PDFsam - Merge (1) Cases

Bihar Legal Support Society, through its President, New Delhi vs.
Chief Justice of India and Ors. (19.11.1986 - SC) 4

Bilal Ahmed Kaloo vs. State of Andhra Pradesh (06.08.1997 - SC) 7
Central Bank of India vs. Ram Narain (12.10.1954 - SC) 10
Central Inland Water Transport Corporation Limited and Ors. vs.
Brojo Nath Ganguly and Ors. (06.04.1986 - SC) 13
Chandra Bansi Singh and Ors. vs. State of Bihar and Ors. (22.08.
1984 - SC) 16
Second Report on Special Missions by Mr. Milan Bartoš, Special
Rapporteur 18
Convention on Special Missions, 1969 21
Daryao and Ors. vs. The State of U.P. and Ors. (27.03.1961 - SC) 25
Dattaraj Nathuji Thaware vs. State of Maharashtra and Ors. (14.12
.2004 - SC) 28
Dhanalakshmi vs. R. Prasanna Kumar and Ors. (15.11.1989 - SC) 32
Durga Shankar Mehta vs. Raghuraj Singh and Ors. (19.05.1954 -
SC) 34
E.P. Royappa vs. State of Tamil Nadu and Ors. (23.11.1973 - SC) 37
Fertilizer Corporation Kamgar Union, Sindri and Ors. vs. Union of
India (UOI) and Ors. (13.11.1980 - SC) 40
Germany vs Italy 1-3-22-24 46
GVK Inds. Ltd. and Ors. vs. The Income Tax Officer and Ors. (01.
03.2011 - SC) 50
Janata Dal vs. H.S. Chowdhary and Ors. (28.08.1992 - SC) 53
Jasnami and Ors. vs. Emperor (27.02.1936 - ALLHC) 58
Javed Habib vs. The State (NCT of Delhi) (03.07.2007 - DELHC) 61
K.A. Abbas vs. The Union of India (UOI) and Ors. (24.09.1970 -
SC) 64
Kachchh Jal Sankat Nivaran Samiti and Ors. vs. State of Gujarat
and Ors. (15.07.2013 - SC) 68
Kedar Nath Singh vs. State of Bihar (20.01.1962 - SC) 71
Kesavananda Bharati Sripadagalvaru vs. State of Kerala (24.04.
1973 - SC) 77
Kumari Shrilekha Vidyarthi and Ors. vs. State of U.P. and Ors. (20.
09.1990 - SC) 81
Madhu Limaye vs. The State of Maharashtra (31.10.1977 - SC) 86
Manuel vs. State of Kerala (08.11.2012 - KERHC) 89
Mathai vs. George and Ors. (19.03.2010 - SC) 93
Mobarik Ali Ahmed vs. The State of Bombay (06.09.1957 - SC) 97
Municipal Corporation of Delhi vs. Purshotam Dass Jhunjunwala
and Ors. (01.12.1982 - SC) 101
Municipal Corporation of Delhi vs. Ram Kishan Rohtagi and Ors. (
01.12.1982 - SC) 103
Narinder Singh and Ors. vs. State of Punjab and Ors. (27.03.2014
- SC) 106
Niharendu Dutt Majumdar vs. The King Emperor (10.04.1942 -
FEDERAL COURT) 110
Nunaram and Ors. vs. State of Rajasthan and Ors. (14.11.1991 -
RAJHC) 113
Om Hemrajani vs. State of U.P. and Ors. (25.11.2004 - SC) 116
Om Kumar and Ors. vs. Union of India (UOI) (17.11.2000 - SC) 118
Onkar Lal Bajaj and Ors. vs. Union of India (UOI) and Ors. (20.12.
2002 - SC) 122
Pritam Singh vs. The State (05.05.1950 - SC) 126
Rafiq vs. State of U.P. (14.08.1980 - SC) 129
Raj Kumar Prasad Tamarkar vs. State of Bihar and Ors. (04.01.
2007 - SC) 132
R.P. Kapur vs. The State of Punjab (25.03.1960 - SC) 135
Sanchit Bansal and Ors. vs. The Joint Admission Board (JAB) and
Ors. (11.10.2011 - SC) 138
Sangeeta Immunity1-3-6-7-38 142
Sanskar Marathe vs. The State of Maharashtra and Ors. (17.03.
2015 - BOMHC) 147
Schooner case 1-20-39 151
Sharma Transport Rep. by D.P. Sharma vs. Government of
Andhra Pradesh and Ors. (03.12.2001 - SC) 154
Shreya Singhal vs. Union of India (UOI) (24.03.2015 - SC) 157
Sir Chunilal V. Mehta and Sons, Ltd. vs. The Century Spinning
and Manufacturing Co., Ltd. (05.03.1962 - SC) 160
Som Mittal vs. Government of Karnataka (21.02.2008 - SC) 163
SSRN-id3135386 1-4-5-32-33 168
State of Bihar vs. Murad Ali Khan and Ors. (10.10.1988 - SC) 173
State of Haryana and Ors. vs. Ch. Bhajan Lal and Ors. (21.11.
1990 - SC) 176
State of Karnataka vs. L. Muniswamy and Ors. (03.03.1977 - SC) 180
Talab Haji Hussain vs. Madhukar Purshottam Mondkar and Ors. (
07.02.1958 - SC) 183
The State Trading Corporation of India Ltd. and Ors. vs. The
Commercial Tax Officer, Visakhapatnam and Ors. (26.07.1963 -
SC) 187
Union Carbide Corporation and Ors. vs. Union of India (UOI) and
Ors. (03.10.1991 - SC) 192
Union of India (UOI) and Ors. vs. Association for Democratic
Reforms and Ors. (02.05.2002 - SC) 196
Union of India (UOI) vs. Paul Manickam and Ors. (13.10.2003 -
SC) 200
Vineet Narain and Ors. vs. Union of India (UOI) and Ors. (18.12.
1997 - SC) 203
Document2 206
A.D.M Jabalpur vs Shivkant Shukla-1-72-71-305 208
Ajay Hasia and Ors. vs. Khalid Mujib Sehravardi and Ors. (13.11.
1980 - SC) 212
Amita vs. Union of India (UOI) and Ors. (11.08.2005 - SC) 215
Aroon Purie vs. H.L. Varma and Ors. (30.09.1998 - BOMHC) 218
Arrest Warrant Case1-21-22-35 220
Ashok Kumar Pandey vs. The State of West Bengal and Ors. (18.
11.2003 - SC) 224
A.V. Papayya Sastry and Ors. vs. Government of A.P. and Ors. (
07.03.2007 - SC) 228
Bengal Chemical and Pharmaceutical Works Ltd., Calcutta vs.
Their Workmen (28.01.1959 - SC) 231
8.Judicial Review, 1-4-5-16 235
MANU/SC/0163/1986
Equivalent Citation: AIR1987SC 38, 1986 (23) AC C 563, 1987C riLJ313, 1987(1)C rimes1(SC ), JT(1986)SC (884), 1987PLJR12,
1986(2)SC ALE848, (1986)4SC C 767, [1987]1SC R295
IN THE SUPREME COURT OF INDIA

Writ Petition (Criminal) No. 540 of 1986
Decided On: 19.11.1986
Appellants: Bihar Legal Support Society, through its President, New Delhi
Vs.
Respondent: Chief Justice of India and Ors.
Hon'ble Judges/Coram:
P.N. Bhagwati, C.J., M.M. Dutt, G.L. Oza, Ranganath Misra and V. Khalid, JJ.
Counsels:
For Appellant/Petitioner/Plaintiff: Jaya Narain, Adv
Case Note:
Criminal - Jurisdiction - Petitioner prayed that special leave Petitions
against orders refusing bail or anticipatory bail could be taken up by Court
immediately in same manner in which special leave Petition of "big
industrialists" was taken up - Hence, this Petition - Held, Court had always
regarded poor and disadvantaged as much entitled to preferential
consideration than rich and affluent, businessmen and industrialists -
However, question whether special leave Petitions against refusal of bail or
anticipatory bail could be listed immediately or not was question within
administrative jurisdiction of Chief Justice - These were matters in which
High Court was final arbiter - Apex Court was never intended to be regular
court of appeal against orders made by High Court or sessions court or
Magistrates - Apex Court could entertaining cases, involving questions of
constitutional law and public law - Thus, Apex Court could not ordinarily,
save in exceptional cases, interfere with orders granting or refusing bail or
anticipatory bail - Petition disposed of.
Ratio Decidendi:
"Apex Court shall not entertain matter unless it is empowered to entertain
same under judicial policy of it."
JUDGMENT
P.N. Bhagwati, C.J.
1 . This writ petition has been filed by the Bihar Legal Support Society which is a
registered Society having as its main aim and objective provision of legal support to
the poor and disadvantaged sections of the community with a view to assisting them
to fight for their constitutional and legal rights through the process of law. The
occasion for filing the writ petition is set out in paragraph 2 where it has been stated
that a Bench of this Court sat late at night on 5th September 1986 for considering the
bail application of Shri Lalit Mohan Thapar and Shri Shyam Sunder Lal and that the
same anxiety which was shown by this Court in taking up the bail application of these
two gentlemen must "permeate the attitude and inclination of this Hon'ble Court in all
18-08-2020 (Page 1 of 3) www.manupatra.com RML National Law University

matters where questions relating to the liberty of citizens, high or low, arise" and that
the bail applications of "small men" must receive the same importance as the bail
applications of "big industrialists." The petitioner, therefore, prays that special leave
petitions against orders refusing bail or anticipatory bail should be taken up by this
Court immediately in the same manner in which the special leave petition of these
two "big industrialists" was taken up by the Court.
2 . Now, we may point out that so far as this Court is concerned, the special leave
petitions of "small men" are as much entitled to consideration as special leave
petitions of "big industrialists". In fact, this Court has always regarded the poor and
the disadvantaged as entitled to preferential consideration than the rich and the
affluent, the businessmen and the industrialists. The reason is that the weaker
sections of Indian humanity have been deprived of justice for long, long years: they
have had no access to justice on account of their poverty, ignorance and illiteracy.
They are not aware of the rights and benefits conferred upon them by the
Constitution and the law. On account of their socially and economically
disadvantaged position they lack the capacity to assert their rights and they do not
have the material resources with which to enforce their social and economic
entitlements and combat exploitation and injustice. The majority of the people of our
country are subjected to this denial of access to justice and, overtaken by despair and
helplessness, they continue to remain victims of an exploitative society where
economic power is concentrated in the hands of a few and it is used for perpetuation
of domination over large masses of human beings. This Court has always, therefore,
regarded it as its duty to come to the rescue of these deprived and vulnerable
sections of Indian humanity in order to help them realise their economic and social
entitlements and to bring to an end their oppression and exploitation. The strategy of
public interest litigation has been evolved by this Court with a view to bringing
justice within the easy reach of the poor and the disadvantaged sections of the
community. This Court has always shown the greatest concern and anxiety for the
welfare of the large masses of people in the country who are living a life of want and
destitution, misery and suffering and has become a symbol of the hopes and
aspirations of millions of people in the country. It is, therefore, not correct to say
that this Court is not giving to the "small men" the same treatment as it is giving to
the "big industrialists". In fact, the concern shown to the poor and the disadvantaged
is much greater than that shown to the rich and the well-to-do because the latter can
on account of their dominant social and economic position and large material
resources, resist aggression on their rights where the poor and the deprived just do
not have the capacity or the will to resist and fight.
3. The question whether special leave petitions against refusal of bail or anticipatory
bail should be listed immediately or not is a question within the administrative
jurisdiction of the Chief Justice and we cannot give any direction in that behalf. But,
we may point out that every petitioner who files a special leave petition against
refusal of bail or anticipatory bail has an opportunity of mentioning his case before
the learned Chief Justice in his administrative capacity for urgent listing and wherever
a case deserves urgent listing, the Chief Justice makes an appropriate order for
urgent listing. It may, however, be pointed out that this Court was never intended to
be a regular court of appeal against orders made by the High Court or the sessions
court or the Magistrates. It was created as an apex court for the purpose of laying
down the law for the entire country and extraordinary jurisdiction for granting special
leave was conferred upon it under Article 136 of the Constitution so that it could
interfere whenever it found that law was not correctly enunciated by the lower courts
or tribunals and it was necessary to pronounce the correct law on the subject. This

extraordinary jurisdiction could also be availed by the apex court for the purpose of
correcting grave miscarriage of justice, but such cases would be exceptional by their
very nature. It is not every case where the apex court finds that some injustice has
been done that it would grant special leave and interfere. That would be converting
the apex court into a regular court of appeal and moreover, by so doing, the apex
court would soon be reduced to a position where it will find itself unable to remedy
any injustice at all, on account of the tremendous backlog of cases which is bound to
accumulate. We must realise that in the vast majority of cases the High Courts must
become final even if they are wrong. The apex court can also be wrong on occasions
but since there is no further appeal, what the apex court says is final. That is why
one American Judge said of the Supreme Court of the United States: "We are right
because we are final: we are not final because we are right". We must, therefore,
reconcile ourselves to the idea that like the apex court which may be wrong on
occasions, the High Courts may also be wrong and it is not every error of the High
Court which the apex court can possibly correct. We think it would be desirable to set
up a National Court of Appeal which, would be in a position to entertain appeals by
special leave from the decisions of the High Courts and the Tribunals in the country
in civil, criminal, revenue and labour cases and so far as the present apex court is
concerned, it should concern itself only with entertaining cases, involving questions
of constitutional law and public law. But until any such policy decision is endorsed by
the Government, the apex court must interfere only in the limited class of cases
where there is a substantial question of law involved which needs to be finally laid at
rest by the apex court for the entire country or where there is grave, blatant and
atrocious miscarriage of justice. Sometimes, we Judges feel that when a case comes
before us and we find that injustice has been done, how can we shut our eyes to it.
But the answer to this anguished query is that the Judges of the apex court may not
shut their eyes to injustice but they must equally not keep their eyes too wide open,
otherwise the apex court would not be able to perform the high and noble role which
it was intended to perform according to the faith of the Constitution makers. It is for
this reason that the apex court has evolved, as a matter of self-discipline, certain
norms to guide it in the exercise of its discretion in cases where special leave
petitions are filed against orders granting or refusing bail or anticipatory bail. These
norms have to be articulated in order that the people may know as to what is the
judicial policy of the apex court in entertaining such special leave petitions. That
would go a long way towards introducing a measure of certainty in judicial response
to such special leave petitions and would also tend to reduce the inflow of such
special leave petitions. This was the reason why a Bench of this Court consisting of
two of us, viz., the Chief Justice and Justice Ranganath Misra, clearly enunciated in
an Order made on 30th October 1985 in special leave petition (criminal) No. 2938 of
1985 that this Court should not "interfere with the orders granting or refusing bail or
anticipatory bail "and that "these are matters in which the High Court should normally
become the final authority. We reiterate this policy principle laid down by the Bench
of this Court and hold that this Court should not ordinarily, save in exceptional cases,
interfere with orders granting or refusing bail or anticipatory bail, because these are
matters in which the High Court should normally be the final arbiter.
4. The writ petition will stand disposed of in these terms. We appreciate the anxiety
and concern shown by the petitioner for the poor and the disadvantaged in bringing
this public interest litigation.
© Manupatra Information Solutions Pvt. Ltd.

MANU/SC/0861/1997
Equivalent Citation: AIR1997SC 3483, 1997(2)ALD(C ri)436, 1997C riLJ4091, 1997(3)C rimes130(SC ), 1997(3)C rimes130(SC ),
JT1997(7)SC 272, 1997-2-LW(C rl)708, 1997(3)RC R(C riminal)812, 1997(5)SC ALE399, (1997)7SC C 431, [1997]Supp3SC R327

Criminal Appeal No. 1391 of 1995
Appellants:Bilal Ahmed Kaloo
Vs.
Respondent: State of Andhra Pradesh
Dr. A.S. Anand and K.T. Thomas, JJ.
Counsels:
For Appellant/Petitioner/Plaintiff: S.K. Bhattacharya, Adv
For Respondents/Defendant: Guntur Prabhakar, Adv.
Overruled / Reversed by:
State through Superintendent of Police, CBI/SIT Vs. Nalini and Ors.
(MANU/SC/0945/1999)
Case Note:
Criminal - sedition - Section 124-A of Indian Penal Code,1860 - decisive

ingredient for establishing offence of sedition under Section 124-A is doing
of certain acts which would bring Government established by law into
hatred or contempt - Order convicting citizen for offence of serious nature
like sedition should not be mechanical but reasonable - serious offences
should be dealt with great care so that liberty of citizen not lightly
interfered with.
Case Category:
CRIMINAL MATTERS - CRIMINAL MATTERS RELATING TO PREVENTIVE DETENTION,
TADA/POTA AND NATIONAL SECURITY - COFEPOSA - SAFEMA
ORDER
K.T. Thomas, J.
1 . Bilal Ahmad Kaloo, a Kashmiri youth had a sojourn in the city of Hyderabad and
was involved in a prosecution under Terrorist and Disruptive Activities (Prevention)
Act, 1987, (for short 'TADA'). Though the Designated Court under TADA has acquitted
him of the offences under TADA he was convicted of Sedition under Section 124-A of
Indian Penal Code and was sentenced to imprisonment for life, besides being
convicted of certain other lesser offences for which a sentence of rigorous
imprisonment for three years was awarded under each count. This appeal has been
preferred by the said convicted person under Section 19 of the TADA.

birth, residence, language, caste or community or any other ground
whatsoever, feelings of enmity, hatred or ill-will between different religious,
racial, language or regional groups or castes or communities, shall be
punished with imprisonment which may extend to three years, or with fine,
or with both.
The common ingredient in both the offences is promoting feeling of enmity, hatred or
ill-will between different religious or racial or linguistic or regional groups or castes
or communities. Section 153-A covers a case where a person by "words, either
spoken or written, or by signs or by visible representations" promotes or attempts to
promote such feeling. Under Section 505(2), promotion of such feelings should have
been done by making and publishing or circulating any statement or report containing
rumour or alarming news.
11. This Court has held in Balwant Singh v. State of Punjab MANU/SC/0344/1995 :
[1995]2SCR411 that mens rea is a necessary ingredient for the offence under Section
153-A. Mens rea is an equally necessary postulate for the offence under Section
505(2) also as could be discerned from the words "with intent to create or promote
or which is likely to create or promote" as used in that sub-section.
12. The main distinction between the two offences is that while publication of the
words or representation is not necessary under the former, such publication is sine
qua non under Section 505. The words "whoever makes, publishes or circulates" used
in the setting of Section 505(2) cannot be interpreted disjunctively but only as
supplementary to each other. If it is construed disjunctively, any one who makes a
statement falling within the meaning of Section 505 would, without publication or
circulation, be liable to conviction. But the same is the effect with Section 153-A also
and then that Section would have been bad for redundancy. The intention of the
legislature in providing two different sections on the same subject would have been
to cover two different fields of similar colour. The fact that both sections were
included as a package in the same amending enactment lends further support to the
said construction.
1 3 . Yet another support to the above interpretation can be gathered from almost
similar words used in Section 499 of the Penal Code as "whoever by words...makes
or publishes any imputation...."
14. In Sunilakhya Chowdhury v. H.M. Jadwet MANU/WB/0050/1968 : AIR1968Cal266
, it has been held that the words "makes or publishes any imputation" should be
interpreted as words supplementing to each other. A maker of imputation without
publication is not liable to be punished under that section. We are of the view that
the same interpretation is warranted in respect of the words "makes, publishes or
circulates" in Section 505 IPC also.
1 5 . The common feature in both sections being promotion of feeling of enmity,
hatred or ill-will "between different" religious or racial or language or regional groups
or castes and communities it is necessary that at least two such groups or
communities should be involved. Merely inciting the feeling of one community or
group without any reference to any other community or group cannot attract either of
the two sections.
16. The result of the said discussion is that appellant who has not done anything as
against any religious, racial or linguistic or regional group or community cannot be
held guilty of either the offence under Section 153-A or under Section 505(2) of IPC.

has exhibited a very casual approach of the trial court. Let alone the absence of any
evidence which may attract the provisions of the sections, as already observed, even
the charges framed against the appellant for these offences did not contain the
essential ingredients of the offences under the three sections. The appellant strictly
speaking should not have been put to trial for those offences. Mechanical order
convicting a citizen for offences of such serious nature like sedition and to promote
enmity and hatred etc. does harm to the cause. It is expected that graver the offence,
greater should be the care taken so that the liberty of a citizen is not lightly interfered
with.

MANU/SC/0066/1954
Equivalent Citation: AIR1955SC 36, 1955C riLJ152, [1955]1SC R697

Appellants:Central Bank of India
Vs.
Respondent:Ram Narain
M.C. Mahajan, C.J., B.K. Mukherjea, Vivian Bose, B. Jagannadhadas and T.L.
Venkatarama Aiyyar, JJ.
Case Notes:
The case dealt with the offence committed outside India, by a person who
acquired Indian citizenship after he had committed the said offence - It was
held that the person had not acquired the citizenship of India at the time of
offence, and therefore Section 4 of the Indian Penal Code and Section 188
of the Code of Criminal Procedure Code was not applicable - The definition
of 'Domicil' was discussed for the said purpose
JUDGMENT
M.C. Mahajan, C.J.
1. This appeal, by leave of the High Court of Judicature at Simla, raises a novel and
interesting question of law, viz., whether a person accused of an offence under the
Indian Penal Code and committed in a district which after the partition of India
became Pakistan, could be tried for that offence by a Criminal Court in India after his
migration to that country, and thereafter acquiring the status of a citizen.
2. The material facts relevant to this enquiry are these :
3 . The respondent, Ram Narain, acting on behalf of his firm Ram Narain Joginder
Nath, carrying on business at Mailsi in Multan District, was allowed a cash credit limit
of rupees three lakhs by the Mailsi branch of the Central Bank of India Ltd. (the
appellant) on the 23rd December, 1946, shortly before the partition of British India.
The account was secured against stocks which were to remain in possession of the
borrowers as trustees on behalf of the bank. On 15th August, 1947, when British
India was split into two Dominions, the amount due to the bank from Ram Narain
was over Rs. 1,40,000, exclusive of interest, while the value of the goods pledged
under the cash credit agreement was approximately in the sum of Rs. 1,90,000. On
account of the disturbances that followed in the wake of the partition of the country,
the bank's godown-keeper at Mailsi left Mailsi some time in September, 1947, and the
cashier, who was left in charge, also was forced to leave that place in October, 1947,
and thus no one was in Mailsi to safeguard the bank's godowns after that date. It is
alleged that in January, 1948, when, Mr. D. P. Patel Agent of the Multan branch of the
appellant bank visited Mailsi, he discovered that stocks pledged by Messrs. Ram
Narain Joginder Nath, against the cash credit agreement had disappeared. On inquiry
he found that 801 cotton bales pledged with the bank had been stolen, and booked

1 2 . In the illustration, if (A) was not a Native Indian subject at the time of the
commission of the murder the provisions of section 4, Indian Penal Code, could not
apply to his case. The circumstance that after the commission of the offence a person
becomes domiciled in another country, or acquires citizenship of that State, cannot
confer jurisdiction on the Courts of that territory retrospectively for trying offences
committed and completed at a time when that person was neither the national of that
country nor was he domiciled there.
13. The question of nationality of Ram Narain really does not arise in the case. The
real question to be determined here is, whether Ram Narain had Indian domicile at
the time of the commission of the offence. Persons domiciled in India at the time of
coming into force of our Constitution were given the status of citizens and they thus
acquired Indian nationality. If Ram Narain had Indian domicile at the time of the
commission of the offence, he would certainly come within the ambit of section 4,
Indian Penal Code, and section 188, Criminal Procedure Code. If, on the other hand,
he was not domiciled in India at the relevant moment, those sections would have no
application to his case. Writers on Private International Law are agreed that it is
impossible to lay down an absolute definition of 'domicile.' The simplest definition of
this expression has been given by Chitty J. in Craignish v. Craignish [1892] 3 Ch.
180, 192), wherein the learned Judge said :
"That place is properly the domicile of a person in which his habitation is
fixed without any present intention of removing therefrom."
1 4 . But even this definition is not an absolute one. The truth is that the term
'domicile' lends itself to illustrations but not to definition. Be that as it may, two
constituent elements that are necessary by English Law for the existence of domicile
are : (1) a residence of a particular kind, and (2) an intention of a particular kind.
There must be the factum and there must be the animus. The residence need not be
continuous but it must be indefinite, not purely fleeting. The intention must be a
present intention to reside for ever in the country where the residence has been taken
up. It is also a well established proposition that a person may have no home but he
cannot be without a domicile and the law may attribute to him a domicile in a country
where in reality he has not. A person may be a vagrant as when he lives in a yacht or
wanderer from one European hotel to another, but nevertheless the law will
arbitrarily ascribe to him a domicile in one particular territory. In order to make the
rule that nobody can be without a domicile effective, the law assigns what is called a
domicile of origin to every person at his birth. This prevails until a new domicile has
been acquired, so that if a person leaves the country of his origin with an undoubted
intention of never returning to it again, nevertheless his domicile of origin adheres to
him until he actually settles with the requisite intention in some other country.
15. It has been held by the High Court that Ram Narain remained in Multan District of
the West Punjab, where he and his ancestors had lived till his migration to India. The
contention that as no Hindu or Sikh could possibly remain in Pakistan and therefore
every such person must have been bound upon making his way to India as quickly as
possible and that merely by forming an intention to come to India he became an
Indian subject and was never even for a moment a subject of Pakistan, was
negatived, and it was said that "though there is no doubt that so far as Punjab is
concerned the vast majority of Hindus and Sikhs came to India but even in the Punjab
the exodus has not been complete and in the East Bengal there are a considerable
number of non-Muslims who no doubt by now have become full citizens of Pakistan."
In view of these findings it was concluded that the only possible way by which a

only be answered in one way, viz., that he was not domiciled in India. Admittedly,
then he was not a citizen of India because that status was given by the Constitution
that came into force in January, 1950. He had no residence or home in the Dominion
of India. He may have had the animus to come to India but that animus was also
indefinite, an uncertain. There is no evidence at all that at the moment he committed
the offence he had finally made up his mind to take up his permanent residence in
India, and a matter of this kind cannot be decided on conjectural grounds. It is
impossible to read a man's mind but it is even more than impossible to say how the
minds of people worked during the great upheaval of 1947.
1 8 . The learned Attorney-General argued that Ram Narain was a native Indian
subject of Her Majesty before the 15th August, 1947, and that description continued
to apply to him after the 15th August, 1947, whether he was in India or in Pakistan,
but we think that the description 'Native subject of Her Majesty' after the 15th of
August, 1947, became applicable in the territory now constituted India only to
residents of provinces within the boundaries of India, and in Pakistan to residents of
provinces within the boundaries of Pakistan and till the time that Ram Narain actually
landed on the soil of India and took up permanent residence therein he cannot be
described to be domiciled in India or even a Native Indian subject of His Majesty
domiciled in India.
19. For the reasons given above we are of the opinion that the decision of the High
Court that Ram Narain could not be tried in any Court in India for offences committed
in Mailsi in November, 1947 is right and that the Provincial Government had no
power under section 188, Criminal Procedure Code, to accord sanction to his
prosecution.
20. The result is that the appeal fails and is dismissed.
21. Appeal dismissed.

MANU/SC/0439/1986
Equivalent Citation: AIR1986SC 1571, [1986]60C ompC as797(SC ), (1986)3C ompLJ1(SC ), (1986)3C ompLJ1(SC ), 1986LabIC 1312,
(1986)IILLJ171SC , 1986(1)SC ALE799, (1986)3SC C 156, [1986]2SC R278, 1986(2)SLJ320(SC ), 1986(2)SLR345(SC )

Civil Appeals Nos. 4412 and 4413 of 1985
Appellants:Central Inland Water Transport Corporation Limited and Ors.
Vs.
Respondent:Brojo Nath Ganguly and Ors.
A.P. Sen and D.P. Madon, JJ.
Counsels:
For Intervenor: Mridul Ray and K. Swami, Advs
Case Note:
Constitution - Validity of Provision - Central Inland Water Transport
Corporation Ltd. Service Discipline and Appeal Rules of 1979 - Division
Bench quashed orders of termination Passed by Single Judge against
Respondent and held that Corporation was State and Rule 9(i) was ultra
vires of Article 14 of Constitution - Hence, this Petition - Whether, order of
termination of Respondent under Rule 9(i) was valid - Held, Corporation
had power to terminate service of permanent employee by giving him three
months notice in writing under Rule 9(i) or to pay him equivalent of three
months basic pay and clearness allowance - There were no guidelines in
what circumstances power given by Rule 9(i) could be exercised by
Corporation - Thus, after holding regular disciplinary inquiry, Corporation
could proceed under Rule 36 and rightly dismissed Petitioner on ground of
misconduct - Rule 9(i) conferred an absolute, arbitrary and unguided power
upon Corporation and it violated one of two great rules of natural justice -
Further, Clause of Rule 9(i) in contract of employment affected large
sections of public and it was harmful and injurious to public interest -
Hence, Rule 9(i) was both arbitrary and unreasonable and it also wholly
ignores and sets aside natural justice and violates Article 14 of Constitution
- Petition disposed of.
Ratio Decidendi:
"Validity of provision shall not be challenged unless it was arbitrary and
unreasonable under provision of law."
JUDGMENT
D.P. Madon, J.
1 . These Appeals by Special Leave granted by this Court raise two questions of
considerable importance to Government companies and their employees including
their officers. These questions are:
1) Whether a Government company as defined in Section 617 of the

Act which can apply is Section 23 when it states that "The consideration or object of
an agreement is lawful, unless . . . the court regards it as . . . opposed to public
policy."
9 5 . The Indian Contract Act does not define the expression "public policy" or
"opposed to public policy". From the very nature of things, the expressions "public
policy", "opposed to public policy" or "contrary to public policy" are incapable of
precise definition. Public policy, however, is not the policy of a particular
government. It connotes some matter which concerns the public good and the public
interest. The concept of what is for the public good or in the public interest or what
would be injurious or harmful to the public good or the public interest has varied
from time to time. As new concepts take the place of old, transactions which were
once considered against public policy are now being upheld by the courts and
similarly where there has been a well-recognized head of public policy, the courts
have not shirked from extending it to new transactions and changed circumstances
and have at times not even flinched from inventing a new head of public policy.
There are two schools of thought - "the narrow view" school and "the broad view"
school. According to the former, courts can not create new heads of public policy
whereas the latter countenances judicial law-making in this area. The adherents of
"the narrow view" school would not invalidate a contract on the ground of public
policy unless that particular ground had been well-established by authorities. Hardly
ever has the voice of the timorous spoken more clearly and loudly than in these
words of Lord Davey in Janson v. Driefontein Consolidated Mines Limited 1902 A.C.
484"Public policy is always an unsafe and treacherous ground for legal decision."
That was in the year 1902. Seventy-eight years earlier, Burrough, J., in Richardson v.
Mellish 1824 (2) Bing. 229; (s.c.) 130 E.R. 294 and 1824 All E.R. Rep 258, described
public policy as "a very unruly horse, and when once you get astride it you never
know where it will carry you." The Master of the Rolls, Lord Denning, however, was
not a man to shy away from unmanageable horses and in words which conjure up
before our eyes the picture of the young Alexander the Great taming Bucephalus, he
said in Enderyby Town Football Club Ltd. v. Football Association Ltd. 1971 Ch. 591.
"With a good man in the saddle, the unruly horse can be kept in control. It can jump
over obstacles." Had the timorous always held the field, not only the doctrine of
public policy but even the Common Law or the principles of Equity would never have
evolved. Sir William Holdsworth in his "History of English Law", Volume III, page 55,
has said :
In fact, a body of law like the common law, which has grown up gradually
with the growth of the nation, necessarily acquires some fixed principles, and
if it is to maintain these principles it must be able, on the ground of public
policy or some other like ground, to suppress practices which, under ever
new disguises, seek to weaken or negative them.
It is thus clear that the principles governing public policy must be and are capable,
on proper occasion, of expansion or modification. Practices which were considered
perfectly normal at one time have today become obnoxious and oppressive to public
conscience. If there is no head of public policy which covers a case, then the court
must in consonance with public conscience and in keeping with public good and
public interest declare such practice to be opposed to public policy. Above all, in
deciding any case which may not be covered by authority our courts have before
them the beacon light of the Preamble to the Constitution. Lacking precedent, the
court can always be guided by that light and the principles underlying the
Fundamental Rights and the Directive Principles enshrined in our Constitution.

declaration that Clause (1) of Rule 9 of the "Service, Discipline & Appeal Rules -
1979" of the Central Inland Water Transport Corporation Limited is void under
Section 23 of the Indian Contract Act, 1872, as being opposed to public policy and is
also ultra vires Article 14 of the Constitution to the extent that it confers upon the
Corporation the right to terminate the employment of a permanent employee by
giving him three months' notice in writing or by paying him the equivalent of three
months' basic pay and dearness allowance in lieu of such notice.
116. By interim orders passed in the Petitions for Special Leave to Appeal filed by
the Corporation, we had granted pending the disposal of those Petitions a stay of the
order of the Calcutta High Court in so far as it directed the reinstatement of the
contesting Respondents. At that stage the Corporation had undertaken to pay to the
said Respondents all arrears of salary and had also undertaken to pay thereafter their
salary from month to month before the tenth day of each succeeding month until the
disposal of the said Petitions. We hereby vacate the stay order of reinstatement
passed by us and direct the Corporation forthwith to reinstate the First Respondent in
each of these Appeals and to pay to him within six weeks from today all arrears of
salary and allowances payable to him, if any still unpaid.
117. The First Appellant In both these Appeals, namely, the Central Inland Water
Transport Corporation Limited, will pay to the First Respondent in each of these
Appeals the costs of the respective Appeals. The other parties to these Appeals and
the Intervener will bear and pay their own costs of the Appeals.

MANU/SC/0227/1984
Equivalent Citation: AIR1984SC 1767, 1984(32)BLJR503, 1984(2)SC ALE235, (1984)4SC C 316, [1985]1SC R579, 1985(17)UJ78

Civil Appeal Nos. 9973 to 9977 of 1983 with Special Leave Petition (Civil) Nos. 3098
and 4428 of 1983 and Writ Petition (Civil) Nos. 13306-21 and 13346 of 1983 and
13229 and 1324-42 of 1984
Appellants: Chandra Bansi Singh and Ors.
Vs.
Respondent: State of Bihar and Ors.
A. Vardarajan, S. Murtaza Fazal Ali and Sabyasachi Mukherjee, JJ.
Counsels:
For Appellant/Petitioner/Plaintiff: R.P. Bhatt, A.K. Sen, D.P. Singh and Y.S. Chitale,
Advs
For Respondents/Defendant: S.S. Jauhar and S.N. Misra, Advs.
Case Note:
Property - Acquisition - Section 4 of Land Acquisition Act, 1894 - Present
appeals filed against acquisition proceedings of land - Held, disputed lands
are acquired for public purpose - It was never argued that acquisition was
without any public purpose - Release of land in favour of some families
came after three years of initial notification and therefore it cannot
invalidate Section 4 notification in its entirety - All that would happen is
that released portion would be deemed to be nonest and in eye of law
Section 4 of notification would be deemed to be a notification for entire
lands acquired, including lands of those families - There is undoubtedly a
delay of about 1 1/2 years and for purpose of calculation and convenience
when rounded off, delay may be taken to be of two years - So far as this
delay is concerned, appellants have undoubtedly a case for payment of
some additional compensation in equity though not under law and as this
Court is not only a court of law but a court of equity as well, it will be
impossible for this Court to deny this relief to appellants - Apart from
compensation which may be awarded by Collector or enhanced by Judge or
a higher Court, appellants should get an equitable compensation in form of
interest calculated at rate of 7 1/2 per cent per annum for two years on the
value of land owned by each landowner - Hence appeals are disposed of
accordingly
JUDGMENT
S. Murtaza Fazal Ali, J.
1. Sometimes while taking a pragmatic and progressive action under a statute in the
general public interest, which is doubtless a step in the right direction, the
Government succumbs to internal or external pressures by a citizen or group of
citizens so as to show special favour to them which destroys the laudable object of

purpose. It is, however, contended by both the parties that if at the time when the
Section 4 notification was issued an invidious distinction without any reasonable
classification would have been made between the land acquired and the land of
Pandey families so as to form an integral part of the entire acquisition, the entire
notification would have been struck down. Here, we find that the release of land in
favour of Pandey families came after three years of the initial notification and
therefore it cannot invalidate the Section 4 notification in its entirety. All that would
happen is that the released portion would be deemed to be nonest and in the eye of
law the Section 4 notification would be deemed to be a notification for the entire
lands acquired, including the lands of Pandey families.
14. In view of our decision on the aforesaid points, it is not necessary for us to dilate
further on this question.
15. The other question raised by the counsel for the appellants was that there was
sufficient delay between the date of the Section 4 notification and taking over
possession of the lands during which period the price of land had appreciated
substantially and, therefore, the compensation should be paid according to the value
of the land prevailing on the date of actual taking over of possession. This argument
also is without substance for the following reasons :
(1) that it is not the fault of the Collector for causing the delay in taking over
the possession because the matter was pursued both in the courts and before
the Government and the proceedings had to be stayed, as a result of which
Collector was prevented from taking possession or giving his award,
although all other proceedings had taken place.
(2) The landowners being in continuous possession of the land had enjoyed
the usufruct of the same, particularly the lands happened to be mostly mango
orchards and they must have derived large benefits by selling them in the
market.
16. On an analysis of the various steps taken by the parties and others in the taking
of possession, there is undoubtedly a delay of about 1 1/2 years and for the purpose
of calculation and convenience when rounded off, the delay may be taken to be of
two years. So far as this delay is concerned, the appellants have undoubtedly a case
for payment of some additional compensation in equity though not under law and as
this Court is not only a court of law but a court of equity as well, it will be impossible
for us to deny this relief to the appellants. After taking into consideration the various
shades and aspects of the case we are clearly of the opinion that apart from the
compensation which may be awarded by the Collector or enhanced by the Judge or a
higher Court, the appellants should get an equitable compensation in the form of
interest calculated at the rate of 7 1/2 per cent per annum for two years on the value
of land owned by each landowner. This equitable compensation has been awarded in
the special facts of this case and will not be the subject matter of appeal, if any,
under the Act on the amount of compensation.
1 7 . As the points involved in these appeals and writ petitions are the same we
decided to dispose them of by one common judgment.
18. For the reasons given above, the appeals the special leave and the writ petitions
are disposed of accordingly but without any order as to costs.

Document:-
A/CN.4/179
Second Report on Special Missions by Mr. Milan Bartoš, Special Rapporteur
Topic:
Special missions
Extract from the Yearbook of the International Law Commission:-

1965 , vol. II
Downloaded from the web site of the International Law Commission

(http://www.un.org/law/ilc/index.htm)
Copyright © United Nations

Special Missions 121
Draft articles prepared at the Commission's sixteenth ad article 7

session
139. The Special Rapporteur proposes that the following
(Articles 1 to 16 and commentary) paragraph 3 should be added to article 7.
134. At its sixteenth session, the Commission adopted the "3. The head of the special mission may also authorize
first sixteen articles, with commentary, of the draft on a specified member of the staff to perform certain acts
special missions. The Special Rapporteur considers it and to send and to receive communications."
unnecessary to reproduce the text here, for it has been 140. The Special Rapporteur considers this addition nec-
published.24 When adopting those articles and the com- essary. In this respect, there is a discrepancy between the
mentary the Commission reserved the right to supplement body of article 7 and the commentary.
them, if necessary.25
141. Article 6 as adopted draws a distinction between the
135. The Special Rapporteur considered it his duty to members of a special mission (paragraph 1) and the mem-
review the articles as adopted, with a view to supplementing bers of its staff. As article 6 does not treat the members of
and revising them. In so doing, he took it as his guiding the staff as members of the special mission, there is a risk
principle that what had been adopted should be changed as that article 7, paragraph 2, may be construed as referring
little as possible. Accordingly, he confines himself to: only to the members of the special mission properly so
Making a few suggestions for supplementing the articles called, to the exclusion of the members of the staff, and
or the commentary; hence as meaning that the head of the special mission can-
Requesting the Commission to take his comments into not delegate his powers to the staff. It is, however, current
account ; and practice for the head of a special mission to delegate powers
of this nature to members of its staff; indeed, most of the
Requesting the members of the Commission likewise to mission's acts are in practice performed by the secretary
suggest emendations to the articles or to the commen- to the delegation. This is also the practice described in the
tary, though without reopening questions that were commentary to article 7 as adopted, paragraph (11) of
settled during the Commission's sixteenth session. which refers to this possibility. This paragraph is, however,
136. The Special Rapporteur offers the following sugges- in contradiction with the literal terms of article 7, para-
tions to supplement the articles and the commentary. graph 2. This patent contradiction ought, accordingly, to be
removed. For this purpose, the best method would be to
add another paragraph (paragraph 3) to article 7 (or,
ad article 2
possibly, to make the appropriate correction in paragraph 2
137. He considers that the following paragraph should be of article 7, though this would, in the Special Rapporteur's
added to the commentary on article 2 as adopted: opinion, be the less elegant and even less advisable method,
"(7) It happens in practice that, in conformity with the for its effect would be in some way to place the members of
processes of international relations, the fact of sending the special mission and the staff on a footing of equality).
and receiving a special mission whose task is not specified
but whose field of activity is known is regarded as tan-
ad article 12
tamount to a mutual agreement concerning that mission's
task. An example would be the sending and receiving of a 142. The Special Rapporteur considers it his duty to men-
special mission of hydro-engineering experts at a time tion that, according to his original proposal, the authority
when an area liable to flooding is threatened by floods, given to the head or to particular members of a special
the States concerned not having entered into prior con- mission was expressed to be for a limited term. Accordingly,
versations concerning the sending and receiving of a upon the expiry of that term, the special mission does not,
special mission of this sort. In such a case, the fact that from the formal and legal point of view, cease to exist; yet,
such a mission is sent and received is regarded as sufficient if the authority of all the members of the special mission
evidence per se of a tacit agreement concerning that spe- came to an end at its term, does such a special mission con-
cial mission's task. The mission is presumed to be author- tinue to exist? Neither article 12 nor the commentary thereto
ized to carry out whatever work is generally within the make provision for such a case, and the question therefore
competence of special missions of this kind. On the other remains unanswered.
hand, this practice is not to be recommended, for, in the
Commission's opinion, disputes are apt to arise during 143. The Special Rapporteur wonders whether the article
the special mission's activity concerning the limits of its in question, and hence also the commentary, ought to be
field of activity, inasmuch as each State judges unilat- supplemented on the lines described above, or whether it
erally what is considered usual and normal for special would suffice simply to mention such a case in the com-
missions of this type." mentary.
144. The Special Rapporteur considers that, for the sake
138. The Special Rapporteur proposes this addition to the
of completeness, some such addition would be desirable.
commentary in the light of a case of like nature which has
It would hardly affect in any way the subject-matter dealt
occurred in practice.
with in article 12 as the substantive rule. The purpose of
84 article 12 is to determine objectively the end of the functions
Yearbook of the International Law Commission, 1964, vol. II,
document A/5809, pp. 210-226. of the special mission as such. It is, however, arguable that
" Ibid., para. 35. the expiry of the term of all the members of the special
144 Yearbook of the International Law Commission, 1965, Vol. II
deemed to commence at the time when he arrives in the property and residence and full immunity from the
territory of the receiving State (special rule replacing jurisdiction of the receiving State;
article 11); (g) A Minister for Foreign Affairs who leads a spe-
(d) The function of a special mission which is led by cial mission enjoys full Customs exemption and exemp-
a Head of Government comes to an end at the time when tion from Customs inspection by an agency of the
he leaves the territory of the receiving State, but the receiving State;
mission may, if the sending State and the receiving (h) A Minister for Foreign Affairs who leads a spe-
State so agree, continue in being after his departure; cial mission has the right to bring with him members of
in this case, however, the level of the special mission his family and persons attached to his personal service,
changes, and its level shall be determined according to who shall, for so long as they form part of his suite, be
the rank of the person who becomes head of the special entitled to the same immunities as the Minister for
mission (supplement to article 12); Foreign Affairs.
(e) A Head of Government who leads a special mis- Rule 5
sion enjoys complete inviolability as to his person, A special mission which is led by a Cabinet Minister
property and residence and full immunity from the other than the Minister for Foreign Affairs shall be
jurisdiction of the receiving State; governed by the provisions of the said articles, subject
(/") A Head of Government who leads a special mis- to the following exceptions:
sion enjoys full Customs exemption and exemption from (a) The members of the staff of a special mission
Customs inspection by an agency of the receiving which is led by a Cabinet Minister may also be members
State; of his personal suite. Such persons shall be treated as
(g) A Head of Government who leads a special mis- diplomatic staff (supplement to article 6);
sion has the right to bring with him members of his (b) In cases where a Cabinet Minister acts as head of
family and persons attached to his personal service, a special mission, the function of the mission is deemed
who shall, for so long as they form part of his suite, be to commence at the time when he arrives in the territory
entitled to the same immunities as the Head of Govern- of the receiving State (special rule replacing article 11);
ment. (c) The function of a special mission which is led by
Rule 4 a Cabinet Minister comes to an end at the time when he
A special mission which is led by a Minister for Foreign leaves the territory of the receiving State, but the special
Affairs shall be governed by the provisions of the said mission may, if the sending State and the receiving State
articles, subject to the following exceptions: so agree, continue in being after his departure; in this
(a) In giving its approval to the special mission being case, however, the level of the special mission changes
led by the Minister for Foreign Affairs, the receiving and its level shall be determined according to the
State admits in advance that such a mission may per- rank of the person who becomes head of the special
form the tasks to be agreed upon by the two States con- mission (supplement to article 12);
cerned in the course of their contacts (exception to arti- (d) A Cabinet Minister who leads a special mission
cle 2 as adopted); enjoys complete inviolability as to his person, property
(b) The Minister for Foreign Affairs, as head of the and residence and full immunity from the jurisdiction
special mission, cannot be declared persona non grata of the receiving State;
or not acceptable (exception to article 4); (e) A Cabinet Minister who leads a special mission
enjoys full Customs exemption and exemption from
(c) The members of the staff of a special mission which Customs inspection by an agency of the receiving
is led by a Minister for Foreign Affairs may also be State;
members of his personal suite. Such persons shall be
treated as diplomatic staff (supplement to article 6); (/) A Cabinet Minister who leads a special mission
has the right to bring with him members of his family
(d) In cases where a Minister for Foreign Affairs acts and persons attached to his personal service, who shall,
as head of a special mission, the function of the mission for so long as they form part of his suite, be entitled to
is deemed to commence at the time when he arrives in the same immunities as the Cabinet Minister.
the territory of the receiving State (special rule replac-
ing article 11); Rule 6
(e) The function of a special mission which is led by The sending State and the receiving State may, by
a Minister for Foreign Affairs comes to an end at the mutual agreement, determine more particularly the status
time when he leaves the territory of the receiving State, of the special missions referred to in rule 1 and, especially,
but the mission may, if the sending State and the may make provision for more favourable treatment for
receiving State so agree, continue in being after his special missions at this level.
departure; in this case, however, the level of the mission The Special Rapporteur is putting forward the foregoing
changes, and its level shall be determined according to rules as a suggestion only, in order that the Commission
the rank of the person who becomes head of the special may express its opinion on the exceptions enumerated
mission (supplement to article 12); above. In the light of the Commission's decision he will
(/) A Minister for Foreign Affairs who leads a special submit a final proposal; he thinks he will be able to do so
mission enjoys complete inviolability as to his person, during the Commission's seventeenth session.
Convention on Special Missions
1969
Adopted by the General Assembly of the United Nations on 8 December 1969.

Entered into force on 21 June 1985.
United Nations, Treaty Series, vol. 1400, p. 231
Copyright © United Nations

2005
Convention on Special Missions
Adopted by the General Assembly of the United Nations
on 8 December 1969
The States Parties to the present Convention,
Recalling that special treatment has always been accorded to special missions,
Having in mind the purposes and principles of the Charter of the United Nations concerning the
sovereign equality of States, the maintenance of international peace and security and the development of
friendly relations and cooperation among States,
Recalling that the importance of the question of special missions was recognized during the
United Nations Conference on Diplomatic Intercourse and Immunities and in resolution I adopted by the
Conference on 10 April 1961,
Considering that the United Nations Conference on Diplomatic Intercourse and Immunities
adopted the Vienna Convention on Diplomatic Relations, which was opened for signature on 18 April
1961,
Considering that the United Nations Conference on Consular Relations adopted the Vienna
Convention on Consular Relations, which was opened for signature on 24 April 1963,
Believing that an international convention on special missions would complement those two
Conventions and would contribute to the development of friendly relations among nations, whatever
their constitutional and social systems,
Realizing that the purpose of privileges and immunities relating to special missions is not to
benefit individuals but to ensure the efficient performance of the functions of special missions as
missions representing the State,
Affirming that the rules of customary international law continue to govern questions not regulated
by the provisions of the present Convention,
Have agreed as follows:
Article 1
Use of terms
For the purposes of the present Convention:
(a) a “special mission” is a temporary mission, representing the State, which is sent by one State to
another State with the consent of the latter for the purpose of dealing with it on specific questions or of
performing in relation to it a specific task;
2
Article 31
Immunity from jurisdiction
1. The representatives of the sending State in the special mission and the members of its
diplomatic staff shall enjoy immunity from the criminal jurisdiction of the receiving State.
2. They shall also enjoy immunity from the civil and administrative jurisdiction of the receiving
State, except in the case of:
(a) a real action relating to private immovable property situated in the territory of the receiving State,
unless the person concerned holds it on behalf of the sending State for the purposes of the mission;
(b) an action relating to succession in which the person concerned is involved as executor,
administrator, heir or legatee as a private person and not on behalf of the sending State;
(c) an action relating to any professional or commercial activity exercised by the person concerned in
the receiving State outside his official functions;
(d) an action for damages arising out of an accident caused by a vehicle used outside the official
functions of the person concerned.
3. The representatives of the sending State in the special mission and the members of its
diplomatic staff are not obliged to give evidence as witnesses.
4. No measures of execution may be taken in respect of a representative of the sending State in the
special mission or a member of its diplomatic staff except in the cases coming under subparagraphs (a),
(b), (c) and (d) of paragraph 2 of this article and provided that the measures concerned can be taken
without infringing the inviolability of his person or his accommodation.
5. The immunity from jurisdiction of the representatives of the sending State in the special
mission and of the members of its diplomatic staff does not exempt them from the jurisdiction of the
sending State.
Article 32
Exemption from social security legislation
1. Subject to the provisions of paragraph 3 of this article, representatives of the sending State in
the special mission and members of its diplomatic staff shall, in respect of services rendered for the
sending State, be exempt from social security provisions which may be in force in the receiving State.
2. The exemption provided for in paragraph 1 of this article shall also apply to persons who are in
the sole private employ of a representative of the sending State in the special mission or of a member of
its diplomatic staff, on condition:
(a) that such employed persons are not nationals of or permanently resident in the receiving State;
and
11
Article 51
Ratification
The present Convention is subject to ratification. The instruments of ratification shall be

deposited with the Secretary-General of the United Nations.
Article 52
Accession
The present Convention shall remain open for accession by any State belonging to any of the
categories mentioned in article 50. The instruments of accession shall be deposited with the Secretary-
General of the United Nations.
Article 53
Entry into force
1. The present Convention shall enter into force on the thirtieth day following the date of deposit
of the twenty-second instrument of ratification or accession with the Secretary-General of the United
Nations.
2. For each State ratifying or acceding to the Convention after the deposit of the twenty-second
instrument of ratification or accession, the Convention shall enter into force on the thirtieth day after
deposit by such State of its instrument of ratification or accession.
Article 54
Notifications by the depositary
The Secretary-General of the United Nations shall inform all States belonging to any of the
categories mentioned in article 50:
(a) of signatures to the present Convention and of the deposit of instruments of ratification or
accession in accordance with articles 50, 51 and 52;
(b) of the date on which the present Convention will enter into force in accordance with article 53.
Article 55
Authentic texts
The original of the present Convention, of which the Chinese, English, French, Russian and
Spanish texts are equally authentic, shall be deposited with the Secretary-General of the United Nations,
who shall send certified copies thereof to all States belonging to any of the categories mentioned in
article 50.
IN WITNESS WHEREOF the undersigned, being duly authorized thereto by their respective
Governments, have signed the present Convention, opened for signature at New York on 16 December
1969.
18
MANU/SC/0012/1961
Equivalent Citation: AIR1961SC 1457, 1962(2)AnWR16, [1962]1SC R574

Writ Petitions Nos. 66 and 67 of 1956, 8 of 1960, 77 of 1957, 15 of 1957 and 5 of
1958
Appellants:Daryao and Ors.
Vs.
Respondent:The State of U.P. and Ors.
A.K. Sarkar, K.C. Das Gupta, K.N. Wanchoo, N. Rajagopala Ayyangar and P.B.
Gajendragadkar, JJ.
Case Note:
The case debated when would the dismissal of writ petition by the High
Court be bar to the petition in Supreme Court in relevance to res judicata -
It was held that there was no substance in the plea that the judgment of
the High Court could not be treated as res judicata because under Article
226 of the Constitution of India, it could not entertain a petition under
Article 32 of the Constitution
JUDGMENT
P.B. Gajendragadkar, J.
1 . These six writ petitions filed under Art. 32 of the Constitution have been placed
before the Court for final disposal in a group because though they arise between
separate parties and are unconnected with each other a common question of law
arises in all of them. The opponents in all these petitions have raised a preliminary
objection against the maintainability of the writ petitions on the ground that in each
case the petitioners had moved the High Court for a similar writ under Art. 226 and
the High Court has rejected the said petitions. The argument is that the dismissal of a
writ petition filed by a party for obtaining an appropriate writ creates a bar of res
judicata against a similar petition filed in this Court under Art. 32 on the same or
similar facts and praying for the same or similar writ. The question as to whether
such a bar of res judicata can be pleaded against a petition filed in this court under
Art. 32 has been adverted to in some of the reported decisions of this Court but it has
not so far been full considered or finally decided; and that is the preliminary question
for the decision of which the six writ petitions have been placed together for disposal
in a group. In dealing with this group we will set out the facts which give rise to Writ
Petition No. 66 of 1956 and decide the general point raised for our decision. Our
decision in this writ petition will govern the other writ petitions as well.
2. Petition No. 66 of 1956 alleges that for the last fifty years the petitioners and their
ancestors have been the tenants of the land described in Annexure A attached to the
petition and that respondents 3 to 5 are the proprietors of the said land. Owing to
communal disturbances in the Western District of Uttar Pradesh in 1947, the
petitioners had to leave their village in July, 1947; later in November, 1947, they

refused to exercise its discretion on the ground of laches or on the ground that the
party has an efficacious alternative remedy available to him then of course the
decision of the High Court cannot generally be pleaded in support of the bar of res
judicata. If, however, the matter has been considered on the merits and the High
Court has dismissed the petition for a writ on the ground that no fundamental right is
proved or its breach is either not established or is shown to be constitutionally
justified there is no reason why the said decision should not be treated as a bar
against the competence of a subsequent petition filed by the dame party on the same
facts and for the same reliefs under Art. 32.
17. In this connection reliance has been placed on the fact that in England habeas
corpus petitions can be filed one after the other and the dismissal of one habeas
corpus petition is never held to preclude the making of a subsequent petition for the
same reason. In our opinion, there is no analogy between the petition for habeas
corpus and petitions filed either under Art. 226 or under Art. 32. For historical
reasons the writ for habeas corpus is treated as standing in a category by itself; but,
even with regard to a habeas corpus petition it has now been held in England in Re
Hastings (No. 2) [(1958) 3 All E.R. Q.B.D. 625.] that "an applicant for a writ of
habeas corpus in a criminal matter who has once been heard by a Divisional Court of
the Queen's Bench Division is not entitled to be heard a second time by another
Divisional Court in the same Division, since a decision of a Divisional Court of the
Queen's Bench Division is equivalent to the decision of all the judges of the Division,
just as the decision of one of the old common law courts sitting in bane was the
equivalent of the decision of all the judges of that Court." Lord Parker, C.J., who
delivered the judgment of the Court, has elaborately examined the historical genesis
of the writ, several dicta pronounced by different judges in dealing with successive
writ petitions, and has concluded that "the authorities cannot be said to support the
principle that except in vacation an applicant could go from judge to judge as
opposed to going from court to court" (p. 633), so that even in regard to a habeas
corpus petition it is now settled in England that an applicant cannot move one
Divisional Court of the Queen's Bench Division after another. The said decision has
been subsequently applied in Re Hastings (No. 3) [[1959] 1 All E.R. Ch.D. 698.] to a
writ petition filed for habeas corpus in a Divisional Court of the Chancery Division. In
England, technically an order passed on a petition for habeas corpus is not regarded
as a judgment and that places the petitions for habeas corpus in a class by
themselves. Therefore we do not think that the English analogy of several habeas
corpus applications can assist the petitioners in the present case when they seek to
resist the application of res judicata to petitions filed under Art. 32. Before we part
with the topic we would, however, like to add that we propose to express no opinion
on the question as to whether repeated applications for habeas corpus would be
competent under our Constitution. That is a matter with which we are not concerned
in the present proceedings.
18. There is one more argument which still remains to be considered. It is urged that
the remedies available to the petitioners to move the High Court under Art. 226 and
this Court under Art. 32 are alternate remedies and so the adoption of one remedy
cannot bar the adoption of the other. These remedies are not exclusive but are
cumulative and so no bar of res judicata can be pleaded when a party who has filed a
petition under Art. 226 seeks to invoke the jurisdiction of this Court under Art. 32. In
support of this contention reliance has been placed on the decision of the Calcutta
High Court in Mussammat Gulab Koer v. Badshah Bahadur [MANU/WB/0517/1909 :
13 C.W.N. 1197.]. In that case a party who had unsuccessfully sought for the review
of a consent order on the ground of fraud brought a suit for a similar relief and was

merits.
24. In Writ Petition No. 5 of 1958 the position is clear. The petitioner had moved the
Bombay High Court for an appropriate writ challenging the order of the Collector in
respect of the land in question. The contentions raised by the petitioner were
examined in the light of the rejoinder made by the Collector and substantially the
petitioner's case was rejected. It was held by the High Court that the power conferred
on the State Government by s. 5(3) of the impugned Act, the Bombay Service Inam
(Useful to the Community) Abolition Act, 1953, was not arbitrary nor was its exercise
in this particular case unreasonable or arbitrary. The High Court also held that the
land of the petitioner attracted the relevant provisions of the said impugned statute.
Mr. Ayyangar for the petitioner realised the difficulties in his way, and so he
attempted to argue that the contentions which he wanted to raise in his present
petition are put in a different form, and in support of this argument he has invited
our attention to grounds 8 and 10 framed by him in paragraph X of the petition. We
are satisfied that a change in the form of attack against the impugned statute would
make no difference to the true legal position that the writ petition in the High Court
and the present writ petition are directed against the same statute and the grounds
raised by the petitioner in that behalf are substantially the same. Therefore the
decision of the High Court pronounced by it on the merits of the petitioner's writ
petition under Art. 226 is a bar to the making of the present petition under Art. 32. In
the result this writ petition fails and is dismissed. There would be no order as to
costs.
25. Petition dismissed.

MANU/SC/1060/2004
Equivalent Citation: AIR2005SC 540, 2005(2)ALD10(SC ), 2005(5)ALLMR(SC )270, 2005 (58) ALR 309, 2005 (1) AWC 569 (SC ),
2005(5)BomC R814, 2005(107(2))BOMLR458, 2005(1)C LJ(SC )142, 2004(5)C TC 748, [2005(1)JC R205(SC )], JT2004(10)SC 561, 2005-2-LW132,
2005(2)MhLj199, 2005(2)MhLJ199(SC ), 2005(I)OLR256, 2005(I)OLR(SC )256, 2005(1)RC R(C ivil)231, 2004(10)SC ALE415, (2005)1SC C 590

Special Leave Petition (Civil) No. 26269/2004 (Arising out of CC No. 11374 of 2004)
Appellants:Dattaraj Nathuji Thaware
Vs.
Respondent:State of Maharashtra and Ors.
Dr. Arijit Pasayat and S.H. Kapadia, JJ.
Counsels:
For Appellant/Petitioner/Plaintiff: Shilpa Chohan and Lalita Kaushik, Advs
Case Note:
Constitution of India - Article 226--Public Interest Litigation (PIL)--What
is?--Duty of Court--Advocate filing PIL resorting to blackmailing respondent
Nos. 6 and 7--And caught red-handed accepting 'blackmailing' money--PIL
rightly dismissed by High Court with costs of Rs. 25,000--Bar Council and
Bar Association to ensure that no member of Bar becomes party as
petitioner or in aiding and/or abetting filing frivolous petitions carrying
attractive brand name of PIL.
Public interest litigation which has now come to occupy an important field
in the administration of law, should not be "publicity interest litigation" or
"private interest litigation" or "politics interest litigation" or the latest
trend "paise income litigation". There must be real and genuine public
interest involved in the litigation and not merely an adventure of knight
errant borne out of wishful thinking. It cannot also be invoked by a person
or a body of persons to further his or their personal causes or satisfy his or
their personal grudge and enmity. Courts of justice should not be allowed to
be polluted by unscrupulous litigants by resorting to the extraordinary
jurisdiction. A person acting bona fide and having sufficient interest in the
proceeding of public interest litigation will alone have a locus standi and
can approach the Court to wipe out violation of fundamental rights and
genuine infraction of statutory provisions, but not for personal gain or
private profit or political motive or any oblique consideration.
When there is material to show that a petition styled as a public interest
litigation is nothing but a camouflage to foster personal disputes, said
petition is to be thrown out.
Public interest litigation is a weapon which has to be used with great care
and circumspection and the judiciary has to be extremely careful to see that
behind the beautiful veil of public interest an ugly private malice, vested
interest and/or publicity seeking is not lurking.

JUDGMENT
Arijit Pasayat, J.
1 . This case is a sad reflection on members of the legal profession and is almost a
black spot on the noble profession. The petitioner who belongs to this profession
filed a petition styled as "Public Interest Litigation'' before the Nagpur Bench of the
Bombay High Court. By the impugned judgment, the High Court dismissed it holding
that there was no public interest involved and in fact the petitioner had resorted to
black mailing respondent Nos. 6 and 7 and was caught red handed accepting "black
mailing" money. The High Court also noticed that the allegations of unauthorized
constructions made in the petition were also not true.
2 . Cost of Rs. 25,000/- (Rupees twenty five thousand only) which was levied, was
directed to be paid to the affected respondent Nos. 6 and 7 before the High Court.
3 . It is, in fact, a black day for the black robed professionals, if the allegation, as
found by the High Court to be true and which presently appear to be the subject
matter of further proceedings in a criminal case, are true. This will leave the
members of the legal profession black faced for the black deed of the petitioner who
may be as the High Court found a black sheep in the profession. Though the petition
filed by the petitioner carried the attractive brand name of "Public Interest Litigation",
the least that can be said is that it smacks of everything what the Public Interest
Litigation should not be.
4. When there is material to show that a petition styled as a public interest litigation
is nothing but a camouflage to foster personal disputes, said petition is to be thrown
out. Before we grapple with the issue involved in the present case, we feel it
necessary to consider the issue regarding public interest aspect. Public Interest
Litigation which has now come to occupy an important field in the administration of
law should not be "publicity interest litigation" or ''private interest litigation" or
"politics interest litigation'' or the latest trend ''paise income litigation". The High
Court has found that the case at hand belongs to the last category. If not properly
regulated and abuse averted, it becomes also a tool in unscrupulous hands to release
vendetta and wreck vengeance, as well. There must be real and genuine public
interest involved in the litigation and not merely an adventure of knight errant borne
out of wishful thinking. It cannot also be invoked by a person or a body of persons to
further his or their personal causes or satisfy his or their personal grudge and enmity.
Courts of justice should not be all owed to be polluted by unscrupulous litigants by
resorting to the extraordinary jurisdiction. A person acting bona fide and having
sufficient interest in the proceeding of public interest litigation will alone have a locus
standi and can approach the Court to wipe out violation of fundamental rights and
genuine infraction of statutory provisions, but not for personal gain or private profit
or political motive or any oblique consideration. These aspects were highlighted by
this Court in The Janta Dal v. H.S. Chowdhary MANU/SC/0532/1992 : 1993CriL J600
and Kazi Lhendup Dorji v. Central Bureau of Investigation, MANU/SC/0989/1994 :
(1992)ILL J922SC . A writ petitioner who comes to the Court for relief in public
interest must come not only with clean hands like any other writ petitioner but also
with a clean heart, clean mind and clean objective. (See Ramjas Foundation v. Union
of India, MANU/SC/0117/1993 : AIR1993SC852 andK.R. Srinivas v. R.M. Premchand,
MANU/SC/0874/1994 : (1994)6SCC620 ).
5. It is necessary to take note of the meaning of expression 'public interest litigation'.

In Stroud's Judicial Dictionary, Volume 4 (IV Edition), 'Public Interest' is defined
thus:
"Public Interest (1) a matter of public or general interest does not mean that
which is interesting as gratifying curiosity or a love of information or
amusement but that in which a class of the community have a pecuniary
interest, or some interest by which their legal rights or liabilities are
affected."
6. In Black's Law Dictionary (Sixth Edition), "public interest" is defined as follows:
"Public Interest something in which the public, or some interest by which
their legal rights or liabilities are affected. It does not mean any thing the
particular localities, which may be affected by the matters in question.
Interest shared by national government...."
7 . I n Janata Dal case (supra) this Court considered the scope of public interest
litigation. In para 52 of the said judgment, after considering what is public interest,
has laid down as follows:
"The expression 'litigation' means a legal action including all proceedings
therein initiated in a Court of law for the enforcement of right or seeking a
remedy.
Therefore, lexically the expression "PIL" means the legal action initiated in a
Court of law for the enforcement of public interest or general interest in
which the public or a class of the community have pecuniary interest or some
interest by which their legal rights or liabilities are affected."
8. In paras 60, 61 and 62 of the said judgment, it was pointed out as follows:
"Be that as it may, it is needless to emphasis that the requirement of locus
standi of a party to a litigation is mandatory, because the legal capacity of
the party to any litigation whether in private or public action in relation to
any specific remedy sought for has to be primarily ascertained at the
threshold."
9. In para 96 of the said judgment, it has further been pointed out as follows:
"While this Court has laid down a chain of notable decisions with all
emphasis at their command about the importance and significance of this
newly developed doctrine of PIL, it has also hastened to sound a red alert
and a note of severe warning that Courts should not allow its process to be
abused by a mere busy body or a meddlesome interloper or wayfarer or
officious intervener without any interest or concern except for personal gain
or private profit or other oblique consideration."
10. In subsequent paras of the said judgment, it was observed as follows:
"It is thus clear that only a person acting bona fide and having sufficient
interest in the proceeding of PIL will alone have as locus standi and can
approach the Court to wipe out the tears of the poor and needy, suffering
from violation of their fundamental rights, but not a person for personal gain
or private profit or political motive or any oblique consideration. Similarly a
vexatious petition under the colour of PIL, brought before the Court for

brain or force behind such cases would get exposed to find out the truth and motive
behind the petition. Whenever such frivolous pleas, as noted, are taken to explain
possession, the Court should do well not only to dismiss the petitions but also to
impose exemplary costs. It would be desirable for the Courts to filter out the
frivolous petitions and dismiss them with costs as afore-seated so that the message
goes in the right direction that petitions filed with oblique motive do not have the
approval of the Courts.
17. In S.P. Gupta v. Union of India MANU/SC/0080/1981 it was emphatically pointed
out that the relaxation of the rule of locus standi in the field of PIL does not give any
right to a busybody or meddlesome interloper to approach the Court under the guise
of a public interest litigant. He has also left the following note of caution:
"But we must be careful to see that the member of the public, who
approaches the court in cases of this kind, is acting bona fide and not for
personal gain or private profit or political motivation or other oblique
consideration. The court must not allow its process to be abused by
politicians and others to delay legitimate administrative action or to gain a
political objective."
1 8 . I n State of H.P. v. A Parent of a Student of Medical College, Simla and Ors.
MANU/SC/0046/1985 : [1985]3SCR676 , it has been said that public interest
litigation is a weapon which has to be used with great care and circumspection.
19. These aspects have been high lighted in Ashok Kumar Pandey v. State of West
Bengal MANU/SC/0936/2003 : AIR2004SC280 andDr. B. Singh v. Union of India and
Ors. MANU/SC/0211/2004 : AIR2004SC1923 .
2 0 . It is disturbing feature which needs immediate remedial measure by the Bar
Councils and the Bar Association to see that the process of law is not abused and
polluted by its member. It is high time that the Bar Councils and the Bar Associations
ensure that no member of the Bar becomes party as petitioner or in aiding and/or
abetting files frivolous petitions carrying the attractive brand name of "Public Interest
Litigation". That will be keeping in line with the high traditions of the Bar. No one
should be permitted to bring disgrace to the noble profession. We would have
imposed exemplary cost in this regard but taking note of the fact that the High Court
had already imposed costs of Rs. 25,000/-, we do not propose to impose any further
cost.
21. Let copy of this judgment be sent to Bar Council of India and the Supreme Court
Bar Association by the Registry for necessary action.
22. The petition deserves to be dismissed, which we direct.

MANU/SC/0159/1989
Equivalent Citation: 1990(14)AC R411(SC ), AIR1990SC 494, 1989 AWC 1447 SC , 1990C riLJ320, 1990(1)C rimes26(SC ), I(1990)DMC 36SC ,
1991GLH(1)118, JT1989(4)SC 318, 1990(1)RC R(C riminal)173, 1989(2)SC ALE1128, 1990(Supp)SC C 686, [1989]SuppSC R165, 1990(1)UJ129

Criminal Appeal No. 672 of 1989 (Arising out of Special Leave Petition (Crl.) No.
1968 of 1988)

Appellants:Dhanalakshmi
vs.
Respondent:R. Prasanna Kumar and Ors.
E.S. Venkataramiah, C.J., K.N. Singh and M. Fathima Beevi, JJ.
Counsels:
For Intervenor: G.L. Sanghi and A. Sharan, Advs
Case Note:
Criminal - power to quash proceedings - Sections 34, 112, 114, 120, 120B,
494 and 498A of Indian Penal Code, 1860 and Section 482 of Criminal
Procedure Code, 1973 - High Court under Section 482 empowered to quash
proceedings if it appears frivolous - allegations if made in complaint do not
constitute offence of which cognizance taken by Magistrate it is open to
High Court to quash it exercising inherent power - when complaint
disclosed commission of offence High Court not to interfere with.
Criminal - Quashing of proceedings - Validity of - Sections 494, 496, 498-A,
112, 114, 120, 120-B and 34 Indian Penal Code, 1860 (IPC) - Present
appeal is filed against quashing of cognizance taken under Sections 494,
496, 498-A, 112, 114, 120, 120-B and 34 of IPC - Held, High Court was
clearly in error assessing material before it and concluding that complaint
cannot be proceeded with - This Court find there are specific allegations in
complaint disclosing ingredients of offence taken cognizance of - It is for
complainant to substantiate allegations by evidence at later stage - In
absence of circumstances to hold prima facie that complaint is frivolous
when complaint does disclose commission of offence there is no
justification for High Court to interfere - This Court therefore, allowed
appeal and set aside impugned order and direct that proceedings before
Magistrate shall be restored and disposed of in accordance with law
JUDGMENT
M. Fathima Beevi, J.
1. Special Leave granted.

2. The appellant married the first respondent on 29-4-1979. They lived together until
1982 and have two children. They separated and the legal battle commenced in 1983.
The first respondent moved the City Civil Court for divorce. The appellant instituted
criminal complaint in the Court of the Metropolitan Magistrate. The complaint was
taken cognizance of for offences under Sections 494, 496, 498-A, 112, 114, 120,
120-B and 34 I.P.C. against the respondents. It was alleged that the first respondent
married the second respondent while the proceedings for decree of divorce were still
pending, the marriage was performed secretly in the presence of respondent Nos. 3
to 6. On the application of the first respondent the High Court by the impugned order
quashed the proceedings before the Metropolitan Magistrate. Hence the appeal.
3. Section 482 of the CrPC empowers the High Court to exercise its inherent powers
to prevent abuse of the process of Court. In proceedings instituted on complaint
exercise of the inherent power to quash the proceedings is called for only in cases
where the complaint does not disclose any offence or is frivolous, or oppressive. If
the allegations set out in the complaint do not constitute the offence of which
cognizance is taken by the Magistrate it is open to the High Court to quash the same
in exercise of the inherent powers under Section 482. It is not, however, necessary
that there should be a meticulous analysis of the case, before the trial to find out
whether the case would end in convocation or not. The complaint has to be read as a
whole. If it appears on a consideration of the allegations, in the light of the statement
on oath of the complainant that ingredients of the offence/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.
4 . The High Court without proper application of the principles that have been laid
down by this Court in Sharda Prasad Sinha v. State of Bihar MANU/SC/0110/1976 :
1977CriL J1146 , Trilok Singh and Ors. v. Satya Deo Tripathi MANU/SC/0231/1979 :
1980CriL J822 and Municipal Corporation of Delhi v. Purshotam Dass Jhunjunwala and
Ors. MANU/SC/0093/1982 : 1983CriL J172 proceeded to analysis the case of the
complainant in the light of all the probabilities in order to determine whether a
conviction would be sustainable and on such premises arrived at a conclusion that
the proceedings are to be quashed against all the respondents. The High Court was
clearly in error in assessing the material before it and concluding that the complaint
cannot be proceeded with. We find there are specific allegations in the complaint
disclosing the ingredients of the offence taken cognizance of. It is for the
complainant to substantiate the allegations by evidence at a later stage. In the
absence of circumstances to hold prima facie that the complaint is frivolous when the
complaint does disclose the commission of an offence there is no justification for the
High Court to interfere.
5. We, therefore, allow the appeal, set aside the impugned order and direct that the
proceedings before the Magistrate shall be restored and disposed of in accordance
with the law.

MANU/SC/0099/1954
Equivalent Citation: AIR1954SC 520, 9 E.L.R. 494, [1955]1SC R267

Civil Appeal No. 150 of 1953
Appellants:Durga Shankar Mehta
Vs.
Respondent:Raghuraj Singh and Ors.
M.C. Mahajan, C.J., B.K. Mukherjea, Vivian Bose, N.H. Bhagwati and T.L. Venkatarama
Aiyyar, JJ.
Case Notes:
The finding of the Tribunal that there has been a non- compliance with the
provision of Article 173 of the Constitution of India as the candidate was
under-aged and therefore came under Sub-Section (2)(c) of Section 100 of
the Representation of People Act, 1951 - Thus election of the particular
candidate only, who was found to be under-age, was to be declared void on
the ground of said constitutional disqualification of the candidate - It was
also held that the expression' non-compliance with the provisions of the
Constitution' in Clause (c) of Sub Section (2) of Section 100 of the Act was
wide enough to cover those cases where the question was of constitutional
disability
JUDGMENT
B.K. Mukherjea, J.
1 . This appeal, which has come before us on special leave, is directed against the
judgment and order of the Election Tribunal, Jabalpur, at Nagpur, dated the 30th
April, 1953, whereby the Tribunal declared the election held on the 29th December,
1951, for the double member Lakhnadon Legislative Assembly Constituency, to be
wholly void under section 100(1)(c) of the Representation of the People Act
(hereinafter called "the Act").
2. To appreciate the contentions that have been raised by the parties to this appeal, it
would be necessary to state briefly the material facts. The Lakhnadon Legislative
Assembly Constituency in Madhya Pradesh is a double member constituency, one of
the seats in which is reserved for Scheduled Tribes. The appellant and respondents
Nos. 1, 3, 5 and 7 were duly nominated candidates for the general seat in the said
constituency, while respondents Nos. 2, 4 and 6 were nominated for the reserved
seat. No objection was taken before the Returning Officer in respect of the
nomination of either the appellant or respondent No. 2, Vasant Rao. Out of these
eight candidates, respondents Nos. 5, 6 and 7 withdrew their candidature within the
prescribed period under section 37 of the Act and the actual contest at the election
was between the remaining five candidates, namely, the appellant and respondents
Nos. 1 to 4. The votes secured by these five candidates at the polling were found to
be as follows :-

contended by the learned counsel that the jurisdiction that is created in the Election
Tribunal is a special jurisdiction which can be invoked by an aggrieved party only by
means of an election petition and the decision of the Tribunal is final and conclusive.
5. These arguments, though apparently attractive, appear to us on closer examination
to be untenable. We agree with the learned counsel that the right of seeking election
and sitting in Parliament or in a State Legislature is a creature of the Constitution and
when the Constitution provides a special remedy for enforcing that right, no other
remedy by ordinary action in a Court of law is available to a person in regard to
election disputes. The jurisdiction with which the Election Tribunal is endowed is
undoubtedly a special jurisdiction; but once it is held that it is a judicial Tribunal
empowered and obliged to deal judicially with disputes arising out of or in
connection with election, the overriding power of this Court to grant special leave, in
proper cases, would certainly be attracted and this power cannot be excluded by any
Parliamentary legislation. The non obstante clause with which article 329 of the
Constitution begins and upon with which the respondent's counsel lays so much
stress debars us, as it debars any other Court in the land, to entertain a suit or a
proceeding calling in question any election to the Parliament or the State Legislature.
It is the Election Tribunal alone that can decide such disputes, and the proceedings
has to be initiated by an election petition and in such manner as may be provided by
a statute. But once that Tribunal has made any determination or adjudication on the
matter, the powers of this Court to interfere by way of special leave can always be
exercised. It is now well settled by the majority decision of this Court in the case of
Bharat Bank Ltd. v. Employees of the Bharat Bank Ltd. MANU/SC/0030/1950 : [1950]
S.C.R. 459 that the expression "Tribunal" as used in article 136 does not mean the
same thing as "Court" but includes, within its ambit, all adjudicating bodies, provided
they are constituted by the State and are invested with judicial as distinguished from
purely administrative or executive functions.
The only Courts of Tribunals, which are expressly exempted from the purview of
article 136, are those which are established by or under any law relating to the
Armed Forces as laid down in clause (2) of the article. It is well known that an appeal
is a creature or statute and there can be no inherent right of appeal from any
judgment or determination unless an appeal is expressly provided for by the law
itself. The powers given by article 136 of the Constitution however are in the nature
of special or residuary powers which are exercisable outside the purview of ordinary
law, in cases where the needs of justice demand interference by the Supreme Court
of the land. The article itself is worded in the widest terms possible. It vests in the
Supreme Court a plenary jurisdiction in the matter of entertaining and hearing
appeals, by granting of special leave, against any kind of judgment or order made by
a Court or Tribunal in any cause or matter and the powers could be exercised in spite
of the specific provisions for appeal contained in the Constitution or other laws. The
Constitution for the best of reasons did not choose to fetter or circumscribe the
powers exercisable under this article in any way.
Section 105 of the Representation of the People Act certainly gives finality to the
decision of the Election Tribunal so far as that Act is concerned and does not provide
for any further appeal but that cannot in any way cut down or affect the overriding
powers which this Court can exercise in the matter of granting special leave under
article 136 of the Constitution.
6. This overriding power, which has been vested in the Supreme Court under article
136 of the Constitution, is in a sense wider than the prerogative right of entertaining
an appeal exercised by the Judicial Committee of the Privy Council in England. The

happened, the acceptance of the nomination by the Returning Officer must be deemed
to be a proper acceptance. It is certainly not final and the Election Tribunal may, on
evidence placed before it, come to a finding that the candidate was not qualified at
all. But the election should be held to be void on the ground of the constitutional
disqualification of the candidate and not on the ground that his nomination was
improperly accepted by the Returning Officer. In our opinion Mr. Sen is right that a
case of this description comes under sub-section (2)(c) of section 100 and not under
sub-section (1)(c) of the section as it really amounts to holding an election without
complying with the provisions of the Constitution, and that is one of the grounds
specified in clause (c) of sub-section (2). The expression "non-compliance with the
provision of the Constitution" is in our opinion sufficiently wide to cover such cases
where the question is not one of improper acceptance or rejection of the nomination
by the Returning Officer, but there is a fundamental disability in the candidate to
stand for election at all. The English law, after the passing of the Ballot Act of 1872,
is substantially the same as has been explained in the case of Stowe v. Jolliffe 9 C.P.
734. The register which correspondence to our electoral roll is regarded as conclusive
except in cases where persons are prohibited from voting by any statute or by the
common law of Parliament.
11. It is argued on behalf of the respondent that the expression "non-compliance" as
used in sub-section (2)(c) would suggest the idea of not acting according to any rule
or command and that the expression is not quite appropriate in describing a mere
lack of qualification. This, we think, would be a narrow way of looking at the thing.
When a person is incapable of being chosen as a member of a State Assembly under
the provision of the Constitution itself but has nevertheless been returned as such at
an election, it can be said without impropriety that there has been non-compliance
with the provisions of the Constitution materially affecting the result of the election.
There is an material difference between "non-compliance" and "non-observance" or
"breach" and this item in clause (c) of sub-section (2) may be taken as a residuary
provision contemplating cases where there has been infraction of the provision of the
Constitution or of the Act but which have not been specifically enumerated in the
other portions of the clauses. When a person is not qualified to be elected a member,
there can be no doubt that the Election Tribunal has got to declare his election to be
void. Under section 98 of the Act this is one of the orders which the Election Tribunal
is competent to make. It is said that section 100 of the Act enumerates exhaustively
the grounds on which an election could be held void either as a whole or with regard
to the returned candidate, we think that it would be a correct view to take that in the
case of a candidate who is constitutionally incapable of being returned as a member
there is non-compliance with the provision of the Constitution in the holding of the
election and as such sub-section (2)(c) of section 100 of the Act applies. The result
therefore is that in our opinion the contention of the appellant succeeds. We allow
the appeal in part and modify the order of the Election Tribunal to this extent that the
election of respondent No. 2 Vasant Rao only is declared to be void; the election of
the appellant however will stand. We make no order as to costs of this appeal.
12. Order accordingly.

MANU/SC/0380/1973
Equivalent Citation: AIR1974SC 555, (1978)1C ompLJ379(SC ), 1974LabIC 427, (1974)ILLJ172SC , (1974)4SC C 3, [1974]2SC R348,
1974(1)SLR497(SC )

Writ Petition No. 284 of 1972
Appellants:E.P. Royappa
Vs.
Respondent:State of Tamil Nadu and Ors.
A.N. Ray, C.J., D.G. Palekar, P.N. Bhagwati, V.R. Krishna Iyer and Y.V. Chandrachud,
JJ.
Counsels:
For Appellant/Petitioner/Plaintiff: A.K. Sen, S.J. Rama, U.N.R. Rao, V. Selvaraj and
R.R. Agarwala, Advs
For Respondents/Defendant: S. Govind Swaminathan and S.V. Gupte, Advs.
Case Note:
Service - enquiry - petition for directing respondents to withdraw and
cancel Order and ask for direction to re-post petitioner to post of Chief
Secretary - file pertaining to matter throughout in possession of
Government - absence of file could not have stood in way of ordering an
enquiry - suspicion cannot take place of proof - evidence generating judicial
certitude in up-holding plea of mala fides not on record - petition dismissed.
JUDGMENT
A.N. Ray, C.J.
1 . The petitioner in this writ petition under Article 32 of the Constitution asks for a
mandamus or any other appropriate writ, direction or order directing the respondents
to withdraw and cancel the order dated 27 June, 1972. The petitioner further asks for
direction to re-post the petitioner to the post of Chief Secretary in the State of Tamil
Nadu. The respondents are the State of Tamil Nadu and the Chief Minister of Tamil
Nadu.
2. The petitioner is a member of the Indian Administrative Service in the cadre of the
State of Tamil Nadu. On 2 August, 1968 the petitioner was confirmed in the Selection
Grade of the Indian Administrative Service with effect from 22 May, 1961. There were
8 Selection Grade posts in the State of Tamil Nadu. The petitioner was No. 4 in that
list. The petitioner in the years 1964, 1965, 1966, 1968 and 1969 was posted to act
as Fifth Member, Board of Revenue; Fourth Member, Board of Revenue; Third
Member, Board of Revenue; Second Member, Board of Revenue. On 5 April, 1969 the
petitioner was posted to act as Second Member, Board of Revenue. On 11 July, 1969
the petitioner was posted to act as Additional Chief Secretary.

doctrine or equality in all matters relating to public employment.
The basic principle which, therefore, informs both Articles 14 and 16 is equality and
inhibition against discrimination.
Now, what is the content and reach of this great equalising principle? It is a founding
faith, to use the words of Bose, J., "a way of life", and it must not be subjected to a
narrow pedantic or lexicographic approach. We cannot countenance any attempt to
truncate its all-embracing scope and meaning, for to do so would be to violate its
activist magnitude. Equality is a dynamic concept with many aspects and dimensions
and it cannot be "cribbed, cabined and confined" within traditional and doctrinaire
limits. From a positivistic point of view, equality is antithetic to arbitrariness. In fact
equality and arbitrariness are sworn enemies; one belongs to the rule of law in a
republic while the other, to the whim and caprice of an absolute monarch. Where an
act is arbitrary it is implicit in it that it is unequal both according to political logic and
Constitutional law
and is therefore violative of Article 14,
and if it affects any matter relating to public employment, it is also violative of Article
16. Articles 14 and 16 strike at arbitrariness in State action and ensure fairness and
equality of treatment.
They require that State action must be based on equivalent relevant principles
applicable alike to all similarly situate and it must not be guided by any extraneous or
irrelevant considerations because that would be denial of equality. Where the
operative reason for State action, as distinguished from motive inducing from the
antechamber of the mind, is not legitimate and relevant but is extraneous and outside
the area of permissible considerations, it would amount to mala fide exercise of
power and that is hit by Articles 14 and 16.
Mala fide exercise of power and arbitrariness are different lethal radiations emanating
from the same vice : in fact the latter comprehends the former. Both are inhibited by
Articles 14 and 16.
86. It is also necessary to point out that the ambit and reach of Articles 14 and 16
are not limited to cases where the public servant affected has a right to a post. Even
if a public servant is in an officiating position, he can complain of violation of Articles
14 and 16 if he has been arbitrarily or unfairly treated or subjected to mala fide
exercise of power by the State machine. It is, therefore, no answer to the charge of
infringement of Articles 14 and 16 to say that the petitioner had no right to the post
of Chief Secretary but was merely officiating in that post. That might have some
relevance to Article 311 but not to Articles 14 and 16. We must, therefore, proceed to
consider whether the transfer of the petitioner first to the post of Deputy Chairman
and then to the post of Officer on Special Duty was arbitrary, hostile and is mala fide
exercise of power. What was the operative reason for such transfer; was it the
exigencies of public administration or extra administrative considerations having no
relevance to the question of transfer ? Was the transfer to the post of Deputy
Chairman or Officer on Special Duty so irrational or unjust that it could not have been
made by any reasonable administration except for collateral reasons ? These are the
questions which call for our Consideration.
8 7 . Now, two important considerations must weigh with us in determining our
approach to these questions. First, the post of Chief Secretary is a highly sensitive
post. It is a post of great confidence-a lynchpin in the administration and smooth
functioning of the administration requires that there should be complete rapport and
understanding between the Chief Secretary and the Chief Minister. The Chief Minister
as the head of the Government is in ultimate charge of the administration and it is he
who is politically answerable to the people for the achievements and failures of the


MANU/SC/0010/1980
Equivalent Citation: AIR1981SC 344, [1981(42)FLR192], 1980LabIC 1367, (1981)ILLJ193SC , (1981)1SC C 568, [1981]2SC R52

Appellants:Fertilizer Corporation Kamgar Union, Sindri and Ors.
Vs.
Respondent:Union of India (UOI) and Ors.
Y.V. Chandrachud, C.J., A.D. Koshal, P.N. Bhagwati, S. Murtaza Fazal Ali and V.R.
Krishna Iyer, JJ.
Counsels:
For Appellant/Petitioner/Plaintiff: R.K. Garg, Sunil Kumar Jain, Dinesh Kumar Garg,
Sukumar Sahu and V.J. Francis, Advs
For Respondents/Defendant: L.N. Sinha, Att. Genearl, M.M. Abdul Khader, T.V.S.N.
Chari and M.N. Shroff, Advs. for Respondent No. 1 and M.K. Banerjee, Addl. Sol.
Genl. for Respondent No. 2
Case Note:
Constitution - Violation of fundamental rights - Article 14 and 19 of
Constitution of India - Petitioner sought for directing Respondents not to
sell away plant and equipment and they should be asked to withdraw their
decision to sell the same and said decision should be quashed as being
illegal and unconstitutional - Hence, this Petition - Whether, any of
fundamental rights of Petitioners was violated by sale of plants and
equipment of Factory - Held, plants which were initially advertised for sale,
went through variation, that after sale was adjourned, requests received by
F.C.I. from other public sector undertakings stating, that they were in need
of part of equipment which was advertised for sale, led to substantial
reduction in goods advertised for sale - However, officers regarding sale had
attracted criticism that during course of negotiations original bid was
reduced without justifying cause - Moreover, reduction in price was
necessary and fair consequence of reduction in quantity of goods later
offered for sale - Thus, one could not exclude possibility that better price
might have been realized in fresh public auction, but such possibilities
could not vitiate sale or justify allegation of mala fides - Hence, sale was
not vitiated by any unfairness or arbitrariness - Therefore, fundamental
rights of Petitioners under Article 14 and Article 19 of Constitution were
not violated - Petition dismissed.
Ratio Decidendi:
"Action taken by any authority without specifying any cause shall amount
to violation of fundamental right."
JUDGMENT
Y.V. Chandrachud, C.J.

the Supreme Court by appropriate proceedings for the enforcement of the rights
conferred by Part III, provides by Clause (2) that :
The Supreme Court shall have power to issue directions or orders or writs,
including writs in the nature of habeas corpus, mandamus, prohibition, quo
warranto and certiorari, whichever may be appropriate, for the enforcement
of any of the rights conferred by this Part.
It is manifest that the jurisdiction conferred on this Court by Article 32 can be
exercised for the enforcement of the rights conferred by Part III and for no other
purpose. Clause (1) as well as Clause (2) of Article 32 bring out this point in sharp
focus. As contrasted with Article 32, Article 226(1) of the Constitution provides that :
Notwithstanding anything in Article 32 every High Court shall have power,
throughout the territories in relation to which it exercises jurisdiction, to
issue to any person or authority, including in appropriate cases, any
Government, within those territories directions, orders or writs, including
writs in the nature of habeas corpus, mandamus, prohibition, quo warranto
and certiorari, or any of them, for the enforcement of any of the rights
conferred by Part III and for any other purpose.
(emphasis supplied).
The difference in the phraseology of the two Articles brings out the marked difference
in the nature and purpose of the right conferred by these Articles. Whereas the right
guaranteed by Article 32 can be exercised for the enforcement of fundamental rights
only, the right conferred by Article 226 can be exercised not only for the enforcement
of fundamental rights but for any other purpose.
11. The jurisdiction conferred on the Supreme Court by Article 32 is an important
and integral part of the basic structure of the Constitution because it is meaningless
to confer fundamental rights without providing an effective remedy for their
enforcement, if and when they are violated. A right without a remedy is a legal
conundrum of a most grotesque kind. While the draft Article 25, which corresponds
to Article 32, was being discussed in the Constituent Assembly, Dr. Ambedkar made a
meaningful observation by saying :
If I was asked to name any particular article in this Constitution as the most
important-an article without which this Constitution would be a nullity-I
could not refer to any other article except this one. It is the very soul of the
Constitution and the very heart of it and I am glad that the House has
realised its importance. (Constituent Assembly Debates, December 9, 1948,
Vol. VII, p. 953).
But though the right guaranteed by Article 32 is one of the highly cherished rights
conferred by the Constitution, the purpose for which that right can be enforced is
stated in the very article which confers that right. The violation of a fundamental right
is the sine qua non of the exercise of the right conferred by Article 32.
12. That makes it necessary to consider whether any of the fundamental rights of the
petitioners is violated or is in the imminent danger of being violated by the sale of
the plants and equipment of the Factory. The grievance of the petitioners is that two
of their fundamental rights are violated by the sale, one under Article 19(1)(g) and
the other under Article 14 of the Constitution.

sufficient to claim relief under Article 226 and even under other jurisdictions. The
learned Attorney General almost agreed, under pressure of compelling trends in the
contemporary law of procedure, that Article 226 may probably enable the petitioner
to seek relief if the facts suggested by the court hypothetically existed Shri A.K. Sen
also took up a similar position. I will put aside Article 32 for a moment and scan the
right under Article 226. There is nothing in the provision (unlike under Article 32) to
define 'person aggrieved', 'standing' or 'interest' that gives access to the court to seek
redress.
40. The argument is, who are you to ask about the wrong committed or illegal act of
the Corporation if you have suffered no personal injury to property, body, mind or
reputation ? An officious busybody picking up a stray dispute or idle peddler of
blackmail-litigation through abuse of the process of the court cannot be permitted to
pollute the court instrumentality, for private objectives. Public justice is always and
only at the service of public good, never the servant or janitor of private interest or
personal motive.
41. Law as I conceive it, is a social auditor and this audit function can be put into
action only when some one with real public interest ignites the jurisdiction. We
cannot be scared by the fear that all and sundary will be litigation-happy and waste
their time and money and the time of the court through false and frivolous cases. In a
society where freedoms suffer from atrophy and activism is essential for participative
public justice, some risks have to be taken and more opportunities opened for the
public-minded citizen to rely on the legal process and not be repelled from it by
narrow pedantry now surrounding locus standi.
42. Schwartz and H.W.R. Wade wrote in Legal Control of Government :
Restrictive rules about standing are in general inimical to a healthy system of
a administrative Jaw. If a plaintiff with a good case is turned away, merely
because he is not sufficiently affected personally, that means that some
government agency is left free to violate the law, and that is contrary to the
public interest. Litigants are unlikely to expend their time and money unless
they have some real interest at stake. In the rare cases where they wish to
sue merely out of public spirit, why should they be discouraged?
43. They further observed :
The problem of standing, or locus standi is inherent in all legal systems....
But in the United States, perhaps because of the constitutional basis which
the subject has acquired in federal law it can be discussed as a single topic.
In Britain it is a thing of shreds and patches, made up of various differing
rules which apply to various different remedies and procedures. It is a typical
product of the untidy system of remedies, each with its own technicalities,
which all British administrative lawyers would like to see reformed.
We have no doubt that having regard to the conditions in Third World countries,
Cappelletti is right in his stress on the importance of access :
The right of effective access to justice has emerged with the new social
rights. Indeed, it is of paramount importance among these new rights since,
clearly, the enjoyment of traditional as well as new social rights presupposes
mechanisms for their effective protection. Such protection, moreover, is best
assured by a workable remedy within the framework of the judicial system.

Effective access to justice can thus be seen as the most basic requirement-
the most basic 'human right'-of a system which purports to guarantee legal
rights.
44. The need for a radical approach has been underscored in New Zealand by Black :
...today it is unreal to suggest that a person looks to the law solely to protect
his interests in a narrow sense. It is necessary to do no mare than read the
newspapers to see the breadth of the interests that today's citizen expects the
law to protect-and he expects the court where necessary to provide that
protection. He is interested in results, not procedural niceties.
45. India is an a fortiori case, especially as it suffers from the pathology of mid.
Victorian concepts about cause of action. The Australian Law Reform Commission in
its discussion paper No. 4 has considered the pros and cons and strongly supported
the wider basis for access to justice. Class-actions will activise the legal process
where individuals cannot approach the court for many reasons. I quote from the
Discussion Paper No. 4 :
Widened standing rules may assist consumers in attaining relevant injunctive
or declaratory relief but they do not assist in recovering losses inflicted by
illegal trading practices, nor do they threaten the illegal trader where he is
mot hurt, his pocketbook. The most potent legal instrument in that regard so
far devised is the modern class action, to some an 'engine of destruction', to
others a mighty force for good. Consider the New York Commissioner of
Consumer Affairs giving evidence before a United States Senate Committee in
1970.
'A federal class action law will have more impact on the market places of the
nation than all the myriads of laws and ordinances against fraud and
deception which are hidden away, in the statute books of the 50 States and
their various sub-divisions, put together. All these laws make fraud illegal.
But they have not made fraud unprofitable. Many of these laws can only be
invoked by administrative agencies, which long ago lost their concern for the
consumer and their appetite for action.
A Federal class action law...will put the power to seek justice in court where
it belongs-beyond the reach of campaign contributors, industry lobbyists, or
Washington lawyers-and it will put power in the hands of the consumers
themselves and in the hands of their own lawyers, retained by them to
represent their interests alone.'
46. Public interest litigation is part of the process of participate justice and 'standing'
in Civil litigation of that pattern must have liberal reception at the judicial doorsteps.
The flood-gates argument has been nailed by the Australian Law Reforms
Commission :
The idle and whimsical plaintiff, a dilettante who litigates for a lark, is a
specter which haunts the legal literature, not the courtroom.
A major expressed reason for limiting standing rights is fear of a spate of
actions brought by busybodies which will unduly extend the resources of the
courts. No argument is easier put, none more difficult to rebut. Even if the
fear be justified it does not follow that present restrictions should remain. If

claims.
Why drive common people to public interest action ? Where Directive
Principles have found statutory expression in Do's and Dont's the court will
not sit idly by....Municipal Council, Ratlam v. Shri Vardhichand and Ors.
S.L.P. (Crl.) No. 2856 of 1979 -decided on July 29, 1980.
49. After all (Australian, 16 November, 1977) was right. We quote as a concluding
thought of benign import for us :-
Under a banner 'Easier Access to Courts of Law' the Australian, 16 November
1977 declared :
'Perhaps-and it is only a perhaps-there was once some justification
for restricting access to the courts to prevent their being bogged
down in a morass of ineffectuality. But today's better informed,
better educated, more literate and more politically aware citizens
should certainly not be barred from the courts by tradition. The law
can no longer be a closed shop.
50. In the present case a worker, who, clearly, has an interest in the industry, brings
this action regarding an alleged wrong-doing by the Board of Management. Article
43A of the Constitution confers, in principle, partnership status to workers in industry
and we cannot, therefore, be deterred by technical considerations of corporate
personality to keep out those who seek to remedy wrongs committed in the
management of public sector. Locus standi and justiciability are different issues, as I
have earlier pointed out. This takes us to the question of justiciability of questions
like sale of public property by public bodies. Certainly, it is not part of the judicial
process to examine entrepreneurial activities to ferret out flaws. The court is least
equipped for such oversights. Nor, indeed, is it a function of the judges in our
constitutional scheme. We do not think that the internal management, business
activity or institutional operation of public bodies can be subjected to inspection by
the Court. To do so, is incompetent and improper and, therefore, out of bounds.
Nevertheless, the broad parameters of fairness in administration, bona fides in action,
and the fundamental rules of reasonable management of public business, if breached,
will become justiciable.
51. If a citizen is no more than a wayfarer or officious intervener without any interest
or concern beyond what belongs to any one of the 660 million people of this country,
the door of the court will not be ajar for him. But he belongs to an organisation
which has special interest in the subject matter, if he has some concern deeper than
that of a busybody, he cannot be told off at the gates, although whether the issue
raised by him is justiciable may still remain to be considered. I, therefore, take the
view that the present petition would clearly have been permissible under Article 226
see judgments of Krishna Iyer, J. in MANU/SC/0003/1975 : [1976]1SCR306 and
MANU/SC/0670/1975 : [1976]2SCR48 .
52. The learned Attorney General drew our attention to Article 32 and cited decisions
to support his contention that only the petitioner's fundamental rights could be
agitated under that Article. As the rulings now stand, he is right, although the
question still survives as to whether a worker's fundamental right under Article 14 is
not affected when arbitrary action of the enterprise in which he is employed has an
impact on his well-being.

5 3 . The democratisation of judicial remedies which is the thrust of our separate
opinion, induces us to conclude with a quote : Henry Peter Brougham : Nieman
Reports, April 1956.
It was the boast of Augustus that he found Rome of brick and left it of
marble. But how much nobler will be the sovereign's boast when he shall
have it to say that he found law dear and left it cheap; found it a sealed book
and left it a living letter; found it the patrimony of the rich and left it the
inheritance of the poor; found it the two-edged sword of craft and
oppression and left it the staff of honesty and the shield of innocence.
Having sought to illumine the half-lit zone of access jurisprudence, we wish to make
it clear that we are not dealing with the likely application Article 19(1)(f) or of Article
14 which have been raised in the present case because the learned Chief Justice has
held that on the merits the action of the Corporation is above board. The question
which we reserve may well be considered when an appropriate occasion arises.

INTERNATIONAL COURT OF JUSTICE
Peace Palace, Carnegieplein 2, 2517 KJ The Hague, Netherlands
Tel.: +31 (0)70 302 2323 Fax: +31 (0)70 364 9928
Website: www.icj-cij.org
Summary
Not an official document
Summary 2012/2
3 February 2012
Jurisdictional Immunities of the State (Germany v. Italy: Greece intervening)
Summary of the Judgment of 3 February 2012
I. Historical and factual background of the case (paras. 20-36)
The Court recalls that, on 23 December 2008, the Federal Republic of Germany (hereinafter
“Germany”) filed in the Registry of the Court an Application instituting proceedings against the
Italian Republic (hereinafter “Italy”) in respect of a dispute originating in “violations of obligations
under international law” allegedly committed by Italy through its judicial practice “in that it has
failed to respect the jurisdictional immunity which . . . Germany enjoys under international law”.
The Court further recalls that, by an Order of 4 July 2011, the Court authorized Greece to intervene
in the case as a non-party, in so far as this intervention was limited to the decisions of Greek courts
which were declared as enforceable in Italy. The Court then briefly describes the historical and
factual background of the case, and in particular the proceedings brought before Italian courts by
Italian and Greek nationals.
II. The subject-matter of the dispute and the jurisdiction of the Court (paras. 37-51)
Germany requests the Court, in substance, to find that Italy has failed to respect the
jurisdictional immunity which Germany enjoys under international law by allowing civil claims to
be brought against it in the Italian courts, seeking reparation for injuries caused by violations of
international humanitarian law committed by the German Reich during the Second World War;
that Italy has also violated Germany’s immunity by taking measures of constraint against Villa
Vigoni, German State property situated in Italian territory; and that it has further breached
Germany’s jurisdictional immunity by declaring enforceable in Italy decisions of Greek civil courts
rendered against Germany on the basis of acts similar to those which gave rise to the claims
brought before Italian courts.
Italy, for its part, requests the Court to adjudge Germany’s claims to be unfounded and
therefore to reject them, apart from the submission regarding the measures of constraint taken
against Villa Vigoni, on which point the Respondent indicates to the Court that it would have no
objection to the latter ordering it to bring the said measures to an end. In its Counter-Memorial,
Italy submitted a counter-claim “with respect to the question of the reparation owed to Italian
victims of grave violations of international humanitarian law committed by forces of the German
Reich”; this claim was dismissed by the Court’s Order of 6 July 2010, on the grounds that it did
not fall within the jurisdiction of the Court and was consequently inadmissible under Article 80,
paragraph 1, of the Rules of Court.
-3-
III. Alleged violations of Germany’s jurisdictional immunity in the proceedings brought by

the Italian claimants (paras. 52-108)
The Court first considers the issues raised by Germany’s first submission, namely whether,
by exercising jurisdiction over Germany with regard to the claims brought before them by the
various Italian claimants, the Italian courts acted in breach of Italy’s obligation to accord
jurisdictional immunity to Germany.
1. The issues before the Court (paras. 52-61)
The Court begins by observing that the proceedings in the Italian courts have their origins in
acts perpetrated by German armed forces and other organs of the German Reich. It distinguishes
three categories of cases: the first concerns the large-scale killing of civilians in occupied territory
as part of a policy of reprisals, exemplified by the massacres committed on 29 June 1944 in
Civitella in Val di Chiana, Cornia and San Pancrazio by members of the “Hermann Göring”
division of the German armed forces, involving the killing of 203 civilians taken as hostages after
resistance fighters had killed four German soldiers a few days earlier; the second involves
members of the civilian population who, like Mr. Luigi Ferrini, were deported from Italy to what
was in substance slave labour in Germany; the third concerns members of the Italian armed forces
who were denied the status of prisoner of war, together with the protections which that status
entailed, to which they were entitled, and who were similarly used as forced labourers.
While the Court finds that there can be no doubt that this conduct was a serious violation of
the international law of armed conflict applicable in 1943-1945, it considers that it is not called
upon to decide whether these acts were illegal, a point which is not contested, but whether, in
proceedings regarding claims for compensation arising out of those acts, the Italian courts were
obliged to accord Germany immunity. In that context, the Court notes that there is a considerable
measure of agreement between the Parties regarding the fact that immunity is governed by
international law and is not a mere matter of comity. It states that, as between the Parties, the
entitlement to immunity can be derived only from customary international law. Therefore, the
Court must determine, in accordance with Article 38 (1) (b) of its Statute, whether “international
custom, as evidence of a general practice accepted as law” conferring immunity on States, exists
and, if so, what is the scope and extent of that immunity.
The Court notes that, although there has been much debate regarding the origins of State
immunity and the identification of the principles underlying that immunity in the past, the
International Law Commission (hereinafter the “ILC”) concluded in 1980 that the rule of State
immunity had been “adopted as a general rule of customary international law solidly rooted in the
current practice of States”. In the opinion of the Court, that conclusion was based upon an
extensive survey of State practice and is confirmed by the record of national legislation, judicial
decisions and the comments of States on what became the United Nations Convention on the
Jurisdictional Immunities of States and their Property (hereinafter the “United Nations
Convention”). It believes that practice to show that, whether in claiming immunity for themselves
or according it to others, States generally proceed on the basis that there is a right to immunity
under international law, together with a corresponding obligation on the part of other States to
respect and give effect to that immunity.
The Court observes that the Parties are thus in broad agreement regarding the validity and
importance of State immunity as a part of customary international law. It notes that their views
differ, however, as to whether, as Germany contends, the law to be applied is that which
determined the scope and extent of State immunity in 1943-1945, i.e., at the time that the events
giving rise to the proceedings in the Italian courts took place, or, as Italy maintains, that which
applied at the time the proceedings themselves occurred. The Court states that, in accordance with
the principle stated in Article 13 of the ILC Articles on Responsibility of States for Internationally
- 10 -
Judge Yusuf finds it regrettable that the Court did not examine the obligation to make
reparations for violations of IHL in international law in as far as it has a direct bearing on the
granting of immunity in the current proceedings. He states that this obligation is enshrined in
Article 3 of the Hague Convention IV (1907) and Article 91 of the Additional Protocol I of 1977 to
the Geneva Conventions (1949), and while compensation for such breaches has been handled at the
inter-State level for a long time, this does not mean that individuals are not or were not meant to be
the ultimate beneficiaries of such mechanisms or that they do not possess the right to make claims
for compensation. In the last two decades, there have been more and more examples of individual
claimants seeking compensation for serious breaches of IHL, e.g., the claims brought before the
Japanese courts in the 1990s by persons who were subject to slave labour or torture, or were forced
to work as comfort women during the Second World War; claims brought before United States
courts by the Holocaust Restitution Movement on behalf of wartime labour slaves; the
Distomo case in Greece and the Ferrini case in Italy. The law on State responsibility does not rule
out the possibility that rights may accrue to individuals as a result of a wrongful act committed by a
State and the International Committee of the Red Cross Commentary to Article 91 of the
Additional Protocol I recognizes that since 1945 there has been a tendency to recognize the
exercise of such rights by individuals. The key question before the Court therefore is what happens
in the case of humanitarian law violations for which responsibility has been recognized by the
foreign State but some victims are not covered by reparation schemes and are thus deprived of
compensation. Should such a State be allowed to use immunity before domestic courts to shield
against the obligation to make reparations?
On the scope of jurisdictional immunity, Judge Yusuf states that while State immunity is a
rule of customary law and not merely a matter of comity, its coverage has been contracting over the
past century as international law evolves from a State-centred legal system to one which also
protects the rights of human beings vis-à-vis the State. The shrinking of immunity coverage has
been spearheaded by domestic courts, and while immunity law is significant for the conduct of
harmonious relations between States, it is not a rule of law whose coverage is well defined for all
circumstances or whose stability is unimpaired. State immunity is as full of holes as Swiss cheese.
Thus, it is not persuasive to characterize some exceptions to immunity as part of customary
international law, despite the continued existence of divergent domestic judicial decisions, while
interpreting other exceptions, based on similarly conflicting decisions, as supporting the
non-existence of customary norms. It would be more appropriate, in his view, to recognize that
customary law in this area remains fragmentary and unsettled. Judge Yusuf contends that these
uncertainties of customary law cannot be resolved through a formalistic exercise that surveys the
conflicting judicial decisions of domestic courts, which are already sparse as regards human rights
and humanitarian law violations, and by conducting a mathematical calculation. For him,
customary international law is not a question of relative numbers. Further, State immunity from
jurisdiction cannot be interpreted in a vacuum. The specific features and circumstances of each
case, the nature of the issues involved and the evolution of international law all have to be fully
taken into account. Thus, when jurisdictional immunities come into conflict with basic rights
consecrated under human rights or humanitarian law, a balance has to be sought between the
intrinsic functions and purposes of immunity and the protection and realization of fundamental
human rights and humanitarian law principles. In the present case these are the right to an effective
remedy, the right to compensation for damages suffered as a result of breaches of humanitarian
law, and the right to protection from denial of justice. Recourse should be had to those principles
and there should be an assessment of the proportionality and legitimacy of purpose of granting
immunity, whenever the customary law rules on State immunity or the exceptions to it are found to
be either fragmentary or unsettled, as is the case here. Finally, the preliminary nature of immunity
from jurisdiction does not preclude national courts, in this case the Italian courts, from assessing
the context in which the claim has been made to ensure a proper legal characterization of the acts
for which immunity is claimed and, where necessary, to balance the different factors underlying the
case to determine whether the Court can assert jurisdiction.
- 12 -
occupying foreign State. The unchallenged practice of these nine States is significant. Were the
stated exceptions to immunity unfounded under general international law, these States would incur
international responsibility.
4. The variety of national judicial decisions shows that the issue lies in a “grey area” in
which States may take different positions without necessarily departing from the requirements of
general international law.
5. One factor that could contribute to justifying a restrictive approach to State immunity
when applying the “tort exception” is the nature of the obligation (e.g., an obligation under a
peremptory norm) for the breach of which a claim to reparation is brought against a foreign State.
6. The Court should have considered that at least for certain decisions of Italian courts the
exercise of jurisdiction could not be regarded as contravening general international law.
___________
MANU/SC/0163/2011
Equivalent Citation: [2011]162C ompC as574(SC ), (2011)239C TR(SC )113, [2011]332ITR130(SC ), JT2011(3)SC 356, 2011(3)KC C RSN250,
2011(3)SC ALE111, (2011)4SC C 36, [2011]3SC R366, 2017[48]S.T.R.177(S.C .), [2011]197TAXMAN337(SC ), 2011(2)UJ827,
(2010)39VST114(SC ), (2011)39VST114(SC )

Appellants: GVK Inds. Ltd. and Ors.
Vs.
Respondent: The Income Tax Officer and Ors.
S.H. Kapadia, C.J., B. Sudershan Reddy, K.S. Panicker Radhakrishnan, S.S. Nijjar and
Swatanter Kumar, JJ.
Counsels:
For Appellant/Petitioner/Plaintiff: S. Ganesh, Sr. Adv., U.A. Rana, Mrinal Majumdar
and Devina Seghal, Advs. for Gagrat and Co.
For Respondents/Defendant: G.E. Vahanvati, AG, Rupesh Kumar, Arijit Prasad,
Devadatt Kamat, Rohit Sharma, Mihir Chatterjee, Nishanth Patil, Naila Jung, Anoopam
Prasad, B.V. Balaram Das and Sushma Suri, Advs.
Case Category:
DIRECT TAXES MATTERS - DEDUCTIONS / EXEMPTIONS
JUDGMENT
B. Sudershan Reddy, J.
1 . In any federal or quasi federal nation-state, legislative powers are distributed
territorially, and legislative competence is often delineated in terms of matters or
fields. The latter may be thought of as comprising of aspects or causes that exist
independently in the world, such as events, things, phenomena (howsoever
commonplace they may be), resources, actions or transactions, and the like, that
occur, arise or exist or may be expected to do so, naturally or on account of some
human agency, in the social, political, economic, cultural, biological, environmental
or physical spheres. The purpose of legislation would be to seek the exertion of the
State power to control, modulate, transform, eliminate or engender such aspects or
causes or the effects or consequences of such aspects or causes. While the purpose
of legislation could be seen narrowly or purely in terms of intended effects on such
aspects or causes, obviously the powers have to be exercised in order to enhance or
protect the interests of, the welfare of, the well-being of, or the security of the
territory, and the inhabitants therein, for which the legislature has been charged with
the responsibility of making laws. Paraphrasing President Abraham Lincoln, we can
say that State and its government, though of the people, and constituted by the
people, has to always function "for" the people, indicating that the mere fact that the
state is organized as a democracy does not necessarily mean that its government
would always act "for" the people. Many instances of, and vast potentialities for, the
flouting of that norm can be easily visualized. In Constitutions that establish nation-

claim it as a matter of our national genius, our status as human beings in the wider
swath of humanity, with rights that are ascribable to us on account of our human
dignity. Such a morality arguably does not brook the claims of absolute sovereignty
to act in any manner or form, on the international stage or within the country. To
make laws "for another territory" is to denigrate the principle of self-determination
with respect to those people, and a denigration of the dignity of all human beings,
including our own. The debates in the Constituent Assembly with regard to the
wording of Article 51, which was cited earlier in this judgment, gives the true spirit
with which we the people of this country have vested our collective powers in the
organs of governance. This is so particularly because they were made in the
aftermath of World War II, arguably the most brutal that mankind has ever fought,
and the dawn of the atomic age. In particular the statements of Prof. Khardekar, are
worth being quoted in extenso:
Mr. Austin, a great jurist, says that there is no such thing as international law
at all - if there is anything it is only positive morality.... In saying that there
may be positive morality I think even there he is wrong. If there were to be
morality amongst nations, well we would not have all that has been going
about. If there is a morality amongst nations today, it is the morality of
robbers. If there is any law today it is the law of the jungle where might is
right.... The part that India is to play is certainly very important because
foundations of international morality have to be laid and only a country like
India with its spiritual heritage can do it.... Therefore it is in keeping with
our history, with our tradition, with our culture, that we are a nation of peace
and we are going to see that peace prevails in the World Constituent
Assembly Debates Official Report, 1948-49, page 601 (Lok Sabha Secretariat,
New Delhi).
73. In granting the Parliament the powers to legislate "for" India, and consequently
also with respect to extra-territorial aspects or causes, the framers of our Constitution
certainly intended that there be limits as to the manner in which, and the extent to
which, the organs of the State, including the Parliament, may take cognizance of
extra-territorial aspects or causes, and exert the State powers (which are the powers
of the collective) on such aspects or causes. Obviously, some of those limits were
expected to work at the level of ideas and of morals, which can be inculcated by a
proper appreciation of our own history, and the ideas of the framers of our
constitution. They were also intended to have a legal effect. The working of the
principles of public trust, the requirement that all legislation by the Parliament with
respect to extra-territorial aspects or causes be imbued with the purpose of
protecting the interests of, the welfare of and the security of India, along with Article
51, a Directive Principle of State Policy, though not enforceable in a court of law,
nevertheless fundamental to governance, lends unambiguous support to the
conclusion that Parliament may not enact laws with respect to extra-territorial aspects
or causes, wherein such aspects or causes have no nexus whatsoever with India.
7 4 . Courts should always be very careful when vast powers are being claimed,
especially when those claims are cast in terms of enactment and implementation of
laws that are completely beyond the pale of judicial scrutiny and which the
Constitutional text does not unambiguously support. To readily accede to demands
for a reading of such powers in the constitutional matrix might inevitably lead to a
destruction of the complex matrix that our Constitution is. Take the instant case
itself. It would appear that the concerns of learned Attorney General may have been
more with whether the ratio in ECIL could lead to a reading down of the legislative

agency, in the social, political, economic, cultural, biological, environmental
or physical spheres outside the territory of India, and seek to control,
modulate, mitigate or transform the effects of such extra-territorial aspects or
causes, or in appropriate cases, eliminate or engender such extra-territorial
aspects or causes, only when such extra-territorial aspects or causes have, or
are expected to have, some impact on, or effect in, or consequences for: (a)
the territory of India, or any part of India; or (b) the interests of, welfare of,
wellbeing of, or security of inhabitants of India, and Indians.
It is important for us to state and hold here that the powers of legislation of
the Parliament with regard to all aspects or causes that are within the
purview of its competence, including with respect to extra-territorial aspects
or causes as delineated above, and as specified by the Constitution, or
implied by its essential role in the constitutional scheme, ought not to be
subjected to some a-priori quantitative tests, such as "sufficiency" or
"significance" or in any other manner requiring a pre-determined degree of
strength. All that would be required would be that the connection to India be
real or expected to be real, and not illusory or fanciful. Whether a particular
law enacted by Parliament does show such a real connection, or expected
real connection, between the extra-territorial aspect or cause and something
in India or related to India and Indians, in terms of impact, effect or
consequence, would be a mixed matter of facts and of law. Obviously, where
the Parliament itself posits a degree of such relationship, beyond the
constitutional requirement that it be real and not fanciful, then the courts
would have to enforce such a requirement in the operation of the law as a
matter of that law itself, and not of the Constitution.
(2) Does the Parliament have the powers to legislate "for" any territory, other
than the territory of India or any part of it?
The answer to the above would be No. It is obvious that Parliament is
empowered to make laws with respect to aspects or causes that occur, arise
or exist, or may be expected to do so, within the territory of India, and also
with respect to extra-territorial aspects or causes that have an impact on or
nexus with India as explained above in the answer to Question 1 above. Such
laws would fall within the meaning, purport and ambit of the grant of powers
to Parliament to make laws "for the whole or any part of the territory of
India", and they may not be invalidated on the ground that they may require
extra-territorial operation. Any laws enacted by Parliament with respect to
extraterritorial aspects or causes that have no impact on or nexus with India
would be ultra-vires, as answered in response to Question 1 above, and
would be laws made "for" a foreign territory.
7 7 . Let the appeal be listed before an appropriate bench for disposal. Ordered
accordingly.

MANU/SC/0532/1992
Equivalent Citation: AIR1993SC 892, 1993C riLJ600, 1992(3)C rimes199(SC ), JT1992(5)SC 213, 1992(2)SC ALE338, (1992)4SC C 305,
[1992]Supp1SC R226

Criminal Appeal Nos. 304 of 1991 Etc. Etc.
Appellants: Janata Dal
Vs.
Respondent: H.S. Chowdhary and Ors.
S.R. Pandian and K. Jayachandra Reddy, JJ.
Case Note:
Criminal - jurisdiction - Sections 397, 401 and 482 of Criminal Procedure
Code, 1973 - whether High Court empowered under this Code to issue
direction for re-investigate matter - revision petition pending before High
Court - High Court allowing revision petition and issue suo-motu direction
to investigating officer to re-investigate matter again - High Court has
overstepped his jurisdiction and made unwarranted and uncalled statement
- direction issued by High Court set-aside.
JUDGMENT
S.R. Pandian, J.
1 . We gave our conclusions in our earlier Order dated 27th August 1991 reserving
the reasons to be given later. Accordingly, we render our reasons in the present
judgment.
2 . We feel that a prefatory note, though not the detailed facts of the case, is
necessary for disposal of these appeals and writ petition. The facts culled out from
various documents placed before this Court are as follows:
3. The Ministry of Defence, Government of India approved in August 1980 a proposal
forwarded by Army Headquarters (HQ) recommending, inter-alia, the introduction of
155 mm calibre medium gun both towed and self-propelled to meet its defence
operational requirements. The choice for obtaining the said gun system/guns was
short listed in December, 1982 to (1) M/s. Sofma of France (2) M/s. A.B. Before of
Sweden (briefly called 'Before') (3) M/s. International Military Services of U.K. and
(4) M/s. Voest Alpine of Austria. In November 1985, there was a further short listing
of Sofma and Before. Finally, the order was placed by the Government of India with
Before on 24th March 1986 for the supply of 410 numbers (400 plus 10 free) of 155
mm Field Howitzer 77-B gun system/spare guns vide contract No. 6(9)/84/D (GS-IV)
for a total amount of SEK 8410.66 million (Swedish Kroners) (equivalent to about Rs.
1437.72 crores or Rs. 14377.2 million). The related contract for supplying the gun
package (towed) and other related agreements/contracts were concluded and signed
on 24th March 1986 with M/s. A.B. Before.

conclusions on the issues other than the general issues raised by the
appellants as public interest litigants, without hearing the really affected
person/persons, such opinion or conclusions may, in future, in case the
investigation culminates in filing a final report become detrimental and
prejudicial to the indicated accused persons who would be totally deprived of
challenging such opinion or conclusions of this apex Court, even if they
happen to come in possession of some valuable material to canvass the
correctness of such opinion or conclusions and consequently their vested
legal right to defend their case in their own way would be completely
nullified by the verdict now sought to be obtained by these public interest
litigants.
47. However, as we have expressed our view "that the question as to whether laws
are so petrified as to be unable to respond to the challenges made will be dealt with
in detail in our main judgment, we have to examine the law as regards the scope and
ambit of public interest litigation and the power of the High Court in taking suo motu
cognizance in exercise of its powers under Section 397 and 401 read with Section
482 of the Code which are the general issues as indicated by us in our earlier Order.
4 8 . We hasten to add that we will not be justified to make disembodied
pronouncements or any observation on seriously disputed questions of law and facts
taking its cue from mere affidavits, that too not from the person aggrieved or affected
and without the battle lines being properly drawn by the affected parties.
49. We shall now briefly deal with the scope and object of 'public interest litigation'
(PIL), the horizon of which is widely extended and which at present constitutes a new
chapter in justice delivery system acquiring a significant degree of importance in the
modern legal jurisprudence practiced by Courts in many parts of the world, based on
the principle, "Liberty and Justice for All".
Public Interest Litigation - its origin and meaning
50. The question, "what 'PIL' means and is?" has been deeply surveyed, explored and
explained not only by various judicial pronouncements in many countries, but also by
eminent Judges, jurists, activist lawyers, outstanding scholars, journalists and social
scientists etc. with a vast erudition. Basically the meaning of the words 'Public
Interest' is defined in the Oxford English Dictionary, 2nd Edition, Vol. XII as "the
common well being...also public welfare".
51. In Shrouds Judicial Dictionary, Vol. 4 (IV Edition), 'public interest' is defined
thus:
PUBLIC INTEREST (1) A matter of public or general interest "does not mean
that which is interesting as gratifying curiosity or a love of information or
amusement' but that in which a class of the community have a pecuniary
affected." (per Cambell C.J., R. v. Bedfordshire 24 L.J.Q.B. 84.
52. In Black's Law Dictionary (Sixth Edition), 'public interest' is defined as follow:
Public Interest - Something in which the public, the community at large, has
some pecuniary interest, or some interest by which their legal rights or
liabilities are affected. It does not mean anything so narrow as mere
curiosity, or as the interests of the particular localities, which may be

affected by the matters in question. Interest shared by citizens generally in
affairs of local, state or national government....
53. The expression 'litigation' means a legal action including all proceedings therein,
initiated in a Court of Law with the purpose of enforcing a right or seeking a remedy.
Therefore, lexically the expression 'PIL' means a legal action initiated in a Court of
Law for the enforcement of public interest or general interest in which the public or a
class of the community have pecuniary interest or some interest by which their legal
rights or liabilities are affected. There is a host of decisions explaining the expression
'PIL' in its wider connotation in the present-day context in modern society, a few of
which we will refer to in the appropriate part of this judgment.
5 4 . It would be quite appropriate in the case on hand to analyze both the basic
features and the evolution and profound transformation of the developing and
growing PIL in modern society. Suffice it to say that the challenges facing this
ameliorable litigation are examined in the light of their social, economic, political and
ideological causes; and that the solutions to be adopted by the legal system to meet
those challenges are explored, since there is still an ocean of unmet needs. These
challenges are : (1) The expanded role of Courts in the modern 'social' state and the
new demands for judicial responsibility; (2) the rise and growth of varied systems of
judicial review and the legitimacy of such development; (3) the emergence of the
notion of 'access to justice' as a judicial answer to egalitarian ideals and demands for
effectiveness, and the development of PIL, and (4) the role of courts in promoting the
legal system in the arena of PIL. The relentless efforts taken by courts in meeting all
those challenges, in fact, strive for a optimally in which the interest of the least
advantaged is given an overriding priority. During the last three decades, judicial
activism has opened up new dimension for the judicial process and has given a new
hope to the justice-starved millions. On the question of legitimacy of the PIL and the
significant importance of its various aspects in the context of the present-day felt
needs, stimulated by the emergence of a variety of new social movements and
societal exigencies, this Court has laid down a long line of decisions, outlining the
evolution of PIL, its vital issues and problems relating to the focus, choice of relief
methods, the means and the administrative strategy for litigation and the demand for
distributive justice for resolving the complicity of social problems and creating
genuine initiatives so that this new activism may be more meaningful social justice.
Thus the concept of PIL which has been and is being fostered by judicial activism has
become an increasingly important one setting up valuable and respectable records,
especially in the arena of constitutional and legal treatment for 'the unrepresented
and under-represented'.
55. The period of 1960s in United States of America was the important period of
social embroilment during which not only manifold changes to many institutions took
place; but also significant reforms of which public interest litigation was one were
proposed and tried. The concept of PIL though had its origin in U.S.A., over the
march of years it has passed through various changes and modifications in their
common law based systems. It is not necessary to examine all those modifications
and changes in the structure of the public law of that country and the manner in
which the legal services have been redistributed in American society except saying
that the strict requirement of legal interest has been diluted and attenuated in the
country of its origin. Similarly, the common law based systems in other parts of the
common wealth countries have also undergone various changes. Legal aid
programmes in Australia and Canada have been restructured to serve divergent
aspects of the public interest. Some of the countries have gone to the extent of

broadening its scope even beyond litigation and including many varieties of
negotiations and even non-litigating approaches. Thus the definition of PIL emerged
from historical context in which the commonality of the various forms of legal
representation involving the basic and fundamental rights of a significant segment of
the public demanding vindication of its rights has been recognised in various parts of
the world.
5 6 . The emergence of the concept of PIL, in the Indian legal system has been
succinctly explained by P.N. Bhagwati, J. (as he then was) in one of his articles
contributed under the caption 'Social Action Litigation: The Indian Experience' thus:
The judiciary has to play a vital and important role not only in preventing
and remedying abuse the misuse of power but also in eliminating
exploitation and injustice. For this purpose it is necessary to make procedural
innovations in order to meet the challenges posed by this new role of an
active and committed judiciary. The summit judiciary in India, keenly alive to
its social responsibility and accountably to the people of the country, has
liberated itself from the shackles of Western thought, made innovative use of
the power of judicial review, forged new tools, devised new methods and
fashioned new strategies for the purpose of bringing justice for socially and
economically disadvantaged groups....
...
During the last four or five years however, judicial activism has opened up a
new dimension for the judicial process and has given new hope to the
justice-starved millions of India.
(Vide 'Role of the Judiciary in Plural Societies' published in 1987.)
57. Indian law has historically been strongly identified - both in theory and practice -
with a tradition which has been concerned with the rights and duties of individuals.
Yet in recent years it has been recognized that this tradition is inadequate to cope
with a wide range of problems arising out of inequality of means, opportunities and
entitlements in society. This conflict has generated increasing discussion of PIL, and
also the development of a whole new corpus of law for effective and purposeful
implementation of PIL and institutions explicitly concerned with the manner and
techniques by which the public interest is, and can be, safeguarded by the legal
system.
58. The seed of the concept of PIL were initially sown in India by Krishna Iyer, J. in
1976 (without assigning the terminology) in Mumbai Kamgar Sabha v. Abdulbhai
MANU/SC/0313/1976 : (1976)IILL J186SC , he while disposing an industrial dispute
in regard to the payment of bonus , has observed:
Our adjectival branch of jurisprudence, by and large, deals not with
sophisticated litigants but the rural poor, the urban lay and the weaker
societal segments for whom law will be an added terror if technical mis-
descriptions and deficiencies in drafting pleadings and setting out the cause-
title create a secret weapon to non-suit a part. Where foul play is absent, and
fairness is not faulted, latitude is a grace of processual justice. Test
litigations, representative actions, pro bono publico and like broadened forms
of legal proceedings are in keeping with the current accent on justice to the
common man and a necessary disincentive to those who wish to bypass the

grounds are not available for suo moto exercise of power in the light of the well
settled legal principles enunciated by this Court for the exercise of such powers.
164. In the result, we reiterate our earlier conclusion that we agree with the first part
of the order dated 19.12.1990 of Mr. Justice M.K. Chawla but quash the later part of
the impugned order taking suo moto cognizance under Sections 397, 401 read with
482 of the Code issuing show-cause notice to the CBI and the State. We make it clear
that we do not express any opinion on the merits of the case including the legal
tenability of the illegalities opined by Mr. Justice M.K. Chawla in his impugned order.

MANU/UP/0198/1936
Equivalent Citation: AIR1936All534, (1936) AWR 424, (1936)ILR 58All934, 163Ind. C as.866
IN THE HIGH COURT OF ALLAHABAD

Appellants: Jasnami and Ors.
Vs.
Respondent: Emperor
Shah Mohammad Sulaiman, C.J. and Bennet, J.
Case Note:
A. - Police Act, 1861, S 31--Scope and object--Order prohibiting a legal act
simply because Police Officer apprehends that a breach of peace would be
committed by other persons--Legality.
Section 31 of the Police Act does not empower every officer, whether a
police inspector or a constable, to issue orders prohibiting the doing of
otherwise legal acts simply because he apprehends that a breach of the
peace would be committed by other persons if the persons ordered not to do
the legal acts persisted in doing them. In other words, it does not authorise
a police officer to issue an order which a Magistrate might have issued
under S. 144, Cr. P.C., to refrain from doing a perfectly legal act.
B. - Penal Code, 1860, S. 153--Essentials--Right to go through a village on
conveyance--Order by police officers under S. 31, Police Act, directing
certain persons to get down from planquins--Disobeyance, if an offence.
Section 153, Penal Code, does not apply unless there has been "doing
anything which is illegal." The act of going through a village on conveyance
being in itself a perfectly legal act and the order of the police officer under
S. 31, Police Act, directing certain persons to get down from the planquins
in which they are being carried through inhabited parts of certain hill
villages being without power, the failure to obey the order does not amount
to an illegal act within the meaning of S. 163.
JUDGMENT
Shah Mohammad Sulaiman, C.J.
1 . This is an application in revision from an order of the Sessions Judge upholding
the conviction of the accused persons under Section 153, I.P.C., and the sentences of
fine imposed on them. It appears that the accused are Doms by caste who have
recently become Aryasamajists. There has been a practice in some hill villages not to
allow marriage processions with palanquins and dandies occupied by the bridegroom
and the bride to pass through village sites. The high caste Hindus had on previous
occasions objected to such actions. Indeed the present accused took out such a
procession on 16th November 1933, which was obstructed and had to be postponed
till 22nd December 1933, when the present occurrence took place. The Secretary of
the local Depressed Classes Association submitted an application to the Deputy

Commissioner stating that on the previous occasion, namely on 16th November 1933,
the marriage party had been intercepted and looted on the way by high caste Hindus
and that the very marriage was to take place on 22nd December 1933, and it was just
possible that the marriage party might be disturbed on the way. He therefore prayed
that police arrangements should be made for their safe passage. The Deputy
Commissioner ordered:
If they want regular police, they cannot have them; they may have no
protection if they want to go through villages on conveyances If they are
molested on the public way, the assailants will be prosecuted.
2 . The Deputy Commissioner apparently declined to grant the processionists the
protection of the police if they insisted on going through the villages on conveyances,
but offered them protection if they were molested while going along a public road.
The order contained no prohibition against their going on conveyances through the
villages, but merely contained an intimation that they should not in such an event
expect protection by the police. The qanungo and patwari were later directed to be
present on the 22nd December and to prevent a breach of: the peace. The accused
took out a marriage procession on that day and when an objection was raised by the
residents of another village both sides came to an agreement and the palanquins
were allowed to go unoccupied while passing through the village. But the
processionists entered the village of the bride and carried the bridegroom in the
palanquin during the night time, when the villagers did not see the passengers. So no
disturbance took place. But on 23rd December 1933 the marriage procession started
from the house of the bride at 10 o' clock in the morning and there was an objection
raised by the high caste Hindus of the village that the palanquins should be carried
empty.
3 . The qanungo, accompanied by the patwari, intervened and ordered that the
palanquins should be carried empty. This order was not obeyed and the accused
forcibly put the bridegroom and the bride into the palanquins and carried them
through the village sites. They were then prosecuted for an offence under Section
153, I.P.C., on the allegation that they made the bride and the bridegroom to be
carried in conveyances through the inhabited area of the village contrary to the
custom of the locality. Both the Magistrate and the Sessions Judge came to the
conclusion that there was a local practice against such conduct. They also thought
that the qanungo was empowered under Section 31, Police Act, to issue the order for
the purpose of maintaining law and order, and acted in good faith in "trying to
preserve peace. When the matter came up in revision before a learned Judge of this
Court he felt some doubt as to the power of a Police Officer to prevent a person from
doing what would ordinarily be considered to be a legal act though on a public
thoroughfare, and has therefore referred the case to us. Now it has to be conceded
that Section 153, I.P.C., cannot possibly apply unless there has been "doing anything
which is illegal". If the act done is illegal then, if the other conditions laid down in
the section are fulfilled, the case would be governed by it. One has therefore to see
whether the act of the accused in [taking out the bride and the bridegroom in
palanquins through the village site was an illegal act. Now no civil Court has held
that there is any such village custom having the force of law which prevents people
from going over village sites in palanquins or dandies. It may well be doubted
whether such a custom can ever be recognised by a Court of law. There is
accordingly no finding that the accused committed an illegal act because they acted
in defiance of any such custom having the force of law.

obstruction of a thoroughfare caused owing to the altercation which ensued between
the accused, who was the driver of a bullock cart, and the tax-collector when the
former refused to pay the toll demanded from him.
6 . But we are unable to hold that Section 31, [Police Act, empowers every Police
Officer, whether a Police Inspector or a constable, to issue orders prohibiting the
doing of otherwise legal acts simply because he apprehends that a breach of the
peace would be committed by other persons if the persons ordered not to do legal
acts persisted in doing them. Such an interpretation of Section 31 would make it
come in conflict with the various provisions of the Code of Criminal Procedure where
particular forms of orders are within the exclusive authority of Magistrates or Police
Officers. For instance, an order for the dispersal of an unlawful assembly can be
made only by a Magistrate or an officer in charge of a police station under Section
127, Criminal P.C., and a head constable is not empowered to act under that section.
It could not have been the intention of the legislature to empower head constables to
exercise under Section 31, Police Act, powers which have been conferred exclusively
on Magistrates and officers in charge of police stations under Section 127, Criminal
P.C. Nor could it have been the intention of the legislature to empower every Police
Officer, including constables, to issue orders, for example under Section 144,
Criminal P.C., which a Magistrate only can issue. Section 31 is in. I tended primarily
for the purpose of keeping order on the public road, preventing confusion, regulating
traffic and avoiding obstruction. Orders passed in such cases would be well covered
by the provisions of that section. In our opinion Section 31 does not authorise a
Police Officer to issue an order which a Magistrate might have issued under Section
144, Criminal P.C., to refrain from doing a perfectly legal act.
7. The act of the accused was a perfectly legal act in taking out the bridegroom and
the bride in palanquins along public roads or highways, and their failure to agree to
carry out the instructions of the Police Officer to dismount did not amount to an
illegal act within the meaning of Section 153, I.P.C., because in our opinion the
Police Officer was not empowered to issue such an order. If there-had been any
apprehension of an immediate breach of the peace he might have asked the assembly
to disperse under Section 127, or if he had previous intimation, of it he might have
obtained an order under Section 144 from the Magistrate. Failing to have adopted
either of these courses he could not arrogate to himself the power to order that the
bridegroom and the bride should not go in palanquins. We think that to uphold the
conviction of the accused in this case would amount to an undue interference with
the liberty of ordinary citizens which is their right to enjoy. We accordingly allow this
application and setting aside the convictions-and sentences of the accused acquit
them of the charge and direct that the fines, if paid, be refunded.

MANU/DE/1946/2007
Equivalent Citation: 2007(96)DRJ693
IN THE HIGH COURT OF DELHI

Crl. Appeal No. 235/1999
Appellants: Javed Habib
Vs.
Respondent: The State (NCT of Delhi)
S.N. Dhingra, J.
Counsels:
For Appellant/Petitioner/plaintiff: Anoop George Choudhary and June Choudhary, Sr.
Advs., Taiyab Khan and Syed Ahmad Kashif, Advs
For Respondents/Defendant: Richa Kapoor, Adv.
JUDGMENT
S.N. Dhingra, J.
1 . The appellant was the Publisher and Editor of an Urdu Weekly "Hazoom" in the
year 1983. In the Issue dated 18-24th November, 1983 an Article was published
under the Title "Arrest Muslims Fighting for their Rights Secret Government Circular".
The Article was authored one by Qurban Ali. The article was considered by the then
government as offending and the appellant was tried for offences under Sections
124A IPC and 505B IPC charging that the Article contained objectionable matter
intending to promote feelings of hatred towards the government and was an attempt
to excite dissatisfaction towards the then Government established by law in India and
it intended to cause fear or alarm in the mind of public and intended to induce a
feeling of enmity between Hindus and Muslims and was against the State and public
tranquility. The appellant was charged with offences under Sections 124A IPC and
505B IPC. The learned Additional Sessions Judge vide his judgment dated 21st April,
1999, convicted the appellant under both the above Sections and sentenced him to
undergo Rigorous Imprisonment for three years and fine of Rs. 5000/- under Section
124A and RI for two years and a fine of Rs. 2000/- under Section 505B of IPC. The
appellant has challenged his conviction on the ground that he had committed no
offence because of the publication of the impugned Article in the Weekly of which he
was the Editor. The article was a fair criticism of the actions of the government and
there was no intention of the appellant to create any dissatisfaction or hatred against
the government. The appellant was merely exercising his Fundamental Right of
expression under Article 19 of the Constitution of India and the article contained the
opinions regarding actions of the then Prime Minister, heading the government. The
appellant has been wrongly convicted.
2. A perusal of the article would show that the author expressed his anguish over the
alleged injustice being done to the Muslims and formed an opinion that Smt. Indira
Gandhi had formed an opinion that Indian Muslims did not vote for her and the
principles she stood for. She had Therefore secretly joined hands with leaders like

Chaudhary Charan Singh and Atal Bihari Vajpayee in order to curb the voice of
Muslims. In the article it is also depicted that Congress (I) had total support of RSS
in the previous elections and there was a conspiracy between Smt. Indira Gandhi and
Atal Bihari Vajpayee.
3 . The learned Sessions Judge in his judgment observed that the very title of the
article attempts to promote feelings of hatred in the minds of Muslims and it also
attempts to excite dissatisfaction in the minds of the Muslims towards the
government. The contents of the article were such that the article promoted the
feelings of hatred and contempt towards government established by law and was an
attempt to incite dissatisfaction towards the government established by law. The
article also promoted feelings of enmity between Hindus and Muslims. The learned
Additional Sessions Judge also observed that although there was no evidence on
record that after publication of this article any revolt took place, but the article was
certainly objectionable and it attempted to promote feelings of hatred. Thus, he
convicted the appellant under Section 124A. The learned Sessions Judge was also of
the view that the caption of the article and the article as a whole was likely to cause
fear in the minds of public and would induce feelings of enmity between Hindus and
Muslims.
4 . It is settled law that under Section 124A, the Court must not look to a single
sentence or isolated expression but take into consideration the article as a whole and
gave it a full, free and generous consideration and deal with it in a fair and liberal
spirit. While considering offence under Section 124A or 505B, the court has to look to
the real intention and spirit of the article. It has to see whether the general tendency
of the article is such that the article is intended to excite the feelings of a sections of
the society or the article was a severe criticism of the acts of the government.
Holding an opinion against the Prime Minister or his actions or criticism of the actions
of government or drawing inference from the speeches and actions of the leader of
the government that the leader was against a particular community and was in league
with certain other political leaders, cannot be considered as sedition under Section
124A of the IPC. The criticism of the government is the hallmark of democracy. As a
matter of fact the essence of democracy is criticism of the Government. The
democratic system which necessarily involves an advocacy of the replacement of one
government by another, gives the right to the people to criticize the government. In
our country, the parties are more known by the leaders. Some of the political parties
in fact are like personal political groups of the leader. In such parties leader is an
embodiment of the party and the party is known by the leader alone. Thus, any
criticism of the party is bound to be the criticism of the leader of the party.
5. While considering offences under Section 124A and 505B of IPC, the Court has to
keep in mind the distinction between criticism of the government and the criticism by
a leader of a political party. Where the leader of a political party becomes the head of
the government, any criticism of the person and his policies as head of the political
party or Government can not be viewed as sedition. The leader of the political party
who appeals to the people to vote for him and his party, who reaches out to the
people on the basis of his party is also open for criticism by the people for the very
policies. Such criticism may not be in polite language and the tendency of the article
may be to excite people not to vote for the party or to support such leaders or to
project the leader as anti to a section of the society, such a criticism of the leader
cannot be considered as offence under Section 124A or under Section 505B IPC.
Explanation 3 to Section 124A excludes such comments from preview of Section
124A, even it such comments amount to disapprobation of the actions of the

Government.
6 . Learned trial court in this case relied upon the opinion of the PW-5, Press
Secretary to the government ,in order to hold that the article in question promoted
hatred and dissatisfaction to the government. Learned trial court did not take into
account the class of newspaper in which the article was published and the class of
people among whom this weekly had circulation. Nor any evidence was led by the
State on these points. The total number of copies being printed, as revealed during
the arguments, was only 5000 and out of them how many were under the actual
circulation is not known. No complaints were received from any independent person
by the government that the article published in the weekly was objectionable or had
caused any ill feeling among the people. The issue of the weekly was delivered to the
press office of government and in the office of PW-5 it was examined by one of the
press assistant along with other weeklies and press assistant of the government
found the article objectionable and reported to PW-5 who was working there. PW-5
then studied the article and found it objectionable and a complaint was lodged to
ensue prosecution.
7. I consider that the learned trial Court has wrongly concluded that from the caption
of the article and article as a whole promoted feeling of hatred dissatisfaction
towards the government. In fact the article was against the leader of the political
party and not against the government. The leader happened to be the head of the
government. I, Therefore, allow this appeal. The conviction and the sentence awarded
by the learned trial Court is set aside.

MANU/SC/0053/1970
Equivalent Citation: AIR1971SC 481, 1972C riLJ103, (1970)2SC C 780, [1971]2SC R446

Appellants: K.A. Abbas
Vs.
Respondent:The Union of India (UOI) and Ors.
M. Hidayatullah, C.J., A.N. Ray, C.A. Vaidialingam, G.K. Mitter and J.M. Shelat, JJ.
Counsels:
For Appellant/Petitioner/Plaintiff: R.K. Garg, D.P. Singh, S.C. Agrawala, R.K. Jain and
V.J. Francis, Advs
For Respondents/Defendant: Niren De,, Attorney-General, Jagdish Swarup,, Solicitor-
General, J.M. Mukhi, R.N. Sachthey, and B.D. Sharma, Advs.
Case Note:
Constitution - Censorship - Violation of Fundamental right - Article 19 (1)
(a) and (2) of Constitution of India, 1950 - Section 5 of Part II of
Cinematograph Act, 1952 - Petitioner applied to Board of Film Censors for a
'U' certificate for unrestricted exhibition of film - Further, Regional Officer
informed Petitioner that Examining Committee and Board had provisionally
came to conclusion that film was not suitable for unrestricted public
exhibition but was suitable for exhibition restricted to adults - Hence, this
Petition - Whether, pre-censorship by itself offended freedom of speech and
expression and whether films needed censorship - Censorship of films, their
classification according to age groups and their suitability for unrestricted
exhibition with or without excisions was regarded as a valid exercise of
power in interests of public morality, decency, etc. - Social interest of
people would override individual freedom - Censorship imposed on making
and exhibition of films was in interests of society - There were general
principles regarding films as a whole and specific instances of what might
be considered as offending public interests as disclosed in clause that
follows enunciation of freedoms in Article 19 (1) (a) of Constitution -
Cinematograph was powerful medium and its appeal was different -
However there were general principles regarding films as a whole and
specific instances of what might be considered as offending public interests
as disclosed in clause that follows enunciation of freedoms in Article 19 (1)
(a) of Constitution - Constitution had to be read first and Section next as
latter could neither take away nor add to what Constitution had said on
subject - Word 'reasonable' was not to be found in Section 5-B of Act but it
could not mean that restrictions could be unreasonable - Moreover
application of these principles did not seek to whittle down fundamental
right of free speech and expression beyond limits permissible under
Constitution - Task of censor was extremely delicate and his duties could
not be subject of an exhaustive set of commands established by prior

ratiocination - Therefore censors needed to be included whole of law and
regulations under it would have always to be considered - Thus censorship
did not offend right to speech and expression - Petition allowed.Ratio
Decidendi"Censorship of art is to be made for the interest of social and
moral justice."
JUDGMENT
M. Hidayatullah, C.J.
1 . This petition seeks a declaration against the Union of India and the Chairman
Central Board of Film Censors, that the provisions of Part II of the Cinematograph Act
1952 together with the rules prescribed by the Central Government, February 6,
1960, in the purported exercise of its powers under Section 5B of the Act are
unconstitutional and void. As a consequence the petitioner asks for a writ of
mandamus or any other appropriate writ, direction or order quashing the direction
contained in a letter (Annexure X) dated July 3, 1969 for deletion of certain shots
from a documentary film entitled 'A Tale of Four Cities', produced by him for
unrestricted public exhibition.
2 . The petitioner is a journalist, playwright and writer of short stories. He is also a
producer and director of cinematograph films. He was a member of the Enquiry
Committee on Film Censorship (1968) and is a member of the Children's Film
Committee. He has produced and/or directed many films some of which have been
well-received here and abroad and even won awards and prizes.
3 . The petitioner produced in 1968 a documentary film in 2 reels (running time 16
minutes) called a Tale of Four Cities. In this film he purported to contrast the
luxurious life of the rich in the four cities of Calcutta, Bombay, Madras and Delhi,
with the squalor and poverty of the poor, particularly those whose hands and labour
help to build beautiful cities, factories and other industrial complexes. The film is in
black and white and is silent except for a song which the labourers sing while doing
work and some background music and sounds for stage effect. The film, in motion
sequences or still shots, shows contrasting scenes of palatial buildings, hotels and
factories-evidence of the prosperity of a few, and shanties, huts and slums-evidence
of poverty of the masses. These scenes alternate and in between are other scenes
showing sweating labourers working to build the former and those showing the
squalid private life of these labourers. Some shots mix people riding in lush motor
cars with rickshaw and handcart pullers of Calcutta and Madras. In one scene a fat
and prosperous customer is shown riding a rickshaw which a decrepit man pulls,
sweating and panting hard. In a contrasting scene the same rickshaw puller is shown
sitting in the rickshaw, pulled by his former customer. This scene is the epitomisation
of the theme of the film and on view are the statutes of the leaders of Indian
Freedom Movement looking impotently from their high pedestal's in front of palatial
buildings, on the poverty of the masses. On the boulevards the rich drive past in
limousines while the poor pull rickshaws or handcarts or stumble along.
4. There is included also a scanning shot of a very short duration, much blurred by
the movement of the photographer's camera, in which the red light district of Bombay
is shown with the inmates of the brothels waiting at the doors or windows. Some of
them wear abbreviated skirts showing bare legs up to the knees and sometimes a
short way above them. This scene was perhaps shot from a moving car because the
picture is unsteady on the screen and under exposed. Sometimes the inmates,

directions are followed. By 1950 three general principles were evolved. They are :
1. Was the story, incident or dialogue likely to impair the moral standards of
the public by extenuating vice or crime or depreciating moral standards ?
2. Was it likely to give offence to reasonably minded cinema audiences ?
3. What effect would it have on the minds of children ?
38. We have digressed into the practice of the United States and the United Kingdom
because analogies from these two countries were mainly relied upon by the petitioner
and they serve as a very appropriate back-ground from which to begin discussion on
the question of censorship and the extent to which it may be carried.
39. To begin with our fundamental law allows freedom of speech and expression to
be restricted as Clause (2) itself shows. It was observed in Ranjit D. Udeshi v. State
of Maharashtra MANU/SC/0080/1964 : 1965CriLJ8 .
Speaking in terms of the Constitution it can hardly be claimed that obscenity
which is offensive to modesty or decency is within the Constitutional
protection given to free speech or expression, because the article dealing
with the right itself excludes it. That cherished right on which our democracy
rests is meant for the expression of free opinions to change political or social
conditions or for the advancement of human knowledge. This freedom is
subject to reasonable restrictions which may be thought necessary in the
interest of the general public and one such is the interest of public decency
and morality. Section 292, Indian Penal Code, manifestly embodies such a
restriction because the law against obscenity, of course, correctly understood
and applied, seeks no more than to promote public decency and morality.
We adhere to this statement and indeed it is applicable to the other spheres where
control is tolerated under our fundamental law. The argument that Section 5B of the
Cinematograph Act does not reproduce the full effect of the second clause of Article
19 need not detain us. It appears that the draftsman used a copy of the Constitution
as it was before the First Amendment and fell into the error of copying the obsolete
clause. That, however, does not make any difference. The Constitution has to be read
first and the section next. The latter can neither take away nor add to what the
Constitution has said on the subject. The word 'reasonable' is not to be found in
Section 5B but it cannot mean that the restrictions can be unreasonable. No only the
sense of the matter but the existence of the Constitutional provision in part materia
must have due share and reading the previsions of the Constitution we can approach
the problem without having to adopt a too liberal construction of Section 5B.
4 0 . It, therefore, follows that the American and the British precedents cannot be
decisive and certainly not the minority view expressed by some of the Judges of the
Supreme Court of the former. The American Constitution stated the guarantee in
absolute terms without any qualification. The Judges try to give full effect to the
guarantee by every argument they can validly use. But the strongest proponent of the
freedom (Justice Douglas) himself recognised in the Kingsley case that there must be
a vital difference in approach. This is what he said :
If we had a provision in our Constitution for 'reasonable' regulation of the
press such as India has included in hers, there would be room for argument
that censorship in the interests of morality would be permissible.

law.
54. We allow this petition as its purpose is more than served by the assurance of the
Solicitor General and what we have said, but in the circumstances we make no order
about costs.

MANU/SC/0693/2013
Equivalent Citation: 2013VII AD (S.C .) 593, AIR2013SC 2657, 2013 6 AWC 5661SC , JT2013(11)SC 112, 2013(9)SC ALE394, (2013)12SC C 226

Appellants: Kachchh Jal Sankat Nivaran Samiti and Ors.
Vs.
Respondent: State of Gujarat and Ors.
C.K. Prasad and V. Gopala Gowda, JJ.
Counsels:
For Appellant/Petitioner/Plaintiff: Altaf Ahmed and R.S. Suri, Sr. Advs., Deepayan
Mandal, Pallavi Tayal Chadela and Chanchal Kumar Ganguli, Advs.
For Respondents/Defendant: Shyam Divan, Sr. Adv. and Hemantika Wahi, Adv.
Case Note:
Constitution of India - Articles 39(b) and 38(2)--Dispute relating to sharing
of water of river--Judicial review--Appellants asking Court to hold that
policy of distribution of water is bad--Issue regarding allocation of water to
district of Gujarat--Matter of policy--Scope of judicial review--Limited--
Court do not have expertise to lay down policy for distribution of water
within State--Even if it is assumed that Court has expertise, it will not
encroach upon field earmarked for executive--Matters affecting policy and
requiring technical expertise be better left to decision of those who are
entrusted and qualified to address same--Court shall step in only when it
finds that policy is inconsistent with constitutional laws or arbitrary or
irrational--It is expected of Court to exercise judicial restraint and not
encroach upon executive or legislative domain--In respect of policy of
Government, Court has very limited jurisdiction--Complaint of appellants of
non-adherence to mandate of Articles 39(b) and 38(2)--Misconceived--
There being no judicially manageable standards for allocation of water--Any
interference by Court would mean interference with day-to-day functioning
of State Government--Impugned policy do not deserve to be looked into by
Court in exercise of its power of judicial review--Conclusion and reasoning
given by High Court--Affirmed.
Case Category:
LETTER PETITION AND PIL MATTER - SLPs FILED AGAINST JUDGMENTS/ORDERS
PASSED BY THE HIGH COURTS IN WRIT PETITIONS FILED AS PIL
JUDGMENT
C.K. Prasad, J.
1 . Appellant No. 1, Kachchh Jal Sankat Nivaran Samiti, claims to be a non-political
organization established with the object amongst others to work to alleviate the
District of Kutch of its perennial water scarcity and to mitigate the resultant problems

but after the award, did not stick to its stand after the allocation was made by the
Tribunal. He has brought to our notice the comparative data regarding allocation of
water to the various districts and points out that the same indicates discriminatory
allocation of water to the Kutch area. Mr. Ahmed draws our attention to Article 39(b)
of the Constitution of India and submits that the State while dealing with the
distribution of water did not respect the constitutional philosophy that the State shall
distribute the material resources as best to subserve "common good". It has also
been contended that the natural resources are held by the Government as trustee for
the benefit of the citizens and, therefore, the State Government is required to manage
and utilize them in the best interest of the society. While making distribution,
according to Mr. Ahmed, the State Government totally lost sight of Article 38(2) of
the Constitution which stipulates that the State shall endeavor to minimize
inequalities in the facilities and opportunities amongst people.
7. On account of all these infirmities, the impugned policy deserves to be looked into
by this Court in exercise of its power of judicial review, contends Mr. Ahmed.
Reliance has been placed in support of aforementioned contention to a decision of
this Court in the case of Tata Cellular v. Union of India MANU/SC/0002/1996 :
(1994) 6 SCC 651. Our attention has been drawn to the following passage from the
said judgment:
70. It cannot be denied that the principles of judicial review would apply to
the exercise of contractual powers by Government bodies in order to prevent
arbitrariness or favouritism. However, it must be clearly stated that there are
inherent limitations in exercise of that power of judicial review. Government
is the guardian of the finances of the State. It is expected to protect the
financial interest of the State. The right to refuse the lowest or any other
tender is always available to the Government. But, the principles laid down in
Article 14 of the Constitution have to be kept in view while accepting or
refusing a tender. There can be no question of infringement of Article 14 if
the Government tries to get the best person or the best quotation. The right
to choose cannot be considered to be an arbitrary power. Of course, if the
said power is exercised for any collateral purpose the exercise of that power
will be struck down
8. Mr. Shyam Diwan, Senior Counsel representing the State of Gujarat states that the
issue regarding allocation of water to the districts of Gujarat is a matter of policy and
the scope of judicial review in this regard is narrow. According to him, the policy has
been framed after consulting technical experts in the best interest of the people and,
therefore, does not call for any interference by this Court in exercise of its power of
judicial review.
9 . We have given our most anxious consideration to the rival submissions and we
find substance in the submission of Mr. Diwan. We are conscious of the fact that
there is wide separation of powers between the different limbs of the State and,
therefore, it is expected of this Court to exercise judicial restraint and not encroach
upon the executive or legislative domain. What the Appellants in substance are asking
this Court to do is to conduct a comparative study and hold that the policy of
distribution of water is bad. We are afraid, we do not have the expertise or wisdom to
analyse the same. It entails intricate economic choices and though this Court tends to
believe that it is expert of experts but this principle has inherent limitation. True it is
that the court is entitled to analyse the legal validity of the different means of
distribution but it cannot and will not term a particular policy as fairer than the other.

the State also.
14. The complaint of the Appellants of non-adherence to the mandate of Article 38(2)
of the Constitution is also misconceived. The State, in our opinion, is to strive to
minimize the inequalities in income and endeavour to eliminate inequalities in status,
facilities and opportunities not only amongst individuals but also amongst group of
people residing in different parts or engaged in different vocations. But this does not
mean that for achieving that the State Government has to apply it on the basis of the
number of people residing in different parts only. Other factors just cannot be
forgotten.
15. We are in total agreement with the conclusion and reasoning given by the High
Court and we reiterate that there being no judicially manageable standards for
allocation of water, any interference by this Court would mean interference with the
day-to-day functioning of the State Government. In view of separation of powers,
this Court cannot charter the said path.
1 6 . In the result, we do not find any merit in this appeal which is dismissed
accordingly but without any order as to costs.

MANU/SC/0074/1962
Equivalent Citation: AIR1962SC 955, 1963(1)AnWR40, 1962(10)BLJR636, (1963)IMLJ40(SC ), [1962]Supp2SC R769

Appellants:Kedar Nath Singh
Vs.
Respondent:State of Bihar
B.P. Sinha, C.J., A.K. Sarkar, J.R. Mudholkar, N. Rajagopala Ayyangar and S.K. Das,
JJ.
Case Note:
The case questioned the constitutionality of the statute that penalized
sedition and Dagduas conducing to public mischief and further questioned
whether it infringe the freedom of speech - The Court ruled that the Section
124A of the Indian Penal Code, 1860, that makes sedition an offence, was
constitutionally valid - Further, though the section imposes restrictions on
the fundamental freedom of speech, the restrictions are in interest of the
public order and are within the ambit of permissible legislative interference
with the fundamental right
JUDGMENT
B.P. Sinha, C.J.
1 . In these appeals the main question in controversy is whether Sections 124A and
505 of the Indian Penal Code have become void in view of the provisions of Article
19(1)(a) of the Constitution. The constitutionality of the provisions of s. 124A, which
was mainly canvassed before us, is common to all the appeals, the facts of which
may shortly be stated separately.
2. In Criminal Appeal 169 of 1957, the appellant is one Kedar Nath Singh, who was
prosecuted before a Magistrate, 1st Class, at Begusarai, in the district of Monghyr, in
Bihar. He framed the following charges against the accused person, which are set out
in extenso in order to bring out the gravamen of the charge against him.
"First. - That you on 26th day of May, 1953 at village Barauni, P. S. Taghra
(Monghyr) by speaking the words, to wit,
(a) To-day the dogs of the C.I.D. are loitering round Barauni. Many
official dogs are sitting even in this meeting. The people of India
drove out the Britishers from this country and elected these Congress
goondas to the gaddi and seated them on it. To-day these Congress
goondas are sitting on the gaddi due to mistake of the people. When
we drove out the Britishers, we shall strike and turn out these
Congress goondas as well. These official dogs will also be liquidated
along with these Congress goondas. These Congress goondas are

representation, or otherwise, brings or attempts to bring into hatred or
contempt, or excites or attempts to excite disaffection towards the
Government established by law in India shall be punished with transportation
for life or any shorter term to which fine may be added or with imprisonment
which may extend to three years, to which fine may be added, or with fine.
Explanation 1. The expression "disaffection" includes disloyalty and all
feelings or enmity.
Explanation 2. Comments expressing disapprobation of the measures of the
Government with a view to obtain their alteration by lawful means, without
exciting or attempting to excite hatred, contempt or disaffection do not
constitute an offence under this section.
Explanation 3. Comments expressing disapprobation of the administrative of
other action of the Government without exciting or attempting to excite
hatred, contempt or disaffection, do not constitute an offence under this
section."
1 8 . This offence, which is generally known as the offence of Sedition, occurs in
Chapter VI of the Indian Penal Code, headed 'Of offences against the State'. This
species of offence against the State was not an invention of the British Government in
India, but has been known in England for centuries. Every State, whatever its form of
Government, has to be armed with the power to punish those who, by their conduct,
jeopardise the safety and stability of the State, or disseminate such feelings of
disloyalty as have the tendency to lead to the disruption of the State or to public
disorder. In England, the crime has thus been described by Stephen in his
Commentaries, on the Laws of England, 21st Edition, volume IV, at pages 141-142,
in these words:
"Section IX. Sedition and Inciting to Disaffection - We are now concerned
with conduct which, on the one hand, fall short of treason, and on the other
does not involve the use of force or violence. The law has here to reconcile
the right of private criticism with the necessity of securing the safety and
stability of the State. Sedition may be defined as conduct which has, either
as its object or as its natural consequence, the unlawful display of
dissatisfaction with the Government or with the existing order of society.
The seditions conduct may be by words, by deed, or by writing. Five specific
heads of sedition may be enumerated according to the object of the accused.
This may be either
1 . to excite disaffection against the King, Government, or
Constitution, or against Parliament or the administration of justice;
2. to promote, by unlawful means, any alteration in Church or State;
3. to incite a disturbance of the peace;
4. to raise discontent among the King's subjects;
5. to excite class hatred.
It must be observed that criticism on political matters is not of itself
seditions. The test is the manner in which it is made. Candid and honest

discussion is permitted. The law only interferes when the discussion passes
the bounds of fair criticism. More especially will this be the case when the
natural consequence of the prisoner's conduct is to promote public disorder."
2 2 . This statement of the law is derived mainly from the address to the Jury by
Fitzerald, J., in the case of Reg v. Alexander Martin Sullivan (1868) 11 CCLC 44. In
the course of his address to the Jury the learned Judge observed as follows :
"Sedition is a crime against society, nearly allied to that of treason, and it
frequently precedes treason by a short interval. Sedition in itself is
comprehensive term, and it embraces all those practices, whether by word
deed or writing, which are calculated to disturb the tranquility of the State,
and lead ignorant persons to endeavour to subvert the Government and the
laws of the empire. The objects of sedition generally are to induce discontent
and insurrection and stir up opposition to the Government, and bring the
administration of justice into contempt; and the very tendency of sedition is
to incite the people to insurrection and rebellion. Sedition has been described
as disloyalty in action and the law considers as sedition all those practices
which have for their object to excite discontent or dissatisfaction, to create
public disturbance, or to lead to civil war; to bring into hatred or contempt
the Sovereign or the Government, the laws or constitution of the realm, and
generally all endeavours to promote public disorder."
23. That the law has not changed during the course of the centuries is also apparent
from the following statement of the law by Coleridge, J., in the course of his
summing up to the Jury in the case of Rex. v. Aldred (1909) 22 CCLC 1 :
"Nothing is clearer than the law on this head - namely, that whoever by
language, either written or spoken incites or encourages other to use
physical force or violence in some public matter connected with the State, is
guilty of publishing a seditions libel. The word "sedition" in its ordinary
natural signification denotes a tumult, an insurrection, a popular commotion,
or an uproar; it implies violence or lawlessness in some form........"
24. In that case, the learned Judge was charging the Jury in respect of the indictment
which contained the charge of seditious libel by a publication by the defendant.
25. While dealing with a case arising under Rule 34(6)(e) of the Defence of India
Rules under the Defence of India Act (XXXV of 1939) Sir Maurice Gwyer, C.J.,
speaking for the Federal Court, made the following observations in the case of
Niharendu Dutt Majumdar v. The King Emperor MANU/FE/0005/1942 : (1942) F.C.R.
38; and has pointed out that the language of s. 124A of the Indian Penal Code, which
was in pari materia with that of the Rule in question, had been adopted from the
English Law, and referred with approval to the observations of Fitzerald, J., in the
case quoted above; and made the following observations which are quite apposite :
".... generally speaking, we think that the passage accurately states the law
as it is to be gathered from an examination of a great number of judicial
pronouncements.
The first and most fundamental duty of every Government is the preservation
of order, since order is the condition precedent to all civilisation and the
advance of human happiness. This duty has no doubt been sometimes
performed in such a way as to make the remedy worse than the disease; but

37. It has not been contended before us that if a speech or a writing excites people
to violence or have the tendency to create public disorder, it would not come within
the definition of 'sedition'. What has been contended is that a person who makes a
very strong speech or uses very vigorous words in a writing directed to a very strong
criticism of measures of Government or acts of public officials, might also come
within the ambit of the penal section. But, in our opinion, such words written or
spoke would be outside the scope of the section. In this connection, it is pertinent to
observe that the security of the State, which depends upon the maintenance of law
and order is the very basic consideration upon which legislation, with view to
punishing offences against the State, is undertaken. Such a legislation has, on the
one hand, fully to protect and guarantee the freedom of speech and expression,
which is the sine quo non of a democratic form of Government that our Constitution
has established. This Court, as the custodian and guarantor of the fundamental rights
of the citizens, has the duty cast upon it of striking down any law which unduly
restricts the freedom of speech and expression with which we are concerned in this
case. But the freedom has to be guarded against becoming a licence for vilification
and condemnation of the Government established by law, in words, which incite
violence or have the tendency to create public disorder. A citizen has a right to say or
write whatever he likes about the Government, or its measures, by way of criticism or
comment, so long as he does not incite people to violence against the Government
established by law or with the intention of creating public disorder. The Court, has,
therefore, the duty cast upon it of drawing a clear line of demarcation between the
ambit of a citizen's fundamental right guaranteed under Art. 19(1)(a) of the
Constitution and the power of the legislature to impose reasonable restrictions on
that guaranteed right in the interest of, inter alia, security of the State and public
order. We have, therefore, to determine how far the Sections 124A and 505 of the
Indian Penal Code could be said to be within the justifiable limits of legislation. If is
held, in consonance with the views expressed by the Federal Court in the case of
Niharendu Dutt Majumdar v. The King Emperor MANU/FE/0005/1942 : (1942) F.C.R.
38 that the gist of the offence of 'sedition' is incitement to violence or the tendency
or the intention to create public disorders by words spoken or written, which have the
tendency or the effect of bringing the Government established by law into hatred or
contempt or creating disaffection in the sense of disloyalty to the State in other
words bringing the law into line with the law of sedition in England, as was the
intention of the legislators when they introduced s. 124A into the Indian Penal Code
in 1870 as aforesaid, the law will be within the permissible limits laid down in clause
(2) of Art. 19 of the Constitution, if on the other hand we give a literal meaning to
the words of the section, divorced from all the antecedent background in which the
law of sedition has grown, as load down in the several decisions of the Judicial
Committee of the Privy Council, it will be true to say that the section is not only
within but also very much beyond the limits laid down in clause (2) aforesaid.
38. In view of the conflicting decisions of the Federal Court and of the Privy Council,
referred to above, we have to determine whether and how far the provisions of
Sections 124A and 505 of the Indian Penal Code have to be struck down as
unconstitutional. If we accept the interpretation of the Federal Court as to the gist of
criminality in an alleged crime of sedition, namely, incitement to disorder or tendency
or likelihood of public disorder or reasonable apprehension thereof, the section may
lie within the ambit of permissible legislative restrictions on the fundamental right of
freedom of speech and expression. There can be no doubt that apart from the
provisions of clause (2) of Art. 19, Sections 124A and 505 are clearly violative of Art.
19(1)(a) of the Constitution. But then we have to see how far the saving clause,
namely, clause (2) of Art. 19 protects the sections aforesaid. Now, as already pointed

out, in terms of the amended clause (2), quoted above, the expression "in the
interest of.... public order" are words of great amplitude and are much more
comprehensive than the expression "for the maintenance of", as observed by this
Court in the case of Virendra v. The State of Punjab MANU/SC/0023/1957 :
[1958]1SCR308 . Any law which is enacted in the interest of public order may be
saved from the vice of constitutional invalidity. If, on the other hand, we were to hold
that even without any tendency to disorder or intention to create disturbance of law
and order, by the use of words written or spoke which merely create disaffection or
feelings of enmity against the Government, the offence of sedition is complete, then
such an interpretation of the sections would make then unconstitutional in view of
Art. 19(1)(a) read with clause (2). It is well settled that if certain provisions of law
construed in one way would make them consistent with the Constitution, and another
interpretation would render them unconstitutional, the Court would lean in favour of
the former construction. The provisions of the sections read as a whole, along with
the explanations, make it reasonably clear that the sections aim at rendering penal
only such activities as would be intended, or have a tendency, to create disorder or
disturbance of public peace by resort to violence. As already pointed out, the
explanations appended to the main body of the section make it clear that criticism of
public measures or comment on Government action, however strongly worded, would
be within reasonable limits and would be consistent with the fundamental right of
freedom of speech and expression. It is only when the words, written or spoken, etc.
which have the pernicious tendency or intention of creating public disorder or
disturbance of law and order that the law steps in to prevent such activities in the
interest of public order. So construed, the section, in our opinion, strikes the correct
balance between individual fundamental rights and the interest of public order. It is
also well settled that in interpreting an enactment the Court should have regard not
merely to the literal meaning of the words used, but also take into consideration the
antecedent history of the legislation, its purpose and the mischief it seeks to suppress
(vide (1)). The Bengal Immunity Company Limited v. The State of Bihar
MANU/SC/0083/1955 : [1955]2SCR603 and MANU/SC/0020/1957 : [1957]1SCR930
R. M. D. Chamarbaugwalla v. The Union of India MANU/SC/0020/1957 :
[1957]1SCR930 . Viewed in that light, we have no hesitation in so construing the
provisions of the sections impugned in these cases as to limit their application to acts
involving intention or tendency to create disorder, or disturbance of law and order, or
incitement to violence.
39. We may also consider the legal position, as it should emerge, assuming that the
main s. 124A is capable of being construed in the literal sense in which the Judicial
Committee of the Privy Council has construed it in the cases referred to above. On
that assumption, it is not open to this Court to construe the section in such a way as
to avoid the alleged unconstitutionality by limiting the application of the section in
the way in which the Federal Court intended to apply it ? In our opinion, there are
decisions of this Court which amply justify our taking that view of the legal position.
This Court, in the case of R.M.D. Chamarbaugwalla v. The Union of India
MANU/SC/0020/1957 : [1957]1SCR930 has examined in detail the several decisions
of this Court, as also of the Courts in America and Australia. After examining those
decisions, this Court came to the conclusion that if the impugned provisions of a law
come within the constitutional powers of the legislature by adopting one view of the
words of the impugned section or Act, the Court will take that view of the matter and
limit its application accordingly, in preference to the view which would make it
unconstitutional on another view of the interpretation of the words in question. In
that case, the Court had to choose between a definition of the expression "Prize
Competitions" as limited to those competitions which were of a gambling character

and those which were not. The Court chose the former interpretation which made the
rest of the provisions of the Act, Prize Competitions Act (XLII of 1955), with
particular reference to Sections 4 and 5 of the Act and Rules 11 and 12 framed
thereunder, valid. The Court held that the penalty attached only to those competitions
which involved the element of gambling and those competitions in which success
depended to a substantial degree on skill were held to be out of the purview of the
Act. The ratio decidendi in that case, in our opinion, applied to the case in hand in so
far as we propose to limit its operation only to such activities as come within the
ambit of the observations of the Federal Court, that is to say, activities involving
incitement to violence or intention or tendency to create public disorder or cause
disturbance of public peace.
40. We do not think it necessary to discuss or to refer in detail to the authorities
cited and discussed in the reported case R. M. D. Chamarbaugwalla v. The Union of
India MANU/SC/0020/1957 : [1957]1SCR930 . We may add that the provisions of the
impugned sections, impose restrictions on the fundamental freedom of speech and
expression, but those restrictions cannot but be said to be in the interest of public
order and within the ambit of permissible legislative interference with that
fundamental right.
4 1 . It is only necessary to add a few observations with respect to the
constitutionality of s. 505 of the Indian Penal Code. With reference to each of the
three clauses of the section, it will be found that the gravamen of the offence is
making, publishing or circulating any statement, rumour or report (a) with intent to
cause or which is likely to cause any member of the Army, May or Air Force to mutiny
or otherwise disregard or fail in his duty as such; or (b) to cause fear or alarm to the
public or a section of the public which may induce the commission of an offence
against the State or against public tranquility or (c) to incite or which is likely to
incite one class or community of persons to commit an offence against any other
class or community. It is manifest that each one of the constituent elements of the
offence under s. 505 has reference to, and a direct effect on, the security of the State
or public order. Hence, these provisions would not exceed the bounds of reasonable
restrictions on the right of freedom of speech and expression. It is clear, therefore,
that clause (2) of Art. 19 clearly saves the section from the vice of
unconstitutionality.
42. It has not been contended before us on behalf of the appellant in C.A. 169 of
1957 or on behalf of the respondents in the other appeals (No. 124-126 of 1958) that
the words used by them did not come within the purview of the definition of sedition
as interpreted by us. No arguments were advanced before us to show that even on
the interpretation given by us their cases did not come within the mischief of the one
or the other section, as the case may be. It follows, therefore, that the Criminal
Appeal 169 of 1957 has to be dismissed. Criminal Appeals 124-126 of 1958 will be
remanded to the High Court to pass such order as it thinks fit and proper in the light
of the interpretation given by us.
43. Appeal No. 169 of 1957 dismissed.
44. Appeals Nos. 124 to 126 of 1958 allowed.

MANU/SC/0445/1973
Equivalent Citation: AIR1973 SC 1461 , (1973 )4 SC C 225 , [1973 ]SuppSC R1

Writ Petition (civil) 135 of 1970
Appellants:Kesavananda Bharati Sripadagalvaru
Vs.
Respondent:State of Kerala
S.M. Sikri, C.J., A.N. Grover, A.N. Ray, D.G. Palekar, H.R. Khanna, J.M. Shelat, K.K.
Mathew, K.S. Hegde, M. Hameedullah Beg, P. Jaganmohan Reddy, S.N. Dwivedi, A.K.
Mukherjea and Y.V. Chandrachud, JJ.
Case Note:
Constitution - basic structure of Constitution - Sections 2, 3, 6, 7, 8 (1), 18,
29 and 291 of Criminal Procedure Code, Constitution of India, Section 29
(1) of Indian Evidence Act and Indian Contract Act - batch of six writ
petitions challenging validity of Twenty-fourth, Twenty-fifth and Twenty-
ninth Amendments of Constitution - majority upheld validity of twenty-
fourth Amendment which inserted Clauses (3) and (4) in Article 13 - all
Judges opined that by virtue of Article 368 as amended by twenty-fourth
Amendment Parliament had power to amend any or all provisions of
Constitution including those relating to fundamental rights although the
same was not unlimited - majority were of view that power of amendment
under Article 368 was subject to certain implied and inherent limitations -
in exercise of amending power Parliament cannot amend basic structure or
framework of Constitution - right to property did not form part of basic
structure - individual freedom secured to citizens was basic feature of
Constitution - grant of power is always qualified by implications of context
and considerations arising out of general scheme of statute - inherent
limitations under unamended Article 368 would still hold true even after
amendment of Article 368 - Sections 2 (a) and 2 (b) and first part of
Section 3 of twenty-fifth Amendment held valid - majority invalidated
second part of Article 31-C introduced by twenty-fifth Amendment which
excluded jurisdiction of Courts to inquire whether law protected under that
Article gave effect to policy of securing directive principles mentioned
therein - validity of twenty-ninth Amendment which inserted Kerala Land
Reforms (Amendment) Act, 1969 and Kerala Land Reforms (Amendment)
Act, 1971 was upheld.
JUDGMENT
S.M. Sikri, C.J.
1. I propose to divide my judgment into eight parts. Part I will deal with
Introduction; Part II with interpretation of Golakhnath case; Part III with the
interpretation of the original Article 368, as it existed prior to its amendment; Part IV
with the validity of the Constitution (Twenty-fourth Amendment) Act; Part V with the

(emphasis supplied)
Whereas disregard and contempt for human rights have resulted in barbarous acts
which have outraged the conscience of mankind, and the advent of a world in which
human beings shall enjoy freedom of speech and belief and freedom from fear and
want has been proclaimed as the highest aspiration of the common people.
Whereas it is essential, if man is not to be compelled to have recourse, as a last
resort, to rebellion against tyranny and oppression, that human rights should be
protected by the rule of law.
Whereas it is essential to promote the development of friendly relations between
nations.
Whereas the peoples of the United Nations have in the Charter reaffirmed their faith
in fundamental human rights, in the dignity and worth of the human person and in
the equal rights of men and women and have determined to promote social progress
and better standards of life in larger freedom.
Whereas Member States have pledged themselves to achieve, in cooperation with the
United Nations, the promotion of universal respect for and observance of human
rights and fundamental freedoms.
Whereas a common understanding of these rights and freedoms is of the greatest
importance for the full realization of this pledge
154. In the Preamble to the International Covenant on Economic and Social and
Cultural Rights 1966, inalienability of rights is indicated in the first Para as follows:
Considering that, in accordance with the principles proclaimed in the Charter
of the United Nations, recognition of the inherent dignity and of the equal
and inalienable rights of all members of the human family is the foundation
of freedom, justice and peace in the world.
155. Do rights remain inalienable if they can be amended out of existence ? The
Preamble Articles 1, 55, 56, 62, 68 and 76 of the United Nations Charter had
provided the basis for the elaboration in the Universal Declaration of Human Rights.
Although there is a sharp conflict of opinion whether respect for human dignity and
fundamental human rights is obligatory under the Charter (see Oppenheim's
International Law; 8th ed. Vol. 1, pp. 740-41; footnote 3), it seems to me that, in
view of Article 51 of the directive principles, this Court must interpret language of the
Constitution, if not intractable, which is after all a municipal law, in the light of the
United Nations Charter and the solemn declaration subscribed to by India. Article 51
reads:
51. The State shall endeavour to-
(a) promote international peace and security;
(b) maintain just and honourable relations between nations;
(c) foster respect for international law and treaty obligations in the
dealings of organised peoples with one another; and
(d) encourage settlement of international disputes by arbitration.
156. As observed by Lord Denning in Corocraft v. Pan American Airways (1969) 1 All

E.R. 82 "it is the duty of these courts to construe our Legislation so as to be in
conformity with international law and not in conflict with it." (See also Oppenheim
supra, pp. 45-46; American Jurisprudence 2nd, Vol. 45, p. 351).
157. Part V Chapter I, deals with the Executive; Chapter II with Parliament-conduct or
its business, qualification of its members, legislation procedure etc. Article 83
provides that:
83. (1) The Council of States shall not be subject to dissolution, but as
nearly as possible one-third of the members thereof shall retire as soon as
may be on the expiration of every second year in accordance with the
provisions made in that behalf by Parliament by law.
(2) The House of the People unless sooner dissolved, shall continue for five
years from the date appointed for its first meeting and no longer and the
expiration of the said period of five years shall operate as a dissolution of
the House: ...
Under the proviso this period can be extended while a Proclamation of Emergency is
in operation for a period not exceeding in any case beyond a period of six months
after the Proclamation has ceased to operate. It was provided in Article 85(1) before
its amendment by the Constitution (First Amendment) Act 1951 that the House of
Parliament shall be summoned to meet twice at least in every year, and six months
shall not intervene between their last sittings in one session and the date appointed
for their first sitting in the next session.
158. Article 123 gives power to the President to promulgate ordinances during recess
of Parliament Chapter IV deals with Union Judiciary.
159. Part VI, as originally enacted dealt with the States in Part A of the First
Schedule-the Executive, the State Legislatures and the High Courts. Article174 deals
with the summoning of the House of Legislature and its provisions are similar to that
of Article 85. Article 213 confers legislative powers on the Governor during the recess
of State Legislature by promulgating ordinances.
169. Part XI deals with the relation between the Union and the States; Chapter I
regulating legislative relations and Chapter II administrative relations.
160. Part XII deals with Finance, Property, Contracts and Suits. We need only notice
Article 265 which provides that "no tax shall be levied or collected except by
authority of law".
161. Part XIII deals with Trade, Commerce and Intercourse within the Territory of
India. Subject to the provisions of this Chapter, trade, commerce and intercourse
throughout the territory of India shall be free (Article 301).
162. Part XIV deals with Services under the Union and the States. Part XVI contains
special provisions relating to certain classes-the Scheduled Castes, the Scheduled
Tribes etc. It reserved seats in the House of the People for these classes. Article 331
enables the President to nominate not more than two members of the Anglo-Indian
community if it is not adequately represented in the House of the People. Article 332
deals with the reservation of seats for Scheduled Castes and Scheduled Tribes in the
Legislative Assemblies of the States. In Article 334 it is provided that the above
mentioned reservation of seats and special representation to certain classes shall
cease on the expiry of a period of ten years from the commencement of this
Constitution. Article 335 deals with claims of scheduled castles and scheduled tribes

with law. There will be no order as to costs incurred upto this stage.

MANU/SC/0504/1991
Equivalent Citation: AIR1991SC 537, 1993(91) ALJ 4, 1990 (16) ALR 989, JT1990(4)SC 211, 1991()MPJR(SC )294, (1991)1SC C 212,
[1990]Supp1SC R625, 1990(6)SLR1(SC ), 1991(1)UJ645, (1990)2UPLBEC 1174

Appellants: Kumari Shrilekha Vidyarthi and Ors.
Vs.
Respondent: State of U.P. and Ors.
J.S. Verma and R.M. Sahai, JJ.
Case Note:
Constitution - judicial review - Articles 14, 32 and 226 of Constitution of
India - issue before Supreme Court is whether impugned circular amenable
to judicial review and if so is it liable to be quashed under Article 14 on
ground of being arbitrary - presence of public element attached to office or
post covered in impugned Order - this is sufficient to attract Article 14 and
bring validity of impugned Order under scope of judicial review - if Order is
violative of Article 14 there can be no impediment in striking down
impugned Act inspite of fact that additional right also available to aggrieved
persons - it is difficult and unrealistic to exclude State actions in
contractual matters from purview of scope of judicial review under Article
14 - obvious test to see whether there any discernible principle emerging
from impugned Act and if so does it satisfy test of reasonableness - all
action of every public functionary must be guided by reason and not whim
caprice or personal predilections.
JUDGMENT
J.S. Verma, J.
1 . This judgment disposes of a bunch of matters comprising of some writ petitions
under Article 32 of the Constitution of India and special leave petitions under Article
136 of the Constitution of India, all of which involve for decision certain common
questions. The special leave petitions are directed against a common judgment of the
Allahabad High Court dismissing some writ petitions in which the same questions
were raised. In view of the decision of the High Court rejecting those contentions, the
writ petitions were filed in this Court directly for the same purpose.
2. By one stroke, seemingly resorting to the Spoils System alien to our constitutional
scheme, the Government of State of Uttar Pradesh has terminated by a general order
the appointments of all Government Counsel (Civil, Criminal, Revenue) in all the
districts of the State of U.P. w.e.f. 28-2-1990 and directed preparation of fresh panels
to make appointments in place of the existing incumbents. This has been done by
Circular G.O. No. D-284-Seven-Law-Ministry dated 6-2-1990, terminating all the

the 'office' or 'post' of District Government Counsel of every category covered by the
impugned circular. This is sufficient to attract Article 14 of the Constitution and bring
the question of validity of the impugned circular within the scope of judicial review.
18. The scope of judicial review permissible in the present case, does not require any
elaborate consideration since even the minimum permitted scope of judicial review
on the ground of arbitrariness or unreasonableness or irrationality, once Article 14 is
attracted, is sufficient to invalidate the impugned circular as indicated later. We need
not, therefore, deal at length with the scope of judicial review permissible in such
cases since several nuances of that ticklish question do not arise for consideration in
the present case.
19. Even otherwise and sans the public element so obvious in these appointments,
the appointment and its concomitants viewed as purely contractual matters after the
appointment is made, also attract Article 14 and exclude arbitrariness permitting
judicial review of the impugned State action. This aspect is dealt with hereafter.
20. Even apart from the premise that the 'office' or 'post' of D.G.Cs. has a public
element which alone is sufficient to attract the power of judicial review for testing
validity of the impugned circular on the anvil of Article 14, we are also clearly of the
view that this power is available even without that element on the premise that after
the initial appointment, the matter is purely contractual. Applicability of Article 14 to
all executive actions of the State being settled and for the same reason its
applicability at the threshold to the making of a contract in exercise of the executive
power being beyond dispute, can it be said that the State can thereafter cast off its
personality and exercise unbridled power unfettered by the requirements of Article 14
in the sphere of contractual matters and claim to be governed therein only by private
law principles applicable to private individuals whose rights flow only from the terms
of the contract without anything more? We have no hesitation in saying that the
personality of the State, requiring regulation of its conduct in all spheres by
requirements of Article 14, does not undergo such a radical change after the making
of a contract merely because some contractual rights accrue to the other party in
addition. It is not as if the requirements of Article 14 and contractual obligations are
alien concepts, which cannot co-exist.
21. The Preamble of the Constitution of India resolves to secure to all its citizens
Justice, social, economic and political; and Equality of status and opportunity. Every
State action must be aimed at achieving this goal. Part IV of the Constitution contains
'Directive Principles of State Policy' which are fundamental in the governance of the
country and are aimed at securing social and economic freedoms by appropriate State
action which is complementary to individual fundamental rights guaranteed in Part III
for protection against excesses of State action, to realise the vision in the Preamble.
This being the philosophy of the Constitution, can it be said that it contemplates
exclusion of Article 14 -- non-arbitrariness which is basic to rule of law -- from State
actions in contractual field when all actions of the State are meant for public good
and expected to be fair and just? We have no doubt that the Constitution does not
envisage or permit unfairness or unreasonableness in State actions in any sphere of
its activity contrary to the professed ideals in the Preamble. In our opinion, it would
be alien to the Constitutional Scheme to accept the argument of exclusion of Article
14 in contractual matters. The scope and permissible grounds of judicial review in
such matters and the relief which may be available are different matters but that does
not justify the view of its total exclusion. This is more so when the modern trend is
also to examine the unreasonableness of a term in such contracts where the

Constitution. It was emphasised that the Indian Oil Corporation being an
instrumentality of the State was bound to act fairly; and that 'fairness in such actions
should be perceptible, if not transparent'. If Article 14 was applied even without the
benefit of a contract of dealership, the position cannot be worse with the added
benefit of a contract. With respect, we concur with the view about the impact of
Article 14 of the Constitution on every State action as indicated by the learned Chief
Justice in these two recent decisions.
33. No doubt, it is true, as indicated by us earlier, that there is a presumption of
validity of the State action and the burden is on the person who alleges violation of
Article 14 to prove the assertion. However, where no plausible reason or principle is
indicated nor is it discernible and the impugned State action, therefore, appears to be
ex facie arbitrary, the initial burden to prove the arbitrariness is discharged shifting
onus on the State to justify its action as fair and reasonable. If the State is unable to
produce material to justify its action as fair and reasonable, the burden on the person
alleging arbitrariness must be held to be discharged. The scope of judicial review is
limited as indicated in Dwarkadas Marfatia's case AIR 1989 SC 1642 (supra) to
oversee the State action for the purpose of satisfying that it is not vitiated by the vice
of arbitrariness and no more. The wisdom of the policy or the lack of it or the
desirability of a better alternative is not within the permissible scope of judicial
review in such cases. It is not for the Courts to recast the policy or to substitute it
with another which is considered to be more appropriate, once the attack on the
ground of arbitrariness is successfully repelled by showing that the act which was
done, was fair and reasonable in the facts and circumstances of the case. As indicated
by Diplock, L J, in Council of Civil Service Unions v. Minister for the Civil Service
(1984) 3 All ER 935, the power of judicial review is limited to the grounds of
illegality, irrationality and procedural impropriety. In the case of arbitrariness, the
defect of irrationality is obvious.
34. In our opinion, the wide sweep of Article 14 undoubtedly takes within its fold the
impugned circular issued by the State of U. P. in exercise of its executive power,
irrespective of the precise nature of appointment of the Government counsel in the
districts and the other rights, contractual or statutory, which the appointees may
have. It is for this reason that we base our decision on the ground that independent
of any statutory right, available to the appointees, and assuming for the purpose of
this case that the rights flow only from the contract of appointment, the impugned
circular, issued in exercise of the executive power of the State, must satisfy Article 14
of the Constitution and if it is shown to be arbitrary, it must be struck down.
However, we have referred to certain provisions relating to initial appointment,
termination or renewal of tenure to indicate that the action is controlled at least by
settled guidelines, followed by the State of U. P., for along time. This too is relevant
for deciding the question of arbitrariness alleged in the present case.
35. It is now too well settled that every State action, in order to survive, must not be
susceptible to the vice of arbitrariness which is the crux of Article 14 of the
Constitution and basic to the rule of law, the system which governs us. Arbitrariness
is the very negation of the rule of law. Satisfaction of this basic test in every State
action is sine qua non to its validity and in this respect, the State cannot claim
comparison with a private individual even in the field of contract. This distinction
between the State and a private individual in the field of contract has to be borne in
the mind.
36. The meaning and true import of arbitrariness is more easily visualized than

precisely stated or defined. The question, whether an impugned act is arbitrary or
not, is ultimately to be answered on the facts and in the circumstances of a given
case. An obvious test to apply is to see whether there is any discernible principle
emerging from the impugned act and if so, does it satisfy the test of reasonableness.
Where a mode is prescribed for doing an act and there is no impediment in following
that procedure, performance of the act otherwise and in a manner which does not
disclose any discernible principle which is reasonable, may itself attract the vice of
arbitrariness. Every State action must be informed by reason and it follows that an
act uninformed by reason, is arbitrary. Rule of law contemplates governance by laws
and not by humour, whims or caprices of the men to whom the governance is
entrusted for the time being. It is trite that 'be you ever so high, the laws are above
you'. This is what men in power must remember, always.
37. Almost a quarter century back, this Court in S.G. Jaisinghani v. Union of India
MANU/SC/0361/1967 : [1967]65ITR34(SC) , indicated the test of arbitrariness and
the pitfalls to be avoided in all State actions to prevent that vice, in a passage as
under:
In this context it is important to emphasize that the absence of arbitrary
power is the first essential of the rule of law upon which our whole
constitutional system is based. In a system governed by rule of law,
discretion, when conferred upon executive authorities, must be confined
within clearly defined limits. The rule of law from this point of view means
that decisions should be made by the application of known principles and
rules and, in general, such decisions should be predictable and the citizen
should know where he is. If a decision is taken without any principle or
without any rule it is unpredictable and such a decision is the antithesis of a
decision taken in accordance with the rule of law. (See Dicey -- "Law of the
Constitution" -- Tenth Edn., Introduction cx). "Law has reached its finest
moments", stated Douglas, J. in United States v. Wunderlick 1951 342 US 98
: 96 Law Ed 113, "When it has freed man from the unlimited discretion of
some ruler.... Where discretion is absolute, man has always suffered". It is in
this sense that the rule of law may be said to be the sworn enemy of caprice.
Discretion, as Lord Mansfield stated it in classic terms in the case of John
Wilkes 1770 98 ER 327, "means sound discretion guided by law. It must be
governed by rule, not humour: it must not be arbitrary, vague and fanciful.
38. After Jaisinghani's case MANU/SC/0361/1967 : [1967]65ITR34(SC) (supra), long
strides have been taken in several well known decisions of this Court expanding the
scope of judicial review in such matters. It has been emphasised time and again that
arbitrariness is anathema to State action in every sphere and wherever the vice
percolates, this Court would not be impeded by technicalities to trace it and strike it
down. This is the surest way to ensure the majesty of rule of law guaranteed by the
Constitution of India. It is, therefore, obvious that irrespective of the nature of
appointment of the Government Counsel in the districts in the State of U. P. and the
security of tenure being even minimal as claimed by the State, the impugned circular,
in order to survive, must withstand the attack of arbitrariness and be supported as an
informed decision which is reasonable.
39. No doubt, it is for the person alleging arbitrariness who has to prove it. This can
be done by showing in the first instance that the impugned State action is uninformed
by reason inasmuch as there is no discernible principle on which it is based or it is
contrary to the prescribed mode of exercise of the power or is unreasonable. If this is

English decisions. It is in consonance with our commitment to openness which
implies scrutiny of every State action to provide an effective check against
arbitrariness and abuse of power. We would much rather be wrong in saying so
rather than be wrong in not saying so. Non-arbitrariness, being a necessary
concomitant of the rule of law, it is imperative that all actions of every public
functionary, in whatever sphere, must be guided by reason and not humour, whim,
caprice or personal predilections of the persons entrusted with the task on behalf of
the State and exercise of all power must be for public good instead of being an abuse
of the power.
49. In view of the conclusion reached by us and the above direction restoring status
quo ante as on 28-2-1990, we have not gone into individual matters brought before
us. Some argument was advanced from both sides in W. P. No. 706 of 1990 (Km.
Shrilekha Vidyarthi v. State of U. P.) wherein the fact of renewal of petitioner's tenure
is disputed. It is unnecessary for us to go into that question also since the order, we
are making, governs the case of all Government counsel in the districts throughout
the State of U. P. including that of the petitioner in this writ petition. The subsequent
rights of this petitioner also would be governed in the manner indicated above. If and
when such a situation arises, it would be open to the parties to have the dispute, if
any, adjudicated wherein the question of renewal of tenure, claimed by the petitioner,
can also be gone into.
5 0 . Consequently, these appeals and writ petitions are allowed. The impugned
circular G.O. No. D-284-Seven-Law-ministry dated 6-2-1990, issued by the
Government of State of U. P., is quashed resulting in restoration of status quo ante as
on 28-2-1990, the date from which this circular was made effective. No costs.

MANU/SC/0103/1977
Equivalent Citation: 1977AC R78, AIR1978SC 47, 1978 AWC 96 SC , 1978C riLJ165, 1978MhLJ1, 1978MPLJ24, (1977)4SC C 551,
(1978)SC C (C ri)10, [1978]1SC R749, 1977(9)UJ733

Appellants:Madhu Limaye
Vs.
Respondent:The State of Maharashtra
D.A. Desai, N.L. Untwalia and P.K. Goswami, JJ.
Counsels:
For Appellant/Petitioner/Plaintiff: K. Rajendra Chowdhary and Mrs. V.D. Khanna, Advs.
For Respondents/Defendant: M.N. Phadke, Sr. Adv. and M.N. Shroff, Adv.
Case Note:
Criminal - revision powers - Sections 199 (2), 199 (4), 203, 204 (4), 397,
397 (1), 397 (2), 398, 435, 476 and 482 of Criminal Procedure Code, 1973,
Section 500 of Indian Penal Code, 1860 and Section 115 Order 14 Rule 2 of
CPC, 1908 - appeal by special leave against rejection of revision filed under
Section 397 (1) of Code of 1973- High Court rejected revision saying it was
not maintainable under Section 397 (2) of Code of 1973 - High Court did
not consider petition on merit - instant case squarely covered by Section
482 where High Court competent to exercise its inherent powers - High
Court competent to proceed under Section 398 and may invoke its inherent
jurisdiction - Supreme Court remitted case back to High Court to dispose
petition on merit in accordance with law.
JUDGMENT
N.L. Untwalia, J.
1 . This is an appeal by special leave from the order of the Bombay High Court
rejecting the application in revision filed by the appellant under Section 397(1) of the
CrPC, 1973 hereinafter to be referred to as the 1973 Code or the new Code, on the
ground that it was not maintainable in view of the provision contained in Sub-section
(2) of Section 397. The High Court has not gene into its merits.
2 . It is not necessary to state the facts of the case in any detail for the disposal of
this appeal. A bare skeleton of them will suffice. In a press conference held at New
Delhi on the 27th September, 1974 the appellant is said to have made certain
statements and handed over a "press hand-out" containing allegedly some
defamatory statements concerning Shri A. R. Antulay, the then Law Minister of the
Government of Maharashtra. The said statements were published in various

the accused was challenged and the High Court was asked to quash the criminal
proceeding either in exercise of its inherent power under Section 482 of the 1973
Code corresponding to Section 561A of the CrPC, 1898-hereinafter called the 1898
Code or the old Code, or under Section 397(1) of the new Code corresponding to
Section 435 of the old Code. Two points were decided in Amar Nath's case in the
following terms:
(1)While we fully agree with the view taken by the learned Judge that where
a revision to the High Court against the order of the Subordinate Judge is
expressly barred under Sub-section (2) of Section 397 of the 1973 Code the
inherent powers contained in Section 482 would not be available to defeat
the bar contained in Section 397(2)."
(2) The impugned order of the Magistrate, however, was not an interlocutory
order.
7. For the reasons stated hereinafter we think that the statement of the law apropos
point No. 1 is not quite accurate and needs some modulation. But we are going to
reaffirm the decision of the Court on the second point.
8. Under Section 435 of the 1898 Code the High Court had the power to "call for and
examine the record of any proceeding before any inferior Criminal Court situate
within the local limits of its... jurisdiction for the purpose of satisfying itself. . . as to
the correctness, legality or propriety of any finding, sentence or order recorded or
passed and as to the regularity of any proceedings of such inferior Court" and then to
pass the necessary orders in accordance with the law engrafted in any of the section's
following Section 435. Apart from the revisional power, the High Court possessed and
possesses the inherent powers to be exercised ex debito justitiae to do the real and
the substantial justice for the administration of which alone Courts exist. In express
language this power was recognized and saved in Section 561A of the old Code.
Under Section 397(1) of the 1973 Code, revisional power has been conferred on the
High Court in terms which are identical to those found in Section 435 of the 1898
Code. Similar is the position apropos the inherent powers of the High Court. We may
read the language of Section 482 (corresponding to Section 561A of the old Code) of
the 1973 Code. It says:
Nothing in this Code shall be deemed to limit or affect the inherent powers of
the High Court to make such orders as may be necessary to give effect to any
order under this Code, or to prevent abuse of the process of any Court or
otherwise to secure the ends of justice.
9. At the outset the following principles may be noticed in relation to the exercise of
the inherent power of the High Court which have been" followed ordinarily and
generally, almost invariably, barring a few exceptions:
(1) That the power is not to be resorted to if there is a specific provision in
the Code for the redress of the grievance of the aggrieved party ;
(2) That it should be exercised very sparingly to prevent abuse of process of
any Court or otherwise to secure the ends of justice;
(3) That it should not be exercised as against the express bar of law
engrafted in any other provision of the Code.

due consideration, that an order rejecting the plea of the accused on a point which,
when accepted, will conclude the particular proceeding, will surely be not an
interlocutory order within the meaning of Section 397(2).
18. We may also refer to the decision of this Court in Parmeshwari Devi v. State and
Anr. MANU/SC/0174/1976 : [1977]2SCR160 that an order made in a criminal
proceeding against a person who is not a party to the inquiry or trial and which
adversely affected him is not an interlocutory order within the meaning of Section
397(2). Referring to a passage from the decision of this Court in Mohan Lal's case-
the passage which is to be found in Halsbury's Laws of England, Volume 22, it has
been said by Shinghal J., delivering the Judgment of the Court, at page 164:
It may thus be conclusive with reference to the stage at which it is made and
it may also be conclusive as to a person who is not a party to the enquiry or
trial, against whom it is directed.
19. As already mentioned, the view expressed in Mohan Lal's case may be open to
debate or difference. One such example is to be found in the decision of this Court in
Prakash Chand Agarwal and Ors. v. M/s. Hindustan Steel Ltd.(1) wherein it was held
that an order of the High Court setting aside an ex-parte decree in the suit and
restoring the suit to the file of the Trial Court is not a final order within the meaning
of Article 133. It is to be noticed that if the High Court would have refused to set
aside the ex-parte decree, the proceeding for setting it aside would have finally
ended and on some of the principles culled out by the majority in Mohan Lal's case,
such an order would have been a final order. We are, however, not under any
necessity to enter into this controversial arena. In our opinion whether the type of the
order aforesaid would be a final order or not, surely it will not be an interlocutory
order within the meaning of Sub-section (2) of Section 397 of the 1973 Code.
2 0 . Before we conclude we may point out an obvious, almost insurmountable,
difficulty in the way of applying literally the test laid down in Kuppuswami Rao's case
and in holding that an order of the kind under consideration being not a final order
must necessarily be an interlocutory one. If a complaint is dismissed under Section
203 or under Section 204(4), or the Court holds the proceeding to be void or
discharges the accused, a revision to the High Court at the instance of the
complainant or the prosecutor would be competent, otherwise it will make Section
398 of the new Code otiose. Does it stand to reason, then, that an accused will have
no remedy to move the High Court in revision or invoke its inherent power for the
quashing of the criminal proceeding initiated upon a complaint or otherwise and
which is fit to be quashed on the face of it ? The legislature left the power to order
further inquiry intact in Section 398. Is it not, then, in consonance with the sense of
justice to leave intact the remedy of the accused to move the High Court for setting
aside the order adversely made against him in similar circumstances and to quash the
proceeding ? The answer must be given in favour of the just and reasonable view
expressed by us above.
21. For the reasons stated above, we allow this appeal, set aside the Judgment and
order of the High Court and remit the case back to it to dispose of the appellant's
petition on merits, in the manner it may think fit and proper to do in accordance with
the law and in the light of this Judgment.

MANU/KE/2041/2012
Equivalent Citation: ILR2013(1)Kerala793, 2012 (4) KHC 710, 2013(1)KLJ99, 2012(4)KLT708
IN THE HIGH COURT OF KERALA

Crl. M.C. No. 2515 of 2012
Appellants: Manuel
Vs.
Respondent: State of Kerala
Hon'ble Mr. Justice S.S. Satheesachandran
Counsels:
For Appellant/Petitioner/Plaintiff: K.S. Madhusoodanan, Thomas Chazhukkaran, M.M.
Vinod Kumar & P.K. Rakesh Kumar
For Respondents/Defendant: Kochumol Koduvath Public Prosecutor
Case Note:
Penal Code, 1860 (Central Act 45 of 1860) - Section 124A--In a democratic
set-up, publishing or preaching of protest or even questioning the
foundation of the form of Government causing disaffection towards the
Government and thus committing any offence under Chapter VI of the IPC,
has to be examined within the letter and spirit of the Constitution--To
prosecute an accused for the offence under Section 124A of the IPC,
sanction under Section 196 Cr.P.C. is a mandatory requirement for the court
to take cognizance of such offence.
The Crl.M.C. was filed seeking to quash the proceedings against the
petitioner/accused for offence punishable under Sections 124A and 153 IPC
and Section 120(d) of the Kerala Police Act. The petitioner, who is an
Advocate, is alleged to have affixed a poster on the eve of polling for the
general election to the Legislative Assembly, exhorting to boycott the
election and is thereby alleged to have committed the offence alleged. The
accused challenged the prosecution on the ground that no offence is made
out and further contended that no sanction has been obtained to prosecute
the petitioner for the offence under Section 124A IPC. Accepting the
contentions put forward by the accused and allowing the Crl.M.C., it was;
Held:
The offence under Section 124A captioned as 'Sedition' is closely allied to
treason - Offence against the State. Many personalities including the Father
of the Nation and several freedom fighters have been tried and punished
during the imperial rule under the above section. How far in a democratic
set-up publishing or preaching of protest even questioning the foundation
of the form of Government could be imputed as causing disaffection towards
the Government and thus committing of any offence under Chapter VI of
the IPC has to be examined within the letter and spirit of the Constitution

and not as previously done under the imperial rule. In appreciating whether
the act done by the accused by words "either spoken or written or by signs
or by misrepresentation or otherwise" one cannot shut one's eyes to
changes in political consumptions which have taken place over the course
of time after the aforesaid penal provision Section 124A was included in the
IPC and the declared objective of the Government of the day. Very often,
the demarcating line between political criticism of the Government and
those causing disaffection against the Government is thin and waving. In
the present case, it is conceded by the learned Public Prosecutor that no
sanction has been obtained to prosecute the petitioner/accused for the
offence under Section 124A of the IPC, which is a mandatory requirement
for the court to take cognizance of such offence. When that be so, whether
the contents of the poster and its publication by the accused, even if it is at
his instance, to determine whether any offence of sedition is made out
thereof is not called for. Section 196 of the Code of Criminal Procedure
mandates that a complaint for such offence should be expressly authorised
by the Government, and if not, the court cannot take cognizance of such
offence against the accused person. Committal proceedings taken over the
final report laid before the court without production of order of sanction
satisfying the statutory mandate, is clearly unsustainable.
Police Act, 1961 (Kerala Act 5 of 1961) - Section 120(d)--To constitute an
offence under Section 120(d) of the Kerala Police Act, the affixing of poster
on the wall or building without permission of the custodian, must have
caused defacement to the wall or building.
Held:
So far as the offence under Section 120(d) of the Kerala Police Act, the
allegation imputed that the poster was affixed in a flex board which was in
disuse, serious consideration is not required. What is contemplated as a
nuisance or violation of public order under Section 120(d) of the Kerala
Police Act is 'defacing of walls, buildings and or other structures without
the prior permission of the custodian of the property'. A poster was affixed
on a wall or a building without the permission of the custodian of the
property, to constitute an offence thereof should reveal that it has caused
defacement to such wall or building. Where a flex board which was in
disuse and that too belonging to a private party 'Asianet Bureau' was made
use for affixing the poster it cannot, normally, be the basis for prosecution
of that offence under the Kerala Police Act.
Penal Code, 1860 (Central Act 45 of 1860) - Section 153--To constitute an
offence under Section 153 Indian Penal Code, it has to be shown that the
act which was the cause of provocation for the offence of rioting, was itself
illegal.
Held:
With respect to the offence under Section 153 of the IPC imputed in the
case, it need only be stated that the affixing of the poster exhorting for
boycotting the election, even if it is objectionable, is not sufficient to show
that by such affixture provocation is given to any person for causing the

even questioning the foundation of the form of Government could be imputed as
causing disaffection towards the Government and thus committing of any offence
under Chapter VI of the I.P.C. has to be examined within the letter and spirit of the
Constitution and not as previously done under the imperial rule. This Court in Alavi &
Ors. s. v. State of Kerala (MANU/KE/0094/1981 : 1982 KLT 205) has held that
shouting of slogans for a classless society and for socialism will not come within the
mischief of Sections 124A or 505(c) of the I.P.C. Similar is the view expressed by the
Apex Court in Balwant Singh and another v. State of Punjab (MANU/SC/0344/1995 :
AIR 1995 SC 1785) and Bilal Ahmed Kaloo v. State of Andhra Pradesh
(MANU/SC/0861/1997 : AIR 1997 SC 3483). In Balwant Singh's case, cited supra, the
Apex Court has held thus:
A plain reading of the S. 124A, would show that its application would be
attracted only when the accused brings or attempts to bring into hatred or
contempt or excites or attempts to excite disaffection towards the
Government established by law in India, by words either written or spoken or
visible signs or representations etc.
In appreciating whether the act done by the accused by words "either spoken or
written or by signs or by misrepresentation or otherwise" one cannot shut one's eyes
to changes in political consumptions which have taken place over the course of time
after the aforesaid penal provision S. 124A was included in the I.P.C. and the
declared objective of the Government of the day. Very often, the demarcating line
between political criticism of the Government and those causing disaffection against
the Government is thin and waving. In the present case, it is conceded by the learned
Public Prosecutor that no sanction has been obtained to prosecute the
petitioner/accused for the offence under S. 124A of the I.P.C., which is a mandatory
requirement for the court to take cognizance of such offence. When that be so,
whether the contents of the poster and its publication by the accused, even if it is at
his instance, to determine whether any offence of sedition is made out thereof is not
called for. S. 196 of the Code of Criminal Procedure mandates that a complaint for
such offence should be expressly authorised by the Government, and if not, the court
cannot take cognizance of such offence against the accused person. Committal
proceedings taken over the final report laid before the court without production of
order of sanction satisfying the statutory mandate, is clearly unsustainable. So far as
the offence under S. 120 (d) of the Kerala Police Act, the allegation imputed that the
poster was affixed in a flex board which was in disuse, serious consideration is not
required. What is contemplated as a nuisance or violation of public order under S.
120 (d) of the Kerala Police Act is 'defacing of walls, buildings and or other structures
without the prior permission of the custodian of the property'. A poster was affixed
on a wall or a building without the permission of the custodian of the property, to
constitute an offence thereof should reveal that it has caused defacement to such wall
or building. Where a flex board which was in disuse and that too belonging to a
private party 'Asianet Bureau' was made use for affixing the poster it cannot,
normally, be the basis for prosecution of that offence under the Kerala Police Act.
With respect to the offence under S. 153 of the I.P.C. imputed in the case, it need
only be stated that the affixing of the poster exhorting for boycotting the election,
even if it is objectionable, is not sufficient to show that by such affixture provocation
is given to any person for causing the offence of rioting. Howsoever deplorable be
the act of affixing the poster, to constitute the offence under S. 153 of the I.P.C. over
and above the provocation that is likely to give cause for rioting, it has to be shown
that the act - affixing of the poster - is illegal. In the given facts of the case, whether
affixture of such poster is legal or illegal is not required to be probed further where

sanction for prosecution of the petitioner for the offence under S. 124A of the IPC has
not been obtained. Proceedings against the petitioner on the report of the police
indicting him of the offences referred to above, in such circumstances, cannot be
sustained.
Final report laid against the petitioner in Crime No. 212 of 2011 of Kozhikode Town
Police Station and the committal proceedings taken thereof as C.P. No. 38 of 2011 of
the Judicial First Class Magistrate Court-I, Kozhikode are quashed invoking the
inherent powers of this Court, under S. 482 of the Code of Criminal Procedure.
Crl. M.C. is disposed of.

MANU/SC/0185/2010
Equivalent Citation: 2010 (79) ALR 759, 2011(1)ARC 442, 2010 6 AWC 6243SC , JT2010(3)SC 160, 2010(2)KLJ382, (2010)4MLJ362(SC ),
2010(2)RC R(C ivil)495, 2010(3)SC ALE172, (2010)4SC C 358, (2010)1SC C (LS)1035, [2010]3SC R533

Special Leave Petition (C) No. 7105 of 2010
Appellants: Mathai
Vs.
Respondent: George and Ors.
Markandey Katju and R.M. Lodha, JJ.
Counsels:
For Appellant/Petitioner/Plaintiff: C.N. Sreekumar, Adv.
Case Note:
Constitution - Jurisdiction - Article 136 and 145(3) of Constitution of India
- Whether petitions should be entertained under Article 136 of Constitution
and whether a fundamental right of a person has been violated? - Held, it is
well settled that Article 136 of Constitution does not confer right to appeal
on any party; it confers a discretionary power on the Supreme Court to
interfere in suitable cases - Article 136 cannot be read as conferring right
on anyone to prefer appeal to this Court; it only confers a right on a party to
file an application seeking leave to appeal and a discretion on Court to
grant or not to grant such leave in its wisdom - When no law confers
statutory right to appeal on party, Article 136 cannot be called in aid to
spell out such a right - Supreme Court would not under Article 136
constitute itself into a tribunal or court just settling disputes and reduce
itself to a mere court of error - Power under Article 136 is extraordinary
power to be exercised in rare and exceptional cases and on well-known
principles - Since matter involves interpretation of Article 136 of
Constitution, Court feel that it should be decided by Constitution Bench in
view of Article 145(3) of Constitution - Court orders papers of this case to
be laid before Hon'ble Chief Justice of India for constitution of appropriate
Bench, to decide which kinds of cases should be entertained under Article
136, and/or for laying down some broad guidelines in this connection -
Constitution Bench may also consider appointing some senior Advocates of
this Court as Amicus Curiae to assist in matter so that it can be settled after
considering views of all concerned parties
ORDER
1. Heard learned Counsel for the petitioner.
2 . This special leave petition has been filed against the judgment and order dated
09.11.2009 of the High Court of Kerala Ernakulam in W.P.(C) No. 31726/2009. By the
impugned order the writ petition filed by the petitioner herein has been disposed off.
3. The petitioner herein is one of the defendants in a suit in which he has disputed

on anyone to prefer an appeal to this Court; it only confers a right on a party
to file an application seeking leave to appeal and a discretion on the Court to
grant or not to grant such leave in its wisdom. When no law confers a
statutory right to appeal on a party, Article 136 cannot be called in aid to
spell out such a right. The Supreme Court would not under Article 136
constitute itself into a tribunal or court just settling disputes and reduce itself
to a mere court of error. The power under Article 136 is an extraordinary
power to be exercised in rare and exceptional cases and on well-known
principles.
12. In Narpat Singh v. Jaipur Development Authority MANU/SC/0357/2002 : (2002)
4 SCC 666, this Court observed as under:
The exercise of jurisdiction conferred by Article 136 of the Constitution on
the Supreme Court is discretionary. It does not confer a right to appeal on a
party to litigation; it only confers a discretionary power of widest amplitude
on the Supreme Court to be exercised for satisfying the demands of justice.
On one hand, it is an exceptional power to be exercised sparingly, with
caution and care and to remedy extraordinary situations or situations
occasioning gross failure of justice; on the other hand, it is an overriding
power where under the Court may generously step in to impart justice and
remedy injustice.
13. I n Ashok Nagar Welfare Association v. R.K. Sharma MANU/SC/0791/2001 : AIR
2002 SC 335, this Court observed that even in cases where special leave is granted,
the discretionary power vested in the Court continues to remain with the Court even
at the stage when the appeal comes up for hearing.
14. Now-a-days it has become a practice of filing SLPs against all kinds of orders of
the High Court or other authorities without realizing the scope of Article 136. Hence
we feel it incumbent on us to reiterate that Article 136 was never meant to be an
ordinary forum of appeal at all like Section 96 or even Section 100 CPC. Under the
constitutional scheme, ordinarily the last court in the country in ordinary cases was
meant to be the High Court. The Supreme Court as the Apex Court in the country was
meant to deal with important issues like constitutional questions, questions of law of
general importance or where grave injustice had been done. If the Supreme Court
entertains all and sundry kinds of cases it will soon be flooded with a huge amount of
backlog and will not be able to deal with important questions relating to the
Constitution or the law or where grave injustice has been done, for which it was
really meant under the Constitutional Scheme. After all, the Supreme Court has
limited time at its disposal and it cannot be expected to hear every kind of dispute.
15. Mr. K.K. Venugopal, Senior Advocate and a very respected lawyer of this Court in
his R.K. Jain Memorial Lecture delivered on 30.01.2010 has pointed out that an
alarming state of affairs has developed in this Court because this Court has gradually
converted itself into a mere Court of Appeal which has sought to correct every error
which it finds in the judgments of the High Courts of the country as well as the vast
number of tribunals. Mr. Venugopal has further observed that this Court has strayed
from its original character as a Constitutional Court and the Apex Court of the
country. He further observed that if the Apex Court seeks to deal with all kinds of
cases, it necessarily has to accumulate vast arrears over a period of time which it will
be impossible to clear in any foreseeable future. According to him, this is a self-
inflicted injury, which is the cause of the malaise which has gradually eroded the

To say that no litigant should be turned out of the Supreme Court so long as
he has a grievance may be good populistic propaganda but the consequence
of accepting such a demand would surely defeat the great purpose for which
the Court was established under our constitutional system. It is high time we
recognize the need for the Supreme Court to entertain under Article 136 only
those cases which measure up to the significance of the national or public
importance. The effort, then, must therefore be to voluntarily cut the coat of
jurisdiction according to the cloth of importance of the question and not to
expand the same with a view to satisfy every litigant who has the means to
pursue his cause.
2 1 . Mr. Venugopal has suggested the following categories of cases which alone
should be entertained under Article 136 of the Constitution.
(i) All matters involving substantial questions of law relating to the
interpretation of the Constitution of India;
(ii) All matters of national or public importance;
(iii) Validity of laws, Central and State;
(iv) After Kesavananda Bharati, (1973) 4 SCC 217, the judicial review of
Constitutional Amendments; and
(v) To settle differences of opinion of important issues of law between High
Courts.
22. We are of the opinion that two additional categories of cases can be added to the
above list, namely (i) where the Court is satisfied that there has been a grave
miscarriage of justice and (ii) where a fundamental right of a person has prima facie
been violated. However, it is for the Constitution Bench to which we are referring this
matter to decide what are the kinds of cases in which discretion under Article 136
should be exercised.
2 3 . In our opinion, the time has now come when an authoritative decision by a
Constitution Bench should lay down some broad guidelines as to when the discretion
under Article 136 of the Constitution should be exercised, i.e., in what kind of cases a
petition under Article 136 should be entertained. If special leave petitions are
entertained against all and sundry kinds of orders passed by any court or tribunal,
then this Court after some time will collapse under its own burden.
24. It may be mentioned that in Pritam Singh v. The State MANU/SC/0015/1950 :
AIR 1950 S.C. 169 a Constitution Bench of this Court observed (vide para 9) that "a
more or less uniform standard should be adopted in granting Special Leave".
Unfortunately, despite this observation no such uniform standard has been laid down
by this Court, with the result that grant of Special Leave has become, as Mr. Setalvad
pointed out in his book ' My Life', a gamble. This is not a desirable state of affairs as
there should be some uniformity in the approach of the different benches of this
Court. Though Article 136 no doubt confers a discretion on the Court, judicial
discretion, as Lord Mansfield stated in classic terms in the case of John Wilkes,
(1770) 4 Burr 2528 "means sound discretion guided by law. It must be governed by
rule, not humour: it must not be arbitrary, vague and fanciful"
25. The Apex Court lays down the law for the whole country and it should have more

time to deliberate upon the cases it hears before rendering judgment as Mr. Justice
Frankfurter observed. However, sadly the position today is that it is under such
pressure because of the immense volume of cases in the Court that Judges do not get
sufficient time to deliberate over the cases, which they deserve, and this is bound to
affect the quality of our judgments.
26. Let notice issue to the respondents. Issue notice also to the Supreme Court Bar
Association, Bar Council of India and the Supreme Court-Advocates-on-Record
Association.
27. Since the matter involves interpretation of Article 136 of the Constitution, we feel
that it should be decided by a Constitution Bench in view of Article 145(3) of the
Constitution. Let the papers of this case be laid before Hon'ble the Chief Justice of
India for constitution of an appropriate Bench, to decide which kinds of cases should
be entertained under Article 136, and/or for laying down some broad guidelines in
this connection.
28. The Constitution Bench may also consider appointing some senior Advocates of
this Court as Amicus Curiae to assist in the matter so that it can be settled after
considering the views of all the concerned parties.

MANU/SC/0043/1957
Equivalent Citation: AIR1957SC 857, (1958) 28 AWR 112, 1959(61)BOMLR58, 1957C riLJ1346, [1958]1SC R328

Appellants:Mobarik Ali Ahmed
Vs.
Respondent:The State of Bombay
B. Jagannadhadas, P. Govinda Menon and Syed Jaffer Imam, JJ.
Case Note:
Criminal - cheating - Section 3 (2) of Extradition Act, 1870, Section 8 of
Fugitive Offenders Act, 1881 Sections 2, 3, 4, 4 (2), 34, 108-A, 177, 203,
212, 216, 216-A, 236, 415 and 420 of Indian Penal Code, 1860, Sections 5
(1) and 179 of Criminal Procedure Code, 1898 and Sections 16, 45, 47 and
88 of Indian Evidence Act, 1872 - appellant convicted for offence of
cheating and sentenced - convictions and sentences confirmed in appeal by
High Court - contract appears to have been made for payment of price in
sterling at Karachi - by subsequent arrangement payment was to be made
in Bombay in Indian currency - appellant is Pakistani national - during
entire period of commission of offence never stepped into India and was
only at Karachi - contended that he has committed no offence punishable
under the Indian Penal Code and cannot be tried by Indian Court -
statement of appellant shows that he continued to be in India till July 1950
- it appears by virtue of Article 5 of Constitution - he was citizen of India on
date of Constitution and continued to be so at the date of offence in July-
August, 1951 - unless he shows that he voluntarily acquired citizenship of
foreign State - mere migration to Pakistan is not enough to show that he
had lost Indian citizenship - even on assumption that appellant has ceased
to be Indian citizen and was Pakistani national at time of commission of
offence - he must be held guilty and punished under Indian Penal Code
notwithstanding his not being corporeally present in India at time.
JUDGMENT
B. Jagannadhadas, J.
1 . This is an appeal by special leave. The appellant before us was convicted by the
learned Presidency Magistrate. Third Court, Esplanade, Bombay, for the offence of
cheating under s. 420 read with s. 34 of the Indian Penal Code on three counts of
cheating, viz., the first relating to a sum of Rs. 81,000, the second relating to a sum
of Rs. 2,30,000, and the third relating to a sum of Rs. 2,36,900.
He was sentenced by the learned Magistrate to two years rigorous imprisonment and
a fine of Rs. 1,000 on the first count, to twenty-two months rigorous imprisonment
and a fine of Rs. 1,000 on the second count, and two months rigorous imprisonment
on the third count. It was directed that the substantive sentences only on the second

committed."
32. At p. 182 thereof it is stated as follows :
"The judicial power of every independent State, extends (with the
qualifications mentioned earlier) to the punishment of all offences against the
municipal laws of the State, by whomsoever committed, within the territory."
3 3 . In Hackworth's Digest of International Law (1941 Edition), Vol. II, at p. 188
there is reference to opinions of certain eminent American Judges. It is enough to
quote the following dictum of Holmes J. noticed therein :
"Acts done outside a jurisdiction, but intended to produce and producing
detrimental effects within it, justify a State in punishing the cause of the
harm as if he had been present at the effect, if the State should succeed in
getting him within its power."
34. In Hyde's International Law (Second Edition), Vol. I, at p. 798, the following
quotation from the judgment of the permanent Court of International Justice dated
September 7, 1927, in the case relating to S.S. Lotus [Publications, Permanent Court
of International Justice, Series A, Nos. 10, 23.] is very instructive :
"It is certain that the courts of many countries, even of countries which have
given their criminal legislation a strictly territorial character, interpret
criminal law in the sense that offences, the authors of which at the moment
of commission are in the territory of another State, are nevertheless to be
regarded as having been committed in the national territory, if one of the
constituent elements of the offence, and more especially its effects, have
taken place there."
35. This quotation is also noticed in Openheim's International Law (Eighth Ed.), Vol.
I at p. 332 in the foot-note. In noticing the provisions of International Law in this
context we are conscious that what we have to deal with in the present case is a
question merely of municipal law and not of any International Law. But as is seen
above, the principles recognised in International Law in this behalf are virtually based
on the recognition of those principles in the municipal law of various countries and is
really part of the general jurisprudence relating to criminal responsibility under
municipal law.
No doubt some of the above dicta have reference to offences actually committed
outside the State by foreigners and treated as offences committed within the State by
specific legislation. But the principle emerging therefrom is clear that once it is
treated as committed within the State the fact that he is a foreigner corporeally
present outside at the time of such commission is no objection to the exercise of
municipal jurisdiction under the municipal law. This emphasises the principle that
exercise of criminal jurisdiction depends on the locality of the offence and not on the
nationality of the alleged offender (except in a few specified cases such as
ambassadors, Princes etc.).
36. Learned counsel for the appellant has relied on various passages in the judgment
of Cockburn C.J. in the well-known case The Queen v. Keyn (Franconia's case)
(1876) 2 Ex.D. 63.. Fourteen learned Judges participated in that case and the case
appears to have been argued twice. Eight of them including Cockburn C.J. formed the
majority. Undoubtedly there are various passages in the judgment of Cockburn C.J.

which prima facie seem capable of being urged in favour of the appellant's
contention. In particular the following passage at p. 235 may be noticed :
"The question is not whether the death of the deceased, which no doubt took
place in a British ship, was the act of the defendant in such ship, but whether
the defendant, at the time the act was done, was himself within British
jurisdiction."
37. The learned Chief Justice, however, recognised at p. 237 that there were certain
American decisions to the contrary. Now the main debate in that case was whether
the sea up to three mile limit from the shore is part of British territory or whether in
respect of such three mile limit only limited and defined extra territorial British
jurisdiction extended which did not include the particular criminal jurisdiction under
consideration.
In respect of this question, as a result of the judgment, the Parliament had to enact
the Territorial Waters Jurisdiction Act, 1878 (41 & 42 Vict., c. 73) which in substance
overruled the view of the majority and of the learned Chief Justice on this point. The
main principle of criminal jurisdiction, however, relevant for our purpose was
enunciated in the minority judgment of Amphlett, J.A., at p. 118, that "it is the
locality of the offence that determines the jurisdiction" implying by contrast that it is
not the nationality of the offender.
38. The question, however, that still remains for consideration is whether there is
anything in the language of the sections of the Indian Penal Code relating to the
general scheme of the Code which compels the construction that the various sections
of the Penal Code are not intended to apply to a foreigner who has committed an
offence in India while not being corporeally present therein at the time.
For this purpose we are not concerned with such of the sections of the Penal Code, if
any, which indicate the actual presence of the culprit as a necessary ingredient of the
offence. Of course, for such offences a foreigner ex hypothesi not present at the time
in India cannot be guilty. The only general sections of the Indian Penal Code which
indicate its scheme in this behalf are Sections 2, 3, and 4 and as they stand at
present, they are as follows :
"2. Every person shall be liable to punishment under this Code and not
otherwise for every act or omission contrary to the provisions thereof, of
which he shall be guilty within India.
3. Any person liable, by any Indian law, to be tried for an offence committed
beyond India shall be dealt with according to the provisions of this Code for
any act committed beyond India in the same manner as if such act had been
committed within India.
4. The Provisions of this Code apply also to any offence committed by -
(1) any citizen of India in any place without and beyond India;
(2) any person on any ship or aircraft registered in India wherever it
may be.
Explanation :- In this section the word 'offence' includes every act committed
outside India which, if committed in India, would be punishable under this

the present day in accordance with the notions of criminal jurisdiction prevailing at
the time when the Code was enacted. The notions relating to this matter have very
considerably changed between then and now during nearly a century that has
elapsed. It is legitimate to construe the Code with reference to the modern needs,
wherever this is permissible, unless there is anything in the Code or in any particular
section to indicate the contrary.
45. After giving our careful consideration to the questions raised before us, we are
clearly of the opinion that even on the assumption that the appellant has ceased to be
an Indian citizen and was a Pakistani national at the time of the commission of the
offence, he must be held guilty and punished under the Indian Penal Code
notwithstanding his not being corporeally present in India at the time.
46. We have been asked to consider the question of sentence. As has been stated at
the outset the substantive sentences of imprisonment are two years under the first
count and twenty-two months under the second. The sentences were concurrent on
the second and third counts. As a result, the total imprisonment which has been
awarded against the appellant would be a period of three years and ten months. We
are not prepared to say that the discretion of the trial court in awarding that sentence
has been wrongly exercised.
47. The appeal is accordingly dismissed.

MANU/SC/0093/1982
Equivalent Citation: AIR1983SC 158, 1983C riLJ172, 1982(2)SC ALE1118, (1983)1SC C 9, [1983]1SC R895

Appellants: Municipal Corporation of Delhi
Vs.
Respondent: Purshotam Dass Jhunjunwala and Ors.
E.S. Venkataramiah and S. Murtaza Fazal Ali, JJ.
Counsels:
For Appellant/Petitioner/Plaintiff: B.P. Maheshwari, Adv
For Respondents/Defendant: V.S. Desai and Arvind Minocha, Advs.
JUDGMENT
1. This appeal by special leave is directed against a judgment dated 5.3.1980 of the
Delhi High Court by which the High Court quashed the proceedings taken by the
Municipal Corporation of Delhi against respondent Nos. 1 to 11. This is a case where
the facts are almost identical with the facts of Criminal appeal No. 701 of 1980 which
we have decided today, with a vital difference which we shall point out hereafter.
2. In this case also, Shri M.M. Gupta, Food Inspector in the Municipal Corporation of
Delhi purchased a sample of milk toffees from the shop of Jagdish Chander Mehta
situate at Lajpat Nagar, New Delhi. The milk toffees which were purchased by the
food inspector were found to be adulterated by the Public Analyst. The toffees in this
case were manufactured by Hindustan Sugar Mills, 51, Mahatma Gandhi Road,
Bombay. A complaint was filed before the Metropolitan Magistrate against accused
Nos. 1 to 12 under Sections 7/16/17 of the Prevention of Food Adulteration Act
mentioning the facts stated above.
3 . The High Court was of the view that the complaint did not disclose any offence
and adopting a similar line of reasoning, as in criminal appeal No. 701 of 1980,
quashed the proceedings against respondent Nos. 1 to 11. We have already dealt with
the law on the subject in our decision in criminal appeal No. 701 of 1980, a copy of
which is placed on the file of this case. The relevant allegations against the accused-
respondents are to be found in para 5 of the complaint which may be extracted thus:
5. That accused Ram Krishan Bajaj is the Chairman, accused R.P. Neyatia is
the Managing Director and accused Nos. 7 to 12 are the Directors of the
Hindustan Sugar Mills Ltd. and were in charge of and responsible to it for the
conduct of its business at the time of commission of offence.
4. Unlike the other case, para 5 of the complaint of this case gives complete details
of the role played by the respondents and the extent of their liability. It is clearly
mentioned that Ram Krishan Bajaj is the Chairman and R.P. Neyatia is the Managing
Director and respondents 7 to 11 are the Directors of the Mill and were incharge of

and responsible for the conduct of its business at the time of the commission of the
offence whereas in the other case the complaint has merely drawn a presumption
without any averment.
5 . In the instant case, a clear averment has been made regarding the active role
played by the respondents and the extent of their liability. In this view of the matter,
it cannot be said that para 5 of the complaint is vague and does not implicate
respondents 1 to 11. As to what would be the evidence against the respondents is not
a matter to be considered at this stage and would have to be proved at the trial, We
have already held that for the purpose of quashing the proceedings only the
allegations set forth in the complaint have to be seen and nothing further.
6. From a perusal of the various clauses of the complaint, including para 5, it is quite
clear that a prima facie case for summoning the accused has been made out and the
High Court was absolutely wrong in holding that the allegations made in para 5 are
vague. The High Court failed to consider that the allegations were quite clear and
explicit so as to be sufficient for taking cognizance of the offence against the
accused.
7 . Further details would have to be given in the shape of evidence when the trial
proceeds and in view of the clear allegations made in para 5 of the complaint, we are
not in a position to agree with the High Court that it is a fit case in which it should
have exercised its discretion under Section 482 of the Code of Criminal Procedure,
1973 in order to quash the proceedings against the accused-respondents.
8. For these reasons, therefore, we allow this appeal, set aside the judgment of the
High Court and restore that of the Metropolitan Magistrate as a result of which all the
accused will now be summoned and placed for trial in accordance with law.

MANU/SC/0094/1982
Equivalent Citation: 1982(7)AC R114(SC ), AIR1983SC 67, 1983C riLJ159, 1982(2)SC ALE1124, (1983)1SC C 1, [1983]1SC R884

Appellants: Municipal Corporation of Delhi
Vs.
Respondent: Ram Kishan Rohtagi and Ors.
E.S. Venkataramiah and S. Murtaza Fazal Ali, JJ.
Counsels:
For Appellant/Petitioner/Plaintiff: B.P. Maheshwari, Adv
For Respondents/Defendant: M.C. Bhandari, Madhu Moolchandani, R.B. Datar, Fali
Sam Nariman and Parveen Kumar Jani, Advs.
Case Note:
Criminal - Adulteration - Sections 7 and 16 of Prevention of Food
Adulteration Act, 1954 and Section 482 of Criminal Procedure Code, 1973 -
Toffees manufactured by X company was found to be not conforming to the
standards prescribed for toffees - Respondent No. 1 was manager and
respondents No. 2 to 5 were directors of X company - Respondents charged
for offences under Sections 7 and 16 - On appeal High Court quashed the
proceedings against respondents - Hence, present appeal - High Court will
be justified in quashing the proceedings in exercise of power under Section
482 if no offence is made out from the complaint without adding or
subtracting anything from it - Respondent No. 1 being manager of company
from the very nature of his duties can be vicariously liable for the offence
but there was no evidence against respondents No. 2 to 5 who were
directors of company to infer that they could also be vicariously liable -
Held, Quashing of proceedings against respondent No. 1 set aside while
quashing of proceedings against respondent No. 2 to 5 allowed - Matter left
at the discretion of Court - If prosecution at any stage produces evidences
which satisfies the Court that the other accused or those who have not
been arrayed as accused against whom proceedings have been quashed
have also committed the offence the Court can take cognizance against
them and try them along with the other accused.
JUDGMENT
S. Murtaza Fazal Ali, J.
1. This appeal by special leave is directed against a judgment dated March 5, 1980 of
the Delhi High Court quashing the proceedings taken against respondents Nos. 1 to 5
and arises in the following circumstances.
2 . On March 25, 1974, one Shri M.M. Gupta, Food Inspector, Municipal Corporation
of Delhi visited premises No. 5171, Basant Road, Delhi where Shri Madan Lal had

The cases mentioned by us are purely illustrative and provide sufficient
guidelines to indicate contingencies where the High Court can quash
proceedings.
9 . Same view was taken in a later decision of this Court in Sharda Prasad Sinha v.
State of Bihar MANU/SC/0110/1976 : 1977CriL J1146 where Bhagwati, J. speaking for
the Court observed as follows:
it is, now settled law that where the allegations set out in the complaint or
the chargesheet do not constitute any offence, it is competent to the High
Court exercising its inherent jurisdiction under Section 482 of the CrPC to
quash the order passed by the Magistrate taking cognizance of the offence.
10. It is, therefore, manifestly clear that proceedings against an accused in the initial
stages can be quashed only if on the face of the complaint or the papers
accompanying the same, no offence is constituted. In other words, the test is that
taking the allegations and the complaint as they are, without adding or subtracting
anything, if no offence is made out then the High Court will be justified in quashing
the proceedings in exercise of its powers under Section 482 of the present Code.
11. In the instant case, the argument of the appellant before us is that taking the
complaint as a whole, it cannot be said that no offence is made out or that the facts
mentioned in the complaint do not constitute any offence against the respondents or
some of them. On the other hand, the counsel for the respondents submitted that
even taking the allegations of the complaint ex facie no case for trial has been made
out at all.
12. Before going to the complaint, we might state that it is common ground that the
complaint clearly contains the allegations regarding the visit of the Inspector to the
shop of respondent No. 6 (Madan Lal) and that the sample taken by him, which was
sent to the Public Analyst, was manufactured by Upper Ganges Sugar Mills,
Daryagang, Delhi having its registered office at Calcutta and that the Public Analyst
found the samples to be adulterated. There is no dispute regarding these facts. The
only point on which the controversy centers is as to whether or not on the
allegations, the Manager as also the other respondents 1 to 5 committed any offence.
The main clause of the complaint which is the subject matter of the dispute is Clause
No. 5 which may be extracted thus :
5. That the accused No. 3 is the Manager, of accused No. 2 and accused No.
4 to 7 are the Directors of accused No. 2 and as such they were incharge of
and responsible for the conduct of business of accused No. 2 at the time of
sampling.
13. According to this clause, accused No. 3 (Ram Kishan) who is respondent No. 1 in
this appeal and accused Nos. 4-7 who are respondent Nos. 2 to 4, were the Directors
of the company, respondent No. 5. So far as the Manager, respondent No. I, is
concerned it was not and could not be reasonably argued that no case is made out
against him because from the very nature of his duties, it is manifest that he must be
in the knowledge about the affairs of the sale and manufacture of the disputed
sample. It was, however, contended that there is no allegation whatsoever against
the Directors, respondent Nos. 2 to 4.
14. Reliance has been placed on the words 'as such' in order to argue that because
the complaint does not attribute any criminal responsibility to accused Nos. 4 to 7

(4) Where the Court proceeds against any person under Sub-section
(1) then-
(a) the proceedings in respect of such person shall be
commenced afresh, and the witnesses re-heard;
(b) subject to the provisions of Clause (a), the case may
proceed as if such person had been an accused person when
the Court took cognizance of the offence upon which the
inquiry or trial was commenced.
18. This provision gives ample powers to any court to take cognizance and add any
person not being an accused before it and try him alongwith the other accused. This
provision was also the subject matter of a decision by this Court in Joginder Singh
and Anr. v. State of Punjab and Anr. MANU/SC/0103/1978 : 1979CriL J333 where
Tulzapurkar, J., speaking for the Court observed thus :
A plain reading of Section 319(1), which occurs in chapter XXIV dealing with
general provisions as to inquiries and trials, clearly shows that it applies to
all the Courts including a Sessions Court and as such a Sessions Court will
have the power to add any person, not being the accused before it, but
against whom there appears during trial sufficient evidence indicating his
involvement in the offence, as an accused and direct him to be tried along
with the other accused.
19. In these circumstances, therefore, if the prosecution can at any stage produce
evidence which satisfies the court that the other accused or those who have not been
arrayed as accused against whom proceedings have been quashed have also
committed the offence the Court can take cognizance against them and try them
along with the other accused. But, we would hasten to add that this is really an
extraordinary power which is conferred on the Court and should be used very
sparingly and only if compelling reasons exist for taking cognizance against the other
person against whom action has not been taken. More than this we would not like to
say anything further at this stage. We leave the entire matter to the discretion of the
court concerned so that it may act according to law. We would, however, make it
plain that the mere fact that the proceedings have been quashed against respondent
Nos. 2 to 5 will not prevent the court from exercising its discretion if it is fully
satisfied that a case for taking cognizance against them has been made out on the
additional evidence led before it.
20. For these reasons, therefore, we allow this appeal only to the extent that the
order of the High Court quashing the proceedings against the Manager (Rohtagi),
respondent No. 1, is hereby set aside and that of the Metropolitan Magistrate is
restored. As regards the other respondents (Directors) the order of the High Court
stands and the appeal in respect of these respondents only will stand dismissed. An
attested copy of this judgment be placed on the file of criminal appeal No. 749 of
1980.

MANU/SC/0235/2014
Equivalent Citation: 2014iv AD (S.C .) 581, 2014(2)AJR714, 2014ALLMR(C ri)1886, II(2014)C C R123(SC ), 2014C riLJ2436,
2014(2)C rimes67(SC ), ILR2014(2)Kerala85, 2014(2)JC C 1360, JT2014(4)SC 573, 2014(2)KLJ252, 2014-2-LW(C rl)453, 2014(2)MLJ(C rl)365,
2014(1)N.C .C .533, 2014(I)OLR1035, 2014(I)OLR(SC )1035, 2014(2)RC R(C riminal)482, 2014(4)SC ALE195, (2014)6SC C 466, 2014 (5) SC J 156

Criminal Appeal No. 686/2014 (Arising out of S.L.P. (Criminal) No. 9547 of 2013)
Appellants: Narinder Singh and Ors.
Vs.
Respondent: State of Punjab and Ors.
K.S. Panicker Radhakrishnan and A.K. Sikri, JJ.
Case Note:
A. Criminal Procedure Code, 1973 - Section 482 and Indian Penal Code,
1860 - Section 307 - Quashing of criminal proceedings on the basis of
settlement - It would be open to the High Court to examine whether the
prosecution has collected sufficient evidence to prove the charge under S.
307 IPC. If there is a strong possibility of conviction, the High Court may
not accept the settlement and quash the criminal proceedings. It would be
permissible for the High Court to accept the plea of compounding, if
chances of conviction are bleak.
B. Criminal Procedure Code, 1973 - Section 482 - Quashing of Criminal
Proceedings on the basis of settlement - Timing of settlement - Importance
- Where the settlement is arrived at immediately after the commission of
offence and the matter is still under investigation, the High Court may
accept the settlement. Likewise, where the charge is framed but the
evidence is yet to start, or the evidence is still at infancy stage, the Court
may permit settlement.
C. Criminal Procedure Code, 1973 - Section 482 - Guidelines issued to
quash the proceedings in cases where the offenses involved are non-
compoundable.
JUDGMENT
A.K. Sikri, J.
1 . The present Special Leave Petition has been preferred against the impugned
judgment/final order dated 8.10.2013 passed by the High Court of Punjab and
Haryana at Chandigarh in Criminal Miscellaneous Petition No. 27343/2013. It was a
petition under Section 482 of the Code of Criminal Procedure (hereinafter referred to
as the "Code") for quashing of FIR No. 121/14.7.2010 registered under Sections
307/324/323/34, Indian Penal Code, on the basis of compromise dated 22.7.2013
entered into between the Petitioners (who are accused in the said FIR) and
Respondent No. 2 (who is the complainant). The High Court has refused to exercise
its extraordinary discretion invoking the provisions of Section 482 of the Code on the

13. Apart from narrating the interplay of Section 320 and Section 482 of the Code in
the manner aforesaid, the Court also described the extent of power under Section 482
of the Code in quashing the criminal proceedings in those cases where the parties
had settled the matter although the offences are not compoundable. In the first
instance it was emphasized that the power under Section 482 of the Code is not to be
resorted to, if there is specific provision in the Code for redressal of the grievance of
an aggrieved party. It should be exercised very sparingly and should not be exercised
as against the express bar of law engrafted in any other provision of the Code. The
Court also highlighted that in different situations, the inherent power may be
exercised in different ways to achieve its ultimate objective. Formation of opinion by
the High Court before it exercises inherent power under Section 482 on either of the
twin objectives, (i) to prevent abuse of the process of any court, or (ii) to secure the
ends of justice, is a sine qua non.
14. As to under what circumstances the criminal proceedings in a non-compoundable
case be quashed when there is a settlement between the parties, the Court provided
the following guidelines:
Where the High Court quashes a criminal proceeding having regard to the
facts that the dispute between the offender and the victim has been settled
although the offences are not compoundable, it does so as in its opinion,
continuation of criminal proceedings will be an exercise in futility and justice
in the case demands that the dispute between the parties is put to an end
and peace is restored; securing the ends of justice being the ultimate guiding
factor. No doubt, crimes are acts which have harmful effect on the public and
consist in wrongdoing that seriously endangers and threatens the well-being
of the society and it is not safe to leave the crime-doer only because he and
the victim have settled the dispute amicably or that the victim has been paid
compensation, yet certain crimes have been made compoundable in law, with
or without the permission of the court. In respect of serious offences like
murder, rape, dacoity, etc. or other offences of mental depravity under
Indian Penal Code or offences of moral turpitude under special statutes, like
the Prevention of Corruption Act or the offences committed by public servants
while working in that capacity, the settlement between the offender and the
victim can have no legal sanction at all. However, certain offences which
overwhelmingly and predominantly bear civil flavor having arisen out of civil,
mercantile, commercial, financial, partnership or such like transactions or the
offences arising out of matrimony, particularly relating to dowry, etc. or the
family dispute, where the wrong is basically to the victim and the offender
and the victim have settled all disputes between them amicably, irrespective
of the fact that such offences have not been made compoundable, the High
Court may within the framework of its inherent power, quash the criminal
proceeding or criminal complaint or FIR if it is satisfied that on the face of
such settlement, there is hardly any likelihood of the offender being
convicted and by not quashing the criminal proceedings, justice shall be
casualty and ends of justice shall be defeated. The above list is illustrative
and not exhaustive. Each case will depend on its own facts and no hard-and-
fast category can be prescribed.
Thereafter, the Court summed up the legal position in the following words:
The position that emerges from the above discussion can be summarized
thus: the power of the High Court in quashing a criminal proceeding or FIR

or complaint in exercise of its inherent jurisdiction is distinct and different
from the power given to a criminal court for compounding the offences under
Section 320 of the Code. Inherent power is of wide plentitude with no
statutory limitation but it has to be exercised in accord with the guidelines
engrafted in such power viz.: (i) to secure the ends of justice, or (ii) to
prevent abuse of the process of any court. In what cases power to quash the
criminal proceeding or complaint or FIR may be exercised where the offender
and the victim have settled their dispute would depend on the facts and
circumstances of each case and no category can be prescribed. However,
before exercise of such power, the High Court must have due regard to the
nature and gravity of the crime. Heinous and serious offences of mental
depravity or offences like murder, rape, dacoity, etc. cannot be fittingly
quashed even though the victim or victim's family and the offender have
settled the dispute. Such offences are not private in nature and have a
serious impact on society. Similarly, any compromise between the victim and
the offender in relation to the offences under special statutes like the
Prevention of Corruption Act, or the offences committed by public servants
while working in that capacity, etc.; cannot provide for any basis for
quashing criminal proceedings involving such offences. But the criminal
cases having overwhelmingly and predominatingly civil flavor stand on a
different footing for the purposes of quashing, particularly the offences
arising from commercial, financial, mercantile, civil, partnership or such like
transactions or the offences arising out of matrimony relating to dowry, etc.
or the family disputes where the wrong is basically private or personal in
nature and the parties have resolved their entire dispute. In this category of
cases, the High Court may quash the criminal proceedings if in its view,
because of the compromise between the offender and the victim, the
possibility of conviction is remote and bleak and continuation of the criminal
case would put the accused to great oppression and prejudice and extreme
injustice would be caused to him by not quashing the criminal case despite
full and complete settlement and compromise with the victim. In other
words, the High Court must consider whether it would be unfair or contrary
to the interest of justice to continue with the criminal proceeding or
continuation of the criminal proceeding or continuation of the criminal
proceeding would tantamount to abuse of process of law despite settlement
and compromise between the victim and the wrongdoer and whether to
secure the ends of justice, it is appropriate that the criminal case is put to an
end and if the answer to the above question(s) is in the affirmative, the High
Court shall be well within its jurisdiction to quash the criminal proceeding.
15. The Court was categorical that in respect of serious offences or other offences of
mental depravity or offence of merely dacoity under special statute, like the
Prevention of Corruption Act or the offences committed by Public Servant while
working in that capacity. The mere settlement between the parties would not be a
ground to quash the proceedings by the High Court and inasmuch as settlement of
such heinous crime cannot have imprimatur of the Court.
16. The question is as to whether offence under Section 307 Indian Penal Code falls
within the aforesaid parameters. First limb of this question is to reflect on the nature
of the offence. The charge against the accused in such cases is that he had attempted
to take the life of another person (victim). On this touchstone, should we treat it a
crime of serious nature so as to fall in the category of heinous crime, is the poser.

aspect. It appears that there have been some disputes which led to the aforesaid
purported attack by the accused on the complainant. In this context when we find
that the elders of the village, including Sarpanch, intervened in the matter and the
parties have not only buried their hatchet but have decided to live peacefully in
future, this becomes an important consideration. The evidence is yet to be led in the
Court. It has not even started. In view of compromise between parties, there is a
minimal chance of the witnesses coming forward in support of the prosecution case.
Even though nature of injuries can still be established by producing the doctor as
witness who conducted medical examination, it may become difficult to prove as to
who caused these injuries. The chances of conviction, therefore, appear to be remote.
It would, therefore, be unnecessary to drag these proceedings. We, taking all these
factors into consideration cumulatively, are of the opinion that the compromise
between the parties be accepted and the criminal proceedings arising out of FIR No.
121 dated 14.7.2010 registered with Police Station LOPOKE, District Amritsar Rural
be quashed. We order accordingly.
36. Appeal is allowed. No costs.

MANU/FE/0005/1942
Equivalent Citation: 1942F.C .R.38, 1942 MWN 417
BEFORE THE FEDERAL COURT

Appellants: Niharendu Dutt Majumdar
Vs.
Respondent: The King Emperor
Maurice Gwyer, C.J., Srinivasa Varadachariar and Muhammad Zafrulla Khan, JJ.
Counsels:
For Appellant/Petitioner/Plaintiff: Ganpat Rai
For Respondents/Defendant: B. Banerji and K.Y. Bhandarkar for Government of India
JUDGMENT
Maurice Gwyer, C.J.
1 . In this case the Appellant was convicted by the Additional Chief Presidency
Magistrate at Calcutta on the 21st of July, 1941, of offences under sub-paragraphs
(e) and (k) of paragraph (6) of Rule 34 of the Defence of India Rules, and was
sentenced to be detained till the rising of the Court and to pay a fine of Rs. 500, and
in default to undergo six months' rigorous imprisonment. This conviction and
sentence was upheld on appeal by the High Court, and the Appellant now appeals to
the Federal Court. He has taken a number of points in his appeal, but those argued
before us were only three in number. There was first of all a constitutional point,
secondly, a point on the law of evidence, and lastly, the point whether the speech
which formed the basis of the charge against him justified a conviction at all. The last
two matters would not ordinarily be within the competence of this Court to
determine; but, since a certificate has been given by the High Court under Section
205(1) of the Constitution Act, the Appellant is entitled with the leave of this Court to
raise any point in his own defence.
2 . The constitutional matter is of such minute dimensions as not to be readily
discerned; but, if we have been able to understand it, it is this. By Section 102 of the
Constitution Act, if the Governor-General has issued a Proclamation declaring that a
grave emergency exists, whereby the security of India is threatened, whether by war
or internal disturbance, the Federal Legislature has power to make laws for a Province
or any part thereof with respect to any of the matters enumerated in the Provincial
Legislative List. Such a Proclamation was in fact issued by His Excellency on
September 3rd, 1939, on receipt of information from His Majesty's Government in the
United Kingdom that a state of war existed between His Majesty and Germany; and
on September 29th, 1939, the Defence of India Act, 1939 Cotrl Act No. XXXV of
1939., was enacted. Before that date however the Governor-General had promulgated
the Defence of India Ordinance, 1939, under the powers given him by Section 72 of
the former Government of India Act, one of the sections of the Act continued for the
time being by Section 317 and the Ninth Schedule of the present Act. An Ordinance
promulgated under this power ceases to operate at the expiration of six months from

any longer for them, only anarchy can follow. Public disorder, or the reasonable
anticipation or likelihood of public disorder, is thus the gist of the offence. The acts
or words complained of must, either incite to disorder or must be such as to satisfy
reasonable men that that is their intention or tendency.
1 7 . Such appear to us to be the broad principles underlying the conception of
sedition as an offence against the State; and it is obvious that occasions may arise
when it will not be easy to draw a distinction between certain aspects even of a
constitutional agitation and acts which are admittedly seditious. The Courts however
know no such thing as a political offence, as it is sometimes called, and must
administer the law as they find it. There will always be borderline cases where the
line between what is lawful and what is unlawful is hard to define; but we believe
that, if the essential principles which we have sought to enunciate above are borne in
mind, and if the Courts, as we have suggested, assume in part the functions of
jurymen when they hear these cases, they will generally be able to come to a
decision not only in harmony with the true principles of the law, but also not
obnoxious "to commonsense and the circumstances of the time. And in holding the
scales evenly between Government and citizen they will be forgetful neither of the
obligations of the one towards the public at large nor of the individual and private
rights of the other; for the preservation of order is a thing in which all citizens have
an interest no less than in the maintenance of freedom of speech and the right to
criticise all matters of public interest.
18. Having thus stated what we conceive to be the principles of law applicable to the
case, we turn now to the speech itself on which the Appellant's conviction was based.
It was delivered at a meeting held to commemorate an unhappy incident which
occurred 23 years ago, and which was referred to in a manner not uncommon in
utterances of this kind. But it is plain that the occasion was used by the speaker not
so much to commemorate the incident in question as to launch an attack upon the
then Fazlul Huq Ministry and the Governor of Bengal for their acts or omissions in the
mattsr of the Dacca riots. This was the main theme of the speech, which upbraided
the Ministry for their alleged use or misuse of the Police forces, and the Governor
himself for his alleged disregard of the special responsibility for the maintenance of
law and order in the Province imposed upon him by the Constitution Act; and which
demanded that Ministry and Governor should pay compensation to the sufferers at
Dacca out of their own pockets. The High Court were impressed by a passage in
which they say that the Appellant "suggested to his audience that the Governor of
Bengal in person and the Ministers of the Bengal Government were encouraging
communal disturbances and were discouraging all persons who sought to put an end
to communal disturbances" but, though we have searched diligently, we cannot find
this passage. The Appellant's complaint, as we read the speech, is that the
Government took no steps, or took inadequate steps, because they were an inefficient
Government, not because they were anxious for some reason or other themselves to
promote communal riots and disturbances. It is true that in the course of his
observations the Appellant indulged in a good deal of violent language and seems to
have worked himself up to such a state of excitement that the sequence of his
argument is in places very difficult to follow. The speech was, we feel bound to
observe, a frothy and irresponsible performance, such as one would not have
expected from a member of the Bengal Legislature; but in our opinion to describe it
as an act of sedition is to do it too great honour.
19. There is an English saying that hard words break no bones; and the wisdom of
the common law has long refused to regard as actionable any words which, though

disaffection'. It is difficult to read his judgment as discussing the charge under sub-
paragraph (k) independently of the charge under sub-paragraph (e), or as recording
a conviction of the Appellant under sub-paragraph (k), apart from the conviction
under sub-paragraph (e). In these circumstances we do not think it necessary or
proper to deal with the charge under sub-paragraph (k).
2 2 . Accordingly, having regard to the conclusion at which we have arrived with
regard to the conviction under sub-paragraph (e), we are of opinion that the appeal
should be allowed and the Appellant acquitted.

MANU/RH/0093/1991
Equivalent Citation: 1993C riLJ1274
IN THE HIGH COURT OF RAJASTHAN (JAIPUR BENCH)

Criminal Misc. Petn. No. 281 of 1989
Appellants: Nunaram and Ors.
Vs.
Respondent: State of Rajasthan and Ors.
Farooq Hasan, J.
Counsels:
For Appellant/Petitioner/Plaintiff: S.R. Bajwa, R.S. Rathore and M.L. Kumawat, Advs.
Case Note:
Criminal - Quashing of Proceeding - Sections 120B, 147, 148, 149, 302, 342
a n d 364 of Indian Penal Code, 1860(IPC) and Section 204 of Criminal
Procedure Code, 1973(CR PC) - Present petition filed against order whereby
taken cognizance under Sections 120B, 147, 148, 149, 302, 342 and 364 of
IPC - Held, on private complaint had been given nearly after two months of
FIR lodged in with police - Petitioners 8 to 18 have been shown as having
participated in incident and Petitioners 1 to 7 as having further committed
offences other than police case offences - Some of Petitioners were figured
as prosecution witnesses in other FIR of same transaction of crime in
question that has been filed against witnesses - Intrinsic value of
statements was very little but it cannot be overlooked that Petitioners was
neither sufficient reason for ground within provision of Section 204 of Cr PC
- Intrinsic value of complaint and evidence recorded thereon makes no
prima facie acceptable - Therefore it was circumstance not connecting
Petitioners with imputation - Complaint and evidence did not disclose any
alleged offence - Therefore petition allowed and proceeding and impugned
order quashed
ORDER
1. By this miscellaneous petition under Section 482, Cr.P.C. the petitioners (namely,
Nunaram, Rameshwar, Bhagirath, Subh Karan, Birju, Mangaram, Jagdish, Ram
Kunwar, Birbal, Ganesharam, Hari Singh, Birju (s/o Hari Singh), Girdhari, Narsa Ram,
Hanuman (s/o Asharam), Phoolaram alias Harphool, Bhanwarlal and Smt. Jeevani)
praying for quashing of an order dated the 31st March, 1989 passed by the Munsif-
cum-Judicial Magistrate, Fatehpur whereby he took cognizance against the petitioners
in Cr. Case No. 70/88.
2. Criminal Case No. 70/ 88 arises out of a complaint having been filed on November
16, 1988 by respondent, Bhagwana Ram, against the petitioners. Bhagwana Ram
(under Section 200, Cr.P.C.) and others namely, Hariram, Ramlal, Harlal, Chandra
Ram, Birbal and Narain Singh (ASI) (under Section 202, Cr.P.C.) were examined.
Thereafter, under impugned order dated 31-3-1989, cognizance has been taken

(Delhi Admn.) MANU/SC/0210/1979 : AIR 1980 SC 258 : (1980 Cri L J 202); Delhi
Municipality v. Ram Kishan MANU/SC/0094/1982 : AIR 1983 SC 67 : (1983 Cri L J
159) and L.V. Jadhav v. Shankararao MANU/SC/0116/1983 : AIR 1983 SC 1219 :
(1983 Cri L J 1501). From the precedents in the cases (supra), it is trite law that two
jurisdictions (under Sections 397 and 482, Cr.P.C.) operate in different spheres and
have different parameters. Section 482, Cr.P.C. confers a separate and independent
power on the High Court alone to pass order ex debito justitia in cases where grave
injustice has been done or where the process of the Court is seriously abused. In
Smt. Magawwa v. Veeranna Shivalingappa Konjalgi MANU/SC/0173/1976 : AIR 1976
SC 1947 : (1976 Cri L J 1533) and in Delhi Municipality v. Ram Kishan (supra), the
Apex Court laid down that an order of the Magistrate issuing process against the
accused can be quashed or set aside in exercise of powers under Section 482,
Cr.P.C.:
(1) Where the allegations made in the complaint or the statements of the
witnesses recorded in support of the same taken at their face value make out
absolutely no case against the accused or the complaint does not disclose the
essential ingredients of an offence which is alleged against the accused;
(2) Where the allegations made in the complaint are patently absurd and
inherently improbable so that no prudent person can ever reach a conclusion
that there is sufficient ground for proceeding against the accused;
(3) Where the discretion exercised by the Magistrate in issuing process is
capricious and arbitrary, having been based either on no evidence or on
materials which are wholly irrelevant or inadmissible; and
(4) Where the complaint suffers from fundamental legal defects, such as,
want of sanction, or absence of complaint by legally competent authority and
the like.
8. Verily, the test laid down is that taking the allegations and the complaint as they
are, without adding or subtracting anything, if no offence is made out then the
proceedings can be quashed by invocation of Section 482, Cr.P.C. by this Court so as
to prevent the abuse of the process of the Court. But, in such cases, the Court will
not readily accept the applicant's prayer and quash proceedings, and what is to be
remembered for the Court is that there will be no question of appreciating evidence
and it is a matter merely of looking at the complaint or the first information report to
decide whether the offence alleged is disclosed or not. In other words, these powers
are not appellate and there will be neither any meticulous consideration of evidence
and materials nor any premature assessment of evidence by Court (as laid down in
Mohd. Akbar Dar v. State of Jammu and Kashmir MANU/SC/0182/1981 and State of
Bihar v. Ramesh Singh (1978) 1 SCR 257 :MANU/SC/0139/1977, duly approved by
three Judges Bench of the Apex Court in Radhey Shyam v. Kunj Behari (1990) 1
Crimes 106 : (1990 Cri L J 668). Viewed thus, this Court though does not lack
jurisdiction to entertain 482 petitions but, 482 powers are intended to be sparingly
used under compelling circumstances.
9. Now I advert to the present controversy on the point whether the Magistrate could
re-take cognizance of the offence on a complaint made to him, particularly when he
had already taken it of the same offence on police report against some of the accused
also named in the complaint, which was filed after the challan was filed and the
Magistrate had already taken cognizance of the offence against them upon police

complaint in the case at hand that had been given nearly after two months of the
F.I.R. lodged in with the police, the petitioners Nos. 8 to 18 have been shown as
having participated in the incident and petitioners Nos. 1 to 7 as having further
committed offences other than police case offences. Some of the present petitioners
are figured as prosecution witnesses in F.I.R. No. 94/88 lodged in by Bhagirath Mal
(petitioner) of the same transaction of the crime in question, that has been filed
against the witnesses who have been examined under Section 202, Cr. P.C. in the
complaint case at hand. In F.I.R. No. 94/88 the deceased and the witnesses examined
under Section 202, Cr. P.C. in the complaint case at hand, have been shown as
intruders in doing incriminating act of the alleged offences therein.
31. I am also conscious of the law that the intrinsic value of the statements under
Section 202, Cr. P.C. is very little. But it cannot be overlooked that mere ipse dixit of
the petitioners is neither sufficient reason for ground within this provision of Section
204, Cr. P.C. In my opinion, the intrinsic value of the complaint and the evidence
recorded thereon makes no prima facie acceptable and therefore it is a circumstance
not connecting the petitioners with the imputation. That apart, since vague
allegations against the petitioners even if accepted, it would be an abuse of process
of the Court to face trial which is known to be long drawn and bitterly contested.
3 2 . The complaint and the evidence do not disclose any alleged offence at all.
Consideration of intrinsic value of the evidence, therefore, makes it difficult for this
Court to discover sufficient ground in this complaint case as required under Section
204, Cr. P.C. In this view of the matter, the continuation of any further proceedings
in complaint case No. 70/88 pending before Judicial Magistrate, Fatehpur, would be
nothing but an abuse of the process of the Court and deserves to be quashed.
33. For the reasons (ut supra), this application under Section 482, Cr. P.C. succeeds
and is allowed. The proceedings before Judicial Magistrate, Fatehpur in criminal
complaint case No. 70/88 (Bagwanaram v. Nunaram and Ors.) are hereby quashed,
so far as they relate to the petitioners herein are concerned for the offences under
which process was issued by the subordinate Magistrate under the impugned order
which is also quashed. However, it is made clear that the proceedings against the
petitioners Nos. 1 to 7 in police case under F.I.R. No. 95/88 out of which cr. original
case No. 222/8 (State v. Nunaram etc.) is pending before the Judicial Magistrate,
Fatehpur Sekhawati, will continue in accordance with law and whatever the
observations have been made in this order at hand by me are only prima facie in
nature on the merits of the complaint case for the purpose of deciding this criminal
misc. petition only, and will, in no way affect the merits of the police case at any
subsequent stage of the proceedings therein.

MANU/SC/1002/2004
Equivalent Citation: 2005(1)AC R240(SC ), AIR2005SC 392, 2005(1)ALD(C ri)438, 2005(1)ALD438(SC ), 99(2005)C LT378(SC ),
[2005]123C ompC as234(SC ), 2005C riLJ665, 2004(4)C rimes393(SC ), JT2004(10)SC 185, 2005(2)KLJ364, 2005(1)KLT111(SC ), 2005(2)MhLj442,
2005(2)MhLJ443(SC ), 2005(1)RC R(C riminal)293, 2004(9)SC ALE655, (2005)1SC C 617

S.L.P. (Crl.) No. 99 of 2004
Appellants: Om Hemrajani
Vs.
Respondent: State of U.P. and Ors.
Y.K. Sabharwal and D.M. Dharmadhikari, JJ.
Counsels:
For Appellant/Petitioner/Plaintiff: Vijay Kotwal Sr. Adv.
For Respondents/Defendant: V.A. Bobde Sr. Adv.
JUDGMENT
Y.K. Sabharwal, J.
1. The interpretation of Section 188 of the Code of Criminal Procedure, 1973 (Code)
falls for determination in this petition. The said section reads as under:
1 8 8 . Offence committed outside India - When an offence is committed
outside India-
(a) by a citizen of India, whether on the high seas or elsewhere: or
(b) by a person, not being such citizen, an any ship or aircraft
registered in India.
he may be dealt with in respect of such offence as if it had been committed
at any place within India at which he may be found:
Provided that, notwithstanding anything in any of the proceeding
sections of this Chapter, no such offence shall be inquired into or
tried in India except with the previous sanction of the Central
Government.
The sole question is about the interpretation of the expression 'at which he may be
found; in the aforesaid section. On whom, under Section 188, does the responsibility
to find the accused lies-the complainant, the Police or the Court? The question has
arisen under the following circumstances:
2. Respondent No. 2, a Dubai based bank, has filed a complaint against the Petitioner
and another in the Court of Special Judicial Magistrate (CBI) under Section 415, 417,
418 and 420 read with Section 120-B Indian Penal Code. It has been, inter alia,
alleged in the complaint that the Petitioner obtained loans, executed various

open to the Magistrate to refuse to commit him. The Court held that "if he were
brought here for trial, it would not be plea to the jurisdiction of the Court that he had
escaped from justice, and that by some illegal means he had been brought back."
14. The last decision on interpretation of Section 188 is of Justice Vivian Bose in
Sahebrao Bajrao v. Suryabhan Ziblaji and Ors. (MANU/NA/0114/1947 : AIR 1948 Na.
251). The question posed was as to who is to do the 'finding'. Learned Judge held
that the word 'found' in Section 188 means found by the Court at the time when the
matter comes up for trial, that is to say, any Court which is otherwise competent to
try the offence can take seisin the moment the accused appears in its presence. How
the accused gets there is immaterial. It does not matter whether he comes voluntarily
or in answer to summons or under illegal arrest. It is enough that the Court should
find him present when it comes to take up the matter.
15. In our opinion, the law has been correctly enunciated by in the aforesaid case.
The scheme underlying Section 188 is to dispel any objection or plea of want of
jurisdiction at the behest of a fugitive who has committed an offence in any other
country. If such a person is found anywhere in India, the offence can be inquired into
and tried by any Court that may be approached by the victim. The victim who has
suffered at the hands of the accused on a foreign land an complain about the offence
to a Court, otherwise competent, which he may find convenient. The convenience is
of the victim and not that of the accused. It is not the requirement of Section 188
that the victim shall state in the complaint as to which place the accused may be
found. It is enough to allege the accused may be found in India. The Court where the
complaint may be filed and the accused either appears voluntarily pursuant to issue
of process or it brought before it involuntarily in execution of warrants, would be the
competent Court within the meaning of Section 188 of the Code as that Court would
find the accused before him when he appears. The finding has to be by the Court. It
has neither to be by the complainant; nor by the Police. The section deems the
offence to be committed within the jurisdiction of the Court where the accused may
be found. It is correct that as a result of the aforesaid interpretation, it is possible for
a complainant to file a complaint against an accused in; any Court in the country. But
then we cannot compare the question of convenience of the accused at the cost of
victim's convenience. Between the two, the convenience of the latter has to prevail.
Regarding the abuse of such wide option to the victim, there are enough provisions in
the Code for redressal of any particular abuse. Whether a particular case is an abuse
or not would depend on its own facts.
In view of the aforesaid, the Special Leave Petition is dismissed.
Petition dismissed.

MANU/SC/0704/2000
Equivalent Citation: AIR2000SC 3689, JT2000(Suppl3)SC 92(1), 2000(7)SC ALE524, (2001)2SC C 386, (2001)SC C (LS)1039,
[2000]Supp4SC R693, 2001(1)SC T214(SC ), 2001(1)SLR299(SC )

S.L.P. (C) No. 21000 of 1993
Appellants:Om Kumar and Ors.
Vs.
Respondent:Union of India (UOI)
M. Jagannadha Rao and U.C. Banerjee, JJ.
Case Note:
Constitution - reviewing authority - Article 14 of Constitution of India -

where administrative action relating to punishment in disciplinary cases is
questioned as 'arbitrary' under Article 14 - Court is confined to 'Wednesbury
Principles' as secondary reviewing authority - because no issue of
fundamental freedoms nor of discrimination under Article 14 applies in such
context - Court will not apply 'proportionality' as primary reviewing
authority - on violation of 'Wednesbury Principles' Court normally remit
matter to administrator for fresh decision on quantum of punishment -
Court substitutes its view as to quantum of punishment in rare cases of
long delay in time taken in disciplinary proceedings and time taken in
Courts.
JUDGMENT
M. Jagannadha Rao, J.
1 . This case concerns the proceedings arising out of an order of this Court dated
4.5.2000 proposing to re-open the quantum of punishments imposed in departmental
inquiries on certain officers of the Delhi Development Authority (hereinafter called
the DDA) who were connected with the land of the DDA allotted to M/s. Skipper
Construction Co. It was proposed to consider imposition of higher degree of
punishments in view of the role of these officers in the said matter. After directions
were given by this Court that disciplinary action be taken and punishments were
imposed, this Court had no occasion to examine whether the right punishments were
awarded to the officers in accordance with well known principles of law or whether
the punishments required any upward revision.
2. The facts of the case limited to the present order are as follows:
By an order dated 29.11.94, this Court requested Justice O. Chinnappa Reddy
(former Judge of this Court), to investigate into the conduct of the officials of
the DDA including its ex-officio Chairman at the relevant time, in handing

telephone affair and it was on this score Mr. Tulsi contended that imposition of major
penalty - or for that matter, any penalty - was wholly unwarranted and the career of
Sri K.S. Baidwan had been very seriously damaged in an otherwise unblemished
record of service as a bureaucrat for 34 years, thus depriving him of a good chance
of promotion to the level of Secretary to the Government of India.
20. We do find some force in the contention of Mr. Tulsi but we are not expressing
any opinion in regard thereto since a "memorial" submitted by Sri Baidwan is
pending consideration before the appropriate authority. Save and except recording
that the available documentary evidence would definitely cast a doubt as regards the
aspersion cast on to Sri K.S. Baidwan, we are of the view that this aspect of the
matter may be reconsidered by the concerned authority while dealing with the
"memorial". We do not want to express any opinion one way or the other on the
merits inasmuch as the "memorial" of Sri Baidwan is pending before the Competent
Authority.
2 1 . We are of the view that in the case of Sri Baidwan, first his "memorial" be
disposed of by the Competent Authority within six weeks from today. In case it goes
in his favour, of course, the matter would end there. But, in case it goes against him
either wholly or in part, it will be for him to move the appropriate forum, namely, the
Central Administrative Tribunal. In the above circumstances, we are of the view that
it is not necessary for this Court to refer his case to the Vigilance Commissioner.
Shri Om Kumar and Shri Virendera Nath:
22. That leaves the cases of Sri Om Kumar, who was awarded a minor punishment
(as directed in the order of this Court dated 29.11.95) and of Sri Virendra Nath, who
was awarded a major punishment.
Submissions of counsel and Legal Issues emanating therefrom:
23. It was argued at great length by learned senior counsel Sri K. Parasaran and Dr.
Rajeev Dhawan that the question as to the quantum of punishment to be imposed
was for the competent authority and that the Courts would not normally interfere with
the same unless the punishment was grossly disproportionate The punishments
awarded satisfied the Wednesbury rules. On the other hand, learned Amicus Curiae
argued that, on the facts of the case, the cases of these two officers justify reference
to the Vigilance Commissioner.
24. We agree that the question of the quantum of punishment in disciplinary matters
is primarily for the disciplinary authority and the jurisdiction of the High Courts under
Article 226 of the Constitution or of the Administrative Tribunals is limited and is
confined to the applicability of one or other of the well known principles known as
Wednesbury principles. (See Associated Provincial Picture Houses v. Wednesbury
Corporation 1948 (1) KB 223). This Court had occasion to lay down the narrow scope
of the jurisdiction in several cases. The applicability of the principle of
'proportionality' in Administrative law was considered exhaustively in Union of India
v. Ganayutham ( MANU/SC/0834/1997 : (2000)IILL J648SC ) where the primary role
of the administrator and the secondary role of the Courts in matters not involving
fundamental freedoms, was explained.
2 5 . We shall therefore have to examine the cases of Sri Om Kumar and of Sri
Virendra Nath from the stand point of basic principles applicable under Administrative
Law, namely, Wednesbury principles and the doctrine of proportionality. It has

therefore become necessary to make reference to these principles and trace certain
recent developments in the law.
I(a) Wednesbury principle:
2 6 . Lord Greene said in 1948 in the Wednesbury case that when a statute gave
discretion to an administrator to take a decision, the scope of judicial review would
remain limited. He said that interference was not permissible unless one or other of
the following conditions were satisfied, -namely the order was contrary to law, or
relevant factors were not considered, or irrelevant factors were considered; or the
decision was one which no reasonable person could have taken. These principles
were consistently followed in UK and in India to judge the validity of administrative
action. It is equally well known that in 1983, Lord Diplock in Council for Civil
Services Union v. Minister of Civil Service 1983 (1) AC 768 (called the GCHQ case)
summarised the principles of judicial review of administrative action as based upon
one or other of the following - viz. illegality, procedural irregularity and irrationality.
He, however, opined that proportionality' was a "future possibility ".
(b) Proportionality:
27. The principle originated in Prussia in the nineteenth century and has since been
adopted in Germany, France and other European countries. The European Court of
Justice at Luxembourg and the European Court of Human Rights at Strasbourg have
applied the principle while judging the validity of administrative action. But even long
before that, the Indian Supreme Court has applied the principle of 'proportionality' to
legislative action since 1950, as stated in detail below.
28. By 'proportionality', we mean the question whether, while regulating exercise of
fundamental rights, the appropriate or least restrictive choice of measures has been
made by the legislature or the administrator so as to achieve the object of the
legislation or the purpose of the administrative order, as the case may be. Under the
principle, the Court will see that the legislature and the administrative authority
'maintain a proper balance between the adverse effects which the legislation or the
administrative order may have on the rights, liberties or interests of persons keeping
in mind the purpose which they were intended to serve'. The legislature and the
administrative authority are however given at area of discretion or a range of choices
but as to whether the choice made infringes the rights excessively or not is for the
Court. That is what is meant by proportionality.
29. The above principle of proportionality has been applied by the European Court to
protect the rights guaranteed under the European Convention for the Protection of
Human Rights and fundamental freedoms. 1950 and in particular, for considering
whether restrictions imposed were restrictions which were 'necessary' - within
Articles 8 to 11 of the said Convention (corresponding to our Article 19(1) and to find
out whether the restrictions imposed on fundamental freedoms were more excessive
than required. (Handy side v. UK (1976) (1) EHR 737. Articles 2 and 5 of the
Convention contain provisions similar to Article 21 of our Constitution relating to life
and liberty. The European Court has applied the principle of proportionality also to
questions of discrimination under Article 14 of the Convention (corresponding to
Article 14 of our Constitution) (See European Administrative Law by J. Schwarze,
1992, pp. 677-866).
(II) Proportionality and Legislation in U.K. & India:

violative of Wednesbury Rules. The punishment awarded was a major punishment.
We, therefore, do not propose to refer the matter to the vigilance Commissioner for
further upward revision of the punishment.
77. In the result, we do not propose to purse the matter further and we drop further
proceedings. The show cause notice is disposed of accordingly.
* Seealso Sir John Laws 'The Limitations of Human Rights is Britain:1998 PL
254;Davind Pannick, 'Principles of Interpretation of Convention Rights under the
Human Rights Act and the Discretionary area of judgement' 1998 PL 545. Towards the
Nut Cracking Principle; Reconsidering the objections to proportionality by Garret
Wong 2000 Public Law 92).

MANU/SC/1157/2002
Equivalent Citation: AIR2003SC 2562, 2003(3)ALLMR(SC )783, 2003(2)ALT17(SC ), 2003(1)C LJ(SC )1, 2002(9)SC ALE501, (2003)2SC C 673,
[2002]SUPP5SC R605

Transfer Case (civil) 80 of 2002
Appellants: Onkar Lal Bajaj and Ors.
Vs.
Respondent: Union of India (UOI) and Ors.
Y.K. Sabharwal and H.K. Sema, JJ.
Case Note:
Constitution of India - Article 14 - Govt. Of India cancelled all allotments
i9n respect of retail outlets for marketing of petrol and diesel - Govt.
cancelled all the retail outlets on the basis of a newspaper article without
having necessary data - Only particulars of 417 of such allotments were
published in the newspaper - Cancellation of the agreements is not for
violation of any terms thereof - Cancellation on account of a policy decision
- All allotment including the tainted allotments were cancelled - Arbitrary
exercise of executive powers - Order passed without application of mind -
All categories of allotment were put into the category of tainted allotment -
Only reason for cancellation was that a controversy has been raised - The
impugned order is quashed - Cases to be referred to a committee
Public Interest - No hard and fast rule to determine public interest -
Circumstances in each case would determine whether the Govt. action was
taken in public interest
JUDGMENT
Y.K. Sabharwal, J.
1. The marketing of petroleum products has been quite a lucrative business. The four
public sector oil companies - Indian Oil Corporation Limited (IOC), Bharat Petroleum
Corporation Limited (BPC), Hindustan Petroleum Corporation Limited (HPC) and IBP
Company Limited (IBP control the marketing of the said products. We are concerned
with the marketing of petrol and diesel, Superior Kerosene Oil (SKO), Light Diesel Oil
(LDO) and Liquefied Petroleum Gas (LPG). The challenge in these matters is to the
validity of the order of the Government of India dated 9th August, 2002 whereby all
allotments made with respect to retail outlets. LPG distributorship and SKO-LDO
dealerships on the recommendations of the Dealer Selection Boards (DSBs) since 1st
January, 2000 were decided to be cancelled.
2. In past also allotments of retail outlets for petroleum products were cancelled by
this Court after coming to the conclusion that the allotments made were arbitrary, on
account of political connections/motivation and extraneous considerations. The
tainted allotments were also cancelled by various orders of High Court of Delhi. The

founded.
25. The petitions, it is contended are nothing but a disguise suits under the Specific
Relief Act despite the fact that contract would not be enforceable even under the said
Act. Thus, it is contended that the petitioner have no legal right that can be enforced
under Article 226 of the Constitution of India.
26. There is no merit in the contentions of learned Solicitor General. It is evident
from the facts that the cancellation of the agreements is not for violation of any term
thereof. The cancellation is on account of a policy decision taken by the Government
as noticed hereinbefore. The cancellation is not on account of any uniform reason
applicable to all the selectees or those who have been issued LOIs or with whom
agreements have been entered into except that in respect of few others and not this
class of petitioners, media exposure was made. In the present case, on principle,
there would be no difference in respect of those selections who have been issued the
LOIs but are awaiting the execution of the agreement on completion of formalities.
The execution of agreement is not being denied on account of any ineligibility of any
such LOI holders or any discrepancy having been found in what was required to be
fulfilled by them. We are not concerned with any such individual case. Therefore the
cases of LOI holders are no different in comparison to those cases where agreements
have been entered into. Similar is the position of those who are on published merit
panels and were awaiting issue of LOIs by the oil companies when the impugned
decision was taken for the present controversy , they are all in same position except
those who may come in the category of alleged tainted class which aspect we would
deal later.
27. Article 14 guarantees to everyone before law. Unequal cannot be clubbed. The
propositions is well settled and does not require reference to any precedent though
many decisions were cited. Likewise, an arbitrary exercise of executive power
deserves to be quashed is a proposition which again does not require support of any
precedent. It is equally well settled that an order passed without application of mind
deserves to be annulled being an arbitrary exercise of power. At the same time, we
have no difficulty in accepting the propositions urged on behalf of the Government
that if two views are possible and the Government takes one of it, it would not be
amenable to judicial review on the ground that other view, according to the Court, is
a better view.
28. The decision in The Bihar School Examination Board v. Subhas Chandra
Singh and Ors. MANU/SC/0069/1970 : [1970]3SCR963has been relied upon
by learned Solicitor General in support of the contention that allotments could en
masse be legally cancelled without individually examining each case and without
affording an opportunity to all concerned to represent their cases Paras 12 and 13 on
which reliance has been placed read:
"12. These figures speak for themselves. However, to satisfy ourselves we
ordered that some answer books be brought for our Inspection and many
such were produced. A comparison of the answer books showed such a
remarkable agreement in the answers that no doubt was left in our minds
that the students had assistance from an outside source. Therefore, the
conclusion that unfair means were adopted stands completely vindicated.
13. This is not a case of any particular individual who is being charged with
adoption of unfair means but of the conduct of all the examinees or at least a

newspaper and the photocopies of the question papers were available for sale at a
price of Rs. 2000/- each and, under these circumstances the Government decided to
cancel the examination of the center in question. This decision is of no assistance for
the present controversy.
3 2 . Mahabir Auto Stores and Ors. v. Indian Oil Corporation and Ors.
MANU/SC/0191/1990 : [1990]1SCR818was a case where the challenge of the
appellants was to the action of the respondent, Indian Oil Corporation in
discontinuing the supply of all kinds of lubricants to the appellant. One of the
contention raised by the Indian Oil Corporation was that there was no written
agreement with it and there was only an ad hoc arrangement which could not be
enforced, particularly, in a writ jurisdiction. Rejecting the contention, this Court
observed that the respondent's decision can be impeached on the ground that it is
arbitrary or violative of Article 14 on any of the grounds available in public law field.
It was further held that the action had to be fair and reasonable and that even in the
field of public law, the relevant persons concerned or to be affected, should be taken
into confidence. Whether and in what circumstances that confidence should be taken
into consideration cannot be laid down on any strait- jacket basis. it depends on the
nature of the right involved and nature of the power sought to be exercised in a
particular situation.
3 3 . Kumari Shrilkeha Vidhyarthi and Ors. v. State of U.P. and Ors.
MANU/SC/0504/1991 : AIR1991SC537was a case in which en masse
cancellation of panel of Government Law Offices was questioned before this Court.
While quashing the impugned order, this Court observed that the act of terminating
their appointment in one stroke was without application of mind. It was further
observed that it would be too much to assume that every Government counsel was
required to be replaced in order to streamline the conduct of the Government cases
and indeed that is not even the case of the State which itself says that many of them
were to be reappointed. It is not the case of the respondents that most or large
number of selections in the present case were tainted.
34. In the case in hand, the only reason for the en masse cancellation was that a
'controversy' had been raised. There was no application of mind to any case.
Admitted none of cases was examined. In Shrilekha Vidyarthi's case this Court
held that arbitrariness is writ large on the impugned circular. In the State action
public interest has to be the prime guiding consideration. In Shrillekha Vidharthi's
case. It was held that the impugned State action was taken with only one object in
view i.e., to terminate all existing appointments irrespective of the substance or
expiry of the tenure or suitability of the existing incumbents and that by one omnibus
order the appointments of all Government counsel in the State of Uttar Pradesh were
terminated. It was also noticed that no common reason applicable to all of them
justifying their termination in one stroke on a reasonable ground had been shown.
The position is similar in the present case.
3 5 . The expression 'public interest' or 'probity in governance' cannot be put in a
State jacket. 'Public interest' takes into its fold several factors. There cannot be any
hard and fast rule to determine what is public interest. The circumstance in each case
would determine whether Government action was taken is in public interest or was
taken to uphold probity in governance.
36. The roll model for governance and decision taken thereof should manifest equity
fair play and justice. The cardinal principle of governance in a civilized society based

V. The Central Government, State Government/Union Territories and all
others are directed to render such assistance to the Committee as may be
directed by it.
IV. The oil companies are directed to provide as per Committee's directions,
the requisite infrastructure, staff, transport and make necessary arrangement,
whenever so directed, for travel, stay, payments and other facilities etc.
VII. In respect of any case if the Committee, on preliminary examination of
the facts and records, forms an opinion that the allotment was made on
merits and not as a result of political connections or patronage or other
extraneous considerations, it would be open to the Committee not to proceed
with probe in detail.
59. For the reasons aforesaid, the impugned order dated 9th August, 2002 is hereby
quashed accept in respect of cases referred to the Committee.
6 0 . The cases referred to the Committee would be considered on receipt of the
report. However, the interim order dated 28 th August, 2002 would continue to apply
to these referred cases till further orders. The said order is further extended to cases
where select panel has been published but letters of intent have not been issued.
61. Transferred Case Nos. 80, 81 to 88, 90 and 81/2002, all intervention applications
therein, I.A. Nos. 245-2556 in Transfer Petition (C) Nos. 417- 423/2002 and
Contempt Petition (C) No. 556/2002 in Transferred Petition (C) No. 417/423/2002 are
disposed of in terms of this decision.
62. A copy of the judgment shall be sent to the Registrar Generals of all the High
Courts so that the writ petitions, if any, pending in the High Courts on similar
questions can be disposed of in terms of this judgment.
6 3 . All matters except Transferred Case Nos. 100 to 109 are disposed of List
Transferred Case Nos. 100 to 109 of 2002 after receipt of the report.

MANU/SC/0015/1950
Equivalent Citation: AIR1950SC 169, 1950(86)C LJ120, 1950C riLJ1270, 1942-55-LW875, 1950-63-LW875, [1950]1SC R453

Criminal Appeal No. II of 1950
Appellants:Pritam Singh
Vs.
Respondent:The State
Saiyid Fazl Ali, M. Patanjali Sastri, M.C. Mahajan, B.K. Mukherjea and Sudhi Ranjan
Das, JJ.
Case Note:
Constitution of India, 1950 Art. 136(1)-Grant of Special leave to appeal-
Guiding principles-Final hearing-Nature of.
JUDGMENT
Saiyid Fazl Ali, J.
1 . This is an appeal by one Pritam Singh against the decision of the High Court of
Punjab at Simla, upholding his conviction on the charge of murder of one Buta Singh
and confirming the sentence of death passed on him by the Sessions Judge of
Ferozepore. The prosecution case, which has been found to be substantially true by
both the trial judge and the High Court may be shortly stated as follows.
On the 28th December, 1948, Pritam Singh had made indecent overtures to one
Punni, wife of Kakarra Chamar, who had been brought into the village by Buta Singh,
the deceased, about 10 or 12 years ago. Buta Singh, on learning of this incident
spoke, to Pritam Singh, but finding that his attitude was uncompromising, he advised
Kakarra to go to the police station to report the matter. On the next day, while
Kakarra was going to the police station, Mal Singh, the first prosecution witness in
the case, brought him back telling him that Pritam Singh had apologized and the
matter should not be pursued. On the 30th December, at about 5 p.m. just when Buta
Singh came out of his house, Pritam Singh came up with a double barrelled 12-bore
gun and shout him in the abdomen, and Buta Singh died a short time thereafter.
Shortly after the occurrence, Punjab Singh and Nal Singh, who had both witnessed
the occurrence, went to the police station at Abohar, which is at a distance of 13
miles from the place of occurrence, and lodged the first information report regarding
the murder. In this report, Punjab Singh, reported the facts as already stated, but he
also added that Pritam Singh was drunk when he fired the gun and his younger
brother, Hakim Singh, who was also drunk was standing at a short distance from him
and shouting "Kill, don't' care". None of the other witnesses however supported
Punjab Singh as to the part attributed by him to Hakim Singh or as to the drunken
condition of the appellant or Hakim Singh, and the police after due investigation of
the case sent up a charge sheet against the appellant only. The appellant was
thereafter put on his trial before the Sessions Judge of Ferozepore. The learned
Sessions Judge, after hearing the prosecution witnesses, of whom five were eye-

was free to contest all the findings of fact and raise every point which could be raised
in the High Court or the trial Court. This assumption is, in our opinion, entirely
unwarranted. The misconception involved in the argument is not a new one and had
to be dispelled by the Privy Council in England in Ibrahim v. Rex [1914] A.C. 615 in
these words :-
"... the Board has repeatedly treated applications for leave to appeal and the
hearing of criminal appeals as being upon the same footing : Riel's Case; Ex-
parte Deeming. The Board cannot give leave to appeal where the grounds
suggested could not sustain the appeal itself; and, conversely it cannot allow
an appeal on grounds that would not have sufficed for the grant of
permission to bring it."
5 . The rule laid down by the Privy Council is based on sound principle, and, in our
opinion, only those points can be urged at the final hearing of the appeal which are
fit to be urged at the preliminary stage when leave to appeal is asked for, and it
would be illogical to adopt different standards at two different stages of the same
case.
6. It seems also necessary to make a few general observations relating to the powers
of this Court to grant special leave to appeal in criminal cases. The relevant articles
of the Constitution dealing with the appellate jurisdiction of the Supreme Court are
articles 132 to 136. Article 132 applies both to civil and criminal cases and under it
an appeal shall lie to the Supreme Court from any judgment, decree....or final order
of a High Court, whether in a civil, criminal or other proceeding, if the High Court
certifies that the case involves a substantial question of law as to the interpretation of
the Constitution. Article 133 deals with the appellate jurisdiction of this Court in civil
matters only, and it has been drafted on the lines of sections 109 and 110 of the Civil
Procedure Code, 1908. Article 134 constitutes the Supreme Court as a Court of
criminal appeal in a limited class of cases only, and clearly implies that no appeal lies
to it as a matter of course or right except in cases specified therein. Article 135
merely provides that the Supreme Court shall have jurisdiction and powers with
respect to any matter to which the provisions of article 133 or article 134 do not
apply, if jurisdiction and powers in relation to that matter were exercisable by the
Federal Court immediately before the commencement of the Constitution under any
existing law. The last article, with which we are concerned is article 136 and it runs
thus :-
"136. (1) Notwithstanding, anything in this Chapter, the Supreme Court may,
in its discretion, grant special leave to appeal from any judgment, decree,
determination, sentence or order in any cause or matter passed or made by
any court or tribunal in the territory of India,
(2)..............."
7 . The points to be noted in regard to this article are firstly, that it is very general
and is not confined merely to criminal cases, as is evident from the words "appeal
from any judgment decree, sentence or order" which occur therein and which
obviously cover a wide range of matters; secondly, that the words used in this article
are "in any cause or matter," while those used in articles 132 to 134 are "civil,
criminal or other proceeding," and thirdly, that while in articles 132 to 134 reference
is made to appeals from the High Courts, under this article, an appeal will lie from
any court or tribunal in the territory of India.

8. On a careful examination of article 136 along with the preceding article, it seems
clear that the wide discretionary power with which this Court is invested under it is to
be exercised sparingly and in exceptional cases only, and as far as possible a more or
less uniform standard should be adopted in granting special leave in the wide range
of matters which can come up before it under this article. By virtue of this article; we
can grant special leave in civil cases, in criminal cases, in income-tax cases, in cases
which come up before different kinds of tribunals and in a variety of other cases. The
only uniform standard which in our opinion can be laid down in the circumstances is
that Court should grant special leave to appeal only in those cases where special
circumstances are shown to exist. The Privy Council have tried to lay down from time
to time certain principles for granting special leave in criminal cases, which were
reviewed by the Federal Court in Kapildeo v. The King. It is sufficient for our purpose
to say that though we are not bound to follow them too rigidly since the reasons,
constitutional and administrative, which sometimes weighed with the Privy Council,
need not weigh with us, yet some of those principles are useful as furnishing in many
cases a sound basis for involving the discretion of this Court in granting special
leave. Generally speaking, this Court will not grant special leave, unless it is shown
that exceptional and special circumstances exist, that substantial and grave injustice
has been done and that the case in question presents features of sufficient gravity to
warrant a review of the decision appealed against. Since the present case does not in
our opinion fulfil any of these conditions, we cannot interfere with the decision of the
High Court, and the appeal must be dismissed.

MANU/SC/0196/1980
Equivalent Citation: 1981()AC R94(SC ), AIR1981SC 96, 1981 (7) ALR 120, 1981(29)BLJR101, 1980C riLJ1344, (1980)4SC C 262,
(1980)SC C (C ri)947, [1981]1SC R402

Special Leave Petition (Criminal) No. 950 of 1980
Appellants: Rafiq
Vs.
Respondent: State of U.P.
O. Chinnappa Reddy and V.R. Krishna Iyer, JJ.
Counsels:
For Appellant/Petitioner/Plaintiff: Ugra Shankar Prasad, Adv
Case Note:
Criminal - Rape - Section 376 of Indian Penal Code, 1860 - Appellant
convicted for offence under Section 376 for raping a middle aged woman
and sentenced to 7 years of rigorous imprisonment - Hence, present appeal
- Appellant contended that in absence of corroboration of testimony of
prosecutrix that there was absence of injuries on the person of the woman
conviction could not be sustained - Corroboration as a condition for judicial
reliance on the testimony of a prosecutrix is not a matter of law, but a
guidance of prudence - Presence or absence of injuries on the person of the
aggressor or the aggressed may vary in different circumstances - No reason
to interfere with the conviction of appellant - Held, conviction of appellant
for offence under Section 376 justified - Appeal dismissed.
JUDGMENT
V.R. Krishna Iyer, J.
1 . This special Leave Petition relates to a conviction and sentence for an offence of
rape. The escalation of such crimes has reached proportions to a degree that exposes
the pretensions of the nation's spiritual leadership and celluloid censorship, puts to
shame our ancient cultural heritage and humane claims and betrays a vulgar
masculine outrage on human rights of which woman's personal dignity is a sacred
component. We refuse special leave and briefly state a few reasons for doing so.
2 . Draupadi, a middle-aged Bal Sewika in a village welfare organization, was
sleeping in a girls' school where she was allegedly raped by Rafiq, the petitioner and
three others. The offence took place around 2.30 a.m. on August 22/23, 1971, and
the next morning the victim related the incident to the Mukhiya Sewika of the village.
A report was made to the Police Station on August 23, 1971 at mid-day. The
investigation that followed resulted in a charge-sheet, a trial and, eventually, in a
conviction based substantially on the testimony of the victim. Although some of the
witnesses, tell-tale fashion, shifted their loyalties and betrayed the prosecution case,
the trial court entered a finding of guilt against the appellant, giving the benefit of
doubt to the other three obscurely. A 7-year sentence of rigorous imprisonment was

awarded as justly merited, having regard to the circumstances. The appeal carried to
the High Court proved unsuccessful but, undaunted; the petitioner has sought leave
to appeal to this Court.
3 . Concurrent findings of fact ordinarily acquire a deterrent sanctity and tentative
finality when challenged in this Court and we rarely invoke the special jurisdiction
under Article 136 of the Constitution which is meant mainly to correct manifest
injustice or errors of law of great moment. By these substantial canons the present
petition for leave has not even a dog's chance.
4. Counsel contended that there was absence of corroboration of the testimony of the
prosecutrix that there was absence of injuries on the person of the woman and so the
conviction was unsustainable, tested on the touchstone of case-law. None of these
submissions has any substance and we should, in the ordinary course, have desisted
from making even a speaking order but counsel cited a decision of this Court in
Pratap Misra and Ors. v. State of Orissa MANU/SC/0120/1977 : 1977CriL J817 and
urged that absence of injuries on the person of the victim was fatal to the prosecution
and that corroborative evidence was an imperative component of judicial credence in
rape cases.
5. We do not agree. For one thing, Pratap Misra's case (supra) laid down no inflexible
axiom of law on either point. The facts and circumstances often vary from case to
case, the crime situation and the myriad psychic factors, social conditions and
people's life-styles may fluctuate, and so, rules of prudence relevant in one fact-
situation may be inept in another. We cannot accept the argument that regardless of
the specific circumstances of a crime and criminal milieu, some strands of probative
reasoning which appealed to a Bench in one reported decision must mechanically be
extended to other cases. Corroboration as a condition for judicial reliance on the
testimony of a prosecutrix is not a matter of law, but a guidance of prudence under
given circumstances.
Indeed, from place to place, from age to age, from varying life-styles and behavioral
complexes, inferences from a given set of facts, oral and circumstantial, may have to
be drawn not with dead uniformity but realistic diversity lest rigidity in the shape of
rule of law in this area be introduced through a new type of precedential tyranny. The
same observation holds good regarding the presence or absence of injuries on the
person of the aggressor or the aggressed.
6. There are several "sacred cows" of the criminal law in Indo-Anglian jurisprudence
which are superstitious survivals and need to be re-examined. When rapists are
reveling in their promiscuous pursuits and half of humankind-womankind-is
protesting against its hapless lot, when no woman of honour will accuse another of
rape since she sacrifices thereby what is dearest to her, we cannot cling to a fossil
formula and insist on corroborative testimony, even if taken as a whole, the case
spoken to by the victim strikes a judicial mind as probable. In this case, the
testimony has commanded acceptance from two courts. When a woman is ravished
what is inflicted is not merely physical injury, but "the deep sense of some deathless
shame".
A rape! a rape!...
Yes, you have ravished justice;
Forced her to do your pleasure.

7. Hardly a sensitized judge who sees the conspectus of circumstances in its totality
and rejects the testimony of a rape victim unless there are very strong circumstances
militating against is veracity. None we see in his case, and confirmation of the
conviction by the courts below must, therefore, be a matter of course. Judicial
response to human rights cannot be blunted by legal bigotry.
8 . The case before us occurred in 1971 and is drawing to a close in 1980. What a
pity Now that there is considerable public and parliamentary attention to the violent
frequency of rape cases it is time that the court reminds the nation that deterrence
comes more effectively from quick investigations, prompt prosecutions and urgent
finality, including special rules of evidence and specialised agencies for trial.
Mechanical increase of punitive severity, without more, may yield poor dividends for
women victims. In Dr. Johnson's time public hanging for pick-pocketing was
prevalent in England but as Dr. Johnson sardonically noted pick-pockets were busy
plying their trade among crowds gathered to see some pick-pocket being publicly
executed. Dr. Johnson's wit is our wisdom. The strategy for a crime-free society is
not draconian severity in sentence but institutional sensitivity, processual celerity and
prompt publicity among the concerned community. "Lawlessness is abetted by a
laggard, long-lived, lacunose and legalistic litigative syndrome rather than by less
harsh provisions in the Penal Code". The focus must be on the evil, not its
neighbourhood.
9. Counsel submitted that a 7-year sentence was too severe. No, because, as we have
stated earlier, rape for a woman is deathless shame and must be dealt with as the
gravest crime against human dignity. No interference on the score of culpability or
quantum of punishment is called for in the circumstances.
We refuse special leave.

MANU/SC/0181/2007
Equivalent Citation: 2007(1)AC R566(SC ), 2007(1)ALD(C ri)192, 2007(1)BLJR790, C LT(2007)Supplement886, 2007C riLJ1174,
2007(1)C rimes132(SC ), I(2007)DMC 164SC , [2007(2)JC R80(SC )], JT2007(1)SC 239, 2007N.C .C .300, 2007(1)RC R(C riminal)607,
2007(1)SC ALE19, (2007)10SC C 433, [2007]1SC R13, 2007(1)UJ82

Criminal Appeal Nos. 932 of 2000 and 1103 of 2001
Appellants: Raj Kumar Prasad Tamarkar
Vs.
Respondent: State of Bihar and Ors.
S.B. Sinha and Markandey Katju, JJ.
Counsels:
For Appellant/Petitioner/Plaintiff: Ranjan Mukherjee and Ashok Mathur, Advs B.B.
Singh and Gopal Singh, Advs
Case Note:
Constitution of India - Article 136--Indian Penal Code, 1860--Section 302--
Murder of wife--Conviction and sentence by trial court--But acquittal by
High Court--Whether justified?--Held, "no"--Prosecution founded on
circumstantial evidence--Accused respondent and deceased alone in room--
No explanation by accused as to how deceased killed--Respondent having
affair with other lady--Wife objected -- Respondent wrote threatening letter
to wife for dire consequence--Revolver used in offence recovered from
room--Found not only in working condition but also recently used--
Blackening and charring found on injury--Showing shot to have been fired
from close range--Respondent with deceased at relevant time--If death
caused by outsider--He could have shouted--But he chose not to do so--
Neither any finger print expert or ballistic expert examined--Even blood
found on revolver not sent for chemical examination--Same by itself would
nor negate circumstances proving guilt of respondent beyond all reasonable
doubt--Fit case to exercise jurisdiction under Article 136--As there has been
serious miscarriage of justice--Judgment of High Court set aside--And that
of trial court restored--Respondent sentenced to life imprisonment.
Ratio Decidendi:
"In case where High Court failed to take into consideration the relevant
facts and misapplied the legal principles, then Supreme Court can exercise
jurisdiction under Article 136 of the Constitution of India as otherwise
there would be serious miscarriage of justice."
JUDGMENT
S.B. Sinha, J.
1 . Raja Ram Sao (Respondent) was prosecuted for commission of an offence under
Section 302 of the Indian Penal Code. He was a convoy driver employed by Tata
Engineering Locomotive Company (TELCO) at Jamshedpur. He married Usha Devi

deemed to be a sudden quarrel....
[See also Pappu v. State of M.P. MANU/SC/8223/2006 : 2006CriL J3640 ,Vadla
Chandraiah v. State of Andhra Pradesh MANU/SC/8799/2006 : 2007CriLJ770 ]
2 2 . I n State of Andhra Pradesh v. Rayavarapu Punnayya and Anr.
MANU/SC/0180/1976 : 1977CriLJ1 , this Court held:
In the scheme of the Penal Code, '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 this generic offence, the Code
practically recognises three degrees of culpable homicide. The first is, what
may be called, culpable homicide of the first degree. This is the greatest 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 1st 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.
[See also Laxman v. State of M.P. MANU/SC/4098/2006 : 2006CriLJ4626 ]
It is true that neither any fingerprint expert nor any ballistic expert had been
examined. Even the blood found on the revolver had not been sent for chemical
examination, but, in our opinion, the same by itself would not negate the
circumstances which have proved the guilt of the respondent beyond all reasonable
doubt.
23. We are aware of the limitations of this Court. It is well settled that ordinarily this
Court would not interfere with the judgment of acquittal if two views are possible but
having regard to the fact that the High Court has failed to take into consideration the
relevant facts and misapplied the legal principles, we think it fit to exercise our
jurisdiction under Article 136 of the Constitution of India as there has been serious
miscarriage of justice. The jurisdiction of this Court in a case of this nature is also
well known.
2 4 . I n State of U.P. v. Nawab Singh (Dead) and Ors. MANU/SC/0080/2004 :
2004CriLJ1367 , this Court held:
It is well-settled that when reasoning of the High Court is perverse, this
Court may set aside the judgment of acquittal and restore the judgment of
conviction and sentence upon the accused. (See Ramanand Yadav v. Prabhu
Nath Jha MANU/SC/0854/2003 : 2004CriL J640 ). It is further well-settled
that there is no embargo on the appellate court to review evidence upon
which an order of acquittal is based.
[See also Prithvi (Minor) v. Mam Raj and Ors. MANU/SC/0143/2004 :
2004(2)SCALE580 , State of U.P. v. Satish MANU/SC/0090/2005 : 2005CriLJ1428 ]
25. For the reasons aforementioned, we set aside the judgment of the High Court and
restore that of the learned Sessions Judge. The appeals are allowed. The respondent

is sentenced to undergo rigorous imprisonment for life under Section 302 of the
Indian Penal Code. He may be taken in custody forthwith to serve out the sentence.

MANU/SC/0086/1960
Equivalent Citation: AIR1960SC 866, (1961) 31 AWR 49, 1960C riLJ1239, [1960]3SC R388

Appellants:R.P. Kapur
Vs.
Respondent:The State of Punjab
K.C. Das Gupta, K.N. Wanchoo and P.B. Gajendragadkar, JJ.
Case Note:
Criminal - quashing of proceedings - Section 561-A of Criminal Procedure
Code, 1898 - appeal against Order of High Court that no case had been
made out for quashing of proceedings under Section 561-A - under said
Section High Court has inherent power to make such Orders as may be
necessary to give effect to any Order under this Code or prevent abuse of
process of Court - there is no legal bar to institution of legal proceedings on
basis of allegations in first information report lodged by respondent - also
allegations made do constitute offences to continue with proceedings -
even on face of delay in filing police report under Section 173 appellant's
prayer to quash proceedings cannot be sustained.
JUDGMENT
1. On December 10, 1958, Mr. M. L. Sethi lodged a First Information Report against
the appellant Mr. R. P. Kapur and alleged that he and his mother-in-law Mrs.
Kaushalya Devi had committed offences under Sections 420,109, 114 and 120B of the
Indian Penal Code. When the appellant found that for several months no further
action was taken on the said First Information Report which was hanging like a sword
over his head he filed a criminal complaint on April 11, 1959, against Mr. Sethi under
Sections 204, 211 and 385 of the Indian Penal Code and thus took upon himself the
onus to prove that the First Information Report lodged by Mr. Sethi was false. On the
said complaint Mr. Sethi moved that the proceedings in question should be stayed as
the police had not made any report on the First Information Report lodged by him
and that the case started by him was still pending with the police. After hearing
arguments the learned Magistrate ordered that the appellant's complaint should stand
adjourned.
2. Thereupon the appellant moved the Punjab High Court under s. 561-A of the Code
of Criminal Procedure for quashing the proceedings initiated by the First Information
Report in question. Pending the hearing of the said petition in the said High Court the
police report was submitted under s. 173 of the Code on July 25, 1959.
Subsequently, on September 10, 1959, Mr. Justice Capoor heard the appellant's
petition and held that no case had been made out for quashing the proceedings under
s. 561-A. In the result the petition was dismissed. It is against this order that the

proceedings before the Land Acquisition Collector, Delhi, and of the acquisition of the
said property under s. 17 of the said Act; he also made similar fraudulent
misrepresentations as regards the scheme of housing to which he referred. As a
result of these misrepresentations Mr. Sethi entered into the transaction and parted
with Rs. 20,000. That in brief is the nature of the complaint made by Mr. Sethi in his
First Information Report. The appellant urged before the Punjab High Court that the
case started against him by the First Information Report should be quashed under s.
561-A of the Code. The Punjab High Court has rejected the appellant's contention.
The question which arises for our decision in the present appeal is : Was the Punjab
High Court in error in refusing to exercise its inherent jurisdiction under s. 561-A of
the Code in favour of the appellant ?
6. Before dealing with the merits of the appeal it is necessary to consider the nature
and scope of the inherent power of the High Court under s. 561-A of the Code. The
said section saves the inherent power of the High Court to make such orders as may
be necessary to give effect to any order under this Code or to prevent abuse of the
process of any court or otherwise to secure the ends of justice. There is no doubt that
this inherent power cannot be exercised in regard to matters specifically covered by
the other provisions of the Code. In the present case the magistrate before whom the
police report has been filed under s. 173 of the Code has yet not applied his mind to
the merits of the said report and it may be assumed in favour of the appellant that his
request for the quashing of the proceedings is not at the present stage covered by
any specific provision of the Code. It is well-established that the inherent jurisdiction
of the High Court can be exercised to quash proceedings in a proper case either to
prevent the abuse of the process of any court or otherwise to secure the ends of
justice.
Ordinarily criminal proceedings instituted against an accused person must be tried
under the provisions of the Code, and the High Court would be reluctant to interfere
with the said proceedings at an interlocutory stage.
It is not possible, desirable or expedient to lay down any inflexible rule which would
govern the exercise of this inherent jurisdiction.
However, we may indicate some categories of cases where the inherent jurisdiction
can and should be exercised for quashing the proceedings. There may be cases where
it may be possible for the High Court to take the view that the institution or
continuance of criminal proceedings against an accused person may amount to the
abuse of the process of the court or that the quashing of the impugned proceedings
would secure the ends of justice.
If the criminal proceeding in question is in respect of an offence alleged to have been
committed by an accused person and it manifestly appears that there is a legal bar
against the institution or continuance of the said proceeding the High Court would be
justified in quashing the proceeding on that ground. Absence of the requisite sanction
may, for instance, furnish cases under this category. Cases may also arise where the
allegations in the First Information Report or the complaint, even if they are taken at
their face value and accepted in their entirety, do not constitute the offence alleged;
in such cases no question of appreciating evidence arises; it is a matter merely of
looking at the complaint or the First Information Report to decide whether the offence
alleged is disclosed or not. In such cases it would be legitimate for the High Court to
hold that it would be manifestly unjust to allow the process of the criminal court to
be issued against the accused person. A third category of cases in which the inherent
jurisdiction of the High Court can be successfully invoked may also arise. In cases
falling under this category the allegations made against the accused person do
constitute an offence alleged but there is either no legal evidence adduced in support

appellant's prayer for quashing the proceedings at this stage we are expressing no
opinion one way or the other on the merits of the case.
11. There is another consideration which has weighed in our minds in dealing with
this appeal. The appellant has come to this Court under Art. 136 of the Constitution
against the decision of the Punjab High Court; and the High Court has refused to
exercise its inherent jurisdiction in favour of the appellant. Whether or not we would
have come to the same conclusion if we were dealing with the matter ourselves under
s. 561-A is not really very material because in the present case what we have to
decide is whether the judgment under appeal is erroneous in law so as to call for our
interference under Art. 136. Under the circumstances of this case we are unable to
answer this question in favour of the appellant.
The result is the appeal fails and is dismissed.

MANU/SC/1240/2011
Equivalent Citation: AIR2012SC 214, 2012(1)ESC 8(SC ), (2012)1MLJ130(SC ), 2012(1)PLJR11, 2011(11)SC ALE593, (2012)1SC C 157,
2012(3)SC T292(SC ), 2011(6)UJ4303

Civil Appeal No. 8520 of 2011 (Arising out of SLP (C) No. 13495 of 2010)
Appellants: Sanchit Bansal and Ors.
Vs.
Respondent: The Joint Admission Board (JAB) and Ors.
R.V. Raveendran and A.K. Patnaik, JJ.
Counsels:
For Appellant/Petitioner/Plaintiff: Prashant Bhushan and Pranav Sachdeva, Advs.
For Respondents/Defendant: Gopal Subramanium, SG, Anand Verma and Shekhar
Kumar, Advs.
Case Note:
Education - Jurisdiction - Validity of procedure - Whether, procedure
adopted by Board to arrive at cut off marks for JEE 2006 was arbitrary and
mala fide and whether High Court ought to have interfered in matter?
Held, procedure for ranking by IIT-JEE had not been uniform. Since, some
years, variable cut-off marks were adopted and some years fixed minimum
marks were adopted-Further, common merit list was prepared based on
performance in individual subjects as well as aggregate in main
examination . This would show that there was gradual evolution in process
of standardizing ranking, leading to improvement and stabilization of
procedure. Moreover, selection process requires to be upgraded and fine
tuned year after year with periodic changes in process, so that selection
process and examination remain relevant and meaningful. However, all
aspects connected with process were technical falling within purview of
professional experts in charge and role of courts was very limited. Thus, if
in JEE 2006, different or better process had been adopted, or process now
in vogue had been adopted, results would have been different and first
Appellant might have obtained seat. However, on that ground it was not
possible to impute malafides or arbitrariness, or grant any relief to first
Appellant. Hence, procedure adopted by Board to arrive at cut off marks for
JEE 2006 was not arbitrary and mala fide and High Court could not
interfered in matter. Appeal dismissed.
Ratio Decidendi:
"When action or procedure seeks to achieve specific objective in
furtherance of education in bona fide manner it cannot be described
arbitrary or capricious or mala fide."
Case Category:

institutions and the departments controlling them.
In All India Council for Technical Education v. Surinder Kumar Dhawan
MANU/SC/0507/2009 : 2009 (11) SCC 726 this Court held:
The courts are neither equipped nor have the academic or technical
background to substitute themselves in place of statutory professional
technical bodies and take decisions in academic matters involving standards
and quality of technical education. If the courts start entertaining petitions
from individual institutions or students to permit courses of their choice,
either for their convenience or to alleviate hardship or to provide better
opportunities, or because they think that one course is equal to another,
without realizing the repercussions on the field of technical education in
general, it will lead to chaos in education and deterioration in standards of
education. ....
The role of statutory expert bodies on education and role of courts are well defined by
a simple rule. If it is a question of educational policy or an issue involving academic
matter, the courts keep their hands off. If any provision of law or principle of law has
to be interpreted, applied or enforced, with reference to or connected with education,
the courts will step in.
(Emphasis Supplied)
This Court also repeatedly held that courts are not concerned with the practicality or
wisdom of the policies but only illegality. In Directorate of Film Festivals v. Gaurav
Ashwin Jain MANU/SC/1778/2007 : 2007 (4) SCC 737 this Court held:
Courts do not and cannot act as appellate authorities examining the
correctness, suitability and appropriateness of a policy, nor are courts
advisors to the executive on matters of policy which the executive is entitled
to formulate. The scope of judicial review when examining a policy of the
Government is to check whether it violates the fundamental rights of the
citizens or is opposed to the provisions of the Constitution, or opposed to
any statutory provision or manifestly arbitrary. Courts cannot interfere with
policy either on the ground that it is erroneous or on the ground that a better,
fairer or wiser alternative is available. Legality of the policy, and not the
wisdom or soundness of the policy, is the subject of judicial review?
(Emphasis Supplied)
1 9 . Thus, the process of evaluation, the process of ranking and selection of
candidates for admission with reference to their performance, the process of
achieving the objective of selecting candidates who will be better equipped to suit the
specialized courses, are all technical matters in academic field and courts will not
interfere in such processes. Courts will interfere only if they find all or any of the
following: (i) violation of any enactment, statutory Rules and Regulations; (ii) mala
fides or ulterior motives to assist or enable private gain to someone or cause
prejudice to anyone; or where the procedure adopted is arbitrary and capricious. An
action is said to be arbitrary and capricious, where a person, in particular, a person
in authority does any action based on individual discretion by ignoring prescribed
rules, procedure or law and the action or decision is founded on prejudice or
preference rather than reason or fact. To be termed as arbitrary and capricious, the
action must be illogical and whimsical, something without any reasonable

explanation. When an action or procedure seeks to achieve a specific objective in
furtherance of education in a bona fide manner, by adopting a process which is
uniform and non-discriminatory, it cannot be described as arbitrary or capricious or
mala fide.
20. The Appellants in this case have alleged mala fides on the part of Chairman of
the Board and Chairman of the Organising Committee. The allegation is that on
account of personal enmity, rivalry and hostility harboured by them towards the
second Appellant, who happens to be a professor at IIT, Kharagpur, they manipulated
the ranking and selection process and deliberately set cut-off marks to deny
admission to second Appellants' son, a seat in an IIT. The Appellants have not made
out, even remotely, any such motive, in regard to the procedure for arriving at the
cut-off marks. The claim that to deny admission to one student from among more
than 2,87,000 students, they manipulated the process of fixing cut-off marks is too
far fetched and difficult to accept, apart from the fact that there is no iota of material
to support such a claim. It is too much to assume that where nearly three lakhs
candidates appeared, a particular procedure was adopted to ensure that a particular
candidate failed. It would appear that somewhat similar procedure was adopted in the
year 2000 and 2001. The iterative procedure involving mean and standard deviation
of the scores, similar to JEE 2006 was followed in JEE 2001. The object of the entire
exercise was to ensure a balanced selection among the candidates who participated in
the examination. IIT-JEE is a renowned examination trusted by the entire student
world. It is not only a difficult examination to pass, but a difficult examination to
rank and select the best of candidates having good knowledge in all three subjects.
21. The Appellants next contended that the first Appellant had obtained 231 marks
and he had been found to be unsuitable whereas candidates who got 154 were found
suitable, this was absurd and illogical. There is nothing illogical about the process.
The minimum aggregate cut off was 154. The minimum cut off for individual subjects
was 37, 48 and 55 for Maths, Physics and Chemistry. If a candidate had secured the
minimum in three subjects and had also secured the minimum of the aggregate which
was only 154, he becomes eligible; whereas a candidate who got 231 in the
aggregate but does not get the minimum cut off marks in one of the subjects (as for
example the first Appellant who got only 52 which is less than the cut off of 55),
naturally cannot be qualified. Even in standard traditional examinations, if total
maximum marks was 600 (in six subjects) and minimum marks in each of the six
subjects was 35 out of 100, a candidate who may secure 482 marks (that 90% in five
subjects, but secures only 32 marks in one subject, will be considered as failed,
whereas a person who secures only 210 marks (that is 35 marks in all the six
subjects) will be considered as passed. Where minimum performance in all the
subjects is also relevant, a person who fails to get the minimum cut off marks in one
subject, cannot contend that he had secured very high marks in other two subjects
and therefore injustice has been done. All procedures when standardized, result in
some kind of injustice to some or the others. That cannot be helped.
22. The next complaint was about the procedure adopted based on variable cut-offs
instead of pre-declared fixed cut-offs. Where a huge number of candidates (more
than 287,000) have participated in an examination, for filling about 5500 seats, and
it becomes necessary to select candidates possessing comparatively better proficiency
in all three subjects, the traditional methods of short-listing may not be of assistance.
The traditional methods would result in the candidates who have done extremely well
in one subject or two subjects but have little or no proficiency in the third subject to
steal a march over candidates who have done uniformly well in all the three subjects.

27. We find no reason for interfering with the order of the High Court. The appeal is
dismissed.

The European Journal of International Law Vol. 21 no. 4 © EJIL 2011; all rights reserved
..........................................................................................
Immunities of State Officials,

International Crimes, and
Foreign Domestic Courts
Dapo Akande* and Sangeeta Shah**
Downloaded from ejil.oxfordjournals.org at New York University on February 1, 2011

Abstract
This article examines the extent to which state officials are subject to prosecution in foreign
domestic courts for international crimes. We consider the different types of immunity that
international law accords to state officials, the reasons for the conferment of this immunity
and whether they apply in cases in which it is alleged that the official has committed an
international crime. We argue that personal immunity (immunity ratione personae) con-
tinues to apply even where prosecution is sought for international crimes. Also we consider
that instead of a single category of personal immunity there are in fact two types of such
immunity and that one type extends beyond senior officials such as the Head of State and
Head of Government. Most of the article deals with functional immunity (immunity ratione
materiae). We take the view that this type of immunity does not apply in the case of do-
mestic prosecution of foreign officials for most international crimes. However, we reject the
traditional arguments which have been put forward by scholars and courts in support of this
view. Instead we consider the key to understanding when functional immunity is available
lies in examining how jurisdiction is conferred on domestic courts.
1 Introduction
The development of substantive norms of international human rights and inter-
national criminal law has not been matched by the development of mechanisms and
* University Lecturer in Public International Law & Co-Director, Oxford Institute for Ethics Law and Armed
Conflict, University of Oxford; Yamani Fellow, St Peter’s College, Oxford. Email: dapo.akande@law.ox.
ac.uk
** Lecturer in Law, University of Nottingham. Email: sangeeta.shah@nottingham.ac.uk
EJIL (2010), Vol. 21 No. 4, 815–852 doi: 10.1093/ejil/chq080

Immunities of State Officials, International Crimes, and Foreign Domestic Courts 817
states,1 there has been uncertainty about how far those immunities remain applic-
able where the official is accused of committing international crimes. Examining the
rationale for the conferment of each of these types of immunity, as well as their scope,
this article determines whether they remain applicable in criminal proceedings in
which an official is accused of committing a crime under international law. Section 2
of this article examines the immunity that attaches to certain state officials as a result
of their office or status (immunity ratione personae). It is argued that there are in fact
two types of immunity ratione personae: those attaching to a limited group of senior
officials, especially the Head of State, Head of Government, and diplomats, and the im-
munity of state officials on special mission abroad. Section 3 addresses the immunity

which attaches to acts performed by state officials in the exercise of their functions
(immunity ratione materiae). We argue that this immunity has both a substantive and
a procedural function, in that it gives effect to a defence available to state officials and
prevents the circumvention of the immunity of the state. In that part, we consider,
and reject, a number of related arguments which are normally deployed in arguing
that immunity ratione materiae does not apply to cases concerning human rights vio-
lations in general and international crimes in particular. The arguments in question are
based on the jus cogens status of the norms in question or on the view that human
rights violations/international crimes may not be considered sovereign (or official)
acts. In our view, these arguments misunderstand the basis on which immunity is
accorded or are premised on a false conflict of norms. We then go on to suggest a more
persuasive rationale for the argument that immunity ratione materiae does not apply
in cases concerning prosecutions for international crimes. In so doing, we re-examine
the relationship between jurisdictional rules and rules of immunity and suggest that
rules conferring extra-territorial jurisdiction may of themselves displace prior im-
munity rules. Our conclusion considers why it is important to clarify the rationale for
denial of immunity ratione materiae and briefly explores some of the implications of our
theory for civil cases involving human rights violations. Some of the arguments set
out in this article were first summarized by one of us in a previous article.2 The present
article explores the arguments in more detail, filling in some of the steps in the reason-
ing and elaborating on some of the points made and their consequences.

1
See, generally, Whomersley, ‘Some Reflections on the Immunity of Individuals for Official Acts’, 41 ICLQ
(1992) 848; Tomonori, ‘The Individual as Beneficiary of State Immunity: Problems of the Attribution of
Ultra Vires Conduct’, 29 Denver J Int’l L and Policy (2001) 261; H. Fox, The Law of State Immunity (2nd
edn, 2008), at 455–464 and Ch. 19; Watts, ‘The Legal Position in International Law of Heads of States,
Heads of Governments and Foreign Ministers’, 247 Recueil des Cours (1994-III) 13; Wickremasinghe,
‘Immunities Enjoyed by Officials of States and International Organizations’, in M. Evans (ed.), Inter-
national Law (3rd edn, 2010), at 380.

2
Akande, ‘International Law Immunities and the International Criminal Court’, 98 AJIL (2004) 407,
409–415.
820 EJIL 21 (2011), 815–852
uncontroversial and has been widely applied by national courts in relevant cases,16
as well as being upheld in state practice.17 The only case which may be construed as
denying immunity to a Head of State is United States v. Noriega.18 However, immunity
was not accorded in this case on the ground that the US government had never recog-
nized General Noriega (the de facto ruler of Panama) as the Head of State.
B Which Officials are Entitled to Immunity Ratione Personae?

It has long been clear that serving Heads of State,19 Heads of Government,20 and dip-
lomats21 possess immunity ratione personae. In the Arrest Warrant case, the ICJ held
– without reference to any supporting state practice – that immunity ratione per-

sonae also applies to a serving Foreign Minister.22 Questions remain about whether
this type of immunity applies to other senior government members. In describing the
rule according immunity ratione personae in the Arrest Warrant case, the ICJ stated it
16
See the Ghaddafi case, Arrêt no. 1414 (2001), 125 ILR 456 (France: Cour de Cassation); Castro case
(Spain: Audiencia Nacional, 1999), cited by Cassese, supra note 15, at 272 n. 20; Re Sharon and Yaron, 42
ILM (2003) 596 (Belgium: Cour de Cassation); R. v. Bow Street Stipendiary Magistrate and others, Ex parte
Pinochet (No.3) [1999] 2 All ER 97, at 126–127, 149, 179, 189 (HL, per Lords Goff, Hope, Millett, and
Phillips); Plaintiffs A, B, C, D, E, F v. Jiang Zemin, 282 F Supp 2d 875 (ND Ill., 2003); Tachiona v. Mugabe,
169 F Supp 2d 259 (SDNY 2001). In Jan. 2004, an English District Judge rejected, on grounds of immun-
ity, an application for a warrant for the arrest of Robert Mugabe, Head of State of Zimbabwe, in relation to
allegations of torture. In 2008, Spain’s Audencia Nacional concluded that the Spanish courts did not have
jurisdiction to prosecute President Kagame of Rwanda for the crime of genocide, crimes against human-
ity, and terrorist activities: Auto del Juzgado Central de Instucción No. 4 (2008), 151–157. Likewise, in Feb.
2004, a District Judge at Bow Street Magistrates’ Court rejected, on grounds of immunity, an application
for a warrant for the arrest of General Mofaz, then Israeli Minister of Defence, in relation to allegations
of breaches of war crimes: see Warbrick, ‘Immunity and International Crimes in English Law’, 53 ICLQ
(2004) 769. In 2009, Ehud Barak, Israeli Minister of Defence was the subject of an application for an ar-
rest warrant for war crimes committed in Gaza in Dec. 2008. This application was also denied: see Black
and Cobain, ‘Barak faces war crimes arrest threat during UK visit’, The Guardian, 29 Sept. 2009.
17
The US government issued a suggestion of immunity in a case brought against the then President of
China alleging torture, genocide, and other human rights violations. See Murphy, ‘Head-of-State Im-
munity for Former Chinese President Jiang Zemin’ in ‘Contemporary Practice of the United States Relat-
ing to International Law’, 97 AJIL (2003) 962, at 974–977; Plaintiffs A, B, C, D, E, F, supra note 16. In
Aug. 2003, Saied Baghban, an Iranian diplomat accused of having been involved in the bombing of a
Jewish centre in Argentina, was briefly detained in Belgium but then released on grounds of diplomatic
immunity: see Beeston, ‘Iran threatens to hit back over diplomat’s arrest’, The Times, 28 Aug. 2003, at
17. Similarly, despite accusations that the Israeli Ambassador to Denmark had been complicit in tor-
ture while he was head of Shin Bet, the Israeli Intelligence Service, Denmark has maintained that he is
entitled to diplomatic immunity from Danish criminal jurisdiction. See Osborn, ‘Danish protests greet
Israeli envoy’, The Guardian, 16 Aug. 2001, at 13; Hartmann, ‘The Gillon Affair’, 54 ICLQ (2005) 745.
Likewise, the authorities of the UK took the view that a serving Israeli Defence Minister was entitled to
immunity from arrest despite allegations that he had been responsible for war crimes in the West Bank.
See McGreal, ‘Sharon’s Ally Safe from Arrest in Britain’, The Guardian, 11 Feb. 2004, at 19.
18
117 F 3d 1206 (11th Cir. 1997).
19
See Djibouti v. France, supra note 12, at para. 170.
20
See Arrest Warrant case, supra note 9, at para. 51; Watts, supra note 1; Arts 1, 2, and 15 Res of the Institut
de Droit Internaitonal on ‘Immunities from Jurisdiction and Execution of Heads of State and of Government
in International Law’, 2001, available at: www.idi-iil.org/idiE/resolutionsE/2001_van_02_en.PDF.
21
Arts 29 and 31 VCDR.
22
Arrest Warrant case, supra note 9, at para. 53.
Immunities of State Officials, International Crimes, and Foreign Domestic Courts 821
applies to ‘diplomatic and consular agents [and] certain holders of high-ranking office
in a State, such as the Head of State, Head of Government and Minister for Foreign
Affairs’.23 The use of the words ‘such as’ suggests that the list of senior officials entitled
to this immunity is not closed.
In that case, Foreign Ministers were held to be immune because they are respons
ible for the international relations of the state and ‘in the performance of these func-
tions, he or she is frequently required to travel internationally, and thus must be in
a position to do so freely whenever the need should arise’.24 However, justifying this
type of immunity by reference to the international functions of the official concerned
would make it difficult to confine the immunity to a limited group of state officials.

A very wide range of officials (senior and junior) are charged with the conduct of inter-
national relations and need to travel in the exercise of their functions. Ministers other
than those specifically designated as being responsible for foreign affairs often repre-
sent their state internationally. They may have to conduct bilateral negotiations with
other governments or may represent their governments at international organiza-
tions or at international summits. Indeed it is difficult to think of any ministerial pos-
ition that will not require at least some level of international involvement.25
Where officials represent their states at international organizations they will usu-
ally be accorded immunity by treaty.26 Likewise under Articles 29 and 31 of the UN
Convention on Special Missions 1969 the person of any official abroad on a special
mission on behalf of his or her state is inviolable, with the result that he or she may
not be arrested or detained. Furthermore, Article 31 of that Convention provides that
‘the representatives of the sending State in special mission and the members of its dip-
lomatic staff are immune from the criminal jurisdiction of the receiving State’.27 These
are treaty based conferrals of immunity ratione personae which extend the category
beyond the Head of State, Head of Government, and Foreign Minister. However, the
policy underlying the immunity is, in all cases, consistent with that enunciated by the
ICJ. These treaty-based conferments of immunity are intended to facilitate the conduct
of international relations. Although the Convention on Special Missions is in force,
only a small number of states have become party to it (38 at the time of writing). The
23
Ibid. 53 (emphasis added).
24
Ibid.
25
In Application for Arrest Warrant Against General Shaul Mofaz (Decision of District Judge Pratt, Bow Street
Magistrates’ Court, Feb. 2004), it was stated that ‘[t]he function of various Ministers will vary enor-
mously depending upon their sphere of responsibility. I would think it very unlikely that ministerial ap-
pointments such as Home Secretary, Employment Minister, Environment Minister, Culture Media and
Sports Minister would automatically acquire a label of State immunity. However, I do believe that the
Defence Minister may be a different matter’: see Warbrick, supra note 16, at 773. However, in modern
international affairs, it is difficult to see that the Ministers listed above would not be involved in travel
on behalf of the state. However, some limits have been drawn. In Djibouti v. France, supra note 12, the ICJ
confirmed that officials holding the (non-ministerial) posts of Public Prosecutor and Chief of National
Security did not enjoy immunity ratione personae (at para. 194).
26
See Art. IV, para. 11, Convention on the Privileges and Immunities of the UN (1946), supra note 4; Art.
V, General Convention on the Privileges and Immunities of the Organization of African Unity (1965),
available at: www.dfa.gov.za/foreign/Multilateral/africa/treaties/oaupriv.htm.
27
See Arts 29 and 31 UN Convention on Special Missions 1969, supra note 5.
852 EJIL 21 (2011), 815–852
deny it in all cases, or can there be justifiable differences between the answers pro-
vided in different cases? This article has dealt in particular with criminal prosecutions
against officials. The conclusion reached with regard to a lack of immunity ratione
materiae leads to a different result from that which is reached in most judicial decisions
regarding the immunity of the state in proceedings dealing with human rights viola-
tions.166 The question has also been raised as to what the position should be in civil
cases brought against individuals.167 Should civil cases against individuals be deemed
to be analogous to civil proceedings against the state on the theory that such actions
are an indirect way of suing the state?168 Or alternatively should the position of indi-
vidual officials in civil cases be deemed analogous to the position of individual officials

in criminal cases? As Justice Breyer of the United States Supreme Court has suggested:
consensus as to universal criminal jurisdiction itself suggests that universal tort jurisdiction
would be no more threatening. . . . That is because the criminal courts of many nations com-
bine civil and criminal proceedings, allowing those injured by criminal conduct to be repre-
sented, and to recover damages, in the criminal proceeding itself. . . . Thus, universal criminal
jurisdiction necessarily contemplates a significant degree of civil tort recovery as well.169
The approach we take to the removal of immunity ratione materiae in criminal cases,
when combined with Justice Breyer’s views and the assertion that the exercise of crim-
inal jurisdiction over an individual is more coercive than the exercise of civil jurisdic-
tion, may well suggest that in cases where international law confers extraterritorial
jurisdiction over international crimes there is no immunity in either criminal or civil
proceedings. The result reached on this view would be different from that reached by
those who argue for lack of immunity in human rights cases on the ground of a nor-
mative hierarchy or alleged lack of official status for human rights violations. This is
because our view would lead to the conclusion of a lack of immunity in civil cases only
(if at all) in cases where international law rules and practice confer extra-territorial jur-
isdiction over acts of state officials which are co-extensive with the immunity or cases
where the rule conferring jurisdiction contemplates jurisdiction over official conduct.
Since the category of norms falling into this category is smaller than the universe of
human rights norms, our view would suggest that, when considering the question of
immunity from proceedings alleging human rights violations, careful attention needs
to be paid to the human rights violation in question and whether it amounts to an
international crime over which international law grants extra-territorial jurisdiction.
166
See the cases cited supra in notes 68–71.
167
For recent discussion of the issue in the US see Samantar v. Yousuf, 130 S Ct 2278 (US Sup. Ct, 2010);
Bradley and Goldsmith, ‘Foreign Sovereign Immunity, Individual Officials and Human Rights Litigation’,
13 Green Bag 2D (2009) 9; Keitner, ‘Officially Immune? A Response to Bradley and Goldsmith’, 36 Yale
J Int’l L Online (2010); Keitner, ‘The Common Law of Foreign Official Immunity’, 13 Green Bag 2D (forth-
coming 2010); Stephens, ‘The Modern Common Law of Foreign Official Immunity’, 79 Fordham LRev
(forthcoming 2011).
168
See Jones v. Saudi Arabia, supra note 52.
169
Sosa v. Alvarez Machain, 542 US 692 (2004) (US Sup. Ct).
MANU/MH/0953/2015
IN THE HIGH COURT OF BOMBAY
Criminal Public Interest Litigation No. 3 of 2015
Appellants: Sanskar Marathe
Vs.
Respondent: The State of Maharashtra and Ors.
M.S. Shah, C.J. and N.M. Jamdar, J.
Counsels:
For Appellant/Petitioner/Plaintiff: Party-in-Person
For Respondents/Defendant: Sunil V. Manohar, Advocate General and S.K. Shinde,
Government Pleader
JUDGMENT
M.S. Shah, C.J.
1. Arrest of one Assem Trivedi on 8 September 2012 on the basis of registration of
First Information Report ('FIR') on 30 January 2012 alleging, inter alia, commission
of offence of sedition punishable under Section 124A of the Indian Penal Code, 1860,
led to filing of the present Public Interest Litigation which is now registered as
Criminal PIL.
2 . The allegation in the FIR is to the effect that Assem Trivedi, who is a political
cartoonist and social activist, through his cartoons, not only defamed Parliament, the
Constitution of India and the Ashok Emblem but also tried to spread hatred and
disrespect against the Government and published the said cartoons on 'India Against
Corruption" website, which not only amounts to insult under the National Emblems
Act but also amounts to serious act of sedition. After the arrest of Assem Trivedi on 9
September 2012, he was produced before the learned Metropolitan Magistrate. The
petitioner alleged that Assem Trivedi refused to make an application for bail till the
charges of sedition were dropped. Contending that publication and/or posting such
political cartoons on website can by no stretch of imagination attract a serious charge
of sedition and that Assem Trivedi was languishing in jail on account of the charge of
sedition being included in the FIR, the petitioner, a practicing advocate in this Court,
moved the present PIL on 11 September 2012. The matter was mentioned for
circulation and this Court passed the following ad-interim order :
" In the facts and circumstances of the case, by this ad-interim order we
direct that Mr. Assem Trivedi be released on bail on executing a personal
bond in the sum of Rs.5,000/-.
Registry to communicate this order to the Superintendent, Arthur Road Jail."
Accordingly, Mr. Assem Trivedi executed a personal bond and was released on bail.
Thereafter, on the returnable date, leave was granted to implead Mr. Assem Trivedi as

"how far the offence, as defined in Section 124A of IPC, is consistent with the
fundamental right guaranteed by Article 19(1)(a) of the Constitution", and observed,
inter alia, as under :
"24....... It has not been questioned before us that the fundamental right
guaranteed by Art. 19(1)(a) of the freedom of speech and expression is not
an absolute right. It is common ground that the right is subject to such
reasonable restrictions as would come within the purview of clause (2), which
comprises (a) security of the State, (b) friendly relations with foreign States,
(c) public order, (d) decency or morality, etc., etc. With reference to the
constitutionality of s. 124A or s. 505 of the Indian Penal Code, as to how far
they are consistent with the requirements of clause (2) of Art. 19 with
particular reference to security of the State and public order, the section, it
must be noted, penalises any spoken or written words or signs or visible
representations, etc., which have the effect of bringing, or which attempt to
bring into hatred or contempt or excites or attempts to excite disaffection
towards the Government established by law. Now, the expression "the
Government established by law" has to be distinguished from the
persons for the time being engaged in carrying on the
administration. "Government established by law" is the visible
symbol of the State. The very existence of the State will be in jeopardy if
the Government established by law is subverted. Hence the continued
existence of the Government established by law is an essential condition of
the stability of the State. That is why 'sedition', as the offence in s. 124A has
been characterised, comes under Chapter VI relating to offences against the
State. Hence any acts within the meaning of s. 124A which have the effect of
subverting the Government by bringing that Government into contempt or
hatred, or creating disaffection against it, would be within the penal statute
because the feeling of disloyalty to the Government established by law or
enmity to it imports the idea of tendency to public disorder by the use of
actual violence or incitement to violence. In other words, any written or
spoken words, etc., which have implicit in them the idea of subverting
Government by violent means, which are compendiously included in the term
'revolution', have been made penal by the section in question. But the section
has taken care to indicate clearly that strong words used to express
disapprobation of the measures of Government with a view to their
improvement or alteration by lawful means would not come within
the section. Similarly, comments, however strongly worded,
expressing disapprobation of actions of the Government, without
exciting those feelings which generate the inclination to cause
public disorder by acts of violence, would not be penal. In other
words, disloyalty to Government established by law is not the same thing as
commenting in strong terms upon the measures or acts of Government, or its
agencies, so as to ameliorate the condition of the people or to secure the
cancellation or alteration of those acts or measures by lawful means, that is to
say, without exciting those feelings of enmity and disloyalty which imply
excitement to public disorder or the use of violence.
25. It has not been contended before us that if a speech or a writing excites
people to violence or have the tendency to create public disorder, it would not
come within the definition of 'sedition'. What has been contended is that a
person who makes a very strong speech or uses very vigorous words in a
writing directed to a very strong criticism of measures of Government or acts

not incite people to violence against the Government established by law or with the
intention of creating public disorder. The section aims at rendering penal only such
activities as would be intended, or have a tendency, to create disorder or disturbance
of public peace by resort to violence.
1 6 . Cartoons or caricatures are visual representations, words or signs which are
supposed to have an element of wit, humour or sarcasm. Having seen the seven
cartoons in question drawn by the third respondent, it is difficult to find any element
of wit or humour or sarcasm. The cartoons displayed at a meeting held on 27
November 2011 in Mumbai, as a part of movement launched by Anna Hazare against
corruption in India, were full of anger and disgust against corruption prevailing in the
political system and had no element of wit or humour or sarcasm. But for that
reason, the freedom of speech and expression available to the third respondent to
express his indignation against corruption in the political system in strong terms or
visual representations could not have been encroached upon when there is no
allegation of incitement to violence or the tendency or the intention to create public
disorder.
17. We do not find it necessary to dwell on the subject any further, as the learned
Advocate General submitted that the State Government in Home Department will
issue the following guidelines in the form of a Circular to all the Police personnel :
(1) In view of the felt need to issue certain guidelines to be followed by
Police while invoking Section 124A IPC, the following pre-conditions must be
kept in mind whilst applying the same:
(i) The words, signs or representations must bring the Government
(Central or State) into hatred or contempt or must cause or attempt
to cause disaffection, enmity or disloyalty to the Government and the
words/signs/ representation must also be an incitement to violence
or must be intended or tend to create public disorder or a reasonable
apprehension of public disorder;
(ii) Words, signs or representations against politicians or public
servants by themselves do not fall in this category unless the
words/signs/representations show them as representative of the
Government;
(iii) Comments expressing disapproval or criticism of the
Government with a view to obtaining a change of government by
lawful means without any of the above are not seditious under
Section 124A;
(iv) Obscenity or vulgarity by itself should not be taken into account
as a factor or consideration for deciding whether a case falls within
the purview of Section 124A of IPC, for they are covered under other
sections of law;
(v) A legal opinion in writing which gives reasons addressing the
aforesaid must be obtained from Law Officer of the District followed
within two weeks by a legal opinion in writing from Public Prosecutor
of the State.
2.(i) All Unit Commanders are directed to follow above instructions

scrupulously.
(ii) It must also be kept in mind that the instructions mentioned above are
not exhaustive and other relevant factors depending from case to case may
also be kept in mind while applying Section 124A of the IPC.
18. We clarify that this matter was heard only on the limited question of invocation
of Section 124A of IPC and the permissible lawful restriction on the freedom of
speech and expression in the interests of public order and not in any other respect
nor in respect of any other offence alleged to have been committed by the third
respondent.
19. The PIL accordingly stands disposed of.
20. We would like to place on record our appreciation for the valuable assistance
rendered by Mr. Darius Khambata, the then learned Advocate General, as well as Mr.
Sunil Manohar, learned Advocate General, Mr. Mihir Desai, learned counsel for the
third respondent and Mr. Marathe, the party in person.

11 U.S. 116
7 Cranch 116
3 L.Ed. 287
THE SCHOONER EXCHANGE

v.
Mc FADDON & OTHERS.
February 24, 1812
1
Present. All the judges.
2
THIS being a cause in which the sovereign right claimed by NAPOLEON, the
reigning emperor of the French, and the political relations between the United
States and France, were involved, it was, upon the suggestion of the Attorney
General, ordered to a hearing in preference to other causes which stood before
it on the docket.
3
It was an appeal from the sentence of the Circuit Court of the United States,
for the district of Pennsylvania, which reversed the sentence of the District
Court, and ordered the vessel to be restored to the libellants.
4
The case was this—on the 24th of August, 1811, John McFaddon & William
Greetham, of the State of Maryland, filed their libel in the District Court of the
United States, for the District of Pennsylvania, against the Schooner
Exchange, setting forth that they were her sole owners, on the 27th of
October, 1809, when she sailed from Baltimore, bound to St. Sebastians, in
Spain. That while lawfully and peaceably pursuing her voyage, she was on the
30th of December, 1810, violently and foreibly taken by certain persons,
89
2. As to his ambassadors.
3. As to his armies; and
90
4. As to his property—which last is said to be an inference from the three
former cases. But the three former cases are all founded upon consent, and
the latter is not; consequently there can be no analogy between them.
Besides, these cases are not exceptions to the sovereignty, but merely
exemptions form the ordinary judicial process, by consent of the sovereign. If
a foreign sovereign comes secretly into the country, he is not protected from
ordinary process; but when he comes openly in his character as a sovereign,
an assent is implied, and he comes with all the immunities incident to his
dignity, according to the common understanding of the word. All the cases
supposed to be against us are founded upon consent. Bynkerstock also places
it upon the ground of consent, and he is supported by Barbeyrac and Galliani.
91
The positive authorities against the exemption of the property of the sovereign
from the ordinary judicial process, are Bynkershoek 25, Martins 182, and
2 Rutherford 476. The Constitution of the United States takes for granted the
suability of the states, and merely provides the means of carrying the principle
into effect. The exemption of the sovereign himself, his ambassador and his
armies, depends upon particular reasons which do not apply to his property,
nor to his ships of war.
92
PINKNEY, Attorney General, in reply.
93
When wrongs are inflicted by one nation upon another, in tempestuous times,
they cannot be redressed by the judicial department. Its power cannot extend
163
If the preceding reasoning be correct, the Exchange, being a public armed
ship, in the service of a foreign sovereign, with whom the government of the
United States is at peace, and having entered an American port open for her
reception, on the terms on which ships of war are generally permitted to enter
the ports of a friendly power, must be considered as having come into the
American territory, under an implied promise, that while necessarily within it,
and demeaning herself in a friendly manner, she should be exempt from the
jurisdiction of the country.
164
If this opinion be correct, there seems to be a necessity for admitting that the
fact might be disclosed to the Court by the suggestion of the Attorney for the
United States.
165
I am directed to deliver it, as the opinion of the Court, that the sentence of
the Circuit Court, reversing the sentence of the District Court, in the case of
the Exchange be reversed, and that of the District Court, dismissing the libel,
be affirmed.
MANU/SC/0759/2001
Equivalent Citation: AIR2002SC 322, 2002(1)ALD66(SC ), 2002(1)ARBLR231(SC ), JT2001(Suppl2)SC 1, 2001(8)SC ALE417, (2002)2SC C 188

Appeal (civil) 4998 of 2000
Appellants: Sharma Transport Rep. by D.P. Sharma
Vs.
Respondent: Government of Andhra Pradesh and Ors.
B.N. Kirpal, K.G. Balakrishnan and Dr. Arijit Pasayat, JJ.
Counsels:
For Appearing parties: Harish Salve, Solicitor General, K.N. Bhat, G.L. Sanghi and K.
Amareswari, Sr. Advs., B.K. Choudhary, E.C. Vidya Sagar, A.T.M. Sampath, Irshad
Ahmad, R.S. Hegde, Somiran Sharma, Prashant Jain, P.P. Singh, S. Udaya Kumar
Sagar, S.R. Setia, Jaideep Gupta, Niranjana Singh, Anil Katiyar, T.V. Ratnam, K.
Subba Rao and K. Ram Kumar, Advs. and Guntur Prabhakar, Adv. (NP
Case Note:
Motor Vehicles - constitutional validity of order - Articles 73, 246, 254, 256,
301 and 304 of Constitution of India - constitutionality and legality of
Government Order challenged - Order issued by joint secretary directive in
nature - it cannot also be treated as subordinate legislation deriving its
force or power from Act or any other law made by Union - if Court is
satisfied that if in larger public interest it would be inequitable to hold
Government or public authority to promise or representation made by it,
then promissory estoppel cannot be pressed into action - as president's
sanction has been obtained, case would be relatable to Article 304 rather
than Article 301 - for applicability of clause (b), mere assent is not
sufficient, but, tax has to be levied in public interest.
JUDGMENT
Arijit Pasayat, J.
1. These appeals relate to a common judgment of the Andhra Pradesh High Court by
which challenge to Notification issued by the State Government in G.O. Ms. No. 83,
Transport, Roads and Buildings (Tr.II) Department dated 5.6.2000 was rejected. By
the said Notification issued under Clause (b) of Section 9(1) of the Andhra Pradesh
Motor Vehicles Taxation Act, 1963 (in short 'the Taxation Act') an earlier order dated
1.7.1995 issued by the Transport, Roads and Buildings (Tr.II) Department, was
cancelled. The appellants who are operators of tourist buses originating from
Karnataka State (their home State) and plying in adjacent States including the State
of Andhra Pradesh filed the writ petitions assailing the legality and constitutional
validity of the said Notification dated 5.6.2000.
2 . Case of the appellants as canvassed before the High Court and reiterated in this
Court is essentially as follows:

states. Therefore, there cannot be any question of irrationality. The tests of arbitrary
action applicable to executive action do not necessarily apply to delegated legislation.
In order to strike down a delegated legislation as arbitrary it has to be established
that there is manifest arbitrariness. In order to be described as arbitrary, it must be
shown that it was not reasonable and manifestly arbitrary. The expression
"arbitrarily" means: in an unreasonable manner, as fixed or done capriciously or at
pleasure, without adequate determining principle, not founded in the nature of
things, non-rational, not done or acting according to reason or judgment, depending
on the will alone. In the present cases all persons who are similarly situated are
similarly affected by the change. That being so, there is no question of any
discrimination. That plea also fails.
29. What remains now to be considered is plea in the background of Article 301 of
the Constitution. The said Article talks of freedom of trade, commerce and
intercourse. Imposition of a tax does not in every case tantamount to infringement of
Article 301. One has to determine whether the impugned provision amounts to a
restriction directly and immediately on the movement of trade or commerce. In the
Automobile's case (supra), this question was elaborately and succinctly stated by this
Court. Some of the observations relevant for the present dispute are as follows:
"We have tried to summarise above the various stand points and views which
were canvassed before us and we shall now proceed to consider which,
according to us, is the correct interpretation of the relevant articles in Part
XIII of the Constitution. We may first take the widest view, the view
expressed by Shah, J., in the Atibari Tea Co. case MANU/SC/0030/1960 :
[1961]1SCR809 : [1961]1SCR809 a view which has been supported by the
appellants and one or two of the interveners before us. This view, we
apprehend, is based on a purely textual interpretation of the relevant articles
in Part XIII of the Constitution and this textual interpretation proceeds in the
following way. Article 301 which is in general terms and is made subject to
the other provisions of Part XIII imposes a general limitation on the exercise
of legislative power, whether by the Union or the States, under any of the
topics - taxation topics as well as other topics - enumerated in the three lists
of the Seventh Schedule, in order to make certain that "trade, commerce and
intercourse throughout the territory of India shall be free". Having placed a
general limitation on the exercise of legislative powers by Parliament and the
State Legislatures, Article 302 relaxes that restriction in favour of Parliament
by providing that that authority "may be law impose such restrictions on the
freedom of trade, commerce or intercourse between one State and another or
within any part of the territory of India as may be required in the public
interest". Having relaxed the restriction in respect of Parliament under Article
302, a restriction is put upon the relaxation by Article 303(1) to the effect
that Parliament shall not have the power to make any law giving any
preference to any one State over another or discriminating between one State
and another by virtue of any entry relating to trade and commerce in lists I
and III of the Seventh Schedule. Article 303(1) which places a ban on
Parliament against the giving of preferences to one State over another or of
discriminating between one State and another, also provides that the same
kind of ban should be placed upon the State Legislature also legislating by
virtue of any entry relating to trade and commerce in lists II and III of the
Seventh Schedule. Article 303(2) again carves out an exception to the
restriction placed by Article 303(1) on the powers of Parliament, by providing
that nothing in Article 303(1) shall prevent Parliament from making any law

precise or specific amount collected is not actually use not providing any facilities.
36. We may not here that though arguments were advanced in the background of
Article 301 of the Constitution, as has been rightly submitted by the learned counsel
for the State of Andhra Pradesh, there were no pleadings in this regard in the writ
petitions, excepting some general statements about violation of Article 301. It has
been fairly considered that President's assent as required has been obtained. Thus the
case is not relatable to Article 301, but Article 304. With reference to Clause(b) of the
said Article, it is submitted that mere obtaining assent is not sufficient, and it has to
be shown that the levy was in public interest. There was no averment in the petitions
before the High Court in this regard. There was also no view expressed by the High
Court on this issue, in the absence of any argument or plea before it. The question
whether public interest was involved or not required a factual adjudication. Since
there were no pleadings, the State did not have an opportunity to indicate its stand.
Under the circumstances, we do not think it appropriate to consider that question for
the first time in these appeals, particularly when factual adjudication would be
necessary.
37. Coming to the plea relating to repeal of the Notification, it is to be noted that the
Notification dated 1.7.1995 was issued in exercise of powers conferred under Section
9(1)(a) of the Taxation Act, while the impugned Notification was issued in exercise of
powers conferred under Section 9(1)(6) of the said Act. It is to be noted that
originally Notification was issued under Section 3 of the said Act and its operation
has not been questioned. That being the position, there was no requirement to issue
a fresh Notification to make the levy. Notification dated 1.7.1995, did not supersede
the original Notification issued under Section 3 of the Taxation Act.
38. In the result, the appeals are dismissed.

MANU/SC/0329/2015
Equivalent Citation: 2015X AD (S.C .) 586, AIR2015SC 1523, 2015 (2) ALD(C rl.) 971 (SC ), 2015 (2) ALT (C rl.) 251 (A.P.),
2015(2)BomC R(C ri)515, II(2015)C C R47(SC ), (2015)2C ompLJ143(SC ), 218(2015)DLT370(SC ), 2015GLH(1)741, 2015(2)J.L.J.R.161,
2015(2)KLJ292, 2015(2)KLT1(SC ), (2015)3MLJ162(SC ), 2015(3)N.C .C .169, 2015(2)PLJR138, 2015(2)RC R(C riminal)403, 2015(4)SC ALE1,
(2015)5SC C 1, 2015 (4) SC J 283, 2015(1)UC 594

Writ Petition (Criminal) No. 167 of 2012, Writ Petition (Civil) No. 21 of 2013, Writ
Petition (Civil) No. 23 of 2013, Writ Petition (CIVIL) No. 97 of 2013, Writ Petition
(Criminal) No. 199 of 2013, Writ Petition (Civil) No. 217 of 2013, Writ Petition
(Criminal) No. 222 of 2013, Writ Petition (Criminal) No. 225 of 2013, Writ Petition
(Civil) No. 758 of 2014 and Writ Petition (Criminal) No. 196 of 2014
Appellants: Shreya Singhal
Vs.
Respondent: Union of India (UOI)
Jasti Chelameswar and Rohinton Fali Nariman, JJ.
Case Note:
Constitution - Speech and expression - Freedom of - Infringement thereto -
Sections 66A, 69 and 79 of Information Technology Act, 2000, Information
Technology (Procedure and Safeguards for Blocking for Access of
Information by Public) Rules, 2009 and Section 118(d) of Kerala Police Act,
Section 95 and 96 Code of Criminal Procedure, 1973 and Articles 19(1)A
and 19(2) of Constitution of India - Present appeal filed to determine
validity of Sections 66A, 69A and 79 of Act, Information Technology Rules,
2009 and Section 118(d) of Kerala Police Act - Whether Sections 66A, 69
and 79 of IT Act and Section 118(d) of Act required to be declared
unconstitutional for being in violation of Article 19(1)(a) and not saved by
Article 19(2) - Held, Petitioners were correct in saying that public's right to
know was directly affected by Section 66A - Petitioners were right in saying
that Section 66A in creating offence against persons who use internet and
annoy or cause inconvenience to others very clearly affects freedom of
speech and expression of citizenry of India at large - Section 66A
arbitrarily, excessively and disproportionately invades right of free speech
and upsets balance between such right and reasonable restrictions that
may be imposed on such right - Therefore, hold Section 66A was
unconstitutional also on ground that it takes within its sweep protected
speech and speech that was innocent in nature - Therefore hold that no
part of Section 66A was severable and provision as whole must be declared
unconstitutional - Section 66A creates offence which was vague and
overbroad, and, therefore, unconstitutional under Article 19(1)(a) and not
saved by Article 19(2) - Kerala Police Act as whole would necessarily fall
under Entry 2 of List II - Section 66A would apply directly to Section 118(d)
of Act, as causing annoyance in indecent manner suffers from same type of
vagueness and over breadth, that led to the invalidity of Section 66A -
Section 118(d) also violates Article 19(1)(a) and not being reasonable
restriction on said right and not being saved under any of subject matters

intermediary. The Committee then examines the request and is to consider whether
the request is covered by 69A(1) and is then to give a specific recommendation in
writing to the Nodal Officer of the concerned Organization. It is only thereafter that
the Designated Officer is to submit the Committee's recommendation to the
Secretary, Department of Information Technology who is to approve such requests or
complaints. Upon such approval, the Designated Officer shall then direct any agency
of Government or intermediary to block the offending information. Rule 9 provides
for blocking of information in cases of emergency where delay caused would be fatal
in which case the blocking may take place without any opportunity of hearing. The
Designated Officer shall then, not later than 48 hours of the issue of the interim
direction, bring the request before the Committee referred to earlier, and only on the
recommendation of the Committee, is the Secretary Department of Information
Technology to pass the final order. Under Rule 10, in the case of an order of a
competent court in India, the Designated Officer shall, on receipt of a certified copy
of a court order, submit it to the Secretary, Department of Information Technology
and then initiate action as directed by the Court. In addition to the above safeguards,
Under Rule 14 a Review Committee shall meet at least once in two months and record
its findings as to whether directions issued are in accordance with Section 69A(1)
and if it is of the contrary opinion, the Review Committee may set aside such
directions and issue orders to unblock the said information. Under Rule 16, strict
confidentiality shall be maintained regarding all the requests and complaints received
and actions taken thereof.
1 0 8 . Learned Counsel for the Petitioners assailed the constitutional validity of
Section 69A, and assailed the validity of the 2009 Rules. According to learned
Counsel, there is no pre-decisional hearing afforded by the Rules particularly to the
"originator" of information, which is defined Under Section 2(za) of the Act to mean a
person who sends, generates, stores or transmits any electronic message; or causes
any electronic message to be sent, generated, stored or transmitted to any other
person. Further, procedural safeguards such as which are provided Under Section 95
and 96of the Code of Criminal Procedure are not available here. Also, the
confidentiality provision was assailed stating that it affects the fundamental rights of
the Petitioners.
109. It will be noticed that Section 69A unlike Section 66A is a narrowly drawn
provision with several safeguards. First and foremost, blocking can only be resorted
to where the Central Government is satisfied that it is necessary so to do. Secondly,
such necessity is relatable only to some of the subjects set out in Article 19(2).
Thirdly, reasons have to be recorded in writing in such blocking order so that they
may be assailed in a writ petition Under Article 226 of the Constitution.
110. The Rules further provide for a hearing before the Committee set up-which
Committee then looks into whether or not it is necessary to block such information. It
is only when the Committee finds that there is such a necessity that a blocking order
is made. It is also clear from an examination of Rule 8 that it is not merely the
intermediary who may be heard. If the "person" i.e. the originator is identified he is
also to be heard before a blocking order is passed. Above all, it is only after these
procedural safeguards are met that blocking orders are made and in case there is a
certified copy of a court order, only then can such blocking order also be made. It is
only an intermediary who finally fails to comply with the directions issued who is
punishable Under Sub-section (3) of Section 69A.
111. Merely because certain additional safeguards such as those found in Section 95

fear engenders, in addition to protecting people from the possibility that the
threatened violence will occur. Intimidation in the constitutionally proscribable sense
of the word is a type of true threat, where a speaker directs a threat to a person or
group of persons with the intent of placing the victim in fear of bodily harm or death.
See Virginia v. Black (Supra) and Watts v. United States 22 L. Ed. 2d. 664 at 667

MANU/SC/0056/1962
Equivalent Citation: AIR1962SC 1314, 1963(65)BOMLR267, 1963MhLJ457, [1962]Supp3SC R549

Appellants:Sir Chunilal V. Mehta and Sons, Ltd.
Vs.
Respondent:The Century Spinning and Manufacturing Co., Ltd.
B.P. Sinha, C.J., J.C. Shah, J.L. Kapur, J.R. Mudholkar and M. Hidayatullah, JJ.
Case Note:
Commercial - compensation - Article 133 (1) of Constitution of India and
Sections 73 and 74 of Indian Contract Act, 1872 - issue regarding payment
of damages for breach of contract - High Court awarded compensation at
rate of Rs. 6000 per month for unexpired period - appellant contended that
as per agreement liability to pay damages amounts to large sum than
payable under clause 14 - clause 14 of agreement did not expressly or by
necessary implication keep alive right to claim damages under general law -
under general law right to claim damages excluded by providing
compensation in express terms - decree of High Court affirmed.
(ii) Question of law - Section 110 of Code of Civil Procedure, 1908 -

whether in appeal before Supreme Court a substantial question of law
involved - proper test for determining question of law is to see whether it is
of general public importance or it directly affect rights of parties and if so
whether it is either an open question not finally decided by Court - applying
said test Court held that question of law was involved in appeal therefore
appeal maintainable.
JUDGMENT
J.R. Mudholkar, J.
1 . This is an appeal by special leave against the Judgment of the High Court of
Bombay in an appeal from the judgment of a single Judge of that Court. The claim in
appeal before the High Court was for about 26 lakhs of rupees. Being aggrieved by
the decision of the High Court, the appellant applied for a certificate under Art.
133(1)(a) of the Constitution. The judgment of the High Court in appeal was in
affirmance of the judgment of the learned single Judge dismissing the appellant's suit
for damages and therefore, it was necessary for the appellant to establish that a
substantial question of law was involved in the appeal. On behalf of the appellant it
was contended that the question raised concerned the interpretation to be placed on
certain clauses of the managing agency agreement upon which their claim in the suit
was founded and that as the interpretation placed by the appeal court on those
clauses was erroneous and thus deprived them of the claim to a substantial amount
the matter deserved to be certified by the High Court under Art. 133(1)(a) of the

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 view, 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 fact of the case it would not be a
substantial question of law.
10. We are in general agreement with the view taken by the Madras High Court and
we think that while the view taken by the Bombay High Court is rather narrow the
one taken by the former High Court of Nagpur is too wide. 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.
11. Applying these tests it would be clear that the question involved in this appeal,
that is, the construction of the Managing Agency agreement is not only one of law but
also it is neither simple nor free from doubt. In the circumstances we have no
hesitation in saying that the High Court was in error in refusing to grant the appellant
a certificate that the appeal involves a substantial question of law. It has to be borne
in mind that upon the success or the failure of the contention of the parties, they
stand to succeed or fail with respect to their claim for nearly 26 lakhs of rupees.
12. Now as to the merits. The relevant facts may be briefly stated. Chunilal Mehta &
Co., Bombay were appointed Managing Agents of the respondent company for a term
of 21 years by an agreement dated June 15, 1933. By a resolution passed by the
respondent company in October 1945, Chunilal Mehta & Co., were permitted to assign
the benefits of the aforesaid agreement to the present appellant, Sir Chunilal V.
Mehta & Sons Ltd. On April 23, 1951, the Board of Directors of the Company
terminated the agreement of 1933 and passed a resolution removing the appellant as
Managing Agents on April 23, 1951. The appellant thereupon filed a suit on the
original side of the Bombay High Court claiming Rs. 50 lakhs by way of damages for
wrongful termination of the agreement. Eventually with the permission of the Court it
amended the plaint and claimed instead Rs. 28,26,804/-. The company admitted
before the Court that the termination of the appellants' employment was wrongful and
so the only question which the learned Judge before whom the matter went had to
decide was the quantum of damages to which the appellant was entitled. This
question depended upon the construction to be placed upon clause 14 of the
Managing Agency agreement.
13. That clause runs thus :
"In case the Firm shall be deprived of the office of Agents of the Company for
any reason or cause other than or except those reasons or causes specified in
Clause 15 of these presents the Firm shall be entitled to receive from the
Company as compensation or liquidated damages for the loss of such
appointment a sum equal to the aggregate amount of the monthly salary of

indeed have been entitled to claim damages at the rate of 10% for the entire period
subject to minimum of Rs. 6,000/- p.m. On the other hand it seems to us that the
intention of the parties was that if the appellants were relieved of the duty to work as
Managing Agent and to put in their own money for carrying on the duties of
managing agents they should not be entitled to get anything more than Rs. 6,000/-
p.m. by way of compensation. Clause 14 as it stands deals with one subject only and
that is compensation. It does not expressly or by necessary implication keep alive the
right to claim damages under the general law. By providing for compensation in
express terms the right to claim damages under the general law is necessarily
excluded and, therefore, in the face of that clause it is not open to the appellant to
contend that that right is left unaffected. There is thus no substance in the alternative
contention put forward by the learned counsel.
19. Accordingly we affirm the decree of the High Court and dismiss the appeal with
costs.

MANU/SC/0885/2008
Equivalent Citation: AIR2008SC 1528, 2008(2)ALT(C ri)439, 2008(56)BLJR979, 2008C riLJ1927, JT2008(3)SC 52, 2008(3)KLT219(SC ), 2008-2-
LW(C rl)981, 2008(I)OLR605, 2008(I)OLR(SC )605, 2008(1)RC R(C riminal)880, 2008(2)SC ALE717, (2008)3SC C 574, 2008(1)UJ330

Appellants:Som Mittal
Vs.
Respondent:Government of Karnataka
K.G. Balakrishnan, C.J., R.V. Raveendran and J.M. Panchal, JJ.
Counsels:
For Appellant/Petitioner/Plaintiff: K.K. Venugopal and K.G. Raghavan, Sr. Advs., Amit
Dhingra and Aman Leekha, Advs. for Dua Associate
For Respondents/Defendant: Sanjay R. Hegde, Vikrant Yadav, Amit Kumar Chawla and
Arul Varma, Advs.
Case Note:
1. CRIMINAL PROCEDURE CODE, 1973 - Sec. 482 - Quashing of a complaint
or criminal proceedings under Sec. 482, Cr.P.C. depends on the facts and
circumstances of each case - Power under Sec. 482 to quash the F.I.R. or
criminal proceedings should be used sparingly and with circumspection -
Categories of cases where power under Sec. 482 could be exercised either
to prevent abuse of the process of any Court or otherwise to secure the
ends of justice, stated.
2. PRACTICE AND PROCEDURE - Judgments are not to be construed as
statutes - Nor words or phrases in judgments to be interpreted like
provisions of a statute.
3. PRACTICE AND PROCEDURE - Judgments - While rendering judgments,
Courts should only deal with the subject matter of the case and issues
involved therein - Courts should desist from issuing directions affecting
executive or legislature policy, or general directions unconnected with the
subject matter of the case - A Court may express its views on a particular
issue in appropriate cases only where it is relevant to the subject matter of
the case.
Ratio Decidendi:
"The expression "rarest of rare cases" is used to emphasize that the power
under Section 482 Cr.P.C to quash the FIR or criminal proceedings should
be used sparingly and with circumspection."
ORDER
K.G. Balakrishnan, C.J.

those suspected of involvement in a crime and the directions issued by this Court in
Joginder Kumar v. State of U.P. MANU/SC/0311/1994 :1994CriL J1981 in regard to
the procedure to be followed when arresting a person, and directed that copies of his
judgment be sent to the Chief Secretaries, Home Secretaries and Law Secretaries of
all State Governments and Union Territories with a direction to ensure strict
compliance with said decision.
4. In view of the difference of opinion on legal issues, the appeal was directed to be
placed before the Chief Justice of India for appropriate orders, though both learned
Judges concurred that the appeal should be dismissed. The matter is accordingly
placed before the bench of three Judges.
5 . When the matter came up, Mr. K.K.Venugopal, learned senior counsel for the
appellant submitted that having regard to the exemption under Section 3(h) of the
Act in respect of persons in management of an establishment, the Act in entirety was
inapplicable to the appellant who was the Managing Director of the establishment. He
also submitted that the question of violation of Section 25 of the Act did not arise as
Appellant's establishment was exempted from the provisions of Section 25 of Act by
Government Order dated 9.2.2005 and therefore there was no question of violation of
Section 25 or commission of an offence punishable under Section 31(1) of the Act by
his establishment. He therefore submitted that the complaint ought to have been
quashed when its establishment invoked the High Court to exercise its power under
Section 482 Cr.P.C. On the other hand the learned Counsel for the respondent State
submitted that the object of Section 3(h) of the Act was to exclude persons in
management from being considered as employees entitled to seek benefits and reliefs
under the Act. He submitted that the intention of Section 3(h) was not to exempt
'persons in management' from incurring liability under the Act. He also submitted that
the complaint disclosed violation of the provisions of the proviso to Section 25 of the
Act and therefore the learned Magistrate rightly took cognizance. It is unnecessary to
examine these contentions urged by the parties, on merits. As already noticed, both
the learned Judges have concurred and dismissed the appeal. What is referred is only
the legal issues which did not affect the final decision of the learned Judges that the
appeal should be dismissed.
6 . Though the learned Judges did not set down the legal issues, we discern the
following two issues from their opinions:
(i) Whether the power under Section 482 Cr.P.C. should be exercised
'sparingly' or 'sparingly with circumspection and in the rarest of rare cases'?
(ii) Whether the recommendations and directions relating to anticipatory bail
and enforcement of the directions relating to arrest laid down in Joginder
Kumar were warranted in this case?
7. When Sema, J. observed that the power under Section 482 Cr.P.C. was to be used
'sparingly, with circumspection and in rarest of rare cases', he did not lay down any
new proposition of law, but was merely reiterating what was stated by this Court in
several cases, including Kurukshetra University v. State of Haryana
MANU/SC/0102/1977 : 1977CriL J1900 and State of Haryana v. Bhajan Lal
MANU/SC/0115/1992 : 1992CriL J527 . In Kurukshetra University (supra), this Court
observed "that the statutory power under Section 482 has to be exercised sparingly
with circumspection and "in rarest of rare cases". In Bhajan Lal, this Court reiterated
the word of caution that the power of quashing a criminal proceeding should be

exercised "very sparingly and with circumspection and that too in the rarest of rare
cases". It may not therefore be correct to say that the words 'rarest of rare cases' are
appropriate only when considering death sentence for an offence under Section 302
IPC or that those words are inappropriate when referring to the ambit of the power to
be exercised under Section 482 Cr.P.C.
8 . Quashing of a complaint or criminal proceedings under Section 482 Cr.P.C.
depends on the facts and circumstances of each case. The scope and ambit of the
power under Section 482 has been explained by this Court in a series of decisions --
R.P. Kapur v. State of PunjabMANU/SC/0086/1960 :1960CriL J1239 , State of Uttar
Pradesh v. R.K. Srivastava MANU/SC/0526/1989 :1989CriL J2301 ; State of Haryana
v. Bhajan Lal MANU/SC/0115/1992 : 1992CriLJ527 , Mrs. Rupan Deol Bajaj v. Kanwar
Pal Singh Gill MANU/SC/0080/1996 :1996CriL J381 ; Pepsi Foods Ltd. v. Special
Judicial Magistrate MANU/SC/1090/1998 :1998CriL J1 ; Zandu Pharmaceutical Works
v. Mohd. Sharaful Haque MANU/SC/0932/2004 :2005CriL J92 ; Indian Oil Corporation
v . NEPC India Ltd. MANU/SC/3152/2006 :AIR2006SC2780 , and Sonapareddy
Maheedhar v. State of Andhra Pradesh MANU/SC/0068/2008 :2008CriL J1375 . This
Court in Bhajan Lal (supra) listed the following categories of cases where power
under Section 482 could be exercised either to prevent abuse of the process of any
court or otherwise to secure the ends of justice:
(1) Where the allegations made in the first information report or the
complaint, even if they are taken at their face value and accepted in their
entirety do not prima facie constitute any offence or make out a case against
the accused.
(2) Where the allegations in the first information report and other materials,
if any 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 or a Magistrate within the purview of Section 155(2) of the
Code.
(3) Where the uncontroverted allegations made in the FIR or complaint and
the evidence collected in support of the same do not disclose the commission
of any offence and make out a case against the accused.
(4) Where, the allegations in the FIR do not constitute a cognizable offence
but constitute only a non-cognizable offence, no investigation is permitted by
a police officer without an order of a Magistrate as contemplated under
Section 155(2) of the Code.
(5) Where the allegations made in the FIR or complaint are so absurd and
inherently improbable on the basis of which no prudent person can ever
reach a just conclusion that there is sufficient ground for proceeding against
the accused.
(6) Where there is an express legal bar engrafted in any of the provisions of
the Code or the concerned Act (under which a criminal proceeding is
instituted) to the institution and continuance of the proceedings and/or
where there is a specific provision in the Code or the concerned Act,
providing efficacious redress for the grievance of the aggrieved party.
(7) Where a criminal proceeding is manifestly attended with mala fide and/or
where the proceeding is maliciously instituted with an ulterior motive for

wreaking vengeance on the accused and with a view to spite him due to
private and personal grudge.
It was also made clear that it was not possible to lay down precise and inflexible
guidelines or any rigid formula or to give an exhaustive list of the circumstances in
which such power could be exercised.
9. When the words 'rarest of rare cases' are used after the words 'sparingly and with
circumspection' while describing the scope of Section 482, those words merely
emphasize and reiterate what is intended to be conveyed by the words 'sparingly and
with circumspection'. They mean that the power under Section 482 to quash
proceedings should not be used mechanically or routinely, but with care and caution,
only when a clear case for quashing is made out and failure to interfere would lead to
a miscarriage of justice. The expression "rarest of rare cases" is not used in the sense
in which it is used with reference to punishment for offences under Section 302 IPC,
but to emphasize that the power under Section 482 Cr.P.C. to quash the FIR or
criminal proceedings should be used sparingly and with circumspection.
Judgments are not to be construed as statutes. Nor words or phrases in judgments to
be interpreted like provisions of a statute. Some words used in a judgment should be
read and understood contextually and are not intended to be taken literally. Many a
time a Judge uses a phrase or expression with the intention of emphasizing a point or
accentuating a principle or even by way of a flourish of writing style. Ratio decidendi
of a judgment is not to be discerned from a stray word or phrase read in isolation.
10. The second issue involves the recommendations made to the Government of U.P.
and directions issued to all States and Union Territories in paras 17 to 39 of the
concurring judgment. The appeal related to the question whether the complaint
against the appellant disclosed the ingredients of an offence under Section 25 of the
Karnataka Shops & Commercial Establishments Act, 1961. The appeal did not relate
to grant of anticipatory bail nor did it relate to rights of arrested persons. This Court
has repeatedly cautioned that while rendering judgments, courts should only deal
with the subject matter of the case and issues involved therein. Courts should desist
from issuing directions affecting executive or legislative policy, or general directions
unconnected with the subject matter of the case. A court may express its views on a
particular issue in appropriate cases only where it is relevant to the subject matter of
the case.
11. The subject matter of an appeal, whether civil or criminal, is the correctness of
the decision of the court below. There is no question of appellate court travelling
beyond and making observations alien to the case. Any opinion, observation,
comment or recommendation de hors the subject of the appeal, may lead to
confusion in the minds of litigants, members of public and authorities as they will not
know how to regulate their affairs, or whether to act upon it. Another aspect that
requires to be kept in view is the fact that even when it becomes necessary for a
court for whatsoever reason, to decide or comment upon an issue not raised by the
parties, it may do so only after notifying the parties concerned so that they can put
forth their views on such issue.
12. When this Court renders judgments, it does so with great care and responsibility.
The law declared by this Court is binding on all courts. All authorities in the territory
of India are required to act in aid of it. Any interpretation of a law or a judgment, by
this Court, is a law declared by this Court. The wider the power, more onerous is the

responsibility to ensure that nothing is stated or directed in excess of what is
required or relevant for the case, and to ensure that the Court's orders and decisions
do not create any doubt or confusion in regard to a legal position in the minds of any
authority or citizen, and also to ensure that they do not conflict with any other
decision or existing law. Be that as it may.
13. In so far as the observations, recommendations, and directions in paras 17 to 39
of the concurring judgment, suffice it to say that they do not relate to the subject
matter of the criminal appeal and being the expression of an expectation or hope by
only one of the learned Judges constituting the Bench and not agreed to by the other,
is not a decision, order or direction of the Court. That being so, the directions issued
to the Secretary General of the Supreme Court, State Governments and Union
Territories, and recommendations to the Government of U.P. in the "aside" contained
in Paras 17 to 39 of the concurring judgment are not directions to be complied with.
The two questions are answered accordingly.

PAPER NO. 22/2018
MARCH 2018
The Immunities of Members of Special Missions

Andrew Sanger & Sir Michael Wood
Further information about the University of Cambridge Faculty of Law Legal Studies
Research Paper Series can be found at http://www.law.cam.ac.uk/ssrn/
The rules of customary international law on special missions derive from the general
practice and opinio juris of States, and reflect the principle of functional necessity that
underlies all diplomatic law. Section II of this chapter deals with the development of
the law of special missions, including its roots in the long history of the law relating to
the institution of ad hoc diplomacy, the major – though not entirely successful – attempt
in the 1960s to codify the status, privileges and immunities of special missions, and
subsequent developments, including the more recent work of the International Law
Commission and the Council of Europe. Section III then provides an overview of the
New York Convention on Special Missions, while Section IV examines the law on
special missions under customary international law. Section V considers some recent
procedural developments, and Section VI offers some conclusions.
II. The Evolution of the Law on Special Missions
1. The Early Development of the Law on ad hoc Diplomacy
The preamble to the 1969 Convention on Special Missions begins by recalling ‘that
special treatment has always been accorded to special missions’.8 Diplomacy has
indeed long been conducted through both permanent and temporary missions, often
referred to as permanent diplomatic missions on the one hand and special, temporary,
ad hoc missions or itinerant envoys on the other.9 As the United Nations Secretariat
explained in 1963:
The custom of sending a special envoy on mission from one State to another, in order to mark
the dignity or importance of a particular occasion, is probably the oldest of all means by which
diplomatic relations may be conducted. It was only with the emergence of national States on a
modern pattern that permanently accredited diplomatic missions, entrusted with a full range of
powers, came to take the place of temporary ambassadors sent specially from one sovereign to
another. However, although the legal rules which were evolved to determine diplomatic relations
between States were therefore based largely on the conduct of permanent missions, so that special
missions came to seem merely a particular variant of the other, the sending of special missions
was never discontinued. During the eighteenth and nineteenth centuries such missions were
frequently dispatched in order to provide suitable State representation at major ceremonial
8
Convention on Special Missions, 8 December 1969, in force 21 June 1985, 1400 UNTS 231.
9
See Mr Ruda, Chairman of the ILC in UNGA Sixth Committee, 23rd Session, 1039th Meeting, UN Doc.
A/C.6/SR.1039, 15 October 1968, paras 31–2: ‘the use of special missions having been, in fact, the
earliest form of diplomacy. State practice on the subject went back to the very beginning of formal
relations between nations. The historical works on India established that constant contacts and relations
were maintained between some of the States of ancient India and certain Asia, European and African
States through special missions. Similarly, the Greek city states and Rome had developed in accident
times an elaborate system of ad hoc diplomacy’.
Page 3 of 32
Electronic copy available at: https://ssrn.com/abstract=3135386

occasions, such as coronations or royal weddings, or for the purposes of important political
negotiations, particularly those held at international congresses.10
In the same 1963 working paper, the UN Secretariat noted that
[i]n the previous attempts to codify or restate the law relating to diplomatic intercourse between
States, it would appear that the majority of rules have usually been considered equally applicable
to both special and permanent missions.11
In other words, even if there was some disagreement over the precise scope of the rules
applicable to special missions, there was no doubt that members of both permanent and
special missions benefited from the long-standing principle that envoys sent by one
sovereign to another enjoy immunity.12 In reaching this conclusion, the Secretariat
referred to the Vienna Règlement of 1815; the private codification efforts of Bluntschli,
Fiore, Pessôa, Phillimore and Strupp; the Institut resolutions of 1895 and 1929; the
Havana Convention on Diplomatic Officers of 1929; and the Harvard Draft Convention
on Diplomatic Privileges and Immunities of 1932.13
The Vienna Règlement of 1815 (concerning the classes and precedence of heads of
mission) made only one specific mention of special missions, providing that ‘[l]es
employés diplomatiques en mission extraordinaire n’ont à ce titre aucune supériorité
de rang’.14 The Havana Convention on Diplomatic Officers, which was concluded at
the Sixth International Conference of American States on 20 February 1928 and which
entered into force in 1929, assimilated the status of ‘extra-ordinary diplomatic officers’
to that of regular, permanent diplomatic agent.15 The Harvard Draft Convention on
10
(1963) II Yearbook of the International Law Commission, 151, para. 3. See also Bartoš’s first report
on special missions (A/CN.4/166), paras 11–19 ((1964) II Yearbook of the International Law
Commission, 70–3). In the 1420s, Venice regarded its procurator in Rome, Bembo, ‘as dispensing them
from the necessity of sending special missions, … it would be bold to assert that Bembo was the first
resident ambassador at the Papal See, and thus the founder of the first lasting resident embassy in history.
But he certainly had no immediate predecessor, and the language of the Senate indicates that they
regarded his appointment as an innovation’; G. Mattingly, Renaissance Diplomacy (Penguin Books,
1954), p. 74.
11
(1963) II Yearbook of the International Law Commission, 152, para. 6.
12
See, e.g., the conclusion of the English Divisional Court in: United Kingdom, England and Wales High
Court of Justice, Divisional Court, The Freedom and Justice Party and others v. Secretary of State for
Foreign and Commonwealth Affairs and others, Case No. 2010, 5 August 2016, [2016] EWHC 2010
(Admin), that as of 1967 ‘[t]here was some customary law’ on special missions immunity (para. 101).
13
Ibid., pp. 152–4, paras. 6–10.
14
Règlement de Vienne sur le rang entre les agents diplomatiques: for the text of the Règlement, see
(1958) II Annuaire de la Commission du droit international, p. 97, note 29.
15
Convention on Diplomatic Officers, 20 February 1928, in force 21 May 1929, 155 LNTS No. 3581.
Articles 3 and 4 of the 1928 Convention read: ‘Diplomatic envoys are classed as ordinary or
extraordinary. Those who permanently represent the Government of one State before that of another are
ordinary. Those entrusted with a special mission or those who are accredited to represent the Government
in international conferences and congresses or other international bodies are extraordinary. Except as
Page 4 of 32
V. Procedural Matters
The receiving State must consent to the visit as a special mission,174 but there is no
requirement in the Convention on Special Missions or under customary international
law that consent take a particular form. It is only necessary for the receiving State to
have previously agreed through diplomatic or other mutually agreed channels to receive
the visitors as part of a special mission entitled to immunity.175 It is not necessary that
the sending and receiving States use the term ‘special mission’. The issuance of a visa—
even a diplomatic or official visa – does not necessarily mean that the State consents to
a special mission.176 Immigration authorities may not be concerned with the question
of immunities or of whether the executive has consented to the visit as a special mission.
Consent may be implied from all the circumstances, although some States also provide
a formal process for obtaining consent177 and/or a procedure to obtain express
confirmation of whether the State has consented to a visit as a special mission. For
example, following the High Court decision in Khurt Bat,178 the British Government
informed the UK Parliament of ‘a new pilot process by which the Government will be
informed of inward visits which may qualify for special mission immunity status’. In
doing so, it explained that
[a] special mission is a temporary mission, representing a state, which is sent by one state to
another with the consent of the latter, in order to carry out official engagements on behalf of the
sending state.
It further explained that
[i]n the case of Khurts Bat v the Federal Court of Germany [2011] EWHC 2029 (Admin) the
High Court recognised that, under customary international law, members of a special mission
enjoy immunities, including immunity from criminal proceedings and inviolability of the
person, and that these immunities have effect in the United Kingdom by virtue of the common
law. However, the Court made clear that not everyone representing a State on a visit of mutual
interest is entitled to the immunities afforded to members of a special mission but only where a
visit is consented to as a special mission. In the case of inward missions to the United Kingdom,
the Court affirmed that it is a matter for Her Majesty’s Government to decide whether to
recognise a mission as a special mission.179
174
The Khurts Bat case (n 104), para. 29; Art 2 of the Convention on Special Missions (n 8).
175
See Art 2. Of the Convention on Special Missions (n 8), which also stipulates that consent should be
obtained ‘through the diplomatic or another agreed or mutually acceptable channel’.
176
The Khurts Bat case (n 104), paras. 27ff.
177
E.g.: Finland (Section 13 of the Government Rules of Procedure Representation of Foreign States and
Organisations in Finland); Germany (a formal notification to the Federal Foreign Office; although
consent can still be implied): CAHDI Replies to Questionnaire (n 33), 53 and 62. See also: Italy (a formal
notification to the Italian Ministry of Foreign Affairs, although an official invitation by competent Italian
authorities would normally indicate implied consent to the mission: Freedom and Justice Party, CAHDI
Annex (n 33)).
178
The Khurts Bat case (n 104).
179
Written Ministerial Statement, House of Commons (n 66).
Page 31 of 32
In a Note of the same date to diplomatic missions and international organizations in
London, the FCO drew attention to this new procedure ‘of which missions may wish to
avail themselves, in order to clarify where the United Kingdom consents to an official
visit as a special mission’. The Note stated that
The FCO is mindful of the obligations incumbent upon the United Kingdom under customary
international law in respect of special missions. Under customary international law, a special
mission is a temporary mission, representing a State, which is sent by one State to another State
with the consent of the latter, in order to carry out official business. In this context, ‘official
business’ will normally involve official contacts with the authorities of the United Kingdom,
such as a meeting [with] officials of Her Majesty’s Government, or attendance at a ceremonial
occasion, for example a Royal Wedding.180
Notwithstanding this and other procedures for ensuring advance consent, under
customary international law there does not seem to be a strict requirement that consent
must be given prior to the arrival of the members of the special mission.181
VI. Conclusion
From the State practice and opinio juris referred to above, it can be seen that under
customary international law members of special missions, accepted as such by the
receiving State, enjoy inviolability of the person and immunity from criminal
jurisdiction for the duration of the mission. Beyond this, however, uncertainties remain:
these include the precise scope of missions in respect of which immunity arises (with
some States recognising immunity for all missions, regardless of their level and
function); and whether and if so how far customary law requires States to grant
immunity from civil jurisdiction.
180
FCO Diplomatic Note No A061/13, 4 March 2013 (n 66). For the practice under this procedure, see
the reply to a written question of 12 July 2013 ((2013) British Yearbook of International Law, 737). See
also United Kingdom, Foreign & Commonwealth Office, Diplomatic Missions and International
Organisations Unit Protocol Directorate, ‘Freedom of Information Act Request 2000 Request Ref. 0926–
16’, 25 October 2016,
https://www.gov.uk/government/uploads/system/uploads/attachment_data/file/601028/0926-
16_Letter_07.03.17.pdf, stating that during the period 1 October 2014 to 30 September 2015, the FCO
consented to 15 requests for a special mission, covering 47 visitors in total.
181
See, e.g., the Tabatabai case (n 100), 411.
Page 32 of 32
MANU/SC/0470/1988
Equivalent Citation: AIR1989SC 1, 1988 (25) AC C 558, 1988(36)BLJR795, 1989C riLJ1005, 1988(3)C rimes822(SC ), JT1998(4)SC 124,
1989PLJR6, 1988(2)SC ALE933, (1988)4SC C 655, [1988]Supp3SC R455

Criminal Appeal Nos. 551-553 of 1988
Appellants:State of Bihar
Vs.
Respondent: Murad Ali Khan and Ors.
M.N. Venkatachaliah and Ranganath Misra, JJ.
Case Note:
Criminal - Jurisdiction - Section 9(1) and 51 of Wild Life Protection Act,
1972 - Judicial Magistrate, took cognizance of an offence under Section
9(1) read with Section 51 of Act against Respondent - However, High Court
accordingly quashed proceedings against Respondents - Hence, this Appeal
- Whether, Magistrate had jurisdiction to take cognizance - Held, a
complaint only means any allegation made orally or in writing to a
Magistrate with a view to his taking action that some person, whether
known or unknown had committed an offence - In exercising that
jurisdiction High Court would not embark upon an enquiry whether
allegations in complaint were likely to be established by evidence or not -
That was function of trial Magistrate when evidence comes before him -
Though it was neither possible nor advisable to lay down any inflexible
rules to regulate that jurisdiction - Thus, Magistrate taking cognizance of
offence and ordering issue of summons to Respondents was restored -
Appeal allowed.
Ratio Decidendi
"Proceedings against an Accused in initial stages shall be quashed, if on
face of complaint or papers accompanying same, no offence was
constituted."
JUDGMENT
M.N. Venkatachaliah, J.
1. SLP 1879 of 1987 is by the State of Bihar for special leave under Article 136 of the
Constitution to appeal from the order dated 13-2-1987 of the High Court of Patna in
Crl. Misc. 223 of 1987 quashing, in exercise of powers under Section 482 of CrPC
1973, the order dated 1-7-1986 of the Judicial Magistrate, Chaibasa, taking
cognizance of an offence under Section 9(1) read with Section 51 of the Wild Life
Protection Act, 1972 (Act) against respondent-Vikram Singh.
Special Leave Petitions Nos. 1877 of 1987 and 1878 of 1987 arise out of the
subsequent two similar orders both dated 18-2-1987 in Criminal Misc. Nos.

view to his taking action, that some person, whether known or unknown, has
committed an offence.
It is trite that jurisdiction under Section 482, Cr.P.C, which saves the inherent power
of the High Court, to make such orders as may be necessary to prevent abuse of the
process of any Court or otherwise to secure the ends of justice, has to be excised
sparingly and with circumspection. In exercising that jurisdiction the High Court
would not embark upon an enquiry whether the allegations in the complaint are likely
to be established by evidence or not.
That is the function of the trial Magistrate when the evidence comes before him.
Though it is neither possible nor advisable to lay down any inflexible rules to
regulate that jurisdiction, one thing, however, appears clear and it is that when the
High Court is called upon to exercise this jurisdiction to quash a proceeding at the
stage of the Magistrate taking cognizance of an offence the High Court is guided by
the allegations, whether those allegations, set out in the complaint or the charge-
sheet, do not in law constitute or spell out any offence and that resort to criminal
proceedings would, in the circumstances, amount to an abuse of the process of the
court or not.
In Municipal Corporation of Delhi v. R.K. Rohtagi MANU/SC/0094/1982 :
1983CriLJ159 it is reiterated:
It is, therefore, manifestly clear that proceedings against an accused in the
initial stages can be quashed only if on the face of the complaint or the
papers accompanying the same, no offence is constituted. In other words,
the test is that taking the allegations and the complaint as they are, without
adding or subtracting anything, if no offence is made out then the High Court
will be justified in quashing the proceedings in exercise of its powers under
Section 482 of the present Code.
In Municipal Corporation of Delhi v. P.D. Jhunjunwala MANU/SC/0093/1982 :
1983CriLJ172 it was further made clear:
...As to what would be the evidence against the respondents is not a matter
to be considered at this stage and would have to be proved at the trial. We
have already held that for purpose of quashing the proceedings only the
allegations set forth in the complaint have to be seen and nothing further.
In the complaint No. 653 dated 23-6-1986 of the Range Officer, Forests, it is, inter
alia, alleged:
I have to report that on 8-6-86 at about 2 P.M. I learnt from Sri Aghnu
Mahto, Forester, Jomatai Beat, that somebody has killed an elephant in
compartment No. 13 of Kundrugutu Reserve Forest. The matter was serious
and so I immediately reported it to Officer incharge, Sonua Police Station to
register a case and for investigation.
It was further reported that Jiwan Mesi Longa. Coupe Overseer, Joratal beat
has (been) seen the accused persons entering into the forest during the night
time and Ssad returned on the same Jeep No. BRX 9588 at about 8 or 9 A.M.
He could identify only Sri Prabhu Sahay Bhengra in the jeep, was is driver of
Block Development Officer, Bandgaon. During my enquiry I visited the spot
and dug out the body of the elephant and found that both of the tusks had

In the result, these appeals are allowed, the orders of the High Court in Crl. Misc. No.
223 of 87 dated 13-2-1987 and the two orders in Crl. Misc. No. 258 of 1987(R) and
Crl. Misc. No. 259/1987(R) dated 18-2-1987 are set aside and the order dated 1-7-
1986 of the learned Magistrate taking cognizance of the offence and ordering issue of
summons to the respondents is restored. The criminal case initiated on the complaint
will now be proceeded with in accordance with law.

MANU/SC/0115/1992
Equivalent Citation: AIR1992SC 604, 1992C riLJ527, JT1990(4)SC 650, 1990(2)SC ALE1066, 1992Supp(1)SC C 335, [1990]Supp3SC R259

Appellants:State of Haryana and Ors.
Vs.
Respondent: Ch. Bhajan Lal and Ors.
S.R. Pandian and K. Jayachandra Reddy, JJ.
Counsels:
For Appellant/Petitioner/Plaintiff: N.S. Hedge, Additional Solicitor General, Arun Jaitley
Additional Solicitor General, R.B. Datar, Hemant Sharma and B.K. Prasad, Advs
For Respondents/Defendant: K. Parasaran, P. Chidambaram, R.K. Garg, Ayasha Karim
and Indu Malhotra, Advs.
Case Note:
Criminal - investigation - Sections 161 and 165 of Indian Penal Code, 1860
and Section 5 (1) of Prevention of Corruption Act, 1947 - investigation
ordered against respondent for offences under Sections 161 and 165 and
under Act of 1947 by appellant - High Court cancelled FIR terming it
affected by political considerations granting costs in respondent's favour -
appeal - propositions laid by High Court unwarranted - incoming
Government cannot put its seal of approval to all commissions and
omissions of outgoing Government - Supreme Court quashed entire
investigation as investigation was not entrusted to proper legal authority -
cancellation of FIR and granting of costs in respondent's favour unjustified
and bad in law - Court set aside judgment of High Court.
ORDER
S.R. Pandian, J.
1. Leave granted.
The king is under no man, but under God and the law"-was the reply of the
Chief Justice of England, Sir Edward Coke when James-I once declared "Then
I am to be under the law. It is treason to affirm it"-so wrote Henry Bracton
who was a Judge of the King's Bench.
2 . The words of Bracton in his treatise in Latin "good Rex non debet esse sub
homine, sed sub Deo et Legu" (That the king should not be under man, but under
God and the law) were quoted time and time again when the Stuart Kings claimed to
rule by divine right. We would like to quote and requote those words of Sir Edward
Coke even at the threshold.

101. Speaking for the Bench, Ranganath Mishra, J as he then was in Madhavrao
Jiwaji Rao Scindia and Ors. v. Sambhajirao Chandro-jirao Angre and Ors.
MANU/SC/0261/1988 : 1988CriLJ853 has expounded the law as follows:
The legal position is well settled that when a prosecution at the initial stage
is asked to be quashed, the test to be applied by the court is as to whether
the uncontroverted allegations as made prima facie establish the offence. It
is also for the court to take into consideration any special features which
appear in a particular case to consider whether it is expedient and in the
interest of justice to permit a prosecution to continue. This is so on the basis
that the court cannot be utilised for any oblique purpose and where in the
opinion of the court chances of an ultimate conviction is bleak and, therefore,
no useful purpose is likely to be served by allowing a criminal prosecution to
continue, the Court may while taking into consideration the special facts of a
case also quash the proceedings even though it may be at a preliminary
stage.
1 0 2 . Venkatachaliah, J. in State of Bihar v. Murad Ali Khan and Ors.
MANU/SC/0470/1988 : 1989CriL J1005 has stated that the jurisdiction Under Section
482 of the Code has to be exercised sparingly and with circumspection and has given
the working that in exercising that jurisdiction, the High Court should not embark
upon an enquiry whether the allegations in the complaint are likely to be established
by evidence or not.
1 0 3 . See also Talab Haji Hussain v. Madhukar Purshottam Mondekar and Anr.
MANU/SC/0028/1958 : 1958CriL J701 ; L.U. Jadhav v. Shankarrao Abasaheb Pawar
MANU/SC/0116/1983 : [1983]3SCR762 and J.P. Sharma v. Vinod Kumar Jain and
Ors. MANU/SC/0178/1986 : 1986CriLJ917 .
104. Mr. Parasaran, according to whom the allegations in the present case do not
make out an offence, drew our attention to a recent judgment of this Court in State of
U.P. v. V.R.K. Srivastava and Anr. MANU/SC/0526/1989 : 1989CriL J2301 to which
one of us (S. Ratnavel Pandian, J.) was a party. In that case, it has been ruled that if
the allegations made in the FIR, taken on the face value and accepted in their
entirety, do not constitute an offence, the criminal proceedings instituted on the basis
of such FIR should be quashed. The principle laid down in this case does not depart
from the proposition of law consistently propounded in a line of decisions of this
Court and on the other hand it reiterates the principle that the Court can exercise its
inherent jurisdiction of quashing a criminal proceeding only when the allegations
made in the FIR, do not constitute an offence and that it depends upon the facts and
circumstances of each particular case.
105. In the backdrop of the interpretation of the various relevant provisions of the
Code under Chapter XIV and of the principles of law enunciated by this Court in a
series of decisions relating to the exercise of the extra-ordinary power under Article
226 or the inherent powers Under Section 482 of the Code which we have extracted
and reproduced above, we give the following categories of cases by way of
illustration wherein such power could be exercised either to prevent abuse of the
process of any Court or otherwise to secure the ends of justice, though it may not be
possible to lay down any precise, clearly defined and sufficiently channelised and
inflexible guidelines or rigid formulae and to give an exhaustive list of myriad kinds
of cases wherein such power should be exercised.

1. Where the allegations made in the First Information Report or the
complaint, even if they are taken at their face value and accepted in their
entirety do not prima-facie constitute any offence or make out a case against
the accused.
2. Where the allegations in the First Information Report and other materials,
if any, accompanying the F.I.R. 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 F.I.R. do not constitute a cognizable offence but
constitute only a non-cognizable offence, no investigation is permitted by a police
officer without an order of a Magistrate as contemplated Under Section 155(2) of the
Code.
5. Where the allegations made in the FIR or complaint are so absurd and inherently
improbable on the basis of which no prudent person can ever reach a just conclusion
that there is sufficient ground for proceeding against the accused.
6. Where there is an express legal bar engrafted in any of the provisions of the Code
or the concerned Act (under which a criminal proceeding is instituted) to the
institution and continuance of the proceedings and/or where there is a specific
provision in the Code or the concerned Act, providing efficacious redress for the
grievance of the aggrieved party.
7 . Where a criminal proceeding is manifestly attended with mala fide and/or where
the proceeding is maliciously instituted with an ulterior motive for wreaking
vengeance on the accused and with a view to spite him due to private and personal
grudge.
106. We also give a note of caution to the effect that the power of quashing a
criminal proceeding should be exercised very sparingly and with circumspection and
that too in the rarest of rare cases; that the Court will not be justified in embarking
upon an enquiry as to the reliability or genuineness or otherwise of the allegations
made in the F.I.R. or the complaint and that the extraordinary or inherent powers do
not confer an arbitrary jurisdiction on the Court to act according to its whim or
caprice.
107. It may be true, as repeatedly pointed out by Mr. Parasaran, that in a given
situation, false and vexatious charges of corruption and venality may be maliciously
attributed against any person holding a high office and enjoying a respectable status
thereby sullying his character, injuring his reputation and exposing him to social
ridicule with a view to spite him on account of some personal rancour, predilections
and past prejudices of the complaint. In such a piquant situation, the question is
what would be the remedy that would redress the grievance of the verily affected
party? The answer would be that the person who dishonestly makes such false
allegations is liable to be proceeded against under the relevant provisions of the

1 4 3 . In the light of the above decisions of this Court, we feel that the said
observations made in the impugned judgment are unwarranted and the historical
anecdote is out of context and inappropriate. We are afraid if such a view is to be
judicially accepted and approved, then it will be tantamount to laying down as
alarming proposition that an incoming Government under all circumstances, should
put its seal of approval to all the commissions and omissions of the outgoing
Government ignoring even glaring lapses and serious misdeeds and the deleterious
and destructive consequences that may follow therefrom. Hence we are constrained
to express our disapproval since the text, tenor and tone of the above observations
leave us with the feeling that such misplaced sympathy indicated therein appears to
have considerably weighed with the learned Judges in taking the extreme step in
quashing the First Information Report. We do not like to make any more comment
except saying that as we have pointed out in our exordial note, in our democratic
polity where the 'Rule of Law' regions no one-however highly placed he may be-can
claim immunity, much-less absolute immunity from the Law, but he is always under
the Law.
144. We set aside the judgment of the High Court quashing the First Information
Report as not being legally and factually sustainable in law for the reasons
aforementioned; but, however, we quash the commencement as well as the entire
investigation, if any, so far done for the reasons given by us in the instant judgment
on the ground that the third appellant (SHO) is not clothed with valid legal authority
to take up the investigation and proceed with the same within the meaning of Section
5A(1) of the Prevention of Corruption Act as indicated in this judgment. Further we
set aside the order of the High Court awarding costs with a direction that the said
costs is payable to the first respondent (Ch. Bhajan Lal) by the second respondent
(Dharam Pal).
145. In the result, the appeal is disposed of accordingly but at the same time giving
liberty to the State Government to direct an investigation afresh, if it so desires,
through a competent Police Officer empowered with valid legal authority in strict
compliance with Section 5 A(1) of the Act as indicated supra. No order as to costs.

MANU/SC/0143/1977
Equivalent Citation: AIR1977SC 1489, 1977C riLJ1125, 1977(2)KarLJ483, (1977)2SC C 699, [1977]3SC R113

Criminal Appeal Nos. 345-346 of 1976
Appellants:State of Karnataka
Vs.
Respondent:L. Muniswamy and Ors.
Y.V. Chandrachud, C.J., P.K. Goswami and P.N. Shinghal, JJ.
Case Note:
Criminal - inadequate grounds - Sections 203, 227, 327 and 482 of Criminal
Procedure Code, 1973 and Sections 34, 120-B, 307, 324 and 326 of Indian
Penal Code, 1860 - appeal against judgment of High Court quashing
proceedings initiated against respondents in exercise of its inherent powers
- no material grounds on which prosecution proposes to rely against
respondents to sustain charge that they are in any manner connected with
assault on complainant - held, Order quashing proceedings against
respondent sustained.
JUDGMENT
Y.V. Chandrachud, J.
1. These two appeals by special leave arise out of a judgment dated September 30,
1975 rendered by the High Court of Karnataka in Criminal Petitions Nos. 248 and 253
of 1975. By the aforesaid judgment the High Court in the exercise of its inherent
powers has quashed proceedings initiated by the State of Karnataka, appellant herein,
against the respondents.
2. The incident out of which these proceedings arise took place on December 6, 1973
in the Central Avenue of the Indian Telephone Industries Colony, Bangalore.
Thyagaraja Iyer, accused No. 1, who was an employee of the Indian Telephone
Industries Ltd. was dismissed from service on September 20, 1973 on the allegation
that he had assaulted a Canteen Supervisor. The complainant Ajit Dutt, Works
Manager of the Crossbar Division, attempted to serve the dismissal order on him but
he refused to accept it and threatened the complainant that he, the complainant, was
primarily responsible for the dismissal and would have to answer the consequences.
It is alleged that the I. T. I. Employees' Union took up cudgels on his behalf and
resolved to support his cause. The case of the prosecution is that accused Nos. 1 and
8 to 20 conspired to commit the murder of the complainant and that in pursuance of
that conspiracy accused Nos. 1. 8 and 10 hired accused No. 2, a notorious criminal,
to execute the object of the conspiracy. Accused No. 2 in turn engaged the services of
accused Nos. 3 to 7 and eventually on the morning of December 6, 1973 accused
Nos. 1 to 6 are alleged to have assaulted the complainant with knives, thereby

In a criminal case, the veiled object behind a lame prosecution, the very nature of the
material on which the structure of the prosecution rests and the like would justify the
High Court in quashing the proceeding in the interest of justice. The ends of justice
are higher than the ends of mere law though justice has got to be administered
according to laws made by the legislature. The compelling necessity for making these
observations is that without a proper realisation of the object and purpose of the
provision which seeks to save the inherent powers of the High Court to do justice
between the State and its subjects it would be impossible to appreciate the width and
contours of that salient jurisdiction.
8 . Let us then turn to the facts of the case to see whether the High Court was
justified in holding that the proceedings against the respondents ought to be quashed
in order to prevent abuse of the process of the court and in order to secure the ends
of justice. We asked the State counsel time and again to point out any data or
material on the basis of which a reasonable likelihood of the respondents being
convicted of any offence in connection with the attempted murder of the complainant
could be predicated. A few bits here and a few bits there on which the prosecution
proposes to rely are woefully inadequate for connecting the respondents with the
crime, howsoever skillfully one may attempt to weave those bits into a presentable
whole. There is no material on the record on which any tribunal could reasonably
convict the respondents for any offence connected with the assault on the
complainant. It is undisputed that the respondents were nowhere near the scene of
offence at the time of the assault. What is alleged against them is that they had
conspired to commit that assault. This, we thing, is one of those cases in which a
charge of conspiracy is hit upon for the mere reason that evidence of direct
involvement of the accused is lacking. We have been taken through the statements
recorded by the police during the course of investigation and the other material. The
worst that can be said against the respondents on the basis thereof is that they used
to meet one another frequently after the dismissal of accused No. 1 and prior to the
commission of the assault on the complainant. Why they met, what they said, and
whether they held any deliberations at all, are matters on which no witness has said a
word. In the circumstances, it would be a sheer waste of public time and money to
permit the proceedings to continue against the respondents. The High Court was
therefore justified in holding that for meeting the ends of justice the proceedings
against the respondents ought to be quashed.
9. Learned Counsel for the State Government relies upon a decision of this Court in
R.P. Kapur v. The State of Punjab MANU/SC/0086/1960 : 1960CriL J1239 in which it
was held that in the exercise of its inherent jurisdiction under Section 561-A of the
Code of 1898, the High Court cannot embark upon an enquiry as to whether the
evidence in the case is reliable or not. That may be so. But in the instant case the
question is not, whether any reliance can be placed on the veracity of this or that
particular witness. The fact of the matter is that there is no material on the record on
the basis of which any tribunal could reasonably come to the conclusion that the
respondents are in any manner connected with the incident leading to the
prosecution. Gajendragadkar, J., who spoke for the Court in Kapur's case observes in
his judgment that it was not possible, desirable or expedient to lay down any
inflexible rule which would govern the exercise of the High Court's inherent
jurisdiction. The three instances cited in the judgment as to when the High Court
would be justified in exercising its inherent jurisdiction are only illustrative and can
in the very nature of things not be regarded as exhaustive. Considerations justifying
the exercise of inherent powers for securing the ends of justice naturally vary from
case to case and a jurisdiction as wholesome as the one conferred by Section 482

ought not to be encased within the strait-jacket of a rigid formula.
10. On the other hand, the decisions cited by learned Counsel for the respondents in
Vadilal Panchal v. D.D. Ghadigaonkar MANU/SC/0059/1960 : [1961]1SCR1 and
Century Spinning & Manufacturing Co. v. State of Maharashtra MANU/SC/0080/1971 :
1972CriL J329 show that it is wrong to say that at the stage of framing charges the
court cannot apply its judicial mind to the consideration whether or not there is any
ground for presuming the commission of the offence by the accused. As observed in
the latter case, the order framing a charge affects a person's liberty substantially and
therefore it is the duty of the court to consider judicially whether the material
warrants the framing of the charge. It cannot blindly accept the decision of the
prosecution that the accused be asked to face a trial. In Vadilal Panchal's case Section
203 of the old Code was under consideration, which provided that the Magistrate
could dismiss a complaint if after considering certain matters mentioned in the
section there was in his judgment no sufficient ground for proceeding with the case.
To an extent Section 227 of the new Code contains an analogous power which is
conferred on the Sessions Court. It was held by this Court, while considering the true
scope of Section 203 of the old Code that the Magistrate was not bound to accept the
result of an enquiry or investigation and that he must apply his judicial mind to the
material on which he had to form his judgment. These decisions show that for the
purpose of determining whether there is sufficient ground for proceeding against an
accused the court possesses a comparatively wider discretion in the exercise of which
it can determine the question whether the material on the record, if unrebutted, is
such on the basis of which a conviction can be said reasonably to be possible.
11. We are therefore in agreement with the view of the High Court that the material
on which the prosecution proposes to rely against the respondents is wholly
inadequate to sustain the charge that they are in any manner connected with the
assault on the complainant. We would however, like to observe that nothing in our
judgment or in the judgment of the High Court should be taken as detracting from the
case of the prosecution, to which we have not applied our mind as against accused
Nos. 1 to 9. The case against those accused must take its due and lawful course.
12. The appeals are accordingly dismissed.

MANU/SC/0028/1958
Equivalent Citation: AIR1958SC 376, 1958(2)AnWR37, (1958) 28 AWR 591, 1958(60)BOMLR937, 1958C riLJ701, (1958)IIMLJ37(SC ),
(1958)36MysLJ(SC )224, [1958]1SC R1226

Appellants: Talab Haji Hussain
Vs.
Respondent: Madhukar Purshottam Mondkar and Ors.
J.L. Kapur, N.H. Bhagwati and P.B. Gajendragadkar, JJ.
Case Note:
Code of criminal procedures (Act 5 of 1898)) Sections 426, 496, 497, 498 &
561 A. - The accused released on bail by Magistrate as Bailable offence -
The subsequent prejudicial conduct of the accused and High Court's power
to cancel the bail.
JUDGMENT
1 . The appellant, along with others, has been charged under s. 120B of the Indian
Penal Code and s. 167(81) of the Sea Customs Act (8 of 1878). There is no doubt
that the offences charged against the appellant are bailable offences. Under s. 496 of
the Code of Criminal Procedure the appellant was released on bail of Rs. 75,000 with
one surety for like amount on December 9, 1957, by the learned Chief Presidency
Magistrate at Bombay. On January 4, 1958, an application was made by the
complainant before the learned Magistrate for cancellation of the bail; the learned
Magistrate however, dismissed the application on the ground that under s. 496 he
had no jurisdiction to cancel the bail. Against this order, the complainant preferred a
revisional application before the High Court of Bombay. Another application was
preferred by the complainant before the same Court invoking its inherent power
under s. 561 A of the Code of Criminal Procedure. Chagla C.J. and Datar J. who heard
these applications took the view that, under s. 561A of the Code of Criminal
Procedure the High Court had inherent power to cancel the bail granted to a person
accused of a bailable offence and that, in a proper case, such power can and must be
exercised in the interests of justice. The learned Judges then considered the material
produced before the Court and came to the conclusion that, in the present case, it
would not be safe to permit the appellant to be at large. That is why the application
made by the complainant invoking the High Court's inherent power under s. 561A of
the Code of Criminal Procedure was allowed, the bail-bond executed by the appellant
was cancelled and an order was passed directing that the appellant be arrested
forthwith and committed to custody. It is against this order that the appellant has
come to this Court in appeal by special leave. Special leave granted to the appellant
has, however, been limited to the question of the construction of s. 496 read with s.
561A of the Code of Criminal Procedure. Thus the point of law which falls to be

against any sentence which the High Court has imposed or maintained. Sub-section
(3) provides that, if the appellant who is released on bail under said sub-s. (2) or
(2B) is ultimately sentenced to imprisonment, the time during which he is so released
shall be excluded in computing the term for which he is so sentenced. That briefly is
the scheme of the Code on the subject of bail.
3 . There is no doubt that under s. 496 a person accused of a bailable offence is
entitled to be released on bail pending his trial. As soon as it appears that the
accused person is prepared to give bail, the police officer or the court, before whom
he offers to give bail, is bound to release him on such terms us to bail as may appear
to the officer or the court to be reasonable. It would even be open to the officer or
the court to discharge such person on executing his bond as provided in the section
instead of taking bail from him. The position of persons accused of non-bailable
offences is entirely different. Though the recent amendments made in the provisions
of s. 497 have made definite improvement in favour of persons accused of non-
bailable offences, it would nevertheless be correct to say that the grant of bail in such
cases is generally a matter in the discretion of the authorities in question. The
classification of offences into the two categories of bailable and non-bailable offences
may perhaps be explained on the basis that bailable offences are generally regarded
as less grave and serious than non-bailable offences. On this basis it may not be easy
to explain why, for instance offences under Sections 477, 477A, 475 and 506 of the
Indian Penal Code should be regarded as bailable whereas offences under s. 379
should be non-bailable. However, it cannot be disputed that s. 496 recognizes that a
person accused of a bailable offence has a right to be enlarged on bail and that is a
consideration on which Shri Purushottam, for the appellant, has very strongly relied.
4 . Shri Purushottam has also emphasized the fact that, whereas legislature has
specifically conferred power on the specified courts to cancel the bail granted to a
person accused of a non-bailable offence by the provisions of s. 497(5), no such
power has been conferred on any court in regard to persons accused of bailable
offences. If legislature had intended to confer such a power it would have been very
easy for it to add an appropriate sub-section under s. 496. The omission to make
such a provision is, according to Shri Purushottam, not the result of inadvertence but
is deliberate; and if that is so, it would not be legitimate or reasonable to clothe the
High Courts with the power to cancel bails in such cases under s. 561A. It is this
aspect of the matter which needs careful examination in the present case.
5. Section 561A was added to the Code in 1923 and it purports to save the inherent
power of the High Courts. It provides that nothing in the Code shall be deemed to
limit or affect the inherent power of the High Court to make such orders as may be
necessary to give effect to any order under the Code or to prevent abuse of the
process of any court or otherwise to secure the ends of justice. It appears that doubts
were expressed in some judicial decisions about the existence of such inherent power
in the High Courts prior to 1923. That is why legislature enacted this section to clarify
the position that the provisions of the Code were not intended to limit or affect the
inherent power of the High Courts as mentioned in s. 561A. It is obvious that this
inherent power can be exercised only for either of the three purposes specifically
mentioned in the section. This inherent power cannot naturally be invoked in respect
of any matter covered by the specific provisions of the Code. It cannot also be
invoked if its exercise would be inconsistent with any of the specific provisions of the
Code. It is only if the matter in question is not covered by any specific provisions of
the Code that s. 561A can come into operation, subject further to the requirement
that the exercise of such power must serve either of the three purposes mentioned in

the said section. In prescribing rules of procedure legislature undoubtedly attempts to
provide for all cases that are likely to arise; but it is not possible that any legislative
enactment dealing with procedure, however carefully it may be drafted, would
succeed in providing for all cases that may possibly arise in future. Lacunae are
sometimes discovered in procedural law and it is to cover such lacunae and to deal
with cases where such lacunae are discovered that procedural law invariably
recognizes the existence of inherent power in courts. It would be noticed that it is
only the High Courts whose inherent power is recognized by s. 561 A; and even in
regard to the High Courts' inherent power definite salutary safeguards have been laid
down as to its exercise. It is only where the High Court is satisfied either that an
order passed under the Code would be rendered ineffective or that the process of any
court would be abused or that the ends of justice would not be secured that the High
Court can and must exercise its inherent power under s. 561 A. There can thus be no
dispute about the scope and nature of the inherent power of the High Courts and the
extent of its exercise.
6. Now it is obvious that the primary object of criminal procedure is to ensure a fair
trial of accused persons. Every criminal trial begins with the presumption of
innocence in favour of the accused; and provisions of the Code are so framed that a
criminal trial should begin with and be throughout governed by this essential
presumption; but a fair trial has naturally two objects in view; it must be fair to the
accused and must also be fair to the prosecution. The test of fairness in a criminal
trial must be judged from this dual point of view. It is therefore of the utmost
importance that, in a criminal trial, witnesses should be able to give evidence without
any inducement or threat either from the prosecution or the defence. A criminal trial
must never be so conducted by the prosecution as would lead to the conviction of an
innocent person; similarly the progress of a criminal trial must not be obstructed by
the accused so as to lead to the acquittal of a really guilty offender. The acquittal of
the innocent and the conviction of the guilty are the objects of a criminal trial and so
there can be no possible doubt that, if any conduct on the part of an accused person
is likely to obstruct a fair trial, there is occasion for the exercise of the inherent
power of the High Courts to secure the ends of justice. There can be no more
important requirement of the ends of justice than the uninterrupted progress of a fair
trial; and it is for the continuance of such a fair trial that the inherent powers of the
High Courts are sought to be invoked by the prosecution in cases where it is alleged
that accused persons, either by suborning or intimidating witnesses, are obstructing
the smooth progress of a fair trial. Similarly, if an accused person who is released on
bail jumps bail and attempts to run to a foreign country to escape the trial, that again
would be a case where the exercise of the inherent power would be justified in order
to compel the accused to submit to a fair trial and not to escape its consequences by
taking advantage of the fact that he has been released on bail and by absconding to
another country. In other words, if the conduct of the accused person subsequent to
his release on bail puts in jeopardy the progress of a fair trial itself and if there is no
other remedy which can be effectively used against the accused person, in such a
case the inherent power of the High Court can be legitimately invoked.
In regarded to non-bailable offences there is no need to invoke such power because
s. 497(5) specifically deals with such cases.
The question which we have to decide in this case is whether exercise of inherent
power under s. 561A against persons accused of bailable offences, who have been
released on bail, is contrary to or inconsistent with the provisions of s. 496 of the
Code of Criminal Procedure.

is hardly necessary to add that the inherent power conferred on High Courts under s.
561A has to be exercised sparingly, carefully and with caution and only where such
exercise is justified by the tests specifically laid down in the section itself. After all,
procedure, whether criminal or civil, must serve the higher purpose of justice; and it
is only when the ends of justice are put in jeopardy by the conduct of the accused
that the inherent power can and should be exercised in cases like the present. The
result is that the appeal fails and must be dismissed.

MANU/SC/0038/1963
Equivalent Citation: AIR1963SC 1811, [1963]33C ompC as1057(SC ), (1963)2C ompLJ234(SC ), [1964]4SC R99

Writ Petitions Nos. 202-204 of 1961
Appellants:The State Trading Corporation of India Ltd. and Ors.
Vs.
Respondent:The Commercial Tax Officer, Visakhapatnam and Ors.
B.P. Sinha, C.J., A.K. Sarkar, J.C. Shah, K.C. Das Gupta, K.N. Wanchoo, M.
Hidayatullah, N. Rajagopala Ayyangar, P.B. Gajendragadkar and S.K. Das, JJ.
Case Note:
Constitution - citizenship - Articles 19 (1) and 32 of Constitution of India -
State Trading Corporation cannot be stated as citizen as per provisions of
Constitution and Citizenship Act - freedom contained under Article 19 (1)
(a) to 19 (1) (g) are available to citizens only and not to artificial persons -
corporation may be nationals of country for purpose of international law but
this will not make them citizen for municipal law - rights of citizenship and
rights flowing from nationality of corporation are not conterminous - Part II
of Constitution in relation to citizenship refers to natural person -
Citizenship Act was enacted after Constitution came into force and is
confined to natural persons only.
JUDGMENT
B.P. Sinha, C.J.
1 . The following questions have been referred to the Special Bench by the
Constitution Bench before which these cases came up for hearing :
(1) whether the State Trading Corporation, a company registered under the
Indian Companies Act, 1956, is a citizen within the meaning of Art. 19 of the
Constitution and can ask for the enforcement of fundamental rights granted
to citizens under the said article; and
(2) whether the State Trading Corporation is, notwithstanding the formality
of incorporation under the Indian Companies Act, 1956, in substance a
department and organ of the Government of India with the entirety of its
capital contributed by Government; and can it claim to enforce fundamental
rights under Part III of the Constitution against the State as defined in Art. 12
thereof.
2. The questions were raised by way of preliminary objections to the maintainability
of the Writ Petitions under Art. 32 of the Constitution.
3. As the whole case is not before us, it is necessary to state only the following facts
in order to appreciate how the controversy arises. The State Trading Corporation of
India Ltd., and K. B. Lal, the then Additional Secretary, Ministry of Commerce and

Industries, Government of India, moved this Court under Art. 32 of the Constitution
for quashing by a writ of certiorari or any other appropriate writ, direction or order,
certain proceedings instituted by or under the authority of the respondents, - (1) The
Commercial Tax Officer, Visakhapatnam; (2) the State of Andhra Pradesh; and (3) the
Deputy Commissioner of Commercial Taxes, Kakinada. Those proceedings related to
assessments of sales tax under the provisions of the Andhra Pradesh Sales Tax Act.
Writ Petition 202 and 203 of 1961 are between the parties aforesaid. In Writ Petition
204 of 1961, the parties are the petitioners aforesaid against (1) the Assistant
Superintendent of Commercial Taxes, I/c Chaibasa Sub-Circle, Bihar State; (2) the
Deputy Commissioner of Sales Tax, Bihar, Ranchi; and (3) the State of Bihar. Thus,
the petitioners are the same in all the three case, but the respondents are the State of
Andhra Pradesh and its two officers in the first two cases and the State of Bihar and
its two officers in the third case.
4 . The first petitioner is a private limited company registered under the Indian
Companies Act, 1956, with its head office at New Delhi, in May, 1956. The second
petitioner is a shareholder in the first petitioner company. The two petitioners claim
to be Indian citizens as all its shareholders are Indian citizens. Proceedings were
taken for assessment of sales tax, and in due course of those proceedings demand
notices were issued. It is not necessary for the purposes of deciding the two points
referred to us to set out the details of the assessments the grounds of attack raised
by the petitioners. It is enough to say that the petitioner claim to be Indian citizens
and contend that their fundamental rights under Art. 19 of the Constitution had been
infringed as a result of the proceedings taken and the demands for sales tax made by
the appropriate authorities. When the case was opened on behalf of the petitioners in
this Court, before the Constitution Bench, counsel for the respondents raised the
preliminary objections which have taken the form now indicated in the two questions,
already set out. The Bench rightly pointed out that those two questions were of great
constitutional importance and should, therefore, be placed before a larger Bench for
determination. Accordingly they referred the matter to the Chief Justice and this
larger Bench had been constituted to determine those questions.
5. At the very outset of the arguments, we indicated that we shall give our decision
only on the preliminary questions and that the decision of the controversies on their
merits will be left to the Constitution Bench.
6 . Before dealing with the arguments at the Bar, it is convenient to set out the
relevant provisions of the Constitution. Part III of the Constitution deals with
Fundamental Rights. Some fundamental rights are available to "any person", whereas
other fundamental rights can be available one to "all citizens". "Equality before the
law" or "equal protection of the laws" within the territory of India is available to any
person (Art. 14). The protection against the enforcement of ex-post-facto laws or
against double-jeopardy or against compulsion of self-incrimination is available to all
persons (Art. 20); so is the protection of life and personal liberty under Art. 21 and
protection against arrest and detention in certain ceases, under Art. 22. Similarly,
freedom of conscience and free profession, practice and propagation of religion is
guaranteed to all persons. Under Art. 27, no person shall be compelled to pay any
taxes for the promotion and maintenance of any particular religious denomination. All
persons have been guaranteed the freedom to attend or not to attend religious
instructions or religious worship in certain educational institutions (Art. 28). And,
finally, no person shall be deprived of his property save by authority of law and no
property shall be compulsorily acquired or requisitioned except in accordance with
law, as contemplated by Art. 31. These, in general terms, without going into the

"The fundamental rights guaranteed by the Constitution are available not
merely to individual citizens but to corporate bodies as well except where the
language of the provisions or the nature of the right compels the inference
that they are applicable only to natural persons. An incorporated company,
therefore, can come up to this Court for enforcement of its fundamental
rights and so may the individual shareholders to enforce their own; but it
would not be open to an individual shareholder to complain of an Act which
affects the fundamental rights of the company except to the extent that it
constitutes an infraction of his own rights as well."
3 0 . Mr. Setalvad also refers to other cases in which, though the point was not
decided, several corporations claimed the protection of Article 19 and no objection
was raised. Lastly he contends that the word 'citizen' should be liberally construed to
include a corporation aggregate which consists of Indian citizens only. On the second
question he contends that a company has an existence which is independent of its
members and the State Trading Corporation cannot be equated with the shareholders
or the Government since the corporate veil cannot be allowed to be pierced. He
points out that there are several States in our Republic and there is a great danger of
one Government stifling the trading activities of another Government either by law or
executive action against which Article 19 is the only effective safeguard. He submits
that it could not have been intended that while every individual citizen should be
protected, a group of citizens, should by mere incorporation, lose the benefits of the
guarantee in Article. 19.
31. We are dealing here with an incorporated company. The nature of the personality
of an incorporated company which arises from a fiction of law, must be clearly
understood before we proceed to determine whether the word 'citizen' used in the
Constitution generally or in Article 19 specially, covers an incorporated company.
Unlike an unincorporated company, which has no separate existence and which the
law does not distinguish from its members an incorporated company has a separate
existence and the law recognises it as a legal person separate and distinct form its
members. This new legal personality emerges from the moment of incorporation and
from that date the persons subscribing to the memorandum of association and other
persons joining as members are regarded as a body corporate or a corporation
aggregate and the new person begins to function as an entity. But the members who
from the incorporated company do not pool their statute or their personality. If all of
them are citizens of India the company down not become a citizen of India any more
than if all are married the company would be a married person. The personality of the
members had little to do with the persona of the incorporated company. The persona
that comes into being is not the aggregate of the parson either in law or in metaphor.
The corporation rally has no physical existence; it is a mere 'abstraction of law' as
Lord Selborne described it in G. E. Rly v. Turner [1872] L.R. 8 Ch. App. 152, or as
Lord Macnaghten said in the well-known case of Salomon v. Salomon & Co. [1897]
A.C. 22 it is "at law a different person altogether from the subscribers to the
memorandum of association. "This distinction is brought home if one remembers that
a company cannot commit crimes like perjury, bigamy or capital murder. This
persona ficta being a creature of a fiction, is protected by natural limitations as points
out by Palmer in his Company Law (20th edn.) p. 130 and which were tersely
summed up by counsel in R. v. City of London [1632] 8 St. Tr. 1087 when he asked
"Can you hang its common seal ?". It is true that sometimes the law permits the
corporate veil to be lifted, but of that later.
32. There is a rule of English Law that a company or an incorporated corporation has

be a citizen either by itself or by taking it as the aggregate of citizens, that nationality
of a corporation is a different concept not to be confused with citizenship of natural
persons, that the word "citizen" in Art. 19(1) sub-clauses (f) and (g) refers to a
natural person, that State Trading Corporation is really a Department of Government
behind the corporate veil and that for all these reasons the two questions must be
answered in favour of the objectors. I shall now make good these conclusions with
reasons.
36. Article 19 uses the word 'citizen' while the word 'person' is used in some other
articles in Part III notably Art. 14 (creating equality before the law), Art. 21
(protection of life and personal liberty). By Art. 367, (unless the context otherwise
requires) the General Clauses Act, 1897 applies to the interpretation of the
Constitution. The word 'citizen' is not defined in the Constitution or the General
Clauses Act but the word 'person' is defined in the latter to include 'any company or
association or body of individuals whether incorporated or not.' The word "person"
therefore,, conceivably bears this extended meaning at least in some places in Part III
of the Constitution. But it is not necessary to determine where in the Constitution the
word 'person" includes a company etc. because that word has not been used in
Article 19. The claim of corporations aggregate, like the petitioner, to the benefits
which Art. 19 gives, must depend on whether the word 'citizen' which is actually used
can bear a similar enlarged meaning. Mr. Setalvad is right in contending that use of
the word 'person' with an enlarged meaning in some places and of the word 'citizen'
in other places does not by itself prove that artificial persons are outside the meaning
of the word 'citizens. The contrast may not be between natural and artificial persons
so much as between citizens and non-citizens, and it is possible that where the
benefit is intended to go to non-citizens, a word of wide meaning is used and where
the benefit is meant for citizens only the word 'citizen' is used. It is true that the
word 'citizen' cannot include an enemy or an alien while the more general word
'person' may but that does not answer the question whether the word 'citizen' can
include a company or association or body of individuals to borrow the words of the
definition. The answer to that question must depend, as already pointed out, on the
connotation of the word 'citizen' which must be found out.
37. In attempting to determine whether the word 'citizen' in Art. 19 denotes only a
natural person or includes a company etc., we must turn first to the Constitution to
see if the use of the word 'citizen' or 'citizenship' in any other place bears the
extended meaning or throw any light on this problem. The word 'citizen' is used in 29
places and the word 'citizenship' in 6 places. These words are also used in headings
to Chapters and marginal notes but these may be ignored. It is worth inquiring if
there is any place at all other than Art. 19 where not only a natural person but also
an artificial person is meant. The word first occurs in the preamble thus :
"We the people of India having solemnly resolved to secure to all its citizens
Justice, social, economic and political;
Liberty of thought, expression, belief, faith and worship;
Equality of status and of opportunity; and to promote among them all
Fraternity assuring the dignity of the individual and the Nation," etc.
38. 'Liberty of thought, expression, belief, faith and worship, equality of status' and
'dignity of the individual are expressions appropriate to natural persons and not

against the State as defined in Art. 12 of the Constitution.

MANU/SC/0058/1992
Equivalent Citation: I(1992)AC C 332, AIR1992SC 248, (1991)3C ompLJ213(SC ), JT1991(6)SC 8, 1991(2)SC ALE675, (1991)4SC C 584,
[1991]Supp1SC R251, 1992(1)UJ505

Civil Miscellaneous Petition Nos. 29377-A/88, 7942-43/89, 16093/89, 17965/89,
Review Petition Nos. 229 and 623-24 of 1989. In Civil Appeal Nos. 3187-88 of 1988.
With W.P. Nos. 257, 297, 354, 379, 293, 399, 420/89, 231, 300, 378, 382/89 (In
C.A. Nos. 3187-
Appellants:Union Carbide Corporation and Ors.
Vs.
Ranganath Misra, C.J., K.N. Singh, M.N. Venkatachaliah, A.M. Ahmadi and N.D. Ojha,
JJ.
Counsels:
For Appearing Parties: Soli J. Sorabjee, Attorney General, Shanti Bhushan, Indira
Jaising, R.K. Garg and Danial Latifi, Advs.
Case Note:
(i) Constitution - quantum of compensation - Articles 12, 21, 32, 142 (1)
and 145 of Constitution of India, Order 23 Rule 3-B of CPC, 1908 and
Sections 320, 321 and 482 of Criminal Procedure Code, 1973 - there was
massive escape of lethal gas from appellants plant into atmosphere which
led to calamity - Union of India (UOI) sued appellant for compensation on
behalf of affected parties - UOI in exercise of power filed suit in District
Court at Bhopal - suit asked for decree for damages for such persons
affected by calamity - District Court awarded monetary compensation to
tune of 350 million dollars - in appeal before High Court compensation
reduced to 250 million dollars - decisions of High Court challenged by
appellant and UOI - enterprise which is engaged in hazardous or inherently
dangerous industry posing potential threat to health and safety of persons
working in factory owes absolute and non-delegable duty to community to
ensure that no harm done to any person - enterprise must be held to be
under obligation to provide that hazardous or inherently dangerous activity
enterprise must be absolutely liable to compensate for such harm -
enterprise cannot take defence that it took all reasonable care and harm
occurred without negligence on its part.
(ii) exercise of power - power of Court under Article 142 for quashing
criminal proceedings not exhausted by Sections 320, 321 or 482 - power
under Article 142 is of different level and of different quality - prohibitions
or limitations or provisions contained in ordinary law cannot act as
prohibitions or limitations on constitutional power conferred under Article
142 - in exercising power under Article 142 and in assessing needs of
'complete justice' Apex Court would take note of express prohibitions in any

bleed when calamities like the Bhopal gas leak incident occur. Under the
constitutional discipline determination of disputes has been left to the hierarchical
system of Courts and this Court at its apex has the highest concern to ensure that
Rule of Law works effectively and the cause of justice in no way suffers. To have a
decree after struggling for a quarter of a century with the apprehension that the
decree may be ultimately found not to be executable would certainly not have been a
situation which this Court could countenance.
1 9 . In the order of May 4, 1989, this Court had clearly indicated that it is our
obligation to uphold the rights of the citizens and to bring to them a judicial fitment
as available in accordance with the laws. There have been several instances where
this Court has gone out of its way to evolve principles and make directions which
would meet the demands of justice in a given situation. This, however, is not an
occasion when such an experiment could have been undertaken to formulate the
Mehta principle of strict liability at the eventual risk of ultimately losing the legal
battle.
20. Those who have clamoured for a judgment on merit were perhaps not alive to
this aspect of the matter. If they were and yet so clamoured, they are not true
representatives of the cause of the victims, and if they are not, they were certainly
misleading the poor victims. It may be right that some people challenging the
settlement who have come before the Court are the real victims. I assume that they
are innocent and unaware of the rigmarole of the legal process. They have been led
into a situation without appreciating their own interest. This would not be the first
instance where people with nothing as stake have traded in the misery of others.
2 1 . This Court is entitled under the constitutional scheme to certain freedom of
operation. It would be wrong to assume that there is an element of judicial arrogance
in the act of the Court when it proceeds to act in a pragmatic way to protect the
victims. It must be conceded that the citizens are equally entitled to speak in support
of their rights. I am prepared to assume, nay, concede, that public activists should
also be permitted to espouse the cause of the poor citizens but there must be a limit
set to such activity and nothing perhaps should be done which would affect the
dignity of the Court and bring down the serviceability of the institution to the people
at large. Those who are acquainted with jurisprudence and enjoy social privilege as
men educated in law owe an obligation to the community of educating it properly and
allowing the judicial process to continue unsoiled. Lord Simonds in Shaw v. Director
of Public Prosecutions (1981) 2 All E.R. 447 said:
I entertain no doubt that there remains in the courts of law a residual power
to enforce the supreme and fundamental purpose of the law, to conserve not
only the safety and order but also the moral welfare of the State.
22. Let us remember what had once been said in a different context:
It depends upon the present age whether this great national institution shall
descend to our children in its masculine majesty to protect the people and
fulfil their great expectations.
23. Let us also remember what Prof. Harry Jones in the Efficacy of Law has said:
There are many mansions in the house of Jurisprudence, and I would not be
little any one's perspective on law in society, provided only that he does not
insist that his is the only perspective that gives a true and meaningful view of

Article 139A it is relevant to mention here, was introduced as part of the scheme of
the 42nd Constitutional Amendment. That amendment proposed to invest the
Supreme Court with exclusive jurisdiction to determine the constitutional validity of
central laws by inserting Articles 131A, 139A arid 144A. But Articles 131A, and 144A
were omitted by the 43rd Amendment Act 1977, leaving Article 139A intact. That
article enables the litigants to approach the Apex-Court for transfer of proceedings if
the conditions envisaged in that Article are satisfied. Article 139A was not intended,
nor does it operate, to whittle down the existing wide powers under Article 136 and
142 of the Constitution.
The purposed constitutional plenitude of the powers of the Apex Court to ensure due
and proper administration of justice is intended to be co-extensive in each case with
the needs of justice of a given case and to meeting any exigency. Indeed, in Harbans
Singh v. U.P. State MANU/SC/0072/1982 : 1982CriLJ795 the Court said:
Very wide powers have been conferred on this Court for due and proper
administration of justice. Apart from the jurisdiction and powers conferred on
this Court under Arts. 32 and 136 of the Constitution I am of the opinion that
this Court retains and must retain, an inherent power and jurisdiction for
dealing with any extra-ordinary situation in the larger interests of
administration of justice and for preventing manifest injustice being done.
This power must necessarily be sparingly used only in exceptional
circumstances for furthering the ends of justice. Having regard to the facts
and circumstances of this case, I am of the opinion that this is a fit case
where this Court should entertain the present petition of Harbans Singh and
this Court should interfere.
We find absolutely no merit in this hypertechnical submission of the petitioners'
learned Counsel. We reject the argument as unsound.
A similar ground is urged in support of contention [B] in relation to such withdrawal
implicit in the quashing of the criminal proceedings. On the merits of the contention
whether such quashing of the proceedings was, in the circumstances of the case,
justified or not we have reached a decision on Contentions [D] and [E]. But on the
power of the court to withdraw the proceedings, the contention must fail.
We, accordingly, reject both Contentions [A] and [B].
Re: Contention (C)
35. Shri Shanti Bhushan contends that the settlement recorded on the 14th and 15th
of February, 1989, is void under Order XXIII Rule 3B, CPC, as the orders affect the
interests of persons not economies parties to the proceedings, and, therefore, the
proceedings become representative-proceedings for the purpose and within the
meaning of Order XXIII Rule 3-B C.P.C. The order recording the settlement, not
having been preceded by notice to such persons who may appear to the Court to be
interested in the suit, would, it is contended, be void.
Order XXIII Rule 3-B CPC provides:
Order XXIII Rule 3B.
No agreement or compromise to be entered in a representative suit without
leave of Court.

tortfeasor's liability, if at all. If I had come to the conclusion that the settlement-fund
was inadequate, I would have done the only logical thing of reviewing the settlement
and would have left the parties to work out a fresh settlement or go to trial in the
pending suit. In Sahu's case as pointed out by Mukharji, CJ. the victims had not been
able to show any material which would vitiate the settlement. The voluminous
documentary evidence placed on the record of the present proceedings also does not
make out a case of inadequacy of the amount, necessitating a review of the
settlement. In the circumstances I do not think that the Union of India can be saddled
with the liability to make good the deficit, if any, particularly when it is not found to
be a tortfeasor. It's liability as a tortfeasor, if at all, would have to be gone into in a
separate proceeding and not in the present petitions. These, in brief, are my reasons
for my inability to agree with the latter part of conclusion (viii) imposing, a liability
on the Union of India to make good the deficit, if any.
114. One word about the shifting stand of the Union of India. It entered into a Court
assisted settlement but when the review applications came up for hearing it
supported the review petitioners without seeking the Court's leave to withdraw from
the settlement on permissible grounds or itself filing a review petition. To say the
least this conduct is indeed surprising.
115. I would have liked to reason out my view in greater detail but the constraint of
time does not permit me to do so. The draft of the main judgment was finalised only
yesterday by noon time and since the matter was already listed for judgment today, I
had only a few hours to state my views. I had, therefore, no time to write a detailed
judgment but just a little time to indicate in brief the crux of some of the reasons for
my inability to agree with the view expressed in the judgment of Brother
Venkatachaliah, J. on the question of Union of India's liability to make good the
deficiency, if any.

MANU/SC/0394/2002
Equivalent Citation: AIR2002SC 2112, 2002(3)ALD90(SC ), 2002(3)ALLMR(SC )228, 2002(3)ALT19(SC ), 2002(2)BLJR1317,
97(2002)DLT657(SC ), JT2002(4)SC 501, (2002)3MLJ55(SC ), 2002(2)RC R(C ivil)640, RLW2002(4)SC 487, 2002(4)SC ALE297, (2002)5SC C 294,
[2002]3SC R696

Appeal (civil) 7178 of 2001, Writ Petition (civil) 294 of 2001
Appellants: Union of India (UOI) and Ors.
Vs.
Respondent: Association for Democratic Reforms and Ors.
M.B. Shah, B.P. Singh and H.K. Sema, JJ.
Counsels:
For Appearing Parties: Harish Salve, Solicitor General, Rajinder Sachar, Ashwini
Kumar, K.K. Venugopal, Sr. Advs, Ms. Aparajita Singh, Adv. for S.N. Terdol, Adv.,
Sanjay R. Hegde, Satya Mitra, Sanjay Parikh, R.R. Chandrachud, Ranjit Thomas, Javed
Mahmud Rao, S. Muralidhar, S.K. Mendiratta, S. Vallinayagam, Shreyas Jayasinha, Ms.
Kamini Jaiswal and Ms. Aishwarya Rao, Advs
Case Note:
Constitution - Election - Voters right to know relevant particulars of their
candidates, before casting votes - Voter has the elementary right to know
full particulars of a candidate who is to represent him in Parliament and
such right to get information is universally recognized - Supreme Court has
ample power to direct the commission to fill the void, in absence of suitable
legislation, covering the field under Article 32, 141 and 142 of the
Constitution and the voters are required to be well informed and educated
about the contesting candidates so that they can elect proper candidate by
their own assessment - Election commission directed to call for information
on an affidavit by issuing necessary order in exercise of its power under
Article 324 of the Constitution from each candidate seeking election to
Parliament or State Legislature as a necessary part of his information on
the following aspects: (1) Whether the candidate is
convicted/acquitted/discharged of any criminal offence in the past and
punished with imprisonment or fine (2) Prior to six months of filing
nomination, whether the candidate accused in any pending case of any
offence punishable with imprisonment for two years or more, and in which
charge is framed or cognizance is taken by the court of law, (3) the assets
(immovable, movable, bank balances etc.) of a candidate and of his/her
spouse and that of dependants, (4) Liabilities, if any, particularly whether
there are any over dues of any public financial institutions or Government
dues, (5) Educational qualification of the candidate - Norms and modalities
to carry out and give effect to the directions be drawn up by the Election
Commission- Representation of People Act, 1951 - Conduct of Election
Rules, 1961.
Election - Power of Election Commission to issue directions as ordered by

ample powers conferred by Article 32 read with Article 142 to make orders
which have the effect of law by virtue of Article 141 and there is mandate to
all authorities to act in aid of the orders of this Court as provided in Article
144 of the Constitution. In a catena of decisions of this Court, this power has
been recognised and exercised, if need be, by issuing necessary directions to
fill the vacuum till such time the legislature steps in to cover the gap or the
executive discharges its role."
[Emphasis supplied]
17. In paragraph 51, the Court pointed out previous precedents for exercise of such
power:
"In exercise of the powers of this Court under Article 32 read with Article
142, guidelines and directions have been issued in a large number of cases
and a brief reference to a few of them is sufficient. In Erach Sam Kanga v.
Union of India [W.P. No. 2632 of 1978 decided on 20.3.1979] the
Constitution Bench laid down certain guidelines relating to the Emigration
Act, In Lakshmi Kant Pandey v. Union of India MANU/SC/0054/1984 :
[1984]2SCR795 : [1984]2SCR795 (In re, Foreign Adoption)m guidelines for
adoption of minor children by foreigners were laid down. Similarly in State
of W.B. v . Sampat Lal MANU/SC/0126/1984 : 1985CriL J516 ,K.
Veeraswami, v. Union of India MANU/SC/0610/1991 : (1992)IILL J53bSC
Union Carbide Corporation. v . Union of India MANU/SC/0058/1992 :
AIR1992SC248 , Delhi Judicial Service Association v. State of Gujarat
(Nadiad Case) MANU/SC/0478/1991 : 1991CriL J3086 , Delhi
Development Authority v . Skipper Construction Co. (P) Ltd.
MANU/SC/0497/1996 : AIR1996SC2005 andDines Trivedi, M.P. v. Union
of India MANU/SC/1138/1997 : [1997]3SCR93 : [1997]3SCR93 guidelines
were laid down having the effect of law, requiring rigid compliance. In
Supreme Court Advocates-on-Record Association v . Union of India
(IInd Judges case) MANU/SC/0073/1994 : AIR1994SC268 , a nine-Judge
Bench laid down guidelines and norms for the appointment and transfer of
Judges which are being rigidly followed in the matter of appointments of
High Court and Supreme Court Judges and transfer of High Court Judges.
More recently in Vishaka v. State of Rajasthan MANU/SC/0786/1997 :
AIR1997SC3011 elaborate guidelines have been laid down for observance in
workplaces relating to sexual harassment of working women. In Vishaka
(supra) it was said
"11. The obligation of this Court under Article 32 of the Constitution for the
enforcement of these fundamental rights in the absence of legislation must
be viewed along with the role of judiciary envisaged in the Beijing,
Statement of Principles of the Independence of Judiciary in the LAWASIA
region. These principles were accepted by the Chief Justices of Asia and the
Pacific at Beijing in 1995 (As amended at Manila, 28th August, 1997) as
those representing the minimum the standards necessary to be observed in
order to maintain the independence and effective functioning of the judiciary.
The objectives of the judiciary mentioned in the Beijing Statement are:
"Objectives of the Judiciary:
10. The objectives and functions of the Judiciary include the following:

(a) to ensure that all persons are able to live securely under the rule
of law;
(b) to promote, within the proper limits of the judicial function, the
observance and the attainment of human rights; and
(c) to administer the law impartially among persons and between
persons and the State."
Thus, an exercise of this kind by the court is now a well-settled practice
which has taken firm roots in our constitutional jurisprudence. This exercise
is essential to fill the void in the absence of suitable legislation to cover the
field."
1 8 . Ms. Kamini Jaiswal, learned counsel appearing on behalf of respondents in
support of the decision rendered by the High Court referred to the decision in Kihoto
Hollohan v. Zachillhu and Ors. MANU/SC/0753/1992 : [1992]1SCR686 wherein
while considering the validity of the Tenth Schedule of the Constitution, the Court
observed "democracy is a part of the basic structure of our Constitution; and rule of
law, and free and fair elections are basic features of democracy. One of the
postulates of free and fair elections is provisions for resolution of election disputes as
also adjudication of disputes relating to subsequent dies-qualifications by an
independent authority". She, therefore, contended that for free and fair elections and
for survival of democracy, entire history, background and the antecedents of the
candidate are required to be disclosed to the voters so that they can judiciously
decide in whose favour they should vote otherwise, there would not be true reflection
of electoral mandate. For interpreting Article 324, she submitted that this provision
outlines broad and general principles giving power to the Election Commission and it
should be interpreted in a broad perspective as held by this Court in various
decisions.
In these matters, questions requiring consideration are-
1. Whether Election Commission is empowered to issue directions as ordered
by the High Court?
2 . Whether a voter - a citizen of this country - has right to get relevant
information, such as, assets. qualification and involvement in offence for
being educated and informed for judging the suitability of a candidate
contesting election as MP or MLA?
1 9 . For deciding the aforesaid questions, we would proceed on the following
accepted legal position.
20. At the outset, we would say that it is not possible for this Court to give any
directions for amending the Act or the statutory Rules. It is for the Parliament to
amend the Act and the Rules.
It is also established law that no direction can be given, which would be contrary to
the Act and the Rules.
21. However, it is equally settled that in case when the Act or Rules are silent on a
particular subject and the Authority implementing the same has constitutional or
statutory power to implement it, the Court can necessarily issue directions or orders

58. In the result, Civil Appeal No. 7178 of 2001 is partly allowed and the directions
issued by the High Court are modified as stated above. Appeal stands disposed of
accordingly.
59. Writ Petition (C) No. 294 of 2001 is allowed to the aforesaid extent.
60. There shall be no order as to costs.

MANU/SC/0805/2003
Equivalent Citation: AIR2003SC 4622, 2003C riLJ4561, 2003(4)C rimes332(SC ), 2003(90)EC C 1, 2003(111)EC R288(SC ), 2003(162)ELT6(S.C .),
2004GLH(1)57, JT2003(Suppl2)SC 503, 2004(1)KLT364(SC ), 2003(4)RC R(C riminal)927, 2003(8)SC ALE515, (2003)8SC C 342,
[2003]Supp4SC R618

Appellants: Union of India (UOI)
Vs.
Respondent: Paul Manickam and Ors.
Doraiswamy Raju and Dr. Arijit Pasayat, JJ.
Counsels:
For Appellant/Petitioner/Plaintiff: L. Nageswara Rao, Additional Solicitor General, C.V.
Subba Rao, Rajeev Sharma and B.K. Prasad, Advs
For Respondents/Defendant: P.B. Suresh, Vipin Nair and Nikilesh R., Advs. for Temple
Law Firm and P.N. Ramalingam, Adv.
Case Note:
Held: Preventive Detention - S. 3 of COFEPOSA Act, 1974-- detaining
authority is aware of the person in custody likely to be released and if
released would indulge in prejudicial activities thereby necessitates his
detention.
2. Review petition--representation against detention can be made to the
President of India or State Governor meaning thereby representation the
Central or State Government--facts in the writ suppressed by detenue, High
Court therefore, not have entertained this petition. "Despite knowledge,
the detenu did not avail of the opportunity. Instead of making a
representation to the appropriate Government or the confirming authority,
the detenu chose to address a representation to the Advisory Board alone
even without a request to send its copy to the authorities concerned under
the Act. In the absence of representation or the knowledge of the
representation having been made by the detenu, the appropriate
Government was justified in confirming the order of detention on perusal of
record and documents excluding the representation made by the detenue to
the Advisory Board. For this alleged failure of the appropriate Government,
the order of detention of the appropriate Government is neither rendered
unconstitutional nor illegal."
3. Writ Jurisdiction--Article 32 of the Constitution of India--Preventive
detention--Concerned High Court under whose jurisdiction the order of
detention has been passed should be approached first.
4. Quashing of detention--Detenu has suffered detention for about the
whole period of detention--High Court's order quashing is not to be

alone are ultimately responsible and accountable for the action taken or to be taken
in a given case. It really the citizen concerned genuinely and honestly felt or
interested in getting an expeditious consideration or disposal of his grievance, he
would and should honestly approach the really concerned authorities and would not
adopt any dubious devices with the sole aim of deliberately creating a situation for
delay in consideration and cry for relief on his own manipulated ground, by directing
his representation to an authority which is not directly immediately concerned with
such consideration.
18. It was nowhere indicated in the representation by the respondent as to why the
representation was not being made to the indicated authorities and instead was being
made to the President of India. This appears to be a deliberate view to take
advantage of the concern shown by this Court in protecting personal liberty of
citizens. Where however a person alleging infraction of personal liberty tries to act in
a manner which is more aimed at deflecting the course of justice than for protection
of his personal right, the Court has to make a deliberate balancing of the fact
situation to ensure that the mere factum of some delay alone is made use of to grant
relief. If a fraud has been practiced or perpetrated that may in a given case nullify the
cherished goal of protecting personal liberty, which obligated this Court to device
guidelines to ensure such protection by balancing individual rights and the interests
of the nation, as well.
19. I n R. Keshava v. M.B. Prakash and Ors. MANU/SC/0806/2000 : 2001CriL J497 it
was observed by this Court as follows:
"We are satisfied that the detenu in this case was apprised of his right to
make representation to the appropriate Government/authorities against his
order of detention as mandated in Article 22(5) of the Constitution. Despite
knowledge, the detenu did not avail of the opportunity.
Instead of making a representation to the appropriate Government or the
confirming authority, the detenu chose to address a representation to the
Advisory Board alone even without a request to send its copy to
the authorities concerned under the Act. In the absence of representation or
the knowledge of the representation having been made by the detenu, the
appropriate Government was justified in confirming the order of detention on
perusal of record and documents excluding the representation made by the
detenu to the Advisory Board. For this alleged failure of the appropriate
Government, the order of detention of the appropriate Government is neither
rendered unconstitutional nor illegal".
20. Another aspect which has been highlighted is that many unscrupulous petitioners
are approaching this Court under Article 32 of the Constitution challenging the order
of detention directly without first approaching the concerned High Courts. It is
appropriate that the concerned High Court under whose jurisdiction the order of
detention has been passed by the State Government or Union Territory should be
approached first. In order to invoke jurisdiction under Article 32 of the Constitution
to approach this Court directly, it has to be shown by the petitioner as to why the
High Court has not been approached, could not be approached or it is futile to
approach the High Court. Unless satisfactory reasons are indicated in this regard
filing of petition on such matters, directly under Article 32 of the Constitution is to be
discouraged.

21. In view of the fact that the detenu has suffered detention for about the whole
period of detention, we do not consider this a fit case for interference. We dismiss it
subject to the observations made above.

MANU/SC/0827/1998
Equivalent Citation: AIR1998SC 889, 1996 (1) AWC 465 (SC ), 1998C riLJ1208, 1998(1)C rimes12(SC ), 1998(1)GLT11, JT1997(10)SC 247,
1997(7)SC ALE656, (1998)1SC C 226, [1997]Supp6SC R595

Writ Petition (Crl.) Nos. 340-343 of 1993
Appellants: Vineet Narain and Ors.
Vs.
J.S. Verma, C.J., S.P. Bharucha and S.C. Sen, JJ.
Counsels:
For Appellant/Petitioner/Plaintiff: Anil B. Divan, Sr. Adv. (Amicus curiae), Abani Kumar
Sahu, A.K. Panda, Mukul Mudgal and Anil Nauriya, Advs.
For Respondents/Defendant: Ashok H. Desai, Attorney General for India and K.N.
Bhat, Additional Solicitor General, Pallav Shishodia, Anuradha Bindra and P.
Parmeswaran, Advs.
Case Note:
Constitution - duties - petition filed as public interest litigation alleging
that Government agencies like CBI and revenue authorities had failed to
perform their duties - as they failed to investigate matters arising out of
'jain diaries' which disclosed nexus between politicians and criminals - writ
of mandamus issued to authorities to comply with it - Central Government
directed to take all measures necessary to ensure that CBI function
effectively and efficiently and viewed as non-partisan agency.
HELD See paras 1, 5, 7 and 60.

JUDGMENT
J.S. Verma, C.J.
1. These writ petitions under Article 32 of the Constitution of India brought in public
interest, to begin with, did not appear to have the potential of escalating to the
dimensions they reached or to give rise to several issues of considerable significance
to the implementation of rule of law, which they have, during their progress. They
began as yet another complaint of inertia by the Central Bureau of Investigation (CBI)
in matters where the accusation made was against high dignitaries. It was not the
only matter of its kind during the recent past. The primary question was : Whether it
is within the domain of judicial review and it could be an effective instrument for
activating the investigative process which is under the control of executive ? The
focus was on the question, whether any judicial remedy is available in such a
situation? However, as the case progressed, it required innovation of a procedure

which the offender is alleged to be in possession of disproportionate assets. It is
clear that the accusation of possession of disproportionate assets by a person is also
based on direct evidence and no factor pertaining to the expertise of decision making
is involved therein. We have, therefore, no doubt that the Single Directive cannot
include within its ambit cases of possession of disproportionate assets by the
offender. The question now is only with regard to cases other than those of bribery,
including trap cases, and of possession of disproportionate assets being covered by
the Single Directive.
48. There may be other cases where the accusation cannot be supported by direct
evidence and is a matter of inference of corrupt motive for the decision, with nothing
to prove directly any illegal gain to the decision maker. Those are cases in which the
inference drawn is that the decision must have been made for a corrupt motive
because the decision could not have been reached otherwise by an officer at that
level in the hierarchy. This is, therefore, an area where the opinion of persons with
requisite expertise in decision making of that kind is relevant and, may be even
decisive in reaching the conclusion whether the allegation requires any investigation
to be made. In view of the fact that the CBI or the Police force does not have the
expertise within its fold for the formation of the requisite opinion in such cases, the
need for the inclusion of such a mechanism comprising of experts in the field as a
part of the infrastructure of the CBI is obvious, to decide whether the accusation
made discloses grounds for a reasonable suspicion of the commission of an offence
and it requires investigation. In the absence of any such mechanism within the
infrastructure of the CBI, comprising of experts in the field who can evaluate the
material for the decision to be made, introduction therein of a body of experts having
expertise of the kind of business which requires the decision to be made, can be
appreciated. But then, the final opinion is to be of the CBI with the aid of that advice
and not that of anyone else. It would be more appropriate to have such a body within
the infrastructure of the CBI itself.
49. The Single Directive cannot, therefore, be upheld as valid on the ground of it
being permissible in exercise of the power of superintendence of the Central
Government under Section 4(1) of the Act. The matter has now to be considered de
hors the Single Directive.
Power of the Supreme Court
50. In view of the common perception shared by everyone including the Government
of India and the Independent Review Committee (IRC) of the need for insulation of
the CBI from extraneous influence of any kind, it is imperative that some action is
urgently taken to prevent the continuance of this situation with a view to ensure
proper implementation of the rule of law. This is the need of equality guaranteed in
the Constitution. The right to equality in a situation like this is that of the Indian
polity and not merely of a few individuals. The powers conferred on this Court by the
Constitution are ample to remedy this defect and to ensure enforcement of the
concept of equality.
51. There are ample powers conferred by Article 32 read with Article 142 to make
orders which have the effect of law by virtue of Article 141 and there is mandate to
all authorities to act in aid of the orders of this Court as provided in Article 144 of the
Constitution. In a catena of decisions of this Court, this power has been recognised
and exercised, if need be, by issuing necessary directions to fill the vacuum till such
time the legislature steps in to cover the gap or the executive discharges its role. It is


IN THE SUPREME COURT OF JUDICATURE
KING'S BENCH
Royal Courts of Justice

10 November 1947
Before:
MASTER OF THE ROLLS

(Lord Greene)
LORD JUSTICE SOMERVELL

and
JUSTICE SINGLETON
____________________
ASSOCIATED PROVINCIAL PICTURE Plaintiffs

HOUSES LTD (Appellant)
Defendants
WEDNESBURY CORPORATION (Respondents)
____________________
MR GALLOP K.C. and MR S. LAMB (instructed by Messrs. Norman, Hart & Mitchell)
appeared on behalf of the Plaintiffs (Appellants).
MR FITZGERALD K.C. and MR V. GATTIE (instructed by Messrs. Pritchard & Co.)
appeared on behalf of the Defendants (Respondents).
____________________
Crown Copyright ©
MASTER OF THE ROLLS: In the action out of which this appeal arises, the plaintiffs, who
are the proprietors of a cinema theatre in Wednesbury, sought to obtain from the court a
declaration that a certain condition imposed by the defendants, the corporation of
Wednesbury, on the grant of a licence for Sunday performances in that cinema was ultra
vires. The action was dismissed by Mr Justice Henn Collins and, in my opinion, his decision
was clearly right. The powers and duties of the Local Authority are to be found in the Sunday
Entertainments Act, 1932. That Act legalized the opening of cinemas on Sundays, subject to
certain specified conditions and subject to such conditions as the licensing authority think fit to
impose. The licensing authority are the licensing authority set up under the Cinematograph
Act, 1909, and in this case are the council of the borough of Wednesbury. Before the Act of
1932, the opening of cinematograph theatres on Sundays was, in fact, illegal. Local
authorities had purported in some cases to allow Sunday opening under the licences which
they granted, but that permission was strictly irregular. The position under the Act now with
regard to licensing is stated conveniently by Mr Justice Atkinson in Harman v. Butt [1944]
Kings Bench at page 493. He there says:
"It is apparent that there are at least three totally different occasions on which licensing
justices may be called on to exercise their discretion to issue a licence and to determine on
what conditions the licence shall be issued. The application may be under the Cinematograph
Act, 1909, relating to six days of the week, excluding Sundays. It may be one relating solely to
Sundays under the Sunday Entertainments Act, 1932, where in the case of a borough the
majority of the local government electors have expressed a desire for Sunday performances.
Thirdly, it may be one where the local government electors have expressed no such wish, but
In the result, this appeal must be dismissed. I do not wish to repeat myself but I will
summarize once again the principle applicable. The court is entitled to investigate the action
of the local authority with a view to seeing whether they have taken into account matters
which they ought not to take into account, or, conversely, have refused to take into account or
neglected to take into account matters which they ought to take into account. Once that
question is answered in favour of the local authority, it may be still possible to say that,
although the local authority have kept within the four corners of the matters which they ought
to consider, they have nevertheless come to a conclusion so unreasonable that no
reasonable authority could ever have come to it. In such a case, again, I think the court can
interfere. The power of the court to interfere in each case is not as an appellate authority to
override a decision of the local authority, but as a judicial authority which is concerned, and
concerned only, to see whether the local authority have contravened the law by acting in
excess of the powers which Parliament has confided in them. The appeal must be dismissed
with costs.
LORD JUSTICE SOMERVELL: I agree that the appeal must be dismissed for the reasons
which have been given by the Master of the Rolls, and I do not desire to add anything.
JUSTICE SINGLETON: I agree.
Order: Appeal dismissed with costs.

MANU/SC/0062/1976
Equivalent Citation: AIR1976 SC 1207 , 1976 CriLJ945 , (1976 )2 SCC521 , [1976 ]SuppSCR172 , 1976 (8 )UJ610
Criminal Appeal Nos. 279, 355, 356, 380, 389, 1845-1849 and 1926 of
1975 and 3, 41 and 46 of 1976
Appellants:Additional District Magistrate, Jabalpur

Vs.
Respondent:Shivakant Shukla
A.N. Ray, C.J., H.R. Khanna, M. Hameedullah Beg, P.N. Bhagwati and Y.V.
Chandrachud, JJ.
Counsels:
For Appellant/Petitioner/Plaintiff: M.C. Nihalani, Ram Panjwani, S.N. Kakkar,
Niren De and V.P. Raman, Advs.
For Respondents/Defendant: Shanti Bhushan, Soli J. Sorabjee, G.C.

Dwivedi, S.S. Khanduja, Rama Jois and N.M. Ghatate, Advs.
Case Note:
Constitution - detention - Section 16A of Maintenance of Internal

Security Act, 1971 and Article 359 of Constitution of India - detenue
questioned validity of Section 16A (9) - in view of Presidential Order
under Article 359 (1) no person had locus standi to move writ
petition under Article 226 to enforce any right to personal liberty of
person detained under Act of 1971 on ground that detention in
question is not under or in compliance with Act of 1971 or illegal or
mala fide - held, Section 16A (9) valid - not open to detenue or to
Court to ask for grounds of detention.
JUDGMENT
A.N. Ray, C.J.

168. Not much argument is needed to show that if two constructions of
Presidential order were possible, one leading to startling results and the
other not leading to such results, the court should lean in favour of such
construction as would not lead to such results.
169. Equally well established is the rule of construction that if there be a

conflict between the municipal law on one side and the international law or
the provisions of any treaty obligations on the other, the courts would give
effect to municipal law. If, however, two constructions of the municipal law
are possible, the court should lean in favour of adopting such construction
as would make the provisions of the municipal law to be in harmony with
the international law or treaty obligations. Every statute, according to this
rule, is interpreted, so far as its language permits, so as not to be
inconsistent with the committee of nations or the established rules of
international law, and the court will avoid a construction which would give
rise to such inconsistency unless compelled to adopt it by plain and
unambiguous language. But if the language of the statute is clear, it must be
followed notwithstanding the conflict between municipal and international
law which results (see page 183 of Maxwell on the Interpretation of
Statutes, Twelfth Edition.) As observed by Oppenheim's International law,
although municipal courts must apply Municipal Law even if it conflicts with
the law of Nations, there is a presumption against the existence of such a
conflict. As the Law of Nations is based upon the common consent of the
different States, it is improbable that an enlightened State would
intentionally enact a rule conflicting with the Law of Nations. A rule of
Municipal Law, which ostensibly seems to conflict with the Law of Nations,
must, therefore, if possible, always be so interpreted as to avoid such
conflict (see Vol. I, pages 45-46), Lord Denning gave expression to similar
view in the case of Corocraft Ltd. v. Pan American Airways Inc. [1969] 1 All
E. R. 80 when he observed:
The Warsaw Convention is an international convention which is

binding in international law on all the countries who have ratified it:
and it is the duty of these courts to construe our legislation so as to
be in conformity with international law and not in conflict with it.
The rule about the construction of municipal law also holds good" when
construing the provisions of the Constitution as would appear from
International Law by Fenwick, Third Edition, page 90, wherein is observed:
But while in the case of a direct conflict between national and

international law, the rule of national law will of necessity take

priority until changed to conform to the international obligations of
the state, there are numerous cases in which the provisions of the
national Constitution of the provisions of a particular legislative act
are not so explicit but that they may be interpreted so as to enable
the executive and the judicial agencies of the state to act in-
accordance with the obligations (of international law.
According to Article 51 our Constitution, the State shall endeavor to inter

alia foster respect for international law and treaty obligations in the dealings
of organised peoples with one another. Relying open that article, Sikri CJ.
observed in the case of Kesavananda Blwrathi v. State of Kerala
MANU/SC/0114/1972 : 1972CriLJ1526:
it seems to me that, in view of Article 51 of the directive principles,

this Court must interpret language of the Constitution, if mot
intractable, which is after all a municipal law, in the light of the
United Nations Charter and the solemn declaration subscribed to by
India.
Articles 8 and 9 of the Universal Declaration of Human Rights in respect of

which resolution was passed by the United Nations and was supported by
India read as under:
ARTICLE 8
Everyone has the right to an effective remedy by the competent

national tribunals for acts violating the fundamental rights granted
him by the Constitution or by law.
ARTICLE 9
No one shall be subjected to arbitrary arrest, detention or exile.
170. While dealing with the Presidential order under Article 359(1), we
should adopt such a construction as would, if possible, not bring it in conflict
with the above Articles 8 and 9. From what has been discussed elsewhere, it
is plain that such a construction is not only possible, it is also preeminently
reasonable. The Presidential order, therefore, should be so construed as not
to warrant arbitrary arrest or to bar right to an effective remedy by
competent national tribunals for acts violating basic right of personal liberty
granted by law.

599. I accordingly answer the first question by saying that the Presidential
Order dated June 27, 1975 bars maintainability of a petition for a writ of
habeas corpus where an order of detention is challenged on the ground that
it is vitiated by mala fides, legal or factual, or is based on extraneous
considerations or is not under the Act or is not in compliance with it. So far
as the second question is concerned, I do not think there is any warrant for
reading down Sub-section (9) (a) of Section 16A so as to imply an exception
in favour of disclosure to the Court, and, on the interpretation placed by me
on that provision, T hold that it does not constitute an encroachment on the
constitutional jurisdiction of the High Court under Article 226 and is
accordingly not void. In the circumstances, I allow the appeals and set aside
the judgments of the High Courts impugned in the appeals.
ORDER
600. By majority--
1. In view of the Presidential Order dated 27 June 1975 no person

has any locus standi to move any writ petition under Article 226
before a High Court for habeas corpus or any other writ or order or
direction to challenge the legality of an order of detention on the
ground that the order is not under or in compliance with the Act or
is illegal or is vitiated by malafides factual or legal or is based on
extraneous considerations;
2. Section 16A(9) of the Maintenance of Internal Security Act is

constitutionally valid;
3. The appeals are accepted. The judgments are set aside;
4. The petitions before the High Courts are now to be disposed of in

accordance with the law laid down in these appeals.

MANU/SC/0498/1980
Equivalent Citation: AIR1981SC 487, (1981)2C ompLJ249(SC ), (1981)ILLJ103SC , (1981)1SC C 722, [1981]2SC R79, 1981(2)SLJ651(SC ),
1980(3)SLR467(SC )

Writ Petition Nos. 1118, 1119, 1143, 1144, 1145, 1230, 1244-45, 1262, 1263, 1268,
1304, 1331, 1373-74, 1389, 1420-23, 1431, 1437-39, 1440, 1441-43, 1461, 1494-
97, 1566-67, 1574-75 and 1586 of 1979
Appellants: Ajay Hasia and Ors.
Vs.
Respondent: Khalid Mujib Sehravardi and Ors.
Y.V. Chandrachud, C.J., P.N. Bhagwati, S. Murtaza Fazal Ali, V.R. Krishna Iyer and
A.D. Koshal, JJ.
Counsels:
For Appellant/Petitioner/Plaintiff: Anil Dev Singh, Lalit Kumar Gupta, Subhash Sharma,
Chandra Prakash Pandey and S.K. Sabharwal, Advs
For Respondents/Defendant: S.N. Kacker and Altaf Ahmed, Advs.
Case Note:
Constitution - Admission - Petitioner challenged validity of admissions
made to Regional Engineering College for academic year 1979-80 - Hence,
this Appeal - Held, marks secured by them at qualifying examination were
much less than marks obtained by Petitioners - However, successful
candidates succeeded in obtaining admission to college by virtue of very
high marks obtained at viva voce examination - It was clear from chart
submitted on behalf of Petitioners that marks awarded at interview was in
inverse proportion to marks obtained by other candidates and also not
commensurate with marks obtained in written test - Such chart also not
create a strong suspicion that Committee deliberately manipulated marks at
viva voce examination with a view to favouring other candidates as against
Petitioners - therefore, selection for academic year 1979-80 could not be
interfered - Petitions dismissed.
Ratio Decidendi:
"Person shall entitle for admission as per qualification in each and every
test held by authority in institute."
JUDGMENT
P.N. Bhagwati, J.
1 . These writ petitions under Article 32 of the Constitution challenge the validity of
the admissions made to the Regional Engineering College, Srinagar for the academic
year 1979-80.
2. The Regional Engineering College, Srinagar (hereinafter referred to as the College)

of the group; and (ii) that that differentia has a rational relation to the object sought
to be achieved by; the impugned legislative or executive action. It was for the first
time in E.P. Royappa v. State of Tamil Nadu MANU/SC/0380/1973 : (1974)ILL J172SC
that this Court laid bare a new dimension of Article 14 and pointed out that that
Article has highly activist magnitude and it embodies a guarantee against
arbitrariness. This Court speaking through one of us (Bhagwati, J.) said :
The basic principle which therefore informs both Articles 14 and 16 is
equality and inhibition against discrimination. Now, what is the content and
reach of this great equalising principle? It is a founding faith, to use the
words of Bose, J., "a way of life", and it must not be subjected to a narrow
pedantic or lexicographic approach. We cannot countenance any attempt to
truncate its all-embracing scope and meaning, for to do so would be to
violate its activist magnitude. Equality is a dynamic concept with many
aspects and dimensions and it cannot be " cribbed cabined and confined"
within traditional and doctrinaire limits. From a positivistic point of view,
equality is antithetic to arbitrariness. In fact, equality and arbitrariness are
sworn enemies; one belongs to the rule of law in a republic while the other,
to the whim and caprice of an absolute monarch. Where an act is arbitrary it
is implicit in it that it is unequal both according to political logic and
constitutional law and is therefore violative of Article 14, and if it affects any
matter relating to public employment, it is also violative of Article 16.
Articles 14 and 16 strike at arbitrariness in State action and ensure fairness
and equality of treatment.
17. This vital and dynamic aspect which was till then lying latent and submerged in
the few simple but pregnant words of Article 14 was explored and brought to light in
Royappa's case and it was reaffirmed and elaborated by this Court in Maneka Gandhi
v. Union of India MANU/SC/0133/1978 : [1978]2SCR621 where this Court again
speaking through one of us (Bhagwati, J.) observed :
Now the question immediately arises as to what is the requirement of Article
14 : what is the content and reach of the great equalising principle
enunciated in this article? There can be no doubt that it is a founding faith of
the Constitution. It is indeed the pillar on which rests securely the foundation
of our democratic republic. And, therefore, it must not be subjected to a
narrow, pedantic or lexicographic approach. No attempt should be made to
truncate its all-embracing scope and meaning for, to do so would be to
violate its activist magnitude. Equality is a dynamic concept with many
aspects and dimensions and it cannot be imprisoned within traditional and
doctrinaire limits.... Article 14 strikes at arbitrariness in State action and
ensures fairness and equality of treatment. The principle of reasonableness,
which legally as well as philosophically, is an essential element of equality or
non-arbitrariness pervades Article 14 like a brooding omnipresence.
This was again reiterated by this Court in International Airport Authority's case
(supra) at page 1042 of the Report. It must therefore now be taken to be well settled
that what Article 14 strikes at is arbitrariness because any action that is arbitrary,
must necessarily involve negation of equality. The doctrine of classification which is
evolved by the courts is not para-phrase of Article 14 nor is it the objective and end
of that Article. It is merely a judicial formula for determining whether the legislative
or executive action in question is arbitrary and therefore constituting denial of
equality. If the classification is not reasonable and does not satisfy the two conditions

and non-arbitrariness. We think that it would also be desirable if the interview of the
candidates is tape-recorded, for in that event there will be contemporaneous evidence
to show what were the questions asked to the candidates by the interviewing
committee and what were the answers given and that will eliminate a lot of
unnecessary controversy besides acting as a check on the possible arbitrariness of
the interviewing committee.
23. We may point out that the State Government, the Society and the College have
agreed before us that the best fifty students, out of those who applied for admission
for the academic year 1979-80 and who have failed to secure admission so far, will
be granted admission for the academic year 1981-82 and the seats allocated to them
will be in addition to the normal intake of students in the College. We order
accordingly.
2 4 . Subject to the above direction, the writ petitions are dismissed, but having
regard to the facts and circumstances of the present cases, we think that a fair order
of costs would be that each party should bear and pay its own costs of the writ
petitions.

MANU/SC/0481/2005
Equivalent Citation: 2005(4)ESC 497(SC ), [2005(4)JC R240(SC )], JT2005(7)SC 288, (2005)IIILLJ749SC , (2005)13SC C 721,
(2006)SC C (LS)1507, [2005]Supp(2)SC R565, 2005(3)SC T785(SC ), 2005(3)SLJ410(SC )

Writ Petition (C) No. 31/2000
Appellants:Amita
Vs.
Respondent:Union of India (UOI) and Ors.
Y.K. Sabharwal, D.M. Dharmadhikari and Tarun Chatterjee, JJ.
Counsels:
For Appellant/Petitioner/Plaintiff: Neeru Vaid and Eliza Rumthao, Advs
For Respondents/Defendant: Ambrish Kumar, A.D.N. Rao, A. Subba Rao and Sushma
Suri, Advs.
Case Note:
Constitution of India - Articles 14 and 16 (1)--Persons with Disabilities
(Equal Opportunities, Protection of Rights and Full Participation) Act, 1995-
-Sections 3 and 5--Employment--Selection of Bank Probationary Officer --
Petitioner being visually handicapped (blind) but eligible to appear at
examination applying therefor -- But her application form rejected on
ground that she was blind--Whether rejection violative of Articles 14 and
16 (1)?--Held, "yes"--Advertisement not disclosing that visually impaired
candidate cannot be allowed to appear at examination--Petitioner did not
ask for any favour--Applied to appear at examination not as reserved
handicapped candidate but as general candidate--Union of India and Bank
authorities admitting that nature of duties of probationary officer can be
performed by visually impaired candidate--Since writ petition pending for
more than 4 years--Age restriction in respect of petitioner shall stand
relaxed--Petitioner can appear at any forthcoming examination for Bank
Probationary Officers--If selected, she may be appointed as Probationary
Officer--If she appears at examination as reserved candidate and succeeds--
She can be appointed in reserved category.
JUDGMENT
Tarun Chatterjee, J.
1 . Pursuant to an advertisement issued at the instance of the Banking Services
Recruitment Board, Chennai ( in short "the "Board") in the Employment Newspaper
dated 9-15th October, 1999 inviting applications for the post of Probationary Officers
in Indian Overseas Banks, the Writ Petitioner, who is a visually handicapped lady,
applied for the said post. The requisite qualifications for eligibility were:
(a) A degree from a recognized University or any qualification recognized as

to the nature of duties attached to the office/post.
(Emphasis supplied)
10. From the aforesaid observations of this Court, we are confident that the visually
impaired candidate would be entitled to sit and write the examination for selection for
the post of Probationary Officer in a Bank but only restriction that would be standing
in the way of the writ petitioner for selection is that the nature of duties attached to
the office/post would be unsuitable for the visually impaired candidate. Accordingly,
we are of the view that the order passed by the authorities rejecting the application
of the writ petitioner on the ground shown in the order was erroneous, illegal and
invalid in law and therefore cannot be sustained. In any view of the matter, so far as
prayer for permitting the writ petitioner to sit and write the examination for the year
in question of which rejection order was passed, in our view, the Writ Petition had
rendered infructuous as it is now an admitted position that the examination for
selection in the post of Probationary Officer in the Bank of the year in question was
held, result was subsequently published and the vacancies were duly filled in by
making appointments on the basis of such selection of candidates. In view of the
other reliefs prayed by the writ petitioner in the amended Writ Petition, the question
now needs to be decided is whether the writ petitioner being a visually impaired lady
would be allowed to sit and write the forthcoming examination for the post of
Probationary Officer and can be appointed in such post, in view of nature of duties
attached to a Probationary Officer. As found herein earlier, it cannot be doubted that
a visually impaired candidate is entitled to sit and write the Probationary Officer
examination along with other general candidates where any post is not earmarked for
handicapped persons, as a general candidate.
11. Taking our findings, as made herein earlier to the extent that the writ petitioner
was entitled to sit and write the examination for selection of Probationary Officer in
the Bank, let us now proceed to consider whether the writ petitioner would be
entitled for appointment in the post of Probationary Officer of the Bank in question, if
successful in the written examination in view of the nature of the job to be performed
as Probationary Officer. Before we deal with this aspect of the matter, we may take
into consideration yet another aspect of the matter, namely, whether denial of
permission to the writ petitioner to sit and write the examination for the post of
Probationary Officer in the Bank offends Articles 14 and 16 of the Constitution of
India. Article 14 of the Constitution of India guarantees to every citizen of India the
right to equality before the law or the equal protection of law. The first expression
"equality before the law" which is taken from the English common law, is a
declaration of equality of all persons within the territory of India, implying thereby
the absence of any special privilege in favour of any individual. It also means that
amongst the equals the law should be equal and should be equally administered and
that likes should be treated alike. Thus, what forbids is discrimination between
persons who are substantially in similar circumstances or conditions. It does not
forbid different treatment of unequal. Article 14 of the Constitution of India is both
negative and positive right. Negative in the sense that no one can be discriminated
against anybody and everyone should be treated as equals. The latter is the core and
essence of right to equality and state has obligation to take necessary steps so that
every individual is given equal respect and concern which he is entitled as a human
being. Therefore, Art.14 contemplates reasonableness in the state action, the absence
of which would entail the violation of Art.14 of the Constitution.
12. In our view, and in view of the discussions made herein earlier, in the facts and

(underlining is ours )
2 9 . In view of this specific stand taken by the Union of India in their written
submission and affidavits as detailed hereinearlier, by which the Union of India has
categorically stated that a visually impaired candidate would be entitled to write the
examination and compete the same along with other general candidates as if she was
a general candidate in the said examination and in the event he/she wants to
compete the examination on reserved category in that case also he/she will be
entitled to sit as a reserve candidate in the said examination when some percentage
of the posts are earmarked for visually impaired candidates. It is needless to say that
the Union of India and Bank Authorities have therefore admitted that the nature of
duties of a Probationary Officer can be performed by a visually impaired candidate
and some percentage of impaired candidates are entitled for being selected and
appointed as Probationary Officers of the Bank either from the general category or
from the reserved category.
30. In view of the specific orders passed by this Court pending hearing of the writ
petition and considering the fact that this writ petition was pending for more than a
period of four years, age restriction, so far as the writ petitioner is concerned, shall
stand relaxed.
31. Accordingly, the writ application is disposed of in the following manner:
(1) If the writ petitioner chooses to appear as a general candidate to sit and
write any forthcoming examination as a Probationary Officer of the Bank, she
will be entitled to do so.
(2) If selected, she may be appointed as Probationary Officer subject to her
satisfying the other terms and conditions for appointment in the said post.
(3) If the writ petitioner writes the examination as a reserved candidate that
is to say on the visually impaired seat, if there be any, and she succeeds in
the said examination, she can be appointed on such reserved category in the
event percentage of Probationary Officer's post is kept reserved for visually
impaired candidate by the respondents.
32. In the facts and circumstances of the case, there will be no order as to costs.

MANU/MH/1386/1998
Equivalent Citation: 1999(101(1))BOMLR147, 1999C riLJ983, 1999(1)MhLj60
IN THE HIGH COURT OF BOMBAY

Cri. Writ Petition No. 1053 of 1991
Appellants: Aroon Purie
Vs.
Respondent: H.L. Varma and Ors.
T.K. Chandra Shekhara Das, J.
Counsels:
For Appellant/Petitioner/Plaintiff: S.V. Marwadi and Manmohan Sarin, Advs.
For State: A.P.P.
Case Note:
Indian Penal Code, 1860 - Section 153 - Presiding over a debate -
Publication of Speeches in good faith - Not an illegal act - No offence made
out.
Held:
In order to attract the provisions of Section 153 three important ingredients have to
be present.
1. The act must be illegal.
2. Such illegal act must be malignantly done, and
3. As a result of such illegal act, there must be a situation which may cause riot.
Presiding over a debate on a subject of 'secularism' cannot be said to be an illegal
act. The true publication of the speeches made in the debate also cannot be said to
be an illegal act. An Editor who does publish, in good faith, truely publishes speeches
made in the debate however cannot be said to have done an illegal act. It may be
that any remarks made by any speaker may hurt the sentiment of others will not
come within the ambit of Section 153IPC, even though such remarks might result in
defamation. However that is not the allegation contained in the complaint.
ORDER
T.K. Chandra Shekhara Das, J.
1 . This petition arises out of process that was issued by the Additional Chief
Metropolitan Magistrate, 5th Court at Dadar, Bombay in case No. 64/S/91 against the
petitioner. This process was issued by the Magistrate on a complaint filed by the first
respondent alleging that the petitioner has committed an offence under Section 153
read with 114 of the IPC.

Bombay, may be quashed by issuing an appropriate writ, order or direction
under Article 227 of the Constitution of India or by an order under Section
482 of the Code of Criminal Procedure.

C O U R INTERNATIONALE D E JUSTICE
RECUEIL DES ARRÊTS,

AVIS CONSULTATIFS ET ORDONNANCES
AFFAIRE REILATIVE AU MANDAT D'ARRÊT

DU I I AVRIL 2000
(RÉPUBLIQUEDÉMOCRATIQUE DU CONGO c. BELGIQUE)
INTERNATIONAL C O U R T O F JUSTICE
IiEPORTS O F JUDGMENTS,
ADVI SORY OPINIONS AND OItDERS
CASE CONCE,RNING THE ARRE ST WARRANT

OF 11 APRIL 2000
(DEMOCRATIC REPUBLIC O F THE CONGO v. BELGIUM)
JUDGMENT OF 14 FEBRUARY 2002

and to immunity fr'om criminal process being "ibsolute or complete",
that is to say, they are subject to no exception. P~ccordingly,the congo
contends that no criininal prosecution may be brought against a Minister
for Foreign Affairs in a foreign court as long a i he or she remains in
office, and that any finding of criminal responsibility by a domestic court
in a foreign country, or any act of investigation iindertaken with a view
to bringing him or her to court, would contravene the principle of immu-
nity from jurisdiction. According to the Congo, th? basis of such criminal
immunity is purely hnctional, and immunity is azcorded under custom-
ary international law simply in order to enable the foreign State repre-
sentative enjoying siich immunity to perform his or her functions freely
and without let or tiindrance. The Congo adds that the immunity thus
accorded to Ministers for Foreign Affairs when i 1 office coverç al1 their
acts, including any ccsmmitted before they took of ice, and that it is irrele-
vant whether the act:s done whilst in office may be characterized or not as
"official acts".
48. The Congo states further that it does not ileny the existence of a
principle of international criminal law, deriving fr2m the decisions of the
Nuremberg and Tokyo international military tribunals, that the accused's
official capacity at the time of the acts cannot, before any court, whether
domestic or international, constitute a "ground 2f exemption from his
criminal responsibiliity or a ground for mitigation of sentence". The
Congo then stresses ithat the fact that an immunitb might bar prosecution
before a specific court or over a specific period coes not mean that the
same prosecution cannot be brought, if appropriate, before another court
which is not bound by that immunity, or at anothc r time when the immu-
nity need no longer be taken into account. It concludes that immunity
does not mean impunity.
49. Belgium maintains for its part that, while Ministers for Foreign
Affairs in office generally enjoy an immunity from jurisdiction before the
courts of a foreign State, such immunity applies only to acts carried out
in the course of theii- officia1 functions, and cannot protect such persons
in respect of private acts or when they are acting otherwise than in the
performance of their officia1 functions.
50. Belgium further states that, in the circumstances of the present

case, Mr. Yerodia erijoyed no immunity at the t i r e when he is alleged to
have committed the acts of which he is accused, and that there is no evi-
dence that he was then acting in any official capacity. It observes that the
arrest warrant was iijsued against Mr. Yerodia personally.
51. The Court would observe at the outset thaf in international law it
is firmly established that, as also diplomatic and consular agents, certain
holders of high-ranking office in a State, such as ttle Head of State, Head
of Government and Minister for Foreign Affairs, enjoy immunities from
jurisdiction in other States, both civil and crimin;il. For the purposes of
the present case, it is only the immunity from criminal jurisdiction and
the inviolability of an incumbent Minister for Foribign Affairs that faIl for
the Court to consider.
52. A certain numiber of treaty instruments wer: cited by the Parties in
this regard. These included, first, the Vienna Convention on Diplomatic
Relations of 18 April 1961, which states in its pre imble that the purpose
of diplomatic privileges and immunities is "to e lsure the efficient per-
formance of the func;tions of diplomatic missions as representing States".
It provides in Article 32 that only the sending State may waive such
immunity. On these points, the Vienna Conventicn on Diplomatic Rela-
tions, to which both the Congo and Belgium are parties, reflects custom-
ary international lavi. The same applies to the corresponding provisions
of the Vienna Convention on Consular Relations of 24 April 1963. to
which the Congo and Belgium are also parties.
The Congo and I3elgium further cite the Ne- York Convention on
Special Missions of 8 December 1969, to which ~ h e yare not, however.
parties. They recall ihat under Article 21, paragrilph 2, of that Conven-
tion :
"The Head of the Government, the Minis~erfor Foreign Affairs
and otlier persoils of high rank, when they ta1.e part in a special mis-
sion of the sencling State, shall enjoy in the receiving State or in a
third State, in alddition to what is granted by the present Conven-
tion, the facilities, privileges and immunitier, accorded by interna-
tional law."
These conventions, provide useful guidance on certain aspects of the
question of immuniities. They do not, however, contain any provision
specifically defining the immunities enjoyed by Ministers for Foreign
Affairs. It is consequently on the basis of custornary international law
that the Court must decide the questions relatin;: to the immunities of
such Ministers raisecl in the present case.
53. In customary international law, the immunities accorded to Min-
isters for Foreign Afjàirs are not granted for their oersonal benefit, but to
ensure the effective performance of their functions on behalf of their
respective States. In order to determine the exterit of these immunities,
the Court must therefore first consider the nature of the functions exer-
cised by a Minister for Foreign Affairs. He or sh: is in charge of his or
her Government's diplomatic activities and generally acts as its repre-
sentative in internatilonal negotiations and intergovernmental meetings.
Ambassadors and oither diplomatic agents carry out their duties under
his or her authority. His or her acts may bind the State represented, and
there is a presumptioln that a Minister for Foreign Affairs, simply by vir-
tue of that office, has full powers t o act on behalf of the State (see, for
cratic Republic of the Congo and the Government of the Kingdom of
Belgium, respectively.
(Signed) Gilbert GUILLAUME,

President.
(Signed) Philippe COUVREUR,
Registrar.
President G U I L L A U appends
ME a separate opinion to the Judgment of
the Court; Judge ODAappends a dissenting opinion to the Judgment of
the Court; Judge RAN.IEVA appends a declaration I O the Judgment of the
Court; Judge KOROMA appends a separate opinic~nto the Judgment of
the Court; ~ u d g e sHIGGINS,KOOIJMANS and BCERGENTHAL append a joint
separate opinion to the Judgment of the Court; Jiidge REZEKappends a
separate opinion to ithe Judgment of the Court; ludge AL-KHASAWNEH
appends a dissenting opinion to the Judgment of the Court; Judge
ad hoc BULA-BULA appends a separate opinion to the Judgment of the
Court; Judge rid hoc VAND E N WYNGAERT appends a dissenting opinion
to the Judgment of tlhe Court.
(Znitiulled) G.G.
(Znitiulled) Ph.C.
MANU/SC/0936/2003
Equivalent Citation: AIR2004SC 280, 2004(3)ALT10(SC ), 2004(1)C LJ(SC )28, 2003(4)C rimes532(SC ), [2004(1)JC R116(SC )], JT2003(9)SC 140,
2004-1-LW(C rl)369, 2004(1)PLJR88, 2003(4)RC R(C riminal)940, 2003(9)SC ALE741, (2004)3SC C 349, (2011)1SC C (C ri)865, [2003]Supp5SC R716

Writ Petition (CRL) No. 199 of 2003
Appellants: Ashok Kumar Pandey
Vs.
Respondent: The State of West Bengal and Ors.
Doraiswamy Raju and Dr. Arijit Pasayat, JJ.
Counsels:
For Appellant/Petitioner/Plaintiff: Party in pers
Case Note:
Criminal - Constitution of India - Article 21, 32 - Petition filed in public
interest to convert the death sentence to a life imprisonment on the ground
that there has been no execution of the death sentence for a long time -
Locus standi of the applicant filing a public interest litigation - Nothing on
record to show that the condemned prisoners were handicapped in seeking
relief - Petition with identical prayers were dismissed by the Calcutta High
Court - Petitioner does not see to enforce any of his fundamental rights but
sought to enforce the fundamental rights of two convicts who themselves
complained of their violation - Unless an aggrieved party is under some
disability recognized by law, it would be unsafe to allow any third party to
question the decision against the third parties - Petition dismissed
Case Category:
LETTER PETITION AND PIL MATTER
JUDGMENT
Arijit Pasayat, J.
1. This petition under Article 32 of the Constitution of India, 1950 (in short 'the
Constitution') has been filed purportedly in public interest. The prayer in the writ
petition is to the effect that the death sentence imposed on one Dhananjay Chatterjee
@ Dhana (hereinafter referred to as 'the accused') by the Sessions Court, Alipur,
West Bengal, affirmed by the Calcutta High Court and this Court, needs to be
converted to a life sentence because there has been no execution of the death
sentence for a long time. Reliance was placed on a Constitution Bench decision of
this Court in Smt. Triveniben v . State of Gujarat, MANU/SC/0520/1989 :
1990CriLJ1810 .
2 . According to the petitioner, he saw a news item in a TV channel wherein it was
shown that the authorities were unaware about the non-execution of the death
sentence and, therefore, condemned prisoner, the accused has suffered a great

degree of mental torture and that itself is a ground for conversion of his death
sentence to a life sentence on the basis of ratio in Triveniben's case (supra). It needs
to be noted here that prayer for conversion of death sentence to life sentence has
already been turned down by the Governor of West Bengal and the President of India
in February 1994 and June 1994 respectively as stated in the petition. When the
matter was placed for admission, we asked the petitioner who appeared in-person as
to what was his locus standi and how a petition under Article 32 is maintainable on
such nature of information by which he claims to have come to know of it. His
answer was that as a public spirited citizen of the country, he has a locus to present
the petition and when the matter involved life and liberty of a citizen, this Court
should not stand on technicalities and should give effect to the ratio in Triveniben's
case (supra). There has been violation of Article 21 of the Constitution and the
prolonged delay in execution of sentence is violative of Article 21, so far as the
accused is concerned.
3. Reliance was also placed on few decisions, for example, Sunil Batra (II) v. Delhi
Administration, MANU/SC/0184/1978 : 1978CriL J1741 ;S.P. Gupta v. Union of India,
MANU/SC/0080/1981 : [1982]2SCR365 ;Daya Singh v . Union of India,
MANU/SC/0358/1991 : 1991CriL J1903 andJanata Dal v . H.S. Choudhary,
MANU/SC/0532/1992 : 1993CriL J600 to substantiate the plea that the petitioner had
locus standi to present the petition in public interest and this was a genuine public
interest litigation.
4. When there is material to show that a petition styled as a public interest litigation
is nothing but a camouflage to foster personal disputes, said petition is to be thrown
out. Before we grapple with the issue involved in the present case, we feel it
necessary to consider the issue regarding public interest aspect. Public Interest
Litigation which has now come to occupy an important field in the administration of
law should not be "publicity interest litigation" or "private interest litigation". or
"politics interest litigation" or the latest trend "paise income litigation". If not
properly regulated and abuse averted it becomes also a tool in unscrupulous hands to
release vendetta and wreck vengeance, as well. There must be real and genuine
public interest involved in the litigation and not merely an adventure of knight errant
or poke ones into for a probe. It cannot also be invoked by a person or a body of
persons to further his or their personal causes or satisfy his or their personal grudge
and enmity. Courts of justice should not be allowed to be polluted by unscrupulous
litigants by resorting to the extraordinary jurisdiction. A person acting bona fide and
having sufficient interest in the proceeding of public interest litigation will alone have
a locus standi and can approach the Court to wipe out violation of fundamental rights
and genuine infraction of statutory provisions, but not for personal gain or private
profit or political motive or any oblique consideration. These aspects were
highlighted by this Court in The Janta Dal case (supra) and Kazi Lhendup Dorji v.
Central Bureau of Investigation, MANU/SC/0989/1994 : (1992)ILL J922SC . A writ
petitioner who comes to the Court for relief in public interest must come not only
with clean hands like any other writ petitioner but also with a clean heart, clean mind
and clean objective. See Ramjas Foundation v. Union of India, MANU/SC/0117/1993
: AIR1993SC852 and K.R. Srinivas v . R.M. Premchand, MANU/SC/0874/1994 :
(1994)6SCC620 .
5. It is necessary to take note of the meaning of expression 'public interest litigation'.
In Strouds Judicial Dictionary, Volume 4 (IV Edition), 'Public Interest' is defined thus:
"Public Interest (1) a matter of public or general interest does not mean that

which is interesting as gratifying curiosity or a love of information or
amusement but that in which a class of the community have a pecuniary
affected."
6. In Black's Law Dictionary (Sixth Edition), "public interest" is defined as follows :
"Public Interest something in which the public, or some interest by which
their legal rights or liabilities are affected. It does not mean anything the
particular localities, which may be affected by the matters in question.
Interest shared by national government...."
7 . I n Janata Dal case (supra) this Court considered the scope of public interest
litigation. In para 52 of the said judgment, after considering what is public interest,
has laid down as follows :
"The expression 'litigation' means a legal action including all proceedings
therein initiated in a Court of law for the enforcement of right or seeking a
remedy. Therefore, lexically the expression "PIL" means the legal action
initiated in a Court of law for the enforcement of public interest or general
interest in which the public or a class of the community have pecuniary
interest or some interest by which their legal rights or liabilities are affected.
"
8. In paras 60, 61 and 62 of the said judgment, it was pointed out as follows:
"Be that as it may, it is needless to emphasis that the requirement of locus
standi of a party to a litigation is mandatory, because the legal capacity of
the party to any litigation whether in private or public action in relation to
any specific remedy sought for has to be primarily ascertained at the
threshold."
9. In para 96 of the said judgment, it has further been pointed out as follows:
"While this Court has laid down a chain of notable decisions with all
emphasis at their command about the importance and significance of this
newly developed doctrine of PIL, it has also hastened to sound a red alert
and a note of severe warning that Courts should not allow its process to be
abused by a mere busy body or a meddlesome interloper or wayfarer or
officious intervener without any interest or concern except for personal gain
or private profit or other oblique consideration."
10. In subsequent paras of the said judgment, it was observed as follows:
"It is thus clear, that only a person acting bona fide and having sufficient
interest in the proceeding of PIL will alone have as locus standi and can
approach the Court to wipe out the tears of the poor and needy, suffering
from violation of their fundamental rights, but not a person for personal gain
or private profit or political motive or any oblique consideration. Similarly a
vexatious petition under the colour of PIL, brought before the Court for
vindicating any personal grievance, deserves rejection at the threshold".
11. It is depressing to note that on account of such trumpery proceedings initiated
before the Courts, innumerable days are wasted, which time otherwise could have

to initiate proceedings under Article 32 of the Constitution.
3 2 . A mere obsession based on religious belief or any other personal philosophy
cannot be regarded as a legal disability of the type recognized by the Code or any
other law which would permit initiation of proceedings by a third party, be he a
friend. It must be remembered that the repercussions of permitting such a third party
to challenge the findings of the Court can be serious, e.g., in the instant case, itself
the co-accused who have been acquitted by the Designated Court and whose acquittal
has been confirmed by this Court would run the risk of a fresh trial and a possible
conviction.
3 3 . Similar view was expressed in Karamjeet Singh v . Union of India
MANU/SC/0059/1993 : 1993CriLJ46 .
34. It was noted that Article 32 which finds a place in Part III of the Constitution
entitled "fundamental rights" provides that right to move this Court for the
enforcement of the rights conferred in that part is guaranteed. If empowers this Court
to issue directions or orders or writs for the enforcement of any of the fundamental
rights. The petitioner did not seek to enforce any of his fundamental rights nor did he
complain that any of his fundamental right was violated. He sought to enforce the
fundamental rights of others, namely, the two condemned convicts who themselves
did not complain of their violation. Ordinarily, the aggrieved party which is affected
by any order has the right to seek redress by questioning the legality, validity or
correctness of the order, unless such parry is a minor, an insane person or is
suffering from any other disability which the law recognizes as sufficient to permit
another person, e.g. next friend, to move the court on his behalf.
35. Unless an aggrieved party is under some disability recognized by law, it would
be unsafe and hazardous to allow any third party be a member of the Bar to question
the decision against third parties.
36. Neither under the provisions of the Code nor under any other statute is a third
party stranger permitted to question the correctness of the conviction and sentence.
37. Based on the above backgrounds, we do not think to be this to be a fit case
which can be entertained and that too, under Article 32 of the Constitution and is
accordingly dismissed, but without costs.

MANU/SC/1214/2007
Equivalent Citation: AIR2007SC 1546, 2007(6)ALD86(SC ), 2007(6)ALD68(SC ), 2007(5)ALT3(SC ), 2007 (3) AWC 2538 (SC ), JT2007(4)SC 186,
2007-4-LW139, (2007)3MLJ784(SC ), 2007(2)PLJR201, 2007(2)RC R(C ivil)431, 2007(4)SC ALE88, (2007)4SC C 221, [2007]3SC R603,
(2007)2UPLBEC 1753

Civil Appeal Nos. 5097-5099 of 2004
Appellants:A.V. Papayya Sastry and Ors.
Vs.
Respondent:Government of A.P. and Ors.
C.K. Thakker and L.S. Panta, JJ.
Counsels:
For Appellant/Petitioner/Plaintiff: K.K. Venugopal, Sr. Adv., Ankur, Y. Raja Gopala Rao
and Y. Ramesh, Advs
For Respondents/Defendant: Anoop G. Chaudhary and June Chaudhary, Sr. Advs.,
Manoj Saxena, Rajnish Kumar Singh, Rahul Shukla, T.V. George, K.V. Viswanathan,
K.V. Venkataraman, V. Mohana and N. Annapoorani, Advs.
Ratio Decidendi:
"Decree or order obtained by playing fraud on the Court, Tribunal or
Authority is a nullity and non est in the eye of law."
"Fraud is an extrinsic collateral act which vitiates all judicial acts, whether
in rem or in personam."
"All orders passed by the courts/authorities below, merge in the judgment
of Supreme Court and after such judgment, it is not open to any party to
the judgment to approach any court or authority to review, recall or
reconsider the order."
Case Note:
(1) Constitution of India - Article 226--Code of Civil Procedure, 1908--Order
IX, Rule 13--Recall--Whether when order obtained by party from High Court
by practising fraud, High Court justified to recall order even after dismissal
of S.L.Ps. by Supreme Court against judgment and order of High Court?--
Held, "yes"--No interference called for.
(2) Constitution of India - Article 136--Does not confer right of appeal on
any party--It confers discretion of Supreme Court to grant leave to appeal in
appropriate cases--Supreme Court only intervenes where justice, equity and
good conscience require it.
(3) Constitution of India - Article 141--Doctrine of merger--Recall--All
orders passed by Courts/authorities below--Merge in judgment of Supreme
Court -- After such judgment, not open to any party to judgment to
approach any Court/ authority to review, recall or reconsider order--

and held that the land was agricultural land and required to be excluded from the
operation of the Ceiling Act.
34. As to the above, we may only observe that it was never the case of land-owners
while filling a form under Section 6 of the Act that the provisions of the Act were not
applicable to the land in question because the land was used for agriculture or
horticulture purposes or that it was having fruit bearing trees. The exclusion or non-
operation of the Act was sought only on the ground that the possession of the land
had already been handed over to Port Trust Authorities in 1972 and hence the land
cannot become subject matter of the Ceiling Act. In view of the above fact, in our
opinion, the High Court was right in passing the impugned order directing the
authorities to consider all aspects and pass an appropriate order in accordance with
law.
35. Last but not the least. We are exercising jurisdiction under Article 136 of the
Constitution. It is discretionary and equitable in nature.1 Clause (1) of the said Article
confers very wide and extensive powers on this Court to grant special leave to appeal
against any judgment, decree, determination, sentence or order in any cause or
matter passed or made by any Court or Tribunal in India. The Article commences with
a non- obstante clause, "Notwithstanding anything in this Chapter" (i.e. Chapter IV of
Part V). These words are of overriding effect and clearly indicate the intention of the
Framers of the Constitution that it is a special jurisdiction and a residuary power
unfettered by any statute or other provisions of Chapter IV of Part V of the
Constitution. It is extraordinary in its amplitude. Its limit, when it chases injustice, is
the sky. Such power, therefore, may be exercised by this Court whenever and
wherever justice demands intervention by the highest Court of the country.
36. Article 136, however, does not confer a right of appeal on any party. It confers
discretion on this Court to grant leave to appeal in appropriate cases. In other words,
the Constitution has not made the Supreme Court a regular Court of Appeal or a
Court of Error. This Court only intervenes where justice, equity and good conscience
require such intervention.
3 7 . I n Baiganna v. Deputy Collector of Consolidation MANU/SC/0025/1978 :
[1978]3SCR509 ; Krishna Iyer, J. pithily stated;
The Supreme Court is more than a Court of appeal. It exercises power only
when there is supreme need. It is not the fifth court of appeal but the final
court of the nation. Therefore, even if legal flaws may be electronically
detected, we cannot interfere sans manifest injustice or substantial
question of public importance.
(emphasis supplied)
[see also V.G. Ramachandran, 'Law of Writs'; Revised by Justice C.K. Thakker
& Mrs. M.C. Thakker; Sixth Edn; Vol.2; pp.1440-1528]
38. Keeping in view totality of facts and attending circumstances including serious
allegations of fraud said to have been committed by the land-owners in collusion with
officers of the respondent-Port Trust and Government, report submitted by the
Central Bureau of Investigation (CBI), prima facie showing commission of fraud and
initiation of criminal proceedings, etc. if the High Court was pleased to recall the
earlier order by issuing directions to the authorities to pass an appropriate order
afresh in accordance with law, it cannot be said that there is miscarriage of justice

which calls for interference in exercise of discretionary and equitable jurisdiction of
this Court. We, therefore, hold that this is not a fit case which calls for our
intervention under Article 136 of the Constitution. We, therefore, decline to do so.
39. Before parting with the matter, we may state that all the observations made by
us hereinabove have been made only for the purpose of deciding the legality and
validity of the order passed by the High Court. We may clarify that we may not be
understood to have expressed any opinion on merits of the matter one way or the
other. Therefore, as and when the matter will be considered by the authorities in
pursuance of the directions of the High Court, it will be decided on its own merits
without being inhibited by the observations made by us in this judgment.
4 0 . For the foregoing reasons, the appeals deserve to be dismissed and are
accordingly dismissed with costs.
_______________________
1. Article 136(1) of the Constitution of India read thus;
136. Special leave to appeal by the Supreme Court.-(1) Notwithstanding
anything in this Chapter, the Supreme Court may, in its discretion, grant special leave
to appeal from any judgment, decree, determination, sentence or order in any cause
or matter passed or made by any court or tribunal in the territory of India.
(2) ...

MANU/SC/0118/1959
Equivalent Citation: AIR1959SC 633, (1959)ILLJ413SC , [1959]Supp(2)SC R136

Civil Appeals Nos. 125 and 164 of 1958
Appellants:Bengal Chemical & Pharmaceutical Works Ltd., Calcutta
Vs.
Respondent:Their Workmen
A.K. Sarkar, K. Subba Rao and P.B. Gajendragadkar, JJ.
Case Note:
(i) Labour and Industrial - enhanced dearness allowance - Sections 10 and
19 (6) of Industrial Disputes Act, 1947, Industrial Disputes (Amendment
and Miscellaneous Provisions) Act, 1956 and Industrial Disputes (Appellant
Tribunal) (Amendment) Act, 1950 - Tribunal holding rise in cost of living
index and awarding increased dearness allowance to company's workers -
correctness of award challenged by appellant - company in special leave
petition - Order passed after Section 2 of Amendment Act 18 of 1957
'deemed to come into force' - Amendment Act changing constitution of
Tribunal - power conferred on Government to transfer proceeding before
Tribunal to another Tribunal - Order dated 09.04.57 made by Government
transferring dispute from Second Industrial Tribunal to Fifth Industrial
Tribunal not illegal - contention of non-termination of previous award of
1951 not raised by appellant-company before Tribunal - same cannot be
raised at special leave - previous agreement between company and workers
showing clear intention of parties regarding allowance - rate of allowance
decided to be changed according to circumstances - award of Tribunal in
favour of workmen justified and upheld by Supreme Court.
(ii) Special leave petition - Article 136 of Constitution of India - Article 136
gives discretionary jurisdiction to Court to accept appeal - discretion to be
exercised keeping in view principles of natural justice - questions of facts
not to be looked into.
JUDGMENT
K. Subba Rao, J.
1. These appeals are by Special Leave from the Award by Shri G. Palit, Judge, Fifth
Industrial Tribunal, West Bengal, in the matter of a dispute between Messrs. Bengal
Chemical & Pharmaceutical Works Limited, Calcutta, and their employees, represented
by Bengal Chemical Mazdoor Union, Calcutta.
2. The Government of West Bengal by its order dated September 13, 1956, referred
the following dispute between the parties referred to above to the Second Industrial
Tribunal under s. 10 of the Industrial Disputes Act, 1947 (Act 14 of 1947),

hereinafter referred to as the Act. "Is the demand of the employees for increase in
Dearness Allowance justified ? If so, at what rate ?". The said Act was amended by
the Industrial Disputes (Amendment & Miscellaneous Provisions) Act, 1956 (36 of
1956), which came into force on August 28, 1956. On April 9, 1956, the Government
made an order transferring the said dispute from the file of the Second Industrial
Tribunal to that of the Fifth Industrial Tribunal. The Fifth Industrial Tribunal, after
making the necessary inquiry, made the award on August 26, 1957, and it was duly
notified in the Calcutta Gazette on September 26, 1957. As a mistake had crept in,
the award was modified by the Tribunal by its order dated the 29th November, 1957;
and the modified award was published in the Calcutta Gazette on the 29th November,
1957. Under the award the Tribunal held that there was a rise in the cost of living
index and that to neutralise the said rise the employees should get an increase of Rs.
7 in dearness allowance on the pay scale up to Rs. 50 and Rs. 5 on the pay scale
above Rs. 50. On that basis the dearness allowance payable to the employees was
worked out and awarded. The correctness of the award is questioned in these
appeals. The Company preferred Civil Appeal No. 125 of 1958 against the award in so
far it was against it and the Union preferred Civil Appeal No. 164 of 1958 in so far it
went against the employees. For convenience of reference, the parties will be referred
to in the course of the judgment as the Company and the Union.
3. Learned Counsel for the Company raised before us the following points : (1) The
order dated April 9, 1957, made by the Government transferring the dispute from the
file of the Second Industrial Tribunal to that of the Fifth Industrial Tribunal was
illegal; (2) the previous award made by the Tribunal between the same parties on
April 26, 1951, and confirmed by the Labour Appellate Tribunal by its order dated
August 30, 1951, had not been terminated in accordance with the provisions of s.
19(6) of the Act and therefore the present reference was bad in law and without
jurisdiction; (3) there was no change in the circumstances obtaining at the time the
previous award was made and those prevailing at the time of the present reference as
to justify making out a new award; (4) the Tribunal went wrong in taking the rise in
the cost of living index between the years 1954 and 1957 instead to taking the
fluctuating rate in the index between the date of the earlier award, i.e., August 30,
1951, and the date of the present reference in the year 1957; (5) the Tribunal went
wrong in so far as it based its decision on the Second Engineering Award of 1950
which was already considered by the Tribunal in its earlier award of the year 1951;
and (6) in any event, in computing the amount, the Tribunal applied wrong criteria.
4 . We shall consider the above contentions seriatim. But before doing so, it will be
convenient to refer briefly to the scope of jurisdiction of this Court under Art. 136 of
the Constitution vis-a-vis the awards of Tribunals. Article 136 of the Constitution
does not confer a right of appeal to any party from the decision of any tribunal, but it
confers a discretionary power on the Supreme Court to grant special level to appeal
from the order of any tribunal in the territory of India. It is implicit in the
discretionary reserve power that it cannot be exhaustively defined. It cannot
obviously be so construed as to confer a right to a party where he has none under the
Law. The Industrial Disputes Act is intended to be a self-contained one and it seeks
to achieve social justice on the basis of collective bargaining, conciliation and
arbitration. Awards are given on circumstances peculiar to each dispute and the
tribunals are, to a large extent, free from the restrictions of technical considerations
imposed on courts. A free and liberal exercise of the power under Art. 136 may
materially affect the fundamental basis of such decisions, namely, quick solution to
such disputes to achieve industrial peace. Though Art. 136 is couched in widest
terms, it is necessary for this Court to exercise its discretionary jurisdiction only in

cases where awards are made in violation of the principles of natural justice, causing
substantial and grave injustice to parties or raises an important principle of industrial
law requiring elucidation and final decision by this Court or discloses such other
exceptional or special circumstances which merit the consideration of this Court. The
points raised by the learned Counsel, except perhaps the first point, do not stand the
test of any one of those principles.
5. Learned Counsel for the Company, however, says that, though the said principles
might be applied at the time of granting leave, once leave is given no such
restrictions could be imposed or applied at the time of the final disposal of the
appeal. The limits to the exercise of the power under Art. 136 cannot be made to
depend upon the appellant obtaining the special leave of this Court, for two reasons,
viz., (i) at that stage the Court may not be in full possession of all material
circumstances to make up its mind and (ii) the order is only an ex parte one made in
the absence of the respondent. The same principle should, therefore, be applied in
exercising the power of interference with the awards of tribunals irrespective of the
fact that the question rises at the time of granting special leave or at the time the
appeal is disposed of. It would be illogical to apply two different standards at two
different stages of the same case. The same view was expressed by this Court in
Pritam Singh v. The State of Madras MANU/SC/0015/1950 : 1950CriL J1270 ,Hem Raj
v. State of Ajmer [1954] S.C.R. 1153 and Sadhu Singh v. State of Pepsu
MANU/SC/0121/1953 : AIR1954SC271 .
6. The first question turns upon the construction of the relevant provisions of the Act
as amended by the Industrial Disputes (Amendment and Miscellaneous Provisions)
Act, 1956. The relevant provisions inserted by the Amending Act read as follows :
"Section 2(r) : 'Tribunal' means an Industrial Tribunal constituted under
Section 7A."
"7 A. Tribunals. -
(1) The appropriate Government may, by notification in the official
Gazette, constitute one or more Industrial Tribunals for the
adjudication of industrial disputes relating to any matter, whether
specified in the Second Schedule or the Third Schedule.
(2) A Tribunal shall consist of one person only to be appointed by
the appropriate Government.
(3) A person shall not be qualified for appointment as the presiding
officer of a Tribunal unless -
(a) he is, or has been, a Judge of a High Court; or
(b) he has held the office of the Chairman or any other
member of the Labour Appellate Tribunal constituted under
the Industrial Disputes (Appellant Tribunal) Act, 1950 (48 of
1950), or of any Tribunal, for a period of not less than two
years.
(4) The appropriate Government may, if it so thinks fit, appoint two
persons as assessors to advise the Tribunal in the proceeding before
it."

400.6 in May 1957, with the result that there was a rise of 56 points, a substantial
rise in the cost of living index. Exhibit 3 certainly supports the finding of the
Tribunal. The learned Counsel for the Company points out with reference to the
relevant entries in the Monthly Statistical Digest, West Bengal, that the said figures
relate only to working class menials and the corresponding entries in regard to the
working class cost of living index do not indicate so much increase as in the case of
the menial class. Learned Counsel has also taken us through the relevant figures. The
relevant entries in the Monthly Statistical Digest were not filed before the Tribunal.
Indeed when the Union's witness, Shri Satyaranjan Sen, was examined before the
Tribunal, he was not cross-examined with a view to elicit information that Exhibit 3
did not relate to the working class cost of living index. When Shri Chatterjee, the
Assistant Manager of the Company, who was examined after Shri Sen, gave evidence,
he not only did not object to the entries in Exhibit 3 but stated that he was not aware
of any substantial increase in the working class cost of living index and complained
that similar entries for all the relevant years had not been produced. Even before the
Tribunal it does not appear that any argument was advanced contesting the relevancy
of Exhibit 3 on the ground that it did not refer to the working class cost of living
index. In the circumstances, we do not think that we are justified to allow the learned
Counsel for the Company to make out a new case for the first time before us,
upsetting the Tribunal's basis for calculation and involving further and different
calculations.
20. In the result, we confirm the award of the Tribunal and dismiss the appeal with
costs.
21. The learned Counsel, appearing for the Union, did not press the appeal No. 164
of 1958, filed by the Union, and therefore it is also dismissed with costs.
22. Appeals dismissed.

15 September 2018
Judicial Review
Justice Dr. B S Chauhan

Former Judge,
Supreme Court of India
INTRODUCTION
The Constitution, is the supreme law. It is, in terms of Hans

Kelsen, the “grundnrom” of the State. All the other laws of the
land derive authority from the Constitution. As the jurist, H.L.A
Hart puts it, the Constitution works as the touchstone for all the
other laws. The validity of other laws is to be checked according
to the Constitution. If the law in question is not in line with the
principle enshrined in the Constitution, then the law is to be
declared unconstitutional. The same parameter is also used for
executive actions. The executives are also prohibited to make any
decision, which violates the basic norms or the principles
important for the identity of the Constitution. The task to check
the Constitutionality of the laws and of the action is done by the
judiciary. This is termed as the ‘judicial review’. Thus, judicial
review is defined as ‘the power of the court to determine whether
the acts of legislature and executive are consistent with the
Constitution or the Constitutional values’.
The concept of judicial review lies in the supremacy of the
Constitution of the land. Since, the Judiciary is the guardian of
the Constitution, thereby; it is under its purview to check
1|Page
Constitution, which declared that the amendment powers of the
Parliament are not restricted.
The controversy was rested in the case of Kesavanand Bharati
v. State of Kerala AIR 1973 SC 1461 where the court though
agreeing that the Parliament is not restricted to amend the
Constitution, but also put a caveat of the
doctrine of basic structure. The Court observed that the
constitutional amendments are to be done keeping in mind the
basic structure of the Constitution. In Minerva Mills v. Union
of India AIR 1980 SC 1789 case the Court further observed that
the tool of the amendment of the Constitution cannot be used to
destroy the constitution itself.
The Supreme Court of India has used the power of judicial review
from time to time to uphold the values incorporated in our
Constitution.
I. Judicial Review of Administrative action:-
The famous “Wednesbury Case” Associated Provincial

Picture Houses Ltd. v. Wednesbury Corpn.,(1947) 2 All ER
680, is considered to be landmark in so far as the basic
principles relating to judicial review of administrative or statutory
direction are concerned. The couexplained the meanng of the
word reasonableness explaining …
“It is true that discretion must be exercised reasonably a

person entrusted with a discretion must, so to speak, direct
himself properly in law. He must call his own attention to the
matters, which he is bound to consider. He must exclude from
his consideration matters, which are irrelevant to what he has
to consider. If he does not obey those rules, he may truly be
said, and often is said, to be acting ‘unreasonably’. Similarly,
4|Page
there may be something so absurd that no sensible person
could even dream that it lay within the powers of the
authority... In another, it is taking into consideration
extraneous matters. It is unreasonable that it might almost be
described as being done in bad faith; and in fact, all these
things run into one another.”
The principles of judicial review of administrative action were
further summarised in Council of Civil Service Unions v.
Minister for the Civil Service, (1984) 3 All ER 935, (commonly
known as CCSU case) as illegality, procedural impropriety and
irrationality. More grounds could in future become available,
including the doctrine of proportionality which was a principle
followed by certain other members of the European Economic
Community.
The Court explained ‘irrationality’ as follows:
“By ‘irrationality’ I mean what can by now be succinctly

referred to as ‘Wednesbury unreasonableness’. It applies to
a decision which is so outrageous in its defiance of logic or
of accepted moral standards that no sensible person who
had applied his mind to the question to be decided could
have arrived at it.”
In Union of India v. G. Ganayutham, AIR 1997 SC 3387 the
Supreme Court after referring to the aforesaid two cases namely
Wednesbury case and CCSU case held as follows:—
“ to test the validity of executive action or of administrative

action taken in exercise of statutory powers, the Courts and
tribunals in our country can only go into the matter, as a
secondary reviewing Court to find out if the executive or the
administrator in their primary roles have arrived at a
reasonable decision on the material before them in the light
of Wednesbury and CCSU tests. The choice of the options
5|Page
examine the issue and in exceptional circumstances, even if his
bona fides are doubted, but the issue raised by him, in the
opinion of the court, requires consideration, the court may
proceed suo motu, in such respect.
In Raju Ramsingh Vasave v. Mahesh Deorao Bhiavapurkar,

(2008) 9 SCC 54, the Court held:
“We must now deal with the question of locus standi. A

special leave petition ordinarily would not have been
entertained at the instance of the Appellant. Validity of
appointment or otherwise on the basis of a caste certificate
granted by a committee is ordinarily a matter between the
employer and the employee. Supreme Court, however, when
a question is raised, can take cognisance of a matter of such
grave importance suo motu. It may not treat the special
leave petition as a public interest litigation, but, as a public
law litigation. It is, in a proceeding of that nature,
permissible for the court to make a detailed enquiry with
regard to the broader aspects of the matter although it was
initiated at the instance of a person having a private
interest. A deeper scrutiny can be made so as to enable the
court to find out as to whether a party to a lis is guilty of
commission of fraud on the Constitution. If such an enquiry
sub serves the greater public interest and has a far-reaching
effect on the society, in our opinion, Supreme Court will not
shirk its responsibilities from doing so.” (See also: Manohar
Joshi v. State of Maharashtra, AIR 2012 SC 2043).
16 | P a g e
Bar and Bench (www.barandbench.com)
$~7.
* IN THE HIGH COURT OF DELHI AT NEW DELHI
+ W.P.(C) 11164/2018
JUSTICE FOR RIGHTS FOUNDATION ..... Petitioner

Through: Mr.Harpreet Singh Hora, Adv.
Versus
UNION OF INDIA ..... Respondent

Through: Mr.Vikram Jetly, CGSC for R-1(i) to
(iii)/UOI.
CORAM:
HON'BLE THE CHIEF JUSTICE
HON'BLE MR. JUSTICE V. KAMESWAR RAO
ORDER
% 08.02.2019
1. This public interest litigation has been filed with prayers which read
as under:-
“1. Frame guidelines in order to regulate the said online
platforms and contents broadcasted on the online platforms,
Or in the alternative;
2. Issue a writ/order/direction in the nature of writ of

mandamus or any other writ/order/direction in the similar
nature to the Respondents to frame legal provisions/guidelines
in order to regulate the said online platforms and contents
broadcasted on the online platforms, and;
3. Direct the respondents to pass necessary directions to all

online platforms to remove legally restricted contents with
immediate effect, and;
4. Pass such other and further orders as the Hon'ble Court

material in any electronic form under Section 67. Section 67A prescribes
punishment for publishing or transmitting of material containing sexually
explicit act, etc. in electronic form. Section 67B further provides for
punishment for publishing or transmitting material depicting children in a
bad taste and further power is conferred under Section 68 to the Controller
to give directions in such cases.
5. Accordingly, it is stated that no general power for regulation or

material in the internet platform is available. But if the internet platform is
misused for carrying information or material which are not permissible
under law then the provisions of the Information Technology Act provides
for deterrent action to be taken and as and when complaints are received, the
statutory competent authority takes action in the matter.
6. Keeping in view the aforesaid, namely, the provisions of the

Information and Technology Act and the Rules framed thereunder and,
particularly, the provision provided in the Sections as detailed hereinabove,
we are of the considered view that in a public interest litigation, this Court
cannot issue a mandamus for framing general guidelines or provisions when
there are stringent provisions already in place under the Information and
Technology Act. In case the petitioner feels that any of the contents
exhibited or transmitted by the organizations detailed in the writ petition
violates the statutory provisions of the Information and Technology Act or
the Rule and contains prohibitory material as is detailed therein, the
petitioner can very well make a complaint under the aforesaid provision to
the statutory authority and we are hopeful that the authorities shall look into
the matter.
7. In the facts and circumstances of the case, we see no reason to issue

any mandamus for bringing into place any guidelines or statutory regulation
for the said purpose when the Information and Technology Act itself provide
for enough procedural safeguards for taking action in the event of any
prohibited act being undertaken by the broadcasters or organizations in the
internet/online platform.
8. The writ petition is, accordingly, dismissed.
CHIEF JUSTICE
V. KAMESWAR RAO, J
FEBRUARY 08, 2019
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Bihar Legal Support Society, through its President, New Delhi vs.

Chief Justice of India and Ors. (19.11.1986 - SC) 4

IN THE SUPREME COURT OF INDIA

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IN THE SUPREME COURT OF INDIA

Criminal - sedition - Section 124-A of Indian Penal Code,1860 - decisive

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Second Report on Special Missions by Mr. Milan Bartoš, Special Rapporteur

Extract from the Yearbook of the International Law Commission:-

Downloaded from the web site of the International Law Commission

Copyright © United Nations

Draft articles prepared at the Commission's sixteenth ad article 7

Adopted by the General Assembly of the United Nations on 8 December 1969.

Copyright © United Nations

The States Parties to the present Convention,

Have agreed as follows:

For the purposes of the present Convention:

The present Convention is subject to ratification. The instruments of ratification shall be

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Decided On: 15.11.1989

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IN THE SUPREME COURT OF INDIA