
7. It appears from the records that the respondents herein had given an undertaking not to
alienate their assets or encumber or create third party interest in the property at
Secunderabad. It is also not in dispute that despite pendency of the aforementioned
contempt petition, the property belonging to company at Bangalore was disposed of. It
was disclosed before the learned Arbitrator by the respondents in their reply to
application under Section 17 of the Act filed by the petitioner and the same was reiterated
in the affidavit affirmed by Respondent No. 1 herein on 7.07.2004.
8. On or about 23.07.2004, this Court directed the alleged contemnors to file affidavit
disclosing details of their present assets as also that of the Company; pursuant whereto,
an affidavit was filed by Respondent No.1 stating:
(i) The property of M/s. Mahalaxmi Motors Ltd. at Secunderabad was encumbered.
(ii) He had a flat at D-1, Maya Apartment admeasuring 800 sq. ft. at Ashoka Road,
Bangalore which was sold on 3.02.2004 for Rs. 8,00,700/-.
(iii) He was the manager of Hyderabad Auto Services and drawing a salary of Rs.
15,000/- p.m.
Petitioner in its reply denied and disputed the said statement and contended that by reason
of sale of property at Bangalore, a further contempt has been committed. It was urged that
the affidavit of Respondent No. 1 not only amounted to suppression of facts but also
perjury.
An award was made on 10.04.2005 as against the Company for a sum of Rs. 7.63 crores
with interest at the rate of 8% in favour of the petitioner along with costs and expenses.
9. Before this Court, however, a proposal for settlement was made by Respondent No. 1
in terms of an affidavit; paragraph 13 whereof reads thus:
@page-SC312
"13. I say that I pray this Honble Court to kindly consider my pecuniary circumstances
and helpless position to mobilize monies to an extent of 763.22 lakhs and I pray which
inability of mere may not be termed as contempt of this Hon'ble Court. I once again
reiterate and pray this Honble Court to kindly consider my adverse financial
circumstances and kindly accept the landed property as security which the Petitioner has
accepted and consequently the orders passed by the Arbitrator was complied with and
thus there is no cause of action to proceed with the present contempt case. Even
otherwise I have also established a prima facie case over the title of the said land before
the High Court of Andhra Pradesh before the Sole Arbitrator and before this Hon'ble
Court. I am even now ready and willing to relinquish all my rights over the landed
property in favour of the Petitioner. I further agree that I will execute the General Power
of Attorney in favour of the petitioner for the purpose of getting clearance from the
Government of Andhra Pradesh and regularization of the land in question in favour of the
Mahalaxmi Motors...........I will fully co-operate with the Petitioner to get the land
transferred in its name or for its disposal and the Respondent unhestitatingly sign on
every paper which the petitioner brings before him in the matter of the said landed
property........."
10. Relying on or on the basis of the said representation made by the respondents, a
Division Bench formed an impression that it is possible to settle the dues of the petitioner
as also other creditors. By an order dated 9.02.2007, therefore, it was directed:
"(1) The parties hereto should find out ways and means to sell the property belonging to
the first respondent company herein, situate at Secunderabad, jointly by the petitioner as
also the Indian Overseas Bank, Hyderabad. For the said purpose, the Chief Manager of
the Indian Overseas Bank, the Collector of the Hyderabad District as also the Managing
Director of respondent No. 1 Mahendra C. Mehta, who is present in Court today, shall
meet in the office of the Collector, Hyderabad on 26th February, 2007 at 11.00 a.m.
(2) As it is stated that a writ petition bearing No. 15920/2004 is pending before the High
Court of Andhra Pradesh in regard to the said property, we request the Chief Justice of
the High Court to consider the desirability of placing the said writ petition before an
appropriate Bench for its very early disposal."
11. In furtherance of the said order, the Collector of the Hyderabad District held a
meeting. In the said meeting, it transpired that the property in question, which is in
dispute, belonged to the State of Andhra Pradesh and it claiming right, title and interest
therein had initiated a proceeding against the respondents in respect thereof under the
provisions of the Andhra Pradesh Land Grabbing (Prohibition) Act, 1982. The said
proceeding was decided in favour of the State of Andhra Pradesh.
12. Respondents filed a writ petition before the High Court thereagainst being Writ
Petition No. 15920 of 2004. The said writ petition having been dismissed, the appeal of
the respondents and the Company preferred thereagainst was taken up for hearing along
with this matter and by reason of a judgment and order of this date, we are disposing of
the same also.
13. The Collector filed a status report inter alia noticing:
"10. It may be informed to this Hon'ble Court that on detailed enquiry by the revenue
officials it is learnt that one Sri R. Praveen Kumar, S/0 R. Vijay Kumar, claiming to be
GPA holder (Unregistered) of M/s. Mahalakshmi Motors Ltd. is reportedly running
Mahalaxmi Motors workshop on the suit schedule land but on ground a company under
the name and style of M/s. Hyundai Lakshmi is being run, involving business of buying,
selling and servicing of vehicles. Further, there are two prominent display boards at the
entrance showing as Hyundai Lakshmi. The copy of the GPA furnished by Sri Praveen
Kumar, is not registered and has no legal authenticity. This office has reason to believe
that a third party is in illegal possession of the land and the relationship between M/s.
Mahalaxmi Motors and present occupant is not known. In this regard, necessary action is
being initiated separately........."
It was, therefore, opined:
"11. The very fact that M/s. Mahalaxmi Motors have applied for regularization proves
that they are in illegal occupation of Government land. Thus, they do not have any locus
standi over the suit scheduled property. Further the intention of selling of the land as
proposed by the Indian Overseas
@page-SC313
Bank and Maruti Udyog Ltd. cannot be considered at this juncture as the suit property
does not belong to Mahendra C. Mehta and others and the suit scheduled land is required
for public purpose."
14. Mr. T.K. Ganju, learned senior counsel appearing on behalf of the petitioner would
submit that by brazenly flouting the order of this Court dated 6.09.2002, the respondents
have committed gross contempt of this Court. It was submitted that the alleged
contemnors were bound to comply with the orders passed by the learned Arbitrator in
terms of this Courts order dated 6.09.2002. As they had not furnished bank guarantee
pursuant thereto or in furtherance thereof and in fact the alleged contemnors have
committed a contempt of this Court.
It was furthermore contended that that the contempt stands aggravated as even during
pendency of this proceeding as also the arbitration proceeding before the learned
Arbitrator, they have sold their flat situate at Bangalore.
15. Mr. Shyam Divan, learned senior counsel appearing on behalf of the alleged
contemnors, on the other hand, has drawn our attention to the additional affidavits filed
by the contemnors herein tendering unconditional apology. We would refer to only one of
them filed by Respondent No. 1. It was averred therein:
"1. I unconditionally apologize to this Hon'ble Court with respect to the contempt which
is the subject matter of the Contempt Petition. I have highest respect for the judiciary and
for the judges of this Hon'ble Court as well as the Ld. Arbitrator.
2. I was unable to arrange for Bank Guarantee of Rs. 763.22 lakhs since the company was
not in a position to mobilize resources. Moreover, I did not have personal resources to
raise funds and to ensure that the Bank Guarantee is provided.
3. I request this Hon'ble Court to accept the unconditional apology tendered by me."
A further reply has also been filed by the respondents stating:
"6. That the District Collector has needlessly and unwarrantly traced earlier rejection of
the regularization proposals by the government by cryptic and non-speaking order and
consequent filing of writ petition No. 15 of 2000 by the respondent when the matter was
remitted back to government to pass appropriate orders taking into account the
recommendations of the District Collector and the Commissioner of Land Revenue dated
22.10.1997 and 30.9.1997 which facts are already in the record of this Honourable Court.
While so doing, the District Collector, Hyderabad made a false report that a report was
submitted to the government that the lands are required for public purpose like
establishment of hospitals, schools, play grounds, etc., referring to his report dated
17.6.2003 and his report is not based on the recommendations based by him and the
Commissioner Land Revenue referred to above which is definitely an after thought and to
prejudice the mind of this Honourable Court. Further it is not a relevant issue at this
juncture which he never pleaded before any of the courts below.
7. The Respondent submits that the Collector, Hyderabad deliberately, wantonly and
maliciously sent a misleading report to this Hon'ble Court. When the District Collector
himself recommended for the regularization of the lands in question in favour of the
Respondent collecting market rate at Rs. 1240/- per sq. yard in his letter No. 14-87-
89/1993 dated 22.10.1994, the District Collector suppressed this letter and quoted a
different one. In fact the Hon'ble High Court directed the Government to take into
consideration the same letter dated 22.10.1994 in its order dated 30.7.2001 in W.P. No.
15/2000. The District Collector, Hyderabad deliberately suppressed the said letter and
gave a false and misleading report to this Hon'ble Court and this is highly reprehensible.
In regard to possession of the property by M/s. Lakshmi Hyundai, it was stated:
"11. The Respondent submits that it is not true to say that the land in question is under
illegal occupation of third party Sri R. Praveen Kumar S/o Vijaya Kumar Rao as reported
by the District Collector, Hyderabad. The fact remained is that the Managing Director of
M/s. Mahalaxmi Motors Ltd., and Lakshmi Hyundai had association with each other.
M/s. Lakshmi Hyundai has its own showroom and workshop at Humayathnagar,
Hyderabad. That company has some customers in the Secunderabad area and for the
convenience of its customers the Managing Director of M/s. Hyundai Lakshmi sought the
oral permission of the Managing Director of M/s. Mahalaxmi Motors to carry on
servicing of the cars of its customers in the workshop of
@page-SC314
Mahalaxmi Motors Ltd. Except this there is no jural relationship between M/s.
Mahalaxmi Motors Ltd., and Hyundai Lakshmi Motors. The latter has no right, claim,
title or interest over the workshop of M/s. Mahalaxmi Motors Ltd., and no financial
transaction took place between these two companies. M/s. Mahalaxmi Motors Ltd. ever
executed any GPA either registered or unregistered in favour of anybody muchless in
favour of R. Praveen Kumar S/o Vijaya Kumar Rao."
16. Our attention was drawn to an affidavit affirmed by the alleged Contemnor No. 3
wherein he stated that he was only an employee of the Company and he was made
Director of the Company only because of his experience in the sale and service of
automobiles. He has allegedly tendered his resignation as Director in 1997 and the
Company has accepted the same.
17. Our attention was further drawn to a counter affidavit dated 6.04.2004 filed by
Respondent No. 2 wherein it was stated that he was not a signatory to the original
dealership agreement and was not involved in any of the day to day affairs of Mahalaxmi
Motors Ltd.
18. Our attention was also drawn to a counter affidavit dated 16.2.2004, and further
affidavits dated 1.08.2004, 5.08.2005 and 4.10.2005 wherein, as noticed hereinbefore,
Respondent No. 1 had tendered unconditional apology for his inability to raise the
resources and furnish a bank guarantee to the tune of Rs. 763.22 lakhs. Respondent No. 2
had also stated that he was forced to sell his personal flat at Bangalore to meet his debts
and obligations and he was ready and willing to relinquish all rights with respect to the
land in Secunderabad.
19. It was furthermore submitted that as the learned Arbitrator has passed an award only
against the Company, the interlocutory order passed by this Court having merged with the
final award, no contempt of this Court has been committed.
20. The fact of the matter, as noticed hereinbefore, clearly goes to show that the alleged
contemnors not only prevaricated their stand at different stages in different proceedings,
they intended to prolong the litigation one way or the other. They had accepted their
liability at least to the extent of 7.63 crores. They must have invested the said amount.
The parties hereto accepted that the disputes and differences pending between them
should be referred to an arbitrator. It was agreed to by the petitioner only on the
representation made by the alleged contemnors that they would furnish a bank guarantee
provided an order is passed in that behalf by the learned Arbitrator.
21. The fact that the learned Arbitrator issued such a direction is not in dispute. The
learned Arbitrator even otherwise had the jurisdiction to pass interim order in terms of
Section 9 of the Act. Correctness or otherwise of the said order has not been questioned.
Despite undertaking given before this Court, in the aforesaid matter, the alleged
contemnors did not furnish any bank guarantee. Admittedly, their application for
modification was also dismissed. Not only, they went back from the undertaking given
before this Court, they also sold away the only property which was in their possession.
The property situate at Secunderabad admittedly had been claimed by the State of Andhra
Pradesh. The alleged contemnors even did not disclose that the said property was an
encumbered one. The same was disclosed only at a later stage.
22. If they were not in a position to furnish any bank guarantee or otherwise, they could
have taken such an unequivocal stand before the courts. They not only suppressed
material facts, but also made a wrong representation that in the event the property at
Secunderabad is sold, the price whereof is about 11 crores and, thus, from the sale
proceeds the dues of the debtors would be satisfied. Such a claim was evidently made, as
would now appear, that an application for regularization was pending before the State.
The alleged contemnors did not have any subsisting right, title and interest in or over the
said property. They could not have made a proposal before this Court for sale of the
property only on the basis of a title which they could only derive on happening of a
contingency, viz., regularization thereof by the State. A proposal for sale of the property
could be made only if the respondents had any subsisting title thereto and not otherwise.
23. We, therefore, are of the opinion that the alleged contemnors have misled this Court
and have committed gross contempt of this Court.
24
. In Bank of Baroda v. Sadruddin Hasan Daya and 2003 AIR SCW 7223
@page-SC315
Another [(2004) 1 SCC 360], even in relation to a consent order, this Court held:
"10. A legal plea taken by a party that a decree passed by a court (including Supreme
Court) is without jurisdiction and therefore a nullity, will not normally amount to a
contemptuous statement. However, the written submission made by the respondents
before the Debts Recovery Tribunal, wherein they said that the Supreme Court had no
jurisdiction to pass the decree dated 28-7-1999 and the decree had no validity and is a
nullity, has to be seen in the factual background of the case. It may be noted that the
decree had been passed on the basis of consent terms. It is not the case of the respondents
that any fraud was played upon them by any party when they entered into a settlement
and signed the minutes of the decree. It appears that the respondents from the very
inception had no intention of paying the amount, but they agreed for a settlement and
consent terms only for the purpose of gaining time whereunder instalments were fixed.
They adopted the same procedure in the suit instituted by Oman International Bank,
SAOD, wherein they offered the same property to remain under attachment till the decree
was satisfied. Placing the same property under attachment is bound to create problems for
the decree-holders of either of the suits as no one wants to buy such property in court
auction which may land him in further litigation. The respondents intentionally and
deliberately adopted such a course of action so that further hurdles may come in the way
of execution of the decree and therefore it is clearly a case of wilful breach of an
undertaking given to the Court."
25
. This Court in Babu Ram Gupta v. Sudhir Bhasin [(1980) 3 SCC 47] held: AIR
1979 SC 1528
"10.......Indeed, if we were to hold that non-compliance of a compromise decree or

consent order amounts to contempt of court, the provisions of the Code of Civil
Procedure relating to execution of decrees may not be resorted to at all. In fact, the reason
why a breach of clear undertaking given to the court amounts to contempt of court is that
the contemner by making a false representation to the court obtains a benefit for himself
and if he fails to honour the undertaking, he plays a serious fraud on the court itself and
thereby obstructs the course of justice and brings into disrepute the judicial institution.
The same cannot, however, be said of a consent order or a compromise decree where the
fraud, if any, is practised by the person concerned not on the court but on one of the
parties. Thus, the offence committed by the person concerned is qua the party not qua the
court, and, therefore, the very foundation for proceeding for contempt of court is
completely absent in such cases. In these circumstances, we are satisfied that unless there
is an express undertaking given in writing before the Court by the contemner or
incorporated by the court in its order, there can be no question of wilful disobedience of
such an undertaking. In the instant case, we have already held that there is neither any
written undertaking filed by the appellant nor was any such undertaking impliedly or
expressly incorporated in the order impugned. Thus there being no undertaking at all the
question of breach of such undertaking does not arise."
26. Mr. Divan, however, relied upon a decision of this Court in R.N. Dey and Others v.
Bhagyabati Pramanik and Others [(2000) 4 SCC 400] wherein it has been held:
"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 courts 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........."
This Court in R.N. Dey (supra) has categorically held that the contempt is a matter
between the court and the contemnor. Unlike R.N. Dey (supra), herein the respondents
are not disputing their liability to pay the awarded amount. Therein no undertaking had
been given.
27
. In Rama Narang v. Ramesh Narang and Another [(2006) 11 SCC 114] whereupon
reliance has been placed by Mr. Divan, the question revolved round the alleged violation
of certain clauses of the consent terms. In that case the consent order did not contain an
undertaking. It, on that premise, opined: 2006 AIR SCW 2218
"24. All decrees and orders are executable under the Code of Civil Procedure. Consent
decrees or orders are of course also executable. But merely because an order or
@page-SC316
decree is executable, would not take away the courts jurisdiction to deal with a matter
under the Act provided the court is satisfied that the violation of the order or decree is
such, that if proved, it would warrant punishment under Section 13 of the Act on the
ground that the contempt substantially interferes or tends substantially to interfere with
the due course of justice. The decisions relied upon by the respondents themselves hold
so as we shall subsequently see."
This Court in Rama Narang (supra), thus, clearly laid down the proposition of law that
when an undertaking has been recorded in accordance with law, a contempt proceeding
would be maintainable.
28. We, therefore, keeping in view the peculiar facts and circumstances of this case and
the conduct of the alleged contemnors, are of the opinion that they have committed
contempt of this Court. We are clearly of the opinion that it is eminently a fit case where
jurisdiction of this Court under Article 129 of the Constitution of India as also the
provisions of the Contempt of Courts Act, 1970 should be invoked.
29. However, the fact that the alleged contemnor No. 3 has resigned, being not in dispute,
no action is being taken against him. So far as, the alleged contemnor No. 1 is concerned,
we are of the opinion that he being the Managing Director of the Company, is liable to be
punished. He is sentenced to undergo six months imprisonment. The alleged contemnor
No. 2 is also held guilty but as he was not the Managing Director, we are of the view that
sentencing him three months imprisonment shall meet the ends of justice.
30. The contempt petition is allowed with the aforementioned directions.
Petition allowed
AIR 2008 SUPREME COURT 316 "Dashrath v. State of Madhya Pradesh"
Dashrath alias Champa and Ors. v. State of M.P.
(A) Evidence Act (1 of 1872), S.32 - DYING DECLARATION - Dying declaration -
Exceptions to general rule against hearsay - Grounds of admission of dying declaration
are firstly; necessity for victim being generally the only principal eye-witness to the
crime and secondly sense of impending death which creates sanction equal to obligation
of an oath. (Para 9)
(B) Evidence Act (1 of 1872), S.32 - DYING DECLARATION - MAXIMS - Dying
declaration - Admissibility - Principle behind, indicated in legal maxim "nemo moriturus
proesumitur mentiri - A man will not meet his maker with a lie in his mouth". (Para
10)
(C) Evidence Act (1 of 1872), S.32 - DYING DECLARATION - OATH - Dying
declaration - Requirements of oath and cross-examination are dispensed with. (Para
11)
(D) Evidence Act (1 of 1872), S.32 - DYING DECLARATION - Dying declaration - Can
form sole basis of conviction - Rule requiring corroboration is merely a rule of prudence.
(E) Penal Code (45 of 1860), S.304, Part I - Evidence Act (1 of 1872), S.32 -
CULPABLE HOMICIDE - DYING DECLARATION - CONSTITUTIONALITY OF AN
ACT - Culpable homicide not amounting to murder - Conviction based on dying
declaration - Validity - Accused persons inflicted injuries on deceased with knife, lathi
and rod - Disclosure statement leading to recovery of weapon - None of injuries was
found on vital organs of deceased - Dying declarations of deceased, were voluntary and
trustworthy - No material to show that dying declarations were result of product of
imagination, tutoring or prompting - Conviction of accused is proper. (Paras 2, 3,
14)
1996 AIR SCW 1392 : AIR 1996 SC 3035 : 1996 Cri LJ 2003 (Ref. Pnt D, E) 12
1994 AIR SCW 1978 (Ref. Pnt D, E) 12
1993 AIR SCW 2971 : 1993 Cri LJ 3414 (Ref. Pnt D, E) 12
1992 AIR SCW 767 : AIR 1992 SC 948 : 1992 Cri LJ 1290 (Ref. Pnt D, E) 12
1992 AIR SCW 2050 : AIR 1992 SC 1817 (Rel. on Pnt D) 12
AIR 1989 SC 1519 : 1989 Cri LJ 1485 (Ref. Pnt D) 12
@page-SC317
AIR 1985 SC 416 (Ref Prt D)12

AIR 1982 SC 839 : 1982 Cri LJ 630 (2) (Ref. Pnt D) 12
(1981)2 SCC 654 (Ref. Pnt D) 12
(1789)1 Leach 500 9
Naveen Sharma, Ms. Swati B. Sharma and B. K. Satija, for Appellants; Rajeev Sharma
and C. D. Singh, for the Respondents.
* Cri. A. No. 205 of 1989, D/- 28-8-2001 (MP).
Judgement
Dr. ARIJIT PASAYAT, J. :- Challenge in this appeal is to the judgment of the Madhya
Pradesh High Court at Jabalpur upholding the conviction of the appellants for offence
punishable under Section 304, Part I read with Section 34 of the Indian Penal Code, 1860
(in short the 'IPC') and the award of sentence of 7 years rigorous imprisonment as
awarded by the trial Court.
2. Prosecution version in a nutshell is as follows:
On the morning of 26th April, 1987 Ramesh (hereinafter referred to as the 'deceased') was
returning from the house of Ismail Khan. He was waylaid by the three accused persons
who attacked him with knife, lathi and rod. Ramesh sustained numerous injuries on his
person. Rakesh Kumar and Bittu alias Gurdeo Singh intervened. The incident was
witnessed by his mother Khargi Bai (PW-1), maternal grandmother Tulasa Bai (PW-22)
and others. Ramesh was taken to the Police Station where he lodged the first information
report (Ex.P.10) which was recorded by Head Constable Santosh Kumar (PW-20).
Ramesh was immediately taken to the District Hospital at Bina where Dr. Rajnish
Shrivastava (PW-11) examined him. He found as many as 18 injuries on his body as per
his report Ex.P.16. Ramesh was admitted in the hospital. On the following day he was
referred to District Hospital, Sagar for X-ray and further treatment. There he breathed last
on 30.4.1987. Dr. M.C. Jain (PW-16) performed the autopsy on the next day. Postmortem
report is Ex.P.28.
During the course of investigation knife article 'B' was recovered from the possession of
accused Dashrath alias Champa on the basis of the information supplied by him. Accused
Govind also made a disclosure statement leading to recovery of lathi article 'D' and
accused Satish made a statement leading to the recovery of rod article 'C'.
On completion of investigation, a challan was put up against the three accused persons
for commission of offence punishable under Section 302 read with Section 34 IPC.
3. The three accused persons were tried. Seven witnesses were examined as eye-
witnesses to further the prosecution version. They included the mother (PW-1) and grand
mother (PW-22) of the deceased. The other five eye-witnesses produced were Laxmi Bai
(PW-2), Asgari Begam (PW-4) and neighbours of the deceased and Santosh Singh (PW-
17), Rakesh (PW-18) and Bittu (PW-19). But none of the witnesses admitted to having
seen the incident. Therefore, the prosecution with the permission of the Court cross
examined them. The trial Court was of the view that these witnesses were deliberately
making false statements and concealing the truth. But the First Information Report
(Ex.P10) was recorded by the Head Constable Santosh Kumar (PW-20) on the
information given by the deceased. The said Head Constable had also recorded the
statement of the deceased under Section 161 of the Code of Criminal Procedure, 1973 (in
short the 'Cr.P.C.'). His statement is marked as Ex.P.32. Learned Additional Sessions
Judge treated both the statements to be statements under Section 32(1) of the Indian
Evidence Act, 1872 (in short the 'Evidence Act'). Relying on those statements and the
medical evidence, the trial Court found that Ramesh had died as a result of the injuries
inflicted upon him by the accused persons. But since none of the injuries was found on
the vital organs of the deceased it was held that the offence committed was covered under
Section 304, Part I, IPC. The accused persons challenged correctness of the judgment
before the High Court by filing an appeal which was dismissed by the impugned order.
4. Learned counsel for the appellants submitted that there was no material evidence to
connect appellants with the crime
@page-SC318
and, therefore, both the trial Court and the High Court were not justified in finding the
accused persons guilty. It is submitted that considering the nature of injuries sustained, it
would have been impossible for the deceased to make any statement.
5. Learned counsel for the State on the other hand supported the judgments of the trial
Court and the High Court.
6. The factual scenario as borne out from the records is that the deceased was brought to
District hospital, Bina where he was admitted for observation and treatment. Dr. Rajnish
Shrivastava (PW-11) found 18 injuries on his person. The doctor in cross-examination
stated that the deceased was examined by him at 1.00 p.m. in the afternoon on 26.4.1987.
At that time the patient had not gone in shock. It was later that shocks started developing
resulting in fall of blood pressure and vomiting as was recorded in bed head ticket (Ex.
P.17). The observation was recorded at 5.00 p.m. on 26.4.1987. The deceased was
admitted in District Hospital, Sagar. The bed head ticket (Ex.P.27) shows that he was
admitted in the hospital at 11.15 p.m. on 27.4.1987 and in the bed head ticket the general
condition was recorded to be satisfactory and also that he was conscious. The deceased
breathed his last three days later on 30.4.1987.
7. Though PWs. 18 and 1 stated that the deceased was unconscious, PW-22 stated that he
was in senses. It was also stated by this witness that the deceased had lodged the report.
She also stated that the police had recorded the statement of the deceased. Though some
of the witnesses resiled from the statements made during investigation, PW-19 stated that
he and Ramesh's mother carried him to the police station.
8. Santosh Kumar, Head Constable (PW-20) had testified that the deceased was fully
conscious when he was brought to the police chowki and it was the deceased who had
lodged the complaint which was recorded by him. The statement of the deceased was
marked as Ex.P.32. The trial Court and the High Court relying on the evidence of PW-20
concluded that the statement given by the deceased was to be treated as a dying
declaration. The bed head ticket of District Hospital, Sagar, (Ex.P.27) shows that when
the deceased was brought he was conscious and his general condition was satisfactory.
These materials were sufficient to discard the stand of the accused persons that the
deceased was unconscious when he was brought to the hospital. As the deceased died on
30.4.1987 the trial Court and the High Court treated the first information report (Ex. P.10)
to be in the nature of the dying declaration; so was the statement of the deceased
(Ex.P.32). In both these statements the three accused persons have been named as the
assailants. The trial Court and the High Court analysed the evidence in great detail and
found that the prosecution established its stand because of the dying declaration.
9. At this juncture, it is relevant to take note of Section 32 of the Evidence Act, which
deals with cases in which statement of relevant fact by person who is dead or cannot be
found, etc. is relevant. The general rule is that all oral evidence must be direct viz., if it
refers to a fact which could be seen it must be the evidence of the witness who says he
saw it, if it refers to a fact which could be heard, it must be the evidence of the witness
who says he heard it, if it refers to a fact which could be perceived by any other sense, it
must be the evidence of the witness who says he perceived it by that sense. Similar is the
case with opinion. These aspects are elaborated in Section 60. The eight clauses of
Section 32 are exceptions to the general rule against hearsay just stated. Clause (1) of
Section 32 makes relevant what is generally described as dying declaration, though such
an expression has not been used in any Statute. It essentially means statements made by a
person as to the cause of his death or as to the circumstances of the transaction resulting
in his death. The grounds of admission are: firstly, necessity for the victim being
generally the only principal eye-witness to the crime, the exclusion of the statement
might deflect the ends of justice; and secondly, the sense of impending death, which
creates a sanction equal to the obligation of an oath. The general principle on which this
species of evidence is admitted is that they are declarations made in extremity, when the
party is at the point of death and when every hope of this world is gone, when every
motive to falsehood is silenced, and the mind is induced by the most powerful
considerations to speak the truth; a situation so solemn and so lawful is considered by the
law as creating an obligation equal to that which is imposed by a positive oath
administered in a Court of justice. These aspects have been eloquently
@page-SC319
stated by Lyre LCR in R. v. Wood Cock (1789) 1 Leach 500. Shakespeare makes the
wounded Melun, finding himself disbelieved while announcing the intended treachery of
the Dauphin Lewis explain:
"Have I met hideous death within my view,
Retaining but a quantity of life,
Which bleeds away even as a form of wax,
Resolveth from his figure 'gainst the fire?
What is the world should make me now deceive,
Since I must lose the use of all deceit?
Why should I then be false since it is true
That I must die here and live hence by truth?"
(See King John, Act 5, Sect.4)
10. The principle on which dying declaration is admitted in evidence is indicated in legal
maxim "nemo moriturus proesumitur mentiri a man will not meet his maker with a lie in
his mouth."
11. This is a case where the basis of conviction of the accused is the dying declaration.
The situation in which a person is on deathbed is so solemn and serene when he is dying
that the grave position in which he is placed, is the reason in law to accept veracity of his
statement. It is for this reason the requirements of oath and cross-examination are
dispensed with. Besides, should the dying declaration be excluded it will result in
miscarriage of justice because the victim being generally the only eye-witness in a
serious crime, the exclusion of the statement would leave the Court without a scrap of
evidence.
12
. Though a dying declaration is entitled to great weight, it is worthwhile to note that the
accused has no scope of cross-examination. Such a scope is essential for eliciting the
truth as an obligation of oath could be. This is the reason the Court also insists that the
dying declaration should be of such a nature as to inspire full confidence of the Court in
its correctness. The Court has to be on guard that the statement of deceased was not as a
result of either tutoring, or prompting or a product of imagination. The Court must be
further satisfied that the deceased was in a fit state of mind after a clear opportunity to
observe and identify the assailant. Once the Court is satisfied that the declaration was true
and voluntary, undoubtedly, it can base its conviction without any further corroboration.
It cannot be laid down as an absolute rule of law that the dying declaration cannot form
the sole basis of conviction unless it is corroborated. The rule requiring corroboration is
merely a rule of prudence. This Court has laid down in several judgments the principles
governing dying declaration, which could be summed up as under as indicated in Smt.
Paniben v. State of Gujarat (AIR 1992 SC 1817): 1992 AIR SCW 2050
(i) There is neither rule of law nor of prudence that dying declaration cannot be acted
upon without corroboration. [See Munnu Raja and Anr. v. The State of Madhya Pradesh
(1976) 2 SCR 764)] AIR 1976 SC 2199
(ii) If the Court is satisfied that the dying declaration is true and voluntary it can base
conviction on it, without corroboration. [See State of Uttar Pradesh v. Ram Sagar Yadav
and Ors. (AIR 1985 SC 416) and Ramavati Devi v. State of Bihar (AIR 1983 SC 164)]
(iii) The Court has to scrutinize the dying declaration carefully and must ensure that the
declaration is not the result of tutoring, prompting or imagination. The deceased had an
opportunity to observe and identify the assailants and was in a fit state to make the
declaration. [See K. Ramachandra Reddy and Anr. v. The Public Prosecutor (AIR 1976
SC 1994)]
(iv) Where dying declaration is suspicious, it should not be acted upon without
corroborative evidence. [See Rasheed Beg v. State of Madhya Pradesh (1974 (4) SCC
264)] AIR 1974 SC 332
(v) Where the deceased was unconscious and could never make any dying declaration the
evidence with regard to it is to be rejected. [See Kaka Singh v. State of M.P. (AIR 1982
SC 1021)]
(vi) A dying declaration which suffers from infirmity cannot form the basis of conviction.
[See Ram Manorath and Ors. v. State of U.P. (1981 (2) SCC 654)]
(vii) Merely because a dying declaration does not contain the details as to the occurrence,
it is not to be rejected. [See State of Maharashtra v. Krishnamurthi Laxmipati Naidu (AIR
1981 SC 617)]
(viii) Equally, merely because it is a brief statement, it is not to be discarded. On the
contrary, the shortness of the statement itself guarantees truth. [See Surajdeo Oza and
Ors. v. State of Bihar (AIR 1979 SC 1505)].
@page-SC320
(ix) Normally the Court in order to satisfy whether deceased was in a fit mental condition
to make the dying declaration look up to the medical opinion. But where the eye-witness
said that the deceased was in a fit and conscious state to make the dying declaration, the
medical opinion cannot prevail. [See Nanahau Ram and Anr. v. State of Madhya Pradesh
(AIR 1988 SC 912)].
(x) Where the prosecution version differs from the version as given in the dying
declaration, the said declaration cannot be acted upon. [See State of U.P. v. Madan
Mohan and Ors. (AIR 1989 SC 1519)].
(xi) Where there are more than one statement in the nature of dying declaration, one first
in point of time must be preferred. Of course, if the plurality of dying declaration could
be held to be trustworthy and reliable, it has to be accepted. [See Mohanlal Gangaram
Gehani v. State of Maharashtra (AIR 1982 SC 839)].
13
. In the light of the above principles, the acceptability of alleged dying declaration in the
instant case has to be considered. The dying declaration is only a piece of untested
evidence and must like any other evidence, satisfy the Court that what is stated therein is
the unalloyed truth and that it is absolutely safe to act upon it. If after careful scrutiny the
Court is satisfied that it is true and free from any effort to induce the deceased to make a
false statement and if it is coherent and consistent, there shall be no legal impediment to
make it basis of conviction, even if there is no corroboration. [See Gangotri Singh v. State
of U.P. (JT 1992 (2) SC 417), Goverdhan Raoji Ghyare v. State of Maharashtra (JT 1993
(5) SC 87), Meesala Ramakrishan v. State of Andhra Pradesh (JT 1994 (3) SC 232) and
State of Rajasthan v. Kishore (JT 1996 (2) SC 595)].1992 AIR SCW 767
1993 AIR SCW 2971
1994 AIR SCW 1978
1996 AIR SCW 1392
14. There is no material to show that dying declarations were result of product of
imagination, tutoring or prompting. On the contrary, they appear to have been made by
the deceased voluntarily. It is trustworthy and has credibility.
15. In view of the factual scenario as analysed in the background and the principles set
out above the inevitable conclusion is that the trial Court and the High Court were
justified in finding the accused persons guilty. There is no merit in this appeal which is
dismissed accordingly. The appellants who are on bail shall surrender to custody
forthwith to serve remainder of sentence, if any.
Appeal dismissed.
AIR 2008 SUPREME COURT 320 "Sarvesh Narain Shukla v. Daroga Singh"
(From : 2005 (2) All Cri R 1566)
Criminal Appeal Nos. 752-755 with 834, 835 and 910-912 of 2005, D/- 12 -10 -2007.
Sarvesh Narain Shukla v. Daroga Singh and Ors.
(A) Criminal P.C. (2 of 1974), S.154 - FIR - PLEA - MAGISTRATE - POST-MORTEM -
F. I. R. - Ante-timing - Plea based on delay of 4 days in sending special report to
Magistrate - Time of holding of inquest on dead bodies, removal of bodies to Police Head
Quarter - Authorisation given by D. M. to hold postmortem during night hours on same
day - However, supports spontaneity of F. I. R. - Plea of ante-timing liable to be rejected.
(Para 9)
(B) Evidence Act (1 of 1872), S.3 - EVIDENCE - WITNESS - Chance witness -
Evidence found reliable - Cannot be thrown out merely because he happened to be
present at spot by chance. (Para 11)
(C) Evidence Act (1 of 1872), S.3 - EVIDENCE - WITNESS - Hostile witness - Outright
rejection of evidence - Uncalled for - Both parties are entitled to rely on such part of his
evidence which assists their case. (Para 16)
(D) Evidence Act (1 of 1872), S.3, S.45 - EVIDENCE - MURDER - Ocular and medical
evidence - Inconsistency - Multiple murder case - Witnesses testifying to use of
assortment of modern firearms from distance of one to two feet - Defence plea that only
shortguns were used - Medical evidence that all entry wounds show signs of charring and
tattooing and had different dimensions - Not inconsistent with ocular evidence as to use
of different fire arms. (Para 15)
AIR 1988 SC 1158 : 1988 Cri LJ 1154 (Disting) 13
@page-SC321
Gopal Chaturvedi, Anoop G. Choudhary, Ranjit Kumar, Sushil Kumar, Sr. Advocates, P.
K. Jain, P. K. Goswami, K. K. Misra, Amit P. Singh Rawat, R. S. Chauhan, Prashant
Chaudhary, Praveen Swarup, Ashok Kumar Singh, Rana Ranjit Singh, S. P. Singh
Parmar, Naresh Kumar Gaur, Sapam S. Meitei, Manish Vashishth, Ajay Singh, Sanjay
Singh, Dilip Kumar, with them for the appearing parties.
Judgement
1. HARJIT SINGH BEDI, J. :- This judgment will dispose of Criminal Appeal Nos. 752-
755 of 2005 pertaining to the acquittal of four of the accused whereas Criminal Appeal
Nos. 834 of 2005, 835 of 2005 and 910-912 of 2005 have been filed by the accused who
stand convicted both by the trial Court as well as by the High Court.
2. The facts have been taken from the record of Criminal Appeal No. 835 of 2005. They
are as under:
3. On 4.4.1999 Rakesh Kumar Pandey along with his brother-in-law Surya Narain @
Vakil Shukla along with three others, Devi Shankar Dubey, Prem Shanker Dubey and the
car driver Shesh Mani were returning from Aurai to Gopiganj in the latters car No. WB
26A 7554. As the car reached near the Trimuhani on the middle of the road in Gopiganj,
accused Udai Bhan Singh, Akbal Bahadur @ Atkoti Singh, Prem Singh, Dhunni Singh,
Munni Singh, Daroga Singh, Rajeshwar Upadhyay, Pintoo Singh and two other persons
all armed with modern weapons starting firing at the car. The firing led to the death of
Surya Narain @ Vakil Shukla, Devi Shanker Dubey and Shesh Mani at the spot. Rakesh
Kumar Pandey and Prem Shanker who were sitting on the rear seat rushed out of the car
to save themselves and they too received some superficial injuries in that process. The
assailants also picked up the licensed rifle of Prem Shanker Dubey which was lying in the
car and thereafter ran away from the spot. The occurrence was also witnessed by Shiv
Prasad @ Dangar Tewari, Mukand Lal, Ram Dutt Mishra and several other persons. A
FIR was thereafter lodged by Rakesh Kumar Pandey at 3.45 p.m. in Police Station
Gopiganj a kilometer away from the place of incident, on which S.I. Vidya Prakash
Misra reached the place of occurrence and recorded the statement of Rakesh Kumar
Pandey whereas SI Rashid Ahmad prepared the inquest reports of the deceased on the
dictation of SI Vidya Prakash Misra. On an inspection of the site, several pieces of glass,
a blood stained piece of rexine, and shoes and some fired cartridges, a rifle and a 9 mm
pistol licensed to deceased Surya Narain Shukla were recovered. The bodies were also
sent for the post mortem examinations. The post mortem examination on the dead body
of Devi Shanker Dubey was conducted by Dr. Radhey Raman on 4.4.1999 at about 11.55
p.m. whereas Dr. Sanjay Tewari conducted the post mortem examinations on the dead
bodies of Shesh Mani at 11.30 p.m and that on Surya Narain Shukla 45 minutes later i.e.
at 0030 hours. All three dead bodies showed extensive firearm injuries. Dr. A.K. Pandey
also medically examined Prem Shanker Dubey at 5.25 p.m on 4.4.1999 and found two
lacerated simple injuries on his person whereas the examination of Rakesh Kumar
Pandey at 8.15 p.m. on 4.4.1999 by Dr. L.S. Mishra showed five simple injuries; three
abrasions and two contusions. The doctors opined that these injuries could have been
caused as the two were making a hurried exit from the car. On the completion of the
investigation the accused were charged for offences punishable under Sections 147, 148,
302 read with 149 I.P.C whereas appellant Suresh Singh @ Jajjey Singh was in addition
charged under Section 379 IPC for having taking away Prem Shankar Dubeys rifle from
the car whereas Tehsildar Singh and Suresh Singh were further charged under Section
411 I.P.C. The accused pleaded not guilty and sought trial.
4. Rakesh Kumar Pandey, the first informant and the primary witness to the murders, was
himself murdered during the course of the trial. The prosecution nevertheless relied on
the evidence of PW1 Shiv Prasad @ Dangar Tewari who deposed to the circumstances
leading to his presence at the spot and the manner of the attack and further stated that
about 15/20 shots had been fired at the car by the accused from a close range as the car
had stalled after having had a collision with a bus as the car driver had attempted to race
away. He also stated that he knew most of the accused having dealt with them at one time
or another. The prosecution also relied on the evidence of PW 4 Prem Shankar Dubey,
another eye witness but he did not support the prosecution and was declared hostile
having partly disowned the story given by him in his earlier statements. The other eye
witness PW 5 Ram Dutt Misra, however,
@page-SC322
supported the prosecution story and justified his presence by deposing that he had gone to
Vidhyachal temple for darshan in the morning and while returning therefrom he had
taken a lift along with Dangar Tewari PW1 on Mukund Lals Bullet motor-cycle to reach
his home in Gopiganj. The prosecution also relied on the medical evidence (and the
various reports tendered) of PW 6 Dr. A.K. Pandey and PW 7 Dr. L.S. Misra with regard
to the injuries on Prem Shankar Dubey and Rakesh Kumar Pandey respectively. The
prosecution also examined the police officials involved in the investigation viz., PW 10
S.I. Irshad Ali who had recorded the inquest reports on the dictation of PW 13 Vidya
Prakash Misra SHO and also dispatched the dead bodies for their post-mortem
examinations, PW 11 Constable Prabhu Nath Yadav who deposed that the dead bodies
had been handed over to Constable Manoj Rai and Devi Shanker Pandey for being taken
for the post-mortems, PW 13 Vidya Prakash Misra who had made the various recoveries
already mentioned above and had also inspected the place of incident and the car and had
found about 40 bullet marks thereon, and also several other police officials who had been
involved in the peripheral investigation or had arrested some of the accused. The
prosecution story was then put to the accused and they denied their involvement in the
incident and pleaded false implication. The trial Court examined the matter in extenso
and held that there had been no delay in the recording of the FIR and the argument that
the first information report had come into existence after the inquest proceedings had
been completed, was unacceptable. The Court also found that Rakesh Kumar Pandey and
Prem Shanker Dubey had both been injured in their attempt to get out from the car and
this evidence too, was a significant circumstance pointing to their presence. It also held
that PW 1 Shiv Prasad and PW 5 Ram Dutt Misra who had supported the prosecution
had cogently explained their presence at the crucial moment inasmuch that both had gone
to Vindhyachal temple for darshan and while returning had sought a lift back to Gopiganj
triple riding with Mukund Lal on his Bullet motor cycle and that the attempt on the part
of the defence to get them to explain their movements minute by minute could not be
accepted as this could not be a realistic approach in such callous and gruesome multiple
murders. The trial Court also found that the medical evidence supported the ocular
version inasmuch that the injuries found on the dead bodies clearly revealed that several
types of weapons had been used and that too from a very close range causing extensive
internal and external injuries on the persons of the deceased. It also observed that in a
case of firing by several persons at others confined in a vehicle with all three deceased
sitting in the front seat, it was well nigh impossible to expect an eye witness sitting on the
rear seat to give the exact details as to the position of the deceased and the assailants
when the firing had taken place. The court nevertheless held that the motive had not been
proved. The court then went into the involvement of each of the accused and observed
that nine of the accused had been named in the FIR and two others who had not been
named also figured in the incident and that some of the accused had been subsequently
identified by name. The court held that as there was no motive for false implication, a
case against eleven of the accused under Sections 147, 148, 302 read with Section 149
IPC had been made out. The Court also held that the charge under Sections 379/411 IPC
against accused Suresh Singh and the case against Tehsildar Singh who had not been
named in the FIR and had been attributed only a Lalkara by the eye witnesses who were
also discrepant as to the manner of his participation, he was entitled to an acquittal in
toto.
The trial Court finally observed that:
"On the basis of the entire above discussions and conclusion the accused Udhaybhan
Singh @ Doctor Singh, Pinto Singh @ Sandeep Singh, Iqbal Bahadur Singh @ Atkotic
Singh, Prem Singh @ Prem Bahadur Singh, Chunni Singh @ Mata Prasad Singh, Daroga
Singh @ Shri Krishan Singh, Rajeshwar Upadhaya, Suresh Kumar @ Jajje Singh, Sanjay
Singh, Santosh Kumar Singh are found guilty of the offence under Sections
147/148/302/149 IPC,"
and ordered that:
"The accused are sentenced to life sentence under Section 302/149 IPC and fine of
Rs.5000-5000/- each accused and if the fine is not paid, one month sentence and under
Section 147 Cr.P.C 3 months rigorous imprisonment and fine of Rs.500-500 each and in
the event of not paying the fine 10 days further rigorous imprisonment and under Section
148 Cr.P.C 6 months
@page-SC323
rigorous imprisonment and fine of Rs.1000-1000 each and in the event of not paying the
fine 15 days further rigorous imprisonment is justifiable.
5. Several appeals were subsequently filed before the High Court. The High Court on a
reconsideration of the matter allowed the appeals of Pinto Singh @ Sandeep Singh,
Daroga Singh @ Krishan Singh, Chunni Singh @ Mata Prasad Singh and Prem Bahadur
Singh holding that their names had been revealed by Dangar Tewari PW 1 for the first
time in Court and it was therefore unsafe to maintain their on the basis of the statement
of PW 5 Ram Dutt Misra alone.
The High Court accordingly directed as under:
S. No. Crl. Appeal No. Name of Appellant Sessions Court Order High Court
Order
1. 5588/2004 Suresh Kumar alias Jajjey Singh Sessions Judge conviction
andaward. Appeal Dismissed
2. 5589/2004 (i) Rajeshwar Upadhyay
(ii) Prem Singh alias Prem Bahadur Singh (i) - DO -
(ii) - DO - (i) Appeal Dismis-sed.
(ii) Appeal Allowed/Acquitted of the charges
3. 2503/2004 (i) Pintoo Singh alias Sandeep Singh
(ii) Akbla Bahadur alias Atkoti Singh(i) - DO -
(ii) - DO - (i) Appeal Allowed/Acquitted of the charges.
(ii) Appeal Dismis-sed.
4. 2826/2004 Udai Bhan Singh alias Doctor Singh DO - Appeal Dismissed
5. 2863/2004 Santosh Kumar Singh DO - Appeal Dismissed
6. 3072/2004 Chunni Singh DO - Appeal Allowed/Acquitted of the charges.
6. The present set of criminal appeals have been filed against the judgment of the High
Court.
7. Mr. Sushil Kumar, the learned senior counsel for the appellants has raised several
arguments before us during the course of hearing. He has first emphasized that the
incident had happened at 3 P.M. on 4.4.1999 and the FIR had statedly been lodged in the
police station within 45 minutes by Rakesh Kumar Pandey an eye witness, but the special
report had been delivered to the Magistrate on 8.4.1999 and that there was no explanation
for the delay and it thus appeared that the FIR had been written much later and then ante
timed. It has accordingly been suggested that the prosecution story had been cooked up
involving all the accused who all belonged to one extended family in connivance with the
police. It has also been pleaded that the delay in the recording of the FIR had been
utilized by the police in creating three eye witnesses PW 1 Shiv Prasad @ Dangar Tewari,
PW 4 Prem Shanker Dubey and PW 5 Ram Dutt Misra who had cordial relations with
the complainant party but an in-depth examination of the story projected by them
revealed that they had not been present and that this argument was fortified as in the
inquest report it had been noted that the dead bodies had been found outside the car
whereas the eye witnesses had projected the story that the dead bodies had been taken out
from the car by the police. It has also been
@page-SC324
submitted that had Prem Shanker Dubey PW 4 and Rakesh Kumar Pandey been sitting in
the car when the firing had taken place, they would not have escaped unscathed more
particularly as about 40 shots had been fired at the car with automatic and semi-
automatic weapons at the deceased sitting in the front seat. It has also been suggested that
the nature of injuries found on the dead bodies showed that the medical evidence was
completely at variance with the ocular evidence. It has finally argued that the prosecution
had not been able to prove any motive for the incident and it had been so found by the
trial court itself and that it appeared from the defence version that the murders had been
committed by unknown assailants and that the accused had been involved on account of
the rancour and ill-will of the police as about 20 policemen were facing trial arising on a
complaint made by Tehsildar Singh for the killing of his son Hazaria, allegedly in a fake
encounter.
8. Mr. Anup Chowdhury, the learned senior counsel has however supported the judgment
of conviction. It has also been pointed out (in the appeal against acquittal) that the
acquittal of the four accused was not justified as the evidence against them was identical
with that of the accused who had failed before the High Court.
9. We now examine the arguments raised by the learned counsel in extenso. It is true that
the incident having been taken place at about 3 p.m. on 4.4.1999 prima facie makes the
receipt of the special report by the Magistrate on 8.4.99 rather inexplicable, the more so
(as emphasized by Mr. Sushil Kumar) that a day after the incident, the police had itself
moved an application under Sections 82 and 83 Cr.P.C. against the accused in the Court
of the Special Magistrate. We have, however, very carefully gone through the record on
this aspect, as we are aware that the fate of the appeal would hinge substantially on this
issue. For the purpose of clarity we reiterate the following facts; the incident had
happened on 4.4.99 at 3 P.M., the FIR had been lodged in the police station a kilometer
away at 3.45 p.m. by Rakesh Kumar Pandey and the special report delivered after four
days on 8.4.99. There are however certain circumstances on record which show that the
FIR had in fact been lodged at the time suggested by the prosecution. It has come in
evidence that the inquest on the three dead bodies had started at 5.45 p.m. and that the
dead bodies had been removed to the police head quarters at 6.30 p.m. and received
therein at 7.45 p.m. It has also come on record that on account of the gravity of the crime,
the District Magistrate had, at 10.50 p.m., authorized the medical staff to conduct the
post-mortem during night hours and the post-mortems were in fact conducted within the
next hour or two. Significantly also, we observe from the cross-examination of PW 2
Head Constable Uma Shanker Pandey (who had registered the formal FIR) that while he
admitted that the special report had indeed been received by the CJM on 8.4.99 but he
clarified that a copy of the FIR had reached the Circle Police Officer on 5.4.99. Likewise
PW 9 Constable Devi Prasad Pandey deposed that the dead bodies had been sealed and
handed over to him between 6.30 p.m. and 7.00 p.m. on 4.4.99 and that he was in
possession of the first information report and other related documents which had been
handed over by him to the doctor. It bears highlighting that this witness was not even
cross-examined on this aspect. This statement is further fortified by a perusal of Ex.Ka-19
the inquest proceedings relating to deceased Shesh Mani Rai and amongst the enclosures
with the inquest report is the nakal chik (which is a copy of the FIR) and a report made
by the Sub Inspector on this exhibit that the dead bodies had been handed over for post-
mortem along with the appended documents. It is also significant that Dr. Sanjay Tewari
PW 8 who had conducted the post- mortem examination on the dead body of Surya
Narain deposed that he had received the first information report at the time of the post-
mortem and that he had read the same before conducting the proceeding. To our mind,
therefore, the suspicion that a line or two might have squeezed in here or there in some of
the documents prepared during the initial investigation would not dislodge the huge
volume of documentary and ocular evidence on the spontaneity of the FIR.
10. Faced with this situation Mr. Sushil Kumar has then argued that the three witnesses
produced by the police i.e. PW 1 Shiv Prasad @ Dangar Tewari, PW 4 Prem Shanker
Dubey and PW 5 Ram Dutt Misra, only two that is PW 1 and PW 5 had supported the
prosecution and being chance witnesses had not been able to explain their presence at the
spot. It has also been
@page-SC325
submitted that Mukund Lal, the third person and the owner of the Bullet motor cycle on
which PW1 and PW5 had come from Vidhyachal, had not been examined as a witness
which clearly falsified the entire story. Conversely, it has been submitted that the only
witness who could possibly have been an eye witness to the incident as he was travelling
in the car at the time of the incident and whose rifle had been removed from the car after
the incident and recovered from the accused i.e. Prem Shanker Dubey had not supported
the prosecution, thus causing a clear doubt on the entire prosecution story.
11. The argument noted above would have to be examined in the background of some
special facts. It must be remembered that the incident had happened in broad day light on
the main road going through a prosperous town amongst groups (both the assailants as
well as the victims), who were prominent citizens deeply involved in commerce and
politics and several prior incidents involving them in some other criminal matters not
necessarily with each other had already taken place. It is therefore obvious that the
murders would have created a furore and caused a huge amount of consternation and it
has in fact come in evidence that thousands of persons had collected at the site, soon after
the incident. With this introduction we now examine as to whether the eye witnesses had
been present at the spot or not. It is to be noted that Rakesh Kumar Pandey, the first
informant had signed the inquest report at the place of incident and his statement under
Section 161 Cr.P.C had also been recorded by the Investigating Officer PW 13 prior to the
preparation of the inquest report. Unfortunately, Rakesh Kumar Pandey could not be
examined as he had in the meanwhile been murdered. The prosecution has accordingly
fallen back primarily on the statements of PW 1 Shiv Prasad, and PW 5 Ram Dutt
Sharma, PW Prem Shankar Dubey having been declared hostile. Prima facie it does
appear that these two witnesses were chance witnesses but on a closer look we find that
they have adequately explained their presence. We are also of the opinion that if the court
comes to the conclusion that the testimony of a chance witness is credible, the evidence
cannot be thrown out merely on the ground that the witness happened to be present by
chance. Dangar Tewari stated that when he along with Ram Dutt Misra had reached at
the tri junction of the GT Road Gopiganj on Mukund Lal's Bullet motor-cycle they had
heard sounds of firing by weapons and had seen the accused persons armed with shot
guns, rifles, carbine and pistols firing at the Ambassador car after it had come to a stop
after colliding with a bus coming from the Allahabad side and that the murders had been
committed while the deceased were still in the car. The evidence of Ram Dutt Misra is
much to the same effect. Both these witnesses have specifically revealed the identity of
the assailants and the manner of attack and explained their presence by stating that they
had gone for Darshan and were on their way back home. We also find that despite
extensive cross-examination, no reasons are forthcoming on record as to why they would
become false witnesses in a case of triple murder. It is also clear from the evidence that
the Investigating Officer had collected a blood stained seat cover and shoes from inside
the car along with several other items from the place of incident which go to show that
the killings had happened in the car. The conflict in evidence as to whether the dead
bodies were found lying outside or inside the car would thus be of no telling effect more
particularly as a huge and milling crowd running into thousands had collected after the
murders completely jeopardizing the security of the site and as such no evidence could be
available to show as to how the dead bodies had, if at all, been put outside the car. It is
also of some importance that Prem Shankar Dubey who had been riding the car with the
three deceased and had received injuries in attempting to escape had been medically
examined by PW 6 Dr. A.K. Pandey at about 5.25 p.m. on 4.4.1999. Though this witness
had been declared hostile, we are of the opinion that an outright rejection of his evidence
is not called for and both parties are entitled to rely on such part of his evidence which
assists their case. We now examine his testimony in this background. He admitted that on
the day of occurrence he had been sitting on the back seat of the Ambassador Car and had
been carrying his licensed rifle. He also admitted that on rushing out of the car he had
received some injuries but could not remember as to whether he had been medically
examined though the evidence shows that he had been present at the time of the
@page-SC326
lodging of the first information report in the Police Station. The statements made by
Dangar Tewari and Ram Dutt Misra are thus (to an extent) supported by Prem Shankar
Dubey as well.
12. Mr. Sushil Kumar has also laid some emphasis on the fact that despite the fusillade
fired at the car with an assortment of modern weapons, the car remained largely
untouched and that there was thus no evidence to show that it had collided with a bus
coming from the opposite side bringing it to a sudden stop, thus facilitating the murders.
We have, however, in this connection the evidence of PW 13 Vidya Prakash Misra, the
Investigating Officer, who in his cross-examination stated that he had carefully examined
the car at the place of occurrence and had found in all about 40 bullet marks on the
chassis, tank, backside bumper, diggy, backside glass and bonnet. It is significant that the
presence of the bullet marks shows that the firing had taken place primarily from the rear
side as the driver had attempted to speed away and that the coup de grace had apparently
been delivered to the deceased after the car had stalled after hitting the bus. It is also
significant that the presence of the bus and its number had been shown in the site plan
prepared by the said police officer at the place of incident.
13
. Mr. Sushil Kumar has also laid great stress on what he perceives to be an apparent
discordance between the ocular and the medical evidence. He has emphasized that the
Investigating Officer had picked up three spent cases of a .12 bore shotgun from the spot
and a wad had also been recovered from one of the dead bodies at the time of the post
mortem examination thus indicating that only shotguns and no pistols or carbines as
alleged had been used, which clearly falsified the eye witnesses. He has in this
connection cited the judgment in Awadhesh and Another v. State of Madhya Pradesh
(1988) 2 SCC 557 to submit that where medical opinion was at variance with the ocular
account the accused were entitled to the resultant benefit. Undoubtedly, the medical
evidence is extremely relevant in testing the credibility of an eye witness but we are of
the opinion that the eye witness account is fully in consonance with the statements of the
doctors and the other medical evidence. It has come in the statement of the eye witnesses
including Prem Shankar Dubey and also of Dr. Sanjay Tewari PW 8 on specific questions
put to them that the shots had been fired from a distance of a foot or two. We now
reproduce the post mortem reports prepared by PW Dr. Sanjay Tewari with respect to
Vakil Shukla and Shesh Mani Rai : AIR 1988 SC 1158
Vakil Shukla
1. Lacerated wound 2 x 1 Cm. on the mid forehead with charring and tattooing around it.
Frontal bone not injured.
2. Abrasion 1 x 0.5 Cm. on the mid forehead with charring and tattooing around it.
3. Wound of firearm entry 6 in number each measuring 0.8x0.8 Cm. on the top and back
of the left shoulder. Margins of wound inverted with blackening and tattooing all around
it with their wound of exit as follows-
(1) 1.5 x 1.5 Cm. on the left side chest below the left axilla 5 Cm. below the apex;
(2) 3 x 3 Cm. on the left side chest 8 Cm. below and lateral to the left nipple;
(3) 1 x 1 Cm. on the right side chest 6 Cm. below the right nipple.
(4) 1 x 1 Cm. on the right side chest 4.5 Cm. above and medial to the right nipple;
(5)1 x 1 Cm. on the right side chest 8 Cm. below the right nipple; and
(6) 1 x 1 Cm. on the right side chest 6.5 Cm. lateral to the right nipple.
4. Firearm wound of entry 0.8x0.8 Cm. on the lateral surface of right mid thigh with
inverted margins and tattooing all around it with its wound of exit on the medial surface
of thigh at the same level with averted margins 1 x 1 Cm.
Shesh Mani Rai
1.5 x 4 Cm. on the right side neck 1 cm. below and posterior to the right ear. Margins of
the wound were inverted with charring and tattooing of skin all around with its wound of
exit of size 6x5 Cm. on the left side face/over and lateral to the left eye with averted
margins;
2. Wound of entrance 5.5 x 4 Cm. on the right side eye margin of the wound inverted
with charring and tattooing of skin all around, with its wound of exit 6x6 Cm. below the
left ear. Margin of the wound averted.
3. Wound of entrance 1 x 1 Cm. on the lateral aspect of left arm. Margins of wound
inverted with charring and tattooing of skin all around with its wound of exit 1.5 x 1.5
@page-SC327
Cm. on the posterior lateral aspect of the left arm. Margins of wound averted."
14. Dr. Radhey Raman PW 3 recorded the following injuries on the dead body of Devi
Shankar Dubey:
1. Firearm wound of entry with charring and tattooing of size 2 x 1 Cm. Lt. side of the
chest just below the middle part of Lt. clavicle. Lt. side clavicle fractured with same
wound of exit.
2. Firearm wound of entry with charring and tattooing of six 1 x 1 Cm. on Rt. supra
clavicle region 4 Cm. medial to top of Rt. shoulder, margins of wound inverted, with its
wound of exit 2.5 x 2.00 Cm. on the Lt. side of chest on its lateral side 5.00 Cm. lateral
and just below it. Nipple margin of wound of exit is averted; and
3. Abraded contusion 2 x 2 Cm. on Rt. side of the forehead."
A cork (1.5 x 1.2 cm ) was also recovered from the dead body.
15. Relying on the above quoted evidence it has been emphasized that there appeared to
be no injuries from a rifle or pistol. We however beg to differ. It bears reiteration that
shots had been fired from a distance of a feet or two and this opinion is fortified as the
entry wounds without exception show signs of charring and tattooing. The dimensions of
the entry wounds also show that several different types of weapons have been used. It is
clear from the post mortem examination of Devi Shankar Dubeys body (during which a
cork had been recovered) that a shotgun had undoubtedly been used in his murder and
that the shot had entered en masse as is apparent from the size of wound of entry (Injury
No. 1).
16. We now come to the reports of the other two deceased. Injury No. 3 on the person of
Vakil Shukla is clearly not an injury caused by a shotgun and has been caused by a
medium calibre automatic or semi-automatic rifle or pistol. Mr. Sushil Kumar has
however submitted that this injury had possibly been caused by a shotgun using buckshot
SG/LG cartridges as had a high velocity rifle been used from a close range as suggested,
the bullet would have had a blasting effect on the body. We, however, find that this
argument is not substantiated on the evidence, that is, available to us. Undoubtedly, this
shot too had been fired from a little beyond point blank range and if it had been fired
from a shotgun, the shoulder would have been shattered and in any event the entire
charge would have entered the body en masse making a rat hole wound of entry. We are
fortified in our view by the observations on page 465 of the Fourth Edition of Dr. B.R.
Sharma's Forensic Science in Criminal Investigation and Trials:
"9.10.7.3 Shotgun injuries:
The nature of the injuries caused by the shotgun is greatly altered by the range. Contact
or near contact wounds look like explosions. Close range shots upto about three meters
give rat holes varying in diameter from about 2 to 6 centimetres. From about 2 metres to
10 metres the projectiles may form a rat hole surrounded by individual pellet holes.
Beyond 10 metres most of the shots form separate holes. The buckshots may separate
earlier. For example, n L.G. cartridge may give individual injuries for each shot from a
range of about 2 metres. The area covered by the pellets vary with the range and the
choke characteristics of a gun.
Ordinarily, the shotguns projectiles do not form exit holes except when buckshots are
used from close ranges".
17. Modi's Medical Jurisprudence and Toxicology, Twenty-third Edition at page 722 is to
the same effect. We reproduce the relevant passage hereunder :
"The effects produced by small shot fired from a shotgun vary according to the distance
of the weapon from the body, and choking device. A charge of small shot, fired very
close to, or within a few inches, of the body enters in one mass like a single bullet making
a large irregular wound with scorched and contused edges, and is followed by the gases
of the discharge which greatly lacerate and rupture the deeper tissues. Particles of unburnt
powder expelled from the weapon behind the missile are driven to some distance through
the wound, and some of them are found embedded in the wound and the surrounding
skin, which is also singed and blackened by the flame and smoke of combustion. The
exit wound of a close range shot may show greater damage of tissues than the entrance
wound, the margins are everted, but there is no evidence of blackening of singeing. At a
distance of one to three feet, small shots make a single aperture with irregular and
lacerated edges corresponding in size to the bore of the muzzle of the gun, as the shot
enter as one
@page-SC328
mass, but are scattered after entering the wound and cause great damage to the internal
tissues. The skin surrounding the wounds is blackened, scorched and tattooed, with
unburnt grains of powder. On the other hand, at a distance of six feet, the central aperture
is surrounded by separate openings in an area of about two inches in diameter made by a
few pellets of the shot, which spread out before reaching the mark. The skin surrounding
the aperture may not be blackened or scorched, but is tattooed to some extent. At a
distance of 12 feet, the charge of the shot spreads widely and enters the body as
individual pellets producing separate openings in an area of five to eight inches in
diameter depending on the choke, but without causing blackening, scorching or tattooing
of the surrounding skin".
18. Mr. Sushil Kumar's argument with regard to the use of a high velocity rifle and its
effect on the body when fired from a close range would undoubtedly merit serious
consideration but in the light of the facts on the record, we are unable to concur. It is the
case of the prosecution that carbines and 9mm pistols in addition to shotguns had been
used during the attack. A carbine, a high velocity weapon firing automatically or semi
automatically, and 9 mm bore pistols are prohibited firearms permitted for use only by
the police and armed forces which invariably use hard nosed bullets in contradistinction
to soft nosed ones used in sporting rifles against soft skinned game and which cause
immense internal damage on the victim and huge wounds of exit, if any. We find that all
six wounds of entry are of 0.8 x 0.8 cm. and with the exception of one, all exit wounds
are also of almost similar dimensions. We are, therefore, of the opinion that injury No. 3
appears to be a wound of entry from a weapon firing hard nosed bullets which had
penetrated the body and exited on the other side. We find support for this view from Modi
(supra) (at pgs.717-718):
"Because of obvious difference in design and construction, the wounds produced by
hunting ammunition are much more devastating than that of the military ammunition. In
military ammunition, the bullets are full metal jacketed having a core of steel or lead
inside and are thus prevented from deformation (or expansion) when they hit the target.
In contrast, a hunting bullet is designed to deform (or expand) in its passage through the
body, producing an increase in its presenting area. Thus a hunting bullet, which is
partially metal jacketed, but with the lead core exposed at its tip, is referred to as soft-
point bullet. Hollow point hunting-bullets are also partially jacketed but have a cavity at
the tip of lead core to facilitate expansion on striking the target. The silvertip hunting-
bullet in reality is a soft point bullet whose lead core at its tip is protected by a thin jacket
of aluminium alloy sheath.
Modern steel-jacketed bullets used in army weapons have the shape of an elongated cone
and owing to their great velocity usually pass straight and direct through the body without
any deflection or deviation, and without causing much damage. The wounds of entry and
exit are almost circular and similar in appearance without any bruising or laceration of
the surrounding parts."
19. The nature of injuries found on the dead body of Shesh Mani Rai are equally
significant. It appears from injury Nos. 1 and 2 which are on the neck and head
respectively that the shot had furrowed through the body with a huge exit wound. The
very dimension of these injuries show the presence of a rat hole type of entry with a
larger wound of exit on the other side. Injury No. 3 substantially corresponds with the
injuries found on the dead body of Vakil Shukla and reveals that this injury had not been
caused with the weapon which caused the other two injuries. The judgment cited by the
learned counsel is therefore on its peculiar facts and based on the premise that the
evidence in the case was doubtful.
20. We have also considered the arguments of learned senior counsel on the appeals
against acquittal. We are of the opinion that the matter has been considered by the trial
court and the High Court in its correct perspective and no interference is called for.
21. We accordingly dismiss all the appeals.
Appeals dismissed.
@page-SC329
AIR 2008 SUPREME COURT 329 "United India Insurance Co. Ltd., M/s. v. Davinder
Singh"
-2007.
M/s. United India Insurance Co. Ltd. v. Davinder Singh.
(A) Consumer Protection Act (68 of 1986), S.12 - CONSUMER PROTECTION -
INSURANCE - MOTOR VEHICLES - Deficiency in service - Non-payment of amount
of damages covered by insurance policy by insurer - Ground, driver of offending vehicle
possessing forged licence - Renewal of forged licence - Would not fasten any liability on
insurer to indemnify owner - Same does not amount to deficiency in service - Order
holding insurer liable to indemnify owner for losses suffered by him - Set aside.
Motor Vehicles Act (59 of 1988), S.149. (Para 15)
(B) Motor Vehicles Act (59 of 1988), S.149 - Consumer Protection Act (68 of 1986),
S.12 - MOTOR VEHICLES - CONSUMER PROTECTION - INSURANCE - Motor
accidents compensation - Liability of insurer to pay - Different considerations would
apply depending on forum approached - Insurer in certain situations may be bound to
pay claim made by third party; if same is filed before a forum created under Motor
Vehicles Act - But defence may be held to be justified before a different forum like
Consumer Forum where question raised is required to be considered in a different
manner. (Para 16)
2007 AIR SCW 2279 : AIR 2007 SC 1563 12, 13, 14
2007 AIR SCW 2362 : AIR 2007 SC 1609 13, 14
2007 AIR SCW 3734 : AIR 2007 SC 1971 13
2004 AIR SCW 663 : AIR 2004 SC 1531 11, 12, 13
2003 AIR SCW 1695 : AIR 2003 SC 1292 11
2001 AIR SCW 1340 : AIR 2001 SC 1419 12
P. R. Sikka and Rakesh K. Sharma, for Appellant; Ajay Majithia, Rajesh Kumar and Dr.
Kailash Chand, for Respondent.
Judgement
1. S. B. SINHA, J :- Leave granted.
2. Whether renewal of a licence granted to drive a motor vehicle which was originally
found to be forged would lead to any liability on the part of the insurance company is the
core question involved in this appeal which arises out of a judgment and order dated
9.10.2006 passed by National Consumer Disputes Redressal Commission, New Delhi in
R.P. No. 2908 of 2006.
3. Respondent is the owner of the vehicle bearing No. HR-37A-5521. He got the said
vehicle insured on 10.11.2003 for one year, i.e., up to 9.11.2004. It met with an accident
on 20.04.2004 with a truck. The said vehicle was being driven by one Kulbir Singh.
Upon investigation made in this behalf, it was found that the licence bearing No. 6604/R-
91-92 held by Kulbir Singh was not issued by the Licensing Authority, Solan.
4. However, a complaint petition was filed under Section 12 of the Consumer Protection
Act, 1986 before the District Consumer Disputes Redressal Forum complaining
deficiency in service for not paying the amount of damages which was covered by the
insurance policy, which the appellant was allegedly bound to pay. The said complaint
petition was allowed awarding a sum of Rs. 1,23,412/- towards damages, as also a sum of
Rs. 20,000/- towards other heads, besides interest at the rate of 9% per annum, holding :
"8. A plea has been taken by the opposite parties that Kulbir Singh, driver was not
possessing a valid driving licence at the time of driving the vehicle. However, when Mr.
Rajesh Shori inspected the driving licence, he found that the driving licence had been
issued by the DTO, Hoshiarpur on 23.11.1998. The original driving licence was issued by
the Licencing Authority, Solan in 1991-92. Learned Counsel for the opposite parties
stated that there is no evidence on the file to the effect that the original driving licence
had been issued by the Licencing Authority at Solan (H.P.), however, a report has been
received on the back of the summons to the effect that, the original driving licence No.
6604/R-91-92 in the name of Kulbir Singh son of Amrik Singh had not been issued by the
Licencing Authority, Solan (H.P.) as mentioned in the report Ex.R-10. It has been clearly
stated by the complainant in his affidavit Ex. C-1 that, when he employed the driver
Kulbir Singh, he was possessing a valid driving licence issued by the Licencing
Authority, Hoshiarpur. He also verified this driving licence issued by Licencing
Authority, Hoshiarpur and also took his
@page-SC330
driving test and found that he was an efficient driver. There is no rebuttal evidence from
the side of the opposite parties and hence we hold that the driver Kulbir Singh was
possessing a valid driving licence when the accident took place and hence the opposite
parties illegally repudiated the claim of the complainant. As the opposite parties failed to
make payment of compensation and, therefore, it is a case of deficiency in service.
5. An appeal preferred thereagainst was also dismissed by the State Consumer Disputes
Redressal Commission. A revision application filed before the National Commission met
with the same result.
6. The learned counsel appearing on behalf of the appellant, inter alia, would submit :
(i) that a fake licence cannot be renewed and that too by an Authority which did not
originally grant the same;
(ii) indisputably, the complainant was the owner of the vehicle in question;
(iii) it was comprehensibly insured;
(iv) the vehicle, however, was being driven by Kulbir Singh who did not have an
effective driving licence and in that view of the matter, the respondent was not entitled to
grant of any amount by way of compensation or otherwise.
7. The learned counsel appearing on behalf of the respondent, on the other hand, would
submit that :
(i) in terms of the insurance policy the owner was required to take only reasonable care to
ascertain as to whether the driver had been possessing a valid licence or not ;
(ii) it was not possible for him to ascertain from the original Licensing Authority as to
whether any licence had been issued by it or not;
(iii) the duty of the owner is merely to take reasonable care in the matter as it is not
expected that he would make a detailed enquiry in this behalf.
8. The complainant is the owner of the vehicle. The Motor Vehicles Act, 1988 was
enacted to meet the social obligation in regard to a third party as a result whereof taking a
cover of insurance is mandatory.
9. In terms of Section 149 of the Motor Vehicles Act, however, taking of an insurance
policy in relation to damages which may be suffered by the owner of the vehicle was not
compulsorily insurable.
10. It is, thus, axiomatic that whereas an insurance company may be held to be liable to
indemnify the owner for the purpose of meeting the object and purport of the provisions
of the Motor Vehicles Act, the same may not necessary in a case where an insurance
company may refuse to compensate the owner of the vehicle towards his own loss. A
distinction must be borne in mind as regard the statutory liability of the insurer vis-a-vis
the purport and object sought to be achieved by a beneficent legislation before a forum
constituted under the Motor Vehicles Act and enforcement of a contract qua contract
before a Consumer Forum.
11
. In National Insurance Co. Ltd. v. Swaran Singh and others [(2004) 3 SCC 297],
whereupon strong reliance has been placed by the learned counsel appearing on behalf of
the respondent, this Court was dealing with a question in regard to the claim of a third
party vis-a-vis the role of an insurance company. It is in that context, this Court opined :
2004 AIR SCW 663, Paras 84, 87 and 105
"89. Section 3 of the Act casts an obligation on a driver to hold an effective driving
licence for the type of vehicle which he intends to drive. Section 10 of the Act enables the
Central Government to prescribe forms of driving licences for various categories of
vehicles mentioned in sub-section (2) of the said section. The various types of vehicles
described for which a driver may obtain a licence for one or more of them are: (a)
motorcycle without gear, (b) motorcycle with gear, (c) invalid carriage, (d) light motor
vehicle, (e) transport vehicle, (f) road roller, and (g) motor vehicle of other specified
description. The definition clause in Section 2 of the Act defines various categories of
vehicles which are covered in broad types mentioned in sub-section (2) of Section 10.
They are "goods carriage", "heavy goods vehicle", "heavy passenger motor vehicle",
"invalid carriage", "light motor vehicle", "maxi-cab", "medium goods vehicle", "medium
passenger motor vehicle", "motor-cab", "motorcycle", "omnibus", "private service
vehicle", "semi-trailer", "tourist vehicle", "tractor", "trailer and transport vehicle".........
*** *** ***
92. It may be true as has been contended 2003 AIR SCW 1695
@page-SC331
on behalf of the petitioner that a fake or forged licence is as good as no licence but the
question herein, as noticed hereinbefore, is whether the insurer must prove that the owner
was guilty of the wilful breach of the conditions of the insurance policy or the contract of
insurance. In Lehru case 5, the matter has been considered in some detail. We are in
general agreement with the approach of the Bench but we intend to point out that the
observations made therein must be understood to have been made in the light of the
requirements of the law in terms whereof the insurer is to establish wilful breach on the
part of the insured and not for the purpose of its disentitlement from raising any defence
or for the owners to be absolved from any liability whatsoever. We would be dealing in
some detail with this aspect of the matter a little later.
*** *** ***
110. (iii) The breach of policy condition e.g. disqualification of the driver or invalid
driving licence of the driver, as contained in sub-section (2)(a)(ii) of Section 149, has to
be proved to have been committed by the insured for avoiding liability by the insurer.
Mere absence, fake or invalid driving licence or disqualification of the driver for driving
at the relevant time, are not in themselves defences available to the insurer against either
the insured or the third parties. To avoid its liability towards the insured, the insurer has
to prove that the insured was guilty of negligence and failed to exercise reasonable care
in the matter of fulfilling the condition of the policy regarding use of vehicles by a duly
licensed driver or one who was not disqualified to drive at the relevant time."
12
. The said decision has been distinguished by a Bench of this Court in National Insurance
Co. Ltd. v. Laxmi Narain Dhut [(2007) 3 SCC 700] in the following terms: 2007
"36. The inevitable conclusion therefore is that the decision in Swaran Singh case 1, has
no application to own damage cases. The effect of fake licence has to be considered in the
light of what has been stated by this Court in New India Assurance Co. v. Kamla. Once
the licence is a fake one the renewal cannot take away the effect of fake licence. It was
observed in Kamla case as follows (SCC p. 347, para 12) : 2004 AIR SCW 663
2001 AIR SCW 1340, Para 12
"12. As a point of law we have no manner of doubt that a fake licence cannot get its
forgery outfit stripped off merely on account of some officer renewing the same with or
without knowing it to be forged. Section 15 of the Act only empowers any licensing
authority to renew a driving licence issued under the provisions of this Act with effect
from the date of its expiry. No Licensing Authority has the power to renew a fake licence
and, therefore, a renewal if at all made cannot transform a fake licence as genuine. Any
counterfeit document showing that it contains a purported order of a statutory authority
would ever remain counterfeit albeit the fact that other persons including some statutory
authorities would have acted on the document unwittingly on the assumption that it is
genuine."
13
. Laxmi Narain Dhut (supra) has since been followed by this Court in The Oriental
Insurance Company Limited v. Meena Variyal and Ors. [2007 (5) Scale 269] wherein this
Court referring to Swaran Singh (supra) held : 2007 AIR SCW 2279
2007 AIR SCW 2362, Para 14
2004 AIR SCW 663
"It is difficult to apply the ratio of this decision to a case not involving a third party. The
whole protection provided by Chapter XI of the Act is against third party risk. Therefore,
in a case where a person is not a third party within the meaning of the Act, the insurance
company cannot be made automatically liable merely by resorting to the Swaran Singh
(supra) ratio. This appears to be the position. This position was expounded recently by
this Court in National Insurance Co. Ltd. v. Laxmi Narain Dhut, 2007 (4) Scale 36. This
Court after referring to Swaran Singh (supra) and discussing the law summed up the
position thus: 2007 AIR SCW 2279
In view of the above analysis the following situations emerge :

1. The decision in Swaran Singh's case (supra) has no application to cases other than third
party risks.
2. Where originally the licence was a fake one, renewal cannot cure the inherent fatality.
3. In case of third party risks the insurer has to indemnify the amount and if so advised, to
recover the same from the insured.
4. The concept of purposive
@page-SC332
interpretation has no application to cases relatable to Section 149 of the Act.
[See also Oriental Insurance Co. Ltd. v. Brij Mohan and Ors., 2007 (7) Scale 753].2007
AIR SCW 3734
14
. The decisions of this Court in Laxmi Narain Dhut (supra) as also Meena Variyal (supra)
being directly on the point, we are bound thereby. 2007 AIR SCW 2279
2007 AIR SCW 2362
15. In view of the aforementioned authoritative pronouncements, we are of the opinion

that the court below committed an error in holding the appellant liable to indemnify the
owner of the vehicle in regard to losses sustained by him.
16. Different considerations would arise in a case of this nature, as the Consumer Forum
established under the Consumer Protection Act, 1986 was concerned only with a question
as to whether there was deficiency of service on the part of the appellant or not. A right
on the part of the Insurance Company not to pay the amount of insurance would depend
upon the facts and circumstances of each case. It in certain situation may be bound to pay
the claim made by the third party; if the same is filed before a forum created under the
Motor Vehicles Act. But defence may be held to be justified before a different forum
where the question raised is required to be considered in a different manner.
set aside accordingly. The appeal is allowed. However, in the facts and circumstances of
the case, there shall be no order as to costs.
Appeal allowed.
AIR 2008 SUPREME COURT 332 "Devi Lal v. State of Rajasthan"
(From : Rajasthan)*
Devi Lal v. State of Rajasthan.
(A) Penal Code (45 of 1860), S.304 - DOWRY DEATH - Dowry death - Harassment
soon before death - Proof - Standard of evidence - It is not necessary for witness to make
a statement in consonance with wording of section - What is needed is to find out as to
whether evidence brought on record read in entirety satisfy ingredients thereof. (Para
25)
(B) Penal Code (45 of 1860), S.304B - DOWRY DEATH - Dowary death - Allegation
that accused-husband allegedly harassed deceased on ground of non-fulfilment of dowry
demand and as a result deceased committed suicide - Evidence of father and uncle of
deceased that her harassment continued even after she returned to matrimonial home with
newborn son and she had been assaulted even a few days prior to incident - Fact that
family members of deceased appreciated efforts of her father-in-law who persuaded
accused not to harass deceased rules out possibility of false implication - Conviction of
accused- husband proper. (Paras 26, 27, 28)
Sanjay R. Hegde, for Appellant; Navin Singh, Aruneshwar Gupta and Shashwat Gupta,
for Respondent.
* S. B. Cri. A. No. 187 of 1999, D/- 5-12-2000 (Raj.)
Judgement
1. S. B. SINHA, J. :-In the year 1991, Appellant married Pushpa Devi, the deceased. A
male child was born to them.
2. At the time of marriage, father of Pushpa, Hazari Ram, allegedly, spent a lot of money.
Appellant's family, however, was not happy with the dowry given by the bride side.
Pushpa was allegedly tortured and continuously harassed. She had, however, no
grievance against her father-in-law, namely, Ram Swaroop. He had all along been
assuring Pushpa and her parents that he would do his best to see that she is not harassed
for not bringing enough dowry.
3. After the birth of the child, she came back to her matrimonial home. A few days prior
to the incident which took place on 9-5-1994 her uncle Ranveer (PW-2) visited her. She
made complaints about the
@page-SC333
harassments meted out to her. Ranveer conveyed the same to her father. On 9-5-1994, his
nephew, Madan Lal (PW-7) was going to some place. Hazari Ram asked him to take him
to his daughter's place. On reaching the house of Pushpa, he enquired about her. No
response thereto was made but later on he was informed that she had died and the dead
body has been cremated. Hazari Ram allegedly came back to his village. He went back to
Umawali. A Panchayat was held. Appellant's family accepted the purported mistake that
they should have informed Hazari Ram about the death of his daughter. It was agreed that
some lands would be settled in the name of the son of Pushpa.
4. On 9-5-1994, a first information report was lodged by Hazari Ram. It appears from the
records that investigating agency had been helping the accused. A purported
supplementary statement of Hazari Ram was recorded wherein he had allegedly accepted
that he was present at the time of funeral. A final form was submitted. However, a protest
petition was filed whereupon cognizance of the offence under Section 304-B of the
Indian Penal Code (Code) was taken. Charges were framed under Section 304-B of the
Code and in the alternative under Section 306 read with Section 498-A thereof. The Trial
Court convicted both the accused, namely, Devi Lal and his mother Sukh Devi.
5. An appeal having been preferred by the accused thereagainst before the High Court,
the appeal of the appellant was dismissed; but that of Sukh Devi was allowed.
6. Mr. Sanjay Hegde, learned counsel appearing on behalf of the appellant, would submit
that the High Court committed an error in passing the impugned judgment insofar as it
failed to take into consideration that no demand of dowry was made in respect of any
specific item. It was urged that the prosecution has also not proved as to whether the
purported harassment meted out to the deceased was as a result of demand of dowry or
not. Section 113-B of the Evidence Act, whereupon reliance has been placed by learned
Trial Judge as also the High Court, Mr. Parekh would contend, is not attracted to the facts
of the present case.
7. Mr. Naveen Singh, learned counsel appearing on behalf of the State of Rajasthan, on
the other hand, submitted that from the deposition of the prosecution witnesses, it would
be evident that all the ingredients of Section 304-B of the Indian Penal Code have been
proved.
8. Defence of the accused before the learned Trial Judge was that as Pushpa Devi
delivered a child, the societal norms by way of custom demanded that the occasion be
celebrated by offering gifts and distributing sweets, meal etc. by the maternal grand-
father of the child. It was pointed out that almost at the same time, elder brother Banwari
Lal's wife also delivered a child and there was a big celebration. Pushpa wanted his father
to celebrate the function of her son in a similar manner. But the same was not done. She
not only came back from the her parents' house but after a few days committed suicide. It
was furthermore the case of the defence that Hazari Ram was informed about the death of
his daughter through one Nand Ram, pursuant whereto, he attended the funeral. Prior
thereto, a village panchayat was held and he was informed about his right to lodge a first
information report but he declined to do so as a representation was made that some land
would be transferred in the name of the child.
9. The fact that death of Pushpa took place within the period of seven years from the date
of marriage is not in dispute. Unnatural death of Pushpa is also not in dispute.
10. Hazari Ram examined himself as PW-1. According to him, he gave to his daughter at
the time of her marriage articles beyond his capacity, but the family members of the
appellant were not pleased with the amount of dowry given and, therefore, they used to
harass Pushpa. According to him, Ram Swaroop, father of the appellant, was a gentleman
and he had all along been assuring him that they would try to make the appellant and his
mother understand but they had not been heeding his advice. He categorically stated that
even after the delivery of child, Pushpa asked him to call his father-in-law so that would
be pleased. She had also asked him to give some gifts to him. Ram Swaroop came to his
place and took his daughter-in-law back. He stated that whenever he would go to his
daughter-in-law's house, Ram Swaroop used to assure him with folded hands that he
would make Devi Lal and his mother understand. Five to seven days prior to the death of
his daughter, his brother Ranveer had gone to meet her. He had informed him about the
beating and harassment to his daughter and that he was asked to visit his daughter's place.
@page-SC334
He, in his examination-in-chief, supported the statement made by him in his first
information report.
11. We may notice that Ranveer (PW-2) in his deposition before the learned Trial Judge,
stated :
"My brother had given a good dowry and articles to his daughter according to capacity.
Thereafter, whenever, the girl returned back to her parent's house from her in-law's house
she told to us that my in-laws persons are not happy with the articles of this dowry and
trouble me. Later on, I along with my brother went to Umewali and said that do not
trouble and harass her. As possible, we will give continuously more dowry. My brother
told me to meet my niece. I went to meet the girl prior to 5-7 days of death of her. When
I went to meet, the girl started weeping and said that they trouble and harass to me. I
returned back after advised to her. I narrated this to my brother that they (in-laws persons)
trouble and harass to the girl, taking the issue of dowry."
12. PW-7, Madan Lal, was the nephew of Hazari Ram. He took Hazari Ram to the village
Umewala on 9th May, 1994. After visiting the house of his daughter, Hazari Ram came
back and told him "they have murdered to Pushpa (sic) and cremated."
13. We need not notice the deposition of other witnesses who had turned hostile.
14. Some witnesses were examined on behalf of the appellant. According to them, Hazari
Ram when asked by the elders of the village as to whether he had any doubt on any
person as regards the death of Pushpa or whether he intended to inform the Police,
answered in the negative stating that he would not take recourse thereto. The said
witnesses, however, accepted that they had come to depose in Court only at the instance
of the appellant.
15. It is significant to note that even in the first information report, Hazari Ram
categorically stated that no assistance had been rendered to him by the villagers.
16. Two Courts have concurrently accepted the evidence of the prosecution witnesses.
The testimonies of the prosecution witnesses have been relied on for arriving at the
finding of guilt of the appellant. We do not see any reason to take a different view.
17. The core question which has been raised for our consideration in this appeal is as to
whether a case had been made out for application of Section 113-B of the Indian
Evidence Act (the Act).
18. The Parliament by Act No. 46 of 1983 and Act No. 43 of 1986 inserted Sections 113-
A and 113-B in the Act. They read as under :
"113A. Presumption as to abetment of suicide by a married woman.- When the question
is whether the commission of suicide by a woman had been abetted by her husband or
any relative of her husband and it is shown that she had committed suicide within a
period of seven years from the date of her marriage and that her husband or such relative
of her husband had subjected her to cruelty, the Court may presume, having regard to all
the other circumstances of the case, that such suicide had been abetted by her husband or
by such relative of her husband.
Explanation.- For the purposes of this section "cruelty" shall have the same meaning as in
section 498A of the Indian Penal Code (45 of 1860).
113B. Presumption as to dowry death.- When the question is whether a person has
committed the dowry death of a woman and it is shown that soon before her death such
woman has been subjected by such person to cruelty or harassment for, or in connection
with, any demand for dowry, the Court shall presume that such person had caused the
dowry death.
Explanation.- For the purposes of this section "dowry death" shall have the same meaning
as in Section 304B of the Indian Penal Code (45 of 1860)".
19. Section 113-A of the Act relates to offences under Sections 498-A and 306 of the
Code, whereas Section 113-B relates to Section 304-B thereof. Whereas in terms of
Section 113-A of the Act, the prosecution is required to prove that the deceased was
subjected to cruelty, in terms of Section 113-B, the prosecution must prove that the
deceased was "subject by such person to cruelty or harassment for, or in connection with,
any demand for dowry".
20. The question, as to what are the ingredients of the provisions of Section 304-B of
the Indian Penal Code is no longer res integra. They are:
(1) That the death of the woman was caused by any burns or bodily injury or in some
circumstances which were not normal; 2005 AIR SCW 6470
2006 AIR SCW 4068
@page-SC335
(2) such death occurs within 7 years from the date of her marriage; (3) that the victim was
subjected to cruelty or harassment by her husband or any relative of her husband; (4)
such cruelty or harassment should be for or in connection with the demand of dowry; and
(5) it is established that such cruelty and harassment was made soon before her death.
(See Harjit Singh v. State of Punjab ((2006) 1 SCC 463); Ram Badan Sharma v. State of
Bihar ((2006) 10 SCC 115))
21
. In T. Aruntperunjothi v. State through SHO, Pondicherry ((2006) 9 SCC 467), this Court
held: 2006 AIR SCW 3241, Para 30
"It is now well settled in view of a catena of decisions of this Court that what would
constitute "soon before her death" depends upon the facts and circumstances of each
case."
22
. Distinction between Section 113-A and 113-B was noticed by the Court in Satvir Singh
v. State of Punjab ((2001) 8 SCC 633), stating : 2001 AIR SCW 3793, Para 17
"No doubt, Section 306, IPC read with Section 113-A of the Evidence Act is wide enough
to take care of an offence under Section 304-B also. But the latter is made a more serious
offence by providing a much higher sentence and also by imposing a minimum period of
imprisonment as the sentence. In other words, if death occurs otherwise than under
normal circumstances within 7 years of the marriage as a sequel to the cruelty or
harssment inflicted on a woman with demand of dowry, soon before her death,
Parliament intended such a case to be treated as a very serious offence punishable even
up to imprisonment for life in appropriate cases. It is for the said purpose that such cases
are separated from the general category provided under Section 306, IPC (read with
Section 113-A of the Evidence Act) and made a separate offence."
23
. In Hans Raj v. State of Haryana ((2004) 12 SCC 257), this Court held : 2004 AIR
SCW 1283, Para 14
"13. Unlike Section 113-B of the Indian Evidence Act, a statutory presumption does not
arise by operation of law merely on proof of the circumstances enumerated in Section
113-A of the Indian Evidence Act. Under Section 113-A of the Indian Evidence Act, the
prosecution has first to establish that the woman concerned committed suicide within a
period of seven years from the date of her marriage and that her husband (in this case)
had subjected her to cruelty. Even if these facts are established the Court is not bound to
presume that the suicide had been abetted by her husband. Section 113-A gives a
discretion to the Court to raise such a presumption, having regard to all the other
circumstances of the case, which means that where the allegation is of cruelty it must
consider the nature of cruelty to which the woman was subjected, having regard to the
meaning of the word "cruelty" in Section 498-A, IPC. The mere fact that a woman
committed suicide within seven years of her marriage and that she had been subjected to
cruelty by her husband, does not automatically give rise to the presumption that the
suicide had been abetted by her husband. The Court is required to look into all the other
circumstances of the case. One of the circumstances which has to be considered by the
Court is whether the alleged cruelty was of such nature as was likely to drive the woman
to commit suicide or to cause grave injury or danger to life, limb or health of the
woman."
24. Submissions of Mr. Hegde that as Hazari Ram (PW-1) in his deposition did not
categorically state that Pushpa was subjected to harassment for and in connection with,
any demand of dowry soon before her death, no case for convicting the appellant under
Section 304-B has been made out.
25. Indisputably, before an accused is found guilty for commission of an offence, the
Court must arrive at a finding that the ingredients thereof have been established. The
statement of a witness for the said purpose must be read in its entirety. It is not necessary
for a witness to make a statement in consonance with the wording of the section of a
statute. What is needed is to find out as to whether the evidences brought on record
satisfy the ingredients thereof.
26. Evidence brought on record by the prosecution clearly suggest that Pushpa had all
along been subjected to harassment or cruelty only on the ground that her father had not
given enough dowry at the time of marriage. For proving the said fact, it was not
necessary that demand of any particular item should have been made.
27. Evidence of Hazari Ram (PW-1) and
@page-SC336
his brother Ranveer (PW-2) go a long way to establish the ingredients of offence.
Reading their testimonies in their entirety, we have no doubt in our mind that the
harassment and cruelty meted out to Pushpa was for, and in connection with, the demand
of dowry. Demand of dowry did not abate at any point of time. Demands were made both
before and after the birth of the son. A plain reading of the deposition of Hazari Ram
(PW-1) would categorically show that Pushpa's father-in-law, Ram Swaroop had all along
been apologetic. He persuaded the apellant and his mother not to insist for dowry or at
least not harass her therefor. He, however, did not succeed in his efforts. Sentimental
attachment of Pushpa to her father-in-law becomes apparent when we find that after
giving birth to a male child she requested her father to invite him and give him some gifts
so that he would be pleased.
28. It is not one of those cases, where omnibus allegations have been made against the
members of the family. First informantion report was lodged against the accused persons
only. Nobody else was implicated. Hazari Ram (PW-1) has been categorical in stating
that Pushpa's father-in-law was a gentlemen. His effort to persuade his wife and son not
to harass Pushpa might not have ultimately succeeded but his attempt in that behalf was
appreciated by him (PW-1) and other members of his family with gratitude. It is,
therefore, cannot be said to be a case where Hazari Ram (PW-1) has falsely implicated
anybody. His evidence was supported in material particulars by his brother Ranveer (PW-
2). The very fact that harassment or cruelty on Pushpa did not abate even after her
coming back to the matrimonial home with a son and the fact that she had been assaulted
even a few days prior to the incident, in our opinion, tests of Section 304-B of the Indian
Penal Code stood satisfied. Ranveer (PW-2) informed his brother, Hazari Ram (PW-1),
about the harassment meted out to Pushpa. He was asked to go there. He went there to
find his daughter dead; her cremation having already taken place.
29. Learned Trial Judge, as also the High Court commented upon the manner in which
the Police made all efforts to help the accused. The investigating officer purported to
have recorded a supplementary statement of Hazari Ram (PW-1) which, according to the
learned Trial Judge, was not at all necessary. Recording of the said supplementary
statement has been disbelieved by the courts below.
30. In this view of the matter, we are of the opinion that no case has been made out for
interference with the impugned judgment. The appeal is, therefore, dismissed.
Appeal dismissed.
AIR 2008 SUPREME COURT 336 "BCPP Mazdoor Sangh v. N. T. P. C."
(From : 2004 Lab IC 3475 (Chh))
Civil Appeal No. 678 with 683, 724, 726 and 727 of 2006, D/- 11 -10 -2007.
BCPP Mazdoor Sangh and Anr. v. N. T. P. C. and Ors.
(A) Constitution of India, Art.226 - WRITS - PLEA - SERVICE MATTERS - Alternative
remedy - Rule of discretion - Petition challenging transfers of services of few hundred
employees from PSU to private Company - No facts in dispute - Issue of interpretation of
certain clauses in agreement/appointment letters involved - Plea of arbitrary action raised
- Writ petition in circumstances held, was maintainable. (Para 18)
(B) Contract Act (9 of 1872), S.23 - Constitution of India, Art.14, Art.16 - CONTRACT -
EQUALITY IN PUBLIC EMPLOYMENT - INDUSTRIAL DISPUTE - Contract
opposed to public policy - Agreement changing service conditions of services of
employees - Services of employees transferred from PSU to private concern
retrospectively - Violates S. 32 and Art. 14.
Industrial Disputes Act (14 of 1947), Sch.3, Item 1.
2004 Lab IC 3475 (Chh), Reversed.
Services of employees recruited, trained, appointed by PSU (NTPC) and governed by
service terms and conditions as applicable to NTPC employees cannot be transferred to a
private concern on basis of a bi-partite agreement entered subsequently between NTPC
and transferee-employer (BALCO) by giving the agreement a retrospective effect. Such
agreement violates S. 23 of Contract Act as well as Art. 14 of Constitution.
2004 Lab IC 3475 (Chh), Reversed. (Para 22)
The clause in the appointment letters issued by NTPC providing that appointments
@page-SC337
were for a power plant owned by another PSU (BALCO) presently managed by NTPC.
In case at a later date it is decided by BALCO to directly manage the Plant/ Station or
transfer its management to some other existing or new organization then your post and
your services will stand transferred to BALCO or such successor organization as the case
may be. The clause is illegal as at time of making appointments there was no agreement
between NTPC and BALCO for making recruitment and appointment on behalf of
BALCO for its BALCO Captive Power Plant. Undue influence was exercised by the
management of NTPC on the unemployed candidates to execute undertakings for
appointment. (Para 24)
It was never disclosed to the candidates /selectees that their recruitment is exclusively for
BALCO. In some of the appointment letters issued by NTPC, the terms and conditions of
appointment are mentioned. It provides pay-scale of NTPC, allowances and HRA payable
as per rules of NTPC and other facilities as admissible under the rules of NTPC. The
appointment letter provides for initial appointment and posting to work at Korba and
thereafter liable to be posted at the discretion of NTPC in other office/project/Unit or in
any other public sector undertakings in India or abroad. The aforesaid terms and
conditions lead to an irresistible conclusion that NTPC was their employer in all
purposes.
(Para 26)
(C) Constitution of India, Art.16 - EQUALITY IN PUBLIC EMPLOYMENT -
CONTRACT - Contract of service - Change of employer - Not permissible except
through tri-partite agreement - Change of service conditions - Pre-decisional hearing to
employees - Necessary.
The Government or its instrumentality cannot alter the conditions of service of its
employees and any such alteration causing prejudice cannot be effected without affording
opportunity of pre-decisional hearing to employees such change would amount to
arbitrary and violative of Article 14. In the present case where employer has been
changed, the employees are neither party to the agreement nor they have been heard
before changing their service condition. Therefore, the action of the management is
violative of Article 14 of the Constitution of India. (Paras 29, 30)
2006 AIR SCW 6102 : AIR 2007 SC 301 32
2001 AIR SCW 5135 : AIR 2002 SC 350 : 2002 CLC 171 32
AIR 1990 SC 1031 (Ref.) 27
AIR 1989 SC 568 : 1989 Lab IC 1031 (Ref.) 29
AIR 1989 SC 1577 : 1989 Lab IC 1526 (Rel. on) (Pt. C) 30
AIR 1986 SC 1571 : 1986 Lab IC 1312 (Rel. on) 24
AIR 1970 SC 823 : 1970 Lab IC 737 (Rel. on) (Pt. C) 28
(1940) 3 All ER 549 (Rel. on) (Pt. C) 28
Ms. Indira Jaising and Ravindra Shrivastava, Sr. Advocates, Barun Kumar Sinha, Ms.
Pratibha Sinha, B. K. Salija, Lakshmi Raman Singh, Atul Kumar, Kunal Verma, Md.
Mannan, Rajul Shrivastav and Anshul Garg, for Appellants; Raju Ramachandran and C.
A. Sundaram, Sr. Advocates, S. K. Dhingra, Y. K. Rao, Ms. Madhu Sikri, Saket Sikri, P.
C. Sen and Vishwajit Singh, for Respondents.
Judgement
1
. P. SATHASIVAM, J. :- Since all the above appeals were directed against the common
order dated 25.03.2004 passed by the High Court of Chhattisgarh at Bilaspur in Writ
Petition Nos. 2087 and 2072 of 2001 and 557 of 2004, they are being disposed of by the
following common judgment. reported in 2004 Lab IC 3475
2. The appellants before us are employees recruited by National Thermal Power

Corporation (for short NTPC) by calling for list of names from the Employment
Exchange and appointed by following the procedure. When steps were being taken for
transferring them to Bharat Aluminium Company Limited (for short 'BALCO') which
was originally a Public Sector Undertaking under the Government of India, subsequently
by policy of disinvestment the entire management had vested with M/s. Sterlite under
Agreement dated 20.06.2002 w.e.f. 01.07.2002. Aggrieved by the decision of their
transfer from a Public Sector Undertaking to private management, those employees
approached the High Court of Chhattisgarh at Bilaspur by filing writ petitions seeking
various reliefs. They mainly prayed for an order declaring clauses 8.2 and 16.3 of the
Agreement dated 22.05.1990 as illegal, arbitrary and unenforceable against them who are
non-executive workers as it unilaterally changes the service
@page-SC338
conditions of all those employees who were not party to the agreement. In the same writ
petitions, they also prayed that the respondents-Management be restrained from enforcing
the said clauses and thereby transferring the non-executive workers working under
BALCO Captive Power Plant (for short 'BCPP') to the management of BALCO from
NTPC.
3. The case of the appellants/employees is that they were enrolled in the Employment
Exchange, Korba and when NTPC Korba Super Thermal Power Project asked to supply
the names of Artisan (Trainee), their names were sent to NTPC. On 26.07.1987, NTPC
conducted a written/trade test for the post of Artisan Trainee (Fitter/Electrician) and the
appellants appeared in the test on the appointed date, time and venue. The appellants
received appointment orders duly signed by the Deputy General Manager (Pand A),
Korba Super Thermal Power Project of NTPC. In these appointment orders, it is
categorically stated that the terms and conditions of appointment of all the appellants are
same. They were required to undergo training for a period of one year and also required
to submit indemnity bond on the stamp paper of Rs. 55/- to remain in the service of
NTPC or any other department or undertaking of Government of India, for at least three
years. On completion of training, the appellants were issued separate appointment orders
in the name of NTPC (a Government of India Enterprise) BCPP. The order further states
that after their training, the appellants will be posted against the post sanctioned for BCPP
which is under the management of NTPC and in case at a later date, it is decided by
BALCO to directly manage the plant/station or transfer its management to some other
existing or new organization (called successor organization) then their post and services
will stand transferred to BALCO or such successor organization as the case may be.
4. When they were working with NTPC, which was managing BCPP, the Government of
India decided to disinvest shares of BALCO, which resulted into conversion of BALCO a
public sector enterprise to private sector organization and the existing management
decided to manage BCPP by themselves. In view of this, the appellants who were
appointed by NTPC should be posted to other projects of NTPC.
5. BALCO entered into an agreement of construction of Captive Thermal Power Station
for their aluminium complex at Korba with NTPC on 30.07.1984. Again BALCO entered
into another agreement on 22.05.1990 with NTPC. In view of clause 8.2 of the said
agreement, recruitment of non-executive staff shall be undertaken by NTPC specifically
for BCPP as per NTPC's recruitment norms and policies. It was further made clear that
the staff shall be governed by NTPC's policies, rules and regulations and in the event of
transfer of management from NTPC to any other agency, their services shall be
transferable to the successor organization as per provisions of clause 16.0. Clause 16.3 of
the said Agreement makes it clear that in the event of transfer of management, BALCO
shall ensure transfer to the successor organization of all non-executive staff recruited for
BCPP as per provision contained in clause 8.0 and such NTPC executives posted at
BCPP who are declared by NTPC as surplus to its requirements as a result of the transfer
of management. It also makes it clear that the terms and conditions of such transfer shall
not be inferior to those enjoyed by the employees on the date of transfer. In cases where
such transfer is not found possible, BALCO shall be responsible for all consequent
liabilities including retrenchment compensation, if any.
6. The said Agreement entered into between the two parties cannot be made
retrospectively in case it affects the rights and liabilities of the third person. The same
was entered into between two parties without knowledge, consent and willingness of the
employees. Therefore, these clauses are not binding nor can be enforced against the
employees, unless they agree to such conditions. The appellants are employees of NTPC
forever. Further during the course of employment process, NTPC has not disclosed to the
appellants that they are employing them for, and on behalf of BALCO as their agent.
Therefore, the O and M Agreement i.e. Agreement to manage BCPP on behalf of
BALCO is not applicable to the appellants.
7. Before the High Court, the managements, namely, NTPC and BALCO filed separate
counter-affidavit. According to them, the writ petition filed by the employees as well as
their union under Article 226 of the Constitution of India is not maintainable as the
appellants have not been able to show
@page-SC339
their legal right. In any case, contractual rights between the parties are not enforceable
under Article 226 or 227 of the Constitution of India. Highly disputed questions cannot
be decided in a writ petition under Article 226. Further, the provisions of the Madhya
Pradesh Industrial Relations Act are applicable to BALCO and NTPC and the appellants
have efficacious alternative remedy of approaching the Labour Court.
8. According to NTPC, it is merely an agent of BALCO on a specific Power of Attorney
given to them. The ownership of BCPP belongs to BALCO. Recruitment was made
pursuant to an agreement exclusively for BCPP with specific undertaking from the non-
executive employees. Those employees joined employment knowing fully well the
meaning of undertaking. They have no right to question the agreement between BALCO
and NTPC. The construction of BCPP was entrusted by BALCO to NTPC. Apart from
the construction work, the operation and maintenance of BCPP was also entrusted to
NTPC. In order to carry out the operation and maintenance of BCPP, NTPC recruited
required number of workmen and supervisors starting from 1980's. The recruitment of
these employees was for the limited purpose of carrying out the O and M of BCPP as
long as the management of BCPP remained with NTPC. The offer of appointment as well
as the undertaking given by the employees specifically bring out the above fact. Besides,
the O and M Agreement signed between NTPC and BALCO also makes it clear that the
recruitment made by NTPC is specifically for BCPP and in the event of transfer of O and
M of BCPP to any other agency, the services of such employees will be transferable to
the successor agency. BCPP was and is being managed by NTPC on behalf of its owner
i.e. BALCO which is being operated under the specific Power of Attorney. In view of the
same, the manpower of this plant is shown separately from the manpower of NTPC in its
annual report. The balance sheet, profit and loss account statement of NTPC also do not
include BCPP, hence it is not another unit or division of NTPC.
9. The employees have misunderstood the action taken by the respondents. The BCPP is
owned by BALCO. The BALCO, because of their lack of expertise, wanted NTPC to
maintain the plant on behalf of BALCO. Based on the agreement, various administrative
actions were taken and all those actions that were taken for, and on behalf of BALCO and
not for NTPC. Due to oversight, certain lapses have crept into a few appointment letters
and the appellants cannot take advantage of lapses in a few cases. These employees have
also executed an undertaking and in all the appointment letters it is specifically written on
the right hand corner of page 1 that the appointment is for BCPP.
10. As per clauses 8.0 and 16.3 of the Agreement dated 22.05.1990 entered into between
NTPC and BALCO, since these employees were recruited and appointed for BCPP they
can be transferred to BCPP which was made clear to them by mentioning in para 14 of
majority of appointment letters. It was also made clear that at a later date if it is decided
by BALCO to directly manage the plant/station or transfer its management to some other
existing or new organization, then their post and services will stand transferred to
BALCO or such successor organization as the case may be. They will not have any
option to remain on the rolls of NTPC. Once BCPP owned by BALCO is taken over by
BALCO, the entire non-executive staff of BCPP will continue to remain in BCPP under
the management of BALCO in terms of clauses 8.0 and 16.3 of the Agreement. Once the
plant is taken over, if the non-executive employees are not going to BALCO and if they
are to be taken by NTPC, they will become surplus and NTPC will have no option except
to order retrenchment. To avoid such contingency, it is just and proper that the non-
executive employees should go along with the plant.
11. Similar details have been furnished in the counter-affidavit filed on behalf of
BALCO.
12. Additional counter-affidavit has also been filed on behalf of NTPC clarifying certain
facts. It is reiterated that neither the union nor the workers can compel NTPC to continue
the management. It is also reiterated that all the employees were aware of the fact that
BCPP is owned by BALCO and NTPC is merely an agent to run the establishment for
some time and not permanently.
13. The High Court, after considering the claim of both parties with reference to terms
and conditions of the agreement after finding that the writ petition by the employees are
maintainable and noting the
@page-SC340
terms and conditions, particularly, clauses 8.0 and 16.3, the undertaking of the employees
accepted the stand taken by the management and dismissed all the writ petitions filed by
the employees. In the same order, the High Court has also recorded the statement of the
learned Additional Solicitor General, who appeared for NTPC that if any representation is
made to the NTPC and if any vacancy in any of their projects is available, the same will
be considered. Aggrieved by the dismissal of all the writ petitions, the union as well as
the employees filed the above appeals.
14. We heard Ms. Indira Jaising, Mr. Ravindra Shrivastava, learned senior counsel and
Mr. Lakshmi Raman Singh and Mr. Atul Kumar, learned counsel on behalf of the
appellant-employees and Mr. Raju Ramachandran, Mr. C.A. Sundaram, learned senior
counsel and Mr. S.K. Dhingra, learned counsel for the respondents-Managements.
15. Ms. Indira Jaising and Mr. Ravindra Shrivastava, learned senior counsel for the
employees, submitted as follows :
i) That all the non-executive employees were recruited by NTPC; training was imparted
by NTPC and in the appointment orders, it was made clear that their service terms and
conditions will be as applicable to NTPC employees and in future their services may be
transferred to any project of NTPC, therefore, all the non-executive employees/appellants
herein are the employees of NTPC and after disinvestment of BALCO, their services
cannot be transferred to a private sector organization - BALCO on the strength of O and
M agreement dated 22.05.1990 and the subsequent agreement dated 20.06.2002 entered
into between NTPC and BALCO.
ii) that their transfer to private organization amounts to retrenchment by NTPC against
their wishes which is not permissible under law.
iii) that clause 16.3 is discriminatory since it applies only to non-executive employees
and they alone are to be transferred to successor organization whereas the executives
working in BALCO are to be transferred to other establishments of NTPC.
iv) that unilateral changes made to their service conditions particularly when these
employees were not party to the agreement cannot be sustained. Inasmuch as these
employees enjoy service facilities in NTPC which is a Government of India undertaking,
they have every right of protection of their service conditions. The appellants being
workers not being in equal bargaining powers have no option but to sign on the dotted
lines. They want to secure employment, in those circumstances it is unjust and
unreasonable to impose terms and conditions of the Agreement in which they were not
parties to the same.
v) that under a special scheme, namely, land owner category some persons were
appointed by NTPC and they cannot be transferred to other organization, particularly, to a
private organization.
16. On the other hand, learned senior counsel Mr. C.A. Sundaram appearing for BALCO
and Mr. Raju Ramachandran appearing for NTPC by taking us through the appointment
letters, undertakings, terms and conditions of the Agreement dated 22.05.1990,
particularly, clauses 8.0 and 16.3 submitted that all the non-executive
employees/appellants were not appointed for NTPC, on the other hand, they were
selected and appointed only for BCPP which is owned by BALCO hence their action to
transfer them to BCPP/BALCO is fully justified and the High Court was right in
dismissing the writ petitions filed by those employees.
17. We have carefully perused all the relevant materials and considered the rival
submissions.
18. Though no serious objection was made as to the maintainability of the writ petition,
however, learned senior counsel appearing for the Management pointed out that even if
there is any breach by BALCO of its obligations in the matter of terms and conditions of
employment, the appellants have appropriate remedy under Industrial Law. Inasmuch as
the claim of the employees relates to interpretation of certain clauses in the agreement,
appointment letters and no disputed facts are involved and taking note of the fact that the
issue relates to employment of few hundreds of employees and in the light of the
assertion that transferring them to private organization from a public sector undertaking
without their specific consent is arbitrary and unreasonable and also of the settled
position that alternative remedy is rule of discretion and not the rule of law, we accept the
conclusion of the High Court and hold that the
@page-SC341
writ petitions under Article 226 of the Constitution filed by the employees are
maintainable.
19. In order to answer the contentions raised and in the light of the reliefs prayed for by
the employees, it is useful to refer to the relevant clauses in the agreement. First
agreement between the BALCO and NTPC was executed in July, 1984. Since we are very
much concerned about the subsequent Agreement dated 22.05.1990, we will consider the
relevant clauses of 1990 Agreement. Among various clauses, clauses 8.2, 8.5, 16.3 and
21.0 are relevant, which read as under :
"8.0 PERSONNEL MANAGEMENT
8.2. Non-Executives :
Recruitment of non-executive staff (supervisory and workmen) shall be undertaken by
NTPC specifically for BCPP as per NTPC recruitment norms and policies, this staff shall
be governed by the NTPC's policies, rules and regulations. In the event of transfer of
management from NTPC to any other agency, their services shall be transferable to the
successor organization as per provisions of clause 16.0."
"8.5 Terms and Conditions of Service:
BCPP employees would for the matters of discipline, be governed by Standing Orders,
Conduct, Disciplines and Appeal Rules; etc. framed by NTPC and BALCO shall have no
jurisdiction in such matters during the period NTPC manages BCPP on behalf of
BALCO. If BALCO enters into any Agreement with its own employees for grant of any
benefits or change in any terms and conditions, it shall have no effect whatsoever or
NTPC for any dispensation influenced by the said Agreement for employees engaged in
BCPP, Revision of terms and conditions of BCPP employees will be in accordance with
the policy laid down by NTPC for these employees, which may be similar to that of other
employees of NTPC or might be different on merit of each case as consciously decided
by NTPC."
"16.0 Transfer of management :
16.3Transfer of staff:
In the event of transfer of management, BALCO shall ensure transfer to the successor
organization of all non-executive staff recruited for BCPP as per provision contained in
clause 8.0, and such NTPC executives posted at BCPP who are declared by NTPC as
surplus to its requirements as a result of the transfer of management. Terms and
conditions of such transfer shall not be inferior to those enjoyed by the employees on the
date of transfer. In cases where such transfer is not found possible, BALCO shall be
responsible for all consequent liabilities including retrenchment compensation, if any.
At the end of plant life, BALCO shall be responsible for all liabilities including
retrenchment compensation etc., when the non-executives and such NTPC executives
posted at BCPP who are declared surplus are retrenched or any other dispensation as
deemed fit is resorted to."
"21.0 Effective date and duration of agreement :
The agreement shall come into force from 29.6.1987..............."
20. Clause 8.5 makes it clear that in respect of matter of discipline, the relevant Rules,
Standing Orders framed by NTPC alone are applicable for employees of BCPP and
BALCO has no jurisdiction in those matters during the period NTPC manages BCPP on
behalf of BALCO. Likewise, though clause 16.3 enables BALCO to transfer all non-
executive staff to the successor organization, namely, new management, it makes it clear
that terms and conditions of such transfer shall not be inferior to those enjoyed by the
employees on the date of transfer. As per clause 21.0, the agreement of the year 1990
deemed to come into operation from 29.6.1987. In other words, all the terms and
conditions have retrospective effect from 29.6.1987. With this background, we will
consider whether those terms are sustainable and the action of the management in
transferring the employees-appellants to BCPP which is a private management is
justifiable or not?
21. It is not in dispute that NTPC is a public sector undertaking wholly owned by the
Government of India. Likewise, initially BALCO was also a public sector undertaking
and BCPP is wholly owned by BALCO which was set up for production of power for
their units. Subsequently in the year 2001, by virtue of disinvestment policy of the
Government of India, BALCO including BCPP were transferred to M/s. Sterlite which is
a private concern. Though the agreement between BALCO and NTPC was entered into
on 22.5.1990 enabling the NTPC to
@page-SC342
manage, operate, supervise, maintain and control BCPP in all aspects, as per clause 21.0,
the terms and conditions deemed to come into operation from 29.6.1987. Learned senior
counsel appearing for the appellants, by placing the relevant materials, submitted that
most of the employees were appointed prior to the agreement dated 22.5.1990, however,
admittedly they were not parties to the agreement. In other words, according to the
employees, the said agreement was only bipartite i.e., between BALCO and NTPC and
that they were on the rolls of NTPC on the date of the said Agreement without their being
party various terms and conditions which affect their services are not enforceable against
them. The appointment letters of employees are annexed in Vol. II of the appeal paper
book which clearly show that they were appointed in the year 1987. It is not in dispute
that the Agreement was executed on 22.5.1990. In order to bind these employees, the
management could have executed a tripartite Agreement by taking their consent. At this
juncture, it is relevant to mention that even as per the Agreement, particularly, clause 16.3
insists that in the event of transfer to the successor organization or new management, the
terms and conditions of such transfer shall not be inferior to those enjoyed by the
employees on the date of transfer. Learned senior counsel appearing for the employees
pointed out that inasmuch as these persons provided more benefits as per the Standing
Orders/Rules of NTPC and if the transfer is implemented, all the non-executive
employees have to work with a private concern with less benefits and privileges
compared to NTPC which is a public sector undertaking.
22. The bipartite Agreement between NTPC and BALCO was entered into on
22.05.1990. It is brought to our notice that the appointments of 236 employees are made
prior to 22.05.1990 and at the time of recruitment and appointment by NTPC, no
agreement between NTPC and BALCO was in existence empowering NTPC to make
recruitment and appointment on behalf of BALCO. Therefore, as rightly pointed out by
learned senior counsel for the employees, the provision made in clause 21.0 of the
Agreement, the effective date and duration of Agreement w.e.f. 29.06.1987 is contrary to
the provisions of Section 23 of the Indian Contract Act and also violative of Article 14 of
the Constitution of India. By virtue of the aforesaid clause, the service condition has been
admitted to be changed to the employees by giving effect to the Agreement dated
22.05.1990 w.e.f. 29.06.1987. Even during the course of arguments made on behalf of
BALCO,it was not seriously disputed that the appointments made prior to 22.05.1990
cannot be termed in furtherance of the Agreement dated 22.05.1990. In such
circumstances, the finding of the High Court that the services of the employees appointed
by NTPC are transferable to BALCO in the light of the provisions made in clauses 8.2
and 16.3 of the bipartite Agreement dated 22.05.1990 between NTPC and BALCO is not
acceptable. Even for the sake of argument, it was admitted that the power of attorney was
given to NTPC pursuant to the Agreement dated 22.05.1990 and 29.05.1991, it is only
those employees who have been appointed by NTPC on behalf of BALCO, pursuant to
the said power of attorney, can only be transferred to BALCO.
23. Now we will consider the appointment letters and the undertakings. It is not in
dispute that the process of recruitment was initiated by NTPC and in the advertisement, it
has been mentioned that "NTPC Ltd. requires persons in the following categories for its
Korba Super Thermal Power Project and BALCO Captive Power Project." The said
advertisement nowhere stipulates that the said process of recruitment was on behalf of
BALCO. The letters for test or interview to the candidates have also been issued by
NTPC, which are in the appeal paper-book. Even those interview letters do not reveal that
the appointments are being made for/on behalf of BALCO. As stated earlier, it is not in
dispute that those appointment letters have also been issued by NTPC. Learned senior
counsel appearing for the management, by drawing our attention to clause 14 of the
appointment letters, submitted that those employees are precluded from raising such
contention. We are unable to accept the same. It is true that in some of the appointment
letters, clause 14 reads as under:
"14. Your appointment as Jr. Tech (elect) will be against the post sanctioned for BALCO
Captive Power Plant/Station, which is presently under the management of National
Thermal Power Corporation Limited. In case at a later date it is decided by BALCO to
directly manage the Plant/Station or transfer its management to some other
@page-SC343
existing or new organization (called successor organization) then your post and your
services will stand transferred to BALCO or such successor organization as the case may
be. You will be not have any option to remain on the rolls of National Thermal Power
Corporation Ltd., or claim any benefit/compensation for the past services from NTPC but
shall be governed by the terms and conditions as applicable to BALCO or such successor
organization, as the case may be. Accordingly please submit an undertaking in the
enclosed format, while accepting this offer of appointment."
24
. It is to be noted that at the time of insertion of above-mentioned clause 14 in the

appointment letter and obtaining undertakings from the employees there was no
Agreement between NTPC and BALCO for making recruitment and appointment on
behalf of BALCO for its BALCO Captive Power Plant. In such circumstances, as
observed earlier and rightly pointed out by learned senior counsel for the employees in
the absence of such Agreement between NTPC and BALCO, clause 14 of the
appointment letter and undertakings obtained by NTPC is illegal and is contrary to the
provisions of Section 23 of the Indian Contract Act. In this connection, reliance was
placed on a judgment of this Court rendered in the case of Central Inland Water Transport
Corporation Limited and another v. Brojo Nath Ganguly and another, (1986) 3 SCC 156.
In para 91, this Court made the following observation : AIR 1986 SC 1571, (Para 92)
"91. Is a contract of the type mentioned above to be adjudged voidable or void? If it was
induced by undue influence, then under Section 19A of the Indian Contract Act, it would
be voidable. It is, however, rarely that contracts of the types to which the principle
formulated by us above applies are induced by undue influence as defined by Section
16(1) of the Indian Contract Act, even though at times they are between parties one of
whom holds a real or apparent authority over the other. In the vast majority of cases,
however, such contracts are entered into by the weaker party under pressure of
circumstances, generally economic, which results in inequality of bargaining power. Such
contracts will not fall within the four corners of the definition of "undue influence" given
in Section 16(1). Further, the majority of such contracts are in a standard or prescribed
form or consist of a set of rules. They are not contracts between individuals containing
terms meant for those individuals alone. Contracts in prescribed or standard forms or
which embody a set of rules as part of the contract are entered into by the party with
superior bargaining power with a large number of persons who have far less bargaining
power or no bargaining power at all. Such contracts which affect a large number of
persons or a group or groups of persons, if they are unconscionable, unfair and
unreasonable, are injurious to the public interest. To say that such a contract is only
voidable would be to compel each person with whom the party with superior bargaining
power had contracted to go to court to have the contract adjudged voidable. This would
only result in multiplicity of litigation which no court should encourage and would also
not be in the public interest. Such a contract or such a clause in a contract ought,
therefore, to be adjudged void. While the law of contracts in England is mostly judge-
made, the law of contracts in India is enacted in a statute, namely, the Indian Contract
Act, 1872. In order that such a contract should be void, it must fall under one of the
relevant sections of the Indian Contract Act. The only relevant provision in the Indian
Contract Act which can apply is Section 23 when it states that "The consideration or
object of an agreement is lawful, unless . . . the court regards it as . . . opposed to public
policy."
In view of the same and of the fact that words and phraseology used in the undertakings
are same which are in a stereotype form, it is justified in arriving at a conclusion that
undue influence was exercised by the management of NTPC on the unemployed
candidates to execute undertakings for appointment.
25. NTPC being an undertaking of the Government of India and an instrumentality of
State is under constitutional obligation to act fairly with its employees, particularly, the
posts which were advertised from 1986 till 1988 were not in existence in BALCO as the
BCPP was not fully commissioned. In those circumstances, NTPC was not justified in
inserting clause 14 in the appointment letters and obtaining undertakings from the
selectees.
26. As rightly pointed out by learned senior counsel for the employees and from the
materials brought on record either before
@page-SC344
the High Court or this Court, it is evident that during the process of recruitment it was
never disclosed to the candidates/selectees that their recruitment is exclusively for
BALCO, on the other hand, in some of the appointment letters issued by NTPC, the terms
and conditions of appointment are mentioned. It provides pay-scale of NTPC, allowances
and HRA payable as per rules of NTPC and other facilities as admissible under the rules
of NTPC. It also provides other benefits of the company - contributory provident fund
and gratuity are payable as per rules of NTPC. Para 8 of the appointment letter provides
for initial appointment and posting to work at Korba and thereafter liable to be posted at
the discretion of NTPC in other office/project/unit or in any other public sector
undertakings in India or abroad. The aforesaid terms and conditions lead to an irresistible
conclusion that NTPC was their employer in all purposes.
27
. The materials placed clearly show that clause 14 referred to above is against public
policy and contrary to Section 23 of the Indian Contract Act as well as violative of Article
14 of the Constitution of India for the reason that undue influence was exercised by
NTPC management and the selected candidates to accept the terms and conditions
stipulated therein. By virtue of the aforesaid clause 14, as pointed out earlier, the status of
these public servants have been sought to be changed which is again violative of Article
14. In Mahavir Auto Store and others vs. IOC and others, (1990) 3 SCC 752, this Court
has observed in para 18 that even in the field of public law, the persons affected should be
taken into confidence. AIR 1990 SC 1031
28
. The next submission of learned senior counsel for the employees was that transfer of
employer is not permissible without tripartite Agreement. As per the law laid down in
Nokes v. Doncaster Amalgamated Collieries Ltd., (1940) 3 All ER.. 549, and decision of
this Court in Manager, M/s. Pyarchand Kesarimal Porwal Bidi Factory vs. Omkar
Laxman Thange and Ors., (1969) 2 SCR 272, the consent must be express and
consciously accorded in the course of negotiation contemporaneous with the process of
transfer so as to amount to an informed consent. Consequently, in order to bind the
appellants, there must be a tripartite Agreement. Since there is no tripartite Agreement, as
observed above, the transfer from one employer to another cannot be effected. In Nokes
v. Doncaster Amalgamated Collieries Ltd. (supra), it was observed as under : AIR
1970 SC 823
"It will be readily conceded that the result contended for by the respondents in this case
would be at complete variance with a fundamental principle of our common law -
namely, that a free citizen, in the exercise of his freedom, is entitled to choose the
employer whom he promises to serve, so that the right to his services cannot be
transferred from one employer to another without his assent........"
This Court in Pyarchand vs. Omkar Laxman (supra) held thus: AIR 1970 SC 823,
Para 8
"A contract of service being thus incapable of transfer unilaterally, such a transfer of
service from one employer to another can only be affected by a tripartite Agreement
between the employer, the employee and the third party, the effect of which would be to
terminate the original contract of service by mutual consent and to make a new contract
between the employee and the third party."
29
. The Government or its instrumentality cannot alter the conditions of service of its
employees and any such alteration causing prejudice cannot be effected without affording
opportunity of pre-decisional hearing and the same would amount to arbitrary and
violative of Article 14. As pointed out earlier, in the case on hand, the employees are
neither party to tripartite Agreement nor they have been heard before changing their
service condition. Therefore, the action of the management is violative of Article 14 of
the Constitution of India. Similar view has been taken by this Court in H. L. Trehan and
others vs. Union of India and others, (1989) 1 SCC 764. In para 11 of the judgment, this
Court observed as under : AIR 1989 SC 568
"..........It is now a well established principle of law that there can be no deprivation or
curtailment of any existing right, advantage or benefit enjoyed by a Government servant
without complying with the rules of natural justice by giving the Government servant
concerned an opportunity of being heard. Any arbitrary or whimsical exercise of power
prejudicially affecting the existing conditions of service of a Government servant will
offend against the provision of
@page-SC345
Article 14 of the Constitution. Admittedly, the employees of CORIL were not given an
opportunity of hearing or representing their case before the impugned circular was issued
by the Board of Directors. The impugned circular cannot, therefore, be sustained as it
offends against the rules of natural justice."
30
. It is useful to refer to the judgment of this Court in Jawaharlal Nehru University vs. Dr.
K. S. Jawatkar and others, 1989 Supp (1) SCC 679. In this case, Jawaharlal Nehru
University was the appellant before this Court. The main contention of the appellant-
University was that the respondent was appointed at the Centre of Post-Graduate Studies,
Imphal and when the Centre was transferred to Manipur University his services were
automatically transferred to that University and consequently he could not claim to be an
employee of the appellant-University. The argument proceeds on the assumption that the
Centre of PG studies at Imphal was an independent entity which existed by itself and was
not a department of the appellant-University. Rejecting the said contention, this Court
held thus: AIR 1989 SC 1577
"7. .. . . . . . . . . . The Centre of Post-Graduate Studies was set up at Imphal as an activity

of the appellant-University. To give expression to that activity, the appellant-University
set up and organised the Centre at Imphal and appointed a teaching and administrative
staff to man it. Since the Centre represented an activity of the appellant-University the
teaching and administrative staff must be understood as employees of the appellant-
University. In the case of the respondent, there can be no doubt whatever that he was and
continues to be, an employee of the appellant-University. There is also no doubt that his
employment could not be transferred by the appellant-University to the Manipur
University without his consent notwithstanding any statutory provision to that effect
whether in the Manipur University Act or elsewhere. The contract of service entered into
by the respondent was a contract with the appellant-University and no law can convert
that contract into a contract between the respondent and the Manipur University without
simultaneously making it, either expressly or by necessary implication, subject to the
respondent's consent. When the Manipur University Act provides for the transfer of the
services of the staff working at the Centre of Post-graduate Studies, Imphal, to
employment in the Manipur University, it must be construed as a provision enabling such
transfer of employment but only on the assumption that the employee concerned is a
consenting party to such transfer. It makes no difference that the respondent was not
shown in the list of Assistant Professors of the appellant-University or that the provision
was not indicated in its budget; that must be regarded as proceeding from an erroneous
conception of the status of the respondent. The position in law is clear, that no employee
can be transferred, without his consent, from one employer to another. The consent may
be express or implied. We do not find it necessary to refer to any case law in support of
this conclusion.
8. Inasmuch as the transfer of the Centre of Post-graduate Studies from the appellant-
University to the Manipur University could not result in a transfer of the employment of
the respondent from the one to the other, it must be concluded that the respondent
continues in the employment of the appellant-University.................."
It is clear that no employee could be transferred without his consent from one employer
to another. Therefore, in view of the aforesaid rulings the transfer of employees from
NTPC - a public sector undertaking to BALCO which is a private organization is bad in
law.
31. The above discussion would clearly show that all appointment orders were issued by
NTPC and Rules, procedure in respect of probation, training, D.A. and other allowances,
absorption in the regular scale, governed by certified standing orders and other Rules and
Regulations of the company i.e., NTPC. Even in the appointment order, it had been
specifically stated that in the event of their appointment, they have to execute service
agreement in favour of NTPC or any other Department or Undertaking of Government of
India for three years. It is not disputed that all the employees selected and appointed
executed a service agreement as suggested in favour of NTPC. All the appointment orders
were sent with the above- referred specific conditions by the Senior Personel Officer,
NTPC Korba Super Thermal Power Project, Bilaspur. Posting orders were also issued by
NTPC. Perusal of agreements executed by the selectees clearly show
@page-SC346
that there is no reference that the said Agreement is for and on behalf of the BALCO
whereas it only refers NTPC. All the abovementioned factual details clearly support the
case of the employees that they were selected and their services could be continued only
at NTPC or any other public sector undertakings of Government of India. There is no iota
of evidence or indication that they will be transferred to a private concern with less
service benefits.
32
. Learned senior counsel appearing for the employees finally submitted that the impugned
clauses in the Agreement are liable to be interfered with on the ground of discrimination.
Clause 16.3 of the Agreement dated 22.05.1990 makes it clear that non-executive
employees are to be transferred to successor organization and there is no reference to
executives. On the other hand, it was demonstrated before us, by facts and figures, that
the executives working in BALCO are to be transferred to other establishments of NTPC.
Even though the non-executive employees are also having a special knowledge i.e.,
technicians, in the absence of any plausible reason retaining executives alone with NTPC
and transferring non-executive employees to a private organization cannot be sustained
and hit by Art. 14 of the Constitution of India. On the other hand, the appellants-non-
executive employees are to be retained by NTPC and posted in their various units. We are
also conscious of the earlier decisions of this Court in BALCO employees' Union (Regd.)
vs. Union of India and Ors. (2002) 2 SCC 333 (BALCO's case) and All India ITDC
Workers' Union and Ors. v. ITDC and Ors. (2006) 10 SCC 66 (ITDC's case) upholding
the policy of disinvestment. Learned senior counsel appearing for the Management
strongly relying on BALCO's case and ITDC's case submitted that no employee of public
sector undertaking has a vested right in continuing to be employed by an instrumentality
of the State. There is no quarrel as to the proposition laid down in BALCO's and ITDC's
case. However, considering our discussion relating to various aspects starting from
calling for applications and subsequent actions taken by NTPC, we are satisfied that the
employees have made out a case for continuing their service in NTPC. 2001 AIR
SCW 5135
2006 AIR SCW 6102
33. At the end of the arguments, Mr. Raju Ramachandran, learned senior counsel
appearing for the NTPC requested this Court that if the claim of the employees are
acceptable, they are ready to consider the case of the employees whose appointment letter
neither contain clause 14 nor clause 16 and have not given an undertaking and they will
be taken back by the NTPC in the phased manner. While appreciating the gesture of the
learned senior counsel and considering the relevant materials, we are of the view that
both the offending clauses in the Agreement cannot be sustained and all employees are to
be retained in NTPC.
34
. In the light of the above discussion, common order dated 25.3.2004 passed by the High
Court of Chhattisgarh in W.P. Nos. 2087 of 2001, 2072 of 2001 and 557 of 2004 are set
aside and the appeals filed by the employees are allowed. No order as to costs.
Reported in 2004 Lab IC 3475
Appeals allowed.
AIR 2008 SUPREME COURT 346 "Annakili v. A. Vedanayagam"
(From : 2006 (2) Mad LW 742)
-2007.
Annakili v. A. Vedanayagam and Ors.
(A) Limitation Act (36 of 1963), Art.65 - LIMITATION - ADVERSE POSSESSION -
Adverse possession - Proof - Not only animus possidendi must be shown to exist - But
same must be shown to exist at commencement of possession - Claimant must continue
in said capacity for period prescribed under Limitation Act - Mere long possession for
period of more than 12 years without anything more - Would not ripen into title.
2005 AIR SCW 5314 and 2006 AIR SCW 4368, Ref. (Para 22)
(B) Specific Relief Act (47 of 1963), S.6 - POSSESSION - HIGH COURT -
DECLARATION OF TITLE - Suit for possession - Finding by High Court in regard to
title of plaintiff attained finality - It was for defendant to prove that they were in
possession of suit property on basis of hostile title and as a result whereof the title of
plaintiff extinguished - Plaintiff need not file suit for declaration of their title also. (Para
21)
(C) Limitation Act (36 of 1963), Art.65 - LIMITATION - ADVERSE POSSESSION -
Adverse possession - Appellant and
@page-SC347
her husband claiming title only through or under Slum Clearance Board - No independent
title was claimed - Respondents on one hand and Municipal Corporation, Slum Board and
the Government of Tamil Nadu on the other were litigating since 1973 - They accepted
title of respondents - Respondents also reimbursed the Board in regard to expenditure
incurred by them - In facts and circumstances it could not be said that appellant had
acquired title by adverse possession or otherwise. (Para 27)
2007 AIR SCW 6248 26
2006 AIR SCW 4368 : 2006 (6) AIR Kar R 13 (Ref.) 24
2005 AIR SCW 5314 : AIR 2005 SC 4407 (Ref.) 23
2004 AIR SCW 1704 : AIR 2004 SC 1893 23
2003 (8) JT (SC) 26 23
Dayan Krishnan, Gautam Narayan and Nikhil Nayyar, for Appellant; V. Raghavachari, R.
Anand Padmanabhan, S. R. Sundar and Pramod Dayal, for Respondents.
Judgement
2. Plaintiffs-Respondents are owners of the property in question. They purchased the
same from Corporation of Madras by a registered deed of sale dated 19.4.1944. The
owners of the property, namely Krishnadoss Lala and his brother, however, partitioned
their suit properties on or about 5.5.1968 whereupon the suit properties were allotted to
the share of Krishnadoss Lala. After his demise, the same vested in his heirs and legal
representatives. They, along with one Mohamed Idris and one K. Peer Mohideen entered
into an agreement whereby and whereunder, it was agreed that the property should be
released from the notification of the year 1973 issued by the Tamil Nadu Slum Clearance
Board.
3. Plaintiffs-Respondent herein purchased the suit properties not only from the heirs and
legal representatives of the said Krishnadoss Lala but also from the said Mohamed Idris
and K. Peer Mohideen for valuable consideration by a registered deed of sale dated
30.9.1986.
4. Defendants claimed possession of the suit properties described in Schedule 'A' of the
plaint therein since 1957. On or about 1.12.1972, the Government of Tamil Nadu
designated an area including the suit properties as slum area. It was transferred to Tamil
Nadu Slum Clearance Board.
5. Pursuant to a scheme undertaken by the World Bank in regard to sale of land situated
in Corporation Division No.122, Kamraja Puram, T. Nagar slum areas to the persons who
were in occupation of the portions thereof, the Department of House and Urban
Development, Government of Tamil Nadu issued two GOMs bearing No.1117, dated
27.6.1979 and GOMs No.1100, dated 29.8.1980 in that behalf.
6. The suit property was allotted to the husband of the appellant as appears from a letter
dated 18.3.1981 which is to the following effect :
"In pursuance of the orders stated above, action is being taken to allot land extending
18.5 sq. mtrs. In Kamaraja Puram Scheme Plot No.17 is allotted to you. You have to pay
the necessary amount in the following manner. A sum of Rs.89/- should be paid along
with the application. Later on you have to pay Rs.13/- as monthly installment (including
interest) for period of 10 years. On completion of 10 years and after payment of all the
installments the land will be given to you through a sale deed. Besides this you have to
pay a sum of Rs.8/- per month towards development charges and Rs. 2/- per month
towards water and drainage charges.
You are hereby requested to apply in the pro forma annexed herein and to execute a lease-
cum-sale agreement document in favour of Slum Clearance Board within 7 days from the
date of receipt of this notice. If you fail to send this application with advance payment
receipt, it is construed that you are not in need of the land allotted to you and the same
will be allotted to some other person after evicting you from the premises."
7. Plaintiffs-respondents, however, moved the High Court by way of filing a writ petition
in the year 1989 for issuance of a writ of or in the nature of mandamus directing the State
of Tamil Nadu to denotify the land in question as a slum area and put them back in the
possession thereof. By a judgment and order dated 10.1.1990, the said writ petition was
allowed. The area in question was directed to be denotified and
@page-SC348
the respondents herein were found entitled to obtain vacant possession of the said
property.
8. Appellant and other persons similarly situated were not parties therein. They preferred
a Writ Appeal before the Division Bench of the High Court which was numbered as Writ
Appeal No.272 of 1990. The Division Bench of the High Court by a judgment and order
dated 21.3.1990 found the title of the respondent herein having regard to the admitted
facts in the said proceedings, but upon holding that as the appellants have ventured to put
forth a case that their occupation of the property relate back to 60 years which conferred
the right to them de hors the said proceedings and as direction to hand over the vacant
possession would result in dispossession of the third parties to which the learned Single
Judge had no occasion to advert to and adjudicate upon the rights of the third parties,
because they were not parties in the said writ petition, directed :
"Further, there is a grievance, expressed by the learned counsel for the parties, that
without even a prayer, therefore, the learned Single Judge has directed respondents 1 and
2 to declare that the property ceased to be a slum area. This grievance is a tenable one and
requires amelioration. There was no prayer at all to the above effect. The enquiry into that
question will take us into a different sphere. Hence, we do not think it will be in order to
make a declaration that the property ceased to be a slum area.
In the said circumstances, we find a warrant to vacate and we do vacate the directions of
the learned single Judge to respondents 1 and 2 to declare that the property ceased to be a
slum area and also to hand over vacant possession of the property to the petitioners. The
prayer in the writ petition to the extent of the denotification asked for alone could be and
is being sustained. The other controversies with reference to recovery of possession from
the third parties and the declaration with reference to the property ceasing to be a slum
area are left open."
9. Consequent upon the said decision of the Division Judge, the Government of Tamil
Nadu cancelled the earlier notification dated 1.12.1972 notifying the suit properties as
slum area.
10. Respondents filed a suit on 26.9.1995 which was marked as CS No.1485 of 1995
(re-numbered as 14770 of 1990) praying, inter alia, for the following reliefs :
"(a) direct the defendants to quit and deliver vacant possession of the premises mentioned
in Schedules B, C, D and E and remove all structures put up by the defendants and in
default direct the plaintiffs to remove the structure and recover the cost from the
defendants,
(b) to award past mesne profits at Rs. 3,60,000/- jointly and severally towards past mesne
profits.
(c) to award future mesne profit at the rate of Rs.10,000/ per month jointly and severally,
(d) to award future mesne profit at the rate of Rs.10,000/- per month jointly and
severally."
10A. In their written statement, the appellant, inter alia, contended :
(1) That the Plaintiffs have not filed a suit for declaration of title but merely a suit for
possession which is not maintainable inasmuch as the title of the Plaintiffs/Respondents
herein have been denied in all proceedings.
(2) That the Plaintiffs/Respondents herein are not the owners of the property and have not
been in possession of the property from 19.4.1944 onwards.
(3) The Defendant/Petitioner herein are in continuous uninterrupted possession and have
perfected title by adverse possession.
(4) That the allotment of the Slum Clearance Board was only a recognition given to the
Defendants right to continue in possession forever.
11. The learned Trial Judge dismissed the said suit opining that the suit land had been in
occupation of the appellants for a long time and that they have acquired title by adverse
possession. The suit was also held to be barred by limitation.
12. By reason of the impugned judgment, the High Court allowed the appeal filed by the
respondents herein directing the appellant to deliver possession of the property to the
respondents.
13. Mr. Dayan Krishnan, learned counsel appearing on behalf of the appellants, would
submit that the High Court proceeded on an erroneous basis that the title of the suit
property was not in dispute.
It was submitted that the High Court
@page-SC349
committed a serious error in opining that the appellant had no animus to possess the suit
property adverse to the interest of the plaintiff-respondent.
14. Evidences on record would clearly show, Mr. Krishnan would submitted, that the
appellant had been in continuous possession for more than 60 years and, thus, they had
perfected their title by adverse possession. It was urged that the Respondents having not
sought for any relief in regard to declaration of their title, the suit will be governed by
Article 64 and the Schedule appended to Article 65 of the Limitation Act, 1963.
15. Mr. V. Raghavachari, learned counsel appearing on behalf of the respondents, on the
other hand, drew attention of this Court not only to the findings of the Division Bench of
the High Court in Writ Appeal No. 272 of 1990 but also to another writ application filed
by the appellant herein in the year 1989 and the judgment passed therein as also in the
writ appeal to contend that in view of the findings of the Division Bench of the High
Court in the aforementioned writ proceedings which was disposed of in the year 1991,
limitation, if any, would start running only from the said date and not prior thereto. It was
contended that the petitioner had never asserted any right in them but had all along being
asserting their title under the settlement made by the Corporation of Madras.
16. The fact that title of the land was with Corporation of Madras is not in dispute. It is
furthermore not in dispute that the Corporation of Madras had transferred the suit
property in favour of Mr. Krishnadoss Lala. Despite the fact that the Corporation of
Madras had divested itself of the said property, it erroneously transferred the same in
favour of Tamil Nadu Slum Clearance Board on 1.12.1973. Pursuant thereto, certain
development activities were taken by the Board. At that point of time, Shri Krishnadoss
Lala submitted a representation to the Corporation of Madras stating that although the
property belonged to him, the same was illegally transferred to the Tamil Nadu Slum
Clearance Board. The Corporation accepted the said mistake on its part and informed the
Tamil Nadu Slum Clearance Board thereabout. A request was made to the Board to
exclude the said property from the list of properties owned by the Slum Clearance Board.
The predecessors and representatives of the respondent thereafter paid the development
charges incurred by the Slum Clearance Board. A request was made by the Board to
denotify the Slum area but the State did not take any action thereupon.
17. It was in the aforementioned factual scenario, the writ petition was filed. Appellant
herein indisputably had been claiming title only on the basis of purported settlement
made in their favour by the Tamil Nadu Slum Clearance Board. It was not their case that
even prior to 1.12.1972 when the area was declared as slum area, they have acquired title
by adverse possession. Indisputably, therefore, the Corporation of Madras or Tamil Nadu
Slum Clearance Board did not have any title in the suit property. They could not have
transferred any right, title and interest in the said land to the appellants and others
similarly situated.
18. We may notice that the appellant, in his writ application filed before the High Court
of Judicature at Madras being Writ Petition No.7785 of 1987, stated :
"In accordance with the scheme the slum dwellers of Kamarajapuram were provided with
the bank loan for constructing their houses or putting up construction. We understand that
financial assistance was availed from World Bank for construction of drainage, toilet and
bathroom facilities and as well as for making water supply to the slum dwellers of
Kamarajapuram. We obtained the Loan form bank as already submitted through the Slum
Clearance Board and put up new constructions after obtaining sanction from the
Corporation, and are in possession and enjoyment of our respective land and
superstructure. We were paying the installments towards sale consideration and towards
bank loan and also development charges etc., since 1981."
19. It was under the said title, therefore, the appellant and others had been claiming the
land. They had been paying installments to the Slum Clearance Board. In the writ petition
filed by the appellants and others, a prayer was made for issuance of direction to the
Slum Clearance Board to accept instalments from them. The said writ petition was
dismissed. A writ appeal preferred thereagainst, inter alia, by the appellant herein, was
dismissed by a Division Bench of the High Court, holding :
"We have heard learned counsel for the
@page-SC350
parties at length and perused the materials on record. It is seen from the facts narrated
above, that after 19.4.1944 sale, the property in question does not belong to the
Corporation of Chennai. The transfer of the property thereafter to the Slum Clearance
Board on 17.12.1973 is only a mistake. That apart, the owners of the property have said
the amounts spent by the Slum Clearance Board for the development of the property and
had also paid compensation to most of the slum dwellers for their resettlement. They have
also agreed to pay compensation to the remaining slum dwellers for their resettlement.
The order directing denotification has been upheld by the Division Bench in W.A. No.272
of 1990 and the appellants had not agitated this issue at the appropriate time, when they
had the knowledge of the decision dated 21.3.1990 and also when G.O. was issued on
16.5.1991 pursuant thereto. Civil Suit is pending only for possession. Under the
circumstances, the arguments advanced by the appellants now are not sustainable, as the
same had not been agitated at the appropriate time. As such, the order of the learned
single Judge cannot be said to be unjust. In any view of the matter, in the facts of the
given case, we do not find any error or illegality in the order of the learned single Judge
so as to call for interference. The writ appeal is, therefore, dismissed."
20. Even in the said writ petition, the appellant did not claim any independent right on the
basis of adverse possession or otherwise. We have noticed hereinbefore that the writ
application filed by the respondents herein directing the Government of Tamil Nadu to
issue a notification denotifying the area as Slum area was allowed by the learned Single
Judge. The said finding of the learned Single Judge was not overturned. The Division
Bench, while upholding the title of the respondents in relation to the said land, was of the
opinion that the learned Single Judge was not correct in directing handing over of
possession of the suit properties in favour of the respondents, although the appellant and
persons similarly situated were in possession thereof. In the aforementioned premise, it
was not necessary for the respondents to file a suit for a declaration of their title.
Appellant had preferred the said appeal. The decision of the Division Bench was rendered
in presence of the appellant. The judgment of the Division Bench of the High Court
operates as res judicata. The finding in regard to the title of the respondents had attained
finality.
21. We cannot accept the submission of Mr. Dayan Krishnan that it was obligatory on the
part of the respondent to file a suit for declaration of their title also. As the title of the
respondents in the suit property had already been adjudicated upon, a suit for recovery of
possession on the basis of the said title attracted Article 65 of the Schedule appended to
the Limitation Act, 1963. In terms of the said provision, it was for the appellant to show
that she and her predecessor had been in possession of the suit property on the basis of
the hostile title and as a result whereof the title of the plaintiff-respondent extinguished.
22. Claim by adverse possession has two elements : (1) the possession of the defendant
should become adverse to the plaintiff; and (2) the defendant must continue to remain in
possession for a period of 12 years thereafter. Animus possidendi as is well known is a
requisite ingredient of adverse possession. It is now a well settled principle of law that
mere possession of the land would not ripen into possessory title for the said purpose.
Possessor must have animus possidendi and hold the land adverse to the title of the true
owner. For the said purpose, not only animus possidendi must be shown to exist, but the
same must be shown to exist at the commencement of the possession. He must continue
in said capacity for the period prescribed under the Limitation Act. Mere long possession,
it is trite, for a period of more than 12 years without anything more do not ripen into a
title.
23
. In Saroop Singh v. Banto and Ors. [(2005) 8 SCC 330], in which one of us was a
member, this Court held : 2005 AIR SCW 5314, (Paras 27 and 28)
"29. In terms of Article 65 the starting point of limitation does not commence from the
date when the right of ownership arises to the plaintiff but commences from the date the
defendant's possession becomes adverse. (See Vasantiben Prahladji Nayak v. Somnath
Muljibhai Nayak). 2004 AIR SCW 1704
30. "Animus possidendi is one of the ingredients of adverse possession. Unless the person
possessing the land has a requisite animus the period for prescription does not commence.
As in the instant case, the
@page-SC351
appellant categorically states that his possession is not adverse as that of true owner, the
logical corollary is that he did not have the requisite animus. (See Mohd. Mohd. Ali v.
Jagadish Kalita, Para 21.)
24
. The said statement of law was reiterated in T. Anjanappa and Ors. v. Somalingappa and
Anr. [2006) (8) Scale 624 : (2006) 7 SCC 570], stating : 2006 AIR SCW 4368
"It is well-recognised proposition in law that mere possession however long does not
necessarily mean that it is adverse to the true owner. Adverse possession really means the
hostile possession which is expressly or impliedly in denial of title of the true owner and
in order to constitute adverse possession the possession proved must be adequate in
continuity, in publicity and in extent so as to show that it is adverse to the true owner. The
classical requirements of acquisition of title by adverse possession are that such
possession in denial of the true owner's title must be peaceful, open and continuous. The
possession must be open and hostile enough to be capable of being known by the parties
interested in the property, though it is not necessary that there should be evidence of the
adverse possessor actually informing the real owner of the former's hostile action."
25
. Yet recently, in P. T. Munichikkanna Reddy and Ors. v. Revamma and Ors. [(2007) 6
SCC 59], this Court noticed the recent development of law in other jurisdiction in the
context of property as a human right to opine: 2007 AIR SCW 2897
"Therefore, it will have to be kept in mind the courts around the world are taking an
unkind view towards statutes of limitation overriding property rights."
26
. We may also notice that this Court in M. Durai v. Muthu and Ors. [(2007) 3 SCC 114],
noticed the changes brought about by Limitation Act, 1963, vis-a-vis, old Limitation Act,
holding : 2007 AIR SCW 6248
"The change in the position in law as regards the burden of proof as was obtaining in the
Limitation Act, 1908 vis-a-vis the Limitation Act, 1963 is evident. Whereas in terms of
Articles 142 and 144 of the old Limitation Act, the plaintiff was bound to prove his title
as also possession within twelve years preceding the date of institution of the suit under
the Limitation Act, 1963, once the plaintiff proves his title, the burden shifts to the
defendant to establish that he has perfected his title by adverse possession."
27. Appellant herein, it will bear repetition to state, did not raise any claim on adverse
possession prior to the filing of the aforementioned writ appeal. She and her husband has
been claiming title only through or under the Board. No independent title was claimed.
Respondents, on the one hand and the Corporation of Madras, Slum Board and the
Government of Tamil Nadu on the other were litigating since 1973. They accepted the
title of the respondents. Respondents also reimbursed the Board in regard to the
expenditure incurred by them. In the aforementioned fact- situation, it is not possible to
hold as has been contended by Mr. Dayan Krishnan, that the Division Bench posed unto
itself a wrong question leading to a wrong answer or the appellant had acquired title by
adverse possession or otherwise.
28. For the views we have taken, there is no infirmity in the judgment of the High Court.
The appeal is dismissed. No costs.
Appeal dismissed.
AIR 2008 SUPREME COURT 351 "Veneet Agrawal v. Union of India"
(From : 2004 CLC 1262 (Bombay))
Coram : 2 ASHOK BHAN AND V. S. SIRPURKAR, JJ.
Civil Appeal No. 2565 with 7574 of 2005, D/- 31 -10 -2007.
Veneet Agrawal v. Union of India and Ors.
(A) Securities and Exchange Board of India Act (15 of 1992), S.31 - SEBI (Stock
Brokers and Sub-Brokers) Rules and Regulations (1992), Regn.1 - SECURITIES AND
EXCHANGE - CONSTITUTIONALITY OF AN ACT - Validity - Under S. 31, Rules
and Regulations required to be placed before each House of Parliament while for
specified period, in one or more Sessions - Rules and Regulations placed before both
Houses - Subsequently Houses adjourned sine die - Rules and Regulations need not be re-
laid in next Session in order to complete prescribed period - They deemed to lie in
succeeding Sessions till specified period is completed - Moreover, provisions of S. 31 not
mandatory.
Rules of Procedure and Conduct of Business in Lok Sabha, R.234.
As per Rule 234 of the Rules of
@page-SC352
Procedure and Conduct of Business in Lok Sabha, the rules were required to be placed
before both the Houses of Parliament for a specified period and if the House is adjourned
sine die and later prorogued, the procedure has to be completed in one or more sessions,
unless otherwise provided under the Constitution or the relevant Act. Section 31 clearly
provides that the requisite period of 30 days for which a rule or regulation framed under
the Act is required to be laid before the Houses of Parliament may be completed in one
session or in two or more successive sessions. If both the Houses agree to make any
modification or reject the said rule/regulation then the rule/regulation would be enforced
in the said modified form or would be annulled in accordance with the decision of the
Houses. Thus, where the statute provides that the rule framed thereunder should be laid
on the tables for a certain period which may be comprised in one session or two or more
sessions, it is not necessary for the rules to be formally re-laid in the next session in order
to complete the prescribed period. Section 31 permits the requisite period of 30 days in
one or more sessions. There was no necessity to re-lay the rules before the Parliament in
the next session as per parliamentary procedure. (Para 11)
This position has been further clarified by the Rajya Sabha Secretariat in its letter dated
9-10-2002 wherein the Secretariat has clarified that in the case of rules and regulations in
question under S. 31, no re-laying was necessary as the statute permitted the requisite
period of 30 days to be completed in one or more sessions and therefore, the
rules/regulations in question after having been initially laid are deemed to lie in the
succeeding sessions till the specified period is completed. Besides this the Ministry of
Parliamentary Affairs vide its letter dated 9-10-2002 further clarified that no
modification/rejection of the regulations and rules in question was done by either House.
The requirement of S. 31 of the SEBI Act has been met with, the rules and regulations in
question cannot be declared ultra vires on this ground. (Para 12)
Although in the present case the rules were laid before both the Houses as required under
S. 31, but even if it is assumed that the rules/regulations in question did not complete the
requisite period of 30 days, the provisions of S. 31 not being mandatory and merely
directory, as has been held by Supreme Court in the earlier cases, the rules/regulations
cannot be held to be ultra vires on the ground of non-completion of 30 days period after
laying of the rules before both the Houses of Parliament.
2003 AIR SCW 313, 2003 AIR SCW 6271.Rel. on. (Para 16)
The writ petitioner made the repeated attempts to get the rules/regulations invalidated.
This has been adversely commented upon by the High Court. Once the regulations are
declared to have been validly made then it is not open to the counsel for the appellant to
argue that the same was not examined from a particular angle and the Court should re-
examine it again. It is especially so, when the counsel who is appearing before Supreme
Court had appeared in the earlier cases as well. (Para 18)
(B) Constitution of India, Art.133 - APPEAL - CONSTITUTIONALITY OF AN ACT -
Appeal - Challenge as to, validity of Rules/Regulations - Repeated attempts made before
High Court - Rules and Regulations once declared to be validly made, counsel for
appellant cannot argue that same was not examined from particular angle and Court
should re-examine it again - Moreso, counsel had appeared in earlier cases as well.
(Para 18)
2003 AIR SCW 313 : AIR 2003 SC 858 : 2003 Lab IC 689 (Foll.) 13, 14
2003 AIR SCW 539 : AIR 2003 SC 1029 14
(2003) CWP No. 6920 of 2003, D/- 3-11-2003 (Delhi) 17
(2002) CWP No. 2876 of 2001, D/- 22-2-2002 (reported in 2004 (118) Comp Cas 758)
(Delhi) 17
(2002) CWP No. 2942 of 2003, D/- 18-9-2002 (Delhi) 17
2001 AIR SCW 628 : AIR 2001 SC 1010 : 2001 CLC 258 5
1995 AIR SCW 3800 : AIR 1996 SC 114 14
@page-SC353
AIR 1979 SC 1149 : 1979 Cri LJ 927 (Ref.) 13, 14

AIR 1972 SC 2427 (Ref.) 13
AIR 1966 SC 385 (Ref.) 13
Manohar Lal Sharma and Kuldip Singh, for Appellant; G. Vahanvati, SG., A. Sharan,
ASG., A. Y. Chitale, Ms. Sujeeta Srivastava, Mrs. Suchitra Atul Chitale, Samir Ali Khan,
Amit Anand Tiwary, B. V. Balaram Das, Ms. Maninder Acharya, Ms. Dev Dutt Kamath,
Ms. Amit Madhan, Ms. Rakesh Singh and Nikhilesh Ramachandran with them, for
Respondents.
Judgement
BHAN, J. :- This judgment shall dispose of Civil Appeal No. 2565 of 2005 directed
against the judgment of the High Court of Bombay in Writ Petition No. 1414 of 2004
dated 29.06.2006 and Civil Appeal No. 7574 of 2005 directed against the judgment of the
High Court of Uttaranchal at Nainital in Civil Misc. Writ Petition No. 606(M/B) of 2002
dated 17.10.2003. The point involved being the same, the appeals are disposed of by a
common order.
2. By the impugned judgments, the High Court of Bombay and Uttaranchal have upheld
the vires and constitutionality of SEBI (Stock Brokers and Sub Brokers) Rules and
Regulations, 1992 (for short the Rules and Regulations of 1992). The facts are taken
from Civil Appeal No. 2565 of 2005. Although in the writ petition several other points
were also taken but at the time of argument before the High Court, the learned counsel
appearing for the writ petitioners confined his submissions to the question of vires of the
rules and regulations only.
3. Principal challenge to the Rules and Regulations of 1992 is based on the contention
that the Rules and Regulations were not laid before each Houses of the Parliament as
mandated by Section 31 of the Securities and Exchange Board of India Act, 1992 (for
short the Securities and Exchange Act). It will therefore be essential to reproduce Section
31 of the said Act as the entire argument is placed on the requirement of the said Section.
Section 31 reads as under :
"Rules and regulations to be laid before Parliament.- Every rule and every regulation
made under this Act shall be laid, as soon as may be after it is made, before each House
of Parliament, while it is in session, for a total period of thirty days which may be
comprised in one session or in two or more successive sessions, and if, before the expiry
of the session immediately following the session or the successive sessions aforesaid,
both Houses agree in making any modification in the rule or regulation or both Houses
agree that the rule or regulation should not be made, the rule or regulation shall thereafter
have effect only in such modified form or be of no effect, as the case may be; so,
however, that any such modification or annulment shall be without prejudice to the
validity of anything previously done under that rule or regulation."
4. SEBI is a regulatory body which has been established under the SEBI Act with the
objective of protecting the interest of investors in the securities and of promoting the
development of and to regulate, the securities market and for matters connected therewith
or incidental thereto. Under Section 29 of the SEBI Act, the Central Government is
empowered to frame rules for carrying out the purposes of the Act. Under Section 30 of
the SEBI Act, the SEBI is empowered to frame regulations consistent with the SEBI Act
and the rules made thereunder to carry out the purposes of the Act. Section 31 of the
SEBI Act, however, provides that every rule and regulation made under the Act would be
required to be laid before each House of the Parliament, while it is in session, for a total
period of 30 days which may comprise in one session or two or more successive sessions.
It is further provided therein that if after such laying, both the houses agree that the
rules/regulations should not be made then the same would be of no effect. In case, if both
the Houses agree in making any modification in the said rules or regulations, then the
rules or regulations shall have effect only in such modified form. However, any such
modification or annulment shall be without prejudice to the validity of any act previously
done under that rule or regulation.
5
. Before proceeding further, it may be mentioned that under Regulation 10 of the SEBI
Act, 1992, the Registration fee is levied on the annual turnover of the stock brokers and
sub brokers. Levy of turnover fee as well as the vires of Regulation 10 was challenged in
different High Courts by filing writ petitions soon after the said regulation came into
force. In a transfer petition filed by the SEBI before this Court for consolidating the said
cases, this Court had transferred one such petition from the Bombay High Court to this
Court while staying the 2001 AIR SCW 628
@page-SC354
other cases pending before the various High Courts. After hearing the said case, this
Court upheld the vires of Regulation 10 of SEBI Regulation as well as the levy of
turnover fee. This Court while deciding the said case, had also taken into consideration
the Bhatt Committee report which had been submitted by an expert committee constituted
by SEBI to examine the issue of turnover fee. This is reported as 2001 (3) SCC 482, BSE
Brokers Forum, Bombay and others v. SEBI. On the basis of the judgment rendered by
this Court, all other similar writ petitions pending in the various High Courts were
disposed of. Having failed in their challenge to the levy of turnover fee, the brokers and
sub brokers have been repeatedly filing petitions on one or other grounds while their
actual grievance is the turnover fee imposed by the Regulation 10 which has been upheld
by this Court. In the writ petition from which the present appeal arises, similar attempt
has been made.
6. In the present case, rules and regulations in question were laid on the table of the Lok
Sabha on 27.11.1992 while on the table of the Rajya Sabha on 16.12.1992. The copies of
the proceedings in both the Houses showing the tabling of the said rules and regulations
in both the Houses have been annexed. Both the Houses were adjourned sine die on
23.12.1992 and later on prorogued. New session of both the Houses of Parliament started
on 22.2.1993. It is submitted on behalf of the appellant that the rules and regulations in
question are ultra vires on the ground that they were not laid before both the Houses for a
total period of 30 days, as required under Section 31.
7. It is submitted on behalf of the appellants that all the proceedings pending in both the
Houses lapsed after the adjournment of the House sine die and since the rules and
regulations were not re-laid either in the Lok Sabha or in the Rajya Sabha after the calling
of the new session, the procedure mandated under Section 31 of the SEBI Act was not
complied with. It is also submitted that, for these reasons the rules and regulations were
illegal and ultra vires of the SEBI Act as also the provision of the Constitution of India
and consequently all the actions, orders and directions issued by the respondent against
the petitioner under the said rules and regulations were illegal and liable to be quashed.
8. It is important to mention here that the laying of the rules/regulations framed under a
particular statute for a specific period which that particular statute may warrant is
governed by the Rules of Procedure and Conduct of Business in Lok Sabha given in
Parliamentary Procedure Volume 2, page 1107. The Rule 234 of the said Rules which is
relevant in the present case is reproduced hereunder :-
"Rule 234. Laying of Regulations, Rules etc. on table :
(1) Where a regulation, rule, sub rule, bye laws etc. framed in pursuance of the
Constitution or of Legislative functions delegated by parliament to a subordinate
Authority is laid before the House, the period specified in the Constitution or the relevant
Act for which it is required to be laid shall be completed before the House is adjourned
sine die and later prorogued unless otherwise provided in the constitution or the relevant
Act
(2) Where the specified period is not so completed, the regulation, rule, sub rule, bye law
etc. shall be re-laid in the succeeding session or sessions until the said period is
completed in one session."
9. From the perusal of the above mentioned rule, it is clear that Rule 234 (1) is applicable
in the facts and circumstances of the present case. Wherever the period required to be
completed under the statute under which a rule or regulation may have been framed has
to be completed in one session only, sub clause 2 of Rule 234 would not apply. In the
present case, the rules and regulations in question have been framed under Section 31 of
the SEBI Act. The said Section of the SEBI Act clearly provides that the requisite period
of 30 days for which a rule or regulation framed under the Act is required to be laid
before the Houses may be completed in one session or in two or more successive
sessions. It further provides that if both the Houses agree to make any modification or
reject the said rule/regulation then the rule/regulation would be enforced in the said
modified form or would be annulled in accordance with the decision of the Houses.
10. In addition to the above, Rule 234 of Rules of Procedure of Conduct of Business in
Lok Sabha has been further clarified in para 2.4 of the Book of Parliamentary Procedure
Volume 2, page 1701 where it has
@page-SC355
been clearly stated as under:-
"2.4 Where a statue provides that the Rule framed thereunder should be laid on the table
for a certain period which may be comprised in one session or two or more sessions, it is
not necessary for the Rules to be formally re-laid in the next session in order to complete
the prescribed period."
11. We do not find any substance in the submission made by the Counsel for the
appellant. Section 31 permits the requisite period of 30 days to be completed in one or
more sessions. As per Rule 234 of the Rules of Procedure and Conduct of Business in
Lok Sabha, the rules were required to be placed before both the Houses of Parliament for
a specified period and if the House is adjourned sine die and later prorogued, the
procedure has to be completed in one or more sessions, unless otherwise provided under
the Constitution or the relevant Act. In the present case, Section 31 specifically provides
that the Bill has to be placed before both the Houses for a period of thirty days which
may be comprised in one session or in two or more successive sessions. The regulation,
rule, sub-rule, bye law etc. have to be re-laid in the succeeding session or sessions until
the said period is completed in one session. Rule 234, as noted above, has been clarified
by para 2.4 of the Book of Parliamentary Procedure. Where the statute provides that the
rule framed thereunder should be laid on the table for a certain period which may be
comprised in one session or two or more sessions, it is not necessary for the rules to be
formerly re-laid in the next session in order to complete the prescribed period. Section 31
permits the requisite period of 30 days in one or more sessions. There was no necessity to
re-lay the rules before the Parliament in the next session as per parliamentary procedure.
12. This position has been further clarified by the Rajya Sabha Secretariat in its letter
dated 9.10.2002 wherein the Secretariat has clarified that in the case of rules and
regulations in question under Section 31 of the SEBI Act, no relaying was necessary as
the statute permitted the requisite period of 30 days to be completed in one or more
sessions and therefore, the rules/regulations in question after having been initially laid are
deemed to lie in the succeeding sessions till the specified period is completed. Besides
this the Ministry of Parliamentary Affairs vide its letter dated 9.10.2002 further clarified
that no modification/rejection of the regulations and rules in question was done by either
House. The requirement of Section 31 of the SEBI Act has been met with, the rules and
regulations in question cannot be declared ultra vires on this ground.
13
. This apart the issue relating to the laying down of rules/regulations on the table of the
Houses for the period provided under the statute under which they are so framed has been
dealt with by this Court in various cases. Some of these cases are Jan Mohammad Noor
Mohammad Bagban v. The State of Gujarat and Another, 1966 (1) SCR 505; M/s. Atlas
Cycle Industries Limited and Others v. The State of Haryana, 1979 (2) SCC 196; Hukum
Chand v. Union of India, 1972 (2) SCC 601 and Bank of India etc. etc. v. O. P. Swarnakar
and Others etc. etc., 2003 (2) SCC 721. In a recent judgment, this Court followed the
view taken in M/s. Atlas Cycle Industries Limited's case (supra) and Prohibition and
Excise Suptd., A.P. and Ors. v. Toddy Tappers Co-operative Society, Marredpally and
Others, 2003 (12) SCC 738. AIR 1966 SC 385
AIR 1979 SC 1149
AIR 1972 SC 2427
2003 AIR SCW 313
2003 AIR SCW 6271
14
. In all these cases, the issue relating to laying down and interpretation of the said
regulation was examined. It has been held in all these cases that the laying of the rule
before both the Houses of Parliament is merely a directory rule and not mandatory. In the
case of O. P. Swarnakar and Others (supra), the provision providing for laying the rules
before the Legislature was exactly similar to Section 31 of the SEBI Act. It was also held
by this Court that the said provision was directory and not mandatory. The non-
compliance with the laying of the rule before the Parliament was not a sufficient ground
to declare the rules/regulations framed under the statute as to be ultra vires. In Toddy
Tappers Cooperative Society's case (supra) Hon'ble Mr. Justice Sinha in his concurring
judgment following the decision in Atlas Cycle Industries Limited's case (supra) and
Quarry Owners Association v. State of Bihar, 2000 (8) SCC 655 and various other
judgments, distinguishing the judgment in Union of 2003 AIR SCW 313
2003 AIR SCW 6271, Para 31

AIR 1979 SC 1149
2000 AIR SCW 3015
2001 AIR SCW 2804
@page-SC356
India v. National Hydroelectric Power Corporation Limited, 2001 (6) SCC 307, (which
has been relied upon by counsel for the appellant before us as well) has held as under:-
"The said observations, thus, must be held to be confined to the fact of the matter
obtaining therein. In that case it was found as of fact that the rule had never been placed
before the Legislature and, thus, there was even no substantial compliance with the law.
The Bench, however, did not consider the effect of the directory nature of such a
provision, in the light of the decision of this Court in Atlas Cycle Industries (supra) and
Quarry Owners' Association (supra). The Court further did not notice the difference
between the expressions 'approval' and 'permission'. Section 16 of the Water Act,
construction whereof was in question did not use the expression 'prior approval'. The
word 'approval' indicates an Act which has already been made and is required to be
approved whereas in the case of 'permission', the situation would be different. This aspect
of the matter has been considered by this Court in High Court of Judicature for Rajasthan
v. P.P. Singh and Anr, 2003 (4) SCC 239 stating (SCC p. 255, para 40) : 2003 AIR
SCW 539, Para 39
"40. When an approval is required, an action holds good. Only if it is disapproved it loses
its force. Only when a permission is required, the decision does not become effective till
permission is obtained. (See U.P. Avas Evam Vikas Parishad and Anr. v. Friends Coop.
Housing Society Ltd. and Anr. [(1995) Supp (3) SCC 456], In the instant case both the
aforementioned requirements have been fulfilled." 1995 AIR SCW 3800
15. It was observed that provision was merely directory and not mandatory and even if
the rules were not laid before the House at all even then the non-compliance with the
laying down of the rules before the Parliament could not be a ground to declare the
rules/regulations framed under the statute as ultra vires.
16. Although in the present case the rules were laid before both the Houses as required
under Section 31, as discussed in the earlier paragraph of the judgment but even if it is
assumed that the rules/regulations in question did not complete the requisite period of 30
days, the provisions of Section 31 of the SEBI Act not being mandatory and merely
directory, as has been held by this Court in the aforementioned cases, the
rules/regulations cannot be held to be ultra vires on the ground of non-completion of 30
days period after laying of the rules before both the Houses of Parliament.
17. Respondents with their reply have placed on record the three judgments of Delhi
High Court in CWP No. 2942 of 2003 dated 18.9.2002, CWP No. 6920 of 2003 dated
3.11.2003 and CWP No. 2876 of 2001 dated 22.2.2002, wherein a challenge was raised to
the rules and regulations under challenge was rejected. Counsel for the appellant
appearing before us had also appeared before the Delhi High Court in the said writ
petition. In CWP No. 6920 of 2003, counsel who is appearing for the appellant in the
present case had appeared before the High Court of Delhi as well. This writ petition was
dismissed by the High Court by imposing cost of Rs.15,000/- by observing thus :-
"Once the Regulations are declared to have been validly made, then, it is not open to
argue that it was not examined from a particular angle and, therefore, the Court should
examine it again. It is not appropriate to ask the Court to presume that the Court while
examining the matter was not aware about the provisions contained in law and, more
particularly, when the Division Bench of this Court had examined the matter from the
same angle. It is in view of this, we dismiss this petition with costs which we quantify at
Rs. 15,000/- which shall be deposited with the Delhi Legal Aid Service Authority within
two weeks from today."
18. Although the writ petitioner in the present case is different but the repeated attempts
are being made to get the rules/regulations invalidated. This has been adversely
commented upon by the High Court of Delhi. Once the regulations are declared to have
been validly made then it is not open to the counsel for the appellant to argue that the
same was not examined from a particular angle and the court should re-examine it again.
It is especially so, when the counsel who is appearing before us had appeared in the
earlier cases as well.
19. For the reasons stated above, we do not find any merit in these appeals and the same
are dismissed with costs which are assessed at Rs. 20,000/- in each of the appeals.
Appeals dismissed.
@page-SC357
AIR 2008 SUPREME COURT 357 "Bharat Petroleum Corpn. Ltd. v. Great Eastern
Shipping Co. Ltd."
(From : Bombay)*
Coram : 2 TARUN CHATTERJEE AND D. K. JAIN, JJ.
-2007.
Bharat Petroleum Corpn. Ltd. v. Great Eastern Shipping Co. Ltd.
(A) Arbitration and Conciliation Act (26 of 1996), S.7 - ARBITRATION AND
CONCILIATION - AGREEMENT - Arbitration agreement - Expiry of extended period
of charter party - No further agreement could be signed between parties - However,
appellant continued to use vessel on hire with them under the time charter though it was
bound to re-deliver the same - Except for charter rate, there was no other dispute between
parties - They accepted stand of respondent sub silentio - Thus, continued to bind
themselves by other terms and conditions contained in Charter Party which obviously
included arbitration clause - Held, in circumstances, charter party did not get
extinguished, inter alia, for purpose of determination of disputes arising thereunder and
arbitration clause contained therein could be invoked. (Paras 19, 22, 23, 24)
(B) Contract Act (9 of 1872), S.8 - CONTRACT - AGREEMENT - Agreement in Sub
Silentio - Offerees silence in certain circumstances coupled with his conduct - Takes form
of positive act which may constitute acceptance - Agreement in Sub Silentio - Therefore,
terms of contract between the parties can be proved not only by their words but also by
their conduct. (Paras 19, 20)
AIR 1975 SC 32 16
Sudhir Chandra, Sr. Advocate, Parijat Sinha, S. C. Ghosh, Soumitra Ghose Chaudhuri,
Ms. Reshmi Rea Sinha and Snehasish Mukherjee with him, for Appellant; Shyam Divan,
Sr. Advocate, Mahesh Agarwal, Rishi Agrawala, E.C. Agrawala, Gaurav Goel, Amit
Sharma and Ms. Neha Aggarwal with him, for Respondent.
* Arbitration Petn. No. 331 of 2003, D/- 1-3-2005 (Bom).
Judgement
D. K. JAIN, J.: - Leave granted.
2. This appeal by Special Leave arises out of a judgment and order dated 1st March, 2005
rendered by the High Court of Judicature at Bombay, whereby the learned Single Judge
has set aside the order passed by the Arbitral Tribunal, holding that they did not have
jurisdiction to entertain and try the claim and counter claim made by the parties.
3. In order to appreciate the issue, requiring determination, a few relevant facts may be
stated.
The appellant M/s. Bharat Petroleum Corporation Limited is a Government of India
Undertaking, under the administrative control of the Ministry of Petroleum and Natural
Gas and is engaged in refining, distributing and selling of petroleum products all over the
country. The respondent M/s. Great Eastern Shipping Company Limited is engaged in the
business of shipping and allied activities and owns a fleet of tanker vessels for charter,
including the vessel known as JAG PRAJA.
4. An agreement, called the Time Charter Party in legal parlance, was entered into
between the appellant and the respondent on 6th May, 1997 for letting on hire vessels for
a period of two years from 22nd September, 1996 to 30th June, 1997 and from 1st July,
1997 to 30th June, 1998, on the terms and conditions set out in the said agreement.
However, before the Charter Party was to come to an end, on 29th June, 1998, the Indian
Oil Corporation Limited (for short IOC), acting as agent of the appellant, issued a fax to
various ship owners, including the respondent herein, requesting them to extend the
validity of the Charter Party Agreement dated 6th May, 1997 beyond 30th June, 1998 for
a period of one month from 1st July, 1998 with option for two further extensions of 15
days each. The respondent agreed to the said proposal. Accordingly, on 29th June, 1998
an addendum was signed between the parties whereby the validity period of Charter Party
was extended for one month with an option for two further extensions for a period of 15
days each. The terms and conditions; exceptions and exemptions contained in the Charter
Party dated 6th May, 1997 remained unaltered. The parties are ad idem that the Charter
Party dated 6th May, 1997 was extended till 31st August, 1998.
5. It appears that since Charter Party dated 6th May, 1997 was coming to an end on 31st
August, 1998, the Oil Companies
@page-SC358
sought permission of the Oil Co-ordination Committee, a wing of the Ministry of
Petroleum and Natural Gas for further extension of the Charter Party. However, the Oil
Coordination Committee, by their fax message dated 26th August, 1998, declined the
request of the Oil Companies, including the appellant, for further extension of Charter
Party beyond 31st August, 1998. The said fax message was an internal communication
between the Oil Coordination Committee and the Oil Companies.
6. Thereafter, in September, 1998, the IOC for and on behalf of the Oil Industry, floated a
fresh tender for carriage of petroleum products along the Indian coast on time charter
basis for a period of one year commencing from 1st September, 1998 to 31st August,
1999, on the terms and conditions set out in the tender document. In response to the said
tender, the respondent and other vessel owners submitted their bids. It seems that being
aggrieved of the decision of the IOC to invite revised price bids after opening of the
sealed tenders, one of the bidders filed a writ petition in the Bombay High Court,
questioning the said decision. The appellant intervened in the said matter. The writ
petition was disposed of vide order dated 20th August, 1999. While disapproving in
principle, the action of the IOC in inviting fresh price bids after opening the bids, but
without recording final opinion on the merits of the issues raised in writ petition, the
Court disposed of the petition, inter alia, directing that (i) the charter hire rates should be
fixed by the Tender Evaluation Committee and (ii) as the tender was for the period ending
31st August, 1999 and the writ petition was being decided on 20th August, 1999, the IOC
will not be required to enter into a contract for the period from 1st September, 1998 to
31st August, 1999. It is not in dispute that the vessel JAG PRAJA, with which we are
concerned, continued to be chartered by the appellant till 31st August, 1999.
7. It appears that pending finalization of a new charter party for the period commencing
1st September, 1998, certain meetings took place between the Oil Companies and the
Ship Owners, including the respondent herein. On 12th October, 1998, the respondent
informed the IOC that if all its nine vessels, mentioned in the letter, are used at a fair and
reasonable rate for one year, from 1st September, 1998 to 31st August, 1999 for which
the tender had been floated, they were agreeable to apply the new agreed rates for use of
the said nine vessels from 1st July, 1998. On 31st October, 1998 the IOC faxed to the
respondent relevant portion of the message received by them from Oil Co-ordination
Committee, extending the period of usage of the existing coastal tanker fleet for the
month of October, 1998, at 80% charter hire rates, prevailing till 30th June, 1998, on
provisional basis, subject to adjustment of provisional charter hire with retrospective date
from 1st September, 1998 against the revised charter hire, to be finalised by the Oil
Industry in response to the tender floated by IOC on 1st September, 1998. Respondent's
consent was asked for. The respondent responded immediately vide their letter dated 5th
November, 1998, agreeing in principle that revised charter hire rates, as and when
finalized in response to tender floated by the IOC on 1st September, 1998, would be
applicable to the vessels which are selected under the tender, retrospectively from 1st
September, 1998. It was pointed out that the vessels which are not chartered under the
tender floated would be at a disadvantage. It was clearly stated that since the tender was
not finalized, the owners will be guided by the existing terms and conditions. Some other
objections, not relevant at this stage, were also indicated. As such, all said and done, Oil
Co-ordination Committee's proposal was not accepted. Nevertheless, some suggestions to
resolve the controversy were given.
8. Thus, the proposal by the Oil Co-ordination Committee was not accepted by the
respondent. In the alternative, it was suggested by the respondent that the charter period
be extended by six months on the existing terms and conditions at a mutually discussed
time charter rate. Admittedly, the vessels continued to be chartered by the appellant
beyond the date of this letter.
9. Thereafter, for almost two months, there was no communication between the parties. It
was only on 31st December, 1998 when the IOC issued a fax to the respondent, enclosing
draft letter regarding charter party agreement to be signed between the charterers and
owners (with minor modification, if necessary), requesting the respondent to sign as per
proposal by the 4th January, 1999, on which date the respondent expressed its
disinclination, stating in reply fax that as per usual practice, pending
@page-SC359
finalization of new charter, the existing terms and conditions of the charter party continue
to apply. Finally, it was suggested that:
"We, therefore, suggest that we sign an agreement with you for the period from 1st
September, 1998 until the matter is finally decided by you under the tender on the
existing terms and conditions with the charter hire being provisionally paid on an ad hoc
basis at 90% of the rate which was prevailing under the existing Charter Party.
Kindly confirm in order to draw up a suitable agreement accordingly."
[Emphasis supplied]
10. Vide letter of even date, i.e. 4th January, 1999, the appellant suggested to the
respondent that in the absence of a formal charter party with effect from 1st September,
1998, a provisional arrangement for a period of four months effective from 1st
September, 1998 with an option for extension of one month may be mutually agreed to
by payment at the rate of 80% on charter hire prevailing on 30th June, 1998, as ad hoc
hire. The respondent was asked to convey their acceptance to the said suggestion. It
appears that the respondent did not respond to the said suggestion by the appellant but all
the same its vessel continued to be on charter with the appellant.
11. The writ petition was ultimately disposed of on 20th August, 1999. It was only after a
gap of about seven months that on 15th March, 2000, the IOC informed the respondent
about the evaluation of the tenders in terms of the order passed by the High Court.
Charter hire rate worked out by the Committee for vessel JAG PRAJA for the period
from 1st September, 1998 to 31st August, 1999 was communicated to the respondent. In
response, the respondent, while expressing their disappointment with the rate but
purportedly, in view of their long business relations with the appellant conveyed their
acceptance of the proposed rate in respect of each of the vessels named in separate letters,
all dated 1st May, 2000, with the expectation that their outstanding balance of the hire
shall be paid to them at the earliest. However, the respondent did not convey their
acceptance of the charter hire rates for two vessels, viz. JAG PRAJA and JAG PRAYOG.
It appears that the respondent wrote various letters to the appellant for upward revision of
the rate in respect of these two vessels but seemingly their request was ultimately turned
down on 2nd November, 2000, on receipt of which, the respondent slammed a legal
notice dated 6th November, 2000, on the appellant, inter alia, requesting them to revise
the rates on the basis of mutual discussions and settle the accounts. Having failed to
receive any reply to the said notice, by another legal notice dated 1st December, 2000, the
respondent called upon the appellant to pay balance amount of Rs.43,947,517/- to them
as charter hire in respect of vessel JAG PRAJA for the period from 1st September, 1998
to 31st August, 1999 within 15 days from date of receipt of the said notice or treat it as an
arbitration notice. The name of the arbitrator was also communicated to the appellant. It
seems that pursuant to the said notice and some subsequent correspondence exchanged
between the parties, an Arbitral Tribunal was constituted.
12. Claims and counter claims were filed before the Arbitral Tribunal. On the basis of the
pleadings of the parties, the Arbitral Tribunal framed as many as eight issues. However,
arguments were heard only on the following three issues:
Issue No.1:- Whether the Hon'ble Arbitral Tribunal has no jurisdiction to adjudicate upon
the dispute between the Claimant and the Respondent for the period September, 1998 to
August, 1999 in respect of the vessel Jag Praja for the reasons stated in para 1 of the
written statement?
Issue No.2:- Whether there is any common practice that if the vessel is not re-delivered at
the end of the period mentioned in the time charter the vessel would be governed by the
charter party under which originally it was chartered?
Issue No.5:- Whether the time charter party dated 6th May, 1997 came to an end by efflux
of time on 30th August, 1998?
13. Vide order dated 12th May, 2003 the Arbitral Tribunal came to the conclusion that the
appellant having invoked the arbitration clause contained in charter party agreement
dated 6th May, 1997, which was valid up to 31st August, 1998 and as the dispute between
the parties related to the period subsequent to 31st August, 1998, they had no jurisdiction
to decide the Reference. The learned Tribunal found issue No.2 in the negative and issue
No.5 in the affirmative. According to the Tribunal on and after 1st September, 1998,
charter party
@page-SC360
agreement dated 6th May, 1997 was superseded by a fresh agreement and a term of the
agreement was that the charter hire rate would be determined by the Oil Co-ordination
Committee of the IOC. In nutshell, the Tribunal was of the view that with the
performance, original charter party dated 6th May, 1997 got extinguished.
14. The respondent challenged the said Award before the High Court. By the impugned
order, the learned Single Judge has set aside the said Award, inter alia, holding that
Arbitral Tribunal has the jurisdiction to adjudicate the disputes between the parties as the
vessel continued to be hired by the appellant for the period subsequent to 31st August,
1998 on the same terms and conditions, as were contained in the charter party dated 6th
May, 1997, only subject to the revision or modification of the rate of hire to be
determined by the Oil Co-ordination Committee. The learned Judge also felt that the
Tribunal had erred in totally excluding from its consideration clauses 23 and 4.1 of the
charter party dated 6th May, 1997, whereunder the charter party was to come to an end on
re-delivery of the vessel. Admittedly, after 31st August, 1998, re-delivery of vessel did
not take place and, therefore, in terms of clause 23, the vessel continued to be hired on
the same terms and conditions except the term as to the hire charges, on which there was
disagreement between the parties. It was thus, held that the charter party dated 6th May,
1997 did not come to an end by efflux of time and it was extended by the parties on the
same terms and conditions except the rate of hire. Correctness of this order of the High
Court is questioned in this appeal.
15. Mr. Sudhir Chandra, learned senior counsel appearing on behalf of the appellant has
assailed the impugned order on the sole ground that the Charter Party dated 6th May,
1997 having come to an end by efflux of time on 31st August, 1998, the arbitration clause
contained in it also perished and, therefore, in the absence of a fresh arbitration
agreement, claim of the respondent relating to the period 1st September, 1998 to 31st
August, 1999 could not be referred to arbitration by invoking arbitration clause in Charter
Party dated 6th May, 1997. Laying emphasis on the fax message dated 26th August, 1998
addressed by the Oil Co-ordination Committee to the oil companies, including the
appellant, inter alia, informing them that no further extension of the Current Charter Hire
Rate will be allowed, learned counsel submitted that the said message made it clear to all
concerned that Charter Party dated 6th May, 1997 would not be extended under any
circumstance.
16
. Mr. Shyam Divan, learned senior counsel appearing on behalf of the respondent, on the
other hand, submitted that notwithstanding the fact that the period fixed originally under
the Charter Party or under the Addendum dated 29th June, 1998 had come to an end, the
subsequent conduct of the parties goes to show that charter of the vessel by the appellant
beyond 31st August, 1998 continued to be governed by the terms and conditions
stipulated in charter party dated 6th May, 1997 and, therefore, an arbitration agreement
did exist between the parties. Learned counsel argued that even otherwise till the vessel
was not re-delivered in terms of Clauses 4 and 23 of Charter Party dated 6th May, 1997,
the said agreement could not come to an end. It was pointed out that all the obligations of
the owners as well as of the charterers during the period the vessel was in use continued
to be discharged under the Charter Party dated 6th May, 1997 even after the expiry of the
period of the Charter Party. In support of the proposition that the concurrence of a party
can be gathered from his conduct, like continued user of the vessel in the present case,
without any objection to respondents letter dated 4th January, 1999, reliance is placed on
a decision of this Court in The Godhra Electricity Co. Ltd. and Anr. v. The State of
Gujarat and Anr.1 It was also submitted that the view taken by the High Court being a
plausible view, interference in exercise of extra-ordinary jurisdiction under Article 136 of
the Constitution is unwarranted. AIR 1975 SC 32
1 (1975) 1 SCC 199.

17. Thus, the short question for determination is whether on the expiry of the extended
period of charter hire on 31st August, 1998, Charter Party dated 6th May, 1997 came to
an end and the arbitration agreement between the parties perished with it?
18. Before we proceed to examine the rival stands, we may note, at the outset, that neither
the Arbitral Tribunal nor the High Court have gone into the question whether the claim
made by the respondent would
@page-SC361
otherwise fall within the ambit of the arbitration clause in the Charter Party or not. What
is in dispute is whether the arbitration agreement between the parties had got
extinguished after 31st August, 1998, i.e. the date of expiry of the extended period of the
Charter Party. Therefore, we refrain from expressing any opinion on the scope and ambit
of the arbitration clause though, prima facie, it appears to be quite widely worded.
19. It is, no doubt, true that the general rule is that an offer is not accepted by mere
silence on the part of the offeree, yet it does not mean that an acceptance always has to be
given in so many words. Under certain circumstances, offerees silence, coupled with his
conduct, which takes the form of a positive act, may constitute an acceptance - an
agreement sub silentio. Therefore, the terms of a contract between the parties can be
proved not only by their words but also by their conduct.
20. In our view, the principle of sub silentio is clearly attracted in the present case. As
noted above, after the extended period of Charter Party dated 6th May, 1997 had come to
an end on 31st August, 1998 and the bids received pursuant to fresh invitation were
pending finalization, vide their letter dated 12th October, 1998, the respondent had
informed the appellant that they were agreeable to apply new rates for use of the vessel
from 1st July, 1998 provided all the nine vessels are used. However, on 31st October,
1998, the appellant faxed IOC's message informing them of the extension of the existing
coastal tanker fleet for the month of October, 1998 at reduced rates, viz. 80% of the
Charter Party rates prevailing till 30th August, 1998. On receipt of the said letter, the
respondent vide their letter dated 5th November, 1998, protested against the revision of
the rates for the vessel not being considered under the new bid and stated in unequivocal
terms that it was not possible for them to accept the proposal of the Oil Co-ordination
Committee, communicated to them vide letter dated 12th October, 1998. Yet again while
responding to appellants fax dated 31st December, 1998, whereby the respondent was
required to sign a provisional charter party by 4th January, 1999, vide their letter dated
4th January, 1999, the respondent, pointed out to the appellant that usual practice is that
pending finalization of the new Charter, the existing terms and conditions of the Charter
Party continue to apply and, therefore, they were willing to sign the agreement as
contemplated by the appellant based on the existing terms and conditions. It was
suggested that an agreement may be signed between them for the period from 1st
September, 1998 until the matter was finally decided by the appellant under the tender, on
the existing terms and conditions with the charter hire being provisionally paid on ad hoc
basis at 90% of the rate which was prevailing under the existing Charter Party. As noted
hereinabove, there was no response by the appellant to respondent's letter dated 4th
January, 1999 though it appears that vide their letter of even date, the appellant did
suggest to the respondent that as a token of formal agreement the said letter may be
jointly signed by the charterers and the vessel owners. Admittedly, no such agreement
was signed between the parties. Indubitably, there was no further exchange of
correspondence between the parties during the year. Nevertheless, the appellant continued
to use the vessel on hire with them under the time charter dated 6th May, 1997. The
conduct of the parties, as evidenced in the said correspondence and, in particular
appellant's silence on respondent's letters dated 5th November, 1998 and 4th January,
1999, coupled with the fact that they continued to use the vessel, manifestly goes to show
that except for the charter rate, there was no other dispute between the parties. They
accepted the stand of the respondent sub silentio and thus, continued to bind themselves
by other terms and conditions contained in the Charter Party dated 6th May, 1997, which
obviously included the arbitration clause.
21. We may examine the issue from another angle, based on respondents stand that
charter party dated 6th May, 1997 continues to be in vogue till the chartered vessel is re-
delivered. In this context, it would be appropriate to refer to Clauses 4 and 23 of the
Charter Party dated 6th May, 1997. These are in the following terms:
4. Delivery and Redelivery
4.1 The vessel shall continue to be on charter to charterers in direct continuation from
2348 hrs. 22.09.1996 to 30.06.1998. The vessel shall be re-delivered by charterers to
owners on dropping last outward pilot at any port on west coast of India at charterers
option. Charterers to give owners 15
@page-SC362
days notice to probable port of re-delivery.
4.2 Charterers to load last three cargoes clean and re-deliver the vessel in clean condition.
23. Final Voyage
Should the vessel be on her voyage towards the port of redelivery at the time of payment
of hire is due, payment of hire shall be made for such length of time as Owners and
Charterers may agree upon as being estimated time necessary to complete the voyage,
less any disbursements made or expected to be made or expenses incurred or expected to
be incurred by Charterers for owners account and less the estimated amount of bunker
fuel remaining at the termination of the voyage and when the vessel is redelivered any
overpayment shall be refunded by the owners or underpayment paid by Charterers.
Notwithstanding the provisions of clause 4 hereof should the vessel be upon voyage at
the expiry of the period of this charter, Charterers shall have the use of vessel at the same
rate and conditions for such extended time as may be necessary for the completion of the
round voyage on which she is engaged and her return to a port of redelivery as provided
by the Charter."
22. On a conjoint reading of the said clauses, it is plain that the appellant was under an
obligation to re-deliver the vessel as per the procedure contemplated in the afore-noted
clauses. Indisputably, the vessel in question had not been re-delivered at least during the
relevant period and the appellant continued to use the vessel beyond 31st August, 1998.
Having failed to re-deliver the vessel in terms of Clause 4.1 of the Charter Party, the
appellant cannot plead that the Charter Party had been fully worked out. It is clear from
the pleadings and issue No.2, framed by the Arbitral Tribunal, that it was respondent's
consistent stand that since the hired vessel had not been re-delivered at the end of the
time charter party, the vessel would be governed by the terms and conditions in the
Charter Party dated 6th May, 1997. However, the Arbitral Tribunal answered the said
issue against the respondent. It appears to us that even the question in regard to the effect
and consequences of non-delivery of the vessel in terms of the Clause 4.1 and 23 would
by itself be a dispute arising under the said Charter Party. With respect, the learned
Arbitral Tribunal overlooked this aspect of the matter.
23. We are, therefore, of the opinion that though performance of the Charter Party
agreement dated 6th May, 1997 may have come to an end on 31st August, 1998 but it was
still in existence for some purposes, viz. the effect of vessels non re-delivery as per the
prescribed mechanism and its continued use beyond the stipulated time and, thus, the
arbitration clause in the said Charter Party operated in respect of these and other allied
purposes. Therefore, the factual scenario in the instant case leads to an inescapable
conclusion that notwithstanding the expiry of the period fixed in the time charter party
dated 6th May, 1997, the said charter party did not get extinguished, inter alia, for the
purpose of determination of the disputes arising thereunder and the arbitration clause
contained therein could be invoked by the respondent.
24. In view of the foregoing discussion, we do not find any infirmity in the view taken by
the High Court that Charter Party dated 6th May, 1997 had not come to an end by efflux
of time and it got extended by the conduct of the parties, warranting interference.
25. Having come to the conclusion that an arbitration agreement existed between the
parties, the question which remains to be considered is whether the disputes between the
parties should be referred to the same Arbitral Tribunal which had come to the conclusion
that in the absence of any arbitration agreement it did not have jurisdiction to entertain
and try the claims and counter claims. We feel that it would be proper and expedient to
constitute a fresh Arbitral Tribunal. Accordingly, we constitute an Arbitral Tribunal
consisting of Justice M. Jagannadha Rao (Presiding Arbitrator), Justice D.P. Wadhwa and
Justice S.N. Variava, former Judges of this Court to adjudicate upon the claim/counter
claim by the parties, subject to their consent and such terms and conditions as they may
deem fit and proper. It goes without saying that the learned Tribunal shall deal with the
matter uninfluenced by any observations in this order on the respective stands of the
parties.
26. Resultantly, the appeal being devoid of any merit is liable to be dismissed, which we
do, leaving the parties to bear their own costs.
27. The Registry is directed to
@page-SC363
communicate this order to the learned Members of the Arbitral Tribunal to enable them to
enter upon the Reference and decide the matter as expeditiously as practicable.
Appeal dismissed.
AIR 2008 SUPREME COURT 363 "C. Natarajan v. Ashim Bai"
(From : Madras)
-2007.
C. Natarajan v. Ashim Bai and Anr.
(A) Civil P.C. (5 of 1908), O.7, R.11(d) - Limitation Act (36 of 1963), Art.58, Art.65 -
PLAINT - LIMITATION - DECLARATION OF TITLE - SALE DEED - Rejection of
plaint - Application for - Maintainability - Suit for declaration of title, possession and
consequential injunction based on sale deed - Suit filed on alleged trespass by defendants
- Defendants disputing boundary description of property in sale deed and suit property -
Plea that suit was barred by limitation raised - Dispute regarding boundaries of suit
property - Is question of fact to be considered during trial - Limitation would not
commence unless there has been clear and unequivocal threat to right claimed by plaintiff
- Application for rejection of plaint on ground that suit was barred by limitation in view
of Art. 58 - Not maintainable.
Cri. (PD) No. 1143 of 2006, D/- 10-10-2006 (Mad), Reversed.
(2005) 7 SCC 5101, (2004) 1 SCC 271, Relied on. (Paras 7, 9, 13, 18)
(B) Limitation Act (36 of 1963), Art.64, Art.65 - Limitation Act (9 of 1908), Art.142,
Art.144 (since repealed) - LIMITATION - POSSESSION - Suit for possession - Law of
limitation relating to suit for possession has undergone a drastic change - In terms of Arts.
142 and 144 of the Limitation Act, 1908, it was obligatory on part of plaintiff to aver and
plead his title over property and possession of same for more than 12 years - In terms of
Arts. 64 and 65 of Limitation Act, 1963, burden would be on defendant to prove that he
has acquired title by adverse possession.
2007 AIR SCW 1120, (2004) 1 SCC 271, Rel. on. (Para 15)
2007 AIR SCW 3850 : AIR 2007 SC 2191 16
2007 AIR SCW 6166 16
(2007) 6 SCC 100 16
(2006) 5 SCC 658 11
2005 AIR SCW 3346 : AIR 2005 SC 2897 12
2005 (4) CTC 489 : (2005) 7 SCC 510 (Rel. on) (Pt. B) 4, 7, 10, 12
2004 AIR SCW 799 : AIR 2004 SC 1801 10, 12
(2004) 1 SCC 271 (Rel. on) 16
AIR 1999 Raj 102 12
AIR 1996 Cal 253 12
AIR 1995 AP 43 12
AIR 1988 Cal 155 12
AIR 1987 Del 165 12
AIR 1985 Cal 193 12
(1980) 1 Andh LT 48812
AIR 1964 SC 1254 14, 17
AIR 1940 PC 202 17
K. K. Mani, R. Thiagarajan, C.K.R. Levin Sekar, Mayur R. Shah, for Appellant; K. S.
Mahadevan, Rajesh Kumar, S. Krishna Kumar, for Respondents.
Judgement
Appellant herein filed a suit against the respondents claiming, inter alia, for the following
reliefs :
"(a) For declaration of plaintiffs title to the suit property;
(b) For consequential injunction, restraining the defendants, their men, agents, servants,
etc. from in any manner interfering with the plaintiffs peaceful possession and enjoyment
of the suit property.
(c) Alternatively, if for any reason this Honourable Court comes to a conclusion that the
plaintiff is out of possession, for recovery of vacant possession of the suit property;
(d) Directing the defendant to pay the cost of this suit."
2. The said suit was filed in the year 2001. Cause of action of the said suit was said to
have arisen in 1994 when the defendants allegedly trespassed over the suit property.
Respondent on or about 8.8.2001 filed an application under Order VII, Rule 11(d) of the
Code of Civil Procedure praying
@page-SC364
for rejection of the plaint on the premise that the suit was barred by limitation, inter alia,
stating :
"2. I beg to submit that the Respondent/Plaintiff in the plaint paragraph 4 with respect to
the question of limitation has averred that he had the knowledge of the mistake with
regard to the boundaries in the sale deed only on 2.11.1998 for the purpose of satisfying
the court to admit the plaint.
3. I beg to submit that the averments are made knowing to be false. The following
admitted facts would clearly establish the same.
(a) The plaintiff admits in paragraph 3 (3 and 3) that he had the defective title on
24.11.1974. He further contended that mistake was repeated again on 14.9.1979. Such
mistakes even after 2 decades has not been rectified by any instrument. The plaintiff lost
his right long before to rectify the alleged mistake. Now, he was misused and abused this
Honble Court and filed the suit after the period of limitation.
(b) The Respondent/Plaintiff filed the suit describing the suit property in accordance to
his sale deed dated 14.9.1979 before the District Munsif of Tambaram in OS No.501 of
1994 on 28.3.1994. The said suit was filed for the relief of permanent injunction based on
the sale deed and possession of the sale property alleging that he was in possession of the
sale property. We have filed an application in IA No.805 of 1994 on 8.4.1994 to vacate
the interim injunction granted in IA No.604 of 1994 filed by the Respondent/Plaintiff. We
have clearly pointed out that the main issue was the identification of the property. Hence
the issue was decided in the interim application by the learned district Munsif, Tambaram
on 27.6.1994. The learned District Munsif, Tambaram gave a clear findings that the
Respondent/Plaintiff has to identify the property.
(c) The Respondent plaintiff had clear knowledge of the mistake with regard to the
boundaries not only on 8.4.1994 but also on 27.6.1994.
(d) Therefore, the suit reliefs are barred by limitation."
3. In the counter affidavit filed on behalf of the petitioner, it was stated :
"This respondent further submits the points for rejection of the plaint are untenable.
This respondent never admits that he had defective title in any of the paragraphs much
less in para 3 of the plaint. It is stated that the description with regard to boundaries is
only a mistake.
This respondent submits that Order VII, Rule 11(d) is not applicable to the facts of this
case. This suit is filed for declaration and for permanent injunction, alternatively for
recovery of possession. The suit is filed within 12 years. Moreover the suit for declaration
and injunction is also been filed within 3 years from the date of judgment passed in O.S.
No.501/1997 and O.S. No.502/1997 on the file of District Munsif Judicial Magistrate
Alandur. Hence, this suit is not barred by any law."
4. The learned Principal Subordinate Judge, Chengalpet, by reason of its judgment and
order dated 31.3.2006 rejected the said application of the respondent, opining:
"The suit property as shown in the schedule to OS No.502 of 2001 is found to be same as
described in the sale deed dated 14/9/1979 in favour of the plaintiff and its patent
documents of title. Now the plaintiff has described the suit property in the schedule to the
present plaint as per present lis on the ground on the averments that the boundaries of the
property purchased by him under the sale deed dated 14.9.1979 were wrongly mentioned
for a larger extent, as the mistake crept in patent title deed dated 13.3.1964 and that the
mistake come to his knowledge only on 2.11.1998. As held by the Supreme Court in
Popet and Kotecha property v..S.B.I. Staff Association reported in 15(4) CTC 489
averments in the plaint alone would be looked into while considering an application for
rejection of plaint u/O. 7, Rule 11, CPC and that the plea raised in the written statement
are irrelevant at such stage. In the present case the plea of the plaintiff that he came to
know about the mistake regarding the boundary description in the sale dated 14.9.1979
only on whether he had knowledge earlier is question of fact to be considered during the
trial in the suit. As such the plaint on .. is a mixed question of fact and law to be
considered during the trial by casting the issue suitably. Hence the present petition for
rejecting the plaint is liable to be dismissed. The point is answered accordingly."
5. Respondent preferred a civil revision petition thereagainst. By reason of the
@page-SC365
impugned order, a Division Bench of the High Court reversed the said judgment of the
Trial Court opining that the period of limitation, as per Article 58 of the Limitation Act,
expired in 1997 itself, stating :
"A perusal of the typed set of papers would show that the present suit has been filed by
the respondent/plaintiff for the relief of declaration of title of the suit property and
consequently injunction and in the alternative for recovery of possession. Article 58 of
the Limitation Act provides for three years as the limitation period to initiate proceedings
from the date of cause of action, whereas Article 65 of the Act prescribes for twelve years
for a suit filed for possession of immovable property or any interest therein based on title.
The earlier suit filed by the petitioners in OS No.502 of 1997 for permanent injunction
has been decreed as against the respondent herein and it is only the revision petitioners
are in continuous possession. The respondent filed the present suit mainly for declaring
his title to the suit property. Thus, only Article 58 of the Limitation Act only applicable
and not Article 65 of the Act. Admittedly, the suit is filed beyond the period of 3 years as
contended by the learned counsel for the petitioners and, therefore, the plaint itself is
liable to be rejected."
6. Order VII, Rule 11(d) of the Code of Civil Procedure reads as under :
"11.Rejection of plaint.- The plaint shall be rejected in the following cases :
(a) to (c) ...
(d) where the suit appears from the statement in the plaint to be barred by any law;
(e) to (f) ..."
7. An application for rejection of the plaint can be filed if the allegations made in the
plaint even if given face value and taken to be correct in their entirety appear to be barred
by any law. The question as to whether a suit is barred by limitation or not would,
therefore, depend upon the facts and circumstances of each case. For the said purpose,
only the averments made in the plaint are relevant. At this stage, the court would not be
entitled to consider the case of the defence. {See Popat and Kotecha Property v. State
Bank of India Staff Association [(2005) 7 SCC 510]}.
8. Applicability of one or the other provision of the Limitation Act per se cannot be
decisive for the purpose of determining the question as to whether the suit is barred under
one or the other article contained in the Schedule appended to the Limitation Act.
9. The question which was raised before the learned Trial Judge was different from the
question raised before the High Court. Before the learned Trial Judge, as noticed
hereinbefore, the provisions of the Limitation Act were brought in with reference to the
identification of the property. It was not contended that the suit was barred by limitation
in terms of Article 58 of the Limitation Act, 1963. The High Court, therefore, in our
opinion, ex facie committed an error in arriving on the aforementioned finding. The scope
of applicability of the Limitation Act vis-a-vis Order VII, Rule 11 of the Code of Civil
Procedure has been considered in some recent decisions of this Court to which we may
advert to.
10. In Popat and Kotecha Property v. State Bank of India Staff Association [(2005) 7 SCC
510], this Court, inter alia, opined:
"Rule 11 of Order VII lays down an independent remedy made available to the defendant
to challenge the maintainability of the suit itself, irrespective of his right to contest the
same on merits. The law ostensibly does not contemplate at any stage when the
objections can be raised, and also does not say in express terms about the filing of a
written statement. Instead, the word "shall" is used clearly implying thereby that it casts a
duty on the court to perform its obligations in rejecting the plaint when the same is hit by
any of the infirmities provided in the four clauses of Rule 11, even without intervention
of the defendant. In any event, rejection of the plaint under Rule 11 does not preclude the
plaintiffs from presenting a fresh plaint in terms of Rule 13."
It was further opined :
"When the averments in the plaint are considered in the background of the principles set
out in Sopan Sukhdeo case the inevitable conclusion is that the Division Bench was not
right in holding that Order VII, Rule 11, CPC was applicable to the facts of the case.
Diverse claims were made and the Division Bench was wrong in proceeding with the
assumption that only the non-execution of lease deed was the basic issue. Even if it is
accepted that the other claims were relatable to it they have independent existence.
2004 AIR SCW 799
@page-SC366
Whether the collection of amounts by the respondent was for a period beyond 51 years
needs evidence to be adduced. It is not a case where the suit from statement in the plaint
can be said to be barred by law. The statement in the plaint without addition or
subtraction must show that it is barred by any law to attract application of Order VII,
Rule 11. This is not so in the present case."
11. However, we may notice that another Division Bench of this Court, in Balasaria
Construction (P) Ltd. v. Hanuman Seva Trust and Ors. [(2006) 5 SCC 658], stated the
law thus :
"After hearing counsel for the parties, going through the plaint, application under Order
VII, Rule 11(d), CPC and the judgments of the trial court and the High Court, we are of
the opinion that the present suit could not be dismissed as barred by limitation without
proper pleadings, framing of an issue of limitation and taking of evidence. Question of
limitation is a mixed question of law and fact. Ex facie in the present case on the reading
of the plaint it cannot be held that the suit is barred by time. The findings recorded by the
High Court touching upon the merits of the dispute are set aside but the conclusion
arrived at by the High Court is affirmed. We agree with the view taken by the trial court
that a plaint cannot be rejected under Order VII, Rule 11(d) of the Code of Civil
Procedure."
12. In the said decision, it may be placed on record, on the question as to whether Order
VII, Rule 11(d) can be applied when a suit was filed on the premise that a suit is barred
by limitation, this Court noticed :
"This case was argued at length on 30-8-2005. Counsel appearing for the appellant had
relied upon a judgment of this Court in N.V. Srinivasa Murthy v. Mariyamma for the
proposition that a plaint could be rejected if the suit is ex facie barred by limitation. As
against this, counsel for the respondents relied upon a later judgment of this Court in
Popat and Kotecha Property v. State Bank of India Staff Assocn. in respect of the
proposition that Order VII, Rule 11(d) was not applicable in a case where a question has
to be decided on the basis of fact that the suit was barred by limitation. The point as to
whether the words barred by law occurring in Order VII, Rule 11(d), CPC would include
the suit being "barred by limitation" was not specifically dealt with in either of these two
judgments, cited above. But this point has been specifically dealt with by the different
High Courts in Mohan Lal Sukhadia University v. Priya Soloman, Khaja Quthubullah v.
Govt. of A.P., Vedapalli Surya-narayana v. Poosarla Venkata Sanker Suryanarayana, Arjan
Singh v. Union of India wherein it has been held that the plaint under Order VII, Rule
11(d) cannot be rejected on the ground that it is barred by limitation. According to these
judgments the suit has to be barred by a provision of law to come within the meaning of
Order VII, Rule 11, CPC. A contrary view has been taken in Jugolinija Rajia Jugoslavija
v. Fab Leathers Ltd. , National Insurance Co. Ltd. v. Navrom Constantza , J. Patel and
Co. v. National Federation of Industrial Co-op. Ltd. and State Bank of India Staff Assocn.
v. Popat and Kotecha Property. The last judgment was the subject-matter of challenge in
Popat and Kotecha Property v. State Bank of India Staff Assocn. This Court set aside the
judgment and held in para 25 as under: (SCC p. 517) 2005 AIR SCW 3346
AIR 1999 Raj 102
AIR 1995 AP 43
AIR 1987 Del 165
AIR 1985 Cal 193
AIR 1988 Cal 155
AIR 1996 Cal 253
"25.When the averments in the plaint are considered in the background of the principles
set out in Sopan Sukhdeo case the inevitable conclusion is that the Division Bench was
not right in holding that Order VII, Rule 11, CPC was applicable to the facts of the case.
Diverse claims were made and the Division Bench was wrong in proceeding with the
assumption that only the non-execution of lease deed was the basic issue. Even if it is
accepted that the other claims were relatable to it they have independent existence.
Whether the collection of amounts by the respondent was for a period beyond 51 years
needs evidence to be adduced. It is not a case where the suit from statement in the plaint
can be said to be barred by law. The statement in the plaint without addition or
subtraction must show that it is barred by any law to attract application of Order VII,
Rule 11. This is not so in the present case." 2004 AIR SCW 799
13. If the plaintiff is to be granted a relief of recovery of possession, the suit could be
filed within a period of 12 years. It is one thing to say that whether such a relief can be
granted or not after the evidences are led by the parties but it is another thing to say
@page-SC367
that the plaint is to be rejected on the ground that the same is barred by any law. In the
suit has been filed for possession, as a consequence of declaration of the plaintiffs title,
Article 58 will have no application.
14
. Learned counsel appearing on behalf of the respondent, however, placed strong reliance
upon a decision of this Court in S.M. Karim v. Mst. Bibi Sakina [(1964) 6 SCR 780] to
contend that alternative plea cannot be considered for arriving at a conclusion that he has
been dispossessed. AIR 1964 SC 1254
15. The law of limitation relating to the suit for possession has undergone a drastic
change. In terms of Articles 142 and 144 of the Limitation Act, 1908, it was obligatory on
the part of the plaintiff to aver and plead that he not only has title over the property but
also has been in possession of the same for a period of more than 12 years. However, if
the plaintiff has filed the suit claiming title over the suit property in terms of Articles 64
and 65 of the Limitation Act, 1963, burden would be on the defendant to prove that he
has acquired title by adverse possession.
16. In Md. Mohammad Ali (dead) by LRs. v. Jagdish Kalita and Ors. [(2004) 1 SCC 271],
it was held :
"By reason of the Limitation Act, 1963 the legal position as was obtaining under the old
Act underwent a change. In a suit governed by Article 65 of the 1963 Limitation Act, the
plaintiff will succeed if he proves his title and it would no longer be necessary for him to
prove, unlike in a suit governed by Articles 142 and 144 of the Limitation Act, 1908, that
he was in possession within 12 years preceding the filing of the suit. On the contrary, it
would be for the defendant so to prove if he wants to defeat the plaintiffs claim to
establish his title by adverse possession."
{See also P.T. Munichikkanna Reddy and Ors. v. Revamma and Ors. [(2007) 6 SCC 29];
Binapani Paul v. Pratima Ghosh and Ors. [(2007) 6 SCC 100]; Kamakshi Builders v.
Ambedkar Educational Society and Ors. [AIR 2007 SC 2191] and Bakhtiyar Hussai
(dead) through LRs v. Hafiz Khan and Ors. [CA Nos.497-498/01 decided on
24.09.2007]}. 2007 AIR SCW 2897
2007 AIR SCW 3850
reported in 2007 AIR SCW 6166
17
. In S.M. Karim (supra), this Court was considering a question of Benami as also adverse
possession. In the aforementioned context, it was opined : AIR 1964 SC 1254
Adverse possession must be adequate in continuity, in publicity and extent and a plea is
required at the least to show when possession becomes adverse so that the starting point
of limitation against the party affected can be found. There is no evidence here when
possession became adverse, if it at all did, and a mere suggestion in the relief clause that
there was an uninterrupted possession for "several 12 years" or that the plaintiff had
acquired "an absolute title" was not enough to raise such a plea. Long possession is not
necessarily adverse possession and the prayer clause is not a substitute for a plea. The
cited cases need hardly be considered, because each case must be determined upon the
allegations in the plaint in that case. It is sufficient to point out that in Bishun Dayal v.
Kesho Prasad and another (A.I.R. 1940 P.C. 202), the Judicial Committee did not accept
an alternative case based on possession after purchase without a proper plea."
{See also Prem Lala Nahata and Anr. v. Chandi Prasad Sikaria [(2007) 2 SCC 551]}.
2007 AIR SCW 1120
Such a question does not arise for our consideration herein.

18. We have noticed hereinbefore that the defendant, inter alia, on the plea of
identification of the suit land vis-a-vis the deeds of sale, under which the plaintiff has
claimed his title, claimed possession. The defendant did not accept that the plaintiff was
in possession. An issue in this behalf is, therefore, required to be framed and the said
question is, therefore, required to be gone into. Limitation would not commence unless
there has been a clear and unequivocal threat to the right claimed by the plaintiff. In a
situation of this nature, in our opinion, the application under Order VII, Rule 11(d) was
not maintainable. The contentions raised by the learned counsel for the respondent may
have to be gone into at a proper stage. Lest it may prejudice the contention of one party
or the other at the trial, we resist from making any observations at this stage.
19. For the reasons mentioned above, the impugned judgment cannot be sustained. The
same is, therefore, set aside. The appeal is allowed with costs. Counsels fee assessed at
Rs.25,000/- (twenty five thousand).
Appeal allowed.
@page-SC368
AIR 2008 SUPREME COURT 368 "State v. M. Krishna Mohan"
Criminal Appeal Nos. 1394-1395 of 2004, D/- 12 -10 -2007.
State through SPE and CBI, A.P. v. M.Krishna Mohan and Anr.
(A) Evidence Act (1 of 1872), S.45 - EVIDENCE - Opinion of Fingerprint Expert -
Credibility - Fingerprint Expert working in Fingerprint Bureau as Finger- print
Researcher since 1971 - He had passed All India Fingerprint Expert Examination
conducted by Central Fingerprint Bureau - He was given promotion as Fingerprint Expert
and also as Fingerprint Inspector - He had deposed in number of civil and criminal cases
as Expert - Held, that he was qualified Fingerprint Examiner and his testimony cannot be
discarded. (Paras 17, 18)
(B) Penal Code (45 of 1860), S.409, S.420, S.467, S.477A, S.120B - BREACH OF
TRUST - FALSIFICATION OF ACCOUNTS - LOAN - CRIMINAL CONSPIRACY -
Cheating, misappropriation of property and conspiracy - Accused persons were Manager
and Field Officer of Bank - Grant of loan - Allegation that two accused conspired with
each other in matter of sanctioning etc. of loan in names of fictitious persons by forging
their signatures - Witnesses who had been working in same branch of - Bank with
accused proving procedures adopted in matter of grant of loan - Loan document found to
be forged one - Evidence of Finger print Expert not discredited by accused - All
transactions i.e. process of application, technical recommendation, preparation of
appraisal report, sanction and disbursement of loan taking place on same date which
clearly established that they were manipulated by accused - Held that accused were guilty
of offences charged.
Cri. Appeals Nos. 12 and 13 of 1997, D/- 5-11-2002 (AP), Reversed. (Paras 22, 24)
(C) Penal Code (45 of 1860), S.409, S.420, S.467, S.477A - BREACH OF TRUST -
CHEATING - FORGERY - FALSIFICATION OF ACCOUNTS - Charge for offences,
under - Accused No. 1 Manager and accused No. 2 Field Officer of Bank - Allegation that
accused persons committed offences in matter of grant of loan - No act of forgery and
misappropriation attributed to accused No. 2 - However, he had prepared appraisal report
and after preparation of such appraisal report loan amount was sanctioned and amount of
loan purported to have been paid to loanees and, hence, he was also guilty of commission
of said offence.
Cri. Appeal Nos. 12 and 13 of 1997, D/? 5-11-2002 (AP), Reversed. (Para 23)
(D) Penal Code (45 of 1860), S.409, S.420, S.467, S.477A - BREACH OF TRUST -
DEPARTMENTAL PROCEEDINGS - FORGERY - DEPARTMENTAL ENQUIRY -
Offence, under - Allegation of cheating, forgery etc. against Bank Officers -
Departmental inquiry against accused completed even before investigation in criminal
case started - Departmental proceedings initiated only against accused No. 2 - Inquiry
Officer therefore, did not have benefit to consider all materials which could be brought
on record by Department in light of investigation made by specialized investigating
agency - Exoneration of accused No. 2 in departmental proceedings cannot lead to
conclusion that he was not guilty of commission of offences wherefor he was charged.
Cri. Appeal Nos. 12 and 13 of 1997, D/- 5-11-2002 (AP), Reversed. (Paras 28, 33)
(E) Constitution of India, Art.20(3) - SELF-INCRIMINATION - PRISONER - "To be a
witness" - Taking specimen fingerprints and handwritings from accused - Not hit by Art.
20(3) as being "witness against himself".
Identification of Prisoners Act (33 of 1920), S.5, S.6.
Cri. Appeal Nos. 12 and 13 of 1997, D/- 5-11-2002 (AP), Reversed. (Para 34)
(F) Criminal P.C. (2 of 1974), S.378 - APPEAL - Appeal against acquittal - When on
appraisal of judgment of acquittal only one view is possible, appellate Court would not
hesitate to interfere with judgment of acquittal. (Para 38)
(G) Prevention of Corruption Act (2 of 1947), S.5(2), Proviso (since repealed) -
CORRUPTION - FORGERY - CHEATING - MISAPPROPRIATION - Sentence -
Charge of forgery, misappropriation, cheating etc. - Against two Bank Officers in respect
of grant of loan - Charges of forgery and misappropriation attributed to accused No. 1
alone - Purported loanees known to only accused No. 1 and not to accused No. 2
@page-SC369
Accused No. 2 worked in Bank for a short period - Forgery and misappropriation
committed by accused No. 1 even thereafter - Appraisal reports prepared by accused No.
2 used by accused No. 1 also for subsequent period, when accused No. 2 was no longer
working in said branch - Held, that case has been made out to invoke proviso appended
to sub-section (2) of S. 5 - Accused No. 2 awarded sentence of rigorous imprisonment of
only three months.
Cri. Appeal Nos. 12 and 13 of 1997, D/? 5-11-2002 (AP), Reversed. (Paras 40, 41,
42)
(1996) 9 SCC 1 30
1992 AIR SCW 237 : AIR 1992 SC 604 : 1992 Cri LJ 527 (Disting. Pnt. D) 30
AIR 1961 SC 1808 : 1961 (2) Cri LJ 856 (Foll. Pnt. E) 9, 36
A. Sharan, ASG, Amit Anand Tiwari and P. Parmeswaran, for Appellant; L. N. Rao, Sr.
Advocate, R. Santhan Krishnan, Ms. K. Radha Rani, P. Vijaya Kumar and D. Mahesh
Babu, for Respondents.
* Cri. Appeal Nos. 12 and 13 of 1997, D/- 5-11-2002 (A.P.)
Judgement
1. S. B. SINHA, J. :-Correctness of a judgment of acquittal passed by the High Court of
Judicature at Andhra Pradesh is in question in this appeal whereby and whereunder an
appeal from a judgment of conviction dated 13.12.1996 by Special Judge, FO CBI Cases,
Visakhapatnam in C.C. No.11 of 1994 has been allowed.
2. Respondents herein were Manager and Field Officer of Chaitanya Grameena Bank,
Penumaka Branch, Guntur District. Allegations against them were that they conspired
with each other in the matter of sanctioning and disbursing loans of Rs. 5,000/- each
under Crop Loan A/c. No.85/23, 86/221, 87/10, 85/95, 86/224 and 87/12 as contained in
Exhibits P-1 to P-6 in the names of fictitious persons by forging signatures and thumb
impressions of the proposed borrowers in the documents resulting in misappropriation of
the proceeds of Rs.30,000/-. The offences in question allegedly took place during the
period 7.12.1984 to 14.8.1986. Respondent No.2 herein joined his services on 7.12.1984
as a Field Officer on probation. He was allegedly transferred to another branch on
15.8.1986. The First Information Report was lodged on 31.12.1991 under Sections 409,
420 467 and 477-A read with Section 120-B of the Indian Penal Code and Section 5 read
with Section 5(2) of the Prevention of Corruption Act, 1947.
3. Investigations were made into the said allegations. The prosecution, in support of its
case, examined as many as 22 witnesses.
4. PW-21, K.V.V. Satyanarayana and PW-22, Kolluri Seetha are husband and wife. They
purported to have applied for loan which was sanctioned on the same day. The loan
granted to both of them was renewed for two subsequent years. It was the prosecution
case that they were residents of Ramamindaram Street, Satyanarayana Puram,
Vijayawada, whereas they were shown to be residents of Penumaka in the District of
Guntur. PW-4, Meka Kotireddy, was the village Sarpanch who proved that the loans
were granted in the name of fictitious persons and that Exhibits marked as P-1, P-2 and
P-5 were not the residents of village Seethanagaram. PW-3, U. Jayaprada Kumari, was
the accountant of the bank who had paid the amount of loan in cash to respondent No.1.
PW-5, M. Mallikarjuna Rao, was another accountant who said that the amount of loan
was paid in cash to Respondent No.1. PW-7, B.M.S. Peter, was the postman who also
proved that loan was sanctioned in the name of fictitious persons. PW-17, is a finger
print expert who proved that thump impressions appearing on the loan account were that
of accused No.1.
5. The learned Trial Judge on analyzing the evidences brought on records opined:
"As per the addresses given in the loan applications covered by Exs. P.1 to P.6 the loanees
are the residents of Seethanagaram village. But the evidence of P.Ws. 21 and 22 show
that they are residing at Vijayawada and they have no lands. As per the evidence of
P.W.1, A.2 recommended the loans in the loan documents Exs.P.1 and P.2 and A.1
sanctioned. P.W.3, U. Jayapradaha Kumari, who worked as Cashier for about 3 years
along with A.1 and A.2 has stated that the debit voucher for Rs.1,000/- dated 5.5.87 in
Ex.P.3 loan documents passed for
@page-SC370
payment by A.1 and she paid the amount. She received the debit voucher for Rs.1,000/-
and put her initial on the relevant entry marked as Ex.P26 and A.1 put his initial against
the entry in respect of crop loans A/c. No.87/10. She entered the payment in respect of
crop loan 87/10 in the rough chitta. Ex.P.27 is the relevant entry. In Ex.P.6 loan
documents both appraisal report and the sanctioning authority signed by A.1 and the debit
voucher for Rs.1000/- passed by A.1 and the amount was paid by her. Ex.P.28 is the
relevant entry in the payment scroll and contains her initials and A.1. She paid the cash of
Rs.1000/- each under two debit vouchers in the loan documents Exs. P.3 and P.6 to A.1.
P.W.5, M. Mallikarjunarao who worked as Clerk-cum-Cashier, when A.1 and A.2 worked,
has stated that the crop loans covered by Exs. P.1, P.2, P.4 and P.5 were sanctioned by A.1
and the appraisal report was signed by A.1. He paid the amount to A.1 in respect of said
loans.
xxx xxx xxx
So the entire evidence referred above show that the persons whose photos affixed to the
loan applications and the names of the persons mentioned in the loan applications were
never resided in Seethanagaram Village and the evidence of P.Ws. 21 and 22 the husband
and wife, who originally took the gold loans from Panumaka Branch of Chaitanya
Grameena Bank is corroborated by the evidence referred above witnesses that they never
resided in Seethanagaram Village."
6. Before the learned Trial Judge, a contention was raised that the departmental
proceeding has been initiated against respondent No.2 herein resulted in exoneration and,
thus, he was entitled to a judgment of acquittal. The said contention of accused No. 2
was rejected by the learned Trial Judge opining that the report of the enquiry officer who
enquired into the charges had not been brought on record.
7. The High Court, however, reversed the said judgment of the learned Trial Judge
holding that the procedure adopted for obtaining fingerprints being contrary to the
fundamental rights of the accused, the same was not admissible in evidence. It was
observed that the Bank did not receive any complaint from the loanees and the
prosecution having not brought any corroborative material on record, the impugned
judgment of the Trial Judge cannot be sustained. Furthermore respondent No. 2 having
been exonerated in the departmental proceeding, a different view could not be taken by
the criminal court.
8. We may notice the views of the High Court in this behalf which is in the benefit to the
following effect :
"The procedure as adopted by the prosecution especially during the investigation by the
investigation officer by taking the signatures and thumb impressions of the Manager itself
is not valid and inadmissible in evidence. Except the report of the officer of the Bank,
there is no complaint of whatsoever nature from the loanees as to non-receipt from any
proper quarters at any point of time. Therefore, in the absence of proper evidence being
available, it is too difficult to accept the mere statement of P.W.4, the Sarpanch especially
for showing the non-existence of the loanees and draw any presumption as to falsifying
the record and misappropriation of the amounts by the appellants herein. There is
absolutely no acceptable evidence to show that at the time of verification, the loanees
were not present before the Field Officer. In the absence of any documentary evidence in
its support, it is not safe to simply place reliance on the oral testimony of P.W.4.
Admittedly, as per the cashier, she has made due entries and a rough chitta in regard to
the receipt of the payments."
9. Mr. Amerendra Sharan, learned Additional Solicitor General, appearing on behalf of
the appellants, inter alia, would submit that :
1. In view of the Constitution Bench decision of this Court in State of Bombay v. Kathi
Kalu Oghad [AIR 1961 SC 1808], the High Court committed a serious error in opining
that accused persons could not have asked to give their specimen left thumb impression
or signatures.
2. Keeping in view the fact that the loan had been sanctioned in form of non-existing
persons, the question of their coming forward to lodge any complaint in relation thereto
did not arise and, in fact, PW-21 and PW-22, in whose name, the loans were sanctioned,
came forward and deposed before the learned Trial Judge stating that they had not
obtained any loan.
3. The High Court furthermore
@page-SC371
committed a serious error in passing the impugned judgment insofar as it failed to take
into consideration that the prosecution had proved, beyond all reasonable doubts, its case
on the basis of the testimonies of PW3, PW-4, PW-5, PW-7, PW-17, PW-21 and PW-22.
4. Exoneration of Respondent No. 2 in the departmental enquiry could not have been a
ground for recording a judgment of acquittal.
10. Mr. Prabhakar, learned counsel appearing on behalf of respondent No.1, on the other
hand, submitted :
1. PW-3 and PW-5 were not trustworthy witnesses as both of them had accepted that
there was no documentary evidence to show that they had paid the amount to accused
No.1.
2. Accused No.1 being the Manager of the Bank, could not have sanctioned the loan save
and except on the basis of appraisal report issued by Accused No.2, who was the Field
Officer.
3. The amount of loan being only Rs. 5,000/- purported to have been paid each to PW-21
and PW-22 and the same having been only renewed in subsequent years, this Court
should draw the presumption that the loanees have been repaying the loan amount.
4. The report of the fingerprint expert should not have been accepted by the learned Trial
Judge as the thumb impression of the right middle finger had been taken and not the left
thumb impression.
11. Mr. Nageshwar Rao, senior counsel appearing on behalf of accused No.2, urged that
respondent No. 2 was entitled to a judgment of acquittal inasmuch as :
1. The prosecution case is that all acts of forgeries which had been done by accused No.1
and the accused No. 2 was only a witness thereto.
2. The only charge against Respondent No.2 being that he was the one who prepared the
appraisal report, which being only a procedural requirement, he could not have been
convicted for the offence of forgery.
3. Respondent No. 2 having joined the services only in the year 1984 and having been
transferred on or about 14.8.1986 and subsequent renewal of loans having been processed
in 1987, he must be held to be wholly innocent.
4. The departmental proceedings against Respondent No. 2 having resulted in his
exoneration, he could not have been convicted in the criminal case.
12. Following facts emerge from the records :
On 20.5.1985 one K.Venkata Satyanarayana (PW-21) applied for crop loan of Rs.5,000/-.
In the said application, he was shown to be the resident of village Seetanagaram, district
Guntur. In his deposition, PW-21 stated that he was a resident of District Vijayawada.
The appraisal report was prepared by the Field Officer on 20.5.1985 itself whereupon the
Manager made recommendations and sanctioned the loan on the very same day, i.e.,
20.5.1985. The amount of loan was also disbursed on the same day.
On 14.6.1986, loan of K. Venkata Satyanarayana was renewed and all the formalities, i.e.,
from the stage of filing application to disbursement on renewal were completed on the
very same day.
On 14.6.1986, Mrs. K. Seeta (PW-22) wife of K. Venkata Satyanarayana, also purported
to have applied for a crop loan of Rs. 5,000/-. In her application also, her residence was
shown as village Seetanagaram, District Guntur, while in her deposition, she stated that
she was a resident of District Vijayawada. On this occasion also, all the formalities for
grant of loan were completed on 14.6.1986 itself and amount of the loan was disbursed
on the very same day.
On 4.5.1987, loan of K. Venkata Satyanarayana was again renewed. On the basis of the
existing appraisal report, sanction of loan was granted by the Manager and the loan
amount was also disbursed on the same day.
Evidently, the formalities required to be complied with for grant of loan, appraisal report
recommendation, sanction and disbursement of loan were completed on the very same
day on which application for grant of loan was filed.
PW-4, the village Sarpanch, in his deposition also stated that PW-21 and PW-22 in whose
favour the abovesaid loans were sanctioned were not the resident of village
Seetanagaram.
13. Both PW-3 and PW-5, in their depositions before the learned Trial Court stated about
the procedure for grant of loan followed in the bank. It appears that the
@page-SC372
accused No.1 for all intent and purport used to do everything himself which were
required offering for the purpose of grant of loan. It has furthermore been brought on
record that PW-21 and PW-22 were known to the Manager of the Bank, i.e. Respondent
No.1. They were residents of a different district, namely, Vijayawada. They had taken
loan from the said bank on deposit of gold ornaments on an earlier occasion. They
redeemed the said loan and took their ornaments back. They were known to the
respondent No.1 since then.
14. The modus operandi of respondent No.1 appeared to be that he had affixed his own
thumb impression instead of the those of the loanees, viz. PW-21 and PW-22 respectively.
Upon sanction of the said loan, the accountant concerned paid the amount of loan to
accused No.1. Loan was purported to have been sanctioned either on the same day or
within a few days from the date of purported applications. The said loans, as noticed
hereinbefore, were also renewed for the years 1986 and 1987.
15. The finger print expert, in his evidence, proved that specimen fingerprints marked as
S-1 to S-4 in Exhibit P-38 tallied with the disputed fingerprints marked as Q-166, Q-169,
Q-170, Q-171 and Q-172 with the specimen right middle finger impressions marked as S-
4-11 on the F.P. slip marked as S-4.
16. Our attention, however, has been drawn by Mr. Prabhakar to the statement that the
finger impressions marked as S-4 were more clear than the finger impressions marked as
S-1 to S-3, to contend that the said specimen impressions were not clear.
17. PW-17, Mr. Venkateswara Rao, is a fingerprint expert. He had been working in Finger
Print Bureau as Finger Print Searcher since 1971. He had passed All India Finger Print
Expert's Examination conducted by Central Finger Print Bureau, Calcutta. He was
promoted as Finger Print Expert in the year 1975 and was furthermore promoted as
Finger Print Inspector in 1979. He had deposed in a number of civil and criminal cases
as an expert.
18. We do not find any reason to discredit the testimony of the said expert. He was a
qualified Finger Print Examiner. Apart from the fingerprints, the prosecution had also
obtained the specimen handwritings of Respondent No.1. Handwritings on the said loan
documents/applications for grant of loan was found to be that of accused No.1.
19. PW-3, U. Jayaprada Kumari, in her deposition, stated :
"Both myself and A-2 were directly appointed to Penumaka Branch. After receiving the
loan documents from the borrowers all the documents will be filled up by the bank
officials during lunch hour. The loan documents will be filled up after the disbursement
of the loan amounts to the borrowers. The Branch Manager used to obtain the signatures
and that thumb impression of the borrowers on loan application."
20. PW-5, Mallikarjuna Rao, also stated that debit vouchers of Rs. 4,000/- in Exhibit P-6
loan document contained only one stamp showing as cash paid but it did not contain his
signature although, it purported to have been shown to be his. Ext. P-6 was, therefore,
was a forged document.
21. It may be true, as has been contended by Mr. Prabhakar that there was no
documentary evidence to show that the amount had actually been paid in cash to the
accused No.1. But then no documentary evidence would be available as it was for the
respondent No.1, as Manager of the Bank to hand over the amount in cash to the loanees
upon receiving the same from PW?3.
22. The aforementioned two witnesses who had been working in the same branch of the
bank with the respondents herein have proved the procedures adopted in the matter of
grant of loan. There cannot, therefore, be any doubt whatsoever that ample materials have
been brought on record by the prosecution which led to only one conclusion that the
accused were responsible therefor.
23. It may be true that no act of forgery and misappropriation has been attributed to
Respondent No. 2, but he was the one who had prepared the appraisal report. After
preparation of such appraisal report, the loan amount having been sanctioned and the
amount of loan purported to have been paid to the loanees and, hence, we are of the
opinion that he was also guilty of commission of the said offence.
24. Documents pertaining to the loan transactions bear the same date, i.e., process of
application, technical recommendation, preparation of appraisal report, sanction and
disbursement of loan. All transactions, therefore, took place on the same date
@page-SC373
which clearly establishes that they were manipulated by Respondent No.1.
25. PW-3, in her deposition, in no uncertain line, stated that all transactions right from
application to disposal took place in the afternoon of a day and all the documents used to
be processed during the lunch hour, whereas as per to the procedure, the disbursement of
loan could take place only upon proper verification thereof.
26. The High Court, therefore, in our opinion, completely misdirected itself in passing a
judgment of acquittal in favour of the respondents. The learned Trial Judge had assigned
cogent reasons in support of its findings. The High Court did not meet the said
reasonings.
27. It purported to have laid emphasis on exoneration of respondent No. 2 in
departmental enquiry.
28. The departmental enquiry was completed even before the investigation in this case
started. The Investigating Officer (PW-23), in his evidence, stated :
"I am not aware whether the Departmental enquiry was conducted against A.2 and it was
completed even before I started my investigation."
29. Furthermore, the enquiry report has not been brought on record. The factum of
exoneration of respondent No. 2 in the departmental proceedings was raised by way of
defence. It was, therefore, obligatory on his part to bring on record all the relevant
documents, namely, the charge-sheet, the other materials brought on record by the
department and the findings of the Enquiry Officer. If the statement of the Investigating
Officer (PW-23) is to be accepted and there is absolutely no reason as to why it should
not be; there was no occasion for the enquiry officer to have the benefit of the depositions
of the purported loanees, namely, PW-21 and PW-22, the opinion of the fingerprint expert
and other material brought on record by the prosecution which clearly established the
involvement of the respondents herein.
30
. Mr. Nageshwar Rao relied upon a decision of this Court in P. S. Rajya v. State of Bihar
[(1996) 9 SCC 1]. The fact-situation obtaining therein was absolutely different. In that
case, in the vigilance report, the delinquent officer was shown to be innocent. It was at
that juncture, an application for quashing of the proceedings was filed before the High
Court under Section 482 of the Code of Criminal Procedure which was allowed relying
on State of Haryana v. Bhajan Lal [1992 Supp.(1) SCC 335], holding : 1992 AIR
SCW 237
"23. Even though all these facts including the Report of the Central Vigilance
Commission were brought to the notice of the High Court, unfortunately, the High Court
took a view that the issues raised had to be gone into in the final proceedings and the
Report of the Central Vigilance Commission, exonerating the appellant of the same
charge in departmental proceedings would not conclude the criminal case against the
appellant. We have already held that for the reasons given, on the peculiar facts of this
case, the criminal proceedings initiated against the appellant cannot be pursued."
(Underlining is ours for emphasis)
31. The said decision was, therefore, rendered on the facts obtaining therein and cannot
be said to be an authority for the proposition that exoneration in departmental proceeding
ipso facto would lead to a judgment of acquittal in a criminal trial.
32
. In Superintendent of Police (CBI) v. Deepak Chowdhary and Ors. [(1995) 6 SCC 225],
this Court while considering a matter of sanction, vis-a-vis, exoneration in a departmental
proceedings, held : 1996 AIR SCW 3905, Para 5
"We find force in the contention. The grant of sanction is only an administrative function,
though it is true that the accused may be saddled with the liability to be prosecuted in a
court of law. What is material at that time is that the necessary facts collected during
investigation constituting the offence have to be placed before the sanctioning authority
and it has to consider the material. Prima facie, the authority is required to reach the
satisfaction that the relevant facts would constitute the offence and then either grant or
refuse to grant sanction. The grant of sanction, therefore, being administrative act the
need to provide an opportunity of hearing to the accused before according sanction does
not arise. The High Court, therefore, was clearly in error in holding that the order of
sanction is vitiated by violation of the principles of natural justice."
33. In a case of this nature where departmental proceeding was initiated only as against
respondent No. 2, the enquiry officer did not have the benefit to consider all
@page-SC374
the materials which could be brought on record by the Department in the light of the
investigation made by a specialized investigating agency, the evidence of experts and
deposition of witnesses to show that forgery of document has been committed by forging
thumb impression and handwriting, we are of the opinion that exoneration of respondent
No. 2 in the departmental proceedings cannot lead to the conclusion that he was not
guilty of commission of the offences wherefor he was charged.
34. The High Court also committed a manifest error in purporting to hold that the
specimen fingerprints and handwritings could not have been taken from Respondent
No.1.
35. Sections 5 and 6 of the Identification of Prisoners Act, 1920 clearly provides for such
a contingency and read as under :
"5. Power of Magistrate to order a person to be measured or photographed.-If a
Magistrate is satisfied that, for the purposes of any investigation or proceeding under the
Code of Criminal Procedure, 1898 (5 of 1898) it is expedient to direct any person to
allow his measurements or photograph to be taken, he may make an order to that effect,
and in that case the person to whom the order relates shall be produced or shall attend at
the time and place specified in the order and shall allow his measurements or photograph
to be taken, as the case may be, by a police officer:
Provided that no order shall be made directing any person to be photographed except by a
magistrate of the first class:
Provided further, that no order shall be made under this section unless the person has at
some time been arrested in connection with such investigation or proceeding.
6. Resistance to the taking measurements, etc.- (1) If any person who under this Act is
required to allow his measurements or photograph to be taken resists or refuses to allow
the taking of the same, it shall be lawful to use all means necessary to secure the taking
thereof.
(2) Resistance to or refusal to allow taking of measurements or photograph under this Act
shall be deemed to be an offence under section 186 of the Indian Penal Code, 1860 (45 of
1860)."
36. A Constitution Bench of this Court in State of Bombay v. Kathi Kalu Oghad [AIR
1961 SC 1808], examined the question in regard to the application of the aforementioned
provisions, vis-a-vis the constitutional mandate that nobody shall be compelled to be a
witness against himself as contemplated in Article 20 of the Constitution of India in great
details. It was clearly held :
"10. "To be a witness" may be equivalent to "furnishing evidence" in the sense of making
oral or written statements, but not in the larger sense of the expression so as to include
giving of thumb impression or impression of palm or foot or fingers or specimen writing
or exposing a part of the body by an accused person for purpose of identification.
"Furnishing evidence" in the latter sense could not have been within the contemplation of
the Constitution makers for the simple reason that though they may have intended to
protect an accused person from the hazards of self-incrimination, in the light of the
English law on the subject they could not have intended to put obstacles in the way of
efficient and effective investigation into crime and of bringing criminals to justice. The
taking of impressions of parts of the body of an accused person very often becomes
necessary to help the investigation of a crime. It is as much necessary to protect an
accused person against being compelled to incriminate himself, as to arm the agents of
law and the law courts with legitimate powers to bring offenders to justice. Furthermore it
must be assumed that the Constitution-makers were aware of the existing law, for
example, Section 73 of the Evidence Act or Sections 5 and 6 of the Identification of
Prisoners Act (33 of 1920). Section 5 authorises a Magistrate to direct any person to
allow his measurements or photographs to be taken, if he is satisfied that it is expedient
for the purposes of any investigation or proceeding under the Code of Criminal Procedure
to do so: "Measurements" include finger impressions and foot-print impressions. If any
such person who is directed by a Magistrate, under Section 5 of the Act, to allow his
measurements or photographs to be taken resists or refuses to allow the taking of the
measurements or photographs, it has been declared lawful by Section 6 to use all
necessary means to secure the taking of the required measurements or photographs.
Similarly, Section 73 of the Evidence Act authorises the court to permit the taking of
finger impression or a
@page-SC375
specimen handwriting or signature of a person present in court, if necessary for the
purpose of comparison.
11. When an accused person is called upon by the court or any other authority holding an
investigation to give his finger impression or signature or a specimen of his handwriting,
he is not giving any testimony of the nature of a "personal testimony". The giving of a
"personal testimony" must depend upon his volition. He can make any kind of statement
or may refuse to make any statement. But his finger impressions or his handwriting, in
spite of efforts at concealing the true nature of it by dissimulation cannot change their
intrinsic character. Thus, the giving of finger impressions or of specimen writing or of
signatures by an accused person, though it may amount to furnishing evidence in the
larger sense, is not included within the expression "to be a witness".
37
. For the views we have taken, the impugned judgment of the High Court cannot be
sustained. We are not oblivious of the fact that presumption of innocence is a human right
and when an accused is acquitted by a court, such presumption becomes stronger. We are
furthermore not oblivious that a superior court, ordinarily, would not interfere with a
finding of acquittal, if two views are possible as has been held by this Court in State of
Haryana v. Sher Singh and Ors. [(2002) 9 SCC 356]; Narender Singh and Anr. v. State
of M.P. [(2004) 10 SCC 699] and Budh Singh and Ors. v. State of U.P. [(2006) 9 SCC
731] whereupon Mr. Nageshwar Rao has placed strong reliance. 2002 AIR SCW 3733
2004 AIR SCW 3094
2006 AIR SCW 2686
38. It is, however, a trite law that an appellate court, while entertaining an appeal from a
judgment of acquittal, would also be entitled to consider the evidences brought on record
by both the prosecution and the defence and arrive at its own decision. Interference with a
judgment of acquittal may not be made when two views are possible to be taken, but
when on appraisal thereof, only one view is possible, the appellate court would not
hesitate to interfere with the judgment of acquittal. In this case, we are firmly of the view
that no two views are possible to be taken.
39. Mr. Rao, however, would submit that involvement of respondent No. 2 is minimal.
He had proposed an appraisal report but there is nothing to show that he had obtained any
monetory benefit.
40. The entire prosecution case relating to charges of forgery and misappropriation has
been attributed to respondent No.1 alone. He was the one who had put on shelves all the
procedural requirements. Not only he, during the luncheon hours, filled up the application
forms, but even prior thereto he had purported to have received the documents,
sanctioned the loan and obtained the amount of loan in cash. PW-21 and PW-22 were
known to him and not to the respondent No.2.
41. We, therefore, are of the opinion that a case has been made out to invoke the proviso
appended to sub-section (2) of Section 5 of the Prevention of Corruption Act, 1947 in the
case of respondent No. 2. Furthermore, he worked in the bank for a short period and was
still undergoing probation. Forgery and misappropriation was committed by respondent
No.1 even thereafter. The appraisal reports prepared by respondent No. 2 were used by
respondent No.1 also for the subsequent period, namely, 1987 when respondent No. 2
was no longer working in the said branch.
42. For the reasons aforementioned, while upholding the conviction and sentence as
awarded by learned Trial Judge as against respondent No.1 (accused No.1), in view of the
special reasons recorded hereinbefore, we impose a sentence of rigorous imprisonment
of three months on respondent No. 2. He shall, however, be liable to pay a fine of Rs.
20,000/- (Rupees twenty thousand only) and in default shall undergo a sentence of three
months.
43. Accordingly, the appeals are allowed with the aforementioned directions. The
respondents may be taken into custody for serving out the respective remaining
sentences.
Appeal allowed.
AIR 2008 SUPREME COURT 375 "Govt. of A. P. v. Mohd. Taher Ali"
(From : 2005 (3) Andh LT 637)
Govt. of A. P. and Ors. v. Mohd. Taher Ali.
(A) Constitution of India, Art.311 - TERMINATION OF SERVICE - RETIREMENT -
DISCIPLINARY PROCEEDINGS - MISCONDUCT - Disciplinary proceeding -
Punishment - Proportionality - Police Officer absenting from election duty - Serious
misconduct
@page-SC376
Imposition of penalty of compulsory retirement - Proper - Absence of 21 days by member
of disciplined force is sufficient to justify his compulsory retirement.
2005 (3) Andh LT 637, Reversed. (Paras 4, 5)
(B) Constitution of India, Art.311 - TERMINATION OF SERVICE - SERVICE
MATTERS - DISCIPLINARY PROCEEDINGS - Disciplinary proceedings - Punishment
- Considerations - Earlier lapses of delinquent - Can be considered though not mentioned
in charge. (Para 5)
Cases Referred : Chronological Para
AIR 1964 SC 506 5
Mrs. D. Bharathi Reddy, for Appellants; Ms. Promila, for Respondent.
Judgement
JUDGMENT :- We have heard learned counsel for the parties.
2. This appeal by special leave is directed against the order dated 9-3-2005 passed by the
Division Bench of the Andhra Pradesh High Court in Writ Petition No. 19690 of 2004
whereby the Division Bench has affirmed the order passed by the Administrative Tribunal
whereby the Administrative Tribunal remitted the matter back to the disciplinary
authority for consideration of the punishment imposed in the matter. Hence the present
appeal filed by the State of A. P.
3. It is not necessary to go into the detailed facts. Suffice it to say that the incumbent was
a Police Constable at Alwal (Halia) P. S. and he was detailed for election duty at
Cuddapah Election Bandobusth duty along with other PS men with instructions to report
before SDPO Miryalguda, but he did not report for duty on 2nd September, 1999 along
with other PS men before SDPO Miryalguda and absented himself unauthorisedly
without leave or permission with effect from 2nd September, 1999. Therefore, he was
charged for the offence of desertion. The C. I. of Police, Miryalguda was appointed as
Inquiry Officer to conduct the inquiry. The respondent did not file any written
representation of defence in response to the charges levelled against him. Therefore, the
Inquiry Officer held an inquiry and found him guilty and submitted his report to the
Superintendent of Police, Nalgonda and the Superintendent of Police on receipt of the
same, sent a copy of that report to the respondent but he did not file any written
representation of defence in response to that report. Therefore, the Superintendent of
Police concluded that the respondent has no explanation to the charges levelled against
him. It was also recorded that this is not a solitary incidence. The respondent had also
earlier been found to be guilty of desertion on a couple of occasions. Hence the S. P.
imposed a punishment of compulsory retirement from service with immediate effect.
This was challenged before the Administrative Tribunal. The Administrative Tribunal did
not interfere with the finding of the report of the Inquiry Officer but remitted the matter
back to the disciplinary authority for reconsideration of the question of punishment.
Aggrieved by that order, the State Government filed a writ petition before the High
Court. The High Court affirmed the order of the Administrative Tribunal. Hence the
present appeal.
4. It is an admitted position that the respondent was appointed on election duty but he
absented himself from election duty. It seems that the respondent did not consider the
election duty to be an important business which is very important for the whole nation.
The respondent was appointed on election duty and was deputed to take security
arrangement but absented himself from duty. This is a very serious lapse on the part of
the respondent. The police force is a disciplined force and the respondent was detailed for
such an important duty of election. He absented himself from election duty. Such kind of
serious lapse cannot be treated lightly. It is a very important function and if the incumbent
avoided the duty of election, he cannot escape from the liability of the penalty of
compulsory retirement. We fail to understand the reason for the Administrative Tribunal
or for the High Court to have remitted the matter back to the disciplinary authority for
reconsideration of the punishment of compulsory retirement imposed on the respondent.
5
. Learned Counsel appearing on behalf of the respondent submitted that in fact, the
disciplinary authority while passing the order has taken into consideration the earlier
absence of the respondent from the duty. He submitted that this could not have been taken
into consideration as the respondent was not aware about these incidents and those were
not the part of the charges levelled against him. In support of his submission learned
counsel for the respondent has AIR 1964 SC 506
@page-SC377
invited our attention to the judgment of this Court titled State of Mysore v. V. K. Manche
Gowda reported in 1964 (4) SCR 540, but in the present case we are satisfied that in fact
the respondent deliberately absented himself from duty and did not offer any explanation
for his absence from election duty. It is not the respondent's first absence. He also
absented himself from duty on earlier occasions also. In our opinion there can be no hard
and fast rule that merely because the earlier misconduct has not been mentioned in the
charge-sheet it cannot be taken into consideration by the punishing authority.
Consideration of the earlier misconduct is often only to reinforce the opinion of the said
authority. The police force is a disciplined force and if the respondent is a habitual
absentee then there is no reason to ignore this fact at the time of imposing penalty.
Moreover, even ignoring the earlier absence, in our opinion, the absence of 21 days by a
member of a disciplined force is sufficient to justify his compulsory retirement.
6. Looking to the facts and circumstances of the case, we are of the view that the view
taken by the High Court as well as by the Administrative Tribunal cannot be sustained.
Hence we allow this appeal, set aside the order of the High Court as well as of the
Administrative Tribunal and confirm the order of compulsory retirement for the serious
lapse on the part of the respondent.
7. This appeal is accordingly, allowed.
8. No order as to costs.
Appeal allowed.
AIR 2008 SUPREME COURT 377 "Jaya Simha v. State of Karnataka"

(From : Karnataka)*
Coram : 3 K. G. BALAKRISHNAN, C.J.I., TARUN CHATTERJEE AND R. V.
RAVEENDRAN, JJ.
Jaya Simha v. State of Karnataka.
Criminal P.C. (2 of 1974), S.439 - BAIL - CORRUPTION - TRIAL - Bail - Applicant,
Senior Superintendent of Central Prison - Alleged to have assisted stamp-scam master
while he was in jail by allowing use of mobile phone - Applicant charged under
Corruption Act and Karnataka Control of Organised Crimes Act - Trial likely to take long
time for completion - Applicant had already been in jail for 3 years 9 months -
Considering nature of involvement and time spent in jail bail granted.
Criminal Petn. No. 196 of 2007, D/- 27-2-2007 (Kant), Reversed. (Para 7)
2007 AIR SCW 6287 7
Naresh Kaushik, Ms. Amita Kalkal, Akshat Jain and Rahul Sharma (for Mrs. Lalita
Kaushik), for Appellant; R. Mohan, ASG, A. Mariarputham and P. Parmeswaran, for
Respondent.
* Cri. Petn. No. 196 of 2007, D/- 27-2-2007 (Karnataka)
Judgement
RAVEENDRAN, J. :- Leave granted. The Order dated 27.2.2007 passed by the High
Court of Karnataka, rejecting Criminal Petition No.196 of 2007 filed by the Appellant
under section 439 of Criminal Procedure Code is under challenge in this appeal.
2. A FIR relating to counterfeit stamps and stamp-papers was registered as Crime No. 545
of 2000 in the Upparpet Police Station, Bangalore, against Abdul Karim Telgi, in respect
of offences punishable under sections 255 to 260, 265, 467, 468, 471 to 475, 420 read
with section 120B IPC. On the basis of the investigation report of the Stamp Investigation
Team (for short 'STAMPIT'), Crime No. 1100/2002 was registered at Madiwala Police
Station, Bangalore, on 16.10.2002 for offences punishable under sections 120B, 255 to
258, 260 and 420 IPC read with section 63B of Karnataka Stamp Act 1957 against the
said A.K. Telgi and others. In pursuance of the directions issued by this Court on
15.3.2004, CBI took up further investigation in the matter.
3. The appellant herein who was working as the Senior Superintendent of Central Prison,
Bangalore, and one Nanjappa (working as Asst. Superintendent of Central Prison,
Bangalore) were impleaded as accused Nos. 32 and 33 under supplementary charge-sheet
filed in Crime No. 1100/2002 alleging that they had committed offences punishable under
sections 7, 12, 13(1)(d) read with section 13(2) of Prevention of Corruption Act, 1988
and sections 3, 4 and 25 of Karnataka Control of Organized Crimes Act, 2000 ('KCOC
Act' for short). It was alleged that when Abdul Karim Telgi was arrested on 7.11.2001 and
lodged in the said prison as an under-trial prisoner, the
@page-SC378
appellant and the said Nanjappa had conspired with A. K. Telgi and in violation of the
prison rules and regulations, permitted and facilitated A. K. Telgi to use mobile phone for
his unlawful activities, to run his fake stamp business from the Jail and also to celebrate a
party within the jail premises, all for illegal gratification.
4. The appellant was arrested on 9.12.2003. He moved an application for bail before the
Special Court (35th Addl. City Civil and Sessions Judge, Parappana, Agrahara,
Bangalore) in S.C. 353/2004. The said application was rejected on 28.10.2005.
Thereafter, the appellant filed Criminal Petition No. 285 of 2006 before the High Court
seeking bail. The High Court rejected the petition by Order dated 25.8.2006, on the
ground that the case was already set down for framing of charges and having regard to
the gravity of the offence, it was not a fit case to grant bail to him at that stage. The High
Court, however, reserved liberty to the appellant to move a similar application in the
month of January, 2007 if the trial was not concluded by then. The said order was
challenged in SLP (Crl.) No.5333/2006. This Court disposed of the said petition on
5.1.2007 with an observation that it was not entertaining the petition in view of the liberty
reserved by the High Court to move for bail in January, 2007. This Court further observed
that if the trial was not so concluded, the appellant may move the High Court again. As
the trial was not concluded, the appellant therefore again moved the High Court in Crl.
Petition No.196/2007. The High Court dismissed the petition by order dated 27.2.2007 on
the ground that the offence was serious and as the trial itself was likely to be over in six
to eight months. High Court was also of the view that the appellant, if released on bail,
may indulge in tampering with the witnesses. The High Court directed the trial court to
complete the trial in 8 months.
5. While challenging the said order, the appellant contends that he was neither a member
of the Telgi's crime syndicate nor had he helped A. K. Telgi and his associates in any
manner to carry on their illegal activities in Jail. It is further submitted that the High
Court did not examine whether the material prima facie disclosed commission of any
offence by the appellant punishable under the Prevention of Corruption Act or KCOC
Act.
6. Section 25 of KCOC Act provides that any public servant who renders any help or
support in any manner in the commission of organized crime as defined under section
2(c), whether before or after the commission of any offence by a member of any
organized crime syndicate or abstains from taking lawful measures under the Act or
intentionally avoids to carry out the directions of any court or any superior police officers
in that respect, shall be punished with imprisonment which may extend to three years and
also fine. Section 3(2) of KCOC Act provides that any person who conspires or abets or
knowingly facilitates the commission of an organized crime or any act preparatory to
organized crime shall be punishable with imprisonment which may extend to life, but not
less than five years. Section 4 of KCOC Act provides for a punishment ranging from 3 to
10 years for possessing unaccounted wealth on behalf of a member of organized crime
syndicate. For offences punishable under section 7 or 12 of the Prevention of Corruption
Act, the punishment is imprisonment for a term not less than six months but extending
upto five years.
7. The appellant has already been in Jail for about three years and nine months. Charges
were framed only in August, 2006. It is stated that 256 witnesses have been cited. The
trial has not been completed. It is stated that it is likely to take a long time for completion.
We have already directed Nanjappa against whom similar accusations are made, to be
released on bail [vide order dated 17.4.2007 in Nanjappa v. Union of India (Criminal
Appeal No. 574/2007 arising out of SLP(Crl.) No.6030/2006)]. Having regard to the
nature of involvement alleged and the role attributed to the appellant, and the period
already spent by the appellant in Jail, we find it a fit case for grant of bail to the appellant.
8. We accordingly allow this appeal, set aside the order of the High Court and direct the
Special Judge [35th Addl. City Civil and Sessions Judge], Bangalore, to enlarge the
appellant on bail on furnishing security to his satisfaction for a sum of Rupees Fifty
Thousand with two solvent sureties for like sums. The appellant shall comply with the
conditions enumerated in Section 438(2) Cr.P.C. and also surrender his passport, if any,
before the Special Court.
Appeal allowed.
@page-SC379
AIR 2008 SUPREME COURT 379 "Moses Wilson v. Kasturiba"
(From : Madras)*
Moses Wilson and Ors. v. Kasturiba and Ors.
(A) Civil P.C. (5 of 1908), O.38, R.9, R.10 - ATTACHMENT - JUDGMENT - APPEAL -
SUPREME COURT - Attachment before judgment - Claim by third party for release of
attachment - Appeal arising out of - Facts of case very complicated and stretching over 60
years - Supreme Court to cut short matter and with consent of parties directed division of
attached property between appellant and respondent in equal shares.
Constitution of India, Art.133. (Paras 3, 6)
(B) Constitution of India, Art.21 - RIGHT TO LIFE - Speedy justice - Denial - Concern
expressed by Court at delay in disposal of cases - Concerned authorities directed to do
needful in the matter urgently before situation goes totally out of control. (Para 7)
Civil Appln. No. 1307 of 2001, D/- 23-8-2007 (Madras) 7
Dr. A. Francis Julian, Sr. Advocate, Sumit Kumar, Amit Kumar Mishra (for M/s.
Arputham, Aruna and Co.), for Appellants; K. Ramamoorthy, Sr. Advocate, V. Prabhakar,
Ramjee Prasad, Mrs. Revathy Raghavan, for Respondents.
* C.R.P. Nos. 3679 to 3682 of 1987, D/- 31-7-1998 (Madras).
Judgement
JUDGMENT :- We have heard learned counsel for the parties.
2. We are disposing of all the four appeals by a common order.
3. These appeals arise out of a suit filed in 1947 and subsequent proceedings. The suit
was for a sum of Rs. 7,000/-, and there was an order for attachment before judgment of
the dry fish of the defendant. A third party claimed ownership of the dry fish and he
applied for release of the attachment order. It is not necessary to give further details of the
case because the facts involved are very complicated stretching over 60 years. Therefore,
with the consent of learned counsel for the parties we cut short the matter and direct that
the entire property which is the subject-matter of this litigation may be divided in equal
shares between the two parties. Half share should be given to the appellants and the other
half should be given to the respondents.
4. To decide which part should go to the appellants and which part should go to the
respondents, as many properties are involved, it is just and proper that this exercise may
be done by the District Judge, Kanyakumari at Nagercoil himself or by the Additional
District Judge nominated by the District Judge. The District Judge may issue notices to
both the parties and divide the properties in two equal shares. If any person has any
grievance against the order passed by the District Judge (or A.D.J., as the case may be), it
will be open for either of the parties to approach this Court for further clarification. The
District Judge, Kanyakumari, Nagercoil (or A.D.J. nominated by him) is directed to
dispose of the matter preferably within a period of six months.
5. Let all the records which are available here be transmitted to the District Judge,
Kanyakumari, Nagercoil.
6. The appeals are accordingly disposed of in the above terms.
7. Before parting with this case, we again express our deep concern at the delay in
disposing of cases in our Courts. Recently in Civil Appeal No. 1307 of 2001 titled
Rajindra Singh (Dead) thr. LRs. and Ors. v. Prem Mai and Ors. decided on 23rd August,
2007 we had expressed our deep anguish about this situation, and had observed that
because of delay in disposal of cases people in this country are fast losing faith in the
judiciary. We saw in the media news of lynching of suspected thieves in Bihar's Vaishali
District, the gunning down of an undertrial prisoner outside Patna City Civil Court, and
other incidents where people have taken the law into their own hands. This is obviously
because many people have started thinking that justice will not be done in the Courts due
to the delays in Court proceedings. This is indeed an alarming state of affairs, and we
once again request the concerned authorities to do the needful in the matter urgently
before the situation goes totally out of control.
Order accordingly.
@page-SC380
AIR 2008 SUPREME COURT 380 "Boodireddy Chandraiah v. Arigela Laxmi"
(From : AIR 2003 (NOC) 181 : 2003 (1) Andh LT 565)
-2007.
Boodireddy Chandraiah and Ors. v. Arigela Laxmi and Anr.
(A) Civil P.C. (5 of 1908), S.100 - APPEAL - Second Appeal - Substantial question of
law - What is - It must be debatable, not previously settled by law of land and must have
bearing on decision of case - New point raised in appeal - Must go to root of matter.
To be "substantial" a question of law must be debatable, not previously settled by law of
the land or a binding precedent, and must have a material bearing on the decision of the
case, if answered either way, insofar as the rights of the parties before it are concerned.
To be a question of law "involving in the case" there must be first a foundation for it laid
in the pleadings and the question should emerge from the sustainable findings of fact
arrived at by Court of facts and it must be necessary to decide that question of law for a
just and proper decision of the case. An entirely new point raised for the first time before
the High Court is not a question involved in the case unless it goes to the root of the
matter. It will, therefore, depend on the facts and circumstances of each case whether a
question of law is a substantial one and involved in the case, or not; the paramount
overall consideration being the need for striking a judicious balance between the
indispensable obligation to do justice at all stages and impelling necessity of avoiding
prolongation in the life of any lis.
(Para 11)
(B) Civil P.C. (5 of 1908), S.100 - APPEAL - DOCUMENTS - Second Appeal - Question
of law - Interpretation of document - When there is misconstruction of a document or
wrong application of a principle of law in construing a document, it gives rise to
question of law. (Para 12)
(C) Civil P.C. (5 of 1908), S.100 - APPEAL - Second Appeal - Substantial question of
law - After 1976 amendment a second appeal can be filed only if a substantial question
of law is involved in the case - Memorandum of appeal must precisely state substantial
question of law involved and Court is obliged to satisfy itself regarding existence of such
a question. (Para 4)
2001 AIR SCW 723 : AIR 2001 SC 965 11
1999 AIR SCW 2240 : AIR 1999 SC 2213 7
AIR 1976 SC 830 : 1976 Lab IC 575 7
AIR 1962 SC 1314 5, 8
AIR 1953 SC 521 10
AIR 1951 Mad 969 8
AIR 1928 PC 172 8
D. Rama Krishna Reddy and Mrs. D. Bharathi Reddy, for Appellant; P. S. Narasimha, K.
Maruthi Rao, Ms. K. Radha and Mrs. Anjani Aiyagari, for Respondents.
Judgement
Dr. ARIJIT PASAYAT, J.:-Leave granted.
2. The appellants call in question legality of the judgment of a learned Single Judge of the
Andhra Pradesh High Court allowing the Second Appeal filed by the respondents in
terms of Section 100 of the Code of Civil Procedure, 1908 (in short the 'CPC'). Though
many points were urged in support of the appeal, primarily it was contended that the
Second Appeal was allowed without formulating any substantial question of law which is
mandatory in law.
3. Learned counsel for the respondents submitted that though no question has rightly been
formulated, but the basic factors have been taken into account and after considering the
materials on record the second appeal was allowed.
4. After the amendment a second appeal can be filed only if a substantial question of law
is involved in the case. The memorandum of appeal must precisely state the substantial
question of law involved and the High Court is obliged to satisfy itself regarding the
existence of such a question. If satisfied, the High Court has to formulate the substantial
question of law involved in the case. The appeal is required to be heard on the question so
formulated. However, the respondent at the time of hearing of the appeal has a right to
argue that the case in the court did not involve any substantial question of law. The
proviso to the section acknowledges the powers of the High Court to hear the appeal on a
substantial point of law, though not formulated by it with the object of ensuring that no
injustice is done
@page-SC381
to the litigant where such a question was not formulated at the time of admission either
by mistake or by inadvertence.
5
. It has been noted time and again that without insisting for the statement of such a
substantial question of law in the memorandum of appeal and formulating the same at the
time of admission, the High Courts have been issuing notices and generally deciding the
second appeals without adhering to the procedure prescribed under Section 100 of the
CPC. It has further been found in a number of cases that no efforts are made to
distinguish between a question of law and a substantial question of law. In exercise of the
powers under this section in several cases, the findings of fact of the first appellate court
are found to have been disturbed. It has to be kept in mind that the right of appeal is
neither a natural nor an inherent right attached to the litigation. Being a substantive
statutory right, it has to be regulated in accordance with law in force at the relevant time.
The conditions mentioned in the section must be strictly fulfilled before a second appeal
can be maintained and no court has the power to add or to enlarge those grounds. The
second appeal cannot be decided on merely equitable grounds. The concurrent findings of
facts will not be disturbed by the High Court in exercise of the powers under this section.
Further, a substantial question of law has to be distinguished from a substantial question
of fact. This Court in Sir Chunilal V. Mehta and Sons Ltd. v. Century Spg. and Mfg. Co.
Ltd. (AIR 1962 SC 1314) held that : (Para 6)
"The proper test for determining whether a question of law raised in the case is
substantial would, in our opinion, be whether it is of general public importance or
whether it directly and substantially affects the rights of the parties and if so whether it is
either an open question in the sense that it is not finally settled by this Court or by the
Privy Council or by the Federal Court or is not free from difficulty or calls for discussion
of alternative views. If the question is settled by the highest court or the general
principles to be applied in determining the question are well settled and there is a mere
question of applying those principles or that the plea raised is palpably absurd the
question would not be a substantial question of law."
6. It is not within the domain of the High Court to investigate the grounds on which the
findings were arrived at, by the last court of fact, being the first appellate court. It is true
that the lower appellate court should not ordinarily reject witnesses accepted by the trial
court in respect of credibility but even where it has rejected the witnesses accepted by the
trial court, the same is no ground for interference in second appeal when it is found that
the appellate court has given satisfactory reasons for doing so. In a case where from a
given set of circumstances two inferences of fact are possible, one drawn by the lower
appellate court will not be interfered by the High Court in second appeal. Adopting any
other approach is not permissible. The High Court will, however, interfere where it is
found that the conclusions drawn by the lower appellate court were erroneous being
contrary to the mandatory provisions of law applicable or its settled position on the basis
of pronouncements made by the Apex Court, or was based upon inadmissible evidence or
arrived at by ignoring material evidence.
7
. The question of law raised will not be considered as a substantial question of law, if it
stands already decided by a larger Bench of the High Court concerned or by the Privy
Council or by the Federal Court or by the Supreme Court. Where the facts required for a
point of law have not been pleaded, a litigant should not be allowed to raise that question
as a substantial question of law in second appeal. Mere appreciation of facts, the
documentary evidence or the meaning of entries and the contents of the documents
cannot be held to be raising a substantial question of law. But where it is found that the
first appellate court has assumed jurisdiction which did not vest in it, the same can be
adjudicated in the second appeal, treating it as a substantial question of law. Where the
first appellate court is shown to have exercised its discretion in a judicial manner, it
cannot be termed to be an error either of law or of procedure requiring interference in
second appeal. This Court in Reserve Bank of India v. Ramkrishna Govind Morey (1976
(1) SCC 803) held that whether the trial court should not have exercised its jurisdiction
differently is not a question of law justifying interference.([See: Kondiba Dogadu Kadam
v. Savitribai Sopan Gujar and Others (1999 (3) SCC 722)]. AIR 1976 SC 830
1999 AIR SCW 2240
. The phrase "substantial question of AIR 1962 SC 1314
@page-SC382
law", as occurring in the amended Section 100 of the CPC is not defined in the Code. The
word substantial, as qualifying "question of law", means - of having substance, essential,
real, of sound worth, important or considerable. It is to be understood as something in
contradistinction with -technical, of no substance or consequence, or academic merely.
However, it is clear that the legislature has chosen not to qualify the scope of "substantial
question of law" by suffixing the words "of general importance" as has been done in
many other provisions such as Section 109 of the CPC or Article 133(1)(a) of the
Constitution. The substantial question of law on which a second appeal shall be heard
need not necessarily be a substantial question of law of general importance. In Guran
Ditta v. T. Ram Ditta (AIR 1928 PC 172), the phrase 'substantial question of law' as it
was employed in the last clause of the then existing Section 100 CPC (since omitted by
the Amendment Act, 1973) came up for consideration and their Lordships held that it did
not mean a substantial question of general importance but a substantial question of law
which was involved in the case. In Sri Chunilal's case (supra), the Constitution Bench
expressed agreement with the following view taken by a Full Bench of the Madras High
Court in Rimmalapudi Subba Rao v. Noony Veeraju (AIR 1951 Mad. 969):
"When a question of law is fairly arguable, where there is room for difference of opinion
on it or where the Court thought it necessary to deal with that question at some length and
discuss alternative views, then the question would be a substantial question of law. On the
other hand if the question was practically covered by the decision of the highest court or
if the general principles to be applied in determining the question are well settled and the
only question was of applying those principles to be particular facts of the case it would
not be a substantial question of law."
9. This Court laid down the following test as proper test, for determining whether a
question of law raised in the case is substantial:
"The proper test for determining whether a question of law raised in the case is
substantial would, in our opinion, be whether it is of general public importance or
whether it directly and substantially affects the rights of the parties and if so whether it is
either an open question in the sense that it is not finally settled by this Court or by the
Privy Council or by the Federal Court or is not free from difficulty or calls for discussion
of alternative views. If the question is settled by the highest court or the general
principles to be applied in determining the question are well settled and there is a mere
question of applying those principles or that the plea raised is palpably absurd the
question would not be a substantial question of law."
10. In Dy. Commnr. Hardoi v. Rama Krishna Narain (AIR 1953 SC 521) also it was held
that a question of law of importance to the parties was a substantial question of law
entitling the appellant to a certificate under (the then) Section 100 of the CPC.
11
. To be "substantial" a question of law must be debatable, not previously settled by law of

the land or a binding precedent, and must have a material bearing on the decision of the
case, if answered either way, insofar as the rights of the parties before it are concerned.
To be a question of law "involving in the case" there must be first a foundation for it laid
in the pleadings and the question should emerge from the sustainable findings of fact
arrived at by court of facts and it must be necessary to decide that question of law for a
just and proper decision of the case. An entirely new point raised for the first time before
the High Court is not a question involved in the case unless it goes to the root of the
matter. It will, therefore, depend on the facts and circumstances of each case whether a
question of law is a substantial one and involved in the case, or not; the paramount
overall consideration being the need for striking a judicious balance between the
indispensable obligation to do justice at all stages and impelling necessity of avoiding
prolongation in the life of any lis. (See: Santosh Hazari v. Purushottam Tiwari (deceased)
by LRs. [(2001) 3 SCC 179]. 2001 AIR SCW 723
12. The principles relating to Section 100 CPC, relevant for this case, may be summarised
thus:-
(i) An inference of fact from the recitals or contents of a document is a question of fact.
But the legal effect of the terms of a document is a question of law. Construction of a
document involving the application of any principle of law, is also a question of law.
Therefore, when there is
@page-SC383
misconstruction of a document or wrong application of a principle of law in construing a
document, it gives rise to a question of law.
(ii) The High Court should be satisfied that the case involves a substantial question of
law, and not a mere question of law. A question of law having a material bearing on the
decision of the case (that is, a question, answer to which affects the rights of parties to the
suit) will be a substantial question of law, if it is not covered by any specific provisions of
law or settled legal principle emerging from binding precedents, and, involves a
debatable legal issue. A substantial question of law will also arise in a contrary situation,
where the legal position is clear, either on account of express provisions of law or binding
precedents, but the court below has decided the matter, either ignoring or acting contrary
to such legal principle. In the second type of cases, the substantial question of law arises
not because the law is still debatable, but because the decision rendered on a material
question, violates the settled position of law.
13. The general rule is that High Court will not interfere with concurrent findings of the
Courts below. But it is not an absolute rule. Some of the well recognized exceptions are
where (i) the courts below have ignored material evidence or acted on no evidence; (ii)
the courts have drawn wrong inferences from proved facts by applying the law
erroneously; or (iii) the courts have wrongly cast the burden of proof. When we refer to
'decision based on no evidence', it not only refers to cases where there is a total dearth of
evidence, but also refers to any case, where the evidence, taken as a whole, is not
reasonably capable of supporting the finding.
14. In spite of several decisions of this Court highlighting the requirement of formulating
the substantial question of law, if any, before adjudicating the Second Appeal, time and
again, it has come to our notice that the mandatory requirement is not being followed.
15. The impugned order is set aside and the matter is remitted to the High Court to
formulate substantial question of law, if any, and thereafter decide the appeal. Needless to
say if there is no substantial question of law involved, the appeal has to be dismissed. We
make it clear that we have expressed any view as to whether any substantial question of
law is involved.
16. The appeal is allowed. There shall be no order as to costs.
Appeal allowed.
AIR 2008 SUPREME COURT 383 "Gulzar v. State of M. P."
Coram : 2 Dr. A. PASAYAT AND S. H. KAPADIA, JJ.
Criminal Appeal No. 7 of 2007 (arising out of SLP (Cri.) No. 4231 of 2006), D/- 4 -1
-2007.
Gulzar v. State of M.P.
(A) Penal Code (45 of 1860), S.379 - Evidence Act (1 of 1872), S.3 - THEFT -
EVIDENCE - Theft - Accused stealing an attache/bag containing cash from bus in which
complainant was travelling - Evidence of witness identifying attache - Clear and cogent -
Further, source of stolen cash found in possession of accused - Not explained -
Conviction - Justified.(Paras 8, 9)
(B) Probation of Offenders Act (20 of 1958), S.4 - Criminal P.C. (2 of 1974), S.360 -
General Clauses Act (10 of 1897), S.8(1) - PROBATION OF OFFENDERS - GENERAL
CLAUSES - OBJECT OF AN ACT - JUDGMENT - Benefit of probation - Scope of S. 4
of 1958 Act and S. 360 of Code - Different - Both statutes cannot co-exist at same time in
same area.
Section 360 of the Code relates only to persons not under 21 years of age convicted for
an offence punishable with fine only or with imprisonment for a term of seven years or
less, to any person under 21 years of age or any woman convicted of an offence not
punishable with sentence of death or imprisonment for life. The scope of Section 4 of the
P.O. Act is much wider. It applies to any person found guilty of having committed an
offence not punishable with death or imprisonment for life. Section 360 of the Code does
not provide for any role for Probation Officers in assisting the Courts in relation to
supervision and other matters while P.O. Act does make such a provision. Two statutes
with such significant differences could not be intended to co-exist at the same time in the
same area. Such co-existence would lead to anomalous results. The intention to retain the
provisions of Section 360 of the Code and the provisions of
@page-SC384
the P.O. Act as applicable at the same time in a given area cannot be gathered from the
provisions of Section 360 or any other provision of the Code. Therefore, by virtue of
Section 8(1) of the General Clauses Act, where the provisions of the Act have been
brought into force, the provisions of Section 360 of the Code are wholly inapplicable.
(Para 12)
S. K. Gambhir, Sr. Advocate, Ram Ekbal Roy, Harshvardhan Jha and M. P. Jha with him,
for Appellant; Ms. Vibha Datta Makhija, for Respondent.
* Cri. Revn. No. 170 of 2000, D/- 25-11-2005 (MP) (Indore Bench).
Judgement
Dr. ARIJIT PASAYAT, J:-Leave granted.
2. Challenge in this appeal is to the judgment rendered by a learned Single Judge of the
Madhya Pradesh High Court, Indore Bench. The appellant was found guilty of offence
punishable under Section 379 of the Indian Penal Code, 1860 (in short the 'IPC') and was
sentenced to undergo rigorous imprisonment for three years for stealing an attache
containing about Rs. 55,000/- from the possession of the complainant-Vinod Kumar
Aggarwal while he was travelling in a bus and had got down leaving this attachi behind.
3. The trial court had found the accused guilty. The appeal filed before the first appellate
authority was dismissed and so was the revision petition by the impugned judgment.
Complainant-Vinod Kumar Aggarwal lodged report at the Police Post, Bakaner on
25.12.1992 at about 7.30 p.m. that he had come to Manawar, Bakaner, Singhana,
Gandhwani for recovery of due money from the merchants of the tea leaves supplied by
him. In the morning, he had received money from Sugam Kirana and Gani Mohammad
etc. in Bakaner and after recovery of money from Singhana, Gandhwani had come to
Manawar and also recovered the money from the parties in Manawar and took seat in the
Manawar - Dhamnod Bakshi Bus at 6.30 p.m. in the evening. He had kept one attache
containing Rs. 50-60 thousands of all denominations inside by his side. On arrival at
Bakaner, he went to meet Kailash Rathore for five minutes. When he returned back he
did not find his attache. Someone had stolen about Rs.50-60 thousand along with the
attache. Two receipt books in the name of the shop Atul and Shyam, tea leaves sample,
one diary and one blue colour muffler were also lying in the said attache. On the basis of
this report of the complainant, an FIR bearing No.8/60 was registered with Police Post,
Bakaner and thereafter the Main Crime No.717/92 was registered with the Police Station,
Manawar and investigation was started. On completion of investigation, charge-sheet was
submitted against the accused in the Court.
5. The Courts below on consideration of the material on record convicted the accused.
Emphasis was laid on the recovery of the amount and the attache. Though a plea was
taken that father of the accused had given the money, he could not establish his capacity
to give the money to the accused. The sources indicated were found to be totally
unacceptable.
6. Learned counsel for the appellant submitted that there was no proper identification of
the so-called attache which was stolen. In any event the evidence is not sufficient to come
to a conclusion about commission of offence punishable under Section 379, IPC.
Additionally it was submitted that the effect of Sections 3 and 4 of the Probation of
Offenders Act, 1958 (in short the 'P.O. Act') in the background of what is stated in Section
360 of the Code of Criminal Procedure, 1973 (in short the 'Code') has not been kept in
view.
7. Learned counsel for the respondent on the other hand supported the judgment of the
courts below.
8. We find that the evidence of PW 9 is clear and cogent. He had identified the attache
which was recovered from the possession of the accused. Explanation was offered about
the source of money and the same was found to be wholly unacceptable. The source of
the sum of about Rs. 55,000/-, the possession of which was established was not
explained.
9. We do not find any infirmity in the conclusion arrived at by the courts below in
analyzing the evidence to fasten the guilt on the accused.
10. The residual question is applicability of Sections 3 and 4 of the P.O. Act and Section
360 of the Code.
11. Where the provisions of the P.O. Act are applicable the employment of Section 360 of
the Code is not to be made. In cases of such application, it would be an illegality
@page-SC385
resulting in highly undesirable consequences, which the legislature, who gave birth to the
P.O. Act and the Code wanted to obviate. Yet the legislature in its wisdom has obliged the
Court under Section 361 of the Code to apply one of the other beneficial provisions; be it
Section 360 of the Code or the provisions of the P.O. Act. It is only by providing special
reasons that their applicability can be withheld by the Court. The comparative elevation
of the provisions of the P.O. Act are further noticed in sub-section (10) of Section 360 of
the Code which makes it clear that nothing in the said Section shall affect the provisions
of the P.O. Act. Those provisions have a paramountcy of their own in the respective areas
where they are applicable.
12. Section 360 of the Code relates only to persons not under 21 years of age convicted
for an offence punishable with fine only or with imprisonment for a term of seven years
or less, to any person under 21 years of age or any woman convicted of an offence not
punishable with sentence of death or imprisonment for life. The scope of Section 4 of the
P.O. Act is much wider. It applies to any person found guilty of having committed an
offence not punishable with death or imprisonment for life. Section 360 of the Code does
not provide for any role for Probation Officers in assisting the Courts in relation to
supervision and other matters while P.O. Act does make such a provision. While Section
12 of the P.O. Act states that the person found guilty of an offence and dealt with under
Section 3 or 4 of the P.O. Act shall not suffer disqualification, if any, attached to
conviction of an offence under any law, the Code does not contain parallel provision. Two
statutes with such significant differences could not be intended to co-exist at the same
time in the same area. Such co-existence would lead to anomalous results. The intention
to retain the provisions of Section 360 of the Code and the provisions of the P.O. Act as
applicable at the same time in a given area cannot be gathered from the provisions of
Section 360 or any other provision of the Code. Therefore, by virtue of Section 8(1) of
the General Clauses Act, where the provisions of the Act have been brought into force,
the provisions of Section 360 of the Code are wholly inapplicable.
13. Enforcement of Probation Act in some particular area excludes the applicability of the
provisions of Sections 360, 361 of the Code in that area.
14. Section 3 of the P.O. Act refers particularly to Section 379, IPC. Same reads as
follows:
"3.Power of Court to release certain offenders after admonition- When any person is
found guilty of having committed an offence punishable under Section 379 or Section
380 or Section 381 or Section 404 or Section 420 of the Indian Penal Code or any offence
punishable with imprisonment for not more than two years, or with fine, or with both,
under the Indian Penal Code or any other law, and no previous conviction is proved
against him and the court by which the person is found guilty is of opinion that, having
regard to the circumstances of the case including the nature of the offence and the
character of the offender, it is expedient so to do, then, notwithstanding anything
contained in any other law for the time being in force, the court may, instead of
sentencing him to any punishment or releasing him on probation of good conduct under
Section 4, release him after due admonition.
Explanation- For the purposes of this section, previous conviction against a person shall
include any previous order made against him under this section or section4."
15. In the aforesaid background, we think it appropriate to remit the matter to the High
Court to consider whether the benefits under the P.O. Act or Section 360 of the Code can
be extended to the appellant. We make it clear that we have not expressed any opinion in
that regard.
Order accordingly.
AIR 2008 SUPREME COURT 385 "Naresh Kumar Madan v. State of M. P."
Coram : 2 S. B. SINHA AND MARKANDEY KATJU, JJ.
Criminal Appeal No. 519 of 2007 (arising out of SLP (Cri) No. 4529 of 2006), D/- 10 -4
-2007.
Naresh Kumar Madan v. State of M.P.
(A) Prevention of Corruption Act (49 of 1988), S.2(1)(c) - Electricity (Supply) Act (54 of
1948), S.81 - CORRUPTION - ELECTRICITY - PUBLIC SERVANTS - OBJECT OF
AN ACT - "Public servant" -
@page-SC386
Officer employed in M.P. Electricity Board - He is a public servant within the meaning of
Act of 1988 - Legal fiction u/S. 81 of 1948 Act - Object of - Various persons named
u/S.21, IPC - Not exhaustive.
Penal Code (45 of 1860), S.21.
2001 (1) MPHT 330, Overruled.
The officers of the State Electricity Board are required to carry out public functions. They
are public authorities. Their action in one way or the other may entail civil or evil
consequences to the consumers of electrical energy. They may prosecute a person. They
are empowered to enter into the house of the Board's consumers. It is only for proper and
effective exercise of those powers, the statute provides that they would be public
servants, wherefor a fiction has been created in favour of those employees, when acting
or purported to act in pursuance of any of the provisions of the Act within the meaning of
Section 21 of the Penal Code. The Penal Code denotes various persons to be public
servants. It is, however, not exhaustive. A person may be a public servant in terms of
another statute. However, a person who, inter alia, is in the service or pay of the
Government established by or under a Central, Provincial or State Act, would also come
within the purview thereof. Section 2 (1) (c) of the 1988 Act also brings within its
embrace a person in the service or pay of a corporation established by or under a Central
Act.
2001 (1) MPHT 330, Overruled.
(Para 14)
(B) INTERPRETATION OF STATUTES - Interpretation of Statutes - Same term used in
different Statutes - Interpretation of such term.
Different statutes may use the same term for diferent purposes. A term or a word may be
interpreted in the statute itself for fulfilling the purport and object mentioned therein
whereas in another statute it may be defined differently. Interpretation of a term in one
statute, however, cannot be done with reference to its definition contained in another.
2007 AIR SCW 5177, Foll. (Paras 5 and 6)
2007 AIR SCW 5177 : AIR 2007 SC 2854 (Foll., Pnt. B) 6
2006 AIR SCW 4858 (Ref., Pnt. A) 11
2001 (1) MPHT 330 (Overruled) 4, 15
2000 AIR SCW 698 : AIR 2000 SC 937 : 2000 Cri LJ 1494 (Disting., Pnt. A) 15, 17
Rajiv Dutta, Sr. Advocate Ms. Asha Gopalan Nair, Ms. Biji Rajesh and Vikash Sharma,
for Appellant; Ms. Vibha Datta Makhija, for Respondent.
* Cri. Revn. Petn. No. 664 of 2004, D/- 2-8-2006 (MP) (Gwalior Bench).
Judgement
S. B. SINHA, J.:- Leave granted.
Appellant is a Civil Engineer. He is employed in the Madhya Pradesh Electricity Board
constituted in terms of Section 5 of the Electricity (Supply) Act, 1948 (for short, 'the 1948
Act'). It is a body corporate and can sue and be sued in its own name under Section 12
thereof.
2. He allegedly took illegal gratification from the complainant for the purpose of grant of
an electrical connection. A trap was laid and Appellant was allegedly caught red handed
with a sum of Rs.1,000/-, which was accepted by him by way of illegal gratification from
the complainant.
3. A charge-sheet was filed against him under Section 7 read with Section 13(1)(d)/13(2)
of the Prevention of Corruption Act, 1988 (for short 'the 1988 Act'). An application was
filed by him contending that he being not a public servant, his prosecution under the 1988
Act was not maintainable. The learned Trial Judge rejected the said contention. A
Revision Application was filed by the appellant thereagainst before the High Court,
which was dismissed by the learned Single Judge of the High Court by reason of the
impugned judgment dated 02.08.2006.
4. Before the courts below as also before us, the contention of Appellant has been that
'public servant' having been defined in Section 81 of the 1948 Act, the same does not
satisfy the requirements of the definition as contained in Section 21 of the Indian Penal
Code. Strong reliance, in this behalf, has been placed on Bimal Kumar Gupta v. Special
Police Establishment Lokayukt [2001 (1) MPHT 330 : (2001) 3 JLJ 2], wherein it has
been held that employees of the Madhya Pradesh State Electricity Board are not public
servants.
5. Different statutes may use the same term for different purposes. A term or a word may
be interpreted in the statute itself for fulfilling the purport and object mentioned therein
whereas in another statute it may be defined differently.
6
. Interpretation of a term in one 2007 AIR SCW 5177
@page-SC387
statute, however, cannot be done with reference to its definition contained in another.
[See Raymond Ltd. v. State of Chhattisgarh and others (2007) 3 SCALE 341]
7. Keeping in view the aforementioned legal proposition, it may be necessary to construe
the definition of the term 'public servant' occurring in the relevant statutes.
8. Section 2(1) (c) of the 1988 Act defines 'public servant' in the following terms:
"c) "public servant" means-
(i) any person in the service or pay of the Government or remunerated by the
Government by fees or commission for the performance of any public duty;
xxx xxx xxx
(iii) any person in the service or pay of a corporation established by or under a Central,
Provincial or State Act, or an authority or a body owned or controlled or aided by the
Government or a Government company as defined in section 617 of the Companies Act,
1956 (1 of 1956);"
xxx xxx xxx
Explanation 1.-
Persons falling under any of the above sub-clauses are public servants, whether appointed
by the Government or not.
Explanation 2.-
Wherever the words "public servant" occur, they shall be understood of every person who
is in actual possession of the situation of a public servant, whatever legal defect there
may be in his right to hold that situation."
9. Section 21 of the Indian Penal Code defines 'public servant' to mean:
"The words "public servant" denote a person falling under any of the descriptions
hereinafter following; namely:-
xxx xxx xxx
Twelfth.- Every person-
(a) in the service or pay of the Government or remunerated by fees or commission for the
performance of any public duty by the Government;
(b) in the service or pay of a local authority, a corporation established by or under a
Central, Provincial or State Act or a Government company as defined in section 617 of
the Companies Act, 1956 (1 of 1956)."
10. Section 81 of the 1948 Act provides that members, officers and servants of the Board
to be public servant, stating:
"81. Members, officers and servants of the Board to be public servants.-All members and
officers and other employees of the Board shall be deemed, when acting or purporting to
act in pursuance of any of the provisions of this Act, to be public servants within the
meaning of Section 21 of the Indian Penal Code (45 of 1860)."
11. The object and purport of the provisions of the 1948 Act is different from the 1988
Act. It, as noticed hereinbefore, provides for constitution and composition of such
Electricity Board. Each State is indeed enjoined with a duty to constitute a Board. [See
Madhya Pradesh Electricity Board v. Union of India and Others [2006 (9) SCALE 194].
12
. Section 12 of the 1948 Act provides for incorporation of Board stating: 2006 AIR
SCW 4858
"Incorporation of Board.-The Board shall be a body corporate by the name notified under
sub-section (1) of section 5, having perpetual succession and a common seal, with power
to acquire and hold property both movable and immovable, and shall by the said name
sue and be sued."
13. Section 15 of the 1948 Act empowers the Board to appoint a Secretary and such other
officers and employees as may be required to enable it to carry out its functions under the
said Act. Appointment of a Secretary of the Board is subject to the approval of the State
Government. Section 65 of the 1948 Act provides for power of the Board to borrow funds
for the purposes mentioned therein wherefor however, previous sanction of the State
Government would be required to be obtained. Section 66 thereof provides for furnishing
of guarantee in respect of such loan advanced by the State Government. Section 78 of the
1948 Act empowers the State Government to make rules for the purposes mentioned
therein. Section 78A empowers the State Government to issue directions upon the Board
in the discharge of its functions. Such directions are binding upon the Board. State,
therefore, exercises a deep and pervasive control over the affairs of the Board.
14. The officers of the State Electricity
@page-SC388
Board are required to carry out public functions. They are public authorities. Their action
in one way or the other may entail civil or evil consequences to the consumers of
electrical energy. They may prosecute a person. They are empowered to enter into the
house of the Board's consumers. It is only for proper and effective exercise of those
powers, the statute provides that they would be public servants, wherefor a legal fiction
has been created in favour of those employees, when acting or purported to act in
pursuance of any of the provisions of the Act within the meaning of Section 21 of the
Indian Penal Code. Indian Penal Code denotes various persons to be public servants. It is,
however, not exhaustive. A person may be a public servant in terms of another statute.
However, we may notice that a person who, inter alia, is in the service or pay of the
Government established by or under a Central, Provincial or State Act, would also come
within the purview thereof. Section 2(1)(c) of the 1988 Act also brings within its embrace
a person in the service or pay of a corporation established by or under a Central Act.
15. We, therefore, fail to see any reason as to why the appellant would not answer the
description of public servant within the provisions of the said Act. The decision of the
learned Single Judge of the Madhya Pradesh High Court in Bimal Kumar Gupta (supra),
in our opinion, does not lay down the correct law. Referring to Section 81 of the 1948
Act, it held :
"14. Considering the aforesaid provisions of law, it emerged that for the purpose of the
Act of 1947, a "public servant" is a person who is covered under the definition of 'public
servant' as given under Section 21 of the IPC. On careful perusal of the definition of
'public servant' as given in Section 21 of the IPC, it is found that the employees of the
Electricity Board are not covered under any of the clauses of the said Section. However,
by virtue of Section 81 of the Electricity (Supply) Act, 1948, all the members, officers
and employees of the Board when acting or purporting to act in pursuance of any of the
provisions of the Act are deemed to be public servant under Section 21 of the IPC. As
such, it can be inferred that by virtue of Section 81 of the Electricity (Supply) Act, the
Board employees when acting in pursuance of the provisions of the Act are considered
'deemed public servants' under Section 21 of the IPC. But as held by the Apex Court in
case of State of Maharashtra v. Laljit Rajashi Shah (supra) on the ground of 'deemed
provision' a person covered under the definition of Section 21 of the IPC cannot be
considered 'public servant' for the purpose of prosecution under the provisions of the
Prevention of Corruption Act, 1947. In the aforesaid case, in view of the analogous
provision of 'deemed to be public servant' for certain employees of the Co-operative
Societies under Maharashtra Co-operative Societies Act, were not considered as public
servant for the purpose of the Act of 1947..." 2000 AIR SCW 698
16. With respect we do not agree with the aforementioned inference of the learned Judge.
17
. The Prevention of Corruption Act, 1947 was repealed and enacted in the year 1988. The
definition of 'public servant', as contained in Section 2(c) thereof, is a broad based one.
Reliance was placed by the learned Judge in the case of State of Maharashtra v. Laljit
Rajashi Shah and others [AIR 2000 SC 937]. Therein the Court was dealing with a case
of a member of a co-operative society. It was not dealing with the case of an employee of
a statutory corporation. The said decision, therefore, has no application to the facts of the
present case. 2000 AIR SCW 698
18. Definition of 'public servant' will have to be construed having regard to the provisions
of the 1988 Act. By giving effect to the definition of 'public servant' in the 1988 Act, the
legal fiction is not being extended beyond the purpose for which it was created or beyond
the language of the section in which it was created.
19. For the reasons aforementioned, we find no merits in this appeal, which is
accordingly dismissed.
Appeal dismissed.
AIR 2008 SUPREME COURT 388 "Hasi Mohan Barman v. State of Assam"
(From : 2007 (2) Gauhati L. T. 98)
Coram : 2 G. P. MATHUR AND ALTAMAS KABIR, JJ.
-11 -2007.
Hasi Mohan Barman and Anr. v. State of Assam and Anr. @page-SC389
Criminal P.C. (2 of 1974), S.320 - Penal Code (45 of 1860), S.313 - COMPOUNDING
OF OFFENCE - MISCARRIAGE - SENTENCE IMPOSITION - SENTENCE
REDUCTION - Compounding of offences - Offence of causing miscarriage without
consent - Not compoundable - Consent given by complainant to withdraw complaint
against accused in view of fact of marriage between them - Cannot be utilised to acquit
accused - Sentence imposed on accused, however, reduced to period already undergone in
view of marriage between accused and the complainant. (Paras 8, 12)
(2006)9 SCC 255 (Rel. on) 11
(2005)7 SCC 55 (Rel. on) 11
AIR 1973 SC 2418 : 1973 Cri LJ 1612 (Rel. on) 10
P. K. Goswami, K. T. S. Tulsi (A. C.), Sr. Advocate, Rajiv Mehta, A. Henry, B. Aggrawal,
Gaurave Bhargava and Ms. Evneet Uppal, with them for Appellants; Jai Prakash Pandey
and Avijit Roy (for M/s. Corporate Law Group), for Respondents.
Judgement
G. P. MATHUR, J.:- Leave granted.
2. This appeal, by special leave, has been preferred against the judgment and order dated
2.1.2007 of Gauhati High Court by which the appeal preferred by the appellants was
disposed of with the modification that the sentence of five years R.I. and fine of
Rs.7,000/- imposed upon each of the appellants under Section 313 read with Section 34
IPC by the learned Additional Sessions Judge, Kokrajhar, was reduced to three years R.I.
and fine of Rs.5,000/-.
3. The case of the prosecution, in brief, is that the appellant Hasi Mohan Barman was
having love affair with the first informant PW-1 Haleswari Barman, which subsequently
developed into physical relationship and as a result thereof PW-1 became pregnant. The
villagers put pressure upon Hasi Mohan Barman to marry PW-1 which he declined. He
asked PW-1 to abort the child which she refused to do. Thereafter, in the night of the
incident Hasi Mohan Barman took PW-1 Haleswari Barman to the pharmacy of co-
accused Abinash Biswas, who administered certain injection whereupon PW-1 became
unconscious and the child was aborted. She was administered saline and the appellant
Hasi Mohan Barman kept her at 'Pampghar' for about nine days wherefrom she was taken
to her parents house. After few days PW-1 lodged an FIR against both the appellants. The
police, after investigation, submitted charge-sheet only against Hasi Mohan Barman but
subsequently co-accused Abinash Biswas was also summoned under Section 319 Cr.P.C.
to face the trial.
4. In the trial PW-1 Haleswari Barman deposed that on the promise that the appellant No.
1 will marry her they entered into sexual relationship and as a result whereof she became
pregnant. Thereafter, the appellant No. 1 put pressure upon her to abort the child but she
did not agree. On the night of occurrence the appellant No. 1 along with his brother
forcibly took her to the pharmacy of co-accused Abinash Biswas and she was forcibly
administered an injection due to which she became unconscious. When she regained
consciousness she saw that saline was being administered to her. After some time on the
asking of appellant No. 1 co-accused Abinash Biswas administered another injection due
to which she became unconscious. When she regained consciousness she found that she
had lost her pregnancy and then she was taken to the house of her parents.
5. PW-4 Dr. Dilip Bhowmik, an Ayurvedic Physician, has deposed that the appellant Hasi
Mohan Barman had brought PW-1 to his clinic and on examination he had found that
PW-1 was running pregnancy of 4-5 months. As she had some problem he gave some
medicine to her. PW-3 Dr. Rezaul Karim examined PW-1 on 22.3.1995, i.e., more than
one month after the abortion and found as follows :-
"There was active slight bleeding as per vagina. For confirmation D and E (Dilatation
and Evacuation) done and found placental parts inside the uterine cavity which is a sign
of incomplete abortion i.e. she was pregnant."
6. The High Court, after a thorough examination of the evidence, has recorded a finding
that PW-1 was pregnant through the appellant Hasi Mohan Barman who wanted PW-1 to
abort the child. As PW-1 declined to do so, Hasi Mohan Barman with the help of Abinash
Biswas caused miscarriage of the pregnancy without the consent of PW-1. The High
Court accordingly held that it was
@page-SC390
established beyond any shadow of doubt that both the appellants had committed an
offence under Section 313 IPC. The High Court thus maintained the conviction but
reduced the sentence from seven years R.I. and a fine of Rs.7,000/- to three years R.I. and
a fine of Rs.5,000/- of both the appellants.
7. It appears that during the pendency of the case the complainant Haleswari Barman
married appellant No. 1 Hasi Mohan Barman and both of them are living as husband and
wife. She filed an affidavit that she had entered into a compromise and wanted the
criminal case pending against her husband Hasi Mohan Barman and the appellant No. 2
Abinash Biswas to be withdrawn as the entire matter had been compromised and both
PW-1 and the first appellant were living peacefully as husband and wife. This Court
passed an order directing the learned Additional Sessions Judge to verify the correctness
of the affidavit given by PW-1 Haleswari Barman. The learned Additional Sessions Judge
has sent a report to this Court that PW-1 Haleswari Barman had verified the affidavit
given by her and had deposed about the correctness of the same, namely, that she and
Hasi Mohan Barman were living peacefully as husband and wife. In view of this
development that PW-1 Haleswari Barman and appellant No. 1 Hasi Mohan Barman have
married and are peacefully and happily living as husband and wife it has been submitted
that the appeal deserves to be allowed and the conviction of the appellants should be set
aside.
8. Section 320 of Code of Criminal Procedure says that the offences punishable under the
sections of the Indian Penal Code (45 of 1860) specified in the first two columns of the
table next following may be compounded by the persons mentioned in the third column
of that table. A perusal of Section 320 will show that the offence under Section 313 IPC is
not compoundable. Therefore, the consent given by the wife PW-1 or the affidavit filed
by her cannot be utilized for the purpose of recording a finding of acquittal in favour of
the accused appellants.
9. There are some decisions of this Court wherein the factor of compromise between the
accused and the complainant (or injured or person aggrieved) has been taken into
consideration for reducing the sentence.
10
. The first decision on this point was rendered by this Court in Ram Pujan and others vs.
State of Uttar Pradesh (1973) 2 SCC 456, wherein the trial Court had convicted the
accused under Section 326 IPC which is a non-compoundable offence and had sentenced
the accused to four years R.I. The High Court took into consideration the compromise
between the accused appellant and the injured and reduced the sentence to two years R.I.
This Court, after observing that the fact of compromise can be taken into account in
determining the quantum of sentence, reduced the sentence to the period already
undergone which was little more than four months and further imposed a fine of
Rs.1500/- on each of the appellants. Surendra Nath Mohanty and another vs. State of
Orissa (1999) 5 SCC 238 is a decision of a Bench of three learned Judges. It was
observed that in view of the legislative mandate contained in Section 320 Cr.P.C. an
offence can be compounded only in accordance with the provisions of the said section.
The Court followed the view taken in the case of Ram Pujan (supra) and having regard to
the fact that the parties had compromised and a period of ten years had elapsed from the
date of the incident reduced the sentence of five years R.I. imposed under Sections 307
and 326 IPC to the period of sentence already undergone which was three months and
also imposed fine of Rs.5,000/-. AIR 1973 SC 2418
1999 AIR SCW 2199
11
. There are several other decisions of this Court wherein factor of compromise has been
taken into consideration and the sentence has been reduced mostly to the period already
undergone and they are Bankat and another vs. State of Maharashtra (2005) 1 SCC 343,
Badrilal vs. State of M.P. (2005) 7 SCC 55 and Jetha Ram and others vs. State of
Rajasthan (2006) 9 SCC 255. 2004 AIR SCW 6624
12. Following the view taken in the above noted cases we are of the opinion that the
complainant and the principal accused having already married it will be in the interest of
justice if the sentence is reduced to the period already undergone. The appeal is
accordingly partly allowed. The conviction of the appellants under Section 313 IPC is
maintained but the sentence is reduced to the period already undergone which appears to
be about ten months. The fine imposed upon the appellants is also set aside. The
appellants are on bail. Their sureties and
@page-SC391
bail bonds are discharged.
Order accordingly.
AIR 2008 SUPREME COURT 391 "Sitaram v. State of Jharkhand"
(From : Jharkhand)*
Criminal Appeal No. 1528 with 1531 of 2007 (arising out of SLP (Cri) No. 4942 with
6265 of 2005), D/- 12 -11 -2007.
Sitaram Sao @ Mungeri v. State of Jharkhand.
(A) Evidence Act (1 of 1872), S.133, S.114(b) - EVIDENCE - ACCOMPLICE -
Accomplice evidence - Is admissible - Can be made basis for conviction without
corroboration - Rule of corroboration is matter of prudence - 'May' in S. 114(b) - Cannot
be converted in 'must' - Extent/nature of corroboration required, stated.
S. 133 of the Evidence Act expressly provides that an accomplice is a competent witness
and the conviction is not illegal merely because it proceeds on an uncorroborated
testimony of an accomplice. In other words, this section renders admissible such
uncorroborated testimony. But this section has to be read along with S. 114, illustration
(b). Illustration (b) to S. 114 in express terms says that accomplice is unworthy of credit
unless he is corroborated in material particulars. The statute permits the conviction of an
accused on the basis of uncorroborated testimony of an accomplice but the rule of
prudence embodied in illustration (b) to S. 114 of the Evidence Act strikes a note of
warning cautioning the Court that an accomplice does not generally deserve to be
believed unless corroborated in material particulars. In other words, the rule is that the
necessity of corroboration is a matter of prudence except when it is safe to dispense with
such corroboration. Although S. 114 illustration (b) provides that the Court may presume
that the evidence of an accomplice is unworthy of credit unless corroborated, 'may' is not
'must' and no decision of Court can make it must. (Paras 15, 16)
As regards nature of corroborative evidence that is necessary. It is not necessary that
there should be independent confirmation of every material circumstance in the sense that
the independent evidence in the case, apart from the testimony of the complainant or the
accomplice, should in itself be sufficient to sustain conviction. All that is required is that
there must be some additional evidence rendering it probable that the story of the
accomplice is true and that it is reasonably safe to act upon it. The independent evidence
must not only make it safe to believe that the crime was committed but must in some way
reasonably connect or tend to connect the accused with it by confirming in some material
particular the testimony of the accomplice or complainant that the accused committed the
crime. The corroboration must come from independent sources and thus ordinarily the
testimony of one accomplice would not be sufficient to corroborate that of another. The
corroboration need not be direct evidence that the accused committed the crime. It is
sufficient if it is merely circumstantial evidence of his connection with the crime. Were it
otherwise, 'many crimes which are usually committed between accomplices in secret,
such as incest, offences with females (or unnatural offences) could never be brought to
justice'. (Paras 26, 27, 28, 29, 30)
(B) Penal Code (45 of 1860), S.364, S.396, S.120B - ABDUCTION - DACOITY -
MURDER - CRIMINAL CONSPIRACY - Abduction, looting and murder - Accused
driver with others alleged to have abducted, killed and looted wife of his employer -
Evidence of one of accused turned approver giving sequence of events which led to
murder of deceased as to how conspiracy was hatched and how it was executed - Injuries
found on body of deceased and recovery of looted money from driver - Corroborating
evidence of approver - Conviction of accused on evidence of approver proper. (Para
32)
(C) Criminal P.C. (2 of 1974), S.306 - ACCOMPLICE - PARDON - Examination of
approver - To be conducted after grant of pardon - He has to be examined as a witness in
presence of accused and also cross examined. (Para 34)
2004 AIR SCW 6372 : AIR 2005 SC 128 : 2005 Cri LJ 143 (Rel. on, Pnt A) 31
1995 AIR SCW 2717 (Rel. on, Pnt A) 30
1994 AIR SCW 3420 : AIR 1994 SC 2420 : 1994 Cri LJ 3271 (Rel. on, Pnt A) 15
@page-SC392
AIR 1979 SC 569 : 1979 Cri LJ 476 (Ref., Pnt A) 18

(1973)1 All ER 440 : (1973)2 WLR 254 23
(1972)3 All ER 1056 : (1972)3 WLR 910 22
AIR 1963 SC 599 : 1963 (1) Cri LJ 489 (Ref., Pnt A) 21
AIR 1959 SC 1199 : 1959 Cri LJ 1492 (Ref., Pt A) 21
AIR 1952 SC 54 : 1952 Cri LJ 547 (Ref., Pnt A) 25, 26
AIR 1949 PC 257 14
1916 (2) KB 658 : 86 LJ KB 28 17, 24
(1861) 9 Cox CC 32 21
P. S. Mishra, Sr. Advocate, Tathagat H. Vardhan, Dhruv Kumar Jha, Ravi C. Prakash,
Manu Shanker Mishra, Mrs. Santosh Singh (AC), for Appellant; Anil K. Jha, for
Respondent.
* Cri. Appeal No. 575 of 2002, D/- 29-6-2005 (Jhar.)
Judgement
Dr. ARIJIT PASAYAT, J. :-Leave granted.
2. Challenge in these appeals is to the judgment of a Division Bench of the Jharkhand
High Court dismissing the appeals filed by the appellants and upholding the conviction
for offences punishable under Sections 364 and 396 read with Section 120B of the Indian
Penal Code, 1860 (in short the 'IPC'). In fact, the High Court disposed of two appeals
both directed against the judgment of conviction dated 16th July, 2002 and 23rd July,
2002 passed in Sessions Trial No.156/1997. As noted above, the trial Court found both
the accused appellants guilty and awarded the sentence of imprisonment for life for the
offences punishable under Sections 364 and 396 IPC. However, no separate sentence
under Section 120B was awarded, while the co-accused Laxmi Prasad was further
sentenced to the period already undergone for offence punishable under Section 412 IPC.
3. The High Court did not find any substance in the appeals and dismissed the same as
noted above.
On 8.1.1992, Gayatri Devi, wife of the informant, had gone to Pandra Agricultural
Market by her Ambassador car bearing registration No. AAY 7375 and from there she left
for her residence at about 8 p.m. after collecting the sale proceeds of the day of shop
Nos.244 to 251. The driver of the car, Laxmi Paswan, who was one of the accused, was
driving the car. Gayatri Devi after collecting a sum of Rs.1,84,405/- did not return to her
house, the informant informed Sukhdeo Nagar P.S. regarding the missing of his wife and
the driver of the car, Laxmi Paswan. Laxmi Paswan was employed by the informant as
the driver of his car on the recommendation of the previous driver, namely, Rajendra
Choudhary. When the wife of the informant as well as the driver did not return till night,
the informant, on the next morning i.e. on 9.1.1992, submitted a written report alleging
therein that Laxmi Paswan, driver of the car, in collusion with anti-social elements,
abducted his wife and car in order to kill her and snatch the money. It was alleged that
informant came to know from reliable sources that his car was seen in the night on Ranch
Ramgarh road.
On the basis of the aforesaid information, Sukhdeo Nagar P.S. registered a case under
Section 364 IPC against Laxmi Paswan only and in course of investigation the dead body
of the wife of the informant, namely, Gayatri Devi, was found on Giddi National road
under Ramgarh P.S. After preparing the inquest report, in the presence of the witnesses,
the I.O. of the case sent the dead body to RMCH for post-mortem. Subsequently, the car
of the informant bearing registration No. AAY 7375 was found lying abandoned near
Kujju town outpost. Subsequently the officer incharge of Sukhdeo Nagar P.S. took the
said car from the Kujju TOP in his possession and a search was made in the presence of
the witnesses and in the course of search, certain articles were seized. The seizure list was
prepared and in the course of investigation, accused Laxmi Paswan was arrested on
14.1.1992 from his village Mungrahi within the district of Aurangabad and a part of the
money stolen from Gayatri Devi amounting to Rs.30,695/- was also recovered from his
house on the basis of his confessional statement. Laxmi Paswan disclosed the name of his
associates to the police and subsequently, the other accused persons were also arrested. In
course of investigation, on the basis of confessional statement, a sum of Rs.27,220/- was
also recovered from the house of Girja Singh. Later, one of the accused, namely, Lalit
Sanga was also arrested, who confessed his guilt before the police and expressed his
desire to give statement with regard to the occurrence. His statement was recorded by
Chief Judicial Magistrate under Section 306 of the Code of Criminal Procedure, 1973 (in
short 'Cr. P.C.') and was granted pardon. The case was
@page-SC393
committed to the Court of Sessions, which was registered as ST No.319/92 and thereafter
the accused persons faced trial in the court of learned VIth Additional Judicial
Commissioner, Ranchi and the learned Additional Judicial Commissioner, on
consideration of evidence on record, found them guilty; but acquitted two accused
persons, namely, Girja Singh and Dinesh Kumar Singh by his judgment dated 1.10.1992.
One of the accused, namely, Laxmi Paswan was sentenced to death, while other accused
persons were sentenced to undergo RI for life. Thereafter, both the State and the accused
persons preferred appeal against the impugned judgment and the High Court, by its
judgment dated 28th July, 1993, set aside the judgment of conviction passed by the VIth
Additional Judicial Commissioner, Ranchi and the case was remanded to the Court of
Learned Chief Judicial Magistrate, Ranchi for fresh commitment proceeding and learned
C.J.M. was directed to examine Lalit Sanga, the approver, (PW6), as prosecution witness
in accordance with law and procedure. After remand of the case, the learned C.J.M.
examined approver Lalit Sanga under Section 306 Cr.P.C. and thereafter committed the
case to the Court of Sessions by order dated 19.2.1997 and after remand of the case, the
case was registered as Sessions Trial No.156/97. The Learned Judicial Commissioner,
Ranchi transferred the case to another Court for holding the trial of the accused persons.
On receipt of the record, charges were framed against the accused persons for offences
punishable under Sections 396, 412 and 120 (B) IPC.
5. Trial proceeded and in the course of trial the trial Court recorded evidence of twenty-
three witnesses, besides documentary evidence and material exhibits and ultimately came
to a finding that the appellants are guilty and accordingly convicted them. After recording
of the statement, accused Girja Singh fled away and, therefore, his trial was separated
from the trial of other accused.
6. The trial Court recorded evidence of 23 witnesses and scrutinized their evidence and
found the accused-appellants guilty. In this case, all necessary witnesses such as I.O.,
doctor and informant were examined. In appeal the High Court held that the prosecution
has not left any laches on its part in examining the witnesses connected with this case.
7. The basic contention of the appellants, as contended before the High Court, was that
there was no eye witness in the occurrence and simply on the basis of evidence of Lalit
Sanga, the approver, the accused persons have been found to be guilty. It is submitted that
the manner in which Lalit Sanga was granted pardon is illegal. Reference was made to
the judgment passed by the High Court in Criminal Appeal No.202/1992. It is pointed out
that the evidence recorded in the first sessions case where Sessions trial No.319/1992 was
set aside and when the judgment in question was set aside, the procedure should have
been started afresh. By the judgment, the case was remanded to the Court of C.J.M. who
was directed to examine Lalit Sanga as a witness. It is the grievance of the accused
appellants that the procedure laid down under Section 306 Cr.P.C. was not followed after
the direction of the High Court in the first judgment. Lalit Sanga was examined in the
presence of the accused persons and he was cross-examined and thereafter case was
committed to the Court of Sessions but Lalit Sanga was not granted pardon and he was
examined again by the order of the High Court. Therefore, it is submitted that there was
non-compliance of the requirements of Section 306 Cr.P.C. It was submitted that he
should have been granted pardon and thereafter as per the provisions of Section 306
Cr.P.C. he should have been examined as a witness in the presence of accused and he
should have been cross examined. But only one part has been complied with and
thereafter case was committed to the Court of Sessions but the first part that he was to be
granted pardon has not been complied with. It is also submitted that the alleged
confession of this witness does not satisfy the requirements of Section 133 of the Indian
Evidence Act, 1872 (in short the 'Evidence Act'). Accused Lalit Sanga had not confessed
to his active participation in the occurrence. His evidence is also not fully truthful.
8. Learned counsel for the State on the other hand supported the impugned judgment.
9. The High Court noted that the order of CJM was not set aside. What was set aside
partly was that Lalit Sanga was examined but not cross examined and his statement was
not recorded in the presence of the
@page-SC394
accused. That part of the order has been complied with and Lalit Sanga was examined in
the presence of the accused and he was also cross examined and thereafter case was
committed to the Court of Sessions.
10. We shall deal with this part of the appeal later. It is to be noted that learned counsel
for the respondent-State submitted that the procedure mandated under Section 306 Cr.P.C.
has been fully complied with.
11. Learned counsel for the State has submitted that not only has there been compliance
with the requirements of Section 306 Cr.P.C. but also Section 133 read with Section 114
(b) of the Evidence Act.
12. Sections 133 and 114 (b) of the Evidence Act read as follows:
"133. Accomplice- An accomplice shall be a competent witness against an accused
person; and a conviction is not illegal merely because it proceeds upon the
uncorroborated testimony of an accomplice.
114(b)- The Court may presume that an accomplice is unworthy of credit, unless he is
corroborated in material particulars."
13. Section 133 of the Evidence Act is of significance. It relates to the evidence of an
accomplice. In positive terms it provides that the conviction based on the evidence of an
accomplice is not illegal merely because it proceeds upon the uncorroborated testimony
of an accomplice, because the accomplice is a competent witness.
14. In Bhubon Sahu v. The King (AIR 1949 PC 257), it was observed that the rule
requiring corroboration for acting upon the evidence of an accomplice is a rule of
prudence. But the rule of prudence assumes great significance when its reliability on the
touchstone of credibility is examined. If it is found credible and cogent, the Court can
record a conviction even on the uncorroborated testimony of an accomplice. On the
subject of the credibility of the testimony of an accomplice, the proposition that an
accomplice must be corroborated does not mean that there must be cumulative or
independent testimony to the same facts to which he has testified. At the same time, the
presumption available under Section 114 of the Evidence Act is of significance. It says
that the Court may presume that an accomplice is unworthy of credit unless he is
corroborated in "material particulars".
15
. Section 133 of the Evidence Act expressly provides that an accomplice is a competent
witness and the conviction is not illegal merely because it proceeds on an uncorroborated
testimony of an accomplice. In other words, this section renders admissible such
uncorroborated testimony. But this Section has to be read along with Section 114,
illustration (b). The latter section empowers the Court to presume the existence of certain
facts and the illustration elucidates what the Court may presume and make clear by
means of examples as to what facts the Court shall have regard in considering whether or
not maxims illustrated apply to a given case. Illustration (b) in express terms says that
accomplice is unworthy of credit unless he is corroborated in material particulars. The
Statute permits the conviction of an accused on the basis of uncorroborated testimony of
an accomplice but the rule of prudence embodied in illustration (b) to Section 114 of the
Evidence Act strikes a note of warning cautioning the Court that an accomplice does not
generally deserve to be believed unless corroborated in material particulars. In other
words, the rule is that the necessity of corroboration is a matter of prudence except when
it is safe to dispense with such corroboration must be clearly present in the mind of the
Judge. [See Suresh Chandra Bahri v. State of Bihar (AIR 1994 SC 2420)]. 1994 AIR
SCW 3420
16. Although Section 114 illustration (b) provides that the Court may presume that the
evidence of an accomplice is unworthy of credit unless corroborated, "may" is not must
and no decision of Court can make it must. The Court is not obliged to hold that he is
unworthy of credit. It ultimately depends upon the Court's view as to the credibility of
evidence tendered by an accomplice.
17. In Rex v. Baskerville (1916 (2) KB 658), it was observed that the corroboration need
not be direct evidence that the accused committed the crime; it is sufficient if there is
merely a circumstantial evidence of his connection with a crime.
18. G. S. Bakshi v. State (Delhi Administration) (AIR 1979 SC 569) was dealing with a
converse case that if the evidence of an accomplice is inherently improbable then it
cannot get strength from corroboration.
19. Taylor, in his treatise has observed that "accomplice who are usually interested and
always infamous witnesses, and whose
@page-SC395
testimony is admitted from necessity, it being often impossible, without having recourse
to such evidence, to bring the principal offenders to justice". (Taylor in "A Treatise on the
Law of Evidence" (1931) Vol. 1 para 967).
20. The evidence of the approver must, however, be shown to be of a reliable witness.
21
. In Jnanendra Nath Ghose v. State of West Bengal [(1960) 1 SCR 126] this Court
observed that there should be corroboration in material particulars of the approver's
statement, as he is considered as a self-confessed traitor. This Court in Bhiva Doulu Patil
v. State of Maharashtra, [AIR 1963 SC 599] held that the combined effect of Sections 133
and 114 illustration (b) of the Evidence Act was that an accomplice is competent to give
evidence but it would be unsafe to convict the accused upon his testimony alone. Though
the conviction of an accused on the testimony of an accomplice cannot be said to be
illegal, yet the Courts will, as a matter of practice, not accept the evidence of such a
witness without corroboration in material particulars. In this regard the Court in Bhiva
Doulu Patil's case observed as under: AIR 1959 SC 1199
At pp. 60001, Para 6 of AIR
"In coming to the above conclusion we have not been unmindful of the provisions of S.
133 of the Evidence Act which reads:
Sec.133. "An accomplice shall be a competent witness against an accused person; and a
conviction is not illegal merely because it proceeds upon the uncorroborated testimony of
an accomplice."
It cannot be doubted that under that section a conviction based merely on the
uncorroborated testimony of an accomplice may not be illegal, the Courts nevertheless
cannot lose sight of the rule of prudence and practice which in the words of Martin B. in
R. v. Boyes, (1861) 9 Cox CC 32 "has become so hallowed as to be deserving of respect
and the words of Lord Abinger "It deserves to have all the reverence of the law:." This
rule of guidance is to be found in illustration (b) to S. 114 of the Evidence Act which is as
follows:
"The Court may presume that an accomplice is unworthy of credit unless he is
corroborated in material particulars."
22. The word 'corroboration' means not mere evidence tending to confirm other evidence.
In DPP v. Hester (1972) 3 All ER 1056, Lord Morris said :
"The purpose of corroboration is not to give validity or credence to evidence which is
deficient or suspect or incredible but only to confirm and support that which as evidence
is sufficient and satisfactory and credible; and corroborative evidence will only fill its
role if it itself is completely credible ......"
23. In D.P.P. v. Kilbourne (1973) 1 All ER 440, it was observed thus:
"There is nothing technical in the idea of corroboration. When in the ordinary affairs of
life one is doubtful whether or not to believe a particular statement one naturally looks to
see whether it fits in with other statements or circumstances relating to the particular
matter; the better it fits in the more one is inclined to believe it. The doubted statement is
corroborated to a greater or lesser extent by the other statements or circumstances with
which it fits in."
24. In R. V. Baskerville( supra), which is a leading case on this aspect, Lord Reading said
:
"There is no doubt that the uncorroborated evidence of an accomplice is admissible in
law ..... But it has long been a rule of practice at common law for the Judge to warn the
jury of the danger of convicting a prisoner on the uncorroborated testimony of an
accomplice or accomplices, and, in the discretion of the Judge, to advise them not to
convict upon such evidence; but the Judge should point out to the jury that it is within
their legal province to convict upon such unconfirmed evidence ...... This rule of practice
has become virtually equivalent to a rule of law, and since the Court of Criminal Appeal
Act, 1907, came into operation this Court has held that, in the absence of such a warning
by the Judge, the conviction must be quashed ...... If after the proper caution by the Judge
the jury nevertheless convicts the prisoner, this Court will not quash the conviction
merely upon the ground that the testimony of the accomplice was uncorroborated."
25
. In Rameshwar v. State of Rajasthan (AIR 1952 SC 54), Bose, J., after referring to the
rule laid down in Baskerville case with regard to the admissibility of the uncorroborated
testimony of an accomplice, held thus: Paras 18 and 20 of AIR
"That, in my opinion, is exactly the law

@page-SC396
in India so far as accomplices are concerned and it is certainly not any higher in the case
of sexual offences. The only clarification necessary for purposes of this country is where
this class of offence is sometimes tried by a Judge without the aid of a jury. In these cases
it is necessary that the Judge should give some indication in his judgment that he has had
this rule of caution in mind and should proceed to give reasons for considering it
unnecessary to require corroboration on the facts of the particular case before him and
show why he considers it safe to convict without corroboration in that particular case."
Justice Bose in the same judgment further observed thus :
"I turn next to the nature and extent of the corroboration required when it is not
considered safe to dispense with it. Here, again, the rules are lucidly expounded by Lord
Reading in Baskerville case at pages 664 to 669. It would be impossible, indeed it would
be dangerous, to formulate the kind of evidence which should, or would, be regarded as
corroboration. Its nature and extent must necessarily vary with circumstances of each
case and also according to the particular the offence charged. But to this extent the rules
are clear."
26
. First, it is not necessary that there should be independent confirmation of every material
circumstance in the sense that the independent evidence in the case, apart from the
testimony of the complainant or the accomplice, should in itself be sufficient to sustain
conviction. As Lord Readings says- AIR 1952 SC 54, Para 21
'Indeed, if it were required that the accomplice should be confirmed in every detail of the
crime, his evidence would not be essential to the case, it would be merely confirmatory of
other and independent testimony.'
27. All that is required is that there must be some additional evidence rendering it
probable that the story of the accomplice (or complainant) is true and that it is reasonably
safe to act upon it.
28. Secondly, the independent evidence must not only make it safe to believe that the
crime was committed but must in some way reasonably connect or tend to connect the
accused with it by confirming in some material particular the testimony of the accomplice
or complainant that the accused committed the crime. This does not mean that the
corroboration as to identify must extend to all the circumstances necessary to identify the
accused with the offence. Again, all that is necessary is that there would be independent
evidence which will make it reasonably safe to believe the witness's story that the
accused was the one, or among those, who committed the offence. The reason for this
part of the rule is that-
"a man who has been guilty of a crime himself will always be able to relate the facts of
the case, and if the confirmation be only on the truth of that history, without identifying
the persons, that is really no corroboration at all ...... It would not at all tend to show that
the party accused participated in it."
29. Thirdly, the corroboration must come from independent sources and thus ordinarily
the testimony of one accomplice would not be sufficient to corroborate that of another.
But of course the circumstances may be such as to make it safe to dispense with the
necessity of corroboration and in those special circumstances a conviction so based
would not be illegal. I say this because it was contended that the mother in this case was
not an independent source.
30
. Fourthly, the corroboration need not be direct evidence that the accused committed the
crime. It is sufficient if it is merely circumstantial evidence of his connection with the
crime. Were it otherwise, "many crimes which are usually committed between
accomplices in secret, such as incest, offences with females' (or unnatural offences)
'could never be brought to justice". [See: M.O. Shamsudhin v. State of Kerala (1995 (3)
SCC 351)]. 1995 AIR SCW 2717
31
. The above position was highlighted in K. Hashim v. State of Tamil Nadu [2005(1) SCC
237]. 2004 AIR SCW 6372
32. Accused Lalit Sanga in his evidence has given the sequence of events which led to the
murder of Gayatri Devi and he has also deposed as to how a conspiracy was hatched up
and how the conspiracy was executed with the help of other accused persons and how
Gayatri Devi was stabbed by Laxmi Paswan on the instigation and active participation of
accused Lalu Ram. It has been stated on behalf of the accused-appellant that this witness
did not give the name of the boy, who came to call him nor he gave
@page-SC397
the number of auto rickshaw and the place, where other associates were standing. Though
all these points are not material but the evidence of PW-6 stands corroborated when
doctor found injury on the body of Gayatri Devi and further that abrasions were also
found on the cheek and neck when accused-appellant pressed the mouth of Gayatri Devi
so that she may not raise alarm and further that money was looted and part of looted
money was recovered from the possession of Laxmi Paswan on the basis of his
confessional statement. Although this fact has occurred prior to arrest of PW-6, but with
the evidence of PW-6 all these facts corroborate the evidence of PW-6 because he was
not knowing all these facts and with his evidence all these facts stand corroborated and,
therefore, there is complete corroboration of the evidence of PW-6 and there is no ground
for disbelieving the evidence of PW-6 and therefore on the basis of the evidence of PW-6
accused-appellant and co-accused Lalu Ram were found guilty and they were involved in
the abduction as well as in the occurrence under Section 396 IPC.
33. We shall now deal with the question relating to the pardon.
34. So far as pardon portion of the order of CJM is concerned, that has not been set aside
and the proceeding relating to other portion has been set aside by which Lalit Sanga was
examined but he was not cross examined nor his statement was recorded in presence of
the accused and so the trial Court below, after remand of the case completed this part of
the order and Lalit Sanga was examined in presence of the accused and he was also cross
examined and thereafter case was committed to the Court of Session, and therefore, there
was complete compliance of Section 306 Cr.P.C. The stage of examining the approver
comes only after he has been granted pardon and after pardon he was examined as a
witness in presence of the accused and also he was cross examined. So there is no
illegality in the order and in the procedure adopted by the learned CJM after remand of
the case.
35. In view of the factual position and the legal principles set out above the inevitable
conclusion is that the appeals are sans merit and deserve to be dismissed which we direct.
Appeal dismissed.
AIR 2008 SUPREME COURT 397 "Whirlpool of India Ltd., M/s. v. Union of India"
(From : 2001 (3) Punj LR 385)
Coram : 3 ASHOK BHAN, H. S. BEDI AND V. S. SIRPURKAR, JJ.
M/s. Whirlpool of India Ltd. v. Union of India and Ors.
Standards of Weights and Measures Act (60 of 1976), S.2(b) - Standards of Weights and
Measures (Packaged Commodities) Rules (1977), R.2(1), Expln.1, Expln.6 - WEIGHTS
AND MEASURES - SALE - Commodity in packaged form - Refrigerators packed in
polythene cover, thermocol etc. for sale - Sale of refrigerators is a retail sale - Fact that
every customer would like to open package before finalizing to purchase Refrigerator -
He would at least like to get it tested after opening package - Does not take it out of
'packaged goods' - Refrigerator being a 'packaged commodity' MRP has to be published
on every pack. (Paras 4, 5)
2007 AIR SCW 5629 (Rel. on) 7
Sanjeev Narula and Jay Kishor Singh (for Subramonium Prasad), for Appellant; K.
Radhakrishnan, Sr. Advocate, B. Sunita Rao, P. S. Narsimha and Ajay Sharma (for B.
Krishna Prasad and B. V. Balaram Das), for Respondents.
Judgement
1. V. S. SIRPUKAR, J.:- The short but interesting question as to whether Refrigerator is a
"packaged commodity" falls for consideration in this appeal. The appellant is engaged in
manufacturing Refrigerators. The Central Government issued a Notification No. 9 of
2000, dated 1.3.2000 under Section 4A(1) and (2) of Central Excise Act (for short "the
Act") and specified the goods mentioned in Column 3 of the said notification. Entry No.
48 pertains to the Refrigerators whereby the Refrigerators invited valuation under Section
4A of the Central Excise Act with the abatement of 40%. Section 4A(1)and (2) of the
Central Excise Act require that any goods included in the notification shall be valued on
the basis of the Maximum Retail Price (for short "MRP") which is required to be printed
on the packages of such goods. The five conditions for inclusion of the goods are:
"i) The goods should be excisable goods;
ii) They should be such as are sold in the package;
@page-SC398
iii) There should be requirement in the SWM Act or the Rules made thereunder or any
other law to declare the price of such goods relating to their retail price on the package.
iv) The Central Government must have specified such goods by notification in the
Official Gazette;
v) The valuation of such goods would be as per the declared retail sale price on the
packages less the amount of abatement."
2. The appellant felt aggrieved by the fact the Refrigerators were covered and included in
the aforementioned notification dated 1.3.2000 as, according to the appellant, the
Refrigerator is not such a commodity which is sold in a package. Significantly, the
appellant is not aggrieved by its valuation of being under Section4A(1)and (2) of the Act.
The only complaint that the appellant made is that the appellant should not be required to
print the MRP on the package of the Refrigerator manufactured by it. The appellant,
therefore, filed a Writ Petition before the High Court of Punjab and Haryana praying,
inter alia, for a writ of certiorarified mandamus restraining the authorities for taking any
coercive measures against the appellant or its Directors, Officers, Servants or Agents for
not declaring the MRP on the Refrigerators manufactured and cleared by the appellant
from its factory. The notification dated 1.3.2000 was challenged to this limited extent
only. Before the High Court the appellant pleaded that Refrigerator is not such a
commodity which can be termed to be a "packaged commodity" and further the
provisions of The Standards of Weights and Measures Act, 1976 (for short "SWM Act")
or the Rules made thereunder are not applicable to the Refrigerator at all. It was,
therefore, prayed that the notification was liable to be quashed only to the extent that it
included the Refrigerator and the requirement of declaring MRP on the Refrigerator.
3. The Respondent Authorities, however, maintained that the Refrigerator was in fact sold
in a package of polythene cover, thermocol, hardboard cartons etc., and thus it falls in the
category of "pre-packed commodity". On that basis it was contended that since every
packaged commodity was included in the SWM Act and the Rules made thereunder, there
can be no escape from printing the MRP on the package. The High Court rejected the
contention and dismissed the petition filed by the appellant. Hence the present appeal
before us.
4. Learned counsel very vehemently contended that a Refrigerator, as a matter of fact, is
not sold in a packaged form. The thrust of the argument is that even if it is sold in the
packaged form, when it is displayed by the dealers, it is not in the packaged form and the
customers can take the inspection of the Refrigerator and at least for that purpose the
package has to be opened and, therefore, there would be no question of the Refrigerator
being included in the SWM Act or the Rules made thereunder. The submission is quite
incorrect. When we see various provisions of the SWM Act and the Rules made
thereunder, it is clear that Section 2(b) defines "commodity in packaged form". The
definition says:
""commodity in packaged form" means commodity packaged, whether in any bottle, tin,
wrapper or otherwise, in units suitable for sale, whether wholesale or retail."
It was not disputed before the High Court and also before us that the appellant-
manufacturer has to sell the Refrigerators which are packed in polythene cover,
thermocol, etc., and placed in hardboard cartons. In fact the appellant had so pleaded
before the High Court in para 3 to which a reference has been made by the High Court.
Once that position is clear, then the Refrigerator clearly becomes a commodity in the
packaged form. The use of the terms "or otherwise" in the definition would suggest that a
commodity if packed in any manner in units suitable for sale, whether wholesale or retail,
becomes a "commodity in packed form". In the year 1977 The Standards of Weights and
Measures (Packaged Commodities) Rules, 1977 (for short "SWM (PC) Rules"). Rule 2(l)
defines "pre-packed commodity" which is as under:
" "pre-packed commodity" with its grammatical variations and cognate expressions,
means a commodity or article or articles which, without the purchaser being present, is
placed in a package or whatever nature, so that the quantity of the product contained
therein has a pre-determined value and such value cannot be altered without the package
or its lid or cap, as the case may be, being opened or undergoing a perceptible
modification and the expression "package",
@page-SC399
wherever it occurs, shall be construed as a package containing a pre-packed, commodity."
Explanation I - Where, by reason merely of the opening of a package no alteration is
caused to the value, quantity, nature or characteristic of the commodity contained therein,
such commodity shall be deemed, for the purposes of these rules, to be a pre-packed
commodity, for example, an electric bulb or fluorescent tube is a pre-packed commodity,
even though the package containing it is required to be opened for testing the commodity.
Explanation II - Not relevant."
A glance at this provision and more particularly to Explanation I would suggest that the
Refrigerator is covered under the term "pre-packed commodity". Even if the package of
the Refrigerator is required to be opened for testing, even then the Refrigerator would
continue to be a "pre-packed commodity". There are various types of packages defined
under the Rules and ultimately Rule 3 specifically suggests that the provisions of Chapter
II would apply to the packages intended for "retail sale" and the expression "package"
would be construed accordingly. It is not disputed before us that the sale of the
Refrigerator is covered under the "retail sale". Once that position is clear Rule 6 would
specifically include the Refrigerator and would carry along with it the requirements that
Rule of printing certain information including the sale price on the package. Thus it is
clear that by being sold by the manufacturer in a packaged form, the Refrigerator would
be covered by the provisions of SWM Act and SWM (PC) Rules and it would be
imperative that the MRP has to be printed in terms of Rule 6 which has been referred to
above. The High Court has also made a reference to Rule 2(l) and more particularly, the
Explanation to which we have referred to earlier. In our view the reliance by the High
Court on Rule 2(l) is correct. Learned counsel tried to urge that every customer would
like to open the package before finalizing to purchase the Refrigerator. He would at least
get it tested and for that purpose the package would be destroyed. That may be so but it
does not change the position as rightly observed by the High Court.
5. It was tried to be suggested that the MRP would be different depending upon the area
in which it is being sold. That may be so, however, that cannot absolve the manufacturer
from displaying the price, i.e., the MRP on the package in which the Refrigerator is
packed. Whatever be the situation, it is clear that a Refrigerator is a "packaged
commodity" and thus is covered under SWM Act and SWM (PC) Rules and, therefore,
the notification dated 1.3.2000 cannot be faulted on that ground. It is significant to note
that the appellant has not otherwise challenged the validity of the notification dated
1.3.2000 on any other ground. All that is challenged is the applicability of the commodity
like the Refrigerator.
6. Once the notification included the Refrigerator, unless the validity of the notification
was challenged, the appellant cannot get out of the scope of the notification. The
notification cannot be faulted merely because the appellant feels that the Refrigerator is
not a packaged commodity. We have already shown that the Refrigerator is a "packaged
commodity" and once it is included in the notification, unless the notification is faulted
on any other ground, the effect of the notification would remain intact in so far as
Refrigerator is concerned. On that ground also the appeal has to be rejected.
7
. In fact the question regarding the assessment of the Refrigerator was considered by this
Court in Jayanti Food Processing (P) Ltd. vs. Commissioner of Central Excise, Rajasthan
[2007 (10) SCALE 223] where it was held that the Refrigerators have to be assessed
under Section 4A of the Act and not under Section 4 of the Act. The present contention,
however, was not raised in that case. 2007 AIR SCW 5629
8. In the result the Judgment of the High Court is confirmed and the appeal is dismissed
with costs.
Appeal dismissed.

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2008

AIR 1984 SC 759 : 1984 Cri LJ 478 (Foll. Pnt. B) 15

It was further observed :

AIR 1987 SC 1706 : 1987 Lab IC 1327 9

1 (1992) 2 SCC 474.

3 (1980) Supp SCC 434.

6 (1999) 9 SCC 562.

. In Laxman v. State of Maharashtra8, a Constitution Bench of this court held : 2002

8 (2002) 6 SCC 710.

. The Constitution Bench in its authoritative pronouncement declared that there is no

9 (1999) 7 SCC 695

. This court in Shanmugam alias Kulandaivelu v. State of Tamil Nadu10held the

. This court in Sabbita Satyavathi v. Bandala Srinivasarao and Ors.11refused to place

11 (2004) 10 SCC 620.

12 (2002) 2 SCC 426.

14 (2004) 13 SCC 147.

"An employee of a State enjoys a status. Recruitment of employees of the State is

. Reliance placed by the High Court on K. R. Vishwanath (supra), with respect, is

. In Ratlam Municipality v. Vardichan, (1981) 1 SCR 97 : (1980) 4 SCC 162; some

42. Krishna Iyer, J. pithily summarized the principle thus;

Cases Referred : Chronological Paras

* Cri. Appeal No. 1337 of 2005, D/- 19-10-2005 (Kant).

R. F. Nariman, Sr. Advocate, H. A. Raichura, S. H. Raichura and R. M. Vithlani, for

"53...(2)(b) The 'indefeasible right' of the accused to be released on bail in accordance

. These aspects were highlighted in Life Insurance Corporation of India v. R. Dhandapani

".....all that is necessary is that a reasonable expectation of pecuniary benefit should be

C. S. N. Mohan Rao, for Appellant; Mrs. D. Bharathi Reddy, for Respondent.

Scales of Pay Designation Residency Minimum period linked to Performance

a) Rs. 8000-13500 Scientist B 3 years

5. The respondents were in the pay-scale of Rs.10,000-15,200, and working as Scientist-

10. The learned Single Judge held as follows :

Number of years in the grade

Minimum percentage for eligibility

Scientist B to Scientist C 90% 80% 70% 65% 60% ....

Exceptionally meritorious candidates with all outstanding gradings may be granted

Scales of Pay Designation Minimum Residency Period linked to Performance

Rakesh Uttamchandra Upadhyay, for Appellants; V. Shekhar, Sr. Advocate, Yatish

Dinesh Kumar Garg, V. K. Biju, for Petitioners; M. L. Lahoty, Paban K. Sharma,

* Cri. Appeal No. 343 of 2001, D/- 14-3-2007 (UTR).

" For the purpose of attracting Section 149

7. The appeal is accordingly allowed with no order as to costs.

. Indisputably, Gangaram Shantaram Salunkhe preferred an appeal before this Court

. No doubt it is an unique case. In exercise of its jurisdiction under Article 32 of the

. It is an admitted fact that the appellant-tenant is a Public Limited Company having a

. In this regard, it may be profitable to refer to a decision of this Court in Gajanan

. A distinction must be borne in mind between exercise of jurisdiction by a Civil Court

. In Salauddin Abdulsamad Shaikh v. State of Maharashtra (AIR 1996 SC 1042) it was

"Section 152 provides for correction of clerical or arithmetical mistakes in judgments,

. We are reminded of the following observations of Shetty, J. in A. M. Mathur v. Pramod

(2005)10 SCC 228 (Foll.) 20

. This court in Madhavrao Jiwajirao Scindia and others v. Sambhajirao Chandrojirao

. It is furthermore trite that Land Acquisition Act is an expropriatory legislation. [See

41. Expropriatory legislation, as is well-known, must be strictly construed. When the

. In Srinivasa Co-operative House Building Society Ltd. v. Madam Gurumurthy Sastry

Description of application Period of Limitation Time from which period begins to

. Construction of Section 20 vis-a-vis Section 26 of the 1910 Act came up for

4. The properties in suit were purchased by Krishanan Nair and Kochukutty @

"10.......Indeed, if we were to hold that non-compliance of a compromise decree or

AIR 1985 SC 416 (Ref Prt D)12

In view of the above analysis the following situations emerge :

15. In view of the aforementioned authoritative pronouncements, we are of the opinion

2. The appellants before us are employees recruited by National Thermal Power

. It is to be noted that at the time of insertion of above-mentioned clause 14 in the