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AIR 2008 SUPREME COURT 1702 "K. L. E. Society v.

Siddalingesh"
(From : Karnataka)*
Coram : 2 Dr. A. PASAYAT AND AFTAB ALAM, JJ.
Criminal Appeal No. 427 of 2008 (arising out of SLP (Cri.) No. 63 of 2007), D/- 3 -3
-2008.
K. L. E. Society and Ors. v. Siddalingesh.
(A) Criminal P.C. (2 of 1974), S.482 - INHERENT POWERS - Inherent powers -
Exercise of - To be cautions and careful - Court not to function as Court of appeal or of
revision. (Para 8)
(B) Criminal P.C. (2 of 1974), S.482 - COMPLAINT - MISAPPROPRIATION -
BREACH OF TRUST - CHEATING - INDUSTRIAL DISPUTE - SALARIES -
Quashing of complaint - Complaint by peon of College u/S.403, u/S.405, u/S.415 IPC -
Allegation that College society had deducted certain amount from his pay on pretext of
returning it at time of leaving job - Peon also filing petition u/S.33-C of I. D. Act for
salary on ground that lesser amounts were paid and signatures for higher amounts were
taken - No mention made about any deductions - Facts clearly show that peon in his
complaint has tried to make out a case that deduction was made with an object -
Ingredients of S.403, S.405 and S.415 IPC do not exist in complaint - Complaint liable to
be quashed.
Cri. Petn. No. 2795 of 2006, D/-04-12-2006 (Kant), Reversed. (Paras 7, 12)
Cases Referred : Chronological Paras
2004 AIR SCW 6185 : AIR 2005 SC 9 : 2005 Cri LJ 92 (Ref.) 11
2002 AIR SCW 286 : AIR 2002 SC 671 : 2002 Cri LJ 998 (Ref.) 11
1999 AIR SCW 679 : AIR 1999 SC 1044 : 1999 Cri LJ 1623 (Ref.) 11
1999 AIR SCW 881 : AIR 1999 SC 1216 : 1999 Cri LJ 1833 (Ref.) 11
1999 AIR SCW 3607 : AIR 1999 SC 3596 : 1999 Cri LJ 4566 (Ref.) 11
(1997) 2 SCC 397 (Ref.) 11
1996 AIR SCW 1229 : AIR 1996 SC 2983 : 1996 Cri LJ 1878 : 1996 All LJ 601 (Ref.)
11
1995 AIR SCW 4100 : AIR 1996 SC 309 (Ref.) 11
1993 AIR SCW 248 : AIR 1993 SC 892 : 1993 Cri LJ 600 (Ref.) 11
AIR 1992 SC 604 : 1992 Cri LJ 527 (Rel. on) 10
1991 AIR SCW 1034 : AIR 1991 SC 1260 : 1991 Cri LJ 1438 (Ref.) 11
AIR 1990 SC 494 (Ref.) 11
AIR 1964 SC 1 : 1964 (1) Cri LJ 1 (Ref.) 11
AIR 1960 SC 866 (Rel. on) 9
Basava Prabhu S. Patil, V. N. Raghupathy, B. Subrahmanya Prasad, Narayan P. Kengasur,
for Appellants; Ms. Kiran Suri, for Respondent.
* Cri. Petn. No. 2795 of 2006, D/- 4-12-2006 (Kant).
Judgement
1. Dr. ARIJIT PASAYAT, J. :-Leave granted.
2. Challenge in this appeal is to the order passed by the learned Single Judge of the
Karnataka High Court dismissing the application filed before it in terms of Section 482 of
the Code of Criminal Procedure, 1973 (in short 'Cr.P.C.'). Prayer in the application before
the High Court was for quashing the proceedings in C.C.No.273/2006 including the
complaint on the file of learned Judicial Magistrate First Class, Gulbarga.
3. Background facts in a nutshell are as under :
Respondent was appointed as a Peon in K.L.E. Society's Women Arts and Commerce
College in the year 1992 of which the appellant No. 3 was the Principal at the relevant
point of time. Appellant No. 2 was the Secretary at the relevant point of time and the
Society was represented by its Chairman, Board of Management. He resigned from
service on 17-12-2003. The complaint was filed on 13-1-2006 alleging commission of
offence punishable under Sections 403, 405 and 415 read with Section 34 of the Indian
Penal Code, 1860 (in short 'IPC'). The learned Judicial Magistrate took cognizance and
issued process. The same was questioned by the appellants. The stand before the High
Court was that the complaint was misconceived, no offence was made out even on
indepth scrutiny of the complaint. In fact, the respondent had filed petition in terms of
Section 33 (C) (2) of the Industrial Disputes Act, 1947 (in short 'ID' Act) and also filed
writ petition claiming parity in salary which was disposed of by giving the direction to
consider the respondents' case. In
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the petition in terms of Section 33-(C)(2) of the ID Act the respondent had stated that
lesser amounts were paid and signatures for higher amounts were taken. The said petition
is pending. In the writ petition before the High Court there was no mention about any
deduction. It is stated in the complaint that the complainant was given to understand that
certain amounts were being deducted for repayment at the time of retirement or cessation
of his job. In the notice issued on 23-11-2004, there is no mention about this aspect. It
was, therefore, submitted that the complaint was nothing but an abuse of process of law.
4. The complainant-respondent resisted the stand by stating that the offences are clearly
spelt out.
5. The High Court dismissed the petition holding as follows :
"The respondent lodged a private complaint against the petitioner on 13-1-2006 along
with six supporting documents. After perusing the complaint, the documents and the
sworn statement of the respondent, process is issued against the petitioners for the
aforesaid offences. This petition is filed for quashing the proceedings."
6. Learned counsel for the appellants reiterated the stand taken before the High Court. On
the other hand, respondent also reiterated the stand taken before the High Court.
7. One thing is clear on reading of High Court's reasoning that the High Court came to
the conclusion that deductions were made without any rhyme and reason and without any
basis. That was not the case of the complainant. On the other hand, it tried to make out a
case that the deduction was made with an object. That obviously, was the foundation to
substantiate claim of entrustment. On a close reading of the complaint it is clear that the
ingredients of Sections 403, 405 and 415 do not exist. The statement made in the
complaint runs contrary to the averments made in the petition in terms of Section 33-(C)
(2).
8. Exercise of power under Section 482 of the Code in a case of this nature is the
exception and not the rule. The Section does not confer any new powers on the High
Court. It only saves the inherent power which the Court possessed before the enactment
of the Code. It envisages three circumstances under which the inherent jurisdiction may
be exercised, namely, (i) to give effect to an order under the Code, (ii) to prevent abuse of
the process of court, and (iii) to otherwise secure the ends of justice. It is neither possible
nor desirable to lay down any inflexible rule which would govern the exercise of inherent
jurisdiction. No legislative enactment dealing with procedure can provide for all cases
that may possibly arise. Courts, therefore, have inherent powers apart from express
provisions of law which are necessary for proper discharge of functions and duties
imposed upon them by law. That is the doctrine which finds expression in the section
which merely recognizes and preserves inherent powers of the High Courts. All courts,
whether civil or criminal possess, in the absence of any express provision, as inherent in
their constitution, all such powers as are necessary to do the right and to undo a wrong in
course of administration of justice on the principle "quando lex aliquid alicui concedit,
concedere videtur et id sine quo res ipsae esse non potest" (when the law gives a person
anything it gives him that without which it cannot exist). While exercising powers under
the section, the court does not function as a court of appeal or revision. Inherent
jurisdiction under the section though wide has to be exercised sparingly, carefully and
with caution and only when such exercise is justified by the tests specifically laid down
in the section itself. It is to be exercised ex debito justitiae to do real and substantial
justice for the administration of which alone courts exist. Authority of the court exists for
advancement of justice and if any attempt is made to abuse that authority so as to produce
injustice, the court has power to prevent abuse. It would be an abuse of process of the
court to allow any action which would result in injustice and prevent promotion of
justice. In exercise of the powers court would be justified to quash any proceeding if it
finds that initiation/continuance of it amounts to abuse of the process of court or quashing
of these proceedings would otherwise serve the ends of justice. When no offence is
disclosed by the complaint, the court may examine the question of fact. When a
complaint is sought to be quashed, it is permissible to look into the materials to assess
what the complainant has alleged and whether any offence is made out even if the
allegations are accepted in toto.
9. In R. P. Kapur v. State of Punjab (AIR
@page-SC1704
1960 SC 866) this Court summarized some categories of cases where inherent power can
and should be exercised to quash the proceedings.
(i) where it manifestly appears that there is a legal bar against the institution or
continuance e.g. want of sanction;
(ii) where the allegations in the first information report or complaint taken at its face
value and accepted in their entirely do not constitute the offence alleged;
(iii) where the allegations constitute an offence, but there is no legal evidence adduced or
the evidence adduced clearly or manifestly fails to prove the charge.
10

. In dealing with the last case, it is important to bear in mind the distinction between a
case where there is no legal evidence or where there is evidence which is clearly
inconsistent with the accusations made, and a case where there is legal evidence which,
on appreciation, may or may not support the accusations. When exercising jurisdiction
under Section 482 of the Code, the High Court would not ordinarily embark upon an
enquiry whether the evidence in question is reliable or not or whether on a reasonable
appreciation of it accusation would not be sustained. That is the function of the trial
Judge. Judicial process should not be an instrument of oppression, or, needless
harassment. Court should be circumspect and judicious in exercising discretion and
should take all relevant facts and circumstances into consideration before issuing process,
lest it would be an instrument in the hands of a private complainant to unleash vendetta to
harass any person needlessly. At the same time the section is not an instrument handed
over to an accused to short-circuit a prosecution and bring about its sudden death. The
scope of exercise of power under Section 482 of the Code and the categories of cases
where the High Court may exercise its power under it relating to cognizable offences to
prevent abuse of process of any court or otherwise to secure the ends of justice were set
out in some detail by this Court in State of Haryana v. Bhajan Lal (1992 Supp (1) 335). A
note of caution was, however, added that the power should be exercised sparingly and
that too in rarest of rare cases. The illustrative categories indicated by this Court are as
follows : "(1) Where the allegations made in the first information report or the complaint,
even if they are taken at their face value and accepted in their entirety do not prima facie
constitute any offence or make out a case against the accused. AIR 1992 SC 604

(2) Where the allegations in the first information report and other materials, if any,
accompanying the FIR do not disclose a cognizable offence, justifying an investigation
by police officers under Section 156(1) of the Code except under an order of a Magistrate
within the purview of Section 155(2) of the Code.
(3) Where the uncontroverted allegations made in the FIR or complaint and the evidence
collected in support of the same do not disclose the commission of any offence and make
out a case against the accused.
(4) Where the allegations in the FIR do not constitute a cognizable offence but constitute
only a non-cognizable offence, no investigation is permitted by a police officer without
an order of a Magistrate as contemplated under Section 155(2) of the Code.
(5) Where the allegations made in the FIR or complaint are so absurd and inherently
improbable on the basis of which no prudent person can ever reach a just conclusion that
there is sufficient ground for proceeding against the accused.
(6) Where there is an express legal bar engrafted in any of the provisions of the Code or
the Act concerned (under which a criminal proceeding is instituted) to the institution and
continuance of the proceedings and/or where there is a specific provision in the Code or
Act concerned, providing efficacious redress for the grievance of the aggrieved party.
(7) Where a criminal proceeding is manifestly attended with mala fide and/or where the
proceeding is maliciously instituted with an ulterior motive for wreaking vengeance on
the accused and with a view to spite him due to private and personal grudge."
11

. As noted above, the powers possessed by the High Court under Section 482 of the Code
are very wide and the very plentitude of the power requires great caution in its exercise.
Court must be careful to see that its decision in exercise of this power is based on sound
principles. The inherent power should not be exercised to stifle a legitimate prosecution.
The High Court being the highest court of a State should normally refrain from giving a
prima facie decision in 1993 AIR SCW 248
AIR 1990 SC 494
1991 AIR SCW 1034
1995 AIR SCW 4100
1999 AIR SCW 679
1996 AIR SCW 1229
1999 AIR SCW 3607
1999 AIR SCW 881
2002 AIR SCW 286
2004 AIR SCW 6185

@page-SC1705
a case where the entire facts are incomplete and hazy, more so when the evidence has not
been collected and produced before the Court and the issues involved, whether factual or
legal, are of magnitude and cannot be seen in their true perspective without sufficient
material. Of course, no hard-and-fast rule can be laid down in regard to cases in which
the High Court will exercise its extraordinary jurisdiction of quashing the proceeding at
any stage. (See: Janata Dal v. H. S. Chowdhary (1992 (4) SCC 305), and Raghubir Saran
(Dr.) v. State of Bihar (AIR 1964 SC 1). It would not be proper for the High Court to
analyse the case of the complainant in the light of all probabilities in order to determine
whether a conviction would be sustainable and on such premises arrive at a conclusion
that the proceedings are to be quashed. It would be erroneous to assess the material
before it and conclude that the complaint cannot be proceeded with. In a proceeding
instituted on complaint, exercise of the inherent powers to quash the proceedings is called
for only in a case where the complaint does not disclose any offence or is frivolous,
vexatious or oppressive. If the allegations set out in the complaint do not constitute the
offence of which cognizance has been taken by the Magistrate, it is open to the High
Court to quash the same in exercise of the inherent powers under Section 482 of the
Code. It is not, however, necessary that there should be meticulous analysis of the case
before the trial to find out whether the case would end in conviction or acquittal. The
complaint has to be read as a whole. If it appears that on consideration of the allegations
in the light of the statement made on oath of the complainant that the ingredients of the
offence or offences are disclosed and there is no material to show that the complaint is
mala fide, frivolous or vexatious, in that event there would be no justification for
interference by the High Court. When an information is lodged at the police station and
an offence is registered, then the mala fides of the informant would be of secondary
importance. It is the material collected during the investigation and evidence led in court
which decides the fate of the accused person. The allegations of mala fides against the
informant are of no consequence and cannot by themselves be the basis for quashing the
proceedings. (See: Dhanalakshmi v. R. Prasanna Kumar (1990 Supp SCC 686), State of
Bihar v. P. P. Sharma (AIR 1996 SC 309), Rupan Deol Bajaj v. Kanwar Pal Singh Gill
(1995 (6) SCC 194), State of Kerala v. O. C. Kuttan (AIR 1999 SC 1044), State of U.P. v.
O. P. Sharma (1996 (7) SCC 705), Rashmi Kumar v. Mahesh Kumar Bhada (1997 (2)
SCC 397), Satvinder Kaur v. State (Govt. of NCT of Delhi) (AIR 1996 SC 2983) and
Rajesh Bajaj v. State NCT of Delhi (1999 (3) SCC 259, State of Karnatakav. M.
Devendrappa and Another (2002 (3) SCC 89) and Zandu Pharmaceutical Works Ltd. v.
Mohd. Sharaful Haque and Anr. (2005 (1) SCC 122).
12. When the factual scenario is examined in the background of the legal principles set
out above, the inevitable conclusion is that the complaint was nothing but an abuse of the
process of law. We, therefore, allow this appeal and set aside the proceedings in
C.C.No.273/2006 pending before learned Judicial Magistrate First Class, Gulbarga.
13. We make it clear that we have not expressed any opinion on the merits so far as the
petition under Section 33-(C)(2) of the ID Act is concerned, which is stated to be
pending.
Appeal allowed.
AIR 2008 SUPREME COURT 1705 "State of Maharashtra v. Bhaurao Punjabrao
Gawande"
(From : Bombay)*
Coram : 2 C. K. THAKKER AND ALTAMAS KABIR, JJ.
Criminal Appeal No. 417 of 2008 (arising out of SLP (Cri.) No. 583 of 2007), D/- 3 -3
-2008.
State of Maharashtra and Ors. v. Bhaurao Punjabrao Gawande.
(A) Constitution of India, Art.226 - WRITS - PREVENTIVE DETENTION - Powers of
Court - Preventive detention - Setting aside of order at pre-execntion stage - Not
permissible.
2007 (2) AIR Bom R (NOC) 255, Reversed.
An order of detention passed by a Detaining Authority under the relevant 'preventive
@page-SC1706
detention' law cannot be set aside by a Writ Court at the pre-execution or pre-arrest stage
unless the Court is satisfied that there are exceptional circumstances specified in 1992
Supp (1) SCC 496. The Court must be conscious and mindful of the fact that this is a
'suspicious jurisdiction' i.e. jurisdiction based on suspicion and an action is taken 'with a
view to preventing' a person from acting in any manner prejudicial to certain activities
enumerated in the relevant detention law. Interference by a Court of Law at that stage
must be an exception rather than a rule and such an exercise can be undertaken by a Writ
Court with extreme care, caution and circumspection. A detenu cannot ordinarily seek a
writ of mandamus if he does not surrender and is not served with an order of detention
and the grounds in support of such order. The instant case does not fall within the
category of exceptional cases and therefore setting aside the order of detention by the
High Court at the pre-execution and pre-arrest stage would therefore, liable to be set
aside.
2007 (2) AIR Bom R (NOC) 255, Reversed. (Paras 16, 58, 59)
Normally and as a general rule, an order of detention can be challenged by the detenu
after such order as also the grounds of detention have been received by him and the order
is executed. In exceptional cases, however, a High Court or Supreme Court may exercise
extraordinary powers to protect a person against an illegal invasion of his right to
freedom by protecting him while still he is free by issuing an appropriate writ, direction
or order including a writ in the nature of mandamus questioning an order of detention and
restraining the authorities from interfereing with the right of liberty of an individual
against whom such order is made. (Para 36)
The record shows that many cases had been filed earlier against the detenu under the
Essential Commodities Act, 1955. The writ petitioner was indulging in illegal activities of
black marketing of kerosene, which was an essential commodity. Those cases had been
registered in 2002, 2003, 2005 and 2006. Thus, the action was taken on the basis of past
conduct of the detenu having reasonable prognosis of future behaviour and there was 'live
link' between the activities of the detenu and the action of preventive detention to reach
subjective satisfaction by the Detaining authority. It has come on record that the detenu
was called upon to execute a bond for good behaviour under Ss. 110 nd 111 of the Code
of Criminal Procedure, 1973. It is, therefore, clear that the authorities had taken steps
under the relevant law. But even otherwise, such questions may become relevant and can
be considered after the order of detention is executed. Similarly, if the detenu was
illtreated when he was in custody in connection with any case registered against him
under the 1955 Act, or there was custodial violence, it would not affect detention of the
writ petitioner. Whether there was such custodial violence and whether police officers
had abused their position can indeed be gone into by a competent authority or by a Court
of Law. That circumstance, however, will not make the order of detention invalid or for a
'wrong purpose'. Externment proceedings initiated against the detenu under S. 59 of the
Bombay Police Act, 1951 also would not make the action assailable. Therefore, this was
not a case in which interference was warranted at pre-execution stage. It cannot also be
said that two parallel and simultaneous proceedings were not permissible in law. (Paras
43, 44, 46, 49)
(B) Prevention of Black Marketing and Maintenance of Supplies of Essential
Commodities Act (7 of 1980), S.3 - ESSENTIAL COMMODITIES - PREVENTIVE
DETENTION - POLICE OFFICERS - Preventive detention - Powers of detaining
authority, Commissioner of Police - Detenu had made allegations of custodial violence by
police authorities while he was in custody in earlier case - Enquiry - Detaining authority
need not wait for directing his detention till inquiry was conducted and report submitted -
It cannot also be said that two parallel and simultaneous proceedings were not
permissible in law. (Paras 44, 46)
Cases Referred : Chronological Paras
2006 AIR SCW 1510 : AIR 2006 SC 1719 : 2006 Cri LJ 2102 (Ref.) 55
2005 AIR SCW 5394 : AIR 2005 SC 4421 : 2005 Cri LJ 4539 (Ref.) 29
2005 AIR SCW 6124 : AIR 2006 SC 374 : 2005 Cri LJ 5079 (Ref.) 56
(1999) 2 AC 38 : (1997) 1 WLR 503 18
1994 AIR SCW 2652 : AIR 1994 SC 2179 (Ref.) 17
1994 AIR SCW 4975 (Ref.) 50
1992 AIR SCW 2173 : AIR 1992 SC 1900 : 1992 Cri LJ 2924 (Ref.) 29
@page-SC1707

(1992) 3 SCC 512 (Ref.) 51


1992 Supp (1) SCC 496 (Ref.) 9, 15, 38, 42, 50, 51, 55, 58
(1990)1 SCC 328 (Ref.) 37
AIR 1987 Guj 253 : 1988 Cri LJ 685 (FB) 37
AIR 1982 SC 710 : 1982 Cri LJ 340 (Ref.) 17, 30
AIR 1982 SC 1143 : 1982 Cri LJ 1191 (Ref.) 29
1981 Cri LJ 767 (Bom) 37
AIR 1979 SC 541 : 1979 Cri LJ 462 (Ref.) 29
AIR 1976 SC 1207 : 1976 Cri LJ 945 (Ref.) 30
AIR 1975 SC 550 : 1975 Cri LJ 446 (Ref.) 28
AIR 1974 SC 806 : 1974 Cri LJ 690 (Ref.) 30
AIR 1974 SC 816 : 1974 Cri LJ 699 (Ref.) 47
AIR 1974 SC 1161 : 1974 Cri LJ 817 (Ref.) 46, 47
AIR 1974 SC 2154 : 1974 Cri LJ 1479 (Ref.) 27
AIR 1973 SC 770 : 1973 Cri LJ 590 (Ref.) 47
AIR 1972 SC 1660 (Ref.) 30
AIR 1972 SC 2256 : 1973 Lab IC 486 (Ref.) 47
AIR 1972 SC 2561 (Ref.) 47
(1971) 1 SCR 690 (Ref.) 25
AIR 1966 SC 1441 : 1966 Cri LJ 1076 (Ref.) 52
AIR 1959 SC 725 (Ref.) 37
AIR 1952 SC 196 (Ref.) 28
1942 AC 284 : (1941)3 All ER 388 24
(1927) 3 St Tr 1 22
(1923) 2 KB 361 : 1923 AC 603 21
1917 AC 260 : 86 LJKB 111928
(1890) 15 AC 506 : 60 LJQB 89 20
Manish Pitale, Ravindra Keshavrao Adsure, for Appellants; J.M. Gandhi, Satyajit A.
Desai, Mrs. Anagha S. Desai, Amol N. Suryawanshi, Venkateswara Rao Anumolu, for
Respondent.
* Cri. W. P. No. 372 of 2006, D/- 7-10-2006, reported in 2007 (2) AIR Bom R (NOC) 255
: 2007 All MR (Cri) 152.
Judgement
1. C. K. THAKKER, J. - Leave granted.
2. The present appeal is filed by the State of Maharashtra and others against the sole
respondent (original petitioner) against the judgment and order passed by the High Court
of Judicature at Bombay (Nagpur Bench) on October 17, 2006 in Writ Petition No. 372 of
2006. By the impugned order, the High Court (partly) allowed the petition filed by the
detenu-writ petitioner and set aside the order of detention dated July 27, 2006 passed by
the Commissioner of Police, (Nagpur City) under the Prevention of Black Marketing and
Maintenance of Supplies of Essential Commodities Act, 1980.
FACTUAL MATRIX
3. The case of the appellants is that one Bhaurao Punjabrao Gawande (detenu) was
running a business of transportation of petroleum products and had fleet of tankers for
carrying on the said occupation. He was indulging in illegal purchase and sale of blue
kerosene oil in black market since last five to six years. Certain cases were also registered
against the said Bhaurao under the Essential Commodities Act, 1955 (hereinafter referred
to as '1955 Act'). In view of continuous activities of Bhaurao in black-marketing of
essential commodity (Kerosene), the Commissioner of Police (appellant No.2 herein), in
exercise of power conferred on him by sub-section (1) read with Clause (b) of sub-section
(2) of the Prevention of Black Marketing and Maintenance of Supplies of Essential
Commodities Act, 1980 (hereinafter referred to as 'the Act') directed that the said Bhaurao
be detained. Grounds of detention were sought to be served to the detenu on the same
day.
4. According to the appellants, in accordance with sub-section (3) of Section 3 of the Act,
the order of detention passed by the Commissioner of Police was approved by the State
Government. The detenu somehow came to know about the order of detention being
passed against him and absconded himself. He, therefore, could not be detained, nor
served with the order or grounds of detention in support of the order.
WRIT PETITION
5. The detenu, without submitting to the order of detention and surrendering, filed Writ
Petition No. 372 of 2006 in the High Court of Bombay (Nagpur Bench) for an
appropriate writ, direction or order quashing and setting aside the order of detention dated
July 27, 2006 being illegal, unwarranted and vitiated by mala fide. Other reliefs were also
sought.
COUNTER AFFIDAVIT
6. An affidavit in reply was filed by the Detaining Authority, inter alia, contending that
the petition filed by the detenu was not maintainable at law. The detenu got the
information about the order of detention, absconded himself and the order of detention
@page-SC1708
could not be served upon him. The order was, therefore, affixed at a conspicuous place at
the residence of the detenu on July 30, 2006 and a panchanama was drawn by the Police
Inspector of Sakkardara Police Station, Nagpur. Since the detenu was not available,
grounds of detention along with relevant documents also could not be served upon him. It
was stated that the order of detention was approved by the State Government. Moreover,
the entire proceedings of detention were submitted to the Advisory Board constituted
under Section 10 of the Act as required by law. The Government decided the period of
detention only after the opinion of the Advisory Board under Section 12 of the Act.
7. On merits, it was contended on behalf of the Detaining Authority that the detenu was
indulging in black marketing of kerosene oil which was an 'essential commodity' and
several cases had been registered against him. It was also stated that the detenu had
executed a bond under the Code of Criminal Procedure, 1973 for good behaviour. In spite
of all these steps, the detenu continued to indulge in black marketing activities of
essential commodity and the Detaining Authority was satisfied that "with a view to
preventing him from acting in any manner prejudicial to the maintenance of supplies of
essential commodities to the community", it was necessary to detain him and accordingly
the order was passed. It was, therefore, submitted that the petition was liable to be
dismissed, particularly when the detenu absconded and the order of detention along with
grounds of detention and other documents could not be personally served and could not
be executed.
HIGH COURT JUDGMENT
8. The High Court, by the impugned order, held that the detenu was not entitled to know
the grounds on which the order of detention had been passed, unless he surrendered. The
Court, however, proceeded to state that it perused the grounds of detention with a view to
satisfy itself about the legality of the order of detention. The Court noted that the
authorities made the record available to the Court and the Court had 'carefully' examined
it. The Court then concluded;
"We find that the present petition can be entertained at pre-execution stage".
9. The High Court considered the relevant provisions of the Act as also the Maharashtra
Kerosene Dealers' Licensing Order, 1966 and the Kerosene (Restriction on Use and
Fixation of Ceiling Price) Order, 1993. It observed that if the cases instituted against the
detenu were taken into consideration by the Detaining Authority, it could not be said that
the Detaining Authority could not have reached 'subjective satisfaction' on that basis and
as such the order could not be challenged. The High Court also conceded that normally, a
Court would not interfere with the order of detention at pre-execution stage. It, however,
held that the present case was covered by one of the exceptions laid down in Addl.
Secretary to the Government of India and Ors. v. Smt. Alka Subhash Gadia and Anr.,
1992 Supp (1) SCC 496 and hence the petition was maintainable and the detenu was
entitled to relief. The High Court accordingly set aside the order of detention. The
legality of said order is questioned by the Authorities in the present appeal.
PREVIOUS ORDERS
10. On February 12, 2007, when the matter was placed for admission hearing, notice was
issued and was made returnable within three weeks. On August 13, 2007, four weeks
time was sought by the detenu for filing counter affidavit. The Court, however, passed the
following order;
"The matter relates to grant of relief by the High Court under Article 226 of the
Constitution at pre-arrest stage. This Court had issued notice on February 12, 2007.
On the facts and in the circumstances of the case, in our opinion, we should not grant four
weeks' time as prayed for. Two weeks' time is granted, as a last chance, for filing counter
affidavit.
List thereafter".
11. Affidavit-in-reply was thereafter filed. On December 13, 2007, the Registry was
directed to list the matter for final hearing in the first week of February, 2008 on a non-
miscellaneous day and that is how the matter is before us.
12. We have heard learned counsel for the parties.
APPELLANTS' SUBMISSIONS
13. The learned counsel for the appellants strenuously contended that the High Court was
wholly in error in exercising jurisdiction under Article 226 of the Constitutuion
@page-SC1709
against an order of detention at a pre-execution stage. It was submitted that the
preliminary objection raised by the Detaining Authority was well founded that the High
Court should not have entertained the writ petition and set aside the order of detention
before the order could be executed against the detenu. It was also submitted that an
important factor which ought to have been taken into consideration by the High Court
that the order could not be served upon the detenu, was a material factor. The detenu
absconded himself and successfully avoided service of order of detention, grounds of
detention and relevant documents in support of the order. The authorities were, therefore,
constrained to affix the order at a conspicuous place of residence of the detenu. The said
factor was crucial and the High Court should have refused to exercise jurisdiction in
favour of the detenu.
14. On merits, it was contended that several cases had been instituted against the detenu
under the 1955 Act and consistent conduct of the detenu revealed that he continued to
indulge in black marketing activities. If it is so, a preventive action under the Act was
called for and such action could not have been interfered with by the High Court. It was
also submitted that the High Court was not right in observing that the detenu was ill-
treated when he was arrested in connection with Grime No. 3022 of 2006 at Police
Station, Wadi (Nagpur) and there was 'custodial violence' by police authorities. But, even
if it is assumed to be true, the detenu could have taken appropriate action in accordance
with law. That, however, does not make order of detention vulnerable. The counsel also
contended that the High Court was not right that no other steps had been considered by
the authorities. In fact, the detenu was directed to execute a bond of good behaviour and
such bond was also executed by him. It was, therefore, submitted that the order passed by
the High Court deserves to be set aside by allowing the Detaining Authority to execute
the order of detention against the detenu and by granting liberty to the detenu to
challenge the order by taking appropriate action in accordance with law against such
detention.
RESPONDENTS SUBMISSION
15. Learned counsel for the respondent-detenu, on the other hand, supported the order of
the High Court. He submitted that normally a High Court or this Court, in exercise of
extraordinary powers under Article 226 or 32 of the Constitution does not interfere with
an order of detention at pre-execution stage. But, there is no restriction, limitation or
prohibition on the power of the Court in exercising constitutional powers. It is a self-
imposed limitation by Courts themselves. In an appropriate case, however, if the Court is
satisfied that the order is ex facie illegal, void, without jurisdiction or actuated by mala
fides, the Court has jurisdiction to grant relief to the detenu even if the order is not
executed and the person is not served with such order. In the case on hand, the learned
counsel submitted, the High Court was satisfied that one of the exceptions carved out by
this Court in Alka Subhash Gadia had been made out and the Court exercised the power
which cannot be said to be illegal or contrary to law. It was also submitted that when it
was alleged by the detenu that there was 'custodial violence' by police authorities, such
complaint and the requisite materials should have been placed before the Detaining
Authority and the Detaining Authority was bound to consider them. If no such material
was placed before the authority or was placed but not considered by the Detaining
Authority, there was non-application of mind on the part of the authority and it can be
concluded that the order was passed for a 'wrong purpose' and was liable to be set aside.
Finally, it was submitted that the order of detention was set aside by the High Court on
October 17, 2006 and no allegation had been made by the appellants that subsequent to
the said order, the detenu has indulged in black-marketing activities. Hence, even if this
Court is convinced that the High Court was not right in exercising jurisdiction at pre-
execution stage, this Court may not interfere with the decision of the High Court.
WHETHER HIGH COURT WAS RIGHT IN QUASHING ORDER OF DETENTION?
16. Having heard learned counsel for the parties and having given anxious consideration
to the facts and circumstances of the case, we are clearly of the view that the High Court
exceeded its jurisdiction in entertaining the writ-petition and in quashing and setting aside
the order of detention at pre-execution stage. It cannot be gainsaid that the order of
detention has been made against the detenu in exercise of power under the Act since the
Detaining Authority was satisfied that detention of the writ-petitioner
@page-SC1710
was necessary "with a view to preventing him from acting in any manner prejudicial to
the maintenance of supplies of commodities to the community" i.e. selling of kerosene in
black market, true it is that such order must be 'preventive' and not 'punitive' in nature.
But the Court must be conscious and mindful that the satisfaction of the Detaining
Authority is 'subjective' in nature and the Court cannot substitute its 'objective' opinion
for the subjective satisfaction of Detaining Authority for coming to the conclusion
whether the activities of the detenu were or were not prejudicial to the maintenance of
supplies of essential commodities to the society. It would, therefore, be appropriate if we
consider the concept of and relevant principles governing 'preventive detention'.
PERSONAL LIBERTY : PRECIOUS RIGHT
17

. There can be no doubt that personal liberty is a precious right. So did the Founding
Fathers believe because, while their first object was to give unto the people a Constitution
whereby a Government was established, their second object, equally important, was to
protect the people against the Government. That is why, while conferring extensive
powers on the Government like the power to declare an emergency, the power to suspend
the enforcement of Fundamental Rights or the power to issue Ordinances, they assured to
the people a Bill of Rights by Part III of the Constitution, protecting against executive
and legislative despotism those human rights which they regarded as 'fundamental'. The
imperative necessity to protect those rights is a lesson taught by all history and all human
experience. Our Constitution makers had lived through bitter years and seen an alien
government trample upon human rights which the country had fought hard to preserve.
They believed like Jefferson that "an elective despotism was not the government we
fought for." And therefore, while arming the Government with large powers to prevent
anarchy from within and conquest from without, they took care to ensure that those
powers were not abused to mutilate the liberties of the people [vide A.K. Roy v. Union of
India, (1982) 1 SCC 271; Attorney General for India v. Amritlal Pranjivandas, (1994) 5
SCC 54]. AIR 1982 SC 710
1994 AIR SCW 2652

18. It has been observed in R. v. Home Secretary, (1999) 2 AC 38 : (1997) 1 WLR 503,
"The imposition of what is in effect a sub-stantial term of imprisonment by the exercise
of executive discretion, without trial, lies uneasily with ordinary concepts of the rule of
law".
HABEAS CORPUS : FIRST SECURITY OF CIVIL LIBERTY
19. The celebrated writ of habeas corpus has been described as "a great constitutional
privilege" or "the first security of civil liberty". The writ provides a prompt and effective
remedy against illegal detention. By this writ, the Court directs the person or authority
who has detained another person to bring the body of the prisoner before the Court so as
to enable the Court to decide the validity, jurisdiction or justification for such detention.
The principal aim of the writ is to ensure swift judicial review of alleged unlawful
detention on liberty or freedom of the prisoner or detenu.
20. In Cox v. Hakes, (1890) 15 AC 506 : 60 LJQB 89, Lord Halsbury propounded:
"For a period extending as far back as our legal history, the writ of habeas corpus has
been regarded as one of the most important safeguards of the liberty of the subject. If
upon the return to that writ it was adjudged that no legal ground was made to appear
justifying detention, the consequence was immediate release from custody. If release was
refused, a person detained might make a fresh application to every judge or every Court
in turn, and each Court or Judge was bound to consider the question independently and
not to be influenced by the previous decisions refusing discharge. If discharge followed,
the legality of that discharge could never be brought in question. No writ of error or
demurrer was allowed."
21. In R v. Secretary of State for Home Affairs; ex parte O'Brien, (1923) 2 KB 361 : 1923
AC 603 : 92 LJKB 797, Scrutton, LJ observed: "The law in the country has been very
zealous of any infringement of personal liberty. This case is not to be exercised less
vigilantly, because the subject whose liberty is in question may not be particularly
meritorious. It is indeed one test of belief in principles if you apply them to cases with
which you have no sympathy at all. You really believe in freedom of speech, if you are
willing to allow it to men whose opinion seem to you wrong and even dangerous; and the
subject is entitled only to be deprived of his liberty by due process of law, although that
due process if taken will probably send him
@page-SC1711
to prison. A man undoubtedly guilty of murder must yet be released if due forms of law
have not been followed in his conviction. It is quite possible, even probable, that the
subject in this case is guilty of high treason: he is still entitled only to be deprived of his
liberty by due process of law".
(Emphasis supplied)
22. As early as in 1627, the following memorable observations were made by Hyde, C.J.
in Darnel. Re, (1927) 3 St Tr. 1 :
"Whether the commitment be by the King or others, this Court is a place where the King
doth sit in person, and we have power to examine it, and if it appears that any man hath
injury or wrong by his imprisonment, we have power to deliver and discharge him, if
otherwise, he is to be remanded by us to prison".
23. In Halsbury's Laws of England, (4th Edn., Vol.11, para 1454, p,789), it is stated :
"In any matter involving the liberty of the subject the action of the Crown or its ministers
or officials is subject to the supervision and control of the Judges on habeas corpus. The
Judges owe a duty to safeguard the liberty of the subject not only to the subjects of the
Crown, but also to all persons within the realm who are under the protection of the
Crown and entitled to resort to the courts to secure any rights which they may have, and
this whether they are alien friends or alien enemies. It is this fact which means the
prerogative writ of the highest constitutional importance, it being a remedy available to
the lowliest subject against the most powerful. The writ has frequently been used to test
the validity of acts of the executive and, in particular, to test the legality of detention
under emergency legislation. No peer or lord of Parliament has privilege of peerage or
Parliament against being compelled to render obedience to a writ of habeas corpus
directed to him".
24. In Greene v. Secretary of State for Home Affairs, (1941) 3 All ER 388 : 1942 AC 284,
Lord Wright observed :
"The inestimable value of the proceedings is that it is the most efficient mode ever
devised by any system of law to end unlawful detainments and to secure a speedy release
where the circumstances and the law so required".
25. The underlying object of the writ of habeas corpus has been succinctly explained by
Dua, J. in Sapmawia v. Deputy Commissioner, Aijal, (1971) 1 SCR 690, in the following
words :
"The writ of habeas corpus is a prerogative writ by which, the causes and validity of
detention of a person are investigated by summary procedure and if the authority having
his custody does not satisfy the court that the deprivation of his personal liberty is
according to the procedure established by law, the person is entitled to his liberty. The
order of release in the case of a person suspected of or charged with the commission of an
offence does not per se amount to his acquittal or discharge and the authorities are not, by
virtue of the release only on habeas corpus, deprived of the power to arrest and keep him
in custody in accordance with law for this writ is not designed to interrupt the ordinary
administration of criminal law".
PREVENTIVE DETENTION : MEANING AND CONCEPT
26. There is no authoritative definition of 'preventive detention' either in the Constitution
or in any other statute. The expression, however, is used in contradistinction to the word
'punitive'. It is not a punitive or penal provision but is in the nature of preventive action or
precautionary measure. The primary object of preventive detention is not to punish a
person for having done something but to intercept him before he does it. To put it
differently, it is not a penalty for past activities of an individual but is intended to pre-
empt the person from indulging in future activities sought to be prohibited by a relevant
law and with a view to preventing him from doing harm in future.
27

. In Hardhan Saha v. State of W.B., (1975) 3 SCC 198, explaining the concept of
preventive detention, the Constitution Bench on this Court, speaking through Ray, C.J.
stated; AIR 1974 SC 2154, Para 19

"The essential concept of preventive detention is that the detention of a person is not to
punish him for something he has done but to prevent him from doing it. The basis of
detention is the satisfaction of the executive of a reasonable probability of the likelihood
of the detenu acting in a manner similar to his past acts and preventing him by detention
from doing the same. A criminal conviction on the other hand is for an act already done
which can only be possible by a trial and legal evidence. There is no parallel between
prosecution in a Court of law and a detention order under the Act. One is
@page-SC1712
a punitive action and the other is a preventive act. In one case a person is punished to
prove his guilt and the standard is proof beyond reasonable doubt whereas in preventive
detention a man is prevented from doing something which it is necessary for reasons
mentioned in Section 3 of the Act to prevent".
28

. In another leading decision in Khudiram Das v. State of W.B., (1975) 2 SCR 832, this
Court stated : AIR 1975 SC 550, Para 8

"The power of detention is clearly a preventive measure. It does not partake in any
manner of the nature of punishment. It is taken by way of precaution to prevent mischief
to the community. Since every preventive measure is based on the principle that a person
should be prevented from doing something which, if left free and unfettered, it is
reasonably probable he would do, it must necessarily proceed in all cases, to some extent,
on suspicion or anticipation as distinct from proof. Patanjali Sastri, C.J., pointed out in
State of Madras v. V.G. Row AIR 1952 SC 196 : 1952 SCR 597 that preventive detention
is "largely precautionary and based on suspicion" and to these observations may be added
the following words uttered by the learned Chief Justice in that case with reference to the
observations of Lord Finlay in Rexv. Halliday, 1917 AC 260 namely, that "the court was
the least appropriate tribunal to investigate into circumstances of suspicion on which such
anticipatory action must be largely based". This being the nature of the proceeding, it is
impossible to conceive how it can possibly be regarded as capable of objective
assessment. The matters which have to be considered by the detaining authority are
whether the person concerned, having regard to his past conduct judged in the light of the
surrounding circumstances and other relevant material, would be likely to act in a
prejudicial manner as contemplated in any of sub-clauses (i), (ii) and (iii) of Clause (1) of
Subsection (1) of Section 3, and if so, whether it is necessary to detain him with a view to
preventing him from so acting. These are not matters susceptible of objective
determination and they could not be intended to be judged by objective standards. They
are essentially matters which have to be administratively determined for the purpose of
taking administrative action. Their determination is, therefore, deliberately and advisedly
left by the legislature to the subjective satisfaction of the detaining authority which by
reason of its special position, experience and expertise would be best fitted to decide
them. It must in the circumstances be held that the subjective satisfaction of the detaining
authority as regards these matters constitutes the foundation for the exercise of the power
of detention and the Court cannot be invited to consider the propriety or sufficiency of the
grounds on which the satisfaction of the detaining authority is based. The Court cannot,
on a review of the grounds, substitute its own opinion for that of the authority, for what is
made condition precedent to the exercise of the power of detention is not an objective
determination of the necessity of detention for a specified purpose but the subjective
opinion of the detaining authority, and if a subjective opinion is formed by the detaining
authority as regards the necessity of detention for a specified purpose, the condition of
exercise of the power of detention would be fulfilled. This would clearly show that the
power of detention is not a quasi-judicial power".
(Emphasis supplied)
29

. Recently, in Naresh Kumar Goyal v. Union of India, (2005) 8 SCC 276, the Court said;
2005 AIR SCW 5394, Para 9

"It is trite law that an order of detention is not a curative or reformative or punitive
action, but a preventive action, avowed object of which being to prevent the anti-social
and subversive elements from imperiling the welfare of the country or the security of the
nation or from disturbing the public tranquility or from indulging in smuggling activities
or from engaging in illicit traffic in narcotic drugs and psychotropic substances etc.
Preventive detention is devised to afford protection to society. The authorities on the
subject have consistently taken the view that preventive detention is devised to afford
protection to society. The object is not to punish a man for having done something but to
intercept before he does it, and to prevent him from doing so. It, therefore, becomes
imperative on the part of the detaining authority as well as the executing authority to be
very vigilant and keep their eyes skinned but not to turn a blind eye in securing the
detenue and executing the detention order because any indifferent attitude on the part of
the detaining authority or executing authority will defeat the very purpose of preventive
action and turn the 1992 AIR SCW 2173
AIR 1982 SC 1143
AIR 1979 SC 541
@page-SC1713
detention order as a dead letter and frustrate the entire proceedings. Inordinate delay, for
which no adequate explanation is furnished, led to the assumption that the live and
proximate link between the grounds of detention and the purpose of detention is
snapped". [See : P.U. Iqbal v. Union of India and Ors., (1992) 1 SCC 434; Ashok Kumar
v. Delhi Administration, (1982) 2 SCC 403 and Bhawarlal Ganeshmalji v. State of
Tamilnadu, (1979) 1 SCC 465].
PREVENTIVE DETENTION : NECESSARY EVIL
30

. Liberty of an individual has to be subordinated, within reasonable bounds, to the good


of the people. The framers of the Constitution were conscious of the practical need of
preventive detention with a view to striking a just and delicate balance between need and
necessity to preserve individual liberty and personal freedom on the one hand and
security and safety of the country and interest of the society on the other hand. Security
of State, maintenance of public order and services essential to the community, prevention
of smuggling and black marketing activities, etc. demand effective safeguards in the
larger interests of sustenance of a peaceful democratic way of life. In considering and
interpreting preventive detention laws, courts ought to show greatest concern and solitude
in upholding and safeguarding the Fundamental Right of liberty of the citizen, however,
without forgetting the historical background in which the necessityan unhappy necessity
was felt by the makers of the Constitution in incorporating provisions of preventive
detention in the Constitution itself. While no doubt it is the duty of the court to safeguard
against any encroachment on the life and liberty of individuals, at the same time the
authorities who have the responsibility to discharge the functions vested in them under
the law of the country should not be impeded or interfered with without justification [vide
A.K. Roy v. Union of India; Bhut Nath v. State of West Bengal, (1974) 3 SCR 315; State
of W.B. v. Ashok Dey, (1972) 2 SCR 434; ADM Jabalpur v. Shirakant Shukla, 1976 Supp
SCR 132]. AIR 1982 SC 710
AIR 1974 SC 806
AIR 1972 SC 1660
AIR 1976 SC 1207

SUBJECTIVE SATISFACTION : SCOPE OF JUDICIAL REVIEW


31. Subjective satisfaction being a condition precedent for the exercise of the power of
preventive detention conferred on the executive, the Court can always examine whether
the requisite satisfaction is arrived at by the authority; if it is not, the condition precedent
to the exercise of the power would not be fulfilled and the exercise of the power would be
bad.
32. A Court cannot go into correctness or otherwise of the facts stated or allegations
levelled in the grounds in support of detention. A Court of Law is 'the last appropriate
tribunal to investigate into circumstances of suspicion on which such anticipatory action
must be largely based.'
33. That, however, does not mean that the subjective satisfaction of Detaining Authority
is wholly immune from judicial reviewability. By judicial decisions, courts have carved
out areas, though limited, within which the validity of subjective satisfaction can be
tested judicially.
GROUNDS OF CHALLENGE
34. An order of detention can be challenged on certain grounds, such as, the order is not
passed by the competent authority, condition precedent for the exercise of power does not
exist; subjective satisfaction arrived at by the Detaining Authority is irrational, the order
is mala fide; there is non-application of mind on the part of the Detaining Authority in
passing the order; the grounds are, or one of the grounds is, vague, indefinite, irrelevant,
extraneous, non-existent or stale; the order is belated; the person against whom an order
is passed is already in jail; the order is punitive in nature; the order is not approved by
State/Central Government as required by law; failure to refer the case of the detenu to the
Board constituted under the statute; the order was quashed/revoked and again a fresh
order of detention was made without new facts, etc.
CHALLENGE TO DETENTION-ORDER PRIOR TO EXECUTION
35. A writ of habeas corpus may be prayed in case of actual detention or imprisonment of
a person if it is illegal or unconstitutional. But if a person is not actually detained,
obviously a writ of habeas corpus would not lie. A question, however, may arise whether
in such an eventuality, no remedy at all is available to an aggrieved person against whom
an order of detention has been
@page-SC1714
made and such order is still to be executed. In other words, whether actual detention of a
person against whom an order of detention is made is sine qua non or condition precedent
for approaching a Court of Law.
36. On this question, our attention has been invited by the learned counsel for both the
sides to several decisions of this Court, Having gone through those decisions, we are of
the view that normally and as a general rule, an order of detention can be challenged by
the detenu after such order as also the grounds of detention have been received by him
and the order is executed, In exceptional cases, however, a High Court or this Court may
exercise extraordinary powers to protect a person against an illegal invasion of his right
to freedom by protecting him while still he is free by issuing an appropriate writ,
direction or order including a writ in the nature of mandamus questioning an order of
detention and restraining the authorities from interfering with the right of liberty of an
individual against whom such order is made.
37

. A direct question arose before this Court in Kiran Pasha v. Government of A. P., (1990)
1 SCC 328. In that case, the petitioner filed a writ petition in the High Court of Andhra
Pradesh under Article 226 of the Constitution restraining the respondents from making an
order of detention against him. A Single Judge of the High Court granted interim relief
against taking the petitioner in custody but the Division Bench held that the order of
detention was already made even prior to filing of the petition, the petitioner was taken in
custody and the petition had become infructuous. According to the Division Bench, the
normal rule was that the petitioner should first surrender to custody and then to move for
a writ of habeas corpus. The aggrieved petitioner approached this Court. An important
question before this Court was whether a writ petition for protection of a Fundamental
Right being threatened or in imminent danger was maintainable. Following K.K. Kochuni
v. State of Madras, 1959 Supp (2) SCR 316 and approving observations of the High
Court of Bombay in Jayantilal v. State of Maharashtra, (1981) 83 Bom LR 190 as also of
the Full Bench of the High Court of Gujarat in Ved Prakash v. State of Gujarat, AIR 1987
Guj 253, this Court observed : AIR 1959 SC 725
1981 Cri LJ 767

"When a right is so guaranteed, it has to be understood in relation to its orbit and its
infringement. Conferring the right to life and liberty imposes a corresponding duty on the
rest of the society, including the State, to observe that right, that is to say, not to act or do
anything which would amount to infringement of that right, except in accordance with the
procedure prescribed by law. In other words, conferring the right on a citizen involves the
compulsion on the rest of the society, Including the State, not to infringe that right. The
question is at what stage the right can be enforced ? Does a citizen have to wait till the
right is infringed ? Is there no way of enforcement of the right before it is actually
infringed? Can the obligation or compulsion on the part of the State to observe the right
be made effective only after the right is violated or in other words can there be
enforcement of a right to life and personal liberty before it is actually Infringed ? What
remedy will be left to a person when his right to life is violated ? When a right is yet to be
violated, but is threatened with violation can the citizen move the court for protection of
the right ? The protection of the right is to be distinguished from its restoration or remedy
after violation. When right to personal liberty is guaranteed and the rest of the society,
including the State, is compelled or obligated not to violate that right, and if someone has
threatened to violate it or its violation is imminent, and the person whose right is so
threatened or its violation so imminent resorts to Article 226 of the Constitution, could
not the court protect observance of his right by restraining those who threatened to violate
it until the court examines the legality of the action ? Resort to Article 226 after the right
to personal liberty is already violated is different from the pre-violation protection. Post-
violation resort to Article 226 is for remedy against violation and for restoration of the
right, while pre-violation protection is by compelling observance of the obligation or
compulsion under law not to infringe the right by all those who are so obligated or
compelled. To surrender and apply for a writ of habeas corpus is a post-violation remedy
for restoration of the right which is not the same as restraining potential violators in case
of threatened violation of the right. The question may arise what precisely may amount to
threat or imminence of violation. Law surely cannot take action for internal
@page-SC1715
thoughts but can act only after overt acts. If overt acts towards violation have already
been done and the game has come to the knowledge of the person threatened with that
violation and he approaches the court under Article 226 giving sufficient particulars of
proximate action as would imminently lead to violation of right, should not the court call
upon those alleged to have taken those steps to appear and show cause why they should
not be restrained from violating that right ? Instead of doing so would it be the proper
course to be adopted to tell the petitioner that the court cannot take any action towards
preventive Justice until his right is actually violated whereafter alone he could petition for
a writ of habeas corpus ? In the instant case when the writ petition was pending in court
and the appellant's right to personal liberty happened to be violated by taking him into
custody in preventive detention, though he was released after four days, but could be
taken into custody again, would it be proper for the court to reject the earlier writ petition
and tell him that his petition has become infructuous and he had no alternative but to
surrender and then petition for a writ of habeas corpus? The difference of the two
situations, as we have seen, have different legal significance. If a threatened invasion of a
right is removed by restraining the potential violator from taking any steps towards
violation, the rights remain protected and the compulsion against its violation is enforced.
If the right has already been violated, what is left is the remedy against such violation and
for restoration of the right".
(Emphasis supplied)
38. Alka Subhash Gadia was indeed a leading decision of this Court on the point. This
Court in that case stated that if in each and every case a detenu is permitted to challenge
an order of detention and seek stay of the operation of the order before execution, "the
very purpose of the order and of the law under which it is made will be frustrated since
such orders are in operation only for a limited period".
39. The Court, after considering several cases, observed that with a view to prevent
possible abuse of 'draconian measure' of preventive detention, the Legislature had taken
care to provide various salutary safeguards such as (i) obligation to furnish to the detenu
the grounds of detention; (ii) right to make representation against such action;
(iii) constitution of Advisory Board consisting of persons who are or have been qualified
to be appointed as Judges of the High Court; (iv) reference of the case of the detenu to the
Advisory Board; (v) hearing of the detenu by the Advisory Board in person; (vi)
obligation of the Government to revoke detention order if the Advisory Board so opines;
(vii) maximum period for which a person can be detained; (viii) revocation of detention
order by the Government on the representation by the detenu, etc.
40. The Court then considered the point as to denial of a right to the proposed detenu to
challenge the order of detention before the execution of order and observed :
"As regards his last contention, viz., that to deny a right to the proposed detenu to
challenge the order of detention and the grounds on which it is made before he is taken in
custody is to deny him the remedy of judicial review of the impugned order which right is
a part of the basic structure of the Constitution, we find that this argument is also not
well-merited based as it is on absolute assumptions. Firstly, as pointed out by the
authorities discussed above, there is a difference between the existence of power and its
exercise. Neither the Constitution Including the provisions of Article 22 thereof nor the
Act in question places any restriction on the powers of the High Court and this Court to
review judicially the order of detention. The powers under Articles 226 and 32 are wide,
and are untrammelled by any external restrictions, and can reach any executive order
resulting in civil on criminal consequences. However, the Courts have over the years
evolved certain self-restraints for exercising these powers. They have done so in the
interests of the administration of justice and for better and more efficient and informed
exercise of the said powers. These self-imposed restraints are not confined to the review
of the orders passed under detention law only. They extend to the orders passed and
decisions made under all laws. It is in pursuance of this self-evolved judicial policy and
in conformity with the self-imposed internal restrictions that the Courts insist that the
aggrieved person first allow the due operation and implementation of the concerned law
and exhaust the remedies provided by it before approaching the High Court and this
Court to invoke their discretionary, extraordinary, and equitable jurisdiction under
Articles 226 and 32 respectively.
@page-SC1716
That jurisdiction by its very nature is to be used sparingly and in circumstances where no
other efficacious remedy is available. We have while discussing the relevant authorities
earlier dealt in detail with the circumstances under which these extraordinary powers are
used and are declined to be used by the courts. To accept Shri Jain's present contention
would mean that the courts should disregard all these time-honoured and well-tested
judicial self-restraints and norms and exercise their said powers, in every case before the
detention order is executed. Secondly, as has been rightly pointed out by Shri Sibbal for
the appellants, as far as detention orders are concerned if in every case a detenu is
permitted to challenge and seek the stay of the operation of the order before it is
executed, the very purpose of the order and of the law under which it is made will be
frustrated since such orders are in operation only for a limited period. Thirdly, and this is
more important, it is not correct to say that the courts have no power to entertain
grievances against any detention order prior to its execution. The courts have the
necessary power and they have used it in proper cases as has been pointed out above,
although such cases have been few and the grounds on which the courts have interfered
with them at the pre-execution stage are necessarily very limited in scope and number,
viz., where the courts are prima facie satisfied (i) that the impugned order is not passed
under the Act under which it is purported to have been passed, (ii) that it is sought to be
executed against a wrong person, (iii) that it is passed for a wrong purpose, (iv) that it is
passed on vague, extraneous and irrelevant grounds or (v) that the authority which passed
it had no authority to do so. The refusal by the courts to use their extraordinary power of
judicial review to interfere with the detention orders prior to their execution on any other
grounds does not amount to the abandonment of the said power or to their denial to the
proposed detenu, but prevents their abuse and the perversion of the law in question".
(Emphasis supplied)
41. The above principles have been reiterated in subsequent cases decided by this Court.
42. The learned counsel for the detenu urged that on the facts and in the circumstances of
the case, the High Court was right in holding that exception (iii) in Alka Subhash Gadia
got attracted inasmuch the order was passed for a 'wrong purpose'.
43. We must concede our inability to uphold the above contention. We have been taken to
the judgment of the High Court impugned in the present appeal. So far as the authority of
the Commissioner of Police is concerned, the High Court was satisfied that the order was
passed by the authority competent to exercise the power. It was also clear that the order
was passed 'under the Act' since the Detaining Authority was satisfied that the detention
of the writ-petitioner was necessary 'with a view to preventing him from acting in any
manner prejudicial to the maintenance of supplies of essential commodities to the
community' i.e. kerosene. The grounds, in our opinion, cannot be said to be vague,
extraneous irrelevant or nonexistent. (In fact, the detenu absconded and grounds could
not be served). It is not even alleged that the order is sought to be executed against a
wrong person.
44. According to the High Court, however, the order was passed for a 'wrong purpose'. It
was contended before the High Court on behalf of the detenu that certain offences had
been registered against the detenu and they were under investigation. The report of the
Chemical Analyzer was not received and yet the Detaining Authority took into account
those cases. It was further submitted that offences were registered against the detenu in
July, 2003, September, 2005 and May, 2006 and no preventive action was thought
necessary to be taken by the authority at any stage. It was when the detenu was arrested
in 2006 and a complaint was made against 'custodial violence' meted out to him by police
authorities while he was in custody that with a view to save the skin of erring police
officials that an illegal order of detention was passed. Thus, it was made for 'wrong
purpose' and not with a view to preventing the writ petitioner from indulging in black
marketing of kerosene. The High Court found 'considerable force' in the submission. The
High Court, with respect, went wrong in observing that once a detenu had made
allegations against the police atrocities and custodial violence, the Detaining Authority
ought to have waited till the inquiry was conducted and report submitted.
45. The Court observed;
"We find considerable force in this submission.
@page-SC1717
A careful perusal of the events that followed the registration of Crime No.3022/ 2006 at
P.S. Wadi (Nagpur) indicates that the petitioner made allegations against Respondent No.
3 about custodial violence immediately on his release. The said complaint dated
20.7.2006 was addressed to Respondent No.2. This complaint was forwarded by
Respondent No.2 to DCP-1 Nagpur on 26.7.2006 for necessary enquiry and action. A
copy of the communication 26.7.2006 was also forwarded to the petitioner. Immediately
on the next day i.e. on 27.7.2006 detention order was passed by Respondent No. 2 even
before any enquiry could be made into complaint made by the i. e. petitioner against
Respondent No. 3. The detaining authority should have at least waited till the enquiry
into the complaint made by the petitioner was initiated and completed and the result
thereof either in the positive or in the negative. Instead of waiting for that, the detaining
authority immediately proceeded to pass order of detention against the petitioner which
indicates that even without subjective satisfaction of the detaining authority hastily
passed the order of detention for wrong purpose. This clearly shows that the detention
order against the petitioner was passed for a wrong purpose and on this count the same
deserves to be quashed and set aside".
46

. The High Court again went wrong in holding that two parallel and simultaneous
proceedings were not permissible in law. The High Court, relying on Biram Chand v.
State of U.P. and Ors., (1974) 4 SCC 573, stated; AIR 1974 SC 1161

"A perusal of the grounds of detention shows that Crime No. 76/2006 of P.S. Mouda,
District Nagpur was taken into consideration by the detaining authority for its subjective
satisfaction. Now, in case the petitioner wants to make representation to the detaining
authority against the order of detention he is required to disclose his defence which may
cause prejudice to the petitioner in defending the criminal prosecution. In Biram Chand v.
State of Uttar Pradesh and Ors., AIR 1974 SC 1161, it has been held that if the authority
concerned makes an order of detention under the Act and also prosecutes him in criminal
case on self-same facts, the detaining authority cannot take recourse to two parallel and
simultaneous proceedings nor can take re-course to a ground which is the subject matter
of a criminal trial. Thus on this ground also the impugned order of detention cannot be
sustained".
47

. Unfortunately, the attention of the High Court was not invited to Hardhan Saha, wherein
the Constitution Bench did not approve the law laid down by this Court in Biram Chand.
Referring to larger Bench decisions, the Court stated; AIR 1974 SC 1161

"Article 14 is inapplicable because preventive detention and prosecution are not


synonymous. The purposes are different. The authorities are different. The nature of
proceedings is different. In a prosecution an accused is sought to be punished for a past
act. In preventive detention, the past act is merely the material for inference about the
future course of probable conduct on the part of the detenu.

The recent decisions of this Court on this subject are many. The decisions in Borjahan
Gorey v. The State of West Bengal reported in (1972) 2 SCC 550, Ashim Kumar Ray v.
State of West Bengal reported in (1973) 4 SCC 76, Abdul Aziz v. The Distt. Magistrate,
Burdwan and Ors. reported in (1973) 1 SCC 301 and Debu Mahto v. The State of West
Bengal reported in (1974) 4 SCC 135 correctly lay down the principles to be followed as
to whether a detention order is valid or not. The decision in Biram Chand v. State of Uttar
Pradesh and Ors. reported in (1974) 4 SCC 573 which is a Division Bench decision of
two learned Judges is contrary to the other Bench decisions consisting in each case of
three learned Judges. The principles which can be broadly stated are these. First merely
because a detenu is liable to be tried in a criminal court for the commission of a criminal
offence or to be proceeded against for preventing him from committing offences dealt
with in Chapter VIII of the Cr.P.C. would not by itself debar the Government from taking
action for his detention under the Act. Second, the fact that the Police arrests a person and
later on enlarges him on bail and initiates steps to prosecute him under the CrPC and even
lodges a first information report may be no bar against the District Magistrate issuing an
order under the preventive detention. Third, where the concerned person is actually in jail
custody at the time when an order AIR 1972 SC 2256
AIR 1972 SC 2561
AIR 1973 SC 770
AIR 1974 SC 816
AIR 1974 SC 1161

@page-SC1718
of detention is passed against him and is not likely to be released for a fair length of time,
it may be possible to contend that there could be no satisfaction on the part of the
detaining authority as to the likelihood of such a person indulging in activities which
would jeopardise the security of the State or the public order. Fourth, the mere
circumstance that a detention order is passed during the pendency of the prosecution will
not violate the order. Fifth, the order of detention is a precautionary measure. It is based
on a reasonable prognosis of the future behaviour of a person based on his past conduct in
the light of the surrounding circumstances".
(Emphasis supplied)
48. Considering the facts on record in their entirety, it is clear that many cases had been
filed against the detenu under the 1955 Act. It was alleged that the writ petitioner was
indulging in illegal activities of black marketing of kerosene which was an essential
commodity. Those cases had been registered in 2002, 2003, 2005 and 2006. Thus, the
action was taken on the basis of past conduct of the detenu having reasonable prognosis
of future behaviour and there was 'live link' between the activities of the detenu and the
action of preventive detention to reach subjective satisfaction by the Detaining Authority.
It has come on record that the detenu was called upon to execute a bond for good
behaviour under Sections 110 and 111 of the Code of Criminal Procedure, 1973. It is,
therefore, clear that the authorities had taken steps under the relevant law. But even
otherwise, in our opinion, such questions may become relevant and can be considered
after the order of detention is executed.
49. Similarly, if the detenu was ill-treated when he was in custody in connection with any
case registered against him under the 1955 Act, or there was custodial violence, it would
not affect detention of the writ-petitioner. Whether there was such custodial violence and
whether police officers had abused their position can indeed be gone into by a competent
authority or by a Court of law. That circumstance, however, will not make the order of
detention invalid or for a 'wrong purpose'. Externment proceedings initiated against the
detenu under Section 59 of the Bombay Police Act, 1951 also would not make the action
assailable. In our considered opinion, therefore, this was not a case in which interference
was warranted at pre-execution stage.
50

. In this connection, it may be profitable if we refer to a decision of this Court in Subhash


Muljimal Gandhi v. L. Himingliana and Anr., (1994) 6 SCC 14. There, an order of
detention was challenged by the detenu at pre-execution stage. It was contended by the
detenu that the contingencies noted in Alka Subhash Gadia were illustrative and not
exhaustive. It was submitted that there might well be other contingencies where such
order could be questioned at pre-execution stage. In that case also, it was alleged that the
detenu was harassed, humiliated and beaten by authorities and the case called for grant of
relief before execution of order of detention. 1994 AIR SCW 4975

51. Negativing the contention and referring to Alka Subhash Gadia and N. K. Bapna v.
Union of India, (1992) 3 SCC 512, the Court said;
"The above principles laid down in Alka Subhash Gadia have been quoted with approval
by another three-Judge Bench in N. K. Bapna v. Union of India ((1992) 3 SCC 512.
Bound as we are by the above judgments, we must hold that the other contingencies, if
any, must be of the same species as of the five contingencies referred to therein. Coming
now to Mr. Jethmalani's submission, that the detention order was passed 'for a wrong
purpose', namely, to harass and humiliate the appellant by concocting a false case of
smuggling, based primarily on a confession obtained from him after subjecting to him to
assault, illegal detention and extortion we find that the detaining authority has denied the
allegations of assault and extortion. Needless to say these are disputed questions of fact,
which we cannot entertain much less delve into or decide upon. In any case, the said fact,
even if true cannot vitiate the order of detention."
(Emphasis supplied)
52

. We may also refer to one more case of this Court in State of Bihar v. Ram Balak Singh,
(1966) 3 SCR 344. The question which arose before this Court there related to grant of
bail/parole in a petition filed by a detenu for a writ of habeas corpus. The Court observed
that there is vital difference between 'preventive detention' and 'punitive detention'.
Preventive detention is a precautionary AIR 1966 SC 1441

@page-SC1719
measure and is intended to pre-empt a person from indulging in illegal or anti-social
activities in order to safeguard the defence of India, public safety, maintenance of public
order, maintenance of supplies and services essential to the life of the community,
prevention of smuggling activities, etc. Therefore, the jurisdiction of the court to grant
relief to the detenu in such proceedings is indeed narrow and very much limited. Bail
cannot be granted as a matter of common practice on considerations generally applicable
to cases of punitive detention. Therefore, whenever the Court is of the view that prima
facie the allegations made in the writ petition disclose a serious defect in the order of
detention, the wiser and the more sensible and reasonable course to adopt would
invariably be to expedite the hearing of the writ petition and deal with the merits without
any delay.
(Emphasis supplied)
53. The Court, however, held that it cannot be contended as a proposition of law that a
writ Court has no jurisdiction to make an interim order giving the detenu the relief which
the Court would be entitled to grant at the end of the proceedings. If the Court has
jurisdiction to give the main relief to the detenu at the end of the proceedings, on
principle and in theory, it is not easy to understand why the Court cannot give interim
relief to the detenu pending the final disposal of his writ petition. The interim relief which
can be granted in habeas corpus proceedings must no doubt be in aid of, and auxiliary to,
the main relief. It cannot be urged that releasing a detenu on bail is not in aid of, or
auxiliary to the main relief for which a claim is made on his behalf in the writ petition.
54. The Court then concluded :
"In dealing with writ petitions of this character, the Court has naturally to bear in mind
the object which is intended to be served by the orders of detention. It is no doubt true
that a detenu is detained without a trial; and so, the courts would inevitably be anxious to
protect the individual liberty of the citizen on grounds which are justiciable and within
the limits of their jurisdiction. But in upholding the claim for individual liberty within the
limits permitted by law, it would be unwise to ignore the object which the orders of
detention are intended to serve. An unwise decision granting bail to a party may lead to
consequences which are prejudicial to the interests of the community at large; and that is
a factor which must be duly weighed by the High Court before it decides to grant bail to a
detenu in such proceedings. We are free to confess that we have not come across cases
where ball has been granted in habeas corpus proceedings directed against orders of
detention under R. 30 of the Rules, and we apprehend that the reluctance of the courts to
pass orders of bail in such proceedings is obviously based on the fact that they are fully
conscious of the difficulties legal and constitutional, and of the other risks involved in
making such orders."
(Emphasis supplied)
55

. The learned counsel for the respondent referred to Rajinder Arora v. Union of India and
Ors., (2006) 4 SCC 796. On the facts of the case, the Court held that the case of the
appellant was covered by exceptions (iii) and (iv) of Alka Subhash Gadia and the relief
was granted. 2006 AIR SCW 1510

56

. Likewise, in K. S. Mangamuthu v. State of Tamil Nadu and Ors., (2006) 4 SCC 792,
there was non-placement of relevant material before the Detaining Authority and it was
held by this Court that the order of detention was vitiated. 2005 AIR SCW 6124

57. The Counsel relied upon certain other decisions wherein the order was quashed and
set aside. There, however, the order was executed and the detenu surrendered. As already
held by us, at the second stage, i.e. after the order of detention is executed and the person
is served with the grounds of detention, he can challenge such order and Court will
decide the legality or otherwise of the action.
58. From the foregoing discussion, in our judgment, the law appears to be fairly well-
settled and it is this. As a general rule, an order of detention passed by a Detaining
Authority under the relevant 'preventive detention' law cannot be set aside by a Writ
Court at the pre-execution or pre-arrest stage unless the Court is satisfied that there are
exceptional circumstances specified in Alka Subhash Gadia. The Court must be conscious
and mindful of the fact that this is a 'suspicious jurisdiction' i.e. jurisdiction based on
suspicion and an action is taken 'with a view to preventing' a person from acting in any
manner prejudicial to certain
@page-SC1720
activities enumerated in the relevant detention law. Interference by a Court of Law at that
stage must be an exception rather than a rule and such an exercise can be undertaken by a
Writ Court with extreme care, caution and circumspection. A detenu cannot ordinarily
seek a writ of mandamus if he does not surrender and is not served with an order of
detention and the grounds in support of such order.
59. The case on hand, in our considered opinion, does not fall within the category of
exceptional cases and the High Court committed an error of law in setting aside the order
of detention at the pre-execution and pre-arrest stage. The said order, therefore, deserves
to be set aside and is hereby set aside. It is open to the authorities to execute the order of
detention. It is equally open to the detenu to challenge the legality thereof on all available
grounds.
60. Before parting with the matter, we may clarify that all observations made by us in this
judgment are only for the purpose of deciding the legality of the order passed by the High
Court and impugned in the present appeal. We may not be understood to have expressed
any opinion one way or the other on the allegations and counter-allegations by the parties.
It is also made clear that if after the execution of the order, the action is challenged by the
detenu, the Court will decide the case strictly in accordance with law on its own merits
without being inhibited by any observations made either in the decision of the High Court
or in the present judgment.
61. The appeal is accordingly allowed.
Appeal allowed.
AIR 2008 SUPREME COURT 1720 "E. Micheal Raj v. Intelligence Officer, Narcotic
Control Bureau"
(From : 2005 Cri LJ 1817 (Ker))
Coram : 2 PRAKASH PRABHAKAR NAOLEKAR AND LOKESHWAR SINGH
PANTA, JJ.
Criminal Appeal No. 1250 of 2005, D/- 11 -3 -2008.
E. Micheal Raj v. Intelligence Officer, Narcotic Control Bureau.
(A) Narcotic Drugs and Psychotropic Substances Act (61 of 1985), S.21 (as amended by
Amendment Act 9 of 2001) - NARCOTIC DRUGS - SENTENCE IMPOSITION -
Imposition of sentence - To be based on content of offending drug in mixture and not on
weight of the mixture as such.
When any narcotic drug or psychotropic substance is found mixed with one or more
neutral substance/s, for the purpose of imposition of punishment it is the content of the
narcotic drug or psychotropic substance which shall be taken into consideration. (Para
16)
The intention of the legislature under the Amending Act of 2001 was to rationalize the
sentence structure so as to ensure that while drug traffickers who traffic in significant
quantities of drugs are punished with deterrent sentence, the addicts and those who
commit less serious offences are sentenced to less severe punishment. Under the
rationalised sentence structure, the punishment would vary depending upon the quantity
of offending material. Thus, it cannot be said that the rate of purity is irrelevant since any
preparation which is more than the commercial quantity of 250 gms. and contains 0.2%
of heroin or more would be punishable under S. 21 (c) Act, because the intention of the
legislature is to levy punishment based on the content of the offending drug in the
mixture and not on the weight of the mixture as such. In the mixture of a narcotic drug or
a psychotropic substance with one or more neutral substance/s, the quantity of the neutral
substance/s is not to be taken into consideration while determining the small quantity or
commercial quantity of a narcotic drug or psychotropic substance. It is only the actual
content by weight of the narcotic drug which is relevant for the purposes of determining
whether it would constitute small quantity or commercial quantity. The intention of the
legislature for introduction of the amendment is to punish the people who commit less
serious offences with less severe punishment and those who commit grave crimes, such
as trafficking in significant quantities, with more severe punishment. (Para 13)
(B) Narcotic Drugs and Psychotropic Substances Act (61 of 1985), S.21 - NARCOTIC
DRUGS - POSSESSION - SENTENCE REDUCTION - Sentence - Appellant, accused
found in possession of 60 gms. of narcotic drug - It is more than 5 gms. i.e. small
quantity, but less than 250 gms. i.e. commercial quantity - Thus, appellant would be
punishable u/S.21(b) - Further, appellant is merely a carrier and is not a kingpin - In
circumstances sentence of accused-appellant reduced to 6 years rigorous imprisonment
with fine of Rs. 20,000/-. (Paras 17, 18)
@page-SC1721
Cases Referred : Chronological Paras
2005 AIR SCW 5075 : AIR 2005 SC 4248 : 2005 Cri LJ 4521 (Disting) 15, 16
(2004) 4 SCC 446 (Ref.) 14
K.V. Vishwanathan, M. Gireesh Kumar, Avjeeth K. Lala, Khwairakpam Nobin Singh, for
Appellant; Vikas Sharma, Ms. Binu Tamta, Ms. Sushma Suri, for Respondent.
Judgement
1

. P. P. NAOLEKAR, J. :-This appeal by special leave is directed against the judgment and
order dated 25.8.2004 of the Kerala High Court in Criminal Appeal No. 185 of 2004
whereby the conviction and sentence of the accused-appellant under Section 21(c) of the
Narcotic Drugs and Psychotropic Substances Act, 1985 (hereinafter referred to as "the
NDPS Act") was confirmed. reported in 2005 Cri LJ 1817

2. The relevant facts of the case are that on 5.3.2001, the Intelligence Officer was
informed by an informant that two persons with certain drugs would be arriving by a
Tamil Nadu Transport Corporation Bus at Thiruvananthapuram Bus Stand. The Officer
along with other persons and the informant went to the bus stand and waited for the bus.
At about 9.00 a.m., the two accused alighted from the Tamil Nadu Transport Corporation
bus. They were identified by the informant. They were intercepted by the officials. The
officials disclosed their identity and the accused were searched. When asked about
possession of narcotic drugs, it was admitted by the accused that they were carrying 4
kgs. of heroin and they handed over the bag to the Officer. The bag contained two packets
wrapped in Tamil newspapers secured with brown adhesive tape in which light grey
powder was found. Two samples of 5 gms. each from both the drug packets were packed,
sealed and sent for testing to the Laboratory. The accused were arrested, but the second
accused escaped while on the way to produce them before the Magistrate. On 26.3.2001,
the Customs House Laboratory, Cochin sent a report confirming the samples as
answering to the test of crude heroin, a narcotic drug covered under the NDPS Act. The
report further said that the Laboratory was not equipped to conduct a quantitative test.
Thus, the samples were sent for quantitative test. On 22.2.2002, a quantitative test was
done in the Customs Laboratory, Chennai where the purity was tested and the quantitative
test report indicated as follows :

S. No Marking on the cover Lab No. Wt of the sample received with plastic cover
Wt of the remnant received with plastic cover Purity
1. S1 235 5.6g 5.0g 1.4%
2. S3 236 4.9g 4.6g 1.6%

3. The accused-appellant was charged with the offence committed under Section 8(c)
read with Sections 21 and 29 of the NDPS Act by the Intelligence Officer, Narcotic
Control Bureau. The Special Judge for Trial of Cases under the NDPS Act found that the
substance found in possession of the accused was an opium derivative which has been
defined under Section 2(xvi), and under Section 2(xvi)(e) a preparation, containing more
than 0.2% of morphine or diacerulmorphine, is an opium derivative; and that since this
contraband article contained 1.4% and 1.6% heroin it is an opium derivative, and
punishable under Section 21 of the NDPS Act. Since the manufactured drug being carried
weighed 4.07 kg., it would come under Section 21(c) being a commercial quantity, but
since the accused is only a carrier and is not the beneficiary of the transaction, he would
not be awarded the maximum sentence and would be awarded the minimum sentence of
10 years rigorous imprisonment and a fine of rupees one lakh, in default of payment of
fine rigorous imprisonment for one more year. On an appeal being preferred, the High
Court found the accused guilty. The High Court said that Section 21 of the NDPS Act
when read with Section 2(xi) which defines manufactured drug, makes it evident that the
packet seized from the appellant is a manufactured drug. The offence can be in respect of
the manufactured drug as well as preparation of manufactured drug. 'Preparation' has
been defined in Section 2(xx). Again, any mixture of narcotic drug with other substances
will also come within Section 21 of the NDPS Act, so the rate of purity becomes
irrelevant. The purity test does not advance the case of the accused. As per the High
Court, it is the
@page-SC1722
whole quantity of mixture which has to be taken into consideration for imposing the
punishment under Section 21 of the NDPS Act. The High Court maintained the
conviction and sentence awarded by the Special Judge.
4. The only submission made by Shri K.V. Viswanathan, learned counsel for the appellant
is confined to the limited issue relating to sentence of the appellant under Section 21 of
the NDPS Act. As per the learned counsel, the conviction and sentence of the appellant is
contrary to law because the total quantity of contraband seized from him was 4.07 kgs.
Since the purity of heroin is 1.4% and 1.6% respectively in two samples, therefore the
quantity of heroin in possession is only 60 gms. [(1.4+1.6)/2 = 1.5% of 4.07 kgs. = 60
gms.). Thus, the total quantity of heroin seized is below 250 gms., i.e. below the
commercial quantity. It is submitted that it is not the total weight of the substance
allegedly recovered that is material, but the percentage content of heroin translated into
weight that is relevant.
5. On the other hand, Shri Vikas Sharma, learned counsel appearing for the respondent
urged that it is only the weight of the substance found in possession of the appellant and
recovered from him ought to be seen, and once the substance tested positive for heroin,
its percentage content in the substance was irrelevant, the entire substance would be
viewed as a narcotic drug and consequently the total weight of the substance ought to be
taken into consideration for determining whether it was a 'small quantity or a 'commercial
quantity'.
6. The provisions of the NDPS Act were amended by the Narcotic Drugs and
Psychotropic Substances (Amendment) Act, 2001 (Act 9 of 2001) (w.e.f. 2.10.2001),
which rationalized the punishment structure under the NDPS Act by providing graded
sentences linked to the quantity of narcotic drugs or psychotropic substances carried.
Thus, by the Amending Act, the sentence structure changed drastically. 'Small quantity'
and 'commercial quantity were defined under Section 2(xxiiia) and Section 2(viia)
respectively. New Section 21 also provides for proportionate sentence for possessing
small, intermediate and commercial quantities of offending material. As per Entry 56 of
the Notification dated 19.10.2001 issued by the Central Government which deals with
heroin, small quantity has been mentioned as 5 gms. and commercial quantity has been
mentioned as 250 gms. So, the basic question for decision is whether the contravention
involved in this case is small, intermediate or commercial quantity under Section 21 of
the NDPS Act, and whether the total weight of the substance is relevant or percentage of
heroin content translated into weight is relevant for ascertaining the quantity recovered
from the accused.
7. To appreciate the arguments of the parties, the relevant Sections of the NDPS Act have
to be looked into, which are as under:
Section 2 (viia) (inserted by Amending Act 9 of 2001 w.e.f. 2.10.2001)
"Commercial quantity', in relation to narcotic drugs and psychotropic substances, means
any quantity greater than the quantity specified by the Central Government by
notification in the Official Gazette;"
Section 2(xxiiia) (inserted by Amending Act 9 of 2001 w.e.f 2.10.2001)
"'Small quantity', in relation to narcotic drugs and psychotropic substances, means any
quantity lesser than the quantity specified by the Central Government by notification in
the Official Gazette;"
Section 2(xvi)
"'Opium derivative' means -
(a) Medicinal opium, that is, opium which has undergone the processes necessary to
adapt it for medicinal use in accordance with the requirements of the Indian
Pharmacopoeia or any other Pharmacopoeia notified in this behalf by the Central
Government, whether in powder form or granulated or otherwise or mixed with neutral
materials;
(b) Prepared opium, that is, any product of opium by any series of operations designed to
transform opium into an extract suitable for smoking and the dross or other residue
remaining after opium is smoked;
(c) Phenanthrene alkaloids, namely, morphine, codeine, the baine and their salts;
(d) Diacetylmorphine, that is, the alkaloid also known as diamorphine or heroin and its
salts; and
(e) All preparations containing more than 0.2 per cent of morphine or containing any
diacetylmorphine;
@page-SC1723
Section 2 (xi) "'Manufactured drug means -
(a) All coca derivatives, medicinal connabis, opium derivatives and poppy straw
concentrate;
(b) Any other narcotic substance or preparation which the Central Government may,
having regard to the available information as to its nature or to a decision, if any, under
any International Convention, by notification in the Official Gazette, declare to be a
manufactured drug;
but does not include any narcotic substance or preparation which the Central Government
may, having regard to the available information as to its nature or to a decision, if any,
under any International Convention, by notification in the Official Gazette, declare not to
be a manufactured drug."
Section 21. Punishment for contravention in relation to manufactured drugs and
preparations [substituted by the Amending Act 9 of 2001, w.e.f. 2.10.2001]
"Whoever, in contravention of any provision of this Act or any rule or order made or
condition of licence granted thereunder, manufactures, possesses, sells, purchases,
transports, imports inter-State, exports inter-State or uses any manufactured drug or any
preparation containing any manufactured drug shall be punishable, -
(a) where the contravention involves small quantity, with rigorous imprisonment for a
term which may extend to six months, or with fine which may extend to ten thousand
rupees, or with both;
(b) where the contravention involves quantity, lesser than commercial quantity but greater
than small quantity, with rigorous imprisonment for a term which may extend to ten
years, and with fine which may extend to one lakh rupees;
(c) where the contravention involves commercial quantity, with rigorous imprisonment
for a term which shall not be less than ten years but which may extend to twenty years
and shall also be liable to fine which shall not be less than one lakh rupees but which may
extend to two lakh rupees :
Provided that the court may, for reasons to be recorded in the judgment, impose a fine
exceeding two lakh rupees.
8. The Statement of Objects and Reasons concerning the Amending Act of 2001 is as
follows :
"Narcotic Drugs and Psychotropic Substances Act, 1985 provides deterrent punishment
for various offences relating to illicit trafficking in narcotic drugs and psychotropic
substances. Most of the offences invite uniform punishment of minimum ten years'
rigorous imprisonment which may extend up to twenty years. While the Act envisages
severe punishments for drug traffickers, it envisages reformative approach towards
addicts. In view of the general delay in trial it has been found that the addicts prefer not
to invoke the provisions of the Act. The strict bail provisions under the Act add to their
misery.
Therefore, it is proposed to rationalise the sentence structure so as to ensure that while
drug traffickers who traffic in significant quantities of drugs are punished with deterrent
sentences, the addicts and those who commit less serious offences are sentenced to less
severe punishment. This requires rationalisation of the sentence structure provided under
the Act. It is also proposed to restrict the application of strict bail provisions to those
offenders who indulge in serious offences."
9. The entry of the Notification under which the substance found in possession of the
appellant falls is Entry 56 or Entry 239. The relevant portion of the Notification dated
19.10.2001 issued by the Central Government reads as under :
S.O. 1055(E), dated 19-10-2001. - In exercise of the powers conferred by clauses (viia)
and (xxiiia) of section 2 of the Narcotic Drugs and Psychotropic Substances Act, 1985
(61 of 1985) and in supersession of Ministry of Finance, Department of Revenue
Notification S.O. 527(E), dated 16th July, 1996, except as respects things done or omitted
to be done before such supersession, the Central Government hereby specifies the
quantity mentioned in columns 5 and 6 of the Table below, in relation to the narcotic drug
and psychotropic substance mentioned in the corresponding entry in columns 2 to 4 of the
said Table, as the small quantity and commercial quantity respectively for the purposes of
the said clauses of that section
@page-SC1724
Sl. No. Name of Narcotic Drug and Psychotropic SubstanceOther non propriety name
Chemical Name Small Quantity (in gm) Commercial Quantity (in
gm/kg.)
56 Heroin DiacetyImorphine 5 250 gm.
239 Any mixture or preparation that of with or without a neutral material, of any of
the above drugs. .................. * **

* Lesser of the small quantity between the quantities given against the respective narcotic
drugs or psychotropic substances mentioned above forming part of the mixture.
** Lesser of the commercial quantity between the quantities given against the respective
narcotic drugs or psychotropic substances mentioned above forming part of the mixture."
10. The possession of offending substance would be considered an offence punishable
under the NDPS Act, as heroin is an opium derivative as per Section 2(xvi)(e) which says
that "all preparations containing more than 0.2 per cent of morphine or containing any
diacetylmorphine" is an opium derivative. Further, according to Section 2(xi), all opium
derivatives fall under the category of manufactured drug. Thus, we conclude that the
offending substance is an opium derivative and hence a manufactured drug, the
possession of which is in contravention of the provisions of Section 8 of the NDPS Act
which prohibits certain operations to the effect that no person shall produce, manufacture,
possess, sell, purchase, transport, warehouse, use, consume, import inter-State, export
inter-State, import into India, export from India or tranship any narcotic drug or
psychotropic substance.
11. In the present case, the opium derivative which has been found in possession of the
accused-appellant is prohibited under Section 8 of the NDPS Act and thus punishable
under Section 21 thereof. The question is only with regard to the quantum of punishment.
12. As a consequence of the Amending Act, the sentence structure underwent a drastic
change. The Amending Act for the first time introduced the concept of commercial
quantity' in relation to narcotic drugs or psychotropic substances by adding clause (viia)
in Section 2, which defines this term as any quantity greater than a , quantity specified by
the Central Government by notification in the Official Gazette. Further, the term 'small
quantity' is defined in Section 2, clause (xxiiia), as any quantity lesser than the quantity
specified by the Central Government by notification in the Official Gazette. Under the
rationalised sentence structure, the punishment would vary depending upon whether the
quantity of offending material is 'small quantity', 'commercial quantity' or something in-
between.
13. It appears from the Statement of Objects and Reasons of the Amending Act of 2001
that the intention of the legislature was to rationalize the sentence structure so as to
ensure that while drug traffickers who traffic in significant quantities of drugs are
punished with deterrent sentence, the addicts and those who commit less serious offences
are sentenced to less severe punishment. Under the rationalised sentence structure, the
punishment would vary depending upon the quantity of offending material. Thus, we find
it difficult to accept the argument advanced on behalf of the respondent that the rate of
purity is irrelevant since any preparation which is more than the commercial quantity of
250 gms. and contains 0.2% of heroin or more would be punishable under Section 21(c)
of the NDPS Act, because the intention of the legislature as it appears to us is to levy
punishment based on the content of the offending drug in the mixture and not on the
weight of the mixture as such. This may be tested on the following rationale. Supposing 4
gms. of heroin is recovered from an accused, it would amount to a small quantity, but
when the same 4 gms. is mixed with 50 kgs. of the powered sugar, it would be quantified
as a
@page-SC1725
commercial quantity. In the mixture of a narcotic drug or a psychotropic substance with
one or more neutral substance/s, the quantity of the neutral substance/s is not to be taken
into consideration while determining the small quantity or commercial quantity of a
narcotic drug or psychotropic substance. It is only the actual content by weight of the
narcotic drug which is relevant for the purposes of determining whether it would
constitute small quantity or commercial quantity. The intention of the legislature for
introduction of the amendment as it appear to us is to punish the people who commit less
serious offences with less severe punishment and those who commit grave crimes, such
as trafficking in significant quantities, with more severe punishment.
14. In the case of Ouseph alias Thankachan v. State of Kerala, (2004) 4 SCC 446, this
Court in para 8 has held as under :
"The question to be considered by us is whether the psychotropic substance was in a
small quantity and if so, whether it was intended for personal consumption. The words
"small quantity" have been specified by the Central Government by the notification dated
23-7-1996. Learned counsel for the State has brought to our notice that as per the said
notification small quantity has been specified as 1 gram. If so, the quantity recovered
from the appellant is far below the limit of small quantity specified in the notification
issued by the Central Government. It is admitted that each ampoule contained only 2 ml
and each ml contains only .3 mg. This means the total quantity found in the possession of
the appellant was only 66 mg. This is less than 1/10th of the limit of small quantity
specified under the notification."
From the aforesaid decision, we find that the Court has taken the quantity of the narcotic
drug or psychotropic substance found in the mixture, relevant for the purpose of
imposition of punishment.
15

. The learned counsel for the respondent placed reliance on the decision of this Court in
Amarsingh Ramjibhai Barot v. State of Gujarat, (2005) 7 SCC 550, in support of his
contention that the entire material found in possession irrespective of the content of the
offending material has to be taken into consideration while imposing the punishment. In
Amarsingh case (supra), two persons, namely, Amarsingh and Danabhai were
apprehended. Amarsingh was found carrying a plastic bag which contained a black-
coloured liquid substance weighing 920 gms. Similarly, 4.250 kg. of grey-coloured
substance was recovered from Danabhai. Samples were sent to the Forensic Science
Laboratory (FSL). The FSL report indicated that the sample from Amarsingh was opium
as described in the NDPS Act containing 2.8% anhydride morphine apart from pieces of
poppy flowers and the sample relating to Danabhai was reported to be opium as described
in the NDPS Act having 1.2% anhydride morphine and also containing pieces of poppy
flowers. Both the accused were charged and tried under Sections 15, 17 and 18 read with
Section 29 of the NDPS Act. The High Court found that the conviction under Sections 17
and 18 read with Section 29 of the NDPS Act was not correct, but convicted Amarsingh
under Section 21(c) and also under Section 21(c) read with Section 29 of the NDPS Act,
for individually being in possession of opium and for being jointly, in conspiracy with the
other accused. The High Court found the accused possessed of commercial quantity and
convicted and sentenced him for 10 years rigorous imprisonment plus fine of Rs. 1 lakh.
Being aggrieved, Amarsingh approached this Court. This Court has held in para 14 of the
judgment as under : 2005 AIR SCW 5075

"There does not appear to be any acceptable evidence that the black substance found with
the appellant was "coagulated juice of the opium poppy" and "any mixture, with or
without any neutral material, of the coagulated juice of the opium poppy". FSL has given
its opinion that it is "opium as described in the NDPS Act." That is not binding on the
court."
The Court further held that the evidence also does not indicate that the substance
recovered from the appellant would fall within the meaning of sub-clauses (a), (b), (c) or
(d) of Section 2(xvi), but residuary clause (e) would apply and consequently it would
amount to opium derivative as all opium derivatives fall within the expression
'manufactured drugs.' Thus, the Court arrived at the conclusion that what was recovered
from the appellant was manufactured drug and the offence proved against the appellant
fell clearly within Section 21 of the NDPS Act for illicit possession of manufactured
drug. The Court concluded
@page-SC1726
and held in para 17 as under :
"In respect of opium derivatives (at SI. No. 93) in the said notification, 5 grams is
specified as "small quantity" and 250 grams as "commercial quantity", The High Court
was, therefore, right in finding that the appellant was guilty of unlawful possession of
"commercial quantify" of a manufactured drug. Consequently, his case would be covered
by clause (c) and not clause (a) or (b) of Section 21 of the NDPS Act."
This Court has, therefore, upheld the imposition of minimum punishment under Section
21(c) of 10 years rigorous imprisonment with fine of Rs. 1 lakh.
16

. On going through Amarsingh case (supra), we do not find that the Court was
considering the question of mixture of a narcotic drug or psychotropic substance with one
or more neutral substance/s. In fact that was not the issue before the Court. The black-
coloured liquid substance was taken as an opium derivative and the FSL report to the
effect that it contained 2.8% anhydride morphine was considered only for the purposes of
bringing the substance within the sweep of Section 2(xvi)(e) as 'opium derivative' which
requires a minimum 0.2% morphine. The content found of 2.8% anhydride morphine was
not at all considered for the purposes of deciding whether the substance recovered was a
small or commercial quantity and the Court took into consideration the entire substance
as an opium derivative which was not mixed with one or more neutral substance/s. Thus,
Amarsingh case (supra) cannot be taken to be an authority for advancing the proposition
made by the learned counsel for the respondent that the entire substance recovered and
seized irrespective of the content of the narcotic drug or psychotropic substance in it
would be considered for application of Section 21 of the NDPS Act for the purpose of
imposition of punishment. We are of the view that when any narcotic drug or
psychotropic substance is found mixed with one or more neutral substance/s, for the
purpose of imposition of punishment it is the content of the narcotic drug or psychotropic
substance which shall be taken into consideration. 2005 AIR SCW 5075

17. In the present case, the narcotic drug which was found in possession of the appellant
as per the Analyst's report is 60 gms. which is more than 5 gms., i.e. small quantity, taut
less than 250 gms., i.e. commercial quantity. The quantity of 60 gms. is lesser than the
commercial quantity, but greater than the small quantity and, thus, the appellant would be
punishable under Section 21(b) of the NDPS Act. Further, it is evident that the appellant
is merely a carrier and is not a kingpin.
18. In these circumstances, the ends of justice would be subserved if we reduce the
sentence of the accused-appellant to 8 years rigorous imprisonment with fine of Rs.
20,000/- and in default of payment of fine rigorous imprisonment for six months. We
order accordingly.
Order accordingly.
AIR 2008 SUPREME COURT 1726 "P. B. Krishnankutty Nair v. Regional Director, ESI
Corpn."
(From : Kerala)*
Coram : 2 TARUN CHATTERJEE AND HARJIT SINGH BEDI, JJ.
Civil Appeal No. 6497 of 2001, D/- 7 -3 -2008.
P.B. Krishnankutty Nair v. The Regional Director, ESI Corpn. and Anr.
Employee's State Insurance Act (34 of 1948), S.46(c) - EMPLOYEES STATE
INSURANCE - Disability benefit - Entitlement - Claimant was employee up to 30th
Sept., 1989 - Suffered injuries in accident on 15th June, 1990 - Would not be entitled to
any benefit of disablement - Notwithstanding fact that his contribution period and his
status as insured person continued up to 30th June, 1990. (Para 7)

C. Jayaraj, Ms. Malini Poduval, for Appellant; C.S. Rajan, Sr. Advocate, V.J. Francis,
Anupam Mishra, for Respondents.
* MFA No. 169 of 1992, D/- 28-2-2000 (Ker).
Judgement
1. HARJIT SINGH BEDI, J. :-This appeal arises out of the following facts.
2. The appellant who was a covered employee under the ESI scheme met with an
accident in the course of his employment on 15th June, 1990. An accident report was sent
by the employer respondent No. 2 in the present appeal to the respondent Corporation.
The Corporation however refused to treat the injuries sustained, as injuries suffered
during employment on the plea that on the date of the accident the employee was not
covered under the ESI scheme. It was also communicated to the employee by a
@page-SC1727
communication dated 4th December, 1990 that he had ceased to be an employee with
effect from 1st October, 1989 and therefore he would not be entitled to any benefit for the
dl§ability but would be eligible for sickness benefits for the period 16th June, 1990 to
30th June, 1980. The employee thereupon filed an application before the Employees
Insurance Court. Alappuzha claiming the benefit of disability on account of the injuries
that he had suffered. In the counter statement filed by the Corporation, it was pointed out
that the employee as an insured person had made contributions up to 30th September,
1989 and that he ceased to be an employee with effect from 1st October, 1989 as his
salary had exceeded Rs. 1600/-per month from 1st October, 1989 and as such was not
entitled to any benefit towards disability. The Employees Insurance Court in its order
dated 14th November, 1991 examined the various provisions of the Employees State
Insurance Act 1948 (hereinafter called the "Act") and in particular the definition of
'employee' and 'insured person' under section 2(9) and 2(14) respectively as well as
section 46 that dealt with 'benefits' and ultimately concluded that although the claimant
ceased to be an employee with effect from 30th September, 1989 he was nevertheless an
"Insured person" in terms of section 2(14) as he had paid contributions towards his
insurance which would cover his case from 1st April, 1989 to 30th September, 1989
though he continued to be an insured person up to 30th June, 1990 and as such his claim
for the injury on 15th June was fully justified under the Act.
3. Aggrieved by the order of the Employees Insurance Court, the Corporation preferred
an appeal before the High Court of Judicature at Kerala. The High Court in its judgment
dated 28th February, 2000 noted that the facts of the case were not disputed and relying
on a decision of the Division Bench of that very court in MFA 621/1986 (Regional
Director, ESI Corporation vs. K.K. Surendra Babu) observed that if a person was not an
employee during a particular contribution period and an accident had taken place during
such period, he would not be entitled to ESI benefits. Having held above, the court
further concluded that as the accident in the present case had also occurred after the
claimant had ceased to be an employee, though within the contribution period, he was not
entitled to the benefit of the payment of Insurance from the Corporation. The appeal was
accordingly allowed and the order of the Employees Insurance Court dated 14th
November, 1991 was set aside. It is in this situation that the matter is before us in appeal
at the instance of the employee.
4. Certain facts are admitted on record : the date of accident 15th June 1990, and that the
contribution had been made for the period 1st April, 1989 to 30th September, 1989 which
brought the contribution period to 30th June, 1990. In these admitted facts, the learned
counsel for the appellant has raised several arguments before us with reference to the
statutory provisions. He has referred us to the definitions of 'employee' in section 2(9) of
the Act and to 'insured person' in Section 2 (14) of the Act and to section 46 which talks
about the benefits for an insured person in ease of injury or sickness, and has argued that
as the claimant was an insured person up to the end of the contribution period i.e. up to
30th June 1990, the accident having taken place within that period, the Corporation was
liable to make payment to him. As against this, the learned counsel for the respondent has
argued that the sine qua non for determining the eligibility for the payment of insurance
under the Act was that a person was required to be an employee on the date of the
accident and the claimant had admittedly ceased to be an employee with effect from 1st
October, 1989 and thus, he was not entitled to the payment of any disability benefit.
5. At the very outset, we may point out that the judgment relied upon by the Division
Bench in reaching the impugned decision has not been cited before us by any of the
counsel. We, therefore, do not have the benefit of the wisdom of the Division Bench in
those cases and have accordingly examined the matter ourselves.
6. The matter must hinge on the various provisions brought to our notice by the learned
counsel. We produce hereinbelow Sections 2(9), 2 (14) and Section 46 of the Act :
"Sec. 2(9) "employee" means any person employed for wages in or in connection with
the work of a factory or establishment to which this Act applies and
(i) who is directly employed by the principal employer on any work of, or incidental
@page-SC1728
or preliminary to or connected with the work of, the factory or establishment, whether
such work is done by the employee in the factory or establishment or elsewhere; or
(ii) who is employed by or through an immediate employer on the premises of the factory
or establishment or under the supervision of the principal employer or his agent on work
which is ordinarily part of the work of the factory or establishment or which is
preliminary to the work carried on in or incidental to the purpose of the factory or
establishment; or
(iii) whose services are temporarily lent or let on hire to the principal employer by the
person with whom the person whose services are so lent or let on hire has entered into a
contract of service;
Sec. 2(14) "insured person" means a person who is or was an employee in respect of
whom contributions are or were payable under this Act and who is, by reason thereof,
entitled to any of the benefits provided by this Act.
Sec. 46. Benefits. (1) Subject to the provisions of the Act, the insured persons [their
dependants or the persons hereinafter mentioned, as the case may be,] shall be entitled to
the following benefits, namely
(a) periodical payment to any insured person in case of his sickness certified by a duly
appointed medical practitioner [or by any person possessing such qualifications and
experience as the Corporation may, by regulations, specify in this behalf (hereinafter
referred to as sickness benefit);
(b) periodical payments to an insured woman in case of confinement or miscarriage or
sickness arising out of pregnancy, confinement, premature birth of child or miscarriage,
such woman being certified to be eligible for such payments by an authority specified in
this behalf by the regulations (hereinafter referred to a maternity benefits);]
(c) periodical payments to an insured person suffering from disablement as a result of an
employment injury sustained as an employee under this Act and certified to be eligible
for such payments by an authority specified in this behalf by the regulations (hereinafter
referred to as disablement benefit);
(d) periodical payments to such dependants of an insured person who dies as a result of
an employment injury sustained as an employee under this Act, as are entitled to
compensation under this Act (hereinafter referred to as dependants' benefit);
(e) medical treatment for an attendance on insured persons (hereinafter referred as to
medical benefit; and
(f) payment to the eldest surviving member of the family of an insured person who has
died, towards the expenditure on the funeral of the deceased insured person, or, where the
insured person did not have a family or was not living with his family at the time of his
death, to the person who actually incurs the expenditure on the funeral of the deceased
insured person (to be known as [funeral expenses]
Provided that the amount of such payment shall not exceed [such amount as may be
prescribed by the Central Government] and the claim for such payment shall be made
within three months of the death of the insured person or within such extended period as
the Corporation or any officer or authority authorized by it in this behalf may allow.]
(2) The Corporation may, at the request of the appropriate Government, subject to such
conditions as may be laid down in the regulations, extend the medical benefits to the
family of an insured person."
7. An examination of the provisions would show that the claimant was an employee up to
30th September, 1989 and ceased to be so on the next day as his salary had exceeded Rs.
1600/- per month which was the cut off wage fixed under the Act at that time.
Admittedly, also the claimant was an insured person and the only difference between the
two contesting parties is with regard to the significance of the contribution period which
was to end on 30th June, 1990. For determining as to whether an employee was entitled
to the benefit under the Act, reference has to be made to section 46(c) which would cover
the present case. Section 46(c) specifically provides for two cumulative conditions for its
applicability i) the claimant must be an insured person and ii) that such an injury must be
sustained when he was an employee. We therefore find that as the injury had been
suffered after the claimant ceased to be an employee, he would not be entitled to any
benefit of disablement notwithstanding the fact that his contribution period and his status
as an insured person
@page-SC1729
continued up to 30th June, 1990. The Corporation has been taken pains to point out that
certain benefits which would accrue to the claimant such as the benefit of sickness, has
already been given to him. In this view of the matter, we find no merit in the appeal. It is
accordingly dismissed. No costs.
Appeal dismissed.
AIR 2008 SUPREME COURT 1729 "Sat Pal Puri v. Punjab State Electricity Board"
(From : Punjab and Haryana)*
Coram : 2 S. B. SINHA AND V. S. SIRPURKAR, JJ.
Civil Appeal No. 2235 of 2008 (arising out of SLP (C) No. 10133 of 2003) with C. A.
Nos. 6097, 6602, 6599 and etc. etc. of 2003, 2172, 2171, 2170, 2169, 2168, 2167, 2166,
2164, 2165, 2236, 2237, 2233-34, 2238 and 2242 of 2008, @ SLP (C) Nos. 8270, 9291 of
2004, 19851, 21645 of 2003; 455, 2577 of 2005 and etc. etc., D/- 21 -2 -2008.
Sat Pal Puri v. Punjab State Electricity Board and Ors.
Electricity (Supply) Act (54 of 1948), S.79(c) - Industrial Disputes Act (14 of 1947),
S.33C(2) - ELECTRICITY - INDUSTRIAL DISPUTE - SUPREME COURT - APPEAL
- Claim for extra wages - For working on non-working Saturdays and Sundays - Claim
based on decision in 2001 AIR SCW 4703 - Claimant-employees, however, governed by
statutory rules framed by Electricity Board - Therefore not entitled to file applications
u/S.33-C(2) of I.D. Act, 1947 - Thus said decision of Supreme Court, in facts would not
be applicable - Rejection of claim - Not liable to be interfered with.
2001 AIR SCW 4703, Ref.
Constitution of India, Art.133. (Para 12)
Cases Referred : Chronological Paras
2001 AIR SCW 4703 (Ref.) 2, 3, 4, 12
A.K. Ganguli, Sr. Advocate, K.G. Bhagat, Manohar Singh Bakshi, Lakhbir Singh Bakshi,
Debasis Misra, Ajay Majithia, Rajesh Kumar, Ravindra Keshavrao Adsure, Dr. Kailash
Chand, Sudhir Nandrajog, Bimal Roy Jad, S.K. Sabharwal, Harinder Mohan Singh,
Kaushal Yadav, Durgesh Yadav, Kuldip Singh, R.K. Pandey, Madhukar Choudhary,
Naresh Bakshi, Ms. Shalu Sharma, R.C. Kaushik, Arun K. Sinha, K.L. Mehta, (for M/s.
K.L. Mehta and Co.), K.J. John, Yash Pal Dhingra, P.K. Goklaney, A.P. Mohanty, Jagjit
Singh Chhabra, Tarun Gupta, Ms. Nidhi Gupta, Ms. S. Janani, Dharmendra Kumar Sinha,
for the Appearing Parties.
* R. A. No. 64 of 2003 in CWP No. 19838 of 2002, D/- 11-3-2003 (P and H).
Judgement
S. B. SINHA, J. :- Leave is granted in the SLPs.
2

. Appellants filed a writ petition before the Punjab and Haryana High Court at
Chandigarh claiming parity in the matter of renumeration for working on Saturdays and
Sundays in terms of the decision of this Court in Municipal Employees Union (Regd.),
Sirhind and Ors. v. State of Punjab and Ors., (2000) 9 SCC 432, wherein it was opined
that in the absence of any express provision to the contrary in Municipal bye-laws, the
octroi staff could not be denied the benefit of non-working Saturdays and, thus, when
required to work on such Saturdays, they could be granted extra wages in lieu thereof.
However, this Court further opined that factual foundation for such claim was required to
be established. It was also opined that in the event if the employees had filed applications
under Section 33-C(2) of the Industrial Disputes Act, the same may be entertained.
2001 AIR SCW 4703

3. The Division Bench of the High Court in some cases even without notice, allowed the
writ applications filed by the workmen opining that the State of Punjab cannot deny the
said benefit to the employees of other departments. Respondent-Punjab State Electricity
Board filed an application for review of the said judgment and by reason of the impugned
judgment, the Division Bench of the High Court held that the decision of this Court in
Municipal Employees Union (supra) is not applicable. The appellants are, thus, before us.
4. The short question which arises for our consideration is as to whether the decision of
this Court in Municipal Employees Union (supra) is applicable to the facts and
circumstances of this case. The Punjab State Electricity Board was constituted and
incorporated in terms of Sections 5 and 12 of the Electricity (Supply) Act, 1948 (for
short, 1948 Act). Under Section 79(c) of the 1948 Act, the Board subject to compliance of
the statutory requirements contained therein is entitled to frame its own regulations. It is
permissible for the Board to frame different regulations for different categories of
employees. It is a department of the State of Punjab.
@page-SC1730
5. It is stated that Appellants herein belong to the technical category, service grade III,
requiring to perform field duties. Supply of electricity is a public utility function of the
Board. The Board therefore is required to have technical staff at their disposal, 24 hours a
day, seven days a week.
6. It has been contended before us that in fact several regulations have been framed by
the Board in this behalf. Several agreements have also been entered into by and between
the Union and the Board. Some of the employees are also governed by the provisions of
the 1948 Act.
7. Our attention has also been drawn to the fact that three categories of workmen are
governed by different terms and conditions of service in regard to enjoyment of holidays;
viz.
a) Technical Staff (Regular) Work-charged covered on the Factories Act 1948.
b) Regular Technical Field Staff not covered under the Factories Act.
c) Work-charged employees not covered under the Factories Act.
8. It has also been stated that local outdoor duty allowance (LODA) to different
categories of Technical/Field staff employees working on different duties, e.g. those
working in the operations and R.E. Divisions, construction organizations are paid. The
quantum of allowance is revised from time to time. Our attention has further been drawn
to a circular letter dated 5.4.1972, from a perusal whereof it appears that technical field
staff would be entitled to the holidays in a calendar year as stipulated therein, namely,
i) Saturdays on alternate months - not exceeding five.
ii) Half the number of Gazetted Holidays notified by the Board for the other staff.
9. We must however notice that the Punjab State Electricity Board had issued a circular
letter dated 27.10.1986 which is in the following terms :
In compliance with the instructions issued vide this office order No.432/PSEB, dated
24.05.1982, it is informed that all the officers of the Punjab State Electricity Board shall
function from 9.00 a.m. to 5.00 p.m. from Monday to Friday with lunch break from 1.30
p.m. to 2.00 p.m. i.e. the same office timings of the Government of Punjab. The offices of
the Electricity Board shall remain closed on all the Saturdays and Sundays.
2. The same holidays shall be observed in the offices of the Punjab State Electricity
Board as are being observed in the office of the Punjab Government."
10. A bare perusal of the said circular dated 27.10.1986 would clearly show that the same
would be applicable only in respect of the officers and employees working in the office of
the Electricity Board and not the Field Staff. The circular letter dated 5.4.1972 has not
been repealed by circular letter dated 27.10.86.
11. In view of the fact that the technical staff of the Board are governed by regulations
framed under Section 79(c) of the 1948 Act the appellants herein do not have any existing
legal right so as to enable them to file an application under Section 33-C(2) of the
Industrial Disputes Act, 1947.
12

. We have noticed herein-above that even in Municipal Employees Union's case (supra),
this Court opined that the octroi staff could be entitled to the said benefit of non-working
Saturdays and when required to work on such Saturdays, were entitled to extra wages in
lieu thereof, if they are not governed by any of the rule. In the case the appellants being
governed by statutory rules, they would not be entitled to file applications under Section
33-C(2) of the 1947 Act. 2004 AIR SCW 4703

13. For the aforementioned reasons, we are of the opinion that the impugned judgment
and order of the High Court does not suffer from any legal infirmity. These appeals are,
therefore, dismissed. No costs.
CIVIL APPEAL NOS. 7982, 1929, 2355, 2352, 1840, 1928, 1926, 1918, 1924, 1925,
1836, 4428, 4435, 4436, 4437, 6595, 4439, 4440, 4443, 6102 and 6594 OF 2003 AND
Civil Appeal No. 2238/2008 @ SLP(C) No. 9026/03 Civil Appeal No. 2242/2008 @
SLP(C) No. 9284/04
14. Leave is granted in the SLPs.
15. It is stated by the learned counsel for the appellants that the appeals above-mentioned
have been covered by order dated 14.2.2008 passed by this Court in Civil Appeal No.
1476/2003 and other connected appeals. These appeals are disposed of accordingly.
Order accordingly.
@page-SC1731
AIR 2008 SUPREME COURT 1731 "S. K. Alagh v. State of U. P."
(From : Allahabad)*
Coram : 2 S. B. SINHA AND V. S. SIRPURKAR, JJ.
Criminal Appeal No. 317 of 2008 (arising out of SLP (Cri.) No. 4661 of 2007), D/- 15 -2
-2008.
S.K. Alagh v. State of U.P. and Ors.
Penal Code (45 of 1860), S.406 - BREACH OF TRUST - COMPANY - Criminal breach
of trust - Demand drafts drawn in name of company for supply of goods - Allegation that
company neither sent goods nor returned money - Complaint u/S.406 - Managing
Director of Company cannot be said to have committed offence u/S.406 - In absence of
any provision laid down under statute, a Director of a Company or an employee cannot
be held to be vicariously liable for any offence committed by company itself.
Crl. Misc. Appln. No. 6170 of 2002, D/-16-04-2007 (All.), Reversed. (Para 20)
Cases Referred : Chronological Paras
2007 (11) Scale 318 (Foll.) 21
2006 AIR SCW 4582 : AIR 2006 SC 3086 : 2006 Cri LJ 4602 : 2006 CLC 1354 (Foll.)
20
R.F. Nariman, Sr. Advocate, Goodwill Indeevar, for Appellant; Ratnakar Dass, Shalini
Dass, Sr. Advocates, Anuvrat Sharma, Pramod Swarup, Prashant Chaudhary, Bharat Ram
and M.C. Dhingra, for Respondents.
* Cri. Misc. Appln. No. 6170 of 2002, D/- 16-4-2007 (All)
Judgement
1. S. B. SINHA, J. :-Leave granted.
2. M/s. Akash Traders was an Area Wholesale Dealer of Britannia Industries Limited (the
Company) for Azamgarh, U.P. Dealership of Respondent No. 2 was terminated by the
said company. It was earlier informed that goods will be delivered only upon receipt of
demand drafts issued by it. Complainant sent two demand drafts for a sum of Rs. 18,000/-
and Rs.1,50,000/- for supply of goods on 14.9.2000 despite the fact that the dealership
had been terminated earlier.
3. The said demand drafts were sent to the appellant through the local Sales Incharge of
the Company. It is stated that the complainant refused to take the same back.
4. A new Area Wholesaler for Azamgarh was appointed by the company.
5. A demand was made by the complainant to deliver goods by a letter dated 24.9.2000
stating that the company owes him a sum of Rs.1,00,000/-. The stand of the company that
his dealership had been terminated was reiterated by a letter dated 25.9.2000.
6. Ashok Kumar Aggarwal, purported to be the proprietor of the firm M/s. Akash Traders,
filed a complaint petition in the court of Chief Judicial Magistrate, Azamgarh against the
appellant herein for commission of an offence under Section 406 of the Indian Penal
Code. Britania Industries Ltd. was not impleaded as an accused therein.
7. On or about 17.2.2001, i.e., after filing of the complaint petition, the dealer accepted
the said demand drafts being dated 8.1.2002 for a sum of Rs. 1,68,000/-. On or about
25.2.2001, Ashok Kumar Aggarwal, the original complainant expired. A substitution
application was filed by the second respondent-Alok Kumar Aggarwal on or about
19.4.2001.
8. Inter alia, relying on or on the basis of the allegations made in the complaint petition
that 'the company with mala fide intention neither sent the goods, nor returned the money'
an order for summoning the appellants was passed on 8.5.2001. A publication to that
effect was also made in an article in a local newspaper.
9. An application for recalling the order summoning before the learned Chief Judicial
Magistrate was filed by the appellant. The learned Chief Judicial Magistrate, by an order
dated 13.12.2001 discharged the accused in terms of Section 245(2) of the Code of
Criminal Procedure, holding :
"From the perusal of the record, this fact has come to light that in between the
complainant M/s. Akash Traders, Azamgarh and Britannia Industries Ltd., Kolkata an
agreement was made. M/s. Akash Traders were the authorized agent of Britannia
Industries Ltd. and according to terms and conditions of the Agreement, Britannia
Industries Ltd. used to supply biscuit to M/s. Akash Traders, Azamgarh. On 8.9.2000,
Britannia Industries Ltd. terminated the agency regarding agreement as a result of which
in between the parties dispute arose. It is the submission of the complainant that on
13.9.2001 bank draft of Rs. 1,68,000/- was sent in favour of Britannia Industries Ltd.
@page-SC1732
but on behalf of the accused the above amount did not return till 7.2.2001 to the
complainant. The pleading on behalf of the accused is that the bank draft of Rs.
1,68,000/- was returned to M/s. Akash Traders on 8.1.2001 and its payment was received
by the complainant on 19.2.2001 under protest. Both the parties regarding the above
reference after the case being decided this legal position has been made clear that if in
any matter civil or criminal case is made out then on the basis of obtaining civil relief the
proceedings of the suit could not be terminated. In the present matter, it has to be decided
that whether in between both the parties during the business transactions prima facie
criminal case was found? If in the present case any criminal case is not found then under
Section 245(2) Cr.P.C. the accused could be released at any stage. After the termination of
agreement in between the accused and the complainant regarding agency on 13.9.2001
bank draft for an amount of Rs. 1,68,000/- was sent to Britannia Industries Ltd. for the
supply of biscuits. Prior to this also agreement dated 8.9.2000 has already been
terminated regarding the agency in favour of M/s. Akash Traders Azamgarh. The
complainant for receiving back an amount of Rs. 1,68,000/-sent letters dated 11.10.2000
and 21.10.2000 but till 7.2.2001, the complainant did not receive back the above amount
of Rs. 1,68,000/-. But from the perusal of the photo copy of the letter enclosed with the
file of bank draft of State Bank of India, Keshavpuram, Delhi it has become clear that
bank draft No.597805 dated 8.1.2001 for an amount of Rs. 1,68,000/ had already been
prepared in favour of M/s. Akash Traders, Azamgarh and after the departmental
proceedings of clearance on 19.2.2001 the complainant had received back the amount on
19.2.2001. Thus, it is clear that the applicant/accused had transferred an amount of
Rs.1,68,000/- on 8.1.2001 in favour of the complainant M/s. Akash Traders through Bank
Draft, thus, in transaction whatever delay was made in returning back the amount of bank
draft that has been committed due to proceedings relating to payment being done due to
banking process and looking to the aforesaid facts it becomes clear that on the side of
applicant/accused there was no intention of criminal misappropriation and, thus, there is
no appropriate basis to initiate any action against the accused.
Therefore, under Section 245(2) Cr.P.C. the proceedings of the case are terminated and
the accused is released."
10-11. A revision application was filed thereagainst by the complainant which, by reason
of an order dated 5.6.2002, was allowed, stating :
"It is clear from the perusal of the file that the learned Chief Judicial Magistrate in the
impugned order dated 13.12.2001 has not granted any opportunity of adducing the
evidences in detail under the provisions of Section 244 Cr.P.C. but by not granting any
opportunity to adduce the evidences by the complainant under Section 244 Cr.P.C. has
passed the impugned order under the provisions of Section 245(2) Cr.P.C. which is not
legal and proper. Under the provisions of Section 244 Cr.P.C.the complainant must be
granted opportunity of filing the evidences in detail as per the law. Under the above
provisions, the charges are framed against the accused persons after the evidences are
taken on record otherwise not, that is to say, passing of order under Section 245 Cr.P.C.
would be proper and justifiable."
12. An application filed by the appellant before the High Court in terms of Section 482 of
the Code of Criminal Procedure was dismissed by the High Court by reason of the
impugned judgment, stating :
"From the perusal of the allegations made against the applicants and from the perusal of
the impugned order, it appears that prima facie offence is made out against the applicant
and there is no procedural mistake in taking cognizance and summoning the applicants,
therefore, the prayer for quashing the impugned orders dated 8.5.2001 passed by the
learned Magistrate, Azamgarh and 5.6.2002 passed by the learned Additional Sessions
Judge, Fast Track Court No.2, Azamgarh is refused.
The interim stay order dated 3.7.2002 is vacated.
Accordingly, this application is dismissed."
13. The short question which arises for consideration is as to whether the complaint
petition, even if given face value and taken to be correct in its entirety, disclosed an
offence as against the appellant under Section 406 of the Indian Penal Code.
14. Section 405 defines 'criminal breach of trust' to mean :
@page-SC1733
"Section 405. - Criminal breach of trust - Whoever, being in any manner entrusted with
property, or with any dominion over property, dishonestly misappropriates or converts to
his own use that property, or dishonestly uses or disposes of that property in violation of
any direction of law prescribing the mode in which such trust is to be discharged, or of
any legal contract, express or implied, which he has made touching the discharge of such
trust, or wilfully suffers any other person so to do, commits "criminal breach of trust"."
15. Appellant No. 1 is the Managing Director of the Company. Respondent No. 3 was its
General Manager. Indisputably, the company is a juristic person. The demand drafts were
issued in the name of the company. The company was not made an accused. The
dealership agreement was by and between M/s. Akash Traders and the company.
16. Mr. Pramod Swarup, learned counsel appearing on behalf of Respondent No.2, in
support of the order passed by the learned Chief Judicial Magistrate as also the High
Court, submitted that as, prima facie, the appellant was in charge of and was in control of
the business of the company, he would be deemed to be liable for the offence committed
by the company,
17. Indian Penal Code, save and except some provisions specifically providing therefor,
does not contemplate any vicarious liability on the part of a party who is not charged
directly for commission of an offence.
18. A criminal breach of trust is an offence committed by a person to whom the property
is entrusted.
19. Ingredients of the offence under Section 406 are :
"(1) a person should have been entrusted with property, or entrusted with dominion over
property;
(2) that person should dishonestly misappropriate or convert to his own use that property,
or dishonestly use or dispose of that property or willfully suffer any other person to do so;
(3) that such misappropriation, conversion, use or disposal should be in violation of any
direction of law prescribing the mode in which such trust is to be discharged, or of any
legal contract which the person has made, touching the discharge of such trust."
20

. As, admittedly, drafts were drawn in the name of the company, even if appellant was its
Managing Director, he cannot be said to have committed an offence under Section 406 of
the Indian Penal Code. If and when a statute contemplates creation of such a legal fiction,
it provides specifically therefor. In absence of any provision laid down under the statute,
a Director of a company or an employee cannot be held to be vicariously liable for any
offence committed by the company itself. (See Sabitha Ramamurthy and Anr. v. R.B.S.
Channabasavaradhya [(2006) 10 SCC 581]}.2006 AIR SCW 4582

21. We may, in this regard, notice that the provisions of the Essential Commodities Act,
Negotiable Instruments Act, Employees' Provident Funds and Miscellaneous Provisions
Act, 1952 etc. have created such vicarious liability. It is interesting to note that Section
14-A of the 1952 Act specifically creates an offence of criminal breach of trust in respect
of the amount deducted from the employees by the company. In terms of the explanations
appended to Section 405 of the Indian Penal Code, a legal fiction has been created to the
effect that the employer shall be deemed to have committed an offence of criminal breach
of trust. Whereas a person in charge of the affairs of the company and in control thereof
has been made vicariously liable for the offence committed by the company along with
the company but even in a case falling under Section 406 of the Indian Penal Code
vicarious liability has been held to be not extendable to the Directors or officers of the
company. {See Maksud Saiyed v. State of Gujarat and Ors. [2007 (11) SCALE 318]}.
22. The High Court, therefore, committed a manifest error in passing the impugned
judgment.
23. For the reasons aforementioned, the impugned judgment cannot be sustained. It is set
aside accordingly. The appeal is allowed. Respondent No. 2 is liable to bear the costs of
the appellant for causing harassment to him which is quantified at Rs.1,00,000/- (Rupees
one lac only).
Appeal allowed.
@page-SC1734
AIR 2008 SUPREME COURT 1734 "Oriental Insurance Company Ltd. v. Jashuben"
(From : Gujarat)
Coram : 2 S. B. SINHA AND V. S. SIRPURKAR, JJ.
Civil Appeal No. 1272 of 2008 (arising out of SLP (C) No. 7304 of 2007), D/- 14 -2
-2008.
Oriental Insurance Company Ltd. v. Jashuben and Ors.
Motor Vehicles Act (59 of 1988), S.168 - MOTOR VEHICLES - NEGLIGENCE -
Compensation - Determination - Salary of deceased not revised with retrospective effect
on date of death of deceased - Only because such salary was revised at a later point of
time, same by itself would not have been factor which could have been taken into
consideration for determining amount of compensation - What would have been income
of deceased on date of retirement was not relevant factor.
First Appeal No. 4586 of 2006, D/-22-11-2006 (Guj), Reversed. (Paras 12, 25)
Cases Referred : Chronological Paras
2008 AIR SCW 143 : AIR 2008 SC 845 : 2008 (1) ALJ 746 (Ref.) 24
2007 AIR SCW 1316 : AIR 2007 SC 1243 : 2007 (2) ALJ 766 (Ref.) 19
2007 AIR SCW 1884 (Ref.) 23
2006 AIR SCW 1116 : AIR 2006 SC 1255 (Ref.) 20
2006 AIR SCW 3613 : AIR 2006 SC 2688 : 2006 (5) ALJ 403 (Ref.) 21
2005 AIR SCW 1801 : AIR 2005 SC 2157 (Ref.) 19
2005 AIR SCW 2542 : AIR 2005 SC 2985 (Ref.) 18
2001 AIR SCW 1074 : AIR 2001 SC 1333 (Ref.) 16
1996 AIR SCW 1369 : AIR 1996 SC 1274 (Ref.) 15
1994 AIR SCW 1356 : AIR 1994 SC 1631 (Ref.) 14, 15
AIR 1985 SC 106 (Ref.) 17
Pankaj Seth and Ms. Manjeet Chawla, for Appellant; D.G. Karia, Sr. Advocate, Ms.
Manish T. Karia and Sunil Kumar Verma, for Respondents.
Judgement
S. B. SINHA, J. :- Leave granted.
1. Appellant is before us aggrieved by and dissatisfied with a judgment and order dated
22.11.2006 passed by the Division Bench of the High Court of Gujarat at Ahmedabad in
First Appeal No. 4586 of 2006 dismissing the appeal preferred by him.
2. Claimants-Respondents herein are heirs and legal representatives of Devjibhai
Kushalbhai Rathod. He, while travelling in a mini luxury bus as a passenger from Surat
to Mehsana, met with a road accident which took place on 23.6.1994. The accident
occurred due to rash and negligent driving on the part of the driver of the said mini bus is
not in question.
3. The deceased, Devjibhai, at that time, was aged about 35 years. He was working as an
Assistant in the Oil and Natural Gas Commission. A sum of Rs. 12,00,000/- was initially
claimed by way of compensation which was subsequently raised to 25,00,000/-. The
Tribunal, as per the certificate issued by the Senior Personnel and Administrative Officer,
ONGC, noticed that the deceased had been receiving the following salaries and perks in
the month of June 1994 :

"1. Basic Pay Rs. 3295/-


2. DA @ 18.5% Rs. 610/-
3. DSCA 20% of basic Rs. 650/-
4. HRA @ 18% of basic Pay Rs. 593/-
5. Productivity allowance Rs. 450/-
6. Washing allowance Rs. 45/-
7. Conveyance Allowance Rs. 375/-
8. Child Education Allowance (for two children) Rs. 240/-
9. Child Bus fare (for children) Rs. 160/-
_____________
Total : Rs. 6418/-"
_____________

4. However, the Tribunal also took into consideration the salary which might have been
payable to the said deceased as in August, 2002; had he continued in service which was
stated to be as under :

"1. Basic Pay Rs. 10698.00


2. DA @ 35.5% Rs. 3892.00
3. DSCA 20% of basic (maximum Rs.3100) Rs. 2193.00
4. HRA @ 22.5% of basic Pay Rs. 2406.00
5. Productivity allowance Rs. 500.00
6. Tribal allowance Rs. 200.00
7. Conveyance Allowance Rs. 740.00
8. Child Education Allowance (for two children) Rs. 500.00
9. Child Bus fare (for children) Rs. 250.00
10. Canteen Sub. Rs. 164.80
_____________
Total : Rs. 21803.80"
_____________

@page-SC1735
5. The Tribunal, clubbed the income of the deceased which he might have got at the time
of his retirement, i.e., Rs. 3,295/- + Rs. 17453/-, totalling a sum of Rs. 20,748/-and
divided the same by figure two to arrive the figure of at Rs. 10,374/- per month. Adopting
a multiplier of 16, the amount of compensation was determined at Rs. 13,27,872/-.
Besides the compensation amount, amount of gratuity, conventional amount and funeral
expenses were calculated as follows :

"Rs. 13,27,872/- towards dependency loss


Rs. 10,000/- towards conventional amount
Rs. 3,000/- towards funeral expenses
Rs. 3,02,468/- towards gratuity
Rs. 16,43,340/-"

6. Interest on the said amount at the rate of 12 per cent was also awarded.
7. On an appeal preferred by the appellant thereagainst, a Division Bench of the High
Court opined that as a revision of pay had been effected by ONGC from 1.1.1997 and in
August 2002, the employees in the same cadre would have received a sum of Rs. 10,693/-
per month with Dearness Allowance at the rate of 35.5% amounting to Rs. 3892/- and
other allowances. The net income of the deceased was found to be at least a sum of Rs.
16,000/- so as to enable the Tribunal to come to the conclusion that the loss of
dependency benefit would come to Rs. 16,000/- from January 1997 onwards. The High
Court stated :
"In view of the above settled legal position, we do not find any difficulty in accepting the
submission of Mr. Nanavati for the original claimants that the Tribunal was justified in
looking at the pay revision of employees of the ONGC for the purpose of assessing
prospective income of the deceased. The accident in question took place in September
1994. The basic pay of the deceased at that time was Rs. 3295/- and with dearness
allowance and other allowances, his total pay-packet was Rs. 6,418/-. Even proceeding
on the basis that the deductions made by the employer may be taken into account, basic
pay, dearness allowance, drill site compensation allowance and house rent allowance
granted to the deceased would almost come to Rs. 5,000/-per month. Within less than
three years from the date of the accident, pay revision was made by the ONGC with
effect from 1.1.97 and in August 2002, basic pay of the employees in the same cadre in
which the deceased was working was Rs. 10,693/- per month with dearness allowance at
the rate of 35.5% being Rs. 3892/-; drill site compensatory allowance and HRA were also
substantially revised and they were 20% and 22.5% of the basic pay in August 2002.
These four items aggregated to Rs. 19,184/-per month. Over and above these heads, there
were also other allowances like productivity allowance, conveyance allowance, child
education allowance, child bus welfare allowance, etc. making it a total figure of Rs.
21,808/-. Even after taking into account all deductions including the income-tax liability,
the net income available to the deceased and his family would have been at least Rs.
16000/- from January 1997 onwards.
8. The High Court, however, not only adopted the multiplier of 13 instead of 16 to arrive
at the conclusion that the loss of dependency would be about Rs. 16,000/-, but also
interfered with the rate of interest to hold that reasonable interest payable would be 8%
per annum. Appellant was directed to deposit the said amount with proportionate costs
and interest at the rate of 8% per annum from the date of filing of the claim petition till its
realization.
9. Mr. Pankaj Seth, learned counsel appearing on behalf of the appellant, would submit
that the Tribunal as also the High Court committed a serious error in passing the
impugned judgment insofar as they failed to take into consideration that computation for
loss of income should have, in a situation of this nature, been determined only by
doubling the amount of the salary received by the deceased at the relevant time. Future
prospects, according to the learned counsel, could not have been taken into consideration.
10. Mr. Karia, learned counsel appearing for the respondent, on the other hand, urged that
future prospect including the revision in the scale of pay should be taken into
consideration for the purpose of determination of the amount of compensation.
11. The amount of compensation pay able to the heirs and legal representatives of a
deceased-victim of an accident must be a fair and reasonable one. The estimate of the
amount of loss of dependency may be arrived at by adopting various methods, application
of structured formula being one of them. Such a formulas has also been provided
@page-SC1736
for in Schedule II appended to the Motor Vehicles Act, 1988. While determining the
amount of compensation, certain well known principles must be kept in mind.
12. It is not a case where, as on the date of death, the salary of the deceased was revised
with retrospective effect from 1994. Salary would be revised or not was not known at that
part of time. Only because such salary was revised at a later point of time, the same by
itself would not have been a factor which could have been taken into consideration for
determining the amount of compensation. The Tribunal, therefore, committed a serious
illegality in taking into consideration the latter aspect.
13. The amount of compensation indisputably should be determined having regard to the
pecuniary loss caused to the dependents by reason of the death of the victim. It was
necessary to consider the earnings of the deceased at the time of the accident. Of course,
further prospect is not out of bound for such consideration. But the same should be
founded on some legal principle.
14

. In General Manager, Kerala State Road Transport Corporation, Trivendrum v. Susamma


Thomas [(1994) 2 SCC 176], this Court held : 1994 AIR SCW 1356, Para 8

"The multiplier method involves the ascertainment of the loss of dependency or the
multiplicand having regard to the circumstances of the case and capitalizing the
multiplicand by an appropriate multiplier. The choice of the multiplier is determined by
the age of the deceased (or that of the claimants whichever is higher) and by the
calculation as to what capital sum, if invested at a rate of interest appropriate to a stable
economy, would yield the multiplicand by way of annual interest. In ascertaining this,
regard should also be had to the fact that ultimately the capital sum should also be
consumed-up over the period for which the dependency is expected to last."
15

. The legal principle in this behalf has been laid down in the following terms : 1994
AIR SCW 1356, Para 13

"19. In the present case the deceased was 39 years of age. His income was Rs. 1032/-per
month. Of course, the future prospects of advancement in life and career should also be
sounded in terms of money to augment the multiplicand. While the chance of the
multiplier is determined by two factors, namely, the rate of interest appropriate to a stable
economy and the age of the deceased or of the claimant whichever is higher, the
ascertainment of the multiplicand is a more difficult exercise. Indeed, many factors have
to be put into the scales to evaluate the contingencies of the future. All contingencies of
the future need not necessarily be baneful. The deceased person in this case had a more or
less stable job. It will not be inappropriate to take a reasonably liberal view of the
prospects of the future and in estimating the gross income it will be unreasonable to
estimate the loss of dependency on the present actual income of Rs. 1032/-per month. We
think, having regard to the prospects of advancement in the future career, respecting
which there is evidence on record, we will not be in error in making a higher estimate of
monthly income at Rs. 2000/- as the gross income. From this has to be deducted his
personal living expenses, the quantum of which again depends on various factors such as
whether the style of living was spartan or bohemian. In the absence of evidence it is not
unusual to deduct one-third of the gross income towards the personal living expenses and
treat the balance as the amount likely to have been spent on the members of the family
and the dependents. This loss of dependency should capitalise with the appropriate
multiplier. In the present case we can take about Rs. 1,400/- per month or Rs. 17,000/-
per year as the loss of dependency and if capitalized on a multiplier of 12 which is
appropriate to the age of the deceased, the compensation would work out to (Rs. 17,000/-
x 12 = 2,04,000/- rupees) to which is added the usual award for loss of consortium and
loss of the estate each in the conventional sum of Rs. 15,000/-."

This Court in Sarla Dixit and Anr. v. Balwant Yadav and Ors. [(1996) 3 SCC 179]
opined : 1996 AIR SCW 1369, Para 6

"The average gross future monthly income could be arrived at by adding the actual gross
income at the time of death, namely, Rs. 1,500/- per month to the maximum which he
would have otherwise got had he not died a premature death, i.e., Rs. 3,000/-per month
and dividing that figure by two. Thus, the average gross monthly income spread over his
entire future career, had it been available, would work out to Rs. 4,500/-divided by 2, i.e.,
Rs. 2,200/-. Rs. 2,200/-per month would have been the gross
@page-SC1737
monthly average income available to the family of the deceased had he survived as a
bread winner."
16

. In Rathi Menon v. Union of India [(2001) 3 SCC 714], this Court, upon considering the
dictionary meaning of compensation held : "In this context a reference to Section 129 of
the Act appears useful. The Central Government is empowered by the said provision to
make rules by notification "to carry out the purposes of this Chapter". It is evident that
one of the purposes of this chapter is that the injured victims in railway accidents and
untoward incidents must get compensation. Though the word "compensation" is not
defined in the Act or in the Rules it is the giving of an equivalent or substitute of
equivalent value. In Black's Law Dictionary "compensation" is shown as - 2001 AIR
SCW 1074, Para 23

'equivalent in money for a loss sustained; or giving back an equivalent in either money
which is but the measure of value, or in actual value otherwise conferred; or recompense
in value for some loss, injury or service especially when it is given by statute.'
It means when you pay the compensation in terms of money it must represent, on the date
of ordering such payment, the equivalent value."
17

. In N. Sivammal and Ors. v. Managing Director, Pandian Roadways Corporation and


Ors. [(1985) 1 SCC 18], this Court took into consideration the ply packet of the deceased.
AIR 1985 SC 106

18
. We may also notice that in T.N. State Transport Corporation Ltd. v. S. Rajapriya and
Ors. [(2005) 6 SCC 236], this Court held : 2005 AIR SCW 2542

"8. The assessment of damages to compensate the dependants is beset with difficulties
because from the nature of things, it has to take into account many imponderables e.g. the
life expectancy of the deceased and the dependants, the amount that the deceased would
have earned during the remainder of his life, the amount that he would have contributed
to the dependants during that period, the chances that the deceased may not have lived or
the dependants may not live up to the estimated remaining period of their life expectancy,
the chances that the deceased might have got better employment or income or might have
lost his employment or income together.
9. The manner of arriving at the damages is to ascertain the net income of the deceased
available for the support of himself and his dependants, and to deduct therefrom such part
of his income as the deceased was accustomed to spend upon himself, as regards both
self-maintenance and pleasure, and to ascertain what part of his net income the deceased
was accustomed to spend for the benefit of the dependants. Then that should be
capitalised by multiplying it by a figure representing the proper number of years'
purchase.
10. Much of the calculation necessarily remains in the realm of hypothesis "and in that
region arithmetic is a good servant but a bad master" since there are so often many
imponderables. In every case "it is the overall picture that matters", and the court must try
to assess as best as it can the loss suffered."
19

. The same view was reiterated in New India Assurance Co. Ltd. v. Charlie and Anr.
[(2005) 10 SCC 720]. However, therein although the words 'net income' has been used
but the same would ordinarily mean gross income minus the statutory deductions. We
must also notice that the said decision has been followed in New India Assurance Co.
Ltd. v. Kalpana (Smt.) and Ors. [(2007) 3 SCC 538]. 2005 AIR SCW 1801
2007 AIR SCW 1316

20

. In Bijoy Kumar Dugar v. Bidya Dhar Dutta and Ors. [(2006) 3 SCC 242], this Court, in
a case where the salary of the deceased was found to be Rs. 3600/- after deduction and
wherein multiplier of 12 was applied where the age of the parents of the deceased was
between 45 and 50 years, held that no further enhancement was warranted. 2006 AIR
SCW 1116

21

. In U.P. State Road Transport Corporation v. Krishna Bala and Ors. [(2006) 6 SCC 249],
it was held : 2006 AIR SCW 3613, Para 8
"The multiplier method involves the ascertainment of the loss of dependency or the
multiplicand having regard to the circumstances of the case and capitalizing the
multiplicand by an appropriate multiplier. The choice of the multiplier is determined by
the age of the deceased (or that of the claimants, whichever is higher) and by the
calculation as to what capital sum, if invested at a rate of interest appropriate to a stable
economy, would yield the multiplicand
@page-SC1738
by way of annual interest. In ascertaining this, regard should also be had to the fact that
ultimately the capital sum should also be consumed over the period for which the
dependency is expected to last."
22. Therein a multiplier of 13 was adopted in a case where the age of the deceased was
around 36.
23

. Almost to the same effect is the decision of this Court in The Managing Director,
TNSTC v. Sripriya and Ors. [2007 (4) SCALE 222]. In that case, a multiplier of 12 was
applied in a case where the age of the deceased was 37 years. 2007 AIR SCW 1884

24

. Even certain allowances payable to the deceased could have been taken into
consideration in the changing social scenario. In National Insurance Company Ltd. v.
Indira Srivastava and Ors. [2007 (14) SCALE 461], it is useful to notice, this Court
observed : 2008 AIR SCW 143

"17. The amounts, therefore, which were required to be paid to the deceased by his
employer by way of perks, should be included for computation of his monthly income as
that would have been added to his monthly income by way of contribution to the family
as contradistinguished to the ones which were for his benefit. We may, however, hasten to
add that from the said amount of income, the statutory amount of tax payable thereupon
must be deducted."
Noticing the dictionary meaning of 'income', it was held :
"19. If the dictionary meaning of the word 'income' is taken to its logical conclusion, it
should include those benefits, either in terms of money or otherwise, which are taken into
consideration for the purpose of payment of income-tax or profession tax although some
elements thereof may or may not be taxable or would have been otherwise taxable but for
the exemption conferred thereupon under the statute."
25. We, therefore, are of the opinion that what would have been the income of the
deceased on the date of retirement was not a relevant factor in the light of peculiar facts
of this case and, thus, the approach of the Tribunal and the High Court must be held to be
incorrect. It is impermissible in law to take into consideration the effect of revision in
scale of pay w.e.f. 1.1.1997 or what would have been the scale of pay in 2002.
26. The loss of dependency, in our opinion, should be calculated on the basis as if the
basic pay of the deceased was Rs. 3295/-x 2 = Rs. 6,590/-, thereto should be added 18.5%
dearness allowance which comes to Rs.1219/-, child education allowance for two
children @ Rs. 240/- x 2 = Rs.480 and child bus fair Rs. 160 x 2 = Rs. 320/- should have
been added which comes to Rs. 8,609/-.
27. From the aforementioned figure 1/ 3rd should be deducted. After deduction, the
amount of income comes to Rs. 5,738/- per month [Rs. 8609/- - Rs. 2871/-] and the
amount of compensation should be determined by adopting the multiplier of 13, which
comes to Rs. 8,95,128/-.
28. In the present case, the High Court itself has applied the multiplier of 13. We are of
the opinion that no interference therewith is warranted. We furthermore do not intend to
interfere with the rate of interest in the facts and circumstance of the case.
29. The appeal is allowed in part and to the extent mentioned hereinbefore. In the facts
and circumstances of the case, there shall be no order as to costs.
Appeal partly allowed.
AIR 2008 SUPREME COURT 1738 "M.S.D.C. Radharamanan v. M.S.D. Chandrasekara
Raja"
(From : 2007 (138) Com Cas 897 (Madras))
Coram : 2 S. B. SINHA AND V. S. SIRPURKAR, JJ.
Civil Appeal No. 2006 of 2008 (arising out of SLP (C) No. 5246 of 2007), D/- 14 -3
-2008.
M.S.D.C. Radharamanan v. M.S.D. Chandrasekara Raja and Anr.
(A) Companies Act (1 of 1956), S.397, S.398 - COMPANY - CONCURRENT
FINDINGS - Mismanagement - Two shareholders, Directors, father and son holding all
shares of company - Acrimony between parties, resulting in mismanagement of conduct
of affairs of company - Concurrent finding that as there was no mutual trust and
confidence between parties and, thus, it would be impossible for company to run the
same smoothly - Therefore, finding as regards dead lock in affairs of company cannot be
faulted with. (Paras 14, 15, 33, 40)
(B) Companies Act (1 of 1956), S.397, S.433 - COMPANY - Oppression and
mismanagement - Petition against - Just and equitable test applicable in case for winding
up of company - Cannot be said to be totally outside the purview of S.397.
@page-SC1739

The provisions of the Act vis-a-vis the jurisdiction of the Company Law Board must be
considered having regard to the complex situation(s) which may arise in the case before
it. No hard and fast rule can be laid down. There cannot be any doubt whatsoever that the
acts of omission and commission on the part of a member of a company should be qua
the management of the company, but it is difficult to accept the proposition that the just
and equitable test, which should be held to be applicable in a case for winding up of a
company, is totally outside the purview of S. 397 of the Act. The function of a Company
Law Board in such matters is first to see as to how the interest of the Company vis-a-vis
its shareholders can be safeguarded. The Company Law Board must also make an
endeavour to find out as to whether an order of winding up will serve the interest of the
company or subvert the same. Further, if an application is filed under S. 433 or S. 397
and/or 398 thereof, an order of winding up may be passed, but the Company Law Board
in a winding up application may refuse to do so, if any other remedy is available. The
Company Law Board may not shut its doors only on sheer technicality even if it is found
as of fact that unless the jurisdiction under S. 402 of the Act is exercised, there will be a
complete mismanagement in regard to the affairs of the company. Ss. 397 and 398
empower the Company Law Board to remove oppression and mismanagement. If the
consequences of refusal to exercise jurisdiction would lead to a total chaos or
mismanagement of the company, would still the Company Law Board be powerless to
pass appropriate orders is the question. If a literal interpretation to the provisions of S.
397 or 398 is taken recourse to, may be that would be the consequence. But jurisdiction
of the Company Law Board having been couched in wide terms and as diverse reliefs can
be granted by it to keep the company functioning: is it not desirable to pass an order
which for all intent and purport would be beneficial to the company itself and the
majority of the members? A Court of law can hardly satisfy all the litigants before it.
This, however, by itself would not mean that the Company Law Board would refuse to
exercise its jurisdiction, although the statute confers such a power on it. (Paras 19, 20)
(C) Companies Act (1 of 1956), S.397, S.433 - COMPANY - Oppression and
mismanagement - Petition against - What is important is not the interest of applicant but
interest of shareholders of company as a whole - Said principle if can be applied in case
of winding up of company - It can also be invoked in a case u/S.397 subject of course to
the applicability of well known judicial safeguards. (Para 35)
Cases Referred : Chronological Paras
(2007) 1 Comp LJ 450 (CLB)39
(2007) 5 Comp LJ 279 (CLB)38
2006 CLC 218 (Delhi) 21
2005 AIR SCW 790 : AIR 2005 SC 809 : 2005 CLC 277 (Ref.) 35
2001 AIR SCW 1359 : AIR 2001 SC 1416 : 2001 CLC 385 (Ref.) 11
(1996) 10 SCC 696 (Ref.) 37
(1986) Ch 211 35
1983 BCLC 273 35
AIR 1981 SC 1298 (Ref.) 18, 35, 37
AIR 1976 SC 565 (Ref.) 34
(1973) 75 Bom LR 778 35
1973 AC 360 35
AIR 1965 SC 1535 (Ref.) 17, 18, 30, 35
(1958) 3 All ER 689 17, 18
1952 SC 49 : 1952 SLT 112 35
(1916) 2 Ch 412 35
C.A. Sundaram, Sr. Advocate, Ms. Haripriya, Ms. Rohini, Ms. V. Mohana, for Appellant;
K. Parasaran, Sr. Advocate, R. Murari, Ms. K.P. Indira, K. Swami, Ms. Yousa Lachenpa,
Ms. Prabha Swami, for Respondents.
Judgement
S. B. SINHA, J. :- Leave granted.
2. M/s. Shree Bhaarathi Cotton Mills Private Limited is a company registered and
incorporated under the Companies Act, 1956 (for short, 'the Act'). Out of the 2,84,000
equity shares in the company of Rs.10/- each, 2,83,999 shares are held by the first
respondent and his son (appellant herein). The remaining one share is held by M/s. Visva
Bharathi Textiles Private Limited, shares in which again is held equally by the first
respondent and the appellant. Thus, for all intent and purport, all shares of the company
are held by the appellant and the first respondent.
3. Whereas the first respondent is the Managing Director of the Company, the appellant is
the Director thereof. Indisputably the parties are not on good terms.
4. Respondent No. 1 filed an application purported to be under Sections 397 and 398
@page-SC1740
of the Act alleging several acts of oppression on the part of appellant herein before the
Company Law Board, Additional Principal Bench, Chennai. The said application was
registered as C.P. No. 2 of 2004. By reason of an order dated 16th August, 2004, the
Company Law Board while opining holding there was no act of mala fide or oppression
on the part of the appellant, opined that there exists a deadlock in the affairs of the
company. It directed the appellant to purchase 2,84,000 shares held by the first
respondent at a value to be determined by a chartered valuer.
5. An appeal was filed thereagainst by the appellant before the High Court of Judicature
at Madras under of Section 10F of the Act which was registered as C.M.A. No. 174 of
2004.
By reason of the impugned judgment dated 11th October, 2006 a Division Bench of the
High Court dismissed the same opining that the Company Law Board could very well
look into the justifiability of the situation and was, thus, right in arriving at its conclusion
that there existed a deadlock situation. It was opined that in such a situation it would be
impossible for both of them to pull on together as there was incompatibility between
them. The High Court noticed that the appellant herein even intended to file a criminal
complaint against his father, the first respondent for alleged misappropriation of a sum of
Rs. 8,15,000/-. A suit for partition, it was furthermore noticed, was pending. It was
directed :
"77........However, if there is any dispute regarding the method of valuation of the shares
and the ultimate valuation arrived at by the valuer, it is open for either parties to approach
the Company Law Board for getting the valuation finalised. Thereupon, at the first
instance, the second respondent shall purchase the shares of the petitioners, within six
months from the date of finalisation of such valuation and on his failure to do so, the
petitioner in C.P., shall purchase the shares of the second respondent, within six months
thereafter. In the event of both the alternatives failing, the purchase of shares of either the
petitioner or the second respondent could be transferred to third parties depending upon
the exigency. The Company Law Board is at liberty to pass such further orders under
Section 402 of the Companies Act, in commensurate with the views expressed by this
court, for the smooth running of the company.
78. In view of the reasons given for deciding the aforesaid point this civil miscellaneous
appeal is partly allowed by modifying the order passed by the Company Law Board. The
submission made by learned Counsel for the petitioner is recorded as aforesaid."
6. Mr. C.A. Sundaram, learned Senior counsel appearing on behalf of the appellant, in
support of the appeal, submitted :
1. The Company Law Board was not justified in issuing the impugned direction in
purported exercise of its jurisdiction under Section 402 of the Act directing him to
purchase the shares of the respondent despite arriving at a finding of fact that no act of
oppression has been committed by the appellant.
2. The condition precedent for exercise of such power being oppression on the part of a
Director of a company being not satisfied, the impugned judgment is wholly
unsustainable.
3. The High Court committed a manifest error in passing the impugned judgment in
reversing the findings of fact arrived at by the Company Law Board; although no appeal
therefrom had been preferred by the first respondent so as to hold that the acts of
omission and commission on the part of the appellant constituted such an oppression.
4. Both the High Court as also the Company Law Board committed a serious error in
granting the relief in favour of the first respondent without taking into consideration that
the grant of relief shall not only be in the interest of the company but also must have a
direct nexus with the affairs of the company and conduct of its business.
5. In any view of the matter, having regard to the prayers made by the first respondent in
his application before the Company Law Board, appointment of an Additional Director
would have served the purpose.
6. As the appellant does not have the necessary fund to purchase the shares of the first
respondent, he could not be forced to sell his shares.
7. Mr. K. Parasaran, learned Senior counsel, appearing for the respondents, on the other
hand, would contend :-
1. Appellant did not raise any ground in
@page-SC1741
the special leave petition that he is not in a position to purchase the shares of the
Respondent No. 1.
2. The company being a private limited company, which is in the nature of a quasi
partnership concern, the Court should take a holistic view of the matter and so viewed the
judgments of the Company Law Board as also the High Court are unassailable.
3. Appellant having not acceded to the proposal of respondent No. 1 in regard to the
appointment of the Additional Director, it does not lie in the mouth to say that
appointment of the Additional Director would serve the purpose.
4. The Company Law Board, in exercise of its jurisdiction under Sections 397 and 398
read with Section 402 of the Companies Act has the requisite jurisdiction to direct a share
holder to sell his shares to the other, although no case for winding up of the company has
been made out or no actual oppression on the part of the Director has been proved.
8. A shareholder of a company or a Director has several remedies under the Act. Section
433 of the Act envisages filing of an application for winding up thereof, inter alia, in a
case where the Company Law Board may form an opinion that it is Just and equitable
that the company should be wound up.
9. Section 443 of the Act provides for the powers of Company Law Board in a winding
up proceeding. Sub-section (2) thereof provides that a company may be directed to be
wound up when a petition is presented for winding up on the ground that it is just and
equitable.
The Company Law Board may refuse to do so, if in its opinion some other remedy is
available to the petitioners and that they are acting unreasonably. The applicant, thus, in a
given case, when it would not be in the interest of the company to be wound up, may take
recourse to other remedies available in law. Making out a case of oppression is one of
them.
10. An application under Section 397 of the Act may be filed in the following
circumstances :-
1) Where the affairs of the company are being conducted in the manner prejudicial to
public interest; or
2) In a manner oppressive to any member or members.
11. Sub-section (2) of Section 397 of the Act. however, provides that in the event the
Court is of the opinion that the company's affairs are being conducted in a manner
oppressive to any member or members or furthermore held that directing winding up the
company would unfairly prejudice such member or members, but the same otherwise
justifies the making of a winding up order on the ground that it is just and equitable that
the company should be wound up. It may make such other or further order as may think
fit and proper with a view to bringing to an end to the matters complained of.

Interpretation of Section 397(2) of the Act came up for consideration before a Division
Bench of this court in Hanuman Prasad Bagri and Ors. vs. Bagress Cereals Pvt. Ltd. and
Ors. [ [2001] 2 SCR 811]. This court while examining the conditions laid down in the
section, opined that : 2001 AIR SCW 1359, Para 3

"No case appears to have been made out that the company's affairs are being conducted in
a manner prejudicial to public interest or in a manner oppressive of any member or
members. Therefore, we have to pay our attention only to the aspect that the winding up
of the company would unfairly prejudice the members of the company who have the
grievance and are the applicants before the court and that otherwise the facts would
justify the making of a winding up order on the ground that it was just and equitable that
the company should be wound up. In order to be successful on this ground, the
Petitioners have to make out a case for winding up of the company on just and equitable
grounds. If the facts fall short of the case set out for winding up on just and equitable
grounds no relief can be granted to the Petitioners. On the other hand the party resisting
the winding up can demonstrate that there are neither just nor equitable grounds for
winding up and an order for winding up would be unjust and unfair to them."

After reviewing the decision of the High Court on the above test, this Court held that no
reasons prevailed for interference with the order and thus dismissed the appeal.
12. Section 398 of the Act provides for filing of an application for the reliefs in cases of
mismanagement.
@page-SC1742
Section 402 provides for the powers of the Company Law Board on an application made
under Section 397 or 398 of the Act which includes the power to pass any order providing
for the purchase of the shares or interests of any member of the company by other
member (s) thereof or by the company.
13. Ordinarily, therefore, in a case where a case of oppression has been made a ground
for the purpose of invoking the jurisdiction of the Board in terms of Sections 397 and 398
of the Act, a finding of fact to that effect would be necessary to be arrived out. But, the
jurisdiction of the Company Law Board to pass any other or further order in the interest
of the company, if it is of the opinion, that the same would protect the interest of the
company, it would not be powerless. The jurisdiction of the Company Law Board in that
regard must be held to be existing having regard to the aforementioned provisions.
14. The deadlock in regard to the conduct of the business of the company has been
noticed by the Company Law Board as also the High Court. Keeping in view the fact that
there are only two shareholders and two Directors and bitterness having crept in their
personal relationship, the same, in our opinion, will have a direct impact in the matter of
conduct of the affairs of the company.
15. When there are two Directors, non-cooperation by one of them would result in a
stalemate and in that view of the matter the Company Law Board and the High Court
have rightly exercised their jurisdiction.
16. Before us, learned counsel for the parties, have referred to a large number of
decisions operating in the field.
We may notice the legal principle emerging from some of them.
17

. In S. P. Jain vs. Kalinga Tubes Ltd. : (1965) 2 SCR 720 this Court compared the
provisions of Section 397 with Section 210 of the English Act to hold :- AIR 1965 SC
1535, Para 13

"The law always provided for winding up, in case it was just and equitable to wind up a
company. However, it was being felt for some time that though it might be just and
equitable in view of the manner in which the affairs of a company were conducted to
wind it up, it was not fair that the company should always be wound up for that reason,
particularly when it was otherwise solvent. That is why Section 210 was introduced in the
English Act to provide an alternative remedy where it was felt that, though a case had
been made out on the ground of just and equitable cause to wind up a company, it was not
in the interest of the shareholders that the company should be wound up and that it would
be better if the company was allowed to continue under such directions as the court may
consider proper to give."
The Court analysed the decision in Re. H.R. Harmer Limited : [1958] 3 All ER 689 in the
following terms :-
"19. In Harmer's case, it was held that "the word 'oppressive' meant burdensome, harsh
and wrongful". It was also held that "the section does not purport to apply to every case
in which the facts would justify the making of a winding up order under the 'just and
equitable' rule, but only to those cases of that character which have in them the requisite
element of oppression." It was also held that "the result of applications under Section 210
in different cases must depend on the particular facts of each case, the circumstances in
which oppression may arise being so infinitely various that it is impossible to define them
with precision." The circumstances must be such as to warrant the inference that "there
has been, at least, an unfair abuse of powers and an impairment of confidence in the
probity with which the company's affairs are being conducted, as distinguished from
mere resentment on the part of a minority at being outvoted on some issue of domestic
policy". The phrase "oppressive to some part of the members" suggests that the conduct
complained of " should at the lowest involve a visible departure from the standards of fair
dealing, and a violation of the conditions of fair play on which every share holder who
entrusts his money to a company is entitled to rely . . . But, apart from this, the question
of absence of mutual confidence per se between partners, or between two sets of
shareholders, however relevant to a winding up, seems to me to have no direct relevance
to the remedy granted by Section 210. It is oppression of some part of the shareholders by
the manner in which the affairs of the company are being conducted that must be averred
and proved. Mere loss of confidence or pure deadlock does not . . . come within Section
210. It is not lack of confidence between share holders per se that brings Section 210 into
play, but lack of confidence
@page-SC1743
springing from oppression of a minority by a majority in the management of the
company's affairs and oppression involves ... at least an element of lack of probity or fair
dealing to a member in the matter of his proprietary right as a shareholder."
It is true that observations in Harmer's case was held to be applicable in a case falling
within the purview of Section 397 of the Act but the statement of law that it was not
enough that only a just and equitable case for winding up of the company should be made
out but it must also be found that conduct of the majority shareholders was oppressive to
the minority members, cannot be said to be exhaustive.
18

. The question came up for consideration yet again before a three judge Bench of this
Court in Needle Industries (India) Ltd. vs. Needle Industries Newey (India) Holding
Ltd. : (1981) 3 SCC 333 wherein Chandrachud, C.J. upon considering a large number of
decisions of this Court as also the English Courts including S.P. Jain and Harmer Ltd.
(supra) categorically held :- AIR 1981 SC 1298
AIR 1965 SC 1535

"172. Even though the company petition fails and the appeals succeed on the finding that
the Holding Company has failed to make out a case of oppression, the court is not
powerless to do substantial justice between the parties and place them, as nearly as it
may, in the same position in which they would have been, if the meeting of May 2 were
held in accordance with law."
19. The provisions of the Act vis-a-vis the jurisdiction of the Company Law Board must
be considered having regard to the complex situation(s) which may arise in the cases
before it. No hard and fast rule can be laid down. There cannot be any doubt whatsoever
that the acts of omission and commission on the part of a member of a company should
be qua the management of the company, but it is difficult to accept the proposition that
the just and equitable test, which should be held to be applicable in a case for winding up
of a company, is totally outside the purview of Section 397 of the Act. The function of a
Company Law Board in such matters is first to see as to how the interest of the company
vis-a-vis its shareholders can be safeguarded. The Company Law Board must also make
an endeavour to find out as to whether an order of winding up will serve the interest of
the company or subvert the same. Further, if an application is filed under Section 433 of
the Act or Section 397 and/or 398 thereof, an order of winding up may be passed, but as
noticed hereinbefore, the Company Law Board in a winding up application may refuse to
do so, if any other remedy is available. The Company Law Board may not shut its doors
only on sheer technicality even if it is found as of fact that unless the jurisdiction under
Section 402 of the Act is exercised, there will be a complete mismanagement in regard to
the affairs of the company.
20. Sections 397 and 398 of the Act empower the Company Law Board to remove
oppression and mismanagement. If the consequences of refusal to exercise jurisdiction
would lead to a total chaos or mismanagement of the company, would still the Company
Law Board be powerless to pass appropriate orders is the question.
If a literal interpretation to the provisions of Section 397 or 398 is taken recourse to, may
be that would be the consequence. But jurisdiction of the Company Law Board having
been couched in wide terms and as diverse reliefs can be granted by it to keep the
company functioning; is it not desirable to pass an order which for all intent and purport
would be beneficial to the company itself and the majority of the members? A court of
law can hardly satisfy all the litigants before it. This, however, by itself would not mean
that the Company Law Board would refuse to exercise its jurisdiction, although the
statute confers such a power on it.
21. It is now a well settled principle of law that the Courts should lean in favour of such
construction of statute whereby its jurisdiction is retained enabling it to mould the relief,
subject of course, to the applicability of law in the fact situation obtaining in each case.

In Pearson Education Inc. (formerly Prentice Hall Inc.) vs. Prentice Hall India (P) Ltd.
and Ors. [134 (2006) DLT 450], as regards the jurisdiction of the Company Law Board
and the High Court under Sections 397/398 and 402, a learned single judge of the Delhi
High Court held : 2006 CLC 218

"Jurisdiction of the CLB (and ultimately of this Court in appeal) under Sections 397/ 398
and 402 is much wider and direction can be given even contrary to the provisions of the
Articles of Association. It has even
@page-SC1744
right to terminate, set aside or modify the contractual arrangement between the company
and any person [see Section 402 (d) and (e)]. Section 397 specifically provides that once
the oppression is established, the Court may, with a view to bringing to an end the matters
complained of, make an order as it thinks fit. Thus, the Court has ample power to pass
such orders as it thinks fit to render justice and such an order has to be reasonable. It is
also an accepted principle that "just and equitable" provision in Section 402(g) is an
equitable supplement to the common law of the company to be found in its Memorandum
and Articles of Association."
22. In a case of this nature, where there are two shareholders and two Directors, any
animosity between them not only would have come in the way of proper functioning of
the company but it would also affect the smooth management of the affairs of the
company. The parties admittedly are at loggerheads. A suit is pending regarding title of
the shares of the Company. A contention had been raised by the appellant before the
Company Law Board that the 1st respondent having filed a wealth-tax return as Karta of
Hindu Undivided Family, he not only has 50 % shares in the Company but also 50%
shares in the H.U.F.; whereas the contention of the 1st respondent in that behalf is that the
appellant had already taken his half share in the joint family property and the H.U.F.
mentioned in the Wealth Tax Return pertains to the smaller H.U.F. which consists of
himself and his daughters.
1st respondent is about 80 years old. Because of his old age, he is not in a position to look
after the affairs of the company. Even in the grounds of appeal before us, a contention has
been raised that it was the 1st respondent, who is the oppressor. We have noticed
hereinbefore that, rightly or wrongly, appellant also intended to file a criminal case
against the 1st respondent alleging that he had misappropriated a huge amount as a
Director of the company.
23. Before the Company Law Board, several grounds to establish a case of oppression
had been made out :-
1) Non co-opting of a third Director on the Board;
2) Non clearance of accumulated stocks;
3) Surrender of the surplus power in favour of TNEB;
4) Non issue of duplicate share certificates;
5) Non redemption of preference shares;
6) Non sanctioning of increment to the staff members;
7) Deadlock in the affairs of the company.
24. In regard to the first ground, admittedly, A. Jayakumar, son-in-law of the 1st
respondent being the brother-in-law of the appellant was nominated as a Director of the
company. Appellant indisputably did not agree in that behalf. However, the first
respondent left it to the discretion of the Company Law Board to appoint a third Director,
but we are informed at the bar that even the same was objected to by the appellant.
25. It is in the aforementioned situation the Company Law Board has opined that such an
impasse could have been removed by resorting to appointment of an additional Director.
What the Board failed to notice was that when the appellant himself intended to become
the Managing Director, he would like to have his own man in the Board which was not
acceded to by the 1st respondent.
26. Surrender of surplus power in favour of TNEB may be a business decision but such a
decision will have a direct impact on the conduct of the business. It at least shows that the
parties were at loggerheads. It is in the aforementioned situation, the High Court opined :-
"The Company Law Board should have categorically held that such surrender was
beneficial to the company and the second respondent unjustifiably objected to it.
Admittedly, the second respondent was not in favour of such surrender on the ground that
it was required for future expansion of the factory activities. Such a plea of the second
respondent is based on mere conjectures and surmises and not borne out by any proposed
project for future expansion. As such the Company Law Board very well could have held
that the second respondent was oppressive."
27. In relation to the non-issue of duplicate share certificates the Company Law Board
opined :-
"That is why the petitioner took up the very same issue again at the Board meeting
convened on 20.03.2004, after filing of the company petition. It is on record that the
second respondent did not attend the Board meeting on 20.03.2004 on the ground that
@page-SC1745
the subject matter is sub-judice before the CLB. Thus, there is no ultimate denial of the
issue of duplicate share certificates by the second respondent in favour of the petitioner."
28. The High Court, however, in this regard opined "recording this, the Company Law
Board could have very well held that the second respondent was not justified in causing
obstruction to the issuance of such share certificates."
29. A ground has also been taken in the memo of appeal contending :
"The Division Bench entirely failed to appreciate that the Petitioner being a whole time
director and also being a 50% shareholder the Petitioner has a right to refuse to give his
consent to certain transactions if the Petitioner is of the opinion that the same is not good
for the business of the Respondent No.2 company or that the same is against the interests
of the company. The Petitioner has merely exercised his right as a whole time director in
not agreeing to certain resolutions and that by itself neither amounts to a deadlock of
oppression."
We have referred to the views taken by the Company Law Board as also the High Court,
not being oblivious of the objection of Mr. Sundaram, that in relation to those findings,
the 1st respondent did not prefer any appeal.
30. Without going into the legal issue, however, we are of the opinion that the same is
only evidence of the instances as to how a deadlock in the affairs of the company was
viewed. Both the Company Law Board as well as the High Court have arrived at a
concurrent finding that as there was no mutual trust and confidence between the parties
and, thus, it would be impossible for the company to run the same smoothly.

We are not again oblivious of the observations made by this Court in S.P. Jain case that
the same by itself would not be a ground of winding up; but the ground of lack of mutual
trust and confidence cannot be taken into consideration in isolation. The same has to be
considered having regard to large number of other factors, the cumulative effect thereof
would be extremely significant to arrive at one or the other conclusion. AIR 1965 SC
1535

31. We may take notice of the fact that the appellant had made the following allegations
against the 1st respondent in the list of dates :-
"It is respectfully submitted that the Respondent No. 1 did not maintain proper books of
minutes of meetings or attendance registers, did not allow the Petitioner herein to use the
company guest house in Chennai, the Respondent No. 1 attempted to bring in a third
director to marginalize the role of the Petitioner, the Respondent No. 1 siphoned off Rs.
8,15,000/- of the company money, the Respondent No. 1 attempted to transfer by way of
gifts properties given as collateral security to financial institutions and so on. When the
Petitioner herein either asserted his rights or attempted to thwart the wrongful acts of the
Respondent No. 1, the Respondent No. 1 became abusive."
32. We may also notice that in his reply statement before the Company Law Board it was
stated by the appellant :-
"5.10 The Petitioner-Managing Director has become quite old. In fact under the
Companies Act, in case of Public Companies there exist sufficient safeguards to restrict
appointment of Managing Directors over the age of 70 without prior permission of the
Central Government. Such provisions have been thoughtfully provided considering the
inherent weaknesses that will emerge out of old age. In order to continue the smooth
functioning of the enterprise, it would be very much conducive if the Managing Director
gracefully retires from the post and lets a much younger and still experienced person to
take over the mantle of the company. And further-more, so considering that the younger
person is the only son of the present Managing Director, it is quite natural that the take-
over of the mantle that should be mooted."
It was further averred :-
"6. There has been no oppression or mismanagement as averred by the Petitioner. It is a
fact that the Petitioner, who is the Managing Director of the company is in a more
convenient position to oppress the 2nd Respondent but on the other hand, the Petitioner
has been alleging the opposite, without any basis. The mere fact that one of the two
directors/shareholders decides to exercise his proprietary right as a shareholder/ director
to vote for or against any resolution does not amount to deadlock in management or
oppression."
33. In a case of this nature, it is necessary to take a holistic approach of the matter.
@page-SC1746
What might not be permissible for the affairs of a public limited company or even a
private company having large number of shareholders and Directors, may be permissible
in a case of this nature where a company for all intent and purport a quasi partnership
concern. The Parliament, while enacting a statute, cannot think of all situations which
may emerge in giving effect to the statutory provision.
The situation obtaining in the present case in that sense is a pathetic one. Both the
Company Law Board as also the High Court has no doubt found that the acrimony
between the parties is resulting in mismanagement of the conduct of affairs of the
company. Therefore, a conclusion as regards the deadlock in the affairs of the company
cannot be faulted with.
34

. In Hind Overseas (P) Ltd. vs. Raghunath Prasad Jhunjhunwalla and another [(1976) 3
SCC 259] this Court upon noticing a large number of decisions opined :- AIR 1976 SC
565, Paras 36 and 37

"37. Section 433 (f) under which this application has been made has to be read with
Section 443(2) of the Act. Under the latter provision where the petition is presented on
the ground that it is just and equitable that the Company should be wound up, the court
may refuse to make an order of winding-up if it is of opinion that some other remedy is
available to the petitioners and that they are acting unreasonably in seeking to have the
Company wound up instead of pursuing that other remedy.
38. Again under Sections 397 and 398 of the Act there are preventive provisions in the
Act as a safeguard against oppression in management. These provisions also indicate that
relief under Section 433 (f) based on the just and equitable clause is in the nature of a last
resort when other remedies are not efficacious enough to protect the general interests of
the Company."
35. This Court noticed that although the Indian Companies Act is modelled on the
English Companies Act, the Indian Law is developing on its own lines. It was opined that
the principle of 'just and equitable clause' is essentially equitable consideration and may,
in a given case, be superimposed on law.
The Court in arriving at the said conclusion considered the decision of House of Lords in
Re : Ebrahimi and Westbourne Galleries Ltd. : 1973 AC 360 whereupon strong reliance
has been placed by Mr. Sundaram as also in Re: Yenidje Tobacco Co. Ltd. : (1916) 2 Ch
412 amongst others.
What is important is not the interest of the applicant but the interest of the shareholders of
the company as a whole. If such a principle is applied in a case of winding up of a
company, we do not see any reason not to invoke the said principle in a case under
Section 397 of the Act, subject of course to the applicability of the well known judicial
safeguards.
A similar question came up for consideration in Sangramsinh P. Gaekwad vs. Shantadevi
P. Gaekwad 2005 (11) SCC 314 wherein this Court upon noticing a large number of
decisions including Needle Industries (India) Ltd. (supra) observed :- 2005 AIR
SCW 790
AIR 1981 SC 1298

"191. In Shanti Prasad Jain referring to Elder case it was categorically held that the
conduct complained of must relate to the manner of management of the affairs of the
company and must be such so as to oppress a minority of the members including the
petitioners qua shareholders. The Court, however, pointed out that law, however, has not
defined what oppression is for the purpose of the said section and it is left to the court to
decide on the facts of each case whether there is such oppression." Paras 198, 204 to 207
and 209 of AIR SCW
AIR 1965 SC 1535

It was furthermore held


"196. The court in an application under Sections 397 and 398 may also look to the
conduct of the parties. While enunciating the doctrine of prejudice and unfairness borne
in Section 459 of the English Companies Act. the Court stressed the existence of
prejudice to the minority which is unfair and not just prejudice per se.
197. The court may also refuse to grant relief where the petitioner does not come to court
with clean hands which may lead to a conclusion that the harm inflicted upon him was
not unfair and that the relief granted should be restricted. (See London School of
Electronics, Re.)
198. Furthermore, when the petitioners have consented to and even benefited from the
company being run in a way which would normally be regarded as unfairly prejudicial to
their interests or they might have
@page-SC1747
shown no interest in pursuing their legitimate interest in being involved in the company.
[See RA Noble and Sons (Clothing) Ltd., Re.]
199. In a given case the court despite holding that no case of oppression has been made
out may grant such relief so
201. In Shanti Prasad Jain v. Union of India it was held that the power of the Company
Court is very wide and not restricted by any limitation contained in Section 402 thereof
or otherwise."
36. It was opined that the burden to prove oppression or mismanagement is upon the
applicant. The Court, however, will have to consider the entire materials on record and
may not insist upon the applicant to prove each act of oppression. It was furthermore
observed that an action in contravention of law may not per se be oppressive, whereas the
conduct involving illegality and contravention of the Act may be suffice to warrant grant
of any remedy.
37. Reliance has been placed by Mr. Sundaram on Kilpest (P) Ltd. vs. Shekhar Mehra :
(1996) 10 SCC 696, which has also been noticed in Sangramsinh P. Gaekwad (supra)
opining :
"The real character of the company, as noticed hereinbefore, for the purpose of judging
the dealings between the parties and the transactions which are impugned may assume
significance and in such an event, the principles of quasi-partnership in a given case may
be invoked.

231. The ratio of the said decision, with respect, cannot be held to be correct as a bare
proposition of law, as was urged by Mr. Desai, being contrary to larger Bench judgments
of this Court and in particular Needle Industries. It is, however, one thing to say that for
the purpose of dealing with an application under Section 397 of the Companies Act, the
court would not easily accept the plea of quasi-partnership but as has been held in Needle
Industries the true character of the company and other relevant factors shall be considered
for the purpose of grant of relief having regard to the concept of quasi-partnership."
AIR 1981 SC 1298

38. Submission of Mr. Sundaram that the appointment of an additional Director could be
a sufficient relief which the court may grant cannot be accepted. Appellant rejected such
an offer. At this stage bitterness and acrimonious between the parties have ensued.
In a recent decision of J. K. Paliwal and Others vs. Paliwal Steels Ltd. and others [(2007)
5 Comp LJ 279 (CLB)], on the role of the directors in terms of Sections 397 and 398 , the
Company Law Board held that the role of the directors was well settled and they were the
trustees of the company. It was thus opined that the directors were required to act on
behalf of the company in a fiduciary capacity and their acts and deeds have to be
exercised for the benefit of the company.
39. In Girdhar Gopal Dalima and others vs. Bateli Tea Co. Ltd. and others : (2007) 1
Comp LJ 450 (CLB) the Company Law Board held that once the Company Law Board
gives a finding that acts of oppression have been established, winding up of the company
on just and equitable grounds becomes automatic.
40. We, in the facts and circumstances of this case, are of the opinion that it is not a fit
case where we should interfere with impugned judgment in exercise of our discretionary
jurisdiction under Article 136 of the Constitution of India. The appeal fails and dismissed
with costs. Counsel's fees assessed at Rs. 50,000/-.
Appeal dismissed.
AIR 2008 SUPREME COURT 1747 "Ram Swaroop v. State of Rajasthan"
(From : Rajasthan)*
Coram : 2 Dr. A. PASAYAT AND P. SATHASIVAM, JJ.
Criminal Appeal No. 548 of 2008 (arising out of SLP (Cri.) No.2469 of 2006), D/- 25 -3
-2008.
Ram Swaroop v. State of Rajasthan.
(A) Penal Code (45 of 1860), S.300 - Evidence Act (1 of 1872), S.45 - MURDER -
EVIDENCE - Murder - Variance between medical and ocular evidence - Doctor is
usually confronted with questions on different possibilities and probabilities of causing
injuries - Views expressed by him depend upon the manner questions were asked -
Answers given by him to such questions need not be last word on such possibilities -
Evidence of eye-witness cannot be discarded on strength of such medical opinion.
@page-SC1748
AIR 1979 SC 1194, AIR 1988 SC 2154, 1995 Supp (1) SCC 547, 1998 (6) SCC 50, 2003
AIR SCW 6731, Rel. on. (Para 9)
(B) Penal Code (45 of 1860), S.300 - Evidence Act (1 of 1872), S.3 - MURDER -
EVIDENCE - CONCURRENT FINDINGS - Murder - Evidence of eye-witnesses -
Clearly making accusations against accused - Certain minor variations in their testimony
- Would not corrode credibility of prosecution version - Concurrent finding that accused
was guilty - Not liable to be interfered with. (Para 11)
Cases Referred : Chronological Paras
2003 AIR SCW 6731 : AIR 2004 SC 1053 : 2004 Cri LJ 640 (Rel. on) 10
(1998) 6 SCC 50 (Rel. on) 10
1995 Supp (1) SCC 547 (Rel. on) 10
AIR 1988 SC 2154 : 1989 Cri LJ 288 (Rel. on) 10
AIR 1979 SC 1194 : 1979 Cri LJ 939 (Rel. on) 10
Radha Shyam Jena, for Appellant; Mllind Kumar, Aruneshwar Gupta, for Respondent.
* D.B. Cri. A. No.473 of 2001, D/- 26-7-2005 (Raj).
Judgement
Dr. ARIJIT PASAYAT, J. :-Leave granted.
2. Challenge in this appeal is to the judgment rendered by a Division Bench of the
Rajasthan High Court upholding the conviction of the appellant for offence punishable
under Section 302 of the Indian Penal Code, 1860 (in short the 'IPC') and sentence of
Imprisonment for life as awarded by learned Additional Sessions Judge No.1, Jodhpur.
3. Background facts in a nutshell are as follows :
Report was lodged by one Tulsh Singh at the Tolesar Police station stating that on
19.11.1999 he was standing in the road along with Swai Singh, Sumer Singh (hereinafter
referred to as 'deceased') and Vijay Singh. Around 4 P.M. Laxman Singh who was then
studying in a nearby school came and inform that while the children were talking
amongst each other, appellant Ram Swaroop slapped him, At that time Ram Swaroop and
Shrawan were standing on the read. When Sumer Singh asked Ram Swaroop as to why
he had beaten Laxman, on this Shrawan started beating Sumer Singh and the complainant
tried to separate them. In the mean time the appellant with the intention to kill stabbed
Sumer Singh with a knife. Sumer Singh received two stab injuries on his chest and one
stab injury from knife on his back and he started bleeding and fell down. While the
complainant and others were attending to Sumer Singh, Shrawan and accused appellant
Ram Swaroop ran way. Sumer Singh's elder brother Kumbh Singh arrived there. Sumer
Singh in an injured condition was taken to the Gandhi Hospital at Jodhpur, but he died on
the way to the hospital. On the basis of this information, the FIR was lodged and
investigation was undertaken. Charge sheet was filed alleging commission of offence
punishable under Section 302 IPC by the accused appellant, while co-accused Shrawan
Ram was charged for offence punishable under Section 302 read with Section 34 IPC.
The matter was committed to the Court of Sessions and the two accused persons faced
the trial as they pleaded innocence and denied the allegation. In order to further its
version, prosecution examined 14 witnesses. Tulsh Singh-PW3 and Swai Singh-PW4
were stated to be eye witnesses. The trial court on considering the evidence on record
found the accused appellant guilty and convicted and sentenced accused appellant for
offence punishable under Section 302 IPC.
4. The trial court found the evidence to be not sufficient to fasten the guilt on accused
Shrawan Ram.
5. The High Court did not find any merit in the appeal of the accused appellant and
dismissed the same.
6. In support of the appeal, learned counsel for the appellant submitted that the trial court
and the High Court lost sight of the fact that PWs. 3 and 4 have not spoken the truth. The
scenario described by them does not fit in with the prosecution version. It is pointed out
that the manner of attack and infliction of injuries as stated by PWs. 3 and 4 do not fit
into the medical evidence.
7. Learned counsel for the respondent-State on the other hand supported the Judgment of
the trial court as affirmed by the High Court.
8. So far as the alleged variance between medical evidence and ocular evidence is
concerned, it is trite law that oral evidence has to get primacy and medical evidence is
basically opinionative. It is only when the medical evidence specifically rules out the
injury as claimed to have been inflicted as per the oral testimony, then only in a given
case the
@page-SC1749
Court has to draw adverse inference.
9. Over dependence on such opinion evidence, even if the witness is an expert in the
field, to checkmate the direct testimony given by an eyewitness is not a safe modus
adoptable in criminal cases. It has now become axiomatic that medical evidence can be
used to repel the testimony of eyewitnesses only if it is so conclusive as to rule out even
the possibility of the eyewitness's version to be true. A doctor usually confronted with
such questions regarding different possibilities or probabilities of causing those injuries
or post-mortem features which he noticed in the medical report may express his views
one way or the other depending upon the manner the question was asked. But the answers
given by the witness to such questions need not become the last word on such
possibilities. After all he gives only his opinion regarding such questions. But to discard
the testimony of an eyewitness simply on the strength of such opinion expressed by the
medical witness is not conducive to the administration of criminal Justice.
10

. Similar view has also been expressed in Mange v. State of Haryana (1979 (4) SCC 340),
State of U.P. v. Krishna Gopal and Anr. (AIR 1888 SC 2154) and Ram Dev and Anr. v.
State of U.P. (1995 Supp (1) SCC 547). State of U.P. v. Harban Sahai and Ors. (1998 (6)
SCC 50 and Ramanand Yadav v. Prabhu Nath Jha and Ors. (2003 (12) SCC 606). AIR
1979 SC 1194
2003 AIR SCW 6731

11. The trial court and the High Court have analysed in great detail the evidence of PWs.
3 and 4, which clearly bring out the accusations against the accused appellant. There are
certain minor variations which do not in any way corrode the credibility of the
prosecution version. The trial court and the High Court were, therefore, justified in
placing reliance on their evidence and holding the accused appellant guilty. We do not
find any merit in the appeal which is accordingly dismissed.
12. We record our appreciation for the able manner in which Mr. Radha Shyam Jena,
learned Amicus Curiae highlighted various points.
Appeal dismissed.
AIR 2008 SUPREME COURT 1749 "Kashmir Singh v. Harnam Singh"
(From : AIR 2001 Punj and Har 257)
Coram : 3 Dr. A. PASAYAT, P. SATHASIVAM AND AFTAB ALAM, JJ.
Civil Appeal No.1036 of 2002, D/- 3 -3 -2008.
Kashmir Singh v. Harnam Singh and Anr.
(A) Civil P.C. (5 of 1908), S.100 - APPEAL - CONCURRENT FINDINGS - Second
Appeal - Concurrent finding of fact - Interference - When permissible.
The general rule is that High Court will not interfere with concurrent findings of the
Courts below. But it is not an absolute rule. Some of the well recognized exceptions are
where (i) the Courts below have ignored material evidence or acted on no evidence; (ii)
the Courts have drawn wrong inferences from proved facts by applying the law
erroneously; or (iii) the Courts have wrongly cast the burden of proof. 'Decision based on
no evidence', not only means cases where there is a total dearth of evidence, but also
refers to any case, where the evidence, taken as a whole, is not reasonably capable of
supporting the finding. (Para 17)
(B) Civil P.C. (5 of 1908), S.100 - APPEAL - Second Appeal - Substantial question of
law - Parameters for constituting.
To be 'substantial' a question of law must be debatable, not previously settled by law of
the land or a binding precedent, and must have a material bearing on the decision of the
case, if answered either way, insofar as the rights of the parties before it are concerned.
To be a question of law 'involving in the case' there must be first a foundation for it laid
in the pleadings and the question should emerge from the sustainable findings of fact
arrived at by Court of facts and it must be necessary to decide that question of law for a
just and proper decision of the case. An entirely new point raised for the first time before
the High Court is not a question involved in the case unless it goes to the root of the
matter. It will, therefore, depend on the facts and circumstances of each case whether a
question of law is a substantial one and involved in the case, or not; the paramount
overall consideration being the need for striking judicious balance between the
indispensable obligation to do justice at all stages and impelling necessity of avoiding
prolongation in the life of any lis. (Para 15)
@page-SC1750
A substantial question of law will also arise in a contrary situation, where the legal
position is clear, either on account of express provisions of law or binding precedents, but
the Court below has decided the matter, either ignoring or acting contrary to such legal
principle. In the second type of cases, the substantial question of law arises not because
the law is still debatable, but because the decision rendered on a material question,
violates the settled position of law. (Para 16)
The substantial question of law on which a second appeal shall be heard need not
necessarily be a substantial question of law of general importance. (Para 12)
(C) Civil P.C. (5 of 1908), S.100 - APPEAL - Second Appeal - Question of law.
An inference of fact from the recitals or contents of a document is a question of fact. But
the legal effect of the terms of a document is a question of law. Construction of a
document involving the application of any principle of law, is also a question of law.
Therefore, when there is misconstruction of a document or wrong application of a
principle of law in construing a document, it gives rise to a question of law. (Para
16)
(D) Civil P.C. (5 of 1908), S.100 - APPEAL - APPELLATE COURT - Second Appeal -
Interference - Scope - Rejection by appellate Court of witnesses accepted by trial Court
as credible - Not ground for interference - Two views are possible - Not also a ground for
interference. (Para 10)
(E) Civil P.C. (5 of 1908), S.100 - APPEAL - Second Appeal - Maintainability - Grounds
stipulated for - Court cannot enlarge - Equity is not a ground. (Para 9)
Cases Referred : Chronological Paras
2002 AIR SCW 5368 : AIR 2003 SC 689 (Ref.) 7
2001 AIR SCW 723 : AIR 2001 SC 965 (Ref.) 15
2000 AIR SCW 1001 : AIR 2000 SC 1485 (Rel. on) 6
1999 AIR SCW 2240 : AIR 1999 SC 2213 (Ref.) 11
1999 AIR SCW 4573 : AIR 2000 SC 426 (Rel. on) 5
1994 AIR SCW 4082 : AIR 1995 SC 73 (Ref.) 6
AIR 1976 SC 830 (Ref. on) 11
AIR 1962 SC 1314 (Rel. on) 9, 12, 13
AIR 1953 SC 521 14
AIR 1951 Mad 969 (FB) (Ref.) 12
AIR 1928 PC 172 (Ref.) 12
J.S.N. Joshi, A.S. Bhasme and Brijesh Pande, for Appellant; Rajat Sharma, Siddhartha
Singh, A.P. Mohanty, for Respondents.
Judgement
1. Dr. ARIJIT PASAYAT, J. :- Challenge in this appeal is to the judgment of a learned
Single Judge of the Punjab and Haryana High Court allowing the Second Appeal filed by
respondent No. 1. The Second Appeal was filed under Section 100 of the Code of Civil
Procedure, 1908 (in short the 'Code'). Though many points were urged in support of the
appeal it was primarily submitted that no substantial question of law was formulated and
Second Appeal would not have been allowed without formulating any such question.
2. In view of Section 100 of the Code the memorandum of appeal shall precisely state
substantial question or questions of law involved in the appeal as required under sub-
section (3) of Section 100. Where the High Court is satisfied that in any case any
substantial question of law is involved it shall formulate that question under sub-section
(4) and the Second Appeal has to be heard on the question so formulated as stated in sub-
section (5) of Section 100.
3. Section 100 of the Code deals with "Second Appeal". The provision reads as follows :
"Section 100 - (1) Save as otherwise expressly provided in the body of this Code or by
any other law for the time being in force, an appeal shall lie to the High Court from every
decree passed in appeal by any Court subordinate to the High Court, if the High Court is
satisfied that the case involves a substantial question of law.
(2) An appeal may lie under this section from an appellate decree passed ex parte.
(3) In an appeal under this Section, the memorandum of appeal shall precisely state the
substantial question of law involved in the appeal.
(4) Where the High Court is satisfied that a substantial question of law is involved in any
case, it shall formulate that question.
(5) The appeal shall be heard on the question so formulated and the respondent shall,
@page-SC1751
at the hearing of the appeal, be allowed to argue that the case does not involve such
question :
Provided that nothing in this sub-section shall be deemed to take away or abridge the
power of the Court to hear, for reasons to be recorded, the appeal on any other substantial
question of law, not formulated by it, if it is satisfied that the case involves such
question."
4. A perusal of the impugned judgment passed by the High Court does not show that any
substantial question of law has been formulated or that the Second Appeal was heard on
the question, if any, so formulated. That being so, the judgment cannot be maintained.
5

. In Ishwar Dass Jain v. Sohan Lal (2000 (1) SCC 434) this Court in para 10, has stated
thus : 1999 AIR SCW 4573

"10. Now under Section 100, after the 1976 Amendment, it is essential for the High Court
to formulate a substantial question of law and it is not permissible to reverse the
judgment of the first appellate Court without doing so."
6

. Yet again in Roop Singh v. Ram Singh (2000 (3) SCC 708) this Court has expressed that
the jurisdiction of a High Court is confined to appeals involving substantial question of
law. Para 7 of the said judgment reads : 2000 AIR SCW 1001

"7. It is to be reiterated that under section 100 jurisdiction of the High Court to entertain a
second appeal is confined only to such appeals which involve a substantial question of
law and it does not confer any jurisdiction on the High Court to interfere with pure
questions of fact while exercising its jurisdiction under section 100. That apart, at the
time of disposing of the matter the High Court did not even notice the question of law
formulated by it at the time of admission of the second appeal as there is no reference of
it in the impugned judgment. Further, the fact findings courts after appreciating the
evidence held that the defendant entered into the possession of the premises as a batai,
that is to say, as a tenant and his possession was permissive and there was no pleading or
proof as to when it became adverse and hostile. These findings recorded by the two
courts below were based on proper appreciation of evidence and the material on record
and then was no perversity, illegality or irregularity in those findings. If the defendant got
the possession of suit land as a lessee or under a batai agreement then from the
permissive possession it is for him to establish by cogent and convincing evidence to
show hostile animus and possession adverse to the knowledge of the real owner. Mere
possession for a long time does not result in converting permissive possession into
adverse possession (Thakur Kishan Singh v. Arvind Kumar (1994 (6) SCC 591). Hence
the High Court ought not to have interfered with the findings of fact recorded by both the
courts below." 1994 AIR SCW 4082
7

. The position has been reiterated in Kanahaiyalal and Ors. v. Anupkumar and Ors. (JT
2002 (10) SC 98) 2002 AIR SCW 5368

8. After the amendment, a second appeal can be filed only if a substantial question of law
is involved in the case. The memorandum of appeal must precisely state the substantial
question of law involved and the High Court is obliged to satisfy itself regarding the
existence of such a question. If satisfied, the High Court has to formulate the substantial
question of law involved in the case. The appeal is required to be heard on the question so
formulated. However, the respondent at the time of hearing of the appeal has a right to
argue that the case in the court did not involve any substantial question of law. The
proviso to the section acknowledges the powers of the High Court to hear the appeal on a
substantial point of law, though not formulated by it with the object of ensuring that no
injustice is done to the litigant where such a question was not formulated at the time of
admission either by mistake or by inadvertence.
9

. It has been noted time and again that without insisting for the statement of such a
substantial question of law in the memorandum of appeal and formulating the same at the
time of admission, the High Courts have been issuing notices and generally deciding the
second appeals without adhering to the procedure prescribed under Section 100 of the
Code. It has further been found in a number of cases that no efforts are made to
distinguish between a question of law and a substantial question of law. In exercise of the
powers under this section in several cases, the findings of fact of the first appellate court
arc found to have been disturbed. It has to be kept in mind that the right of Para 6 of AIR

@page-SC1752
appeal is neither a natural nor an inherent right attached to the litigation. Being a
substantive statutory right, it has to be regulated in accordance with law in force at the
relevant time. The conditions mentioned in the section must be strictly fulfilled before a
second appeal can be maintained and no court has the power to add or to enlarge those
grounds. The second appeal cannot be decided on merely equitable grounds. The
concurrent findings of facts will not be disturbed by the High Court in exercise of the
powers under this section. Further, a substantial question of law has to be distinguished
from a substantial question of fact. This Court in Sir Chunilal V. Mehta and Sons Ltd. v.
Century Spg. and Mfg. Co. Ltd. (AIR 1962 SC 1314) held that :
"The proper test for determining whether a question of law raised in the case is
substantial would, in our opinion, be whether it is of general public importance or
whether it directly and substantially affects the rights of the parties and if so whether it is
either an open question in the sense that it is not finally settled by this Court or by the
Privy Council or by the Federal Court or is not free from difficulty or calls for discussion
of alternative views. If the question is settled by the highest court or the general
principles to be applied in determining the question are well settled and there is a mere
question of applying those principles or that the plea raised is palpably absurd the
question would not be a substantial question of law."
10. It is not within the domain of the High Court to investigate the grounds on which the
findings were arrived at, by the last court of fact, being the first appellate court. It is true
that the lower appellate court should not ordinarily reject witnesses accepted by the trial
court in respect of credibility but even where it has rejected the witnesses accepted by the
trial court, the same is no ground for interference in Second Appeal when it is found that
the appellate court has given satisfactory reasons for doing so. In a case where from a
given set of circumstances two inferences of fact are possible, one drawn by the lower
appellate court will not be interfered by the High Court in Second Appeal. Adopting any
other approach is not permissible. The High Court will, however, interfere where it is
found that the conclusions drawn by the lower appellate court were erroneous being
contrary to the mandatory provisions of law applicable or its settled position on the basis
of pronouncements made by the Apex Court, or was based upon inadmissible evidence or
arrived at by ignoring material evidence.
11

. The question of law raised will not be considered as a substantial question of law, if it
stands already decided by a larger Bench of the High Court concerned or by the Privy
Council or by the Federal Court or by the Supreme Court. Where the facts required for a
point of law have not been pleaded, a litigant should not be allowed to raise that question
as a substantial question of law in Second Appeal. Mere appreciation of facts, the
documentary evidence or the meaning of entries and the contents of the documents
cannot be held to be raising a substantial question of law. But where it is found that the
first appellate court has assumed jurisdiction which did not vest in it, the same can be
adjudicated in the Second Appeal, treating it as a substantial question of law. Where the
first appellate court is shown to have exercised its discretion in a judicial manner, it
cannot be termed to be an error either of law or of procedure requiring interference in
Second Appeal. This Court in Reserve Bank of India v. Ramkrishna Govind Morey (1976
(1) SCC 803) held that whether the trial court should not have exercised its jurisdiction
differently is not a question of law justifying interference. ([See : Kondiba Dogadu
Kadam v. Savitribai Sopan Gujar and others (1999 (3) SCC 722)]. AIR 1976 SC 830
1999 AIR SCW 2240

12. The phrase "substantial question of law", as occurring in the amended Section 100 is
not defined in the Code. The word "substantial", as qualifying "question of law", means
of having substance, essential, real, of sound worth, important or considerable. It is to be
understood as something in contradistinction with technical, of no substance or
consequence, or academic merely. However, it is clear that the legislature has chosen not
to qualify the scope of "substantial question of law" by suffixing the words "of general
importance" as has been done in many other provisions such as Article 133(1)(a) of the
Constitution. The substantial question of law on which a Second Appeal shall be heard
need not necessarily be a substantial question of law of general importance. In Guran
Ditta v. T. Ram Ditta (AIR 1928 PC 172), the phrase 'substantial question
@page-SC1753
of law' as it was employed in the last clause of the then existing Section 100 (since
omitted by the Amendment Act, 1973) came up for consideration and their Lordships
held that it did not mean a substantial question of general importance but a substantial
question of law which was involved in the case. In Sri Chunilal's case (supra), the
Constitution Bench expressed agreement with the following view taken by a Full Bench
of the Madras High Court in Rimmalapudi Subba Rao v. Noony Veeraju (AIR 1951 Mad
969) :
"When a question of law is fairly arguable, where there is room for difference of opinion
on it or where the Court thought it necessary to deal with that question at some length and
discuss alternative views, then the question would be a substantial question of law. On the
other hand if the question was practically covered by the decision of the highest court or
if the general principles to be applied in determining the question are well settled and the
only question was of applying those principles to the particular facts of the case it would
not be a substantial question of law."
13

. This Court laid down the following test as proper test, for determining whether a
question of law raised in the ease is substantial as quoted in Sir Chunilal's case (supra).
AIR 1962 SC 1314

14. In Dy. Commnr., Hardoi v. Rama Krishna Narain (AIR 1953 SC 521) also it was held
that a question of law of importance to the parties was a substantial question of law
entitling the appellant to a certificate under (the then) Section 100 of the CPC.
15

. To be "substantial" a question of law must be debatable, not previously settled by law of


the land or a binding precedent, and must have a material bearing on the decision of the
case, if answered either way, insofar as the rights of the parties before it are concerned.
To be a question of law "involving in the case" there must be first a foundation for it laid
in the pleadings and the question should emerge from the sustainable findings of fact
arrived at by court of facts and it must be necessary to decide that question of law for a
just and proper decision of the case. An entirely new point raised for the first time before
the High Court is not a question involved in the case unless it goes to the root of the
matter. It will, therefore, depend on the facts and circumstance of each case whether a
question of law is a substantial one and involved in the case, or not; the paramount
overall consideration being the need for striking a judicious balance between the
indispensable obligation to do justice at all stages and impelling necessity of avoiding
prolongation in the life of any lis. (See : Santosh Hazari v. Purushottam Tiwari (deceased)
by L.Rs. [(2001) 3 SCC 179]. 2001 AIR SCW 723

16. The principles relating to Section 100, relevant for this case, may be summarized thus
:-
(i) An inference of fact from the recitals or contents of a document is a question of fact.
But the legal effect of the terms of a document is a question of law. Construction of a
document involving the application of any principle of law, is also a question of law.
Therefore, when there is misconstruction of a document or wrong application of a
principle of law in construing a document, it gives rise to a question of law.
(ii) The High Court should be satisfied that the case involves a substantial question of
law, and not a mere question of law. A question of law having a material bearing on the
decision of the case (that is, a question, answer to which affects the rights of parties to the
suit) will be a substantial question of law, if it is not covered by any specific provisions of
law or settled legal principle emerging from binding precedents, and, involves a
debatable legal issue. A substantial question of law will also arise in a contrary situation,
where the legal position is clear, either on account of express provisions of law or binding
precedents, but the court below has decided the matter, either ignoring or acting contrary
to such legal principle. In the second type of cases, the substantial question of law arises
not because the law is still debatable, but because the decision rendered on a material
question, violates the settled position of law.
17. The general rule is that High Court will not interfere with concurrent findings of the
Courts below. But it is not an absolute rule. Some of the well recognized exceptions are
where (i) the courts below have ignored material evidence or acted on no evidence; (ii)
the courts have drawn wrong inferences from proved facts by applying the law
erroneously; or (iii) the courts have wrongly cast the burden of proof. When we refer to
'decision based on no evidence', it not only refers to cases where there is a total
@page-SC1754
dearth of evidence, but also refers to any case, where the evidence, taken as a whole, is
not reasonably capable of supporting the finding.
18. In view of the aforesaid position, we set aside the impugned judgment of the High
Court and remit the matter to it for fresh consideration. The Second Appeal can be only
maintained after formulating substantial question of law, if any, and not otherwise. We
make it clear we have not expressed any opinion on the question as to whether any
substantial question of law is involved or not.
19. The appeal is allowed to the aforesaid extent without any order as to costs.
Order accordingly.
AIR 2008 SUPREME COURT 1754 "M. Bala Krishna Reddy v. Director, CBI, New
Delhi"
(From : Madhya Pradesh)
Coram : 2 C. K. THAKKER AND DALVEER BHANDARI, JJ.
Criminal Appeal No.491 of 2008 (arising out of SLP (Cri.) No.1125 of 2007), D/- 14 -3
-2008.
M. Bala Krishna Reddy v. Director, CBI, New Delhi.
(A) Delhi Special Police Establishment Act (25 of 1946), S.5 - POLICE OFFICERS -
APPLICABILITY OF AN ACT - PUBLIC SERVICE COMMISSION -
INVESTIGATION - Applicability of Act - Appellant, alleged to have used unfair means
in examination conducted by Union Public Service Commission (UPSC) at centre in
State of Madhya Pradesh - Investigation - Fact that Head Office of UPSC is located at
New Delhi - And appellant is employee of Central Government - Do not confer
jurisdiction on CBI to invoke provisions of the Act. (Para 11)
(B) Delhi Special Police Establishment Act (25 of 1946), S.6 - POLICE OFFICERS -
CBI - Prosecution by CBI - Consent by State Government - Grant of - Mode, method or
manner - Not provided under Act - It depends on facts of each case - Letter by Deputy
Secretary of State Government to Secretary of Government of India, Ministry of Home
Affairs giving consent for exercise of power and jurisdiction in State - Is consent as
envisaged by S.6.
It cannot be said that consent by State Government for prosecution by CBI can never be
accorded except by issuing a notification. Section 3 of the Act refers to 'notification' and
requires the Central Government to issue notification specifying offences or class of
offences to be investigated by Special Police Establishment. Section 5 used the term
'order' and enables the Central Government to extend powers and jurisdiction of Special
Police Establishment to other areas not covered by the Act. Section 6 which speaks of
consent of State Government for the exercise of powers and jurisdiction of the Special
Establishment neither refers to 'notification' nor 'order'. It merely requires consent of the
State Government for the application of the Delhi Act. Parliament, advisedly and
deliberately did not specify the mode, method or manner for granting consent though in
two preceding sections such mode was provided. If it intended that such consent should
be in a particular form, it would certainly have provided the form as it was aware of
different forms of exercise of power. It, therefore, depends on the facts of each case
whether the consent required by S. 6 of the Delhi Act has or has not been given by the
State Government and no rule of universal application can be laid down.
In the instant case the letter written by the Deputy Secretary to State Government
mentioned that the 'State Government had no objection to the members of the Delhi State
Police Establishment exercising powers and jurisdiction within this State'. In the facts and
circumstances it cannot be said the State Government has not given consent as envisaged
by S. 6. Thus prosecution instituted by CBI on that basis against the appellant cannot be
said to be without jurisdiction. (Paras 18, 72)
Cases Referred : Chronological Paras
2006 AIR SCW 3990 : AIR 2006 SC 2872 : 2006 Cri LJ 4050 (Disting., Pnt. B) 66, 68,
70
2003 AIR SCW 1848 : AIR 2003 SC 1405 (Ref.) 53, 54, 65
(1996) 2 SCC 26 (Ref.) 52, 65
AIR 1987 SC 1554 : 1987 Cri LJ 1860 (Ref.) 63, 65
AIR 1970 SC 679 : 1970 Lab IC 568 (Ref.) 51
AIR 1964 SC 1823 (Ref.) 48, 56, 65
AIR 1963 SC 395 (Disting, Pnt. B) 54, 56, 57, 64, 65
AIR 1961 SC 493 (Ref.) 54, 63
AIR 1961 SC 1381 (Ref.) 40
AIR 1961 SC 1762 (Ref.) 41, 43, 47, 52
AIR 1955 SC 160 (Ref.) 37, 39
@page-SC1755

AIR 1952 SC 181 : 1952 Cri LJ 955 (Ref.) 29, 39


AIR 1952 SC 317 : 1952 Cri LJ 1269 (Ref.) 35
AIR 1952 SC 350 (Ref.) 27, 28
AIR 1947 FC 38 : 1947 (48) Cri LJ 886 31
Dr. Rajiv Dhawan, Sr. Advocate, D. Rama Krishna Reddy and Mrs. D. Bharathi Reddy,
for Appellant; A Sharan, ASG, B.B. Singh, Amit Anand Tiwari P. Parmeswaran, for
Respondent.
Judgement
1. C. K. THAKKER, J. :-Leave granted.
2. The present appeal is filed against an order passed by Special Magistrate, CBI, Indore,
Madhya Pradesh on December 17, 2002 in Criminal Case No. 1155 of 2002 and
confirmed by the High Court of Madhya Pradesh (Indore Bench) on January 2, 2007 in
Criminal Revision No. 176 of 2003.
3. Briefly stated the facts of the case are that the appellant herein appeared in the
examination conducted by the Union Public Service Commission ('UPSC' for short) in
the year 1996 at Hamidiya Arts and Commerce College, Bhopal on November 1, 1996. It
was alleged that the appellant was found to be in possession of pre-written answer sheets
which were similar, if not identical, to the answer sheets supplied by the Examination
Board. The appellant was taken out of the hall and a statement was recorded in which he
confessed to have pre-written answer sheets with him. The matter was then reported to
UPSC Head Office at New Delhi. A preliminary inquiry was instituted and on being
prima facie satisfied about the allegations levelled, the Secretary, UPSC, lodged a
Criminal Case against the appellant for offences punishable under Sections 420, 471, 474,
467, 468 and 417 read with Section 511 of the Indian Penal Code, 1860 ('IPC' for short).
A charge-sheet was filed in the Court of Special Magistrate, Central Bureau of
Investigation ('CBI' for short), Indore.
4. The appellant raised a preliminary objection contending that the alleged offences had
been committed at Bhopal in the State of Madhya Pradesh and CBI had no power,
authority or jurisdiction to institute criminal proceedings. It was also contended that
before initiating proceedings under the Delhi Special Police Establishment Act, 1946
(hereinafter referred to as 'the Delhi Act'), consent of the State Government is required.
No such consent had been given by the State of Madhya Pradesh and the proceedings
initiated against the appellant by CBI were without jurisdiction.
5. The learned Magistrate, by an order dated December 17, 2002 rejected the preliminary
objection. Being aggrieved by the said order, the appellant preferred Revision under
Section 397 of the Code of Criminal Procedure, 1973 in the High Court of Madhya
Pradesh (Indore Bench), and as stated above, the High Court dismissed the Revision
Petition. The said order is challenged by the appellant by filing the present appeal.
6. On March 8, 2007, notice was issued by this Court. On August 6, 2007, the Registry
was directed to place the matter for final hearing. That is how the matter has been placed
before us.
7. We have heard learned counsel for the parties.
8. The learned counsel for the appellant raised several contentions. It was submitted that
the High Court was wrong in holding that the proceedings against the appellant could
have been initiated by CBI. It was contended that the direction issued by the High Court
was ex facie erroneous. When alleged offence was committed by the appellant in Bhopal
in the State of Madhya Pradesh, Police Authorities of the State alone could have initiated
proceedings against the accused. It was also submitted that before invoking the
provisions of the Delhi Act, consent of the State Government is mandatory and a
condition precedent for the exercise of power. The provision as to consent of the State
Government must be complied with in letter and spirit and such consent should be in
proper form as required by law. Since the consent required under the Act is of the 'State
Government', the prerequisites of Article 166 of the Constitution must be observed. If the
procedure laid down in the said Article is not followed, the so-called consent has no
meaning. Such consent cannot be said to be legal, valid and in consonance with law and
CBI does not get jurisdiction in the matter. It was also submitted that the High Court was
wholly wrong in upholding the contention of CBI that it could have initiated prosecution
since the alleged offence had been committed in conduct of UPSC Examination which
had been conducted by its Delhi office which is the Head Quarter of UPSC and, hence,
the Delhi Act was applicable. The High Court was again
@page-SC1756
wrong in holding that since the appellant Was selected in Indian Forest Services
Examination conducted by UPSC and he was in Indian Forest Services since 1993 and
was an Officer of Central Government, the Delhi Act would apply for cognizance of
offences committed by him as a Central Government employee and CBI had power to
prosecute him. The High Court, according to the learned counsel, was not right in holding
that the letter dated February 5, 1957 by the Deputy Secretary to the Government of
Madhya Pradesh to the Secretary to the Government of India, Ministry of Home Affairs
could be termed and treated as 'consent within the meaning of Section 6 of the Delhi Act.
It was, therefore, submitted that the appeal deserves to be allowed by setting aside the
orders passed by the Courts below and by quashing the proceedings initiated by CBI
against the appellant.
9. The learned counsel for the respondents, on the other hand, supported the order passed
by the trial Court and confirmed by the Revisional Court. It was submitted that the High
Court had considered the order dated February 5, 1957 in its proper perspective and held
that the State of Madhya Pradesh had given consent as required by law (Section 6 of the
Delhi Act) and prosecution by CBI against the appellant under the Delhi Act cannot be
said to be without Jurisdiction.
10. We have given anxious consideration to the rival submissions of the learned counsel
of both the sides. We have also examined the relevant provisions of the Delhi Act, Article
166 of the Constitution and case law cited by both the parties and we are of the view that
by rejecting the preliminary objection raised by the appellant, the Courts below have not
committed any illegality or error of law and the appeal deserves to be dismissed.
11. At the outset, we must frankly admit that the two factors weighed with the High
Court, namely, (i) the Head Office of the UPSC is located at New Delhi; and (ii) the
appellant is an employee of Central Government and on those grounds, the Delhi Act
would be applicable have not impressed us. The said grounds, in our opinion, do not
confer jurisdiction on CBI to invoke the Delhi Act. The main ground, therefore, which
remains to be considered is whether 'consent' as envisaged by Section 6 of the Delhi Act
has been given by the State Government of Madhya Pradesh to the Central Government
so as to enable the latter to invoke the provisions of the Delhi Act. For the said purpose, it
is necessary to bear in mind the relevant provisions of the Delhi Act.
12. As the Preamble of the Act states, it is an Act to make provision for the constitution of
a Special Police Force in Delhi for the investigation of certain offences in the Union
Territories and for the extension to other areas of the powers and jurisdiction of the
members of the said force in regard to the investigation of the said offences. Section 1
declares that the Act extends to the whole of India. Section 2 provides for constitution
and powers of Special Police Establishment. Section 3 enables the Central Government to
investigate offences by Special Police Establishment. It reads thus :
3. Offences to be investigated by Special Police Establishment :- The Central
Government may, by notification in the Official Gazette, specify the offences or classes
of offences which are to be investigated by the Delhi Special Police Establishment.
13. Section 4 covers superintendence and administration of Special Police Establishment,
Section 5 empowers the Central Government to extend the powers and jurisdiction of
Special Police Establishment to States. The said section is also relevant and may be
reproduced;
5. Extension of powers and Jurisdiction of Special Police Establishment to other areas :-
(1) The Central Government may by order extend to any area including railway areas in a
State not being a Union Territory, the powers and jurisdiction of members of the Delhi
Special Police Establishment for the investigation of any offences or classes of offences
specified in a notification under Section 3.
(2) When by order under sub-section (1) the powers and jurisdiction of members of the
said Police Establishment are extended to any such area, a member thereof may, subject
to any order which the Central Government may make in this behalf, discharge the
functions of a police officer in the area and shall, while so discharging such functions, be
deemed to be a member of the police force of that area and be vested with the powers,
functions and privileges and be subject to the liabilities of a police officer belonging to
that police force.
@page-SC1757
(3) Where any such order under sub-section (1) is made in relation to any area, then,
without prejudice to the provisions of sub-section (2), any member of the Delhi Special
Police Establishment of or above the rank of Sub-Inspector may, subject to any orders
which the Central Government may make in this behalf, exercise the powers of the
officer-in-charge of a police station in that area and when so exercising such powers shall
be deemed to be an officer in-charge of a police station discharging the functions of such
an officer within the limits of his station.
14. Section 6 is very important which requires consent of State Government for
exercising powers and jurisdiction under the Act by Special Police Establishment to any
area in a State not being Union Territory or Railway. The said section, therefore, may be
quoted in extenso;
6. Consent of the State Government to exercise powers and jurisdiction :- Nothing
contained in Section 5 shall be deemed to enable any member of the Delhi Special Police
Establishment to exercise powers and jurisdiction in any area in a State, not being a
Union Territory or railway area without the consent of the Government of that State.
15. Plain reading of the above provisions goes to show that for exercise of jurisdiction by
the CBI in a State (other than Union Territory or Railway Area), consent of the State
Government is necessary. In other words, before the provisions of the Delhi Act are
invoked to exercise power and jurisdiction by Special Police Establishment in any State,
the following conditions must be fulfilled;
(i) A notification must be issued by the Central Government specifying the offences to be
investigated by Delhi Special Police Establishment (Section 3);
(ii) An order must be passed by the Central Government extending the powers and
jurisdiction of Delhi Special Police Establishment to any State in respect of the offences
specified under Section 3 (Section 5); and
(iii) Consent of the State Government must be obtained for the exercise of powers by
Delhi Special Police Establishment in the State (Section 6).
16. Now, so far as the first two conditions are concerned, they have been complied with
and the requisite material is on record of the case. A notification required to be issued by
the Central Government under Section 3 of the Delhi Act specifying offences under the
Indian Penal Code (IPC) as also under several other Acts has been issued on September 7,
1989 and has been placed by the respondent on record along with the affidavit-in-reply
filed by M.C. Sahni, Superintendent of Police, CBI, Bhopal. The said notification covers
inter alia, the offences punishable under Sections 417, 418, 420, 467, 468, 471, 474, 511,
IPC. Likewise, the Central Govenrment passed an order on February 18, 1963 as
contemplated by Section 5 of the Delhi Act extending the powers and jurisdiction of the
members of Special Police Establishment to various States including the State of Madhya
Pradesh for the investigation of offences specified in the Schedule annexed to the said
Schedule. The Schedule specifies various offences under IPC including the offences
referred to hereinabove, offences under the Prevention of Corruption Act and various
other enactments. Thus, Sections 3 and 5 of the Delhi Act have been complied with.
17. The question, therefore, which has to be considered is whether the consent
contemplated by Section 6 of the Delhi Act has been given by the State Government.
According to the appellant, no such consent has been given by the State of Madhya
Pradesh. The counter argument on behalf of the respondent is that such consent has been
given by the State Government which is reflected in the order dated February 5, 1957.
18. A copy of the letter addressed by the Deputy Secretary to the Government of Madhya
Pradesh to the Secretary, Ministry of Home Affairs, Government of India, New Delhi has
been placed on record by the appellant, which reads thus;
"To
The Secretary,
Ministry of Home Affairs,
Govt. of India,
New Delhi.
Bhopal, dated 5th February, 1957
Sub. : Consent of the State Government to the functioning of the Special Police
Establishment in the State.
Sir,
In continuation of this department letter No. 20/12(II)/Home Police dated the 29th
@page-SC1758
December, 1956 on the above subject, I am directed to state that this State Government
have no objection to the members of the Delhi State Police Establishment exercising
powers and jurisdiction within this State.
Yours faithfully,
Sd/-
P. N. MISHRA
DEPUTY SECRETARY TO THE GOVT."
19. The learned counsel for the appellant contended that the above letter which
purportedly records the consent of the State Government to the exercise of powers and
jurisdiction of the Delhi State Police Establishment to the State of Madhya Pradesh is
merely a letter and does not meet with the requirements of Section 6 of the Delhi Act.
The so-called 'consent' reflected in the letter, hence, cannot be said to be 'consent'
accorded by the State Government under the statute. In other words, the contention is that
the letter is in the nature of 'inter-Departmental communication' by the Deputy Secretary
to the State of Madhya Pradesh to the Secretary to Central Government and cannot be
regarded as consent under Section 6 of the Act.
20. In the counter-affidavit filed by the Superintendent of Police, CBI, Bhopal, the
deponent has stated that the consent as required by Section 6 of the Delhi Act had been
given by the State of Madhya Pradesh to the Central Government. It was also stated that
the copy of the order, dated February 5, 1957 annexed to the Special Leave Petition by
the petitioner (appellant herein) was not full and complete and did not contain
file/reference number, name of the department and the authority from whom it was
issued. The order, however, contains all such information. The deponent has annexed the
order as one of the Annexures (Annexure IV) to his reply and the same reads thus :
"SECRET
TRUE COPY
No. G97/II-Home/Police
Government of Madhya Pradesh
Home (Police) Department
From,
Shri R.N. Mishra, IAS
Deputy Secretary to Govt.
To,
The Secretary to the Govt. of India,
Ministry of Home Affairs,
NEW DELHI.
Bhopal, dated 5th February, 1957
Subject : Consent of the State Government to the functioning of the Special Police
Establishment in the State.
Sir,
In continuation of this department letter No. 20/12(II)/Home Police, dated the 29th
December, 1956 on the above subject, I am directed to state that this State Government
have no objection to the members of the Delhi Special Police Establishment exercising
powers and jurisdiction within this State.
Yours faithfully,
Sd/-
R. N. MISHRA
Deputy Secretary to the Govt.
ATTESTED
(T. C. RAMANUJACHARI)
DEPUTY SECRETARY TO THE GOVERNMENT OF INDIA"
(Emphasis supplied)
21. The learned counsel for the appellant then submitted that all executive actions of the
Government of a State must be taken in accordance with and as per the procedure laid
down in Article 166 of the Constitution. Article 166 of the Constitution on which strong
reliance has been placed by the appellant reads thus :
166. Conduct of business of the Government of a State.-
(1) All executive action of the Government of a State shall be expressed to be taken in the
name of the Governor.
(2) Orders and other instruments made and executed in the name of the Governor shall be
authenticated in such manner as may be specified in rules to be made by the Governor,
and the validity of an order on instruction which is so authenticated shall not be called in
question on the ground that it is not an order or instrument made or executed by the
Governor.
(3) The Governor shall make rules for the more convenient transaction of the business of
the Government of the State, and for the allocation among Ministers of the said business
in so far as it is not business with respect to which the Governor is by or under this
Constitution required to act in his discretion.
@page-SC1759
22. Bare reading of Clause (1) of Article 166 of the Constitution makes it clear that all
executive actions of the Government of a State should be expressed to be taken in the
name of the Governor. Clause (2) provides for the authentication of the orders and other
instructions made and executed in the name of the Governor. Clause (3) enables the
Governor to make rules for the more convenient transaction of the Government of the
State and for the allocation of business among the Ministers, usually known as 'Rules of
Business' or 'Business Rules'.
23. The learned counsel for the appellant contended that Article 166 of the Constitution
deals with 'Conduct of Government Business' and mandates that such business should be
performed in the manner laid down in Article 166. To put it differently, according to the
learned counsel, the provisions of Article 166 are mandatory and before any action is
taken, they are required to be strictly complied with. If the procedure prescribed by
Article 166 is not followed, the business cannot be said to be a 'business of the
Government of the State' and has no effect whatsoever.
24. The learned counsel for the respondents, on the other hand, submitted that the
provisions of Article 166 are directory and even if there is no strict compliance, the action
cannot be held illegal or invalid and the same can be upheld provided there is 'substantial'
compliance.
25. Now, let us see how the provision (Article 166 of the Constitution) has been
interpreted by this Court.
26. Article 166 came up for interpretation before this Court immediately after the
Constitution came into force and continued to come up for consideration from time to
time. Let us examine few leading cases wherein this Court had an occasion to deal with
the said provision.
27

. In Ujagar Singh and Ann v. State of Punjab, 1952 SCR 756, an order of detention was
made against the petitioner under the Preventive Detention Act, 1950. The detenu
challenged it in this Court by invoking Article 32 of the Constitution. One of the
contentions raised on his behalf was that the grounds of detention did not purport to state
that the authority making the order was the Governor of the State. AIR 1952 SC 350

28
. The Constitution Bench of this Court, however, negatived the contention. Interpreting
Article 166 of the Constitution, Chandrasekhara Aiyar, J. stated : AIR 1952 SC 350,
Para 7

"Under section 3 of the Preventive Detention Act, the authority to make the order is the
State Government. Section 166 (1) of the Constitution provides that all executive action
of the Government of a State shall be expressed to be taken in the name of the Governor.
The orders of detention expressly state that the Governor of Punjab was satisfied of their
necessity and that they were made by his order. The orders are signed no doubt by the
Home Secretary, but this is no defect. The communication of the grounds need not be
made directly by the authority making the order. Section 7 does not require this. The
communication may be through recognized channels prescribed by the administrative
rules of business."
(Emphasis supplied)
29

. In Dattatreya Moreshwar Pangarkar v. State of Bombay and Ors., 1952 SCR 612, the
petitioner was detained by an order passed by the District Magistrate, Surat in exercise of
powers conferred on him by the Preventive Detention Act, 1950. The petitioner moved
this Court by filing a writ petition under Article 32 of the Constitution challenging the
order of detention. One of the contentions raised by the petitioner in this Court was that
the order of confirmation of detention by the State Government was not in proper form
inasmuch as it was not made in the name of Governor as required by Clause (1) of Article
166 of the Constitution. AIR 1952 SC 181

30. The order passed by the Government read as under :


"Confidential letter
No. B. D. 11/1042-D (11) Home Department (Political) Bombay Castle, 28th April, 1951.
To,
The District Magistrate,
Surat.
Subject :- Preventive Detention Act, 1950 - Review of detention orders issued under the -
Reference your letter No. Pol. 1187/P, dated the 23rd February, 1951, on the subject noted
above.
2. In accordance with section 9 of the Preventive Detention Act, 1950, the case of
@page-SC1760
detenu Shri Dattatreya Moreshwar Pangarkar was placed before the Advisory Board
which has reported that there is sufficient cause for his detention. Government is
accordingly pleased to confirm the detention order issued against the detenu. Please
inform the detenu accordingly and report compliance.
3. The case papers of the detenu are returned herewith.
Sd/-
G. K. Kharkar,
for Secretary to the
Government of Bombay,
Home Department".
(Emphasis supplied)
31. It was urged on behalf of the detenu that the order of confirmation extracted
hereinabove had not been made in proper legal form and hence could not be said to be in
consonance with Article 166(1) i.e. in the name of the Governor. Learned Attorney
General, on the other hand, submitted that the omission to make and authenticate an
executive decision in the form mentioned in Article 166(1) of the Constitution did not
make the decision Illegal. It was argued by the Attorney General that there is distinction
between the taking of an executive decision and giving formal expression to the decision
so taken. It was stated that usually executive decision is taken on the office files by way
of notings or endorsements made by the Minister in charge and if every executive
decision has to be given a formal expression, the whole governmental machinery would
come to a standstill.
32

. Accepting the argument, negativing the contention of the detenu, holding the provision
directory and relying on a decision of the Federal Court in J. K. Gas Plant Manufacturing
Co. (Rampur) Ltd. and Ors. v. King Emperor, 1947 FCR 141, S.R, Das. J, stated : AIR
1947 FC 38

"In my opinion, this contention of the learned Attorney-General must prevail. It is well
settled that generally speaking the provisions statute creating public duties are directory
and those conferring private rights are imperative. When the provisions of statute relate to
the performance of a public duty and the case is such that to hold null and void acts done
in neglect of this duty would work serious general inconvenience or injustice to persons
who have no control over those entrusted with the duty and at the same time would not
promote the main object of the legislature, it has been the practice of the Courts to hold
such provisions to be directory only, the neglect of them not affecting the validity of the
acts done."
(Emphasis supplied)
33. His Lordship proceeded to say : "Strict compliance with the requirements of Article
166 gives an immunity to the order in that it cannot be challenged on the ground that it is
not an order made by the Governor. If. therefore, the requirements of that Article are not
complied with, the resulting immunity cannot be claimed by the State. This, however,
does not vitiate the order itself. The position, therefore, is that while the Preventive
Detention Act requires an executive decision, call it an order or an executive action for
the conformation of an order of detention under Section 11(1) that Act does not itself
prescribe any particular form of expression of that executive decision. Article 166 directs
all executive action to be expressed and authenticated in the manner therein laid down but
an omission to comply with those provisions does not render the executive action a
nullity. Therefore, all that the procedure established by laws requires is that the
appropriate Government must take a decision as to whether the detention order should be
confirmed or not under Section 11(1). That such a decision has been in fact taken by the
appropriate Government is amply proved on the record. Therefore, there has been, in the
circumstances of this case, no breach of the procedure established by law and the present
detention of the petitioner cannot be called in question."
(Emphasis supplied)
34. Agreeing with Justice Das, Mukherjea, J. said :
"The other contention raised by the learned Attorney-General involves consideration of
the question as to whether the provision of Article 186(1) of the Constitution is
imperative in the sense that non-compliance with it would nullify or invalidate an
executive action. The clause does not undoubtedly lay down how an executive action of
the Government of a State is to be performed; it only prescribes the mode in which such
act is to be expressed. The manner of expression is ordinarily a matter of form, but
whether a rigid compliance with
@page-SC1761
a form is essential to the validity of an act or not depends upon the intention of the
legislature. Various tests have been formulated in various judicial decisions for the
purpose of determining whether a mandatory enactment shall be considered directory
only or obligatory with an implied nullification for disobedience. It is unnecessary for our
present purpose to discuss these matters in detail.
In my opinion, Article 166 of the Constitution which purports to lay down the procedure
for regulating business transacted by the Government of a State should be read as a
whole. Under clause (3) the Governor is to make rules for the more convenient
transaction of such business and for allocation of the same among the Ministers in so far
as it does not relate to matters in regard to which the Governor is required to act in his
discretion. It is in accordance with these rules that business has to be transacted. But
whatever executive action is to be taken by way of an order or Instrument, It shall be
expressed to be taken in the name of the Governor in whom the executive power of the
State is vested and it shall further be authenticated In the manner specified in the rules
framed by the Governor. Clauses (1) and (2) of Article 166 in my opinion are to be read
together. Clause (1) cannot be taken separately as an Independent mandatory provision
detached from the provision of clause (2). While clause (1) relates to the mode of
expression of an executive order or instrument, clause (2) lays down the way in which
such order is to be authenticated; and when both these forms are complied with, an order
or instrument would be immune from challenge in a court of law on the ground that it has
not been made or executed by the Governor of the State".
35

. Again, in State of Bombay v. Purushottam Jog Naik, 1952 SCR 674, a similar view has
been taken by one more Constitution Bench of this Court, There also, the Court was
concerned with an order of detention which was confirmed by the State. There also, there
was no mention that the 'Governor' of Bombay was pleased to take the action as required
by Clause (1) of Article 166 of the Constitution. The Constitution Bench clarified that it
did not wish to encourage laxity of expression, nor to suggest that ingenious experiments
regarding the permissible limits of departure from the language of a statute or of the
Constitution would be worthwhile, but the Court must look into the 'substance' of Article
166 and not the 'form' of order. AIR 1952 SC 317

36

. The Court stated : AIR 1952 SC 317, Para 11


"The short answer in this case is that the order under consideration is 'expressed' to be
made in the name of the Governor because it says 'By order of the Governor'. One of the
meanings of 'expressed' is to make known the opinions or the feelings of a particular
person and when a secretary to Government apprehends a man and tells him in the order
that this is being done under the orders of the Governor, he is in substance saying that he
is acting in the name of the Governor and, on his behalf, is making known to the detenu
the opinion and feelings and orders of the Governor. In our opinion, the Constitution does
not require a magic incantation whichcan only be expressed in a set formula of words.
What we have to see is whether the substance of the requirements is there".
(Emphasis supplied)
37

. It Is profitable to refer at this stage, to a decision of larger Bench of seven Judges of this
Court in P. Joseph John v. State of Travancore-Cochin, (1955) 1 SCR 1011. In Joseph
John, a civil serremoved from service after holding a departmental inquiry wherein the
charges levelled against him were proved. The order of removal was upheld by the High
Court. The delinquent approached this Court. One of the contentions raised by the
employee was that the show cause notice issued to him was not in consonance with the
provisions of Article 166 of the Constitution since it was not expressed to have been
made in the name of Raj Pramukh. The notice was issued on behalf of the Government
and was signed by the Chief Secretary of the United State of Travancore-Cochin who had
under the Rules of Business framed by Rajpramukh was in charge of the portfolio of
"Service and Appointments" at the Secretariat level in the State. AIR 1955 SC 160

38. The Court referred to Dattatreya Moreshwar, wherein clauses (1) and (2) of Article
166 were held to be directory and it was observed that non-compliance with them did not
result in the order being invalid. It was further held that in order to determine whether
there was compliance with those provisions all that was necessary to be seen was whether
there had been 'substantial
@page-SC1762
stantial compliance' of the provisions of the Article.
39

. Reiterating the law laid down in earlier case, (Dattatreya Moreshwar), the Court stated;
AIR 1952 SC 181

"In the present case there can be no manner of doubt that the notice signed by the Chief
Secretary of the State and expressed to be on behalf of the Government and giving
opportunity to the petitioner to show cause against the action proposed to be taken against
him was in substantial compliance with the provisions of the article. The petitioner
accepted this notice and in pursuance of it applied for further time to put in his defence.
He was twice granted this time". AIR 1955 SC 160, Para 8

(Emphasis supplied)
40
. In Swadeshi Cotton Mills Co. Ltd. v. State Industrial Tribunal, U.P. and Ors., (1962) 1
SCR 422, a Constitution Bench of this Court held that where certain conditions precedent
have to be satisfied before an authority may pass an order, it is not necessary that the
satisfaction of those conditions should be recited in the order itself unless the statute
specifically requires it. Though it is desirable that it should be so reflected, but even
where the recital is not there on the face of the order, the order will not become illegal or
void ab initio. Only a burden is thrown on the authority passing the order to satisfy the
Court by other means that conditions precedent were complied with. AIR 1961 SC
1381

41

. In Major E.G. Barsay v. State of Bombay, (1962) 2 SCR 195, the question was whether
statutory consent was required for every individual member of the Delhi Police
Establishment or a general consent was enough. In that case, the Home Department of the
Government of Bombay addressed a letter to the Government of India on August 13,
1949 which read thus : AIR 1961 SC 1762

"...I am directed to state that this Government re-affirms, with reference to Section 6 of
the Delhi Special Police Establishment Act, 1946, the consent given for an indefinite
period under its letter No. 5042/ 4-D, dated the 6th November, 1946 to the members of
the Delhi Special Police Establishment exercising powers and jurisdiction in the area of
the province of Bombay".
42. Though the Court was not directly deciding the question whether a letter could be
treated as valid consent, but whether separate consent was required for every individual
member of the Delhi Police Establishment or general consent was enough. The Court
nonetheless held the consent valid as general consent was all that was required by law.
Though it did not remark on the form in which such consent should be given, i.e. the
letter, was correct or not, the fact that it could find nothing wrong with the consent raises
a strong presumption in favour of the argument that a letter can be a means of granting
consent by the State Government under Section 6.
43

. Another important aspect of the case was construction of Article 77 of the Constitution.
In Major Barsay, the appellant was a public servant who was prosecuted for an offence
under the Prevention of Corruption Act, 1947. Section 6 of the said Act required sanction
of the Central Government. The sanction accorded by the Government read thus : AIR
1961 SC 1762

"Now, therefore, the Central Government doth hereby accord sanction under section 197
of the Criminal Procedure Code (Act V of 1898) and section 6(1) (a) of the Prevention of
Corruption Act, 1947 (II of 1947) to the initiation of proceedings to prosecute in a Court
of competent jurisdiction the said Major E. G. Barsay and Shri H. S. Kochhar in respect
of the aforesaid offences and other cognate offences punishable under other provisions of
law.
Sd.
M. Gopala Menon,
Deputy Secretary to the Govt.of India."
(Emphasis supplied)
44. The requisite sanction thus had been granted by the Central Government and was
signed by the Deputy Secretary to the Government of India in the Ministry of Home
Affairs. The contention of the appellant, however, was that the provisions of Article 77 of
the Constitution were not complied with.
45. Article 77 of the Constitution reads thus;
77. Conduct of business of the Government of India.(1) All executive action of the
Government of India shall be expressed to be taken in the name of the President.
(2) Orders and other instruments made and executed in the name of the President
@page-SC1763
shall be authenticated in such manner as may be specified in rules to be made by the
President, and the validity of an order or instrument which is so authenticated shall not be
called in question on the ground that it is not an order or instrument made or executed by
the President.
(3) The President shall make rules for the more onvenient transaction of the business of
the Government of India, and for the allocation among Ministers of the said business.
46. Article 77 relates to conduct of business of the Government of India and is similar to
Article 166 of the Constitution which relates to conduct of business of the Government of
a State. It was contended that there was non-compliance with Clause (1) of Article 77
inasmuch as the executive action of granting sanction was not expressed to have been
taken in the name of the President. The sanction was, therefore, void.
47. The Court noted that Article 77 was corresponding to Article 166 which was subject
to judicial scrutiny by the Court in various cases. Then referring to those cases and
rejecting the contention, the Court said;

"The foregoing decisions authoritatively settled the true interpretation of the provisions of
Art. 166 of the Constitution. Shortly stated, the legal position is this : Art. 166(1) is only
directory. Though an impugned order was not issued in strict compliance with the
provisions of Art. 166(1), it can be established by evidence aliunde that the order was
made by the appropriate authority. If an order is issued in the name of the Governor and
is duly authenticated in the manner prescribed in Cl.(2) of the said Article, there is an
irrebuttable presumption that the order or instrument is made or executed by the
Governor. Any non-compliance with the provisions of the said rule does not invalidate
the order, but it precludes the drawing of any such irrebuttable presumption. This does
not prevent any party from proving by other evidence that as a matter of fact the order
has been made by the appropriate authority. Art. 77 which relates to conduct of business
of the Government of Indiais couched in terms similar to those in Art. 166 and the same
principles must govern the interpretation of that provision". AIR 1961 SC 1762, Para 25

(Emphasis supplied)
48
. In R. Chitralekha and Anr. v. State of Mysore and Ors., (1964) 6 SCR 368, a
Constitution Bench of this Court again had an occasion to consider a letter signed by the
Under Secretary to the Government, Education Department of the State of Mysore to a
Selection Board communicating the decision of the Government to prescribe interviews
for admission into colleges. Validity of the said letter was challenged on the ground that it
did not conform to the requirements of Article 166 of the Constitution as it was not
expressed in the name of the Governor. AIR 1964 SC 1823

49. The letter sent by the Education Department to the Selection Committee reads thus;
"Sir,
Sub : Award of marks for the "interview" of the candidates seeking admission to
Engineering Colleges and Technical Institutions.
With reference to your letter No. AAS.4.ADW/63/2491, dated the 25th June, 1963, on the
subject mentioned above, I am directed to state that Government have decided that 25 per
cent of the maximum marks........
Yours faithfully,
Sd/- S. NARASAPPA,
Under Secretary to Government,
Education Department."
(Emphasis supplied)
50. Referring to earlier cases and holding the letter valid and the decision of the State
Government, the majority observed that though the letter did not conform to the
provisions of Article 166 of the Constitution, it ex facie stated that an order to the effect
mentioned therein was issued by the Government and there was substantial compliance
with the provisions of Article 166 of the Constitution.
51

. In State of Uttar Pradesh v. Om Prakash Gupta, (1969) 3 SCC 775, this Court observed
that it had been repeatedly held that provisions of Article 166 (1) and (2) were 'directory'
and 'substantial' compliance with those provisions was sufficient. In that case, the order
impugned was made in the name of the State Government but was signed by the Chief
Secretary. The order was held valid. AIR 1970 SC 679

52. In Gulabrao Keshavrao Patil and Ors. v. State of Gujarat and Ors., (1996) 2 SCC 26.
the question of interpretation of Article 166 of the Constitution came up for consideration
@page-SC1764
in a matter under the Land Acquisition Act, 1894. The Court considered previous cases
and said :

".........Article 166(1) and (2) expressly envisage authentication of all the executive
actions and shall be expressed to be taken in the name of the Governor and shall be
authenticated in such manner specified in the rules made by the Governor. Under Article
166(3), the Governor is authorised to make the rules for the more convenient transaction
of the business of the Government of the State, and for the allocation among Ministers of
the said business insofar as it is not business with respect to which the Governor is by or
under the Constitution required to act in his discretion. In other words, except in cases
when the Government in his individual discretion exercises his constitutional functions,
the other business of the Government is required to be conveniently transacted as per the
Business Rules made by Article 166(3) of the Constitution. If the action of the
Government and the order is duly authenticated as per Article 166(2) and the Business
Rule 12, it is conclusive and irrebuttable presumption arises that decision was duly taken
according to Rules. The letter of the Section Officer is not in conformity with Rule 12
and Article 166(1) and (2), though under Rule 13 he is one of the authorised officers to
communicate the decision of the Government. In Major E.G. Barsay v. State of Bombay
this Court held that if an order is issued in the name of the President and is duly
authenticated in the manner prescribed in Article 77(2), there is an irrebuttable
presumption that the order is made by the President. Whereby the order does not comply
with the provisions of Article 77(2), it is open to the party to question the validity of the
order on the ground that it was not an order made by the President and to prove that it
was not made by the Central Government. Where the evidence establishes that the Dy.
Secretary on behalf of the Central Government made the order a delegate, the order
cannot be questioned. Therefore, it is necessary to show whether decision of the
Government is according to Business Rules". AIR 1961 SC 1762

53

. In J.P. Bansal v. State of Rajasthan and Ann, (2003) 5 SCC 134, this Court held that no
particular formula of words were required by Clause (1) of Article 166 of the
Constitution. It is enough if the requirement is substantially complied with. 2003
AIR SCW 1848

54. Referring to several earlier decisions, this Court stated;

"Clause (1) requires that all executive action of the State Government shall have to be
taken in the name of the Governor. Further, there is no particular formula of
wordsrequired for compliance with Article 166(1). What the Court has to see is whether
the substance of its requirement has been complied with. A Constitution Bench in R.
Chitralekha v. State of Mysore held that the provisions of the article were only directory
and not mandatory in character and if they were not complied with, it could still be
established as a question of fact that the impugned order was issued in fact by the State
Government or the Governor. Clause (1) does not prescribe how an executive action of
the Government is to be performed; it only prescribes the mode under which such act is
to be expressed. While clause (1) (sic) in relation to the mode of expression, clause (2)
lays down the ways in which the order is to be authenticated. Whether there is any
government order in terms of Article 166, has to be adjudicated from the factual
background of each case. Strong reliance was placed by learned counsel for the appellant
on L.G. Chaudhari to contend that for all practicable purposes the decision of the Cabinet
has to be construed as a government order, because three of the decisions taken by the
Cabinet have been implemented. As noted above, learned counsel for the State took the
stand that neither in the writ petition nor before the High Court, the Cabinet decision
itself was produced. In fact, the Cabinet memorandum and the order of the Cabinet show
that no decision was taken to pay any compensation. In this connection reference is made
to the Cabinet memorandum dated 18-3-1993 and Decision 57 of 1999. It was further
submitted that even if it is conceded for the sake of argument that such decision was
taken, the same cannot be enforced by a writ petition. 2003 AIR SCW 1848, Paras 7
and 8
AIR 1964 SC 1823

We need not delve into the disputed question as to whether there was any Cabinet
decision, as it has not been established that there was any government order in terms of
Article 166 of the Constitution. The Constitution requires that action must be taken by the
authority concerned in the name of the Governor. It is not till this formality is AIR
1961 SC 493
AIR 1963 SC 395

@page-SC1765
observed that the action can be regarded as that of the State. Constitutionally speaking,
the Council of Ministers are advisers and as the Head of the State, the Governor is to act
with the aid or advice of the Council of Ministers. Therefore, till the advice is accepted
by the Governor, views of the Council of Ministers do not get crystallised into action of
the State. (See : State of Punjab v. Sodhi Sukhdev Singh and Bachhittar Singh v. State of
Punjab.) That being so, the first plea of the appellant is rejected".
(Emphasis supplied)
55. We must, however, closely refer to two decisions of this Court on which strong
reliance was placed by the learned counsel for the appellant.
56

. In Bachhittar Singh v. State of Punjab, (1962) 3 SCR 713, the Constitution Bench of this
Court held that before Article 166 of the Constitution is invoked, essential ingredients
laid down therein must be complied with. AIR 1964 SC 1823

57. In Bachhittar Singh, the appellant, who was serving as Assistant Consolidation
Officer in the State of Pepsu was dismissed from service after a departmental inquiry
wherein it was proved that he was not 'above board'. Against the said order, he preferred
an appeal to the State Government. He, however, submitted an advance copy to the
Revenue Minister of Pepsu. The Minister called for the record of the case immediately
and wrote on the file that instead of dismissal, he should be reverted to his original post
of Qanungo. On the next day, the State of Pepsu merged in the State of Punjab. It was the
case of the appellant that the remarks amounted to an order which was orally
communicated to him by the Revenue Minister.
58. After the merger, the file was put up before the Revenue Minister of Punjab who
remarked that the charges were serious and put up a note: "C.M. may kindly advise". The
Chief Minister opined that the order of dismissal should be maintained. The said order
was then communicated to the appellant who challenged it by filing a petition in the High
Court which was dismissed. The appellant approached this Court.
59. It was, inter alia, contended by the appellant that the order passed by the Revenue
Minister of Pepsu reducing punishment from dismissal to reversion could not have been
reviewed by the successor Government. The record revealed that there was noting by the
Revenue Minister of Pepsu. Whether the noting could be said to be 'remarks' or 'order' but
it was not in dispute that it was never formally communicated to the appellant apart from
the fact that it was not expressed in the name of Governor. The case of the appellant
himself was that the 'order' was 'orally' communicated to him by the Revenue Minister.
60. The question before the Court was whether the 'noting' made by the Revenue Minister
could be said to be an 'order', and whether the provisions of Article 166 of the
Constitution could be said to have been complied with.
61. Dismissing the appeal and drawing distinction between the noting, remarks or opinion
expressed by a Minster on file and an order made by the Government, the Constitution
Bench stated;
"What we have now to consider is the effect of the note recorded by the Revenue
Minister of PEPSU upon the file. We will assume for the purpose of this case that it is an
order. Even so the question is whether it can be regarded as the order of the State
Government which alone, as admitted by the appellant, was competent to hear and decide
an appeal from the order of the Revenue Secretary. Art, 166(1) of the Constitution
requires that all executive action of the Government of a State shall be expressed in the
name of the Governor. Clause (2) of Art. 166 provides for the authentication of orders
and other instruments made and executed in the name of the Governor. Clause (3) of that
Article enables the Governor to make rules for the more convenient transaction of the
business of the Government and for the allocation among the Ministers of the said
business. What the appellant calls an order of the State Government is admittedly not
expressed to be in the name of the Governor. But with that point we shall deal later. What
we must first ascertain is whether the order of the Revenue Minister is an order of the
State Government i.e., of the Governor. In this connection we may refer to R. 25 of the
Rules of Business of the Government of PEPSU which reads thus :
"Except as otherwise provided by any other Rule, cases shall ordinarily be disposed of by
or under the authority of the Minister incharge who may by means of standing orders give
such directions as he
@page-SC1766
thinks fit for the disposal of cases in the Department. Copies of such standing orders shall
be sent to the Rajpramukh and the Chief Minister."
According to learned counsel for the appellant his appeal pertains to the department
which was in charge of the Revenue Minister and, therefore, he could deal with it. His
decision and order would according to him, be the decision and order of the State
Government. On behalf of the State reliance was, however, placed on R. 34 which
required certain classes of cases to be submitted to the Rajpramukh and the Chief
Minister before the issue of orders. But it was conceded during the course of the
argument that a case of the kind before us does not fall within that rule. No other
provision bearing on the point having been brought to our notice we would, therefore,
hold that the Revenue Minister could make an order on behalf of the State Government".
62. The Court proceeded to consider;
"The question, therefore, is whether he did in fact make such an order. Merely writing
something on the file does not amount to an order. Before something amounts to an order
of the State Government two things are necessary. The order has to be expressed in the
name of the Governor as required by clause (1) of Art. 166 and then it has to be
communicated. As already indicated, no formal order modifying the decision of the
Revenue Secretary was ever made. Until such an order is drawn up the State Government
cannot, in our opinion, be regarded as bound by what was stated in the file. As along as
the matter rested with him the Revenue Minister could well score out his remarks or
minutes on the file and write fresh ones".
(Emphasis supplied)
63. The Court concluded;
"The business of State is a complicated one and has necessarily to be conducted through
the agency of a large number of officials and authorities. The Constitution, therefore,
requires and so did the Rules of Business framed by the Rajpramukh of PEPSU provide,
that the action must be taken by the authority concerned in the name of the Rajpramukh.
It is not till this formality is observed that the action can be regarded as that of the State
or here, by the Rajpramukh. We may further observe that, constitutionally speaking, the
Minister is no more than an adviser and that the head of the State, the Governor or
Rajpramukh, is to act with the aid and advice of his Council of Ministers. Therefore, until
such advice is accepted by the Governor whatever the Minister or the Council of
Ministers may say in regard to a particular matter does not become the action of the State
until the advice of the Council of Ministers is accepted or deemed to be accepted by the
Head of the State. Indeed, it is possible that after expressing one opinion about a
particular matter at a particular stage a Minister or the Council of Ministers may express
quite a different opinion, one which may be completely opposed to the earlier opinion.
Which of them can be regarded as the "order" of the State Government? Therefore, to
make the opinion amount to a decision of the Government it must be communicated to
the person concerned. In this connection we may quote the following from the judgment
of this Court in the State of Punjab v. Sodhi Sukhdev Singh, AIR 1961 SC 493.
Mr. Gopal Singh attempted to argue that before the final order was passed the Council of
Ministers had decided to accept the respondent's representation and to reinstate him, and
that, according to him, the respondent seeks to prove by calling the two original orders.
We are unable to understand this argument. Even if the Council of Ministers had
provisionally decided to reinstate the respondent that would not prevent the Council from
reconsidering the matter and coming to a contrary conclusion later on, until a final
decision is reached by them and is communicated to the Rajpramukh in the form of
advice and acted upon by him by issuing an order in that behalf to the respondent.
Thus it is of the essence that the order has to be communicated to the person who would
be affected by that order before the State and that person can be bound by that order. For,
until the order is communicated to the person affected by it, it would be open to the
Council of Ministers to consider the matter over and over again and, therefore, till its
communication the order cannot be regarded as anything more than provisional in
character".
(Emphasis supplied)

[See also State of Bihar and Ors. v. Kripalu Shankar and Ors., (1987) 3 SCC 34) AIR
1987 SC 1554

64
. In our considered opinion, Bachhittar AIR 1963 SC 395

@page-SC1767
Singh has no application to the facts of the present case. As is clear, in Bachhittar Singh,
there was merely a 'noting' made by the Minister on the file. This Court held that merely
writing something on file does not amount to an 'order'. No formal order reducing the
punishment was ever made. Until such an order is drawn up by the State Government, it
could not take the character of Order since the Minister could change his mind and delete
the remarks. Moreover, the decision must also be communicated to the person concerned
which was absent in the case. To us, therefore, ratio laid down in Bachhittar Singh does
not help the appellant.
65

. It is also interesting to note at this stage that in subsequent cases, Bachhittar Singh was
relied upon for the proposition that in that case, the Constitution Bench of this Court held
the provisions of Article 166 of the Constitution mandatory. This Court, however, did not
uphold the argument and distinguished it on facts. For instance, in Chitralekha, the
Constitution Bench held Article 166 'directory'. As to Bachhittar Singh, the majority
observed that in that case, the order signed by the Revenue Minister was never
communicated to the party and, therefore, it was held that there was no effective order.
(See also State of Bihar v. Kripalu Shankar; Gulabrao Keshavrao Patil v. State of Gujarat;
J.P. Bansal v. State of Rajasthan). AIR 1964 SC 1823
AIR 1963 SC 395
AIR 1987 SC 1554
2003 AIR SCW 1848

66

. Another decision heavily relied upon by the appellant is a recent case in C.B.I. v. Ravi
Shankar Srivastava, (2006) 7 SCC 188. In that case, CBI instituted criminal proceedings
against the accused. The accused challenged the First Information Report (FIR) in the
High Court by invoking Section 482 of the Code of Criminal Procedure, 1973 inter alia
contending that the consent given by the State Government under Section 6 of the Delhi
Act for investigation of offences by Delhi Special Police Establishment and for operation
of the Delhi Act to the State was withdrawn by the State and CBI had no power to initiate
criminal proceedings. The High Court upheld the contention. CBI approached this Court.
2006 AIR SCW 3990

67. Allowing the appeal and setting aside the order of the High Court, this Court held that
there was no notification revoking the earlier one granting the consent. The letter on
which great emphasis had been laid by the accused did not indicate as to under what
authority such letter had been written. It was also not established that the person was
authorized to take such decision. It did not meet with the requirements of Article 166 of
the Constitution and could not, even conceptually be said to be a notification.
68
. To us, Ravi Shankar has no application to the case on hand. In a particular 'fact
situation', this Court held that there was no withdrawal of consent by the State
Government. For coming to such conclusion, the Court referred to several factors, such
as, it was merely a letter; it did not indicate the authority; there was nothing to show that
the person was authorized to take such decision, and as such, it did not meet with the
requirement of Article 166 of the constitution. 2006 AIR SCW 3990

69. In the present case, the decision produced by the respondent along with the counter-
affidavit filed by the Superintendent of Police, CBI, Bhopal clearly sets out all the
particulars required by Section 6 of the Delhi Act. It refers to the file/reference number,
name of the department, the authority from whom it was issued and communicated to the
concerned department of the Central Government. It, therefore, cannot be said that the
State Government had not granted consent under Section 6 of the Delhi Act.
70

. In Ravi Shankar, consent was granted by a notification. This Court, therefore, held that
it could not have been revoked by a letter, authenticity of which was not established and
was in cloud. In our judgment, it would be an impermissible leap of logic to deduce to
formulate a rule of law that consent can never be accorded except by issuing a
notification. 2006 AIR SCW 3990

71. A closer scrutiny of the relevant provisions of the Delhi Act also add credence to the
view which we are inclined to take. Section 3 refers to 'notification' and requires the
Central Government to issue notification specifying offences or class of offences to be
investigated by Special Police Establishment. Section 5 uses the term 'order' and enables
the Central Government to extend powers and jurisdiction of Special Police
Establishment to other areas not covered by
@page-SC1768
the Act. Section 6 which speaks of consent of State Government for the exercise of
powers and jurisdiction of the Special Establishment neither refers to 'notification' nor
'order'. It merely requires consent of the State Government for the application of the
Delhi Act. Parliament, in our considered opinion, advisedly and deliberately did not
specify the mode, method or manner for granting consent though in two preceding
sections such mode was provided. If it intended that such consent should be in a
particular form, it would certainly have provided the form as it was aware of different
forms of exercise of power. It, therefore, depends on the facts of each case whether the
consent required by Section 6 of the Delhi Act has or has not been given by the State
Government and no rule of universal application can be laid down.
72. On the facts stated hereinabove, there is no doubt that the State of Madhya Pradesh
has given consent as envisaged by Section 6 of the Delhi Act and prosecution instituted
by CBI against the appellant cannot be said to be without Jurisdiction. We see no
infirmity in the order passed by the trial Court and confirmed by the High Court. The
appeal, hence, deserves to be dismissed and we accordingly do so.
73. The appeal is dismissed accordingly.
Appeal dismissed.
AIR 2008 SUPREME COURT 1768 "Nirmal Kanta v. Ashok Kumar"
(From : 2002 AIHC 2084 (Punj and Har))
Coram : 2 C. K. THAKKER AND ALTAMAS KABIR, JJ.
Civil Appeal No. 7160 of 2005, D/- 28 -3 -2008.
Smt. Nirmal Kanta (D) by L.Rs. v. Ashok Kumar and Anr.
East Punjab Rent Restriction Act (3 of 1949), S.13 - HOUSES AND RENTS -
EVICTION - TENANCY - DECREE - Eviction - Ground, creation of sub-tenancy -
Tenant allowed respondent, alleged sub-tenant to sit, fix and operate sewing machine
inside tenanted shop room - Evidence showing that respondent was assisting tenant in his
cloth business by helping customer to assess amount of cloth required for their particular
purposes - Tenant thus had not parted with exclusive possession of tenanted premises -
Creation of subtenancy and/or grant of sub-lease cannot be said to be established -
Respondent may at best be said to be licensee - Landlord not entitled to decree of eviction
on ground of sub-letting. (Para 16)
Cases Referred : Chronological Paras
(2005) 1 SCC 31 (Ref.) 13
1998 AIR SCW 1080 : AIR 1998 SC 1240 (Ref.) 12, 16
AIR 1990 SC 1208 (Ref.) 11
Tilak Raj Bhandari, in person; Pramod B. Agarwala, Ms. Parveena Gautam, Nitin Kant
Setia, for Respondents.
Judgement

ALTAMAS KABIR, J. :- This appeal by special leave is directed against the judgment
and order dated 7th January, 2002, passed by the High Court of Punjab and Haryana at
Chandigarh in Civil Revision No. 2250 of 1984 filed under Section 15 of the East Punjab
Rent Restriction Act, 1949, (hereinafter called "the 1949 Act"). By the said Judgment, the
High Court set aside the order dated 25th October, 1983, passed by the Appellate
Authority and restored the order dated 13th August, 1983, passed by the Rent Controller
dismissing the appellant-landlords petition for eviction of the respondents under Section
13 of the 1949 Act. The facts relating to the filing of the eviction petition are set out in
brief hereinbelow. Reported in 2002 AIHC 2084

2. One Smt. Nirmal Kanta, wife of Shri T.R.Bhandari, filed the above-mentioned petition
under Section 13 of the 1949 Act seeking ejectment of the respondents herein from the
shop-room in question. Ejectment was sought on the ground that the tenant had not paid
the rents for the tenanted shop-room from 2nd March, 1982, till 15th June, 1982, when
the eviction petition was filed. It was also alleged that the conduct of the tenant was a
constant nuisance not only to the landlord but also to the neighbours as well and that the
landlord wanted to construct a first floor on the demised premises, which was being
obstructed by the tenant. A separate ground as to creation of sub-tenancy was also
pleaded along with some other grounds relating to installation of electric meter and an
attempt being made by the tenant to establish his own title to the suit property. The Rent
Controller dismissed the application on 13.8.1983 and against such order of dismissal of
his petition the appellant filed an appeal before the Appellate Authority. The Appellate
Authority allowed the appeal and set aside the order of the
@page-SC1769
Rent Controller by its judgment dated 14th June, 1984. The tenant, the respondent No. 1
herein, was directed to put the landlord/appellant in possession of the tenanted premises
within three months. The respondent No. 1/tenant filed Civil Revision No. 2250 of 1984
before the High Court against the order of the Appellate Authority and the same was
allowed on the finding that by allowing a tailor, even on payment, to sit in a part of the
shop-room with his sewing machine, while retaining his possession and rights as a tenant
over the premises leased to him, the respondent No. 1 /tenant did not create a sub-lease
and the tailor could at best be said to be a licensee. The High Court held that the appellant
landlord had failed to discharge his burden that there was a sub-letting of the demised
premises.
3. None of the other grounds appear to have been urged on behalf of the appellant-
landlord before the High Court, which set aside the Judgment of the Appellate Authority
only on the ground of alleged sub-letting. It is against the said order of the High Court
that the present Special Leave Petition has been filed.
4. At this juncture, it may be mentioned that the sole petitioner before the Rent Controller
died during the pendency of this appeal and she was substituted by her legal heirs in the
appeal. The appellant No. 1, Tilak Raj Bhandari, the husband of the deceased Nirmal
Kanta, who is an advocate, has appeared in person in support of the appeal.
5. He urged that the High Court had erred in reversing the well-considered judgment and
order of the Appellate Authority on a wrong understanding of the law relating to creation
of sub-tenancies by holding that even if it was established that the respondent No. 1
tenant had allowed the respondent No.2, a tailor, to sit inside a part of the demised
premises with his sewing machine for the purpose of stitching, the same would not
amount to creation of a subtenancy or a sub-lease. It was urged that by allowing the
respondent No.2 to use a portion of the demised premises, the respondent No. 1, had
parted with the exclusive possession of the said portion of the demised premises, thereby,
in fact, creating a subtenancy.
6. The appellant No. 1 urged that during the hearing of the application filed before the
Rent Controller under Section 13 of the 1949 Act, the Rent Controller had appointed a
Local Commissioner on 15th June, 1982, to visit the locale and to report the factual
position regarding the use of the portion of the demised premises by Lachman Singh
working as a tailor and as to whether, he had affixed his sewing machine, plied by feet,
on the floor at a particular point in the site plan. It was pointed out that the Local
Commissioner had reported that on his inspection in the presence of the parties, he found
that the tailor Master Lachman Singh was operating as a tailor from the point shown in
the site plan of the shop-room and that he had got a sewing machine plied by feet fixed to
the said spot.
7. The appellant No. 1 submitted that the report of the local commissioner had been
wrongly interpreted by the High Court, inasmuch as, it amply proved that a portion of the
shop-room had been sub-let to Lachhman Singh. He also submitted that the Appellate
Authority had correctly held that the respondent-tenant was liable to be evicted on
account of such sub-letting and the High Court had erred in reversing the said finding
upon holding that the fact that the alleged sub-tenant was found sitting inside the shop-
room would not alone establish the sub-tenancy and that if any person sits in the shop-
room for augmentation of the business of the tenant the plea of subtenancy could not be
accepted. The High Court further observed that the Rent Controller had arrived at the
correct finding that at best Lachman Singh was a licensee under the tenant and not a sub-
tenant as alleged by the appellant herein. The appellant submitted that the judgment of the
High Court was contrary to the law relating to licence and sub-tenancy and was liable to
be set aside and that of the Appellate Authority was liable to be restored.
8. On behalf of the respondents it was contended that in order to constitute a subtenancy,
one of the basic ingredients is that the tenant was required to part with possession of the
whole premises let out to him and that by allowing a person to sit in a portion of the
shop-room even if on payment of rent do not amount to sub-letting but at best could have
created a licence. It was urged that from the evidence on record it would be amply clear
that the respondent No. 1 had not parted with exclusive possession of the shop-room and
had only allowed the alleged sub-tenant to operate his sewing-machine from a portion of
the shop-room
@page-SC1770
and that too for the purpose of assisting the respondent No. 1 in his cloth business.
9. It was submitted that Lachhman Singh, the alleged sub-tenant, had been allowed to sit
in the shop-room to facilitate customers in taking measurements for the purpose of
buying cloth and as a master tailor, Lachhman Singh's job was to assist the customer to
assess the amount of cloth required for a particular purpose.
10. It was urged that even if the report of the local commissioner showed that a sewing-
machine had been affixed to the floor in a portion of the shop-room, that was not in the
nature of a sub-tenancy as alleged on behalf of the appellant, but in order to assist the
respondent No. 1 in his business. It was submitted that the Rent Controller, as also the
High Court, had very correctly assessed the situation in holding that at best it could be
said that a licence had been created by the respondent No. 1 in favour of Lachman Singh
in that portion of the shop-room where the sewing-machine had been affixed and from
where Lachman Singh was operating.
11

. In support of his submission learned counsel firstly relied upon the decision of this
Court in Delhi Stationers and Printers vs. Rajendra Kumar [(1990) 2 SCC 331] wherein
the meaning of sub-letting had been explained to mean transfer of an exclusive right to
enjoy the property in favour of a third party in lieu of payment of some compensation or
rent. It was observed that parting with legal possession meant parting with possession
with the right to include and to exclude others and that mere occupation is not sufficient
to infer either sub-tenancy or parting with possession. AIR 1990 SC 1208

12

. Reliance was also placed on the decision of this Court in Bharat Sales Limited v. Life
Insurance Corporation of India [(1998) 3 SCC 1] in which it was held that sub-tenancy or
sub-letting comes into existence when the tenant gives up possession of the tenanted
accommodation wholly or in part and puts another person in exclusive possession thereof
in such process. Rather, the scene is enacted behind the back of the landlord, concealing
the overt acts and transferring possession clandestinely to a person who is an utter
stranger to the landlord. It was further observed that it is the actual, physical and
exclusive possession of that person, instead of the tenant, which ultimately reveals to the
landlord that the tenant to whom the property was let out has put some other person into
possession of that property. 1998 AIR SCW 1080

13. The learned counsel for the respondent also referred to the decision of this Court in
Joginder Singh Sodhi vs. Amar Kaur [(2005) 1 SCC 31], in which, while dismissing the
special leave petition filed by the landlord this Court observed that as far as sub-letting
was concerned, two ingredients, namely, parting with possession and monetary
consideration therefor have to be established. It was submitted that neither of the two
ingredients had been proved in the instant case and all that was relied upon by the
Appellate Authority was the report of the local commissioner which indicated that
Lachhman Singh was operating from a portion of the shop-room where he had fixed a
feet-driven sewing machine. Regarding parting with exclusive possession learned counsel
submitted that the respondent No. 1 was always in possession of the entire shop-room
and the key of the shop-room was retained by him and till he opened the shop-room no
one had access thereto. Various other decisions were also referred to on behalf of the
respondents, which need not detain us.
14. The learned counsel submitted that there was no merit in the appeal and both the Rent
Controller and the High Court had correctly dismissed the eviction petition filed by the
appellant/landlord.
15. What constitutes sub-letting has repeatedly fallen for the consideration of this Court
in various cases and it is now well-established that a sub-tenancy or a sub-letting comes
into existence when the tenant inducts a third party/stranger to the landlord into the
tenanted accommodation and parts with possession thereof wholly or in part in favour of
such third party and puts him in exclusive possession thereof. The lessor and/or a
landlord seeking eviction of a lessee or tenant alleging creation of a subtenancy has to
prove such allegation by producing proper evidence to that effect. Once it is proved that
the lessee and/or tenant has parted with exclusive possession of the demised premises for
a monetary consideration, the creation of a sub-tenancy and/or the allegation of sub-
letting stands established.
16

. All the different cases cited on behalf of the parties are ad idem on this interpretation of
the law relating to the creation 1998 AIR SCW 1080

@page-SC1771
of a sub-tenancy or sub-letting. As was observed by this Court in the case of Bharat Sales
Limited (supra) the arrangement regarding the creation of a sub-tenancy or grant of a
sublease without the permission of the landlord has obviously to be done behind the
scene to prevent the landlord from coming to learn of such arrangement and it is only
after the landlord finds that stranger or a third party, other than the tenant, was occupying
the tenanted premises, does he become aware of the creation of such sub-tenancy or
granting of such sub-lease. In the instant case, from the report of the Local Commissioner
appointed by the Court it stands established that the respondent No.2, Lachhman Singh,
was, in fact, operating a feet-driven sewing machine from inside the shop-room
comprising the tenanted premises. The same has been interpreted in different ways by the
Rent Controller, the Appellate Authority and thereafter by the High Court. From the
evidence that has come on record, it appears that the respondent No. 2 had been
accommodated by the respondent No. 1 to assist him in his cloth business by helping
customers to assess the amount of cloth required for their particular purposes. The said
activity did not give the respondent No.2 exclusive possession for that part of the shop
room from where he was operating and where his sewing machine had been affixed. The
aforesaid issue has been correctly decided both by the Rent Controller as also the High
Court. In our view, the learned Appellate Authority has mis-construed the principles
relating to parting with exclusive possession which is one of the key ingredients for
arriving at a finding regarding the creation of a sub-tenancy or grant of a sub-lease. Since
from the report of the Local Commissioner it only appears that the respondent No.2 was
operating from a portion of the shop-room, it is quite clear that the respondent No. 1 had
not parted with exclusive possession of the tenanted premises as had been found both by
the Rent Controller and the High Court. The main ingredient of the creation of a sub-
tenancy and/or grant of a sub-lease not having been established, it may at best be said that
the respondent No.2 was a licensee under respondent No. 1 which would not entitle the
appellant-landlord to obtain a decree for eviction against the respondent No. 1 tenant on
the ground of sub-letting.
17. Since none of the other points appear to have been urged before either the Appellate
Authority or the High Court, we are not called upon to deal with the same.
18. The appeal accordingly fails and is dismissed.
19. There will be no order as to costs.
Appeal dismissed.
AIR 2008 SUPREME COURT 1771 "Bhikhubhai Vithlabhai Patel v. State of Gujarat"
(From : Gujarat)
Coram : 2 S. H. KAPADIA AND B. SUDERSHAN REDDY, JJ.
Civil Appeal No. 2000 of 2008 (arising out of SLP (C) No. 9905 of 2007), D/- 14 -3
-2008.
Bhikhubhai Vithlabhai Patel and Ors. v. State of Gujarat and Ann
(A) Gujarat Town Planning and Urban Development Act (Presi. Act 27 of 1976), S.17(1)
(a), S.12(2)(o) - TOWN PLANNING - PLANNING AND DEVELOPMENT - WORDS
AND PHRASES - Sanction to draft development plan - Power of State Government to
sanction plan with substantial modifications - Not absolute or unfettered power -
Formation of opinion that modifications are necessary - Is precondition for exercise of
power - Such opinion must be formed on basis of material showing such necessity -
Order passed without forming requisite opinion held, void.
L.P.A. No. 1453 of 2005 D/-10/15-11-2006 and Misc. C.A. for Reviews No. 3165 of
2006, D/-14-02-2007 (Guj), Reversed.
Words and Phrases - 'So considered necessary' - Connotes active application of mind.
Words and Phrases - 'Necessary' - Means indespensable.
Section 17 indeed confers very wide powers on State Government in the matter of
sanctioning of draft development plan. S. 17(1)(a)(ii) Proviso provides that in cases
where the State Government is of opinion that the substantial modifications in the draft
development plan are necessary, it may, instead of returning them to the authority or the
authorised officer, publish the modifications so considered necessary along with the
notice in the prescribed manner inviting suggestions or objections with respect to the
proposed modifications. The State Government is entitled to publish the modifications
provided it is of opinion that
@page-SC1772
substantial modifications in the draft development plan are necessary. The expression 'is
of opinion' that substantial modifications in the draft development plan are necessary is of
crucial importance. Formation of opinion is a condition precedent for setting the law in
motion proposing substantial modifications in the draft development plan. Opinion to be
formed by the State Government cannot be on imaginary grounds, wishful thinking,
however, laudable that may be. Such a course is impermissible in law. The formation of
the opinion, though subjective, must be based on the material disclosing that a necessity
had arisen to make substantial modifications in the draft development plan. (Paras
19, 20, 21, 24)
The expression : 'so considered necessary' is again of crucial importance. The term
'consider' means to think over; it connotes that there should be active application of the
mind. In other words the term 'consider' postulates consideration of all the relevant
aspects of the matter. A plain reading of the relevant provision suggests that the State
Government may publish the modifications only after consideration that such
modifications have become necessary. The word 'necessary' means indispensable,
essential, unavoidable etc. etc. The formation of the opinion by the State Government
should reflect intense application of mind with reference to the material available on
record that it had become necessary to propose substantial modifications to the draft
development plan. The use of expressions 'is of opinion', that substantial modifications in
the draft development plan and regulations, 'are necessary', shows that S. 17 does not
confer any unlimited discretion on the Government. The discretion, if any, conferred
upon the State Government to make substantial modifications in the draft development
plan is not unfettered. There is nothing like absolute or unfettered discretion and at any
rate in the case of statutory powers. (Paras 25, 26, 32)
Order making substantial modifications in draft development plan passed by State
Government without forming of any opinion which is condition precedent for exercise of
power under S. 17 is void.
L.P.A. No. 1453 of 2005, D/- 10/15-11-2006 and Misc. C.A. for Review No. 3165 of
2006, D/- 14-2-2007 (Guj), Reversed. (Para 37)
(B) Gujarat Town Planning and Urban Development Act (Presi. Act 27 of 1976), S.17(1)
(a)(ii), Proviso - TOWN PLANNING - WRITS - Draft development plan - Grant of
sanction with substantial modifications - Opinion formed by State Government that
substantial modifications are necessary - Open to judicial scrutiny to extent of relevancy
of reasons to the opinion formed.
Constitution of India, Art.226. (Para 33)
(C) Gujarat Town Planning and Urban Development Act (Presi. Act 27 of 1976), S.17(1)
(a)(ii), Proviso - TOWN PLANNING - PLANNING AND DEVELOPMENT - Sanction
to draft development plan with substantive modifications - Formation of opinion to that
effect by State Government - Must be substantiated by material on record - Not by
explanations subsequently given by decision making authority. (Para 35)
(D) Gujarat Town Planning and Urban Development Act (Presi. Act 27 of 1976), S.17 -
TOWN PLANNING - PLANNING AND DEVELOPMENT - Development plan -
Sanction by State Government - Provisions enabling State to impose restrictions on right
to use one's own land - Demand strict construction. (Para 37)
Cases Referred : Chronological Paras
2002 AIR SCW 4939 : AIR 2003 SC 511 (Ref.) 4, 6, 12, 39
1999 AIR SCW 1579 : AIR 1999 SC 1912 : 1999 Cri LJ 2859 (Rel. on.) 27
AIR 1978 SC 851 (Rel. on, Pat. C) 35
AIR 1976 SC 1753 : 1976 Tax LR 726 (Rel. on) 31
AIR 1967 SC 295 (Rel. on) 29
AIR 1952 SC 16 (Rel. on, Pat. C) 35
Ashok H. Desai, S.H. Sanjanwala, T.R. Andhyarujina, Dushyant Dave, Sr. Advocates,
Shamik Sanjanwala, R.S. Sanjanwala, Ms. Meenakshi Arora, Dilip Kanojiya, Harsh
Parekh, for Appellants; R.P. Bhat, Sr. Advocate, Ms. Sumita Hazarika, Ms. Pinky Behera,
Ms. Hemantika Wahi, Prashant G. Desai, S.C. Patel, Tejas Patel, Subhashish Bhomick,
for Respondents.
Judgement
1. B. SUDERSHAN REDDY, J. :-Leave granted.
2. This appeal by special leave is directed against the common judgment and order dated
10-15th November, 2006 of the Gujarat High Court at Ahmedabad in LPA No. 1453 of
2005 and Miscellaneous Civil application for Review No. 3165 of 2006
@page-SC1773
dated 14th February, 2007; whereby the High Court dismissed the cross-objections filed
by the appellants in LPA No. 1453 of 2005. Essentially grievance in this appeal pertains
to the dismissal of cross objections preferred by the appellants.
3. The Gujarat Town Planning and Urban Development Act, 1976 (for short 'the said Act')
came into force with effect from February 1st, 1978. The State Government in exercise of
its power conferred under the provisions of the Act constituted Surat Urban Development
Authority (SUDA) which prepared a draft development plan whereby the lands belonging
to the appellants were proposed for designating the use of the lands for residential
purposes. The State Government having considered the draft development plan submitted
by SUDA sanctioned the plan in the modified form on January 31, 1986 whereby the
appellants' lands in question were reserved for "education complex of South Gujarat
University". The final development plan was accordingly brought into force with effect
from March 31, 1986. Neither the Area Development Authority nor the Authority for
whose purpose land has been designated in the final Development Plan initiated any steps
to acquire the lands of the appellants. The appellants having waited for a period of 10
years from the date of coming into force of the final development plan got served a notice
on the Authority concerned requiring it to acquire the land within six months from the
date of the service of such notice. However, no steps were taken by any of the authorities
proposing to acquire the lands. Instead SUDA in purported exercise of its power under
Section 21 of the Act sought to revise the development plan by reserving the lands in
question once again for education complex of South Gujarat University.
4

. The appellants challenged re-reservation of the lands for South Gujarat University on
various grounds which ultimately culminated in the judgment of this court in Bhavnagar
University vs. Palitana Sugar Mill (P) Ltd. and others1, This court in clear and categorical
terms laid down that Section 21 of the Act may impose statutory obligations on the part
of the State and the appropriate authority to revise the development plan but under the
garb of exercising the power to revise the development plan "the substantial right
conferred upon the owner of the land or the person interested therein" cannot be taken
away. It is observed : 2002 AIR SCW 4939

1 (2003) 2 SCC 111


"Para 38. Section 21 does not envisage that despite the fact that in terms of subsection (2)
of section 20, the designation of land shall lapse, the same, only because a draft revised
plan is made, would automatically give rise to revival thereof. Section 20 does not
manifest a legislative intent to curtail or take away the right acquired by a landowner
under Section 22 of getting the land defreezed..............."
5. The revised development plan submitted by SUDA was awaiting the sanction of the
State Government. The State Government in exercise of powers conferred by the proviso
to sub-clause (ii) of clause (a) of Section 17(1) of the Act proposed modifications in the
draft revised development plan submitted by SUDA and proposed to designate the land
under Section 12(2)(o) for "educational use". The appellants challenged the action on the
part of State Government in Issuing notification dated July 22, 2004 on various grounds.
During the pendency of the Writ Petition the State Government came out with final
notification dated September 28, 2004 designating the land in question for educational
use under Section 12(2)(o) of the Act. The appellants sought the leave of the court to
challenge the said notification also. The final notification was set aside on the ground that
there was no material before the Government on the basis of which the decision to
designate the lands for educational purposes could have been arrived at. The matter was
remitted for fresh consideration in the light of the observations and the directions issued
by the High Court.
6

. We have heard Shri Ashok H. Desai and Shri T.R. Andhyarujina, learned senior counsel
appearing for the appellants, Shri R. P. Bhatt, learned senior counsel for the State
Government and Shri Prashant G. Desai, learned counsel for SUDA. The contention of
the learned counsel for the appellants was that on a true interpretation of the provisions of
the said Act it was not open to the Government to designate the land in question as
education zone and secondly assuming that there is such a power, the exercise of the said
power by the preliminary Notification dated 22nd July, 2004 and final Notification dated
28th September, 2004 is not legal and bona fide particularly in the light of the fact that
the earlier reservation 2002 AIR SCW 4939

@page-SC1774
for a similar though not identical purpose, namely, education complex of South Gujarat
University was struck down by the Supreme Court in Bhavnagar University (supra).
7. The submission on behalf of the State Government was that the preliminary
notification issued by the Government with a proposal to use the land for educational
purpose under section 12(2)(o) of the Act is in conformity with the powers and the
objects sought to be served. The power of the State Government under Section 17(l)(a) is
very wide. It is entitled either to sanction the draft development plan as submitted by the
Authority or return the draft development plan for modification or make substantial
modifications in the draft development plan by itself after inviting suggestions and
objections. The Notification dated 22nd July, 2004 merely invited suggestions and
objections on the proposed use of the land for educational purposes. It was further
submitted that under Section 12(2)(o) of the Act the State Government can make
proposals for public or other purposes which have not been mentioned in sub-clause (a)
to (n) of Section 12(2). Therefore the State Government can propose reservations for
public purpose or can make designation of land for any purposes not mentioned in sub-
clause (a) to (n). It was submitted that the provisions of Sections 17(2), 20(1) and 20(2)
are not applicable in the appellants' case since these provisions relate to the lands kept for
reservation for the purpose of Area Development Authority or any other Authority for
whose purpose the land is reserved. This is not a case of reservation affecting the rights of
the appellants in any manner who are still entitled to develop the land in accordance with
the earmarked use/proposals.
8. Learned counsel for Surat Urban Development Authority while adopting the
submissions made by the counsel for the State Government contended that the State
Government and Urban Development Authority has power to create separate zone under
section 12(2)(o) of the Act.
9. We shall deal with the second contention, namely, whether the exercise of power by the
State Government is legal and bona fide? This issue is required to be considered in the
background of the relevant facts which are evident from the record.
10. The Urban Development Authority designated the present lands as part of the
residential zone in the development plan and submitted the same on 30th April, 1981 for
sanction to the State Government. The State Government by issuing notification under
the proviso to sub-clause (ii) of clause (a) of sub-section (1) of Section 17 deleted the
same from residential zone and the lands were sought to be reserved for education
complex of "South Gujarat University". The said plan was sanctioned under Section 17 of
the Act on 3rd March, 1986. The appellants after expiry of period of 10 years gave notice
under sub-section (1) of Section 20 calling upon the authority to acquire the land.
Nothing happened in the matter.
11. In the meanwhile, SUDA prepared and published the draft revised development plan
in respect of the lands under Section 13 of the Act once again reserving the land for
education complex of South Gujarat University. Notice regarding publication of the draft
revised development plan calling suggestions on the proposed draft revised development
plan was published in the Gazette on 29.2.1996. This was done in purported exercise of
the power under Section 21 of the Act whereunder the development authority is under
statutory obligation to revise the development plan at least once in 10 years from the date
on which the final development plan comes into force.
12

. The appellants filed writ petitions in the High Court of Gujarat challenging the action
rereserving the land in the draft revised development plan for the same purpose namely
education complex of South Gujarat University. The his ultimately culminated in the
judgment of this Court in Bhavnagar University (supra). This court held that : 2002
AIR SCW 4939
(i) Section 21 of the Act does not and cannot mean that substantial right conferred upon
the owner of the land or the person interested therein shall be taken away. It is not and
cannot be the intention of the legislature that what is given by one hand should be taken
away by the other.
(ii) It is further held that the statutory interdict of use and enjoyment of the property must
be strictly construed. It is well settled that when a statutory authority is required to do a
thing in a particular manner, the same must be done in that manner or not at all. The State
and other authorities while acting under the said Act are only creature of statute. They
must act within the four corners thereof.
@page-SC1775
(iii) It is further held that in spite of statutory lapse of designation of the land, the State is
not denuded of its power of eminent domain under the general law, namely, the Land
Acquisition Act in the event an exigency arises therefor.
13. The State Government unmindful of and undaunted by the judgment of this court
proposed to modify the draft revised development plan already submitted by the authority
in purported exercise of the power conferred by the proviso to sub-clause (ii) of clause (a)
of sub-section (1) of Section 17 of the Act by designating the land for educational use
under Section 12(2)(o) of the Act. The Government having considered the objections
issued final notification dated 28th September, 2004 confirming modifications proposed
in the preliminary notification.
14. The appellants filed a writ petition in the High Court of Gujarat challenging the
preliminary notification as well as the final notification on various grounds.
15. The High Court upon perusal of the records found that there is absolutely no material
on record except the noting of the Minister concerned suggesting change of use of the
land to education zone. The suggestion of the Chief Town Planner to place the entire area
in residential zone has been ignored. The Area Development Authority in the first
instance has suggested that the land in question be placed in residential zone. In the note
prepared and placed before the Minister concerned on 23 April, 2004 it was suggested
that the land should no more be reserved for the purpose of South Gujarat University and
should be placed in appropriate zone. The note further suggested that after releasing the
lands from reservation, the same should be placed under residential zone. On 21.7.2004
the Minister concerned passed the order which reads as under :
"......Reservation may be cancelled as suggested. However, (for the lands which are being
de-reserved) educational zone in terms of Section 12(2)(o) of the Gujarat Town Planning
and Urban Development Act be provided and notice be issued accordingly........."
16. It was pursuant to this direction, the preliminary notification dated 22nd July, 2004
came to be issued by the Government calling for objections and suggestions against the
proposed substantial modifications of the development plan. Point for consideration :
17. Whether the action of the State Government in issuing preliminary notification and
the final notification designaung the said lands for educational use is valid? Whether the
action is ultra vires?
18. Before we address ourselves to the questions for their determination it would be
appropriate to notice Sections 17 and 21 which are as under :
Section 17(1) (a) : On receipt of the draft development plan under Section 16, the State
Government may. by notification. -
(i) sanction the draft development plan and the regulation so received , within the
prescribed period, for the whole of the area covered by the plan or separately for any part
thereof, either without modification, or subject to such modification, as it may consider
proper; or
(ii) return the draft development plan and the regulations to the area development
authority or, as the case may be, to the authorized officer, for modifying the plan and the
regulations in such manner as it may direct :
Provided that, where the State Government is of opinion that substantial modifications in
the draft development plan and regulations are necessary, the State Government may,
instead of returning them to the area development authority, as the case may be, the
authorised officer under this sub-clause, publish the modifications so considered
necessary in the Official Gazette along with a notice in the prescribed manner inviting
suggestions or objections from any person with respect to the proposed modifications
within a period of two months from the date of publication of such notice; or
(iii) refuse to accord sanction to the draft development plan and the regulations and direct
the area development authority or the authorized officer to prepare a fresh development
plan under the provisions of this Act.
(b) Where a development plan and regulations are returned to an area development
authority, or, as the case may be, the authorized officer under sub-clause (ii) of clause (a),
the area development authority, or, as the case may be, the authorized officer, shall carry
out the modifications therein as directed by the State Government and then submit them
as so modified to the
@page-SC1776
State Government for sanction; and the State Government shall thereupon sanction them
after satisfying itself that the modification suggested have been duly carried out therein.
(c) Where the State Government has published the modification considered necessary in a
draft development plan as required under the proviso to sub-clause (ii) of clause (a), the
State Government shall, before according sanction to the draft development plan and the
regulations, take into consideration the suggestions or objections that may have been
received thereto, and thereafter accord sanction to the drafts development plan and the
regulations in such modified form as it may consider fit.
(d) The sanction accorded under? £[clause (a), clause (b) ] or clause (c) shall be notified
by the State Government in the Official Gazette and the draft development plan together
with the regulations so sanctioned shall be called the final development plan.
£These words, brackets and letters were substituted for the word, brackets and letter
"clause (b)" by Guj. 2 of 1999, S. 7(1).
(e) The final development plan shall come into force on such date as the State
Government may specify in the notification issued under clause (d) :
Provided that the date so specified shall not be earlier than one month from the date of
publication of such notification.
(2) Where the draft development plan submitted by an area development authority, as the
case may be, the authorized officer contains any proposals for the reservation of any land
for a purpose specified in clause (b) orßclause (n) or clause (o)] of subsection (2) of
section 12 and such land does not vest in the area development authority, the State
Government shall not include the said reservation in the development plan, unless it is
satisfied that such authority would acquire the land, whether by agreement or compulsory
acquisition, within ten years from the date on which the final development plan conies
into force.
ßThese words, brackets and letters were substituted for the word, brackets and letter
"clause (n)" by Guj. 2 of 1999, S. 7(2).
(3) A final development plan which has come into force shall, subject to the provisions of
this Act, be binding on the area development authority concerned and on all other
authorities situated in the area of the development plan.
(4) After the final development plan comes into force, the area development authority
concerned may execute any work for developing, re-developing or improving any area
within the area covered by the plan in accordance with the proposals contained in the
development plan.
Section 21. At least once in ten years from the date on which a final development plan
comes into force, the area development authority shall revise the development plan after
carrying out, if necessary, a fresh survey and the provisions of sections 9 to 20, shall, so
far as may be, apply to such revision."
19. A plain reading of Section 17 suggests that on receipt of draft development plan the
State Government may sanction the draft development plan, for the whole of the area
covered by the plan or separately for any part thereof; return the draft development plan
for modifying the plan in such a manner as may direct; but in cases where the State
Government is of opinion that the substantial modifications in the draft development plan
are necessary, it may, instead of returning them to the authority or the authorised officer,
publish the modifications so considered necessary along with the notice in the prescribed
manner inviting suggestions or objections with respect to the proposed modifications. It
may even refuse to accord sanction to the draft development plan and direct to prepare a
fresh development plan under the provisions of the Act. Indeed a very wide power is
conferred upon the State Government in the matter of sanctioning of the draft
development plan. In the instant case we are concerned with the action of the State
Government in making substantial modifications in the revised draft development plan.
Section 21 of the Act mandates that the same procedure as provided for preparation and
sanction of draft development plan including the one under section 17 would be
applicable even in respect of revision of development plan.
20. The State Government is entitled to publish the modifications provided it is of
opinion that substantial modifications in the draft development plan are necessary. The
expression "is of opinion" that substantial modifications in the draft development plan are
necessary is of crucial importance. Is there any material available on record which
@page-SC1777
enabled the State Government to form its opinion that substantial modifications in the
draft development plan were necessary? The State Government's jurisdiction to make
substantial modifications in the draft development plan is inter-twined with the formation
of its opinion that such substantial modifications are necessary in the draft development
plan. The State Government without forming any such opinion cannot publish the
modifications considered necessary along with notice inviting suggestions or objections.
We have already noticed that as on the day when the Minister concerned took the
decision proposing to designate the land for educational use the material available on
record were :
(a) the opinion of the Chief Town Planner;
(b) Note dated 23rd April, 2004 prepared on the basis of the record providing the entire
background of the previous litigation together with the suggestion that the land should no
more be reserved for the purpose of South Gujarat University and after releasing the
lands from reservation, the same should be placed under the residential zone.
21. It is true the State Government is not bound by such opinion and entitled to take its
own decision in the matter provided there is material available on record to form opinion
that substantial modifications in the draft development plan were necessary. Formation of
opinion is a condition precedent for setting the law in motion proposing substantial
modifications in the draft development plan.
22. Any opinion of the Government to be formed is not subject to objective test. The
language leaves no room for the relevance of a judicial examination as to the sufficiency
of the grounds on which the Government acted in forming its opinion. But there must be
material based on which alone the State Government could form its opinion that it has
become necessary to make substantial modification in the draft development plan.
23. The power conferred by Section 17(1)(a) (ii) read with proviso is a conditional power.
It is not an absolute power to be exercised in the discretion of the State Government, The
condition is formation of opinion - subjective, no doubt - that it had become necessary to
make substantial modifications in the draft development plan. This opinion may be
formed on the basis of material sent along with the draft development plan or on the basis
of relevant information that may be available with the State Government. The existence
of relevant material is a pre-condition to the formation of opinion. The use of word "may"
indicates not only a discretion but an obligation to consider that a necessity has arisen to
make substantial modifications in the draft development plan. It also involves an
obligation to consider which are of the several steps specified in sub-clauses (i), (ii) and
(iii) should be taken.
24. Proviso opens with the words "where the State Government is of opinion that
substantial modifications in the draft development plan and regulations are
necessary ......" These words are indicative of the satisfaction being subjective one but
there must exist circumstances stated in the proviso which are conditions precedent for
the formation of the opinion. Opinion to be formed by the State Government cannot be on
imaginary grounds, wishful thinking, however, laudable that may be. Such a course is
impermissible in law. The formation of the opinion, though subjective, must be based on
the material disclosing that a necessity had arisen to make substantial modifications in the
draft development plan.
25. The formation of the opinion by the State Government is with reference to the
necessity that may have had arisen to make substantial modifications in the draft
development plan. The expression : "so considered necessary" is again of crucial
importance. The term "consider" means to think over; it connotes that there should be
active application of the mind. In other words the term "consider" postulates
consideration of all the relevant aspects of the matter. A plain reading of the relevant
provision suggests that the State Government may publish the modifications only after
consideration that such modifications have become necessary. The word "necessary"
means indispensable, requisite; indispensably requisite, useful, incidental or conducive;
essential; unavoidable; impossible to be otherwise; not to be avoided; inevitable. The
word "necessary" must be construed in the connection in which ft is used. (See-Advanced
Law Lexicon, 3rd Edition, 2005; P. Ramanatha Aiyar)
26. The formation of the opinion by the State Government should reflect intense
application of mind with reference to the
@page-SC1778
material available on record that it had become necessary to propose substantial
modifications to the draft development plan.
27

. In J. Jayalalitha vs. U.O.I.2this Court while construing the expression "as may be
necessary" employed in Section 3 (1) of the Prevention of Corruption Act, 1988 which
conferred the discretion upon the State Government to appoint as many Special Judges as
may be necessary for such area or areas or for such case or group of cases to try the
offences punishable under the Act, observed : 1999 AIR SCW 1579

2 AIR 1999 SC 1912


"The legislature had to leave it to the discretion of the Government as it would be in a
better position to know the requirement. Further, the discretion conferred upon the
Government is not absolute. It is in "The nature of a statutory obligation or duty. It is the
requirement which would necessitate exercise of power by the Government. When a
necessity would arise and of what type being uncertain the legislature could not have laid
down any other guideline except the guidance of "necessity". It is really for that reason
that the legislature while conferring discretion upon the Government has provided that
the Government shall appoint as many Special Judges as may be necessary. The words
"as may be necessary" in our opinion is the guideline according to which the Government
has to exercise its discretion to achieve the object of speedy trial. The term "necessary"
means what is indispensable, needful or essential."
28. In the case in hand, was there any material before the State Government for its
consideration that it had become necessary to make substantial modifications to the draft
development plan? The emphatic answer is, none. The record does not reveal that there
has been any consideration by the State Government that necessity had arisen to make
substantial modifications to the draft development plan. We are of the view that there has
been no formation of the opinion by the State Government which is a condition precedent
for exercising the power under the proviso to Section 17(1)(a)(ii) of the Act.
29. In Barium Chemicals Ltd. vs. Company Law Board3this Court pointed out, on
consideration of several English and Indian authorities that the expressions "is satisfied",
"is of the opinion" and "has reason to believe" are indicative of subjective satisfaction,
though it is true that the nature of the power has to be determined on a totality of
consideration of all the relevant provisions. This Court while construing Section 237 of
the Companies Act, 1956 held :
3 AIR 1967 SC 295
"64. The object of S. 237 is to safeguard the interests of those dealing with a company by
providing for an investigation where the management is so conducted as to jeopardize
those interests or where a company is floated for a fraudulent or an unlawful object.
Clause (a) does not create any difficulty as investigation is instituted either at the wishes
of the company itself expressed through a special resolution or through an order of the
court where a judicial process intervenes. Clause (b), on the other hand, leaves directing
an investigation to the subjective opinion of the government or the Board. Since the
legislature enacted S. 637 (i) (a) it knew that government would entrust to the Board its
power under S. 237 (b). Could the legislature have left without any restraints or
limitations the entire power of ordering an investigation to the subjective decision of the
Government or the Board? There is no doubt that the formation of opinion by the Central
Government is a purely subjective process. There can also be no doubt that since the
legislature has provided for the opinion of the government and not of the court such an
opinion is not subject to a challenge on the ground of propriety, reasonableness or
sufficiency. But the Authority is required to arrive at such an opinion from circumstances
suggesting what is set out in sub-clauses (i), (ii) or (iii). If these circumstances were not
to exist, can the government still say that in its opinion they exist or can the Government
say the same thing where the circumstances relevant to the clause do not exist? The
legislature no doubt has used the expression "circumstances suggesting". But that
expression means that the circumstances need not be such as would conclusively
establish an intent to defraud or a fraudulent or illegal purpose. The proof of such an
intent or purpose is still to be adduced through an investigation. But the expression
"circumstances suggesting" cannot support the construction that even the existence of
circumstances is a matter of subjective opinion. That expression points out that there
must
@page-SC1779
exist circumstances from which the Authority forms an opinion that they are suggestive
of the crucial matters set out in the three sub-clauses. It is hard to contemplate that the
legislature could have left to the subjective process both the formation of opinion and
also the existence of circumstances on which it is to be founded. It is also not reasonable
to say that the clause permitted the Authority to say that it has formed the opinion on
circumstances which in its opinion exist and which in its opinion suggest an intent to
defraud or a fraudulent or unlawful purpose. It is equally unreasonable to think that the
legislature could have abandoned even the small safeguard of requiring the opinion to be
founded on existent circumstances which suggest the things for which an investigation
can be ordered and left the opinion and even the existence of circumstances from which it
is to be formed to a subjective process. These analysis finds support in Gower's Modern
Company Law (2nd Ed.) p. 547 where the learned author, while dealing with S. 165(b) of
the English Act observes that "the Board of Trade will always exercise its discretionary
power in the light of specified grounds for an appointment on their own motion" and that
"they may be trusted not to appoint unless the circumstances warrant it but they will test
the need on the basis of public and commercial morality." There must therefore exist
circumstances which in the opinion of the Authority suggest what has been set out in sub-
clauses (i), (ii) or (iii). If it is shown that the circumstances do not exist or that they are
such that it is impossible for any one to form an opinion therefrom suggestive of the
aforesaid things, the opinion is challengeable on the ground of non-application of mind or
perversity or on the ground that it was formed on collateral grounds and was beyond the
scope of the statute.
30. This Court while expressly referring to the expressions such as "reason to believe",
"in the opinion of observed : "Therefore, the words, "reason to believe" or "in the opinion
of do not always lead to the construction that the process of entertaining "reason to
believe" or "the opinion" is an altogether subjective to process not lending itself even to a
limited scrutiny by the court that such "a reason to believe" or "opinion" was not formed
on relevant facts or within the limits or as Lord Radcliffe and Lord Reid called the
restraints of the statute as an alternative safeguard to rules of natural justice where the
function is administrative."
31. In the Income-tax Officer, Calcutta and Ors. vs. Lakhmani Mewal Das4this court
construed the expressions "reason to believe" employed in Section 147 of the Income-tax
Act, 1961 and observed: the reasons for the formation of the belief must have a rational
connection with or relevant bearing on the formation of the belief. Rational connection
postulates that there must be a direct nexus or live link between the material coming to
the notice of the Income-tax Officer and the formation of his belief that there has been
escapement of the income of the assessee from assessment in the particular year because
of his failure to disclose fully or truly all material facts. It is not any or every material,
howsoever vague and indefinite or distant which would warrant the formation of the
belief relating to escapement of the income of the assessee from assessment. The reason
for the formation of the belief must be held in good faith and should not be a mere
pretence.
4 AIR 1976 SC 1753.
32. We are of the view that the construction placed on the expression "reason to believe"
will equally be applicable to the expression "is of opinion" employed in the proviso to
Section 17 (1) (a) (ii) of the Act. The expression "is of opinion", that substantial
modifications in the draft development plan and regulations, "are necessary", in our
considered opinion, does not confer any unlimited discretion on the Government. The
discretion, if any, conferred upon the State Government to make substantial modifications
in the draft development plan is not unfettered. There is nothing like absolute or
unfettered discretion and at any rate in the case of statutory powers. The basic principles
in this regard are clearly expressed and explained by Prof. Sir William Wade in
Administrative Law (Ninth Edn.) in the chapter entitled 'abuse of discretion' and under
the general heading the principle of reasonableness' which read as under :
"The common theme of all the authorities so far mentioned is that the notion of absolute
or unfettered discretion is rejected. Statutory power conferred for public purposes is
conferred as it were upon trust, not absolutely - that is to say, it can validly be used only
in the right and proper way which Parliament when conferring it is presumed to have
intended. Although the Crown's lawyers
@page-SC1780
have argued in numerous cases that unrestricted permissive language confers unfettered
discretion, the truth is that, in a system based on the rule of law, unfettered governmental
discretion is a contradiction in terms. The real question is whether the discretion is wide
or narrow, and where the legal line is to be drawn. For this purpose everything depends
upon the true intent and meaning of the empowering Act.
The powers of public authorities are therefore essentially different from those of private
persons. A man making his will may, subject to any rights of his dependents, dispose of
his property just as he may wish. He may act out of malice or a spirit of revenge, but in
law this does not affect his exercise of his power. In the same way a private person has an
absolute power to allow whom he likes to use his land, to release a debtor, or, where the
law permits, to evict a tenant, regardless of his motives. This is unfettered discretion. But
a public authority may do none of these things it acts reasonably and in good faith and
upon lawful and relevant grounds of public interest. The whole conception of unfettered
discretion is inappropriate to a public authority, which possesses powers solely in order
that it may use them for the public good. There is nothing paradoxical in the imposition
of such legal limits. It would indeed be paradoxical if they were not imposed."
33. The Court is entitled to examine whether there has been any material available with
the State Government and the reasons recorded, if any, in the formation of opinion and
whether they have any rational connection with or relevant bearing on the formation of
the opinion. The Court is entitled particularly, in the event, when the formation of the
opinion is challenged to determine whether the formation of opinion is arbitrary,
capricious or whimsical. It is always open to the court to examine the question whether
reasons for formation of opinion have rational connection or relevant bearing to the
formation of such opinion and are not extraneous to the purposes of the statute.
34. In the affidavit in reply filed on behalf of the State Government in the High Court, it
was averred what weighed with the State Government to exercise its power under Section
17(1)(a)(ii) of the Act was public interest at large. The State government thought it fit to
classify the lands in question for educational use so that there is a specific pocket of
educational institutional area in the fast developing city of Surat where its population in
the last decade, has almost doubled. If such educational institutional pockets in the
adjoining land, where there already exists the complex of South Gujarat University, are
not ensured in the development plan of the city like Surat, then, in that case, land would
not be available in future. This would resultantly make people to travel long distance
from the city area for educational purpose. Public interest parameter is undoubtedly a
valid consideration that could have been taken into account by the State Government. But
this aspect of the matter is stated for the first time in the affidavit in reply and is not born
out by the record. There is nothing on record suggesting as to what public interest
parameter weighed with the State Government. The question is : was there any material
available on record in support of what has been pleaded in the reply affidavit?
35. Be that as it may, the impugned preliminary notification itself does not reflect
formation of any opinion by the State Government that it had become necessary to make
substantial modifications in the draft development plan and, for that reason, instead of
returning in the plan, decided to publish the modifications so considered necessary in the
Official Gazette along with the notice inviting suggestions or objections with respect to
the proposed modifications. It is very well settled, public orders publicly made, in
exercise of a statutory authority, cannot be construed in the light of explanations
subsequently given by the decision making authority. Public orders made by authorities
are meant to have public effect and must be construed objectively with reference to the
language used in the order itself. (See - Gordhandas Bhanji5and Mohinder Singh Gill and
Ann vs. The Chief Election Commissioner, New Delhi6).
5 AIR 1952 SC 16
6 AIR 1978 SC 851
36. Neither the preliminary notification itself nor the records disclose the formation of
any opinion by the State Government much less any consideration that any necessity as
such had arisen to make substantial modifications in the draft development plan.
37. On consideration of the facts and the material available on record, it is established
@page-SC1781
that the State Government took the action proposing to make substantial modifications to
the plan without forming of any opinion, which is a condition precedent for the use of
power under proviso to Section 17(1)(a)(ii). The power, to restrict the use of land by the
owners thereof, is a drastic power. The designation or reservation of the land and its use
results in severe abridgment of the right to property. Statutory provisions enabling the
State or its authorities to impose restrictions on the right to use one's own land are
required to be construed strictly. The legislature has, it seems to us, prescribed certain
conditions to prevent the abuse of power and to ensure just exercise of power. Section 17
and more particularly the proviso to Section 17(1)(a)(ii) prescribes some of the conditions
precedent for the exercise of power. The order proposing to make substantial
modifications, in breach of any one of those conditions, will undoubtedly be void. On a
successful showing the order proposing substantial modifications and designating the
land of the appellants for educational use under Section 12(2)(o) of the Act has been
made without the State Government applying its mind to the aspect of necessity or
without forming an honest opinion on that aspect, it will, we have no doubt, be void.
38. For the view we have taken to strike down both the notifications and declare them
ultra vires it is unnecessary to go into various other contentions urged before us.
39

. The appellants are deprived of their right to use the land for residential purposes for over
a period of more than a quarter century. The Authority Included the land in the residential
zone but the State Government reserved the land for the purposes of South Gujarat
University but the authority for whose benefit it was required failed to acquire the land
leading to re-reservation of the land for the very same purpose which was ultimately
struck down by this Court in Bhavnagar University (supra). 2002 AIR SCW 4939

40. The present move of the State Government to designate the land for the educational
use under Section 12(2)(o) of the Act is declared ultra vires and void and this shall put an
end to the controversy enabling the appellants to utilize the land for residential purposes.
The authorities including the State Government shall accordingly do the needful, without
creating any further hurdle in the matter.
41. The appeal is, accordingly, allowed with costs.
Appeal allowed.
AIR 2008 SUPREME COURT 1781 "Neeldeep Investments (P) Ltd., M/s. v. The
Custodian"
Coram : 2 C. K. THAKKER AND ALTAMAS KABIR, JJ.
Civil Appeal No.1528 of 2005, D/- 13 -3 -2008.
M/s. Neeldeep Investments (P) Ltd. v. The Custodian and Ors.
Special Court (Trial of Offences Relating to Transactions in Securities) Act (27 of 1992),
S.3 - SPECIAL COURT - SECURITY TRANSACTION - APPEAL - SUPREME
COURT - Recovery of decretal amount - Application by custodian on behalf of Notified
party - Noticee creating difficulties in way of Court and Custodian, firstly, in passing of
decree and then in matter of its execution - Imposition of punishment and sentence on
noticee - Appeal - On consent arrived at between parties Supreme Court premitted
payment of amount in question by instalments - All instalments paid - Application by
custodian for modification of order on ground that amount in respect of one of the
decrees against noticee was not mentioned la order - Supreme Court modified/amended
decretal amount accordingly and directed payment of balance amount.
Constitution of India, Art.133. (Paras 15, 16)

L. Nageshwar Rao, Sr. Advocate, S.R. Mishra, Shallendra Narayan Singh, Vimla Chandra
S. Dave, for Appellants; Subramonium Prasad, for Respondents.
Judgement
1. ALTAMAS KABIR, J. :-This appeal has been filed under Section 10 of the Special
Courts (Trial of Offences Relating to Transactions in Securities) Act, 1992, challenging
the order passed by the learned Special Judge on 12.01.2005 in Show Cause Notice
No.26 of 2003 in Misc. Appeal No.470 of 1999 arising out of Misc. Petition No.43 of
1995. By his judgment and order dated 12.1.2005 the learned Special Judge came to a
finding that the conduct of the appellant herein through the noticee, Milan Dalal, son of
the Notified Party, Bhupen Dalal, was such as to repeatedly create difficulties in the way
of the Court and the Custodian, firstly, in passing the decree, and, thereafter,
@page-SC1782
in the matter of its execution. In the circumstances indicated in the order, the noticee,
Milan Dalai, was sentenced to undergo simple imprisonment for a period of 3 months and
was also directed to pay a fine of Rs. 2,000/-. The said order was suspended for a period
of 12 weeks within which period the appeal was filed in this Court and on 18.3.2005
notice was issued thereupon. While issuing the notice this Court directed that the stay
already granted by the Special Court would continue for a period of 4 weeks. On
29.4.2005 the stay granted was directed to continue until further orders.
2. On 5.1.2006 when the appeal was called on for hearing, this Court passed the
following order.
"We are prima facie of the opinion that having regard to the facts, the order under appeal
does not need to be interfered with. However, at the suggestion of the learned Solicitor
General we adjourn the matter to enable the appellant to consider whether the entire
decretal due of Rs.1,42,56,000/- can be paid.
The matter is adjourned by two weeks."
3. In order to appreciate the circumstances in which the aforesaid order came to be
passed, the facts leading to the filing of the Civil Appeal in this Court are briefly set out
hereunder.
4. Bhupen Dalal, the father of the noticee Milan Dalal, was declared to be a Notified
Party under the provisions of the Special Courts (Trial of Offences Relating to
Transactions in Securities) Act, 1992, hereinafter referred to as the '1992 Act'. The
Custodian under the said Act filed Misc. Petition No.43 of 1995 on behalf of the Notified
Party, Bhupen Dalai for recovery of 1,42,65,000/-with interest from M/s. Neeldeep
Investment Company Private Limited, the appellant herein. On 8.6.1995 the Special
Court passed a decree on that petition and noted that the Notified Party is a majority
shareholder of the judgment debtor M/s. Neeldeep Investment Company Private Limited,
along with noticee Milan Dalai. It was also noted that after Bhupen Dalai was notified
under the said Act the Custodian issued a public notice calling upon the parties to
disclose to him if any money was owed by them to the Notified Party. Despite such
public notice, the judgment debtor which was practically a family concern of the Notified
Party did not come forward to disclose that the judgment debtor owed huge amounts to
the Notified Party. It was noted that the Custodian came to know of the liability only on
account of information given by the Income Tax Department. It is on the basis of such
information that the Custodian had taken out the Misc. Petition No.45 of 1995.
5. The judgment debtor appeared in those proceedings and admitted the said liability and
on that basis a decree was passed against the judgment debtor by the learned Special
Judge.
6. In order to execute the decree the Custodian filed Misc. Application No.4 of 1999 and
on that application on 24.11.1999 the Court passed an interim order restraining the
judgment debtor and its Director from in any manner disposing of, transferring, alienating
or encumbering all of their properties. On behalf of the judgment debtor, the noticee filed
an affidavit disclosing that the judgment debtor had to recover substantial amounts from
six parties namely 1) M/s. Lighthouse Investments Limited, 2) Oceanic Investments
Limited, 3) Kalpvruksha Holdings and Investments Co. Pvt. Ltd., 4) Harisharan
Developers Private Limited, 5) M/s. S. Ramdas and 6) M/s. Anmol Chemicals (Guj)
Limited.
7. On the basis of the information disclosed by the noticee in his said affidavit on
15.12.1999, the Custodian took out garnishee notices. Pursuant to notice to the garnishees
they appeared and filed affidavits and the common defence taken was that though they
admittedly owed amounts to the judgment debtor, the said amounts were adjusted on
acceptance of shares of different companies by the judgment debtor towards repayment
of the dues. At that stage the Special Court passed order dated 19.9.2003 where reference
was made to the earlier order dated 24.11.1999. Show Cause Notice was issued pursuant
to the order dated 19.9.2003 under Section 11-A of the said Act wherein it was stated that
the noticee was to be tried for having disobeyed the order dated 24.11.1999. Although,
several defences were taken on behalf of the noticee, the learned Special Judge held by
his order dated 12.1.2005 that the conduct of the noticee showed that in the instant case
attempts had repeatedly been made to create difficulties in the way of the Court and the
Custodian, firstly. In the passing of the
@page-SC1783
decree and then in the matter of its execution. The learned Special Judge accordingly felt
that it would be appropriate to impose deterrent punishment on the noticee and sentenced
him to undergo simple imprisonment for a period of three months and to pay a fine of Rs.
2,000/- as stated hereinbefore.
8. It is in this background that on 20.1.2006 this Court passed the following order :
"It is proposed by learned counsel appearing on behalf of the appellant that his client will
pay an amount of Rs. 1,26,25,000/- (Rupees one crore twenty six lakhs and twenty five
thousands) (being the balance of the decretal amount of Rs. 1,42,00,000 (Rupees one
crore and forty two lakhs seventy five thousands) paid by the garnishee by three
instalments in the course of 2006. The first instalment shall be paid on 3rd April, 2006,
the second on 10th July and the third by 4th December, 2006.
The learned Solicitor General appearing on behalf of the Custodian has submitted that as
far as contempt proceedings are concerned, his client is willing to accept the offer of the
appellant but submits that this should not in any way affect the ultimate liability of the
appellant to pay the decreal amount.
In this view of the matter we adjourn the passing of the order on the basis of the consent
as arrived at between the parties, till 3rd April, 2006 when the petitioner will bring the
first instalment of the amount to Court. In the event the payment of all the instalments is
made as aforesaid, this appeal will stand allowed and the order of the High Court will
stand set aside and the garnishee notice will be discharged.
In default of payment of any one instalment or any portion thereof, the appeal will stand
dismissed and the impugned order of the High Court will become operative.
Adjourned to 3rd April, 2006."
9. Pursuant to the aforesaid order on 3.4.2006 the appellant brought two cheques towards
payment of the first instalment. The matter was directed to appear after 2 weeks to ensure
that the cheques were duly encashed. Subsequently, on 14.7.2006 it was recorded that the
second cheque which was payable on 10.7.2006 in terms of the order dated 20.1.2006 had
also been paid and that the third instalment was payable by 4.12.2006. The matter was
directed to be listed in the last week of December 2006, and, in the meantime, the hearing
of the garnishee notices before the Special Court, Murnbai, was stayed.
10. The matter thereafter appeared on 22.1.2007 when it was adjourned for a period of 4
weeks and then again on 23.2.07 it was adjourned for a further period of 4 weeks for
filing a rejoinder affidavit. A third adjournment of 4 weeks was granted on 30.3.2007 and
on 27.4.07 the matter was directed to be listed for final disposal in September, 2007.
11. The matter thereafter appeared for hearing on 14.11.2007 and on the said date after
hearing the parties the matter was adjourned further to enable the parties to file the facts
relating to the execution proceedings and the actual amount alleged to be due on account
of an error in the decretal amount which went unnoticed when the decree was passed.
12. Thereafter, an application was filed by the Custodian for modification of the order
passed in this appeal on 20th January, 2006. In the said application, it was clarified that
two separate decrees were passed by the Special Court against the respondent No. 1, one
was for recovery of a sum of Rs. 1,42,65,000/- with interest at the rate of 24% per annum
from the date of receipt of amount till payment and the other for a sum of Rs. 32,14,500/-
with interest at the rate of 15% per annum from the date of receipt of the amount till
payment. Despite the fact that two decrees had been passed for a total sum of Rs.
1,74,79,500/- in the decree the sum of Rs.1,42,65,000/- was mentioned together with
interest. It has been stated in the application that the total principal amount should be
mentioned as Rs. 1,74,79,500/- together with interest payable thereon instead of Rs.
1,42,65,000/- as indicated. By the said application, it was, therefore, prayed that the order
dated 20th January, 2006, was required to be modified by correcting the principal amount
mentioned in the decree to be Rs. 1,74,79,500/-minus Rs.15,75,000/-, which had already
been recovered, together with interest as decreed by the Special Court in its order dated
8th June, 1995.
@page-SC1784
13. The said application was also heard at the time of hearing of the appeal.
14. The fact that two separate decrees were passed for the sum of Rs.1,42,65,000/-and
Rs.32,14,500/- is not disputed, though, an attempt was made to establish that the two
were separate and would have to be dealt with separately. On behalf of the appellant it
was submitted that the order dated 20th January, 2006, had been fully implemented as the
entire decretal amount of Rs. 1,42,65,000/- had been paid in three instalments, and it is
only thereafter that an attempt was made by the Custodian to claim the further sum of
Rs.32,14,500/-together with interest thereon.
15. We do not see any force in the said submissions since both the decretal amounts
against the appellant have been mentioned in the order dated 19th September, 2003,
passed in Misc. Application No.470 of 1999 filed by the Custodian. We accordingly
allow the said application. The decretal amount shall be corrected to read as Rs.
1,59,04,500/- together with interest as decreed by the Special Court upon credit having
been given for Rs. 15,75,000/- which has already been recovered by the Custodian.
16. After taking into account the decretal amount as amended, together with interest as
directed by the Special Judge in his order dated 8th June, 1995 in M.P. 43/ 1995, the
appellant is directed to pay the balance decretal amount within 30th June, 2008, in three
equal instalments commencing from the month of April, 2008. The first of such
instalments shall be paid by 15th April, 2008, and the next two instalments by the 15th
day of May, 2008 and 30th June, 2008. The last instalment shall include any broken
amount left over after payment of the first two instalments. The hearing of the garnishee
notices before the Special Court, Mumbai, shall remain stayed till the said date, and in
case of default of such payment being made, this order will cease to be operative and the
order appealed against will stand revived.
17. There will be no order as to costs.
18. The appeal is disposed of in the above terms.
Order accordingly.
AIR 2008 SUPREME COURT 1784 "Yogesh Ramchandra Naikwadi v. State of
Maharashtra"
(From : 2006 (4) AIR Bom R 583)
Coram : 2 K. G. BALAKRISHNAN AND R. V. RAVEENDRAN, J.
Civil Appeal No.2079 of 2008 (arising out of SLP (C) No. 8241 of 2006), D/- 7 -3 -2008.
Yogesh Ramchandra Naikwadi v. State of Maharashtra and Ors.
Constitution of India, Art.226 - WRITS - EDUCATION - CASTE SCRUTINY -
Education - Recalling of degree - Caste claim of appellant rejected by Scrutiny
Committee before admission to B.E. Course - Appellant given admission to B.E. Course
in reserved seat as per direction of H.C. - No allegation that caste certificate was forged -
Admission in fact was given 13 years back and degree secured 4 years back - Recalling
of degree in circumstances would not be proper - Conditions, however, imposed on
appellant for retaining his degree.
2006 (4) AIR Bom R 583, Reversed. (Para 7)
Cases Referred : Chronological Paras
2004 AIR SCW 419 : AIR 2004 SC 1469 : 2004 Lab IC 556 (Expln.) 3, 4, 5, 6, 7
2000 AIR SCW 4303 : AIR 2001 SC 393 (Expln.) 3, 4, 5, 6, 7
Vinod A. Bobde, Sr. Advocate, Shivaji M. Jadhav, Rahul Joshi and Brij Kishor Sah, for
Appellant; Sanjay V. Kharde and Ms. Asha Gopalan Nair, for Respondents.
Judgement
K. G. BALAKRISHNAN, C.J.I. :- Leave granted. Heard learned counsel for the parties.
2. The appellant sought admission to Engineering course claiming the benefit of
reservation alleging that he belonged to 'Mahadeo Koli' - a scheduled tribe. The Scrutiny
Committee which verified the validity of his caste certificate, made an order dated
29.3.1995 rejecting his claim that he belonged to a Scheduled Tribe. The appellant
challenged the order of the scrutiny committee in W.P. No.2667/1995. In the said petition,
the Bombay High Court issued an Interim order directing the third respondent (Director
of Technical Education, State of Maharashtra) to accept the application of Appellant for
admission to BE course and process the same and give admission by treating him as a
candidate belonging to a scheduled tribe, with a condition that the admission, if granted,
will be provisional and subject to the final decision. In pursuance
@page-SC1785
of it, the appellant was admitted to the BE course by extending the benefit of reservation
under the quota for Scheduled Tribes. Eventually he completed the Engineering course
and was conferred a degree by the University of Pune on 31.3.2004.
3

. The writ petition filed by the Appellant was dismissed by order dated 28.3.2006,
upholding the order of the Scrutiny Committee, with a direction to the third Respondent
to take appropriate steps for recall of the degree granted to the appellant. The said order
of the High Court is challenged in this appeal by special leave. The only contention urged
by the appellant is that even if his scheduled tribe claim was rejected, he should not have
been denied the benefit of the degree obtained by him. In support of this contention, he
relied on the decisions of this Court in State of Maharashtra v. Milind, (2001) 1 SCC 4
and R. Vishwanatha Pillai v. State of Kerala, (2004) 2 SCC 105. 2000 AIR SCW 4303
2004 AIR SCW 419
2000 AIR SCW 4303, Para 37

4. In Milind, a Constitution Bench of this Court while rejecting the caste claim of first
Respondent therein, extended the benefit of retention of degree to him on the following
reasoning :-
"Respondent 1 joined the medical course for the year 1985-86. Almost 15 years have
passed by now. We are told he has already completed the course and may be he is
practicing as a doctor. In this view and at this length of time it is for nobody's benefit to
annul his admission. Huge amount is spent on each candidate for completion of medical
course. No doubt, one Scheduled Tribe candidate was deprived of Joining medical course
by the admission given to Respondent 1. If any action is taken against Respondent 1, it
may lead to depriving the service of a doctor to the society on whom public money has
already been spent. In these circumstances, this judgment shall not affect the degree
obtained by him and his practising as a doctor. But we make it clear that he cannot claim
to being to the Scheduled Tribe covered by the Scheduled Tribes Order. In other words,
he cannot take advantage of the Scheduled Tribes Order any further or for any other
constitutional purpose."

In Vishwanatha Pillai, this Court, following Milind, permitted one of the appellants
therein, who had been admitted to an Engineering Degree College against a seat reserved
for a scheduled caste and whose caste claim was negatived, to be allowed to take his
degree with the condition that he will not be treated as a Scheduled Caste candidate in
future either for securing employment or other benefits on the basis of the cancelled caste
certificate. 2004 AIR SCW 419

. In Milind, the question was whether the first respondent who belonged to 'Koshti' caste
could claim the benefit of ST reservation on the ground that it was a sub-tribe of 'Halba'
[Entry No. 19 in Part IX of the Constitution (Scheduled Tribes) Order 1950]. This Court
held that 'Koshti' was not a part of the Scheduled Tribe of Halba and that the entries in the
Scheduled Tribes Order could not be amended or expanded by any Authority. As a
consequence, the State's appeal was allowed and the claim of first respondent therein that
he belonged to a scheduled tribe was rejected. Having allowed the State's appeal, this
Court moulded the relief in exercise of its power under Article 142 by permitting the first
Respondent therein to retain the benefit of his degree (for the reasons extracted above).
Vishwanatha Pillai merely followed Milind. In Milind, there was a bona fide doubt as to
whether 'Halba-Koshti' could be considered as 'Halba'. In Vishwanatha Pillai, the
candidate's caste certificate was cancelled merely as a consequence of cancellation of his
father's caste certificate. Thus in Milind and Vishwanatha Pillai. the candidates apparently
believed that they belonged to a scheduled tribe/caste when they sought admission and
were admitted. Further, their caste certificates showing them as belonging to a scheduled
tribe/caste had not been invalidated when they were admitted to the course. The direction
in both cases permitting retention of degree was in exercise of power under Article 142 of
the Constitution. 2004 AIR SCW 419
2000 AIR SCW 4303

. There may however be cases where it will not be proper to permit the student to retain
the degree obtained by making a false claim. One example is where the candidates secure
seats by producing forged or fake caste certificates. There may be cases, where knowing
full well that they do not belong to a scheduled tribe/caste, candidates may make a false
claim that they belong to a scheduled tribe/caste. There may also be cases where even
before the date of admission, 2000 AIR SCW 4303
2004 AIR SCW 419

@page-SC1786
the caste certificates of the candidates might have been invalidated on verification by the
Scrutiny Committee. There may be cases where the admissions may be in pursuance of
interim orders granted by courts subject to final decision making it clear that the
candidate will not be entitled to claim any equities by reason of the admission. The
benefit extended in Milind and Vishwanatha Pillai, cannot obviously be extended
uniformly to all such cases. Each case may have to be considered on its own merits.
Further what has precedential value is the ratio decidendi of the decision and not the
direction issued while moulding the relief in exercise of power under Article 142 on the
special facts and circumstances of a case. We are therefore of the view that Milind and
Vishwanatha Pillai cannot be considered as laying down a proposition that in every case
where a candidate's caste claim is rejected by a caste verification committee, the
candidate should invariably be permitted to retain the benefit of the admission and the
consequential degree, irrespective of the facts.
7. We may therefore examine the facts of this case to decide whether the appellant should
be given any benefit and if so whether they should be similar to relief granted in Milind
and Vishwanatha Pillai. As the caste claim of the appellant had been rejected by the
Scrutiny Committee even before admission, this case stands on a different footing. But in
this case though the scrutiny committee had rejected the appellant's claim even prior to
his admission to the professional course, the High Court by order dated 22.6.1995 had
directed the Director of Technical Education to accept the admission form of appellant
without insisting upon the validation of caste and to process the same as if appellant
belonged to Scheduled Tribe, making it clear that admission if any made was provisional,
and if the appellant failed in his petition he will not be entitled to the benefit of degree he
may obtain. As observed in Milind, if the appellant's admission or degree is to be
annulled, it is to nobody's benefit as his seat cannot be offered to someone else. There is
also no allegation that appellant forged or faked the caste certificate. His admission to
engineering course was nearly thirteen years back and he secured the degree more than
four years back. We are therefore of the view that the appellant herein should be
permitted to retain the benefit of the degree but subject to terms. The first is that he shall
not claim or seek any further benefit by claiming to belong to a scheduled Tribe. The
second is that if the State has spent or incurred any expenditure on the appellant's
professional degree education by extending the benefit of exemption from payment of fee
or award of scholarship or by extending the benefit of concession in fee (that is less than
what is charged to general category students) by treating him as a Scheduled Tribe
candidate, the appellant cannot retain such financial benefits. The third Respondent may,
on behalf of the State Government, take appropriate steps to enquire and assess the
amount, if any spent on the appellant either towards fee, scholarship or by way of
concession in fee and make a demand on appellant for payment thereof. If the appellant
fails to pay the amount so found due within six months of the demand by the third
Respondent, the third Respondent may take steps for recalling the degree granted to the
appellant. If no amount is found to be due or if the amount determined and demanded is
paid by appellant, he may be permitted to retain the degree obtained by him.
8. The appeal is accordingly allowed in part, deleting the direction of the High Court to
the third respondent to take steps to recall the degree awarded to the appellant.
Appeal allowed.
AIR 2008 SUPREME COURT 1786 "Bal Krishna v. Bhagwan Das"
(From : Madhya Pradesh)*
Coram : 2 PRAKASH PRABHAKAR NAOLEKAR AND LOKESHWAR SINGH
PANTA, JJ.
Civil Appeal No.4033 of 2004, D/- 25 -3 -2008.
Bal Krishna and Anr. v. Bhagwan Das (Dead) by L.Rs. and Ors.
(A) Specific Relief Act (47 of 1963), S.16(c) - CONTRACT - PLAINT - Suit for specific
performance of contract - Averment in plaint of plaintiffs readiness and willingness to
perform contract - Is mandatory. (Para 8)
(B) Specific Relief Act (47 of 1963), S.20 - CONTRACT - Specific performance - Relief
of, is discretionary - Considerations relevant for grant of such relief.
@page-SC1787
The relief for specific performance lies in the discretion of the Court and the Court is not
bound to grant such relief merely because it is lawful to do so. The exercise of the
discretion to order specific performance would require the Court to satisfy itself that the
circumstances are such that it is equitable to grant decree for specific performance of the
contract. While exercising the discretion, the Court would take into consideration the
circumstances of the case, the conduct of parties, and their respective interests under the
contract. No specific performance of a contract, though it is not vitiated by fraud or
misrepresentation, can be granted if it would give an unfair advantage to the plaintiff and
where the performance of the contract would involve some hardship on the defendant,
which he did not foresee. In other words, the Court's discretion to grant specific
performance is not exercised if the contract is not equal and fair, although the contract is
not void. (Para 8)
(C) Specific Relief Act (47 of 1963), S.16 - CONTRACT - AGREEMENT - Specific
performance - Agreement of reconveyance - Suit based on agreement for resale for lesser
consideration than for sale - Plaint allegation that by a second agreement for resale terms
of first agreement were made complete - Second agreement, however, making no
reference to first agreement - Resale promised under second agreement was for
consideration equal to sale consideration - Averments in plaint as well as evidence
adduced showing that plaintiff were ready and willing to perform contract only as per
first resale agreement - Plaintiff's held, not entitled to decree of specific performance.
(Paras 15, 16, 17)
Cases Referred : Chronological Paras
(2005) 6 SCC 243 (Rel. on) 14
2000 AIR SCW 2554 : AIR 2000 SC 2408 (Rel. on) 14
1999 AIR SCW 2959 : AIR 1999 SC 3029 (Rel. on) 14
S.K. Gambhir, Sr. Advocate, D.M. Shali, Anil Sharma and T.N. Singh with him, for
Appellants; A.K. Chitale, Sr. Advocate, Niraj Sharma, Vikrant Singh Bais and Ms. Charu
Kapoor with him, for Respondents.
* First Appeal Nos. 93 and 118 of 1980, D/- 7-5-2002 (M.P.) (Indore Bench).
Judgement
1. P. P. NAOLEKAR, J. :-By this appeal, the appellants (plaintiffs in the suit) (hereinafter
referred to as the plaintiffs for the sake of convenience) have challenged the judgment
and order of the High Court dated 7.5.2002 whereby the suit filed by the plaintiffs on
10.5.1973 for specific performance of the contract to reconvey the suit property by
Manaklal, the predecessor-in-interest of respondents Nos. 1 and 2 herein (original
defendant No. 1 in the suit) (hereinafter referred to as the defendant for the sake of
convenience) was dismissed by the High Court.
2. The facts necessary are that the suit property was a joint family property of the
plaintiffs, namely, Bal Krishna and Ramanlal, both brothers and their late grandmother
Mainabai. The parents of the plaintiffs as also their grandfather late Ramnarayan Bhutda,
husband of late Mainabai had died much before the execution of the transaction in
dispute. On 19.7.1952, when the plaintiffs were minors, their late grandmother Mainabai
purporting to act for herself and as guardian of the plaintiffs executed a registered sale
deed vide Exhibit D/1 for consideration which was stated to be Rs.25,000/- in the sale
deed and delivered possession to the defendant/ vendee. Mainabai died on 1.3.1964 and
her legal representatives, besides the plaintiffs, were joined as pro forma defendants Nos.
2 to 14. In the plaint, it was pleaded by the plaintiffs that they being in need of funds
required for discharging the business debts of the joint family of the plaintiffs, their
grandmother Mainabai, for herself and as their guardian entered into an agreement with
the defendant, according to which a sale deed of the suit house was executed by her on
behalf of herself and as guardian of the plaintiffs in favour of the defendant and the
defendant was to execute an agreement of re-conveyance on certain terms and conditions
in favour of said Mainabai and the plaintiffs. Accordingly, Mainabai purporting to act on
her own behalf and also as guardian of the plaintiffs, who were both minors at that time,
executed a registered sale deed of the house on 19.7.1952 in favour of the defendant for
consideration which was stated in the deed to be a sum of Rs.25,000/-and delivered
possession of the house to him except one room and one gachhi which is still in
possession of the plaintiffs. Although the consideration mentioned in the sale deed was
stated to be Rs.25,000/-, as a matter of fact only a sum of Rs. 10,000/-was paid by the
defendant as consideration
@page-SC1788
which has been clearly accepted and acknowledged by the defendant in the agreement of
re-conveyance which he later executed in favour of Mainabai and the plaintiffs on the
same day. By this agreement, the defendant agreed to reconvey the house to Mainabai
and the plaintiffs after receiving from them the sum of Rs. 10,000/- and interest on this
amount. It was further pleaded by the plaintiffs that all essential terms of re-conveyance
not having been fully and properly stated in the aforesaid agreement which was executed
by the defendant on 19.7.1952, certain terms and conditions were notified by a further
agreement which the defendant executed in favour of the plaintiffs and their grandmother
Mainabai on 21.7.1952. The terms and conditions for re-conveyance as agreed and stated
in this document were as follows :
(1) The defendant No.1 will reconvey the house to Mainabai and the two plaintiffs
whenever they shall call upon him to do so by a notice in writing.
(2) For such re-conveyance, Mainabai and the two plaintiffs will be liable to pay the
defendant No. 1 the real and original amount which the later had paid to them for the
initial sale of the house, together with interest on it @ 6% per annum from the date of the
original sale to the date of re-conveyance.
(3) The amount which the defendant No. 1 shall realize by way of rent of the house in
question shall after deducting from it the amount spent by him on house-tax, water tax,
tokhat tax, electric charges and expenditure on repairs, be either paid to him to Mainabai
and the plaintiffs or credit for it shall be given to them towards the amount payable by
them for the reconveyance.
(4) No amount on account of electric charges or water charges shall be deducted by the
defendant No. 1 from the rent collected by him in case he was not required to pay the
same and it was collected by him from the tenants.
(5) It will be open to Mainabai and the plaintiffs to pay to the defendant No. 1 such sums
as they may like from time to time towards the price of reconveyance and the same shall
be accepted and accounted for by the defendant No. 1 when accounts shall be taken and
interest shall be calculated by 'kat-miti.
It was further pleaded in the plaint that towards the said agreement of reconveyance, the
plaintiffs had paid to the defendant Rs.1,000/- on 13.10.1953 and Rs.4,000/-on 1.2.1955
and the defendant has executed in their favour two receipts on 13.10.1953 and 1.2.1955
respectively. As per the plaint, according to the agreement of reconveyance, the plaintiffs
and defendants Nos. 2 to 14 were entitled to require the defendant (No. 1) to reconvey the
suit house to them by a registered deed after receiving from them the amount of
consideration payable to him as per that agreement. He had already been paid Rs.1,000/-
on 13.10.1953 and Rs. 4,000/- on 1.2.1955. He was further entitled to receive the balance
amount of Rs.5,000/- less the net rental income of the house received by him which was
to be ascertained after taking an account. For determining the precise balance of the
consideration payable to the defendant according to the agreement of reconveyance he
was to give an account of all sums collected by him as rent of the house and also of all
sums spent by him on account of taxes, repairs or any other charges and after deducting
the amounts spent by him from the payable amount realized as rent, to adjust the sum
towards the balance amount of Rs. 5,000/-and interest which was to be paid to him. On
7.5.1973, the plaintiffs had approached the defendant personally and requested him to
take the balance price of Rs. 5,000/- together with interest of Rs. 10,000/- by kat-miti and
after adjusting towards it the net rental income realized by him to be ascertained after an
account, to reconvey the house to the plaintiffs and defendants Nos. 2 to 14 by executing
a registered sale deed of the house in their favour at their own cost. Then in paragraph 12
of the plaint, it was averred that 'the plaintiffs have been and are ready and willing to
perform their part of the contract according to its true construction'. As per the plaint, the
cause of action accrued on service of notice on 9.5.1973 when the defendant failed to
comply with the plaintiffs notice dated 7.5.1973. For the purposes of court fee and
jurisdiction, the suit for specific performance was valued according to the consideration
for the re-conveyance on it by kat-miti from 19.7.1952 to the date when the defendant
failed to perform the contract in spite of notice taking into account the two payments of
Rs. 1,000/- and Rs. 4,000/- already made to the defendant. The amount of interest by kat-
miti on Rs. 10,000/- comes to Rs.6,930/-. Accordingly, the suit for specific performance
@page-SC1789
was valued at the total amount of Rs. 16,980/- for the purposes of court fee and
jurisdiction. The plaintiffs, inter alia, made a prayer that 'defendant No. 1 may be directed
to reconvey the suit house to the plaintiffs and defendants Nos. 2 to 14 by a registered
sale deed to be executed by him in consideration of Rs. 11,930/- and to deliver possession
of the same to them.
3. The defendant had died even before filing of the written statement which was then
filed by his legal representatives. It was denied in the written statement that the sale deed
dated 19-5-1952 was for consideration of Rs. 10,000/- only and not for Rs. 25,000/-.
Agreement of re-conveyance by Manaklal either on 19-7-1952 or 21-7-1952 was denied.
They also denied the terms set out in the agreement. It was submitted that the signature of
Manaklal was obtained by the plaintiffs on some papers in connection with a suit filed
against late Ramanandji, father of the plaintiffs and it appeared to them that false
agreement and receipts had been prepared by the plaintiffs using those signed papers. The
demand either oral or by any letter by the plaintiffs from late Manaklal for execution of
the sale deed was denied.
4. The trial court recorded the finding that the sale deed was for Rs. 25,000/- and not Rs.
10,000/-; that there was an agreement of re-conveyance between the parties but for a total
consideration of Rs. 25,000/-; that the agreement dated 21-7-1952, not the one dated 19-
7-1952, was enforceable; that the plaintiffs had paid Rs. 5,000/- to late Manaklal and they
had always been and were still willing to perform their part of the contract; that the suit
was within limitation; and that the plaintiffs were entitled to get the deed of re-
conveyance executed from the legal representatives of late Manaklal on payment of
balance amount of Rs. 20,000/-. On these findings, the plaintiffs claim for specific
performance was decreed with direction to the plaintiffs to pay or deposit the balance
consideration amount of Rs. 20,000/-.
5. Both parties aggrieved by the impugned judgment and decree of the trial court filed
first appeals before the High Court. The grievance of the plaintiffs was that the trial court
committed an error in holding that the sale deed dated 19.7.1952 was for a total sum of
Rs.25,000/- and that said amount was fixed as consideration for executing the deed of re-
conveyance. It was asserted that the plaintiffs were liable only to pay Rs. 10,000/- as
consideration amount to get the deed of re-conveyance from the legal representatives of
late Manaklal, whereas the legal representatives of late Manaklal (deceased defendant
No. 1) assailed the entire judgment and decree contending that the trial court erred in
holding that execution of the two agreements Ex.P/1 and Ex. P/2 was duly proved; that
the two documents were not only contradictory and Inconsistent but also suspicious. The
finding that a sum of Rs. 5,000/- was paid to late Manaklal and plaintiffs willingness to
perform their part of the contract were also challenged. It was submitted that as per the
plaintiffs own showing it was clear that they were never ready or willing to pay the entire
consideration for reconveyance as stipulated in the agreement Ex.P/2 and the plaintiffs
readiness and willingness was only to make the payment as per the agreement Ex.P/1
dated 19.7.1952 and not agreement Ex.P/2 dated 21.7.1952.
6. Both appeals - one filed by the plaintiffs and the other by legal representatives of late
Manaklal - were dismissed by the High Court on 10.4.1995. However, in letters patent
appeals, the judgment dated 10.4.1995 was set aside and the cases were remanded back to
the learned Single Judge for rehearing and deciding the matter afresh.
7. On remand, the High Court found that as per plaintiffs own showing a subsequent
agreement Ex.P/2 was entered into between the parties on 21-7-1952, i.e., two days after
execution of the agreement Ex.P/1 dated 19-7-1952. It was observed by the High Court
that although it was the case of the plaintiffs that the subsequent agreement Ex.P/2 was
executed by way of modification/clarification of the agreement Ex.P/1, but a bare reading
of the agreement Ex.P/2 would show that it was wholly an independent document making
absolutely no reference of Ex.P/1. So even if the agreement Ex.P/1 was executed between
the parties, the same stood substituted by a new agreement Ex.P/2 and the agreement
Ex.P/1 became non-existent and neither of the parties was obliged to perform the same.
The execution of the agreement Ex.P/2 was not seriously contested by the counsel for the
defendants and the High Court concurred with the finding of the trial court that the
factum of execution of agreement Ex.P/2 dated 21-7-1952 was duly established. The
High Court further considered whether the
@page-SC1790
plaintiffs were ready and willing to perform their part of the contract as per the agreement
Ex.P/2 and held that clause (c) of Section 16 of the Specific Relief Act, 1963 provides
that specific performance of a contract cannot be enforced in favour of a person 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. Explanation (ii) to
clause (c) makes it clear that the plaintiff must aver performance of, or readiness and
willingness to perform, the contract according to its true construction. The compliance of
the requirement of Section 16(c) is mandatory and in the absence of necessary averment
in the plaint and in the absence of proof of the same that the plaintiff has always been
ready and willing to perform his part of the contract, a suit cannot succeed. The High
Court has held that the plaintiffs have failed to make averment and lead evidence to prove
their readiness and willingness to perform their part of the contract according to its true
construction, i.e., in accordance with the terms and conditions of the agreement dated
21.7.1952. The High Court has further held that although the sale deed was dated 19-7-
1952 and the agreement to re-conveyance was dated 21-7-1952 the only step taken by the
plaintiffs was to pay back the amount of Rs. 1,000/- on 13.10.1953 and amount of Rs.
4,000/- on 1-2-1955 and thereafter till the service of notice dated 7-5-1973 and 10-5-1973
when the suit was filed, no steps were taken by the plaintiffs on their part to show their
readiness or willingness to perform their part of the contract. Plaintiff No. 1 kept quiet
almost for 18 years after attaining majority and plaintiff No. 2 for 7 years, which is
indicative of callous indifference and wilful negligence on the part of the plaintiffs and,
therefore, they were held not entitled for equitable relief of specific performance of the
contract in their favour and consequently the decree for specific performance passed by
the trial court was set aside and plaintiffs suit was dismissed. However, the legal
representatives oflate Manaklal (original defendant No. 1 in the suit) were directed to pay
back to the plaintiffs a sum of Rs. 5,000/- with interest at the rate of 6 per cent per
annum. Aggrieved by this order, the plaintiffs have come up before this Court by filing a
special leave petition which has been converted into the present appeal.
8. Section 16 of the Specific Relief Act, 1963 (hereinafter referred to as "the Act")
corresponds with Section 24 of the old Act of 1877 which lays down that the person
seeking specific performance of the contract, must file a suit wherein he must allege and
prove that he has performed or has been ready and willing to perform the essential terms
of the contract, which are to be performed by him. The specific performance of the
contract cannot be enforced in favour of the person who fails to aver and prove his
readiness and willingness to perform essential terms of the contract. Explanation (ii) to
clause (c) of Section 16 further makes it clear that plaintiff must aver performance of, or
readiness and willingness to perform, the contract according to its true construction. The
compliance of the requirement of Section 16(c) is mandatory and in the absence of proof
of the same that the plaintiff has been ready and willing to perform his part of the contract
suit cannot succeed. The first requirement is that he must aver in plaint and thereafter
prove those averments made in the plaint. The plaintiffs readiness and willingness must
be in accordance with the terms of the agreement. The readiness and willingness of the
plaintiff to perform the essential part of the contract would be required to be
demonstrated by him from the institution of the suit till it is culminated into decree of the
court. It is also settled by various decisions of this Court that by virtue of Section 20 of
the Act, the relief for specific performance lies in the discretion of the court and the court
is not bound to grant such relief merely because it is lawful to do so. The exercise of the
discretion to order specific performance would require the court to satisfy itself that the
circumstances are such that it is equitable to grant decree for specific performance of the
contract. While exercising the discretion, the court would take into consideration the
circumstances of the case, the conduct of parties, and their respective interests under the
contract. No specific performance of a contract, though it is not vitiated by fraud or
misrepresentation, can be granted if it would give an unfair advantage to the plaintiff and
where the performance of the contract would involve some hardship on the defendant,
which he did not foresee. In other words, the courts discretion to grant specific
performance is not exercised if the contract is not equal and fair, although the contract is
not void.
@page-SC1791
9. As per the pleadings, the plaintiffs allegation is that on the date of the execution of the
said deed dated 19.7.1952, there was an agreement of resale entered into between the
parties on 19.7.1952 itself. It is further alleged that as the terms of the agreement dated
19.7.1952 were not complete, another supplementary agreement of reconveyance was
entered into and executed between the parties on 21.7.1952.
10. On 19.7.1952, an agreement is said to have been executed by Manaklal, predecessor-
in-title of the defendants in favour of the plaintiffs. As per that agreement, he had
purchased the suit house by a registered sale deed on the same day. Although an amount
of Rs.25,000/- has been mentioned in the sale deed as sale consideration, he had not paid
the said amount to the plaintiffs. He had only given Rs.10,000/- and the balance amount
has been paid by the plaintiffs which has been added to the amount and the amount of
Rs.25,000/- has been paid as sale consideration. When the resale of the house will be
executed, the plaintiffs will be required to pay only an amount of Rs. 10,000/- along with
interest and the sale deed will be executed. Execution of this document does not stand to
reason as to how the amount of Rs. 15,000/- has been paid by the plaintiffs to the
defendant to be included along with the amount of Rs. 10,000/- which has been paid by
him to show the consideration of Rs.25,000/- as sale consideration. When the need of
execution of the sale deed in favour of the defendant was alleged to be the plaintiffs need
of money on that date, then how it is that Rs. 15,000/- has been paid by the plaintiffs to
the defendant whereas only Rs. 10,000/-was secured by sale of the house to the
defendant. If the plaintiffs were in need of money and already possessed of Rs. 15,000/-,
then why they will sell the house for a consideration Rs. 10,000/- only. Apart from this
fact, the amount of Rs.10,000/- in the document is written by hand, whereas other
contents of the document are typed. The handwritten figure has not been initialled by the
defendant or the plaintiffs. The sale deed executed on 19.7.1952 shows that the
consideration for the sale of the house was paid : Rs.5000/- as cash and Rs.20,000/-by
way of Cheque No.877383 drawn on Punjab National Bank, Siyaganj Branch. Sale deed
does not show that the amount of Rs.10,000/- was paid in cash. Endorsement on the sale
deed shows that this amount was paid by cash and cheque to the plaintiffs before the
Registrar. These facts clearly belies the case of the plaintiffs that the sale deed was
executed for only amount of Rs.10,000/- and that agreement of resale was executed by
the defendant for a consideration of Rs. 10,000/- only. Both the courts have for different
reasons disbelieved this document. Execution of the document for resale on the date of
execution of the sale deed for different consideration by the defendant than the sale
consideration cannot be believed.
11. Ex.P/2 dated 21.7.1952 is a document executed by the defendant after execution of
the sale deed dated 19.7.1952 and the alleged document Ex.P/1 dated 19.7.1952. It is the
plaintiffs case that as the terms of Ex.P/1 were not complete, the second document was
executed on 21.7.1952. From a bare reading of the document dated 21.7.1952, it does not
appear to be so. The document Ex.P/2 dated 21.7.1952 does not refer to the document
dated 19.7.1952, nor is there any mention that the sale consideration was Rs. 10,000/-
only. This documents contends that the defendant had purchased the suit house for a
consideration of Rs.25,000/- by registered sale deed; and that the house was sold by the
plaintiffs as they were in need of money. It was agreed by the parties that whenever the
plaintiffs would want to purchase the house, then the sale deed would be executed by the
defendant in their favour on certain terms and conditions which have already been
referred by us. From a bare reading of this document, it does not appear that the
document was executed in pursuance of the first document. The document dated
21.7.1952 is an independent separate document wherein the defendant had agreed to
reconvey the house whenever asked for by the plaintiffs.
12. It is urged by Shri S. K. Gambhir, learned senior counsel for the appellants that on the
language used in clause (c) of Section 16 read with Explanation (ii), a contract may be
open to more than one construction and a plaintiff may allege the alternative construction
to which the contract may be open and claim relief on that basis. The true construction of
the contract would be that construction which is finally accepted by the court. The
plaintiffs suit would not be dismissed merely because one of the

@page-SC1792
constructions placed by the plaintiff to the contract was not accepted by the court where
the alternative construction is being alleged and proved.
13. In the present case, the plaintiffs placed reliance on paragraph 12 of the plaint where
it has been averred that the plaintiffs have been and are ready and willing to perform their
part of the contract according to its true construction. This construction is, no doubt, in
tune with the words used in clause (c) and its explanation (ii) of Section 16 of the Act, but
when one reads this averment in the context of the other averments made in the plaint,
then the averment made in paragraph 12 has a reference to the averments made in the
foregoing paragraphs of the plaint.
14

. In Syed Dastagtr v. T. R. Gopalakrishna Setty, AIR 1999 SC 3029, this Court has held in
para 9 as under : 1999 AIR SCW 2959

"......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
ones case for a relief. Such an expression may be pointed, precise, some times vague but
still could be gathered what he wants to convey through only by reading the whole
pleading, depends on the person drafting a plea. In India most of the pleas are drafted by
counsel hence aforesaid difference of pleas which Inevitably differ from one to 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."

In Motilal Jain v. Ramdasi Devi (Smt.) and Others, (2000) 6 SCC 420, this Court has held
that an averment as to readiness and willingness in plaint is sufficient if the plaint, read as
a whole, clearly indicates that the plaintiff was always and is still ready and willing to
fulfil his part of the obligations. Such averment is not a mathematical formula capable of
being expressed only in certain specific words or terms. 2000 AIR SCW 2554

Further, in Umabai and Another v. Nilkanth Dhondiba Chavan (Dead) by LRs. and Anr.,
(2005) 6 SCC 243, this Court in para 30 has said as under :
"It is well settled that the conduct of the parties, with a view to arrive at a finding as to
whether the plaintiff-respondents were all along and still are ready and willing to perform
their part of contract as is mandatorily required under Section 16(c) of the Specific Relief
Act must be determined having regard to the entire attending circumstances. A bare
averment in the plaint or a statement made in the examination-in-chief would not suffice.
The conduct of the plaintiff-respondents must be judged having regard to the entirety of
the pleadings as also the evidences brought on records.
15. When the entire plaint is read, there is no reference of the agreement dated 21.7.1952
about which the plaintiffs have alleged that they are ready and willing to perform their
part of the contract as per the agreement. From the entire tenor of the plaint, it is clear
that the plaintiffs have pleaded for their readiness and willingness to perform their part of
the contract as per the agreement dated 19.7.1952. The agreement dated 21.7.1952 has
been referred to only for the purposes of accounting to be made for the payment of the
consideration for resale of property and there also the plaintiffs have specifically stated
that they have already paid Rs. 1,000/- on 13.10.1053 and Rs.4,000/- on 1.2.1955 and the
defendant is entitled to receive the balance of Rs.5,000/- less the net rental income of the
house received by him.
16. In the evidence also, the plaintiffs have throughout maintained that the agreement of
reconveyance was for a sale consideration of Rs.10,000/- only of which Rs.5,000/- has
already been paid - Rs.1,000/- on 13.10.1953 and Rs.4,000/-on 1.2.1955. There is no
specific statement made by the plaintiffs in examination-in-chief or in cross-examination
that plaintiff No.1 Bal Krishna and/or his brother plaintiff No.2 Ramanlal were/was ready
or are/ is ready and willing to pay the entire amount of Rs.25,000/- as consideration
amount to the defendant for reconveying the suit house. It may also be pertinent to note
that the finding recorded by the trial court that the sale consideration of the suit house
was Rs.25,000/- was even challenged by the plaintiffs by filing an appeal before the High
Court.
17. We have already recorded a finding that the document Ex.P/1 dated 19.7.1952 was
not executed by the defendant in favour of the plaintiffs. The document Ex.P/2 dated
21.7.1952, which has been executed after the sale deed dated 19.7.1952, was executed
@page-SC1793
by the defendant for reconveying the property in favour of the plaintiffs. That document
indicates that the consideration for the reconveyance would be Rs. 25,000/-. The
plaintiffs case throughout in the plaint as well as in the evidence was that they were and
are ready and willing to purchase the suit house for the consideration of Rs. 10,000/-. In
the absence of pleadings or proof by the plaintiffs as to their willingness and readiness to
perform their part of the contract and get the sale deed executed in their favour on
payment of Rs.25,000/-, no case is made out by the plaintiffs for specific performance of
the contract of reconveyance.
18. On the above findings, we need not go into the question whether it would have been
just, fair and equitable in the circumstances of the case to grant the relief of specific
performance to the plaintiffs exercising discretionary power in favour of the plaintiffs.
19. For the aforesaid reasons, the appeal is dismissed. However, in the circumstances of
the case, there shall be no order as to costs.
Appeal dismissed.
AIR 2008 SUPREME COURT 1793 "State of Maharashtra v. Madhukar Wamanrao
Smarth"
(From : Bombay)*
Coram : 2 Dr. A. PASAYAT AND P. SATHASIVAM, JJ.
Criminal Appeal Nos. 520-521 with 522 to 527 of 2008 (arising out of SLP (Cri.) Nos.
5951-5952 with 7157-7162, 7164 and 8114 of 2007), D/- 24 -3 -2008.
State of Maharashtra v. Madhukar Wamanrao Smarth.
Criminal P.C. (2 of 1974), S.389 - BAIL - SENTENCE SUSPENSION - APPEAL -
CHEATING - FORGERY - BREACH OF TRUST - CONSPIRACY - Suspension of
sentence and grant of bail pending appeal - Accused convicted for cheating, preparing
and using forged documents, criminal breach of trust and conspiracy - Considering
gravity of offence sentences imposed by trial Court directed to run consecutively -
Suspension of sentence only on grounds that bail granted during trial was not misused -
And likelihood of delay in disposal of appeal - Improper.
Cri. A. Nos. 1698, 1775 of 2007 in Cri. A. No. 220 of 2007, D/-22-06-2007 and 29-06-
2007 (Bom), Respectively Reversed. (Para 11)
Cases Referred : Chronological Paras
2005 AIR SCW 2199 : 2005 Cri LJ 2531 (Rel. on) 10
2004 AIR SCW 7409 : AIR 2005 SC 1481 : 2005 All LJ 1252 (Rel. on) 9
Shekhar Naphade, Sr. Advocate, Ravindra Keshavrao Adsure with him, for Appellant;
Ashok Srivastav, U.U. Lalit, Sr. Advocates, Satyajit A, Desai, Ms. Anagha S. Desai, P. N.
Gupta. Dr. R. S. Sundram, Gagan Sanghi, Mihir Y. Kanade, Porus Kotwal, Rameshwar
Prasad Goyal, Amol N. Suryawanshi, Naveen R. Nath, Lalit Mohini Bhat and A.
Dashratha with them, for Respondent.
* Crl. A. Nos. 1698 and 1775 of 2007 in Cri. A. No. 220 of 2007 respectively, dated 22-6-
2007 and 29-6-2007 (Bom) (Nagpur Bench).
Judgement
Dr. ARIJIT PASAYAT, J. :- Leave granted.
2. In each of these cases challenge is to the bail granted to the respondent by the Bombay
High Court, Nagpur Bench. Since all these appeals have a common matrix, they are taken
up together.
3. On the basis of allegations that the respondents were guilty of having committed
cheating, preparing forged and false documents for the purpose of cheating, using the said
documents as genuine, abetment of crime, committing criminal breach of trust by
forming criminal conspiracy in furtherance of their common intention, law was set into
motion.
4. They were convicted by the trial Court, and have preferred appeals before the High
Court and had prayed for grant of bail by suspension of sentence in terms of Section 389
of the Code of Criminal Procedure, 1973 (in short the 'Code'). The High Court primarily
granted bail to each of the respondents on the ground that bail was granted during trial
and the liberty was not misused. Further ground indicated was that there was likelihood
of delay in disposal of the appeals. In the case of respondent-Madhukar it was stated that
the evidence appeared to be scanty against him.
5. Questioning correctness of the order passed in each case, learned counsel for the State
submitted that there was large scale manipulation of records resulting in manipulation of
results of the candidates and each of the respondents had a definite role to play. Apart
from the cases where they have been convicted, large number of connected
@page-SC1794
cases are also pending. In the case of respondent-Yadav Nathoba Konchade, two cases
under the Prevention of Corruption Act, 1988 (in short 'PC Act') were pending. In one
case the said accused had offered bribe to the investigating officer and was caught red
handed. It was submitted that considering the gravity of the offence the sentences were
directed to run consecutively in terms of Section 31(1) of Code. It was stated that the
High Court was misled in the case of respondent-Madhukar who made a false statement
before the High Court that he had deposited fine amount while in fact he had not done so
as would be apparent from the second order. It was essentially submitted that without
indicating any plausible reason, much less, the reasons contemplated under Section 389
of the Code, the bail has been granted. The seriousness of the allegations for which the
accused respondents have been already convicted has been completely lost sight of.
6. Learned counsel for the respondents on the other hand submitted that the parameters
for grant of bail and cancellation of bail are different. It was submitted that some of them
are very elderly persons and have retired from services. It is not a case where any
irrelevant factor has been taken into consideration. It is pointed out on behalf of
respondent-Madhukar that the only link the said accused is stated to have centres round
two chits which were exhibited. They did not in any way establish the involvement of the
accused in the alleged crime. That is why in his case the High Court observed that the
evidence is scanty.
7. In reply, learned counsel for the State submitted that in some cases, for example,
accused Shamrao Kisanrao Kamlakar the ground for releasing him was the grant of bail
to co-accused. Further, the plea taken by Madhukar is not correct inasmuch as one of the
co-accused has categorically stated that pressure was exerted by accused Madhukar for
doing the illegal acts.
8. The factual details involved are as follows :

@page-SC1795

@page-SC1796

. The parameters to be observed by the High Court while dealing with an application for
suspension of sentence and grant of bail have been highlighted by this Court in many
cases. In Kishori Lal v. Rupa and Ors. (2004 (7) SCC 639) it was observed as follows :
2004 AIR SCW 7409, Para 4

"Section 389 of the Code deals with suspension of execution of sentence pending the
appeal and release of the appellant on bail. There is a distinction between bail and
suspension of sentence. One of the essential ingredients of Section 389 is the requirement
for the appellate Court to record reasons in
@page-SC1797
writing for ordering suspension of execution of the sentence or order appealed. If he is in
confinement, the said court can direct that he be released on bail or on his own bond. The
requirement of recording reasons in writing clearly indicates that there has to be careful
consideration of the relevant aspects and the order directing suspension of sentence and
grant of bail should not be passed as a matter of routine."
10
. The above position was re-iterated in Vasant Tukaram Pawar v. State of Maharashtra
(2005 (5) SCC 281). 2005 AIR SCW 2199

11. It is true that the parameters to be applied in cases where life or death sentence is
imposed, may not be applicable to other cases. But, the gravity of the offence, the
sentence imposed and several other similar factors need to be considered by the Court.
The fact that accused was on bail during trial is certainly not a relevant factor. This
position has been fairly conceded by learned counsel for the respondents. The reasons
indicated by the High Court for granting ball in our opinion do not satisfy the parameters.
It needs to be pointed out that the trial Court considering the gravity of the offence has
directed the sentences to run consecutively. This aspect has also not been considered by
the High Court. In the circumstances, the impugned order in each case is indefensible and
deserves to be set aside which we direct. But considering the fact that the High Court had
not applied correct principles it would be proper for the High Court to reconsider the
matter and for that purpose the matter is remitted to the High Court. Needless to say the
High Court shall consider all the relevant aspects and pass orders in accordance with law.
12. The appeals are allowed.
Appeals allowed.
AIR 2008 SUPREME COURT 1797 "Karnataka State Financial Corporation v. N.
Narasimahaiah"
(From : AIR 2004 Kant 46)
Coram : 2 S. B. SINHA AND LOKESHWAR SINGH PANTA, JJ.
Civil Appeal Nos. 610-612 of 2004, D/- 13 -3 -2008.
Karnataka State Financial Corporation v. N. Narasimahaiah and Ors.
(A) State Financial Corporations Act (63 of 1951), S.29 - FINANCIAL CORPORATION
- Rights of Corporation to make recovery - S.29 confers extraordinary power on
Corporation - Provision has therefore to be construed strictly. (Paras 9, 12)
(B) State Financial Corporations Act (63 of 1951), S.29, S.31 - FINANCIAL
CORPORATION - CONTRACT - Rights of Corporation to make recovery - Scope -
Exercisable only against defaulting industrial concern - Not against surety or guarantor -
Power to proceed against surety is given by S.31 - S.29 and S.31 do not control each
other.
Contract Act (9 of 1872), S.128.
The heading of S. 29 states 'Rights of financial corporation in case of default'. The default
contemplated thereby is of the industrial concern. Such default would create a liability on
the industrial concern. Such a liability would arise inter alia when the industrial concern
makes any default in repayment of any loan or advance or any installment thereof under
the agreement. In the eventualities contemplated under S. 29 of the Act, the Corporation
shall have the right to take over the management or possession or both of the industrial
concern. The provision does not stop there, It confers an additional right as the words 'as
well as' is used which confers a right on the corporation to transfer by way of lease or
sale and realize the property pledged, mortgaged, hypothecated or assigned to the
Corporation. S. 29 nowhere states that the Corporation can proceed against the surety
even if some properties are mortgaged or hypothecated by it. The right of the financial
corporation in terms of S. 29 must be exercised only on a defaulting party. There cannot
be any default as is envisaged in S. 29 by a surety or a guarantor. The liabilities of a
surety or the guarantor to repay the loan of the principal debtor arises only when a default
is made by the latter. The words 'as well as' play a significant role. It confers two different
rights but such rights are to be enforced against the same person, viz., the industrial
concern. (Paras 13, 14, 15)
It is true that sub-section (1) of S. 29 speaks of guarantee. But such a guarantee is meant
to be furnished by the Corporation in favour of a third party for the benefit of the
industrial concern. It does not speak about a surety or guarantee given in favour of the
Corporation for the benefit of the industrial concern. It is significant to notice
@page-SC1798
in this regard that sub-section (4) of S. 29 which lays down appropriation of the sale
proceeds only refers to 'industrial concern' and not a 'surety' or 'guarantor'. (Paras 15, 16)
The liability of a surety is made co-extensive with the liability of the principal debtor
only by virtue of S. 128 of Contract Act. The rights and liabilities of a surety and the
principal borrower otherwise are different and distinct. (Para 18)
An implied power of Corporation to proceed against a surety or guarantor cannot be read
in S. 29 on principle that a construction which effectuates the legislative intent and
purpose must be adopted. A statutory authority, may have an implied power to effectuate
exercise of substantive power, but the same never means that if a remedy is provided to
take action against one in a particular manner, it may not only be exercised against him
but also against the other in the same manner. (Paras 20, 21, 32)
Section 31 of the Act provides for a special provision. It, apart from the default on the
part of the industrial concern, can be invoked where the Financial Corporation requires an
industrial concern to make immediate repayment of loan or advance in terms of S. 30 if
and when such requirement is not met. The aforementioned provision could be resorted to
by the Corporation, without prejudice, to its rights under the provisions of S. 29 as also S.
69 of the Transfer of Property Act and for the said purpose it is required to apply to the
District Judge having appropriate Jurisdiction. It also provides for a relief against a surety
and not confined to the industrial concern alone. (Para 22)
It is thus clear that the intention of the Parliament in enacting Ss. 29 and 31 was not
similar. Whereas S. 29 consists of the property of the industrial concern, S. 31 takes
within its sweep both the property of the industrial concern and as that of the surety.
None of the provisions control each other. The Parliament intended to provide an
additional remedy for recovery of the amount in favour of the Corporation by proceeding
against a surety only in terms of S. 31 and not under S. 29 thereof. (Paras 22, 23, 27)
(C) State Financial Corporations Act (63 of 1951), S.31, S.29 - FINANCIAL
CORPORATION - OBJECT OF AN ACT - Scope - S.31 postulates an additional relief to
Corporation - What can be done by invoking S.29 can inter alia be done by invoking S.31
- It also provides for relief against surety - Relief available u/S.31 not limited to
interlocutory reliefs. (Paras 22, 23, 27)
(D) INTERPRETATION OF STATUTES - Interpretation of Statutes - External aids -
Object of statute - Relevant only when language is not clear. (Para 32)
(E) INTERPRETATION OF STATUTES - RECOVERY OF DUES - Interpretation of
Statutes - Act providing speedy remedy for recovery of dues - Court while weighing
between right of recovery and protection of right - Would lean in favour of person who
would be deprived. (Para 32)
Cases Referred : Chronological Paras
2008 AIR SCW 208 : AIR 2008 SC 876 (Ref.) 26
2008 AIR SCW 390 (Ref.) 21
2007 AIR SCW 461 : AIR 2007 SC 767 (Ref.) 21
2007 AIR SCW 2897 : AIR 2007 SC 1753 (Ref.) 30
2007 AIR SCW 3752 : AIR 2007 SC 1984 (Ref.) 26
2006 AIR SCW 6460 (Ref.) 26
2005 AIR SCW 2676 : AIR 2005 SC 2821 (Ref.) 26
(2005) 3 WLR 554 : 2005 EWHC 817 (Ch) 30
(2005) ECHR 921 : 2005 (49) ERG 90 30
(2004) 6 SCC 758 (Ref.) 10
(2004) 11 SCC 625 (Ref.) 25, 34
2003 AIR SCW 1399 : AIR 2003 SC 1917 (Ref.) 21
(2003) 6 SCC 1 (Ref.)31
1994 AIR SCW 1953 : AIR 1994 SC 2151 (Ref.) 29
AIR 1987 SC 1023 (Ref.) 21
AIR 1985 SC 582 (Rel. on) 33
AIR 1980 SC 801 (Ref.) 34
AIR 1974 SC 2009 (Ref.) 34
AIR 1969 SC 932 (Ref.) 31
(1944) 12 ITR 458 (Ref.) 31
(1914-15) All ER (Rep) 1061 33
1897 AC 22 : 66 LJ Ch 35 (Ref.) 31
K.K. Venugopal, Sr. Advocate, Ms. Kiran Suri, S.J. Amith, Ms. Piparna Bhat and Ankur
Talwar, for Appellant; Vikas Rojipura, E.C. Vidya Sagar and P.P. Singh, for Respondents.
@page-SC1799

Judgement
S. B. SINHA, J. :- INTRODUCTION
1

. Interpretation of Section 29 vis-a-vis Section 31 of the State Financial Corporations Act,


1951 (for short "the Act") is in question in these appeals which arise out of a judgment
and order dated 26.03.2003 passed by a Division Bench of the Karnataka High Court in
Writ Petition Nos. 37209 and 37907 of 2000, 24452 of 2001, 13354 and 16614 of 2002.
reported in AIR 2004 Kant 46

FACTUAL BACKDROP
2. Respondents herein furnished sureties and/or guarantees in respect of the loans taken
by the industrial concerns (Respondent-Company) .
3. We may notice the fact of the matter from the case of AP Rocks Private Limited (Writ
Petition Nos. 37209 and 30907 of 2000) before the High Court.
AP Rocks Private Limited is an industrial concern. It approached the appellant
Corporation for grant of loan in the form of non-convertible debenture facility to the
extent of 100 lakhs to meet its working capital requirements.
Respondents who were Directors of Company executed deeds of guarantee dated
15.05.1996 and 9.08.1996 agreeing to guarantee repayment/redemption by the Company
to the Corporation of the said non-convertible debenture subscription together with
interest, etc. The said Company also executed a deed of hypothecation on or about
9.08.1996 whereby and whereunder its plants and machinery were hypothecated. A
collateral security agreement was also executed by Shri S.K. Rajan wherefor a property
bearing No. 49, House List Khata No. 100-A, Hennarayanapalya, Hemlet of
Cholanayakamahalli, Kasba Hobli, Bangalore North Taluka was mortgaged as a security
therefor.
Respondent No. 1 executed an agreement on 15.05.1996 in terms whereof his property
bearing Site No. 55 (old), New No. 59, Annammadevi Temple Extension, Subedar
Chatram Road, B. C. C. Division No. 22, Bangalore was given as a collateral security.
The 'Industrial Concern' allegedly committed defaults.
PROCEEDINGS
4. Appellant-Corporation on or about 20.11.2000 in exercise of its power under Section
29 of the Act directed that the possession of the said two properties of the guarantors be
taken over. Respondent No. 1 and Shri S.K. Rajan filed writ petitions before the
Karnataka High Court on the premise that the appellant-Corporation could not have
proceeded against the guarantors under Section 29 of the Act.
The High Court by reason of the impugned judgment while upholding the said contention
directed:
"(i) The impugned orders passed by the Karnataka State Financial Corporation under
Section 29 of the State Financial Corporations Act authorizing its officers to take
possession of the properties of petitioners are quashed.
(ii) The Karnataka State Financial Corporation is directed not to proceed against the
property of the surety, mortgaged/hypothecated in its favour, under Section 29 of the
State Financial Corporations Act.
(iii) Parties to bear their respective costs."
Appellant is, thus, before us.
SUBMISSIONS
5. Mr. K.K. Venugopal, learned senior counsel appearing on behalf of the appellant,
submitted :
(i) the High Court committed a serious error in passing the impugned judgment in so far
as it failed to take into consideration that the second part of Section 29 of the Act being
an independent provision and having not referred to an 'industrial concern', it was within
the jurisdiction of the appellant to take possession of the said property also.
(ii) Section 29 of the Act confers two independent rights, viz., taking over of the
mortgaged property and sale of the mortgaged, hypothecated and charged property.
Whereas first part of Section 29 of the Act covers taking over possession and/or
management of the mortgaged property, the second part thereof covers the case of sale of
the property mortgaged, irrespective of the fact as to whether the same belonged to the
industrial concern or not.
(iii) Section 29 having taken within its umbrage security and/or guarantee, the legislative
intent being speedy recovery of the dues, the same includes the power to take possession
of the mortgaged property of the guarantor also, being incidental to the main power
and/or implied power of the Corporation.
(iv) Section 31 confers the same benefit
@page-SC1800
to the Corporation with an additional remedy, viz., to pray for an interlocutory order.
(v) Section 69(c) of the Transfer of Property Act also confers power upon the mortgagee
to sale the charged property privately wherefor taking over of possession being not a pre-
requisite, the High Court committed a serious error in coming to the conclusion that
before a property is to be sold, taking over possession thereof is mandatory.
(vi) Section 31 of the Act would be applicable only when the loan is called back in terms
of Section 30 of the Act.
(vii) Special statutory power having been conferred on the Corporation so as to enable it
to recover its debts which serves a larger economic interest of the country, Sections 29
and 31 of the Act should be interpreted in such a manner which would help it to achieve
the said purpose.
6. Mr. Vikas Rojipura, learned counsel appearing on behalf of the respondents, on the
other hand, submitted :
(i) It is wrong to contend that similar reliefs can be claimed both under Sections 29 and
31 of the Act as in that event it was not necessary for the Parliament to enact two
different provisions.
(ii) Clause (aa) of sub-section (1) of Section 31 of the Act, which was inserted by Act No.
43 of 1985 with effect from 21.08.1985, clearly establishes that the purport and object of
two sections are absolutely distinct and separate.
(iii) Sections 29 and 31 confer two different rights on the Corporation which are
independent of each other. Whereas Section 29 provides for a limited remedy, Section 31
provides for a composite remedy to the Corporation to realize the dues both from the
principal borrower as also from the guarantor.
(iv) Remedy both under Sections 29 and 31 being equal, speedy and efficacious, it would
be wrong to contend that both the reliefs can be claimed simultaneously.
THE ACT
7. The Act was enacted to provide for the establishment of State Financial Corporations.
Appellant is a Corporation established and incorporated under the Act.
"Industrial concern" has been defined in Section 2(c) of the Act to mean any concern
engaged or to be engaged in any of the activities specified therein.
Section 29 of the Act provides for the rights of Financial Corporation to realize its dues in
case of default.
We may take notice of sub-section (1) of Section 29 of the Act which reads as under :
"29. Rights of Financial Corporation in case of default - (1) Where any industrial
concern, which is under a liability to the Financial Corporation under an agreement,
makes any default in repayment of any loan or advance or any instalment thereof or in
meeting its obligations in relation to any guarantee given by the Corporation or otherwise
fails to comply with the terms of its agreement with the Financial Corporation, the
Financial Corporation shall have the right to take over the management or possession or
both of the industrial concerns, as well as the right to transfer by way of lease or sale and
realize the property pledged, mortgaged, hypothecated or assigned to the Financial
Corporation."
Section 30 of the Act Inter alia provides for power to call for repayment before the agreed
period.
Section 31 provides for special provisions for enforcement of claims by Financial
Corporation. It reads as under :
"31. Special provisions for enforcement of claims by Financial Corporation. - (1) Where
an Industrial concern, in breach of any agreement, makes any default in repayment of any
loan or advance or any instalment thereof or in meeting its obligations in relation to any
guarantee given by the Corporation or otherwise fails to comply with the terms of its
agreement with the Financial Corporation or where the Financial Corporation requires an
industrial concern to make immediate repayment of any loan or advance under Section 30
and the industrial concern fails to make such repayment then, without prejudice to the
provisions of Section 29 of this Act and of Section 69 of the Transfer of Property Act,
1882 (4 of 1882), any officer of the Financial Corporation, generally or specially
authorised by the Board in this behalf, may apply to the District Judge within the limits of
whose jurisdiction the industrial concern carries on the whole or a substantial part of its
business for one or more of the following reliefs, namely -
(a) for an order for the sale of the property pledged, mortgaged, hypothecated or assigned
to the Financial Corporation as security
@page-SC1801
for the loan or advance; or
(aa) for enforcing the liability of any surety; or
(b) for transferring the management of the industrial concern to the Financial
Corporation; or
(c) for an ad interim injunction restraining the industrial concern from transferring or
removing its machinery or plant or equipment from the premises of the industrial concern
without the permission of the Board, where such removal is apprehended.
(2) An application under sub-section (1) shall state the nature and extent of the liability of
the industrial concern to the Financial Corporation, the ground on which it is made and
such other particulars as may be prescribed."
Section 32 of the Act provides for the procedure in respect of the proceedings before the
District Judge on applications under Section 31; sub-section (1A) whereof reads as
under :
"(1-A) When the application is for the relief mentioned in clause (aa) of sub-section (1)
of Section 31, the District Judge shall issue a notice calling upon the surety to show cause
on a date to be specified in the notice why his liability should not be enforced."
For enforcing a claim envisaged under clause (aa) of sub-section (1) of Section 31 of the
Act, a special procedure has been laid down in sub-section (4A) of Section 32 which
reads as under :
"(4A) If no cause is shown on or before the date specified in the notice under sub-section
(1A) the District Judge shall forthwith order the enforcement of the liability of the
surety."
Section 32-G of the Act, which was also inserted by Act No. 43 of 1985, provides for yet
another additional remedy to a Financial Corporation in the following terms :
"32G. Recovery of amounts due to the Financial Corporation as an arrear of land revenue
-
Where any amount is due to the Financial Corporation in respect of any accommodation
granted by it to any industrial concern, the Financial Corporation or any person
authorised by it in writing in this behalf, may, without prejudice to any other mode of
recovery, make an application to the State Government for the recovery of the amount
due to it, and if the State Government or such authority, as that Government may specify
in this behalf, is satisfied, after following such procedure as may be prescribed, that any
amount is so due, it may issue a certificate for that amount to the Collector, and the
Collector shall proceed to recover that amount in the same manner as an arrear of land
revenue."
INTERPRETATION - SECTION 29 ISSUE
8. A lender of money under the common law has the remedy to file a suit for realization
of the amount lent if the borrower does not repay the same. The Act, however, provides
for a special remedy in favour of the Financial Corporation constituted thereunder
enabling it to exercise a statutory power of either selling the property or take over the
management or possession or both belonging to the industrial concern.
9. Section 29, therefore, confers an extraordinary power upon the 'Corporation'. It, being
a 'State' within the meaning of Article 12 of the Constitution of India, is expected to
exercise its statutory powers reasonably and bona fide.
10. Apart from the said constitutional restrictions, the statute does not put any embargo
upon the Corporation to exercise its power under Section 29 of the Act. Indisputably, the
said provision was enacted by the Parliament with a view to see that the dues of the
Corporation are realized expeditiously. When a statutory power is conferred, it is a trite
law that the same must be exercised within the four corners of the Statute. Power of a
lender to realize the amount lent either by enforcing the charged and/or hypothecated or
encumbrance created on certain property and/or proceeding simultaneously and/or
independently against the surety/guarantor is a statutory right. Different statutes provide
for different remedies. We may by way of example refer to Pawan Kumar Jain v.
Pradeshiya Industrial and Investment Corporation of U.P. Ltd. and others [(2004) 6 SCC
758] where a statutory mandate has been given to realize the dues from sale of the
mortgaged properties and then to sell other properties of the borrower. We are, however,
not concerned with such a situation.
11. Such a right can also indisputably be conferred by way of contract as has been
provided for under Section 69 of the Transfer of Property Act in terms whereof a
mortgagee
@page-SC1802
is entitled to effect sale without the intervention of the court, subject, of course, to the
limitations prescribed therein.
12. If special provisions are made in derogation to the general right of a citizen, the
statute, in our opinion, should receive strict construction. 'Industrial concern' has been
defined under the Act. For the purpose of enforcing a liability of an industrial concern,
recourse can be taken both under Sections 29 and 31 of the Act. Right of the Corporation
to file a suit or take recourse to the provisions contained in Section 32G of the Act also
exists.
13. The heading of Section 29 of the Act states "Rights of Financial Corporation in case
of default". The default contemplated thereby is of the industrial concern. Such default
would create a liability on the industrial concern. Such a liability would arise when the
industrial concern makes any default in repayment of any loan or advance or any
instalment thereof under the agreement. It may also arise when it fails to meet its
obligation(s) in relation to any guarantee given by the Corporation. If it otherwise fails to
comply with the terms of the agreement with the Financial Corporation, also the same
provisions would apply. In the eventualities contemplated under Section 29 of the Act,
the Corporation shall have the right to take over the management or possession or both of
the industrial concern, The provision does not stop there. It confers an additional right as
the words "as well as" is used which confers a right on the corporation to transfer by way
of lease or sale and realize the property pledged, mortgaged, hypothetical or assigned to
the Corporation.
14. Section 29 of the Act nowhere states that the Corporation can proceed against the
surety even if some properties are mortgaged or hypothecated by it. The right of the
Financial Corporation in terms of Section 29 of the Act must be exercised only on a
defaulting party. There cannot be any default as is envisaged in Section 29 by a surety or
a guarantor. The liabilities of a surety or the guarantor to repay the loan of the principal
debtor arises only when a default is made by the latter.
15. The words "as well as" in our opinion play a significant role. It confers two different
rights but such rights are to be enforced against the same person, viz., the industrial
concern. Submission of the learned senior counsel that the second part of Section 29
having not referred to 'industrial concern', any property pledged, mortgaged,
hypothecated or assigned to the Financial Corporation can be sold, in our opinion cannot
be accepted. It is true that sub-section (1) of Section 29 speaks of guarantee. But such a
guarantee is meant to be furnished by the Corporation in favour of a third party for the
benefit of the industrial concern. It does not speak about a surety or guarantee given in
favour of the Corporation for the benefit of the industrial concern.
16. The legislative object and intent becomes furthermore clear as in terms of sub-section
(4) of Section 29 of the Act only when a property is sold, the manner in which the sale
proceeds is to be appropriated has categorically been provided therein.
It is significant to notice that sub-section (4) of Section 29 of the Act which lays down
appropriation of the sale proceeds only refers to 'industrial concern' and not a 'surety' or
'guarantor'.
17. The provisions of Section 128 of the Indian Contract Act must also be kept in mind. It
is only by reason thereof, subject of course to the contract by the parties thereto, the
liability of a surety is made co-extensive with the liability of the principal debtor.
18. Banking practice may enable a Financial Corporation to ask for a collateral security.
Such security, we would assume, may be furnished by the Directors of a Company but
furnishing of such security or guarantee is not confined to the Directors or employees or
their close relatives. They may be outsiders also. The rights and liabilities of a surety and
the principal borrower are different and distinct.
Apart from the defences available to a principal borrower under the provisions of the
Indian Contract Act, a surety or a guarantor is entitled to take additional defence. Such
additional defence may be taken by the guarantor not only against the Corporation but
also against the principal debtor. He, in a given situation, would be entitled to show that
the contract of guarantee has come to a not. Ordinarily, therefore, when a guarantee is
sought to be enforced, the same must be done through a court having appropriate
jurisdiction. In the absence of any express provision in the statute, a person being in
lawful possession cannot be deprived thereof by reason of default on the part of a
principal borrower.
@page-SC1803
19. Furthermore, construction of a statute would not depend upon a contingency. A statute
must be interpreted having regard to the constitutional provisions as also human rights.
We will deal with this aspect of the matter a little later.
IMPLIED POWER
20. Reference to implied and/or incidental power of the Corporation as was contended by
Mr. Venugopal deserves outright rejection.
21. Our attention has been drawn to the following passage of 'Principles of Statutory
Interpretation' by Justice G.P. Singh, 9th edition, page 365 : 10th edition, page 391 :
".....The rule of implied prohibition is, however, subservient to the basic principle that the
Court must, as far as possible, adopt a construction which effectuates the legislative intent
and purpose..................."
We fail to see how the aforementioned statement of law comes to the aid to the
contention of the learned counsel.
Moreover Section 29 of the Act does not deal with a case where express and implied
conditions have been laid down in the matter of exercise of power conferred upon a
statutory authority under a Statute. Section 29 does not envisage any prohibition at all
either express or implied.
Let us consider the legal implication of the aforementioned statement of law in the light
of a decision of this Court.

In Jamal Uddin Ahmad v. Abu Saleh Najmuddin and another [(2003) 4 SCC 257], this
Court stated the law, thus : 2003 AIR SCW 1399, para 10

"11. Dealing with "statutes conferring power; implied conditions, judicial review", Justice
G.P. Singh states in the Principles of Statutory Interpretation (8th Edn., 2001, at pp. 333,
334) that a power conferred by a statute often contains express conditions for its exercise
and in the absence of or in addition to the express conditions there are also implied
conditions for exercise of the power. An affirmative statute introductive of a new law
directing a thing to be done in a certain way mandates, even if there be no negative
words, that the thing shall not be done in any other way. This rule of implied prohibition
is subservient to the basic principle that the court must, as far as possible, attach a
construction which effectuates the legislative intent and purpose. Further, the rule of
implied prohibition does not negate the principle that an express grant of statutory power
carries with it by necessary implication the authority to use all reasonable means to make
such grant effective. To illustrate, an Act of Parliament conferring jurisdiction over an
offence implies a power in that jurisdiction to make out a warrant and secure production
of the person charged with the offence; power conferred on the Magistrate to grant
maintenance under Section 125 of the Code of Criminal Procedure, 1973 to prevent
vagrancy implies a power to allow interim maintenance; power conferred on a local
authority to issue licences for holding 'hats' or fairs implies incidental power to fix days
therefor; power conferred to compel canegrowers to supply cane to sugar factories
implies an incidental power to ensure payment of price......"
A statutory authority, thus, may have an implied power to effectuate exercise of
substantive power, but the same never means that if a remedy is provided to take action
against one in a particular manner, it may not only be exercised against him but also
against the other in the same manner.
It is a trite law that the entire statute must be first read as a whole then section by section,
clause by clause, phrase by phrase and word by word. [See Reserve Bank of India v.
Peerless General Finance and Investment Co. Ltd. and others, (1987) 1 SCC 424,
Deewan Singh and Ors. v. Rajendra Pd. Ardevi and Ors., 2007 (1) SCALE 32 and
Sarabjit Rick Singh v. Union of India, 2007 (14) SCALE 263]. AIR 1987 SC 1023
2007 AIR SCW 461
2008 AIR SCW 390

SECTION 31 - ISSUE
22. Keeping the aforementioned legal principles in mind, we may notice the other limb of
the argument of Mr. Venugopal that Section 31 of the Act is to be taken recourse to only
when an interlocutory order is required to be sought for and not otherwise.
Section 31 of the Act provides for a special provision. It, apart from the default on the
part of the industrial concern, can be invoked where the Financial Corporation requires an
industrial concern to make immediate repayment of loan or advance in terms of Section
30 if and when such requirement is not met. The aforementioned provision could be
resorted to by the Corporation, without prejudice, to its rights under the provisions of
Section 29 as also
@page-SC1804
Section 69 of the Transfer of Property Act and for the said purpose it is required to apply
to the District Judge having appropriate jurisdiction. Section 31 of the Act provides for
the reliefs which may be sought for by the Corporation strictly in terms thereof. Clause
(aa) of sub-section (1) of Section 31 of the Act provides for a final relief. It does not
speak of any interlocutory order. Clause (aa), as noticed hereinbefore, has been inserted
by Act No. 43 of 1985. Thus, prior thereto even Section 31 could not have been taken
recourse to against a surety.
23. Such a relief, if prayed for, would also lead to grant of a final relief and not an
interlocutory one. Similarly, clause (b) of subsection (1) of Section 31 of the Act also
provides for a final relief. Only clause (c) of sub-section (1) of Section 31 of the Act
empowers the District Judge in the event any application is filed by the Corporation to
pass an ad interim injunction. The very fact that Section 31 uses the terminology "without
prejudice" to the provisions of Section 29 of the Act and/or Section 69 of the Transfer of
Property Act, it clearly postulates an additional relief. What can be done by invoking
Section 29 of the Act can Inter alia be done by invoking Section 31 thereof also but
therefor a different procedure has to be adopted. Section 31 also provides for a relief
against a surety and not confined to the industrial concern alone. Sub-section (2) of
Section 31 also refers to industrial concern and not the surety. The legislative intent,
therefore, to our mind, is clear and unambiguous.
SUBSEQUENT AMENDMENT - EFFECT
24. Sub-section (1A) of Section 32 of the Act lays down a procedure when clause (aa) of
sub-section (1) of Section 31 thereof is invoked. Sub-section (4A) of Section 31 also
empowers the court to forthwith order the enforcement of the liability of the surety if no
cause is shown on or before the date notified by the parties. However, in the event, a
cause is shown upon making an investigation as provided for under sub-section (6) of
Section 32, a final order can be passed in terms of sub-section (7) thereof.
25. Significantly, by Act No. 43 of 1985, Section 32-G of the Act was also inserted. It
does not speak of an industrial concern. Section 32-G, therefore, can be resorted to both
against the industrial concern as also the security. It is so held by this Court in Delhi
Financial Corpn. and another v. Rajiv Anand and others [(2004) 11 SCC 625] in the
following terms :
".....Thus a provision incorporated by the legislature with the intention to enable Financial
Corporations to speedily recover amounts due to them cannot be whittled down by giving
an interpretation which would render it nugatory."
26

. While interpreting the provisions of a statute, the court employs different principles or
canons. To interpret a statute in a reasonable manner, the court must place itself in the
chair of a reasonable legislator/ author. [See New India Assurance Company Ltd. v. Nusli
Neville Wadia and Anr. [JT 2008 (1) SC 31]. Attempt on the part of the court while
interpreting the provisions of a statute should, therefore, be to pose a question as to why
one provision has been amended and the other was not? Why one terminology has been
used while inserting a statutory provision and a different clause in another? It is well-
known that casus omissus cannot be supplied, [See Ashok Lanka v. Rishi Dixit (2005) 5
SCC 598 and J. Srinivasa Rao v. Govt. of A.P. and Anr. 2008 (13) SCALE 27 and
Southern Petrochemical Industries Co. Ltd. v. Electricity Inspector and E.T.I.O. and Ors.
(2007) 5 SCC 447]. 2008 AIR SCW 208
2005 AIR SCW 2676
2006 AIR SCW 6460
2007 AIR SCW 3752

27. The legislative Intent, in our opinion, is manifest. The intention of the Parliament in
enacting Sections 29 and 31 of the Act was not similar. Whereas Section 29 of the Act
consists of the property of the Industrial concern, Section 31 takes within its sweep both
the property of the industrial concern and as that of the surety. None of the provisions
control each other. The Parliament intended to provide an additional remedy for recovery
of the amount in favour of the Corporation by proceeding against a surety only in terms
of Section 31 of the Act and not under Section 29 thereof.
THE EFFECT - OF
28. A Corporation, after coming into force of Section 32G of the Act has four remedies,
viz. :
(i) to file a suit
(ii) to take recourse to Section 29;
(iii) to take recourse to Section 31; and
(iv) to take recourse to Section 32-G of the Act.
@page-SC1805
29

. In A.P. State Financial Corporation v. M/s. GAR Re-Rolling Mills and another [(1994) 2
SCC 647], this Court held : 1994 AIR SCW 1953
"19. The right vested in the Corporation under Section 29 of the Act is besides the right
already possessed at common law to institute a suit or the right available to it under
Section 31 of the Act".............
Section 32-G of the Act provides for an additional remedy.
It is, however, Interesting to note that while upholding the right of the Corporation to opt
for either Section 29 or Section 31 of the Act, it was opined :
"......In our opinion the Corporation can initially take recourse to Section 31 of the Act but
withdraw or abandon it at any stage and take recourse to the provisions of Section 29 of
the Act, which section deals with not only the rights but also provides a self-contained
remedy to the Corporation for recovery of its dues. If the Corporation chooses to take
recourse to the remedy available under Section 31 of the Act and pursues the same to the
logical conclusion and obtains an order or decree, it may thereafter execute the order or
decree, in the manner provided by Section 32(7) and (8) of the Act. The Corporation,
however, may withdraw or abandon the proceedings at that stage and take recourse to the
provisions of Section 29 of the Act.................."
30. Right of property, although no longer a fundamental right, is still a constitutional
right. It is also human right. In absence of any provision either expressly or by necessary
implication, depriving a person therefrom, the court shall not construe a provision leaning
in favour of such deprivation.

Recently, this Court in P.T. Munichikkanna Reddy and Ors. v. Revamma and Ors. [(2007)
6 SCC 59] dealing with adverse possession opined : 2007 AIR SCW 2897

"Human rights have been historically considered in the realm of individual rights such as,
right to health, right to livelihood, right to shelter and employment etc. but now human
rights are gaining a multifaceted dimension. Right to property is also considered very
much a part of the new dimension. Therefore, even claim of adverse possession has to be
read in that context. The activist approach of the English Courts is quite visible from the
judgement of Beaulane Properties Ltd. v. Palmer [2005 (3) WLR 554 : 2005 EWHC 817
(Ch.)] and JA Pye (Oxford) Ltd. v. United Kingdom [2005] ECHR 921 : [2005] 49 ERG
90, [2005] ECHR 921]. The court herein tried to read the Human Rights position in the
context of adverse possession. But what is commendable is that the dimension of human
rights has widened so much that now property dispute issues are also being raised within
the contours of human rights."
31

. A surety may be a Director of the Company. He also may not be. Even if he is a close
relative of the Director or the Managing Director of the Company, the same is not
relevant. A Director of the Company is not an industrial concern. He in his capacity as a
surety would certainly not be. A juristic parson is a separate legal entity. Its veil can be
lifted or pierced only in certain situations. [See Salomon v. Salomon and Co. [1897 AC
22]; Dal Chand and others v. Commissioner of Income Tax, Punjab (1944) 12 ITR 458;
Juggilal Kamlapat vs. Commissioner of Income Tax, U.P. (1969) 1 SCR 988 : 1969 (73)
ITR 702 and Kapila Hingorani v. State of Bihar (2003) 6 SCC 1]. AIR 1969 SC 932
32. Interpretation of a statute would not depend upon a contingency. It has to be
interpreted on its own. It is a trite law that the court would ordinarily take recourse to the
golden rule of literal interpretation. It is not a case where we are dealing with a defect in
the legislative drafting. We cannot presume any. In a case where a court has to weigh
between a right of recovery and protection of a right, it would also lean in favour of the
person who is going to be deprived therefrom. It would not be the other way round. Only
because a speedy remedy is provided for that would itself lead to the conclusion that the
provisions of the Act have to be extended although the statute does not say so. The object
of the Act would be a relevant factor for interpretation only when the language is not
clear and when two meanings are possible and not in a case where the plain language
leads to only one conclusion.
33. Even if the legislation is beneficent, the same by itself would not be held to be
extendable to a situation which the statute does not contemplate. [S. Sundaram Pillai, etc.
v. V. R. Pattabiraman, AIR 1985 SC 582].
In Attorney General v. Milne [1914-15] All ER Rep 1061], Lord Dunedin states : "Now,
prima facie one would expect that
@page-SC1806
the scope of the two sets of provisions would be the same, i.e., in other words that the
question must be answered as to those kinds of property which are swept in by S.2, just
as much as to those which fall under S.1. Inasmuch, however, as this is a taxing statute,
and the duty here is an additional duty, I consider that it must be shown that the words
would clearly cover the individual case to which it is right to apply them."
34

. It is now well-settled that when more than one remedy is provided for an option is given
to a suiter to opt for one or the other remedy. Such a provision is not ultra vires as has
been held by this Court in Maganlal Chhaganlal (P) Ltd. v. Municipal Corporation of
Greater Bombay and others [(1974) 2 SCC 402]; Director of Industries, U.P. and others v.
Deep Chand Agarwal [(1980) 2 SCC 332]; Rajiv Anand (supra). AIR 1974 SC 2009

CONCLUSION
35. For the views we have taken, it is not necessary for us to consider the question as to
whether before a property is put to sale, possession is required to be taken.
36. For the reasons aforementioned, there is no merit in these appeals which are
dismissed accordingly. Counsel's fee assessed at Rs. 50,000/- in each case.
Appeal dismissed.
AIR 2008 SUPREME COURT 1806 "Huchappa v. State of Karnataka"
(From : Karnataka)*
Coram : 2 Dr. A. PASAYAT AND P. SATHASIVAM, JJ.
Criminal Appeal No. 577 of 2008 (arising out of S.L.P. (Cri.) No.7463 of 2007), D/- 1 -4
-2008.
Huchappa alias Hucharayappa and Ors. v. State of Karnataka.
Criminal P.C. (2 of 1974), S.386 - APPEAL - GRIEVOUS HURT - Appeal - Manner of
disposal - Conviction u/S.326, I.P.C. challenged - Contentions raised by appellant not
considered - Appeal disposed of in casual manner - Order liable to be set aside - Matter
remitted.
Cri. A. No. 346 of 2001 (SJ), D/-27-07-2006 (Kant), Reversed.
Constitution of India, Art.134. (Para 9)

N.D.B. Raju, Ms. Bharathi Raju and N. Ganpathy, for Appellants; Ms. Anitha Shenoy, for
Respondent.
* Cri. A. No. 346 of 2001 (SJ), D/- 27-7-2006 (Kant).
Judgement
1. Dr. ARIJIT PASATAT, J. :-Leave granted.
2. Challenge in this appeal is to the order passed by a learned single Judge of the High
Court upholding the judgment of learned Principal Sessions Judge, Shimoga in SC No.
37 of 1995 convicting the three appellants for offence punishable under Section 326 of
the Indian Penal Code, 1860 (in short the 'IPC') and sentence each one of them to undergo
rigorous imprisonment for five years and to pay a fine of Rs. 2,000/-each with default
stipulation. There were originally 14 accused persons. The trial court found the present
appellants guilty and others were found not to be guilty under Section 235(1) of the Code
of Criminal Procedure, 1973 (in short the 'Cr.P.C.'). Originally all the accused persons
were charged for having committed offence under Sections 143, 144,147, 148, 109, 504,
324, 323 and 506 read with Section 149, IPC. In view of death of Mahadevappa
(hereinafter referred to as 'deceased') on 28.11.1994, Section 302, IPC was added.
3. The prosecution version as unfolded during trial was as follows:
The accused persons 1 to 14 forming themselves into members of unlawful assembly,
with deadly weapons assaulted CW-1 and caused fracture of his left leg. CW-1
consequent to the injuries and septicemia died after five days while under treatment. The
F.I.R. is lodged by the deceased. The contents of the F.I.R. implicated all the accused
persons. P.Ws. 2 and 5 are the eyewitnesses to the incident. They also implicate A1 to A-
14 as assailants who caused grievous injuries on CW-1, ultimately resulting in his death.
4. As noted above, after the death of the deceased, another complaint was filed and the
case was registered as one in relation to the offence punishable under Section 302, IPC.
The trial court as noted above found accused 4 to 14 to be not guilty. An appeal was
preferred by the appellants which, as noted above was dismissed. The High Court
disposed of the appeal observing as follows :
"The trial court has grossly erred in acquitting A4 to A14. Since Section 149 is invoked
and acquitted accused would be equally and vicariously liable for the acts of
@page-SC1807
A1 to A3 as they have shared common object and they had also participated in the
assault. The State has not filed an appeal against illegal acquittal.
The trial court convicted A1 to A3 for committing offence under Section 326 I.P.C. The
injury was caused on the non-vital part, no intention to cause the injury which is likely to
cause death and no knowledge of causing death could be inferred from the overt acts.
Therefore conviction u/S. 326, IPC is sound and proper. Looking into the consequence
and ghastly act, the sentence imposed is also sound and proper and do not call for
interference. The appeal is dismissed."
5. Learned counsel for the appellants submitted that the High Court's judgment is clearly
unsustainable being unreasoned.
6. Learned counsel for the respondent-State supported the judgment.
7. To say the least the High Court's judgment is a bundle of confusion. The High Court
held that the trial court has erred in acquitting A4 to A14, since Section 149 was invoked
and acquitted accused persons should be equally and vicariously liable as they shared
common object of A1 to A3 and also participated in the assault.
8. The High Court noted that the State has not filed an appeal against the "illegal
acquittal". The High Court upheld the conviction holding that injury was caused on the
non-vital part which was likely to cause the injury which is likely to cause death and no
knowledge of causing death could be inferred from the overt acts. Therefore the
conviction was maintained and the appeal was dismissed.
9. Since the High Court has not applied its mind to various contentions raised on behalf
of the appellant and has in a casual manner disposed of the appeal, we have no hesitation
in setting aside the impugned judgment. We remit the matter to the High Court for fresh
disposal in accordance with law. Since the Criminal Appeal is to the year 2001, we
request the High Court to dispose of the appeal as early as practicable preferably by the
end of October, 2008.
10. It is stated that an application for suspension of the sentence of the accused persons
and grant of bail shall be moved in the High Court. If the same is filed, it shall be dealt
with in accordance with law.
Appeal allowed.
AIR 2008 SUPREME COURT 1807 "Keya Mukherjee v. Magma Leasing Ltd."
(From : Calcutta)
Coram : 2 Dr. A. PASAYAT AND P. SATHASIVAM, JJ.
Criminal Appeal No. 620 of 2008 (arising out of S.L.P. (Cri.) No. 1477 of 2008), D/- 8 -4
-2008.
Keya Mukherjee v. Magma Leasing Ltd. and Anr.
Criminal P.C. (2 of 1974), S.313 - EXAMINATION OF ACCUSED - PERSONAL
APPEARANCE - SUMMONS CASE - Examination of accused by Court - Dispensing
with his personal attendance - Exemption from personal attendance statutorliy given in
summons cases - Can be extended to other cases if it works hardship on accused -
Procedure to be followed for granting exemption and answering questionnaire laid down.
The object of examination of an accused under S. 313 is for the purpose of enabling the
accused personally to explain any circumstances appearing in the evidence against him.
Thus the provision is mainly intended to benefit the accused and as its corollary to benefit
the Court in reaching the final conclusion. The provision is not intended to nail him to
any position, but to comply with the most salutary principle of natural justice enshrined
in the maxim audi alteram partem. The one category of offences which is specifically
exempted from the rigour of S. 313(1)(b) is 'summons cases.' Remaining present
personally is therefore the general rule. However if remaining present involves undue
hardship to accused the Court can alleviate the difficulties of the accused. Particularly in
view of revolutionary change in technology of communication and transmission and the
marked improvement in facilities for legal aid in the country. The provisions of Ss. 243,
247 and 233 enabling the accused to put in written statements most of which are prepared
by the counsel also supports such view. If such written statements can be treated as
statements directly emanating from the accused, hook, line and sinker, why not the
answers given by him in a specified manner, in special contingencies, be afforded the
same worth. A pragmatic and humanistic approach is therefore warranted in regard to
special exigencies. The word 'shall' in Cl. (b) to S. 313(1) is therefore to be interpreted as
obligatory on the Court and it should be complied with when it is for the benefit of the
accused. But if it works to his great
@page-SC1808
prejudice and disadvantage the Court should, in appropriate cases, relieve him of such
hardship and at the same time adopt a measure to comply with the requirements in S. 313
in a substantial manner. (Paras 19, 20, 21, 22, 23, 24, 25)
Manner of applying for exemption from personal attendance and the manner of
answering the questionnaire supplied by the Court to advocate of accused prescribed.
(Paras 26, 27)
Cases Referred : Chronological Paras
2000 AIR SCW 3692 : AIR 2000 SC 3214 : 2000 Cri LJ 4604 (Rel. on) 29, 31
1993 AIR SCW 2253 : AIR 1993 SC 2090 : 1993 Cri LJ 2669 (Ref.) 16
AIR 1988 SC 2163 : 1989 Cri LJ 296 (Ref.) 4, 30
AIR 1973 SC 2622 : 1973 Cri LJ 1783 (Ref.) 17
AIR 1969 SC 381 : 1969 Cri LJ 654 (Ref.) 8, 13, 30
AIR 1963 SC 612 : 1963 (1) Cri LJ 495 (Ref.) 19
AIR 1953 SC 468 : 1953 Cri LJ 1933 (Ref.) 11
Judgement
1. Dr. ARIJIT PASAYAT, J. :-Leave granted.
2. Challenge in this appeal is to the order passed by a learned Single Judge of the Calcutta
High Court dismissing the application filed by the appellant under Section 401 read with
Section 482 of the Code of Criminal Procedure, 1973 (in short the 'Cr.P.C.'). Challenge in
the said application was to the order dated 26.9.2006 passed by learned Additional
Sessions Judge, 7th Fast Track Court, Calcutta in Criminal Revision No. 36 of 2006 by
which the order dated 2.2.2006 passed by learned Metropolitan Magistrate 11th Court,
Calcutta in Case No. C-510 of 2003 was upheld. Learned Magistrate has rejected the
appellant's prayer for dispensing with her examination under Section 313 Cr.P.C. by
examining of the pleader who was to represent her under Section 205 Cr.P.C. The
proceeding was one under Section 138 of the Negotiable Instruments Act, 1881 (in short
the 'N I Act'). Appellant appeared before learned Magistrate on 2.6.2003 and was released
on bail. On 31.1.2004 she was examined under Section 251 Cr.P.C. Since she was absent
on 3.7.2004, warrant of arrest was issued against her but on 20.7.2004 she surrendered
before learned Magistrate and was released on bail. Recording of evidence was
completed and 5th May, 2005 was fixed for her examination under Section 313 Cr.P.C.
But on that date she was absent and a prayer was made for adjournment. The date was
adjourned to 12.5.2005. On that date appellant filed a petition purported to be under
Section 313 (1)(b) of Cr.P.C. Another petition was filed on 23.8.2005 under Section 205
Cr.P.C. Learned Magistrate allowed the petition filed under Section 205 Cr.P.C. on
2.2.2006 subject to the condition that the appellant shall appear before the Court as and
when called. But the petition under Section 313(1)(b) Cr.P.C. was rejected.
3. Learned Magistrate fixed 6.3.2006 for examination of the accused under Section 313
Cr.P.C. and directed the appellant to be personally present on that date. It is against this
order of learned Magistrate a revision was filed before learned Additional Sessions Judge
who confirmed the order. The order was challenged before the High Court, which as
noted above the same was rejected.
4. Learned counsel for the appellant submitted that in view of this Court's order in
Chandu Lal Chandraker v. Puran Mal and Anr. (AIR 1988 SC 2163) the prayer should
have been accepted. It was pointed out that whether in summons procedure case the
accused should be exempted from personal examination under Section 313 (1)(b), the
Court has exercised judicial discretion. The word 'may' occurring in the proviso clearly
indicates that learned Magistrate may or may not keeping the exigency of the
circumstances allow the prayer of the appellant for exemption from personal examination
under Section 313 Cr.P.C. According to him on the factual position when the appellant
was permitted to be represented in terms of Section 205 Cr.P.C., the courts below had
erroneously rejected the prayer.
5. It is pointed out that question as to at what stage of the trial the personal appearance of
the accused was dispensed with under Section 205 Cr.P.C. is not material because the fact
is that on the prayer of the appellant the petition under Section 205 was allowed before
the exemption of the accused under Section 313 Cr.P.C. Merely because the prayer was
allowed only almost on the conclusion of the trial cannot be a ground to reject a petition
filed under the proviso to Section 313 (1)(b) Cr.P.C.
6. Learned counsel for the respondent No. 1 supported the impugned order of the High
Court.
@page-SC1809
7. A few decisions of this Court need to be noticed in this context.
8. In Bibhuti Bhusan Das Gupta and Anr. v. State of West Bengal (AIR 1969 SC 381),
this Court held that the Pleader cannot represent the accused for the purpose of Section
342 of the Code of Criminal Procedure, 1898 (hereinafter referred to as 'Old Code')
which is presently Section 313 Cr.P.C.
9. Section 313 Cr.P.C. reads as follows : "313. Power to examine the accused.-
(1) In every inquiry or trial, for the purpose of enabling the accused personally to explain
any circumstances appearing in the evidence against him, the court-
(a) may at any stage, without previously warning the accused, put such questions to him
as the court considers necessary;
(b) shall, after the witnesses for the prosecution have been examined and before he is
called on for his defence, question him generally on the case :
Provided that in a summons case, where the court has dispensed with the personal
attendance of the accused, it may also dispense with his examination under clause (b).
(2) No oath shall be administered to the accused when he is examined under sub-section
(1).
(3) The accused shall not render himself liable to punishment by refusing to answer such
questions, or by giving false answers to them.
(4) The answers given by the accused may be taken into consideration in such inquiry or
trial, and put in evidence for or against him in any other inquiry into, or trial for, any
other offence which such answers may tend to show he has committed."
10. The forerunner of the said provision in the old Code was Section 342 therein. It was
worded thus :
"342. (1) For the purpose of enabling the accused to explain any circumstances appearing
in the evidence against him, the court may, at any stage of any inquiry or trial, without
previously warning the accused, put such questions to him as the court considers
necessary, and shall, for the purpose aforesaid, question him generally on the case after
the witnesses for the prosecution have been examined and before he is called on for his
defence.
(2) The accused shall not render himself liable to punishment by refusing to answer such
questions, or by giving false answers to them; but the court and the jury (if any) may
draw such inference from such refusal or answers as it thinks just.
(3) The answers given by the accused may be taken into consideration in such inquiry or
trial, and put in evidence for or against him in any other inquiry into, or trial for, any
other offence which such answers may tend to show he has committed.
(4) No oath shall be administered to the accused when he is examined under sub-section
(1)."
11. Dealing with the position as the section remained in the original form under the Old
Code, a three-Judge Bench of this Court in Hate Singh Bhagat Singh v. State of Madhya
Bharat (AIR 1953 SC 468) that :
"The statements of the accused recorded by the Committing Magistrate and the Sessions
Judge are intended in India to take the place of what in England and in America he would
be free to state in his own way in the witness-box. They have to be received in evidence
and treated as evidence and be duly considered at the trial."
12. Parliament, thereafter, introduced Section 342-A in the Old Code (which corresponds
to Section 315 of the present Code) by which permission is given to an accused to offer
himself to be examined as a witness if he so chose.
13

. In Bibhuti Bhusan Das Gupta's case (supra) another three-Judge Bench dealing with the
combined operation of Sections 342 and 342-A of the Old Code made the following
observations : AIR 1969 SC 381, Para 7

"Under Section 342-A only the accused can give evidence in person and his pleader's
evidence cannot be treated as his. The answers of the accused under Section 342 is
intended to be a substitute for the evidence which he can give as a witness under Section
342-A. The privilege and the duty of answering questions under Section 342 cannot be
delegated to a pleader. No doubt the form of the summons show that the pleader may
answer the charges against the accused, but in so answering the charges, he cannot do
what only the accused can do personally. The pleader may be permitted to represent the
accused while the prosecution evidence is being taken, But at the close of the prosecution
evidence the accused must be questioned and his pleader cannot be
@page-SC1810
examined in his place."
14. The Law Commission in its 41st Report considered the aforesaid decisions and also
various other points of view highlighted by legal men and then made the report after
reaching the conclusion that :
(i) in summons cases where the personal attendance of the accused has been dispensed
with, either under Section 205 or under Section 540-A, the court should have a power to
dispense with his examination; and
(ii) in other cases, even where his personal attendance has been dispensed with, the
accused should be examined personally.
15. The said recommendation has been followed up by Parliament and Section 313 of the
Code, as is presently worded, is the result of it. It would appear prima facie that the court
has discretion to dispense with the physical presence of an accused during such
questioning only in summons cases and in all other cases it is Incumbent on the court to
question the accused personally after closing prosecution evidence. Nonetheless, the Law
Commission was conscious that the rule may have to be relaxed eventually, particularly
when there is improvement in literacy and legal-aid facilities in the country. This thinking
can be discerned from the following suggestion made by the Law Commission in the
same report :
"We have, after considering the various aspects of the matter as summarised above, come
to the conclusion that Section 342 should not be deleted. In our opinion, the stage has not
yet come for it being removed from the statute-book. With further increase in literacy and
with better facilities for legal aid, it may be possible to take that step in the future."
16

. The position has to be considered in the present set-up, particularly after the lapse of
more than a quarter of a century through which period revolutionary changes in the
technology of communication and transmission have taken place, thanks to the advent of
computerisation. There is marked improvement in the facilities for legal aid in the
country during the preceding twenty-five years. Hence a fresh look can be made now. We
are mindful of the fact that a two-Judge Bench in Usha K. Pillai (1993 (3) SCC 208) has
found that the examination of an accused personally can be dispensed with only in
summons case. Their Lordships were considering a case where the offence involved was
Section 363 IPC. The two-Judge Bench held thus: (SCC pp. 212-13, para 4) 1993
AIR SCW 2253, Para 4

"A warrant case is defined as one relating to an offence punishable with death,
imprisonment for life or imprisonment for a term exceeding two years. Since an offence
under Section 363 IPC is punishable with imprisonment for a term exceeding two years it
is a warrant case and not a summons case. Therefore, even in cases where the court has
dispensed with the personal attendance of the accused under Section 205(1) or Section
317 of the Code, the court cannot dispense with the examination of the accused under
clause (b) of Section 313 of the Code because such examination is mandatory,"
17

. Contextually we cannot bypass the decision of a three-Judge Bench of this Court in


Shivaji Sahabrao Bobade v. State of Maharashtra (1973 (2) SCC 793) as the Bench has
widened the sweep of the provision concerning examination of the accused after closing
prosecution evidence. Learned Judges in that case were considering the fallout of
omission to put to the accused a question on a vital circumstance appearing against him
in the prosecution evidence. The three-Judge Bench made the following observations
therein: (SCC p. 806, para 16) AIR 1973 SC 2622, Para 16

"It is trite law, nevertheless fundamental, that the prisoner's attention should be drawn to
every inculpatory material so as to enable him to explain it. This is the basic fairness of a
criminal trial and failures in this area may gravely imperil the validity of the trial itself, if
consequential miscarriage of justice has flowed. However, where such an omission has
occurred it does not ipso facto vitiate the proceedings and prejudice occasioned by such
defect must be established by the accused. In the event of evidentiary material not being
put to the accused, the court must ordinarily eschew such material from consideration. It
is also open to the appellate court to call upon the counsel for the accused to show what
explanation the accused has as regards the circumstances established against him but not
put to him and if the accused is unable to offer the appellate court any plausible or
reasonable explanation of such circumstances, the court may assume that no acceptable
answer exists and that even if the
@page-SC1811
accused had been questioned at the proper time in the trial court he would not have been
able to furnish any good ground to get out of the circumstances on which the trial court
had relied for its conviction."
18. The above approach shows that some dilution of the rigour of the provision can be
made even in the light of a contention raised by the accused that non-questioning him on
a vital circumstance by the trial court has caused prejudice to him. The explanation
offered by the counsel of the accused at the appellate stage was held to be a sufficient
substitute for the answers given by the accused himself.
19. What is the object of examination of an accused under Section 313 of the Code? The
section itself declares the object in explicit language that it is "for the purpose of enabling
the accused personally to explain any circumstances appearing in the evidence against
him". In Jai Dev v. State of Punjab (AIR 1963 SC 612) Gajendragadkar, J. (as he then
was) speaking for a three-Judge Bench has focussed on the ultimate test in determining
whether the provision has been fairly complied with. He observed thus :
"The ultimate test in determining whether or not the accused has been fairly examined
under Section 342 would be to inquire whether, having regard to all the questions put to
him, he did get an opportunity to say what he wanted to say in respect of prosecution case
against him. If it appears that the examination of the accused person was defective and
thereby a prejudice has been caused to him, that would no doubt be a serious infirmity."
20. Thus it is well settled that the provision is mainly intended to benefit the accused and
as its corollary to benefit the court in reaching the final conclusion.
21. At the same time it should be borne in mind that the provision is not intended to nail
him to any position, but to comply with the most salutary principle of natural justice
enshrined in the maxim audi alteram partem. The word "may" in clause (a) of sub-section
(1) in Section 313 of the Code indicates, without any doubt, that even if the court does
not put any question under that clause the accused cannot raise any grievance for it. But if
the court fails to put the needed question under clause (b) of the sub-section it would
result in a handicap to the accused and he can legitimately claim that no evidence,
without affording him the opportunity to explain, can be used against him. It is now well
settled that a circumstance about which the accused was not asked to explain cannot be
used against him.
22. But the situation to be considered now is whether, with the revolutionary change in
technology of communication and transmission and the marked improvement in facilities
for legal aid in the country, is it necessary that in all cases the accused must answer by
personally remaining present in court. We clarify that this is the requirement and would
be the general rule. However, if remaining present involves undue hardship and large
expense, could the court not alleviate the difficulties. If the court holds the view that the
situation in which he made such a plea is genuine, should the court say that he has no
escape but he must undergo all the tribulations and hardships and answer such questions
personally presenting himself in court. If there are other accused in the same case, and the
court has already completed their questioning, should they too wait for long without their
case reaching finality, or without registering further progress of their trial until their co-
accused is able to attend the court personally and answer the court questions? Why
should a criminal court be rendered helpless in such a situation?
23. The one category of offences which is specifically exempted from the rigour of
Section 313(1)(b) of the Code is "summons cases". It must be remembered that every
case in which the offence triable is punishable with imprisonment for a term not
exceeding two years is a "summons case". Thus, all other offences generally belong to a
different category altogether among which are included offences punishable with varying
sentences from imprisonment for three years up to imprisonment for life and even right
up to death penalty. Hence there are several offences in that category which are far less
serious in gravity compared with grave and very grave offences. Even in cases involving
less serious offences, can not the court extend a helping hand to an accused who is placed
in a predicament deserving such a help?
24. Section 243(1) of the Code enables the accused, who is involved in the trial of
warrant case instituted on police report, to put in any written statement. When any such
statement is filed the court is obliged
@page-SC1812
to make it part of the record of the case. Even if such case is not instituted on police
report the accused has the same right (vide Section 247). Even the accused involved in
offences exclusively triable by the Court of Session can also exercise such a right to put
in written statements (Section 233(2) of the Code). It is common knowledge that most of
such written statements, if not all, are prepared by the counsel of the accused. If such
written statements can be treated as statements directly emanating from the accused,
hook, line and sinker, why not the answers given by him in the manner set out hereinafter,
in special contingencies, be afforded the same worth.
25. We think that a pragmatic and humanistic approach is warranted in regard to such
special exigencies. The word "shall" in clause (b) to Section 313(1) of the Code is to be
interpreted as obligatory on the court and it should be complied with when it is for the
benefit of the accused. But if it works to his great prejudice and disadvantage the court
should, in appropriate cases, e.g., if the accused satisfies the court that he is unable to
reach the venue of the court, except by bearing huge expenditure or that he is unable to
travel the long journey due to physical incapacity or some such other hardship, relieve
him of such hardship and at the same time adopt a measure to comply with the
requirements in Section 313 of the Code in a substantial manner. How could this be
achieved?
26. If the accused (who is already exempted from personally appearing in the court)
makes an application to the court praying that he may be allowed to answer the questions
without making his physical presence in court on account of justifying exigency the court
can pass appropriate orders thereon, provided such application is accompanied by an
affidavit sworn to by the accused himself containing the following matters :
(a) A narration of facts to satisfy the court of his real difficulties to be physically present
in court for giving such answers.
(b) An assurance that no prejudice would be caused to him, in any manner, by dispensing
with his personal presence during such questioning.
(c) An undertaking that he would not raise any grievance on that score at any stage of the
case.
27. If the court is satisfied of the genuineness of the statements made by the accused in
the said application and affidavit it is open to the court to supply the questionnaire to his
advocate (containing the questions which the court might put to him under Section 313 of
the Code) and fix the time within which the same has to be returned duly answered by the
accused together with a properly authenticated affidavit that those answers were given by
the accused himself. He should affix his signature on all the sheets of the answered
questionnaire. However, if he does not wish to give any answer to any of the questions he
is free to indicate that fact at the appropriate place in the questionnaire (as a matter of
precaution the court may keep photocopy or carbon copy of the questionnaire before it is
supplied to the accused for an answer). If the accused fails to return the questionnaire
duly answered as aforesaid within the time or extended time granted by the court, he shall
forfeit his right to seek personal exemption from court during such questioning. The
Court has also to ensure that the imaginative response of the counsel is intended to be
availed to be a substitute for taking statement of accused.
28. In our opinion, if the above course is adopted in exceptional exigency it would not
violate the legislative intent envisaged in Section 313 of the Code.
29

. The above position was indicated in Basav Raj R Patil v. State of Karnataka (2000 (8)
SCC 740). 2000 AIR SCW 3692

30

. It is true that in Chandu Lal Chandraker's case (supra) two Hon'ble Judges have taken a
view supporting that of the appellant. It appears that in said case no reference was Gupta's
case (supra). AIR 1988 SC 2163
AIR 1969 SC 381

31

. Judged in the background of principles set out in Basav Raj R. Paul's case (supra) the
inevitable conclusion is that the High Court's impugned order does not suffer from any
infirmity to warrant interference. 2000 AIR SCW 3692

32. Appeal is dismissed.


Appeal dismissed.
@page-SC1813
AIR 2008 SUPREME COURT 1813 "Md. Kalam v. State of Rajasthan"
(From : Rajasthan)*
Coram : 2 Dr. A. PASAYAT AND P. SATHASIVAM, JJ.
Criminal Appeal No. 489 of 2008 (arising out of S.L.P. (Cri.) No. 4178 of 2006), D/- 14
-3 -2008.
Md. Kalam alias Abdul Kalam v. State of Rajasthan.
(A) Evidence Act (1 of 1872), S.9 - Criminal P.C. (2 of 1974), S.162 -
IDENTIFICATION PARADE - INVESTIGATION - Test identification parade - Purpose
- Help investigating agency with assurance that its progress is on right line - T.I. parade
also helps in testing veracity of witness - Identification at T.I. parade is not substantive
evidence - But it strengthens trustworthiness of evidence of identification given in Court.
(Paras 7, 8)
(B) Evidence Act (1 of 1872), S.9 - IDENTIFICATION PARADE - Test identification
parade - Holding of - Not an obligation on investigating agency - Accused does not have
a right to claim holding of T.I. parade. (Para 8)
(C) Evidence Act (1 of 1872), S.9 - IDENTIFICATION PARADE - Test identification
parade - Delay in holding - Not always fatal - But parades as far as possible to be held
soon as after arrest of accused to eliminate possibility of accused being shown to
witnesses. (Para 7)
Cases Referred : Chronological Paras
2004 AIR SCW 6537 : AIR 2005 SC 402 : 2005 Cri LJ 320 (Ref.) 17
2003 AIR SCW 3336 : AIR 2003 SC 2669 : 2003 Cri LJ 3535 (Ref.) 17
1999 AIR SCW 4008 : AIR 1999 SC 3916 : 2000 Cri LJ 44 16
1999 AIR SCW 4246 : AIR 2000 SC 160 : 2000 Cri LJ 380 16
1999 AIR SCW 4770 : 1999 Cri LJ 5013 (Ref.) 16
1996 AIR SCW 3119 : AIR 1996 SC 2511 : 1996 Cri LJ 3585 (Ref.) 13
1994 AIR SCW 3420 : AIR 1994 SC 2420 : 1994 Cri LJ 3271 (Ref.) 14
AIR 1980 SC 1382 : 1980 Cri LJ 965 16
AIR 1978 SC 1770 (Ref.) 15
AIR 1975 SC 1814 : 1975 Cri LJ 1553 (Ref.) 11
AIR 1973 SC 2190 : 1973 Cri LJ 1176 (Rel. on) 7
AIR 1972 SC 102 : 1972 Cri LJ 15 (Ref.) 8
AIR 1971 SC 363 : 1971 Cri LJ 305 9, 11
AIR 1971 SC 1050 : 1971 Cri LJ 913 (Rel. on) 7
AIR 1970 SC 1321 : 1970 Cri LJ 1149 (Ref.) 8
AIR 1960 SC 1340 : 1960 Cri LJ 1681 (Ref.) 8
AIR 1958 SC 350 : 1958 Cri LJ 698 (Ref.) 8
(1957) Cri. Appeal No. 92 of 1956, D/- 15-1-1957 (SC) 9
Darshan Singh Chawla, (AC), for Appellant; Jatinder Kumar Bhatia, for Respondent.
* S.B. Cri. Appeal No. 326 of 2003, D/- 14-9-2004 (Raj) (Jaipur Bench).
Judgement
Dr. ARIJIT PASATAT, J. :- Leave granted.
2. Challenge in this appeal is to the order passed by a learned Single Judge of the
Rajasthan High Court, Jaipur Bench. Challenge in the appeal before the High Court was
to the judgment and order dated 10-4-2002 passed by learned Additional Sessions Judge
(Fast Track) Class II, Jaipur. By the said judgment, the appellant was convicted for
offence punishable under Section 395 of the Indian Penal Code, 1860 (in short 'IPC'). He
was sentenced to undergo rigorous imprisonment for 10 years and to pay a fine of Rs.
1,000/- with default stipulation.
3. Background facts in a nutshell are as follows :
In the intervening night of 8-9th May, 1994 when Vishwas (PW-3) and his wife Renu Jain
(PW-1) were sleeping in their house situated in Mauji Colony, Malviya Nagar, Jaipur,
five persons entered the house and tied their servant Chaturbhuj who was sleeping in the
basement of the house. Thereafter, the accused also tied the mouth, hands and legs of
Vishwas Jain (PW-3) and his wife Renu (PW-1) and then bolted them inside the bathroom
and having threatened them at the point of pistol and knife, the accused looted the gold
and silver ornaments, coins and cash. The miscreants stayed in their house for about an
hour. Complainant Vishwas managed to come out of the bathroom through a window and
then telephonically informed the police personnel of Police Station, Malviya Nagar,
Jaipur. On receiving the information, the police party reached the house of complainant,
where complainant submitted a written report, whereupon a case for offence under
@page-SC1814
Section 395 IPC was registered.
At the very outset it may be stated that case was registered against five accused. The
investigating agency arrested three accused, namely, Mohd. Babul, Mohd. Jalal and
Mohd. Ansari and after completion of investigation submitted charge sheet against them
for offence under Section 395 IPC. At the conclusion of trial, the leaned trial Judge vide
its judgment dated 31-3-1997 held the accused appellant guilty and accordingly convicted
and sentenced them. These three accused challenged their conviction by filing appeals
before the High Court. Vide judgment dated 13-4-1998 the High Court dismissed the
appeals of Mohd. Jalal and Mohd. Babul and maintained their conviction under Section
395 IPC and partly allowed the appeal of accused Ansari by altering his conviction from
Section 395 IPC to Section 411 IPC. Investigation as against the appellant and co-
accused Saidulla was kept pending under Section 173(8) of the Code of Criminal
Procedure, 1973 (in short the 'Code'). Appellant Mohd. Kalam was arrested on 27-3-
1998. Co-accused Saidulla was also arrested but he absconded during trial and is still
absconding.
After arrest, Test Identification Parade was conducted and after completion of
investigation, police submitted charge sheet against the appellant.
The basic challenge before the High Court was to the possibility of identification. With
reference to the statement of Renu Jain (PW-1) and Vishwas Jain (PW-3) it was
contended that there was possibility of the appellant having been shown to the
complainant and his wife. It was stated that the Test Identification Parade (in short 'TI
Parade') was done after a period of over 7 days. High Court did not accept the plea. It
held that the trial Court had analysed this aspect. The High Court also considered the
evidence of PWs 1 and 3 and came to hold that it was crystal clear that PW-3 had ample
opportunity to identify the appellant. It was also noted that the said witness was believed
in respect of the identification of three other accused persons who had earlier faced trial
and had been convicted for offence punishable under Section 395 IPC and on appeal their
conviction had been upheld by the High Court. The appeal was accordingly dismissed.
4. Learned counsel for the appellant sub-mitted that only on the basis of identification by
PW-3 the conviction should not have been recorded. It was pointed out that PW-3 had
accepted that his wife, PW-1 had not gone for the identification.
5. Learned counsel for the respondent-State supported the judgment of the trial Court.
6. The TI Parade was done on 3-4-1998, the accused was arrested on 27-3-1998 and on
28-3-1998 the accused was produced by the SHO at the residence of Additional Chief
Judicial Magistrate No.6 and prayer was made for police custody remand. On the
application for remand, the Magistrate allowed the police custody till 31-3-1998. On 31-
3-1998 the SHO again produced the appellant before the Magistrate and on both
occasions the Magistrate recorded that the accused was produced 'Baparda'. The TI
Parade was held on 3-4-1998 and the appellant and other accused were correctly
identified by PW-3. The evidence of Shri Ratish Kumar Garg (PW-12) the Judicial
Magistrate, First Class, Jaipur shows that on 3-4-1998 he was working as Judicial
Magistrate and on the direction of the Chief Judicial Magistrate, Jaipur the accused-
appellant along with others were brought for the TI Parade. Vishwas Jain (PW-3)
correctly identified the appellant. It is also specifically stated in his evidence that it was
not correct to say that the accused "might have told to him that accused was shown to the
witness earlier."
7

. As was observed by this Court in Matru v. State of U.P. (1971 (2) SCC 75) identification
tests do not constitute substantive evidence. They are primarily meant for the purpose of
helping the investigating agency with an assurance that their progress with the
investigation into the offence is proceeding on the right lines. The identification can only
be used as corroborative of the statement in court. (See Santokh Singh v. Izhar Hussain
(1973 (2) SCC 406). The necessity for holding an identification parade can arise only
when the accused are not previously known to the witnesses. The whole idea of a test
identification parade is that witnesses who claim to have seen the culprits at the time of
occurrence are to identify them from the midst of other persons without any aid or any
other source. The test is done to check upon their veracity. In other words, the main
object of holding an identification parade, during the AIR 1971 SC 1050
AIR 1973 SC 2190

@page-SC1815
investigation stage, is to test the memory of the witnesses based upon first impression and
also to enable the prosecution to decide whether all or any of them could be cited as
eyewitnesses of the crime. The identification proceedings are in the nature of tests and
significantly, therefore, there is no provision for it in the Code and the Evidence Act. It is
desirable that a test identification parade should be conducted as soon as after the arrest
of the accused. This becomes necessary to eliminate the possibility of the accused being
shown to the witnesses prior to the test identification parade. This is a very common plea
of the accused and, therefore, the prosecution has to be cautious to ensure that there is no
scope for making such allegation. If, however, circumstances are beyond control and
there is some delay, it cannot be said to be fatal to the prosecution.
8. It is trite to say that the substantive evidence is the evidence of identification in Court.
Apart from the clear provisions of Section 9 of the Indian Evidence Act, 1872 (in short
the 'Evidence Act') the position in law is well settled by a catena of decisions of this
Court. The facts, which establish the identity of the accused persons, are relevant under
Section 9 of the Evidence Act. As a general rule, the substantive evidence of a witness is
the statement made in Court. The evidence of mere identification of the accused person at
the trial for the first time is from its very nature inherently of a weak character. The
purpose of a prior test identification, therefore, is to test and strengthen the
trustworthiness of that evidence. It is accordingly considered a safe rule of prudence to
generally look for corroboration of the sworn testimony of witnesses in Court as to the
identity of the accused who are strangers to them, in the form of earlier identification
proceedings. This rule of prudence, however, is subject to exceptions, when, for example,
the Court is impressed by a particular witness on whose testimony it can safely rely,
without such or other corroboration. The identification parades belong to the stage of
investigation, and there is no provision in the Code which obliges the investigating
agency to hold or confers a right upon the accused to claim, a test identification parade.
They do not constitute substantive evidence and these parades are essentially governed by
Section 162 of the Code. Failure to hold a test identification parade would not make
inadmissible the evidence of identification in Court. The weight to be attached to such
identification should be a matter for the Courts of fact. In appropriate cases it may accept
the evidence of identification even without insisting on corroboration. (See Kanta
Prashad v. Delhi Administration (AIR 1958 SC 350), Vaikuntam Chandrappa and others
v. State of Andhra Pradesh (AIR 1960 SC 1340), Budhsen and another v. State of U.P.
(AIR 1970 SC 1321) and Rameshwar Singh v. State of Jammu and Kashmir (AIR 1972
SC 102).
9

. In Jadunath Singh and another v. The State of Uttar Pradesh (1970) 3 SCC 518), the
submission that absence of test identification parade in all cases is fatal, was repelled by
this Court after exhaustive considerations of the authorities on the subject. That was a
case where the witnesses had seen the accused over a period of time. The High Court had
found that the witnesses were independent witnesses having no affinity with deceased
and entertained no animosity towards the appellant. They had claimed to have known the
appellants for the last 6-7 years as they had been frequently visiting the town of Bewar.
This Court noticed the observations in an earlier unreported decision of this Court in
Parkash Chand Sogani v. The State of Rajasthan (Criminal Appeal No. 92 of 1956
decided on January 15, 1957), wherein it was observed :- AIR 1971 SC 363
Para 14 of AIR

"It is also the defence case that Shiv Lal did not know the appellant. But on a reading of
the evidence of P.W. 7 it seems to us clear that Shiv Lal knew the appellant by sight.
Though he made a mistake about his name by referring to him as Kailash Chandra, it was
within the knowledge of Shiv Lal that the appellant was a brother of Manak Chand and
he identified him as such. These circumstances are quite enough to show that the absence
of the identification parade would not vitiate the evidence. A person who is well-known
by sight as the brother of Manak Chand, even before the commission of the occurrence,
need not be put before an identification parade in order to be marked out. We do not think
that there is any justification for the contention that the absence of the identification
parade or a mistake made as to his name, would be necessarily fatal to the prosecution
case in the circumstances."
@page-SC1816
The Court concluded :
"It seems to us that it has been clearly laid down by this Court, in Parkash Chand Soganl
v. The State of Rajasthan (supra) (AIR, Cri LJ), that the absence of test identification in
all cases is not fatal and if the accused person is well-known by sight it would be waste of
time to put him up for identification. Of course if the prosecution fails to hold an
identification on the plea that the witnesses already knew the accused well and it
transpires in the course of the trial that the witnesses did not know the accused
previously, the prosecution would run the risk of losing its case." AIR 1963 SC 363,
Para 18

11

. In Harbhajan Singh v. State of Jammu and Kashmir (1975) 4 SCC 480), though a test
identification parade was not held, this Court upheld the conviction on the basis of the
identification in Court corroborated by other circumstantial evidence. In that case it was
found that the appellant and one Gurmukh Singh were absent at the time of roll call and
when they were arrested on the night of 16th December, 1971 their rifles smelt of fresh
gunpowder and that the empty cartridge case which was found at the scene of offence
bore distinctive markings showing that the bullet which killed the deceased was fired
from the rifle of the appellant. Noticing these circumstances this Court held :- AIR
1975 SC 1814, Para 4

"In view of this corroborative evidence we find no substance in the argument urged on
behalf of the appellant that the Investigating Officer ought to have held an identification
parade and that the failure of Munshi Ram to mention the names of the two accused to
the neighbours who came to the scene Immediately after the occurrence shows that his
story cannot be true. As observed by this Court in Jadunath Singh v. State of U.P. (AIR
1971 SC 363) absence of test identification is not necessarily fatal. The fact that Munshi
Ram did not disclose the names of the two accused to the villages only shows that the
accused were not previously known to him and the story that the accused referred to each
other by their respective names during the course of the incident contains an element of
exaggeration. The case does not rest on the evidence of Munshi Ram alone and the
corroborative circumstances to which we have referred to above lend enough assurance to
the implication of the appellant."
12. It is no doubt true that much evidentiary value cannot be attached to the identification
of the accused in Court where identifying witness is a total stranger who had just a
fleeting glimpse of the person identified or who had no particular reason to remember the
person concerned, if the identification is made for the first time in Court.
13

. In Ram Nath Mahto v. State of Bihar (1996) 8 SCC 630) this Court upheld the
conviction of the appellant even when the witness while deposing in Court did not
identify the accused out of fear, though he had identified him in the test identification
parade. This Court noticed the observations of the trial Judge who had recorded his
remarks about the demeanor that the witness perhaps was afraid of the accused as he was
trembling at the stare of Ram Nath-accused. This Court also relied upon the evidence of
the Magistrate, PW-7 who had conducted the test identification parade in which the
witness had identified the appellant. This Court found, that in the circumstances if the
Courts below had convicted the appellant, there was no reason to interfere. 1996 AIR
SCW 3119

14

. In Suresh Chandra Bahri v. State of Bihar (1995 Supp (1) SCC 80), this Court held that
it is well settled that substantive evidence of the witness is his evidence in the Court but
when the accused person is not previously known to the witness concerned then
identification of the accused by the witness soon after his arrest is of great importance
because it furnishes an assurance that the investigation is proceeding on right lines in
addition to furnishing corroboration of the evidence to be given by the witness later in
Court at the trial. From this point of view it is a matter of great importance, both for the
investigating agency and for the accused and a fortiori for the proper administration of
justice that such identification is held without avoidable and unreasonable delay after the
arrest of the accused. It is in adopting this course alone that justice and fair play can be
assured both to the accused as well as to the prosecution. Thereafter this Court
observed :- 1994 AIR SCW 3420
Para 78 of AIR SCW

"But the position may be different when the accused or a culprit who stands trial had been
seen not once but for quite a number of times at different point of time and places which
fact may do away with the necessity
@page-SC1817
of a TI parade."
15

. In State of Uttar Pradesh v. Boota Singh arid others (1979 (1) SCC 31), this Court
observed that the evidence of Identification becomes stronger if the witness has an
opportunity of seeing the accused not for a few minutes but for some length of time, in
broad daylight, when he would be able to note the features of the accused more carefully
than on seeing the accused in a dark night for a few minutes. AIR 1978 SC 1770

16

. In Ramanbhai Naranbhai Patel and others v. State of Gujarat (2000 (1) SCC 358) after
considering the earlier decisions this Court observed :- 1999 AIR SCW 4770, Para
20

"It becomes at once clear that the aforesaid observations were made in the light of the
peculiar facts and circumstances wherein the police is said to have given the names of the
accused to the witnesses. Under these circumstances, identification of such a named
accused only in the Court when the accused was not known earlier to the witness had to
be treated as valueless. The said decision, in turn, relied upon an earlier decision of this
Court in the case of State (Delhi Admn.) v. V. C. Shukla (AIR 1980 SC 1382) wherein
also Fazal Ali, J. speaking for a three-Judge Bench made similar observations in this
regard. In that case the evidence of the witness in the Court and his identifying the
accused only in the Court without previous identification parade was found to be a
valueless exercise. The observations made therein were confined to the nature of the
evidence deposed to by the said eye-witnesses. It, therefore, cannot be held, as tried to be
submitted by learned Counsel for the appellants, that in the absence of a test
identification parade, the evidence of an eye-witness Identifying the accused would
become Inadmissible or totally useless; whether the evidence deserves any credence or
not would always depend on the facts and circumstances of each case. It is, of course,
true as submitted by learned Counsel for the appellants that the later decisions of this
Court in the case of Rajesh Govind Jagesha v. State of Maharashtra (AIR 2000 SC 160)
and State of H.P. v. Lekh Raj (AIR 1999 SC 3916), had not considered the aforesaid
three-Judge Bench decisions of this Court. However, in our view, the ratio of the
aforesaid later decisions of this Court cannot be said to be running counter to what is
decided by the earlier three-Judge Bench Judgments on the facts and circumstances
examined by the Court while rendering these decisions. But even assuming as submitted
by learned Counsel for the appellants that the evidence of, these two injured witnesses i.e.
Bhogllal Ranchhodbhai and Karsanbhal Vallabhbhai identifying the accused in the Court
may be treated to be of no assistance to the prosecution, the fact remains that these eye-
witnesses were seriously injured and they could have easily seen the faces of the persons
assaulting them and their appearance and identity would well within imprinted in their
minds especially when they were assaulted in broad daylight. They could not be said to
be interested in roping in innocent persons by shielding the real accused who had
assaulted them." 1999 AIR SCW 4246
1999 AIR SCW 4008

17

. These aspects were also highlighted in Malkhansingh and Others v. State of M.P. (2003
(5) SCC 746) and Munshi Singh Gautam (dead) and Ors. v. State of M.P. (2005 (9) SCC
631). 2003 AIR SCW 3336
2004 AIR SCW 6537

18. In view of the evidence which the trial Court and the High Court have analysed and
the identification by PW-3 in the TI Parade, there is no infirmity in the conclusions of
guilt of the accused. The appellant's conviction is accordingly maintained. The sentence
also does not warrant interference.
19. The appeal is without merit and is dismissed.
Appeal dismissed.
AIR 2008 SUPREME COURT 1817 "Pramod Kumar v. U. P. Secondary Education
Services Commission"
(From : 2005 All LJ 158)
Coram : 2 S. B. SINHA AND H. S. BEDI, JJ.
Civil Appeal No. 2568 of 2006, D/- 7 -3 -2008.
Pramod Kumar v. U.P. Secondary Education Services Commission and Ors.
U.P. Intermediate Education Act (2 of 1921), S.16E, S.16C(3) - EDUCATION -
APPOINTMENT - TERMINATION OF SERVICE - SERVICE MATTERS -
Appointment of teacher - Appointee not possessing requisite/basic qualification at time of
appointment - Termination of his services - Not Illegal.
1997 (4) RSJ 134 (P and H), Overruled.
If the essential educational qualification for recruitment to a post is not satisfied.
@page-SC1818
ordinarily the same cannot be condoned. Such an act cannot be ratified. An appointment
which is contrary to the statute/statutory rules would be void in law. An illegality cannot
be regularized, particularly, when the statute in no unmistakable term says so. A
departmental proceedings against the appellant teacher might have been initiated after the
change of management. However he must establish existence of a legal right in himself
and a corresponding legal duty in the State. If he did not possess the requisite
qualification to hold a post, he could not have any legal right to continue. It was,
therefore, immaterial as to why and when the said proceeding had been initiated against
him. Since the appellant lacked basic educational qualification, the termination of his
services would not be illegal. 1997 (4) RSJ 134 (P and H), Overruled. (Paras 19, 23,
24, 32)
Cases Referred : Chronological Paras
2007 AIR SCW 7569 (Ref.) 19
(2007) 4 SCC 54 (Ref.) 29
2006 AIR SCW 399 : AIR 2006 SC 3492 : 2006 Lab IC 947 : 2006 (2) ALJ 234 (Ref.)
28
2006 AIR SCW 1991 : AIR 2006 SC 1806 (Ref.) 19
2006 AIR SCW 2972 : AIR 2006 SC 2319 (Ref.) 19
1997 (4) RSJ 134 (P and H) (Overruled) 22
1996 AIR SCW 2660 : AIR 1996 SC 3328 (Ref.) 26
1996 AIR SCW 3288 : AIR 1996 SC 2638 : 1996 Lab IC 2268 : 1996 All LJ 1519 (Ref.)
30-31
1994 AIR SCW 4438 : AIR 1995 SC 277 (Ref.) 11, 27
1994 All LJ 1077 : 1995 Lab IC 112 30-31
(1993) 3 SCC 591 (Ref.) 25
AIR 1990 SC 1381 : 1990 Lab IC 1227 : 1990 All LJ 355 (Ref.) 24
P.S. Patwalia, Sr. Advocate, D.K. Garg, Bheem Pratap Singh, Aman Preet Singh Rahi,
Abhishek Garg, R.C. Kaushik, for Appellant; S.R. Singh, Sr. Advocate, T.N. Singh, S.K.
Mishra, Prashant Choudhary, Sandeep Jitendra Mohan Sharma, Ms. Niranjana Singh, for
Respondents.
Judgement
S. B. SINHA, J. :- Appellant was appointed as an Assistant Teacher in C. T. Grade in an
Intermediate College. Admittedly, essential qualifications and other conditions for
recruitment therefor are prescribed by Uttar Pradesh Secondary Education Services
Selection Boards Act, 1982 (the Act) and the Rules framed thereunder. Section 16 of the
Act provide for the essential qualifications. In terms of the Act, rules were framed by the
State of Uttar Pradesh in 1993 known as the Uttar Pradeh Secondary Education Services
Commission Rules (the Rules).
Section 16 of the Act reads, thus :
"16. Appointments to be made only on the recommendations of the Board - (1)
Notwithstanding anything to the contrary contained in the Intermediate Education Act,
1921 or the regulations made thereunder but subject to the provisions of Sections 12, 18,
21-B, 21-C, 21-D, 33, 33-A, 33-B, 33-C, 33-D, 33-E and 33-F, every appointment of a
teacher, shall on or after the date of the commencement of the Uttar Pradesh Secondary
Education Services Selection Board (Amendment) Act, 2001 be made by the
management only on the recommendation of the Board";
Provided that in respect of retrenched employees, the provisions of Section 16-EE of the
Intermediate Education Act, 1921, shall mutatis mutandis apply :
Provided further that the appointment of a teacher by transfer from one Institution to
another, may be made in accordance with the regulations made under Clause (c) of sub-
section (2) of Section 16-G of the Intermediate Education Act, 1921 :
(2) Any appointment made in contravention of the provisions of sub-section (1) shall be
void."
2. The minimum qualification for Masters and Teachers were laid down in the Rules as
prescribed under Sections 16E, 16F and Section 16FF of the Act.
Rule 3 of the Rules reads as under :-
"3. Qualifications and experience, etc. for appointment as teacher.- (1) The minimum
academic qualification for appointment as teacher shall be as given in Regulation 1 under
Chapter II of the Regulations, framed under the Intermediate Education Act, 1921.
(2) No male person shall be eligible for appointment to the post of the head of an
institution or teacher in a girls institution.
Provided that nothing contained in this sub-rule shall apply in relation to
(i) a teacher already working in a permanent capacity in a girls institution for promotion
or appointment to any higher post of a teacher not being the post of the head
@page-SC1819
of an institution in the same institution.
(ii) Appointment as a teacher for the subject of music in an institution to a person who is
blind.
Provided further that when a suitable lady candidate is not available for appointment in a
girls institution for the post of a teacher, not being the post of head of institution, or for
any other sufficient reason, the commission is satisfied that it is in the interest of the
students so to do, it may recommend a male candidate for such post :
Provided also that, before recommending a male candidate in accordance with the
preceding proviso, the Commission may obtain and consider the views of the Director
and Management."
4. It is neither in doubt nor in dispute that prior to coming into force of the said Act, the
matters relating to recruitment of Assistant Teachers used to be governed by the U. P.
Intermediate Education Act, 1921 (1921 Act). A bare perusal of the aforementioned
provisions read with those of 1921 Act would clearly show that the possession of a
graduate degree from a University recognized under the University Grants Commission
Act (UGC Act) or any other State Act was at all material and still is imperative.

5. Appellant admittedly did his B.Ed. Degree from Mithili Vishwa Vidyapeeth, Sankat
Mochan Dham Darbhanga, Bihar. The name of the said institution allegedly figured in a
'Directory of Institutions for Higher Education', published by Ministry of Education and
Culture, Government of India in the year 1982. It, however, stands admitted that it was
not an institution recognized under the UGC Act.
6. He was appointed on 29-11-1988 by the Principal/Manager, Shri Jawahar Inter College
Bamnauli (Meerut) stating;
"You are hereby informed with pleasure that the teacher's selection committee of the
college has appointed you in short term vacancy as ad-hoc assistant teacher in C.T. Grade
on the basis of interview held on 20-11-1988 up to the reversion of Sh. Shiv Kumar
Sharma at his post or vacancy filled up and joined with a person selected by commission
at the above post.
Please join the duty at above post within 10 days, otherwise this appointment letter of
yours will be deemed as cancelled."
7. It became known to the University that he had not been possessing a degree granted by
a university recognized by the Commission.
He was asked to obtain a B.Ed. degree from a recognized University within a period of
two years. An opportunity was granted to him to obtain such a degree by a letter dated
18-2-1993 stating;
"You, Shri Pramod Kumar, Asst. Teacher CT Grade, know that you have acquired B.Ed.
degree from Maithili Vishwavidyapeeth Darbhanga. We came to know from reliable
sources that the said University from where you have acquired B.Ed. degree has not been
recognized by University Grants Commission.
Earlier also by the Manager of Institution Shri Naresh Singh Rathi has also directed you
to acquire B.Ed. degree from a recognized University within a period of two years. Now
I, as a last opportunity, direct you to acquire B.Ed. degree from a recognized University.
You are requested to acquire B.Ed. degree in future otherwise Managing Committee shall
be constrained to take appropriate action."
8. He prayed for appearing in the said examination in B.Ed. Correspondence Examination
from Maharshi Dayanand University, Rohtak (Haryana). Allegedly, such permission was
granted and he obtained a requisite degree. Before us, however, only a marksheet issued
by the Controller of Examination of Maharshi Dayanand University, Rohtak has been
placed. Whether the correspondence Course for B.Ed. Degree granted by the said
University is valid and recognized by the State of U. P. or not is not known.
9. Inter alia on the premise that he had not been paid his salary, he filed a writ petition
before the High Court of Judicature at Allahabad which was marked as Civil
Miscellaneous Writ Petition No. 1338 of 1989. Upon noticing that he had been getting his
salary from 1-1-1991, by a judgment and order dated 5-7-1996, the High Court directed
the respondents to pay the arrears of salary from 1-12-1988 to 31-12-1990.
10. Allegedly, as the said order was not complied with, a Contempt Petition was filed
wherein a show cause notice was issued by the High Court.
It is, however, not in dispute that a notice to show cause was served upon him on
@page-SC1820
or about 11-1-1987, on the premise charge that he had obtained his appointment on the
basis of a fabricated and illegal B.Ed. degree. Cause was shown by him on 16-1-1997.
11. A departmental proceeding was thereafter initiated against appellant. On completion
thereof, his services were terminated by an order dated 12-2-1997. He filed a Writ
Petition questioning the correctness of the said order. By reason of a judgment and order
dated 9-3-1997, a learned single Judge of the High Court dismissed the said writ petition
stating :

"After considering respective contentions of the parties and in view of the admitted facts,
I find that the petitioner was appointed originally when admittedly he was not having
proper qualification. The petitioner has failed to show under what circumstances he could
be validly appointed on the basis of such qualification of bachelor of education degree
awarded by a university which was non recognised. That being so the appointment itself
is bad. No question of estoppel also arises in such case. The law in this connection has
been decided in the case of Ravinder Sharma and another v. state of Punjab and others
reported on 1995 1 SCC 138. 1994 AIR SCW 4438

In present case the petitioner's appointment was not having an approval and he was only
paid salary under the court's order. Moreover, admittedly the petitioner's appointment was
without there being a proper qualification and as such the appointment of the petitioner
was in violation of Section 16-E of the U.P. Intermediate Education Act, 1921. In the
circumstances, the petitioner is not entitled to protection under Section 16-C (3) of the
said Act."
12. The High Court, furthermore, in its judgment took into consideration the contention
of the appellant that his services should have been regularised in terms of Section 33-A
and Section 33-B of the Uttar Pradesh Secondary Education Services Selection Board
Act, 1982, as he had been possessing the prescribed qualification at the material point of
time.
13. A special Appeal preferred by the appellant against the said judgment and order has
been dismissed by the Division Bench holding;
"Considering the totality of the facts and circumstances as discussed above, we are of the
view that the initial appointment of the petitioner, being wholly illegal and void by virtue
of its being de hors the rules his appointment to the said post of assistant teacher in the
Institution could not be permitted to continue any more, even if he had managed
subsequently to obtain another of B.Ed. We are in full agreement with the Ld. single
Judge who has not found any good ground for interference under the extra ordinary
jurisdiction envisaged under Article 226 of the Constitution of India. The decision given
in the writ petition, thus, does not require to be disturbed in the present intra court appeal,
which lacks merits and is hereby dismissed with no order as to cost."
14. Mr. P. S. Patwalia, the learned senior counsel appearing on behalf of the appellant in
support of this appeal inter alia submitted :
(i) Keeping in view the fact that the appellant did not conceal any material fact and the
management was aware that the degree possessed by him was not granted by a
recognized university, it is not a case where he can be said to have committed a fraud
upon the institution.
(ii) In any event, as the management had permitted him to obtain a fresh degree which
having been obtained, his services should have been directed to be continued.
(iii) The action of the management was mala fide as the departmental proceeding was
initiated only after the change in management and in view of institution of a contempt
petition against the management of the institution.
(iv) Appellant having served the institution for more than nine years from 1988, the High
Court should have allowed the writ application.
15. Mr. S. R. Singh, the learned senior counsel appearing on behalf of the respondents, on
the other hand, submitted :
(a) Appellant having not possessed any valid degree from a University recognised by the
University Grants Commission, his appointmenl was Illegal.
(b) Rule 3 of 1993 Rules providing for a degree from a recognised university as a sine
quo non for appointment to a post. A subsequent acquisition, therefore, would not come
to his rescue.
(c) Appellant having not fulfilled the conditions precedent for regularization of his
@page-SC1821
services in terms of the provisions of the Uttar Pradesh Secondary Education Selection
Board Act, 1982. the High Court has rightly rejected the said prayer.
16-17. The qualifications for holding a post have been laid down under a statute, any
appointment in violation thereof would be a nullity.
18. It is a matter of some concern that appointments are being offered by the authorities
of the State without verifying the fact as to whether the degree(s) possessed by the
candidate(s) are valid or not. It was an ad hoc appointment. Why despite the same, he was
allowed to obtain degree from another university is not known.
19

. If the essential educational qualification for recruitment to a post is not satisfied,


ordinarily the same cannot be condoned. Such an act cannot be ratified. An appointment
which is contrary to the statute/statutory rules would be void in law. An illegality cannot
be regularized, particularly, when the statute in no unmistakable term says so. Only an
irregularity can be 2006 AIR SCW 1991
2006 AIR SCW 2972
2007 AIR SCW 7569

(See Secretary, State of Karnataka and others v. Umadevi (3) and others, ((2006) 4 SCC
1) National Fertilizers Ltd. and Ors. v. Somvir Singh, ((2006) 5 SCC 493) and Post
Master General, Kolkata and Ors. v. Tutu Das (Dutta), ((2007) 5 SCC 317)).
20. Various institutions have sprung up in different parts of India representing that their
degrees are recognized. However, even no such representation appears to have been made
to the appellant by the said institution. The directory of institutions for higher education
merely gives details of the institutions. No statement was made therein that it was a
recognised university.
21. Maithil Vishwa Vidyapeeth Sankat Mochan Dham was a name given to an institution.
It was not a University. It is said to have been founded in the year 1962.
Admittedly, it is a privately managed institution. Although it offered a large number of
courses like Madhyama, Visarad, Shastri, Acharya, Vidyabhaskar,
Vidyaratna,Vidyavaridhi, Vidyavachaspati, Mahamahopadhyaya, the number of teachers
therein were nine only. What sort of education was imparted therein is not known. How
an institution could be run with a teacher strength of nine can very well be imagined.
It is not in dispute that the said institution was not recognized by any University. A degree
is recognized only if it is granted by a University 'constituted in terms of the University
Grants Commission Act. 1956 or under any State or Parliamentary Act. No University
can be established by a private management without any statutory backing,
22. The management of the school, when it came to learn that the appellant did not
possess a degree of B.Ed. from a recognised University, should have terminated his
services forthwith. It did not do so for reasons best known to it. It has not been shown to
us that the management of the school had any authority to allow the appellant to obtain
the requisite degree from any other University during the tenure of his services. Even the
Commission in its counter affidavit, although otherwise supports the case of the
appellant, did not say so.
Our attention has been drawn to a decision of the Punjab and Haryana High Court in Ram
Bhagat Sharma and others v. State of Haryana and others, (1997 (4) RSJ 134) wherein it
was directed :
"With a view to protect the interest of the students community, we direct the Government
of Haryana to take steps to prevent future recruitment of persons possessing
qualifications awarded by Hindi Sahitya Sammelan, Allahabad, and/or Hindi Sahitya
Sammelan, Prayag, Allahabad, and at the same time take appropriate measures to
dispense with the services of the unqualified teachers. For this purpose, the Government
of Haryana is directed to issue written instructions to all concerned that in future no
appointment be given to the persons possessing qualifications by the institutions referred
to herein above. We also direct the Government of Haryana to take steps for terminating
the services of all such teachers who have secured employment on the basis of
degrees/diplomas/certificates issued by Hindi Sahitya Sammelan, Allahabad and/or Hindi
Sahitya Sammelan, Prayag, Allahabad. However, those who have completed three years'
service should be given an opportunity to acquire the requisite qualification within a
stipulated time. In case they fall to acquire such qualification, then appropriate order be
passed to dispense with the services of such persons."
23. We, with respect, do not subscribe to the said view. In any event, it is not a case
where, this Court is to protect the interest
@page-SC1822
of the students. The question herein is as to whether the services of the appellant can be
said to have been illegally terminated or not.
24. A departmental proceeding against the appellant might have been initiated after the
change of management. We will also assume that the said proceeding was initiated after
the contempt proceeding was initiated. Appellant, however, has filed a writ application
for issuance of or in the nature of a writ of mandamus. He, therefore, must establish
existence of a legal right in himself and a corresponding legal duty in the State. If he did
not possess the requisite qualification to hold a post, he could not have any legal right to
continue. It was, therefore, immaterial as to why and when the said proceeding had been
initiated against him.

Reliance placed by Mr. P. S. Patwalia on Shainda Hasan v. State of Uttar Pradesh and
others, ((1990) 3 SCC 48) is not apposite. Therein a concession was made on behalf of
the State that the University had agreed that asking the appellant therein to leave the job
after 16 years will be doing injustice to her. Such a view might have been taken by this
Court in exercise of its extra-ordinary jurisdiction under Article 142 of the Constitution of
India. The question, however, that arose therein was as to whether the Selection
Committee could grant relaxation of the educational qualification vis-a-vis the experience
required to be obtained. It was held that such a power did not exist in the Selection
Committee. AIR 1990 SC 1381

It was, therefore, a case whether relaxation in regard to experience was sought for and
granted. It was not a case where the appellant therein lacked basic educational
qualification. Herein, we are concerned with a case where the appellant lacked basic
educational qualification.
25. Reliance has also been placed by Mr. Patwalia on Dr. M. S. Mudhol and another v. S.
D. Halegkar and others, ((1993) 3 SCC 591). Therein a writ of quo warranto was sought
for in a case involving the question as to whether a degree granted in favour of the
appellant therein was equivalent to another degree or not. It was found that as public
interest would not suffer, a writ of quo warranto may not be issued. The Court, therefore,
did not exercise its discretionary jurisdiction.
26

. Yet again reliance has been placed on Santosh Yadav (Smt.) v. State of Haryana and
others, ((1996) 9 SCC 320). Appellant therein was having a diploma which was not
approved by the State of Haryana and despite the same, teachers were appointed to meet
the State's educational needs. The validity of the said degree was not in question. Not
only appointments were made but also appointment to the appellant was offered in 1980.
His services were confirmed in 1984 and sought to be terminated in the year 1990. This
Court noticed that a relaxation was granted by the State itself which was available to her
and others similarly situated. She, having obtained regularisation in her service, it was
wrong and arbitrary on the part of educational department and the school to deprive her
of the job. The same is not the case here. 1996 AIR SCW 2660

27

. A similar question, on the other hand, came up for consideration before this Court in
Ravinder Sharma (Smt.) and another v. State of Punjab and others, ((1995) 1 SCC 138)
wherein three Judges' Bench held : 1994 AIR SCW 4438

"12. The appellant was directly appointed. In such a case, the qualification must be
either :
(i) A Graduate/Intermediate second class or,
(ii) Matric first class.
Admittedly, the appellant did not possess this qualification. That being so, the
appointment is bad. The commission recommended to the Government for relaxation of
the qualification under Regulation 7 of the Regulations. The Government rejected that
recommendation. Where, therefore, the appointment was clearly against Regulation 7, it
was liable to be set aside. That being so, no question of estoppel would ever arise. We
respectfully agree with the view taken by the High Court."
28
. Almost to the same effect is the decision of this Court in Mohd. Sartaj and Anr. v. State
of U. P. and others, (JT 2006 (1) SC 331) holding : 2006 AIR SCW 399, Para 21

"It is settled law that the qualification should have been seen which the candidate
possessed on the date of recruitment and not at a later stage unless rules to that regard
permit it. The minimum qualification prescribed under Rule 8 should be fulfilled
@page-SC1823
on the date of recruitment. Equivalence of degree of Moallim-e-Urdu, Jamia Urdu,
Aligarh with that of B.T.C. in the year 1994 would not entail the benefit to the appellants
on the date they were appointed. The appellants could not have been appointed to the post
of Asstt. Teachers without having training required under Rule 8. That being the case, the
appointments of the appellants were dehors the rules and could not be treated to be
continued. For the aforesaid reasons, we do not find any substance in the appeals and are,
accordingly, dismissed."
29. Recently again in Ashok Kumar Sonkar v. Union of India and others, ((2007) 4 SCC
54), it was held :
"16. Indisputably, the appellant herein did not hold the requisite qualification as on the
said cut-off date. He was, therefore, not eligible therefor."
30-31

. Some arguments have also been advanced before us in regard to applicability of


Removal of Difficulties Orders issued under U. P. Secondary Education Services
Selection Board Act, 1982. The services of the appellant had been terminated in the year
1997 and the cut-off date having been fixed on 1998, the said act, in our opinion, is not
applicable. The benefits rendered thereunder would not be not applicable in view of the
Full Bench decision of the High Court in Radha Raizada v. Committee of Management,
Vidyawati Darbari Girls' College, (1994 All LJ 1077) which has been approved by this
Court in Prabhat Kumar Sharma and others v. State of U.P. and others, ((1996) 10 SCC
62). 1996 AIR SCW 3288

32. For the reasons aforementioned, there is no merit in this appeal. The appeal is
dismissed. However, in the facts and circumstances of the case, there shall be no order as
to costs.
Appeal dismissed.
AIR 2008 SUPREME COURT 1823 "Daya Nand v. State of Haryana"
(From : Punjab and Haryana)
Coram : 2 Dr. A. PASAYAT AND P. SATHASIVAM, JJ.
Criminal Appeal No. 595 of 2008 (arising out of SLP (Cri.) No. 4325 of 2007), D/- 3 -4
-2008.
Daya Nand v. State of Haryana.
(A) Penal Code (45 of 1860), S.299, S.300 - MURDER - CULPABLE HOMICIDE -
Murder - Or culpable homicide not murder - Determination - Court to keep in focus key
words used in S.299, S.300 - Distinction between two provisions explained. (Para
11)
(B) Penal Code (45 of 1860), S.300, S.304, Part II - MURDER - CULPABLE
HOMICIDE - Murder - Solitary injury - Gun shot fired by accused hit deceased on waist
- Offence not murder - Accused liable to be convicted only u/S.304, Part II. (Para
23)
Cases Referred : Chronological Paras
2006 AIR SCW 2987 : AIR 2006 SC 2257 : 2006 Cri LJ 2926 (Ref.) 22
2005 AIR SCW 76 : AIR 2005 SC 1142 : 2005 Cri LJ 684 (Ref.) 22
2003 AIR SCW 4410 : AIR 2003 SC 3843 : 2003 Cri LJ 4458 (Ref.) 22
2002 AIR SCW 3463 : AIR 2002 SC 2961 (Ref.) 22
AIR 1977 SC 45 : 1977 Cri LJ 1 (Ref.) 22
AIR 1966 SC 1874 : 1966 Cri LJ 1509 (Rel. on) 14
AIR 1958 SC 465 : 1958 Cri LJ 818 (Rel. on) 15, 18, 19
Judgement
1. Dr. ARIJIT PASAYAT, J. :-Leave granted.
2. Challenge in this appeal is to the judgment rendered by a Division Bench of the Punjab
and Haryana High Court upholding the conviction of the appellant for offence punishable
under Section 302 of the Indian Penal Code, 1860 (in short 'IPC') in terms of the
judgment dated 9/10-10-1997 passed by the Additional Sessions Judge, Hissar.
3. A synoptical re'sume' of the prosecution case is as under :
The prosecution machinery was set into motion at the instance of Shankar-PW 5 who had
four brothers. Chhajju Ram (hereinafter referred to as the 'Deceased') was younger to PW
5- Shankar and they had a joint khewat in the revenue estate of village Sirdhan. On 9-9-
1993 the said Shankar and his brother Nain Sukh and deceased Chhajju Ram went to
their fields known as Theriwala for irrigating the land. Amar Singh (who faced trial and
was acquitted) and Daya Nand (appellant herein) were already irrigating their fields.
Shankar and others were to take turn of irrigation at 8.00 a.m. from the accused. At 8.00
a.m. deceased Chhajju Ram diverted the irrigation water to his field.
@page-SC1824
Accused Daya Nand objected that his turn of water had not yet started. Chhajju Ram
retorted that their turn started from 8.00 a.m. onwards. An altercation took place between
Shankar and the deceased on one side and the accused on the other. Accused threatened
that they will see them and both of them left towards the village. Shankar and others also
went to supervise the flow of irrigation water through the water courses. In the meantime,
both the accused came from the side of village Sirdhan. Accused Daya Nand was armed
with a gun. Accused Amar Singh exhorted his son accused-Daya Nand to fire a shot.
Accused Daya Nand then fired a shot from his gun towards Chhajju Ram who took a turn
but was hit on the right side of the waist and fell down. Blood started oozing out from the
fire shot injury. Nain Sukh (PW-6) also reached there at the Naka and witnessed the
occurrence apart from Shankar. Thereafter, accused fled away towards the village along
with the gun. Chhajju Ram was admitted to Civil Hospital, Fatehabad by his brother
Shanker and Nain Sukh, where he was declared dead by the doctor. Ruqa Ex. PG was
sent by Dr. Jagdish Chaudhry to the Station House Officer, Police Station Fatehabad. A
wireless message Ex. PK was sent by the said Police Station to Police Station Bhattu.
Ram Kumar, Assistant Sub-Inspector along with some constables reached Civil Hospital,
Fatehabad and recorded the statement of Shanker in Civil Hospital, Fatehabad. That
statement Ex. PG/1 was sent to the Police Station and on its basis, FIR was recorded by
Satbir Singh MHC, copy of which is Ex. PG/3. Inquest proceedings were conducted and
report Ex. PF/1 was prepared by Ram Kumar Assistant Sub-Inspector in the presence of
Devi Lal and Shanker Lal PWs. He moved an application Ex. PF and postmortem
examination was conducted vide report Ex. PF/2 by Dr. S.P. Mimani. Multiple wounds of
small sizes were found and eleven pellets were recovered from the abdomen of the
deceased. The pellets were sealed in a vial. The clothes of the deceased were removed
and sealed into a parcel. The cause of death was due to shock and haemorrhage as a result
of firearm injuries which were ante-mortem in nature and sufficient to cause death in the
ordinary course of nature vide post-mortem report Ex. PF/ 2. Ram Kumar, Assistant Sub-
Inspector along with Ram Kumar Constable then went to village Sirdhan. He inspected
the spot in the presence of Nain Sukh, Ram Sarup, Sarpanch and Brij Lal, Chowkidar.
Bloodstained earth was lifted, made into a sealed parcel and taken into possession vide
recovery memo Ex. PH. One empty cartridge of .12 bore was found lying which was also
lifted, made into a sealed parcel and taken into possession vide memo Ex, PJ. Rough site
plan, Ex. PL, was prepared and statements of other witnesses were recorded. Accused
Daya Nand produced a double barrel gun, Ex. P-8, licence, Ex. P-9, and two live
cartridges. Sketch map, Ex. PP of the gun was prepared. The gun was placed in a sealed
parcel. The licence and the two live cartridges were also sealed in parcel and taken into
possession vide memo Ex. PP/1. The case property was sent for Chemical Examination
and for report of the Ballistic Expert of Forensic Science Laboratory, Haryana,
Madhuban. Vide report, Ex. PO, the double barrel gun, Ex. P8, was found in working
order, the empty cartridge hereinafter referred to as the crime cartridge, which was lifted
from the spot, Ex. P6, was opined to have been fired from the said gun. The pellets
recovered from the dead body were opined to be pellets as are usually loaded in shot gun
cartridges, including .12 bore cartridge. As per reports, Ex. PO/1 and Ex. PO/ 2, human
blood was found in blood-stained earth and on shirt, Ex. P-1, Banian, Ex. P-2 and
underwear Ex. P-3 of the accused. After completion of investigation, accused was sent up
for trial.
Charge was framed against accused Daya Nand under Section 302, IPC and 27 of the
Arms Act, 1959. Charge was framed against accused Amar Singh under Section 302 read
with Section 34, IPC.
4. In order to establish the accusations the prosecution examined 10 witnesses and the
report of the Forensic Science Laboratory, Haryana, Madhuban was exhibited.
5. Accused persons during their examination under Section 313 of the Code of Criminal
Procedure, 1973 (in short 'Cr.P.C.') pleaded innocence and false implication. The Trial
Court relied on the evidence of eyewitnesses Shankar (PWS) and Nain Sukh (PW6). It
found the prosecution evidence cogent and credible and recorded conviction of the
appellant. But so far as accused Amar Singh is concerned, it was held that the evidence
was not sufficient to fasten guilt on him.
@page-SC1825
6. In appeal, it was submitted that the evidence of Shankar (PW5) and Nain Sukh (PW6)
should not have been relied upon. It was further submitted that a single shot that too on
the hip cannot attract application of Section 302, IPC. Prosecution with reference to the
evidence of Shankar (PW5) and Nain Sukh (PW6) submitted that the evidence was clear
and cogent and, therefore, the accused persons were to be convicted, The High Court, as
noted above, dismissed the appeal.
7. Basic challenge in this appeal is to the conviction under Section 302, IPC.
8. It was contended, as was done before the Trial Court and the High Court, that Section
302, IPC has no application.
9. Learned counsel for the State, on the other hand supported the impugned judgment.
10. The crucial question is as to which was the appropriate provision to be applied. In the
scheme of the IPC culpable homicide is genus and 'murder' its specie. All 'murder' is
'culpable homicide' but not vice-versa. Speaking generally, 'culpable homicide' sans
'special characteristics of murder is culpable homicide not amounting to murder'. For the
purpose of fixing punishment, proportionate to the gravity of the generic offence, the IPC
practically recognizes three degrees of culpable homicide. The first is, what may be
called, 'culpable homicide of the first degree'. This is the gravest form of culpable
homicide, which is defined in Section 300 as 'murder'. The second may be termed as
'culpable homicide of the second degree'. This is punishable under the first part of Section
304. Then, there is 'culpable homicide of the third degree'. This is the lowest type of
culpable homicide and the punishment provided for it is also the lowest among the
punishments provided for the three grades. Culpable homicide of this degree is
punishable under the second part of Section 304.
11. The academic distinction between 'murder' and 'culpable homicide not amounting to
murder' has always vexed the Courts. The confusion is caused, if Courts losing sight of
the true scope and meaning of the terms used by the legislature in these sections, allow
themselves to be drawn into minute abstractions. The safest way of approach to the
interpretation and application of these provisions seems to be to keep in focus the
keywords used in the various clauses of Sections 299 and 300. The following
comparative table will be helpful in appreciating the points of distinction between the two
offences.

Section 299 Section 300


A person commits culpable homicide if the act by which the death is caused is done ?
Subject to certain exceptions culpable homicide is murder if the act by which the
death is caused is done ?
INTENTION
(a) with the intention of causing death; or (1) with the intention of causing death; or
(b) with the intention of causing such bodily injury as is likely to cause death; or (2)
with the intention of causing such bodily injury as the offender knows to be likely to
cause the death of the person to whom the harm is caused; or
(3) With the intention of causing bodily injury to any person and the bodily injury
intended to be Inflicted is sufficient in the ordinary course of nature to cause death; or
KNOWLEDGE
****
(c) with the knowledge that the act is likely to cause death, (4) with the knowledge that
the act is so imminently dangerous that it must in all probability cause death or such
bodily injury as is likely to cause death, and without any excuse for incurring the risk of
causing death or such injury as is mentioned above.

@page-SC1826
12. Clause (b) of Section 299 corresponds with clauses (2) and (3) of Section 300. The
distinguishing feature of the mens rea requisite under clause (2) is the knowledge
possessed by the offender regarding the particular victim being in such a peculiar
condition or state of health that the internal harm caused to him is likely to be fatal,
notwithstanding the fact that such harm would not in the ordinary way of nature be
sufficient to cause death of a person in normal health or condition. It is noteworthy that
the 'intention to cause death' is not an essential requirement of clause (2). Only the
intention of causing the bodily injury coupled with the offender's knowledge of the
likelihood of such Injury causing the death of the particular victim, is sufficient to bring
the killing within the ambit of this clause. This aspect of clause (2) is borne out by
illustration (b) appended to Section 300.
13. Clause (b) of Section 299 does not postulate any such knowledge on the part of the
offender. Instances of cases falling under clause (2) of Section 300 can be where the
assailant causes death by a fist blow intentionally given knowing that the victim is
suffering from an enlarged liver, or enlarged spleen or diseased heart and such blow is
likely to cause death of that particular person as a result of the rupture of the liver or
spleen or the failure of the heart, as the case may be. If the assailant had no such
knowledge about the disease or special frailty of the victim, nor an intention to cause
death or bodily injury sufficient in the ordinary course of nature to cause death, the
offence will not be murder, even if the injury which caused the death, was intentionally
given. In clause (3) of Section 300, instead of the words 'likely to cause death' occurring
in the corresponding clause (b) of Section 299, the words "sufficient in the ordinary
course of nature to cause death" have been used. Obviously, the distinction lies between a
bodily injury likely to cause death and a bodily injury sufficient in the ordinary course of
nature to cause death. The distinction is fine but real and if overlooked, may result in
miscarriage of justice. The difference between clause (b) of Section 299 and clause (3) of
Section 300 is one of the degree of probability of death resulting from the intended bodily
injury. To put it more broadly, it is the degree of probability of death which determines
whether a culpable homicide is of the gravest, medium or the lowest degree. The word
'likely' in clause (b) of Section 299 conveys the sense of probable as distinguished from a
mere possibility. The words "bodily injury.......sufficient in the ordinary course of nature
to cause death" mean that death will be the "most probable" result of the injury, having
regard to the ordinary course of nature.
14. For cases to fall within clause (3), it is not necessary that the offender intended to
cause death, so long as the death ensues from the intentional bodily injury or injuries
sufficient to cause death in the ordinary course of nature. Rajwant and Anr. v. State of
Kerala, (AIR 1966 SC 1874) is an apt illustration of this point.
15. In Virsa Singh v. State of Punjab, (AIR 1958 SC 465), Vivian Bose, J. speaking for
the Court, explained the meaning and scope of clause (3). It was observed that the
prosecution must prove the following facts before it can bring a case under Section 300,
"Thirdly". First, it must establish quite objectively, that a bodily injury is present;
secondly the nature of the injury must be proved. These are purely objective
investigations. Thirdly, it must be proved that there was an intention to inflict that
particular injury, that is to say, that it was not accidental or unintentional or that some
other kind of injury was intended. Once these three elements are proved to be present, the
enquiry proceeds further, and fourthly it must be proved that the Injury of the type just
described made up of the three elements set out above was sufficient to cause death in the
ordinary course of nature. This part of the enquiry is purely objective and inferential and
has nothing to do with the intention of the offender.
16. The ingredients of clause "Thirdly" of Section 300, IPC were brought out by the
illustrious Judge in his terse language as follows :
"To put it shortly, the prosecution must prove the following facts before it can bring a
case under Section 300, "Thirdly".
First, it must establish, quite objectively, that a bodily injury is present.
Secondly, the nature of the injury must be proved. These are purely objective
investigations.
Thirdly, it must be proved that there was an intention to inflict that particular bodily
injury, that is to say that it was not accidental or unintentional, or that some other
@page-SC1827
kind of injury was intended.
Once these three elements are proved to be present, the enquiry proceeds further and,
Fourthly, it must be proved that the injury of the type just described made up of the three
elements set out above is sufficient to cause death in the ordinary course of nature. This
part of the enquiry is purely objective and inferential and has nothing to do with the
intention of the offender."
17. The learned Judge explained the third ingredient in the following words (at page
468) :
"The question is not whether the prisoner intended to inflict a serious injury or a trivial
one but whether he intended to inflict the injury that is proved to be present. If he can
show that he did not, or if the totality of the circumstances justify such an inference, then
of course, the intent that the section requires is not proved. But if there is nothing beyond
the injury and the fact that the appellant inflicted it, the only possible inference is that he
intended to inflict it. Whether he knew of its seriousness or intended serious
consequences, is neither here nor there. The question, so far as the intention is concerned,
is not whether he intended to kill, or to inflict an injury of a particular degree of
seriousness but whether he intended to inflict the injury in question and once the
existence of the injury is proved the intention to cause it will be presumed unless the
evidence or the circumstances warrant an opposite conclusion."
18

. These observations of Vivian Bose, J. have become locus classicus. The test laid down
by Virsa Singh's case (supra) for the applicability of clause "Thirdly" is now ingrained in
our legal system and has become part of the rule of law. Under clause Thirdly of Section
300, IPC, culpable homicide is murder, if both the following conditions are satisfied: i.e.
(a) that the act which causes death is done with the intention of causing death or is done
with the intention of causing a bodily injury; and (b) that the injury intended to be
inflicted is sufficient in the ordinary course of nature to cause death. It must be proved
that there was an intention to inflict that particular bodily injury which, in the ordinary
course of nature, was sufficient to cause death, viz., that the injury found to be present
was the injury that was intended to be inflicted. AIR 1958 SC 465

19
. Thus, according to the rule laid down in Virsa Singh's case, even if the intention of
accused was limited to the infliction of a bodily injury sufficient to cause death in the
ordinary course of nature, and did not extend to the intention of causing death, the
offence would not be murder. Illustration (c) appended to Section 300 clearly brings out
this point. AIR 1958 SC 465

20. Clause (c) of Section 299 and clause (4) of Section 300 both require knowledge of the
probability of the act causing death. It is not necessary for the purpose of this case to
dilate much on the distinction between these corresponding clauses. It will be sufficient
to say that clause (4) of Section 300 would be applicable where the knowledge of the
offender as to the probability of death of a person or persons in general as distinguished
from a particular person or persons being caused from his imminently dangerous act,
approximates to a practical certainty. Such knowledge on the part of the offender must be
of the highest degree of probability, the act having been committed by the offender
without any excuse for incurring the risk of causing death or such injury as aforesaid.
21. The above are only broad guidelines and not cast iron imperatives. In most cases,
their observance will facilitate the task of the Court. But sometimes the facts are so
intertwined and the second and the third stages so telescoped into each other that it may
not be convenient to give a separate treatment to the matters involved in the second and
third stages.
22

. The position was illuminatingly highlighted by this Court in State of Andhra Pradesh v.
Rayavarapu Punnayya and Anr. (1976 (4) SCC 382); Abdul Waheed Khan @ Waheed and
Ors. v. State of Andhra Pradesh (2002 (7) SCC 175); Augustine Saldanha v. State of
Karnataka (2003 (10) SCC 472); Thangiya v. State of T.N. (2005 (9) SCC 650) and in
Rajinder v. State of Haryana (2006 (5) SCC 425). AIR 1977 SC 45
2002 AIR SCW 3463
2003 AIR SCW 4410
2005 AIR SCW 76
2006 AIR SCW 2987

23. Considering the evidence on record in the background of the principles of law, the
inevitable conclusion is that the appropriate conviction would be under Section
@page-SC1828
304 Part II, IPC. The conviction is accordingly altered.
24. Undisputedly, the accused has suffered custody of nearly 8½ years. The sentence is
restricted, therefore, to the period already undergone. The appeal is allowed to that extent.
The accused person be set at liberty forthwith unless required in custody in any other
case.
Order accordingly.
AIR 2008 SUPREME COURT 1828 "Godfrey Phillips India Ltd., M/s. v. Ajay Kumar"
Coram : 2 Dr. A. PASAYAT AND P. SATHASIVAM JJ.
Civil Appeal Nos.2339 with 2340 of 2008* (arising out of SLP (C) Nos.532 with 5051 of
2007), D/- 1 -4 -2008.
M/s. Godfrey Phillips India Ltd. v. Ajay Kumar.
(A) Consumer Protection Act (68 of 1986), S.14 - CONSUMER PROTECTION -
UNFAIR TRADE PRACTICE - COMPLAINT - Consumer fora - Power to issue
directions - Complaint of unfair trade practice against cigarette advertisement -
Advertisement in question carrying photo of action Hero, slogan and statutory warning -
No plea in complaint that use of photo of action Hero and slogan suggested that smokers
of appellant's cigarette can act as Super Hero - Detraction of statutory warning also not
alleged - Direction issued to discontinue publication of advertisement - Uncalled for.
(Para 15)
(B) Consumer Protection Act (68 of 1986), S.14 - CONSUMER PROTECTION -
COMPLAINT - Consumer fora - Direction to issue corrective advertisement - Complaint
against cigarette advertisement - Direction issued to publish corrective advertisement -
Falls in teeth of prohibition under 2003 Act - Moreover, Commission at relevant time had
no such powers - Direction liable to be set aside.
Cigarettes and other Tobacco Products (Prohibition of Advertisement and Regulation of
Trade and Commerce, Production, supply and Distribution) Act (34 of 2003), S.5. (Para
15)
(C) Consumer Protection Act (68 of 1986), S.14 - CONSUMER PROTECTION -
Consumer fora - Power to direct payment of compensation - Precondition is sufferance of
loss or injury by complainant - Complaint against cigarette advertisement - Complainant,
smoker of cigarette since long - Advertisement cannot be said to have affected
complainant and/or caused any loss to him - No evidence of negligence by cigarette
company - Compensation awarded to complainant - Unsustainable. (Paras 16, 17)
Cases Referred : Chronological Paras
AIR 1962 SC 630 (Rel. on) 15
AIR 1937 PC 146 (Rel. on) 15
Ashok H. Desai, Sr. Advocate, Subrat Deb, Akhil P. Chhabra and Rajan Narain, for
Appellant; Respondent in person.
* From Judgment and Order of the National Consumer Disputes Redressal Commission,
New Delhi in M. P. No. 289 of 2006 in Revn. Petn. No.40 of 2002, D/- 14-7-2006.
Judgement
1. Dr. ARIJIT PASAYAT, J. :-Leave granted.
2. Challenge in these appeals is to the order of National Consumer Disputes Redressal
Commission, New Delhi (in short the 'National Commission'). One order was passed in
exercise of revisional jurisdiction against the concurrent finding of the District Consumer
Disputes Redressal Forum, Yamuna Nagar (in short 'District Forum') and State Consumer
Disputes Redressal Commission (in short 'State Commission') dated 11-5-2001 and 12-7-
2001 respectively. Commission has also issued directions.
3. The review petition filed was also dismissed, which also forms subject-matter of
challenge.
4. Background facts in a nutshell are as follows :
The respondent filed a complaint in respect of an advertisement given by the appellant,
alleging unfair trade practices. The advertisement was issued in newspapers and
magazines in 1999 for the cigarettes manufactured and sold by it under the brand name of
"Red and White" in respect of which the directions have been issued.
The impugned advertisement apart from showing the packet of cigarettes with the
aforesaid brand name stated "Red and White smokers are one of a kind". The
advertisement also shows the smiling face of actor Akshay Kumar holding a cigarette. It
also contains the statutory warning "Cigarette smoking is injurious to health" as well as
price of the pack. The complaint was dismissed by the District Forum as the complainant
had also filed a suit in relation to
@page-SC1829
the impugned advertisement in the Civil Court. It was therefore held by the District
Forum that parallel proceedings in the District Forum by way of Public Interest Litigation
could not be entertained. In appeal, the State Commission affirmed the order of the
District Forum. Thereafter, complainant withdrew the suit, but filed Revision Petition
before the National Commission. The National Commission held that the slogan in the
advertisement that "Red and White smokers are one of a kind" showing the image of
Akshay Kumar indicated that ".......smokers of Red and White cigarettes could be super
actor performing all the film stunts without duplicates". According to the appellant, no
evidence was led in the case by the complainant either with regard to the ability of film
star Akshay Kumar to carry out stunts without duplicate or with regard to the alleged
impression created by the impugned advertisement upon the complainant. Interestingly,
the complainant admitted that he continues to smoke cigarette for more than two decades.
The National Commission held as follows :
"The case of the complainant is that smoking of cigarette by Akshay Kumar with the
slogans used in advertisement would detract the people from the statutory warning.
Seeing comparative size of the letters etc. the statutory warning in our view loses its
prominence which is usurped by more prominent and attractive Akshay Kumar et al and
is sufficient to detract the attention of the viewers from the statutory warning to the image
of Akshay Kumar with the slogan indicating smokers of Red and White cigarette could be
super actor performing all the film stunts without duplicates."
This according to the National Commission was sufficient to hold that the impugned
advertisement amounted the unfair trade practices. On the basis of the aforesaid finding,
the National Commission gave the following directions :
"(i) to discontinue forthwith the unfair trade practice of detracting from the statutorily
specified warning and not publish any advertisements like Ext. 'R-1' in any language
giving any impression that a person who smokes Red and White Cigarette could perform
such acts as could be performed by Akshay Kumar in films and thereby detracting from
the specified warning; and
(ii) to issue corrective advertisements of equal size in all the newspapers in which
advertisements in Hindi and English like Ext. R-1 were published to neutralize the effect
of the said impugned misleading advertisements.
(iii) Shri Ajay Kumar, the petitioner, shall be paid a sum of Rs. 20,000/- by way of
compensation and Rs. 5,000/- as cost."
5. According to the appellant the direction (ii) as quoted above was passed on the basis of
provisions of the Consumer Protection Act, 1986 (in short the 'Act') which was not
applicable and was not in force at the time of publication of the impugned advertisement
in the year 1999. Such a direction could not have been issued in disregard of the
applicable provision of law. Therefore, a Review Petition was filed. In the Review
Petition the appellant had contended that direction (iii) to award compensation of Rs.
20,000/- to the complainant was passed without any claim for compensation made in the
complaint. With regard to direction (i) to discontinue unfair trade practice and not to
publish any advertisement like the impugned advertisement, the appellant took the stand
that when direction was given by order dated 20-2-2006 an enactment being the
Cigarettes and other Tobacco Products (Prohibition of Advertisement and Regulation of
Trade and Commerce, Production, Supply and Distribution) Act, 2003 (in short
'Advertisement Act') had already come into force w.e.f. 18-5-2003 by which all
advertisements in relation to cigarettes had already been prohibited. As such there was no
need for issuing such direction.
6. The Review Petition was dismissed without considering the specific contentions by
merely stating that there was no ground for review.
7. Learned counsel for the appellant has submitted that issuing a corrective advertisement
was relatable to Section 14 of the Act (as it stood in 1999) which reads as follows :
"14. Finding of the District Forum - (1) If, after the proceeding conducted under section
13, the District Forum is satisfied that the goods complained against suffer from any of
the defects specified in the complaint or that any of the allegations contained in the
complaint about the services are proved, it shall issue an order to the opposite party
directing him to do one or more of the following things, namely :-
(a) to remove the defect pointed out by
@page-SC1830
the appropriate laboratory from the goods in question;
(b) to replace the goods with new goods of similar description which shall be free from
any defect,
(c) to return to the complainant the price, or, as the case may be, the charges paid by the
complainant;
(d) to pay such amount as may be awarded by it as compensation to the consumer for any
loss or injury suffered by the consumer due to the negligence of the opposite party;
(e) to remove the defects or deficiencies in the services in question;
(f) to discontinue the unfair trade practice or the restrictive trade practice or not to repeat
them;
(g) not to offer the hazardous goods for sale;
(h) to withdraw the hazardous goods from being offered for sale;
(i) to provide for adequate costs to parties."
8. The aforesaid Section 14 of the Act has been amended w.e.f. 15-3-2003 and following
clause (hc) was added :
"(hc) to issue corrective advertisement to neutralize the effect of misleading
advertisement at the cost of the Opposite Party responsible for issuing such misleading
advertisement."
9. Therefore, the direction No. (ii) as given could not have been given when no such
clause existed at the time of issuance of the advertisement, and as such it could not have
been invoked. The complaint was filed on 10-1-2000. The prayer was as follows :

"It is, therefore, respectfully prayed that the complaint of the Complainant may kindly be
accepted in the interest of the justice, equity and fair play. And the Opposite Party may
kindly be directed to discontinue the said unfair trade practice and not to repeat the same
and help mitigating its effects in teenagers."
10. Therefore, it is submitted that the direction to issue corrective advertisement on the
basis of provision of law which was not introduced at the relevant time could not have
been given and, therefore, review should have been allowed.
11. It is pointed out that Section 5(2)(a) of the Cigarettes Advertisement Act reads as
follows :
"5(2) - No person, for any direct or indirect pecuniary benefit, shall (a) display, cause to
display, or permit or authorize to display any advertisement of cigarettes or any other
tobacco product."
12. Section 5(1) also has relevance, and reads as follows :
"5 - Prohibition of advertisement of cigarettes and other tobacco products - (1) No person
engaged in, or purported to be engaged in the production, supply or distribution of
cigarettes or any other tobacco products shall advertise and no person having control over
a medium shall cause to be advertised cigarettes or any other tobacco products through
that medium and no person shall take part in any advertisement which directly or
indirectly suggests or promotes the use of consumption of cigarettes or any other tobacco
products."
13. It is, therefore, submitted that the order of the National Commission is unsustainable.
14. There is no appearance on behalf of the respondent in spite of service of notice.
15. As rightly contended by learned counsel for the appellant direction (i) was given
without any material or evidence whatsoever and there was not even a suggestion/
pleading that the advertisement was of Akshay Kumar or that he could perform certain
stunts without duplicates. There was not even an allegation that the statutory warning was
detracted from. When such serious allegation which was required to be established was
not even specifically pleaded and when nothing specific was indicated in the complaint,
the Commission should not have given the direction on pure surmises. In this context,
decision of the Privy Council in Bharat Dharma Syndicate v. Harish Chandra (AIR 1937
PC 146) and of this Court in. The Union of India v. Pandurang Kashinath More (AIR
1962 SC 630) are relevant. So far as direction No. (ii) is concerned it is to be noted that
Section 5(1) and Section 5(2) of the Advertisement Act clearly prohibited issuance of any
advertisement in relation to cigarettes. Therefore, the corrective advertisement as directed
by the National Commission could not have been given. Further, the power for giving
such direction was introduced under Section 14 of the Act w.e.f. 15-3-2003. In view of
the aforesaid, direction No. (ii) cannot be sustained.
@page-SC1831
16. So far as direction No. (iii) is concerned, it is to be noted that there was no prayer for
any compensation. There was no allegation that the complainant had suffered any loss.
Compensation can be granted only in terms of Section 14(1)(d) of the Act. Clause (d)
contemplates award of compensation to the consumer for any loss or injury suffered due
to negligence of the opposite party. In the present case there was no allegation or material
placed on record to show negligence.
17. Interestingly, there was no allegation or finding of loss or injury caused to the
respondent on account of the advertisement issued in 1999. The complainant himself had
stated that he was smoking cigarettes for the last two decades. Therefore, the impugned
advertisement cannot be said to have affected the complainant and/or caused any loss to
him to warrant grant of compensation.
18. Another aspect which needs to be noted is that the complainant had stated in his
complaint that he had filed a complaint in public interest and had accepted that the matter
was pending before the Civil Court. The District Forum and the State Commission had,
therefore, dismissed the complaint of the appellant.
19. It is to be noted that the National Commission itself noted that the respondent was not
representing a "Voluntary Consumer Association" registered under the Companies Act,
1956 or under any other law for the time being in force and was not entitled to file a
complaint about unfair trade practice to represent other consumers. Having said so it is
not understandable as to how the National Commission even proceeded to deal with the
complaint. It also noted that the complainant had not moved any application or obtained
any permission under Section 13(6) of the Act and/or no such permission was granted. In
the circumstances, it was not permissible for the complainant to represent others. The
complainant's case right through was that he was filing a petition in public interest. After
having recorded that the complaint in that manner was not entertainable, the National
Commission Could not have passed the impugned order.
20. Looked at from any angle, the orders of the National Commission are indefensible
and are set aside. The appeals are allowed with no order as to costs.
Appeal allowed.
AIR 2008 SUPREME COURT 1831 "UCO Bank v. Rajinder Lal Capoor"
Coram : 2 S. B. SINHA AND MARKANDEY KATJU, JJ.
Review Petition (C) No. 748 of 2007 in C. A. No. 2739 of 2007, D/- 31 -3 -2008.
UCO Bank and Anr. v. Rajinder Lal Capoor.
(A) Banking Companies (Acquisition and Transfer of Undertakings) Act (5 of 1970),
S.19 - UCO Bank Officer Employees' (Discipline and Appeal) Regulations (1976),
Regn.6 - UCO Bank (Officers') Service Regulations (1979), Regn.20 - BANKING -
SERVICE MATTERS - DISCIPLINARY PROCEEDINGS - SUPERANNUATION -
Disciplinary proceedings - Initiation and continuation after superannuation - Cannot be
justified by taking recourse to deeming fiction as to pendency of disciplinary proceedings
created by Regn.20 of 1979 Regulations - 1979 Regulations and 1976 Regulations
operate in different fields.
Initiation of disciplinary proceedings after a bank official has superannuated and his
consequent dismissal from service cannot be justified on ground that show cause notice
was issued to him immediately prior to his retirement and that in view of legal fiction
created under Regn. 20 of 1979 Regulations disciplinary proceedings would be deemed
to be pending against him on date of his superannuation. (Paras 18, 19, 20)
The procedure for imposing major penalties is provided by 1976 Regulations. Regn. 6
thereof provided that no proceeding for imposing major penalties shall be initiated except
after an inquiry is held in accordance with the provisions thereof. The 1976 Regulations
provide for the mode and manner in which a disciplinary proceeding is initiated. It
expressly provides for service of charge-sheet. Service of charge-sheet is a necessary
ingredient for initiation of disciplinary proceedings. A preliminary enquiry is not
contemplated under the 1976 Regulations. A disciplinary proceeding is initiated in terms
of 1976 Regulations, which are applicable only in a case where a proceeding is initiated
for the purpose of taking disciplinary action against a delinquent officer for the purpose
of imposing a punishment on him. The 1979 Regulations on the other hand would be
attracted when no disciplinary proceeding is possible to be initiated. The 1976
Regulations and the Regulations of 1979 thus operate in different fields. (Paras 16, 17,
22)
@page-SC1832
Regn. 20 of the 1979 Regulations, deals with termination of service where the
performance of an officer is unsatisfactory or inadequate or where there is a bona fide
suspicion about his integrity or where his retention in the Bank's service is prejudicial to
interests of the disciplinary procedure. Regn. 20(2) of the 1979 Regulations places an
embargo on an official to leave or discontinue his service of the Bank without giving a
notice in writing. It prescribes a period of notice. Regn. 20(3) places an embargo on an
officer to leave or discontinue or resign from service without the prior approval in writing
of the competent authority and a notice or resignation given by such an officer before or
during the disciplinary proceedings shall not take effect unless it is accepted by the
competent authority. Regn. 20(2)(ii) raises a legal fiction. Such legal fiction has been
raised only for the purpose of 'this Regulation' and for no other, which would mean Regn.
20(1). Regn. 20(3)(iii) deals with continuation of disciplinary proceedings beyond
superannuation. Such disciplinary proceedings indisputably for the purpose of
applicability of sub-regulation (3) must have been initiated in terms of the 1976
Regulations. The 1979 Regulations would be attracted only for the purpose of termination
of service. Had the intention of the regulation making authority been that the legal fiction
created under Cl. (ii) of sub-regulation (3) of Regn. 20 would cover both Cls. (i) and (iii),
the same should have been placed only after Cl. (iii).(Paras 13, 14, 15, 20)
Ordinarily a departmental proceeding cannot be continued after superannuation of
employee. A rule which empowers authority to continue proceedings thereafter must be a
statutory Rule. A fortiori it must be a rule applicable to disciplinary proceedings. (Para
22)
(B) INTERPRETATION OF STATUTES - Interpretation of Statutes - Deeming clause -
Legal fiction cannot be extended so as to transgress scope and purport for which it is
created. (Para 20)
Cases Referred : Chronological Paras
2008 AIR SCW 208 : AIR 2008 SC 876 (Ref.) 20
2008 AIR SCW 844 : 2008 (2) AIR Kar R 268 (Rel. on) 20
2008 AIR SCW 2169 (Ref.) 20
2007 AIR SCW 2662 : AIR 2007 SC 1706 (Ref.) 4
2007 AIR SCW 3656 : AIR 2007 SC 2129 (Rel. on) 20
2007 AIR SCW 3734 : AIR 2007 SC 1971 (Ref.) 20
2007 AIR SCW 7303 : AIR 2008 SC 475 (Ref.) 24
2007 (6) Scale 348 (Ref.) 4
(2007) 6 SCC 81(Ref.) 20
1991 AIR SCW 2276 : AIR 1991 SC 2010 : 1991 Lab IC 2045 (Ref.) 4
AIR 1991 SC 855 (Ref.) 20
AIR 1973 SC 1227 : 1973 Lab IC 851 (Ref.) 24
(1951) 2 All ER 587 20
S.B. Sanyal, Sr. Advocate, Rajesh Singh, for Appellants; Deepak Sibal, Ejaz Maqbool,
Vikas Singh, Ms. Taruna Singh and Abhimeet Sinha, for Respondent.
Judgement
1
. S. B. SINHA, J. :- Review Petitioners herein have filed this application for review of
this Court's judgment and order dated 18-05-2007 passed in Civil Appeal No. 2739 of
2007. Reported in 2007 AIR SCW 3656 : AIR 2007 SC 2129

2. Respondent was working with the appellant-Bank. Almost immediately prior to his
retirement, he was asked to show cause as to why action under the UCO Bank (Officers')
Service Regulations, 1979 (for short "the 1979 Regulations") should not be taken against
him by notices dated 24-10-1996 and 30-10-1996.
3. Respondent reached his age of superannuation on 30-11-1996. A disciplinary
proceeding was initiated against him immediately thereafter. A charge-sheet, however,
was issued only on 13-11-1998. He was dismissed from service upon initiating a
departmental proceedings.
4

. A writ petition filed by him was allowed. Petitioner-Bank filed an appeal upon grant of
special leave thereagainst. One of the questions which arose for consideration before this
Court was whether in absence of any charge-sheet having been issued, the disciplinary
proceedings could be said to have been initiated in view of the decisions of this Court in
Union of India etc. etc. v. K.V. Jankiraman, etc. etc. [AIR 1991 SC 2010]; Union of India
and Ors. v. Sangram Keshari Nayak [2007 (6) SCALE 348] and Coal India Ltd. and Ors.
v. Saroj Kumar Mishra [2007 (5) SCALE 724]. 1991 AIR SCW 2276
2007 AIR SCW 2662

5. When the said question was raised, the 1979 Regulations were not before us
@page-SC1833
is Court asked the learned counsel to hand over the regulations by the next day. It was not
complied with.
However, on 18-05-2007 when the judgment was to be delivered, a prayer was made to
defer the pronouncement of the judgment so as to enable the appellants to place the
regulations. The said prayer was declined and the judgment was pronounced. It is in the
aforementioned factual backdrop, this review petition has been filed.
6. In the review application, the petitioner inter alia seeks to bring to our notice the
relevant provisions of the 1979 Regulations so as to contend that by reason thereof, a
legal fiction has been created to the effect that a disciplinary proceedings shall be deemed
to be pending, if the delinquent officer was placed under suspension or any notice was
issued to him to show cause why any disciplinary proceedings shall not be initiated
against him and will be deemed to be pending untill the final orders are passed by the
competent authority.
7. Indisputably, the appellants have framed three different regulations governing the
conditions of service of its employees.
8. The UCO Bank Officer Employees' (Discipline and Appeal) Regulations, 1976 (for
short "the 1976 Regulations) have been framed by reason of Section 19 of the Banking
Companies (Acquisition and Transfer of Undertakings) Act, 1970 in consultation with the
Reserve Bank of India and with the previous sanction of the Central Government.
Regulation 4 of the 1976 Regulations provides for the penalties. Regulation 6 provides
for the procedure for imposing major penalties. Sub-regulation (1) of Regulation 6
provides that no proceeding for imposing major penalties shall be initiated except after an
inquiry is held in accordance with the provisions thereof. Sub-regulation (2) of
Regulation 6 provides that when the disciplinary authority is of the opinion that there
were grounds for inquiring into the truth of any imputation of misconduct, an inquiry
officer is to be appointed. Sub-Regulations (3), (4) and (5) of Regulation 6 read as under :
"(3) Where it is proposed to hold an inquiry, the Disciplinary Authority shall frame
definite and distinct charges on the basis of the allegations against the officer employee
and the articles of charge, together with a statement of the allegations, on which they are
based, shall be communicated In writing to the officer employee, who shall be required to
submit within such time as may be specified by the Disciplinary Authority (not exceeding
15 days) or within such extended time as may be granted by the said Authority, a written
statement of his defence.
(4) On receipt of the written statement of the officer employee, or if no such statement is
received within the time specified, an enquiry may be held by the Disciplinary Authority
itself, or if it considers it necessary so to do appoint under sub-regulation (2) an Inquiring
Authority for the purpose:
Provided that it may not be necessary to hold an inquiry in respect of the articles of
charge admitted by the officer employee in his written statement but shall be necessary to
record its findings on each such charge.
(5) The Disciplinary Authority shall, where it is not the inquiring authority, forward to the
inquiring authority :
(i) a copy of the articles of charges and statement of imputations of misconduct or
misbehaviour;"
9. In exercise of the same power, the Board of Directors have also framed the UCO Bank
Officer Employees (Conduct) Regulations, 1976 (for short "the 1976 Conduct
Regulations") providing for the code of conduct for the bank officers. Any breach in
terms of Regulation 24 of the 1976 Conduct Regulations is deemed to constitute a
misconduct punishable under the 1976 Regulations.
10. The 1979 Regulations were also framed under the same power by the Board of
Directors of the Bank. The 1979 Regulations deal with different terms of the employment
of service. Chapter IV deals with appointments, probation, confirmation, promotions, etc.
Chapter V deals with allowances. Chapter VI deals with medical aid, residential
accommodation, etc. Chapter VII provides for the kinds of leave to which an employee is
entitled to. Chapter VIII provides for travelling allowances, etc. Chapter IX provides for
provident fund and pension. Chapter X provides for transfer of employees from one
branch to another. Chapter XI provides for power to implement regulations.
11. We are concerned herein with Regulation 20 of the 1979 Regulations which finds
place in Chapter IV. As noticed hereinbefore,
@page-SC1834
the heading of the said Regulation is 'termination of service'. Regulation 20 ex facie does
not deal with termination of service by way of misconduct which is governed by the 1976
Regulations and the 1976 Conduct Regulations.
12. Regulation 20 of the 1979 Regulations reads as under :
"20(1)(a). Subject to sub-regulation 3 of regulation 16 where the Bank is satisfied that the
performance of an officer is unsatisfactory or inadequate or there is a bona fide suspicion
about his integrity or his retention in the Bank's service would be prejudicial to interests
of the Bank, and where it is not possible or expedient to proceed against him as per the
disciplinary procedure, the Bank may terminate his services on giving him three months'
notice or emoluments in lieu thereof in accordance with the guidance Issued by the
Government from time to time.
(b) Order of termination under this sub-regulation shall not be made unless such officer
has been given a reasonable opportunity of making a representation to the Bank against
the proposed order.
(c) The decision to terminate the services of an officer employee under sub-regulation (a)
above will be taken only by the Chairman and Managing Director.
(d) The officer employee shall be entitled to appeal against any order passed under sub-
regulation (a) above by preferring an appeal within 15 days to the Board of Directors of
the Bank. If the appeal is allowed, the order under sub-regulation (a) shall stand
cancelled.
(e) Where an officer employee whose services have been terminated and who has been
paid an amount of three months emoluments in lieu of notice and on appeal his
termination is cancelled, the amount paid to him in lieu of notice shall be adjusted against
the salary that he would have earned, had his services not been terminated and he shall
continue the Bank's employment on same terms and conditions as if the order of
termination had not been passed at all.
(f) An officer employee whose services are terminated under sub-regulation (a) above
shall be paid Gratuity, Provident Fund including employer's contribution and all other
dues that may be admissible to him as per rules notwithstanding the years of service
rendered.
(g) Nothing contained hereinabove will affect the Bank's right to retire an officer
employee under Regulation 19(1).
2. An officer shall not leave or discontinue his service in the Bank without first giving a
notice in writing of his intention to leave or discontinue his service or resign. The period
of notice required shall be 3 months and shall be submitted to the competent authority as
prescribed in these regulations.
Provided further that the competent authority may reduce the period of 3 months or remit
the requirement of notice.
3(i) An officer against whom disciplinary proceedings are pending shall not leave/
discontinue or resign from his service in the bank without the prior approval in writing of
competent authority and any notice or resignation given by such an officer before or
during the disciplinary proceedings shall not take effect unless it is accepted by the
competent authority.
(ii) Disciplinary proceedings shall be deemed to be pending against any employee for the
purpose of this regulation if he has been placed under suspension or any notice has been
issued to him to show cause why disciplinary proceedings shall not be instituted against
him and will be deemed to be pending until final orders are passed by the competent
authority.
(iii) The officer against whom disciplinary proceedings have been initiated will cease to
be in service on the date of superannuation but the disciplinary proceedings will continue
as if he was in service until the proceedings are concluded and final order is passed in
respect thereof. The concerned officer will not receive any pay and/ or allowance after the
date of superannuation. He will also not be entitled for the payment of retirement benefits
till the proceedings are completed and final order is passed thereon except his own
contributions to CPF."
13. Sub-regulation (1) of Regulation 20 of the 1979 Regulations, thus, deals with
termination of service where the performance of an officer is unsatisfactory or inadequate
or where there is a bona fide suspicion about his integrity or where his retention in the
bank's service is prejudicial to interests of the disciplinary procedure. Other Sub-
regulations of Regulation 20 provides
@page-SC1835
for the mode and manner in which such termination may be effected as also his
entitlement to prefer an appeal thereagainst and other benefits to which he would be
otherwise entitled to.
14. Sub-regulation (2) of Regulation 20 of the 1979 Regulations places an embargo on an
official to leave or discontinue his service of the bank without giving a notice in writing.
It prescribes a period of notice. Sub-regulation (3) of Regulation 20, however, places an
embargo on an officer to leave or discontinue or resign from service without the prior
approval in writing of the competent authority and a notice or resignation given by such
an officer before or during the disciplinary proceedings shall not take effect unless it is
accepted by the competent authority.
Clause (ii) of Sub-regulation (3) of Regulation 20 must be considered from that aspect of
the matter. It raises a legal fiction. Such legal fiction has been raised only for the purpose
of "this Regulation" and for no other, which would mean Regulation 20(1). The final
orders which are required to be passed by the competent authority although indisputably
would be in relation to the disciplinary proceedings but evidently it is for the purpose of
accepting resignation or leaving or discontinuing of the service by the employee
concerned or grant of approval thereof. Clause (ii) of Sub-regulation (3) of Regulation 20
in effect and substance acts as a proviso to Clause (1) thereof.
15. Clause (iii) of Sub-regulation (3) of Regulation 20 is an independent provision. It
provides for continuation of the disciplinary proceedings. Such disciplinary proceedings
indisputably for the purpose of applicability of Sub-regulation (3) must have been
initiated in terms of the 1976 Regulations.
16. It is worth noticing the distinction between terminologies "proceeding pending" or
"proceeding initiated". Clause (ii) of Sub-regulation (3) of Regulation 20 defines what
would be pending, viz., for the purpose of attracting Clause (i) thereof.
A disciplinary proceeding is initiated in terms of 1976 Regulations, which are applicable
only in a case where a proceeding is initiated for the purpose of taking disciplinary action
against a delinquent officer for the purpose of imposing a punishment on him.
Disciplinary proceedings, thus, are initiated only in terms of the 1976 Regulations and
not in terms of the 1979 Regulations.
It is worth noticing that the 1979 Regulations would be attracted when no disciplinary
proceeding is possible to be initiated. The 1976 Regulations, however, on the other hand,
would be attracted when a disciplinary proceeding is initiated.
Both operate in separate fields. We do not see any nexus between Regulations 20(1) and
20(2) of the 1979 Regulations and the 1976 Regulations.
17. The 1976 Regulations provide for the mode and manner in which a disciplinary
proceeding is initiated. It expressly provides for service of charge sheet. Service of charge
sheet is a necessary ingredient for initiation of disciplinary proceeding. A preliminary
enquiry is not contemplated under the 1976 Regulations. If such an enquiry is held, the
same is only for the purpose of arriving at a satisfaction on the part of the disciplinary
authority to initiate a proceeding and not for any other purpose.
18. If it is found that a disciplinary proceeding can be and should be initiated, recourse to
the 1976 Regulations would have to be taken, if not, the 1979 Regulations may be
resorted to if the conditions precedent therefor are satisfied. It is only with a view to put
an embargo on the officer to leave his job, Clause (ii) of Sub-Regulation (3) of
Regulation 20 of the 1979 Regulations has been made. It's scope is limited.
19. We have noticed hereinbefore that each regulations operates in different fields. When
a proceeding is initiated for the purpose of taking any disciplinary action on the ground of
any misconduct which might have been committed by the officer concerned indisputably
the procedures laid down in the 1976 Regulations are required to be resorted to.
20. The 1979 Regulations would be attracted only for the purpose of termination of
service. Had the Intention of the regulation making authority been that the legal fiction
created under Clause (ii) of Sub-regulation (3) of Regulation 20 would cover both
Clauses (i) and (iii), the same should have been placed only after Clause (iii). In such an
event, Clause (ii) of Sub-regulation (3) of Regulation 20 should have been differently
worded.
Some non obstante clause would have been provided for making an exception to
@page-SC1836
the applicability of the 1976 Regulations when a legal fiction is created, although it is
required to be taken to the logical conclusion [See East End Dwellings Co. Ltd. v.
Finsbury Borough Council, [(1951) 2 All ER 587], but the same would not mean that the
effect thereof would be extended so as to transgress the scope and purport for which it is
created.

In UCO Bank and Anr. v. Rajinder Lal Capoor [(2007) 6 SCC 694] it has been held :
2007 AIR SC 3656

"We are not oblivious of the legal principle that a legal fiction must be given full effect
but it is equally well-settled that the scope and ambit of a legal fiction should be confined
to the object and purport for which the same has been created."

In Imagic Creative Pvt. Ltd. v. The Commissioner of Commercial Taxes and Ors. [JT
2008 (1) SC 496], this Court opined :2008 AIR SC 844

"26. We have noticed hereinbefore that a legal fiction is created by reason of the said
provision. Such a legal fiction, as is well known, should be applied only to the extent for
which it was enacted. It, although must be given its full effect but the same would not
mean that it should be applied beyond a point which was not contemplated by the
legislature or which would lead to an anomaly or absurdity.
27. The Court, while interpreting a statute, must bear in mind that the legislature was
supposed to know law and the legislation enacted is a reasonable one. The Court must
also bear in mind that where the application of a Parliamentary and a Legislative Act
comes up for consideration; endeavours shall be made to see that provisions of both the
acts are made applicable."
It is now a well-settled principle of interpretation of statutes that the court must give
effect to the purport and object of the Act. Rule of purposive construction should, subject
of course to the applicability of the other principles of interpretation, be made applicable
in a case of this nature.

In New India Assurance Company Ltd. v. Nusli Neville Wadia and Anr. [JT 2008 (1) SC
31], this Court held : 2008 AIR SCW 208

"50...........With a view to read the provisions of the Act in a proper and effective manner,
we are of the opinion that literal interpretation, if given, may give rise to an anomaly or
absurdity which must be avoided. So as to enable a superior court to interpret a statute in
a reasonable manner, the court must place itself in the chair of a reasonable legislator/
author. So done, the rules of purposive construction have to be resorted to which would
require the construction of the Act in such a manner so as to see that the object of the Act
fulfilled; which in turn would lead the beneficiary under the statutory scheme to fulfil its
constitutional obligations as held by the court inter alia in Ashoka Marketing Ltd. (supra).
AIR 1991 SC 855

51. Barak in his exhaustive work on 'Purposive Construction' explains various meanings
attributed to the term "purpose". It would be in the fitness of discussion to refer to
Purposive Construction in Barak's words: "Hart and Sachs also appear to treat "purpose"
as a subjective concept. I say "appear" because, although Hart and Sachs claim that the
interpreter should imagine himself or herself in the legislator's shoes, they introduce two
elements of objectivity : First, the interpreter should assume that the legislature is
composed of reasonable people seeking to achieve reasonable goals in a reasonable
manner; and second, the interpreter should accept the non-rebuttable presumption that
members of the legislative body sought to fulfil their constitutional duties in good faith.
This formulation allows the interpreter to inquire not into the subjective intent of the
author, but rather the intent the author would have had, had he or she acted reasonably."
(Aharon Barak, Purposive Interpretation in Law, (2007) at pg. 87)
52. In Bharat Petroleum Corpn. Ltd. v. Maddula Ratnavalli and Ors., (2007) 6 SCC 81,
this Court held :
"The Parliament moreover is presumed to have enacted a reasonable statute (see Breyer,
Stephen (2005): Active Liberty: Interpreting Our Democratic Constitution, Knopf
(Chapter on Statutory Interpretation - pg. 99 for "Reasonable Legislator Presumption" )."

53. The provisions of the Act and the Rules in this case, are, thus required to be construed
in the light of the action of the State as envisaged under Article 14 of the Constitution of
India. With a view to give effect thereto, the doctrine of purposive construction may have
to be taken recourse to. [See 2007 (7) Scale 753 : Oriental Insurance Co. Ltd. vs. Brij
Mohan and others.]" 2007 AIR SCW 3734
@page-SC1837

All the regulations must be given a harmonious interpretation. A Court of law should not
presume a 'cassus omissus' but if there is any, it shall not supply the same. If two or more
provisions of a statute appear to carry different meanings, a construction which would
give effect to all of them should be preferred. [See Gujarat Urja Vikash Nigam Ltd. v.
Essar Power Ltd., 2008 (3) SCALE 469]. 2008 AIR SCW 2169

21. In terms of the 1976 Regulations drawing up of a charge sheet by the disciplinary
authority is the first step for initiation of a disciplinary authority. Unless and until,
therefore, a charge sheet is drawn up, a disciplinary proceedings for the purpose of the
1976 Regulations cannot be initiated.
22. Drawing up of a charge sheet, therefore, is the condition precedent for initiation of a
disciplinary proceedings. We have noticed in paragraph 15 of our judgment that
ordinarily no disciplinary proceedings can be continued in absence of any rule after an
employee reaches his age of superannuation. A rule which would enable the disciplinary
authority to continue a disciplinary proceedings despite the officers reaching the age of
superannuation must be a statutory rule. A 'fortiori it must be a rule applicable to a
disciplinary proceedings.
23. There cannot be any doubt whatsoever that the employer may take resort to a
preliminary inquiry, but it will bear repetition to state that the same has a limited role to
play. But, in absence of the statutory rules operating in the field, resorting to a
preliminary enquiry would not by itself be enough to hold that a departmental proceeding
has been initiated.
24. Initiation of a disciplinary proceeding may lead to an evil or civil consequence. Thus,
in absence of clear words, the court must lean in favour of an interpretation which has
been applied by this Court in the main judgment.

In Workmen of M/s. Firestone Tyre and Rubber Co. of India (P) Ltd. v. Management and
Others [(1973) 1 SCC 813], this Court held that Section 11-A of the Industrial Disputes
Act must be interpreted in the light of the legal principles operating in the field. [See also
Haryana Urban Development Authority v. Om Pal (2007) 5 SCC 742]. AIR 1973 SC
1227
2007 AIR SCW 7303

25. For the reasons aforementioned, we are of the opinion that it is not a fit case where
we should exercise our jurisdiction.
26. This petition is dismissed. In the facts and circumstances of this case, however, there
shall be no order as to costs.
Petition dismissed.
AIR 2008 SUPREME COURT 1837 "National Insurance Co. Ltd. v. Geeta Bhat"
(From : Punjab and Haryana)*
Coram : 2 S. B. SINHA AND V. S. SIRPURKAR, JJ.
Civil Appeal No.2257 of 2008 (arising out of SLP (C) No. 18509 of 2004), D/- 31 -3
-2008.
National Insurance Co. Ltd. v. Geeta Bhat and Ors.
Motor Vehicles Act (59 of 1988), S.149 - MOTOR VEHICLES - INSURANCE -
REIMBURSEMENT - Liability of Insurer to reimburse owner - Not absolved on ground
of driving license found to be fake.
Notwithstanding the fact that the license possessed by the driver is a fake one, the insurer
would not be absolved from the liability to reimburse the owner of a vehicle in respect of
the amount awarded in favour of a third party by a Tribunal. An owner of the vehicle is
bound to make reasonable enquiry as to whether the person who is authorized to drive the
vehicle holds a licence or not. Such a licence not only must be an effective one but should
also be a valid one. Indisputably, in a case where the terms of the contract of insurance
are found to have been violated by the insured, the insurer may not be held to be liable
for reimbursing the insured. So far as a driving licence of a professional driver is
concerned, the owner of the vehicle, despite taking reasonable care, might have not been
able to find out as to whether the licence was a fake one or not. He is not expected to
verify the genuineness thereof from the Transport Offices. (Paras 6, 7, 8, 13)
Cases Referred : Chronological Paras
2008 AIR SCW 682 : AIR 2008 SC 1073 (Ref.) 12
2008 AIR SCW 888 : 2008 (2) ALJ 736 12
2007 AIR SCW 2279 : AIR 2007 SC 1563 (Ref.) 11
2007 AIR SCW 2362 : AIR 2007 SC 1609 : 2007 (3) ALJ 596 (Ref.) 12
@page-SC1838

2007 AIR SCW 3734 : AIR 2007 SC 1971 (Ref.) 12


2007 AIR SCW 4590 : AIR 2007 SC 2582 (Ref.) 12
2007 AIR SCW 6866 : AIR 2008 SC 329 (Ref.) 12
2004 AIR SCW 663 : AIR 2004 SC 1531 (Rel. on) 10
2003 AIR SCW 1695 : AIR 2003 SC 1292 (Rel. on) 9, 10
AIR 1987 SC 1690 (Ref.) 12
AIR 1977 SC 1248 (Ref.) 12
B.K. Satija, Dr. Sushil Balwada, for Appellant; K.S. Rana, for Respondents.
* F.A.O. No. 4413 of 2003, D/- 30-10-2003 (P and H).
Judgement
1. S. B. SINHA, J. :-Leave granted.
2. On 14-11-2000, Ishwar Dutt Bhat was travelling in a three wheeler. It met with an
accident having been hit by a truck bearing registration No.HR 38 9179. The said vehicle
was insured with the appellant.
Respondents, being the heirs and legal representatives of the said Shri Ishwar Dutt, filed a
claim petition. Appellant, in its written statement, raised a contention that the driving
licence possessed by the driver of the truck was a fake one.
3. In the proceedings before the Motor Vehicles Accident Claims Tribunal (the Tribunal),
it prayed for examination of the concerned clerk of the Motor Vehicles Department. The
said prayer was allowed. The concerned Clerk of the Licencing Authority, Alwar was
summoned. The said summons were served in the office of the Transport Authority. The
Transport Authority, however, did not depute any officer to produce the documents called
for.
Appellant, however, brought on records evidence to the effect that on an investigation
made by its own investigator, it was found that no such licence had been issued in the
name of Gopal Singh, the driver of the vehicle. In its report dated 20-3-2003, the said
investigator stated :
"Kindly, note that an application was moved by us to the LA Alwar to issue the
verification certificate for the DL No. as cited above, along with the photocopy of the DL
received by us.
But our opinion was returned back by the concerning officer because the above ref. DL
has no relevancy with the records LA Alwar.
However, the record register was shown to us which shows that DL No.20734/94 was
issued on dated 28-3-94.
Thus, it is confirmed that no such DL No.3956/Alwar/94 dated 27-3-94 is issued by LA
Alwar.
Conclusion : Verification certificate for the above said DL cannot be obtained from LA
Alwar.
This report is issued without prejudice."
4. The Tribunal, however, on the premise that the said fact was not proved, held :
"The insurance company in spite of availing several opportunities did not lead any
evidence in support of this assertion that Respondent No. 1 was not holding a valid and
effective driving licence. So the Insurance Company has failed to discharge the onus of
this issue. Accordingly this issue is decided against the Insurance Company."
The appeal preferred by the appellant before the High Court was dismissed summarily.
5. Mr. B.K. Satija, learned counsel appearing on behalf of the appellant, would submit
that the licence of the driver having been found to be a fake one, the High Court
committed a serious error in dismissing the appeal of the appellant summarily.
6. Liability of an insurer to reimburse the insured, as an owner of the vehicle not only
depends upon the terms and conditions laid down in the contract of insurance but also the
provisions of the Motor Vehicles Act, 1988 (the Act). The owner of vehicle is statutorily
obligated to obtain an insurance for the vehicle to cover the third party risk. A distinction
has to be borne in mind in regard to a claim made by the insured in respect of damage of
his vehicle or filed by the owner or any passenger of the vehicle as contradistinguished
from a claim made by a third party.
7. An owner of the vehicle is bound to make reasonable enquiry as to whether the person
who is authorized to drive the vehicle holds a licence or not. Such a licence not only must
be an effective one but should also be a valid one. It should be issued for driving a
category of vehicle as specified in the Motor Vehicles Act and/or Rules framed
thereunder.
8. Indisputably, in a case where the terms of the contract of insurance are found to have
been violated by the insured, the insurer may not be held to be liable for reimbursing the
insured. So far as a driving
@page-SC1839
licence of a professional driver is concerned, the owner of the vehicle, despite taking
reasonable care, might have not been able to find out as to whether the licence was a fake
one or not. He is not expected to verify the genuineness thereof from the Transport
Offices.
9
. The question in regard to the statutory obligation on the part of an owner of a vehicle to
obtain an insurance policy to cover a third party risk, vis-a-vis possession of a fake
licence by a driver who had been employed bona fide by the owner thereof had come up
for consideration before this Court United India Insurance Co. Ld. v. Lehru and Ors.
[(2003) 3 SCC 338]. 2003 AIR SCW 1695

10

. Lehru's case was noticed in great details by a Three Judge Bench of this Court in
National Insurance Co. Ltd. v. Swaran Singh [(2004) 3 SCC 297), holding : 2004
AIR SCW 663, Para 87

"92. It may be true as has been contended on behalf of the petitioner that a fake or forged
licence is as good as no licence but the question herein, as noticed hereinbefore, is
whether the insurer must prove that the owner was guilty of the wilful breach of the
conditions of the insurance policy or the contract of insurance. In Lehru case the matter
has been considered in some detail. We are in general agreement with the approach of the
Bench but we intend to point out that the observations made therein must be understood
to have been made in the light of the requirements of the law in terms whereof the insurer
is to establish wilful breach on the part of the insured and not for the purpose of its
disentitlement from raising any defence or for the owners to be absolved from any
liability whatsoever. We would be dealing in some detail with this aspect of the matter a
little later." 2003 AIR SCW 1695

11

. Swaran Singh had been followed later on in some cases by this Court. It was, however,
distinguished in National Insurance Co. Ltd. v. Laxmi Narain Dhut [(2007) 3 SCC 700]
in the following terms : 2007 AIR SCW 2279

"9. The primary stand of the insurance company is that the person driving the vehicle did
not have a valid driving licence. In Swaran Singh case the following situations were
noted :
(i) the driver had a licence but it was fake;
(ii) the driver had no licence at all;
(iii) the driver originally had a valid licence but it had expired as on the date of the
accident and had not been renewed;
(iv) the licence was for a class of vehicles other than that which was the insured vehicle;
(v) licence was a learner's licence.
Category (i) may cover two types of situations. First, the licence itself was fake and the
second is where originally that licence is fake but there has been a renewal subsequently
in accordance with law.
xxx xxx xxx
37. As noted above, the conceptual difference between third-party right and own damage
cases has to be kept in view. Initially, the burden is on the insurer to prove that the licence
was a fake one. Once it is established the natural consequences have to flow.
xxx xxx xxx
38. In view of the above analysis the following situations emerge :
1. The decision in Swaran Singh case 1 has no application to cases other than third-party
risks.
2. Where originally the licence was a fake one, renewal cannot cure the inherent fatality.
3. In case of third-party risks the insurer has to indemnify the amount, and if so advised,
to recover the same from the insured.
4. The concept of purposive interpretation has no application to cases relatable to Section
149 of the Act.
The High Courts/Commission shall now consider the matter afresh in the light of the
position in law as delineated above."
12

. The said principle was reiterated in The Oriental Insurance Co. Ltd. v. Meena Variyal
and Ors. [2007 (5) SCALE 269] stating : 2007 AIR SCW 2362

"It was argued by learned counsel for the appellant that since on the finding that the
deceased was himself driving the vehicle at the time of the accident, the accident arose
due to the negligence of the deceased himself and hence the insurer is not liable for the
compensation. Even if the case of the claimant that the car was driven by Mahmood
Hasan was true, then also, the claimant had to establish the negligence of the driver
before the insured could be asked AIR 1977 SC 1248

@page-SC1840
to indemnify the insured. The decision in Minu B. Mehta and Anr. v. Balkrishna
Ramchandra Nayan and Anr. [(1977) 2 SCR 886], of a three Judge Bench of this Court
was relied on in support.
xxx xxx xxx

Learned counsel for the respondent contended that there was no obligation on the
claimant to prove negligence on the part of the driver. Learned counsel relied on Gujarat
State Road Transport Corporation Ahmedabad v. Ramanbhal Prabhatbhai and Anr.
[(1987) 3 SCC 234] in support. In that decision, this Court clarified that the observations
in Minu B. Mehta's case (supra) are in the nature of obiter dicta. But, this Court only
proceeded to notice that departures had been made from the law of strict liability and the
Fatal Accidents Act by introduction of Chapter VIIA of the 1939 Act and the introduction
of Section 92A providing for compensation and the expansion of the provision as to who
could make a claim, noticing that the application under Section 110A of the Act had to be
made on behalf of or for the benefit of all the legal representatives of the deceased. This
Court has not stated that on a claim based on negligence there is no obligation to establish
negligence. This Court was dealing with no-fault liability and the departure made from
the Fatal Accidents Act and the theory of strict liability in the scheme of the Act of 1939
as amended. This Court did not have the occasion to construe a provision like Section
163A of the Act of 1988 providing for compensation without proof of negligence in
contradistinction to Section 166 of the Act. We may notice that Minu B. Mehta's case was
decided by three learned Judges and the Gujarat State Road Transport Corporation case
was decided only by two learned Judges. An obiter dictum of this Court may be binding
only on the High Courts in the absence of a direct pronouncement on that question
elsewhere by this Court. But as far as this Court is concerned, though not binding, it does
have clear persuasive authority." AIR 1987 SC 1690

[See also Oriental Insurance Co. Ltd. v. Brij Mohan and Ors. (2007) 7 SCALE 753 and
United India Insurance Co. Ltd. v. Davinder Singh [(2007) 8 SCC 698. 2007 AIR
SCW 3734
2007 AIR SCW 6866

In Smt. Yallawwa and Ors. v. National Insurance Co. Ltd. and Anr. [2007 (8) SCALE 77],
this Court opined : 2007 AIR SCW 4590

"The recent decisions of this Court are authorities for the proposition that the insurance
company would not be liable in cases where passengers of a vehicle are not third parties."

[See also Prem Kumar and Ors. v. Prahlad Dev and Ors. [2008 (1) SCALE 531] and
Oriental Insurance Co. Ltd. v. Prithvi Raj [2008 (1) SCALE 727]]. 2008 AIR SCW 682
2008 AIR SCW 888

Thus, whereas in a case where a third party has raised a claim, Swaran Singh (supra)
would apply, in a claim made by the owner of the vehicle or other passengers of a
vehicle, it would not.
13. We would, therefore, assume that the licence possessed by the 6th respondent, Gopal
Singh was a fake one. Only because the same was fake, the same, having regard to the
settled legal position, as noticed hereinbefore, would not absolve the insurer to reimburse
the owner of a vehicle in respect of the amount awarded in favour of a third party by the
Tribunal in exercise of its jurisdiction under Section 166 of the Motor Vehicles Act, 1988.
14. Nobody has appeared on behalf of the respondents despite service of notice.
15. We, therefore, are of the opinion that interest of justice shall be subserved if the
appellant is directed to pay the awarded amount in favour of respondent Nos. 1 to 5 with
liberty to recover the same from the owner and the driver of the vehicle, respondent
Nos.6 and 7 in an appropriate proceeding in accordance with law.
16. The appeal is dismissed with the aforementioned observations. No costs.
Appeal dismissed.
AIR 2008 SUPREME COURT 1840 "Govt. of Goa v. M/s. A. H. Jaffar and Sons"
(Prom : Bombay)*
Coram : 2 Dr. A. PASAYAT AND P. SATHASIVAM, JJ,
Civil Appeal No.2536 of 2001, D/- 26 -3 -2008.
Govt. of Goa v. M/s. A. H. Jaffar and Sons and Anr. @page-SC1841
(A) Constitution of India, Art.136 - SPECIAL LEAVE APPEAL - SUPREME COURT -
TRIBUNALS - Grant of special leave by Supreme Court - Stay granted earlier, directed
to continue - Respondents were represented by counsel before Supreme Court - Pursuing
their remedies by respondents before Revisional Tribunal notwithstanding said stay order
- Not proper. (Para 6)
(B) Constitution of India, Art.226, Art.141 - WRITS - PRECEDENT - SUPREME
COURT - HIGH COURT - Powers of Court - Earlier case involving dispute of similar
nature between same parties had been decided by Supreme Court in particular way -
Attained finality - Directions given by Supreme Court shall operate - Taking a different
view and issuing directions by High Court - Not permissible. (Paras 6, 7)
Cases Referred : Chronological Paras
1994 AIR SCW 4516 : AIR 1995 SC 333 (Ref.) 3
H.L. Agrawal, Sr. Adv., Bhavanishankar V. Gadnis, B. Sunita Rao, for Appellant; Anis
Suhrawardy, Ms. Shamama Anis, S. Mehdi Imam, Tabrez Ahmed, for Respondents.
* W. P. No. 41 of 1993, D/- 1-3-2000 (Bom) (At Goa).
Judgement
1. Dr. ARIJIT PASAYAT, J. :-Challenge in this appeal is to the judgment of a Division
Bench of the Bombay High Court at Goa in Writ Petition No.41/93 filed by the
respondents. The writ petition No.41/93 was filed seeking quashing of the orders dated
3rd January, 1991 passed by the Directorate of Mines and Labour and dated 22nd March,
1999 passed by the Secretary, Mines, Government of Goa. Further prayer was for
direction for grant of respondent's application for mining lease over an area of 34.68
hectares situated at two different villages in Ponda Taluka after executing the necessary
lease deeds in favour of the respondents.
2. After referring to the chequered history of the litigation the High Court ultimately
directed as follows :
"18. Considering the fact that the matter is pending over 16 years, as the Respondents
were without addressing themselves to the main issue involved in the matter, virtually
compelling the Petitioner to approach the Court every now and then to make the
Respondents realize about the main issue involved in the matter, and considering all the
observations made hereinabove, we are compelled to direct the Respondents to dispose of
the application of the Petitioner on merits within the period of six weeks from today. The
Respondents should be careful in disposing the matter bearing in mind the observations
made therein and should pass a reasoned Order addressing themselves to the main issue
involved in the matter after considering all the materials placed on record. In the facts and
circumstances of the case, we are constrained to impose exemplary costs of Rs. 10,000/-
to be paid by the Respondents to the Petitioner. The costs to be paid within six weeks
from today. The Respondents shall furnish to the Additional Registrar of this Court a
copy of the Order to be passed in accordance with the directions issued herein within two
weeks from the date of passing such Order. Rule made absolute in above terms."
3

. Though various points were urged in support of the appeal, Mr. H.L. Aggarwal, learned
senior counsel, submitted that a dispute of similar nature involving the parties was before
this Court and issues involved were identical in State of Goa and Ors. v. M/s. A.H. Jaffar
and Sons (AIR 1995 SC 333). It was, inter alia, held as under: 1994 AIR SCW 4516
"3. The appeal has been argued at length. Sri Siraj Sait has attempted to support the
judgment with industry and precision. But it does not appear necessary to decide whether
the finding recorded by the High Court that the order of Commissioner being
administrative in nature it could be reviewed by the State Government nor it is necessary
to decide whether the Minister could exercise any power where the grant of lease is
regulated by the Statute as in our opinion the remedy of revision having been provided by
Sec.30 of the Act, the proper course for the respondent was to approach the Central
Government and not the High Court. Learned counsel for the respondent expressed
apprehension that the period for limitation provided in Rule 54 of the Minerals
Concessions Rules, 1960 having expired, the revision might not be entertained. The
proviso to the rule, however, empowers the revising authority to condone delay if it is
satisfied that the revision could not be presented for sufficient cause within time. Since
the respondent was pursuing its remedy in High Court bona fide, it would be sufficient
cause to condone the delay and we trust the revision if preferred within four weeks from
today shall not be dismissed as being barred by time."
4. Therefore, it is submitted that when
@page-SC1842
the matter had attained finality between the parties, and the High Court could not have
given the impugned directions.
5. Learned counsel for the respondents on the other hand submitted that much prior to the
hearing of the matter by this Court, order dated 30th June, 2000 was served on the
respondents on 3rd July, 2000, and they had moved the Revisional Tribunal of the Central
Government in terms of Section 30 of the Mines and Minerals (Development and
Regulation) Act, 1957 (in short the 'Act') read with Rule 54 of the Mineral Concession
Rules, 1960 (in short the 'Rules'). The Revisional Tribunal of the Central Government by
its final order dated 13-5-2002 has already decided the matter in favour of the
respondents.
6. It is to be noted that notice was issued in the SLP on 18-8-2000 and stay was granted.
Subsequently, leave was granted on 30-3-2001 and the stay was directed to continue.
Much before that date the respondents were represented by counsel before this Court. It is
surprising that notwithstanding stay order passed by this Court, the respondents pursued
their remedies before the Revisional Tribunal. That certainly was not proper and
desirable. To add to the vulnerability it needs to be noted that the writ petition though
filed in 1993 was disposed of on 1st March, 2000, and by that time the decision of this
Court in the earlier case between the same parties had been decided in a particular way.
Unfortunately, the High Court did not notice that also. It needs no reiteration that once
the decision is rendered intra parties and attains finality, a different view cannot be taken,
more so, when finality is attached by this Court's order.
7. In the circumstances, we set aside the impugned order of the High Court and directions
contained in paragraph 3 of the earlier decision shall operate so far as this case is
concerned. If any decision has been taken by the State Government or the Central
Government in the present dispute, the same shall be of no consequence because of the
stay order of this Court, while issuing notice on 18-8-2000 and order granting leave on
30th March, 2001.
8. The appeal is allowed to the aforesaid extent with no order as to costs.
Order accordingly.
AIR 2008 SUPREME COURT 1842 "Golla Yelugu Govindu v. State of A. P."
(From : Andhra Pradesh)*
Coram : 2 Dr. A. PASAYAT AND P. SATHASIVAM, JJ.
Criminal Appeal No. 556 of 2008 (arising out of SLP (Cri.) No. 1041 of 2007), D/- 26 -3
-2008.
Golla Yelugu Govindu v. State of A. P.
(A) Evidence Act (1 of 1872), S.3 - EVIDENCE - WITNESS - Child witness - Testimony
of - Acceptance.
The decision on the question whether the child witness has sufficient intelligence
primarily rests with the trial Judge who notices his manners, his apparent possession or
lack of intelligence, and said Judge may resort to any examination which will tend to
disclose his capacity and intelligence as well as his understanding of the obligation of an
oath. The decision of the trial Court may, however, be disturbed by the higher Court if
from what is preserved in the records, it is clear his conclusion was erroneous. This
precaution is necessary because child witnesses are amenable to tutoring and often live in
a world of make beliefs. Though it is an established principle that child witnesses are
dangerous witnesses as they are pliable and liable to be influenced easily, shaped and
moulded, but it is also an accepted norm that if after careful scrutiny of their evidence the
Court comes to the conclusion that there is an impress of truth in it, there is no obstacle in
the way of accepting the evidence of a child witness. (Para 9)
(B) Penal Code (45 of 1860), S.304, Part I - CULPABLE HOMICIDE - SENTENCE
IMPOSITION - WITNESS - Culpable homicide not amounting to murder - Accused
alleged to have asked his wife, deceased to get money from her parents - Demand not
complied by parents - In night at about 2 A.M. there was exchange of hot words and
quarrel between accused and deceased in presence of their children - Accused suddenly
hacked deceased on her back with sickle and deceased fell down - Accused once again
hacked on neck and left ear of deceased causing severe bleeding injuries - Evidence of
eye witnesses, children of deceased, corroborated by other prosecution witnesses -
Accused, held, liable to be convicted u/S.304, Part I - Sentence of 10 years imposed.
(Para 15)

@page-SC1843

Cases Referred : Chronological Paras


2001 AIR SCW 81 : AIR 2001 SC 482 : 2001 Cri LJ 705 (Ref.) 7
(1997) 5 SCC 341 (Ref.) 8
1993 AIR SCW 2734 : AIR 1993 SC 2426 : 1993 Cri LJ 3255 (Ref.) 14
(1895) 159 US 523 : 40 Law Ed 244 7
Uma Datta, for Appellant; Ms. D. Bharathi Reddy, for Respondent.
* Cri. Appeal No. 1313 of 2004, D/- 7-8-2006 (A.P.)
Judgement
Dr. ARIJIT PASAYAT, J. :- Leave granted.
2. Challenge in this appeal is to the order passed by a Division Bench of the Andhra
Pradesh High Court dismissing the appeal filed by the appellant questioning correctness
of his conviction for offence punishable under Section 302 of the Indian Penal Code,
1860 (in short 'IPC') and sentence of imprisonment for life and fine as imposed by
learned IVth Additional Sessions Judge, (F.T.C.), Anantapur.
2A. Background facts in a nutshell are as follows :
The marriage between Dhanalakshmi (hereinafter referred to as 'deceased') and the
accused took place 14 years prior to the date of incident. During the wedlock, they were
blessed with three children, namely, Golla Yelugu Adilakshmi (PW2), Golla Yelugu
Anjaneyulu (PW3) and Gollal Yelugu Venkatesu (LW7). At the time of marriage, the
accused was doing cultivation. After marriage the deceased and the accused lived happily
for some years. Due to addiction to vices, he started ill-treating his wife, demanding her
to get money from her parents. About six months prior to the occurrence, the accused
beat and caused fracture to the hand of the deceased and sent her along with her children
to her parents' house. He again took them back by promising to look after them well and
kept his family at Pamidi. Ten days prior to the occurrence, the accused sold his
autorickshaw and cleared his debts and asked his wife to get money from her parents to
purchase another autorickshaw. But the parents of the deceased did not comply with the
said demand. On 20-6-2002 at about 2 A.M. while the deceased was in the house, there
was exchange of hot words and quarrel between the accused and deceased. This
happened in the presence of their children. Suddenly accused hacked the deceased on her
back with a sickle and the deceased fell down and the accused once again hacked on the
neck and left ear of the deceased causing severe bleeding injuries. Accused went to the
house of LW3 and confessed the offence before him. LW3 went and informed the same to
the father of the deceased, PW1. PW1 lodged a complaint before the police and on its
basis a case in Cr.No.35/2002 was registered for the offence punishable under Section
302 IPC by PW11, who conducted inquest over the dead body of the deceased in the
presence of PWs. 5, 8 and LW16: examined some witnesses and recorded their
statements; seized the clothes and blood stained mat covered under MOs. 1 to 4; prepared
rough sketch under Ex.P.7, forwarded the material objects to the Forensic Science
Laboratory, Hyderabad for analysis through the Judicial First Class Magistrate, Gooty
and arrested the accused on 25-6-2002, and at his instance MOs 5-sickle and 6-bag were
recovered. PW6, the Medical Officer, who conducted autopsy over the dead body of the
deceased opined that the deceased would appear to have died due to haemorrhage and
shock due to cut laceration over the throat involving the major blood vessel. After
completion of the investigation, charge sheet was filed.
3. In order to establish the accusations the prosecution examined 11 witnesses and
marked several exhibits and MOs. The accused did not adduce any oral or documentary
evidence. He however pleaded innocence.
4. After analyzing the evidence of eyewitnesses PWs2 and 3, and finding that they are
corroborated by the evidence of PWs 1 and 7, the appellant was found guilty.
5. In appeal, the appellant took the plea that PWs. 2 and 3 should not have been pleaded
as they are of tender age and were child witnesses. The High Court found that PWs. 2 and
3 were children of the deceased and the accused and there was no reason as to why they
would falsely implicate their father. The High Court also discarded the plea that they
were under the influence of PW1, their maternal grandfather. As noted above, the appeal
was dismissed.
6. In support of the appeal, learned counsel for the appellant submitted that reliance
should be placed on the evidence of PWs 2and3 and in any event offence under Section
302 IPC is not made out.
7

. Indian Evidence Act, 1872 (in short the 'Evidence Act') does not prescribe any 2001
AIR SCW 81

@page-SC1844
particular age as a determinative factor to treat a witness to be a competent one. On the
contrary, Section 118 of the Evidence Act envisages that all persons shall be competent to
testify, unless the Court considers that they are prevented from understanding the
questions put to them or from giving rational answers to these questions, because of
tender years, extreme old age, disease - whether of mind, or any other cause of the same
kind. A child of tender age can be allowed to testify if he has intellectual capacity to
understand questions and give rational answers thereto. This position was concisely
stated by Brewer, J. in Wheeler v. United States (159 U.S. 523). The evidence of a child
witness is not required to be rejected per se; but the Court as a rule of prudence considers
such evidence with close scrutiny and only on being convinced about the quality thereof
and reliability can record conviction, based thereon. (See Surya Narayana v. State of
Karnataka (2001 (1) Supreme 1).
8. In Dattu Ramrao Sakhare v. State of Maharashtra (1997 (5) SCC 341) it was held as
follows :
"A child witness if found competent to depose to the facts and reliable one such evidence
could be the basis of conviction. In other words even in the absence of oath the evidence
of a child witness can be considered under Section 118 of the Evidence Act provided that
such witness is able to understand the answers thereof. The evidence of a child witness
and credibility thereof would depend upon the circumstances of each case. The only
precaution which the Court should bear in mind while assessing the evidence of a child
witness is that the witness must be a reliable one and his/her demeanour must be like any
other competent witness and there is no likelihood of being tutored".
9. The decision on the question whether the child witness has sufficient intelligence
primarily rests with the trial Judge who notices his manners, his apparent possession or
lack of intelligence, and said Judge may resort to any examination which will tend to
disclose his capacity and intelligence as well as his understanding of the obligation of an
oath. The decision of the trial court may, however, be disturbed by the higher Court if
from what is preserved in the records, it is clear his conclusion was erroneous. This
precaution is necessary because child witnesses are amenable to tutoring and often live in
a world of make beliefs. Though it is an established principle that child witnesses are
dangerous witnesses as they are pliable and liable to be influenced easily, shaped and
moulded, but it is also an accepted norm that if after careful scrutiny of their evidence the
Court comes to the conclusion that there is an impress of truth in it, there is no obstacle in
the way of accepting the evidence of a child witness.
10. It is submitted that Section 302 IPC has no application as the assault was made during
the course of sudden quarrel and Exception 4 of Section 300 IPC applies.
11. The residuary plea relates to the applicability of Exception 4 of Section 300 IPC, as it
is contended that the incident took place in course of a sudden quarrel.
12. For bringing in its operation it has to be established that the act was committed
without premeditation, in a sudden fight in the heat of passion upon a sudden quarrel
without the offender having taken undue advantage and not having acted in a cruel or
unusual manner.
13. The Fourth Exception of Section 300 IPC covers acts done in a sudden fight. The said
exception deals with a case of prosecution not covered by the first exception, after which
its place would have been more appropriate. The exception is founded upon the same
principle, for in both there is absence of premeditation. But, while in the case of
Exception 1 there is total deprivation of self-control, in case of Exception 4, there is only
that heat of passion which clouds men's sober reason and urges them to deeds which they
would not otherwise do. There is provocation in Exception 4 as in Exception 1; but the
injury done is not the direct consequence of that provocation. In fact Exception 4 deals
with cases in which notwithstanding that a blow may have been struck, or some
provocation given in the origin of the dispute or in whatever way the quarrel may have
originated, yet the subsequent conduct of both parties puts them in respect of guilt upon
equal footing. A 'sudden fight' implies mutual provocation and blows on each side. The
homicide committed is then clearly not traceable to unilateral provocation, nor in such
cases could the whole blame be placed on one side. For if it were so, the Exception more
appropriately applicable would be Exception 1. There is no previous deliberation or
determination to fight. A fight suddenly takes
@page-SC1845
place, for which both parties are more or less to be blamed. It may be that one of them
starts it, but if the other had not aggravated it by his own conduct it would not have taken
the serious turn it did. There is then mutual provocation and aggravation, and it is
difficult to apportion the share of blame which attaches to each fighter.
The help of Exception 4 can be invoked if death is caused (a) without premeditation, (b)
in a sudden fight; (c) without the offender having taken undue advantage or acted in a
cruel or unusual manner; and (d) the fight must have been with the person killed. To bring
a case within Exception 4 all the ingredients mentioned in it must be found. It is to be
noted that the 'fight' occurring in Exception 4 to Section 300 IPC is not defined in the
IPC. It takes two to make a fight. Heat of passion requires that there must be no time for
the passions to cool down and in this case, the parties have worked themselves into a fury
on account of the verbal altercation in the beginning. A fight is a combat between two and
more persons whether with or without weapons. It is not possible to enunciate any
general rule as to what shall be deemed to be a sudden quarrel. It is a question of fact and
whether a quarrel is sudden or not must necessarily depend upon the proved facts of each
case. For the application of Exception 4, it is not sufficient to show that there was a
sudden quarrel and there was no premeditation. It must further be shown that the offender
has not taken undue advantage or acted in cruel or unusual manner. The expression
'undue advantage' as used in the provision means 'unfair advantage'.
14

. Where the offender takes undue advantage or has acted in a cruel or unusual manner, the
benefit of Exception 4 cannot be given to him. If the weapon used or the manner of attack
by the assailant is out of all proportion, that circumstance must be taken into
consideration to decide whether undue advantage has been taken. In Kikar Singh v. State
of Rajasthan (AIR 1993 SC 2426) it was held that if the accused used deadly weapons
against the unarmed man and struck a blow on the head it must be held that giving the
blows with the knowledge that they were likely to cause death, he had taken undue
advantage. 1993 AIR SCW 2734

15. Considering the factual scenario in the background of the position in law as
highlighted above, the inevitable conclusion is that the appropriate conviction would be
under Section 304 Part I IPC. Custodial sentence of 10 years would meet the ends of
justice. Appeal is allowed to that extent.
Order accordingly.
AIR 2008 SUPREME COURT 1845 "EMM Tex Synthetics, M/s. v. Om Parkash"
(From : Himachal Pradesh)
Coram : 2 TARUN CHATTERJEE AND HARJIT SINGH BEDI, JJ.
Civil Appeal No. 2088 of 2008 (arising out of SLP (C) No. 3301 of 2007), D/- 25 -3
-2008.
M/s. EMM Tex Synthetics v. Om Parkash and Anr.
Workmen's Compensation Act (8 of 1923), S.30 - WORKMEN'S COMPENSATION -
APPEAL - Appeal - Pre-deposit of amount payable under order appealed - Form of
certificate of deposit not specified - Production of proof of deposit of compensation
would be substantial compliance of S.30.
Decision of H. P. High Court, Reversed.
The appellant had deposited the amount payable under order which was appealed by way
of a Demand Draft duly received by the office of the Commissioner. The Demand Draft
was deposited along with a covering letter and the receipt was given on its copy.
Therefore in the absence of any specified form of certificate indicated in the Act or the
Rules, it cannot be said that the certificate produced by the appellant was not in
compliance with S. 30.
Decision of H. P. High Court, Reversed.
(Paras 4, 5)

Ravi Bakshi, Yash Pal Dhingra, for Appellant.


Judgement
JUDGMENT :- Leave granted.
2. In spite of due service on the respondents, no one has entered appearance. At the time
of hearing of this appeal also, no one has appeared before us to contest the appeal.
3. This appeal is directed against the Judgment and Order dated 5th of December, 2006
passed by a learned Judge (Chief Justice) of the High Court of Himachal Pradesh at
Simla in CMP (M) No. 821 of 2006, by which the High Court had dismissed the appeal
on a technical ground that the appeal was not maintainable under Section
@page-SC1846
30 (1)(a) of the Workmen's Compensation Act, 1923 (in short the "Act") as the
memorandum of appeal was not accompanied by a Certificate issued by the
Commissioner, Workmen's Compensation, to show that the appellant had deposited with
him the amount payable under the order which was appealed.
4. We have heard the learned counsel for the appellant and examined the relevant
provisions made under Section 30 of the Act and other materials on record. After a
careful examination, we are of the view that in the absence of any specified form of
Certificate indicated in the Act or the Rules, it cannot be said that the Certificate
produced by the appellant was not in compliance with Section 30 of the Act. It is an
admitted fact that the appellant had deposited the awarded amount by way of a Demand
Draft duly received by the office of the Commissioner. The Demand Draft was deposited
along with a covering letter and the receipt was given on its copy. The High Court had
refused to accept it as a Certificate under the Act and therefore, dismissed the appeal.
5. In our view, in the absence of any specified form of Certificate, a proof of deposit of
compensation would be a substantial compliance of Section 30 of the Act. Therefore, the
appellant could not be thrown out on such a technical ground.
6. That being the position, we set aside the Judgment of the High Court and request the
High Court to decide the appeal filed under Section 30 of the Act in accordance with law
and after giving hearing to the parties, dispose of the same after passing a reasoned order
within six months from the date of supply of a copy of this order.
7. For the reasons aforesaid, the impugned order is set aside. The appeal is allowed to the
extent indicated above. There will be no order as to costs.
Order accordingly.
AIR 2008 SUPREME COURT 1846 "Pravin v. State of M. P."
(From : Madhya Pradesh)*
Coram : 2 S. B. SINHA AND V. S. SIRPURKAR, JJ.
Criminal Appeal No. 546 of 2008 (arising out of SLP (Cri.) No. 3112 of 2007), D/- 25 -3
-2008.
Pravin v. State of M. P.
(A) Penal Code (45 of 1860), S.395, S.397 - DACOITY - EVIDENCE - Broad day light
dacoity in Bank - Identification of one accused by Bank Manager - Corroborated by other
witness, bank official - Would be acceptable in peculiar facts in spite of so-called defects
shown in holding identification - Alleged delay in holding T.I. Parade was not of any
significance - Sum of Rs. 40,000/-, Bank Slips and other Bank documents recovered from
accused - Presumption u/S.114 of Evidence Act can be raised - Further recovery of bag of
Bank official containing his private documents from accused was extremely significant -
In facts and circumstances finding that accused was guilty of offence of dacoity - Not
liable to be interfered with.
Evidence Act (1 of 1872), S.114. (Paras 14, 23, 26, 27, 28)
(B) Arms Act (54 of 1959), S.25, S.27 - FIRE ARMS - Unlicensed pistol - Used in
contravention of provisions of S.5 of the Act - Conviction of accused u/S.25, u/S.27 - No
interference. (Para 28)
Cases Referred : Chronological Paras
(2004) 13 SCC 150 (Ref.) 23
1998 AIR SCW 1103 : AIR 1998 SC 1251 : 1998 Cri LJ 1638 (Foll.) 26
AIR 1984 SC 207 : 1983 Cri LJ 1923 (Ref.) 25
AIR 1972 SC 2478 : 1972 Cri LJ 1704 (Foll.) 24
Ms. Madhurima Tatia and Indra Makwana, for Appellant; Govind Goel, C.D. Singh and
Ram Naresh Yadav, for Respondent.
* Cri. A. No. 113of2006, D/- 1-12-2006 (MP) (Indore Bench).
Judgement
V. S. SIRPURKAR, J. :- Leave granted.
2. Appellant herein one Praveen, son of Ramchander Sharma was convicted by the
Additional Sessions Judge for committing the offences under Section 395 read with
Sections 397 and 450 of the Indian Penal Code (for short "IPC"). Besides these offences,
he was also found guilty for committing offence under Sections 25(1-B)(a) and Section
27 of the Arms Act. Along with the present appellant one other accused Harish was also
convicted and sentenced for committing the same offences. Both of them filed separate
appeals before the High Court. However, both the appeals were dismissed by a common
judgment passed by the High Court. While Pravin, the present appellant
@page-SC1847
(original Accused No.1) has come up before us by way of the present appeal, the other
accused has not chosen to challenge his conviction. We, therefore, are left with the case
of Accused No. 1 alone. A few facts would be necessary.
3. A broad day-light dacoity took place on 8-9-2003 on Dena Bank situated at Bapat
Chauraha, Indore. According to the complaint lodged by Ashok Kumar Dubey (PW-1),
Branch Manager, Dena Bank, at about 12.20 in the noon, two unknown persons had
entered in his cabin and one of them took out revolver from his shirt and pointed towards
him, pushed him out of the cabin and took him to the hall. The other associates of the said
persons, who were present there, asked the other members of the staff and about 30-40
customers to stand in the hall with their hands raised upwards by pointing pistol towards
them. One of the associates stodd at the gate of the bank with pistol while other
associates covered the other persbhs in the hall. The fifth associate, who appeared to be
their leader, had come inside the bank and asked for the keys of the strong room. He took
one Mahender Chauhan towards safe by pointing pistol at him while the other persons
were asked to sit on the floor of the hall. After about 10-15 minutes, two accused persons
had come out with the bags filled with notes from the safe. They had snatched one bag
from Sh. S. M. Dholey, staff member of the bank and stuffed it with the bundles of notes
from cash counter. The accused then directed all the persons present there to move to the
gallery of toilet and shut them in a room. They threatened that if anyone used phone, then
they would shoot such person. Before that they had collected the mobile phones of all the
customers which they threw outside the bank. The mobile phones of two of the customers
were, however, not found. The accused persons put lock on the gate of the bank and ran
away. One customer, namely, Ashish Goyal broke the window panes towards the road and
attracted the attention of the people. He only had given information to the Police Control
Room on Telephone No. 100. The total amount looted was about Rs.13,95,720/-.
4. After committing the dacoity, the accused persons ran away towards Meghdoot Garden
in a Commander Jeep of grey or light blue colour and one Hero Honda Motorcycle. The
black bag of Shri S. M. Dholey, which was taken away by the dacoits was also described
to be made of parachute cloth containing three bank cheques of Rs. 10,000/-each of
Tehsildar Nazul, photocopy of valuation report of Plot of Siddhipuram, auction forms of
Tehsildar Nazul, statement of 2003 of Navlakha Branch Bank, driving licence of Shri
Dholey and 10-11 ball pens. There were number of persons who saw this incident,
namely, Surendra Kumar, Mahendra Chauhan, Ajay Tandon, S. M. Dholey, Deepak, M.L.
Manharey, Sangeeta Silawat of bank staff and Ashish Goyal, Prahlad Gotwal, Ujjwal,
Rahul, Sushil Verma, Hargovind Singh, etc., who were the visitors to the bank. All of
them claimed that they would be able to identify the dacoits. The descriptions of the
accused persons were also given. The person who had entered the cabin of the Branch
Manager and pushed him was about 25-30 years, height about 5 feet 6 inches. He had
wheatish colour complexion and had unshaven face with small mustaches with Z-black
hairs. He was wearing ordinary black goggles, cream colour pant and shirt. The second
accused who was also of the same average height, aged about 25 years, but was a clean
shaved person. The description of the other dacoits were also given. The person who
appeared to be the leader of the accused persons was about 26 years old. His description
was also given. It was claimed that most of the looted bundles of the notes were bearing
seal of S.S.C. and slips of Dena Bank. It was claimed that the accused persons could be
identified on being seen.
5. The report given by Ashok Kumar Dubey was recorded by SHO Baldevsingh Thakur
(PW-52). The offence was registered under Sections 395 and 397 IPC and the
investigation started. Observation Memorandum was drawn. During the investigation, the
Branch Manager Shri Ashok Kumar Dubey (PW-1)produced the details of the looted
notes, they were, 13 notes of Rs.1,000/- denomination, 264 notes of Rs.500/-
denomination, 5108 notes of Rs.100/- denomination, 3045 notes of Rs.50/- denomination,
1347 notes of Rs.20/ - denomination and 56083 notes of Rs. 10/-denomination. The
statements of witnesses were recorded.
6. The present accused came to be arrested on 26-9-2003, i.e., barely within 18 days of
the incident. Accused Harish was arrested on 8-10-2003. On the basis of the
@page-SC1848
discovery statement made by accused Praveen, the registration documents of the
Motorcycle, copy of the Dainik Bhaskar Newspaper which had published the news
regarding the dacoity, one letter regarding the sale of Jeep No.MP-09-N-5946 by Atul
Parmar to Praveen Sharma and another letter regarding sale of jeep and 18 other items
were seized. Similarly as per Seizure Memo (Exhibit P-18) one country made Katta of.
12 bore, 4 cartridges, 40 bundles of Rs.10/-denomination notes, totalling Rs.40,000/-
which were bearing the slips of Dena Bank and seal of S.A.C were also seized. One Slaty
Colour Mahendra Jeep without number was also seized from the accused. Similarly 280
slips of Dena Bank and other banks used on bundles of notes, 38 torn slips of S.M.S, 144
full slips of S.M.S., 159 plastic paper for tying bundles, 58 rubber rings, 160 thin rope of
jute, 34 ordinary jute rope, 2 number plate of jeep MP-09-N-5945 and one broken lock
were also recovered from the accused. The Motorcycle of Hero Honda make bearing
registration No.MP-04-AN-7916 was also seized. One black Rexene bag containing
driving licence of Shri S. M. Dholey in a polythene bag, report of bank loan of Navlakha
Dena Bank of Shri Dholey were recovered from accused Harish Kumar Singh.
7. A Test Identification Parade was held in respect of both the accused persons wherein
they were got identified by Prosecution Witnesses, they being Daman Singh (PW-5),
Surendra Kumar (PW-4), Mahendra Chauhan (PW-10) and Ashok Kumar Dubey (PW-1).
According to the prosecution Darshan Singh (PW-5) identified both the accused persons
correctly. Ashok Kumar Dubey (PW-1) also had identified both the accused persons
correctly. Mahendra Chauhan (PW-10) and Surendra Kumar (PW-4) had identified
accused Harish correctly but they had not identified accused Praveen correctly. The
identification proceedings about bag were also conducted and the bag was got test
identified. Ultimately, on the basis of the investigation, the charge-sheet came to be filed
for committing offences under Sections 395, 397, 450 IPC and Sections 25 and 27 of
Arms Act. The charge-sheet also recorded that the other accused persons, namely, Anand,
son of Mohanlal, Shashikant and two other accused persons were absconding and the
investigation was continuing against them. One Shashikant, son of Dadnath was also
involved, however, during the investigation it came to be reported that he had died in a
police encounter. Charges were framed against the accused persons. They denied their
involvement in the commission of crime and claimed false implication. Defence of
Harish was that on the day of incident he was present in the Block Head Office of
Faizabad and on that day he had purchased a truck for which documents have been
prepared and that the police had falsely implicated him. He also pointed out that the
police had shown his photographs to the witnesses in the Test Identification Parade. The
defence of accused Praveen was that since the police could not apprehend the actual
accused persons, he was being falsely implicated in the case.
8. As many as about 55 witnesses came to be examined, including the eye-witnesses and
the bank staff witnesses. The Sessions Judge convicted the two accused persons. On the
appeal having failed before the High Court, the present appellant is before us by way of
this appeal.
9. Learned counsel appearing on behalf of the appellant very vehemently contended
before us that the identification parade in respect of this accused was a farce as the
photographs of both the accused persons, namely, Praveen and Harish were already
shown to the witnesses which was clear from the evidence before the court. It was further
urged that if the identification itself failed, then there would hardly be any evidence left
against the accused. It is also urged that the discoveries of the so-called stolen property
was also farcical and insignificant. Learned counsel also urged that the Investigating
Agency somehow wanted to do the face saving on account of their failure to catch the
real culprits in spite of the fact that the dacoity had taken place in broad day-light.
Ultimately, even the convictions under Sections 25 and 27 of the Arms Act came to be
assailed on the ground that such conviction could not have been ordered in law. Lastly, by
way of an alternative contention, learned counsel pointed out that the sentence was too
harsh as compared to the offence committed.
10. As against this, the learned counsel appearing on behalf of the prosecution supported
the judgments of the courts below and pointed out that both the courts below had, on the
basis of the evidence led before
@page-SC1849
them, come to the conclusion that this appellant was identified. It was pointed out that the
witnesses were the bank officers and they were with the dacoits for substantial time. The
witnesses, therefore, had the opportunity to watch the accused persons closely and as
such the identification of these accused persons in the court, at the instance of the eye-
witnesses, was also no less significant. It is then pointed out that the discoveries made
included the bag of witness Shri S. M. Dholey (PW-6) along with the documents therein
and as such it was clear that the said discovery established an unassailable nexus of the
accused with the crime. It was further pointed out that even the vehicles which were used
for committing the crime were seized and identified by the witnesses. Lastly it was
contended that since both the courts below had concurrently found the accused guilty on
the basis of appreciation of evidence and since no significant error was pointed out, this
Court should not interfere in its jurisdiction under Article 136 of the Constitution.
11. It cannot be disputed that the bank was looted in the broad day-light by the persons
who were or could be termed to be daredevils. When we see the evidence of Ashok
Kumar Dubey (PW-1), Branch Manager of the Dena Bank along with the evidence of
Surendra Kumar (PW-4), Daman Singh (PW-5), S. M. Dholey (PW-6) and Mahendra
Chauhan (PW-10), all of whom were the bank employees as also Deepak Kumar Kharte
(PW7) and San tosh (PW-11) who were the bank customers as also Ajay Kumar Tandon
(PW-21), Ashish Goyal (PW-22), Deepak Sompurkar (PW-23), Suresh (PW-24), Nathulal
(PW-25), Sangeeta Silavat (PW-27), Govind Singh Dodiya (PW-29), Shefali (PW-30),
Prahlad Kumar Gothwal (PW-44), the common thing in their evidence is that on that day
about 5 persons entered the bank and committed dacoity. They were armed with weapons
and collected all the persons in the hall, handed out threats and calmly collected keys
from the bank staff and took away currency notes from the bank chest. The High Court
has recorded a finding that nothing significant has come out in respect of this aspect of
the dacoity.
12. The evidence of Ashok Kumar Dubey (PW-1) would be the most important as he had
graphically described as to how the dacoity took place and how he was taken out by the
two persons. The Trial as well as the Appellate Courts have rightly relied upon this
witness and accepted his evidence. This witness had further stated that it was almost
within 10 minutes after the dacoits left the bank that the police reached there. Learned
counsel had commented that this witness, though had taken part in the identification
parade, did not in his substantive evidence, refer to that fact and, therefore, his
identification, in the court, for the first time, remained without any corroboration. There
is no significant cross-examination of this witness at all as regards the evidence and more
particularly his identification of the accused in the court. He had very specifically
identified the appellant herein. Very significantly no question has been put to this witness.
It is not suggested as if the accused had covered their faces. There is no challenge also to
the story that the dacoits had pointed revolver at him. In the absence of any substantial
cross-examination, we do not think that the Trial Court and the High Court were in error
in accepting the evidence of this witness particularly about his identification. The witness
had full opportunity in broad day-light to be with the accused and the incident itself was
so significant that it would undoubtedly make a dent on his memory. He was after-all an
educated bank officer holding a responsible position of a Branch Manager. Since his
evidence about knowing the accused-appellant was not at all challenged, the courts below
were right in accepting the evidence.
13. Surendra Kumar (PW-4), has corroborated the evidence of Ashok Kumar Dubey (PW-
1) and there is nothing contradictory in his evidence. Surendra Kumar is also a bank
employee working in the same branch. He has also supported the version that the dacoits
having snatched the bag from a lady customer as also the bag of S. M. Dholey (PW-6).
This witness was called in the jail for identification and he claimed that he had correctly
identified the accused persons who were present in the court. This witness had also
reiterated, in his cross-examination, about the language which was being spoken by the
dacoits. He specifically denied that the accused persons, who were present in the court,
were shown to him earlier. His following statement was taken as an exception by the
Defence counsel:
"Similar photographs were shown to other persons which were shown to me."
From this the learned counsel presumed
@page-SC1850
that the photographs of the appellant were shown to this witness. We do not think such an
inference can be drawn from the above mentioned sentence. This witness, in the very
next paragraph, had, however, clarified that those persons whom he had identified were
not the persons who were apprehended by the police. He has specifically stated about the
identification parade where cashier Chauhan, C.S. Batham, Shri Ashok Dubey and other
persons were called. He, however, under the stress of cross-examination admitted that the
accused persons were shown to him in the police station. Since this witness had not
identified the appellant Pravin, though the High Court relied on him, we do not attach any
importance to the evidence of this witness.
14. Daman Singh (PW-5) who was also the bank employee, graphically described the
whole dacoity. He also claimed that he had correctly identified the appellant and the other
accused Harish. Some insignificant omissions have been brought out in his evidence
which do not damage the evidentiary value of his evidence at all. He also reiterated in his
cross-examination that he was not shown any photographs of the accused nor was any
accused shown to him in the Police Station. As regards the identification parade he was
specifically cross-examined and he refuted all the suggestions. Learned counsel, however,
relied on one sentence to the effect that :
"Yeh Sahi hai ki jeep mein un vyaktiyo ke photo dikhaye gaye the, jo pakde gaye the aur
unki pehchan karni thi"
"The English Translation of the above sentence is : It is correct that in the jeep
photographs of those persons were shown who were apprehended and their identification
was to be conducted."
From this the learned counsel suggested that this witness was shown the photographs and,
therefore, his evidence would be of no consequence. We cannot read this sentence in
isolation. Prior to this the witness had stated in the following fashion :
"In the way in jeep policemen told us that we will have to identify the persons those who
were involved in the commission of occurrence amongst the apprehended persons.
Policemen had taken the complete file of the case along with him to the prison. I had not
seen that file. Therefore, I cannot tell as to whether it was containing the details of the
apprehended persons or not." When we see the earlier part of the evidence, it is clear that
this so-called admission has been inadvertently given. This is apart from the fact that
there is nothing to suggest that he was shown the photographs of the accused appellant.
We, therefore, ignore this so-called admission as has been done by Trial and Appellate
Courts. He has specifically pointed out about his identification in the jail. Very
significantly this witness was suggested that there was no identification parade held at all
in the jail. Even if we ignore the test identification parade, there is nothing suggested to
him in his cross-examination to challenge his identification in the court. We are quite
alive to the fact that identification, for the first time in the court, is inconsequential.
However, we cannot forget the fact that in this case all these witnesses were the bank
employees who had undergone a traumatic experience of a broad day-light dacoity. They
were with the dacoits for substantial time. The dacoits had also not covered their faces.
When We see the admission closely regarding the photographs, there is nothing to
suggest that the photographs of Pravin (the present appellant) was shown to this witness.
We, therefore, have to ignore the so-called admission. He also does not state as to how
many photographs were shown to him and whether he had identified those accused
persons whose photographs were shown to him. It may be that some photographs may
have been shown regarding some arrested persons but that by itself does not affect his
evidence particularly when it is not put to him specifically that he had seen the
photographs of this appellant and his identification was on the basis of those photographs.
The Trial Court as well as the High Court have relied on this witness and we do not find
anything wrong, more particularly because he has stoutly denied the suggestions
regarding the accused persons being shown to him earlier when they were in the custody.
15. The other witness on whose evidence the reliance has been placed by the Trial Court
as well as the High Court is Shri S. M. Dholey (PW-6) and Mahendra Chauhan (PW-10).
Shri Dholey (PW-6) reiterated about the dacoity and claimed that a pistol was brandished
on him by one of the accused persons. He thereafter gave a graphic description as to what
transpired. He then
@page-SC1851
asserted that when the dacoits fell short of the bags to carry the looted booty, they took
his bag also. He described his bag to be black coloured bag made of parachute cloth in
which his driving licence, one pyramid card, statement about Dena Bank Navlakha and
documents regarding the attachment from the Nazul Tehsildar Shri Rajnish Srivastava's
court. It also had the insurance policy of his vehicle, one and a half dozens of pens, etc.
His evidence was of no consequence as he has specifically stated that the present
appellant was not amongst the five dacoits. However, one of them resembled accused
Harish. In his cross-examination by the prosecution this witness, however, identified his
bag. He also admitted that he had identified his bag when it was put for test identification.
He also reiterated that he was using that bag for the last 7 to 8 years. We would return to
this evidence a little later.
16. Last ,of the identifying witness is Mahendra Chauhan (PW-10). He first asserted that
he knows the two accused persons present in the court. He thereafter gave a graphic
description of the dacoity. He also stated about the bag being brought from a customer
and the bag of the staff having been taken by the dacoits and the said bags being filled
with the currency notes. He also stated about Daman Singh (PW-5) giving the keys.
Lastly he asserted that in the test identification parade about 10 persons were present and
out of whom he identified Harish and Pravin. He, however, admitted that he had wrongly
identified Pravin as per Exhibit P-22. We would, therefore, chose to ignore his evidence
since he had wrongly identified the appellant in the identification parade.
17. The other evidence is that of Shiv Sagar (PW-14). He was the witness on the arrest of
the appellant. He reiterates that in his presence Pravin spoke about the jeep, the currency
notes and the slips attached to the currency bundles. The witness asserts that the accused
had agreed to show the jeep which was behind the Chappan Dukan complex. He then
reiterates that the police seized the jeep, the bundle of notes and the slips on the bundles
of notes. He proved his signatures on Memorandum (Exhibit P-23) and the subsequent
panchanama (Exhibit P-24). He asserted that the police had seized Rs.40,000/- at the
instance of Pravin Sharma but from where, he did not know. He also spoke about the
seizure of 12 bore pistol and a black bag. He, accepted his signatures on Exhibits P-21, P-
17, P-18 and P-19. The Public Prosecutor was permitted to put the questions in the nature
of cross-examination wherein he had accepted that Pravin Sharma had spoken about the
Ambassador Car MP-9W-552. In the cross-examination by the accused, he rejected the
suggestion that the Panchanama were already written on which he was asked to put his
signatures.
18. The other relevant witnesses is Raj Narain Tandon (PW-21) who deposed about the
dacoity but did not identify the appellant. Similar is the case of Ashish Goyal (PW-22).
He had gone to the bank along with his friend on that day. However, he also refused to
identify the accused. The next witness is Deepak Sompurkar (PW-23) who was a clerk in
the bank. His evidence is of no consequence as he has not identified the appellant.
Similar is the story of Suresh, son of Motilal (PW-24) and Nathulal, son of Kaluram (PW-
25). Arvind Kumar (PW-26) has also refused to identify the accused. Again the evidence
of Sangeeta Silawat (PW-27) is also of no use since she has also not identified the
accused. She has, however, reiterated that the dacoits took the bags from the customers
and the staff. The evidence of Govind Singh Dodiya (PW-29) is also of no consequence
as he has refused to identify the accused even in the court. Shefali (PW-30) is a child
witness. At that time her age was 13 years. Though she has spoken about the dacoity and
the other details regarding the dacoity but nothing against the appellant. Manish
Chaturvedi (PW-33) who was the landlord of appellant Pravin was also examined. The
other witnesses like Ajay Lashkari (PW-34), Ramu Yadav (PW-35), Deepak Jain (PW-
36), Alok Namdev (PW-37), Atul Karamsingh Parmar (PW-38) would be of no
consequence since all these witnesses have not identified the appellant at all. The only
other witness is Sumit Sankala (PW-45) who is an auto dealer and who spoke about the
purchase of a vehicle by two persons. He reiterated that the purchase was made by one
Pravin Sharma and one other person. He reiterated that Pravin Sharma purchased the
vehicle MP-09-W-5521 whose registered owner was Usmanbhai. The other witnesses like
Gurdial Singh (PW-46), Jai Prakash Yadav (PW-47) are hostile witnesses. Even the
evidence of Narmada Bai (PW-51) is of no use to the prosecution.
@page-SC1852
19. The most significant evidence is that of Baldev Singh Thakur (PW-52) who was the
Investigating Officer. He deposed about the arrest of accused Pravin on 26-9-2003. He
then contended that in his presence Pravin Sharma had disclosed that out of Rs. 14 lakhs,
Rs. 40,000/- and one 12 bore Katta was hidden by him in an iron box. He also disclosed
the place where the concerned jeep was parked. He thus proved Exhibit P-23.
Accordingly he reiterated that he had taken Pravin Kumar Sharma to his residence at
32/3, Pardesipura where he recovered articles 1 to 18. He also deposed about the seizure
of a jeep. He also deposed about Exhibit P-20 which was a temporary residence of one
accused Annu alias Anand. He claimed that from that residence which consisted of only
one room, he seized 38 slips and the other articles like rubber rings, plastic strings, etc.
He was cross-examined in detail on the discoveries and more particularly on Exhibits P-
23 and P-24 and a suggestion was given to him specifically that Pravin, the appellant had
not discovered anything. He admitted in his cross-examination that in Exhibit P-23
memorandum it is not written as to from which place accused Pravin got the pistol and
the amount. That would be of no consequence since there is no cross-examination on the
factum of recovery of gun.
20. The other officer who investigated the case is Irfan (PW-53) who had examined the
said pistol. Lastly the prosecution examined Hukum Singh Yadav (PW-54). His evidence
is not of much significance in so far as the present accused is concerned. The last witness
is Nayab Tehsildar Chand Mohd. Khan (PW-55) who held the test identification parade.
He reiterated that Surendra Kumar (PW-4) had wrongly identified the accused while even
Mahendra Chauhan (PW-10) had not correctly identified the accused. He, however,
reiterated that Daman Singh (PW-5) had correctly identified both the accused. He also
reiterated that Ashok Kumar Dubey (PW-1) had correctly identified the accused. In his
cross examination it came out that the other persons who were asked to stand for the
identification along with accused persons, nobody was 27 years old. He also admitted
that he had not mentioned in the Panchanama that the persons who stood for
identification had to put on the blankets, though he asserted that the said persons had
covered their whole body excepting their faces with the blankets. It is on the basis of the
above said evidence that the accused-appellant came to be convicted.
21. We have deliberately taken stock of the whole evidence particularly because it was
very vehemently asserted by the learned counsel for the Defence that there was no proper
appreciation of evidence either by the Trial Court or by the High Court. We do not think
that such a sweeping statement can be made about the judgments of the High Court and
the Trial Court. We have considered the judgments very carefully and find that the High
Court as well as the Trial Court have gone into the intricacies of the evidence. We are,
therefore, not impressed at all by this contention on the part of the Defence.
22. The main stay of the Defence was that the investigation was not fair in this case
inasmuch as the police had shown the accused persons to the identifying witnesses. We
have already given our reasons as to why we would be prepared to accept the evidence of
Ashok Kumar Dubey (PW-1). It is true that in his substantive evidence he did not speak
about his identifying the accused appellant in the identification parade but we cannot
forget the fact that there is a clear cut evidence of the Magistrate who conducted the
Parade confirming such identification. There is practically no cross-examination of this
witness. We are particularly impressed by the recovery of Rs.40,000/- from the
possession of the accused-appellant which recovery has been accepted by the Trial and
the Appellate Courts. The recovery of the slips as also of the gun which was brandished
against the witness is also no less significant. There is no explanation given by the
accused as to how a huge sum of Rs. 40,000/- and the Dena Bank slips and the other bank
documents could be recovered from him.
23. It was feebly argued before us that there was delay in holding the identification
parade. In the peculiar facts and circumstances of this case we do not think this delay was
of any significance. We say this as the other accused persons are still at large and,
therefore, test identification parade could not have been conducted in respect of only
some of the accused. Again the question of delay was never raised by way of cross-
examination and no explanation was called for from the investigating officer. Had the
question been asked, the witness would
@page-SC1853
have answered the same. Similar view has been taken by this Court in Pramod Mandal v.
State of Bihar [(2004) 13 SCC 150] where the Court had found that there is no fixed rule
as regards the period within which the test identification parade must be held. In this case
this Court observed that :
"If there is any delay, unless the reasons for the delay are put by way of questions in the
cross-examination to the investigating officer, the so-called delay was of no
consequences."
This Court in Paragraphs 23 specifically held that :
"Where the witnesses have ample opportunity to watch the dacoits and their physical
features, etc., their evidence of the identification is strengthened."
Therefore, if there was any delay in holding the identification parade, it is insignificant
according to us in the peculiar facts of the present case.
24

. In Bharat Singh v. State of U.P. [(1973) 3 SCC 896] a Three Judge Bench of this Court
had specifically observed in para 6 : AIR 1972 SC 2478

"Although it is desirable to hold identification parade at the earliest opportunity, where


there is a delay of three months in holding the identification parade, it is a duty of the
accused to cross-examine the police officer who conducted the investigation and the
Magistrate who held the parade if the accused wishes to take advantage out of such undue
delay."
We respectfully follow the above decision.
25

. In State of Rajasthan v. Sukhpal Singh and Ors. [(1983) 1 SCC 393] this court ignored
the wrong identification particularly holding that : AIR 1984 SC 207

"Since the part of the loot as well as the weapons used in the dacoity were recovered and
since the testimony of the bank employees were found reliable, they being independent
witnesses, some irregularities in the identification parade were liable to be ignored."
This was also a case of dacoity on the bank and the bank witnesses were disbelieved. This
Court observed :
"Witnesses who had no axe to grind and had no personal motive to implicate the accused
on a false charge, have been disbelieved on feeble considerations. And the re-covery of
incriminating articles has been bypassed and disbelieved by characterizing it as unnatural
and incredible. Different crimes have different patterns and the offenders improvise their
strategy according to the exigencies of the occasion."
This Court also observed similarly about the seizure of Ambassador Car, the chits found
with the bundles of currency bearing the name of the bank and the box containing certain
documents belonging to the bank. Very significantly the situation is identical as in the
present case where also the defence had taken the theory of planting after the arrest of the
dacoits as in the present case. We wonder as to how and wherefrom the police would
bring a huge sum of Rs.40,000/- for being planted. It is for this reason that we have
chosen to accept the evidence of Ashok Kumar Dubay (PW-1), Surendra Kumar (PW-4)
and Daman Singh (PW-5).
26

. We cannot again forget that the stolen property was recovered from the possession of the
appellant. We would, therefore, be justified in using the presumption raised by Section
114 of the Evidence Act as was done in the case of Ronny v. State of Maharashtra [(1998)
3 SCC 625]. 1998 AIR SCW 1103
27. There is also supporting and corroborating evidence of the recovery of the other
materials like the bag of S. M. Dholey (PW-6) which was recovered during the
investigation. This discovery of the bag is also extremely significant because there was
no reason for this bag which contained the private documents of Shri Dholey to be
recovered from the accused. That also lends credence to the fairness of the investigation
by the police. It will not be possible for us, in our jurisdiction under Article 136 of the
Constitution, to reappreciate the evidence and we will have to only see as to whether Trial
Court and the Appellate Court were correct in reaching the conclusions that they have
recorded. We again reiterate that the identification in the peculiar facts of this case by
Ashok Kumar Dubey and other witnesses would be acceptable in spite of the so-called
defects shown by the Defence in holding the identification. Considering the overall
circumstances in the peculiar facts and circumstances of this case we hold the appellant
guilty of committing the offence of dacoity.
28. There is also no explanation about
@page-SC1854
the gun as well as the bullets which were examined by Irfan (PW-53). The gun was
obviously an unlicenced pistol and, in our opinion, it was obviously used in contravention
of Section 5 of the Arms Act. The conviction of the accused-appellant, under Sections 25
and 27 of the Arms Act was also correctly recorded by the courts below.
29. In the above circumstances we do not find any merits in this appeal and the same is
accordingly dismissed.
Appeal dismissed.
AIR 2008 SUPREME COURT 1854 "Bavisetti Kameshwara Rao v. State of A. P."
(From : Andhra Pradesh)*
Coram : 2 S. B. SINHA AND V. S. SIRPURKAR, JJ.
Criminal Appeal No, 547 of 2008 (arising out of SLP (Cri.) No. 6903 of 2007), D/- 25 -3
-2008.
Bavisetti Kameshwara Rao @ Babal v. State of A.P.
(A) Penal Code (45 of 1860), S.300 - MURDER - Murder - Intention to cause bodily
injury sufficient in ordinary course to cause death - Accused a motor mechanic - Verbal
altercation between accused and deceased - Accused thereupon inflicting injury on
abdomen of deceased with screw driver - Injury 12 cms. deep damaging liver and spleen -
Death caused almost instantaneously - Accused could be said to have intended to cause
injury sufficient to cause death - Use of screw driver, a common tool of mechanic, cannot
be said to be innocuous - Accused liable to be convicted for murder. (Paras 10, 11,
12)
(B) Penal Code (45 of 1860), S.300 - MURDER - Murder - Solitary injury - Not by itself
sufficient to decide nature of offence - Nature of offence would depend on other attendant
circumstances.(Paras 12)
(C) Penal Code (45 of 1860), S.300 - MURDER - Murder - Sudden fight - Verbal
altercation between unarmed deceased and accused - Accused thereupon plunging screw
driver in abdomen of deceased - Accused using such savage force so as to cause 12 cm
deep injury - Accused chasing deceased even after incident - Evidence showing that there
were previous altercation and accused were seething with anger to take revenge - Plea
that incident was sudden and without pre meditation - Not tenable. (Paras 14, 15)
Cases Referred : Chronological Paras
(1995) 1 SCC 326 (Rel. on) 13
AIR 1984 SC 759 : 1984 Cri LJ 478 (Ref.) 13
AIR 1981 SC 1552 : 1981 Cri LJ 1136 (Ref.) 13
AIR 1958 SC 465 (Ref.) 13
G.V.R. Choudary, K. Shivraj Choudhuri, for Appellant; Mrs. D. Bharathi Reddy, for
Respondent.
* Cri. Appeal No. 567 of 2005, D/- 26-2-2007 (AP).
Judgement
1. V. S. SIRPURKAR, J. :- Leave granted.
2. The appellant, Bavisetti Kameswara Rao original accused No. 1 (A-1) has approached
this Court challenging the judgment of the Andhra Pradesh High Court, confirming his
conviction (accused No. 1) for an offence under Section 302 IPC.
3. Initially, as many as eight persons were tried by the Additional Sessions Judge (Fast
Track Court) for various offences under Sections 147, 148 and 302 read with Section 149
etc. The allegation is that all the accused persons alongwith some others formed
themselves into an unlawful assembly and in pursuance of the common object of that
assembly, they committed murder of one Samudrala Pandu Rangarao @ Rayalam
Rangadu. According to the prosecution, on 28th July 2007, at about 11 P.M., the deceased
alongwith his friend Tamarapalli Subba Rao had visited mini lorry supply office of the
first accused and he wanted to consume alcohol there. The first accused refused to let him
have the alcohol there and on this, there was a wordy altercation in between the first
accused and the deceased, and they also had the physical altercation with each other and
in this melee, the first accused has sustained a wound on his hand. They were pacified by
the people gathered there and at that juncture, both the first accused as well as the
deceased sworn towards each other's life. The prosecution alleged that in pursuance of
this, the first accused had a discussion with the second accused and with the other seven
accused persons and hatched up a plan to do away the deceased and were waiting for an
opportunity. On 30th July 2000, all the accused formed into an unlawful assembly in
@page-SC1855
the mini lorry office of the first accused at about 10 P.M. in pursuance of their pre-plan.
The first accused was armed with the screw driver and the second accused had a pen
knife. At around 10.30 P.M. on that day, the deceased came there on his Yamaha Motor
cycle bearing registration No. AP-37 A-7569 and on seeing the deceased, A-1 and A-2
abused him filthily. When the deceased questioned their behaviour, A-1 and A-2 in
pursuance of their intention, attacked the deceased with their weapons, wherein, the first
accused stabbed the deceased below the left side chest with screw driver causing him a
deep bleeding injury. A-2 also attacked the deceased with his pen knife, but the deceased
tried to protect himself. However, the deceased suffered two incised wounds on his palm.
4. It was the further case of the prosecution that the other accused persons also attacked
the deceased and assaulted him with hands. The deceased somehow or the other escaped
when he was given a hot chase by all the accused. The deceased straightaway went to
Bhimavaram II Town Police Station and reported the matter to the sub-inspector of police
on duty, Sh. K.V.N.Vara Prasad, LW.23. Since the deceased required immediate medical
help, he was tried to be taken to Government Hospital, Bhimavaram. However, in the
way itself, the deceased breathed his last. Accordingly, an offence under Section 302 read
with Section 34 was recorded vide Cr. No. 97/2000 by the LW.23. The investigations
started and the accused came to be rounded up and on completion of the investigations, a
charge sheet was filed against as many as eight accused persons, who were tried before
the Additional Sessions Judge (Fast Track Court), Bhimavaram. The Additional Sessions
Judge at Bhimavaram, however, convicted only A-1 and A-2 and convicted both of them
for the offence under Section 302 while acquitting the rest of the accused persons. Both
of them were sentenced to suffer rigorous imprisonment of life and also to pay fine of
Rs.4,000/- in default, to suffer a further imprisonment for one year.
5. On appeal, however, the conviction of appellant (herein) was confirmed for an offence
under Section 302 but A-2 was acquitted of that offence and was convicted for an offence
under Section 324 and his sentence was brought down to the rigorous imprisonment for
two years. It is this appellate judgment, which has been challenged before us. This Court,
however, on 15th January 2008 issued a notice confined to the question of sentence. As
the appeal was delayed, a nptice was also sent on delay.
6. Considering the circumstances under which the appeal was filed, we condone the
delay.
7. Insofar as the first accused-appellant Bavisetti Kameswara Rao is concerned, the
learned counsel urged before us that this was a case of single injury that too, the weapon
used was a screw driver which was in the regular use of the accused as a tool, the
accused-appellant being a motor mechanic. It was but natural that he would use the said
screw driver in the regular course of his occupation and since he had not used any other
weapon, it could not be said that his intention was to cause death of the deceased or also
to cause such bodily injury as would be sufficient to cause death of the deceased. The
learned counsel for the accused submitted that it was only a single injury and, therefore,
even if in the knowledge of the accused that such injury was likely to cause the death of
the deceased, the offence at the most would be under Section 304 Part II of the IPC. As
an alternative argument, the learned counsel contended that at the most that this was a
sudden quarrel and the altercation took without a pre-plan, as such, the offence at the
most could have been under Section 304 Part I and, therefore, the High Court and the trial
Court were not justified in convicting the accused for an offence under Section 302 and
sentencing him to suffer rigorous imprisonment for life.
8. We have given very deep consideration to the contentions raised. It is found from the
medical evidence that the deceased suffered the following injuries at the hand of the
accused. The injuries have been proved by PW. 15 D. Varahalaraju, who was himself a
Civil Surgeon. He had conducted the postmortem and examination on the dead body of
the deceased and found the following injuries:
1. An incised wound on lateral aspect of left palm 2cm x ½ cm x 2 cm, black in colour.
2. An incised wound above wound No. 1 on lateral aspect of left palm, 2 cm x ½ cm x 2
cm, black in colour.
3. An incised wound on epigastria region of abdomen just below xiphi sternum 2 cm
@page-SC1856
x 1cm x 12cm (length, breadth, depth respectively) .
4. An abrasion on from of right upper arm above elbow joint 5 x 4 cm, black in colour.
5. An abrasion on medical aspect of left leg, 2cm x ½ cm, black in colour.
6. Another abrasion on front of left leg, 1cm x ½ cm, black in colour.
Internal Examination :
Head : Brain pale, neck, hyoid bone intact, thyroid cartilage-NAD. Thorax: Lungs-both
lungs pale. Heart: chambers empty, pale. Abdomen: liver- an incised wound on left lobe
of liver 3cm x 2cm x 3 cm pale.
Spleen : an incised wound on medial aspect of spleen, 3cm x 2cm x 2cm pale.
Kidneys : Both kidneys pale.
Stomach: empty.
Bladder: above 200 ml of urine present in bladder, above 900 ml of fluid blood present in
abdominal cavity.
9. According to the Doctor, the postmortem was done on 31st July 2000 and was
completed on that day at 3.15 P.M. He gave opinion that the deceased had died of
hemorrhagic shock due to injuries to liver and spleen. A glance at these injuries would
suggest that it was injury No. 3 which was fatal injury and it was in the region of
abdomen which was a vital part of the body of the deceased. The injury was 1cm x 1cm x
12cm (length, breadth and depth respectively). In the internal examination, it was found
that there was an incised wound on liver as well as spleen. The incised wound on liver
was 3cm x 2cm x 3cm in measurement, while on the spleen, the measure of the injury
was 3cm x 2cm x 2cm. There is hardly any cross-examination of this Doctor excepting
that injuries No. 5 and 6 could be possible by a fall, however, the seriousness of injury
No. 3 was not and could not be questioned in the cross-examination. We have, therefore,
no doubt that this injury with depth of 12 cm which was sufficient to cause the death. We
also cannot ignore that the screw driver used had the sharp end and the sufficient length
to cause the injury having the depth of 12cm. It was, therefore, clear that the eye-
witnesses have attributed this injury to the first accused-appellant and there could be no
other intention, excepting to cause death.
10. When the screw driver was plunged into the vital part of the body of the deceased, it
cut his liver and spleen. Therefore, this was a case where the act was done with intention
of causing bodily injury and the body injury intended to be inflicted is sufficient in the
ordinary course of nature to cause death, covered by "Thirdly" of Section 300 of "Indian
Penal Code". The act of the accused-appellant would, therefore, clearly come within the
definition of "murder" under Section 300 of the "Indian Penal Code".
11. We cannot forget that when the deceased came up to the office of the accused, there
was exchange of abuses and then, he was thrashed by the accused persons. There is
hardly any cross-examination of the eyewitnesses to dispute the authorship of this
particular injury. We have scanned the evidence very closely only to find that the
authorship of the injury could not be disputed and nor the manner in which the single
injury was inflicted. Therefore, under the circumstances, even if there was a single injury
caused, it was with such a force and on such vital part of the body that it caused almost
instantaneous death. The deceased, after he was injured went up to the police station and
before he could be reached to the hospital, breathed his last.
12. It is seen that where in the murder case there is only a single injury, there is always a
tendency to advance an argument that the offence would invariably be covered under
Section 304 Part II IPC. The nature of offence where there is a single injury could not be
decided merely on the basis of a single injury and thus in a mechanical fashion. The
nature of the offence would certainly depend upon the other attendant circumstances
which would help the court to find definitely about the intention on the part of the
accused. Such attendant circumstances could be very many, they being (i) whether the act
was premeditated; (ii) the nature of weapon used; (iii) the nature of assault on the
accused. This is certainly not exhaustive list and every case has to necessarily depend
upon the evidence available. As regards the user of screw driver, the learned counsel
urged that it was only the accidental use at the spur of the moment and, therefore, there
could be no intention to either cause death or cause such bodily injury as would be
sufficient to cause death. Merely because the screw driver was a usual tool used by the
accused in his business, it could not be as if its user would be innocuous.
@page-SC1857
13

. In State of Karnataka v. Vedanayagam [(1995) 1 SCC 326] this Court considered the
usual argument of a single injury not being sufficient to invite a conviction under Section
302 IPC. In that case the injury was caused by a knife. The medical evidence supported
the version of the prosecution that the injury was sufficient, in the ordinary course of
nature to cause death. The High Court had convicted the accused for the offence under
Section 304 Part II IPC relying on the fact that there is only a single injury, However,
after the detailed discussion regarding the nature of injury, the part of the body chosen by
the accused to inflict the same and other attendant circumstances and after discussing
clause Thirdly of Section 300 IPC and further relying on the reported decision in Virsa
Singh v. State of Punjab [AIR 1958 SC 465], the court set aside the acquittal under
Section 302 IPC and convicted the accused for that offence. The Court relied on the
observation by Justice Bose in Virsa Singh's case to suggest that : At p. 468, Para 16

"With due respect to the learned Judge he has linked up the Intent required with the
seriousness of the injury, and that, as we have shown is not what the section requires. The
two matters are quite separate and distinct, though the evidence about them may
sometimes overlap."
The further observation in the above case were :
"The question is not whether the prisoner intended to inflict a serious injury or a trivial
one but whether he intended to inflict the injury that is proved to be present. If he can
show that he did not, or if the totality of the circumstances justify such an inference, then,
of course the intent that the section requires is not proved. But if there is nothing beyond
the injury and the fact that the appellant inflicted it, the only possible inference is that he
intended to inflict it. Whether he knew of its seriousness, or intended serious
consequences, is neither here nor there. The question so far as the intention is concerned,
is not whether he intended to kill, or to inflict an injury of a particular degree of
seriousness, but whether he intended to inflict the injury in question, and once the
existence of the injury is proved the intention to cause it will be presumed unless the
evidence or the circumstances warrant an opposite conclusion. But whether the intention
is there or not is one of fact and not one of law. Whether the wound is serious or
otherwise, and if serious, how serious, is a totally separate and distinct question and has
nothing to do with the question whether the prisoner intended to inflict the injury in
question.
It is true that in a given case the enquiry may be linked up with the seriousness of the
injury, For example, if it can be proved, or if the totality of the circumstances justify an
inference, that the prisoner only intended a superficial scratch and that by accident his
victim stumbled and fell on the sword or spear that was used, then of course the offence
is not murder. But that is not because the prisoner did not intend the injury that he
intended to inflict to be as serious as it turned out to be but because he did not intend to
inflict the injury in question at all. His intention in such a case would be to inflict a totally
different injury. The difference is not one of law but one of fact.
(Emphasis supplied),

Their Lordships then referred to the decision of this Court in Jagrup Singh v. State of
Haryana [(1981) 3 SCC 616] where this Court observed : AIR 1981 SC 1552, Para 6

"There is no justification for the assertion that the giving of a solitary blow on a vital part
of the body resulting the death must always necessarily reduce the offence to culpable
homicide not amounting to murder punishable under Section 304 Part II of the Code. If a
man deliberately strikes another on the head with a heavy log of wood or an iron rod or
even a lathi so as to cause a fracture of the skull, he must, in the absence of any
circumstances negativing the presumption, be deemed to have intended to cause the death
of the victim or such bodily injury as is sufficient to cause death. The whole thing
depends upon the intention to cause death, and the case may be covered by either clause
1stly or clause 3rdly. The nature of intention must be gathered from the kind of weapon
used, the part of the body hit, the amount of force employed and the circumstances
attendant upon the death."
(Emphasis supplied).

Their Lordships also referred the case of Tolan v. State of T. N. [(1984) 2 SCC 133].
AIR 1984 SC 759

14. In the present case we do not have any reason to take any different view of the
@page-SC1858
matter. Here was the case where a long screw driver having a sharp end was plunged into
the abdomen of the deceased with such savage force that it caused injury which was 12
cm. deep cutting liver and spleen. This is apart from the fact that the deceased also
suffered other injuries. The deceased was unarmed and there was a heated exchange of
words before the incident. After the incident also the deceased was chased. Therefore, we
find that this is not the case where conviction could be for the offence committed under
Section 304 Part II IPC.
15. We also do not accept the contention of the learned counsel for the defence which was
raised only by way of a desperate argument that the incident was sudden and it was
without any pre-meditation, thereby the learned counsel wanted to bring the evidence
under Section 304 Part I. In short the counsel aimed at Exception I of Section 300 IPC.
Exception 4 was also brought to be relied upon. We do not think the evidence available
would warrant the offence covered by Exception 1 as there was no such grave and sudden
provocation on the part of the deceased. Similarly it was not a case of sudden fight in the
heat of passion nor was it a case of sudden quarrel when the offender having taken undue
advantage or acted in a cruel or unusual manner. There is evidence on record to suggest
that there was a previous altercation and the accused persons were seething in anger to
take the revenge of the incident which had taken place on 27th of the same month.
Further it was only after the deceased came in front of the shop of the accused on his
motorbike, first there was an exchange of abuses and it was then that the incident took
place where not only the accused but even the second accused is proved to have attacked
the deceased. This could not, therefore, be a case of a sudden fight. Therefore, the
question of application of Section 304 Part I is also ruled out.
16. Under the circumstances, we would be constrained to hold that the Courts below were
right in convicting this accused-appellant for an offence under Section 302. We,
therefore, find no reason to take any different view and confirm the conviction and
sentence of this accused also.
17. In the result, the appeal has no merits, and it is dismissed.
Appeal dismissed.
AIR 2008 SUPREME COURT 1858 "Laxmi Devi v. Mohammad Tabbar"
(From : Uttaranchal)*
Coram : 2 S. B. SINHA AND V. S. SIRPURKAR, JJ.
Civil Appeal No.2090 of 2008 (arising out of SLP (C) No. 16034 of 2007), D/- 25 -3
-2008.
Laxmi Devi and Ors. v. Mohammad Tabbar and Anr.
Motor Vehicles Act (59 of 1988), S.168 - MOTOR VEHICLES - Accident compensation
- Multiplier - Choice of - Deceased aged 35 years at time of death - None of claimants
above that age - Multiplier applicable as per Sch.2 would be 16 - However considering
fact that claimant would get only 6% interest - And also fact that increase has been made
in notional income of deceased - Proper multiplier held, would be 14.
A. O. No. 154 of 2006, D/-31-08-2006 (Utr), Reversed. (Para 7)
Cases Referred : Chronological Paras
2005 AIR SCW 2542 : AIR 2005 SC 2985 (Rel. on) 3, 4, 6
1994 AIR SCW 1356 : AIR 1994 SC 1631 (Ref.) 6
(1996) 4 SCC 362 (Ref.) 6
(1942) 1 All ER 657 (HL) 6
(1951) 2 All ER 448 6
Yunus Malik, Abhishek Vikas, Rani Kishore, Prashant Chaudhary, for Appellants; Ajay
Majithia, Rajesh Kumar, Dr. Kailash Chand, for Respondents.
* A. O. No. 154 of 2006, D/- 31-8-2006 (Utr).
Judgement
1. V. S. SIRPURKAR, J. :-Leave granted.
2. This appeal is filed by the widow and five children of one Rajendra Singh who died in
an accident on 12-4-2004 when he was riding on his bicycle and was given a dash by the
offending vehicle, a Canter Truck bearing Registration No. UA-04-1486. Rajendra Singh
died on the spot. The driver of the offending vehicle was caught on the spot. The
claimants, therefore, filed the claim before the Motor Accidents Claims Tribunal on the
basis that Rajendra Singh used to earn Rs. 140/- per day and Rs. 4200/- per month and
that his age at the time of accident was barely 35 years. In support of the claim, three
witnesses including Laxmi Devi, the wife of the deceased were examined and the
Tribunal, on the basis of the evidence, held that the deceased Rajendra Singh died on
account of the injuries sustained by him
@page-SC1859
in the accident on 12-4-2004 which accident had occurred due to rash and negligent
driving of the offending vehicle. As regards the income, the Tribunal assessed the same at
Rs. 15,000/- per annum on the basis of the notional income prescribed in Second
Schedule under Section 163-A of the Motor Vehicles Act. After deducting 1/3rd of the
said amount as the personal expenses of the deceased, the claimants' dependency was
assessed at Rs. 10,000/- per annum and by multiplying the annual dependency of Rs.
10,000/- with the multiplier of 16, the compensation was worked out to Rs. 1,60,000/-.
The other claims were also awarded being Rs. 2,000/- for funeral expenses, Rs. 5,000/-
for loss of consortium to the widow and Rs. 2,000/- for loss of estate. Thus a total sum of
Rs. 1,69,000/- was awarded as compensation to the claimants. The Tribunal directed the
payment of interest on the amount of compensation at the rate of 6% per annum from the
date of claim petition.
3

. An appeal came to be filed before the High Court by the claimants. No appeal, however,
was filed by the Insurance Company or the owner of the vehicle. It was contended before
the High Court that there was no basis for arriving at the notional income at Rs. 15,000/-
per annum and in fact the income was much more than that for which the evidence of
Laxmi Devi was led. Therefore, the enhanced compensation was claimed in the appeal.
As against this it was argued that the Tribunal had erred in applying the higher multiplier
of 16. Reliance was placed on a reported decision of this Court in T.N. State Transport
Corporation Ltd. v. Rajapriya and [(2005) 6 SCC 236]. 2005 AIR SCW 2542

4. The High Court confirmed the earlier findings regarding the negligence of death.
However, the High Court came to the conclusion that though the claim of the income of
Rs. 4200/- per month was not reliable, the notional income should have been held to be
Rs. 36,000/- per annum, i.e., Rs. 3,000/-per month. For this proposition the High Court
held that the notional income of Rs. 15,000/- in the Second Schedule was prescribed in
the year 1994 while the accident had taken place in the year 2004. The second reason
given by the High Court was that even an unskilled labourer, these days, can easily earn
Rs. 100/- per day and Rs. 3,000/- per month and, therefore, the High Count held the
income to be Rs. 36,000/ per annum and by deducting 1/3rd of the income of the
deceased for his personal expenses, the claimants' dependency was assessed at Rs.
24,000/- per annum. However, the High Court reduced the multiplier of 16 applied by the
Tribunal to 12. For this action, the High Court relied on the aforementioned judgment in
T.N. Transports Corporation's case. The High Court thus applied the multiplier of 12
instead of 16 and ultimately the High Court arrived at the figure of Rs. 2,88,000/- and to
this the other compensation on account of funeral expenses, loss of consortium to the
widow and loss of estate, which were granted by the Tribunal, were added and the total
compensation of Rs. 2,97,000/- was awarded by the High Court. The claimants,
dissatisfied with this finding, have filed this appeal before us.
5. Learned counsel for the claimants urged that the High Court erred in applying the
multiplier of 12 particularly when the deceased was only 35 years old and none of the
claimants was more than that age. Learned counsel further urged that the deceased had
left behind four minor daughters along with a young wife. It was urged that considering
the fact that only 6% interest was granted, the multiplier of 12 was not a proper multiplier
and the multiplier as found by the Tribunal should have been retained. As against this, the
learned counsel for the Insurance Company supported the order of the High Court and
claimed that in fact the compensation granted by the High Court was on higher side.
6

. We have considered the contentions as well as the law laid down in T.N. Transport
Corporation's case (supra). In the said decision this Court, after considering the rulings in
G.M. Kerala SRTC v. Susamma Thomas [(1994) 2 SCC 176], U.P. SRTC v. Trilok
Chandra [(1996) 4 SCC 362] as also the other English cases such as Davies v. Powell
Duffryn Associated Collieries Ltd. [(1942) 1 All ER 657 (HL)] and Nance v. British
Columbia Electric Rly. Co. Ltd., [(1951) 2 All ER 448] observed in para 12 that : 2005
AIR SCW 2542
1994 AIR SCW 1356

"The multiplier method involves the ascertainment of the loss of dependency or the
multiplicand having regard to the circumstances of the case and capitalizing the
multiplicand by an appropriate multiplier. The choice of the multiplier is determined by
the
@page-SC1860
age of the deceased (or that of the claimants whichever is higher) and by the calculation
as to what capital sum, if invested at a rate of interest appropriate to a stable economy,
would yield the multiplicand by way of annual interest. In ascertaining this, regard should
also be had to the fact that ultimately the capital sum should also be consumed up over
the period for which the dependency is expected to last."
This Court then observed in para 16 as under :
"In Susamma Thomas case it was noted that the normal rate of interest was about 10%
and accordingly the multiplier was worked out. As the interest rate is on the decline, the
multiplier has to consequentially be raised. Therefore, instead of 16 the multiplier of 18
as was adopted in Trilok Chandra case appears to be appropriate."
It was also further observed by this Court that :
"The highest multiplier has to be for the age group of 21 years to 25 years when an
ordinary Indian citizen starts independently earning and the lowest would be in respect of
a person in the age group of 60 to 70, which is the normal retirement age."
In para 17 of the judgment this Court came to the conclusion that the appropriate
multiplier would be 12 and not 16 in case of a person where the deceased was 38 years
old and the interest was granted at 9% per annum from the date of claim petition. The
Court, therefore, reduced the multiplier from 16 to 12 and also reduced the rate of interest
to 7.5% per annum. It seems that based on that findings the High Court has reduced the
multiplier in the present case.
7. Considering the above principles in this case, we must say that the High Court has
definitely erred in bringing down the multiplier to 12. It is to be seen that in this case the
deceased was 35 years old. The claimants are his wife and four minor daughters. Even as
per the Second Schedule the multiplier in case of the persons between 35 to 40 years is
16. In the present case the rate of interest granted is only 6% considering the general rate
of interest prevalent in 2004. In our opinion, therefore, the proper multiplier would be 14
as the value of the notional income has been increased. It was nobody's case that the
deceased was not working at all. His wife has entered in the witness box and had asserted
that he earned Rs. 140/- per day. Even if we ignore the exaggeration, the figure arrived at
by the High Court at Rs. 100/- per day and Rs. 3,000/-per month appears to be correct.
However, considering that the claimant would get only 6% interest, we would chose to
grant the multiplier of 14 instead of 12. Accordingly the notional income as applied
would be Rs. 24,000 x 14 = Rs. 3,36,000/- and to this will be added the other
compensation like Rs. 2,000/- as funeral expenses. Rs. 5,000/-for the loss of consortium
to the widow and Rs. 2,000/- for the loss of estate. The claimants would, therefore, be
entitled to a sum of Rs. 3,45,000/-. The said sum shall carry the interest at the rate of 6%
per annum from the date of claim petition.
8. In view of the above, the appeal is allowed. There would be no order as to costs.
Appeal allowed.
AIR 2008 SUPREME COURT 1860 "Shivappa v. State of Karnataka"
(From : Karnataka)*
Coram : 2 S. B. SINHA AND H. S. BEDI, JJ.
Criminal Appeal No.129 of 2006, D/- 31 -3 -2008.
Shivappa and Ors. v. State of Karnataka.
(A) Evidence Act (1 of 1872), S.3 - EVIDENCE - WITNESS - Evidence of eye-witnesses
- Credibility - Occurrence took place in night - Accused armed with weapons formed
unlawful assembly and assaulted deceased - Threatened eye witnesses, family members
of deceased when they came to his rescue - They ran away from village to jungle and did
not dare come back in night - In circumstances witnesses became dumbfounded and
could not shout - Would not by itself make them wholly untrustworthy - Their conduct,
having regard to the nature of offence, was more probable. (Para 17)
(B) Evidence Act (1 of 1872), S.3 - EVIDENCE - WITNESS - Eye witnesses - Evidence
of - Minor discrepancies or some improvements - Would not justify rejection of their
testimonies, otherwise reliable - Some discrepancies are bound to occur because of
sociological background of witnesses as also time gap between date of occurrence
@page-SC1861
and date on which they give their depositions in Court. (Para 19)
(C) Criminal P.C. (2 of 1974), S.154 - FIR - WITNESS - FIR - Delay - Occurrence took
place in night - Eye witnesses fled away from village to jungle because of threats given to
them by accused persons - They stayed out throughout night - Filing of FIR next day
morning, at earliest opportunity, by two married sisters of deceased, who came to spend
some time with their family on occasion of some festival - In circumstances, no
possibility of false implication could be inferred because of delay in lodging FIR - Fact
that Investigating Officer, in his evidence stated that one of prosecution witnesses had
come alone to Police Station - Would not be of much significance. (Paras 19, 21, 22)
(D) Evidence Act (1 of 1872), S.3 - EVIDENCE - POST-MORTEM - Medical evidence -
Not to be treated as sacrosanct - Time of death - Evidence of doctor that death occurred
within 24 hours of time of post-mortem - Thus variation between medical evidence and
testimony of eye witnesses is not such which would lead to conclusion that prosecution
case was not correct. (Para 13)
(E) Penal Code (45 of 1860), S.300 - MURDER - UNLAWFUL ASSEMBLY - Murder -
Accused 11 persons, armed with weapons formed unlawful assembly - Assaulted
deceased in presence of his family members - In FIR three motives attributed, one of
them being involvement of deceased in murder of younger brother of accused No. 1 -
Delay in filing FIR explained - Possibility of false implication, eliminated - Trustworthy
evidence of eye witnesses - Motive being proved and number of injuries on deceased
being 20 - Leads to only one conclusion that all accused persons formed common object
in committing crime - Prosecution proved its case beyond reasonable doubt - Conviction
of accused - No interference. (Paras 25, 27)
(F) Penal Code (45 of 1860), S.300 - MURDER - APPEAL - APPELLATE COURT -
Murder - Acquittal of accused - Appeal - Which case, deserves interference at the hands
of appellate court - Depend upon fact situation obtaining therein - Legal propositions
must be applied having regard to fact of each case.
Criminal P.C. (2 of 1974), S.386. (Paras 27, 31)
Cases Referred : Chronological Paras
2007 AIR SCW 1850 : 2007 Cri LJ 2136 (Ref.) 30
2007 AIR SCW 3571 : 2007 Cri LJ 3209 (Ref.) 29
2007 AIR SCW 6562 (Ref.) 30
2006 AIR SCW 1949 : AIR 2006 SC 1761 : 2006 Cri LJ 2133 (Ref.) 24
2006 AIR SCW 2686 : AIR 2006 SC 2500 : 2006 Cri LJ 2886 (Ref.) 28
2006 AIR SCW 3680 : AIR 2006 SC 2716 : 2006 Cri LJ 3680 (Ref.) 20
2004 AIR SCW 1729 : AIR 2004 SC 2943 : 2004 Cri LJ 5043 (Ref.) 28
2004 AIR SCW 2140 : AIR 2004 SC 2158 : 2004 Cri LJ 2036 (Ref.) 14, 27
2003 AIR SCW 647 : AIR 2003 SC 1110 : 2003 Cri LJ 1277 24
2003 AIR SCW 3984 : AIR 2003 SC 3617 : 2003 Cri LJ 3876 (Ref.) 20
2002 AIR SCW 1532 : AIR 2002 SC 1621 : 2002 Cri LJ 2024 (Ref.) 27
1993 AIR SCW 1357 : AIR 1993 SC 1469 : 1993 Cri LJ 1801 (Ref.) 16
AIR 1991 SC 315 (Ref.) 15
S.S. Javali, Sushil Kumar, Sr. Advs., Kirit S. Javali, Vikas Rajipura, E.C. Vidya Sagar,
Sanjay Jain, Anmol Thakral, Ms. Meenakshi Singh, Mukesh Kumar, Sharanappa Mattur,
for Appellants; Anil K. Mishra, Sanjay R. Hegde, for Respondent.
* Cri. Appeal No.780 of 1999, D/- 28-10-2005 (Kant).
Judgement
S. B. SINHA, J. :- Appellants herein were tried under Section 302 of the Indian Penal
Code for committing murder of one Shrishail Shivappa Jagadale.
2. The occurrence took place at about 8.30 pm on 28-5-1994. A First Information Report
was lodged by Nimbewwa, sister of the deceased Shrishail Shivappa Jagadale at about
10.00 am on 29-5-1994, inter alia, alleging that the appellants were inimically disposed of
towards her brother and his family.
It was furthermore alleged that on the fateful day, when she, her mother, Mannandevva,
father Shivappa, younger brother Basappa, his wife, Gurubai, elder brother's wife
Maadevi were sitting in front of their house and her elder brother (deceased Shreeshaila)
was sitting on a katte (platform) below a Neem tree, the accused persons, who were 11 in
number, forming an unlawful assembly armed with axe and
@page-SC1862
Jambiya in their hands came there. Accused No. 1, Ningondeppa Master, shouted, "see
that he is sitting there on the platform, son pull that Shreeshaila", whereupon Accused
No. 11, Malakaji, pulled him up from his feet and threw him on the ground. Accused No.
11, Malakaji who had been holding an axe then assaulted Shreeshaila on his head.
He fell down shouting "satteppo" (died) whereafter Accused No. 11, Malakaji, and others
assaulted the deceased with axe and jambiya on his neck, chest, etc.
The deceased sustained grievous injuries. When the family members of the deceased
came to his rescue, the accused allegedly threatened them. They also told Basappa, the
younger brother, and Shivappa, the father of the deceased, that they would also finish
them whereupon they ran away from the village to a jungle.
3. It was alleged that the informant and her sister being women did not dare come to the
Police Station in the night apprehending that the accused might also assault them. She
came to the Police Station with her elder sister Shantavva and lodged the First
Information Report.
4. Before the learned Trial Judge, a large number of witnesses were examined on behalf
of the prosecution.
PW-9 is the father, PW-10 is the brother, PW-11 is the complainant-informant, PW-1 is
another sister, PW-13 is the wife and PW-21 is the niece of the deceased.
Apart from the family members, eight others were cited as witnesses in the charge-sheet.
CW-1 and CW-3 were not examined. Six villagers who were examined by the
prosecution, however, did not support the prosecution case.
It is not in dispute that Accused No. 1 Ningondeppa, Accused No. 2, Shivashankar and
Accused No. 3, Shivappa, are dead.
The learned Trial Judge by reason of his judgment and order dated 07-05-1999 gave
benefit of doubt to the accused persons, inter alia, holding :
(1) Having regard to the ocular evidence, vis-a-vis the medical evidence, it is doubtful as
to whether the prosecution has come out with correct version in regard to the time of
death;
(2) As the male eye-witnesses, who were members of the same family namely PW-9 and
PW-10, fled away from the place of occurrence and did not return during night and only
PW-11 and PW-12 having come to the Police Station for lodging the First Information
Report only at about 10 a.m. on the next day, they cannot be relied upon.
(3) Prosecution witnesses made improvements in their statements in court, vis-avis these
were statements made in terms of Section 161 of the Code of Criminal Procedure and on
that ground too their testimonies should not be relied upon.
5. All the witnesses who supported the prosecution case are related to the deceased.
Specific overt acts have been attributed by the prosecution witnesses only against
Accused No. 1, Ningondeppa, as against Accused No. 2, Shivashankar, Accused No. 3,
Shivappa, Accused No. 5 Shekappa and Accused No. 11, Malakaji, but they made general
statements with regard to the purported overt acts having been committed by all the
accused.
6. The High Court, on the appeal preferred by the State against the judgment of acquittal,
however, reversed the same opining that the prosecution has proved its case beyond all
reasonable doubts.
Appellants are, thus, before us.
7. Mr. S.S. Javali, learned senior counsel appearing on behalf of the appellant Nos. 1 and
2, submitted that as the findings of fact arrived "at by the learned Trial Judge cannot be
said to be wholly perverse, no interference therewith by the High Court was warranted. It
was urged that as the learned Trial Judge took into consideration the evidence of all the
relevant witnesses, the High Court committed a serious error in reversing the judgment as
it had the benefit of looking at the demeanour of all the prosecution witnesses.
8. Mr. Sushil Kumar, learned senior counsel appearing on behalf of the appellant Nos. 3
to 8, supplemented the submissions of Mr. Javali urging that as in the postmortem report,
semi-digested food was found in the stomach of the deceased, the same clearly
established that the time of death of the deceased as stated by the prosecution witnesses,
namely, at about 8.30 p.m. was false as according to the prosecution witnesses, the
deceased did not take any food after 10.00 a.m.
9. Mr. Anil K. Mishra, learned counsel appearing on behalf of the State, would, however,
support the impugned judgment.
@page-SC1863
10. The fact that the deceased met with a homicidal death is not in dispute. PW-24,
Gurappa Yankappa, in his deposition, stated that he received the dead body of Shrishail
on 29-5-1994 for the purpose of conducting the post-mortem. The autopsy was conducted
on the same day between 12.30 pm and 2.30 pm. The dead body bore as many as 20
injuries covering almost all parts of the body. Eight injuries were inflicted on upper parts
of the body. He opined that the death was due to shock as a result of haemorrhage and the
injuries to vital organs like brain, liver and lungs as also large blood vessels. He opined
that the death had occurred within 24 hours of the post-mortem examination. He
identified the weapons of attack which had been recovered during investigation and
marked as M.Os. 1 to 8, as the possible weapons with which incised as also the lacerated
wounds could have been caused. According to him, however, semi-digested food was
found in the stomach which shows that the deceased might have taken food four to five
hours prior to his death.
11. The learned Sessions Judge, as also the learned counsel appearing on behalf of the
appellant, have laid great stress thereupon as PW-12, Shantavva, sister-in-law of the
deceased had deposed that food had been prepared at the time when the incident took
place and the deceased had taken food at about 10.00 am.
12. Medical opinion is admissible in evidence like all other types of evidences. There is
no hard and fast rule with regard to appreciation of medical evidence. It is not to be
treated as sacrosanct.
13. The High Court, however, opined that in view of the evidence of the doctor that the
death occurred within 24 hours of the time of the post-mortem, the variation between the
medical evidence and the testimony of the eye witnesses is not such which would lead to
a conclusion that the prosecution case was not correct. We agree with the said view.
In Modi's Medical Jurisprudence, p. 185, it is stated that so far as the food contents are
concerned, they remain for long hours in the stomach and duration thereof depends upon
various factors.
14

. In Main Pal and Anr. v. State of Haryana and Ors. [(2004) 10 SCC 692], this Court
held : 2004 AIR SCW 2140, Para 11

"If the eyewitnesses' version, even though of the relatives, is found to be truthful and
credible after deep scrutiny the opinionative evidence of the doctor cannot wipe out the
effect of eyewitnesses' evidence. The opinion of the doctor cannot have any binding force
and cannot be said to be the last word on what he deposes or meant for implicit
acceptance. On the other hand, his evidence is liable to be sifted, analysed and tested, in
the same manner as that of any other witness, keeping in view only the fact that he has
some experience and training in the nature of the functions discharged by him."
15

. Indisputably, a large number of factors are responsible for drawing an inference with
regard to digestion of food. It may be difficult if not impossible to state exactly the time
which would be taken for the purpose of digestion. Reliance, however, has been placed
on Shambhoo Missir and Ann v. State of Bihar [(1990) 4 SCC 17] wherein this Court
keeping in view the fact situation obtaining in that case held : AIR 1991 SC 315,
Para 3

"4. The substance of the prosecution case is that the deceased Rajendra died as a result of
the assault in question at about 3 p.m. on the very day of the incident. However, on the
basis of the medical evidence, the defence has succeeded in establishing that he had died
soon after he left his house at 8 a.m. Dr. Shambhoo Sharan (PW 13) who performed the
post-mortem examination of the dead body, has stated both in his report as well as in his
deposition, that there was 8 ounces of undigested food in the stomach of the deceased. If
as alleged by the prosecution the death had occurred at 3 p.m., no such undigested food
would have been found in the stomach at that hour when the food was taken by the
deceased before 8 a.m. If this is so, then the whole case of the prosecution must crumble.
For this will establish beyond doubt that Rajendra had died very soon after 8 a.m. and
none of the so called eye-witnesses had seen the assault on Rajendra. The said fact will
also demolish the entire version of the three dying declarations made by the deceased to
various prosecution witnesses at three different places. The non-explanation by the
prosecution of the undigested food therefore casts serious adverse reflections on the
entire investigation in the present case. Unfortunately, the High Court has failed to deal
with this very important aspect of the evidence
@page-SC1864
on record which has been highlighted by the trial court. It also strengthens the defence
version that the accused have been involved in the present case by the obliging witnesses
and unfair investigation."
As is noticed from the factual matrix involved in the said case, the death occurred at 3.00
pm. Although the deceased had left his house at 8.00 a.m., it was found that he died soon
after 8.00 a.m. Certain additional features as for example, no eye-witness having seen the
assault on the deceased was also taken into consideration by the court. The dying
declaration whereupon the High Court relied upon was also not found to be reliable. It
was the cumulative effect of the said findings that a judgment of acquittal was recorded
and not on the basis of the medical opinion with regard to the time of taking of food item
alone.
16

. Yet again, in Bhimappa Jinnappa Naganur v. State of Karnataka [1993 Supp (3) SCC
449], on the same ground that the deceased died within a couple of minutes after coming
out of his courtyard could not have consumed his lunch at the time stated by PW-1,
namely, at about 1.00 pm, judgment of acquittal was rendered. In that case, the names of
the witnesses were not disclosed in the First Information Report. Although there were
more than 10 injuries on the head and face of the deceased, there was no trail of blood
from the house of the deceased right till the gutter on the roadside from where the body
was found which was at a distance of 400 feet. The fact that some semi-digested food was
found in his stomach together with other facts led this Court to hold that the High Court
did not meet with the reasonings of the trial court while rejecting the statement of the
eye-witnesses. Such is not the position here. 1993 AIR SCW 1357

17. We may notice the salient features of the prosecution case.


The learned Sessions Judge did not arrive at any specific finding as to why the conduct of
the witnesses was such which would lead to a total distrust to the prosecution witnesses.
All the members of the family were at one place. Two married daughters, namely, PW-11
Nimbewa, and PW-12, Shantavva came to the village, as there was a Jatra festival of the
village Deity, Lakkavva.
Accused persons who were 11 in number came variously armed. They not only killed the
deceased but also threatened the two family members with death as a result whereof they
fled to the jungle.
PW-9, Shivappa fled to his firm land. They did not dare come back in the night. If having
regard to the manner in which the occurrence took place, the witnesses became
dumbfounded and could not shout, the same by itself, in our opinion, would not lead to
the conclusion that they were wholly untrustworthy. In fact, their conduct, having regard
to the nature of the offence, appears to be more probable.
18. The parties are related. PW-21, Gurubai, in her evidence categorically stated that both
sides are related to her. All the witnesses in no uncertain terms described the manner in
which the assault had taken place. Not only the nature of the weapons which had been
used had been disclosed, the different parts of the body of the deceased whereupon
injuries were inflicted had also been stated. The reaction of the deceased on receipt of the
injuries has also been disclosed by almost all the material witnesses.
19. According to PW-11, Nimbewwa, she and PW-12 Shantawa started for Kolhar Police
Station to lodge the complaint at about 8 am from the village. The fact that both the ladies
went to the police station cannot be doubted as in the First Information Report itself, the
fact that the informant had come with her sister Shantawa was mentioned. Only because
PW-23, Ramappa, the Investigating Officer, in his evidence stated that PW-11,
Nimbewwa, had come alone to the Police Station is not of much significance. It may be
true that according to all the prosecution witnesses, about 100 villagers assembled.
Admittedly, even then nobody came forward to help them.
It was not necessary for the ladies to shout for help or ask the villagers to snatch the
weapons of offence from them as was suggested on behalf of the defence. If the villagers
who gathered in such a large number intended to render any help, they would have done
so of their own. Whether because of the village politics or otherwise, the fact remained
that they had not only failed to come to help the informant family but also turned hostile
to them speaks volume of their apathy.
No villager even informed the Police. At least some of them could have done so. PW-11,
@page-SC1865
Nimbewwa, in her evidence categorically stated that immediately after the occurrence,
the electricity went off. The telephones were also not working. They also stated that no
transport was available. It would, therefore, be too much to expect that those young ladies
would walk 11 kilometers on foot in the dead of night to lodge the First Information
Report. PW-21, Gurubai, made a statement that the Police came at about 8 am in the
morning on the next day. Evidently, it was an inadvertent statement as in her examination
in chief, she categorically stated that PW-11, Nimbewwa and PW-12, Shantavva left the
village for lodging a First Information Report at 8.00 am in the morning. This cannot be a
ground for disbelieving them. Minor discrepancies or some improvements also, in our
opinion, would not justify rejection of the testimonies of the eye-witnesses, if they are
otherwise reliable. Some discrepancies are bound to occur because of the sociological
background of the witnesses as also the time gap between the date of occurrence and the
date on which they give their depositions in court.
20

. In S. Sudershan Reddy and Ors. v. State of A.P. [(2006) 10 SCC 163], this Court held :
2006 AIR SCW 3680

"12. We shall first deal with the contention regarding interestedness of the witnesses for
furthering the prosecution version. Relationship is not a factor to affect the credibility of a
witness. It is more often than not that a relation would not conceal the actual culprit and
make allegations against an innocent person. Foundation has to be laid if plea of false
implication is made. In such cases, the court has to adopt a careful approach and analyse
evidence to find out whether it is cogent and credible.

[See also Sucha Singh and Anr. v. State of Punjab [(2003 (7) SCC 643] 2003 AIR
SCW 3984

21. Delay in lodging the First Information Report, in our opinion, has sufficiently been
explained. If the accused persons were to be falsely implicated, PW-9, Shivappa, and
PW-10, Bassappa, would have rushed to the Police Station on the same night. In any
event, they would have themselves gone for lodging the First Information Report on the
next date. They had fled away because of the threats given to them. They stayed out
throughout the night. PW-9 Shivappa, came back only on the next day. One can very well
visualize his mental condition. If the married sisters of the deceased, therefore, in the
aforementioned situation started from their village round about 8 o'clock on the next day
to reach the Police Station at about 10.00 am, no exception can be taken thereto. Delay in
lodging the First Information Report in a case of this nature is not such which would
impel us to infer that there existed a possibility of false implication.
There cannot be any doubt whatsoever that lodging of the First Information Report within
a short time after the occurrence would ordinarily lead to a conclusion that the statements
made therein are correct but when the delay in lodging a First Information Report is
sufficiently explained, the same would receive the evidentiary value it deserved.
22. The very fact that two married sisters gathered the courage at the earliest possible
opportunity to go to the Police Station itself eliminates false implication. They are
married. They came to spend some time with their family on the occasion of some
festival. It is difficult to believe that they would have some independent motive to falsely
implicate so many persons. If that be so, it might not have been possible for them to give
a detailed description of the manner in which the occurrence took place. Furthermore, the
Police came to the place of occurrence soon after the lodging of the First Information
Report. The dead body was immediately sent for post-mortem examination. From the
evidence of the doctor, as noticed hereinbefore, the post-mortem examination started at
12.30 pm. The approach of the High Court, therefore, cannot be said to be incorrect.
Furthermore, in the First Information Report Itself, three motives have been attributed,
one of them being the involvement of the deceased in the murder of the younger brother
of Accused No. 1, Ningondeppa.
23. The submission of Mr. Javali that overt acts have been attributed only to five of the
accused and all of them could not have been convicted invoking the provisions of
Sections 148 and 149 of the Indian Penal Code may now be considered. The First
Information Report, as also the evidences of as many as six eye-witnesses, clearly reveals
that all the eleven accused came in a group. All of them were armed with deadly weapons
although actual overt acts had been attributed to Accused No. 1, Ningondeppa, Accused
No. 2, Shivashankar, Accused No. 3,
@page-SC1866
Shivappa, Accused No. 5, Shekappa and Accused No. 11 Malakji. In their depositions,
the prosecution witnesses have categorically stated that all of them took part therein.
Even if we do not put entire reliance on the said statements, the very fact that the
deceased received as many as 20 injuries is itself sufficient to show that all the accused
persons not only came to the place of occurrence upon forming an unlawful assembly but
also had the requisite common object to kill the deceased. Formation of common object
must be inferred upon taking into consideration the entire situation.
24

. We may notice that in Munivel v. State of Tamil Nadu [(2006) 9 SCC 394], this Court
held : 2006 AIR SCW 1949

"36. Section 149 of the Penal Code provides for vicarious liability. If an offence is
committed by any member of an unlawful assembly in prosecution of a common object
thereof or such as the members of that assembly knew that the offence to be likely to be
committed in prosecution of that object, every person who at the time of committing that
offence was member would be guilty of the offence committed. The common object may
be commission of one offence while there may be likelihood of commission of yet
another offence, the knowledge whereof is capable of being safely attributable to the
members of the unlawful assembly. Whether a member of such unlawful assembly was
aware as regards likelihood of commission of another offence or not would depend upon
the facts and circumstances of each case. Background of the incident, the motive, the
nature of the assembly, the nature of the arms carried by the members of the assembly,
their common object and the behaviour of the members soon before, at or after the actual
commission of the crime would be relevant factors for drawing an inference in that
behalf. (See Rajendra Shantaram Todankar v. State of Maharashtra)" 2003 AIR
SCW 647
25. The motive having been proved and the number of injuries being 20, in our opinion,
leads to only one conclusion that all the accused persons formed a common object in
committing the crime.
26. The submission of Mr. Javali that one of the accused persons is a lawyer and another
is a teacher is a matter which cannot distract a Court of Law from arriving at a finding on
the basis of materials on record and the law operating in the field. If a lawyer was falsely
implicated and if he was not a member of the unlawful assembly, he could have examined
defence witnesses to prove his purported alibi. He is presumed to know his rights.
Presumably he knows as to how to establish a fact in a court of law.
27. It is, therefore, not possible to interfere with the well-reasoned judgment of the High
Court only on the aforementioned premise. There is no quarrel with the proposition that
an order of acquittal should not ordinarily be interfered with as the presumption of
innocence of the accused gets further strengthened by acquittal but the same by itself
would not mean that the appellate court cannot review the evidence on record and
interfere with the findings of the Trial Judge despite existence of compelling reasons.

In Mani Pal and Ann v. State of Haryana and Ors. [(2004) 10 SCC 692], it was held :
2004 AIR SCW 2140

"12. There is no embargo on the appellate Court reviewing the evidence upon which an
order of acquittal is based. As a matter of fact, in an appeal against acquittal, the High
Court as the court of first appeal is obligated to go into greater detail of the evidence to
see whether any miscarriage has resulted from the order of acquittal, though has to act
with great circumspection and utmost care before ordering the reversal of an acquittal.
Generally, the order of acquittal shall not be interfered with because the presumption of
innocence of the accused is further strengthened by acquittal. The golden thread which
runs through the web of administration of justice in criminal cases is that if two views are
possible on the evidence adduced in the case, one pointing to the guilt of the accused and
the other to his innocence, the view which is favourable to the accused should be
adopted. The paramount consideration of the Court is to ensure that miscarriage of justice
is prevented. A miscarriage of justice which may arise from acquittal of the guilty is no
less than from the conviction of an innocent. In a case where admissible evidence is
ignored, a duty is cast upon the appellate Court to re-appreciate the evidence where the
accused has been acquitted, for the purpose of ascertaining as to whether any of the
accused really committed any offence or not. [See Bhagwan Singh and Ors. v. State of
Madhya Pradesh (2002 (2) SCC 567). The 2002 AIR SCW 1532

@page-SC1867
principle to be followed by appellate Court considering the appeal against the judgment
of acquittal is to interfere only when there are compelling and substantial reasons for
doing so. If the Impugned judgment is clearly unreasonable and relevant and convincing
materials have been unjustifiably eliminated in the process, it is a compelling reason for
interference."
Therein, the conclusion by the trial court upon objective analysis with regard to the
acceptability or otherwise of the rival stands taken, it was found that the judgment of
acquittal should not have been interfered with.
28

. Reliance has also been placed on Ram Swaroop and Ors. v. State of Rajasthan [(2004)
13 SCC 134] wherein this Court reiterated as under : 2004 AIR SCW 1729, Para
25

"It is well settled that if two views are reasonably possible on the basis of the evidence on
record, the view which favours the accused must be preferred."

Such an observation, however, was made after this Court went through the evidences
brought on record as also the findings recorded by the trial court vis-a-vis the High Court
to arrive at the conclusion that the interference was not warranted. The same view has
been taken in Budh Singh and Ors. v. State of U.P. [(2006) 9 SCC 731], wherein upon
going through evidences on record, this Court opined that the High Court was not correct
in arriving at the conclusion that the view of the trial court was wholly perverse and could
not be sustained by the materials brought on record. 2006 AIR SCW 2686

29

. Recently, however, in Mahadeo Laxman Sarane and Ann v. State of Maharashtra [2007
(7) SCALE 137], it was held : 2007 AIR SCW 3571

"18. We have heard counsel for the parties at length. We are conscious of the settled legal
position that in an appeal against acquittal the High Court ought not to interfere with the
order of acquittal if on the basis of the same evidence two views are reasonably possible -
one in favour of the accused and the other against him. In such a case if the Trial Court
takes a view in favour of the accused, the High Court ought not to interfere with the order
of acquittal. However, if the judgment of acquittal is perverse or highly unreasonable or
the Trial Court records a finding of acquittal on the basis of irrelevant or inadmissible
evidence, the High Court, if it reaches a conclusion that on the evidence on record it is
not reasonably possible to take another view, it may be justified in setting aside the order
of acquittal. We are of the view that in this case the High Court was justified in setting
aside the order of acquittal."
[Emphasis supplied]
30

. In Swami Prasad v. State of Madhya Pradesh [2007 (4) SCALE 181], this Court opined :
2007 AIR SCW 6562

"15. However, it is equally true that the High Court while entertaining an appeal against a
judgment of acquittal would be entitled to consider the entire materials on records for the
purpose of analyzing the evidence. There is a presumption that an accused is innocent,
unless proved otherwise. When he is acquitted, the said presumption, becomes stronger.
But it may not be correct to contend that despite overwhelming evidence available on
records, the appellate court would not interfere with a judgment of acquittal. {See
Chandrappa and Ors. v. State of Karnataka 2007 (3) SCALE 90.}" 2007 AIR SCW 1850

31. Which case, therefore, deserves interference at the hands of the appellate court would
depend upon the fact situation obtaining therein. Legal propositions must be applied
having regard to the fact of each case.
32. In view of our findings aforementioned, there is no merit in this appeal. It is
dismissed accordingly.
Appeal dismissed.
AIR 2008 SUPREME COURT 1867 "Hindalco Industries Ltd. v. Association of
Engineering Workers"
(From : Bombay)
Coram : 2 TARUN CHATTERJEE AND P. SATHASIVAM, JJ.
Civil Appeal No.6410 of 2000, D/- 14 -3 -2008.
Hindalco Industries Ltd. v. Association of Engineering Workers.
Maharashtra Recognition of Trade Unions and Prevention of Unfair Labour Practices Act
(1 of 1972), S.26, S.30 - UNFAIR LABOUR PRACTICE - CONTRACT - COMPANY -
TRADE UNION - Unfair labour practice - Denying permanency to workers of statutory
canteen - Canteen run through contractor - Despite change of contractors over years - No
change in canteen employees ever
@page-SC1868
made - Most of employees working for more than 10-15 years - Terms of contract clearly
showing that ultimate control and supervision over canteen is of company - No valid
reason exist to deny permanency to canteen employees - Company can be said to be
guilty of unfair trade practice.
1999 AIR SCW 2740, Foll.
1995 Supp (1) SCC 17S, 2001 AIR SCW 170, 2001 AIR SCW 929, 2003 AIR SCW
5989, (2005) 12 SCC 433, Not Followed in view of 1999 AIR SCW 2740. (Paras 24, 25,
27)
Cases Referred : Chronological Paras
(2005) 12 SCC 433 (Not Followed in view of 1999 AIR SCW 2740) 16, 22
2003 AIR SCW 5989 : AIR 2004 SC 269 : 2003 Lab IC 3852 (Not Followed in view of
1999 AIR SCW 2740) 15A, 22
2001 AIR SCW 170 : AIR 2001 SC 1534 : 2001 Lab IC 499 (Not Followed in view of
1999 AIR SCW 2740) 14, 22
2001 AIR SCW 929 : AIR 2001 SC 1165 : 2001 Lab IC 1108 (Not Followed in view of
1999 AIR SCW 2740) 15, 15A, 16, 22
1999 AIR SCW 2740 : AIR 1999 SC 2577 : 1999 Lab IC 3078 (Foll.) 17, 22, 25, 27
1996 AIR SCW 1298 : AIR 1996 SC 1241 : 1996 Lab IC 1048 22
1995 AIR SCW 2609 : AIR 1995 SC 1666 : 1995 Lab IC 2064 20, 22
1995 AIR SCW 2942 : AIR 1995 SC 1893 : 1995 Lab IC 2207 15
1995 Supp (1) SCC 175 (Not Followed in view of 1999 AIR SCW 2740) 13, 14, 15,
15A, 22
AIR 1990 SC 937 22
AIR 1964 SC 743 15
I.N. Rao, Sr. Advocate, R.K. Sanghi, Narendra M. Sharma, Ms. Vanita Mehta, Rajesh
Prasad Singh, for Appellant; S.F. Deshmuk, P.K. Manohar, for Respondent.
Judgement
1. P. SATHASIVAM, J. :- Hindalco Industries Ltd., aggrieved by the judgment and order
dated 20-01-2000 of the High Court of Bombay in L.P.A. No. 58 of 1999 confirming the
order of the Industrial Court accepting the case of the Association of Engineering
Workers' Union, has filed the above appeal.
2. The respondent herein namely, Association of Engineering Workers' Union (hereinafter
referred to as "the Union") filed a complaint of unfair labour practice under Item 9 of
Schedule IV of the Maharashtra Recognition of Trade Unions and Prevention of Unfair
Labour Practices Act, 1971 (hereinafter referred to as "the MRTU and PULP Act, 1971")
against Hindalco Industries Ltd. appellant herein (hereinafter referred to as "the
Company") before the Industrial Court at Thane. According to the Union, the
complainant is a trade union recognized as a representative union of the appellant-
company. The Company has engaged employees in unfair labour practices on and from
1971 on a continuous basis from month to month, therefore, the period of limitation is not
applicable. However, as a measure of abundant precaution, the Union has filed a separate
application for condonation of delay. The Company has engaged about 500 workmen in
the manufacture of aluminium and aluminium products. The complainant-Union
(respondent herein) is a recognized Union for the establishment of the appellant-
Company. In terms of Section 46 of the Factories Act, 1948, the Company is duty bound
to maintain a canteen for the benefits of workmen working in an establishment.
Accordingly, the Company is maintaining a Canteen at its Kalwa establishment. In order
to avoid giving the workmen working in the canteen, permanency and benefits which are
applicable to permanent workmen of the Company, the Company is illegally treating the
workmen working in the canteen as contract workmen. It is the specific case of the
complainant-Union that the contract is sham and is a mere arrangement made for the
purpose of avoiding permanency and giving wages and benefits as are applicable to
permanent workmen of the company.
3. On the date of filing of the complaint, out of 27 workmen who have worked for
various periods, 23 workmen have worked for more than ten years continuously the
maximum being for 25 years. The remaining four workmen have also worked for more
than 3½ years and as such are permanent workmen of the Company. The Company has
been making arrangement showing on papers that the contract is being given to someone
or the other whereas in fact, the canteen is engaged and run by the Company itself. It is,
therefore, the case of the Union that 27 workmen whose names are mentioned in the
complaint are, in fact, the workmen of the Company. As per the various decisions of this
Court, the workmen who are working in the statutory canteen are
@page-SC1869
treated as workmen of the principal employer. On the same analogy, all the 27 workmen
are workers of the Company.
4. The Company has engaged and is engaging in unfair labour practices by treating its
own workmen as workmen on contract. The workmen are entitled for a declaration that
they are the workmen of the Company, In order to comply with the technicalities that are
required to be done, the Union is simultaneously making an application to the State
Contract Labour Advisory Board to abolish the contract system as far as the canteen is
concerned in the appellant-Company. The Union is also raising a demand that all the 27
workmen should be absorbed in the Company from the initial date of their employment in
the Company and pay them wages and other benefits that are applicable to permanent
workmen of the Company.
5. The Company filed the reply in the Industrial Court stating that the complaint is time
barred since filed beyond the prescribed time limit laid down under the provisions of the
MRTU and PULP Act, 1971, hence the same is to be dismissed in limine. Further the
dispute under reference is pertaining to employees employed under the contract i.e.,
contract labour, there is a specific remedy and relief available under the Contract Labour
(Regulation and Abolition) Act, 1971, which is a specific forum available to redress the
grievances, if any. Inasmuch as the Complainant-Union has already approached the
appropriate authority for abolition of contract labour, the present complaint before the
Industrial Court is liable to be dismissed on the principle of res judicata. With regard to
the merits, it is stated that the practice of giving contract to run the canteen is in vogue
right from inception. The complainant is very well aware of the contract and the canteen
contractor who is managing the canteen. There are several decisions of this Court holding
that employing contract labour cannot be agitated within the forum under MRTU and
PULP Act 1971, when there is specific remedy available in Contract Labour (Regulation
and Abolition) Act, 1971. Moreover, since it is a disputable point such dispute is required
to be resolved through the machinery provided under the Industrial Disputes Act, 1947,
hence, any complaint to that effect under MRTU and PULP Act, 1971 is not
maintainable. It is further reiterated that working of the canteen is distinct and separate
which is neither incidental nor connected with the manufacturing process of the factory.
The canteen is exclusively run and managed by the contractor which is an outside agency.
6. On the above pleadings and on the basis of the oral and documentary evidence, the
Industrial Court, by order dated 15-10-1998, allowed the complaint and declared that the
Company has committed unfair labour practice under Item 9 of Schedule IV of the
MRTU and PULP Act, 1971 and further directed the Company to cease and desist such
unfair labour practice. In the same order, the Industrial Court directed the Company to
absorb and make the canteen employees referred to in the Annexure as permanent
employees of the Company from the date of its order. In addition to the same, the
Industrial Court directed the Company to pay them the wages and other benefits like the
last category of unskilled workmen in the Company.
7. Aggrieved by the aforesaid order of the Industrial Court, the Company preferred Writ
Petition No. 6181 of 1998 before the High Court of Bombay. The learned single Judge,
by order dated 25-01-1999, confirmed the order of the Industrial Court and dismissed the
writ petition. The said order of the learned single Judge was challenged before the
Division Bench of the High Court in L.P.A. No. 58 of 1999. By order dated 22-03-1999,
the said L.P.A. was summarily dismissed. Questioning the same, the Company filed an
appeal before this Court in Civil Appeal No. 6120 of 1999 (@ S.L.P.(C) No. 9244 of
1999). By order dated 25-10-1999, this Court allowed the appeal of the Company, set
aside the order passed by the High Court and remitted the matter to the High Court for
deciding the same on merits. Pursuant to the said direction, L.P.A. No. 58 of 1999 was
restored on its file and heard afresh and the Division Bench by the impugned order
dismissed the Letters Patent Appeal and confirmed the order of the Industrial Court.
Aggrieved by the aforesaid order of the Division Bench of the High Court dated 20-01-
2000, the Company has filed the present appeal.
8. Heard Mr. P.P. Rao, learned senior counsel for the appellant-Company and Mr. S.F.
Deshmuk, learned counsel for the respondent-Union.
9. The points for consideration in this
@page-SC1870
appeal are (1) whether the Industrial Court is justified in issuing direction to absorb all
the employees of the canteen in the company's employment and pay them wages and
other benefits to the extent of last category of unskilled workers in the company; (ii)
whether the High Court is right in affirming the said order?
10. Since, the Union has filed a complaint under item 9 of Schedule IV of the MRTU and
PULP Act, 1971, before going into the merits, let us refer the Preamble and relevant
provisions of the Act. The preamble of the MRTU and PULP Act, 1971 reads as under :-
"An Act to provide for the recognition of trade unions for facilitating collective
bargaining for certain undertakings; to state their rights and obligations; to confer certain
powers on unrecognized unions; to provide for declaring certain strikes and lockouts as
illegal strikes and lock-outs; to define and provide for the prevention of certain unfair
labour practices; to constitute courts (as independent machinery) for carrying out the
purposes of according recognition to trade unions and for enforcing the provisions
relating to unfair practices; and to provide for matters connected with the purposes
aforesaid.
WHEREAS, by Government Resolution, Industries and Labour Department, No. IDA.
1367-LAB-II, dated the 14th February, 1968, the Government of Maharashtra appointed a
Committee called "the Committee on Unfair Labour Practices" for defining certain
activities of employers and workers and their organizations which should be treated as
unfair labour practices and for suggesting action which should be taken against
employers or workers, or their organizations, for engaging in such unfair labour practices;
AND WHEREAS, after taking into consideration the report of the Committee the
Government is of opinion that it is expedient to provide for the recognition of trade
unions for facilitating collective bargaining for certain undertakings; to state their rights
and obligations; to confer certain powers on unrecognized unions; to provide for
declaring certain strikes and lockouts as illegal strikes and lock-out; to define and provide
for the prevention of certain unfair labour practices; to constitute courts (as independent
machinery) for carrying out the purposes or according recognition to trade unions and for
enforcing provisions relating to unfair practices; and to provide for matters connected
with the purposes aforesaid; It is hereby enacted in the Twenty-second Year of the
Republic of India as follows :-"
Among the various definitions, we are concerned about Section 3(16) which refers to
"unfair labour practices" means unfair labour practices as defined in section 26. Chapter-
VI, Section 26 speaks about Unfair labour practices. It reads :
"26. Unfair labour practices
In this Act, unless the context requires otherwise, 'unfair labour practices' mean any of the
practices listed in Schedules II, III and IV."
Sections 4 and 5 refer Industrial Court and its duties. As per Section 27, no employer or
union and no employees shall engage in any unfair labour practice. Section 28 provides
elaborate procedure for dealing with complaints relating to unfair labour practices.
Section 30 speaks about powers of Industrial and Labour Courts. Section 32 mandates the
Court shall have the power to decide all matters arising out of any application or a
complaint referred to it for the decision under any of the provisions of the Act. Section 59
makes it clear that if any proceeding is initiated under the the MRTU and PULP Act,
1971, no proceeding shall be entertained by any authority in respect of those matters
under the Bombay Industrial Relations Act, 1946 (Bombay Act) and Industrial Disputes
Act. 1947 (in short "the I.D. Act"). Section 60 prohibits filing of suits in any civil court in
respect of the subject-matter of a complaint or application to the Industrial Court or
Labour Court under this Act.
11. Though an objection was raised as to limitation in filing complaint before the
Industrial Court in view of reasons adduced and accepted by the Industrial Court and the
High Court, we are of the view that there is no need to elaborate the same. We also reject
the supplementary objection, namely, the complaint is hit by the principle of res judicata
since according to the Industrial Court, no sufficient material was placed to throw the
complaint on the ground of earlier/parallel proceeding in any other forum.
12. Coming to the main issue, according to the Union, the Company is having 500
employees working in the manufacturing and other activities. It is their specific case
@page-SC1871
that there is a canteen inside the campus of the manufacturing unit and it is a statutory
canteen and, therefore, the employees working in the canteen numbering 27 are the
employees of the company. It is not in dispute that the provisions of Factories Act, 1948
are applicable to the Company. Section 46(1) mandates that the State Government may
make rules requiring that in any specified factory wherein more than 250 workers are
ordinarily employed, a canteen or canteens shall be provided and maintained by the
occupier for the use of the workers. The presence of a canteen within the Company
premises and statutory provision as referred above are not disputed. However, it is the
case of the Company that the employees in the canteen are working through a contractor
and, therefore, they are not entitled for status of permanent employees of the Company.
Mr. P.P. Rao, learned senior counsel appearing for the appellant-Company, by drawing
our attention to various decisions of this Court would submit that unless relationship of
employer and employee exists, the present issue/claim cannot be gone into by the
Industrial Court under the provisions of the MRTU and PULP Act, 1971. In other words,
according to him, in view of the objection/stand taken in the reply statement before the
Industrial Court, the issue raised by the Union cannot be adjudicated and it is for the
Union or workmen to get an order under the provisions of the I.D. Act and thereafter,
approach the Industrial Court for necessary relief, if any. On the other hand, Mr.
Deshmuk, learned counsel appearing for the respondent-Union vehemently contended
that in view of the object of the enactment and all other details such as existence of a
canteen from several years, control and supervision by the company, the contractor is
only a name-lender and the Industrial Court has Jurisdiction to go into the issue raised in
the complaint. He further contended that based on the relevant acceptable materials, the
Industrial Court granted relief in favour of the Union which was rightly affirmed by the
High Court and the same cannot be lightly interfered under Article 136 of the
Constitution of India.
13. In the earlier part of our judgment, we have referred to the claim of both parties as
well as relevant provisions of the MRTU and PULP Act, 1971. Now let us consider
various pronouncements on the point in issue. The earliest decision relied on by the
Company is General Labour Union (Red Flag), Bombay vs. Ahmedabad Mfg. and Calico
Printing Co. Ltd. and Others, 1995 Supp (1) SCC 175. In that decision, General Labour
Union (Red Flag), Bombay had filed a complaint before the Industrial Court under the
MRTU and PULP Act, 1971 complaining of the breach of Items 1(a), (b), 4(a), (f) and 6
of Schedule II and Items 7, 9 and 10 of Schedule IV of the said Act. The case of the
complainant-union was that the 21 workmen who were working in one of the canteens of
the respondent-company, were not given the service conditions as were available to the
other workmen of the company and there was also a threat of termination of their
services. It is an admitted fact that these workmen were employed by a contractor who
was given a contract to run the canteen in question. The complaint was filed on the
footing that the workmen were the employees of the company and, therefore, the breach
committed and the threats of retrenchments were cognizable by the Industrial Court,
under the said Act. The complaint proceeded on the basis as if the workmen were a part
of the work-force of the company. The facts on record reveal that the workmen were
never recognised by the respondent-company as its workmen and it was the contention of
the company that they were not its employees. The Industrial Court dismissed the
complaint holding that since the workmen were not the workmen of the respondent-
company, the complaint was not maintainable under the said Act. The High Court in writ
petition confirmed the said finding and dismissed the petition on the same ground. Hence,
the Labour Union approached this Court by filing appeal. This Court has concluded as
under :-
"2. As pointed out both by the Industrial Court and the High Court, it was not established
that the workmen in question were the workmen of the respondent-company. In the
circumstances, no complaint could lie under the Act as is held by the two courts below.
We, therefore, find nothing wrong in the decision impugned before us. The workmen
have first to establish that they are the workmen of the respondent-company before they
can file any complaint under the Act. Admittedly, this has not been done. It is open for the
workmen to raise an appropriate industrial dispute in that behalf if they are entitled to do
so before they resort to the
@page-SC1872
provisions of the present Act."
14

. In Vividh Kamgar Sabha vs. Kalyani Steels Ltd. and Another, (2001) 2 SCC 381, similar
claim under the MRTU and PULP Act, 1971 was considered. The two Judge Bench
following the General Labour Union (Red Flag), Bombay case (supra) dismissed the
appeal filed by the workers-Union on the ground that the complaint was not maintainable.
Similar direction as issued in General Labour Union (Red Flag), Bombay case (supra) has
been issued in this case also. 2001 AIR SCW 170

15

. The next decision which is also under the MRTU and PULP Act, 1971 is Cipla Ltd. vs.
Maharashtra General Kamgar union and Others, (2001) 3 SCC 101. When similar claim
was made by the trade-Union against the Management Cipla Ltd., the same was
negatived by the Labour Court, However, the Division Bench of the High Court took a
different view of the matter and allowed the complaint. While considering the appeal
filed by Cipla, the two-Judge Bench accepted the case of the Management and rejected
the stand taken by the trade-Union. The argument of learned senior counsel appearing for
the Union that in view of Section 32 of the Act incidental question can be considered by
the Industrial Court was not acceptable and this Court concluded : 2001 AIR SCW 929

"11. Next decision relied upon by Shri Singhvi is Central Bank of India Ltd. v. P.S.
Rajagopalan AIR 1964 SC 743 to contend that even in cases arising under Section 33-
C(2) of the Industrial Disputes Act the scope, though very limited, certain incidental
questions can be gone into like a claim for special allowance for operating adding
machine which may not be based on the Sastry Award made under the provisions of
Chapter V-A. The learned counsel pointed out that in the event we were to hold that it is
only in clear cases or undisputed cases the Labour Court or the Industrial Tribunal under
the Act can examine the complaints made thereunder, the whole provision would be
rendered otiose and in each of those cases provisions of the Bombay Industrial Relations
Act, 1946 or the Industrial Disputes Act will have to be invoked. We are afraid that this
argument cannot be sustained for the fact that even in respect of claims arising under
Section 33-C(2) appropriate dispute can be raised in terms of Section 10 of the Industrial
Disputes Act and that has not been the position in the present case. Nor can we say that
even in cases where employer employee relationship is undisputed or indisputably
referring to the history of relationship between the parties, dispute can be settled and not
in a case of the present nature where it is clear that the workmen are working under a
contract. But it is only a veil and that will have to be lifted to establish the relationship
between the parties. That exercise, we are afraid, can also be done by the Industrial
Tribunal under the Bombay Industrial Relations Act, 1946 or under the Industrial
Disputes Act. Therefore, we are afraid that the contention advanced very ably by Shri
Singhvi on behalf of the respondents cannot be accepted. Therefore, we hold that the
High Court went far beyond the scope of the provisions of the Act and did not correctly
understand the decisions of this Court in Gujarat Electricity Board, Thermal Power
Station v. Hind Mazdoor Sabha, (1995) 5 SCC 27 and General Labour Union (Red Flag)
v. Ahmedabad Mfg. and Calico Printing Co. Ltd., 1995 Supp (1) SCC 175. The correct
interpretation of these decisions will lead to the result, which we have stated in the course
of this order." 1995 AIR SCW 2942

By saying so, allowed the appeal filed by Cipla Ltd.


15A

. The next decision heavily relied on the side of the appellant-Company is Sarva Shramik
Sangh vs. Indian Smelting and Refining Co. Ltd. and Others, (2003) 10 SCC 455. Here
again, this Court considered the very same provisions of the MRTU and PULP Act, 1971.
Similar contentions were raised by the Union and the Management. Basing reliance on
General Labour Union (Red Flag) Bombay (supra) and Cipla Ltd. (supra), this Court
concluded : 2003 AIR SCW 5989
2001 AIR SCW 929
"24.......... In order to entertain a complaint under the Maharashtra Act it has to be
established that the claimant was an employee of the employer against whom complaint
is made under the ID Act. When there is no dispute about such relationship, as noted in
para 9 of Cipla case the Maharashtra Act would have full application. When that basic
claim is disputed obviously the issue has to be adjudicated by the forum which is
competent to adjudicate. The sine qua non for application of the concept of unfair labour
practice is the existence of a direct relationship of employer and
@page-SC1873
employee. Until that basic question is decided, the forum recedes to the background in
the sense that first that question has to be got separately adjudicated. Even if it is
accepted for the sake of arguments that two forums are available, the court certainly can
say which is the more appropriate forum to effectively get it adjudicated and that is what
has been precisely said in the three decisions. Once the existence of a contractor is
accepted, it leads to an inevitable conclusion that a relationship exists between the
contractor and the complainant. According to them, the contract was a facade and sham
one which has no real effectiveness. As rightly observed in Cipla case it is the
relationship existing by contractual arrangement which is sought to be abandoned and
negated and in its place the complainant's claim is to the effect that there was in reality a
relationship between the employer and the complainant directly. It is the establishment of
the existence of such an arrangement which decides the jurisdiction. That being the
position, Cipla case rightly held that an industrial dispute has to be raised before the
Tribunal under the ID Act to have the issue relating to actual nature of employment sorted
out. That being the position, we find that there is no scope for reconsidering Cipla case
the view which really echoed the one taken about almost a decade back."
16

. In Oswal Petrochemicals vs. Govt. of Maharashtra and Others, (2005) 12 SCC 433
which is also a two-Judge Bench, while considering the very same Act, namely, the
MRTU and PULP Act, 1971 following the judgment of this Court in Cipla Ltd. (supra)
disposed of the appeal on the same terms. 2001 AIR SCW 929

17

. Though Mr. Deshmuk, learned counsel for the Union relied on several decisions and
also highlighted that all the above referred decisions are distinguishable, it is useful to
refer to a three-Judge Bench decision of this Court in Indian Petrochemicals Corporation
Ltd. and Another vs. Shramik Sena and Others, (1999) 6 SCC 439. This is an appeal
preferred by M/s. Indian Petrochemicals Corporation Limited and another (Management)
against an order dated 29-8-1997 made by the High Court of Judicature at Bombay in
W.P. No. 2206 of 1997 filed by the Shramik Sena and another (workmen). Against the
very same judgment, the workmen also filed appeal being C.A. No. 1855 of 1998. Both
the appeals clubbed together, heard and disposed of by the said common judgment. The
workmen therein filed a writ petition before the High Court of Bombay for a declaration
that the workmen whose names are shown in Ex, 'A' annexed to the said petition, are the
regular workmen of the Management and are entitled to have the same pay scales and
service conditions as are applicable to regular workmen of the Management. It was
further prayed that a direction be given to the Management to absorb the workmen listed
in the said Ex. 'A' with effect from the actual date of their entering into the service of the
canteen of the Management and to pay them all consequential benefits including arrears
of wages etc. 1999 AIR SCW 2740

18. According to the workmen, the workers listed in Ex. 'A' to the petition are working in
the canteen of the Management in its factory at Nagothane, District Raigad in the State of
Maharashtra, and the Management was treating them as persons employed on contract
basis through a contractor named M/s. Rashmi Caterers, who was impleaded in the writ
petition as Respondent 5. It was contended on behalf of the above workmen that the
factory of the Management where the workmen are employed, is governed by the
provisions of the Indian Factories Act, 1948 and the canteen where the said workmen are
employed is a statutory canteen established by the Management as required under the
said provisions of the Act. It was further contended that the said canteen is maintained for
the benefit of the workmen employed in the factory and the Management had direct
control over the said workmen and that Respondent 5, though shown as a contractor, has
no control over the Management, administration and functioning of the said canteen. The
canteen is a part of the establishment of the Management and the workers working in the
canteen are the workmen of the said Management. The further contention of the workmen
was that the work carried on by them in the said canteen is perennial in nature and the
canteen is incidental to and is connected with the establishment of the Management. It is
their further case that the Management is denying the said workmen the status of its
regular employees and was treating them as contract employees contrary to the statutory
provisions and Judicial pronouncements of this Court.
@page-SC1874
19. On behalf of the Management, it was contended before the High Court that it was a
public sector undertaking and it cannot appoint any person in contravention of the
recruitment policy which requires the Management to follow a roster system. Therefore,
apart from the fact that the workmen were not in the regular employment of the said
Management, the absorption or regularisation of the services of the said workmen would
contravene Article 16(4) of the Constitution, and would also contravene the reservation
policy which is applicable for recruitment in the establishment managed by it.
20

. The High Court, following the decision in Parimal Chandra Raha vs. LIC, 1995 Supp
(2) SCC 811 allowed the writ petition holding that since the workmen whose names were
found in Annexure 'A' to the petition are working in the statutory canteen of the
Management, they are entitled to be absorbed in the employment of the said Management
and also issued directions in regard to absorption of the employees. 1995 AIR SCW 2609

21. Being aggrieved by the said judgment and order of the High Court, the Management
has preferred C.A No. 1854 of 1998 and being aggrieved by the conditions imposed while
directing the absorption of the employees, on behalf of the workmen C.A. No. 1855 of
1998 has been preferred before this Court.
22
. Para 10 of the said decision shows that while considering at the SLP stage for granting
leave, a two-Judge Bench of this Court observed that the questions involved in these
appeals are of considerable importance and it will be desirable if the same is decided by a
Bench of three Judges. Consequently, both the appeals were heard by a three-Judge
Bench. Similar contentions as raised in the case on hand were raised on behalf of the
Management and Workmen. No doubt, taking note of the definition in S. 2(1) of the
Factories Act which defines "worker", did not accept the workmen's contention that
employees of a statutory canteen ipso facto become the employees of the establishment
for all purposes. After considering Parimal Chandra Raha's case (supra) and M.M.R.
Khan vs. Union of India, 1990 Supp SCC 191 and Reserve Bank of India vs. Workmen,
(1996) 3 SCC 267, this Court concluded that the workmen of a statutory canteen would
be the workmen of the establishment for the purpose of the Factories Act only and not for
all other purposes. Had the three-Judge Bench stopped therein, we have no other option
except to apply the principle as stated in General Labour Union (Red Flag) case (supra),
Vividh Kamgar Sabha case (supra), Cipla Ltd. case (supra), Sarva Shramik Sangh case
(supra) and Oswal Petrochemicals. However, from para 23 onwards, the three-Judge
Bench discussed the main issue with which we are concerned, namely, "whether from the
material on record it could be held that the workmen are, in fact, the employees of the
Management for all purposes". Since the factual details that arose in the Indian
Petrochemicals case (supra) are identical to the case on hand, we reproduce the following
discussion and the ultimate conclusion : 1995 AIR SCW 2609
1990 AIR SCW 937
1996 AIR SCW 1298
2001 AIR SCW 170
2001 AIR SCW 929
2003 AIR SCW 5989
1999 AIR SCW 2740

"25. Though the canteen in the appellant's establishment is being managed by engaging a
contractor, it is also an admitted fact that the canteen has been in existence from the
inception of the establishment. It is also an admitted fact that all the employees who were
initially employed and those inducted from time to time in the canteen have continued to
work in the said canteen uninterruptedly. The employer contends that this continuity of
employment of the employees, in spite of there being a change of contractors, was due to
an order made by the Industrial Court, Thane, on 10-11-1994 wherein the Industrial Court
held that these workmen are entitled to continuity of service in the same canteen
irrespective of the change in the contractor. Consequently, a direction was issued to the
Management herein to incorporate appropriate clauses in the contract that may be entered
into with any outside contractor to ensure the continuity of employment of these
workmen. The Management, therefore, contends that the continuous employment of these
workmen is not voluntary. A perusal of the said order of the Industrial Court shows that
these workmen had contended before the said Court that the Management was indulging
in an unfair labour practice and in fact they were employed by the Company. They
specifically contended therein that they are entitled to continue in the employment of
@page-SC1875
the Company irrespective of the change in 'the contractor. The Industrial Court accepted
their contention as against the plea put forth by the Management herein. The employer
did not think it appropriate to challenge this decision of the Industrial Court which has
become final. This clearly suggests that the Management accepted as a matter of fact that
the respondent workmen are permanent employees of the Management's canteen. This is
a very significant fact to show the true nature of the respondents employment. That apart,
a perusal of the affidavits filed in this Court and the contract entered into between the
Management and the contractor clearly establishes :
(a) The canteen has been there since the Inception of the appellant's factory.
(b) The workmen have been employed for long years and despite a change of contractors
the workers have continued to be employed in the canteen.
(c) The premises, furniture, fixture, fuel, electricity, utensils etc. have been provided for
by the appellant..
(d) The wages of the canteen workers have to be reimbursed by the appellant.
(e) The supervision and control on the canteen is exercised by 'the appellant through its
authorised officer, as can be seen from the various clauses of the contract between the
appellant and the contractor.
(f) The contractor is nothing but an agent or a manager of the appellant, who works
completely under the supervision, control and directions of the appellant.
(g) The workmen have the protection of continuous employment in the establishment.
26. Considering: these factors cumulatively, in addition to the fact that the canteen in the
establishment of the Management is a statutory canteen, we are of the opinion that in the
instant case, the respondent workmen are in fact the workmen of the appellant
Management.
27. At this stage, it is necessary to note another argument of Mr. Andhyarujina that in
view of the fact that there is no abolition of contract labour in the canteen of the
appellant's establishment, it is open to the Management to manage its canteen through a
contractor. Hence, he contends that by virtue of the contract entered into by the
Management with the contractor, the respondent workmen cannot be treated as the
employees of the Management. This argument would have had some substance if in
reality the Management had engaged a contractor who was wholly independent of the
Management, but we have come to the conclusion on facts that the contractor in the
present case is engaged only for the purpose of record and for all purposes the workmen
in this case are in fact the workmen of the Management. In the background of this
finding, the last argument of Mr. Andhyarujina should also fail."
23. In the light of above background, let us consider the factual details available and as
asserted in the complaint of the Union filed in our case. In order to establish the specific
plea raised in the complaint, the complainant has examined one Dagdu Deshmukh and
Shankar Nam Patil, Both of them are working in the canteen. According to Deshmukh, he
Joined the Company on 221.2.1982 and according to Shankar he is in the service of the
Company from 1.11.1989. The Complainant has enclosed a list of the employees working
in the canteen in the Annexure to the complaint. The Industrial Court, on perusal of the
said list, found that they joined the service in different years since 1978 till 1992. Most of
them have worked for more than 10 years. The Industrial Court has also concluded that
their dates of joining mentioned in Annexure to the complaint have not been disputed by
the Company. It is also demonstrated before the Court that there were number of
contractors since 1971 till the contract was taken by M/s. Gambhir Caterers, since 1965
to 1968 one Mehra was the canteen contractor. Thereafter, in 1968, one S.S.Shetty
worked as a Canteen Contractor. He was running the said canteen for 14 years.
Thereafter, the Universal Caterer was the Canteen Contractor from 1981 to 1995. After
1995, Gambhir Caterer is the Canteen Contractor. It is relevant to mention arid in fact not
disputed that in spite of the changes in the Canteen Contractor the service of the canteen
employees continued and they were not issued fresh appointment orders by any of the
canteen contractors including the last one; namely, Gambhir Caterer.
24. The Industrial Court analysed the evidence of Complainant's witness and also the
evidence of the Company. From the evidence and other materials, the Court noted the
following information :
@page-SC1876
(a) Canteen has been in existence since 1965.
(b) Canteen employees were working in four shifts.
(c) Canteen is situated in the company premises.
(d) The company has provided utensils, gas and other articles like chair, table, etc.
(e) The company has also provided room to the canteen employees for their residential
complex.
(f) Seven to Eight employees who are bachelors are residing in the said room.
(g) The company has provided electricity and water. Respective charges are not being
deducted from the wages of the employees.
(h) The company has also supplied umbrellas for the rainy season.
(i) The company is paying maintenance charge and electricity charge and other expenses
of the canteen.
(j) All the facilities including premises to the canteen are provided by the company.
(k) The wages of employees of the canteen are reimbursed by the company.
(l) The company is purchasing the food items.
(m) Whenever there is rise in the wages of the employees, it is the company who is to pay
the same.
(n) The company is providing three sets of uniforms to the employees and also providing
service washermen.
(o) The employer's contribution P.F. is reimbursed by the company.
(p) In the past the company has regularized some of the employees working in the
canteen.
From the above, it is clear that all the facilities to the canteen are provided by the
company.
25

. It is true that Sridhar Bhandari, the Manager of Gambhir Caterer, in his evidence has
stated that the workers are keeping the attendance card, muster roll (Exs.C-12 and C-13)
and payment details of Gambhir Caterer. In view of the above statement, the Industrial
Court ventured to find legitimate control over the activities of the canteen employees,
While considering the said issue, the Court verified various terms of agreement dated 28-
11-1995. The relevant terms have been reproduced in para 49 of the order of the
Industrial Court which clearly show that it is the duty of the company to provide canteen
premises free of rent along with free water, electricity, fuel, furniture, fixtures, crockery
and all cooking utensils. It further shows that the company has fixed the rate of meals,
eatables, snacks, tea and beverages etc. As rightly pointed out by the Industrial Court,
apart from the evidence let in on the side of the union and the company from the terms of
contract, it is clear that it is the duty of the company to provide sufficient premises,
furniture, fuel, gas, electricity, water and also laid down several procedure as to how food
items to be supplied. As rightly concluded by the Industrial Court, the company has
clearly laid down the quality, quantity, the rates and manner of supplying food articles.
After adverting to clause (d)(1)(2) of the agreement, the Industrial Court has concluded
that though responsibility is cast upon the contractor to make payment of wages, P.F.
contribution etc. on submission of the bills, the amounts are to be paid/reimbursed by the
company. The above details clearly show that though certain amounts are being paid by
the contractor, in the real sense, ultimately, it is the company which pays all the amounts.
From the evidence and the materials, it is also clear that the activities of the workmen in
the canteen, their suitability to work, physical fitness are ultimately controlled by the
company. In those circumstances, the Industrial Court is perfectly right in arriving the
conclusion that the evidence coupled with the terms of agreement show that the contract
is nothing but paper agreement. As stated earlier, in spite of change of several contractors,
neither the workmen were replaced nor fresh appointments were made. On the other
hand, same workmen were continuing even on the date of filing of the complaint. Taking
note of all the above-mentioned relevant materials, special circumstances and most of the
employees are working for more than 10-15 years and finding that there is no valid
reason for the company to deny their permanency, the Industrial Court rightly concluded
that the company has committed unfair labour practice under Item 9 of Schedule IV of
the MRTU and PULP Act, 1971 and issued appropriate directions. With the materials
placed, we are also of the opinion that even though the 1999 AIR SCW 2740

@page-SC1877
record shows that canteen is being run by the contractor, ultimate control and supervision
over the canteen is of the Company. Inasmuch as the facts on hand are identical to the
decision in Indian Petrochemicals Corpn. Ltd. case (supra) which is a three-Judge Bench
decision which was not cited before any of the decisions relied on by the company, in
view of the circumstances narrated in the earlier paras, we accept the conclusion arrived
by the Industrial Tribunal.
26. Coming to the impugned order of the High Court, it is argued that in spite of the
earlier direction of this Court in SLP (C) No. 9244 of 1999, the High Court has not
adverted to the relevant aspects and committed the same error in confirming the order of
the Industrial Court. In the light of the said contention, we have gone through the
impugned decision of the High Court, which clearly shows that the High Court was
conscious about the observation of this Court. The High Court order further shows that it
has adverted to the relevant details furnished before the Industrial Court and analysed the
same and finally after recording that the finding of fact arrived by the Industrial Court
cannot be termed as perverse and they are based on proper appreciation of evidence and
sound reasoning dismissed the Letters Patent Appeal. We do not see any error or infirmity
in arriving such conclusion. On the other hand, as discussed above, we are in entire
agreement with the conclusion arrived by the Industrial Court and affirmed by the High
Court.
27

. In the light of what has been stated above and in view of abundant factual details as
mentioned in para 24 of this judgment as well as the reasonings as laid down in Indian
Petrochemicals Corpn. Ltd. case (supra), we reject the stand taken by the appellant-
Company. Accordingly, the appeal fails and the same is dismissed. Inasmuch as the
Industrial Court has issued directions as early as on 15-10-1998 and not implemented due
to court proceedings, we direct the appellant-Company to implement the same within a
period of three months from the date of receipt of copy of this judgment. No costs.
1999 AIR SCW 2740

Appeal dismissed.
AIR 2008 SUPREME COURT 1877 "Kuchibotla Saran Kumar v. State of A. P."
(From : Andhra Pradesh)*
Coram : 2 S. B. SINHA AND H. S. BEDI, JJ.
Criminal Appeal No. 1013 of 2006, D/- 4 -3 -2008.
Kuchibotla Saran Kumar v. State of A.P.
Penal Code (45 of 1860), S.300 - MURDER - EVIDENCE - Murder - Circumstantial
evidence - Accused strangulating his would be wife on her refusal to go ahead with
marriage - Evidence of parents of deceased and independent witnesses that accused had
threatened to kill deceased if marriage is not performed - Accused and deceased found to
be taking animately near place of incident on fateful day - Accused absconding and
attempting to hide his identity after day of incident - Accused liable to be convicted for
murder. (Para 5)

Shiv Kumar Suri, for Appellant; Anoop G. Choudhari, Mrs. June Choudhary, Sr.
Advocates, Devendra Kumar Singh, Mrs. D. Bharathi Reddy, for Respondent.
* Cri. Appeal No. 699 of 2003, D/- 18-7-2005 (AP).
Judgement
1. HARJIT SINGH BEDI, J. :-This appeal by way of special leave arises out of the
following facts.
2. P. Sesha Sudha, the deceased herein, got her M.Tech. Degree from the J.N.T.U.,
Hyderabad and joined as an ad hoc Lecturer in the college of which, PW1 P.
Ramakrishna Reddy was the Principal. As the parents of the deceased were keen that she
should settle down in marriage, they were considering some suitable boy for that purpose.
She accordingly informed her parents PW 6 P. Koorma Rao and PW 7 Smt. P. Nalini that
she wanted to marry the accused and though initially they were reluctant about her
choice, they accepted her proposal on her insistence. The matter was accordingly
discussed with his parents as well and the marriage was fixed at the Green Park Hotel at
Vishakapatnam for 23rd March, 2000 and an advance of Rs.2,000/- was also paid to
confirm the booking. It appears, however, that before the marriage could be solemnized,
differences arose between the two and they informed PW6, the father of the deceased that
they were not keen to go ahead with the marriage. The accused however telephoned PW6
separately and informed him that though the deceased was not inclined
@page-SC1878
towards the marriage, he was still interested in doing so and that he would not marry any
one else. At about 11 a.m., on 9th February 2000, PW2 J. Bhagwan Reddy informed PW1
P. Ramakrishna Reddy that they had found the dead body of P. Sesha Sudha lying in the
Electrical Engineering Laboratory. Enquiries were made by PW1 P. Ramakrishna Reddy
and PW2 J. Bhagwan Reddy from several persons and they were told that on the previous
day the accused and the deceased had been seen together. The Police which had also been
informed arrived at the Laboratory at about 11.30 a.m. on which PW1 gave a type written
report Ex.P.1 to PW19 P. Santosh Kumar and the formal FIR was registered under
Section 302 of the IPC naming the accused as the assailant. The necessary enquiries were
also made by PW19 at the place of incident and the dead body was thereafter sent for the
post-mortem examination. The post-mortem held on 10th February, 2000 by PW13 Dr. B.
Jagan Mohan, Assistant Professor, Forensic Medicine, Osmania Medical College,
Hyderabad revealed that the cause of death was strangulation by a ligature. PW19 also
made a search for the accused and he was ultimately arrested from Vishakapatnam from
his uncle's house at about 3.30 p.m. on 13th February, 2000. On the interrogation of the
accused, several articles, Exs. P-10, P-11, P-13, P15 and P-18 were recovered from him.
On the completion of the investigation, the accused was charged for an offence
punishable under Section 302 of the IPC. He pleaded innocence and claimed trial.
3. The prosecution examined 19 witnesses in all i.e. PW1 to PW19 and also produced
several documents in support of its case. PW5 V. Subbalaxmaiah and PW9 Jaipal Reddy
however did not support the prosecution and they were declared hostile. The trial court
held that the deceased and the accused were residents of Vishakapatnam and that they had
been in love since their college days and that the love had fructified into a proposal for
marriage which had also been fixed for 23rd March, 2000 at the Green Park Hotel at
Vishakapatnam. The trial court also observed that the accused, in his statement recorded
under Section 313 of the Cr.P.C. had in fact admitted the marriage proposal but denied
that any dispute had arisen subsequently leading to its break up. The court, however,
observed that the parents of the deceased, PWs.6 and 7 had confirmed that their daughter
had called off the marriage as the accused had been insulting and beating her in the
presence of strangers and that the accused had even telephoned them on several occasions
and threatened that in case their daughter did not marry him and were to marry some one
else, he would kill her and that this part of the evidence had been confirmed by PW16 A.
Srinivas Rao as well. Corroboration for this statement was also taken from the evidence
of Satish Singh, PW15 an HRD Consultant who knew the deceased and the accused and
deposed that they were proposing marriage and that a common friend Vani Prasad (who
too was the family friend of the couple) had informed him that the deceased had called
him in the first week of January, 2000 to her hostel and on going there, he had found the
deceased and the accused talking to each other and while the accused was insisting that
they should get married, the deceased was refusing to do sb. PW15 also deposed that
some letters which the deceased had written to the accused had been returned to her on
his insistence. The Court further found that the deceased had left Vishakapatnam on 5th
February, 2000 and returned to Hyderabad by the Godavari Express on the morning of
8th February, 2000 and had gone to her college but as it was the sports day, no classes
had been held and that the accused had telephoned PW6 P. Koorma Rao seeking to
ascertain the programme of the deceased and after having done so, had gone to her
college and thereafter committed her murder with the chunni that she had been wearing.
The Court also concluded that the conduct of the accused also pointed to his guilt as he
had gone to his flat at Ramanthapur, taken his luggage, left his scooter in the house of his
relative in Marredpally, Secunderabad and then gone on to Jangan and wandered around
aimlessly at Nellore and Chennai and had ultimately returned to Vizag and on 13th
February, 2000 at about 3.30 p.m. and had been arrested by PW19 P. Santosh Kumar and
thereafter several incriminating articles had been recovered from his residence. The court
also believed the statement of PW3 A. Hanumantha Rao, a Lab Technician and PW-2 J.B.
Reddy, the Head of Department where the deceased had been employed as an ad hoc
Lecturer that they had seen the accused and the deceased talking animatedly
@page-SC1879
with each other near the Scooter Parking of the Department at about 11 or 11.30 a.m. on
8th February, 2000 and observed that these were independent witnesses who had no axe
to grind against the accused and that from the evidence of PW3 A. Hanumantha Rao and
PW5 V. Subbalaxmaiah, it was clear that the Laboratory had been locked up at 4.30 p.m.
on 8th February, 2000 and that the dead body could not be noticed earlier as it was lying
in a place which was not visible from the door. The Court relied on the medical evidence
and observed that the presence of the ligature mark over the neck and other injuries fully
supported the case of the prosecution regarding the cause of death and the manner in
which it had been caused. The court found further corroboration from the recoveries at
the instance of the accused, more particularly the relevant entries in the arrival and
departure registers at the Shiva Hotel (Exs.P-62 and 63) where the accused had stayed
under the assumed name of K.V. Reddy on 11th February, 2000 from 1.00 p.m. to 9.00
p.m. and the arrival and departure registers of hotel Sunder, Nellore Ex.P65, copy of the
bill dated 11th February, 2000 Ex.P-66 and the advance receipt Ex.P-67 which supported
the prosecution story that the accused had absconded and had been hiding from the
police. The court also held from the evidence of PW10, the General Manager of the
APTECH Institute where the accused was working and who had produced documents to
show that the accused had applied for 2 days leave for 7th and 8th February, 2000, and
that he was to be out of station on 6th February, 2000 and that he had intended to go to
Hyderabad and that he had reached Hyderabad on 7th February, 2000 and on ascertaining
from her parents, the programme of the deceased, had returned to Vishakapatnam on 8th
February, 2000 and gone to the college and met her. The trial court accordingly convicted
and sentenced the accused for an offence punishable under section 302 of the IPC and
sentenced him to undergo imprisonment for life and to pay a fine of Rs.500/- and in
default of payment of fine, simple imprisonment for three months. The matter was taken
in appeal before the High Court which has confirmed the findings of the trial court
leading to the present appeal by way of special leave.
4. We have heard the learned counsel for the parties.
5. The learned counsel for the appellant has reiterated the arguments raised before the
trial court. We now re-examine the evidence. The fact that the couple had proposed to
marry is virtually admitted and is even otherwise proved on record by ample evidence.
The fact that the marriage had been fixed for 23rd March, 2000 as also the fact that an
advance payment for the booking of the marriage venue, that is the Green Park Hotel at
Vishakapatnam had also been made, is proved on record. We also find that there is a clear
cut motive for the murder as the parents of the deceased, as also several other witnesses
who knew the couple have categorically deposed that the appellant had warned that in
case the deceased would not marry him she would be killed as he would not tolerate her
marriage to anyone else. In addition to this, it is clear from the evidence of PW 19 that he
had recovered certain love letters from the accused written to the deceased by the accused
and that these letters along with the admitted hand writing of the accused had been sent to
the Forensic Science Laboratory which opined in its report Ex.P-70 that the writings were
of the same person. We also find that the conduct of the accused in absconding and
attempting to hide his identity after the murder stands proved by the fact that he had
registered in Hotel Shiva, Chennai and Hotel Sunder at Nellore under the assumed name
of K.V. Reddy and these entries were also proved as being in the handwriting of the
accused in the report Ex.P-70. It is significant that the accused had admitted during the
course of statement under Section 313 of the Cr.P.C that most of the items which had
been sent to the Forensic Science Laboratory had been seized by the police at
Vishakapatnam. It has also been clearly revealed that the deceased and the accused had
been seen together on the day of the murder talking animatedly in the premises of the
College by several witnesses. We also find that the trial court and the High Court have
discussed the evidence threadbare. We find no fault in the judgments of the courts below.
The appeal is accordingly dismissed.
Appeal dismissed.
@page-SC1880
AIR 2008 SUPREME COURT 1880 "Najeeb v. State of Kerala"
(From : Kerala)*
Coram : 3 Dr. A. PASAYAT, P. SATHASIVAM AND AFTAB ALAM, JJ.
Civil Appeal No. 1910 of 2002, D/- 3 -3 -2008.
Najeeb and Ors. v. State of Kerala.
Kerala Land Reforms Act (1 of 1964), S.84, S.81(1)(t)(iii) - LAND REFORMS - LAND
CEILING - WAKF - Land ceiling - Holding of declarant - Determination - Wakf land
held by declarant as Mutawalli - Cannot be included in his holding on ground of non-
satisfaction of conditions in S.81(1)(t)(iii).
C.R.P. No. 950 of 1992, D/-03-04-2000 (Ker), Reversed.
Section 81(1)(t)(iii) relates to exemption to Universities. Public Institutions and Trust.
The question of exemption would arise only when land in excess of per missible limit is
held by a Public Trust and exemption is sought for under S. 81(1)(t). The Proviso to S.
81(1)(t)(iii) has no role to play while dealing with the question whether the land was to be
included in the holding of the individual-declarant. As such once the declarant holding
Wakf land as its Mutawalli has shown that the land in question was in name of Wakf, the
Wakf land cannot be refused to be excluded from his individual holding on ground that he
has failed to show that the income arising out of Wakf land was exclusively used for
purpose of the Wakf.
C.R.P. No. 950 of 1992, D/-03-04-2000 (Ker), Reversed. (Paras 9, 10)

T.L.V. Iyer, Sr. Advocate, T.G. Narayanan Nair with him, for Appellants; P.V. Dinesh and
Sindhu T.P., for Respondent.
* C.R.P. No. 950 of 1992, D/- 3-4-2000 (Ker).
Judgement
1. Dr. ARIJIT PASAYAT, J. :- Challenge in this appeal is to the judgment of the learned
Single Judge of the Kerala High Court allowing the Civil Revision Petition.
2. Respondent-State of Kerala filed a Civil Revision Petition under Section 103 of the
Kerala Land Reforms Act. 1963 (in short the 'Act'). Challenge in the revision was to the
order of the Taluk Land Board, dated 22-2-1991 holding that the declarant was liable only
to surrender an extent of 0.26.250 acres of land. Stand of the State was that the property
held by the so-called Wakf of which the declarant was Muthavalli was to be included
while determining the extent of land held by the predecessors of the appellant.
3. Background facts in a nutshell are as follows :
The predecessor of the appellants (hereinafter called the declarant) filed a statement
under Section 85 of the Act. After an enquiry the Taluk Land Board determined that the
declarant held an extent of 2.5.700 acres of land in excess of the ceiling area. An extent of
2.55 acres was taken possession of. On the ground that the declarant had failed to
disclose certain other lands held by him, the Taluk Land Board reopened the matter and
after hearing the declarant passed a revised order dated 13-12-1977 holding that a further
extent of 5.42.500 acres of land is also liable to be surrendered by the declarant. The
declarant filed C.R.P.4053 of 1977 before the High Court. The High Court held that
certain lands acquired by the declarant after 1-1-1970 were also sought to be included by
the Taluk Land Board and the same could not be done. Apparently, the High Court took
the view that such subsequent acquisitions could be considered only in a proceeding
initiated under Section 87 of the Act. Deleting the extent of land acquired after 1-1-1970
the High Court directed the Taluk Land Board to consider whether an extent of 3.13 acres
allegedly set apart for a Madrassa was liable be included or was liable to be exempted on
the ground that it was a Wakf property. The High Court gave an opportunity to the
declarant to establish that the income from the said extent wholly went to the Wakf and
not to the personal account of the declarant. Thus clarifying that in the present proceeding
the Taluk Land Board was only concerned with the land held by the declarant as on 1-1-
1970 the High Court directed a reexamination of the claim regarding 3.13 acres of land.
The Taluk Land Board thereafter passed an order on 13-12-1982 holding that the
declarant had not produced any reliable evidence to show that the income from properties
allegedly set apart for the Madrassa went to the Wakf except two registers said to be the
account books of income and expenditure which was found to be unreliable. The Taluk
Land Board held that the registers were seen to be written up recently and there was
nothing to show that those accounts related to the properties in question. The Taluk Land
Board also entered a finding that its enquiry revealed that only a
@page-SC1881
share of the income goes to the Madrassa and the major portion goes to the personal
account of the declarant. The Taluk Land Board therefore held that in the absence of
evidence, properties could not be deleted from the account of the declarant. The Taluk
Land Board thereupon directed that the declarant was bound to surrender an extent of
2.93.500 acres of land. The declarant filed another Revision before the High Court as
C.R.P.3618 of 1982. Pending the revision the declarant died and his legal representatives
were impleaded as additional petitioners. By order dated 7-7-1989 the High Court held
that a fresh enquiry as ordered by it has not been conducted by the Taluk Land Board
regarding the claim of exclusion on the ground of the lands being dedicated to a Wakf and
the reliance on the report of the authorised officer which the declarant alleged was
prepared without notice to him was not sufficient to disallow the claim of the declarant.
The contention of the declarant that the account books produced by him establish his case
noticed by the High Court which directed the Taluk Board to reconsider the question
whether the entire income from the property in dispute was appropriated for the benefit of
the Wakf and whether the property was liable to be exempted under Section 81(1)(t)(iii)
of the Act. Thereafter the Taluk Land Board did not consider whether the declarant has
adduced any evidence to establish the acceptability of the books of account and whether
they are acceptable. It simply referred to the report of an authorised officer to the effect
that a Madrassa was functioning, which was one registered with the Kerala Wakf Board
and that the same was being managed by its Muthavalli. It also noticed that according to
the report, the income from certain lands having an extent of 2.67.250 acres, was being
used for the purpose of the Madrassa. Report of the authorised officer was accepted and
the Taluk Land Board proceeded to exempt 2.67.250 acres of land under Section 81(1)(t)
(iii) of the Act. Thus the Taluk Land Board held that the declarant was liable to surrender
only an extent of 0.26.250 acres of land.
4. Stand of the State before the High Court was that burden to show that the land was
taken in by the order, inclusion of which has been upheld by the High Court earlier, was
on the declarant who has failed to discharge that burden. It was further submitted that the
accounts were clearly written up at a stretch and there was no material to show that
income from the land was wholly spent for the benefit of the Wakf. The High Court with
reference to Section 81(1)(t)(iii) of the Act held that it had to be shown that the land was
owned or held by a public trust which expression included a Wakf. The proviso provides
that the exemption is available to a public trust only if the entire income of such lands is
appropriated for the trust concerned. It was concluded that there was nothing to show that
these lands were owned or held by a public trust on the appointed day, i.e. 1-1-1970 to
which date exemption under Section 81 relates. It was further held that the declarant
failed to prove that the land in question qualified for the exemption. Accordingly, as
noted above, Civil Revision was allowed.
5. Learned counsel for the appellants submitted that the basic approach of the High Court
was wrong.
6. Reference was made to Section 81(1)(t)(iii) which relates to exemption. The proviso
appears in the Chapter III which deals with the exemption. In the instant case, the Wakf
was not claiming any exemption. Therefore, the requirement of Section 81(1)(t)(iii) could
not have been pressed into service by the High Court. The State's stand in this regard was
thoroughly misconceived. It was also pointed out that in the earlier round of litigation, it
has been clearly held that the Wakf in question was a public trust. Conclusions to the
contrary made by the High Court are clearly unsustainable.
7. Learned counsel for the respondent-State supported the order.
8. Section 81(1)(t)(iii) on which the High Court has placed reliance reads as follows :
"81 Exemption :- (1) The provisions of this Chapter shall not apply to -
xxxx xxxx
(t) lands owned or held by -
(i) a University established by law; or
(ii) a religious, charitable or educational institution of a public nature; or
(iii) a public trust (which expression shall include a wakf) :
Provided that
(i) the entire income of such lands is appropriated for the University, institution or trust
concerned; and
@page-SC1882
(ii) where the University, institution or trust come to hold the said lands after the
commencement of this Act, the Government have certified previously that such lands are
bona fide required for the purposes of the University, institution or trust, as the case may
be;"
9. It is a part of Chapter III of the Act. As rightly contended by learned counsel for the
appellants it relates to exemption. The proviso has no role to play while dealing with the
question whether the land was to be included in the holding of the declarant. The question
of exemption arises only when land in excess of the permissible limit is held by a public
trust and exemption is sought for on the basis of what is provided in the proviso (i) or (ii).
It is not the case of the State that the Wakf was required to be registered. This Issue was
gone into by the High Court in the earlier round in Civil Revision No.4053/77-B. It was,
inter alia, held as follows :
"Similarly another extent of 3.13 and odd acres was added on to the petitioner's account
by holding that certain properties set apart for Madrasa in 1123 M.E. and others
subsequently acquired were really being enjoyed by the petitioner. The main reason stated
for rejecting the plea that the property belonged to a Wakf is that the Wakf has not been
registered under Wakf Act. I have not been taken through any provisions of the Wakf Act
which lays down that unless registered under that Act, any declaration dedicating
property in the manner required by the Mohammedan Law cannot be given effect to.
Counsel for the petitioner submits that the subsequent acquisitions are in the name of the
Wakf itself, and that the Wakf has also been subsequently registered. The approach made
by the Taluk Land Board is erroneous; it cannot be presumed that there is no Wakf at all
because there is no Registration under the Act. The Taluk Land Board may probably be
justified in enquiring as to whether the income from the property goes to the Wakf, or to
the personal account of the declarant. As I said, the matter requires re-examination. This
finding is therefore set aside and the Taluk Land Board is directed to reconsider the
question in accordance with law."
10. This Court by order dated 20-4-2001 had directed the appellants to file an affidavit
along with documents to show that the property stands in the name of the Madrassa. The
documents have been filed which clearly show that the settlement deeds were executed in
the years 1952, 1958, 1962 and 1966. Authenticity of the documents has not been
questioned.
11. Looked from any angle, the impugned order is clearly unsustainable in view of the
position in law highlighted above.
12. The appeal is allowed but in the circumstances without any order as to costs.
Appeal allowed.
AIR 2008 SUPREME COURT 1882 "Khilari v. State of U. P."
(From : Allahabad)*
Coram : 2 Dr. A. PASAYAT AND P. SATHASIVAM, JJ.
Criminal Appeal No. 481 of 2008 (arising out of SLP (Cri.) No. 960 of 2007), D/- 13 -3
-2008.
Khilari v. State of U. P. and Anr.
Criminal P.C. (2 of 1974), S.389 - SENTENCE SUSPENSION - BAIL - APPEAL - Ball
pending appeal against conviction - Accused convicted for murder - Eye-witnesses
alleging that assault on deceased was by iron rod - Bail granted only on ground that some
of ante-mortem injuries could not be caused by iron rod - Order not sustainable. (Paras
11, 12)
Cases Referred : Chronological Paras
2005 AIR SCW 4641 : AIR 2005 SC 3530 : 2005 Cri LJ 4132 : 2005 All LJ 3361 : 2005
AIR - Jhar HCR 2453 (Rel. on) 10
2004 AIR SCW 1581 : AIR 2004 SC 1866 : 2004 Cri LJ 1796 : 2004 AIR - Jhar HCR
1410 10
2004 AIR SCW 7409 : AIR 2005 SC 1481 : 2005 All LJ 1252 (Rel. on) 9
2002 AIR SCW 1342 : AIR 2002 SC 1475 : 2002 Cri LJ 1849 : 2002 All LJ 961 (Ref.)
10
2001 AIR SCW 1935 : AIR 2001 SC 2023 : 2001 Cri LJ 2566 (Ref.) 10
S. Chandra Shekhar, and Jogendra Kumar, for Appellant; Shail Kumar Dwivedi, AAG,
Vishwajit Singh, Javed Mahmud Rao, Kamlendra Mishra, Ms. Vandana Mishra and Ms.
Vibha Dwivedi, for Respondents.
* Cri. A. No. 6724 of 2006, D/- 15-11-2006 (All)
Judgement
1. Dr. ARIJIT PASAYAT, J. :-Leave granted.
2. Challenge in this appeal is to the order
@page-SC1883
passed by a Division Bench of the Allahabad High Court allowing the prayer for bail
made by respondent No.2 during the pendency of Criminal Appeal No.6724 of 2006.
Challenge before the High Court was to the conviction recorded by learned Sessions
Judge, Bagpat, in Sessions Trial No.299 of 2000. Respondent No.2 was convicted for
offences punishable under Section 302 and Section 506 of the Indian Penal Code, 1860
(in short 'IPC') and was sentenced to undergo imprisonment for life and one year for the
offences respectively. He and his two sons were also convicted allegedly for committing
murder of Shiv Kumar. Challenging the conviction appeal has been filed and
simultaneously prayer for being released on bail during the pendency of the appeal was
filed. By the impugned order the Division Bench accepted the prayer and granted bail to
the respondent No.2. The High Court noted that the allegation was that the Incident took
place on 9-3-2000 at about 8.30 p.m. and accused No.2 and his two sons assaulted Shiv
Kumar (hereinafter referred to as the 'deceased') mercilessly with iron rods and he
succumbed to the injuries.
3. The only stand taken was that the ante-mortem injuries on the body of the deceased
included three contusions, one abraded contusion and four lacerated wounds of different
dimensions on various parts of the body which could not have been caused by iron rods.
It was their stand that some unknown assailants caused the injuries to the deceased.
4. The prosecution and the present appellant opposed the prayer for grant of bail and PWs
1 and 2 and the informant had seen the attacks and were eye-witnesses to the occurrence
and PW 3 is an independent witness. Their evidence has been analysed in great detail by
the trial Court who found that credible and cogent. So far as the possibility of injuries is
concerned, that aspect was also examined by the trial Court.
5. After noticing the rival stands the High Court by the impugned order granted the bail
with the following conclusions :
"Looking to all facts and circumstances of the case and particularly the ante-mortem
injuries and after consideration the submissions made on behalf of the parties we find it
appropriate to release appellant on bail during pendency of the appeal."
6. Learned counsel for the informant appellant submitted that the approach of the High
Court is clearly erroneous. After the conviction has been recorded by believing three eye-
witnesses and also discarding the stand that it was not possible by iron rods, the High
Court should not have by a cryptic order directed grant of bail. It was, therefore,
submitted that the impugned order is unsustainable.
7. Learned counsel for the State supported the stand of the informant.
8. Learned counsel for the appellant No.2 accused submitted that it is common
knowledge that appeals in the High Court take long time for disposal. The balance has to
be struck between the right to speedy trial and the need for the accused being in custody.
The High Court has taken note of relevant factors and has granted bail.
9

. The parameters to be adopted while dealing with the application for ball by suspension
of sentence during the pendency of the appeal has been examined by this Court in several
cases. In Kishori Lal v. Rupa and Ors. (2004 (7) SCC 638) it was noted as follows :
2004 AIR SCW 7409

"4. Section 389 of the Code deals with suspension of execution of sentence pending the
appeal and release of the appellant on bail. There is a distinction between bail and
suspension of sentence. One of the essential ingredients of Section 389 is the requirement
for the appellate court to record reasons in writing for ordering suspension of execution
of the sentence or order appealed against. If he is in confinement, the said court can direct
that he be released on bail or on his own bond. The requirement of recording reasons in
writing clearly indicates that there has to be careful consideration of the relevant aspects
and the order directing suspension of sentence and grant of bail should not be passed as a
matter of routine.
5. The appellate court is duty-bound to objectively assess the matter and to record reasons
for the conclusion that the case warrants suspension of execution of sentence and grant of
bail. In the instant case, the only factor which seems to have weighed with the High Court
for directing suspension of sentence and grant of bail is the absence of allegation of
misuse of liberty during the earlier period when the accused-respondents were on bail."
@page-SC1884
10

. In Anwari Begum v. Sher Mohammad and Anr. (2005 (7) SCC 326) it was, inter alia,
observed as follows : 2005 AIR SCW 4641
Paras 8 and 9

"7. Even on a cursory perusal the High Court's order shows complete non-application of
mind. Though detailed examination of the evidence and elaborate documentation of the
merits of the case is to be avoided by the Court while passing orders on bail applications,
yet a court dealing with the bail application should be satisfied as to whether there is a
prima facie case, but exhaustive exploration of the merits of the case is not necessary. The
court dealing with the application for bail is required to exercise its discretion in a
judicious manner and not as a matter of course.
8. There is a need to indicate in the order, reasons for prima facie concluding why bail
was being granted particularly where an accused was charged of having committed a
serious offence. It is necessary for the courts dealing with application for bail to consider
among other circumstances, the following factors also before granting bail, they are :
1. The nature of accusation and the severity of punishment in case of conviction and the
nature of supporting evidence;
2. Reasonable apprehension of tampering of the witness or apprehension of threat to the
complainant;
3. Prima facie satisfaction of the Court in support of the charge.

Any order dehors of such reasons suffers from non-application of mind as was noted by
this Court, in Ram Govind Upadhyay v. Sudarshan Singh and Ors. [(2002) 3 SCC 598];
Puran etc. v. Rambilas and Anr. etc. [(2001) 6 SCC 338)] and in Kalyan Chandra Sarkar
v. Rajesh Ranjan alias Pappu Yadav and Anr. [JT 2004 (3) SC 442]." 2002 AIR
SCW 1342
2001 AIR SCW 1935
2004 AIR SCW 1581

11. As the extracted portion and the High Court's order goes to show there was complete
non-application of mind and non-consideration of the relevant aspects.
12. The impugned order, therefore, is not sustainable and is dismissed. The bail granted to
the respondent No.2 is cancelled. The matter is remitted to the High Court for fresh
consideration in accordance with law.
13. The appeal is allowed to the aforesaid extent.
Order accordingly.
AIR 2008 SUPREME COURT 1884 "P. Swaroopa Rani v. M. Hari Narayana"
(From : Andhra Pradesh)*
Coram : 2 S. B. SINHA AND V. S. SIRPURKAR, JJ.
Civil Appeal Nos. 1734 and 1735 of 2008 (arising out of SLP (C) Nos. 15670 and 16215
of 2006), D/- 4 -3 -2008.
P. Swaroopa Rani v. M. Hari Narayana @ Hari Babu.
Civil P.C. (5 of 1908), S.96 - APPEAL - CRIMINAL PROCEEDINGS - APPELLATE
COURT - Appeal - Stay to criminal proceedings - Criminal proceedings for forgery
initiated on basis of observations made in civil suit - Appeal against civil Court's decree -
Appellate Court can certainly go into correctness of observations made - But filing of an
independent criminal proceeding is not barred under any statute - Stay granted to criminal
proceedings - Improper. (Paras 12, 15, 16, 17, 19)
Cases Referred : Chronological Paras
2005 AIR SCW 1929 : AIR 2005 SC 2119 : 2005 Cri LJ 2161 : 2005 AIR -- Jhar HCR
1526 (Ref.) 13
(2005) 12 SCC 226 (Ref.) 13
(2004) 13 SCC 421 (Disting.)16
AIR 1954 SC 397 : 1954 Cri LJ 1019 (Ref.) 13, 14
V.R. Reddy, Sr. Advocate, M. Vijaya Bhaskar and P.S. Narsimah, for Appellant; Bhaskar
Gupta, Sr. Advocate, Y. Raja Gopala Rao and Ms. Y. Vismai, for Respondent.
* A. S. M. P. No. 1067 of 2006 in A. S. No. 271 of 2006, D/- 17-7-2006 (AP).
Judgement
1. S. B. SINHA, J. :-Leave granted.
2. Appellant is the owner of a cinema theatre. An agreement of sale dated 28-03-2001
was entered into by and between the parties hereto in respect of the said property for a
consideration of Rs. 64 lakhs. Respondent made part payment of Rs. 32,97,000/- of the
said amount. A suit for specific performance of the contract was filed as no deed of sale
was executed in terms of the said agreement dated 28-03-2001.
3. During hearing of the said suit, a receipt was filed showing payment of a sum of Rs.
4,03,000/- to the appellant herein. The said receipt was marked as Exhibit A. 15. On the
said basis, allegedly, possession of the theatre was obtained by the respondent. The
learned Trial Judge, however, dismissed the said suit by an order dated 29-04-2006 inter
alia opining :
@page-SC1885
"45.Therefore, in the circumstances I find that there is no evidence produced by the
plaintiff which is sufficient to outweigh the opinion and the evidence of D.W.4. Further it
is to be seen that though after execution of Ex. A. 15 he came to know about huge debts
by defendant under the said mortgage deeds, taxes dues and other statutory liabilities and
that defendant were not co-operating and adopted evasive attitude in clearing the debts,
dues and other liabilities and were not allowing him to discharge the mortgage debt to the
Union Bank of India, he kept quiet till filing of the suit, without even issuing a notice to
the defendant. Even if he was in possession as claimed by him with effect from the date
of Ex.A. 15, in view of the huge debts and liabilities, which to his knowledge the
defendant was not in a position to discharge and not making any efforts to discharge the
same he would not have kept quiet in the normal circumstances without issuing any
notice to the defendant. Thus there is no mention about this Ex.A. 15 dated 18-09-2002 in
the written form anywhere till he filed the plaint on 05-12-2002. Therefore, these
circumstances also render the oral evidence of P.W. 1 and P.W.2 highly doubtful on this
aspect. Therefore, in these circumstances I find that the evidence of D.W.4 and the
contents of Ex.C.4 opinion and Ex.C.5 reasons for opinion are sufficient to prove that the
signature of D.W. 1 is forged in Ex.A. 15. Therefore in the circumstances it shall be held
that the contention of the plaintiff and the evidence of P.W. 1 that on 18-09-2002 he paid
Rs. 4,03,000/- towards part of sale consideration and D.W. 1 delivered possession of
plaint schedule theatre to him is not true. Therefore, in the circumstances it also shall be
held that the plaintiff failed to prove that he came into possession of the plaint schedule
property in pursuance of the part performance of the contract covered by Ex.A.4."
It was furthermore opined :
"Therefore, following this decision of the Honourable High Court of Andhra Pradesh it
shall be held that the plaintiff, since failed to prove that he paid Rupees 4,03,000/-towards
part payment of sale consideration of D.W. 1 and she delivered possession of plaint
schedule to him on 18-09-2002 and passed Ex.A. 15 receipt. It shall be held that though
the time is not the essence of the contract and the plaintiff is justified in not making
further remaining part of sale consideration by 31-12-2001, since he approached the court
with unclean hands he cannot be granted a decree for specific performance. Since it is a
specific case that he came into possession of plaint schedule property in part performance
of Ex. A.4 agreement of sale, on 18-09-2002 under Ex. A. 15 and failed to prove the
same, it is irrelevant and not necessary to decide how he came into possession of the
plaint schedule property. Therefore, in the circumstances he is also not entitled for
protection under section 53-A of Transfer of Property Act and hence is not entitled to
seek perpetual injunction."
4. Appellant, in view of the said observations, lodged a First Information Report, which
was marked as Crime No. 79 of 2006, in the Kadapa Police Station alleging that the said
receipt (Ex. A. 15) was a fabricated document.
5. Respondent, however, preferred an appeal against the said judgment and decree dated
29-04-2006. In the said appeal preferred by the respondent, an application for interim
stay of the operation of the said judgment was filed. A Division Bench of the High Court
by a judgment and order dated 24-05-2006 directed :
"Going by the principle that an appeal is a continuation of the suit and the state of affairs
obtaining during the pendency of the suit must be continued, as far as possible, during the
appeal also, we grant an interim direction to the effect that the petitioner shall be entitled
to remain in possession of the suit schedule theatre, subject to the condition that it shall
deposit a sum of Rs. 30,000/- (Rupees thirty thousand only) per month, commencing
from June 2006, until further orders. It shall also be open to the respondent to withdraw
the amount without furnishing any security."
6. Respondent filed Miscellaneous Petition in the said appeal, being ASMP No. 995 of
2006, for modification of the order dated 24-05-2006, which was allowed by an order
dated 17-07-2006.
7. By another order dated 17-07-2006, the High Court stayed the proceedings in Crime
No. 79 of 2006.
8. Appellant is, thus, before us.
9. Mr. V. R. Reddy, learned Senior Counsel appearing on behalf of the appellant in Civil
Appeal arising out of SLP (C) No. 15670 of 2006, would submit that the High Court
@page-SC1886
committed a serious illegality in staying the investigation of a criminal case.
10. Mr. P. S. Narsimah, learned counsel appearing on behalf of the appellant in Civil
Appeal arising out of SLP (C) No. 16215 of 2006, would submit that keeping in view the
observations made by the learned Trial Judge and furthermore in view of the fact that the
respondent had not approached the court with clean hands, no interim order in his favour
should have been passed.
11. Mr. Bhaskar Gupta, learned senior counsel appearing on behalf of the respondent, on
the other hand, submitted that the court has power to grant injunction even in respect of a
proceeding which is stricto sensu not the subject-matter of the proceedings before the
High Court.
12. The High Court indisputably is a final court of fact. It may go into the correctness or
otherwise of the findings arrived at by the learned Trial Judge. A' fortiori it can set aside
the findings of the court below that the Ex. A. 15 is a forged document or its authenticity
could not be proved by the respondent.
13
. It is, however, well-settled that in a given case, civil proceedings and criminal
proceedings can proceed simultaneously. Whether civil proceedings or criminal
proceedings shall be stayed depends upon the fact and circumstances of each case. [See
M.S. Sheriff v. State of Madras, AIR 1954 SC 397, Iqbal Singh Marwah v. Meenakshi
Marwah (2005) 4 SCC 370 and Institute of Chartered Accountants of India v. Assn. of
Chartered Certified Accountants (2005) 12 SCC 226]. 2005 AIR SCW 1929

14. It is furthermore trite that Section 195(1)(b)(ii) of the Code of Criminal Procedure
would not be attracted where a forged document has been filed. It was so held by a
Constitution Bench of this Court in Iqbal Singh Marwah (supra) stating :
"25. An enlarged interpretation to Section 195(1)(b)(ii), whereby the bar created by the
said provision would also operate where after commission of an act of forgery the
document is subsequently produced in court, is capable of great misuse. As pointed out in
Sachida Nand Singh after preparing a forged document or committing an act of forgery, a
person may manage to get a proceeding instituted in any civil, criminal or revenue court,
either by himself or through someone set up by him and simply file the document in the
said proceeding. He would thus be protected from prosecution, either at the instance of a
private party or the police until the court, where the document has been filed, itself
chooses to file a complaint. The litigation may be a prolonged one due to which the actual
trial of such a person may be delayed indefinitely. Such an interpretation would be highly
detrimental to the interest of the society at large.
26. Judicial notice can be taken of the fact that the courts are normally reluctant to direct
filing of a criminal complaint and such a course is rarely adopted. It will not be fair and
proper to give an interpretation which leads to a situation where a person alleged to have
committed an offence of the type enumerated in clause (b)(ii) is either not placed for trial
on account of non-filing of a complaint or if a complaint is filed, the same does not come
to its logical end. Judging from such an angle will be in consonance with the principle,
that an unworkable or impracticable result should be avoided. In Statutory Interpretation
by Francis Bennion (3rd Edn.), para 313, the principle has been stated in the following
manner :
"The court seeks to avoid a construction of an enactment that produces an unworkable or
impracticable result, since this is unlikely to have been intended by Parliament.
Sometimes, however, there are overriding reasons for applying such a construction, for
example, where it appears that Parliament really intended it or the literal meaning is too
strong.""
In regard to the possible conflict of findings between civil and criminal court, however, it
was opined :
"32. Coming to the last contention that an effort should be made to avoid conflict of
findings between the civil and criminal courts, it is necessary to point out that the
standard of proof required in the two proceedings are entirely different. Civil cases are
decided on the basis of preponderance of evidence while in a criminal case the entire
burden lies on the prosecution and proof beyond reasonable doubt has to be given. There
is neither any statutory provision nor any legal principle that the findings recorded in one
proceeding may be treated as final or binding in the other, as both the cases have to be
decided on the basis of the evidence adduced therein......"
It was concluded :
@page-SC1887
"33. In view of the discussion made above, we are of the opinion that Sachida Nand
Singh has been correctly decided and the view taken therein is the correct view. Section
195(1)(b)(ii), Cr. PC would be attracted only when the offences enumerated in the said
provision have been committed with respect to a document after it has been produced or
given in evidence in a proceeding in any court i.e. during the time when the document
was in custodia legis."
15. Filing of an independent criminal proceeding, although initiated in terms of some
observations made by the civil court, is not barred under any statute.
16. The High Court, therefore, in our opinion, was not correct in staying the investigation
in the said matter.
Reliance has been placed by Mr. Gupta on Mahar Jahan and others v. State of Delhi and
others [(2004) 13 SCC 421] wherein this Court was dealing with a proceeding under
Section 145 of the Code of Criminal Procedure. This Court noticed that a civil dispute
was given the colour of a criminal case. As therein a proceeding under Section 145 of the
Code of Criminal Procedure was pending, when a civil suit was also pending before a
competent court of law, it was opined :
"4. It is not disputed by the learned counsel for the parties that this very property which is
the subject-matter of these criminal proceedings is also the subject-matter of the civil suit
pending in the civil court. The question as to possession over the property or entitlement
to possession would be determined by the civil court. The criminal proceedings have
remained pending for about a decade. We do not find any propriety behind allowing these
proceedings to continue in view of the parties having already approached the civil court.
Whichever way proceedings under Section 145, Cr. P.C. may terminate, the order of the
criminal court would always be subject to decision by the civil court. Inasmuch as the
parties are already before the civil court, we deem it proper to let the civil suit be decided
and therein appropriate interim order be passed taking care of the grievances of the
parties by making such arrangement as may remain in operation during the hearing of the
civil suit."
It was furthermore observed :
"7. We have simply noted the contentions raised by the parties. The civil court, in our
opinion, would be the most appropriate forum to take care of such grievances and pass
such interim order as would reasonably protect the interests of both the parties. The civil
court may issue an ad interim injunction, may appoint a Commissioner or Receiver or
may make any other interim arrangement as to possession or user of the property which is
the subject-matter of proceedings in the civil court exercising the power conferred on it
by Sections 94 and 151 of the Code of Civil Procedure."
It was, therefore, a case where this Court quashed a proceeding under Section 145 of the
Code of Criminal Procedure as the matter pending before it arose out of a civil
proceedings. Such observations were made keeping in view the fact that possession of the
parties over the property in suit was in question.
17. The impugned order, therefore, cannot be sustained which is set aside accordingly.
Civil Appeal arising out of SLP (C) No. 15670 of 2006 is allowed.
18. We, however, are of the opinion that the High Court should be requested to hear the
appeal as early as possible and preferably within a period of three months from the date
of receipt of a copy of this order. This, however, may not be taken to mean that we have
entered into the merit of the matter.
19. It goes without saying that the respondent shall be at liberty to take recourse to such a
remedy which is available to him in law. We have interfered with the impugned order
only because in law simultaneous proceedings of a civil and a criminal case is
permissible.
20. In view of the aforementioned observations, we are of the opinion that the interim
order dated 24-05-2006 as modified by an order dated 17-07-2006 need not be interfered
with particularly in view of the fact that according to the respondent it had made a
payment of Rs. 35,47,000/- besides the disputed payment of Rs. 4,03,000/- and made
deposits of Rs. 67,54,088/-.
21. For the reasons aforementioned, Civil Appeal arising out of SLP (C) No. 16215 of
2006 is dismissed.
Order accordingly.
@page-SC1888
AIR 2008 SUPREME COURT 1888 "Pancham Chand v. State of Himachal Pradesh"
(From : Himachal Pradesh)*
Coram : 2 S. B. SINHA AND V. S. SIRPURKAR, JJ.
Civil Appeal No. 1732 of 2008 (arising out of SLP (C) No. 1615 of 2008), D/- 4 -3 -2008.
Pancham Chand and Ors. v. State of H.P. and Ors.
(A) Motor Vehicles Act (59 of 1988), S.70, S.72, S.67 - MOTOR VEHICLES - STATE -
Stage carriage permit - Application for - Neither can be made to Chief Minister - Nor can
he direct grant - State Govt.'s power limited to framing of policy.
C. W. P. No. 1217 of 2004, D/-16-09-2008 (HP), Reversed.
Chief Minister of a State has no role to play in the matter of grant of stage carriage
permit. Neither can he entertain any application nor can he pass any order thereon.
Section 72 of the Act empowers the Regional Transport Authority to grant stage carriage
permit in respect of any route or the area specified in the application. The Act is a
selfcontained Code. All the authorities mentioned therein are statutory authorities. They
are bound by the provisions of the Act. They must act within the four corners thereof. The
State, although, have a general control but such control must be exercised strictly in terms
of Art. 162 of the Constitution of India. Having regard to the nature and the manner of the
control specified therein, it may lay down a policy. Statutory authorities are bound to act
in terms thereof, but per se the same does not authorize any Minister including the Chief
Minister to act in derogation of the statutory provisions. Any such interference on the part
of any authority upon whom the Act does not confer any jurisdiction, is wholly
unwarranted in law. It violates the constitutional scheme. It interferes with the
independent functioning of a quasi judicial authority.
C. W. P. No. 1217 of 2004, D/-15-09-2005 (HP), Reversed. (Paras 17, 18, 20)
(B) Constitution of India, Art.163 - COUNCIL OF MINISTERS - STATE - State Govt. -
Functioning - Takes place through Council of Ministers - Not Chief Minister alone.
(Para 17)
(C) Constitution of India, Art.226 - WRITS - PRACTICE AND PROCEDURE -
AFFIDAVIT - Writ petition - Practice and procedure - Petition against order of statutory
authority - Affidavit in response to notice - Authority bound to place before Court facts as
borne out from records - Not supposed to affirm an affidavit together with State and
defend State or Chief Minister. (Para 26)
Cases Referred : Chronological Paras
AIR 1979 SC 114 (Ref.) 19
AIR 1978 SC 851 (Rel. on) 22
AIR 1952 SC 16 (Rel. on) 21, 22
Ravi Bakshi and Yash Pal Dhingra, for Appellants; J.S. Attri, Dr. R.P. Sharma,
T.C.Sharma and V.N. Raghupathy, for Respondents.
* C. W. P. No. 1217 of 2004, D/- 15-9-2005 (HP)
Judgement
S. B. SINHA, J. :- Leave granted.
1. Whether Chief Minister of a State has any role to play in a matter of grant of permit of
a Stage Carriage Permit in terms of the provisions of the Motor Vehicles Act, 1988 (for
short "the Act") is in question in this appeal which arises out of a judgment and order
dated 15th September, 2005 passed by a Division Bench of the Himachal Pradesh High
Court, Shimla, in C.W.P. No. 1217 of 2004.
2. The basic fact of the matter is not in dispute.
Appellants are the bus owners. They applied for grant of stage carriage permits for
different routes before the Regional Transport Officer as envisaged under Section 70 of
the Act. While Appellant No. 1 had applied for grant of route - Tikri to Palampur,
Palampur to Chahiar and Palampur to Jaisinhpur, Appellant No.2 had applied for grant of
permit for the route Palampur to Jaisinhpur, Jaisinhpur to Baijnath and Jaisnhpur to
Palampur, Appellant No.3 had applied for the route Indora to Kaaza, Maclodganj to
Mandi and Damtal to Manali.
3. Fourth respondent, who is said to have a political connection being a leader of
Congress Party, approached the State Chief Minister directly by a letter, which reads
thus :-
"The Hon'ble Chief Minister,
Himachal Pradesh, Shimla
Subject :- Application regarding route permit.
Hon'ble Sir,
With due regards, it is requested that I have previously requested for the route permit, but
I was not given any route permit in the meeting of RTA. I have come to the
@page-SC1889
Oakover and I have again stated that no buses are running on the route and still then I was
not given any route. It is, therefore, requested that the following route may kindly be
granted in my favour,
Baijnath Tikkari Panchrukhi 6RT. This route was notified, but not issued to any one.
Yours faithfully,
Sd/-
(Rajinder Rana)
Tehsil Baijnath, District Kangara"
4. The said letter was addressed on the letter-head of Mandal Congress Committee, Rajgir
Panchukhi, Himachal Pradesh. Respondent No.4 described himself to be the President
thereof. The said letter was received in the official residence of the Chief Minister. The
Chief Minister's office by a letter dated 9th March, 2004 addressed to the Commissioner
(Transport), Himachal Pradesh, respondent No.5, directed :-
"It has been approved that permit may be sanctioned in favour of Shri Rajender Rana,
VOP Rakkar, Tehsil Baijnath Tikri, Panchrukhi-G RT route. A copy of his application is
enclosed.
Commissioner Transport, H.P. is requested to please take further action accordingly and
send compliance report to this office.
Sd/-
Additional Secretary to
Dt. 9-3-2004
Chief Minister, HP"
5. The Director Transport-Respondent No.2 herein, in turn, communicated the said order
to the Regional Transport Officer by his letter dated 16th March, 2004 asking him to
place the said proposal in the next meeting of the Regional Transport Authority after
obtaining an application from the applicant in the prescribed format. It furthermore
appears that the Chief Minister's Office again on 9th June, 2004 issued another letter to
the second respondent indicating approval for grant of a route permit in favour of the 4th
respondent. Respondent No.2 was requested to take action as per observations of the
Hon'ble Chief Minister.
6. Indisputably a meeting of the Authority was held on 3rd July, 2004 but no decision was
taken on the applications filed by the appellants, although the same were made prior in
time to that of the one filed by the respondent No.4, who had approached the Chief
Minister, A Stage Carriage Permit was granted in favour of the fourth respondent for the
said route.
7. Aggrieved, a writ petition was filed by the appellants before the Himachal Pradesh
High Court which was marked as CWP No. 1217 of 2004. While issuing notice in the
said writ petition, operation of the permit granted in favour of the fourth respondent was
directed to be stayed by the High Court.
8. In their counter-affidavit, the State of Himachal Pradesh, Director (Transport),
Regional Transport Authority and Commissioner (Transport) inter alia contended that the
routes applied for by the appellants and that of respondent No.4 are different and the
permit was granted in his favour purely on merit. A rejoinder thereto was filed by the
appellants stating that the permit was being granted only on the instructions of the higher
authorities and not in accordance with law.
9. By reason of the impugned judgment the Division Bench of the High Court dismissed
the writ petition of the appellants, stating :-
"It is the admitted case of the parties that the route in respect (of) which permit has been
granted to respondent No.4 is different from the routes in respect of which applications
have been made by the writ petitioners. Therefore, in our considered view the writ
petitioners can have no grievance against respondent No.4.
Now the Directorate of Transport, Shimla, vide communicaton dated 4th January, 2005
(Annexure R-1) with a view to implementing the provision of Section 68(3)(ca) of the
Motor Vehicles Act has conveyed the decision of the State Government to all the
Regional Transport Officers that all the applications pending with the Regional Transport
Authority for grant of route permit, except those which are in respect of 100%
exclusively rural routes or 109 notified routes, are to be deemed to have been rejected. In
view of the issuance of this communication by the Directorate of Transport, Shimla, we
direct respondent No.3, i.e. Regional Transport Authority, Dharamshala Through its
Secretary, to consider the pending applications of the writ petitioners for grant of permits,
if those applications or any of them
@page-SC1890
pertain to route(s) which are 100% exclusively rural route(s) or which are among 109
notified routes within a period of six weeks from today. With these directions, the writ
petition is disposed of."
10. Notice was issued by this Court on 30th January, 2006 confined only to the question
as to whether the application for grant of permit filed under the Motor Vehicles Act can
be filed before any authority other than the one prescribed there-under.
11. Mr. Ravi Bakshi, learned counsel appearing on behalf of the appellants urged that the
High Court committed manifest error in refusing to apply the legal principles involved in
the matter inasmuch as under no circumstances, applications for grant of permit could be
filed before the Chief Minister or any other authority or processed by them, other than
those specified in the Act.
12. Mr. J.S. Aattri, learned counsel appearing on behalf of the State and Dr. R.P. Sharma,
learned counsel appearing on behalf of respondent No.4, on the other hand, urged that the
permit was granted having regard to the need of the public and not under the direction of
the Chief Minister. Even otherwise it was urged that the State has the requisite
jurisdiction to issue instructions laying down the policy for grant of permits.
13. The Motor Vehicles Act, 1988 was enacted to consolidate and amend the law relating
to motor vehicles. While enacting the Act the Parliament inter alia took into account
changes in the road transport technology, pattern of passenger and freight movements,
development of the road network in the country and particularly the improved techniques
in the motor vehicles management. The Parliament also took into consideration the
reports of various Committees and the Working Groups appointed for the said purpose.
14. Section 2(41) of the Act defines "permit" to mean a permit issued by a State or
Regional Transport Authority or any authority prescribed in this behalf under the Act
authorizing the use of a motor vehicle as a transport vehicle. "Transport vehicle" has been
defined in Section 2(47) to mean a public service vehicle, a goods carriage, an
educational institution bus or a private service vehicle.
15. Chapter V of the Act provides for control of transport vehicles. Section 66 provides
for necessity for permits in terms whereof a statutory embargo has been placed to the
effect that no owner of a motor vehicle shall use or permit the use thereof as a transport
vehicle, save in accordance with the conditions of a permit granted or countersigned by a
Regional or State Transport Authority or any prescribed authority.
16. Section 67 of the Act empowers the State Government to control road transport
having regard to the factors enumerated therein. Section 68 provides for constitution of
the State Transport Authority. An application for grant of Stage Carriage Permit, as
envisaged under Section 69 of the Act, is to be filed in terms of Section 70 thereof,
detailing the particulars specified therein. Section 71 provides for the procedures to be
followed by the Regional Transport Authority in considering application for stage
carriage permit. Section 72 empowers the Regional Transport Authority to grant stage
carriage permit in respect of any route or the area specified in the application. The other
provisions contained in the said Chapter provide for the mode and manner for dealing
with the applications for grant of other types of permits.
17. The Act is a self-contained Code. All the authorities mentioned therein are statutory
authorities. They are bound by the provisions of the Act. They must act within the four
corners thereof. The, State, although, have a general control but such control must be
exercised strictly in terms of Article 162 of the Constitution of India. Having regard to the
nature and the manner of the control specified therein, it may lay down a policy. Statutory
authorities are bound to act in terms thereof, but per se the same does not authorize any
Minister including the Chief Minister to act in derogation of the statutory provisions.
Constitution of India does not envisage functioning of the Government through the Chief
Minister alone. It speaks of Council of Ministers. The duties or functions of the Council
of Ministers are ordinarily governed by the provisions contained in the Rules of Business
framed under Article 166 of the Constitution of India. All governmental orders must
comply with the requirements of a statute as also the constitutional provisions. Our
Constitution envisages a rule of law and not rule of men. It recognizes that, howsoever
high one may be, he is under law and the Constitution. All the constitutional functionaries
must,
@page-SC1891
therefore, function within the constitutional limits.
18. Apart from the fact that nothing has been placed on record to show that the Chief
Minister in his capacity even as a Member of the Cabinet was authorized to deal with the
matter of transport in his official capacity, he had even otherwise absolutely no business
to interfere with the functioning of the Regional Transport Authority. Regional Transport
Authority being a statutory body is bound to act strictly in terms of the provisions thereof.
It cannot act in derogation of the powers conferred upon it. While acting as a statutory
authority it must act having regard to the procedures laid down in the Act. It cannot bye-
pass or ignore the same.
19. Factual matrix, as indicated hereinbefore, clearly goes to show that the fourth
respondent filed the application before the Chief Minister straightway. Office of the Chief
Minister communicated the order of the Chief Minister, not once but twice. Respondent
No.2 acted thereupon. It advised the Regional Transport Authority to proceed, after
obtaining a proper application from respondent No.4 in that behalf. This itself goes to
show that prior thereto no proper application was filed before the Regional Transport
Authority. Such an interference on the part of any authority upon whom the Act does not
confer any jurisdiction, is wholly unwarranted in law. It violates the constitutional
scheme. It interferes with the independent functioning of a quasi judicial authority. A
permit, if granted, confers a valuable right. An applicant must earn the same.
In D. Nataraja Mudaliar vs. The State Transport Authority, Madras, AIR 1979 SC 114 :
(1978) 4 SCC 290, this Court held :
"9. The Authority must, remember that a permit holder has an ordinary right of renewal
unless it is shown that outweighing reasons of public interest lead to a contrary result.
Permits are not bounty but right, restricted reasonably by the Motor Vehicles Act."
The application of the respondent No.4, therefore, was to be entertained along with other
similarly situated persons.
20. In the matter of grant of permit to individual applicant, the State has no say. The
Chief Minister or any authority, other than the statutory authority, therefore, could not
entertain an application for grant of permit nor could issue any order thereupon. Even any
authority under the Act, including the appellate authority cannot issue any direction,
except when the matter comes up before it under the statute.
21. In Commissioner of Police vs. Gordhandas Bhanji, AIR 1952 SC 16, this Court
held :-
"It is clear to us from a perusal of these rules that the only person vested with authority to
grant or refuse a license for the erection of a building to be used for purposes of public
amusement is the Commissioner of Police. It is also clear that under Rule 250 he has
been vested with the absolute discretion at any time to cancel or suspend any license
which has been granted under the rules. But the power to do so is vested in him and not in
the State Government and can only be exercised by him at his discretion. No other person
or authority can do it."
22. Yet again in Mohihder Singh Gill and another vs. The Chief Election Commissioner,
New Delhi and others, AIR 1978 SC 851 : (1978) 1 SCC 405.

"8. The second equally relevant matter is that when a statutory functionary makes an
order based on certain grounds, its validity must be judged by the reasons so mentioned
and cannot be supplemented by fresh reasons in the shape of affidavit or otherwise.
Otherwise, an order bad in the beginning may, by the time it comes to court on account of
a challenge, get validated by additional grounds later brought out. We may here draw
attention to the observations of Bose, J. in Gordhandas Bhanji : AIR 1952 SC 16 at p.
18

"Public orders, publicly made, in exercise of a statutory authority cannot be construed in


the light of explanations subsequently given by the officer making the order of what he
meant, or of what was in his mind, or what he intended to do. Public orders made by
public authorities are meant to have public effect and are intended to affect the actings
and conduct of those to whom they are addressed and must be construed objectively with
reference to the language used in the order itself."
Orders are not like old wine becoming better as they grow older."
23. It is not a case where the statutory authority was hearing a grievance from the public
that buses are not plying in a particular
@page-SC1892
route as a result whereof the villagers were suffering.
24. Respondent No.4 appears to be the owner of a fleet of buses. He had a political
connection. Such political connection encouraged him to file an application for grant of
permit before the Chief Minister directly. The Chief Minister could not have entertained
the same nor usurp the function of the Regional Transport Authority.
25. Similarly, the respondent No.2 committed a serious Illegality in forwarding the same
to the respondent No.3 with the purported recommendations of the Chief Minister.
26. We also fail to understand as to how an independent quasi judicial body, like the
respondent No.3, could affirm an affidavit together with the State. Its duty before the
High Court, in response to the rule issued by it, was to place the facts as borne out from
the records. It was not supposed to take any stand one way or the other. It had no business
to defend the State or the Chief Minister.
27. For the reasons aforementioned, the appeal is allowed with costs. The impugned
judgment is set aside. As a limited notice was issued, we need not pass any consequential
order which is within the realm of the Regional Transport Authority.
28. We impose a cost of Rupees one lakh upon the State which may be paid to the
National Legal Services Authority. The said amount may be deposited within a period of
four weeks failing which it will be open to the National Legal Services Authority to
realize the same with interest @ 12 % per annum.
Appeal allowed.
AIR 2008 SUPREME COURT 1892 "Hinsa Virodhak Sangh v. Mirzapur Moti Kuresh
Jamat"
(From : Gujarat)
Coram : 2 H. K. SEMA AND MARKANDEY KATJU, JJ.
Civil Appeal No.5469 with 5470, 5472, 5474, 5476-78 and 5479-5481 of 2005, D/- 14 -3
-2008.
Hinsa Virodhak Sangh v. Mirzapur Moti Kuresh Jamat and Ors.
(A) Constitution of India, Art.19(1)(g), Art.19(6), Art.14, Art.21 - Bombay Provincial
Municipal Corporation Act (59 of 1949), S.466(1)(D)(b) - FREEDOM OF TRADE -
EQUALITY - RIGHT TO LIFE - MUNICIPALITIES - Right to trade - Restriction on -
Municipal slaughter houses - Closure for 9 days during religious festival of Jains - Do not
violate Art.19(1)(g), Art.21 - Restriction imposed is reasonable.
S. C. A. No. 6239 of 1998, D/-22-06-2005 (Guj.), Reversed.
The closure of the municipal slaughter houses during religious festival of Jain community
(Paryushan) is not an unreasonable restriction on the rights of Butchers to carry on trade
and business in livestock, mutton etc. Had the impugned municipal resolutions ordered
closure of municipal slaughter houses for a considerable period of time the impugned
resolutions may have become invalid being an excessive restriction on the rights of the
butchers of the City who practice their profession of meat selling. After all, butchers are
practising a trade and it is their fundamental right under Art. 19(1)(g) of the Constitution
which is guaranteed to all citizens of India. Moreover, it is not a matter of the proprietor
of the butchery shop alone. There may be also several workmen therein who may become
unemployed if the slaughter houses are closed for a considerable period of time. One of
the conditions of the licence given to the shop owners is to supply meat regularly in the
city and this supply comes from the municipal slaughter houses. Closure for many days
would not therefore be proper. Also, a large number of people are non-vegetarian and
they cannot be compelled to become vegetarian for a long period. What one eats is one's
personal affair and it is a part of his right to privacy which is included in Art. 21 of our
Constitution. However, in the instant case the closure of the slaughter houses is only for 9
days and not for a considerable period of time. (Paras 25, 26, 27, 31)
A period of 9 days is a very short time and surely the non-vegetarians can become
vegetarians during those 9 days out of respect for the feeling of the Jain community. Also,
the dealers in meat can do their business for 358 days in a year, and they have to abstain
from it for only 9 days in a year. Surely this is not an excessive restriction, particularly
since such closure has been observed for many years.
S. C. A. No. 6239 of 1998, D/-22-06-2005 (Guj), Reversed. (Paras 34, 36)
(B) Constitution of India, Art.21 - RIGHT TO LIFE - Right to privacy - To be vegetarian
or non-vegetarian - Is one's personal affair
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It is part of right of privacy. (Para 26)
(C) Constitution of India, Art.246, Art.226 - Bombay Provincial Municipal Corporation
Act (59 of 1949), S.466 - LEGISLATION - WRITS - MUNICIPALITIES - JUDICIAL
REVIEW - Delegated legislation - Judicial review - Municipal resolution directing
closure of municipal slaughter houses for 9 days - A piece of delegated legislation - Only
limitation on it is that it should not violate provisions of parent statute or of Constitution -
Court can declare it as unconstitutional only if these limitations are violated. (Paras
38, 39, 40)
Cases Referred : Chronological Paras
2008 AIR SCW 1836 (Rel. on) 39
2005 AIR SCW 5723 : AIR 2006 SC 212 23
2004 AIR SCW 1652 : AIR 2004 SC 1896 : 2004 All LJ 1156 (Rel. on) 37
1994 AIR SCW 4420 : AIR 1995 SC 264 (Rel. on) 26
AIR 1986 SC 1205 11, 16
AIR 1986 SC 1213 15
AIR 1970 SC 93 18, 19, 20, 21, 22, 23, 24
AIR 1961 SC 448 20
AIR 1958 SC 731 19, 23
AIR 1952 SC 196 : 1952 Cri LJ 966 (Rel. on, Pnt. A) 33, 35
Soli J. Sorabjee, P.H. Parekh, U.N. Bhachawat, T.R. Andhyarujina, Suresh Shelat, Sr.
Advocates, E.R. Kumar, Ashok Jain, Ardhendumauli Kumar Prasad, Ajay Jha, Arjun
Garg, Shubhranshu Padhi, Somnadri Gaud (for M/s. Parekh and Co.), Anip Sachthey,
Mohit Paul, Alok Bhachawat, Ms. Madhavi Divan, Ms. Hemantika Wahi, Ms. Pinky, Ms.
Jasal, Prashant G. Desai, Tejas Patel, S. C. Patel and Subhashish Bhowmic, for Appellant;
M. N. Rao, Fakhruddin, Sr. Advocates, W.A. Nomani, Abdul Karim Ansari, Aftab Ali
Khan, Abdul Qadir, Raj Kishore Chaudhary, A. Ramesh, M. Z. Chaudhary, N. K. Neeraj,
Imtiaz Ahmed and Mrs. Naghma Imtiaz (for M/s. Equity Lex Associates), for
Respondents.
Judgement
MARKANDEY KATJU, J. :- Civil Appeal No. 5469/2005
1. This appeal by special leave has been filed against the impugned judgment dated 22-6-
2005 of the Division Bench of the Gujarat High Court in Special Civil Application No.
6329 of 1998.
2. Heard learned counsel for the parties and perused the record.
3. Respondent No. 1 claims to be a registered public charitable trust working for
safeguarding the interests of the persons engaged in the business of slaughter and sale of
livestock, mutton etc. It is alleged that it is functioning in the city of Ahmedabad in
Gujarat since 1962 and has about 3000 members. Respondent No. 2 All Ahmedabad
(Chhoti Jamat) Mutton Merchant Association is an association of persons who are
engaged in the sale of mutton in the city of Ahmedabad. Respondent No.3 is an
individual who is doing the business of selling mutton in the city of Ahmedabad.
4. The common grievance of the respondents herein (the writ petitioners before the High
Court), is that with a view to appease the Jain community the State Government and the
Ahmedabad Municipal Corporation (in short 'the Corporation') have, from time to time,
taken decisions/passed resolutions for closure of the municipal slaughter houses in
Ahmedabad during the period of the Paryushan festival (which is an important Jain
festival) resulting in serious violation of their fundamental right to trade and do business
in meat etc. They have alleged that in the year 1993, the State Government accepted the
demand of some organizations belonging to the Jain community for closure of the
municipal slaughter houses during the period of Paryushan and issued directions to the
Corporation to take appropriate action accordingly. In subsequent years, the Corporation
passed resolutions for closure of the municipal slaughter houses for different period
ranging from 8 to 18 days during the Paryushan festival.
5. They have alleged that the closure of the municipal slaughter houses directly results in
violation of their fundamental rights to do trade and business as guaranteed by Article
19(1)(g) of the Constitution and it cannot be said to be a reasonable restriction merely
because a particular community or a section of the society feels that for a particular
period there should be closure of the municipal slaughter houses as that will be in
consonance with the Jain ideology of Ahinsa (non-violence).
6. There were two resolutions impugned in the writ petition passed by the Standing
Committee of the Municipal Corporation for closure of the municipal slaughter houses in
Ahmedabad during the Paryushan festival. These resolutions read as follows :
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"Resolution dated 14-8-1998 : Resolved that during the current year from 19-8-1998,
Mhah Paryushan Parv of Jain Religion begins. Every year during Paryushan Parv, the
slaughter houses of this Municipality are closes. Accordingly, having regard to the
sentiments of the citizens of Jain Religion, during the current year also, on account of
Paryushan Parv from 19-8-1998 to 26-8-1998, and as per the discussion in the
Committee, sanction should be obtained from the Municipal Corporation, to close
Municipal slaughter houses every year, for eight days, during Paryushan Parv.
Resolution dated 29-8-1999:
Resolved that as demanded by Shree Arihant Seva Samaj and All Gujarat Digambar Jain
Samaj, Ahmedabad, in anticipation of the sanction of the Municipal Corporation, sanction
is granted to close the Municipal slaughter house for the period 27-8-1998 to 5-9-1998 of
Digambar Jain Society Paryushan Parv from 27-8-1998 to 5-9-1998; and as per the
discussion in the Committee, hereafter every year, to close the municipal slaughter
houses, for ten days of Digambar Jain Samaj Paryushan Parv."
7. Thus it appears that the closure of slaughter houses in Ahmedabad was ordered by the
Corporation for a period of 18 days, first from 19-8-1998 to 26-8-1998 in connection
with the festival of the Shvetamber sect of the Jain community and the other from 27-8-
1998 to 5-9-1998 during which the Digambar sect of the Jain community celebrates
Paryushan festival. However, during the course of the arguments, learned senior counsel
for the appellants Mr. Soli Sorabjee and Mr. T.R. Andhyarujina stated that the closure is
only for 9 days and not for 18 days which is evident from paragraphs 20 and 23 of the
affidavit filed on behalf of Ahmedabad Municipal Corporation in the connected Civil
Appeals (C.A. Nos. 5479-81/2005).
8. The impugned resolutions dated 14-8-1998 and 29-8-1999 were passed under Section
466(1)(D)(b) of the Bombay Provincial Municipal Corporation Act, 1949. The said
provision reads as follows :
"The Commissioner may make standing orders consistent with the provisions of this Act
and the rules and by-laws in respect of the following matters, namely :-
(A) to (D) ...........
(b) fixing the days and the hours on and during which any market, slaughter-house or
stock-yard may be held or kept open for use and prohibiting the owner of any private
market from keeping it closed without lawful execuse on such days or during such
hours."
9. It may be mentioned that the slaughter houses in Ahmedabad are owned and managed
by the Ahmedabad Municipal Corporation, but the animals which are slaughtered there
belong to private persons represented by the respondents herein, who bring their animals
to the slaughter house for slaughtering.
10. The stand taken by the Municipal Corporation is reflected in the affidavit of Dr. Anil,
Asstt. Superintendent (Slaughter Houses) filed in Special Civil Application No. 9031 of
2000. In paragraphs 6 and 7 of his affidavit, Dr. Anil has stated as under :
"6. In reply to para 5 of the petition I state and submit that it is no doubt true that the
religious sentiments of the Jain community are taken into consideration when imposing
this ban. I submit that it is not a question of Jain community imposing its will upon rest
of the people, but it is a question of one section of society who believes in kindness to
animals making a request that during their religious days their sentiments may be
respected for these few days, if not for all times. It is considering this religious sentiment
that for a few days ban is imposed.
7. In reply to para 7 of the petition, I state that the petitioner is right in saying that the
question which arises before this Honble Court is one of principle and not of any specific
event which happened during a particular year. I further state and submit that the
Corporation has stated earlier what are the reasons which have led it to impose a ban for a
few days during the Jain religious days. In reply to the principles raised as under :-
(i) I respectfully state and submit that looking to the long term interest of the city and
harmony with which the citizens are expected to live, the Corporation is well within its
right for closing down the slaughter houses for a limited period of time.
(ii) I state and submit that such a closure
@page-SC1895
is certainly undisputable in public interest and the restriction which it places temporarily
for a few days on the slaughter of animals is in no way contrary to the Constitution.
(iii) I state and submit that the action of the Corporation is well within its power and not
mala fide and not contrary to law and not violative of Article 19 of the Constitution.
(iv) I state that the Corporation's action as stated above is taken not to discriminate
between the communities but to see that if communities respect each others feeling and
that more tolerant society where people of different religions can live together happily is
brought about. Such a desire of the Corporation can by no means be violative of Article
14 of the Constitution of India. It is important to appreciate that the Corporation is not
deciding between the Jains and other communities. What the Corporation is attempting to
do is to see that the religious beliefs of all communities and classes of society are
respected placing as little restriction or curb on the other community so that all can live
harmoniously and peacefully.
(v) I state that there is no fundamental right to slaughter animals. I state and submit that
the impugned action as stated above is absolutely in public interest and as already stated
above, it is not to satisfy religious sentiments of a particular section but to see that the
community as a whole lives cordially respecting each other's religious belief.
(vi) I respectfully state and submit that Section 466(1)(D)(b) is legal and just and I leave
it to my lawyer to raise relevant argument on this legal issue.
(vii) I state and submit that the action of the corporation is legal and valid. It is an
absolutely bona fide exercise of power. It is not for a collateral purpose viz. to appease