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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
1999 AIR SCW 1113 : AIR 1999 SC 1428 : 1999 Cri LJ 2101 (Foll. Pnt. B) 15
1997 AIR SCW 497 : AIR 1997 SC 687 : 1997 Cri LJ 831 (Foll. Pnt. A) 15
1997 AIR SCW 4263 : AIR 1998 SC 289 : 1998 Cri LJ 495 (Foll. Pnt. B) 15
1995 AIR SCW 2157 : AIR 1995 SC 1453 : 1995 Cri LJ 2907 (Foll. Pnt. B) 15
1995 AIR SCW 3619 : AIR 1995 SC 2452 : 1995 Cri LJ 4168 (Foll. Pnt. B) 15
1993 AIR SCW 564 : AIR 1993 SC 1360 : 1993 Cri LJ 1058 (Foll. Pnt. B) 15
@page-SC2

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


AIR 1983 SC 185 : 1983 Cri LJ 346 (Foll. Pnt. B) 15
AIR 1982 SC 55 : 1982 Cri LJ 195 (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)
Cases Referred : Chronological Paras
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)*
Coram : 2 S. B. SINHA AND H. S. BEDI, JJ.
Civil Appeal No. 4344 of 2007 (arising out of SLP (C) No. 23403 of 2005), D/- 18 -9
-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)
Cases Referred : Chronological Paras
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
2001 AIR SCW 1720 : AIR 2001 SC 1851 : 2001 Lab IC 1726 16
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 1583 : AIR 1991 SC 1612 : 1991 Lab IC 1460 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)*
Coram : 2 S. B. SINHA AND H. S. BEDI, JJ.
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)
Cases Referred : Chronological Paras
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
2002 AIR SCW 3479 : AIR 2002 SC 2973 : 2002 Cri LJ 4095 (Rel. on) 11
1999 AIR SCW 2751 : AIR 1999 SC 2571 : 1999 Cri LJ 4055 11
1999 AIR SCW 3440 : AIR 1999 SC 3455 : 1999 Cri LJ 4321 11
1999 AIR SCW 3727 : AIR 1999 SC 3695 : 1999 Cri LJ 4582 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)
Coram : 2 S. B. SINHA AND H. S. BEDI, JJ.
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)
Cases Referred : Chronological Paras
1992 AIR SCW 982 : AIR 1992 SC 1341 : 1992 Lab IC 1001 7
@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.
Criminal Appeal No. 1315 of 2005, D/- 26 -9 -2007.
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)
Cases Referred : Chronological Paras
(2006) 11 SCC 420 36
2004 AIR SCW 3774 : AIR 2004 SC 4540 : 2004 Cri LJ 3337 34
2004 AIR SCW 5245 : AIR 2004 SC 4660 : 2004 Cri LJ 4886 37
2002 AIR SCW 219 : AIR 2002 SC 620 : 2002 Cri LJ 987 35
2002 AIR SCW 3479 : AIR 2002 SC 2973 : 2002 Cri LJ 4095 28, 30
2002 AIR SCW 4653 : AIR 2003 SC 209 : 2003 Cri LJ 418 30
1999 AIR SCW 3440 : AIR 1999 SC 3455 : 1999 Cri LJ 4321 29
1999 AIR SCW 3727 : AIR 1999 SC 3695 : 1999 Cri LJ 4582 27, 29
1995 Supp (4) SCC 118 26
1994 AIR SCW 211 : AIR 1994 SC 840 : 1994 Cri LJ 946 27
1992 AIR SCW 2050 : AIR 1992 SC 1817 : 1992 Cri LJ 2919 21
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)
Cases Referred : Chronological Paras
(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"
(From : Andhra Pradesh)*
Coram : 2 A. K. MATHUR AND MARKANDEY KATJU, JJ.
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)
Cases Referred : Chronological Paras
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)*
Coram : 2 S. B. SINHA AND H. S. BEDI, JJ.
Criminal Appeal No. 1251 of 2007 (arising out of SLP (Cri.) No. 5958 of 2006), D/- 18
-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)
Cases Referred : Chronological Paras
2004 AIR SCW 80 : AIR 2004 SC 1188 : 2004 Cri LJ 919 8
(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
1. S. B. SINHA, J. :- Leave granted.
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)*
Coram : 2 S. B. SINHA AND H. S. BEDI, JJ.
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)
Cases Referred : Chronological Paras
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
1. S. B. SINHA, J. :- Leave granted.
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.
Civil Appeal No. 4190 of 2007 (arising out of SLP (C) No. 3145 of 2007), D/- 11 -9
-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)
Cases Referred : Chronological Paras
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."
(From : Punjab and Haryana)*
Coram : 2 TARUN CHATTERJEE AND P. K. BALASUBRAMANYAN, JJ.**
Civil Appeal No. 3940 of 2007 (arising out of SLP (C) No. 11683 of 2006), D/- 27 -8
-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

Cases Referred : Chronological Paras


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
accordance with law.
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)*
Coram : 2 A. K. MATHUR AND MARKANDEY KATJU, JJ.
Criminal Appeal No. 1293 of 2007 (arising out of SLP (Cri.) No. 5605 of 2006), D/- 24
-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.
Criminal Appeal No. 101 of 2006, D/- 21 -9 -2007.
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)
Cases Referred : Chronological Paras
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)*
Coram : 2 Dr. A. PASAYAT AND LOKESHWAR SINGH PANTA, JJ.
Civil Appeal No. 1554 of 2007 (arising out of SLP (C) No. 24675 of 2005), D/- 23 -3
-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))
Coram : 2 A. K. MATHUR AND MARKANDEY KATJU, JJ.
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)
Coram : 2 S. B. SINHA AND H. S. BEDI, JJ.
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)
Cases Referred : Chronological Paras
2007 AIR SCW 2510 : AIR 2007 SC 1650 : 2007 Cri LJ 2442 23
(2006) 7 SCC 296 (Ref.) 21
2004 AIR SCW 5174 : AIR 2004 SC 4674 : 2004 Cri LJ 4874 23
2004 AIR SCW 5326 : AIR 2004 SC 4711 : 2004 Cri LJ 4609 23
1997 AIR SCW 2434 : AIR 1997 SC 2494 : 1997 Cri LJ 2989 8, 25, 26
1995 AIR SCW 3937 : AIR 1996 SC 204 : 1996 Cri LJ 408 (Ref.) 21
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
1. S. B. SINHA, J. :- Leave granted.
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)
Coram : 2 A. K. MATHUR AND MARKANDEY KATJU, JJ.
Criminal Appeal No. 1338 of 2007 (arising out of SLP (Cri.) No. 2252 of 2007), D/- 4
-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)
Cases Referred : Chronological Paras
(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.
Criminal Appeal No. 243 of 2007, D/- 14 -9 -2007.
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)*
Coram : 2 Dr. A. PASAYAT AND D. K. JAIN, JJ.
Criminal Appeal No. 1305 of 2007 (arising out of SLP (Cri.) No. 6219 of 2005), D/- 28
-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)
Cases Referred : Chronological Paras
2006 AIR SCW 2129 : AIR 2006 SC 1892 : 2006 Cri LJ 2366 14
2004 AIR SCW 4809 : AIR 2004 SC 4298 : 2004 Cri LJ 4185 9
2002 AIR SCW 2079 : AIR 2002 SC 2031 : 2002 Cri LJ 2806 8
2000 AIR SCW 734 : AIR 2000 SC 1127 : 2000 Cri LJ 1706 7, 9
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
Dr. ARIJIT PASAYAT, J. :- Leave granted.
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))
Coram : 2 Dr. A. PASAYAT AND LOKESHWAR SINGH PANTA, JJ.
Civil Appeal No. 892 of 2007, D/- 28 -9 -2007.
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)
Cases Referred : Chronological Paras
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.
3. Background facts in a nutshell are as follows:
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)
Coram : 2 Dr. A. PASAYAT AND LOKESHWAR SINGH PANTA, JJ.
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)
Cases Referred : Chronological Paras
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
Dr. ARIJIT PASAYAT, J. :- Leave granted.
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"
(From : Andhra Pradesh)*
Coram : 2 Dr. A. PASAYAT AND D. K. JAIN, JJ.
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)
Coram : 2 S. B. SINHA AND H. S. BEDI, JJ.
Criminal Appeal No. 766 of 2001, D/- 18 -9 -2007.
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)
Cases Referred : Chronological Paras
2007 AIR SCW 1415 : AIR 2007 SC 1274 (Disting.) 13
2006 AIR SCW 1695 : AIR 2006 SC 1599 14
(1998) 2 SCC 268 12
1997 AIR SCW 3478 : AIR 1997 SC 3400 : 1997 Cri LJ 4059 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.
Criminal Appeal No. 1303 of 2007 (arising out of SLP (Cri.) No. 1290 of 2007), D/- 28
-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)
Cases Referred : Chronological Paras
(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)
Cases Referred : Chronological Paras
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.
Civil Appeal No. 5279 of 2006, D/- 5 -10 -2007.
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 food- grains/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)*
Coram : 2 S. B. SINHA AND H. S. BEDI, JJ.
Criminal Appeal No. 1390 of 2007 (arising out of SLP (Cri.) No. 2273 of 2007), D/- 9
-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
1. S. B. SINHA, J. :- Leave granted.
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)*
Coram : 2 S. B. SINHA AND H. S. BEDI, JJ.
Criminal Appeal No. 1411 of 2007 (arising out of SLP (Cri.) No. 5629 of 2006), D/- 10
-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)
Cases Referred : Chronological Paras
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
1. S. B. SINHA, J. :- Leave granted.
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)
Coram : 2 S. B. SINHA AND H. S. BEDI, JJ.
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)
Cases Referred : Chronological Paras
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)*
Coram : 2 Dr. A. PASAYAT AND LOKESHWAR SINGH PANTA, JJ.
Civil Appeal No. 4656 of 2007 (arising out of SLP (C) No. 26448 of 2005), D/- 5 -10
-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)
Cases Referred : Chronological Paras
2005 AIR SCW 4789 : AIR 2005 SC 3503 (Rel. on) 10
2000 AIR SCW 2554 : AIR 2000 SC 2408 (Rel. on) 8
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
Dr. ARIJIT PASAYAT, J. :- Leave granted.
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)*
Coram : 2 Dr. A. PASAYAT AND P. SATHASIVAM, JJ.
Civil Appeal No. 4465 of 2007 (arising out of SLP (C) No. 17051 of 2001), D/- 24 -9
-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)
Cases Referred : Chronological Paras
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
1. Dr. ARIJIT PASAYAT, J. :-Leave granted.
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.
Civil Appeal No. 4760 of 2007 (arising out of SLP (C) No. 13941 of 2006), D/- 10 -10
-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)
Cases Referred : Chronological Paras
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)
Coram : 2 S. B. SINHA AND H. S. BEDI, JJ.
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.
2007 AIR SCW 1379, Relied on. (Para 16)
(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)
Cases Referred : Chronological Paras
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
2001 AIR SCW 5051 : AIR 2002 SC 441 : 2002 Cri LJ 923 17
(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)*
Coram : 2 S. B. SINHA AND H. S. BEDI, JJ.
Criminal Appeal No. 1200 of 2006, D/- 9 -10 -2007.
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)
Cases Referred : Chronological Paras
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"
Coram : 2 Dr. A. PASAYAT AND P. SATHASIVAM, JJ.
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)
Cases Referred : Chronological Paras
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
Dr. ARIJIT PASAYAT, J. :- Leave granted.
@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"
(From : Madhya Pradesh)*
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)
Cases Referred : Chronological Paras
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)
Coram : 2 S. B. SINHA AND H. S. BEDI, JJ.
Civil Appeal No. 4341 of 2007 (arising out of SLP (C) No. 8275 of 2007), D/- 18 -9
-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)
Cases Referred : Chronological Paras
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
1. S. B. SINHA, J. :- Leave granted.
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.
3. The basic fact of the matter is not in dispute.
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"
(From : Madhya Pradesh)*
Coram : 2 PRAKASH PRABHAKAR NAOLEKAR AND ALTAMAS KABIR, JJ.
Criminal Appeal No. 258 of 2005, D/- 11 -10 -2007.
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"
(From : Punjab and Haryana)*
Coram : 2 S. B. SINHA AND H. S. BEDI, JJ.
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)
Cases Referred : Chronological Paras
2006 AIR SCW 1021 : AIR 2006 SC 1322 : 2006 Cri LJ 1622 (Expln.) 8
@page-SC179

2006 AIR SCW 6182 : AIR 2007 SC 351 : 2007 Cri LJ 995 (Ref.) 8
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 k