(2016)3 PLRSC e@journal

(2016)3 PLR - SUPREME COURT e-journal 1 

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Supreme Court 

e @ journal 

(2016) 3 

Mode of Citation 4 

Quote 5 

Contact us 6 

About this e@book 7 

3 


Board of Editors 8 

How to use this book 9-10 

Short Index 11-26 

Reports 27-993 

Nominal Index 994-1000 

Subject Index 1001-1139


4 


Mode of citation 

(2016)3 PLRSC 1 

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THE 

PUN JAB LAW REPORTER 

Since 1900 

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About this @book 

PLRSC e@journal, is a unique effort to bring back the joy of 

reading in a format which we have all loved, the book, carrying with 

it the benefits of an exhaustive “search” capability allowing search 

to the Word Level. 

The Supreme Court reports are carried in the first part followed by 

the Nominal Index and the detailed Subject Index. 

An effort has been made to make the ebook exhaustive through 

direct linkage to referred judgements of the Supreme Court through 

our unique Link feature. 

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The Subscribers are provided updates though email and the 

compendium of the reported judgements is the present . 

We sincerely hope that this shall fill in the expectations of the 

fraternity , by bridging the good old book with the benefits of the 

modern technology. 

Team Punjab Law Reporter 01.08.2016


Advisor 

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R.M. Suri, Advocate 

Editors 

Sandeep Suri, Advocate 

BE (Electronics), LLB, Chevening Scholar (London) 

Rohit Suri, Advocate 

BCom, LLB (DU) 

Associate Editor 

Chaitanya Suri 

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How to use the e@book 

Searchable : The ebook is searachable on any word, use the Search option 

to look up any entry. Eg Motor 163 will return a Search where both the 

words are present on the same page. 

Index: Click on any filed to go to the particlaur section 

Mode of Citation 4 

Quote 5 

Contact us 6 

About this e@book 7 

Board of Editors 8 

How to use this book 9-10 

Short Index 11-26 

Reports 27-993 

9 


Nominal Index 994-1000 

Subject Index 1001-1138 

Nominal Index : Clicking on the case name in the Nominal Index shall open 

the concerned page eg. clicking on 

Jagtar Singh Versus State Of Haryana . ... (2016)3 PLRSC. 752 

Shall open page 752 

Subject Index : Clicking on the case citation in the Subject Index shall open 

the concerned page eg. clicking on (2016)3 PLRSC 686 in 

 

Motor Vehicles Act, 1998 (59 of 1988) - Deceased - Aged 

30 years – Bachelor - Deduction of 50% towards the


personal and living expenses – Future prospects 50% - 

Multiplier, in the case of the age of the deceased between 

26 to 30 years is 17 - Bachelor. (2016)3 PLRSC 686 

Shall open page 686 

Referred Judgement : Clicking on the referred judgement (in Blue) shall 

open another window shwing the compete referred judgement. Eg clicking 

the judgement highlighted in blue shall open the said complete judgement 

“ 2. Noticing the above position, this Court in the case of Madishetti 

Bala Ramul (dead) by Lrs. v. Land Acquisition Officer*** 

reported in (2007) 9 SCC 650, took………… “ 

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THE 

PUNJAB LAW REPORTER 

SUPREME COURT 

e@journal 


SHORT INDEX 

11 


Admissibility of documents (2016)3 PLRSC 286 

Admissions of fact (2016)3 PLRSC 654 

Adverse possession - (2016)3 PLRSC 801 

Advocate - (2016)3 PLRSC 654 

Advocate and client (2016)3 PLRSC 654 

Advocate’s duty to the Client (2016)3 PLRSC 654 

Advocates Act - ‘Code of Ethics’ - Prescribed by the Bar Council of India, 

in recognition of the evolution in professional and ethical 

standards within the legal community, provides for certain rules


which contain canons of conduct and etiquette which ought to 

serve as general guide to the practice and profession. (2016)3 

PLRSC 654 

Affidavit (2016)3 PLRSC 28 

Age proof - (2016)3 PLRSC 381 

Alibi - (2016)3 PLRSC 967 

Appeal (2016)3 PLRSC 38 

Appeal (2016)3 PLRSC 226 

Appeal and review (2016)3 PLRSC 692 

Arbitration Act, 1940 - (2016)3 PLRSC 493 

Arbitration and Conciliation Act, 1996 (2016)3 PLRSC 348, (2016)3 


Arbitration and Conciliation Act, 1996 (26 of 1996) Section 34, 42 


12 


Arithmetical mistake and Clerical mistake (2016)3 PLRSC 265 

Auction purchaser (2016)3 PLRSC 542 

Bank guarantee (2016)3 PLRSC 752 

Banking (2016)3 PLRSC 542 

Banking – OTS (2016)3 PLRSC 879 

Bar Council of India Rules, 1975 (2016)3 PLRSC 654 

Bonds (2016)3 PLRSC 223 

Cause of action (2016)3 PLRSC 915 

Central Excise Act, 1944 Section 11A(1) (2016)3 PLRSC 101 

Character/enlistment certificate (2016)3 PLRSC 715 

Civil Procedure Code, 1908 (V of 1908) - Section 20 (2016)3 PLRSC 915 

Civil Procedure Code, 1908 (V of 1908) - Section 100 - (2016)3 PLRSC 853 

Sample Copy 




Civil Procedure Code, 1908 (V of 1908) - Section 100, Order XLI Rule 5(3) 


Civil Procedure Code, 1908 (V of 1908) - Section 148 (2016)3 PLRSC 373 

Civil Procedure Code, 1908 (V of 1908) - Order 7 Rule 6A (2016)3 


Civil Procedure Code, 1908 (V of 1908) - Order 9 Rule 13 (2016)3 PLRSC 

647 

Civil Procedure Code, 1908 (V of 1908) - Order 18 Rule 17 (2016)3 PLRSC 

407 

Code of Criminal Procedure, 1973 - Transfer of case - (2016)3 PLRSC 984 

Code of Criminal Procedure, 1973 - Section 216 (2016)3 PLRSC 455 

Code of Criminal Procedure, 1973 - Section 319 (2016)3 PLRSC 849 

Code of Criminal Procedure, 1973 - Section 408 (1) (2016)3 PLRSC 984 

Code of Ethics (2016)3 PLRSC 654 

Compassionate employment (2016)3 PLRSC 197 

Complaint (2016)3 PLRSC 898 

13 


Complaint - FERA Act repealed (2016)3 PLRSC 898 

Confession (2016)3 PLRSC 670 

Constitution of India, Art. 14, 21, 32, 141, 142 (2016)3 PLRSC 823 

Constitution of India, Art. 20(2) - Sea Customs Act (2016)3 PLRSC 359 

Constitution of India, Art. 21 (2016)3 PLRSC 823 

Constitution of India, Art. 21 - 'human dignity' - (2016)3 PLRSC 692 

Constitution of India, Art. 21 - 'due procedure' - Death Sentence (2016)3 


Constitution of India, Art. 21, 72, 136, 137, 161 - Death Sentence 

(2016)3 PLRSC 692


Constitution of India, Art. 32, 226 – 2 nd writ (2016)3 PLRSC 481 

Constitution of India, Art. 72, Article 161 - Right to file mercy petitions 


Constitution of India, Art. 136, 137 – Appeal and review – Death 

sentence (2016)3 PLRSC 692 

Constitution of India, Art. 226 and 227 - Writ of Certiorari (2016)3 PLRSC 

654 

Constitution of India, Art. 227 – Concession made by counsel (2016)3 


Constitution of India, Art. 246 (2) - Securitisation and Reconstruction of 

Financial Assets and Enforcement of Security Interest Act, 2002 S. 

35 (2016)3 PLRSC 57 

Consumer Protection Act, 1986 - Second complaint (2016)3 PLRSC 200 

14 


Contempt - Sahara Case. (2016)3 PLRSC 752 

Contractual rate of interest - (2016)3 PLRSC 954 

Contributory and Composite negligence - Difference between (2016)3 


Copyright Act, Section 62 (2016)3 PLRSC 915 

Criminal complaint - Amendment (2016)3 PLRSC 883 

Criminal Procedure Code, 1973 - Criminal complaint - Amendment 


Criminal Procedure Code, 1973 Section 36 (2016)3 PLRSC 422 


Criminal Procedure Code, 1973 Section 202 - ‘postponement of issue of 

process’ (2016)3 PLRSC 883 

Sample Copy 




Criminal Procedure Code, 1973 Section 304 Part II IPC read with Section 

149 IPC - Sentence – Quantum (2016)3 PLRSC 909 


Criminal Procedure Code, 1973 Section 340 

Witness of Fact (2016)3 PLRSC 41 

- Expert evidence and 

Criminal trial - Co-accused was acquitted of the charges (2016)3 PLRSC 

752, Cr.P.C., Section 313 – Accused. have not denied their 

presence in the occurrence. (2016)3 PLRSC 815, Lack of firearm 

by patrolling team (2016)3 PLRSC 202 Non-recovery (2016)3 

PLRSC 588, Suspicious circumstances (2016)3 PLRSC 202, 

Concurrent finding of acquittal (2016)3 PLRSC 562, Delay in 

recording of Statements of alleged eye witnesses. (2016)3 PLRSC 

414, Delay of 8 days on the part of the investigating agency to 

make arrest. (2016)3 PLRSC 202, Eye witness - Inconsistency of 

statements. (2016)3 PLRSC 588, FIR – Delay in lodging (2016)3 

PLRSC 815, Interested witnesses (2016)3 PLRSC 562, Maharashtra 

Control of Organised Crime Act, 1999, Section 3 - (2016)3 PLRSC 

960, Statement of witness (2016)3 PLRSC 351, Quantum of 

sentence (2016)3 PLRSC 444, Related witnesses (2016)3 PLRSC 

554, Statements of alleged eye witnesses – Disbelieved (2016)3 

PLRSC 414, Suspicious circumstances (2016)3 PLRSC 202, Test 

15 


identification parade (2016)3 PLRSC 351, (2016)3 PLRSC 202, 

Criminal trial - Two views which can be culled out from the perusal of 

evidence and application of law, the view which favours the 

accused should be taken - It has been recognized as a human right 

by this Court. (2016)3 PLRSC 562 

Death Sentence - 'human dignity' (2016)3 PLRSC 692, Nobody shall be


deprived of his life and liberty except according to the procedure 

established by law (2016)3 PLRSC 692, Within six days of the 

dismissal of the criminal appeals, death warrants issued (2016)3 


Delay - Review application (2016)3 PLRSC 448 

Delay and laches - (2016)3 PLRSC 573 

Dowry Prohibition Act 1961, Section 6. (2016)3 PLRSC 88 

Duty of court – Concession made by counsel. (2016)3 PLRSC 654 

Education – Admission – Disability. (2016)3 PLRSC 97 

Education – Examination. (2016)3 PLRSC. 721 

Education – Reexamination - All India Pre-Medical and Pre-Dental Test , 

2015. (2016)3 PLRSC 721 

Election - High Court should not have interfered with the election after 

16 


the process of election had commenced. (2016)3 PLRSC 387 

Employee’s Compensation Act, 1923 - Interest @12% - Insurance 

company liable to pay. (2016)3 PLRSC 243 

Employee’s Compensation Act, 1923 – Wages - Neither of the parties 

produced any document on record to prove the exact amount of 

wages. (2016)3 PLRSC 243 

Employee’s Compensation Act, 1923 Section 3(1) – Negligence of 

workman. (2016)3 PLRSC 243 

Employees’ State Insurance Corporation Act, 1948, Section 85(a)(i)(b). 


Evidence Act, 1872 Section 11 – Alibi. (2016)3 PLRSC 967 

Evidence Act, 1872, Section 25 – Confession. (2016)3 PLRSC 670 

Evidence Act, 1872, Section 25, 26, 27 - Section 27 is in the form of 

proviso to Sections 25 and 26 of the Evidence Act. (2016)3 PLRSC 

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670 

Expert - Perjury. (2016)3 PLRSC 41 

Expert evidence and Witness of Fact (2016)3 PLRSC 41 

Eye Witness – Family member. (2016)3 PLRSC 815 

FERA - Complaint - Repeal – effect of. (2016)3 PLRSC 898 

FIR – Delay in lodging. (2016)3 PLRSC 815 

Good Samaritan – Rights (2016)3 PLRSC 823 

Guarantors – Bank Loan. (2016)3 PLRSC 542 

Hindu Minority and Guardianship Act, 1956, Section 8(1), 8(2)(a). 


Ignorance - Ignorance cannot be a valid ground. (2016)3 PLRSC 542 

Indian Contract Act, 1872, Section 128 - Guarantor - Liability of. (2016)3 


Indian Evidence Act, 1872, see Evidence Act, 1872. 

Indian Penal Code, (1860) Section 149 - Common Object – Common 

Intention to kill. (2016)3 PLRSC 588 

Indian Penal Code, 1860 (XLV of 1860) – Alibi - Ocular testimony of eye 

witness. (2016)3 PLRSC 967 

17 


Indian Penal Code, 1860 (XLV of 1860) - Delay in forwarding the F.I.R to 

the Magistrate (2016)3 PLRSC 108 

Indian Penal Code, 1860 (XLV of 1860) - “shall also be liable to fine” 


Indian Penal Code, 1860 (XLV of 1860) Chapter IV - Alibi (2016)3 PLRSC 

967 

Indian Penal Code, 1860 (XLV of 1860) Section 149 - No longer available 

to the prosecution for convicting the appellants whose number is


reduced to 4 upon the acquittal of remaining accused persons 


Indian Penal Code, 1860 (XLV of 1860) Section 149 - Unlawul assembly 

- (2016)3 PLRSC 108 , (2016)3 PLRSC 588 

Indian Penal Code, 1860 (XLV of 1860) Section 300 clause (3), 302 - IPC 

304 Part I (2016)3 PLRSC 976 

Indian Penal Code, 1860 (XLV of 1860) Section 300 Exception 4 (2016)3 


Indian Penal Code, 1860 (XLV of 1860) Section 300, 302 IPC, 304 Part 1 

- Intention is different from motive. (2016)3 PLRSC 235 

Indian Penal Code, 1860 (XLV of 1860) Section 302 read with Section 

149 - Legal principles regarding powers of the appellate Court 

while dealing with an appeal against an order of acquittal. (2016)3 

18 



Indian Penal Code, 1860 (XLV of 1860) Section 302 - Murder is 

committed in secrecy inside a house, the initial burden to 

establish the case would undoubtedly be upon the prosecution 


Indian Penal Code, 1860 (XLV of 1860) Section 304 Part I - Act 

committed was with intention to cause death or of causing such 

bodily injury as was likely to cause death (2016)3 PLRSC 632 

Indian Penal Code, 1860 (XLV of 1860) Section 304 part II - Punishment 

of five years appears to be just and proper - It could have been 

even more. (2016)3 PLRSC 752 

Injunction - Injunction could not be claimed when plaintiffs stand 

dispossessed from the suit property prior to the filing of the suit 


Sample Copy 




Interest on refund of registration amount - Delhi Development 

Authority - (2016)3 PLRSC 954 

Interpretation - Principles of - Inconvenience and hardship to a person 

will not be the decisive factors. (2016)3 PLRSC 865 

Interpretation of statutes - When the wordings of the Stature are clear, 

no interpretation is required. (2016)3 PLRSC 520 

Judgement – Ratio decidendi - Random sentences. (2016)3 PLRSC 57 

Juvenile Justice (Care and Protection of children) Act, 2000, Section 2(k), 

7(a) -. (2016)3 PLRSC 562 

Land Acquisition Act, 1894 

448 

- Delay - Review application . (2016)3 PLRSC 

Land Acquisition Act, 1894 - Efflux of time - Do not think it would be 

proper to consider the matter on merits. (2016)3 PLRSC 121 

Land Acquisition Act, 1894 - Application for releasing lands coming 

under Lal Dora. (2016)3 PLRSC 487 

Land Acquisition Act, 1894 – Panchnama - One of the modes of taking 

19 


possession is by drawing a Panchnama. (2016)3 PLRSC 801 

Land Acquisition Act, 1894 Section 28 – Payment of interest - Denial of 

statutory benefits. (2016)3 PLRSC 384 

Land Acquisition Act, 1894 Section 4 - Sale after notification under S. 4. 


Limitation Act, 1963 Section 4(1) - Whether the appellants are entitled to 

interest for the period from the date of dispossession to the date 

of Notification under Section 4(1). (2016)3 PLRSC 472 

Limitation Act, 1963 Section 5 - ‘sufficient cause’ is to receive liberal 

construction (2016)3 PLRSC 647 

Limitation Act, 1963 Section 7, Article 60 . (2016)3 PLRSC 865


Limitation Act, 1963 - Neither confers a right nor an obligation to file a 

Suit - It only provides a period of limitation for filing the Suit. 


Limitation Act, 1963 Article 60 - Applies to Suits by a minor who has 

attained majority and further by his legal representatives when he 

dies after attaining majority or from the death of the minor 

(2016)3 PLRSC 865, Article 109 (2016)3 PLRSC 865 

Limitation Act, 1963 Article 137 – Cause of action arises when the real 

dispute arises i.e. when one party asserts and the other party 

denies any right - (2016)3 PLRSC 348 

Maharashtra Control of Organised Crime Act, 1999, Section 3 - Criminal 

Trial (2016)3 PLRSC 960 

Maharashtra Rent Control Act, 1999 - Onus to get such a deed registered 

is on the landlord. (2016)3 PLRSC 57 

20 


Mens Rea - taxing statutes (2016)3 PLRSC 400 

Mistake - Arithmetical mistake and Clerical mistake. (2016)3 PLRSC 265 

Monopolies and Restrictive Trade Practices Act, 1969 - Contractual rate 

of interest. (2016)3 PLRSC 954 

Motor Vehicle Act, 1988 (59 of 1988) - joint Tort feasors - Claimant has 

right to recover the compensation from both or any one of the 

joint Tort feasors. (2016)3 PLRSC 609 

Motor Vehicle Act, 1988 (59 of 1988) - Negligence - Contributory and 

Composite negligence - Difference between (2016)3 PLRSC 609 

Motor Vehicle Act, 1988 (59 of 1988) - Tort Feasors - Joint Tort Feasors 

- Remedies available to one of the joint tort feasors from whom 

compensation has been recovered. (2016)3 PLRSC 609 

Sample Copy 




Motor Vehicle Act, 1988 (59 of 1988) – Whether Driving licence to drive 

LMV there is a necessity of obtaining endorsement to drive the 

transport vehicle – Referred to larger bench. (2016)3 PLRSC 298 

Motor Vehicles Act, 1998 (59 of 1988) - 


Compensation - Formula. 

Motor Vehicles Act, 1998 (59 of 1988) - Deceased - Aged 30 years – 

Bachelor. (2016)3 PLRSC 686 

Negotiable Instruments Act, 1881 (26 of 1881) Section 138 – Accused 

disputed taking any loan from the complainant (2016)3 PLRSC 

536, Security Cheque. (2016)3 PLRSC 536 

Negotiable Instruments Act, 1881 (26 of 1881) Section 138 – We see 

that from the bare text of the Section it has been stated clearly 

that the person, who draws a cheque on an account maintained 

by him, for paying the payee, alone attracts liability. (2016)3 



can be made liable even though Company had not been named in 

the notice or the complaint (2016)3 PLRSC 794 

21 


Negotiable Instruments Act, 1881 (26 of 1881) Section 138 - Managing 

Director. (2016)3 PLRSC 794 

Negotiable Instruments Act, 1881 (26 of 1881) Section 139 – Burden of 

Proof - (2016)3 PLRSC 536 

Notice issued by lawful authority – Non appearance - Commits an 

independent offence (2016)3 PLRSC 898 

Nurses - Private hospitals and nursing homes - Service conditions and pay 

. (2016)3 PLRSC 223


Payment of Wages Act, 1936, Section 13A - Wages - Neither of the 

parties produced any document on record to prove the exact 

amount of wages being earned by the deceased at the time of the 

accident. (2016)3 PLRSC 243 

Penalty - Tax – Aauthority may be justified in refusing to impose any 

penalty in some peculiar situations. (2016)3 PLRSC 400 

Personal liberty versus Public good - Sahara Case - (2016)3 PLRSC 752 

Persons with Disabilities (Equal Opportunities, Protection of Rights and 

Full Participation) Rules, 1996 , Section 73 Sub-sections (1) and 

(2) - Disability certificate is required to be issued by Medical 

Board (2016)3 PLRSC 228 

Petrol Pump - Question that once the dealership is cancelled, the land 

owner who had parted with the land by way of a long-term lease 

for a period of thirty years, can be allowed to retain possession 

22 


over the land. (2016)3 PLRSC 752 

Power of Attorney Act, 1982 - An agent acting under a power of 

attorney always acts, as a general rule, in the name of his 

principal. (2016)3 PLRSC 181 

Prevention of Corruption Act, 1988 Sections 13(1)(d) read with 13(2), 

Section 15 read with Section 120B of the IPC – Release of land 

from acquisition –. (2016)3 PLRSC 368 

Principle of interpretation - Inconvenience and hardship to a person will 

not be the decisive factors while interpreting the provision. 


Promissory Estoppel - An equitable doctrine that would yield when 

equity so required. (2016)3 PLRSC 573 

Public Premises (Eviction of Unauthorised Occupants) Act, 1971, S. 17 – 

Sample Copy 




Indian Oil Corporation. (2016)3 PLRSC 752 

Punjab General Sales Tax Act, 1948, Section 11(10). (2016)3 PLRSC 427 

Ratio decidendi - Random sentences have been picked up from the 

judgment and used, without any attempt to understand the true 

purport of the judgment in its entirety. (2016)3 PLRSC 57 

Recovery Of Debts Due To Banks And Financial Institutions Act, 1993 - 

Sick Industrial Companies (Special Provisions) Act, 1985 Section 

22 - SICA will continue to apply (2016)3 PLRSC 123 

Rent – Eviction petition - It is not necessary to implead all the co-owners 

in the eviction petition. (2016)3 PLRSC 181 

Rent act - Onus to get such a deed registered is on the landlord. (2016)3 


Right of legal remedy - A right to prosecute the legal remedy in the court 

of law to challenge any decision of the State or/and its agency is a 

valuable legal right of the citizen and the High Court could not 

take away such right from the appellant without assigning any 

reason. (2016)3 PLRSC 411 

Right to information Act, 2005 (22 of 2005) - Disclosure of names of 

examiners who have evaluated the answer-sheet. (2016)3 PLRSC 

259. Application for information of answer sheets and details of 

the interview marks can be and should be provided. (2016)3 


23 


Sale 

- Creation of third party interest or arrangement by way of 

agreement for sale is different from sale. (2016)3 PLRSC 879 

Sales Tax – Mens Rea in taxing statutes . (2016)3 PLRSC 400 

Sea Customs Act – Exoneration in related adjudication proceedings and 

the effect thereof on criminal proceedings . (2016)3 PLRSC 359


SEBI Act Section 15A, 15J - Expression “namely”. (2016)3 PLRSC 474 

Securitisation and Reconstruction of Financial Assets and Enforcement 

of Security Interest Act, 2002 S. 35 – Rent Control Acts – Lease 

rights. (2016)3 PLRSC 57 


of Security Interest Act, 2002 – Section 35, 37 - Section 35 of the 

SARFAESI is not made subject to Section 37 of the said Act . 



of Security Interest Act, 2002 – Sick Industrial Companies (Special 

Provisions) Act, 1985 - SICA.. (2016)3 PLRSC 123 

Service Matter - Departmental inquiry – Documents not provided . 


Sick Industrial Companies (Special Provisions) Act, 1985 - SICA – 

24 


SARFAESI Act.. (2016)3 PLRSC 123 

Sick Industrial Companies (Special Provisions) Act, 1985 Section 22 - 

Recovery Of Debts Due To Banks And Financial Institutions Act, 

1993 - SICA will continue to apply – RDDB Act.. (2016)3 PLRSC 

123 


Eviction petition - Section 22 shall not apply. (2016)3 PLRSC 123 

Sick Industrial Companies (Special Provisions) Act, 1985, Section 22 - 

Securitisation and Reconstruction of Financial Assets and 

Enforcement of Security Interest Act, 2002 - 


SARFAESI, Act. 

Sample Copy 




Specific Relief Act - Jurisdiction to order specific performance of contract 

is based on the existence of a valid and enforceable contract. 


Specific Relief Act - Suit for specific performance - Suit filed on the basis 

of a “receipt + agreement”. (2016)3 PLRSC 279 

Tamil Nadu General Sales Tax Act, 1959, Entry 14, 50 - Sales Tax – Mens 

Rea. (2016)3 PLRSC 400 

Title – Adverse possession - Claim of title to the property and adverse 

possession are in terms contradictory. (2016)3 PLRSC 801 

Tort Feasors - Joint Tort Feasors - Remedies available to one of the 

joint tort feasors from whom compensation has been recovered. 


Trade Marks Act, section 134 - Territorial jurisdiction - It is not the 

convenience of the lawyers or their expertise which makes out 

the territorial jurisdiction. (2016)3 PLRSC 915 

Transfer of Property Act, 1882, Section 106 - Effect of non-registration, 

or the creation of tenancy by way of an oral agreement . (2016)3 


Urban Land (Ceiling and Regulation) Act, 1976 Sections 8, 9 and 10 - To 

be mandatorily complied with before the land is declared in 

excess of the ceiling limit. (2016)3 PLRSC 265 

Urban Land (Ceiling and Regulation) Act, 1976, Section 10 - A land holder 

cannot be divested from his land on the plea of clerical or 

arithmetical mistake liable to be corrected by issuing 

corrigendum. (2016)3 PLRSC 265 

25 


Vacant Property – Possession of. (2016)3 PLRSC 801


Victim Compensation Scheme - Cr.P.C. Section 357-A - Whether the 

prosecutrix is entitled to victim compensation and, if so, to what 

extent? (2016)3 PLRSC 289 

Violation of order of Supreme Court – Rs. 5 crore imposed as penalty. 


Word and Meanings – “Actus reus”. (2016)3 PLRSC 670, “Cognizance”. 

(2016)3 PLRSC 883, Confession. (2016)3 PLRSC 670, "dulo lex sed 

lex". (2016)3 PLRSC 865 

Words and phrases - “An advocate, in the discharge of his duty knows 

but one person in the world and that person is his client”. (2016)3 


Words and Phrases - “Right to approach the court/pursuing the legal 

remedy cannot be made a farce or oppressive as that would not 

26 


be conducive for the effective administration of justice.” (2016)3 


Words and Phrases - “shall have due regard to” vests a discretion in an 

Adjudicating Officer . (2016)3 PLRSC 474 

Words and Phrases - 'State should not punish with vengeance' - Emperor 

Ashoka. (2016)3 PLRSC 692 

Workman – Daily wager and work charged employee. (2016)3 PLRSC 692 

Workmen's Compensation Act Section 29 - Settlement made outside 

court not registered. (2016)3 PLRSC 287 

---------- 

Sample Copy 





Supreme Court 

e @ journal 

(2016) 3 

27 


REPORTS 

(2016)3 PLRSC



SUPREME COURT OF INDIA 

Present: Justice Madan B. Lokur and Justice R.K. Agrawal. 

M/S SCIEMED OVERSEAS INC. - Petitioner, 

Versus 

BOC INDIA LIMITED & Ors. - Respondents. 

Special Leave To Appeal (C) N0. 29125 OF 2008 

(i) Affidavit – False Affidavit - A global search of cases pertaining to the 

filing of a false affidavit indicates that the number of such cases that 

are reported has shown an alarming increase in the last fifteen years as 

compared to the number of such cases prior to that - This is illustrative 

of the malaise that is slowly but surely creeping in - This 'trend' is 

certainly an unhealthy one that should be strongly discouraged, well 

before the filing of false affidavits gets to be treated as a routine and 

28 


normal affair - High Court was correct in imposing costs of Rs. 10 lakhs 

on the petitioner for filing a false or misleading affidavit - In our 

opinion, the imposition of costs, although somewhat steep, was fully 

justified given that the High Court also held that the contract in favour 

of the petitioner was awarded improperly and was of a commercial 

nature. [Para 1 and 2] 

(ii) Affidavit - False affidavit – Costs - Unconditional and unqualified 

apology - After the Report was filed in the High Court, S also realized 

that it had in fact misled this Court - Nevertheless, S tried to justify the 

false or misleading affidavit filed in this Court - After giving the 

justification, S tendered an unconditional and unqualified apology 

through SP, proprietor of S - There was no need for the proprietor to 

have tendered an unconditional and unqualified apology unless there 

Sample Copy 




was an admission that the statement made before this Court was false 

or misleading - It would have been a different matter if Sciemed had 

tendered an unconditional and unqualified apology without tendering a 

justification – Costs upheld. [Para 27] 

JUDGMENT 

Madan B. Lokur, J. – (11 th January, 2015) - 

1. The only question for our consideration is whether the High 

Court was correct in imposing costs of Rs. 10 lakhs on the petitioner for filing a 

false or misleading affidavit in this Court. In our opinion, the imposition of costs, 

although somewhat steep, was fully justified given that the High Court also held 

that the contract in favour of the petitioner was awarded improperly and was 

of a commercial nature, the last two findings not being under challenge. 

2. A global search of cases pertaining to the filing of a false 

affidavit indicates that the number of such cases that are reported has shown 

an alarming increase in the last fifteen years as compared to the number of 

such cases prior to that. This is illustrative of the malaise that is slowly but 

surely creeping in. This 'trend' is certainly an unhealthy one that should be 

strongly discouraged, well before the filing of false affidavits gets to be treated 

as a routine and normal affair. 

3. The petitioner is aggrieved by a judgment and order dated 22 nd 

September, 2008 passed by the Division Bench of the High Court of Jharkhand 

in L.P.A. No. 212 of 2008 only to the extent of imposition of costs. (BOC India 

Limited v. State of Jharkhand, MANU/JH/0938/2008) In our opinion, there is no 

merit in this petition and it deserves to be dismissed. 

4. The Rajendra Institute of Medical Sciences, Ranchi, (for short 

"the RIMS") issued a notice inviting tender on 10 th February, 2007. The tender 

was for installation and supply of a complete system of Centralized Liquid 

Medical Oxygen with medical gas pipe line for Oxygen, Carbon Dioxide, Nitrous 

29 



Oxide and compressed air, etc. The work was to be executed on a turnkey basis 

within 150 days in the 1000 bedded departments and wards of the RIMS. 

5. Responses to the notice inviting tender were submitted by the 

petitioner (Sciemed Overseas) and respondent No.1 (BOC India). Their tenders 

were processed by the RIMS and a memorandum dated 25 th June, 2007 was 

issued by its Director informing Sciemed and BOC regarding opening of the 

price bid of commercially and technically successful bidders. 

30 


6. According to BOC, the conditions of the technical bid were not 

fulfilled by Sciemed and, therefore, there was no reason to invite it for opening 

the price bid. A representation was made in this regard by BOC to the RIMS but 

that was not considered and, therefore, BOC filed W.P.(C) No. 4203 of 2007 in 

the High Court of Jharkhand in respect of its grievance against Sciemed and the 

RIMS. 

7. The High Court considered the writ petition filed by BOC and by 

an order dated 31 st July, 2007 the writ petition was disposed of giving liberty to 

BOC to file another representation in continuation of its earlier representation 

to the RIMS. It was directed that both the representations should be considered 

by the Director of the RIMS and an appropriate reasoned order be passed 

thereon. 

8. It is important to note that when the aforesaid writ petition was 

disposed of on 31 st July, 2007 no intimation was given to the High Court by the 

RIMS or by Sciemed to the effect that about a week earlier, that is, on 25 th July, 

2007 a work order had already been issued to Sciemed in respect of the notice 

inviting tender. 

9. This fact was first brought to the notice of BOC when the 

Director of the RIMS in his letter dated 8 th September, 2007 informed BOC, in 

response to the representations, that the work order had already been issued 

to Sciemed on 25 th July, 2007. 

10. Under these circumstances, BOC preferred yet another petition 

being W.P. (C) No. 4830 of 2007 challenging the issuance of the work order in 

favour of Sciemed. 

Sample Copy 




11. By an order dated 10 th September, 2007 the High Court 

dismissed the second writ petition filed by BOC holding that the question 

whether the work order had or had not been issued to Sciemed was a question 

of fact. That apart, BOC had also raised several other questions of fact. The High 

Court was of the opinion that since the factual controversies could not be 

adjudicated upon in its writ jurisdiction, there was no reason to entertain the 

writ petition and it was, accordingly, dismissed. 

12. Feeling aggrieved, BOC preferred L.P.A. No. 319 of 2007 which 

was heard and dismissed by a Division Bench of the High Court on 10 th October, 

2007 thereby upholding the view taken by the learned Single Judge that the 

second writ petition filed by BOC raised disputed questions of fact. 

13. Feeling dissatisfied with the order passed by the Division Bench, 

BOC preferred a petition for Special Leave to Appeal to this Court in which leave 

was granted on 14 th March, 2008. This Court disposed of the appeal being Civil 

Appeal No.2028 of 2008 on that day itself holding that there is hardly any 

disputed question of fact. On the contrary, the facts of the case were evident 

from the documents already on record and oral evidence was required to be 

led. Accordingly, this Court was of the view that the matter ought to be heard 

on merits by the High Court and an appropriate direction was given in this 

regard. 

14. During the pendency of the Civil Appeal, an affidavit was filed 

on 20 th February, 2008 by Sciemed through its proprietor Shailendra Prasad 

Singh in which it was stated as follows:- 

"It is submitted that the NIT, after having been relaxed and 

technical and financial bids having been opened, the respondent No.5 

was declared as the lowest bidder by a margin of Rs.1.12 crores as 

compared to the petitioner and the work order has already been acted 

upon and the project is almost near completion and 85% of the amount 

has already been released to the answering respondent, rendering the 

present SLP, in any case, infructuous and liable to be rejected." 

31 


15. It is this passage in the affidavit that has given rise to the 

controversy before us.

32 



16. Pursuant to the order passed by this Court, the writ petition 

filed by BOC was taken up for consideration by a learned Single Judge of the 

High Court. By an order dated 14 th May, 2008, the learned Single Judge 

dismissed the writ petition. While disposing of the writ petition, it was held 

that though the decision making process by which Sciemed was declared to be 

qualified was improper, it could not be held that the RIMS had acted in an 

arbitrary, mala fide or discriminatory manner. The learned Single Judge noted 

that Sciemed had stated before this Court that the work was almost complete. 

The High Court observed that since the work awarded to Sciemed had 

progressed to a considerable extent and a major portion of money had been 

advanced or paid to Sciemed, therefore if the work order were to be set aside 

it would involve dismantling and uprooting the system that had so far been 

fixed which would not be in the interest of the patients or the exchequer. 

Accordingly, the learned Single Judge declined to interfere with the award of 

the contract to Sciemed but left it open to BOC to file a suit for damages 

against Sciemed. 

17. Feeling aggrieved, Sciemed preferred a Letters Patent Appeal 

before the Division Bench of the High Court which came to be dismissed by the 

impugned judgment and order dated 22 nd September, 2008. While doing so, 

the Division Bench of the High Court noted that the reason why the learned 

Single Judge did not interfere with the award of the contract to Sciemed was 

because of its statement made before this Court on affidavit that the work was 

almost near completion. It was also noted that cancellation of the award of 

contract at his stage would entail a heavy administrative and financial burden 

on the Government and lead to increase and double expenditure to the tune of 

crores of rupees. 

18. However, the High Court, on the submission of learned counsel 

for BOC decided to verify whether the installation and supply of the complete 

system as per the notice of tender was near completion as stated by Sciemed 

in its affidavit filed in this Court. For this purpose, the High Court appointed a 

respected advocate of that Court as a one-man committee to visit the work site 

Sample Copy 




and submit a report with regard to the extent of work completed or at the 

stage of completion. 

19. The learned advocate so appointed by the High Court 

submitted his Report on 3 rd July, 2008. It was stated in the Report, which was 

accepted by the High Court, that the originating point/inlet of the main Liquid 

Oxygen Gas Tank of the required specification had not yet been installed. It was 

also found that a separate 3-Phase Electric Supply System for commissioning 

the project had not yet been installed. In view of these two major deficiencies, 

the commissioning of the complete system was being delayed. Additionally, it 

was noted that the Oxygen Gas Tank was in transit from Bangalore at that time. 

20. On a consideration of the Report, the High Court took the view 

that Sciemed had given a false affidavit in this Court to the effect that the work 

was near completion. In this view of the matter, the High Court dismissed the 

appeal filed by Sciemed and imposed costs of Rs. 10 lakhs to be deposited with 

the Jharkhand State Legal Services Authority. 

21. At this stage, it is important to mention that Sciemed through 

its proprietor Shailendra Prasad Singh son of Rameshwar Prasad Singh, had filed 

an affidavit on or about 10 th July, 2008 in the High Court in which it was 

explained that the statement made in this Court on affidavit was because the 

deponent was of the view that the installation of the complete system of gas 

pipeline is one part of the award and installation of liquid oxygen tank is a 

separate work. It was stated that the affidavit filed in this Court was due to 

some misconception and was not with a view to mislead this Court. In other 

words, the deponent sought to justify his affidavit in this Court notwithstanding 

the Report of the learned advocate. The deponent after giving the above 

explanation, tendered an unconditional and unqualified apology to the High 

Court for the statement regarding the near completion of the project. 

22. The High Court did not accept the apology given by the 

proprietor of Sciemed and, therefore, imposed costs of Rs.10 lakhs on Sciemed. 

23. While impugning the order passed by the High Court, it was 

submitted by the learned counsel for Sciemed that in fact the statement made 

33 


34 



in the affidavit filed in this Court was not a false statement but was bona fide 

and not a deliberate attempt to mislead this Court. It was also submitted that 

the allegedly false or misleading statement had no impact on the decision taken 

by this Court and should, therefore, be ignored. 

24. We are unable to accept either contention raised by learned 

counsel. 

25. The correctness of the statement made by Sciemed was 

examined threadbare not only by the learned Single Judge but also by the 

Division Bench and it was found that a considerable amount of work had still to 

be completed by Sciemed and it was not as if the work was nearing completion 

as represented to this Court. Additionally, the Report independently given by 

the learned advocate appointed to make an assessment, also clearly indicated 

that a considerable amount of work had still to be performed by Sciemed. The 

Report was not ex parte but was carefully prepared after an inspection of the 

site and discussing the matter with Shailendra Prasad Singh the proprietor of 

Sciemed and an engineer of Sciemed as well as officers from the RIMS. 

26. The conclusion drawn by the learned advocate after a thorough 

inspection and discussion of the issues is as follows:- 

"From a detailed inspection of the entire Liquid Oxygen 

Gas System as required to be installed under the tender 

conditions land the work Order, I was able to gather that at the 

originating point/inlet the main Liquid Oxygen Gas Tank of the 

required specification has not yet been installed. I also found 

that a separate 3-Phase Electric Supply System for 

commissioning of the project has not yet been installed and is 

reportedly in the process. I was informed by the hospital 

authorities that the 3-Phase electricity connection is to be 

supplied by the hospital authorities and are not required under 

the tender conditions or work order to be done on the part of 

the Contractor i.e. M/s Sciemed Overseas Inc. On the part of 

the Contractor i.e. respondent no.5 I was repeatedly informed 

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that the delay in the execution of the work has occasioned 

primarily due to repeated thefts of the costly Copper pipes, 

whitewashing and distemper work underway in the RIMS and 

also the operational and practical difficulties in installation in 

the ICU's, OT's, Labour Rooms in the Gynae Department which 

had to be vacated by the hospital authorities completely after 

much persuasion, before any installation could be carried out. 

It appears that on account of delay in installation of the 

Main Liquid Oxygen Tank and the 3 Phase electrical connection, 

the commissioning of the complete system of Liquid Medical 

Oxygen Gas together with other gases. Vacuum and Air are 

being delayed. The entire outlet system upto the individual 

outlets have been put in place as already stated above. I also 

noticed that at the point of the final outlets at the end of the 

Branch pipeline at the Bed heads wherever they are specified 

by the Work Order, the double lockout with parking facility has 

been installed but the electrical switches for which space is left 

in the panel has not yet been fixed." 

27. After the Report was filed in the High Court, Sciemed also realized that 

it had in fact misled this Court. Nevertheless, Sciemed tried to justify the false or 

misleading affidavit filed in this Court. After giving the justification, Sciemed 

tendered an unconditional and unqualified apology through Shailendra Prasad 

Singh, proprietor of Sciemed. There was no need for the proprietor to have 

tendered an unconditional and unqualified apology unless there was an 

admission that the statement made before this Court was false or misleading. It 

would have been a different matter if Sciemed had tendered an unconditional 

and unqualified apology without tendering a justification. 

28. As far as the alternative submission of the learned counsel is concerned, 

we are not in a position to accept this submission also particularly if the entire 

matter is looked at in a broad conspectus. 

35 


36 



29. In the first instance, the work order was issued to Sciemed on 25 th July, 

2007 but this was not disclosed to the High Court when it disposed of W.P.(C) 

No.4203 of 2007 on 31 st July, 2007. Had the factual position been disclosed to 

the High Court, perhaps the outcome of the writ petition filed by BOC would 

have been different and the issue might not have even travelled up to this 

Court. Furthermore, apparently to ensure that work order goes through, a false 

or misleading statement was made before this Court on affidavit when the 

matter was taken up on 14 th March, 2008 to the effect that the work was 

nearing completion. It is not possible to accept the view canvassed by learned 

counsel that the false or misleading statement had no impact on the decision 

rendered by this Court on 14 th March, 2008. We cannot hypothesize on what 

transpired in the proceedings before this Court nor can we imagine what could 

or could not have weighed with this Court when it rendered its decision on 14 th 

March, 2008. The fact of the matter is that a false or misleading statement was 

made before this Court and that by itself is enough to invite an adverse 

reaction. 

30. In the case of Suo Moto Proceedings Against R. Karuppan, Advocate, 

(2001) 5 SCC 289 this Court had observed that the sanctity of affidavits filed by 

parties has to be preserved and protected and at the same time the filing of 

irresponsible statements without any regard to accuracy has to be discouraged. 

It was observed by this Court as follows: 

"Courts are entrusted with the powers of dispensation and adjudication 

of justice of the rival claims of the parties besides determining the 

criminal liability of the offenders for offences committed against the 

society. The courts are further expected to do justice quickly and 

impartially not being biased by any extraneous considerations. Justice 

dispensation system would be wrecked if statutory restrictions are not 

imposed upon the litigants, who attempt to mislead the court by filing 

and relying upon false evidence particularly in cases, the adjudication of 

which is dependent upon the statement of facts. If the result of the 

proceedings are to be respected, these issues before the courts must be 

Sample Copy 




resolved to the extent possible in accordance with the truth. The purity 

of proceedings of the court cannot be permitted to be sullied by a party 

on frivolous, vexatious or insufficient grounds or relying upon false 

evidence inspired by extraneous considerations or revengeful desire to 

harass or spite his opponent. Sanctity of the affidavits has to be 

preserved and protected discouraging the filing of irresponsible 

statements, without any regard to accuracy." 

31. Similarly, in Muthu Karuppan v. Parithi Ilamvazhuthi, (2011) 5 

SCC 496 this Court expressed the view that the filing of a false affidavit should 

be effectively curbed with a strong hand. It is true that the observation was 

made in the context of contempt of Court proceedings, but the view expressed 

must be generally endorsed to preserve the purity of judicial proceedings. This 

is what was said: 

"Giving false evidence by filing false affidavit is an evil which must be 

effectively curbed with a strong hand. Prosecution should be ordered 

when it is considered expedient in the interest of justice to punish the 

delinquent, but there must be a prima facie case of "deliberate 

falsehood" on a matter of substance and the court should be satisfied 

that there is a reasonable foundation for the charge." 

32. On the material before us and the material considered by the 

High Court, we are satisfied that the imposition of costs by the High Court was 

justified. We find no reason to interfere with the impugned judgment and 

order. The petition is dismissed. 

33. However, we grant six weeks to the petitioner to make the 

deposit of costs as directed by the High Court with the Jharkhand Legal Services 

Authority (JHALSA). On the deposit being made, the JHALSA should forward the 

amount to BOC India. The matter should be listed in the High Court after eight 

weeks for compliance. 

---- SS ---- 

37 





Present: Justice Kurian Joseph and Justice Rohinton Fali Nariman 

THE MANAGEMENT OF NARENDRA & COMPANY PRIVATE LIMITED – 

Appellant, 

Versus 

THE WORKMEN OF NARENDRA & COMPANY – Respondent. 

Civil Appeal No.14 OF 2016 (Arising out of SLP (C) No. 13908/2013) 

Appeal - Intra-court appeal - In an intra-court appeal, on a finding of 

fact, unless the appellate Bench reaches a conclusion that the finding of 

the Single Bench is perverse, it shall not disturb the same - Merely 

because another view or a better view is possible, there should be no 

interference with or disturbance of the order passed by the Single 

Judge, unless both sides agree for a fairer approach on relief - Once the 

38 


learned Single Judge having seen the records and come to the 

conclusion that the industry was not functioning after January, 1995, 

there is no justification in entering a different finding without any 

further material before the Division Bench. [Para 4] 

JUDGMENT 

The judgement of the court was delivered by 

Kurian, J.- (January 4, 2016) - Leave granted. 

2. Short question is whether the respondents-workmen are entitled to 

the back wages till the beginning of January, 1995 or till January, 1999. The 

Labour Court, Bangalore by award dated 02.08.2002 directed reinstatement of 

the workmen with 50 per cent back wages. That award was challenged by the 

appellant before the High Court of Karnataka at Bangalore by judgment dated 

14.03.2008 in Writ Petition No. 41489 of 2002. Though the appellant attacked 

the award on several grounds, the learned Single Judge declined to interfere 

Sample Copy 




with the award on reinstatement. However, taking note of the fact that the 

industry was virtually closed by the beginning of January, 1995, it was ordered 

that the award on back wages would be limited to January, 1995. The learned 

Single Judge, in fact, had entered a finding in that regard which reads as follows: 

“From the record it shows that the industry was functioning till the 

beginning of 1995 and the Union though has led the evidence but has 

not proved as to whether the industry was functioning thereafter or 

not.” 

3. In appeal, the Division Bench took the view that apart from the sole 

evidence of MW-3, there was no other evidence on record to prove that the 

industry was not functional after January, 1995. However, there was no dispute 

with regard to the fact that the industry was closed, and therefore, 

reinstatement was not possible. In that background, without any further 

material available on record, the Division Bench took the view that interest of 

justice would be met by extending the benefit of 50 per cent back wages upto 

the end of January, 1999 and consequential benefits with closure compensation 

as well as gratuity upto that date. We may extract the relevant consideration by 

the Division Bench in the impugned judgment: 

“… According to MW-3, the machines were operated only till the 

beginning of January, 1995. However, to substantiate that contention, 

there is no evidence on record. In the light of such evidence on record, 

it is not possible to record a categorical finding that the industry was 

closed in the year 1995 itself. Having regard to the fact that the industry 

was closed, the order of re-instatement has been set aside by the 

learned single Judge and the workmen were entitled to retrenchment 

compensation and only 50% back wages is awarded, we are of the view 

that justice would be met by extending the benefit of 50% back wages 

upto the end of January 1999 and they are also entitled to 

consequential benefits with closure compensation as well as gratuity 

upto that date. …” 

4. Once the learned Single Judge having seen the records and come to 

39 


40 



the conclusion that the industry was not functioning after January, 1995, there 

is no justification in entering a different finding without any further material 

before the Division Bench. The appellate bench ought to have noticed that the 

statement of MW-3 is itself part of the evidence before the Labour Court. Be 

that as it may, in an intra-court appeal, on a finding of fact, unless the appellate 

Bench reaches a conclusion that the finding of the Single Bench is perverse, it 

shall not disturb the same. Merely because another view or a better view is 

possible, there should be no interference with or disturbance of the order 

passed by the Single Judge, unless both sides agree for a fairer approach on 

relief. 

5. When the matter came up before this Court on 08.07.2013, the Court 

directed the appellant to file an affidavit indicating the actual year of closure of 

the industry so as to determine the question as to from what date retrenchment 

compensation should be paid to the workmen. Accordingly, affidavit dated 

11.07.2013 was filed wherein it is clearly stated that the industry became nonfunctional 

by the beginning of January, 1995 and remained defunct thereafter. 

In the counter affidavit filed by the respondent-workmen also, there is nothing 

to establish that the industry was functioning thereafter. 

6. Hence, the order for payment of back wages beyond January, 1995 is 

vacated, and in all the other aspects, the order passed by the Division Bench is 

retained. In case, the workmen have not been paid the benefits which they are 

entitled to, the same shall be paid within a period of three months from today, 

failing which, the respondent-workmen shall be entitled to interest at the rate 

of 10 per cent per annum. 

7. The appeal is partly allowed as above. There shall be no order as to 

costs. 

---SS ---- 

Sample Copy 






Present: Mr, Justice T. S. Thakur and Justice Kurian Joseph. 

PREM SAGAR MANOCHA – Appellant, 

VERSUS 

STATE (NCT OF DELHI) - Respondent. 

Criminal Appeal Nos. 9-10 OF 2016 

(Arising from S.L.P. (Criminal) Nos. 7153-7154/2013) 

(i) CrPC Section 340 - Section 340 prior to amendment in 1973, was 

Section 479-A in the 1898 Code and it was mandatory under the preamended 

provision to record a finding after the preliminary inquiry 

regarding the commission of offence - Whereas in the 1973 Code, the 

expression 'shall' has been substituted by 'may' meaning thereby that 

under 1973 Code, it is not mandatory that the court should record a 

finding - What is now required is only recording the finding of the 

preliminary inquiry which is meant only to form an opinion of the court, 

and that too, opinion on an offence 'which appears to have been 

committed', as to whether the same should be duly inquired into - 

Impugned order is not liable to be quashed on the only ground that 

there is no finding recorded by the court on the commission of the 

offence. [Para 12] 

41 


(ii) CrPC Section 340 – Expert - Merely because an expert has tendered 

an opinion while also furnishing the basis of the opinion and that too 

without being conclusive and definite, it cannot be said that he has 

committed perjury so as to help somebody - And, mere rejection of the 

expert evidence by itself may not also warrant initiation of proceedings 

under Section 340 of CrPC. [Para 22] 

Held, 

Appellant has all through been consistent that as an expert, a definite opinion

42 



in the case could be given only if the suspected firearm is available for 

examination. It is nobody's case that scientifically an expert can give a definite 

opinion by only examining the cartridges as to whether they have been fired 

from the same firearm. It was the trial court which insisted for an opinion 

without the presence of the firearm, and in that context only, the appellant 

gave the non-specific and indefinite opinion. An expert, in such a situation, 

could not probably have given a different opinion. We fail to understand how 

the stand taken by the appellant, as above, attracts the offence of perjury. 

[Para 15] 

Held further, 

It is significant to note that the appellant's opinion that the cartridges appeared 

to have been fired from different firearms was based on the court's insistence 

to give the opinion without examining the firearm. In other words, it was not 

even his voluntary, let alone deliberate deposition, before the court. Therefore, 

it is unjust, if not unfair, to attribute any motive to the appellant that there was 

a somersault from his original stand in the written opinion. As a matter of fact, 

even in the written opinion, appellant has clearly stated that a definite opinion 

in such a situation could be formed only with the examination of the suspected 

firearm, which we have already extracted in the beginning. Thus and therefore, 

there is no somersault or shift in the stand taken by the appellant in the oral 

examination before court. 

(iii) Expert evidence and Witness of Fact - Expert evidence needs to be 

given a closer scrutiny and requires a different approach while initiating 

proceedings under Section 340 of CrPC- After all, it is an opinion given 

by an expert and a professional and that too especially when the expert 

himself has lodged a caveat regarding his inability to form a definite 

opinion without the required material - The duty of an expert is to 

furnish the court his opinion and the reasons for his opinion along with 

all the materials - It is for the court thereafter to see whether the basis 

Sample Copy 




of the opinion is correct and proper and then form its own conclusion - 

But, that is not the case in respect of a witness of facts - Facts are facts 

and they remain and have to remain as such forever - The witness of 

facts does not give his opinion on facts; but presents the facts as such - 

However, the expert gives an opinion on what he has tested or on what 

has been subjected to any process of scrutiny - The inference drawn 

thereafter is still an opinion based on his knowledge - In case, 

subsequently, he comes across some authentic material which may 

suggest a different opinion, he must address the same, lest he should 

be branded as intellectually dishonest - Objective approach and 

openness to truth actually form the basis of any expert opinion - CrPC 

Section 340 . [Para 20] 

JUDGMENT 

The Judgement of the court was delivered by 

Kurian, J. - (6 th January, 2016) - Leave granted. 

2. Appellant is aggrieved by the proceedings initiated by the High Court 

of Delhi against him under Section 340 of The Code of Criminal Procedure, 1973 

(hereinafter referred to as 'CrPC') which culminated in the impugned order 

dated 22.05.2013 whereby the High Court directed its Registrar General to file a 

complaint against the respondent. 

SHORT FACTS: 

43 


3. In connection with the investigation of F.I.R. No. 287 of 1999 

registered at Police Station, Mehrauli (Jessica Lal Murder Case), the Police 

sought an expert opinion from the State Forensic Science Laboratory, Rajasthan 

by letter dated 19.01.2000. The expert opinion was in respect of the following 

three questions: 

"1. Please examine and opine the bore of the two 

empty cartridges present in the sealed parcel. 

2. Please opine whether these two empty cartridges

44 



have been fired from a pistol or a revolver. 

3. Whether both the empty cartridges have been fired 

from the same firearm or otherwise." (Emphasis supplied) 

4. The appellant at the relevant time was working as the Deputy 

Director of the Laboratory. He forwarded a report dated 04.02.2000 

with the following result of examination: 

"(i) The caliber of two cartridge cases (C/1 and C/2) is .22. 

(ii) These two cartridge cases (C/1 and C/2) appear to have been fired 

from pistol. 

(iii) No definite opinion could be given on two .22 cartridge cases (C/1 

and C/2) in order to link firearm unless the suspected firearm is 

available for examination." (Emphasis supplied) 

5. During the trial before the Sessions Court, New Delhi, 101 witnesses 

were examined for the prosecution. Appellant was PW-95. The trial court 

acquitted all the ten accused of all the charges. In Criminal Appeal 193 of 2006, 

by judgment dated 20 th December 2006, the High Court convicted all of them. 

The conviction was upheld by this Court in judgment dated 19.04.2010 [The 

decision is reported in (2010) 6 SCC 1]. 

6. Disturbed by the conduct of many of the witnesses turning hostile, 

the High Court, in the appeal against acquittal, initiated suo motu proceedings, 

by notice dated 20.12.2006 against 32 witnesses including the appellant. After 

considering their replies, the proceedings against a few of them were dropped. 

However, the appellant and a few others were directed to be proceeded 

against. The Court was of the opinion that the oral evidence tendered by the 

appellant reflected a shift in stand from that of the written opinion which was 

apparently to help the accused, and hence, Section 193 of the Indian Penal 

Code (45 of 1860) (hereinafter referred to as 'IPC') was attracted. 

7. In order to appreciate the factual position a little more in detail, 

which is necessary for the purpose of this appeal, we shall extract the relevant 

portion of the deposition: 

Sample Copy 




"And after examination the report was prepared with reference to the 

queries. My report is Ex. PW-95/2 which was typed at my dictation and 

bears my sign at point A. On examination I came to the conclusion as 

under: 

(i) In answer to query no.1, in Ex-PW-95/1B regarding the 

bore of two empty cartridges I came to the conclusion 

that the caliber of two cartridge cases (marked C/1 and 

C/2) examined by me is .22 bore. 

(ii) Regarding query no. 2 the two cartridge cases in 

question 1 came to the conclusion that these two 

cartridges appear to have been fired from pistol. The 

query at no.2 was "please opine whether these two 

empty cartridges have been fired from pistol or 

revolver". 

(iii) Query No. 3 was 'whether both the empty cartridges 

have been fired from the same fire arm which had not 

been sent for examination in order to link the cartridge 

cases with that. So my conclusion was that no definite 

opinion could be given on two .22 bore cartridge cases 

(C/1 and C/2) in order to link with the firearm unless the 

suspected fire arm is available for examination. 

Court question 

Q. For reply to query no. 3 the presence of the fire arm was not 

necessary. The question was whether the two empty 

cartridges have been fired from one instrument or from 

different instruments? 

Ans. The question is now clear to me. I can answer the query 

here and now. These two cartridge cases were 

examined physically and under sterio and comparison 

microscope to study and observe and compare the 

45 



evidence and the characteristic marks present on them 

which have been printed during firing. After comparison 

I am of the opinion that these two cartridge cases C/1 

and C/2 appeared to have been fired from two different 

fire arms." (Emphasis supplied) 

8. The witness was declared hostile, and in cross examination, the 

following question and its answer were tendered. 

46 


"Q. Is it correct that according to your own notings at pt. C to C 

on worksheet you were of the view that definite 

opinion as to whether the fired cases C1 and C2 have 

been fired from the same firearm i.e. one firearm or 

from two different weapons can be given only if the 

firearm involved in question is produced otherwise not. 

Ans. I have already stated that these two cartridge cases 

appeared to have been fired from two different 

firearms. Definite opinion would have been given once 

the weapon is given to me for examination." (Emphasis 

supplied) 

9. Shri K. V. Viswanathan, learned Senior Counsel appearing for the 

appellant, contended that being an expert and a professional, the appellant 

only tendered his opinion in response to the specific question by court and that 

does not amount to even a borderline case of perjury. 

10. Perjury falls under Chapter XI of the IPC "Of False Evidence and 

Offences Against Public Justice". As per Section 193 of IPC, "whoever 

intentionally gives false evidence in any stage of a judicial proceeding, or 

fabricates false evidence for the purpose of being used in any stage of a judicial 

proceeding, shall be punished with imprisonment of either description for a 

term which may extend to seven years, and shall also be liable to fine, and 

whoever intentionally gives or fabricates false evidence in any other case, shall 

be punished with imprisonment of either description for a term which may 

extend to three years, and shall also be liable to fine" . 

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11. Section 340 of CrPC falls under Chapter XXVI of the Code- 

"Provisions as to Offences Affecting the Administration of Justice". Either on an 

application or otherwise, if any court forms an opinion that it is expedient in the 

interests of justice that an inquiry should be made in respect of an offence 

referred to under Section 195 of CrPC which appears to have been committed 

in relation to a proceeding in that court, the court after such preliminary 

inquiry, enter a finding and make a complaint before the Magistrate of 

competent jurisdiction. It is this jurisdiction which has been invoked suo motu 

by the High Court in the Criminal Appeal, leading to the impugned order. 

12. Section 340 of CrPC, prior to amendment in 1973, was Section 479- 

A in the 1898 Code and it was mandatory under the pre-amended provision to 

record a finding after the preliminary inquiry regarding the commission of 

offence; whereas in the 1973 Code, the expression 'shall' has been substituted 

by 'may' meaning thereby that under 1973 Code, it is not mandatory that the 

court should record a finding. What is now required is only recording the 

finding of the preliminary inquiry which is meant only to form an opinion of the 

court, and that too, opinion on an offence 'which appears to have been 

committed', as to whether the same should be duly inquired into. We are 

unable to appreciate the submission made by the learned Senior Counsel that 

the impugned order is liable to be quashed on the only ground that there is no 

finding recorded by the court on the commission of the offence. Reliance 

placed on Har Gobind v. State of Haryana, (1979) 4 SCC 482 is of no assistance 

to the appellant since it was a case falling on the interpretation of the preamended 

provision of the CrPC. A three-Judge Bench of this Court in Pritish v. 

State of Maharashtra ( 2002) 1 SCC 253, has even gone to the extent of holding 

that the proceedings under Section 340 of CrPC can be successfully invoked 

even without a preliminary inquiry since the whole purpose of the inquiry is 

only to decide whether it is expedient in the interest of justice to inquire into 

the offence which appears to have been committed. To quote: 

"9. Reading of the sub-section makes it clear that the hub of this 

provision is formation of an opinion by the court (before which 

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48 



proceedings were to be held) that it is expedient in the interest of 

justice that an inquiry should be made into an offence which appears to 

have been committed. In order to form such opinion the court is 

empowered to hold a preliminary inquiry. It is not peremptory that such 

preliminary inquiry should be held. Even without such preliminary 

inquiry the court can form such an opinion when it appears to the court 

that an offence has been committed in relation to a proceeding in that 

court. It is important to notice that even when the court forms such an 

opinion it is not mandatory that the court should make a complaint. This 

sub-section has conferred a power on the court to do so. It does not 

mean that the court should, as a matter of course, make a complaint. 

But once the court decides to do so, then the court should make a 

finding to the effect that on the fact situation it is expedient in the 

interest of justice that the offence should further be probed into. If the 

court finds it necessary to conduct a preliminary inquiry to reach such a 

finding it is always open to the court to do so, though absence of any 

such preliminary inquiry would not vitiate a finding reached by the court 

regarding its opinion. It should again be remembered that the 

preliminary inquiry contemplated in the sub-section is not for finding 

whether any particular person is guilty or not. Far from that, the 

purpose of preliminary inquiry, even if the court opts to conduct it, is 

only to decide whether it is expedient in the interest of justice to inquire 

into the offence which appears to have been committed." 

13. In the impugned order, the High Court did form an opinion 

after the inquiry. To quote: 

"90. It was argued on behalf of the state by the learned standing 

counsel that the ballistic expert's deposition, Ex. PW-95 was calculated 

to let the accused Manu Sharma off the hooks. It was submitted that 

the witness had stated that no definite opinion could be given whether 

the two empty cartridges were fired from the same weapon. However, 

on the basis of the same material, he took a somersault and gave a 

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completely contrary opinion in the Court saying that they appear to 

have been fired from different weapons. It was submitted that by the 

time this witness stepped on to the box, the defence had formed its 

definite plan about a "two weapon theory". The deposition of this 

witness was sought to support the "two weapon theory". That this court 

and Supreme Court rejected the theory did not in any way undermine 

the fact that PW-95 gave false evidence." 

14. Therefore, what is to be seen is whether the High Court is 

justified in forming the opinion on commission of the offence under Section 193 

of IPC. The stand of the appellant in his report (Ex PW-95/2) dated 04.02.2000, 

and while deposing before the court at the trial, it is to be noted, was 

consistent. Query No.3 was whether both the empty cartridges were fired from 

the same firearm or otherwise. Since there was no recovery of the firearm, the 

same was not sent along with the cartridges for the examination by the expert. 

Therefore, the opinion tendered was that he was unable to give any definite 

opinion in answer to Query No.3, "unless the suspected firearm is available for 

examination." It was at that juncture, there was a court question. According to 

the court, "for reply to query no. 3, the presence of the firearm was not 

necessary. The question was whether the two empty cartridges have been fired 

from one instrument or from different instruments". To that question, the 

appellant responded that "after comparison, I am of the opinion that these two 

cartridge cases C/1 and C/2 appeared to have been fired from two different 

firearms". It is not a clear, conclusive, specific and definite opinion. In further 

examination, the appellant has clearly stated that "I have already stated these 

two cartridge cases appear to have been fired from two different fire arms. 

Definite opinion would have been given once the weapon is given to me for 

examination". 

15. We fail to understand how the stand taken by the appellant, as 

above, attracts the offence of perjury. As we have already observed above, the 

appellant has all through been consistent that as an expert, a definite opinion 

in the case could be given only if the suspected firearm is available for 

49 


50 



examination. It is nobody's case that scientifically an expert can give a definite 

opinion by only examining the cartridges as to whether they have been fired 

from the same firearm. It was the trial court which insisted for an opinion 

without the presence of the firearm, and in that context only, the appellant 

gave the non-specific and indefinite opinion. An expert, in such a situation, 

could not probably have given a different opinion. 

16. In fact, this Court, in the decision rendered on the appeal filed 

by the accused and reported in Sidhartha Vashisht @ Manu Sharma v. State 

(NCT of Delhi), (2010) 6 SCC 1, has specifically dealt with the issue explaining, 

and in a way, justifying the stand of the appellant. To quote: 

"180. Similar is the case with the expert opinion of PW 95 which is again 

inconclusive. There is no evidence on record to suggest that PW 95 gave 

an opinion to oblige the prosecution. On the contrary, his response to 

the court question reveals that he was extremely confused as to the 

issue which had to be addressed by him in the capacity of an expert. In 

the concluding part of his testimony he reaffirms the opinion given by 

him which is that without test firing the empties from the weapon of 

offence no conclusive opinion can be given." (Emphasis supplied) 

17. This Court in State (Delhi) v. Pali Ram (1979) 2 SCC 158 held that: 

"51.............................. the real function of the expert is to put before the 

court all the materials, together with reasons which induce him to come 

to the conclusion, so that the court, although not an expert, may form 

its own judgment by its own observation of those materials. Ordinarily, 

it is not proper for the court to ask the expert to give his finding upon 

any of the issues, whether of law or fact, because, strictly speaking, such 

issues are for the court or jury to determine". 

18. In Ramesh Chandra Agrawal v. Regency Hospitals, (2009) 9 SCC 709 

this Court has dealt with the difference between an 'expert' and 'a witness of 

fact'. 

"20. An expert is not a witness of fact and his evidence is really of an 

advisory character. The duty of an expert witness is to furnish the Judge 

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with the necessary scientific criteria for testing the accuracy of the 

conclusions so as to enable the Judge to form his independent judgment 

by the application of these criteria to the facts proved by the evidence 

of the case. The scientific opinion evidence, if intelligible, convincing and 

tested becomes a factor and often an important factor for consideration 

along with other evidence of the case. The credibility of such a witness 

depends on the reasons stated in support of his conclusions and the 

data and material furnished which form the basis of his conclusions." 

19. Mr. Vishwanathan, learned Senior Counsel has invited our attention 

and has placed heavy reliance on a judgment of the Supreme Court of Pakistan 

in Sqn. Ldr. (R) Umeed Ali Khan v. Dr. (Mrs.) Sultana Ibrahim and Others, 

LEX/SCPK/0483/2006. While dealing with the issue of perjury by expert 

witnesses, observed as follows: 

"6. We have also dilated upon the import and significance of the 

Handwriting Expert report by whom it was opined that the "receipt" 

was signed by Dr. Sultana Ibrahim. It is well-settled by now that Expert's 

evidence is only confirmatory or explanatory of direct or circumstantial 

evidence and the confirmatory evidence cannot be given preference 

where confidence-inspiring and worthy of credence evidence is 

available. In this regard we are fortified by the dictum as laid down in 

Yaqoob Shah v. The State PLD 1976 SC 53. There is no doubt that the 

opinion of Handwriting Expert is relevant but it does not amount to 

conclusive proof as pressed time and again by the learned Advocate 

Supreme Court on behalf of petitioner and can be rebutted by 

overwhelming independent evidence. In this regard reference can be 

made to Abdul Majeed v. State PLD 1976 Kar. 762. It is always risky to 

base the findings of genuineness of writing on Expert's opinion. In this 

behalf we are fortified by the dictum as laid down in case of Ali Nawaz 

Gardezi v. Muhammad Yousuf PLD 1963 SC 51. It hardly needs any 

elaboration that expert opinion must always be received with great 

caution, especially the opinion of Handwriting Experts. An expert 

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52 



witness, however, impartial he may wish to be, is likely to be 

unconsciously prejudiced in favour of the side which calls him. The mere 

fact of opposition on the part of the other side is apt to create a spirit of 

partisanship and rivalry, so that an Expert witness is unconsciously 

impelled to support the view taken by his own side. Besides it must be 

remembered that an Expert is often called by one side simply and solely 

because it has been ascertained that he holds views favourable to its 

interest. Although such evidence has to be received with "great 

caution", yet such evidence, and reasons on which it is based, are 

entitled to careful examination before rejection and non-acceptance by 

Court of Expert's evidence does not mean that the Expert has 

committed perjury. Of all kinds of evidence admitted in a Court, this is 

the most unsatisfactory. It is so weak and decrepit as scarcely to 

deserve a place in our system of jurisprudence" 

We are afraid that the decision is of no assistance to the appellant, 

since according to that court, the expert is often called by a party after 

ascertaining that the expert holds a view in favour of that party. That is not the 

situation or scheme under The Indian Evidence Act, 1872. And, in any case, a 

Government scientific expert certainly stands on a different footing. 

20. Expert evidence needs to be given a closer scrutiny and requires a 

different approach while initiating proceedings under Section 340 of CrPC. After 

all, it is an opinion given by an expert and a professional and that too especially 

when the expert himself has lodged a caveat regarding his inability to form a 

definite opinion without the required material. The duty of an expert is to 

furnish the court his opinion and the reasons for his opinion along with all the 

materials. It is for the court thereafter to see whether the basis of the opinion is 

correct and proper and then form its own conclusion. But, that is not the case in 

respect of a witness of facts. Facts are facts and they remain and have to 

remain as such forever. The witness of facts does not give his opinion on facts; 

but presents the facts as such. However, the expert gives an opinion on what he 

has tested or on what has been subjected to any process of scrutiny. The 

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inference drawn thereafter is still an opinion based on his knowledge. In case, 

subsequently, he comes across some authentic material which may suggest a 

different opinion, he must address the same, lest he should be branded as 

intellectually dishonest. Objective approach and openness to truth actually 

form the basis of any expert opinion. 

21. In National Justice Compania Naviera SA v. Prudential Assurance 

Co Ltd (The "Ikarian Reefer"), [1995] 1 Lloyd's Rep 455 the Queen's Bench 

(Commercial Division) even went to the extent of holding that the expert has 

the freedom in such a situation to change his views. It was stated that "if an 

expert's opinion is not properly researched because he considers that insufficient 

data is available, then this must be stated with an indication that the opinion is 

no more than a provisional one. In cases where an expert witness who has 

prepared a report could not assert that the report contained the truth, the 

whole truth and nothing but the truth without some qualification, that 

qualification should be stated in the report". 

22. Hence, merely because an expert has tendered an opinion while 

also furnishing the basis of the opinion and that too without being conclusive 

and definite, it cannot be said that he has committed perjury so as to help 

somebody. And, mere rejection of the expert evidence by itself may not also 

warrant initiation of proceedings under Section 340 of CrPC. 

23. It is significant to note that the appellant's opinion that the 

cartridges appeared to have been fired from different firearms was based on 

the court's insistence to give the opinion without examining the firearm. In 

other words, it was not even his voluntary, let alone deliberate deposition, 

before the court. Therefore, it is unjust, if not unfair, to attribute any motive to 

the appellant that there was a somersault from his original stand in the written 

opinion. As a matter of fact, even in the written opinion, appellant has clearly 

stated that a definite opinion in such a situation could be formed only with the 

examination of the suspected firearm, which we have already extracted in the 

beginning. Thus and therefore, there is no somersault or shift in the stand 

taken by the appellant in the oral examination before court. 

53 



24. The impugned proceedings initiated against the appellant 

under Section 340 of CrPC are hence quashed. The appeals are allowed. 

---- SS ---- 

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Present: Justice Madan B. Lokur, and Justice R.K. Agrawal. 

MEDICAL COUNCIL OF INDIA - Appellant, 

VERSUS 

JSS MEDICAL COLLEGE & ANR. – Respondent. 

Civil Appeal No.195 Of 2016 (Arising out of SLP(C) No.9228 of 2012) 


Held, 

Since the College has also not complied with the orders passed by this 

Court in the above cited case and has permitted the students to continue their 

studies, to send a message to the College and other medical colleges, we are of 

the view that it would be appropriate if the JSS Medical College is directed to 

deposit an amount of Rs.5,00,00,000/-(Rupees five crores only) in the Registry 

of this Court within four weeks from today. 

ORDER 

(January 12, 2016 )- Leave granted. 

55 


2. We have heard learned counsel for the parties as well as learned 

counsel for the students (interveners). 

3. After hearing all the parties, we are of the opinion that in the interest 

of the students as well as the Medical Council of India and also to send a 

message across to the JSS Medical College and other medical colleges, the 

following directions are passed: 

(i) Since the students have completed 4½ years of their MBBS Course 

and are likely to complete their course some time in June this year, 

notwithstanding the decision of this Court in Medical Council of India v. JSS 

Medical College and Another [(2012) 5 SCC 628], the students may be allowed 

to complete their course and obtain a degree in case they successfully complete 

the course. This order is being passed only on peculiar facts of this case.


(ii) Since the College has also not complied with the orders passed by 

this Court in the above cited case and has permitted the students to continue 

their studies, to send a message to the College and other medical colleges, we 

are of the view that it would be appropriate if the JSS Medical College is 

directed to deposit an amount of Rs.5,00,00,000/-(Rupees five crores only) in 

the Registry of this Court within four weeks from today. We order accordingly 

and observe that the conduct of the JSS Medical College is most unfortunate. 

The amount of Rs.5,00,00,000/- (Rupees five crores only) so deposited towards 

costs shall not be recovered in any manner from any student or adjusted against 

the fees or provision of facilities for students of subsequent batches. 

(iii) Again, to send a strong message to the JSS Medical College and 

other medical colleges, we direct that for the next academic year, i.e., 2016-17, 

the JSS Medical College shall be permitted to admit only 150 students as against 

the sanctioned strength of 200. 

4. With the above directions, the appeal stands disposed of. 

56 


5. Pending application, if any, also stands disposed of. 

----SS---- 

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Present: Justice V. Gopala Gowda and Justice Amitava Roy 

VISHAL N. KALSARIA – Appellant, 

versus 

BANK OF INDIA & ORS. – Respondents. 

CRIMINAL APPEAL NO. 52 OF 2016 (Arising out of SLP (Crl.) No.8060 of 2015) 

(i) Securitisation and Reconstruction of Financial Assets and 

Enforcement of Security Interest Act, 2002 – Rent Act - SARFAESI Act 

enacted under List I of the Constitution of India thus, seeks to regulate 

asset recovery by the Banks - From a perusal of the Statements of 

Objects and Reasons of the Rent Control Act and the SARFAESI Act that 

the two Acts are meant to operate in completely different spheres - So 

far as residential tenancy rights are concerned, they are governed by 

the provisions of the Rent Control Act which occupies the field on the 

subject - Maharashtra Rent Control Act, 1999. [Para 10] 

(ii) Securitisation and Reconstruction of Financial Assets and 

57 


Enforcement of Security Interest Act, 2002 – Lease rights - Rent Act - 

Leasehold rights being created after the property has been mortgaged 

to the bank - Consent of the creditor needs to be taken - We have not 

stated anything to the effect that the tenancy created after mortgaging 

the property must necessarily be registered under the provisions of the 

Registration Act and the Stamp Act. [Para 29] 

(iii) Securitisation and Reconstruction of Financial Assets and 

Enforcement of Security Interest Act, 2002 – Rent Act - There is an 

interest of the bank in recovering the Non Performing Asset on the one 

hand, and protecting the right of the blameless tenant on the other -

58 



Rent Control Act being a social welfare legislation, must be construed as 

such - A landlord cannot be permitted to do indirectly what he has been 

barred from doing under the Rent Control Act, more so when the two 

legislations, that is the SARFAESI Act and the Rent Control Act operate 

in completely different fields - While SARFAESI Act is concerned with 

Non Performing Assets of the Banks, the Rent Control Act governs the 

relationship between a tenant and the landlord and specifies the rights 

and liabilities of each as well as the rules of ejectment with respect to 

such tenants. The provisions of the SARFAESI Act cannot be used to 

override the provisions of the Rent Control Act - Decision rendered in 

the case of Harshad Govardhan Sondagar (supra) cannot be understood 

to have held that the provisions of the SARFAESI Act override the 

provisions of the Rent Control Act, and that the Banks are at liberty to 

evict the tenants residing in the tenanted premises which have been 

offered as collateral securities for loans on which default has been done 

by the debtor/landlord. [Para 24, 28] 

Held, 

If the contentions of the learned counsel for the respondent 

Banks are to be accepted, it would render the entire scheme of all Rent 

Control Acts operating in the country as useless and nugatory. Tenants 

would be left wholly to the mercy of their landlords and in the fear that 

the landlord may use the tenanted premises as a security interest while 

taking a loan from a bank and subsequently default on it. Conversely, a 

landlord would simply have to give up the tenanted premises as a 

security interest to the creditor banks while he is still getting rent for the 

same. In case of default of the loan, the maximum brunt will be borne by 

the unsuspecting tenant, who would be evicted from the possession of 

the tenanted property by the Bank under the provisions of the SARFAESI 

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Act. Under no circumstances can this be permitted, more so in view of 

the statutory protections to the tenants under the Rent Control Act and 

also in respect of contractual tenants along with the possession of their 

properties which shall be obtained with due process of law. [Para 24] 

(iv) Transfer of Property Act, 1882 – Section 106 - Effect of nonregistration, 

or the creation of tenancy by way of an oral agreement - 

Section 106 of the Transfer of Property Act, 1882 does provide for 

registration of leases which are created on a year to year basis - 

According to Section 106 a monthly tenancy shall be deemed to be a 

tenancy from month to month and must be registered if it is reduced 

into writing - Act however, remains silent on the position of law in 

cases where the agreement is not reduced into writing - If the two 

parties are executing their rights and liabilities in the nature of a 

landlord-tenant relationship and if regular rent is being paid and 

accepted, then the mere factum of non-registration of deed will not 

make the lease itself nugatory. [Para 25] 

59 


(v) Securitisation and Reconstruction of Financial Assets and 

Enforcement of Security Interest Act, 2002 – Rent Act - Maharashtra 

Rent Control Act, 1999, Section 14 - Transfer of Property Act, 1882, 

Section 106 - Effect of non-registration, or the creation of tenancy by 

way of an oral agreement - If no written lease deed exists, then such 

tenants are required to prove that they have been in occupation of the 

premises as tenants by producing such evidence in the proceedings 

under Section 14 of the SARFAESI Act before the learned Magistrate - In 

terms of Section 55(2) of the Maharashtra Rent Control Act, 1999 in the 

instant case, , the onus to get such a deed registered is on the landlord -


Neither the landlord nor the banks can be permitted to exploit the fact 

of non registration of the tenancy deed against the tenant. [Para 25] 

(vi) Maharashtra Rent Control Act, 1999 - In terms of Section 55(2) of 

the special law in the instant case, which is the Rent Control Act, the 

onus to get such a deed registered is on the landlord. [Para 25] 

(vii) Judgement – Ratio decidendi - Random sentences have been picked 

up from the judgment and used, without any attempt to understand 

the true purport of the judgment in its entirety - It is a well settled 

position of law that a word or sentence cannot be picked up from a 

judgment to construe that it is the ratio decidendi on the relevant 

aspect of the case - It is also a well settled position of law that a 

judgment cannot be read as a statute and interpreted and applied to 

60 


fact situations. [Para 27] 

(viii) Securitisation and Reconstruction of Financial Assets and 

Enforcement of Security Interest Act, 2002, Section 35 - A non 

obstante clause (Section 35 of the SARFAESI Act) cannot be used to 

bulldoze the statutory rights vested on the tenants under the Rent 

Control Act - The expression 'any other law for the time being in force' 

as appearing in Section 35 of the SARFAESI Act cannot mean to extend 

to each and every law enacted by the Central and State legislatures - It 

can only extend to the laws operating in the same field - Once tenancy 

is created, a tenant can be evicted only after following the due process 

of law, as prescribed under the provisions of the Rent Control Act - A 

tenant cannot be arbitrarily evicted by using the provisions of the 

SARFAESI Act as that would amount to stultifying the statutory rights of 

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protection given to the tenant. [Para 30] 

(ix) Constitution of India, Article 246 (2) - Securitisation and 

Reconstruction of Financial Assets and Enforcement of Security Interest 

Act, 2002 S. 35 – If we accept the legal submissions made on behalf of 

the Banks to hold that the provisions of SARFAESI Act override the 

provisions of the various Rent Control Acts to allow a Bank to evict a 

tenant from the tenanted premise, which has become a secured asset 

of the Bank after the default on loan by the landlord and dispense with 

the procedure laid down under the provisions of the various Rent 

Control Acts - Then the legislative powers of the state legislatures are 

denuded which would amount to subverting the law enacted by the 

State Legislature- It would not only tantamount to violation of rule of 

law, but would also render a valid Rent Control statute enacted by the 

State Legislature in exercise of its legislative power under Article 246 

(2) of the Constitution of India useless and nugatory - Constitution of 

India envisages a federal feature, which has been held to be a basic 

feature of the Constitution. [Para 31, 32] 

61 


S.R. Bommai & Ors. v. Union of India, (1994)3 SCC 1 referred to. 

JUDGMENT 


V. GOPALA GOWDA, J.-(20 th January, 2016) - The applications for 

impleadment are allowed. 

2. Leave granted in all the special leave petitions. 

3. In the present batch of appeals, the broad point which requires 

our attention and consideration is whether a 'protected tenant' under The 

Maharashtra Rent Control Act, 1999 (in short the 'Rent Control Act') can be 

treated as a lessee, and whether the provisions of The Securitisation and

62 



Reconstruction of Financial Assets and Enforcement of Security Interest Act, 

2002 (in short, the 'SARFAESI Act') will override the provisions of the Rent 

Control Act. How can the right of the 'protected tenant' be preserved in cases 

where the debtor-landlord secures a loan by offering the very same property as 

a security interest either to Banks or Financial Institutions, is also the essential 

legal question to be decided by us. 

4. In all the appeals, the same question of law would arise for 

consideration. For the sake of convenience and brevity, we would refer to the 

relevant facts from the appeal arising out of S.L.P.(Crl.) No.8060 of 2015, which 

has been filed against the impugned judgment and order dated 29.11.2014 in 

M.A.No. 123 of 2011 in Case No.237 of 2010 passed by the learned Chief 

Metropolitan Magistrate, Esplanade, Mumbai, wherein the application of the 

appellant herein for impleadment as intervenor as well as stay of the order 

dated 08.04.2011 passed in Case No.237 of 2010 by the learned Magistrate, 

Esplanade, Mumbai, was dismissed. 

5. Respondent Nos. 4 and 5 had approached the Bank of India 

(Respondent No.1) (in short "the respondent Bank") for a financial loan, which 

was granted against equitable mortgage of several properties belonging to 

them, including the property in which the appellant is allegedly a tenant. The 

respondent nos. 4 and 5 failed to pay the dues within the stipulated time and 

thus, in terms of the SARFAESI Act, their account became a non- performing 

asset. On 12.03.2010, the respondent-Bank served on them notice under 

Section 13(2) of SARFAESI Act. On failure of the respondents to clear the dues 

from the loan amount borrowed by the above respondent nos. 4 and 5 within 

the stipulated statutory period of 60 days, the respondent-Bank filed an 

application before the Chief Metropolitan Magistrate, Mumbai under Section 

14 of the SARFAESI Act for seeking possession of the mortgaged properties 

which are in actual possession of the Appellant. The learned Chief Metropolitan 

Magistrate allowed the application filed by the respondent-Bank vide order 

dated 08.04.2011 and directed the Assistant Registrar, Borivali Centre of Courts 

to take possession of the secured assets. On 26.05.2011, the respondent no.4 

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served a notice on the appellant, asking him to vacate the premises in which he 

was residing within 12 days from the receipt of the notice. The appellant fearing 

eviction, filed a Rent Suit R.A.D. Suit No. 913 of 2011 before the Court of Small 

Causes, Bombay. Vide order dated 08.06.2011, the Small Causes Court allowed 

the application and passed an ad interim order of injunction in favour of the 

appellant, restraining respondent no.4 from obstructing the possession of the 

appellant over the suit premises during the pendency of the suit. In view of the 

order dated 08.06.2011, the appellant then filed an application as an intervenor 

to stay the execution of the order dated 08.04.2011 passed by the Chief 

Metropolitan Magistrate. The learned Chief Metropolitan Magistrate vide order 

dated 29.11.2014 dismissed the application filed by the appellant by placing 

reliance on a judgment of this Court rendered in the case of Harshad 

Govardhan Sondagar v. International Assets Reconstruction Co. Ltd.. & Ors. 1 . 

Dismissing the application, the learned judge held as under: 

3. ...the Hon'ble Supreme Court has held that the alleged tenant has 

to produce proof of execution of a registered instrument in his favour 

by the lessor. Where he does not produce proof of execution of a 

registered instrument in his favour and instead relies on an 

unregistered instrument or oral agreement accompanied by delivery of 

possession, the Chief Metropolitan Magistrate or the District 

Magistrate, as the case may be, will have to come to the conclusion that 

he is not entitled to the possession of the secured asset for more than a 

year from the date of the instrument or from the date of delivery of 

possession in his favour by the landlord. 

4. It is to be highlighted that the intervener did not place on 

record any registered instrument to fulcrum his contention. So, in view 

of the ratio laid down in Harshad Sondagar's case (cited supra), I hold 

that the intervener is not entitled to any protection under the law." 

6. The learned Chief Metropolitan Magistrate further held that when the 

secured creditor takes action under Section 13 or 14 of the SARFAESI Act to 

63 


'(2014) 6 SCC 1


recover the possession of the secured interest and recover the loan amount by 

selling the same in public auction, then it is not open for the Court to grant an 

injunction under Section 33 of the Rent Control Act. The learned Chief 

Metropolitan Magistrate further held that the order dated 08.06.2011 passed 

by the Small Causes Court, Mumbai cannot be said to be binding upon the 

respondent-Bank, especially in the light of the fact that it was not a party to the 

proceedings. Hence the present appeal filed by the appellant. 

7. We have heard the learned counsel for both the parties. 

8. Before we consider the submissions advanced by the learned counsel 

appearing on behalf of the parties, it is essential to first appreciate the 

provisions of law in question. 

9. The Maharashtra Rent Control Act, 1999, which repealed the 

Bombay Rent Act, 1947 was enacted by the state legislature of Maharashtra 

under Entry 18 of List II of the Seventh Schedule of the Constitution of India to 

consolidate and unify the different provisions and legislations in the State 

64 


which existed pertaining to rent and the landlord-tenant relationship. The 

Statement of objects and reasons of the Rent Control Act reads, inter alia, as 

under: 

"1 ...... At present, there are three different rent control laws, which are 

in operation in this State. All these three laws have different provisions 

and the courts or authorities which have the jurisdiction to decide 

matters arising out of these laws are also not uniform. The Procedures 

under all the three laws are also different in many of the material 

aspect. 

2. Many features of the rent control laws have outlived their utility. 

The task, therefore, of unifying, consolidating and amending the rent 

control laws in the State and to bring the rent control legislation in tune 

with the changed circumstances now, had been engaging the attention 

of the Government ........................................................ 

3. In the meantime, the Central Government announced the 

national housing policy which recommends, inter alia, to carry out 

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suitable amendments to the existing rent control laws for creating and 

enabling involvement in housing activity and for guaranteeing access to 

shelter for the poor. The National Housing Policy further recognized the 

important role of rental housing in urban areas in different income 

groups and low-income households in particular who cannot afford 

ownership house. The existing rent control legislation has resulted in a 

freeze of rent, very low returns in investment and difficulty in resuming 

possession and has adversely affected investment in rental housing and 

cause deterioration of the rental housing stock." 

On the other hand, the SARFAESI Act was enacted by the Parliament 

with a view to regulate the securitization and reconstruction of financial assets 

and enforcement of security interests against the debtor by securing the 

possession of such secured assets and recover the loan amount due to the 

Banks and Financial Institutions. The statement of objects and reasons of the 

SARFAESI Act reads as under: 

"The financial sector has been one of the key drivers in India's efforts to 

achieve success in rapidly developing its economy. While banking 

industry in India is progressively complying with the international 

prudential norms and accounting practices, there are certain areas in 

which the banking and financial sector do not have a level playing field 

as compared to other participants in the financial markets in the world. 

There is no legal provision for facilitating Securitisation of financial 

assets of banks and financial institutions. Further, unlike international 

banks, the banks and financial institutions in India do not have power to 

take possession of securities and sell them. Our existing legal framework 

relating to commercial transactions has not kept pace with the changing 

commercial practices and financial sector reforms. This has resulted in 

slow pace of recovery of defaulting loans and mounting levels of nonperforming 

assets of banks and financial institutions. Narasimham 

Committee I and II and Andhyarujina Committee constituted by the 

Central Government for the purpose of examining banking sector 

65 



reforms have considered the need for changes in the legal system in 

respect of these areas." (emphasis laid by this Court) 

10. The SARFAESI Act enacted under List I of the Constitution of 

India thus, seeks to regulate asset recovery by the Banks. It becomes clear from 

a perusal of the Statements of Objects and Reasons of the Rent Control Act and 

66 


the SARFAESI Act that the two Acts are meant to operate in completely 

different spheres. So far as residential tenancy rights are concerned, they are 

governed by the provisions of the Rent Control Act which occupies the field on 

the subject. 

11. The controversy in the instant case arises squarely out of the 

interpretation of a decision of this Court in the case of Harshad Govardhan 

Sondagar (supra). The fact situation facing the court in that case was similar to 

the one in the instant case. The premises which the appellants therein claimed 

to be the tenants of had been mortgaged to different banks as collateral 

security to such borrowed amount by the landlord/debtor. On default of 

payment of the borrowed amount by the landlords/debtors, the banks made 

application under Section 14(1) of the SARFAESI Act to the Chief Metropolitan 

Magistrate, praying that the possession of the premises be handed over to 

them in accordance with the provisions of the SARFAESI Act. 

This Court in the case of Harshad Govardhan Sondagar (supra) held as under: 

"34 In our view, therefore, the High Court has not properly 

appreciated the judgment of this Court in Transcore (supra) and has lost 

sight of the opening words of sub-section (1) of Section 13 of the 

SARFAESI Act which state that notwithstanding anything contained in 

Section 69 or Section 69A of the Transfer of Property Act, 1882, any 

security interest created in favour of any secured creditor may be 

enforced, without the intervention of the court or tribunal, by such 

creditor in accordance with the provisions of the Act. The High Court 

has failed to appreciate that the provisions of Section 13 of the 

SARFAESI Act thus override the provisions of Section 69 or Section 69A 

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of the Transfer of Property Act, but does not override the provisions of 

the Transfer of Property Act relating to the rights of a lessee under a 

lease created before receipt of a notice under sub-Section (2) of Section 

13 of the SARFAESI Act by a borrower. Hence, the view taken by the 

Bombay High Court in the impugned judgment as well as in M/s Trade 

Well (supra) so far as the rights of the lessee in possession of the 

secured asset under a valid lease made by the mortgagor prior to the 

creation of mortgage or after the creation of mortgage in accordance 

with Section 65A of the Transfer of Property Act is not correct and the 

impugned judgment of the High Court insofar it takes this view is set 

aside." (emphasis laid by this Court) 

12. Mr. Pallav Shishodia, the learned senior counsel appearing on behalf 

of the appellant in the appeal @ out of S.L.P. (C) No. 8060 of 2015 places 

reliance on the decision of this Court in Harshad Govardhan Sondagar (supra), 

to contend that prior tenancy in respect of the mortgaged property to the Bank 

is protected in terms of the Rent Control Act. The relevant paragraphs of the 

decision are quoted as under: 

"25. The opening words of sub-section (1) of Section 14 of the SARFAESI 

Act also provides that if any of the secured asset is required to be sold 

or transferred by the secured creditor under the provisions of the Act, 

the secured creditor may take the assistance of the Chief Metropolitan 

Magistrate or the District Magistrate. Where, therefore, such a request 

is made by the secured creditor and the Chief Metropolitan Magistrate 

or the District Magistrate finds that the secured asset is in possession of 

a lessee but the lease under which the lessee claims to be in possession 

of the secured asset stands determined in accordance with 4 Section 

111 of the Transfer of Property Act, the Chief Metropolitan Magistrate 

or the District Magistrate may pass an order for delivery of possession 

of secured asset in favour of the secured creditor to enable the secured 

creditor to sell and transfer the same under the provisions of the 

SARFAESI Act. Subsection (6) of Section 13 of the SARFAESI Act provides 

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that any transfer of secured asset after taking possession of secured 

asset by the secured creditor shall vest in the transferee all rights in, or 

in relation to, the secured asset transferred as if the transfer had been 

made by the owner of such secured asset. In other words, the 

transferee of a secured asset will not acquire any right in a secured 

asset under sub-section (6) of Section 13 of the SARFAESI Act, unless it 

has been effected after the secured creditor has taken over possession 

of the secured asset. Thus, for the purpose of transferring the secured 

asset and for realizing the secured debt, the secured creditor will 

require the assistance of the Chief Metropolitan Magistrate or the 

District Magistrate for taking possession of a secured asset from the 

lessee where the 4 lease stands determined by any of the modes 

mentioned in Section 111 of the Transfer of Property Act. 

32. When we read sub-section (1) of Section 17 of the SARFAESI Act, we 

find that under the said sub-section "any person (including borrower)", 

aggrieved by any of the measures referred to in sub-section (4) of 

Section 13 taken by the secured creditor or his authorised officer under 

the Chapter, may apply to the Debts Recovery Tribunal having 

jurisdiction in the matter within 45 days from the date on which such 

measures had been taken. We agree with the Mr. Vikas Singh that the 

words 'any person' are wide enough to include a lessee also. It is also 

possible to take a view that within 45 days from the date on which a 

possession notice is delivered or affixed or published under sub-rules (1) 

and (2) of Rule 8 of the Security Interest (Enforcement) Rules, 2002, a 

lessee may file an application before the Debts Recovery Tribunal 

having jurisdiction in the matter for restoration of possession in case he 

is dispossessed of the secured asset. But when we read subsection (3) 

of Section 17 of the SARFAESI Act, we find that the Debts Recovery 

Tribunal has powers to restore 5 possession of the secured asset to the 

borrower only and not to any person such as a lessee. Hence, even if 

the Debt Recovery Tribunal comes to the conclusion that any of the 

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measures referred to in sub-section (4) of Section 13 taken by the 

secured creditor are not in accordance with the provisions of the Act, it 

cannot restore possession of the secured asset to the lessee. Where, 

therefore, the Debts Recovery Tribunal considers the application of the 

lessee and comes to the conclusion that the lease in favour of the lessee 

was made prior to the creation of mortgage or the lease though made 

after the creation of mortgage is in accordance with the requirements 

of Section 65A of the Transfer of Property Act and the lease was valid 

and binding on the mortgagee and the lease is yet to be determined, 

the Debts Recovery Tribunal will not have the power to restore 

possession of the secured asset to the lessee. In our considered opinion, 

therefore, there is no remedy available under Section 17 of the 

SARFAESI Act to the lessee to protect his lawful possession under a valid 

lease." 

13. The learned senior counsel contends that it is a settled position of 

law that in the absence of a valid document of lease for more than one year or 

in case of an invalid lease deed, the relation of tenancy between a landlord and 

the tenant is still created due to delivery of possession to the tenant and 

payment of rent to the landlord-owner and such tenancy is deemed to be a 

tenancy from month to month in respect of such property. The learned senior 

counsel further places reliance on a three Judge Bench decision of this Court in 

Anthony v. K.C. Ittoop & Sons & Ors. 2 , wherein it was held as under: 

"…….. so far as the instrument of lease is concerned there is no 

scope for holding that appellant is a lessee by virtue of the said 

instrument. The court is disabled from using the instrument as 

evidence... 

But this above finding does not exhaust the scope of the issue 

whether appellant is a lessee of the building. A lease of immovable 

property is defined in Section 105 of the TP Act. A transfer of a right to 

enjoy a property in consideration of a price paid or promised to be 

69 


'(2000) 6 SCC 394

70 



rendered periodically or on specified occasions is the basic fabric for a 

valid lease. The provision says that such a transfer can be made 

expressly or by implication. Once there is such a transfer of right to 

enjoy the property a lease stands created. What is mentioned in the 

three paragraphs of the first part of Section 107 of the TP Act are only 

thedifferent modes of how leases are created ….. 

Thus, de hors the instrument parties can create a lease as 

envisaged in the second paragraph of Section 107 which reads thus: All 

other leases of immovable property may be made either by a registered 

instrument or by oral agreement accompanied by delivery of 

possession. 

When lease is a transfer of a right to enjoy the property and 

such transfer can be made expressly or by implication, the mere fact 

that an unregistered instrument came into existence would not stand in 

the way of the court to determine whether there was in fact a lease 

otherwise than through such deed." 

(emphasis laid by this Court) 

14. The learned senior counsel further contends that where a lease 

deed or document of tenancy in respect of the property in question is for a 

period exceeding one year, but such document has not been registered, then, 

by virtue of payment of rent, the relationship of tenancy between a landlord 

and the tenant comes into existence and in such cases, the tenant must be 

deemed to be a tenant from month to month and the same would amount to a 

tenancy from month to month. Thus, in the instant case, the tenancy of the 

appellants in respect of the property in question which is the secured asset of 

the Bank being from month to month would also be protected under the 

provisions of the Rent Control Act. 

15. The learned senior counsel further contends that according to 

the decision of this Court in the case of Harshad Govardhan Sondagar (supra), 

if a person claiming to be a tenant or lessee either produces a registered 

agreement or relies on an oral agreement accompanied by delivery of 

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possession, then such tenancy/possession of the property with the appellant as 

tenant needs to be protected. It is further contended that the Harshad 

Govardhan Sondagar (supra) has clearly held that the tenancy claims of the 

tenants are to be decided by the Chief Metropolitan Magistrate in accordance 

with any other law that may be relevant after giving an opportunity of hearing 

to the persons who claim tenancy in respect of such property. The term "any 

other law that may be relevant" clearly indicates a reference to the State Rent 

Protection laws, which in the case at hand is the Rent Control Act. Thus, the 

protection of the State Rent Control legislation is also to be considered by the 

learned magistrate while deciding an application filed by the Bank under 

Section 14 of the SARFAESI Act. 

16. On the other hand, Mr. Amarendra Sharan, learned senior counsel 

appearing on behalf of the respondents in Crl.A. @ S.L.P. (Crl) Nos. 6941, 6944 

and 6945 of 2015 contends that the pith and substance of the central 

enactment in the instant case, which is the SARFAESI Act needs to be 

appreciated. Proper implementation of the provisions of the SARFAESI Act is in 

the larger interest of the nation. The learned senior counsel places reliance on a 

Constitution Bench decision of this Court in the case of Ishwari Khetan Sugar 

Mills Pvt. Ltd.. & Ors. v. State of Uttar Pradesh & Ors. 3 , wherein it was held as 

under: 

"13. If in pith and substance a legislation falls within one entry 

or the other but some portion of the subject-matter of the legislation 

incidentally trenches upon and might enter a field under another List, 

the Act as a whole would be valid notwithstanding such incidental 

trenching. This is well established by a catena of decisions [see Union of 

India v. H.S. Dhillon and Kerala State Electricity Board v. Indian 

Aluminium Co.] After referring to these decisions in State of Karnataka 

v. Ranganatha Reddy and Anr. Untwalia, J. speaking for the Constitution 

Bench has in terms stated that the pith and substance of the Act has to 

be looked into and an incidental trespass would not invalidate the law. 

71 


3. (1980) 4 SCC 136, 1980 AIR 1955, 1980 SCR (3) 331

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The challenge in that case was to the Nationalisation of contract 

carriages by the Karnataka State, inter alia, on the ground that the 

statute was invalid as it was a legislation on the subject of interstate 

trade and commerce. Repelling this contention the Court unanimously 

held that in pith and substance the impugned legislation was for 

acquisition of contract carriages and not an Act which deals with inter- 

State trade and commerce." 

17. The learned senior counsel further contends that the SARFAESI 

Act was enacted by the Parliament under Entry 45 of List I of the Constitution of 

India. It is a special Act with a special purpose and procedure laid down for the 

recovery of the secured asset of the debtor by the Bank to recover the amount 

due to it, and thus, any encroachment upon this Act should not be permitted, as 

it would defeat the laudable object of the Act, which has been enacted keeping 

in view the larger public interest. 

18. Mr. Vikas Singh, the learned senior counsel appearing on behalf 

of the respondent State Bank of India in the appeal arising out of S.L.P. (C) No. 

28040 of 2015 contends that the SARFAESI Act cannot be allowed to fail at the 

hands of the present appellants, who have no registered instrument of lease. 

19. The learned senior counsel further contends that in light of the 

decision of this Court in the case of Harshad Govardhan Sondagar (supra), the 

present case is barred by res judicata. He places reliance on the three Judge 

Bench decision of this Court in the case of Bhanu Kumar Jain v. Archana Kumar 

& Anr. 4 , wherein it was held as under: 

"It is now well-settled that principles of res judicata applies in 

different stages of the same proceedings. 

19. In Y.B. Patil (supra) it was held: 

"4... It is well settled that principles of res judicata can be 

invoked not only in separate subsequent proceedings, they also 

get attracted in subsequent stage of the same proceedings. Once 

4. (2005) 1 SCC 787 

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an order made in the course of a proceeding becomes final, it 

would be binding at the subsequent state of that proceeding... " 

20. In Vijayabai (supra), it was held: 

"13. We find in the present case the Tahsildar reopened 

the very question which finally stood concluded, viz., whether 

Respondent 1 was or was not the tenant of the suit land. He 

further erroneously entered into a new premise of reopening the 

question of validity of the compromise which could have been in 

issue if at all in appeal or revision by holding that compromise was 

arrived at under pressure and allurement. How can this question 

be up for determination when this became final under this very 

same statute?..." 

21. Yet again in Hope Plantations Ltd. (supra), this Court laid 

down the law in the following terms: 

"17... One important consideration of public policy is that 

the decisions pronounced by courts of competent jurisdiction 

should be final, unless they are modified or reversed by appellate 

authorities; and the other principle is that no one should be made 

to face the same kind of litigation twice over, because such a 

process would be contrary to considerations of fair play and 

justice." 

20. Mr. M.T. George, the learned counsel appearing on behalf of the 

Bank in the appeal arising out of S.L.P. (C) No. 12772 of 2015 contends that the 

tenancy has not been determined conclusively, as the documents produced on 

record to prove the relationship of tenancy are not registered and do not hold 

much water. Mr. Rajeev Kumar Pandey, the learned counsel appearing on 

behalf of the respondent Bank in the appeal arising out of S.L.P. (C) No. 31080 

of 2015 submits that the property in question was mortgaged before it was 

leased. Such a lease would thus, not entitle the lessee to stop the bank from 

taking possession over the property which was mortgaged to it. 

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21. The other learned counsel appearing on behalf of other Banks 

in the connected appeals adopted the arguments advanced by the aforesaid 

learned senior counsel appearing on behalf of some of the Banks. It was also 

contended that the appellants in the connected appeals have not been able to 

produce sufficient documentary evidence to prove that they are tenants in 

respect of the properties in question in the proceedings under Section 14 of the 

SARFAESI Act and hence, they have no locus standi to prefer the above appeals 

questioning the correctness of the Order passed by the learned Magistrate. 

We have carefully considered the above rival legal submissions made 

on behalf of the parties and answer the same as hereunder: 

22. The SARFAESI Act, which came into force from 21.06.2002, was 

enacted to provide procedures to the Banks to recover their security interest 

from the debtors and their collateral security assets as provided under the 

provisions of the Act. The scope of the Act was explained by this Court in the 

case of Transcore v. Union of India & Anr. 5 as under: 

"12. The NPA Act, 2002 is enacted to regulate securitization and 

reconstruction of financial assets and enforcement of security interest 

and for matters connected therewith. The NPA Act enables the banks 

and FIs to realize long-term assets, manage problems of liquidity, assetliability 

mismatch and to improve recovery of debts by exercising 

powers to take possession of securities, sell them and thereby reduce 

non-performing assets by adopting measures for recovery and 

reconstruction. The NPA Act further provides for setting up of asset 

reconstruction companies which are empowered to take possession of 

secured assets of the borrower including the right to transfer by way of 

lease; assignment or sale. The said Act also empowers the said asset 

reconstruction companies to take over the management of the 

business of the borrower ….. 

13. Non-performing assets (NPA) are a cost to the economy. 

5 (2007-1)145 P.L.R. 222 (S.C.), (2008) 1 SCC 125 

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When the Act was enacted in 2002, the NPA stood at Rs 1.10 lakh 

crores. This was a drag on the economy. Basically, NPA is an account 

which becomes non-viable and non-performing in terms of the 

guidelines given by RBI. As stated in the Statement of Objects and 

Reasons, NPA arises on account of mismatch between asset and 

liability. The NPA account is an asset in the hands of the bank or FI. It 

represents an amount receivable and realizable by the banks or FIs. In 

that sense, it is an asset in the hands of the secured creditor. Therefore, 

the NPA Act, 2002 was primarily enacted to reduce the non- performing 

assets by adopting measures not only for recovery but also for 

reconstruction. Therefore, the Act provides for setting up of asset 

reconstruction companies, special purpose vehicles, asset management 

companies, etc. which are empowered to take possession of secured 

assets of the borrower including the right to transfer by way of lease, 

assignment or sale. It also provides for realization of the secured assets. 

It also provides for takeover of the management of the borrower 

company." 

Thus, it becomes clear that the SARFAESI Act is meant to operate as a tool for 

banks and ensures a smooth debt recovery process. The provisions of SARFAESI 

Act make its purport amply clear, specifically under the provisions of Sections 

13(2) and 13(4) of the Act, which read as under: 

"13. Enforcement of Security interest.- 

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(2) Where any borrower, who is under a liability to a secured 

creditor under a security agreement, makes any default in repayment 

of secured debt or any instalment thereof, and his account in respect of 

such debt is classified by the secured creditor as non-performing asset, 

then, the secured creditor may require the borrower by notice in 

writing to discharge in full his liabilities to the secured creditor within 

sixty days from the date of notice failing which the secured creditor 

shall be entitled to exercise all or any of the rights under sub-section 

(4).


" (4) In case the borrower fails to discharge his liability in full 

within the period specified in sub-section (2), the secured creditor may 

take recourse to one or more of the following measures to recover his 

secured debt, namely:-- 

(a) take possession of the secured assets of the borrower 

including the right to transfer by way of lease, assignment or sale for 

realising the secured asset " 

Further, the provision under Section 35 of the SARFAESI Act provides 

that it shall override all other laws, which is quoted as hereunder: 

76 


"35. The provisions of this Act to override other laws.- The 

provisions of this Act shall have effect, notwithstanding anything 

inconsistent therewith contained in any other law for the time being in 

force or any instrument having effect by virtue of any such law." 

Providing a smooth and efficient recovery procedure to enable the banks to 

recover the Non Performing Assets is a laudable object indeed, which needs to 

be ensured for the development of the economy of the Country. What has 

complicated the matters, however, is the clash of this laudable object with 

another laudable object, namely, to secure the rights of the tenants under the 

various Rent Control Acts. The history of these Rent Control Acts can be traced 

to as far back as the Second World War. At that time, due to the massive 

inflation and shortage of commodities, not only had the cost of living risen 

exponentially, the tenants were also often left to the mercy of the landlords as 

far as evictions or prices of rent were concerned. Rent Control Acts have been 

enacted by the different state legislatures to secure the rights of the weaker 

sections of the society, viz., the tenants. Justice Krishna Iyer aptly observed in 

the case of Miss Santosh Mehta v. Om Prakash & Ors. 6 : 

"2. Rent Control laws are basically designed to protect tenants 

because scarcity of accommodation is a nightmare for those who own 

6. (1980) 3 SCC 610 

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none and if evicted, will be helpless." 

23. The preamble of the Rent Control Act reads as under: 

"An Act to unify, consolidate and amend the law relating to the 

control of rent and repairs of certain premises and of eviction and for 

encouraging the construction of new houses by assuring a fair return on 

the investment by landlords and to provide for the matters connected 

with the purposes aforesaid" 

It becomes clear from a perusal of the preamble of the Act that the ultimate 

object behind the enactment of this legislation is to control and regulate the 

rate of rent so that unnecessary hardship is not caused to the tenant, and also 

to provide protection to the tenants against arbitrary and unreasonable 

evictions from the possession of the property. The protection of the tenants 

against unjust evictions becomes even more pronounced when examined in the 

light of Section 15 of the Rent Control Act, which reads as under: 

"15. No ejectment ordinarily to be made if tenant pays or is 

ready and willing to pay standard rent and permitted increases.(1) A 

landlord shall not be entitled to the recovery of possession of any 

premises so long as the tenant pays, or is ready and willing to pay, the 

amount of the, standard rent and permitted increases, if any, and 

observes and performs the other conditions of the tenancy, in so far as 

they are consistent with the provisions of this Act." 

Section 15, thus, restricts the right of a landlord to recover possession of the 

tenanted premises from a tenant. 

24. When we understand the factual matrix in the backdrop of the 

objectives of the above two legislations, the controversy in the instant case 

assumes immense significance. There is an interest of the bank in recovering the 

Non Performing Asset on the one hand, and protecting the right of the 

blameless tenant on the other. The Rent Control Act being a social welfare 

legislation, must be construed as such. A landlord cannot be permitted to do 

indirectly what he has been barred from doing under the Rent Control Act, 

more so when the two legislations, that is the SARFAESI Act and the Rent 

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Control Act operate in completely different fields. While SARFAESI Act is 

concerned with Non Performing Assets of the Banks, the Rent Control Act 

governs the relationship between a tenant and the landlord and specifies the 

rights and liabilities of each as well as the rules of ejectment with respect to 

such tenants. The provisions of the SARFAESI Act cannot be used to override the 

provisions of the Rent Control Act. If the contentions of the learned counsel for 

the respondent Banks are to be accepted, it would render the entire scheme of 

all Rent Control Acts operating in the country as useless and nugatory. Tenants 

would be left wholly to the mercy of their landlords and in the fear that the 

landlord may use the tenanted premises as a security interest while taking a 

loan from a bank and subsequently default on it. Conversely, a landlord would 

simply have to give up the tenanted premises as a security interest to the 

creditor banks while he is still getting rent for the same. In case of default of the 

loan, the maximum brunt will be borne by the unsuspecting tenant, who would 

be evicted from the possession of the tenanted property by the Bank under the 

provisions of the SARFAESI Act. Under no circumstances can this be permitted, 

more so in view of the statutory protections to the tenants under the Rent 

Control Act and also in respect of contractual tenants along with the possession 

of their properties which shall be obtained with due process of law. 

25. The issue of determination of tenancy is also one which is well 

settled. While Section 106 of the Transfer of Property Act, 1882 does provide 

for registration of leases which are created on a year to year basis, what needs 

to be remembered is the effect of non-registration, or the creation of tenancy 

by way of an oral agreement. According to Section 106 of the Transfer of 

Property Act, 1882, a monthly tenancy shall be deemed to be a tenancy from 

month to month and must be registered if it is reduced into writing. The 

Transfer of Property Act, however, remains silent on the position of law in cases 

where the agreement is not reduced into writing. If the two parties are 

executing their rights and liabilities in the nature of a landlord-tenant 

relationship and if regular rent is being paid and accepted, then the mere 

factum of nonregistration of deed will not make the lease itself nugatory. If no 

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written lease deed exists, then such tenants are required to prove that they 

have been in occupation of the premises as tenants by producing such evidence 

in the proceedings under Section 14 of the SARFAESI Act before the learned 

Magistrate. Further, in terms of Section 55(2) of the special law in the instant 

case, which is the Rent Control Act, the onus to get such a deed registered is on 

the landlord. In light of the same, neither the landlord nor the banks can be 

permitted to exploit the fact of non registration of the tenancy deed against the 

tenant. 

Further, the learned counsel for the appellants rightly placed reliance 

on a three Judge Bench decision of this Court in Anthony (supra). At the cost of 

repetition, in that case it was held as under: 

"But the above finding does not exhaust the scope of the issue 

whether the appellant was a lessee of the building. A lease of 

immovable property is defined in Section 105 of the TP Act. A transfer 

of a right to enjoy a property in consideration of a price paid or 

promised to be rendered periodically or on specified occasions is the 

basic fabric for a valid lease. The provision says that such a transfer can 

be made expressly or by implication. Once there is such a transfer of 

right to enjoy the property a lease stands created. What is mentioned in 

the three paragraphs of the first part of Section 107 of the TP Act are 

only the different modes of how leases are created. The first paragraph 

has been extracted above and it deals with the mode of creating the 

particular kinds of leases mentioned therein. The third paragraph can 

be read along with the above as it contains a condition to be complied 

with if the parties choose to create a lease as per a registered 

instrument mentioned therein. 

All other leases, if created, necessarily fall within the ambit of 

the second paragraph. Thus, de hors the instrument parties can create 

a lease as envisaged in the second paragraph of Section 107 which 

reads thus: All other leases of immovable property may be made either 

by a registered instrument or by oral agreement accompanied by 

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delivery of possession." 

26. It further saddens us to see the manner in which the decision in 

the case of Harshad Govardhan Sondagar (supra) has been misinterpreted to 

create this confusion. Random sentences have been picked up from the 

judgment and used, without any attempt to understand the true purport of the 

judgment in its entirety. 

27. It is a well settled position of law that a word or sentence 

cannot be picked up from a judgment to construe that it is the ratio decidendi 

on the relevant aspect of the case. It is also a well settled position of law that a 

judgment cannot be read as a statute and interpreted and applied to fact 

situations. An eleven Judge Bench of this Court in the case of H.H. 

Maharajadhiraja Madhav Rao Jivaji Rao Scindia Bahadur of Gwalior & Ors. v. 

Union of India 7 held as under: 

"It is difficult to regard a word, a clause or a sentence occurring 

in a judgment of this Court, divorced from its context, as containing a 

full exposition of the law on a question when the question did not even 

fall to be answered in that judgment." 

The same view was reiterated by a Division Bench of this Court in the case of 

Commissioner of Income Tax v. Sun Engineering Works (P.) Ltd.. 8 Further, a 

three Judge Bench of this Court In the case of Union of India v. Dhanawanti 

Devi 9 held as under: 

"9. It is not everything said by a Judge while giving judgment 

that constitutes a precedent. The only thing in a judge's decision 

binding a party is the principle upon which the case is decided and for 

this reason it is important to analyse a decision and isolate from it the 

ratio decidendi. According to the well-settled theory of precedents, 

every decision contains three basic postulates - (i) findings of material 

7 

8 

9 

1971 AIR 530, 1971 SCR (3) 9 , (1971) 1 SCC 85 

1992 Supp 1 SCR 732 , (1992) 4 SCC 363 

(1996) 6 SCC 44 

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facts, direct and inferential. An inferential finding of facts is the 

inference which the Judge draws from the direct, or perceptible facts; 

(ii) statements of the principles of law applicable to the legal problems 

disclosed by the facts; and (iii) judgment based on the combined effect 

of the above. A decision is only an authority for what it actually decides. 

What is of the essence in a decision is its ratio and not every 

observation found therein nor what logically follows from the various 

observations made in the judgment. Every judgment must be read as 

applicable to the particular facts proved, or assumed to be proved, 

since the generality of the expressions which may be found there is not 

intended to be exposition of the whole law, but governed and qualified 

by the particular facts of the case in which such expressions are to be 

found. It would, therefore, be not profitable to extract a sentence here 

and there from the judgment and to build upon it because the essence 

of the decision is its ratio and not every observation found therein. The 

enunciation of the reason or principle on which a question before a 

court has been decided is alone binding as a precedent. The concrete 

decision alone is binding between the parties to it, but it is the abstract 

ratio decidendi, ascertained on a consideration of the judgment in 

relation to the subject matter of the decision, which alone has the force 

of law and which, when it is clear what it was, is binding. It is only the 

principle laid down in the judgment that is binding law under Article 

141 of the Constitution. A deliberate judicial decision arrived at after 

hearing an argument on a question which arises in the case or is put in 

issue may constitute a precedent, no matter for what reason, and the 

precedent by long recognition may mature into rule of stare decisis. It is 

the rule deductible from the application of law to the facts and 

circumstances of the case which constitutes its ratio decidendi. 

10. Therefore, in order to understand and appreciate the 

binding force of a decision it is always necessary to see what were the 

facts in the case in which the decision was given and what was the point 

81 


82 



which had to be decided. No judgment can be read as if it is a statute. A 

word or a clause or a sentence in the judgment cannot be regarded as a 

full exposition of law. Law cannot afford to be static and therefore, 

Judges are to employ an intelligent technique in the use of precedents" 


28. The decision of this Court rendered in the case of Harshad 

Govardhan Sondagar (supra) cannot be understood to have held that the 

provisions of the SARFAESI Act override the provisions of the Rent Control Act, 

and that the Banks are at liberty to evict the tenants residing in the tenanted 

premises which have been offered as collateral securities for loans on which 

default has been done by the debtor/landlord. 

29. As far as granting leasehold rights being created after the 

property has been mortgaged to the bank, the consent of the creditor needs to 

be taken. We have already taken this view in the case of Harshad Govardhan 

Sondagar (supra). We have not stated anything to the effect that the tenancy 

created after mortgaging the property must necessarily be registered under the 

provisions of the Registration Act and the Stamp Act. 

30. It is a settled position of law that once tenancy is created, a 

tenant can be evicted only after following the due process of law, as prescribed 

under the provisions of the Rent Control Act. A tenant cannot be arbitrarily 

evicted by using the provisions of the SARFAESI Act as that would amount to 

stultifying the statutory rights of protection given to the tenant. A non obstante 

clause (Section 35 of the SARFAESI Act) cannot be used to bulldoze the 

statutory rights vested on the tenants under the Rent Control Act. The 

expression 'any other law for the time being in force' as appearing in Section 35 

of the SARFAESI Act cannot mean to extend to each and every law enacted by 

the Central and State legislatures. It can only extend to the laws operating in 

the same field. Interpreting the non obstante clause of the SARFAESI Act, a 

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three Judge Bench of this Court in the case of Central Bank of India v. State of 

Kerala & Ors. 10 has held as under: 

"18. The DRT Act and Securitisation Act were enacted by 

Parliament in the backdrop of recommendations made by the Expert 

Committees appointed by the Central Government for examining the 

causes for enormous delay in the recovery of dues of banks and 

financial institutions which were adversely affecting fiscal reforms. 

The committees headed by Shri T. Tiwari and Shri M. Narasimham 

suggested that the existing legal regime should be changed and 

special adjudicatory machinery be created for ensuring speedy 

recovery of the dues of banks and financial institutions. Narasimham 

and Andhyarujina Committees also suggested enactment of new 

legislation for securitisation and empowering the banks etc. to take 

possession of the securities and sell them without intervention of the 

Court. 

XXX XXX XXX 

110. The DRT Act facilitated establishment of two-tier 

system of Tribunals. The Tribunals established at the first level have 

been vested with the jurisdiction, powers and authority to summarily 

adjudicate the claims of banks and financial institutions in the matter of 

recovery of their dues without being bogged down by the technicalities 

of the Code of civil Procedure. The Securitisation Act drastically 

changed the scenario inasmuch as it enabled banks, financial 

institutions and other secured creditors to recover their dues without 

intervention of the Courts or Tribunals. The Securitisation Act also made 

provision for registration and regulation of securitisation/reconstruction 

companies, securitisation of financial assets of banks and financial 

institutions and other related provisions. 

83 


(2009) 4 SCC 94

84 



111. However, what is most significant to be noted is that 

there is no provision in either of these enactments by which first charge 

has been created in favour of banks, financial institutions or secured 

creditors qua the property of the borrower. 

112. Under Section 13(1) of the Securitisation Act, limited 

primacy has been given to the right of a secured creditor to enforce 

security interest vis-a-vis Section 69 or Section 69A of the Transfer of 

Property Act. In terms of that sub-Section, a secured creditor can 

enforce security interest without intervention of the Court or Tribunal 

and if the borrower has created any mortgage of the secured asset, the 

mortgagee or any person acting on his behalf cannot sell the mortgaged 

property or appoint a receiver of the income of the mortgaged property 

or any part thereof in a manner which may defeat the right of the 

secured creditor to enforce security interest. This provision was enacted 

in the backdrop of Chapter VIII of Narasimham Committee's 2nd Report 

in which specific reference was made to the provisions relating to 

mortgages under the Transfer of Property Act. 

113. In an apparent bid to overcome the likely difficulty faced 

by the secured creditor which may include a bank or a financial 

institution, Parliament ncorporated the non obstante clause in 

Section 13 and gave primacy to the right of secured creditor vis a vis 

other mortgagees who could exercise rights under Sections 69 or 69A of 

the Transfer of Property Act. However, this primacy has not been 

extended to other provisions like Section 38C of the Bombay Act and 

Section 2 6B of the Kerala Act by which first charge has been created in 

favour of the State over the property of the dealer or any person liable 

to pay the dues of sales tax, etc. 

….. 

116. The non obstante clauses contained in Section 34(1) of the 

DRT Act and Section 35 of the Securitisation Act give overriding effect to 

the provisions of those Acts only if there is anything inconsistent 

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contained in any other law or instrument having effect by virtue of any 

other law. In other words, if there is no provision in the other 

enactments which are inconsistent with the DRT Act or Securitisation 

Act, the provisions contained in those Acts cannot override other 

legislations." (emphasis laid by this Court) 

31. If the interpretation of the provisions of SARFAESI Act as submitted 

by the learned senior counsel appearing on behalf of the Banks is accepted, it 

would not only tantamount to violation of rule of law, but would also render a 

valid Rent Control statute enacted by the State Legislature in exercise of its 

legislative power under Article 246 (2) of the Constitution of India useless and 

nugatory. The Constitution of India envisages a federal feature, which has been 

held to be a basic feature of the Constitution, as has been held by the seven 

Judge Bench of this Court in the case of S.R. Bommai & Ors. v. Union of India 11 , 

wherein Justice K. Ramaswamy in his concurring opinion elaborated as under: 

"247. Federalism envisaged in the Constitution of India is a 

basic feature in which the Union of India is permanent within the 

territorial limits set in Article 1 of the Constitution and is 

indestructible. The State is the creature of the Constitution and the 

law made by Articles 2 to 4 with no territorial integrity, but a 

permanent entity with its boundaries alterable by a law made by 

Parliament. Neither the relative importance of the legislative 

entries in Schedule VII, Lists I and II of the Constitution, nor the 

fiscal control by the Union per se are decisive to conclude that the 

Constitution is unitary. The respective legislative powers are 

traceable to Articles 245 to 254 of the Constitution. The State qua 

the Constitution is federal in structure and independent in its 

exercise of legislative and executive power. However, being the 

creature of the Constitution the State has no right to secede or 

claim sovereignty. Qua the Union, State is quasi-federal. Both are 

coordinating institutions and ought to exercise their respective 

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11 (1994) 3 SCC 1

86 



powers with adjustment, understanding and accommodation to 

render socio-economic and political justice to the people, to 

preserve and elongate the constitutional goals including secularism. 

248. The preamble of the Constitution is an integral part of 

the Constitution. Democratic form of Government, federal 

structure, unity and integrity of the nation, secularism, socialism, 

social justice and judicial review are basic features of the 

Constitution." (emphasis laid by this Court) 

32. In view of the above legal position, if we accept the legal 

submissions made on behalf of the Banks to hold that the provisions of 

SARFAESI Act override the provisions of the various Rent Control Acts to allow a 

Bank to evict a tenant from the tenanted premise, which has become a secured 

asset of the Bank after the default on loan by the landlord and dispense with 

the procedure laid down under the provisions of the various Rent Control Acts 

and the law laid down by this Court in catena of cases, then the legislative 

powers of the state legislatures are denuded which would amount to subverting 

the law enacted by the State Legislature. Surely, such a situation was not 

contemplated by the Parliament while enacting the SARFAESI Act and therefore 

the interpretation sought to be made by the learned counsel appearing on 

behalf of the Banks cannot be accepted by this Court as the same is wholly 

untenable in law. 

33. We are unable to agree with the contentions advanced by the 

learned counsel appearing on behalf of the respondent Banks. 

34. In view of the foregoing, the impugned judgments and orders 

passed by the High Court/ Chief Metropolitan Magistrate are set aside and the 

appeals are allowed. We further direct that the amounts which are in deposit 

pursuant to the conditional interim order of this Court towards rent either 

before the Chief Metropolitan Magistrate/Magistrate Court or with the 

concerned Banks, shall be adjusted by the concerned Banks towards the debt 

due from the debtors/landlords in respect of the appellants in these appeals. 

The enhanced rent by way of conditional interim order shall be continued to be 

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paid to the respective Banks, which amount shall also be adjusted towards 

debts of the debtors/landlords. All the pending applications are disposed of. 

---- SS ---- 

87 





Present: Justice T.S. Thakur, CJI, Justice A.K. Sikri and Justice R. 

Banumathi. 

BOBBILI RAMAKRISHNA RAJU YADAV & Ors. – Appellants, 

Versus 

STATE OF ANDHRA PRADESH rep. By its public prosecutor High Court 

of A.P. Hyderabad, A.P.. & Anr. - Respondents. 

Criminal Appeal no. 45 OF 2016 

(Arising out of SLP (Crl.) No. 9344 of 2014) 

Dowry Prohibition Act 1961, Section 6 - If the dowry amount or articles 

of married woman was placed in the custody of his husband or in-laws, 

88 


they would be deemed to be trustees of the same - The person 

receiving dowry articles or the person who is dominion over the same, 

as per Section 6 of the Dowry Prohibition Act, is bound to return the 

same within three months after the date of marriage to the woman in 

connection with whose marriage it is given - If he does not do so, he will 

be guilty of a dowry offence under this Section - Section further lays 

down that even after his conviction he must return the dowry to the 

woman within the time stipulated in the order - Giving of dowry and 

the traditional presents at or about the time of wedding does not in any 

way raise a presumption that such a property was thereby entrusted 

and put under the dominion of the parents-in-law of the bride or other 

close relations so as to attract ingredients of Section 6 of the Dowry 

Prohibition Act - After marriage, SR and Husband were living in 

Bangalore at their matrimonial house - In respect of ‘stridhana articles’ 

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given to the bride, one has to take into consideration the common 

practice that these articles are sent along with the bride to her 

matrimonial house - It is a matter of common knowledge that these 

articles are kept by the woman in connection with whose marriage it 

was given and used by her in her matrimonial house when the 

appellants have been residing separately, it cannot be said that the 

dowry was given to them and that they were duty bound to return the 

same to SR. [Para 9, 13] 

JUDGMENT 


R. Banumathi, J. – (January 19, 2016) - 

Leave granted. 

2. The present appeal assails the order dated 23.07.2014 passed by the 

High Court of Judicature at Hyderabad in Criminal Petition No.1778 of 2010, 

whereby the High Court declined to quash the proceedings against appellants 

No.1 to 6 in C.C. No. 532 of 2009 under Section 6 of the Dowry Prohibition Act 

1961 pending before Additional Judicial First Class Magistrate, Vizianagaram. 

3. Brief facts leading to the filing of this appeal are as follows:- 

First appellant is working as an Engineer in G.E. India Technology 

Company at Bangalore. Appellants No.2 and 3 are the parents, appellant No.4 is 

widowed sister and appellants No.5 and 6 are the sisters of appellant No.1. 

Marriage of first appellant and Syamala Rani was performed at Vizianagaram on 

04.05.2007 and after marriage, Syamala Rani was residing at Bangalore with her 

husband-appellant No.1. Syamala Rani died on 06.09.2008 under suspicious 

circumstances and a case was registered in FIR No.1492 of 2008 under Sections 

304B, 498A IPC read with Sections 3 and 4 of the Dowry Prohibition Act at H.A.L. 

Police Station, Bangalore City. On completion of investigation in the said case, 

chargesheet was filed against the appellants No.1 to 6 and the case was 

committed to Sessions Court vide committal order dated 29.12.2008 and was 

taken on file as S.C. No.79 of 2009 in the Court of Principal Sessions Judge, 

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90 



Bangalore. Second respondent-father of Syamala Rani filed a private complaint 

against the appellants under Section 6 of the Dowry Prohibition Act alleging that 

he had paid dowry amount and other articles which were presented as dowry to 

the appellants on their demand and the same were not returned. The 

Magistrate took cognizance of the offence under Section 6 of the Dowry 

Prohibition Act in C.C. No.532 of 2009. 

4. The appellants then preferred a petition under Section 482 Cr.P.C. 

before the High Court to quash the complaint i.e. C.C.No.532 of 2009 

contending that the complaint does not disclose an offence and that FIR 

No.1492 of 2008 was already registered against the appellants at Bangalore city. 

The High Court vide the impugned order dismissed the petition filed by the 

appellants holding that the offences alleged in the previous case in S.C.No.79 of 

2009 emanating from the FIR No.1492 of 2008 and the subsequent complaint in 

C.C.No.532 of 2009 are not one and the same as the previous case was 

registered under Sections 304B and 498A IPC read with Sections 3 and 4 of the 

Dowry Prohibition Act, whereas the subsequent case is registered under Section 

6 of the Dowry Prohibition Act which is independent of the previous case. Being 

aggrieved, the appellants have preferred this appeal. 

5. Learned counsel for the appellants submitted that the Magistrate 

ought not to have taken cognizance of the complaint as the previous case was 

already registered against the appellants in FIR No.1492 of 2008 under Sections 

304B and 498A IPC read with Sections 3 and 4 of the Dowry Prohibition Act and 

the same is pending trial in Sessions Case No.79 of 2009 at Bangalore city and 

hence the subsequent complaint is not sustainable. It was further submitted 

that the subsequent complaint C.C.No.532 of 2009 emanates from the same 

cause of action and the allegations in the complaint do not constitute the 

alleged offence under Section 6 of the Dowry Prohibition Act and the complaint 

is an afterthought for wrecking vengeance on the appellants. 

6. Per contra, the learned counsel for respondent No.2 submitted that 

the complaint case in C.C. No.532 of 2009 under Section 6 of the Dowry 

Prohibition Act is independent of the previous case i.e. FIR No.1492 of 2008 and 

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the pendency of the said case before the Sessions Court, Bangalore shall not 

affect the complaint filed under Section 6 of the Dowry Prohibition Act. It was 

submitted that even after death of Syamala Rani, the appellants threatened the 

complainant and his family members and the complainant-respondent No.2 had 

led several mediations with the appellant No.1 for return of dowry amount and 

other articles which were presented as dowry on demand made by the 

appellants and inspite of suchmediations, the appellants did not return the 

dowry amount and other articles and hence a prima facie case is made out 

against the appellants and the High Court rightly declined to quash the 

proceedings. 

7. We have considered the rival contentions and perused the impugned 

judgment and material available on record. 

8. Section 6 of the Dowry Prohibition Act lays down that where the 

dowry is received by any person other than the bride, that person has to 

transfer the same to the woman in connection with whose marriage it is given 

and if he fails to do so within three months from the date of the marriage, he 

shall be punished for violation of Section 6 of the Dowry Prohibition Act. 

Section 6 reads as under:- 

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6. Dowry to be for the benefit of the wife or her heirs.- 

(1) Where any dowry is received by any person other than the 

woman in connection with whose marriage it is given, that person shall 

transfer it to the woman- 

(a) if the dowry was received before marriage, within [three 

months] after the date of marriage; or 

(b) if the dowry was received at the time of or after the 

marriage, within [three months] after the date of its receipts; or 

(c) if the dowry was received when the woman was a minor, 

within [three months] after she has attained the age of eighteen years; 

and pending such transfer, shall hold it in trust for the benefit of the 

woman.

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[(2) If any person fails to transfer any property as required by 

subsection (1) within the time limit specified therefore, [or as required 

by Sub-section (3),] he shall be punishable with imprisonment for a term 

which shall not be less than six months, but which may extend to two 

years or with fine [which shall not be less than five thousand rupees, but 

which may extend to ten thousand rupees] or with both.] 

(3) Where the woman entitled to any property under subsection 

(1) dies before receiving it, the heirs of the woman shall be 

entitled to claim it from the person holding it for the time being:- 

[Provided that where such woman dies within seven years of 

her marriage, otherwise than due to natural causes, such property 

shall,- 

(a) if she has no children, be transferred to her parents; or 

(b) if she has children, be transferred to such children and 

pending such transfer, be held in trust for such children.] 

9. If the dowry amount or articles of married woman was placed in the 

custody of his husband or in-laws, they would be deemed to be trustees of the 

same. The person receiving dowry articles or the person who is dominion over 

the same, as per Section 6 of the Dowry Prohibition Act, is bound to return the 

same within three months after the date of marriage to the woman in 

connection with whose marriage it is given. If he does not do so, he will be guilty 

of a dowry offence under this Section. The section further lays down that even 

after his conviction he must return the dowry to the woman within the time 

stipulated in the order. 

10. In Pratibha Rani v. Suraj Kumar & Anr. 1985 AIR 628, 1985 SCR (3) 

191 , (1985) 2 SCC 370, this Court observed as follows:- 

“20. We are clearly of the opinion that the mere factum of the 

husband and wife living together does not entitle either of them to 

commit a breach of criminal law and if one does then he/she will be 

liable for all the consequences of such breach. Criminal law and 

matrimonial home are not strangers. Crimes committed in matrimonial 

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home are as much punishable as anywhere else. In thecase of stridhan 

property also, the title of which always remains with the wife though 

possession of the same may sometimes be with the husband or other 

members of his family, if the husband or any other member of his family 

commits such an offence, they will be liable to punishment for the 

offence of criminal breach of trust under Sections 405 and 406 of the 

IPC. 

21. After all how could any reasonable person expect a newly 

married woman living in the same house and under the same roof to 

keep her personal property or belongings like jewellery, clothing etc., 

under her own lock and key, thus showing a spirit of distrust to the 

husband at the very behest. We are surprised how could the High Court 

permit the husband to cast his covetous eyes on the absolute and 

personal property of his wife merely because it is kept in his custody, 

thereby reducing the custody to a legal farce. On the other hand, it 

seems to us that even if the personal property of the wife is jointly kept, 

it would be deemed to be expressly or impliedly kept in the custody of 

the husband and if he dishonestly misappropriates or refuses to return 

the same, he is certainly guilty of criminal breach of trust, and there can 

be no escape from this legal consequence…..” 

11. It is well-settled that power under Section 482 Cr.P.C. should be 

sparingly exercised in rare cases. As has been laid down by this Court in the case 

of Madhavrao Jiwajirao Scindia & Ors. v. Sambhajirao Chandrojirao Angre & 

Ors., 1988 AIR 709, 1988 SCR (2) 930, (1988) 1 SCC 692, that when a prosecution 

at the initial stage was asked to be quashed, the test to be applied by the Court 

was as to whether the uncontroverted allegations as made in the 

complaint prima facie establish the offence. It was also for the Court to take into 

consideration any special feature which appears in a particular case to consider 

whether it was expedient and in the interest of justice to permit a prosecution 

to continue. This was so on the basis that the Court cannot be utilized for any 

oblique purpose and where in the opinion of the Court chances of an ultimate 

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conviction are bleak and therefore, no useful purpose was 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. 

12. In the light of the well settled principles, it is to be seen whether the 

allegations in the complaint in the present case and other materials 

accompanying the complaint disclose the offence punishable under Section 6 of 

the Dowry Prohibition Act. Marriage of first respondent and Syamala Rani was 

solemnized in Vizianagaram on 04.05.2007 and the couple was living in 

Bangalore. Appellants 2 to 6–the parents and sisters of appellant No.1 were 

living in Vizianagaram. It is the contention of the appellants that there are no 

allegations in the complaint that the ‘stridhana articles’ were given to appellants 

2 to 6 and that they failed to return the same to Syamala Rani. In paras (3) and 

(4) of the complaint filed by the second respondent, it is alleged that he paid the 

dowry amount “to the accused and some ‘stridhana articles’ like double cot and 

other furniture and utensils required to set up a family”. In the complaint, it is 

vaguely alleged that even after death of deceased-Syamala Rani, the accused 

started threatening the complainant and that the accused offered to pay an 

amount of Rs.10,000/- towards full and final settlement. The relevant 

averments in the complaint in paragraphs (5) and (6) read as under:- 

“5. The complainant submits that even after the death of the 

deceased the accused by keeping the dead body on one side, started 

threatening the complainant and his family members that if they give 

any report to the police, they will be killed then and there only and they 

offered to pay an amount of Rs.10,000/- towards full and final 

settlement. There the complainant, who was in deep shock at the death 

of his daughter could not answer anything but gave a report to the 

police. 

6. The complainant submits that he lead several mediations 

with the accused through his colleagues, whose names are mentioned 

below for return of the dowry, but the accused did not return the 

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amount and other amounts, given under different heads. A duty cast 

upon the accused to return those articles and amount, which were 

presented as dowry on demand made by the accused. The complainant 

reserves his right to file a fresh complaint against all the accused for 

return of the dowry.” 

By reading of the above, it is seen that there are no specific allegations against 

appellants 2 to 6 that the dowry articles were entrusted to them and that they 

have not returned the dowry amount and the articles to Syamala Rani. Equally, 

there are no allegations that those dowry articles were kept in Vizianagaram 

and used by appellants 2 to 6 who were separately living away from the couple 

in Bangalore. Even though complainant has alleged that the dowry amount was 

paid at the house of the accused at Gajapathinagaram, there are no specific 

allegations of entrustment of the dowry amount and articles to appellants 2 to 

6. 

13. Giving of dowry and the traditional presents at or about the time of 

wedding does not in any way raise a presumption that such a property was 

thereby entrusted and put under the dominion of the parents-in-law of the 

bride or other close relations so as to attract ingredients of Section 6 of the 

Dowry Prohibition Act. As noticed earlier, after marriage, Syamala Rani and first 

appellant were living in Bangalore at their matrimonial house. In respect of 

‘stridhana articles’ given to the bride, one has to take into consideration the 

common practice that these articles are sent along with the bride to her 

matrimonial house. It is a matter of common knowledge that these articles are 

kept by the woman in connection with whose marriage it was given and used by 

her in her matrimonial house when the appellants 2 to 6 have been residing 

separately in Vizianagaram, it cannot be said that the dowry was given to them 

and that they were duty bound to return the same to Syamala Rani. Facts and 

circumstances of the case and also the uncontroverted allegations made in the 

complaint do not constitute an offence under Section 6 of the Dowry 

Prohibition Act against appellants 2 to 6 and there is no sufficient ground for 

proceeding against the appellants 2 to 6. Be it noted that appellants 2 to 6 are 

95 



also facing criminal prosecution for the offence under Sections 498A, 304B IPC 

and under Sections 3 and 4 of the Dowry Prohibition Act. Even though the 

criminal proceeding under Section 6 of the Dowry Prohibition Act is 

independent of the criminal prosecution under Sections 3 and 4 of Dowry 

Prohibition Act, in the absence of specific allegations of entrustment of the 

dowry amount and articles to appellants 2 to 6, in our view, continuation of the 

criminal proceeding against appellants 2 to 6 is not just and proper and the 

same is liable to be quashed. 

14. The impugned order in Criminal Petition No.1778 of 2010 is set aside 

qua the appellants 2 to 6 and the appeal is partly allowed. 

--- SS --- 

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Present: Justice Dipak Misra and Justice N.V. Ramana, JJ 

CHAIRMAN, ODISHA JOINT ENTRANCE EXAMINATION - Appellant, 

Versus 

JASOBANTA NAYAK and Others - Respondents. 

Civil Appeal Nos.288-289 of 2016 

(Arising out of S.L.P.(C) Nos.33583-33584 OF 2012) 

Education – Admission – Disability - Court cannot assess the 

percentage of disability - High Court was not justified in interfering with 

the selection process in exercise of writ jurisdiction and declaring the 

disability of the respondent at 40% and to consider his case in the 

category of physically handicapped persons – Prospectus provided that 

candidates should not submit along with application form, any medical 

certificate to the effect that they are physically challenged - Percentage 

of disability has to be determined by the Medical Board, which is 

specifically mentioned in the prospectus - Board has assessed the 

disability of vision at 20% and issued the certificate - Certificate granted 

by the District Head Quarters Hospital, submitted by the respondent 

was 40% - Court cannot assess the percentage of disability - Medical 

Board has been constituted as per the norms of prospectus and it has 

clearly recorded its opinion as regards the disability of vision of the 

respondent. 

97 


ORDER 

(January 18, 2016) - Leave granted. 

2. The present appeals are directed by way of special leave petitions 

against the judgement and order dated 17th October, 2012, passed in W.P.(C)


No.14456 of 2012, by the High Court of Orissa at Cuttack. 

3. The respondent No.1 herein had appeared in the Odisha Joint 

Entrance Examination 2012 for admission into engineering course. He was 

assigned the rank at Sl. No.16871 in the general category and placed at No.80 

under the physically challenged category for admission into the engineering 

course. As the respondent No.1 was physically handicapped, he had filed a 

certificate issued from the District Head Quarters Hospital, Balasore, Odisha, 

which had mentioned that he was visually disabled by 40%. Needless to say, 

visual 40% disability enables a candidate to be considered in the physically 

handicapped category. 

4. It is submitted by Mr. Milind Kumar, learned counsel appearing for 

the appellant that the order passed by the High Court suffers from grave 

illegality inasmuch as it has observed that the respondent No.1 was directed to 

produce the physically handicapped certificate, though the prospectus clearly 

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prohibits for filing of such certificate. It is urged by him that the Board that was 

constituted as per the stipulations prescribed in the prospectus, had found that 

the respondent No.1 had 20% visual disability and not 40% and, in such a case, 

the High Court should not have placed reliance on the certificate issued by the 

District Head Quarters Hospital, Balasore, by opining that there is no reason to 

disbelieve the same. 

5. Ms. Nidhi, learned counsel appearing for the respondent No.1, has 

supported the order passed by the High Court. 

6. To appreciate the controversy, we may with profit refer to Clause 

2.1.4. of the prospectus, which reads as follows:- 

“2.1.4. 3% of seats are reserved for Physically Challenged 

candidates for admission to B. Tech/B. Arch / MBA / MCA / PGDM / 

PGCM / PGDM (Exe) / B. Pharm courses. the candidates with 40% 

disabilities in consonance with section – 39 of the Persons with 

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Disabilities (Equal opportunities, Protection of Rights and Full 

participation) Act, 1995, are eligible to be considered under Physically 

Challenged Category for admission to B. Tech / B. Arch / MBA / PGDM / 

PGCM / PGDM (Exe) / B. Pharm courses. 3% of total MBBS and BDS 

seats are reserved for persons with disabilities and they have to meet 

the medical standard of Locomotory disability of lower limbs between 

50 to 70% (% of disability may vary subject to the decision of the 

Hon'ble Apex Court). The medical standard of PC category candidates 

will be decided by a medical board specifically constituted with Senior 

Professors of the premier medical college and hospital :- 

SCB Medical College, Cuttack, and Chairman, OJE – 2012 or his 

representative under the Chairmanship of Principal, SCB Medical 

College or his nominee, that they are eligible to be categorized as 

Physically Challenged candidates and capable of undergoing each part 

of the requirements for B. Tech / B. Arch / MBBS / BDS / MBA / MCA / 

PGDM / PGCM (Exe) / B. Pharm. The decision of this Board will be final 

and binding. They SHOULD NOT therefore, submit along with the 

application form any medical certificate to the effect that they are 

physically challenged. Further, for MBBS/BDS stream, the candidates 

claiming locomotory disability of lower limbs are only eligible for 

consideration. Visually handicapped and hearing disabled candidates 

are not eligible as stipulated by Medical Council of India.” 

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[Emphasis supplied] 

7. On a perusal of the aforesaid clause, it is perceivable that the 

candidates should not submit along with application form, any medical 

certificate to the effect that they are physically challenged. The High Court, as 

we find from the order impugned, has stated, as a matter of fact, that the 

candidates were directed to produce the physically handicapped certificate. The 

said finding, being contrary to the postulates in the prospectus is absolutely


unsupportable. 

8. It needs no special emphasis to state that the percentage of disability 

has to be determined by the Medical Board, which is specifically mentioned in 

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the prospectus. The said Board consisting of Dean & Principal, S.C.B. Medical 

College, Cuttack, and two Assistant Professors, Department of Ophthalmology, 

S.C.B. Medical College, Cuttack, has assessed the disability of vision of the 

respondent No.1 on 16th June, 2012, at 20% and issued the certificate. Be it 

noted, the certificate granted by the District Head Quarters Hospital, Balasore, 

was 40%. A Court cannot assess the percentage of disability. As per the 

prospectus, the Medical Board has to be constituted consisting of senior 

Professors of the S.C.B. Medical College, Cuttack and Chairman, OJEE – 2012 or 

his representative under the Chairmanship of Principal, S.C.B. Medical College or 

his nominee. The Medical Board has been constituted as per the norms of 

prospectus and it has clearly recorded its opinion as regards the disability of 

vision of the respondent. In such a situation, we are constrained to hold that the 

High Court was not justified in interfering with the selection process in exercise 

of writ jurisdiction and declaring the disability of the respondent No.1 at 40% 

and to consider his case in the category of physically handicapped persons. The 

approach being erroneous, the order is wholly untenable. 

9. Resultantly, the appeals are allowed and the order passed by the High 

Court is set aside. There shall be no order as to costs. 

---ss --- 

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Present: Justice Dipak Misra and Justice N.V. Ramana, JJ 

COMMISSIONER OF CENTRAL EXCISE,PUNE - Appellant, 

Versus 

HINDUSTAN NATIONAL GLASS AND INDUSTRIES LIMITED – 

Respondents. 

Civil Appeal No.1829 of 2008 

Central Excise Act, 1944 Section 11A(1) – Depressing of sale price - 

Show cause notice, that assessee had short paid the duty on its 

products, that is, printed glass bottles, by under-valuing the same at the 

time of clearance from its factory inasmuch as it did not add “additional 

consideration” received from C and P wherein assessee had received 

90% advance from C and 100% advance from P for the goods and it was 

giving 3-4% discount to the said Companies - Ssale price agreed 

between two competing parties may get depressed, when substantial 

and huge advances are periodically extended and given with the 

objective and purpose that the sale price paid or charged would be 

lowered, to set off the consideration paid by grant of advances - There 

should be a connect and link between the two i.e. the money advanced 

it should be established was a consideration paid which could form the 

basis for depression of sale price - Evidence and material to establish 

the said factual matrix has to be uncovered and brought on record to 

connect and link the sale price paid on paper and the “other” 

consideration, not gratis, but by way of interest free advances – Matter 

remanded to decide what is the effect of the sales made to the two 

companies in percentile terms, whether this had the effect of 

depressing the sale price - Onus on the revenue. [Para 14, 15] 

101 


102 



ORDER 

The ORDER of the court was delivered by 

Dipak Misra, J. – (January 14, 2016) - A show cause notice under F. No. 

Prev/CEX/AEI/OBL/ 141/99/797 dated 16thAugust, 2002, was issued to M/s. 

Owens Brockway (I) Pvt. Ltd., the predecessor-company of the respondent 

which is presently known as Hindustan National Glass and Industries Limited, by 

the Commissioner of Central Excise, Pune-I, alleging that the manufacturing 

company was not adding the additional consideration received from the 

customers in the form of advance and, therefore, the notional interest accrued 

thereon is to be added to the sale price, for such non-addition had resulted in 

depression of the assessable value of the goods, namely, the bottles 

manufactured by the respondent-assessee. 

2. In the show cause notice, it was mentioned that the assessee had 

short paid the duty on its products, that is, printed glass bottles, by undervaluing 

the same at the time of clearance from its factory inasmuch as it did not 

add “additional consideration” received from M/s. Coca Cola India and M/s. 

Pepsico India Holdings Pvt. Ltd. The show cause notice referred to the 

statement of the Manager (Sales) of the Company from which it was discernible 

that the respondent-assessee had received 90% advance from M/s. Coca Cola 

India and 100% advance from M/s. Pepsico India Holdings Pvt. Ltd. for the goods 

and it was giving 3-4% discount to the said Companies. 

3. After the reply to the show cause was received, the adjudicating 

authority passed an order on 28th November, 2003, making a demand of Rs. 

33,91,934,00/- under Section 11A(1) of the Central Excise Act, 1944 (for short 

“the Act”) being the duty payable on the additional consideration received by 

the assessee from the customers in the form of notional interest accrued on 

advance payments and also imposed penalty for the same amount under 

Section 11AC of the Act. Apart from that, the adjudicating authority confirmed 

certain other demands. 

4. Being grieved by the aforesaid order of the adjudicating authority, 

the respondent-assessee preferred an appeal before the Customs, Excise and 

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Service Tax Appellate Tribunal, West Zonal Bench, Mumbai (for short, 'the 

tribunal'). Initially, the matter was heard by two Members consisting of Member 

(Judicial) and Member (Technical). The Member (Technical) came to hold that 

the revenue had not been able to discharge the onus by adducing cogent 

material evidence that the advances obtained from a buyer had really been 

instrumental in depression of the price. Learned Member further opined that 

there was no nexus of interest with the price and hence, the demand was not 

acceptable and consequently, no penalty could be levied. 

5. The Member (Judicial) adverted to the order passed by the 

Commissioner wherein the statement of the Manager (Sales) had been 

adumbrated in detail, referred to the other documents that had been put-forth 

by the revenue before the adjudicating authority and in course of discussion 

adverted to the principle stated in Commissioner of Central Excise, New Delhi 

v. Hero Honda Motors Ltd., (2005) 4 SCC 182 and opined as follows:- 

“In view of the above decision, I am of the opinion that the matter 

needs to be remanded to the Commissioner for fresh examination in the 

light of the observation made by the Hon'ble Supreme Court in the case 

of Hero Honda Motors Ltd. v. CCE referred supra and after examining 

the entire aspect of the use of the advances, income generated from 

the said advances, their contribution of the pricing structure and their 

reflection in the Balance-sheet or the Annual Reports of the appellants, 

and the deployment of the funds so received by them, as I agree with 

the learned brother Shri Sekhon that onus to prove so is on the 

Revenue. However, the appellants would be at liberty to produce 

relevant evidences before the adjudicating authority in support of their 

contention that the interest accrued on such advances have not in any 

way resulted in depreciation of the price. All other issues are left open 

for the appellants to address before the adjudicating authority.” 

6. As there was difference of opinion, the matter was referred to the 

third Member and the third Member, who was a Judicial Member, vide order 

dated 29th August, 2007, cogitated on the concept of assessable value under 

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the Act, the concept of two prices and eventually opined that the decisions 

in Hero Honda Motors Ltd. (supra) and Metal Box India Ltd. v. Collector of 

Central Excise, Madras, (1995) 2 SCC 90 are not applicable to the case at hand 

and accordingly concurred with the opinion expressed by the Member 

(Technical). Hence, the revenue is before this Court in appeal. 

7. We have heard Mr. Yashank Adhyaru, learned senior counsel for the 

appellant-revenue and Mr. Aarohi Bhalla, learned counsel for the respondentassessee. 

8. On a scrutiny of the factual score, it is noticeable that the 

respondent-assessee had obtained certain advance sums from some 

companies/users to supply the bottles and on that count it had granted 3-4 per 

cent discount. Though the quantum had not been stated precisely, yet it has 

been found as a matter of fact that M/s. Coca Cola India and M/s. Pepsico India 

Holdings Pvt. Ltd. had given advances for 90% and 100% respectively for their 

purchases. 

9. In Metal Box India Ltd. (supra), the Court while dealing with the 

transaction between the appellant therein and M/s. Ponds (I) Ltd., who was a 

whole-sale buyer of the appellant's goods, had accepted the view of the tribunal 

and expressed thus:- 

“On the facts on record, therefore, it must be held that the Tribunal was 

perfectly justified in taking the view that charging a separate price for 

the metal containers supplied to M/s Ponds (I) Limited could not stand 

justified under Section 4(1)(a) proviso and, therefore, to that separate 

price charged from the Ponds (I) Limited, the extent of benefit obtained 

by the assessee on interest-free loan was required to be reloaded by 

hiking the price charged from M/s. Ponds (I) Limited to that extent. 

Contention 2 also, therefore, fails and is rejected.” 

10. In Hero Honda Motors Ltd. (supra), the question that arose for 

determination is whether receipt of advance and the income accruing thereon, 

had gone towards the depreciation of the sale price. In that context, the Court 

opined that there is conspectus of decisions which clearly establish that 

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inclusion of notional interest in the assessable value or wholesale price will 

depend upon the facts of each case. The three-Judge Bench adverted to the 

facts of the case, the agreement existing between the parties and the lower 

price at which the respondent-assessee therein had sold the motor-cycles and 

after analysing the factual matrix opined as follows:- 

“For the above reasons, we hold that the tribunal has disposed of the 

appeal before it in a most perfunctory manner without going into any 

figures at all but by merely on the statement made by counsel and on 

the basis of material which appears to have been produced first time 

before the tribunal. We, therefore, set aside the order of the tribunal 

and remand the matter back to the tribunal. The tribunal will consider 

in detail, if necessary, by taking the help of a Cost Accountant and after 

looking into the accounts of the respondent whether or not the 

advances or any part thereof have been used in the working capital and 

whether or not the advances received by the respondent and/or the 

interest earned thereon have been used in the working capital and/or 

whether it has the effect of reducing the price of the motorcycle. The 

tribunal to so decide on the material which was placed before the 

Commissioner and not to allow any additional documents/materials to 

be filed before it. None of our observations made herein shall bind the 

tribunal to which this case is remitted.” 

11. In the case at hand, the Member (Judicial) has remitted the matter 

to the competent authority to deal with it afresh in the light of the decision 

rendered in Hero Honda Motors Ltd. (supra). 

12. Mr. Aarohi Bhalla, learned counsel for the respondent-assessee 

would submit that when no evidence was adduced by the revenue at any point 

of time and the law is settled that the onus is on the revenue to establish that 

there has been depression of assessable value, the majority view of the tribunal 

cannot be found fault with. 

13. Mr. Yashank Adhyaru, learned senior counsel appearing for the 

appellant-revenue would submit that the documents were produced before the 

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106 



adjudicating authority as well as the tribunal to show the nature of advance and 

the manner of transaction from which it is demonstrable that there has been 

depression of the assessable value. 

14. On a perusal of the order passed by the Commissioner, it is seen 

that observations have been made on certain aspects and inferences have been 

drawn. It cannot be said that no material was produced by the revenue. The 

concerned Commissioner has taken note of the statement made by the 

Manager (Sales) of the assessee-Company. An aspect raised relates to 

percentage of total sales made to two companies, but the core issue is whether 

there was a depression of the sale price on account of receipt of advance. In the 

case of Metal Box India Ltd. (supra), the facts were extremely clear as there was 

an agreement that M/s. Ponds (I) Ltd. had given 50% advance with a stipulation 

that it would purchase 90% of the manufactured goods. It was a case where a 

separate price was charged. In the case of Hero Honda Motors Ltd. (supra), the 

facts, as we perceive, were not clear and, therefore, there was a remit. Be it 

noted, sale price agreed between two competing parties may get depressed, 

when substantial and huge advances are periodically extended and given with 

the objective and purpose that the sale price paid or charged would be lowered, 

to set off the consideration paid by grant of advances. There should be a 

connect and link between the two i.e. the money advanced it should be 

established was a consideration paid which could form the basis for depression 

of sale price. Evidence and material to establish the said factual matrix has to be 

uncovered and brought on record to connect and link the sale price paid on 

paper and the “other” consideration, not gratis, but by way of interest free 

advances. 

15. In our considered opinion, in the present case, there has to be 

application of mind by the tribunal regard being had to the amount of money 

paid by purchasers, namely, M/s. Coca Cola India and M/s. Pepsico India 

Holdings Pvt. Ltd. and what is the effect of the sales made to the two companies 

in percentile terms, whether this had the effect of depressing the sale price. The 

onus would be on the revenue. That being the thrust of the matter, liberty is 

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granted to the revenue to produce the documents in this regard to discharge 

the onus. As we are remitting the matter, we may note one submission of the 

respondent-assessee. It is urged by the learned counsel that when the entire 

activities were within the knowledge of the excise authorities, penalty is not 

leviable. Needless to emphasize, the tribunal shall advert to the said submission, 

if required, in the ultimate eventuate, in proper perspective. 

16. In the result, the appeal is allowed, the order passed by the tribunal 

is set aside and the matter is remitted to the tribunal for fresh disposal keeping 

in view the observations made herein-above. We may hasten to clarify that we 

have not expressed any opinion on any of the aspects. There shall be no order 

as to costs. 

--- SS --- 

107 





Present: Justice Fakkir Mohamed Ibrahim Kalifulla 

and Justice Uday Umesh Lalit, JJ. 

SUSANTA DAS & Ors. – Appellants, 

VERSUS 

STATE OF ORISSA - Respondent. 

Criminal Appeal No. 244 of 2009 with Criminal Appeal No.1523 of 2015 

(i) Indian Penal Code, 1860 - Section 149 - Unlawul assembly - Section 

149, at the very outset it refers to participation of each member of an 

unlawful assembly, it has to be necessarily shown that there was an 

assembly of five or more persons, which is designated as unlawful 

assembly under Section 149 I.P.C. - When once, such a participation of 

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five or more persons is shown, who indulge in an offence as a member 

of such an unlawful assembly, for the purpose of invoking Section 149, 

it is not necessary that there must be specific overt act played by each 

of the member of such an unlawful assembly in the commission of an 

offence - What is required to be shown is the participation as a 

member in pursuance of a common object of the assembly or being a 

member of that assembly, such person knew as to what is likely to be 

committed in prosecution of any such common object - In the event of 

the proof of showing of either of the above conduct of a member of an 

unlawful assembly, the offence, as stipulated in Section 149, will stand 

proved [Para 14] 

(ii) Indian Penal Code, 1860 - Section 149 - Unlawul assembly - 

Convinced that the implication of all the five accused was perfectly 

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justified and was supported by legal evidence as was spoken to by the 

relevant witnesses which was duly corroborated by the medical 

evidence - Therefore, mere non mentioning of two of the names in the 

F.I.R cannot be fatal to the case of the prosecution. [Para 25] 

(iv) Indian Penal Code, 1860 - Alleged delay in forwarding the F.I.R to 

the Magistrate - There was no material on record to show or suggest 

that the F.I.R was tampered or it was fabricated at a later date by 

antedating it or the delay in sending the F.I.R or the delay in placing it 

before SDJM by the Sub Inspector of Police or the delay in signing the 

F.I.R by SDJM was so very vital to doubt the case of the prosecution. 

[Para 27] 

J U D G M E N T 

Fakkir Mohamed Ibrahim Kalifulla, J. – ( January 06, 2016) - These two 

appeals arise out of a common judgment dated 15.10.2008, passed in Criminal 

Appeal No.251 of 1997 preferred by the accused-Ashok Das alias Gopal Das and 

Government Appeal No.20 of 1999 as against the acquittal of accused Nos.1 to 

4. 

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2. As per the case of the prosecution on 03.04.1996, at about 04.00 p.m. 

when P.Ws.8, 11 and the deceased Padma Lochan Jena were proceeding from 

Bhadrak to Agarapada in a Rajdoot Motorcycle, about half a kilometer before 

Kadabaranga Chhaka, the accused numbering five, each one of them armed 

with deadly weapons obstructed them and when the three persons tried to 

escape, the accused chased them and assaulted them with the aid of the 

weapons held by them. At that point of time, a trekker passed through the road 

and on seeing the same, the accused persons fled away. The trekker however 

did not stop, but P.W.7 along with one Debendra Padhi who were also 

proceeding on that road in a motorcycle stopped at the place of occurrence,


helped the deceased as well as P.Ws.8 and 11 who were also injured by shifting 

them to a hospital in a mini bus called Santoshi coming on that road and that 

before they could reach the hospital the deceased Padma Lochan succumbed to 

the injuries. 

3. At the hospital P.W.1, the uncle of the deceased, who rushed to the 

hospital on hearing the news of the death of the deceased, after gathering the 

information from P.Ws.8 and 11 as to how the deceased along with the injured 

eye witnesses were assaulted by the accused, lodged the F.I.R. (Ex.1) by around 

5.45 p.m. The injured were attended by P.W.12 Doctor who issued the injury 

110 


reports (Exs.7 & 8). P.W.9, Dr. S. N. Panda conducted autopsy on the body of the 

deceased and issued Ex.6, the post mortem report. Though P.W.10, the 

passenger in the Trekker was cited and examined as an eye witness to the 

occurrence, did not support the case of the prosecution. P.Ws.13 and 14 were 

the investigating officers and the major portion of the investigation was 

conducted by P.W.13. P.W.13 recovered a Bhujali and the cover of the Bhujali 

(M.Os.II & III) and the wearing apparels of the injured and the deceased 

(M.Os.IX & XI). M.O.I is a pair of chappal, which was also recovered along with 

other articles viz., plastic comb, plastic glass, whisky and rum bottles. Ex.2 was 

the inquest report and Ex.10 was the dead body challan. Exs.3 to 5 and 12 were 

the different seizure lists. Ex.9 was the crime detailed form while Exs.14 to 18 

are the documents in support of sending M.Os. to the State Forensic Science 

Laboratory and the report received therefrom. 

4. On behalf of the prosecution, P.Ws.1 to 14 were examined and on the 

side of the defence, D.W.1 was examined and Exs.D & D/1 were marked. The 

accused were arrested on different dates. The first accused was arrested on 

06.04.1996, the second accused was arrested on 11.04.1996, the third and 

fourth accused surrendered before Court on 12.07.1996 and 19.07.1996 

respectively. Accused- Ashok Das alias Gopal Das was arrested on 19.03.1997. 

The wearing apparels of the first accused was recovered which was stained with 

blood, but the same was not sent for chemical analysis. 

5. The appellants were charged for the offences under Sections 147, 

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148, 341, 326, 307, 302 r/w Section 149 I.P.C. The accused denied the charges 

and were tried by the Sessions Court. Though the accused were charged for the 

offence under Section 149, the Trial Court while analyzing the evidence, both 

the eye witnesses account, medical evidence, as well as the other evidence, 

took the view that there was no clinching evidence to support the individual 

role played by each of the accused except accused-Ashok Das alias Gopal Das 

and consequently while acquitting A1 to A4, ultimately convicted the accused- 

Ashok Das alias Gopal Das for the offence under Section 302 I.P.C. for the killing 

of the deceased Padma Lochan Jena and for causing grievous hurt on P.W.8, 

convicted him for the offence under Section 326 I.P.C. He was acquitted of the 

offence under the other Sections by granting the benefit of doubt. Ultimately, 

he was imposed with the punishment of imprisonment for life for the offence 

under Section 302 I.P.C and three years R.I for the offence under Section 326 

I.P.C. and directed the punishment to run concurrently. 

6. As against the said conviction and sentence imposed, accused- Ashok 

Das alias Gopal Das preferred Criminal Appeal No.251 of 1997 while the State of 

Orissa preferred Government Appeal No.20 of 1999 against the acquittal of A1 

to A4. As stated earlier, the High Court by the impugned judgment while 

reversing the acquittal of A1 to A4 found them guilty of the offences under 

Section 302 r/w 149 I.P.C., Sections 148, 326 r/w 149, 307 r/w 149 of I.P.C. and 

imposed them with the sentence of imprisonment for life for the offence under 

Section 302 r/w 149 I.P.C. and they were acquitted of offence under Section 307 

r/w 149 of I.P.C. Thus, convicting them for offence under Section 302 r/w 149 

did not impose a separate sentence for the offence under Section 326 r/w 149 

and 148 I.P.C. The appeal preferred by accused-Ashok Das alias Gopal Das was 

dismissed. It is as against the above common judgment of the Division Bench of 

the High Court, the appellants are before us. 

111 


7. We heard Mr. Ratnakar Dash, learned Senior Counsel for the 

appellants in Crl.A.No.244 of 2009, Mr.Anup Kumar, learned Amicus Curiae for 

the appellant in Crl.A.No.1523 of 2015 and we also heard Mr. Ashok Panigrahi, 

learned counsel for the respondent State.


8. Mr. Ratnakar Dash, learned Senior Counsel for the appellants, after 

taking us through the evidence of P.Ws.1, 7, 8, 9, 11 and 13 as well as Ex.7/1 

and 8/2 and certain other documents and also the conclusions drawn by the 

learned Trial Judge and the analysis made by the Division Bench of the High 

Court, submitted that the offence under Section 302 as well as 326 r/w 149 was 

not made out in as much as though P.Ws.8 and 9 claim to be injured eye 

witnesses, their evidence did not support the case of the prosecution for 

invoking Section 149 of I.P.C. 

9. According to the learned Senior Counsel, though Ex.1, F.I.R came to 

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be lodged at 5.45 p.m. at the instance of P.W.1, who lodged his complaint based 

on the information furnished by P.Ws.8 and 11, significantly, the names of all 

the accused were not mentioned in the F.I.R and even in the Section 161 

statement of P.W.8 and 11, the names of all the accused were not mentioned. 

The learned Senior Counsel also submitted that in none of the 

contemporaneous documents either prepared by P.W.13 or the medical 

reports, there was any specific reference to the names of all the accused, in 

particular, the appellants for whom he appeared, in a consistent manner in 

order to implicate them either for the offence of killing of the deceased or for 

causing any injury on P.Ws.8 and 11. The learned Senior Counsel therefore 

contended that in the light of the said fact viz., lack of necessary evidence to 

show the participation of all the accused together, the invocation of Section 149 

I.P.C to rope in the appellants for whom he appeared was not made out and 

consequently, the reversal of the judgment of the Trial Court by the High Court 

was not justified and the appellants in Criminal Appeal No.244 of 2009 viz., A1 

to A4 were rightly acquitted by the Trial Court giving them the benefit of doubt. 

10. Mr. Anup Kumar, learned Amicus Curiae for the appellant in Crl. 

A.No.1523 of 2015 in his submissions contended that he was alleged to have 

used a sword in the occurrence, which was neither seized nor recovered; there 

was no blood stained cloth of the said accused recovered of him; that there was 

delay in forwarding the F.I.R to the learned Magistrate; that the nonexamination 

of the person who accompanied P.W.7 was fatal to the case of the 

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prosecution; that the so called eye witness P.W.10 who claimed to know two of 

the accused viz., A1 and A2 did not support the case of the prosecution and 

therefore on that ground as well, the conviction is liable to be set aside. The 

learned counsel also submitted that no reliance can be placed upon the version 

of P.W.11 against whom a criminal case was pending. 

11. As against the above submissions of the learned counsel for the 

accused, the learned standing counsel for the respondent State argued that 

there was specific reference about each of the accused in the evidence which 

came into existence at the earliest point of time. According to the learned 

counsel, the reference to involvement of A1 to A4 and accused-Ashok Das alias 

Gopal Das along with two others was specifically mentioned by P.W.1 in his 

complaint, which came to be noted in the F.I.R (Ex.1) and that in the Section 161 

statement of P.W.8 the names of A1 and A3 along with accused-Ashok Das alias 

Gopal Das was specifically referred. Though the learned standing counsel fairly 

submitted that there was no reference to the role played by A2 in any of the 

reports or statements, which came into existence at the earliest point of time, 

the learned standing counsel contended that the statement of P.Ws.1, 8 and the 

F.I.R amply disclose the involvement of A1, A3, A4 and accused-Ashok Das alias 

Gopal Das apart from the fact that the medical evidence fully supported the 

case of the prosecution. The learned standing counsel placed reliance upon the 

decisions reported in Rotash v. State of Rajasthan - (2006) 12 SCC 64, 

Mritunjoy Biswas v. Pranab alias Kuti Biswas and another - (2013) 12 SCC 796 

and Bishna alias Bhiswadeb Mahato and others v. State of W.B. - (2005) 12 

SCC 657. 

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On behalf of the appellants reliance was placed upon the decision 

reported in Ajit Savant Majagvai v. State of Karnataka - (1997) 7 SCC 110. 

12. Having heard the learned counsel for the appellants and the learned 

counsel for the respondent State and having bestowed our serious 

consideration to the materials placed before us and the judgments of the Trial 

Court and that of the High Court, we are convinced that no interference is called 

for with the impugned judgment.


13. While discussing about the various contentions raised on behalf of 

the appellants, since we are concerned with the conviction imposed on the 

appellants, for the offence under Section 302 I.P.C. with the aid of Section 149 

I.P.C., it will be necessary to clearly set out the nature of offence detailed in 

Section 149 I.P.C. Section 149 reads as under :- 

“149. Every member of unlawful assembly guilty of offence committed 

in prosecution of common object:- 

If an offence is committed by any member of an unlawful assembly in 

prosecution of the common object of that assembly, or such as the 

members of that assembly knew to be likely to be committed in 

prosecution of that object, every person who, at the time of the 

committing of that offence, is a member of the same assembly, is guilty 

of that offence”. 

14. When we read Section 149, since at the very outset it refers to 

participation of each member of an unlawful assembly, it has to be necessarily 

114 


shown that there was an assembly of five or more persons, which is designated 

as unlawful assembly under Section 149 I.P.C. When once, such a participation 

of five or more persons is shown, who indulge in an offence as a member of 

such an unlawful assembly, for the purpose of invoking Section 149, it is not 

necessary that there must be specific overt act played by each of the member of 

such an unlawful assembly in the commission of an offence. What is required to 

be shown is the participation as a member in pursuance of a common object of 

the assembly or being a member of that assembly, such person knew as to what 

is likely to be committed in prosecution of any such common object. In the 

event of the proof of showing of either of the above conduct of a member of an 

unlawful assembly, the offence, as stipulated in Section 149, will stand proved. 

In fact, the said prescription contained in Section 149 has been duly understood 

by the Division Bench by making reference to some of the earlier decisions of 

this Court. In this context, the Division Bench chose to follow the decisions of 

this Court reported in Rajendran and another v. State of T.N. – (2004) 10 SCC 

689 and Bishna (supra), wherein, the description contained in Section 149 I.P.C 

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and in what cases, and against whom, the said provision can be applied has 

been clearly set out. 

15. Keeping the above legal position pertaining to application of Section 

149, when we examine the case on hand, the motive for the alleged assault is 

the grudge of the accused-Ashok Das alias Gopal Das who contested in the 

college student election in which P.W.8 also contested, who stated to have 

ultimately won the elections. According to the case of the prosecution, all the 

appellants gathered under a mango tree and the recoveries made at that spot 

disclose, whisky bottles etc., to show that they were waiting at the place of 

occurrence. The recovery of bhujali and the cover at the place of occurrence as 

disclosed in the inquest report supported by the version of P.W.13, investigating 

officer, clearly proved that the assailants while waiting at the spot, shared their 

common object. The common object shared by them resulted in the assault on 

P.W.8. We can deduce from the evidence of P.W.8 that at the spot, he could 

notice the accused making their appearance from behind a mango tree with 

each one of them holding a deadly weapon. According to P.W.8, accused-Ashok 

Das alias Gopal Das was holding a sword; A1 was holding a Bhujali and rest of 

the accused were holding cycle chains. On seeing their sudden appearance, 

while riding the motor cycle, P.W.11 apparently lost control and in that process, 

it is narrated by P.W.8 and 11 that accused-Ashok Das alias Gopal Das gave a 

sword blow to P.W.8 on his face and when P.W.11 fell down from the 

motorcycle along with P.W.8, A3 and A4 stated to have held the deceased while 

accused-Ashok Das alias Gopal Das dealt a sword blow on the backside of the 

head of the deceased, who cried for help. A1, stated to have inflicted Bhujali 

blow on the left scapula of the deceased and when A1 attempted to inflict 

another blow with the bhujali, the deceased stated to have attempted to catch 

hold of the bhujali and sustained injuries on his left hand. 

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16. While the accused were thus inflicting injuries on P.W.11, P.W.8 

they made an attempt to flee, when accused-Ashok Das alias Gopal Das dealt a 

sword blow on the left chest of P.W.8. When P.W.11, attempted to run away, 

A2 Pitambar kicked more than thrice and on seeking a Trekker moving in that


direction, the appellants stated to have ran away, which was noticed by P.W.7 

who was crossing that side along with one Debendra Padhi who was not 

examined. In the evidence of P.W.7, 8 and 11, it is clearly noted that the 

appellants participated in the crime and all five of them ran away from the place 

of occurrence after causing severe injuries on the deceased as well as P.Ws.8 

and 11. Having regard to the said evidence, as spoken to by P.Ws.7, 8 and 11, 

there can be no room for doubt about the presence of all the five appellants at 

the place of occurrence. 

17. It must be stated that P.Ws.8 and 11 while undergoing treatment at 

116 


the hospital, immediately after the occurrence viz., between 04.00 p.m. and 

05.45 p.m. informed P.W.1, the uncle of the deceased, who reached the 

hospital. P.W.1 who gathered the information from P.Ws.8 and 11 as to how 

and in what manner and by whom the injuries came to be inflicted, in his 

complaint which he lodged at 5.45 p.m. made a specific reference to the names 

of A1, A4 and accused-Ashok Das alias Gopal Das along with two others who 

were armed with bhujalis, swords and cycle chain caused the injuries on the 

deceased and P.Ws.8 and 11. Similarly, the immediate statement of P.W.8, 

disclose the specific mention of A1, A3 and accused-Ashok Das alias Gopal Das 

and the serious injuries inflicted by accused-Ashok Das alias Gopal Das on the 

deceased as well as P.Ws.8 & 11. Similarly, in the immediate statement of 

P.W.11, he specifically referred to the names of A1, A3 and accused- Ashok Das 

alias Gopal Das and the manner in which the injuries were inflicted upon them. 

18. A cumulative consideration of the evidence of P.Ws.1, 7, 8 and 11 

amply disclose that there were five who were involved in the occurrence, viz., 

accused 1 to 4 and accused-Ashok Das alias Gopal Das, apart from the specific 

role played by each one of them. Having regard to the motive related to which 

the appellants stated to have nurtured a grievance which resulted in the assault 

on the deceased and P.Ws.8 and 11 and all of whom being known to the injured 

eye witnesses and accused-Ashok Das alias Gopal Das being known to P.W.7, 

there is no reason to disbelieve their version. Therefore, the involvement and 

the extent of participation by the appellants has been sufficiently established by 

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the prosecution with the required evidence. 

19. As far as the injuries sustained by the deceased as well as P.Ws.8 

and 11, the High Court has noted specifically about the injuries as was noted by 

P.W.9 in the Post Mortem report, which was inflicted on the deceased at the 

time of the occurrence which when compared with the oral evidence spoken to 

by P.W.8, the High Court has found that the same fully tallied with the oral 

evidence of P.W.8. In paragraph 14, the High Court has noted the various 

injuries and the evidence of P.W.8 in support of the said injuries. 

20. Similarly in paragraphs 15 and 16, the High Court has referred to the 

injuries sustained by P.Ws.8 and 11, which were spoken to by P.W.12, who 

attended on them and has found that the evidence of P.Ws.8 and 11 was fully 

corroborated by the medical evidence and thus there was no scope to doubt 

their version as to the manner in which the injuries were inflicted on the 

deceased as well as the injured P.Ws.8 and 11. Thus, we find that the 

appreciation of evidence of the eye witnesses account, the supporting version 

of the other witnesses read along with the expert medical opinion, again 

supported by the Post Mortem report and the injury report, there is no reason 

to take a different view than what has been taken by the Division Bench in the 

impugned judgment. 

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21. When we consider the submission of the appellants, in the first 

place, it was contended that the participation of the five accused was not duly 

made out. As far as the said contention is concerned, we have noted extensively 

the evidence both oral as well as documentary to show as to how all the five 

accused were duly present at the place of occurrence, in order to attract Section 

149 I.P.C. We have also found that based on the medical evidence as well as the 

injured eye witnesses account to show how the appellants revealed their 

common object in the course of their participation when the deceased and the 

injured witnesses were inflicted with serious injuries with the aid of deadly 

weapons and consequently none of the accused could escape from the 

invocation of Section 149 I.P.C. in the murder of the deceased falling under 

Section 302 I.P.C. as well as the grievous injuries caused on P.Ws.8 and 11.

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22. The attempt of the learned Senior Counsel for the appellants by 

making reference to Exs.7, 1, 8 and 2 wherein, there was some omission to refer 

the names of some of the appellants, are so trivial as compared to the 

overwhelming evidence both oral as well as documentary to reject the said 

contention. Though the learned senior counsel attempted to show some 

contradiction in the evidence of P.Ws.1, 7, 8 and 11, having gone through the 

evidence in detail and the appreciation made by the Division Bench of the High 

Court, we find no serious dent in the evidence of those witnesses which was 

otherwise supported by the expert medical evidence in the form of oral version 

of P.Ws.9 and 12 supported by injury report and post mortem report. We are 

not therefore persuaded to take a different view than what has been taken by 

the High Court. Since the Trial Court doubted the presence of all the accused 

and had proceeded to hold only as against the accused-Ashok Das alias Gopal 

Das by relying upon the specific overt act alleged against him, while the 

evidence rendered on behalf of the prosecution fully establish the participation 

of all the accused in the offence, we are convinced that the principles laid down 

in the decisions referred to and relied upon by the learned counsel for the 

appellants in such situations did show that the conclusions drawn by the 

Division Bench in the impugned judgments was fully justified and it has duly 

applied the principles set out in the decision reported in Ajit Savant Majagvai 

(supra). In paragraph 16 of the said judgment this Court has spelt out the 

principles while hearing an appeal by the High Court against the order of 

acquittal passed by the trial Court, as to in what manner the appreciation of 

evidence could be made and the conclusions can be drawn. 

23. That apart, we find the decisions relied upon by the learned 

standing counsel for the State as reported in Rotash (supra) andMritunjoy 

Biswas (supra) duly supported the submissions. In the decision reported 

in Rotash (supra), in paragraph 14, this Court has held as under:- 

“14. The first information report, as is well known, is not an 

encyclopedia of the entire case. It need not contain all the details. We, 

however, although did not intend to ignore the importance of naming of 

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an accused in the first information report, but herein we have seen that 

he had been named in the earliest possible opportunity. Even assuming 

that P.W.1 did not name him in the first information report, we do not 

find any reason to disbelieve the statement of Mooli Dev, P.W.6. The 

question is as to whether a person was implicated by way of an 

afterthought or not must be judged having regard to the entire factual 

scenario obtaining in the case …… ” 

(Emphasis added) 

24. In the decision reported in Mritunjoy Biswas (supra) in paragraphs 

22 and 23, this Court by referring to the earlier decisions has noted the legal 

principles as to how a person not named in the F.I.R when proceeded against 

can be considered. Paragraphs 22 and 23 can be usefully referred, which are as 

under:- 

“22. In Mulla v. State of U.P. the accused persons were not named in 

the FIR. Taking into consideration the material brought on record, the 

Court observed that though none was named in the FIR, yet 

subsequently the names of the appellants had come into light during 

investigation and, hence, non-mentioning the names of the accused 

persons would not be fatal to the prosecution case. 

119 


23. In Ranjit Singh v. State of M.P. , after referring to the authorities 

Rotash, Rattan Singh v. State of H.P., Pedda Narayana v. State of A.P., 

Sone Lal v. State of U.P., Gurnam Kaur v. Bakshish Singh and Kirender 

Sarkar v. State of Assam, the Court opined that: (Ranjit Singh case, SCC 

p.344, para 14) 

“14….in case the informant fails to name a particular 

accused in the FIR, and the said accused is named at the earliest 

opportunity, when the statements of witnesses are recorded, it 

cannot tilt the balance in favour of the accused.” 

(Emphasis added) 

25. When we apply the above principles to the facts of this case, we are 

convinced that the implication of all the five accused was perfectly justified and


was supported by legal evidence as was spoken to by the relevant witnesses 

which was duly corroborated by the medical evidence. Therefore, mere non 

mentioning of two of the names in the F.I.R cannot be fatal to the case of the 

prosecution. 

26. As far as the submission made on the ground that some of the 

weapons were not recovered, expert opinion relating to blood stain and the 

delay involved in forwarding the F.I.R to the Magistrate, non examination of the 

person who accompanied P.W.7, the hostility displayed by P.W.10, where all 

though sought to be relied upon heavily on behalf of the accused, we find that 

those facts do not materially affect the case of the prosecution. 

27. In so far as the alleged delay in forwarding the F.I.R to the 

Magistrate, we find that the High Court was conscious of the said fact and has 

made a specific reference to the said fact in paragraph 24 of the impugned 

judgment wherein, it ultimately held that there was no material on record to 

show or suggest that the F.I.R was tampered or it was fabricated at a later date 

120 


by antedating it or the delay in sending the F.I.R by P.W.3 or the delay in placing 

it before SDJM by the Sub Inspector of Police or the delay in signing the F.I.R by 

SDJM on 06.04.1996 was so very vital to doubt the case of the prosecution. We 

fully concur with the said view expressed by the Division Bench. 

28. Having regard to our above conclusion, we do not find any merit in 

the appeals, the appeals fail and the same are dismissed. 

29. Having regard to the able assistance rendered by the learned 

Amicus Curiae Mr. Anup Kumar, we recommend a fee of Rs.10,000/- to be paid 

to him. 

--- ss --- 

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Present: Justice Kurian Joseph and justice Rohinton Fali Nariman. 

HEERA LAL - Appellant, 

Versus 

STATE OF HARYANA & ors. – Respondents. 

CIVIL APPEAL NO. 507 OF 2016 (Arising out of SLP ( C) No. 1440 of 2015) 

Land Acquisition Act , - In view of the efflux of time - Do not think it 

would be proper to consider the matter on merits - Appeal disposed of 

directing the respondent State to allot and hand over a plot as per 

Rehabilitation and Resettlement Policy of the Government within a 

period of twelve weeks from today - In case the same is not done 

within twelve weeks, the appellant will be entitled to additional 

compensation of Rs.1,000/- per day till it is handed over. 

JUDGMENT 


KURIAN,J. - (January 22, 2016) - Leave granted. 

2. The appellant approached this Court challenging the land acquisition 

proceedings. The main ground of challenge was that dispensation of Section 5-A 

inquiry was unjustified and unwarranted. However, the High Court declined to 

interfere with the acquisition. 

121 


3. But in the impugned order the High Court ordered that the appellant 

would be entitled to a plot as per Rehabilitation and Resettlement Policy of the 

Government as submitted by Respondent Nos. 1 to 3. 

4. In view of the efflux of time and intervening developments, we do not 

think it would be proper for this Court now to consider the matter on merits. 

Therefore, this appeal is disposed of directing the respondent Nos. 1 to 3 to 

allot and hand over a plot as per Rehabilitation and Resettlement Policy of the 

Government within a period of twelve weeks from today. In case the same is 

not done within twelve weeks, the appellant will be entitled to additional


compensation of Rs.1,000/- per day till it is handed over. 

5. No costs. 

--- SS --- 

122 


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Present: Justice Kurian Joseph and Justice R.F. Nariman. 

M/S MADRAS PETROCHEM LTD. & Anr. – Appellants, 

VERSUS 

BIFR & ors. – Respondents. 

CIVIL APPEAL NOS._614-615 OF 2016 

(ARISING OUT OF SLP(CIVIL) NOS. 26170-26171 OF 2008) 

(i) Sick Industrial Companies (Special Provisions) Act, 1985 – Non 

obstante clause – SICA prevails in all situations where there are earlier 

enactments with non obstante clauses similar to the Sick Industrial 

Companies (Special Provisions) Act, 1985 - Where there are later 

enactments with similar non obstante clauses, the Sick Industrial 

Companies (Special Provisions) Act, 1985 has been held to prevail only 

in a situation where the reach of the non obstante clause in the later 

Act is limited – such as in the case of the Arbitration and Conciliation 

Act, 1996 – or in the case of the later Act expressly yielding to the Sick 

Industrial Companies (Special Provisions) Act, 1985, as in the case of the 


Where such is not the case, as in the case of Special Courts Act, 1992, it 

is the Special Courts Act, 1992 which was held to prevail over the Sick 

Industrial Companies (Special Provisions) Act, 1985. [Para 33] 

123 


Held, 

Section 37 of the Securitisation and Reconstruction of Financial Assets 

and Enforcement of Security Interest Act, 2002 does not include the Sick 

Industrial Companies (Special Provisions) Act, 1985 unlike Section 34(2) of the 

Recovery of Debts Due To Banks and Financial Institutions Act, 1993 - Section 37 

of SARFAESI states that the said Act shall be in addition to and not in derogation 

of four Acts, namely, the Companies Act, the Securities Contracts (Regulation)

124 



Act, 1956, the Securities and Exchange Board of India Act, 1992 and the 

Recovery Of Debts Due To Banks And Financial Institutions Act, 1993. It is clear 

that the first three Acts deal with securities generally and the Recovery Of Debts 

Due To Banks And Financial Institutions Act, 1993 deals with recovery of debts 

due to banks and financial institutions. Interestingly, Section 41 of the 

Securitisation and Reconstruction of Financial Assets and Enforcement of 

Security Interest Act, 2002 makes amendments in three Acts – the Companies 

Act, the Securities Contracts (Regulation) Act, 1956, and the Sick Industrial 

Companies (Special Provisions) Act, 1985. It is of great significance that only the 

first two Acts are included in Section 37 and not the third i.e. the Sick Industrial 

Companies (Special Provisions) Act, 1985. This is for the obvious reason that the 

framers of the Securitisation and Reconstruction of Financial Assets and 

Enforcement of Security Interest Act, 2002 intended that the Sick Industrial 

Companies (Special Provisions) Act, 1985 be covered by the non obstante clause 

contained in Section 35,and not by the exception thereto carved out by Section 

37. Further, whereas the Recovery of Debts Due to Banks and Financial 

Institutions Act, 1993 is expressly mentioned in Section 37, the Sick Industrial 

Companies (Special Provisions) Act, 1985 is not, making the above position 

further clear. And this is in stark contrast, as has been stated above, to Section 

34(2) of the Recovery of Debts Due to Banks and Financial Institutions Act, 1993, 

which expressly included the Sick Industrial Companies (Special Provisions) Act, 

1985. The new legislative scheme qua recovery of debts contained in the 


Security Interest Act, 2002 has therefore to be given precedence over the Sick 

Industrial Companies (Special Provisions) Act, 1985, unlike the old scheme for 

recovery of debts contained in the Recovery of Debts Due to Banks and Financial 

Institutions Act, 1993. [Para 34] 

(ii) Securitisation and Reconstruction of Financial Assets and 

Enforcement of Security Interest Act, 2002, Section 35, 37 - Section 35 

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of the SARFAESI is not made subject to Section 37 of the said Act - This 

statutory scheme is at complete variance with the statutory scheme 

contained in Section 34 of the Recovery of Debts Due to Banks and 

Financial Institutions Act, 1993 in which sub-section (1) of Section 34 

containing the non obstante clause is expressly made subject to subsection 

(2) (containing the Sick Industrial Companies (Special Provisions) 

Act, 1985) by the expression “save as provided under sub-section (2)” - 

the two apparently conflicting Sections can best be harmonized by 

giving meaning to both - This can only be done by limiting the scope of 

the expression “or any other law for the time being in force” contained 

in Section 37 - This expression will therefore have to be held to mean 

other laws having relation to the securities market only, as the 

Recovery of Debts Due to Banks and Financial Institutions Act, 1993 is 

the only other special law, apart from the Securitisation and 


Act, 2002, dealing with recovery of debts due to banks and financial 

institutions. On this interpretation also, the Sick Industrial Companies 

(Special Provisions) Act, 1985 will not be included for the obvious 

reason that its primary objective is to rehabilitate sick industrial 

companies and not to deal with the securities market. [Para 35, 36] 

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(iii) Sick Industrial Companies (Special Provisions) Act, 1985, Section 

15(1) proviso 3, S. 16 - Expression “where a reference is pending” 

would necessarily include the inquiry stage before the Board under 

Section 16 of the Act - Reference can be said to be pending not only 

when an inquiry is instituted, but also after preparation and sanction of 

a scheme right till the stage the scheme has worked out successfully or 

till the BIFR gives its opinion to wind up the company. [Para 48]


(iv) Sick Industrial Companies (Special Provisions) Act, 1985, Section 

15(1) proviso 3, Section 20 - The expression “reference” used in 

Section 15(1) proviso 3 is used in contra distinction to the expression 

“proceedings” in Section 22 - “Proceedings” under Section 22 are 

actions taken against the sick company, whereas “references” are 

actions initiated by a sick company. [Para 48] 

(v) Securitisation and Reconstruction of Financial Assets and 

Enforcement of Security Interest Act, 2002 - Sick Industrial Companies 

(Special Provisions) Act, 1985 - Where secured creditors representing 

not less than 75 per cent in value of the amount outstanding against 

financial assistance decide to enforce their security under the SARFAESI 

Act, 2002, any reference pending under the Sick Industrial Companies 

(Special Provisions) Act, 1985 cannot be proceeded with further – the 

126 


proceedings under the Sick Industrial Companies (Special Provisions) 

Act, 1985 will abate. [Para 54] 

(vi) Sick Industrial Companies (Special Provisions) Act, 1985, Section 

15(1) proviso 3 - Meaning of the expression “such reference shall abate” 

- One obvious way that a reference abates is where the Board, after 

inquiry, rejects the reference for the reason that the Board is satisfied 

that the Company is not a sick industrial company as defined under the 

Act - Another way in which a reference can abate is where a scheme is 

implemented successfully, and the sick industrial company is taken out 

of the woods successfully - A third manner in which a reference can 

abate is when a scheme or schemes have failed in respect of the sick 

industrial company, and in the opinion of the BIFR, the said Company 

ought to be wound up - A fourth instance of abatement is provided by 

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the third proviso to Section 15(1) of the Sick Industrial Companies 

(Special Provisions) Act, 1985 - And that is that a reference which is 

pending shall abate if the secured creditors of not less than 3/4th in 

value of the amount outstanding against the financial assistance 

disbursed to the borrower, have taken measures to recover secured 

debts under Section 13(4) of the Securitisation and Reconstruction of 

Financial Assets and Enforcement of Security Interest Act, 2002 – The 

legislature has inserted this provision so that, if 3/4th or more of the 

secured creditors get together to take measures under Section 13(4) of 

the Securitisation and Reconstruction of Financial Assets and 

Enforcement of Security Interest Act, 2002, they will not be thwarted by 

the provisions of Section 22 of Sick Industrial Companies (Special 

Provisions) Act, 1985, and it will not be necessary for them to obtain 

BIFR permission before taking any such measures. [Para 50] 

(vii) Sick Industrial Companies (Special Provisions) Act, 1985 Section 22 

- Where an eviction petition is filed under a State Rent Act for eviction 

on the ground of non-payment of rent - Such eviction petitions have 

been held not to be suits for recovery of money - Consequently, Section 

22 of the Sick Industrial Companies (Special Provisions) Act, 1985 shall 

not apply - Gujarat Steel Tube Co. Ltd. v. Virchandbhai B. Shah, (1999) 8 

SCC P.11 referred to. [Para 52] 

127 


(viii) Sick Industrial Companies (Special Provisions) Act, 1985 Section 22 

- Recovery Of Debts Due To Banks And Financial Institutions Act, 1993 - 

SICA will continue to apply in the case of unsecured creditors seeking to 

recover their debts from a sick industrial company - Sick Industrial 

Companies (Special Provisions) Act, 1985 overrides the provisions of the


Recovery Of Debts Due To Banks And Financial Institutions Act, 1993. 

[Para 54] 

(ix) Securitisation and Reconstruction of Financial Assets and 


(Special Provisions) Act, 1985 - Where a secured creditor of a sick 

industrial company seeks to recover its debt in the manner provided by 

Section 13(2) of SARFAESI Act, 2002, such secured creditor may realise 

such secured debt under Section 13(4) of the SARFAESI Act, 2002, 

notwithstanding the provisions of Section 22 of the Sick Industrial 

Companies (Special Provisions) Act, 1985. [Para 54] 

(x) Securitisation and Reconstruction of Financial Assets and 


(Special Provisions) Act, 1985 - In a situation where there are more 

128 


than one secured creditor of a sick industrial company or it has been 

jointly financed by secured creditors, and at least 60 per cent of such 

secured creditors in value of the amount outstanding as on a record 

date do not agree upon exercise of the right to realise their security 

under the Securitisation and Reconstruction of Financial Assets and 

Enforcement of Security Interest Act, 2002, Section 22 of the Sick 

Industrial Companies (Special Provisions) Act, 1985 will continue to 

have full play. [Para 54] 

Held, 

Where, under Section 13(9) of the Securitisation and Reconstruction of Financial 

Assets and Enforcement of Security Interest Act, 2002, in the case of a sick 

industrial company having more than one secured creditor or being jointly 

financed by secured creditors representing 60 per cent or more in value of the 

amount outstanding as on a record date wish to exercise their rights to enforce 

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their security under the Securitisation and Reconstruction of Financial Assets 

and Enforcement of Security Interest Act, 2002, Section 22 of the Sick Industrial 

Companies (Special Provisions) Act, 1985, being inconsistent with the exercise of 

such rights, will have no play. [Para 54] 

JUDGMENT 


R.F. Nariman, J.-(January 29, 2016) - Leave granted. 

2. The present appeals raise interesting questions on the interplay 

between the Sick Industrial Companies (Special Provisions) Act, 1985 and the 


Security Interest Act, 2002. 

The facts in appeals arising out of Special Leave Petition (Civil) 

Nos.26170-26171 of 2008 are as follows. 

3. The net worth of the Appellant No.1 Company, having eroded 

completely, the appellant No.1 company filed a reference under Section 15(1) of 

the Sick Industrial Companies (Special Provisions) Act, 1985 before the BIFR, 

which was registered as BIFR Case No.115 of 1989. On 13.12.1989, after making 

an inquiry under Section 16(1) of the Sick Industrial Companies (Special 

Provisions) Act, 1985, the Appellant company was declared sick and ICICI was 

appointed as the Operating Agency to formulate a rehabilitation scheme. On 

3.7.1991, the first rehabilitation scheme prepared by the Operating Agency was 

sanctioned, which envisaged the takeover of the appellant company by one 

Mahavir Plantation Limited - i.e. appellant No.2. The first scheme was finally 

declared a failure, and the Appellant No.1 company, on 17.1.1995, was directed 

to submit a fresh, comprehensive, revised rehabilitation scheme which was duly 

circulated. Objections to the said scheme were heard by the BIFR and the 

scheme finally sanctioned was in the form of a change of management of the 

appellant no.1 company subject to various modifications to be carried out. After 

the Appellant No.1company’s management changed hands, the second scheme, 

after being reviewed from time to time, was declared as failed on 16.5.2000. 

129 



Despite efforts by the Operating Agency to attempt to revive the company, all 

such efforts failed, and ultimately, on 30.4.2001, BIFR, on the basis of the 

recommendation of the Operating Agency, formed a prima facie opinion that 

the appellant No.1 company should be wound up under Section 20(1) of the Sick 

Industrial Companies (Special Provisions) Act, 1985. On 27.7.2001, the BIFR 

confirmed its prima facie opinion after noting that the appellant No.1 company 

had been enjoying protection under the Sick Industrial Companies (Special 

Provisions) Act, 1985 for the last 12 years. There being no acceptable viable 

rehabilitation proposal after the failure of two schemes, the appellant no.1 

company was not likely to make its net worth exceed its accumulated losses, 

and therefore BIFR recommended to the High Court of Bombay that the said 

company be wound up. On 4.2.2002, appellant No.1’s challenge to the BIFR 

order was dismissed by the AAIFR. 

4. While matters stood thus, ICICI issued a notice dated 20.11.2002 

under Section 13(2) of the Securitisation and Reconstruction of Financial Assets 

130 


and Enforcement of Security Interest Act, 2002 to the appellant No.1 company 

and followed it up with a possession notice dated 9.5.2003. On 8.8.2003, ICICI 

issued a sale notice for and on behalf of all the secured creditors of the 

appellant No.1 company. Meanwhile, appellant Nos. 1 & 2 filed a writ petition 

before the Delhi High Court being Writ Petition Nos.48-49 of 2004 challenging 

the AAIFR order dated 4.2.2002 and the BIFR order dated 25.7.2001. On 

7.1.2004, the Delhi High Court stayed both the orders, which stay continued 

until 24.7.2008, when, by the impugned judgment, the Writ Petition was 

dismissed. 

5. Meanwhile, the sale notice of 8.8.2003 was challenged before the 

DRT by the appellants. The said challenge was unsuccessful, as a result of which 

an appeal was filed before the DRAT, which, by its order dated 30.6.2005, upset 

the DRT order and set aside the sale notice. However, by a judgment of the 

Madras High Court, in a challenge to the aforesaid order dated 30.6.2005, the 

Madras High Court set aside the DRATorder. The sale of movable assets for a 

sum of Rs.4.65 crores was also confirmed by the Madras High Court in favour of 

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one M/s Rahamath Steel. Vide the said order the Madras High Court also 

permitted the creditors of the Company to proceed with the sale of its 

immovable property subject to a minimum reserve price of Rs.25 crores. This 

order was never challenged and has attained finality. 

6. Meanwhile, based on a winding up proceeding by M/s BHEL, an 

unsecured creditor, and another winding up proceeding based on the opinion of 

the BIFR under Section 20 of the Sick Industrial Companies (Special Provisions) 

Act, 1985, the Bombay High Court wound up the appellant No.1 company. 

7. While matters stood thus, the Delhi High Court passed the impugned 

order on 24.7.2008, as has been stated hereinabove, in which it was of the view 

that Section 15(1) proviso 3 of the Sick Industrial Companies (Special Provisions) 

Act, 1985, when construed to include all proceedings under the Sick Industrial 

Companies (Special Provisions) Act, 1985, would make the present proceedings 

under the Sick Industrial Companies (Special Provisions) Act, 1985, abate on the 

facts of this case. Ultimately, in this view of the matter, and differing with a 

judgment of the Orissa High Court, the Delhi High Court disposed of the 

appellants’ writ petition as having become infructuous. 

8. Appeals have been filed against the said order by the present 

appellants which appeals, as has been stated hereinabove, raise interesting 

questions of law on the interplay of the Sick Industrial Companies (Special 

Provisions) Act, 1985 with the Securitisation and Reconstruction of Financial 

Assets and Enforcement of Security Interest Act, 2002. 

131 


9. A few subsequent events also need to be stated for the sake of 

completion. On 20.11.2008, the Bombay High Court modified its order dated 

30.8.2007 and restrained the Official Liquidator from taking possession of the 

secured assets of the company, and permitted the creditors to pursue their 

remedies under the Securitisation and Reconstruction of Financial Assets and 

Enforcement of Security Interest Act, 2002. M/s. Alchemist ARC Ltd. issued a 

sale notice on behalf of all the creditors ofthe appellant No.1 company for a sum 

of Rs.222.59 crores on 6.4.2013. Appellant No.2, being the corporate guarantor


of the appellant no.1 company, filed an appeal challenging the sale notice of 

6.4.2013. On 13.5.2013, DRT Chennai dismissed this petition. Vide an order 

dated 19.3.2014, the DRAT, Chennai, in an appeal made to it, directed, by way 

of an interim order, that appellant No.2 pay a sum of Rs.53.77 crores within the 

time stated therein. This DRAT order was challenged before the Madras High 

Court which, by its order dated 21.4.2014, refused to interfere with the said 

order dated 19.3.2014, and granted some additional time to appellant No.2 to 

pay the said amount of Rs.53.77 crores. We have been informed that the said 

amount has not been paid till date. The appellant No.2 has challenged this order 

of 21.4.2014 before this Court. However, the said SLP is lying in defect as on 

date despite the expiry of more than one and a half years. 

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10. Mr. C.N. Sreekumar, learned counsel appearing on behalf of the 

appellant No.1 company, submitted before us that the effect of the interim 

order of 7.1.2004 of the Delhi High Court is that the reference made by the 

appellant No.1 company getsrevived. He further submitted that no winding up 

order could be made in view of such revival, and that such orders are 

therefore non est, and the present appeals cannot be regarded as infructuous. 

He added that Section 22(1) of the Sick Industrial Companies (Special Provisions) 

Act, 1985 would automatically come into play to protect the assets of the 

appellant No.1 company. He also submitted before us, that in any case, regard 

being had to the object of the Sick Industrial Companies (Special Provisions) Act, 

1985, it would override the Securitisation and Reconstruction of Financial Assets 

and Enforcement of Security Interest Act, 2002. For this purpose, he relied on a 

judgment by this Court in KSL & Industries Ltd. v. Arihant Threads 

Ltd., (***)(2015)1 SCC 166, which held that the Sick Industrial Companies 

(Special Provisions) Act, 1985 has overridden the Recovery Of Debts Due To 

Banks And Financial Institutions Act, 1993. The said Act, being a predecessor to 

the Securitisation and Reconstruction of Financial Assets and Enforcement of 

Security Interest Act, 2002, and dealing with the same subject matter as the 

Securitisation and Reconstruction of Financial Assets andEnforcement of 

Security Interest Act, 2002 – namely, recovery of debts due to banks and 

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financial institutions, would lead to the conclusion that the 2002 Act is also 

overridden. He further contended that Section 37 of the Securitisation and 


2002 expressly refers to the Recovery Of Debts Due To Banks And Financial 

Institutions Act, 1993, and since Section 34(2) of the Recovery Of Debts Due To 

Banks And Financial Institutions Act, 1993, refers to the Sick Industrial 

Companies (Special Provisions) Act, 1985, Section 37 of the Securitisation and 


2002 should also be construed so as to include a reference to the Sick Industrial 

Companies (Special Provisions) Act, 1985. His further contention is that on a 

true construction of Section 15(1) proviso 3 of the Sick Industrial Companies 

(Special Provisions) Act, 1985, the Orissa High Court is correct and that since the 

expression “reference” would only include the initial stage of filing and 

registration of a reference before the BIFR, suchstage having gone long ago, the 

proceedings before BIFR are very much alive and have not abated. 

11. Shri C.A. Sundaram, learned senior counsel, appearing on behalf of 

M/s Alchemist Asset Reconstruction Company Limited, which is substituted in 

place of respondent Nos.2,3,4,6 and 9, has submitted that the effect of the 

interim order dated 7.1.2004 does not revive the reference of the appellant 

No.1 company before BIFR. For this purpose he relied upon Shree Chamundi 

Mopeds Ltd. v. Church of South India Trust Assn., (1992) 3 SCC 1. He also 

submitted that in any event the Securitisation and Reconstruction of Financial 

Assets and Enforcement of Security Interest Act, 2002 would override the 

provisions of the Sick Industrial Companies (Special Provisions) Act, 1985, so 

that even if the stay order dated 7.1.2004 had the effect of reviving the 

reference, that in itself would not restrain the secured creditors from 

proceeding under the Securitisation and Reconstruction of Financial Assets and 

Enforcement of Security Interest Act, 2002, nor would it render the winding up 

order passed by Bombay High Court non est. He also submitted that a large 

number of judgments of various HighCourts have taken the view which is taken 

in the impugned judgment, and that the expression “reference” would include 

133 


134 



all stages of a proceeding under the Sick Industrial Companies (Special 

Provisions) Act, 1985 including the stage of operation of a scheme. For this 

purpose, in particular, he relied heavily on a full bench decision of the Madras 

High Court in M/s. Salem Textiles Limited v. The Authorized Officer and Ors., 

reported in AIR 2013 Madras 229. He also argued that since the Recovery Of 

Debts Due To Banks And Financial Institutions Act, 1993 expressly named the 

Sick Industrial Companies (Special Provisions) Act, 1985 in Section 34(2), the Sick 

Industrial Companies (Special Provisions) Act, 1985 obviously overrode that Act. 

What is significant is that the corresponding section, namely, Section 37 of the 


Security Interest Act, 2002, expressly omits any reference to the Sick Industrial 

Companies (Special Provisions) Act, 1985, making it clear that the Securitisation 

and Reconstruction of Financial Assets and Enforcement of Security Interest Act, 

2002 would prevail over the Sick Industrial Companies (Special Provisions)Act, 

1985. That being the case, he argued that this Court’s judgment in in KSL & 

Industries Ltd. v. Arihant Threads Ltd., (***) (2015) 1 SCC 166, is, therefore, 

clearly distinguishable. He also argued that at the end of the day, since the 

movable property of the appellant No.1 company had been sold off, and since 

various High Courts – including Bombay and Madras – have passed a number of 

orders, both winding up the company and dismissing petitions challenging the 

action of his client in proceedings under the Securitisation and Reconstruction 

of Financial Assets and Enforcement of Security Interest Act, 2002, all that 

remains is sale of the immovable property of the appellant No.1 Company and 

that, therefore, nothing really remains in these appeals, which have become 

infructuous. 

Discussion: 

12. The arguments of counsel have been wide ranging, but at the end of 

the day various Sections of three statutes have to be interpreted by this Court. 

Before embarking on a consideration of the arguments and the interpretation of 

these provisions, it will be important to first set them out. 

THE SICK INDUSTRIAL COMPANIES (SPECIAL PROVISIONS) ACT, 1985 

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“Section 15. Reference to Board 

(1) When an industrial company has become a sick industrial company, 

the Board of Directors of the company, shall, within sixty days from the 

date of finalisation of the duly audited accounts of the company for the 

financial year as at the end of which the company has become a sick 

industrial company, make a reference to the Board for determination of 

the measures which shall be adopted with respect to the company:- 

Provided that if the Board of Directors had sufficient reasons even 

before such finalisation to form the opinion that the company had 

become a sick industrial company, the Board of directors shall, within 

sixty days after it has formed such opinion, make a reference to the 

Board for the determination of the measures which shall be adopted 

with respect to the company:- 

Provided further that no reference shall be made to the Board for 

Industrial and Financial Reconstruction after the commencement of the 


of Security Interest Act, 2002, where financial assets have been 

acquired by any securitisation company or reconstruction company 

under sub-section (1) of section 5 of that Act:- 

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Provided also that on or after the commencement of the Securitisation 

and Reconstruction of Financial Assets and Enforcement of Security 

Interest Act, 2002, where a reference is pending before the Board for 

Industrial and Financial Reconstruction, such reference shall abate if the 

secured creditors, representing not less than three-fourth in value of 

the amount outstanding against financial assistance disbursed to the 

borrower of such secured creditors,have taken any measures to recover 

their secured debt under sub-section (4) of section 13 of that Act. 

Section 22. Suspension of legal proceedings, contracts, etc. 

(1) Where in respect of an industrial company, an inquiry under section 

16 is pending or any scheme referred to under section 17 is under

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preparation or consideration or a sanctioned scheme is under 

implementation or where an appeal under section 25 relating to an 

industrial company is pending, then, notwithstanding, anything 

contained in the Companies Act, 1956 (1 of 1956) or any other law or 

the memorandum and articles of association of the industrial company 

or any other instrument having effect under the said Act or other law, 

no proceedings for the winding up of the industrial company or for 

execution, distress or the like against any of the properties of the 

industrial company or for the appointment of a receiver in respect 

thereof and no suit for the recovery of money or for the enforcement of 

any security against the industrial company or of any guarantee in 

respect of any loans or advance granted to the industrial company shall 

lie or be proceeded with further, except with the consent of the Board 

or, as the case may be, the Appellate Authority. (2) Where the 

management of the sick industrial company is taken over or changed in 

pursuance of any scheme sanctioned under section 18 notwithstanding 

anything contained in the Companies Act, 1956 (1 of 1956), or any other 

law or in the memorandum and articles of association of such company 

or any instrument having effect under the said Act or other law a) it 

shall not be lawful for the shareholders of such company or any other 

person to nominate or appoint any person to be a director of the 

company;b) no resolution passed at any meeting of the shareholders of 

such company shall be given effect to unless approved by the Board. (3) 

where an inquiry under section 16 is pending or any scheme referred to 

in section 17 is under preparation or during the period] of consideration 

of any scheme under section 18 or where any such scheme is 

sanctioned thereunder, for due implementation of the scheme, the 

Board may by order declare with respect to the sick industrial company 

concerned that the operation of all or any of the contracts, assurance of 

property, agreements, settlements, awards, standing orders or other 

instruments in force, to which such sick industrial company is a party or 

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which may be applicable to such sick industrial company immediately 

before the date of such order, shall remain suspended or that all or any 

of the rights, privileges, obligations and liabilities accruing or arising 

thereunder before the said date, shall remain suspended or shall be 

enforceable with such adoptions and in such manner as may be 

specified by the Board. Provided that such declaration shall not be made 

for a period exceeding two years which may be extended by one year, 

at a time so, however, that the total period shall not exceed seven years 

in the aggregate. (4) Any declaration made under sub-section (3) with 

respect to a sick industrial company shall have effect notwithstanding 

anything contained in the Companies Act, 1956 (1 of 1956), or any other 

law, the memorandum and articles of association of the company or any 

instrument having effect under the said Act, or other law or any 

agreement or any decree or order of a court, tribunal, officer or other 

authority or of any submission, settlement or standing order and 

accordingly,-(a) any remedy for the enforcement of any right, privilege, 

obligation and liability suspended or modified by such declaration, and 

all proceedings relating thereto pending before any court, tribunal, 

officer or other authority shall remain stayed or be continued subject to 

such declaration; and (b) on the declaration ceasing to have effect- (i) 

any right, privilege, obligation or liability so remaining suspended or 

modified shall become revived and enforceable as if the declaration had 

never been made; and (ii) any proceeding so remaining stayed shall be 

proceeded with, subject to the provisions of any law which may then be 

in force, from the stage which had been reached when the proceedings 

became stayed. (5) In computing the period of limitation for the 

enforcement of any right, privilege, obligation or liability, the period 

during which it or the remedy for the enforcement thereof remains 

suspended under this section shall be excluded. 

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Section 32. Effect of the Act on other laws 

(1) The provisions of this Act and of any rules or schemes made

138 



thereunder shall have effect notwithstanding anything inconsistent 

therewith contained in any other law except the provisions of the 

Foreign Exchange Regulation Act, 1973 (46 of 1973) and the Urban Land 

(Ceiling and Regulation) Act, 1976 (33 of 1976) for the time being in 

force or in the Memorandum or Articles of Association of an industrial 

company or in any other instrument having effect by virtue of any law 

other than this Act. (2) Where there has been under any scheme under 

this Act an amalgamation of a sick industrial company with another 

company, the provisions ofsection 72A of the Income-tax Act, 1961 (43 

of 1961), shall, subject to the modifications that the power of the 

Central Government under that section may be exercised by the Board 

without the Central Government under that section may be exercised 

by the Board without any recommendation by the specified authority 

referred to in that section, apply in relation to such amalgamation as 

they apply in relation to the amalgamation of a company owning an 

industrial undertaking with another company. 

The Recovery Of Debts Due To Banks And Financial Institutions Act, 

1993 

Section 17. Jurisdiction, powers and authority of Tribunals. 

(1) A Tribunal shall exercise, on and from the appointed day, the 

jurisdiction, powers and authority to entertain and decide applications 

from the banks and financial institutions for recovery of debts due to 

such banks and financial institutions. (2) An Appellate Tribunal shall 

exercise, on and from the appointed day, the jurisdiction, powers and 

authority to entertain appeals against any order made, or deemed to 

have been made, by a Tribunal under this Act. 

Section 18. Bar of Jurisdiction. 

On and from the appointed day, no court or other authority shall have, 

or be entitled to exercise, any jurisdiction, powers or authority (except 

the Supreme Court, and a High Court exercising jurisdiction under 

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articles 226 and 227 of the Constitution) in relation to the matters 

specified in section 17. 

34. Act to have over-riding effect.— 

(1) Save as provided under sub- section (2), the provisions of this Act 

shall have effectnotwithstanding anything inconsistent therewith 

contained in any other law for the time being in force or in any 

instrument having effect by virtue of any law other than this Act. (2) The 

provisions of this Act or the rules made thereunder shall be in addition 

to, and not in derogation of, the Industrial Finance Corporation Act, 

1948 (15 of 1948), the State Financial Corporations Act, 1951 (63 of 

1951), the Unit Trust of India Act, 1963 (52 of 1963), the Industrial 

Reconstruction Bank of India Act, 1984 (62 of 1984), the Sick Industrial 

Companies (Special Provisions) Act, 1985 (1 of 1986) and the Small 

Industries Development Bank of India Act, 1989 (39 of 1989). 

The Securitisation And Reconstruction Of Financial Assets And 

Enforcement Of Security Interest Act, 2002 

Section 13. Enforcement of security interest 

(1) Notwithstanding anything contained in section 69 or section 69A of 

the Transfer of Property Act, 1882 (4 of 1882), any security interest 

created in favour of any secured creditor may be enforced, without the 

intervention of court or tribunal, by such creditor in accordance with 

the provisions of this Act. (2) Where any borrower, who is under a 

liability to a secured creditor under a security agreement, makes any 

default in repayment of secured debt or any instalment thereof, and his 

account in respect of such debt is classified by the secured creditor as 

non-performing asset, then, the secured creditor may require the 

borrower by notice in writing to discharge in full his liabilities to the 

secured creditor within sixty days from the date of notice failing which 

the secured creditor shall be entitled toexercise all or any of the rights 

under sub- section (4). (3) The notice referred to in sub-section (2) shall 

139 



give details of the amount payable by the borrower and the secured 

assets intended to be enforced by the secured creditor in the event of 

non-payment of secured debts by the borrower. (3A) If, on receipt of 

the notice under sub-section (2), the borrower makes any 

representation or raises any objection, the secured creditor shall 

consider such representation or objection and if the secured creditor 

comes to the conclusion that such representation or objection is not 

acceptable or tenable, he shall communicate within one week of receipt 

of such representation or objection the reasons for non-acceptance of 

the representation or objection to the borrower:- 

140 


PROVIDED that the reasons so communicated or the likely action of the 

secured creditor at the stage of communication of reasons shall not 

confer any right upon the borrower to prefer an application to the 

Debts Recovery Tribunal under section 17 or the Court of District Judge 

under section 17A. (4) In case the borrower fails to discharge his liability 

in full within the period specified in sub-section (2), the secured creditor 

may take recourse to one or more of the following measures to recover 

his secured debt, namely:-- (a) take possession of the secured assets of 

the borrower including the right to transfer by way of lease, assignment 

or sale for realising the secured asset; (b) take over the management of 

the business of the borrower including the right to transfer by way of 

lease, assignment or sale for realising the secured asset:- 

PROVIDED that the right to transfer by way of lease, assignment or sale 

shall be exercised onlywhere the substantial part of the business of the 

borrower is held as security for the debt:- 

PROVIDED FURTHER that where the management of whole of the 

business or part of the business is severable, the secured creditor shall 

take over the management of such business of the borrower which is 

relatable to the security for the debt. (c) appoint any person (hereafter 

referred to as the manager), to manage the secured assets the 

possession of which has been taken over by the secured creditor; (d) 

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require at any time by notice in writing, any person who has acquired 

any of the secured assets from the borrower and from whom any 

money is due or may become due to the borrower, to pay the secured 

creditor, so much of the money as is sufficient to pay the secured debt. 

(5) Any payment made by any person referred to in clause (d) of subsection 

(4) to the secured creditor shall give such person a valid 

discharge as if he has made payment to the borrower. (5A) Where the 

sale of an immovable property, for which a reserve price has been 

specified, has been postponed for want of a bid of an amount not less 

than such reserve price, it shall be lawful for any officer of the secured 

creditor, if so authorised by the secured creditor in this behalf, to bid for 

the immovable property on behalf of the secured creditor at any 

subsequent sale. (5B) Where the secured creditor, referred to in subsection 

(5A), is declared to be the purchaser of the immovable property 

at any subsequent sale, the amount of the purchase price shall be 

adjusted towards the amount of the claim of the secured creditor for 

which the auction of enforcement ofsecurity interest is taken by the 

secured creditor, under sub-section (4) of section 13. (5C) The 

provisions of section 9 of the Banking Regulation Act, 1949(10 of 1949) 

shall, as far as may be, apply to the immovable property acquired by 

secured creditor under sub-section (5A).] (6) Any transfer of secured 

asset after taking possession thereof or take over of management under 

sub-section (4), by the secured creditor or by the manager on behalf of 

the secured creditor shall vest in the transferee all rights in, or in 

relation to, the secured asset transferred as if the transfer had been 

made by the owner of such secured asset. (7) Where any action has 

been taken against a borrower under the provisions of sub-section (4), 

all costs, charges and expenses which, in the opinion of the secured 

creditor, have been properly incurred by him or any expenses incidental 

thereto, shall be recoverable from the borrower and the money which is 

received by the secured creditor shall, in the absence of any contract to 

141 


142 



the contrary, be held by him in trust, to be applied, firstly, in payment of 

such costs, charges and expenses and secondly, in discharge of the dues 

of the secured creditor and the residue of the money so received shall 

be paid to the person entitled thereto in accordance with his rights and 

interests. (8) If the dues of the secured creditor together with all costs, 

charges and expenses incurred by him are tendered to the secured 

creditor at any time before the date fixed for sale or transfer, the 

secured asset shall not be sold or transferred by the secured creditor, 

and no further step shall be taken by him for transfer or sale of that 

secured asset. (9) In the case of financing of a financial asset by more 

than one secured creditors or joint financing of a financial asset by 

secured creditors, no securedcreditor shall be entitled to exercise any or 

all of the rights conferred on him under or pursuant to sub-section (4) 

unless exercise of such right is agreed upon by the secured creditors 

representing not less than sixty per cent in value of the amount 

outstanding as on a record date and such action shall be binding on all 

the secured creditors:- 

PROVIDED that in the case of a company in liquidation, the amount 

realised from the sale of secured assets shall be distributed in 

accordance with the provisions of section 529A of the Companies Act, 

1956 (1 of 1956):- 

PROVIDED FURTHER that in the case of a company being wound up on 

or after the commencement of this Act, the secured creditor of such 

company, who opts to realise his security instead of relinquishing his 

security and proving his debt under proviso to sub-section (1) of section 

529 of the Companies Act, 1956 (1 of 1956), may retain the sale 

proceeds of his secured assets after depositing the workmen's dues 

with the liquidator in accordance with the provisions of section 529A of 

that Act:- 

PROVIDED ALSO that the liquidator referred to in the second proviso 

shall intimate the secured creditors the workmen's dues in accordance 

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with the provisions of section 529A of the Companies Act, 1956 (1 of 

1956) and in case such workmen's dues cannot be ascertained, the 

liquidator shall intimate the estimated amount of workmen's dues 

under that section to the secured creditor and in such case the secured 

creditor may retain the sale proceeds of the secured assets after 

depositing the amount of such estimated dues with the liquidator:- 

PROVIDED ALSO that in case the secured creditor deposits the 

estimated amount of workmen's dues, such creditor shall be liable to 

pay the balance ofthe workmen's dues or entitled to receive the excess 

amount, if any, deposited by the secured creditor with the liquidator:- 

PROVIDED ALSO that the secured creditor shall furnish an undertaking 

to the liquidator to pay the balance of the workmen's dues, if any. 

Explanation:- 

For the purposes of this sub-section,-- (a) "record date" means the date 

agreed upon by the secured creditors representing not less than threefourth 

in value of the amount outstanding on such date; (b) "amount 

outstanding" shall include principal, interest and any other dues payable 

by the borrower to the secured creditor in respect of secured asset as 

per the books of account of the secured creditor. (10) Where dues of 

the secured creditor are not fully satisfied with the sale proceeds of the 

secured assets, the secured creditor may file an application in the form 

and manner as may be prescribed to the Debts Recovery Tribunal 

having jurisdiction or a competent court, as the case may be, for 

recovery of the balance amount from the borrower. (11) Without 

prejudice to the rights conferred on the secured creditor under or by 

this section, the secured creditor shall be entitled to proceed against 

the guarantors or sell the pledged assets without first taking any of the 

measures specified in clauses (a) to (d) of sub-section (4) in relation to 

the secured assets under this Act. (12) The rights of a secured creditor 

under this Act may be exercised by one or more of his officers 

authorised in this behalf in such manner as may be prescribed. (13) No 

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borrower shall, after receipt of notice referred to in sub-section (2), 

transfer by way of sale, lease or otherwise (other than in the 

ordinarycourse of his business) any of his secured assets referred to in 

the notice, without prior written consent of the secured creditor. 

Section 35. The provisions of this Act to override other laws 

The provisions of this Act shall have effect, notwithstanding anything 

inconsistent therewith contained in any other law for the time being in 

force or any instrument having effect by virtue of any such law. 

Section 37. Application of other laws not barred 

The provisions of this Act or the rules made thereunder shall be in 

addition to, and not in derogation of, the Companies Act, 1956 (1 of 

1956), the Securities Contracts (Regulation) Act, 1956 (42 of 1956), the 

Securities and Exchange Board of India Act, 1992 (15 of 1992), the 

Recovery of Debts Due to Banks and Financial Institutions Act, 1993 (51 

of 1993) or any other law for the time being in force. 

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Section 41. Amendments of certain enactments 

The enactments specified in the Schedule shall be amended in the 

manner specified therein.” 

THE SCHEDULE (Section 41) 

Year 

Act 

Short title 

Amendment 

No. 

1956 1 The Companies 

Act 1956 

In section 4A in sub-section 

(1) after clause (vi) insert 

the following:-- "(vii) the 

securitisation company or 

the reconstruction company 

which has obtained a 

certificate of registration 

under sub-section (4) of 

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section 3 of the 

Securitisation and 

Reconstruction of Financial 

Assets and Enforcement of 

Security Interest Act 2002" 

1956 42 The Securities 

Contracts 

(Regulation) Act 

1956 

1986 1 The Sick 

Industrial 

Companies 

(Special 

Provisions) Act 

1985 

In section 2 in clause (h) 

after sub-clause (ib) insert 

the following:-- " (ic) 

security receipt as defined in 

clause (zg) of section 2 of 

the Securitisation and 



Security Interest Act 2002" 

In section 15 in sub-section 

(1) after the proviso insert 

the 

following:-- 

"PROVIDED FURTHER 

that no reference shall be 

made to the Board for 

Industrial and Financial 

Reconstruction after the 

commencement of the 

Securitisation and 



Security Interest Act 2002 

where financial assets have 

been acquired by any 

145 


146 



securitisation company or 

reconstruction company 


section 5 of that Act: 

PROVIDED ALSO that on 

or after the commencement 

of the Securitisation and 



Security Interest Act 2002 

where a reference is pending 

before the Board for 

Industrial and Financial 

Reconstruction such 

reference shall abate if the 

secured 

creditors 

representing not less than 

three-fourth in value of the 

amount outstanding against 

financial assistance 

disbursed to the borrower of 

such secured creditors have 

taken any measures to 

recover their secured debt 


section 13 of that Act." 

13. It is important at this stage to refer to the genesis of these three 

legislations. Each of them deals with different aspects of recovery of debts due 

to banks and financial institutions. Two of them refer to creditors’ interests and 

how best to deal with recovery of outstanding loans and advances made by 

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them on the one hand, whereas the Sick Industrial Companies (Special 

Provisions) Act, 1985, on the other hand, deals with certain debtors which are 

sick industrial companies (i.e. companies running industries named in the 

schedule to the Industries (Development and Regulation) Act, 1951) and 

whether such “debtors” having become “sick”, are to be rehabilitated. The 

question, therefore, is whether the public interest in recovering debts due to 

banks and financial institutions is to give way to the public interest in 

rehabilitation of sick industrial companies, regard being had to the present 

economic scenario in the country, as reflected in Parliamentary Legislation. 

14. We begin, first, with the Sick Industrial Companies (Special 

Provisions) Act, 1985. The Statement of Objects and Reasons for this Act reads 

as under:- 

“THE SICK INDUSTRIAL COMPANIES (SPECIAL PROVISIONS) ACT, 1985 

STATEMENT OF OBJECTS AND REASONS 

The ill effects of sickness in industrial companies such as loss of 

production, loss of employment, loss of revenue to the Central and 

State Governments and locking up of investible funds and financial 

institutions are of serious concern to the Government and the society at 

large. The concern of the Government is accentuated by the alarming 

increase in the incidence of sickness in industrial companies. It has been 

recognized that in order to fully utilize the productive industrial 

assets,afford maximum protection of employment and optimize the use 

of the funds of the banks and financial institutions, it would be 

imperative to revive and rehabilitate the potentially viable sick 

industrial companies as quickly as possible. It would also be equally 

imperative to salvage the productive assets and realize the amounts due 

to the banks and financial institutions, to the extent possible, from the 

non-viable sick industrial companies through liquidation of those 

companies. 

147 


It has been the experience that the existing institutional arrangements


and procedures for revival and rehabilitation of potentially viable sick 

industrial companies are both inadequate and time-consuming. A 

multiplicity of laws and agencies makes the adoption of coordinated 

approach for dealing with sick industrial companies difficult. A need has, 

therefore, been felt to enact in public interest a legislation to provide 

for timely determination by a body of experts of the preventive, 

ameliorative, remedial and other measures that would need to be 

adopted with respect to such companies and for enforcement of the 

measures considered appropriate with utmost practicable despatch. 

The salient features of the Bill are- 

(i) application of the legislation to the industries specified in the First 

Schedule to the Industries (Development and Regulation) Act, 1951, 

with the initial exception of the scheduled industry relating to ships and 

other vessels drawn by power, which may however be brought within 

the ambit of the legislation in due course; 

148 


(ii) Identification of sickness in an industrial company, registered for not 

less than seven years, on the basis of the symptomatic indices of cash 

losses for two consecutive financial years and accumulated losses 

equalling or exceeding the networth of the company as at the end of 

the second financial year; 

(iii) the onus of reporting sickness and impending sickness at the stage 

of erosion of fifty per cent. or more of the net worth of an industrial 

company is being laid on the Board of Directors of such company; where 

the Central Government or the Reserve Bank is satisfied that an 

industrial company has become sick, it may make a reference to the 

Board, likewise if any State Government, scheduled bank or public 

financial institution having an interest in an industrial company is 

satisfied that the industrial company has become sick, it may also make 

a reference to the Board; 

(iv) establishment of Board consisting of experts in various relevant 

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fields with powers to enquire into and determine the incidence of 

sickness in industrial companies and devise suitable remedial measures 

through appropriate schemes or other proposals and for proper 

implementation thereof; 

(v) constitution of an Appellate Authority consisting of persons who are 

or have been Supreme Court Judges, senior High Court Judges and 

Secretaries to the Government of India, etc., for hearing appeals against 

the order of the Board.” 

15. A cursory reading of the Act shows that a Board for Industrial and 

Financial Reconstruction is set up by the Act, before which references are made. 

Such references can be made under Section 15 of the Act, not only by an 

industrial company as defined, which, as has been stated above, is acompany 

which runs any of the industries specified in the first schedule to the Industries 

(Development and Regulation) Act, 1951, but also by the Central or State 

Government, or public financial institution, or State level institution, or a 

scheduled bank, as the case may be. Such reference can only be made if the 

company concerned has turned sick i.e. it has to be a company running an 

industry mentioned in the first schedule to the Industries (Development and 

Regulation) Act, 1951, and must be a company registered for not less than 5 

years, which has at the end of any financial year accumulated losses equal to or 

exceeding its entire net worth. An inquiry into the working of such “sick 

industrial company” is to be made by the said Board on receipt of a reference or 

upon application or suo motu. If the Board is satisfied that the Company has 

indeed become a sick industrial company, the Board shall decide as to whether 

it is practicable for the Company to make its net worth positive within a 

reasonable time. This it may do under Section 17 of the Act, by order under subsection 

(2) of Section 17. If this is not possible, then the Board may appoint an 

Operating Agency who will prepare ascheme for rehabilitation mentioned in 

Section 18 which the Board may then sanction. The scheme may provide for all 

or any of the things mentioned in the said Section, and finally, the scheme may 

work successfully, resulting in the Company’s net worth turning positive, or may 

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be unsuccessful. In the event of it being unsuccessful, the Board may modify 

such scheme or ask for the preparation of a new scheme. If, at the end of the 

day, the first scheme or any successive schemes ultimately fail, the Board has 

then to be of the opinion that such Company is not likely to make its net worth 

positive, and that therefore it is to forward its opinion under Section 20 of the 

Act to the concerned High Court to proceed with the winding up of the said 

company. Section 22, which is of crucial importance in the working of the Act, 

suspends various legal proceedings, contracts etc., while a reference before the 

Board is pending, for the duration of the inquiry to be made and/or scheme 

prepared and finally sanctioned, and for the entire period of the working of the 

said scheme. Both Section 22(1) and (4) contain non obstante clauses 

overriding inter alia the Companies Act and any other law. In order to better 

implement the provisionsof this Act, Section 32 also contains a non 

obstante clause overriding all other laws including Memoranda and Articles of 

Association of the industrial company or any other instrument having effect by 

virtue of any other law, except the Foreign Exchange Regulation Act of 1973 and 

The Urban Land (Ceiling and Regulation) Act, 1976. 

16. While this Act had worked for a period of about 7 years, the 

Recovery of Debts Due to Banks and Financial Institutions Act, 1993 was brought 

into force, pursuant to various Committee reports. The Statement of Objects 

and Reasons for this Act reads as follows:- 

“STATEMENT OF OBJECTS AND REASONS OF THE RECOVERY OF DEBTS 

DUE TO BANKS AND FINANCIAL INSTITUTIONS ACT, 1993 

Banks and financial institutions at present experience considerable 

difficulties in recovering loans and enforcement of securities charged 

with them. The existing procedure for recovery of debts due to the 

banks and financial institutions has blocked a significant portion of their 

funds in unproductive assets, the value of which deteriorates with the 

passage of time. The Committee on the Financial System headed by Shri 

M. Narasimham has considered the setting up of the Special Tribunals 

with special powers for adjudication of such matters and speedy 

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recovery as critical to the successful implementation of the financial 

sectorreforms. An urgent need was, therefore, felt to work out a 

suitable mechanism through which the dues to the banks and financial 

institutions could be realized without delay. In 1981, a Committee under 

the Chairmanship of Shri T. Tiwari had examined the legal and other 

difficulties faced by banks and financial institutions and suggested 

remedial measures including changes in law. The Tiwari Committee had 

also suggested setting up of Special Tribunals for recovery of dues of the 

banks and financial institutions by following a summary procedure. The 

setting up of Special Tribunals will not only fulfill a long-felt need, but 

also will be an important step in the implementation of the Report of 

Narasimham Committee. Whereas on 30th September, 1990 more than 

fifteen lakhs of cases filed by the public sector banks and about 304 

cases filed by the financial institutions were pending in various courts, 

recovery of debts involved more than Rs.5622 crores in dues of Public 

Sector Banks and about Rs.391 crores of dues of the financial 

institutions. The locking up of such huge amount of public money in 

litigation prevents proper utilisation and recycling of the funds for the 

development of the country. 

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The Bill seeks to provide for the establishment of Tribunal and Appellate 

Tribunals for expeditious adjudication and recovery of debts due to 

banks and financial institutions. Notes on clauses explain in detail the 

provisions of the Bill.” 

17. The Recovery Of Debts Due To Banks And Financial Institutions Act, 

1993 took away the jurisdiction of the courts and vested this jurisdiction in 

tribunals established by the Act so as to ensure speedy recovery of debts due to 

the banks andfinancial institutions mentioned therein. This Act also included 

one appeal to the Appellate Tribunal, and transfer of all suits or other 

proceedings pending before any court to tribunals set up under the Act. The Act 

contained a non obstante clause in Section 34 stating that its provisions will 

have effect notwithstanding anything inconsistent contained in any other law


for the time being in force or in any instrument having effect by virtue of any 

other law. In the year 2000, this Act was amended so as to incorporate a new 

sub-section (2) in Section 34 together with a saving provision in sub-section (1). 

It is of some interest to note that this Act was to be in addition to and not in 

derogation of various Financial Corporation Acts and the Sick Industrial 

Companies (Special Provisions) Act, 1985. Clearly, therefore, the object of the 

2000 amendment to the Recovery of Debts due to Banks and Financial 

Institutions Act, 1993 was to make The Sick Industrial Companies (Special 

Provisions) Act, 1985 prevail over it. 

18. Regard being had to the poor working of the Recovery of Debts Due 

to Banks and Financial Institutions Act, 1993, the Securitisation and 


2002 was brought into force in the year 2002. The statement of objects and 

reasons for this Act reads as under:- 

“STATEMENT OF OBJECTS AND REASONS OF THE SECURITISATION AND 

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RECONSTRUCTION OF FINANCIAL ASSETS AND ENFORCEMENT OF 

SECURITY INTEREST ACT, 2002 

The financial sector has been one of the key drivers in India's efforts to 

achieve success in rapidly developing its economy. While the banking 

industry in India is progressively complying with the international 

prudential norms and accounting practices, there are certain areas in 

which the banking and financial sector do not have a level playing field 

as compared to other participants in the financial markets in the world. 

There is no legal provision for facilitating securitisation of financial 

assets of banks and financial institutions. Further, unlike international 

banks, the banks and financial institutions in India do not have power to 

take possession of securities and sell them. Our existing legal framework 

relating to commercial transactions has not kept pace with the changing 

commercial practices and financial sector reforms. This has resulted in 

slow pace of recovery of defaulting loans and mounting levels of 

nonperforming assets of banks and financial institutions. Narasimham 

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Committee I and II and Andhyarujina Committee constituted by the 

Central Government for the purpose of examining banking sector 

reforms have considered the need for changes in the legal system in 

respect of these areas. These Committees, inter alia, have suggested 

enactment of a new legislation for securitisation and empowering banks 

and financial institutions to take possession of thesecurities and to sell 

them without the intervention of the court. Acting on these 

suggestions, the Securitisation and Reconstruction of Financial Assets 

and Enforcement of Security Interest Ordinance, 2002 was promulgated 

on the 21st June, 2002 to regulate securitisition and reconstruction of 

financial assets and enforcement of security interest and for matters 

connected therewith or incidental thereto. The provisions of the 

Ordinance would enable banks and financial institutions to realise longterm 

assets, manage problem of liquidity, asset liability mismatches and 

improve recovery by exercising powers to take possession of securities, 

sell them and reduce nonperforming assets by adopting measures for 

recovery or reconstruction. 

2. It is now proposed to replace the Ordinance by a Bill, which, inter alia, 

153 


contains provisions of the Ordinance to provide for— 

(a) registration and regulation of securitisation companies or 

reconstruction companies by the Reserve Bank of India; 

(b) facilitating securitisation of financial assets of banks and financial 

institutions with or without the benefit of underlying securities; 

(c) facilitating easy transferability of financial assets by the securitisation 

company or reconstruction company to acquire financial assets of banks 

and financial institutions by issue of debentures or bonds or any other 

security in the nature of a debenture; 

(d) empowering securitisation companies' or reconstruction companies 

to raise funds by issue of security receipts to qualified institutional 

buyers;


(e) facilitating reconstruction of financial assets acquired by exercising 

powers of enforcement ofsecurities or change of management or other 

powers which are proposed to be conferred on the banks and financial 

institutions; 

(f) declaration of any securitisation company or reconstruction company 

registered with the Reserve Bank of India as a public financial institution 

for the purpose of section 4A of the Companies Act, 1956; 

(g) defining 'security interest' as any type of security including mortgage 

and change on immovable properties given for due repayment of any 

financial assistance given by any bank or financial institution; 

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(h) empowering banks and financial institutions to take possession of 

securities given for financial assistance and sell or lease the same or 

take over management in the event of default, i.e. classification of the 

borrower's account as non-performing asset in accordance with the 

directions given or under guidelines issued by the Reserve Bank of India 

from time to time; 

(i) the rights of a secured creditor to be exercised by one or more of its 

officers authorised in this behalf in accordance with the rules made by 

the Central Government; 

(j) an appeal against the action of any bank or financial institution to the 

concerned Debts Recovery Tribunal and a second appeal to the 

Appellate Debts Recovery Tribunal; 

(k) setting up or causing to be set up a Central Registry by the Central 

Government for the purpose of registration of transactions relating to 

securitisation, asset reconstruction and creation of security interest; 

(l) application of the proposed legislation initially to banks and financial 

institutions and empowerment of the Central Government to extend 

the applicationof the proposed legislation to non-banking financial 

companies and other entities; 

(m) non-application of the proposed legislation to security interests in 

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agricultural lands, loans not exceeding rupees one lakh and cases where 

eighty per cent, of the loans are repaid by the borrower. 

3. The Bill seeks to achieve the above objects.” 

19. This Act was brought into force as a result of two committee reports 

which opined that recovery of debts due to banks and financial institutions was 

not moving as speedily as expected, and that, therefore, certain other measures 

would have to be put in place in order that these banks and financial institutions 

would better be able to recover debts owing to them. 

20. In a challenge made to the Securitisation and Reconstruction of 

Financial Assets and Enforcement of Security Interest Act, 2002 in Mardia 

Chemicals Ltd. Etc. v. Union of India (UOI) and Ors. Etc. Etc., (***) 2003 (9) 

SCALE 185, (2004) 4 SCC 311, this Court went into the circumstances under 

which the Securitisation and Reconstruction of Financial Assets and 

Enforcement of Security Interest Act, 2002 was enacted, as follows:- 

“Some facts which need to be taken note of are that the banks and the 

financial institutions haveheavily financed the petitioners and other 

industries. It is also a fact that a large sum of amount remains 

unrecovered. Normal process of recovery of debts through courts is 

lengthy and time taken is not suited for recovery of such dues. For 

financial assistance rendered to the industries by the financial 

institutions, financial liquidity is essential failing which there is a 

blockade of large sums of amounts creating circumstances which retard 

the economic progress followed by a large number of other 

consequential ill effects. Considering all these circumstances, the 

Recovery of Debts Due to Banks and Financial Institutions Act was 

enacted in 1993 but as the figures show it also did not bring the desired 

results. Though it is submitted on behalf of the petitioners that it so 

happened due to inaction on the part of the Governments in creating 

Debts Recovery Tribunals and appointing presiding officers, for a long 

time. Even after leaving that margin, it is to be noted that things in the 

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156 



spheres concerned are desired to move faster. In the present-day global 

economy it may be difficult to stick to old and conventional methods of 

financing and recovery of dues. Hence, in our view, it cannot be said 

that a step taken towards securitisation of the debts and to evolve 

means for faster recovery of NPAs was not called for or that it was 

superimposition of undesired law since one legislation was already 

operating in the field, namely, the Recovery of Debts Due to Banks and 

Financial Institutions Act. It is also to be noted that the idea has not 

erupted abruptly to resort to such a legislation. It appears that a 

thought was given to the problems and the Narasimham Committee 

was constituted which recommended for such a legislation keeping in 

view the changing times and economic situation whereafter yet another 

Expert Committee was constituted, then alone the impugned law was 

enacted. Liquidity of finances and flow of money is essential for any 

healthy andgrowth-oriented economy. But certainly, what must be kept 

in mind is that the law should not be in derogation of the rights which 

are guaranteed to the people under the Constitution. The procedure 

should also be fair, reasonable and valid, though it may vary looking to 

the different situations needed to be tackled and object sought to be 

achieved. In its Second Report, the Narasimham Committee observed 

that NPAs in 1992 were uncomfortably high for most of the public 

sector banks. In Chapter VIII of the Second Report the Narasimham 

Committee deals about legal and legislative framework and observed:- 

“8.1. A legal framework that clearly defines the rights and liabilities of 

parties to contracts and provides for speedy resolution of disputes is a 

sine qua non for efficient trade and commerce, especially for financial 

intermediation. In our system, the evolution of the legal framework has 

not kept pace with changing commercial practice and with the financial 

sector reforms. As a result, the economy has not been able to reap the 

full benefits of the reforms process. As an illustration, we could look at 

the scheme of mortgage in the Transfer of Property Act, which is critical 

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to the work of financial intermediaries….” 

One of the measures recommended in the circumstances was to vest 

the financial institutions through special statutes, the power of sale of 

the assets without intervention of the court and for reconstruction of 

assets. It is thus to be seen that the question of non-recoverable or 

delayed recovery of debts advanced by the banks or financial 

institutions has been attracting attention and the matter was 

considered in depth by the Committees specially constituted consisting 

of the experts in the field. In the prevalent situation where the amounts 

of dues are huge and hope of early recovery is less,it cannot be said that 

a more effective legislation for the purpose was uncalled for or that it 

could not be resorted to. It is again to be noted that after the Report of 

the Narasimham Committee, yet another Committee was constituted 

headed by Mr. Andhyarujina for bringing about the needed steps within 

the legal framework. We are therefore, unable to find much substance 

in the submission made on behalf of the petitioners that while the 

Recovery of Debts Due to Banks and Financial Institutions Act was in 

operation it was uncalled for to have yet another legislation for the 

recovery of the mounting dues. Considering the totality of 

circumstances and the financial climate world over, if it was thought as 

a matter of policy to have yet speedier legal method to recover the 

dues, such a policy decision cannot be faulted with nor is it a matter to 

be gone into by the courts to test the legitimacy of such a measure 

relating to financial policy. 

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We may now consider the main enforcing provision which is pivotal to 

the whole controversy, namely, Section 13 in Chapter III of the Act. It 

provides that a secured creditor may enforce any security interest 

without intervention of the court or tribunal irrespective of Section 69 

or Section 69-A of the Transfer of Property Act where according to subsection 

(2) of Section 13, the borrower is a defaulter in repayment of 

the secured debt or any instalment of repayment and further the debt


standing against him has been classified as a non-performing asset by 

the secured creditor. Sub-section (2) of Section 13 further provides that 

before taking any steps in the direction of realizing the dues, the 

secured creditor must serve a notice in writing to the borrower 

requiring him to discharge the liabilities within a period of 60 days 

failing which the secured creditor would be entitled to take any of the 

measures as provided in sub-section (4) ofSection 13. It may also be 

noted that as per sub-section (3) of Section 13 a notice given to the 

borrower must contain the details of the amounts payable and the 

secured assets against which the secured creditor proposes to proceed 

in the event of non-compliance with the notice given under sub-section 

(2) of Section 13.” [at para 34,36 and 38] 

21. The “pivotal” provision namely Section 13 of the said Act makes it 

clear that banks and financial institutions would now no longer have to wait for 

a Tribunal judgment under the Recovery of Debts Due to Banks and Financial 

158 


Institutions Act, 1993 to be able to recover debts owing to them. They could, by 

following the procedure laid down in Section 13, take direct action against the 

debtors by taking possession of secured assets and selling them; they could also 

take over the management of the business of the borrower. They could also 

appoint any person to manage the secured assets possession of which has been 

taken over by them, and could require, at any time by notice in writing to any 

person who has acquired any of the secured assets from the borrower and from 

whom any money is due or may become due from the borrower, topay the 

secured creditor so much of the money as is sufficient to pay the secured debt. 

22. In order to further the objects of the Securitisation and 


2002, the Act contains a non obstante clause in Section 35 and also contains 

various Acts in Section 37 which are to be in addition to and not in derogation of 


Security Interest Act, 2002. Three of these Acts, namely, the Companies Act, 

1956, the Securities Contracts (Regulation) Act, 1956 and the Securities and 

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Exchange Board of India Act, 1992, relate to securities generally, whereas the 

Recovery Of Debts Due To Banks And Financial Institutions Act, 1993 relates to 

recovery of debts due to banks and financial institutions. Significantly, under 

Section 41 of this Act, three Acts are, by the schedule to this Act, amended. We 

are concerned with the third of such Acts, namely, the Sick Industrial Companies 

(Special Provisions) Act, 1985, in Section 15(1) of which two provisos have been 

added.It is the correct interpretation of the second of these provisos on which 

the fate of these appeals ultimately hangs. 

23. It is in this background that we need to embark on the next step, 

namely, to consider the following two questions which arise on the facts of this 

case:- 

(1) Whether the Securitisation and Reconstruction of Financial Assets 

and Enforcement of Security Interest Act, 2002 prevails over the Sick Industrial 

Companies (Special Provisions) Act, 1985; and 

(2) Whether the expression “where a reference is pending” in Section 

15 (1) proviso 3 of the Sick Industrial Companies (Special Provisions) Act, 1985 

would include all proceedings before the BIFR or only proceedings at the initial 

reference stage. 

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24. The occasion for answering question no. 1 is Shri Sreekumar’s 

argument that the effect of the Delhi High Court’s stay order dated 7.1.2004 is 

that the reference before the BIFR springs back into life, and with it Section 

22(1) of the Sick Industrial Companies (Special Provisions) Act, 1985. It is 

alsooccasioned by a further argument that the winding up order passed by the 

Bombay High Court dated 30.8.2007 being in the teeth of the stay order and 

Section 22 of the Sick Industrial Companies (Special Provisions) Act, 1985, is non 

est and therefore the appeals before this Court have not become infructuous. If 

Shri C.N. Sreekumar is right, then after enactment of the Securitisation and 


2002, because of the presence of Section 22(1) of the Sick Industrial Companies 

(Special Provisions) Act, 1985, none of the measures taken by the secured


creditors under Section 13 of Securitisation Act can be proceeded with because 

of the bar contained in Section 22(1) of the Sick Industrial Companies (Special 

Provisions) Act, 1985. Hence, we have first to determine whether the 


Security Interest Act, 2002 overrides Section 22 of the Sick Industrial Companies 

(Special Provisions) Act, 1985 as such overriding is only to the extent of the 

inconsistency between the two enactments. Such inconsistency is found in 

Section 22(1) of the Sick IndustrialCompanies (Special Provisions) Act, 1985, by 

which any action taken to realize debts owing to the secured creditors of sick 

industrial companies cannot be proceeded with under the 2002 Act unless the 

BIFR accords permission under Section 22(1) of the Sick Industrial Companies 

(Special Provisions) Act, 1985. 

25. It is now necessary to undertake a survey of the case law laid down 

by this court in relation to the Sick Industrial Companies (Special Provisions) Act, 

160 


1985 and its relation with other enactments. In an early judgment, namely, 

Maharashtra Tubes Ltd. v. State Industrial And Investment, (1993) 2 SCC 

144, this Court had to deal with the Sick Industrial Companies (Special 

Provisions) Act, 1985, vis-à-vis the State Financial Corporations Act, 1951. In 

paragraph 9 of the judgment it was held that both Acts were special Acts, the 

1951 Act dealing with the recovery of debts of a company pre-sickness and the 

1985 Act dealing with such recovery post-sickness. Since both the Acts 

contained non obstante clauses, it was held that the 1985 Act, being later in 

point of time, would prevail over the 1951 Act. 

26. On the other hand, in Solidaire India Ltd. v. Fairgrowth 

Financial Services Ltd. and Ors.,(***) (2001) 3 SCC 71, it was the Special 

Courts (Trial of Offences Relating to Transactions in Securities), Act, 1992 which 

came up for consideration vis-à-vis the Sick Industrial Companies (Special 

Provisions) Act, 1985. In paragraphs 9 and 10 of this Court’s judgment, this 

Court noted that both Acts were special Acts. In a significant extract from a 

Special Court judgment, which was approved by this Court, it was stated that 

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The Special Courts Act, 1992, being a later enactment and also containing a non 

obstante clause, would prevail over the Sick Industrial Companies (Special 

Provisions) Act, 1985. Had the legislature wanted to exclude the provisions of 

the Sick Industrial Companies (Special Provisions) Act, 1985, from the ambit of 

the said Act, the legislature would specifically have so provided (Emphasis ours). 

The fact that the legislature did not specifically so provide necessarily means 

that the legislature intended that the provisions of the said Act were to prevail 

over the provisions of the Sick Industrial Companies (Special Provisions) Act, 

1985. In short, when property of notified persons under the SpecialCourts Act, 

1992 stands attached, it is only the Special Court which can give directions to 

the custodian under the said Act as to disposal of such property of a notified 

party. The legislature expressly overrode Section 22 of the Sick Industrial 

Companies (Special Provisions) Act, 1985 and permitted the custodian to give 

directions under Section 11 of the Special Courts Act, 1979, notwithstanding 

Section 22 of the Sick Industrial Companies (Special Provisions) Act, 1985. 

27. In Jay Engineering Works Ltd. v. Industry Facilitation Council 

and Anr.,(***) (2006) 8 SCC 677, this time this Court had to deal with the 

Interest on Delayed Payment to Small Scale and Ancillary Industrial 

Undertakings Act, 1993 vis-à-vis the Sick Industrial Companies (Special 

Provisions) Act, 1985. Both Acts contained non obstante clauses. This Court 

referred to the 1994 amendment to the Sick Industrial Companies (Special 

Provisions) Act, 1985 and stated that the amending Act being later than the 

1993 Act, the Sick Industrial Companies (Special Provisions) Act, 1985 would, 

therefore, prevail. (See paragraph 27). 

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28. Similarly, in Morgan Securities and Credit Pvt. Ltd. v. Modi 

Rubber Ltd.,(***Justice Sinha, *** Justice P.K. Balasubramanyan) 

(2006) 12 SCC 642, the Arbitration and Conciliation Act, 1996 contained a non 

obstante clause in Section 5 thereof. Despite this being a later Act, vis-à-vis the 

Sick Industrial Companies (Special Provisions) Act, 1985, this Court held that the 

Sick Industrial Companies (Special Provisions) Act, 1985 would prevail, inasmuch


as the non obstante clause contained in the Arbitration and Conciliation Act, 

1996 had only a limited application - it applied only insofar as the extent of 

judicial intervention in arbitration proceedings is concerned. (See paragraph 

nos. 66 and 68). 

29. In an interesting concurring judgment, Balasubramanyan,J., in 

paragraph 76 held:- 

“Occasions are not infrequent when not so scrupulous debtors 

approach B.I.F.R. to stall the proceedings and to keep their creditors at 

bay. The delay before the B.I.F.R. is sought to be taken advantage of. 

162 


The Parliament has apparently taken note of this and has repealed SICA 

by the Sick Industrial Companies (Special Provisions) Repeal Act, 2003. 

The vacuum, thus created has been filled by an amendment to the 

Companies Act. But, so far, the provisions of the Amending Act and the 

Companies Act introduced, have not been broughtinto force. It appears 

to be time to consider whether these enactments should not be 

notified.” 

30. Similarly, in Tata Motors Ltd. v. Pharmaceutical Products of 

India Ltd. and Anr., (2008) 7 SCC 619, it was held, following the judgment 

in NFEF Ltd. v. Chandra Developers (P) Ltd., (2005) 8 SCC 219, that the 

Companies Act being a general enactment would have to give way to the Sick 

Industrial Companies (Special Provisions) Act, 1985 which is a later and special 

enactment. (see paragraphs 22 to 24). 

31. And in Raheja Universal Limited v. NRC Limited and 

Ors., (2012) 4 SCC 148, the Transfer of Property Act,1882 had to yield to the 

Sick Industrial Companies (Special Provisions) Act, 1985 being a general Act, as 

against the Sick Industrial Companies (Special Provisions) Act, 1985 which was a 

special Act, together with a reading of the non obstante clause contained in the 

Sick Industrial Companies (Special Provisions) Act, 1985 (see paragraphs 91 to 

93). 

32. In KSL & Industries Ltd. v. Arihant Threads Ltd., (2015) 1 SCC 

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166, it was the turn of the Recovery Of Debts Due To Banks And Financial 

Institutions Act, 1993 vis-à-vis the Sick Industrial Companies (Special Provisions) 

Act, 1985. This Court in resolving the controversy in favour of the Sick Industrial 

Companies (Special Provisions) Act, 1985 held:- 

“Sub-section (2) was added to Section 34 of the RDDB Act w.e.f. 17-1- 

2000 by Act 1 of 2000. There is no doubt that when an Act provides, as 

here, that its provisions shall be in addition to and not in derogation of 

another law or laws, it means that the legislature intends that such an 

enactment shall coexist along with the other Acts. It is clearly not the 

intention of the legislature, in such a case, to annul or detract from the 

provisions of other laws. The term “in derogation of” means “in 

abrogation or repeal of”. The Black's Law Dictionary sets forth the 

following meaning for “derogation”: 

“derogation.—The partial repeal or abrogation of a law by a later Act 

that limits its scope or impairs its utility and force.” 

It is clear that sub-section (1) contains a non obstante clause, which 

gives the overriding effect to the RDDB Act. Sub-section (2) acts in the 

nature of an exception to such an overriding effect. It states that this 

overriding effect is in relation to certain laws and that the RDDB Act 

shall be in addition to and not in abrogation of, such laws. SICA is 

undoubtedly one such law. 

163 


There is no doubt that both are special laws. SICA is a special law, which 

deals with the reconstruction of sick companies and matters incidental 

thereto, though it is general as regards other matters such as recovery 

of debts. The RDDB Act is also a special law, which deals with the 

recovery of money due to banks or financial institutions, through a 

special procedure, though it may be general as regards other matters 

such as the reconstruction of sick companies which it does not even 

specifically deal with. Thus the purpose of the two laws is different. 

Parliament must be deemed to have had knowledge of the earlier law


i.e. SICA, enacted in 1985, while enacting the RDDB Act, 1993. It is with 

a view to prevent a clash of procedure, and the possibility of 

contradictory orders in regard to the same entity and its properties, and 

in particular, to preserve the steps already taken for reconstruction of a 

sick company in relation to the properties of such sick company, which 

may be charged as security with the banks or financial institutions, that 

Parliament has specifically enacted sub-section (2). SICA had been 

enacted in respect of specified and limited companies i.e. those which 

owned industrial undertakings specified in the Schedule to the IDR Act, 

as mentioned earlier, whereas the RDDB Act deals with all persons, who 

may have taken a loan from a bank or a financial institution in cash or 

otherwise, whether secured or unsecured, etc. 

In view of the observations of this Court in the decisions referred to and 

relied on by the learned counsel for the parties we find that, the 

purpose of the two enactments is entirely different. As observed earlier, 

164 


the purpose of one is to provide ameliorative measures for 

reconstruction of sick companies, and the purpose of the other is to 

provide for speedy recovery of debts of banks and financial institutions. 

Both the Acts are “special” in this sense. However, with reference to the 

specific purpose of reconstruction of sick companies, SICA must be held 

to be a special law, though it may be considered to be a general law in 

relation to the recovery of debts. Whereas, the RDDB Act may be 

considered to be a special law in relation to the recovery of debts and 

SICA may be considered to be a general law in this regard. For this 

purpose we rely on the decision in LIC v. Vijay Bahadur [(1981) 1 SCC 

315 : 1981 SCC (L&S) 111 : 1980 AIR 2181, 1981 SCR 

(1)1083] . Normally the latter of the two would prevail on the 

principle that the legislature was aware that it had enacted the earlier 

Act and yet chose to enact the subsequent Act with a non 

obstante clause. In this case, however, the express intendment of 

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Parliament in the non obstante clause of the RDDB Act does not permit 

us to take that view. Though the RDDB Act is the later enactment, subsection 

(2) of Section 34 thereof specifically provides that the provisions 

of the Act or the Rules made thereunder shall be in addition to, and not 

in derogation of, the other laws mentioned therein including SICA.” [at 

paras 36, 39, 40, and 48] 

33. A conspectus of the aforesaid decisions shows that the Sick 

Industrial Companies (Special Provisions) Act, 1985 prevails in all situations 

where there are earlier enactments with non obstante clauses similar to the Sick 

Industrial Companies (Special Provisions) Act, 1985. Where there are later 

enactments with similar non obstante clauses, the Sick Industrial Companies 

(Special Provisions) Act, 1985 has been held to prevail only in a situation where 

the reach of the non obstante clause in the later Act is limited – such as in the 

case of the Arbitration and Conciliation Act, 1996 – or in the case of the later Act 

expressly yielding to the Sick Industrial Companies (Special Provisions) Act, 

1985, as in the case of the Recovery Of Debts Due To Banks And Financial 

Institutions Act, 1993. Where such is not the case, as in the case of Special 

Courts Act, 1992, it is the Special Courts Act, 1992 which was held to prevail 

over the Sick Industrial Companies (Special Provisions) Act, 1985. 

165 


34. We have now to undertake an analysis of the Acts in question. The 

first thing to be noticed is the difference between Section 37 of the 


Security Interest Act, 2002 and Section 34 of the Recovery Of Debts Due To 

Banks And Financial Institutions Act, 1993. Section 37 of the Securitisation and 


2002 does not include the Sick Industrial Companies (Special Provisions) Act, 

1985 unlike Section 34(2) of the Recovery of Debts Due To Banks and Financial 

Institutions Act, 1993. Section 37 of the Securities and Reconstruction of 

Financial Assets and Enforcement of Security Interest Act, 2002 states that the 

said Act shall be in addition to and not in derogation of four Acts, namely, the 

Companies Act, the Securities Contracts (Regulation) Act, 1956, the Securities

166 



and Exchange Board of India Act, 1992 and the Recovery Of Debts Due To Banks 

And Financial Institutions Act, 1993. It is clear that the first three Acts deal with 

securities generally and the Recovery Of Debts Due To Banks And Financial 

Institutions Act, 1993 deals with recovery of debts due to banks and financial 

institutions. Interestingly, Section 41 of the Securitisation and Reconstruction of 

Financial Assets and Enforcement of Security Interest Act, 2002 makes 

amendments in three Acts – the Companies Act, the Securities Contracts 

(Regulation) Act, 1956, and the Sick Industrial Companies (Special Provisions) 

Act, 1985. It is of great significance that only the first two Acts are included in 

Section 37 and not the third i.e. the Sick Industrial Companies (Special 

Provisions) Act, 1985. This is for the obvious reason that the framers of the 


Security Interest Act, 2002 intended that the Sick Industrial Companies (Special 

Provisions) Act, 1985 be covered by the non obstante clause contained in 

Section 35,and not by the exception thereto carved out by Section 37. Further, 

whereas the Recovery of Debts Due to Banks and Financial Institutions Act, 1993 

is expressly mentioned in Section 37, the Sick Industrial Companies (Special 

Provisions) Act, 1985 is not, making the above position further clear. And this is 

in stark contrast, as has been stated above, to Section 34(2) of the Recovery of 

Debts Due to Banks and Financial Institutions Act, 1993, which expressly 

included the Sick Industrial Companies (Special Provisions) Act, 1985. The new 

legislative scheme qua recovery of debts contained in the Securitisation and 


2002 has therefore to be given precedence over the Sick Industrial Companies 

(Special Provisions) Act, 1985, unlike the old scheme for recovery of debts 

contained in the Recovery of Debts Due to Banks and Financial Institutions Act, 

1993. 

35. Another interesting pointer to the same conclusion is the fact that 

Section 35 of the Securitisation and Reconstruction of Financial Assets and 

Enforcement of Security Interest Act, 2002 is not made subject to Section 37 of 

the said Act. This statutory scheme is at complete variance with the statutory 

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scheme contained in Section 34 of the Recovery of Debts Due to Banks and 

Financial Institutions Act, 1993 in which sub-section (1) of Section 34 containing 

the non obstante clause is expressly made subject to sub-section (2) (containing 

the Sick Industrial Companies (Special Provisions) Act, 1985) by the expression 

“save as provided under sub-section (2)”. 

36. This is what then brings us to the doctrine of harmonious 

construction, which is one of the paramount doctrines that is applied in 

interpreting all statutes. Since neither Section 35 nor Section 37 of the 


Security Interest Act, 2002 is subject to the other, we think it is necessary to 

interpret the expression “or any other law for the time being in force” in Section 

37. If a literal meaning is given to the said expression, Section 35 will become 

completely otiose as all other laws will then be in addition to and not in 

derogation of the Securitisation and Reconstruction of Financial Assets and 

Enforcement of Security Interest Act, 2002. Obviously this could not have been 

the Parliamentary intendment, after providing in Section 35 that the 


Security Interest Act, 2002 will prevail over all other laws that are inconsistent 

therewith. A middle ground has therefore necessarily to be taken. According to 

us, the two apparently conflicting Sections can best be harmonized by giving 

meaning to both. This can only be done by limiting the scope of the expression 

“or any other law for the time being in force” contained in Section 37. This 

expression will therefore have to be held to mean other laws having relation to 

the securities market only, as the Recovery of Debts Due to Banks and Financial 

Institutions Act, 1993 is the only other special law, apart from the Securitisation 


2002, dealing with recovery of debts due to banks and financial institutions. On 

this interpretation also, the Sick Industrial Companies (Special Provisions) Act, 

1985 will not be included for the obvious reason that its primary objective is to 

rehabilitate sick industrial companies and not to deal with the securities market. 

167 


37. An interesting pointer to the direction Parliament has taken after

168 



enactment of the Securitisation and Reconstruction of Financial Assets and 

Enforcement of Security Interest Act, 2002 is also of some relevance in this 

context. The Eradi Committee Report relating to insolvency and winding up of 

companies dated 31.7.2000, observed that out of 3068 cases referred to the 

BIFR from 1987 to 2000 all but 1062 cases have been disposed of. Out of the 

cases disposed of, 264 cases were revived, 375 cases were under negotiation for 

revival process, 741 cases were recommended for winding up, and 626 cases 

were dismissed as not maintainable. These facts and figures speak for 

themselves and place a big question mark on the utility of the Sick Industrial 

Companies (Special Provisions) Act, 1985. The Committee further pointed out 

that effectiveness of the Sick Industrial Companies (Special Provisions) Act, 1985 

as has been pointed out earlier, has been severely undermined by reason of the 

enormous delays involved in the disposal of cases by the BIFR. (See paragraphs 

5.8, 5.9 and 5.15 of the Report). Consequently, the Committee recommended 

that the Sick Industrial Companies (Special Provisions) Act, 1985 be repealed 

and the provisions thereunder for revival and rehabilitation should be 

telescoped into the structure of the Companies Act, 1956 itself. 

38. Pursuant to the Eradi Committee report, the Companies Act was 

amended in 2002 by providing for the constitution of a National Company Law 

Tribunal as a substitute for the Company Law Board, the High Court, the BIFR 

and the AAIFR. The Eradi Committee Report was further given effect to by 

inserting Sections 424A to 424H into the Companies Act, 1956 which, with a few 

changes, mirrored the provisions of Sections 15 to 21 of the Sick Industrial 

Companies (Special Provisions) Act, 1985. Interestingly, the Companies 

Amendment Act of 2002 omitted a provision similar to Section 22(1) of the Sick 

Industrial Companies (Special Provisions) Act, 1985. Consequently, creditors 

were given liberty to file suits or initiate other proceedings for recovery of dues 

despite pendency of proceedings for the revival or rehabilitation of sick 

companies before the National Company Law Tribunal. 

39. This Amendment Act came under challenge, which challenge 

culminated in the Constitution Bench decision in Union of India v. R, Gandhi, 

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President, Madras Bar Association, (2010) 11 SCC 10 by which the 

amendments were upheld, with certain changes recommended by the 

Constitution Bench of this Court. 

40. Close on the heels of the amendment made to the Companies Act 

came The Sick Industrial Companies (Special Provisions) Repeal Act, 2003. This 

particular Act was meant to repeal the Sick Industrial Companies (Special 

Provisions) Act, 1985 consequent to some of its provisions being telescoped into 

the Companies Act. Thus, the Companies Amendment Act of 2002 and the SICA 

Repeal Act formed part of one legislative scheme, and neither has yet been 

brought into force. In fact, even the Companies Act, 2013, which repeals the 

Companies Act, 1956, contains Chapter 19 consisting of Sections 253 to 269 

dealing with revival and rehabilitation of sick companies along the lines of 

Sections 424A to 424H of the amended Companies Act, 1956. Conspicuous by its 

absence is a provision akin to Section 22(1) of the Sick Industrial Companies 

(Special Provisions) Act, 1985 in the 2013 Act. However, this Chapter is also yet 

to be brought into force. These statutory provisions, though not yet brought 

into force, are also an important pointer to the fact that Section 22(1) of the Sick 

Industrial Companies (Special Provisions) Act, 1985 has been statutorily sought 

to be excluded, Parliament veering around from wanting to protect sick 

industrial companies and rehabilitate them to giving credence to the public 

interest contained in the recovery of public monies owing to banks and financial 

institutions. These provisions also show that the aforesaid construction of the 

provisions of the Securitisation and Reconstruction of Financial Assets and 

Enforcement of Security Interest Act, 2002 vis-à-vis the Sick Industrial 

Companies (Special Provisions) Act, 1985, leans in favour of creditors being able 

to realize their debts outside the court process over sick industrial companies 

being revived or rehabilitated. In fact, another interesting document is the 

Report on Trend and Progress of Banking in India 2011-2012 for the year ended 

30.6.2012 submitted by the Reserve Bank of India to the Central Government in 

terms of Section 36(2) of the Banking Regulation Act, 1949. In table IV.14 the 

report provides statistics regarding trends in Non-performing Assetsbank-wise, 

169 



group-wise. As per the said table, the opening balance of Non-performing 

Assets in public sector banks for the year 2011-2012 was Rs.746 billion but the 

closing balance for 2011-2012 was Rs.1,172 billion only. The total amount 

recovered through the Securitisation and Reconstruction of Financial Assets and 

Enforcement of Security Interest Act, 2002 during 2011-2012 registered a 

decline compared to the previous year, but, even then, the amounts recovered 

under the said Act constituted 70 percent of the total amount recovered. The 

amounts recovered under the Recovery Of Debts Due To Banks And Financial 

Institutions Act, 1993 constituted only 28 per cent. All this would go to show 

that the amounts that public sector banks and financial institutions have to 

recover are in staggering figures and at long last at least one statutory measure 

has proved to be of some efficacy. This Court would be loathe to give such an 

interpretation as would thwart the recovery process under the Securitisation 


2002 which Act alone seems to have worked to some extent at least. 

170 


41. It will thus be seen that notwithstanding the non obstante clauses in 

Section 22(1) and (4), read with Section 32, Section 22 of the Sick Industrial 

Companies (Special Provisions) Act, 1985 will have to give way to the measures 

taken under the Securitisation and Reconstruction of Financial Assets and 

Enforcement of Security Interest Act, 2002 more particularly referred to in 

Section 13 of the said Act, and that this being the case, the sale notices issued 

both in 2003 and 2013 could continue without in any manner being thwarted by 

Section 22 of the Sick Industrial Companies (Special Provisions) Act, 1985. 

42. It remains to consider one argument of Shri C.N. Sreekumar. 

Learned counsel argued that Section 37 of the Securitisation and Reconstruction 

of Financial Assets and Enforcement of Security Interest Act, 2002 refers to the 

Recovery of Debts Due to Banks and Financial Institutions Act, 1993 which in 

turn contains Section 34(2) which makes the Sick Industrial Companies (Special 

Provisions) Act, 1985 prevail over the Recovery of Debts Due to Banks and 

Financial Institutions Act, 1993. It was therefore argued that since Section 37 

refers to the Recovery of Debts Due to Banks and Financial Institutions Act, 1993 

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and since Section 34(2) of the Recovery of Debts Due to Banks and Financial 

Institutions Act, 1993 refers to the Sick Industrial Companies (Special Provisions) 

Act, 1985, Section 37 should also be construed so as to include a reference to 

the Sick Industrial Companies (Special Provisions) Act, 1985. Quite apart from 

driving a coach-and-four through the object sought to be achieved by the 


Security Interest Act, 2002, this argument does not commend itself to us for the 

obvious reason that Section 34(2) refers to the Sick Industrial Companies 

(Special Provisions) Act, 1985 only for the purpose of the Recovery Of Debts Due 

To Banks And Financial Institutions Act, 1993 and for no other purpose. This is 

quite apart from the fact that, as has been noted hereinabove, the nonreference 

to the Sick Industrial Companies (Special Provisions) Act, 1985 in 

Section 37 of the Securitisation and Reconstruction of Financial Assets and 

Enforcement of Security Interest Act, 2002 was deliberate, as has been held by 

us hereinabove. 

43. Shri Sundaram is also correct when he refers to the judgment of this 

Court in Shree Chamundi Mopeds v. Church of South India Trust 

Association, (1992) 3 SCC 1. In the said judgment, this Court has held:- 

171 


“In the instant case, the proceedings before the Board under Sections 

15 and 16 of the Act had been terminated by order of the Board dated 

April 26, 1990 whereby the Board, upon consideration of the facts and 

material before it, found that the appellant-company had become 

economically and commercially non-viable due to its huge accumulated 

losses and liabilities and should be wound up. The appeal filed by the 

appellant-company under Section 25 of the Act against said order of the 

Board was dismissed by the Appellate Authority by order dated January 

7, 1991. As a result of these orders, no proceedings under the Act was 

pending either before the Board or before the Appellate Authority on 

February 21, 1991 when the Delhi High Court passed the interim order 

staying the operation of the Appellate Authority dated January 7, 1991. 

The said stay order of the High Court cannot have the effect of reviving

172 



the proceedings which had been disposed of by the Appellate Authority 

by its order dated January 7, 1991. While considering the effect of an 

interim order staying the operation of the order under-challenge, a 

distinction has to be made between quashing of an order and stay of 

operation of an order. Quashing of an order results in the restoration of 

the position as it stood on the date of the passing of the order which 

has been quashed. The stay of operation of an order does not, however, 

lead to such a result. It only means that the order which has been 

stayed would not beoperative from the date of the passing of the stay 

order and it does not mean that the said order has been wiped out from 

existence. This means that if an order passed by the Appellate Authority 

is quashed and the matter is remanded, the result would be that the 

appeal which had been disposed of by the said order of the Appellate 

Authority would be restored and it can be said to be pending before the 

Appellate Authority after the quashing of the order of the Appellate 

Authority. The same cannot be said with regard to an order staying the 

operation of the order of the Appellate Authority because in spite of the 

said order, the order of the Appellate Authority continues to exist in law 

and so long as it exists, it cannot be said that the appeal which has been 

disposed of by the said order has not been disposed of and is still 

pending. We are, therefore, of the opinion that the passing of the 

interim order dated February 21,1991 by the Delhi High Court staying 

the operation of the order of the Appellate Authority dated January 

7,1991 does not have the effect of reviving the appeal which had been 

dismissed by the Appellate authority by its order dated January 7, 1991 

and it cannot be said that after February 21, 1991, the said appeal stood 

revived and was pending before the Appellate Authority. In that view of 

the matter, it cannot be said that any proceedings under the Act were 

pending before the Board or the Appellate Authority on the date of the 

passing of the order dated August 14, 1991 by the learned Single Judge 

of the Karnataka High Court for winding up of the company or on 

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November 6, 1991 when the Division Bench passed the order dismissing 

O.S.A.No. 16 of 1991 filed by the appellant company against the order 

of the learned Single Judge dated August 14, 1991. Section 22(1) of the 

Act could not, therefore, be invoked and there was no impediment in 

the High Court dealing with the winding up petition filed by the 

respondents…..” [at para 10] 

44. A reading of the said judgment also shows that the order of stay of 

the BIFR’s opinion to wind up the company and the dismissal of the appeal 

therefrom by the AAIFR would not in any manner revive the reference under 

Section 15 of the Appellant No. 1 Company. For this reason also, it is clear that 

after the orders of the BIFR and AAIFR have been upheld by dismissal of the writ 

petition filed before the Delhi High Court by the impugned judgment, there can 

be said to be no revival of reference proceedings before the BIFR. 

45. However, Shri Sreekumar referred to three judgments in support of 

the proposition that interim orders preserve the status quo and that, therefore, 

the interim order of stay has to be obeyed during the pendency of the Writ 

Petition. For this purpose, he cited Kihoto Hollohan v. Zachillhu & Ors., 

1992 SCR (1) 686, (1992) Supp. (2) SCC 651, Ravi S. Naik v. Union 

173 


of India & Ors., (***) (1994) Supp. (2) SCC 641, AIR 1994 SC 1558, JT 1994 (1) 

SC 551, 1993 (2) SCALE 992, 1994 1 SCR 754 and BPL Ltd. & Ors. v. R. Sudhakar 

& Ors., (2004) 7 SCC 219. Each of these judgments was delivered in different 

contexts. The first judgment of Kihoto Hollohan was delivered in the context of 

landslide changes that would have taken place had a stay order not been passed 

in the context of the 10th Schedule to the Constitution of India, which was 

enacted to remedy the evil of defection. The second judgment, namely, Ravi S. 

Naik was also delivered in the same context and the third judgment was 

delivered in the context of Section 33(2)(b) of the Industrial Disputes Act, 1947. 

None of these judgments has any direct bearing on the facts before us, which 

can be said to be covered directly by the judgment in Shree Chamundi Mopeds 

Ltd. (supra).


46. Question No.2 arises on the facts of this case because of a conflict 

between the High Courts on the interpretation of Section 15(1) proviso 3. A 

large number of High Courts have, in judgments differing in detail only, taken 

the broad view that the expression “where a reference is pending” under 

Section 15(1) proviso 3 would include all proceedings before the BIFR right till 

the stage of the successful culmination of a scheme for reconstruction or the 

recommendation for winding up of the sick industrial company. These High 

Courts are Madras, Delhi, Bombay, Kerala, Punjab, Gujarat and Calcutta. All 

these judgments are referred to in an exhaustive full bench decision of the 

Madras High Court in M/s. Salem Textiles Limited v. The Authorized 

Officer and Ors., reported in AIR 2013 Madras 229. The only dissenting voice is 

that of the Orissa High Court in a judgment reported in Noble Aqua Pvt. Ltd. 

v. State Bank of India, AIR 2008 Orissa 103, which has held that the 

expression “reference” would only refer to the initial stage of filing a reference 

before the BIFR and not to subsequent stages thereof, namely inquiry, 

174 


preparation and sanction of schemes. It has to be determined as to which of 

these two sets of judgments is a correct exposition of the law. 

47. It is clear that a purely literal interpretation of the expression 

“where a reference is pending” can yield the result that the Orissa High Court 

reached. In fact, Chapter III of the Sick Industrial Companies (Special Provisions) 

Act, 1985 specifically refers, in the Chapter heading, to references, inquiries and 

schemes. While Section 15 of the Sick Industrial Companies (Special Provisions) 

Act, 1985 deals with references, Section 16 deals with inquiries into the working 

ofSick Industrial Companies. Section 18 then deals with preparation and 

sanction of schemes. 

48. What has to be examined is whether this purely literal rendering of 

the expression “where a reference is pending” is correct or not. First and 

foremost, it is important to note that the third proviso to Section 15(1) uses the 

words “is pending”. A reference has been held to be pending the moment it is 

received by the Board. In Real Value Appliances Ltd. v. Canara Bank & 

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Ors., (1998) 5 SCC 554, this Court had to decide whether the mere registration 

of a reference by the BIFR would result in the automatic cessation of all 

proceedings which are pending in civil courts and the company court against its 

assets. It was argued that in order that Section 22 of the Act can come into 

operation, the BIFR must, subsequent to the registration of the reference under 

Section 15, apply its mind and consider whether it is necessary under Section 16 

to make an inquiry. Unless an inquiry is pending, the provisions of Section 22 of 

the Act do not get attracted. It was held that once the reference is registered 

after a preliminary scrutiny, it is mandatory for the BIFR to conduct an inquiry. 

This being so, it is in furtherance of the legislative intention to see that no 

proceedings against the assets are taken before the BIFR decides, after the 

inquiry, to continue with the reference. It was thus held, having particular 

regard to Section 16(3) explanation, that an inquiry shall be deemed to have 

commenced upon the receipt by the Board of any reference or information or 

upon its knowledge reduced to writing by the Board. This being the case, this 

Court held that once the reference is registered and once it is mandatory to 

simultaneously call for information/documents from the informant, then an 

inquiry under Section 16 must be deemed to have commenced. In that view of 

the matter, Section 22 would immediately come into play. It is clear, therefore, 

that if a literal meaning were to be applied to the expression “where a reference 

is pending”, the third proviso to Section 15(1) of the Sick Industrial Companies 

(Special Provisions) Act, 1985 would be rendered otiose and the purpose for 

which it was inserted would completely fail. On a literal reading of the provision, 

such reference shall abate on steps being taken by the secured creditors to 

recover their secured debts under Section 13(4) of the Securitisation and 


2002, the moment a reference is registered. And this Court has held that the 

moment the reference is registered, an inquiry as contemplated by Section 16 

shall be deemed to commence. If that is so, then a reference can never be said 

to be pending after an inquiry commences, if learned counsel for the Appellants 

is correct. This can never be the case. It is clear, therefore, that the expression 

175 



“where a reference is pending” would necessarily include the inquiry stage 

before the Board under Section 16 of the Act. If this be the case, then the 

reference can be said to be pending not only when an inquiry is instituted, but 

also after preparation and sanction of a scheme right till the stage the scheme 

has worked out successfully or till the BIFR gives its opinion to wind up the 

company. 

49. The expression “reference” used in Section 15(1) proviso 3 is used in 

contra distinction to the expression “proceedings” in Section 22. “Proceedings” 

under Section 22 are actions taken against the sick company, whereas 

“references” are actions initiated by a sick company – it is perhaps for this 

reason that the third proviso to Section 15(1) uses the expression “reference” 

instead of the expression “proceedings”. 

50. Another important aspect as to the construction of the third proviso 

to Section 15(1) is the meaning of the expression “such reference shall abate”. 

One of the meanings of the expression “abate” is “to put an end to; to curtail; to 

176 


come to naught”. (See Ramanatha Aiyar’s Law Lexicon). A reference can be said 

to abate in one or several ways. One obvious way that a reference abates is 

where the Board, after inquiry, rejects the reference for the reason that the 

Board is satisfied that the Company is not a sick industrial company as defined 

under the Act. Another way in which a reference can abate is where a scheme is 

implemented successfully, and the sick industrial company is taken out of the 

woods successfully. A third manner in which a reference can abate is when a 

scheme or schemes have failed in respect of the sick industrial company, and in 

the opinion of the BIFR, the said Company ought to be wound up. A fourth 

instance of abatement is provided by the third proviso to Section 15(1) of the 

Sick Industrial Companies (Special Provisions) Act, 1985. And that is that a 

reference which is pending in the sense understood hereinabove shall abate if 

the secured creditors of not less than 3/4th in value of the amount outstanding 

against the financial assistance disbursed to the borrower, have taken measures 

to recover secured debts under Section 13(4) of the Securitisation and 


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2002. It is clear that the third proviso to Section 15(1) seeks to strike a balance 

between getting a sick industrial company out of the woods and secured 

creditors being able to recover the debt owed to them by such company. The 

legislature has thought it fit to annul all proceedings before the BIFR only when 

at least 3/4th of the amount outstanding against financial assistance disbursed 

to the borrower of such secured creditors have taken the measures listed in 

Section 13(4) of the Securitisation and Reconstruction of Financial Assets and 

Enforcement of Security Interest Act, 2002. The balance is therefore struck by 

the figure of “not less than 3/4th”. The legislature has inserted this provision so 

that, if 3/4th or more of the secured creditors get together to take measures 

under Section 13(4) of the Securitisation and Reconstruction of Financial Assets 

and Enforcement of Security Interest Act, 2002, they will not be thwarted by the 

provisions of Section 22 of Sick Industrial Companies (Special Provisions) Act, 

1985, and it will not be necessary for them to obtain BIFR permission before 

taking any such measures. This construction of the third proviso to Section 15(1) 

is in keeping with the march of events post 2002, when the Securitisation and 


2002 came to be enacted pursuant to various committee reports, and for the 

reasons outlined hereinabove. 

177 


51. A recent judgment of this Court in Pegasus Assets 

Reconstruction P. Ltd. v. M/s. Haryana Concast Limited & Anr., (Civil 

Appeal No. 3646 of 2011), has held, agreeing with a judgment of the Delhi 

High Court, and disapproving a judgment of the Punjab and Haryana High Court, 

that a Company Court exercising jurisdiction under the Companies Act, has no 

control in respect of sale of a secured asset by a secured creditor in exercise of 

powers available to such creditor under the Securitisation and Reconstruction of 

Financial Assets and Enforcement of Security Interest Act, 2002. Some of 

theobservations made by this Court are interesting in that this Court has held 

that the Securitisation Act is a complete code in itself, and that earlier 

judgments rendered in the context of the State Financial Corporation Act, 1951 

or the Recovery Of Debts Due To Banks And Financial Institutions Act, 1993


cannot be held applicable to the Securitisation Act. Further, the very 

incorporation of certain provisions of the Companies Act in the Securitisation 

Act themselves harmonise the latter Act with the Companies Act in respect of 

workers debts under Section 529A of the Companies Act. In a significant 

paragraph, this Court has held:- 

“The aforesaid view commends itself to us also because of clear 

intention of the Parliament expressed in Section 13 of the SARFAESI Act 

that a secured creditor has the right to enforce its security interest 

without the intervention of the court or tribunal. At the same time, this 

Act takes care that in case of grievance, the borrower, which in the case 

of a company under liquidation would mean the liquidator, will have the 

right of seeking redressal under Sections 17 and 18 of the SARFAESI 

Act.” (At para 25) 

52. The matter can be viewed from a slightly different angle also. There 

are many situations in which Section 22 of the Sick Industrial Companies (Special 

178 


Provisions) Act, 1985 will not apply. One such situation is a situation where an 

eviction petition is filed under a State Rent Act for eviction on the ground of 

non-payment of rent. Such eviction petitions have been held not to be suits for 

recovery of money. Consequently, Section 22 of the Sick Industrial Companies 

(Special Provisions) Act, 1985 has been held not to apply - See Gujarat Steel 

Tube Co. Ltd. v. Virchandbhai B. Shah, (1999) 8 SCC P.11 (paragraphs 9 

and 10). 

53. Similarly, in Kailash Nath Agarwal v. Pradeshiya Industrial & 

Investment Corpn. of U.P. Ltd., (2003) 4 SCC 305, the U.P. Act under which 

recovery proceedings initiated against guarantors at a post-decree stage were 

held to be outside the purview of Section 22 of the Sick Industrial Companies 

(Special Provisions) Act, 1985. (see paragraph 35). 

54. The resultant position may be stated thus:- 

1. Section 22 of the Sick Industrial Companies (Special Provisions) Act, 

1985 will continue to apply in the case of unsecured creditors seeking to 

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recover their debts from a sick industrial company. This is for the reason 

that the Sick Industrial Companies (Special Provisions) Act, 1985 

overrides the provisions of the Recovery Of Debts Due To Banks And 

Financial Institutions Act, 1993. 

2. Where a secured creditor of a sick industrial company seeks to 

recover its debt in the manner provided by Section 13(2) of the 


of Security Interest Act, 2002, such secured creditor may realise such 

secured debt under Section 13(4) of the Securitisation and 


Act, 2002, notwithstanding the provisions of Section 22 of the Sick 

Industrial Companies (Special Provisions) Act, 1985. 

3. In a situation where there are more than one secured creditor of a 

sick industrial company or it has been jointly financed by secured 

creditors, and at least 60 per cent of such secured creditors in value of 

the amount outstanding as on a record date do not agree upon exercise 

of the right to realise their security under the Securitisation and 


Act, 2002, Section 22 of the Sick Industrial Companies (Special 

Provisions) Act, 1985 will continue to have full play. 

179 


4. Where, under Section 13(9) of the Securitisation and Reconstruction 

of Financial Assets and Enforcement of Security Interest Act, 2002, in 

the case of a sick industrial company having more than one secured 

creditor or being jointly financed by secured creditors representing 60 

per cent or more in value of the amount outstanding as on a record 

date wish to exercise their rights to enforce their security under the 


of Security Interest Act, 2002, Section 22 of the Sick Industrial 

Companies (Special Provisions) Act, 1985, being inconsistent with the 

exercise of such rights, will have no play.


5. Where secured creditors representing not less than 75 per cent in 

value of the amount outstanding against financial assistance decide to 

enforce their security under the Securitisation and Reconstruction of 

Financial Assets and Enforcement of Security Interest Act, 2002, any 

reference pending under the Sick Industrial Companies (Special 

Provisions) Act, 1985 cannot be proceeded with further – the 

proceedings under the Sick Industrial Companies (Special Provisions) 

Act, 1985 will abate. 

55. In conclusion, it is held that the interim order dated 17.1.2004 by 

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the Delhi High Court would not have the effect of reviving the reference so as to 

thwart taking of any steps by the respondent creditors in this case under Section 

13 of the Securitisation and Reconstruction of Financial Assets and Enforcement 

of Security Interest Act, 2002. This is because the Securitisation and 


2002 prevails over the Sick Industrial Companies (Special Provisions) Act, 1985 

to the extent of inconsistency therewith. Section 15(1) proviso 3 covers all 

references pending before the BIFR, no matter whether such reference is at the 

inquiry stage, scheme stage, or winding up stage. The Orissa High Court is not 

correct in its conclusion on the interpretation of Section 15(1) proviso 3 of the 

Sick Industrial Companies (Special Provisions) Act, 1985. This being so, it is clear 

that in any case the present reference under Section 15(1) of the Appellant No. 

1 company has abated inasmuch as more than 3/4th of the secured creditors 

involved have taken steps under Section 13(4) of the Securitisation and 


2002. The appeals are accordingly dismissed. 

---SS --- 

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Present : Justice J. Chelameswar and Justice Abhay Manohar Sapre. 

TMT. KASTHURI RADHAKRISHNAN & Ors. – Appellants, 

VERSUS 

M. CHINNIYAN & Anr. – Respondents. 

Civil Appeal No.5158 OF 2009 

(i) Rent – Eviction petition - It is not necessary to implead all the coowners 

in the eviction petition - Dhannalal v. Kalawatibai and 

Others, (2002) 6 SCC 16 followed [Para 38] 

(ii) Power of Attorney Act, 1982 - Power of attorney - Is governed by 

the provisions of the Power of Attorney Act, 1982 - An agent acting 

under a power of attorney always acts, as a general rule, in the name of 

his principal - Any document executed or thing done by an agent on the 

strength of power of attorney is as effective as if executed or done in 

the name of principal, i.e., by the principal himself - An agent, 

therefore, always acts on behalf of the principal and exercises only 

those powers, which are given to him in the power of attorney by the 

principal - Any act or thing done by the agent on the strength of power 

of attorney is, therefore, never construed or/and treated to have been 

done by the agent in his personal capacity so as to create any right in 

his favour but is always construed as having done by the principal 

himself - An agent, therefore, never gets any personal benefit of any 

nature - When D, who was acting as an agent of A on the strength of 

power of attorney, executed the tenancy agreement with respondent 

No. 1 in relation to the suit premises then he did such execution for and 

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behalf of his principal - A, which resulted in creating a relationship of 

landlord and tenant between A. and respondent No. 1 in relation to the 

suit premises - In this execution, D being an agent did not get any right, 

title and interest of any nature either in the suit premises or in tenancy 

in himself - The effect of execution of tenancy agreement by an agent 

was as if A. himself had executed with respondent No.1 – No tenancy 

created with D. [Para 42, 43] 

JUDGMENT 


Abhay Manohar Sapre, J. – (January 28, 2016) - 

1) This appeal is filed by the plaintiffs against the final judgment and 

order dated 11.07.2007 passed by the High Court of Judicature at Madras in 

Civil Revision Petition No. 337 of 2002 whereby the High Court allowed the 

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revision petition filed by respondent No.1 herein and set aside the judgment 

dated 28.06.2001 of the Principal Subordinate Judge, Erode in R.C.A. No. 5 of 

2001 and order of eviction dated 31.10.2000 passed by the Rent Controller (I 

Addl. District Munsif), Erode in RCOP No. 26 of 1998. 

2) In order to appreciate the issue involved in this appeal, it is necessary 

to set out in brief the relevant facts in relation to eviction case out of which this 

appeal arises and also state the facts of three cases filed by the parties in 

respect of the suit premises because they were referred to in the proceedings 

out of which this appeal arises. 

3) The appellants (plaintiffs) are the wife and sons of one A. 

Radhakrishnan. The suit premises bearing Door No. S-3, Periyar Nagar Housing 

Unit, Erode Town, comprised in T.S. No. 909/3, Block No. 17 and 598/2 Part, 

Ward 1, Block 20, Surampatti Village, Erode Taluk, Erode sub-District, Erode 

Registration District was allotted to A. Radhakrishan by Tamil Nadu Housing 

Board. In fact, entire area was acquired by the Housing Board and one house 

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site therein wasallotted to A. Radhakrishnan. Subsequently, A. Radhakrishnan 

made construction on the site allotted to him. 

4) On 22.02.1987, A. Radhakrishnan executed a general power of 

attorney in favour of one V. Dhanapal and nominated him to administer and 

manage the suit premises on his behalf. 

5) One N. Kalidass was in occupation of the suit premises as tenant. On 

04.02.1988, he vacated and surrendered the possession of the suit premises to 

Dhanapal. Thereafter respondent No.1 took the suit premises on lease rent 

from Dhanapal under a written lease deed dated 12.02.1989 for a period of 11 

months on a monthly rent of Rs.850/- and paid Rs.4000/- as advance. 

Respondent No.1 then obtained possession of the suit premises and started 

residing therein with his family. 

6) The appellants, however, came to know that A. Radhakrishnan 

without their knowledge entered into a sale agreement dated 30.07.1987 to sell 

the suit premises to one A.S. Pongianna. The appellants, therefore, instituted a 

suit being O.S. No. 53 of 1989 (re-numbered as O.S.549/1989) in the Court of 

District Judge, Erode and sought a declaration that the sale agreement dated 

30.07.1987 was neither valid and nor binding on them and also sought a 

permanent injunction against A. Radhakrishnan restraining him from executing 

the sale deed in favour of A.S. Pongianna and delivering possession of the suit 

property to him. In this suit, respondent No. 1 was impleaded as one of 

defendants. 

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7) Respondent No.1 filed a written statement in the aforesaid suit 

reiterating therein that he was inducted in the suit premises as a tenant under a 

lease deed dated 12.02.1989 for a period of 11 months at monthly rent of 

Rs.850/- and on the expiry of the contractual period of lease, he continued to 

remain in the suit premises as a tenant. 

8) Respondent No.1 also, in the meantime, filed a suit being O.S. No. 87 

of 1989 in the Court of Subordinate Judge, Erode against A. Radhakrishnan and 

the appellants herein seeking permanent injunction restraining the appellants


from dispossessing them from the suit premises. According to respondent No.1, 

he was a tenant and was put in possession of the suit premises by Dhanapal, the 

power of attorney holder of A. Radhakrishnan, pursuant to a lease deed dated 

12.02.1989 for a period of 11 months at a monthly rent of Rs.850/-. He also 

alleged that since the appellants were dissatisfied with the rent fixed under the 

lease deed, therefore, they were attempting to dispossess him from the suit 

premises. In this suit, on 22.02.1990, A.Radhakrishnan filed a written statement 

stating inter alia that respondent No.1 was put in possession of the suit 

premises as his tenant and that he had already cancelled the power of attorney 

executed by him in favour of Dhanapal by executing a registered cancellation 

deed dated 13.03.1989. 

9) Since A. Radhakrishnan was refusing to accept the rent from February 

1989, respondent No.1 filed a petition bearing R.C.O.P. No. 2 of 1991 under 

Section 8(5) of the Tamil Nadu Buildings (Lease and Rent Control) Act in the 

Court of the Rent Controller of Erode. In the meantime on 23.09.1994, A. 

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Radhakrishnan expired intestate leaving behind him the present appellants as 

his class I heirs and one daughter – Tmt. R. Kanjana. The appellants thus became 

the owners of the suit premises by inheritance. 

10) On 14.10.1998, respondent No.1 through his advocate sent a notice 

to the appellants herein and Tmt. R. Kanjana, the daughter of late A. 

Radhakrishnan, claiming that upon payment of Rs. 1 lakh on 08.05.1988, A.S. 

Pongainna had assigned his rights in the agreement dated 30.07.1987 executed 

between him and late A. Radhakrishnan, in his favour, therefore, he called upon 

the appellants to execute the sale deed of the suit premises in his favour. 

11) The appellants then filed Eviction Petition bearing R.C.O.P. No. 26 of 

1998 in the Court of the Rent Controller (District Munsif) Erode against 

respondent No. 1 out of which the present appeal arises seeking eviction of 

respondent No.1 from the suit premises under Sections 10 (2) and 10(3)(a)(i) of 

the Tamil Nadu Buildings (Lease and Rent Control) Act 1960 (in Short “the Act”). 

The eviction was sought essentially on two grounds, namely, willful default in 

paying monthly rent since 12.02.1989 and secondly, bona fide need for the use 

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and residence of the appellants in the suit premises because according to the 

appellants they were residing in rented accommodation and had no other 

suitable house of their own in the city where they could live. 

12) Vide order dated 21.12.1998, the Court of the Subordinate Judge, 

Erode decreed O.S. No. 87 of 1989 filed by respondent No.1 against the 

appellants on the basis of an endorsement made by the appellants and passed a 

permanent injunction restraining the appellants from interfering with the 

peaceful enjoyment of respondent No.1 over the suit property and from 

dispossessing him till he was evicted under a due process of law. 

13) Vide order dated 05.01.1999, O.S. No. 53/1989 (which was 

renumbered as O.S. No. 549/1989) was dismissed as not pressed by the 

appellants. 

14) So far as the eviction petition out of which this appeal arises is 

concerned, the Rent Controller allowed RCOP No. 26 of 1998 filed by the 

appellants vide order dated 31.10.2000 and directed the eviction of respondent 

No.1 from the suit premises. It was held that the appellants are the 

owners/landlords of the suit premises. It was also held that respondent No. 1 is 

in occupation of the suit premises as tenant. It was further held that respondent 

No. 1 has committed willful default in paying the monthly rent and being a 

defaulter in payment of rent is liable to be evicted from the suit premises. It was 

also held that the appellants have proved bona fide need for their personal 

residence in the suit premises because they were living in the rented house at a 

place called Salem. The appellants were, therefore, held entitled to claim 

eviction of respondent No. 1 from the suit premises on these findings. 

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15) Against the said order, respondent No.1 filed an appeal bearing 

T.C.A. No. 5 of 2001 in the Court of Subordinate Judge, Erode. Vide order dated 

28.06.2001, the subordinate Judge, Erode dismissed the said appeal and 

confirmed the judgment passed by the Rent Controller. 

16) Against the said order, the respondent filed a revision petition being 

C.R.P. No. 337 of 2002 before the High Court. The High Court, by judgment


dated 19.12.2003, dismissed the revision petition filed by respondent No.1. 

17) Respondent no. 1 then filed an application seeking review of the 

order dated 19.12.2003 passed by the High Court in C.R.P. No. 337 of 2002. 

18) The High Court by judgment dated 05.02.2007, allowed Review 

Application No. 91 of 2004 filed by the respondent No.1. 

19) As a result of review being allowed C.R.P. No. 337/2002 was 

restored to file for its hearing on merits. The High Court, this time, by impugned 

order dated 11.07.2007 allowed the revision filed by respondent No.1 on two 

legal grounds and set aside the order of the first appellate Court and also of 

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Rent Controlling Authority. As a consequence, thereof, the eviction petition 

(RCOP No.26 of 1998) filed by the appellants was dismissed. It was held that the 

eviction petition filed by the appellants is not maintainable because the 

daughter of Late A. Radhakrishnan, Tmt. R. Kanjana was not made a party to the 

eviction petition. According to the High Court she being one of the co-owners of 

the suit premises was a necessary party to eviction petition. It was also held that 

appellants failed to establish the relationship of landlord and tenant with the 

respondent No.1 and on the other hand it appeared that tenancy in relation to 

suit property was between Dhanapal and respondent No.1. The High Court thus 

allowed the respondents’ revision essentially on these two grounds 

20) Aggrieved by the said judgment, the appellants have filed this 

appeal by way of special leave before this Court. 

21) Heard Mr. Nikhil Nayyar, learned counsel for the appellants and Mr. 

B. Adinarayan Rao, learned senior counsel for respondent No.1 and Mr. Amit 

Gupta, learned counsel for respondent No.2. 

22) Mr. Nikhil Nayyar, learned counsel appearing for the appellants 

while assailing the legality and correctness of the impugned order urged three 

submissions. 

23) In the first place, learned counsel submitted that the High Court 

having rightly dismissed the revision petition filed by respondent No.1 in the 

first round erred in allowing the review petition of respondent No.1 and in any 

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event after its restoration erred in allowing the said revision petition. It was his 

submission that the High Court committed jurisdictional error in interfering in 

its revisionary jurisdiction in upsetting well reasoned concurrent findings of facts 

recorded by the Rent Controller and the first appellate Court in appellants’ 

favour and that too on two grounds, which were not urged before the Rent 

Controller and the appellate Court by respondent No.1. 

24) In the second place, learned counsel urged that two legal grounds 

on which the High Court allowed the revision petition, namely, that non-joinder 

of one of the co-owners of the suit property (daughter of late A. Radhakrishnan) 

to the eviction petition was fatal to the filing of eviction petition and secondly, 

the appellants were not able to establish the relationship of landlord and tenant 

with respondent No.1 in relation to the suit premises, have no merit and 

deserve rejection. 

25) Elaborating this submission, learned counsel contended that so far 

as the first ground is concerned it is untenable in the light of the law laid down 

by this Court in Dhannalal v. Kalawatibai and Others, (2002) 6 SCC 16, wherein 

it is laid down that it is not necessary to implead all the co-owners of the suit 

premises in eviction petition and even if some of the co-owners have filed the 

eviction petition, it is maintainable in law. 

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According to learned counsel since this finding was recorded by the High 

Court without taking into consideration the law laid down by this Court in the 

case of Dhanalal (supra), the same deserves to be set aside. 

26) Learned counsel also pointed out that in any event, the 

aforementioned infirmity was cured by the appellants factually because the 

daughter of late A Radhakrishnan, Tmt R. Kanjana was later added as a party in 

the eviction proceedings. 

27) In the third place, learned counsel urged that so far as the second 

ground is concerned, namely, respondent No. 1 was inducted by Dhanapal in 

the suit premises and not by the appellants and, therefore, the appellants were 

not able to establish their relationship of landlord and tenant with respondent


No.1 also has no merit for the reason that Dhanapal did not execute the tenancy 

agreement with respondent No.1 in his capacity as owner/landlord of the suit 

premises but executed the said tenancy agreement on behalf of late A. 

Radhakrishnan as his power of attorney holder. 

28) Learned counsel pointed out that in these circumstances any act 

done by Dhanapal in relation to suit premises including creation of tenancy was 

an act done for and on behalf of A. Radhakrishnan. It was, therefore, urged that 

the tenancy was, as a fact, between A. Radhakrishnan being owner/landlord of 

suit premises and respondent No.1 as his tenant which later devolved on the 

appellants after the death of A. Radhakrishanan by operation of law thereby 

conferring a right on the appellants as co-owners of suit premises to file the 

eviction petition against respondent No.1 for his eviction from the suit 

premises. 

29) Lastly, learned counsel contended that on the aforementioned 

grounds, which had no substance, the High Court could not have set aside the 

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concurrent findings of facts recorded in appellants’ favour by the Rent 

Controller and the first appellate Court, which had ordered the eviction of 

respondent No.1 from the suit premises. 

30) In reply, learned counsel for respondent No.1 supported the 

impugned judgment and contended that it deserves to be upheld, calling no 

interference therein. 

31) Having heard learned counsel for the parties and on perusal of the 

record of the case, we find force in the submissions urged by learned counsel 

for the appellants. 

32) Before we proceed to examine the issues raised in this appeal, we 

consider it apposite to take note of the law laid down by this Court on three 

issues which are involved in this appeal, viz., issue in relation to revisional 

jurisdiction exercised by the High Court in rent matters; second, the scope of 

inquiry to examine the title of the landlord of the suit premises in eviction 

matters; and third, whether all the co-owners/co-landlords of suit premises are 

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necessary parties in the eviction petition filed under the Rent Laws and lastly 

law relating to power of attorney executed by principal in favour of his agent. 

33) So far as the issue pertaining to exercise of revisional jurisdiction of 

the High Court while hearing revision petition arising out of eviction matter is 

concerned, it remains no more res integra and stands settled by the 

Constitution Bench of this Court in Hindustan Petroleum Corporation Limited v. 

Dilbahar Singh (***) (2014) 9 SCC 78. Justice R.M. Lodha, the learned Chief 

Justice speaking for the Bench held in para 43 thus:- 

“43. We hold, as we must, that none of the above Rent Control Acts 

entitles the High Court to interfere with the findings of fact recorded by 

the first appellate court/first appellate authority because on 

reappreciation of the evidence, its view is different from the 

court/authority below. The consideration or examination of the 

evidence by the High Court in revisional jurisdiction under these Acts is 

confined to find out that finding of facts recorded by the 

court/authority below is according to law and does not suffer from any 

error of law. A finding of fact recorded by court/authority below, if 

perverse or has been arrived at without consideration of the material 

evidence or such finding is based onno evidence or misreading of the 

evidence or is grossly erroneous that, if allowed to stand, it would result 

in gross miscarriage of justice, is open to correction because it is not 

treated as a finding according to law. In that event, the High Court in 

exercise of its revisional jurisdiction under the above Rent Control Acts 

shall be entitled to set aside the impugned order as being not legal or 

proper. The High Court is entitled to satisfy itself as to the correctness 

or legality or propriety of any decision or order impugned before it as 

indicated above. However, to satisfy itself to the regularity, correctness, 

legality or propriety of the impugned decision or the order, the High 

Court shall not exercise its power as an appellate power to reappreciate 

or reassess the evidence for coming to a different finding on facts. 

Revisional power is not and cannot be equated with the power of 

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reconsideration of all questions of fact as a court of first appeal. Where 

the High Court is required to be satisfied that the decision is according 

to law, it may examine whether the order impugned before it suffers 

from procedural illegality or irregularity.” 

34) Similarly, so far as the scope and nature of inquiry, which is required 

to be undertaken to examine the title of the landlord in eviction matter is 

concerned, it also remains no more res integra and stands settled in the case 

of Sheela & Ors. v. Firm Prahlad Rai Prem Prakash, (2002) 3 SCC 375.Justice 

R.C.Lahoti (as His Lordship then was) speaking for the Bench held that the 

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concept of ownership in a landlord-tenant litigation governed by Rent control 

laws has to be distinguished from the one in a title suit. Indeed, ownership is a 

relative term, the import whereof depends on the context in which it is used. In 

rent control legislation, the landlord can be said to be the owner if he is entitled 

in his own legal right, as distinguished from for and on behalf of someone else 

to evict the tenant and then to retain control, hold and use the premises for 

himself. What may suffice and hold good as proof of ownership in landlordtenant 

litigation probably may or may not be enough to successfully sustain a 

claim for ownership in a title suit. 

35) Likewise, so far as issue pertaining to joinder of all co-owners in 

eviction petition filed against the tenant under the Rent Laws is concerned, the 

same also remains no more res Integra and stands settled by several decisions 

of this Court. In Dhannalal v. Kalawathibai Ors., (Supra), this Court took note of 

all case laws on the subject and explained the legal position governing the issue. 

Justice R.C.Lahoti (as His Lordship then was) speaking for the Bench held in 

paragraph 16 as under :- 

“16. It is well settled by at least three decisions of this Court, namely, 

Sri Ram Pasricha v. Jagannath,(1976) 4 SCC 184 Kanta Goel v. B.P. 

Pathak, (1977) 2 SCC 814 and Pal Singh v. Sunder Singh, (1989) 1 SCC 

444 that one of the co-owners can alone and in his own right file a suit 

for ejectment of the tenant and it is no defence open to the tenant to 

question the maintainability of the suit on the ground that the other co- 

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owners were not joined as parties to the suit. When the property 

forming the subject-matter of eviction proceedings is owned by several 

owners, every co-owner owns every part and every bit of the joint 

property along with others and it cannot be said that he is only a partowner 

or a fractional owner of the property so long as the property has 

not been partitioned. He can alone maintain a suit for eviction of the 

tenant without joining the other co-owners if such other co-owners do 

not object. In Sri Ram Pasricha case reliance was placed by the tenant 

on the English rule that if two or more landlords institute a suit for 

possession on the ground that a dwelling house is required for 

occupation of one of them as a residence the suit would fail; the 

requirement must be of all the landlords. The Court noted that the 

English rule was not followed by the High Courts of Calcutta and Gujarat 

which High Courts have respectfully dissented from the rule of English 

law. This Court held that a decree could be passed in favour of the 

plaintiff though he was not the absolute and full owner of the premises 

because he required the premises for his own use and also satisfied the 

requirement of being “if he is the owner”, the expression as employed 

by Section 13(1)(f) of the W.B. Premises Tenancy Act, 1956.” 

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36) The issues involved in this case need to be decided keeping in view 

the law laid down in the aforesaid three cases and the one cited infra. 

37) Coming to the first question, in our considered opinion, the High 

Court erred in holding that the daughter of late A. Radhakrishnan, i.e., Tmt. R. 

Kanjana was a necessary party to the eviction petition filed by the appellants 

and hence failure to implead her rendered the eviction petition as not 

maintainable. This finding of the High Court, in our view, is against the law laid 

down by this Court in the case of Dhannalal (supra), wherein it is laid down that 

it is not necessary to implead all the co-owners in the eviction petition. 

38) In the light of law laid down in the case of Dhannalal (supra), in our 

view, it was not necessary for the appellants to implead the Tmt. R. Kanjana – 

the daughter of late A. Radhakrishnan in the eviction petition. Even otherwise,


as rightly argued by learned counsel for the appellants, the High Court should 

not have allowed respondent No.1 to raise such objection for the first time in 

the revision because it was not raised in the courts below. Be that as it may, the 

daughter having been later impleaded in the proceedings, this objection was not 

even available to respondent No.1. 

39) In view of foregoing discussion, we can not concur with the finding 

of the High Court and while reversing the finding hold that the eviction petition 

can not be dismissed on the ground of non-joinder of Tmt.R. Kanjana – the 

daughter of late A. Radhakrishnan and is held maintainable. 

40) Now coming to the question as to whether the tenancy was 

between the appellants and respondent No.1 or whether it was between 

Dhanapal and respondent No.1, we are of the considered view that to begin 

with the tenancy was between A. Radhakrishanan and respondent No.1 and on 

the death of A. Radhakrishnan, it was created between the appellants being the 

Class-I heirs of A. Radhakrishnan and respondent No.1 by operation of law. 

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41) In our opinion, Dhanapal was a power of attorney holder of A. 

Radhakrishnan. He executed the tenancy agreement on behalf of the original 

owner – A. Radhakrishnan in favour of respondent No.1. Such act done by 

Dhanapal did not create any right, title and interest in his favour and nor he ever 

asserted any such right in himself and indeed rightly qua A. Radhakrishnan or 

the appellants in relation to suit premises. That apart, respondent No.1 in clear 

terms admitted in his evidence and in the pleading of cases filed by him against 

the appellants about his status as being the tenant. In the light of this legal 

position, the High Court should have held this issue in appellants’ favour. 

42) The law relating to power of attorney is governed by the provisions 

of the Power of Attorney Act, 1982. It is well settled therein that an agent acting 

under a power of attorney always acts, as a general rule, in the name of his 

principal. Any document executed or thing done by an agent on the strength of 

power of attorney is as effective as if executed or done in the name of principal, 

i.e., by the principal himself. An agent, therefore, always acts on behalf of the 

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principal and exercises only those powers, which are given to him in the power 

of attorney by the principal. Any act or thing done by the agent on the strength 

of power of attorney is, therefore, never construed or/and treated to have been 

done by the agent in his personal capacity so as to create any right in his favour 

but is always construed as having done by the principal himself. An agent, 

therefore, never gets any personal benefit of any nature. Applying the aforesaid 

principle, this Court in Suraj Lamp and Industries Private Limited (2) v. State of 

Haryana & Anr., (2012) 1 SCC 656, held in paragraphs 20 and 21 as under:- 

“20. A power of attorney is not an instrument of transfer in regard to 

any right, title or interest in an immovable property. The power of 

attorney is creation of an agency whereby the grantor authorises the 

grantee to do the acts specified therein, on behalf of grantor, which 

when executed will be binding on the grantor as if done by him (see 

Section 1-A and Section 2 of the Powers of Attorney Act, 1882). It is 

revocable or terminable at any time unless it is made irrevocable in a 

manner known to law. Even an irrevocable attorney does not have the 

effect of transferring title to the grantee. 

21. In State of Rajasthan v. Basant Nahata, (2005) 12 SCC 77, this Court 

193 


held: (SCC pp. 90 & 101, paras 13 & 52) 

“13. A grant of power of attorney is essentially 

governed by Chapter X of the Contract Act. By reason of a deed 

of power of attorney, an agent is formally appointed to act for 

the principal in one transaction or a series of transactions or to 

manage the affairs of the principal generally conferring 

necessary authority upon another person. A deed of power of 

attorney is executed by the principal in favour of the agent. The 

agent derives a right to use his name and all acts, deeds and 

things done by him and subject to the limitations contained in 

the said deed, the same shall be read as if done by the donor. A 

power of attorney is, as is well known, a document of 

convenience.


* * * 

52. Execution of a power of attorney in terms of the 

provisions of the Contract Act as also the Powers of Attorney 

Act is valid. A power of attorney, we have noticed hereinbefore, 

is executed by the donor so as to enable the donee to act on his 

behalf. Except in cases where power of attorney is coupled with 

interest, it is revocable. The donee in exercise of his power 

under such power of attorney only acts in place of the donor 

subject of course to the powers granted to him by reason 

thereof. He cannot use the power of attorney for his own 

benefit. He acts in a fiduciary capacity. Any act of infidelity or 

breach of trust is a matter between the donor and the 

donee.”An attorney-holder may however execute a deed of 

conveyance in exercise of the power granted under the power 

of attorney and convey title on behalf of the grantor.” 

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This was followed by this Court in Church of Christ Charitable Trust and 

Educational Charitable Society v. Ponniamman Educational Trust, (2012) 8 SCC 

706 (para 20) 

43) When we apply this well settled principle of law to the facts of the 

case in hand, we are of the considered view that when Dhanapal, who was 

acting as an agent of A. Radhakrishnan on the strength of power of attorney, 

executed the tenancy agreement with respondent No. 1 in relation to the suit 

premises then he did such execution for and behalf of his principal - A 

Radhakrishnan, which resulted in creating a relationship of landlord and tenant 

between A. Radhakrishnan and respondent No. 1 in relation to the suit 

premises. In this execution, Dhanapal being an agent did not get any right, title 

and interest of any nature either in the suit premises or in tenancy in himself. 

The effect of execution of tenancy agreement by an agent was as if A. 

Radhakrishnan himself had executed with respondent No.1. 

44) In view of the foregoing discussion, we are of the considered 

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opinion that the High Court was not right in holding that the tenancy in relation 

to suit premises was with Dhanapal. We cannot thus concur with the finding of 

the High Court and accordingly reverse the finding and hold that the appellants 

were able to prove that the tenancy in relation to the suit premises was 

between A. Radhakrishnan and respondent No.1 and on the death of A. 

Radhakrishnan, it was created between the appellants and respondent No.1 by 

operation of law which entitled the appellants to maintain the eviction petition 

against respondent No.1 seeking his eviction on the grounds available to them 

under the Act. 

45) Since the High Court allowed the revision filed by respondent No.1 

on the aforementioned two grounds only, which we have reversed in preceding 

paras, the revision petition filed by the respondent No.1 deserves to be 

dismissed. That apart keeping in view the law laid down by this Court 

in Hindustan Petroleum Corporation Limited Case (supra), the concurrent 

findings of facts recorded by the Rent Controller and affirmed by the first 

appellate Court in appellants’ favour on the issue of appellants bona fide need 

for their personal residence and default committed by respondent No.1 in 

paying rent to the appellants were binding on the High Court. 

195 


46) We have also perused these findings with a view to find out as to 

whether there is any perversity in these findings. We, however, find that these 

findings are based on proper appreciation of evidence as is required to be done 

in eviction matters and hence, they do not call for any interference in this 

appeal. 

47) Learned Counsel for the respondent made attempt to support the 

impugned judgment and urged submissions but we were not impressed by any 

of the submissions urged. 

48) In the light of foregoing discussion, the appeal succeeds and is 

hereby allowed. The impugned judgment is set aside and that of the judgment 

of the first appellate Court dated 28.06.2001 in R.C.A. No. 5 of 2001 is restored. 

As a consequence thereof, the eviction petition filed by the appellants against


respondent No.1 in relation to the suit premises is allowed. Respondent No.1 is, 

however, granted three months’ time to vacate the suit premises from the date 

of this judgment subject to furnishing of the usual undertaking in this Court to 

vacate the suit premises within 3 months and further on depositing all arrears of 

rent (if there are any arrears still due and not paid) till date at the same rate at 

which they had been paying monthly rent to the appellants and would also 

deposit three months’ rent in advance by way of damages for use and 

occupation. Let the undertaking, arrears of rent, damages for three months and 

cost awarded by this Court be deposited within 15 days from the date of this 

judgment. The appellants on such deposit being made would be entitled to 

withdraw the same after proper verification. 

49) The appeal is accordingly allowed with costs which is quantified at 

Rs.5000/- to be paid by respondent No.1 to the appellants. 

---SS--- 

196 


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Present: Justice Anil R. Dave and Justice Adarsh Kumar Goel 

CHIEF ENGINEER (NAVAL WORKS) & ANR. - Appellants, 

versus 

A.P. ASHA - Respondent. 


Compassionate employment - Respondent was not given appointment 

on compassionate ground as per the policy because, as per the policy, 

more deserving candidates were available for giving appointment on 

the compassionate ground - Though the case of the respondent was 

considered, she could not be appointed as there were claimants who 

were more needy than the respondent – Central Administrative 

Tribunal was not right in giving the direction to consider the case of the 

respondent again and again, especially when the case of the respondent 

had been duly considered and had been rejected, in view of the fact 

that more deserving claimants were available at the relevant time - 

Respondent has no right to be appointed on compassionate ground on 

the death of her husband if there is somebody more needy than the 

respondent. 

197 


JUDGMENT 


Anil R. Dave, J. – (15th October, 2015) - The appellants have challenged 

the validity of the judgment dated 18th May, 2005, delivered by the High Court 

of Kerala at Ernakulam. 

2. By virtue of the impugned judgment, the appellants have been 

directed to consider the case of the respondent for appointment to a suitable 

post on compassionate ground as the husband of the respondent had died in 

harness.

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3. After the death of her husband in the year 1999, the respondent 

made a request to the appellants/ employers to consider her case for 

appointment on compassionate ground. 

4. There is a policy for making an appointment on compassionate 

grounds and as per the said policy, according to the appellants, the claimants, 

who are more deserving for appointment on compassionate grounds, are given 

appointment and therefore, though the case of the respondent was considered, 

she could not be appointed as there were claimants who were more needy than 

the respondent. In the circumstances, the respondent had approached the 

Central Administrative Tribunal and the Tribunal directed the appellants to 

again consider the case of the respondent for appointment on compassionate 

ground. Being aggrieved by the order passed by the Tribunal, the appellants had 

filed a writ petition before the High Court, which has been dismissed and 

therefore, this appeal. 

5. Upon perusal of the record, we find that the respondent was not 

given appointment on compassionate ground as per the policy of the appellants 

because, as per the policy, more deserving candidates were available for giving 

appointment on the compassionate ground. In the circumstances, according to 

the appellants, the direction was not justifiable as the case of the respondent 

had already been considered thrice but every time the persons who were more 

deserving were appointed on compassionate ground. 

6. In our opinion, the respondent has no right to be appointed on 

compassionate ground on the death of her husband if there is somebody more 

needy than the respondent. It is clear from the record that the policy of the 

appellants has been strictly adhered to in the matter of giving appointment on 

compassionate ground. 

7. In the circumstances, in our opinion, the Tribunal was not right in 

giving the direction to the appellants to consider the case of the respondent 

again and again, especially when the case of the respondent had been duly 

considered and had been rejected, in view of the fact that more deserving 

claimants were available at the relevant time. We are, therefore, of the view 

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that the High Court committed an error by upholding the order of the Tribunal. 

8. The impugned judgment passed by the High Court is set aside and the 

appeal is allowed with no order as to costs. 

--- ss--- 

199 





Present:Justice Madan B. Lokur and Justice R.K. Agrawal 

INDIAN MACHINERY COMPANY – Appellant, 

versus 

M/S. ANSAL HOUSING & CONSTRUCTION LTD. – Respondent 

Civil Appeal No.557 of 2016 (Arising out of SLP(C) No.19618 of 2013) 

Consumer Protection Act, 1986 - Second complaint to the District 

Forum is maintainable when the first complaint was dismissed for 

default or non-prosecution. 

ORDER 

- (January 27, 2016) - Leave granted. 

2. We have heard learned counsel for the parties. 

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3. The only question that has arisen in this appeal is whether a second 

complaint to the District Forum under the Consumer Protection Act, 1986 is 

maintainable when the first complaint was dismissed for default or 

nonprosecution. 

4. The National Commission has taken the view in the impugned order 

that the second complaint would not be maintainable. 

5. Our attention has been drawn to a decision of this Court in New India 

Assurance Co. Ltd. v. R. Srinivasan [(2000) 3 SCC 242] wherein this precise 

question had arisen as mentioned in paragraph 5 of this decision. It is 

mentioned in that paragraph that the only question is that in view of the 

dismissal of the first complaint filed by the respondent therein, a second 

complaint on the same facts and cause of action would not lie and it ought to 

have been dismissed as not maintainable. 

6. While dealing with this issue, this Court held in paragraph 16 as 

follows: 

“This Rule *Rule 9(6) of the Tamil Nadu Consumer Protection 

Rules, 1988] is in identical terms with sub-rule (8) of Rule 4 and sub-rule 

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(8) of Rule 8. Under this sub-rule, the appeal filed before the State 

Commission against the order of the District Forum, can be dismissed in 

default or the State Commission may in its discretion dispose of it on 

merits. Similar power has been given to the National Commission under 

Rule 15(6) of the Rules made by the Central Government under Section 

30(1) of the Act. These Rules do not provide that if a complaint is 

dismissed in default by the District Forum under Rule 4(8) or by the 

State Commission under Rule 8(8) of the Rules, a second complaint 

would not lie. Thus, there is no provision parallel to the provision 

contained in Order 9 Rule 9(1) CPC which contains a prohibition that if a 

suit is dismissed in default of the plaintiff under Order 9 Rule 8, a 

second suit on the same cause of action would not lie. That being so, 

the rule of prohibition contained in Order 9 Rule 9(1) CPC cannot be 

extended to the proceedings before the District Forum or the State 

Commission. The fact that the case was not decided on merits and was 

dismissed in default of non-appearance of the complainant cannot be 

overlooked and, therefore, it would be permissible to file a second 

complaint explaining why the earlier complaint could not be pursued 

and was dismissed in default.” 

7. We have also not been shown any rule similar to Order IX, Rule 9(1) 

of the Code of Civil Procedure, 1908. That being so, and in view of the decision 

rendered by this Court, with which we have no reason to disagree, we are of the 

opinion that the second complaint filed by the appellant was maintainable on 

the facts of this case. 

201 


8. Under the circumstances, we set aside the order passed by the 

National Commission and remit the matter back to the National Commission for 

adjudicating the disputes on merits. 

9. The appeal is disposed of in view of the above. 

---ss---




Present: Justice V. Gopala Gowda and Justice S.A. Bobde. 

NOORAHAMMAD and ors – Appellants, 

versus 

STATE OF KARNATAKA – Respondent. 

Criminal Appeal No. 412 OF 2006 

(i) Criminal trial – Test Identification Parade - No doubt, law with regard 

to the importance of TIP is well settled that identification in court is a 

substantive piece of evidence and TIP simply corroborates the same - 

Prosecution witness identified the accused-appellants in court for the 

first time, during trial, in the year 1997-98 and the incident occurred in 

the year 1995 - After considering some undisputed facts like occurrence 

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of incident at night, at a place with improper lighting and all the 

accused-appellants were not known to the forest officers, except one 

present at the place of incident, there should have been TIP conducted 

at the instance of the investigating officer - Therefore, the identification 

of the accused-appellants by the prosecution witness for the first time 

after a gap of more than 2 years from the date of incident is not beyond 

reasonable doubt, the same should be seen with suspicion. [Para 21] 

(ii) Criminal trial – Delay of 8 days on the part of the investigating 

agency to make arrest - All the accused were arrested on 05.07.1995 

from their home - Prosecution has failed to explain the delay of 8 days 

on the part of the investigating agency to make arrest of all the 

accused-appellants, when the incident occurred on 27.06.1995 and 

allegedly PW-8 

in his statement under Section 161 of Cr.P.C. had 

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already revealed the identity of all the culprits involved in the incident - 

Prosecution tried to explain the delay in making arrest by pressing upon 

the ground that the accused were absconding - If they were really 

absconding, then they should have remained absconding - Their arrest 

from their home casts a shadow of doubt on the prosecution story 

rendering the same to be concocted and dubious. [Para 22] 

(iii) Criminal Trial - Suspicious circumstances - Instead of confronting 

with the forest officers, who were on patrolling duty in jeep, the 

accused would have tried to conceal their presence either by hiding 

themselves or by running away - The forest officers, including the 

driver of the jeep, were 10 in number and on the other hand, accused 

were 4 - Difficult to believe that the forest officers made no frantic 

efforts to nab the culprits when they allegedly assaulted them - The 

forest officers could have easily apprehended the culprits had they 

tried, as they outnumbered them – Same was not done and have 

ebenshown to have been nabbed form their homes after 8 days – 

Suspicious circumstances. [Para 22] 

203 


(iv) Criminal Trial - Lack of firearm by patrolling team - All forest 

officers were deployed on patrolling duty to keep a check on the then 

increasing forest offences - Incident, like in the instant case, could 

reasonably be anticipated - Under such circumstances, they should 

have been armed with weapons atleast for their own safety - As per 

record, when the incident occurred all the forest officers were found to 

be without weapons - Cannot be believed that the forest officers on 

patrolling duty were without any weapon - High Court has erred in 

observing that the Forest Department being poorly equipped failed to


provide weapons to meet the situations, like in the instant case. 

[Para 22] 

(v) Criminal Trial – High court has observed that when the accusedappellants 

started assaulting the forest officers, none of the officers, 

who were unarmed, dared to go near the culprits with a view to catch 

them, thus, placing the accused in a dominating position - On the other 

hand, it has further observed that the accused-appellants had dropped 

the said wooden log to make their bullock cart light in weight with a 

view to move swiftly - This Court finds the aforesaid reasons assigned 

by the High Court to be incorrect - Once the accused-appellants were in 

a dominating position, none of the forest officers could go near them 

for the purpose of nabbing them. Thus, there can be no justification for 

leaving behind the said wooden log - They could have easily carried it 

away with them, if they had the intention of doing so - The prosecution 

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has failed to explain the reason behind the accused not taking away 

the said wooden log with them. [Para 24] 

(vi) Criminal Trial – Suspicious circumstances - Informant party of forest 

officials , comprising of about 10 forest officials in a jeep, intercepted a 

bullock cart - It was alleged that the accused herein were present on 

the said cart and transporting stolen teak wood log clandestinely and 

illegally, without a pass or permit - It was further alleged that an 

altercation ensued - When the injuries sustained by the deceased were 

more serious in nature than the injuries sustained by other two 

forest officers, which were minor in nature, then the deceased should 

have been taken to hospital first or atleast along with other two injured 

forest officials, who were taken to hospital in the first instance – 

Suspicious circumstances. [Para 27] 

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Mr. Gaurav Agrawal, Adv.Mr. M. Khairati, Adv., Ms. Sunita Gautam, Adv., Mr. 

Irshad Ahmad,Adv., For Appellant(s). Mr. V. N. Raghupathy,Adv., For 

Respondent(s) 

JUDGMENT 

V.Gopala Gowda, J. – (2 nd February, 2016) - This criminal appeal by 

special leave is directed against the impugned judgment and order dated 

02.06.2005 passed in Crl. A. No. 184 of 1999(A) by the High Court of Karnataka 

at Bangalore whereby partly allowing the appeal filed by the State, the High 

Court has set aside the acquittal order passed by the Trial Court and convicted 

the appellant nos. 1 to 4 for the offences punishable under Sections 304 part II, 

324, 353, 379 and 411 read with Section 34 of Indian Penal Code, 1860 (for 

short the "IPC"). However, it has upheld the acquittal of all the four appellants 

for the offence punishable under Section 24(e) of the Karnataka Forest Act. 

2. Brief facts are stated hereunder to appreciate the rival legal 

contentions urged on behalf of the parties: 

The case of the prosecution is that on 27.06.1995, at around 3.00 am, 

the informant party, comprising of about 10 forest officials in a jeep, 

intercepted a bullock cart on Yallur-Nitagikoppa Kacha Road. It was alleged that 

the appellants herein were present on the said cart and transporting stolen teak 

wood log clandestinely and illegally, without a pass or permit. It was further 

alleged that an altercation ensued and Papasab (accused-appellant no.3) 

attacked V.C. Marambid (PW-8), Forest watcher, with a club. The aforesaid 

attack resulted in a bleeding injury to PW-8. It was further alleged that R.L. 

Patagar (since deceased), RFO and G.B. Nayak (PW-6), incharge R.F.O. 

(Plantation Superintendent) at Hangal tried to catch hold of the remaining 

accused, when Noorahammad (accused-appellant no.1) picked up a club from 

the cart and hit R.L. Patagar on back of the head. It was further alleged that 

Allauddin (accused-appellant no.2) also took up a club and beat R.L. Patagar. 

Further, Tajusab (accused-appellant no.4) took up club and beat G.B. Nayak. 

Thereafter, all the accused left the teak wood log and escaped in the bullock 

205 



cart. 

3. On 27.06.1995 at around 8.00 am, FIR No. 213 of 1995 in respect of 

the incident was lodged at the instance of one Timmanna (PW-1) at Hangal 

Police Station which was recorded by Sub Inspector, Maruti Raoji Shindhe (PW- 

19). 

4. R.L. Patagar, who was undergoing treatment at KMC Hospital, Hubli, 

expired on 28.06.1995 at about 3.00 pm. 

5. During the course of investigation all the four appellants were 

arrested from their house at Hullatti village and bullock cart and bullocks used 

in the commission of the said offence were also recovered. 

6. The trial was conducted by Additional Sessions Judge, Dharwad for 

the offences punishable under Sections 302, 324, 353, 379 and 411 of IPC read 

with Section 34 of IPC and Section 24(e) of the Karnataka Forest Act. During 

trial, in order to prove its case, prosecution examined 22 witnesses. All the 

appellants, in their statement made under Section 313 of the Cr.P.C., denied all 

206 


the incriminating circumstances appearing against them in the prosecution 

evidence. The Trial Court vide its judgment and order dated 13.11.1998 

acquitted all the accused-appellants from the charges levelled against them. 

7. Aggrieved by the decision of the Trial Court, the respondent-State 

preferred Criminal Appeal No. 184 of 1999(A) before the High Court of 

Karnataka, at Bangalore urging various grounds and prayed for setting aside the 

judgment and order of acquittal passed by the Trial Court. 

8. The High Court vide its judgment and order dated 02.06.2005 has 

allowed the appeal in part and convicted all the accused-appellants for the 

offences punishable under Sections 304 part II, 324, 353, 379 and 411 read with 

Section 34 of IPC. For the offence punishable under Section 304 part II of IPC 

read with Section 34 of IPC, all the four appellants have been sentenced to 

undergo rigorous imprisonment for a period of 4 years each and to pay a fine of 

Rs. 1, 000/- each and in default of fine, to undergo further rigorous 

imprisonment for a period of 2 months each. No separate sentences have been 

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awarded for other offences. However, the acquittal of all the appellants under 

Section 24(e) of the Karnataka Forest Act has been left undisturbed by the High 

Court. Aggrieved by the judgment and order passed by the High Court, all the 

four appellants has preferred this appeal praying for their acquittal. 

9. Mr. M. Khairati, the learned counsel for the appellants contended 

that the High Court has failed to appreciate that there is nothing on record to 

establish that R.L. Patagar (deceased) died only due to head injury which was 

caused by the appellants and therefore, there is no justification to convict them 

under Section 304 part II read with Section 34 of the IPC and sentence them to 

undergo rigorous imprisonment for the said offence. 

10. He submitted that the High Court has failed to apply the law laid 

down by this Court while setting aside the judgment of acquittal passed by the 

Trial Court. He placed strong reliance upon the decision of this Court in the case 

of Satvir Singh v. State of Delhi, *** (2014) 13 SCC 143, authored by me, 

wherein this Court has laid down the circumstances in which the High Court, as 

an appellate court, would reverse an order of acquittal passed by the trial court. 

In that case it has been held by this Court that while the High Court has full 

power to review, re-appreciate and reconsider the evidence, upon which the 

order of acquittal is founded, but should not disturb the finding of the trial court 

if two reasonable conclusions are possible, on the basis of the evidence on 

record. He further placed strong reliance upon the decision of this Court in the 

case of S. Govindraju v. State of Karnataka,*** (2013) 15 SCC 315 in which 

Justice S.A. Bobde was one of the companion Judge, the relevant para 20 of 

which, reads thus: 

207 


"20. It is a settled legal proposition that in exceptional circumstances, 

the appellate court, for compelling reasons, should not hesitate to 

reverse a judgment of acquittal passed by the court below, if the 

findings so recorded by the court below are found to be perverse i.e. if 

the conclusions arrived at by the court below are contrary to the 

evidence on record, or if the court's entire approach with respect to 

dealing with the evidence is found to be patently illegal, leading to the


miscarriage of justice, or if its judgment is unreasonable and is based on 

an erroneous understanding of the law and of the facts of the case. 

While doing so, the appellate court must bear in mind the presumption 

of innocence in favour of the accused, and also that an acquittal by the 

court below bolsters such presumption of innocence." 

11. It was further contended by the learned counsel that a perusal of 

the judgment passed by the High Court shows that the High Court has not 

recorded a finding regarding the ignorance of any relevant evidence by the Trial 

Court. Further, the High Court has also not recorded a finding to the effect that 

208 


some irrelevant evidence has been considered by the Trial Court while 

acquitting the appellants. He further submitted that it is also not found by the 

High Court that the Trial Court has proceeded on erroneous understanding of 

the law or of the facts of the case. Further, it is also not found that the Trial 

Court has dealt with the evidence in an illegal manner. Hence, the finding of the 

High Court that the judgment of the Trial Court is perverse is an incorrect 

finding. He placed reliance upon the decision of this Court in the case of 

Sumitomo Heavy Industries Ltd. v. ONGC Ltd.. *** (2010) 11 SCC 296 to 

elaborate upon the meaning of the expression "perverse". The relevant para 42 

relied upon by the learned counsel reads thus: 

"42. Can the findings and the award in the present case be described as 

perverse? This Court has already laid down as to which finding would be 

called perverse. It is a finding which is not only against the weight of 

evidence but altogether against the evidence. This Court has held in 

Triveni Rubber & Plastics v. CCE that a perverse finding is one which is 

based on no evidence or one that no reasonable person would have 

arrived at. Unless it is found that some relevant evidence has not been 

considered or that certain inadmissible material has been taken into 

consideration the finding cannot be said to be perverse. The legal 

position in this behalf has been recently reiterated in Arulvelu v. State." 

12. It was further contended that the High Court has incorrectly relied 

upon the testimonies of eye witness-G.B. Nayak (PW-6) and V.C. Marambid 

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(PW-8) to reverse the judgment of acquittal passed by the Trial Court. It has 

failed to take note of some inherent inconsistencies, contradictions and 

improbabilities in the evidence which make the testimonies of the said 

witnesses difficult to be believed. The learned counsel, further, drew the 

attention of this Court towards certain circumstances which the High Court has 

failed to consider. They are, interalia, as follows: 

a) Timmanna (PW-1), at the instance of whom the FIR was registered, 

claims to be the eye-witness to the occurrence. In his evidence, he has 

claimed that he knew the name of appellant no.1 i.e., Noorahammad at 

the time of incident. However, he has lodged FIR against unknown 

persons. He has failed to explain this vital contradiction. 

b) The appellants were arrested on 05.07.1995 i.e., after 8 days from 

the date of the occurrence, allegedly on the statement of V.C. 

Marambid (PW-8) given to the investigation officer under Section 161 

Cr.P.C. There is considerable doubt as to the correctness of the said 

statement as PW-8 himself in his evidence, has disowned a part of the 

same. Therefore, it cannot be said, beyond any reasonable doubt, that 

the statement projected by the prosecution is the statement which was 

given by PW-8 naming the appellants. 

209 


c) In view of the fact that the FIR was registered against unknown 

persons and even description of the accused was not mentioned, a Test 

Identification Parade (TIP) ought to have been conducted so as to 

inspire confidence about the identity of the assailants. However, the 

prosecution has not rendered any explanation as to why said TIP was 

not conducted. In such circumstances, dock identification by the 

witnesses, after 2 years from the incident was rightly not relied upon by 

the Trial Court. 

d) The clubs allegedly used by the appellants to attack the forest 

officials should have had blood stains but the same were not sent for 

forensic examination.


e) The appellants were alleged to be carrying valuable teakwood. As per 

the prosecution story, after assaulting the prosecution party, they fled 

away in the bullock-cart after dropping the teakwood log, which is 

difficult to believe. 

f) According to the prosecution story, there were 8-9 forest officials and 

they had a jeep with them. Only a few of them were allegedly attacked 

by the appellants. When the attackers were fleeing away in a bullock 

cart, the remaining forest officials could have chased and caught them 

in a jeep. 

210 


g) In normal circumstances, when serious injuries were caused to forest 

officers and subsequently one of them died the next day and moreover, 

names of the accused-appellants were also made known to the police 

officials on 29.06.1995,there should have been an immediate arrest 

ofthe appellants. The fact that the accused were arrested from their 

house 8 days later clearly shows that prosecution had no inkling about 

the involvement of the appellants and they were subsequently 

implicated. 

h) V.C. Marambid (PW-8) in his examination-in-chief before the Trial 

Court has stated that Papasab accused-appellant no.3 attacked him 

with club, but, further, he clearly stated thus: "at this point of time, I am 

unable to identify who that Papasab is amongst these accused persons". 

This casts a grave doubt on the prosecution story. 

13. It was further contended by the learned counsel by placing reliance 

upon the decision of this Court in the case of Sunil Kumar Shambhudayal Gupta 

v. State of Maharashtra (2010) 13 SCC 657 that the trial court which has the 

benefit of watching the demeanour of witness is the best judge of the credibility 

of the witness. In the present case, the Trial Court after considering the 

demeanour of the witnesses came to the right conclusion that it would be 

unsafe to place conviction on the testimony of the witnesses and hence, 

acquitted the appellants. 

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14. Per contra, Mr. V.N. Raghupathy, the learned counsel on behalf of the 

respondent-State sought to justify the impugned judgment and order passed by 

the High Court on the ground that the same is well founded and is not vitiated 

in law. Therefore, no interference of this Court is required in exercise of its 

appellate jurisdiction. 

15. He contended that the High Court has rightly appreciated both the 

documentary and oral evidence on record in its entirety. The evidence of PW-6 

and PW-8 are fully corroborated by the evidence of PW-1, PW-2 and PW-19 in 

the instant case and therefore, the High Court has rightly set aside the Trial 

Court's decision and convicted the appellants for the charges levelled against 

them. 

16. It was further contended that the prosecution witnesses, who were 

forest officials and at the time of incident they were equipped with torches has 

successfully identified the accused-appellants in the court. He further submitted 

that the circumstances under which the incident in question had occurred, 

there could be no other witnesses, except the forest officials themselves, who 

could have witnessed the said incident. Hence, the High Court has rightly found 

these witnesses credible, reliable and trustworthy. Further, there appears to be 

no reason to falsely implicate the appellants as there was no animus or grudge 

against them. 

211 


17. Mr. Raghupathy further submitted that the High Court has rightly relied 

on the evidence of V.C. Marambid (PW-8) to the extent he has supported the 

case of the prosecution, though he partially turned hostile. He further 

submitted that it is well settled position of law that the evidence of a hostile 

witness is not to be rejected in totality. He placed strong reliance upon the 

decision of this Court in the case of Rameshbhai Mohanbhai Koli and Ors. v. 

State of Gujarat, (2011) 11 SCC 111 the relevant para 16 of which reads thus: 

"16. It is settled legal proposition that the evidence of a prosecution 

witness cannot be rejected in toto merely because the prosecution 

chose to treat him as hostile and cross-examined him. The evidence of


such witnesses cannot be treated as effaced or washed off the record 

altogether but the same can be accepted to the extent that their version 

is found to be dependable on a careful scrutiny thereof. (Vide Bhagwan 

Singh v. State of Haryana, Rabindra Kumar Dey v. State of Orissa, Syad 

Akbar v. State of Karnataka and Khujji v. State of M.P.)" 

18. We have carefully heard both the parties at length and have also given 

our conscious thought to the material on record and the relevant provisions of 

law. The question for our consideration is whether the prosecution evidence 

establishes beyond reasonable doubt the commission of the offences by the 

accused-appellants under Sections 304 part II, 324, 353, 379 and 411 of IPC read 

with Section 34 of IPC. 

19. A careful reading of the evidence on record clearly highlights the 

material contradictions and discrepancies in the prosecution evidence especially 

the testimonies of G.B. Nayak (PW-6), V.C. Marambid (PW-8) and Timmanna 

(PW-1). In the instant case, the written complaint about the incident was made 

212 


by Timmanna (PW-1) on the basis of which FIR was registered. In the said 

written complaint, allegations were made against four unknown persons and 

not against the appellants despite the fact that the complainant knew the name 

of the accused-appellant no.1 i.e., Noorahammad. This factum is clear from the 

testimony of the complainant- Timmanna when he deposed before the Trial 

Court as PW-1. The relevant portion of his evidence reads thus: 

"5. In that Complaint, I have not mentioned the name of those accused 

persons. At that time, I knew the name of this A-1. But, IO did not know 

the names of other accused persons. Prior to the incident, I did not 

know the name of the accused No.1 also. I came to know the names 

and address of all those accused persons correctly through that V.C. 

Marambid. Subsequently, the police have reached my further 

statement and at that time, I have told the name and address of all 

these accused persons." 

The aforesaid loophole in the evidence adduced by the prosecution has been 

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rightly appreciated by the Trial Court holding thus: 

"11....His evidence is to the effect that he knew the name of the accused 

no.1 even at the time of the complaint as per Exh.P-1. According to 

him, he did not know the names and addresses of the culprits and that 

later on, he came to know the names and addresses of the other 

culprits through his subordinate PW-8 V.C. Marambid a forest officer. It 

is his evidence that 2 or 3 days later, he came to know the names and 

addresses of the culprits. Still, he has maintained throughout that he 

knew the name of the accused no.1 very much at the time of the 

complaint though he was not aware of his address. When that is so, 

certainly in his complaint at Exh. P-1, he could have disclosed atleast 

the name of the accused no.1. On the other hand, it is the clear recital 

in Exh. P-1 that the complainant did not know the names and 

whereabouts of the culprits." 

20. Further, V.C. Marambid (PW-8) in his evidence has disclosed the fact 

that he knew all the accused-appellants, who were residents of Hullatti Village, 

from before the occurrence by virtue of his duty in Nilgiri plantation at 

Hassanabadi and Hullatti. If the aforesaid fact as deposed by him is believed to 

be true, then he should have disclosed the identities of all the accusedappellants 

to the complainant-Timmanna (PW-1) at the time of the incident. If 

not at the time of incident, then the same should have been disclosed to the 

police officer at the earliest possible occasion. In this regard, the view taken by 

the Trial Court is correct as it has assigned valid and cogent reasons for the 

same. It has rightly held thus: 

213 


"12.............. An attempt is made by the prosecution to impress upon the 

court that PW-8 Veerappa Channappa Maranbid knew about these 

accused persons previously. If that was really so, what prevented him 

from disclosing the very names and addresses to the complainant at the 

earliest occasion? It is the very evidence of the complainant as PW-1 

that PW-8 Veerappa Channappa Maranbid was very much there at the 

spot at the time of the incident. It may be that PW-8 was hospitalised


when the complaint was lodged. As revealed, according to PW-1, he 

complained to the police in the morning at 7 or 8 a.m. itself on the very 

same day. But,Exh. P-1 complaint discloses that it was registered at 8 

a.m. It has to be seen that Hangal Police Station is not far away from the 

hospital where the injured were being treated at that time. The 

evidence has probablised that the said hospital is very close to the said 

police station. It is not as if PW-8 who according to him, was one of the 

injured, had gone unconscious. As revealed, the injuries sustained by 

him were simple in nature. Therefore, when he was very much available 

in the adjoining hospital, the complainant could have certainly 

ascertained the names and addresses of the alleged culprits through 

PW-8 if really PW-8 knew about the names and addresses of the 

culprits...." 

21. In the instant case, TIP of the accused-appellants should have been 

carried out at the instance of the investigating officer. The High Court, in this 

214 


regard, has erred in appreciating the evidence on record in the light of the facts 

and circumstances of the present case. From the material on record, it is 

sufficiently clear that the incident occurred in the night around 3.00 am, at a 

place where there was no proper light. From the material on record it is not 

clear whether the source of light in the form of torches and jeep flash light was 

sufficient to enable the forest officers to see the accused-appellants for the 

purpose of their identification in later stage of the case. No doubt, law with 

regard to the importance of TIP is well settled that identification in court is a 

substantive piece of evidence and TIP simply corroborates the same. This Court 

in the case of Dana Yadav alias Dahu and Ors. v. State of Bihar 12 has 

elaborated upon the importance of test identification parade in great details. 

The relevant para nos. 6, 7 and 8 read thus: 

12 (2002) 7 SCC 295 

" 6. It is also well settled that failure to hold test identification parade, 

which should be held with reasonable dispatch, does not make the 

evidence of identification in court inadmissible, rather the same is very 

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much admissible in law. Question is, what is its probative value? 

Ordinarily, identification of an accused for the first time in court by a 

witness should not be relied upon, the same being from its very nature, 

inherently of a weak character, unless it is corroborated by his previous 

identification in the test identification parade or any other evidence. 

The purpose of test identification parade is to test the observation, 

grasp, memory, capacity to recapitulate what a witness has seen earlier, 

strength or trustworthiness of the evidence of identification of an 

accused and to ascertain if it can be used as reliable corroborative 

evidence of the witness identifying the accused at his trial in court. If a 

witness identifies the accused in court for the first time, the probative 

value of such uncorroborated evidence becomes minimal so much so 

that it becomes, as a rule of prudence and not law, unsafe to rely on 

such a piece of evidence. We are fortified in our view by a catena of 

decisions of this Court in the cases of Kanta Prashad v. Delhi Admn., 

Vaikuntam Chandrappa, Budhsen, Kanan v. State of Kerala, Mohanlal 

Gangaram Gehani v. State of Maharashtra, Bollavaram Pedda Narsi 

Reddy, State of Maharashtra v. Sukhdev Singh, Jaspal Singh v. State of 

Punjab, Raju v. State of Maharashtra, Ronny, George v. State of Kerala, 

Rajesh Govind Jagesha, State of H.P. v. Lekh Raj and Ramanbhai 

Naranbhai Patel v. State of Gujarat. 

215 


7. Apart from the ordinary rule laid down in the aforesaid decisions, 

certain exceptions to the same have been carved out where 

identification of an accused for the first time in court without there 

being any corroboration whatsoever can form the sole basis for his 

conviction. In the case of Budhsen it was observed: 

"There may, however, be exceptions to this general rule, when 

for example, the court is impressed by a particular witness, on 

whose testimony it can safely rely, without such or other 

corroboration." 

8. In the case of State of Maharashtra v. Sukhdev Singh it was laid down

216 



that if a witness had any particular reason to remember about the 

identity of an accused, in that event, the case can be brought under the 

exception and upon solitary evidence of identification of an accused in 

court for the first time, conviction can be based. In the case of Ronny it 

has been laid down that where the witness had a chance to interact 

with the accused or that in a case where the witness had an opportunity 

to notice the distinctive features of the accused which lends assurance 

to his testimony in court, the evidence of identification in court for the 

first time by such a witness cannot be thrown away merely because no 

test identification parade was held. In that case, the accused concerned 

had a talk with the identifying witnesses for about 7/8 minutes. In these 

circumstances, the conviction of the accused, on the basis of sworn 

testimony of witnesses identifying for the first time in court without the 

same being corroborated either by previous identification in the test 

identification parade or any other evidence, was upheld by this Court. In 

the case of Rajesh Govind Jagesha it was laid down that the absence of 

test identification parade may not be fatal if the accused is sufficiently 

described in the complaint leaving no doubt in the mind of the court 

regarding his involvement or is arrested on the spot immediately after 

the occurrence and in either eventuality, the evidence of witnesses 

identifying the accused for the first time in court can form the basis for 

conviction without the same being corroborated by any other evidence 

and, accordingly, conviction of the accused was upheld by this Court. In 

the case of State of H.P. v. Lekh Raj it was observed (at SCC p. 253, para 

3) that 

"test identification is considered a safe rule of prudence to 

generally look for corroboration of the sworn testimony of 

witnesses in court as to the identity of the accused who are 

strangers to them. There may, however, be exceptions to this 

general rule, when, for example, the court is impressed by a 

particular witness on whose testimony it can safely rely without 

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such or other corroboration". 

In that case, laying down the aforesaid law, acquittal of one of the 

accused by the High Court was converted into conviction by this Court 

on the basis of identification by a witness for the first time in court 

without the same being corroborated by any other evidence. In the 

case of Ramanbhai Naranbhai Patel it was observed: 

"It, therefore, cannot be held, as tried to be submitted by 

learned counsel for the appellants, that in the absence of a test 

identification parade, the evidence of an eyewitness identifying 

the accused would become inadmissible or totally useless; 

whether the evidence deserves any credence or not would 

always depend on the facts and circumstances of each case." 

The Court further observed: 

"the fact remains that these eyewitnesses were seriously 

injured and they could have easily seen the faces of the persons 

assaulting them and their appearance and identity would well 

remain imprinted in their minds especially when they were 

assaulted in broad daylight". 

217 


In these circumstances, conviction of the accused was upheld on the 

basis of solitary evidence of identification by a witness for the first time 

in court." 

Another important fact which the High Court has failed to appreciate is that the 

prosecution witness identified the accused-appellants in court for the first time, 

during trial, in the year 1997-98 and the incident occurred in the year 1995. 

Thus, after considering some undisputed facts like occurrence of incident at 

night, at a place with improper lighting and all the accused-appellants were not 

known to the forest officers, except one present at the place of incident, there 

should have been TIP conducted at the instance of the investigating officer. 

Therefore, the identification of the accused-appellants by the prosecution 

witness for the first time after a gap of more than 2 years from the date of


incident is not beyond reasonable doubt, the same should be seen with 

suspicion. 

22. Further, all the accused-appellants were arrested on 05.07.1995 

from their home at Hullatti village. Prosecution has failed to explain the delay of 

8 days on the part of the investigating agency to make arrest of all the accusedappellants, 

when the incident occurred on 27.06.1995 and allegedly V.C. 

Marambid (PW-8) in his statement under Section 161 of Cr.P.C. had already 

revealed the identity of all the culprits involved in the incident. Though the 

prosecution tried to explain the delay in making arrest by pressing upon the 

ground that the accused-appellants were absconding. But the same was rightly 

not believed by the Trial Court. If they were really absconding, then they should 

have remained absconding. Their arrest from their home casts a shadow of 

doubt on the prosecution story rendering the same to be concocted and 

dubious. Rather the aforesaid fact, on the other hand, fortifies the plea taken by 

all the accused-appellants that they have been falsely implicated in the case. 

218 


23. The High Court has further failed to appreciate some other 

important facts which create reasonable suspicion and shadow of doubt in the 

truthfulness of the prosecution story, namely, instead of confronting with the 

forest officers, who were on patrolling duty in jeep, the accused-appellants 

would have tried to conceal their presence either by hiding themselves or by 

running away. Further, the forest officers, including the driver of the jeep, were 

10 in number and on the other hand, accused-appellants were 4. It is difficult to 

believe that the forest officers made no frantic efforts to nab the culprits when 

they allegedly assaulted them. The forest officers could have easily 

apprehended the culprits had they tried, as they outnumbered them. Further, it 

is clear from the record that all the forest officers were deployed on patrolling 

duty to keep a check on the then increasing forest offences. It means incident, 

like in the instant case, could reasonably be anticipated. It has been rightly 

appreciated by the Trial Court that under such circumstances, they should have 

been armed with weapons atleast for their own safety. As per record, when the 

incident occurred all the forest officers were found to be without weapons. It 

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cannot be believed that the forest officers on patrolling duty were without any 

weapon. In this regard, the High Court has erred in observing that the Forest 

Department being poorly equipped failed to provide weapons to meet the 

situations, like in the instant case. Further, the accused-appellants were caught 

with a teak wood log in their bullock cart. The prosecution version is that after 

the assault, all the accused-appellants ran away in their bullock cart leaving 

behind the said wooden log. It has rightly been observed by the Trial Court that 

if the accused-appellants had any intention to carry away the said wooden log, 

they would have easily done so as after the alleged assault, they had no hurdle, 

whatsoever, in that regard. Thus, the aforesaid story certainly casts a shadow of 

doubt on the truthfulness of the prosecution case and renders the same to be 

unreliable. 

24. The reasoning given by the High Court in its judgment and order in 

itself is contrary. On the one hand, it has observed that when the accusedappellants 

started assaulting the forest officers, none of the officers, who were 

unarmed, dared to go near the culprits with a view to catch them, thus, placing 

the accused-appellants in a dominating position. On the other hand, it has 

further observed that the accused-appellants had dropped the said wooden log 

to make their bullock cart light in weight with a view to move swiftly. This Court 

finds the aforesaid reasons assigned by the High Court to be incorrect. Once the 

accused-appellants were in a dominating position, none of the forest officers 

could go near them for the purpose of nabbing them. Thus, there can be no 

justification for leaving behind the said wooden log. They could have easily 

carried it away with them, if they had the intention of doing so. The prosecution 

has failed to explain the reason behind the accused-appellants not taking away 

the said wooden log with them. 

219 


25. In the post mortem report of the deceased, the presence of a 

surgical wound on the left side of the head, measuring 13cms long extending 

vertically upwards from point 1.5cms above and in front of left ear, has 

remained unexplained by the prosecution, is another lacuna in the prosecution 

story which casts a shadow of doubt on the same and the benefit of which


should certainly go to the accused-appellants. 

26. There are many more material contradictions in the prosecution 

evidence which the High Court failed to notice, namely, Kanayya (PW-5), Forest 

Guard, an eye-witness to the incident, in his examination before the Trial Court, 

has stated that there were some teakwood logs present on the cart. However, 

as per the prosecution story there was one teakwood log discovered in the cart 

by the forest officials. Further, V.C. Marambid (PW-8) in his examination before 

the Trial Court stated thus: 

"At that time, one these accused persons very strongly hit on my head 

220 


with a club and I fell down. There was a bleeding injury on my head on 

account of that blow. Accused Papasab had so bet me with that club. At 

this point of time, I am unable to identify who that Papasab is amongst 

these accused persons. I got up and went to the jeep and sat inside the 

jeep. Since I had received a severe blow on my head I did not notice 

what had happened thereafter. However, myself and G.B.Nayak were 

taken to Hangal in that jeep for treatment. That G.B.Nayak had also 

sustained injury. On reaching the hospital at Hangal, I came to know 

that R.L.Patagar was also assaulted and injured. I did not know how 

exactly that T.G.Nayak and that R.L.Patagar sustained injuries." 

He did not support the prosecution story and was declared a hostile witness. In 

his cross-examination by Public Prosecutor he stated thus: 

"It is not true to say that I have stated before the police that I saw 

G.B.Nayak being assaulted by accused Tajusab with club and that 

Patagar is being assaulted by the accused Noorahamed and Allauddin 

with clubs and that on account of these blows that G.B.Nayak had 

sustained bleeding injury and that Pategar also sustained injury and 

that the accused persons thereafter dropped that wooden log at that 

spot and ran away in that cart." 

27. The High Court has failed to appreciate another important piece of 

evidence that when the injuries sustained by the deceased were more serious in 

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nature than the injuries sustained by other two forest officers, which were 

minor in nature, then the deceased should have been taken to hospital first or 

atleast along with other two injured forest officials, who were taken to hospital 

in the first instance. In this regard, the Trial Court has rightly observed thus: 

"It is the evidence of the PW-1,4 and PW-6 that the condition of 

Ramakrishna Lingappa Patagar was more serious than the other two 

injured persons at the spot. But, it is strange that the other two injured 

persons namely, PW-6 and PW-8 were taken to the hospital at the first 

instance in the jeep leaving that Ramakrishna Lingappa Patagar at the 

spot. It is the case of the prosecution that after return, that 

Ramakrishna Lingappa Patagar was taken in that jeep, to the hospital." 

28. The recovery of bullocks and cart used by the accused-appellants at the 

time of incident is also under a cloud of suspicion as the panch witness-PW-11 

has turned hostile with regard to the alleged recovery. Hence, the prosecution 

evidence in this regard cannot be relied upon. 

29. Thus, for the aforesaid reasons, the evidence adduced by the 

prosecution to support its version does not prove beyond reasonable doubt the 

offences leveled against all the accused-appellants. This Court in the case of Raj 

Kumar Singh v. State of Rajasthan (2013) 5 SCC 722 has held thus: 

221 


"21. Suspicion, however grave it may be, cannot take the place of proof, 

and there is a large difference between something that "may be" 

proved and "will be proved". In a criminal trial, suspicion no matter how 

strong, cannot and must not be permitted to take place of proof. This is 

for the reason that the mental distance between "may be" and "must 

be" is quite large and divides vague conjectures from sure conclusions. 

In a criminal case, the court has a duty to ensure that mere conjectures 

or suspicion do not take the place of legal proof. The large distance 

between "may be" true and "must be" true, must be covered by way of 

clear, cogent and unimpeachable evidence produced by the 

prosecution, before an accused is condemned as a convict, and the


basic and golden rule must be applied. In such cases, while keeping in 

mind the distance between "may be" true and "must be" true, the court 

must maintain the vital distance between conjectures and sure 

conclusions to be arrived at, on the touchstone of dispassionate judicial 

scrutiny based upon a complete and comprehensive appreciation of all 

features of the case, as well as the quality and credibility of the 

evidence brought on record. The court must ensure that miscarriage of 

justice is avoided and if the facts and circumstances of a case so 

demand, then the benefit of doubt must be given to the accused, 

keeping in mind that a reasonable doubt is not an imaginary, trivial or a 

merely probable doubt, but a fair doubt that is based upon reason and 

common sense." (emphasis supplied by this Court) 

30. In the instant case, the material contradictions in prosecution evidence 

cast a shadow of doubt upon the prosecution story and render the same 

unreliable and not trustworthy in the eyes of law, which the High Court has 

222 


failed to appreciate. Therefore, the impugned judgment and order passed by 

the High Court must be set aside by this Court in exercise of its appellate 

jurisdiction. 

31. For the reasons stated supra, this criminal appeal is allowed. The 

impugned judgment and order passed by the High Court is set aside. All the 

accused-appellants are acquitted of all the charges levelled against them. The 

bail bonds shall stand discharged. 

---SS--- 

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Present : Justice Anil R. Dave, Justice Shiva Kirti Singh and Justice Adarsh 

Kumar Goel 

TRAINED NURSES ASSOCIATION OF INDIA – Petitioner, 

Versus 

UNION OF INDIA & ORS. – Respondents. 

Writ Petition (C) No.527 Of 2011 

(i) Nurses - Nurses who are working in private hospitals and nursing 

homes are not being treated fairly in the matter of their service 

conditions and pay - Central government will a Committee within four 

months from today - Committee will make its recommendations, so as 

to do the needful for improvement of working conditions and pay of the 

nurses working in private hospitals and nursing homes within six 

months from its constitution, which can ultimately be given a form of 

legislation by the respondent-States or by the Central Government 

itself. 

223 


(ii) Bonds - Nurses - Execution of bonds by private hospitals and 

nursing homes - Indian Nursing Council has submitted that the said 

system has now been abolished. 

JUDGMENT 

Anil R. Dave, J. – (29th January, 2016) - Heard the learned counsel for 

the petitioner Association, the learned Additional Solicitor General appearing on 

behalf of the Union of India, the learned counsel appearing on behalf of 

Respondent No.37, i.e., Indian Nursing Council and other learned counsel 

appearing for different States. 

2. The petitioner-Association has ventilated its grievance with regard to 

the working conditions of nurses in private hospitals and nursing homes. The


prayers made in this petition read as under : 

“a) issue guidelines for improving the working condition of 

nurses in hospitals/nursing homes; 

b) direct all the respondents to adhere to the guidelines/rules 

framed by this Hon'ble Court till necessary legislation is made by the 

Parliament/State Legislative Assemblies; 

c) issue necessary directions to ensure that nurses working in 

the private sector are paid salary equivalent to those working in 

Government hospitals; 

d) issue necessary directions to the respondents to take 

appropriate action against hospitals/nursing homes insisting on bond 

from nurses working in their establishments; 

e) issue a declaration that the bond system practiced by 

hospitals/nursing homes is unconstitutional and illegal; 

f) issue appropriate directions to 1st respondent to frame 

224 


necessary guidelines to improve working conditions of nurses in India; 

g) pass any other/further order(s) as this Hon'ble Court may 

deem fit and proper in the facts and circumstances of this case to meet 

the ends of justice.” 

3. Upon hearing the learned counsel and going through the petition, we 

feel that the nurses who are working in private hospitals and nursing homes are 

not being treated fairly in the matter of their service conditions and pay. 

4. We expect that the Central government will look into the grievances 

ventilated in this petition, by forming a Committee within four months from 

today. We are sure that after examining the factual situation, if the Committee 

is of the view that the grievances ventilated in the petition are correct, the 

Committee will make its recommendations, so as to do the needful for 

improvement of working conditions and pay of the nurses working in private 

hospitals and nursing homes within six months from its constitution, which can 

ultimately be given a form of legislation by the respondent-States or by the 

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Central Government itself. 

5. We are sure that the recommendations of the Committee shall be 

duly considered by the Central Government and it shall do the needful. 

6. We do not propose to give any guidelines, as prayed for in this 

petition, as the grievances are to be looked into by the Committee consisting of 

experts. 

7. So far as the grievance, with regard to system of execution of bonds 

by private hospitals and nursing homes, is concerned, the learned counsel 

appearing on behalf of Indian Nursing Council has submitted that the said 

system has now been abolished. Therefore, the said grievance does not survive. 

8. With the aforesaid directions, the writ petition stands disposed of. 

--- SS --- 

225 





Present:Justice Anil R. Davead Justice S.A. Bobde 

HARI NARAYAN BANSAL – Appellant 

Versus 

DADA DEV MANDIR PRABANDHAK SABHA (BARAH GAON) PALAM – 

Respondent 

Civil Appeal No.13338 OF 2015 (Arising out of SLP(C)No.541 of 2015) 

Second Appeal - A substantial question of law is not required to be 

framed if the High Court decides to dismiss the second appeal at an 

admission stage - Only in a case where the second appeal is admitted or 

is decided finally by allowing the same, a substantial question of law is 

required to be framed by the High Court. 

226 


JUDGMENT 

ANIL R. DAVE, J. – (3rd November, 2015) - Leave granted. 

2. Heard the learned counsel. 

3. The main submission which has been advanced by the learned 

counsel appearing for the appellants is that the second appeal was dismissed by 

the High Court without framing any substantial question of law. 

4. In our opinion, a substantial question of law is not required to be 

framed if the High Court decides to dismiss the second appeal at an admission 

stage. Only in a case where the second appeal is admitted or is decided finally 

by allowing the same, a substantial question of law is required to be framed by 

the High Court. 

5. In the instant case, no substantial question of law was involved in the 

second appeal and therefore, the High Court had rightly dismissed the second 

appeal at the admission stage by passing the impugned order. We, therefore, 

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see no reason to entertain this Petition. 

6. A request has been made by the learned senior counsel appearing on 

behalf of the appellants that the appellants are tenants and doing their 

bussiness in the shops in question for the last 35 years and therefore, some time 

may be granted to them for vacating the shops. 

7. Looking at the afore-stated facts, we direct that the appellants shall 

not be evicted till 31st December, 2016, on filing of usual undertakings by them 

within four weeks from today. 

8. In the meantime, by way of mesne profit the appellants shall 

continue to pay Rs. 1,500/- (Rupees One Thousand Five Hundred only) every 

month to the respondent. The amount deposited by the appellants with this 

Court shall be paid to the respondent by way of account payee cheque and the 

cheque shall be handed over to the learned counsel for the respondent. The 

said amount shall be treated as costs. 

9. The appeal is disposed of as dismissed with the above directions. 

Pending application, if any, stands disposed of 

---SS--- 

227 





Present; Justice M.Y. Eqbal and Justice Arun Mishra. 

STATE OF U.P. & Ors. … Appellants 

Vs. 

RAVINDRA KUMAR SHARMA & Ors. … Respondents 

CIVIL APPEAL NO…………. OF 2016 

[Arising out of S.L.P. [C] No.8880/2011] 


Full Participation) Rules, 1996 , Section 73 Sub-sections (1) and (2) - 

Disability certificate is required to be issued by Medical Board - Illegal 

usurpation of the quota reserved for specially abled by large number of 

persons who were not in fact specially abled and have procured 

certificates fraudulently - 21% of selected candidates of handicapped 

228 


category were found to be fraudulent - Fraud vitiates and in such a case 

when large number of candidates have illegally usurped the reserved 

seats of the persons suffering from disability the action of State 

Government did not call for interference - High Court has issued a 

direction in the impugned order for physical verification of the 

candidate by the authorities and in case he does not suffer from 

disability so certified candidate can be subjected to fresh medical test - 

High Court has overlooked that on mere physical verification it may not 

be possible to know various kinds of disabilities such as that of eyes, ear 

impairment etc. - That can only be done by the medical examination 

J U D G M E N T 

Arun Mishra, J.- (February 3, 2016) - Leave granted. 

2. The question involved in the appeal is as to the right of the appellant 

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to verify the disability certificates issued by the Medical Board under the 

provisions of the Persons with Disabilities (Equal Opportunities, Protection of 

Rights and Full Participation) Rules, 1996. The respondents applied for BTC 

training course under the physically handicapped category on the basis of 

certificates issued under the aforesaid Rules. It was claimed that they 

completed the training and had been offered appointment in the primary 

schools run and managed by the State Government. Complaint was received 

from Bhartiya Viklang Sangh of illegal usurpation of the quota reserved for 

handicapped persons on the basis of fraudulently procured certificates without 

suffering from the disability certified under the Rules of 1996. The State 

Government issued an order dated 3.11.2009 making a provision for 

constitution of fresh Medical Board in order to verify and assess the disability of 

the candidates. The candidates questioned communication dated 15.7.2010 

issued by the Director, State Council for Educational Research & Training based 

upon the G.O. dated 3.11.2009 requiring them to appear before the Medical 

Board constituted in order to assess the disability. Out of the 234 candidates 

selected under the handicapped category on being examined by the Medical 

Board it was found that 21% of the candidates were not handicapped. 

229 


3. A Single Bench of the High Court of Allahabad vide judgment and 

order dated 31.8.2010 dismissed the writ application holding that under the 

Rule framed in exercise of the powers under Sub-sections (1) and (2) of section 

73 of the Persons with Disabilities (Equal Opportunities, Protection of Rights and 

Full Participation) Act, 1995, the general eligibility to apply for facilities, 

concessions and benefits admissible under the scheme of the Act is subject to 

such conditions as the State Government may impose and the State 

Government has imposed a condition in the order dated 3.11.2009 of 

constitution of the Medical Board for verification of the disability. Even 

otherwise under the rules there can be a review of the decision upon 

representation by the applicant and fresh order can be passed. Thus the 

certificate issued is not final. 

4. On appeal being preferred a Division Bench of the High Court of


Allahabad by the impugned order has allowed the appeal and has held that 

while the certificate has been issued in accordance with the Rules of 1996, 

roving enquiry cannot be made until and unless fraud has been detected, it is 

not permissible to reopen medical certification carried out under the Rules of 

1996. However the High Court has directed that a physical verification may be 

made and if the candidate has not been issued certificate of disability or 

otherwise or that he does not suffer from any disability so certified which 

entitles him to such a certificate, in that event the candidate can be subjected to 

fresh medical test not otherwise. Accordingly the directions by the Government 

in order dated 3.11.2009 and by the Director on 15.7.2010 for physical 

verification be construed in the aforesaid manner. 

230 


5. It is apparent from Rules of 1996 that disability certificate is required 

to be issued by Medical Board. It can issue permanent disability certificate or 

the Medical Board shall indicate the period of validity in the certificate in case 

where there is any chance of variation in the degree of disability. In case of 

refusal of disability certificate an opportunity is required to be given to the 

applicant of being heard, and there can be a review by the Medical Board on 

representation by the applicant and Rules contains a provision to the effect that 

the certificate issued by the Medical Board shall make a person eligible to apply. 

6. In the facts of the instant case there was a serious complaint lodged 

by Viklang Sangh of illegal usurpation of the quota reserved for specially abled 

by large number of persons who were not in fact specially abled and have 

procured certificates fraudulently from their districts under the Rules of 1996. 

On the basis of the said complaint Government has issued an order for the 

purpose of verification of such certificates issued by the Medical Board and 

certificates of 21% of selected candidates of handicapped category were found 

to be fraudulent. It is settled proposition of law that fraud vitiates and in such a 

case when large number of candidates have illegally usurped the reserved seats 

of the persons suffering from disability the action of State Government did not 

call for interference. 

7. In Bhaurao Dagdu Paralkar v. State of Maharashtra & Ors. (2005) 7 

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SCC 605, it was observed :- 

“16. In Lazarus Estates Ltd. v. Beasley (1956) 1 All ER 341, Lord 

Denning observed at QB pp. 712 and 713: (All ER p. 345 C) 

“No judgment of a court, no order of a minister, can be 

allowed to stand if it has been obtained by fraud. Fraud 

unravels everything.” 

In the same judgment Lord Parker, L.J. observed that fraud 

vitiates all transactions known to the law of however high a degree of 

solemnity. (p. 722) These aspects were recently highlighted in State of 

A.P. v. T. Suryachandra Rao (2005) 6 SCC 149.” 

8. In Ram Chandra Singh v. Savitri Devi (2003) 8 SCC 319 it was held 

thus:- 

“15. x x x Fraud as is well known vitiates every solemn act. Fraud and 

justice never dwell together. 

16. Fraud is a conduct either by letter or words, which induces the other 

person or authority to take a definite determinative stand as a response 

to the conduct of the former either by word or letter. 

17. It is also well settled that misrepresentation itself amounts to fraud. 

Indeed, innocent misrepresentation may also give reason to claim relief 

against fraud. 

231 


18. A fraudulent misrepresentation is called deceit and consists in 

leading a man into damage by wilfully or recklessly causing him to 

believe and act on falsehood. It is a fraud in law if a party makes 

representations which he knows to be false, and injury ensues 

therefrom although the motive from which the representations 

proceeded may not have been bad. 

x x x x x 

23. An act of fraud on court is always viewed seriously. A collusion or 

conspiracy with a view to deprive the rights of others in relation to a 

property would render the transaction void ab initio. Fraud and


deception are synonymous. 

x x x x x 

25. Although in a given case a deception may not amount to fraud, 

fraud is anathema to all equitable principles and any affair tainted with 

fraud cannot be perpetuated or saved by the application of any 

equitable doctrine including res judicata. 

26. In Shrisht Dhawan v. Shaw Bros. (1992) 1 SCC 534, it has been held 

that: (SCC p. 553, para 20) 

“20. Fraud and collusion vitiate even the most solemn 

proceedings in any civilized system of jurisprudence. It is a 

concept descriptive of human conduct.” 

x x x x x 

29. In Chittaranjan Das v. Durgapore Project Ltd. (1995) 99 CWN 897, 

it has been held: (Cal LJ p. 402, paras 57-58) 

232 


“57. Suppression of a material document which affects the 

condition of service of the petitioner, would amount to fraud in 

such matters. Even the principles of natural justice are not 

required to be complied with in such a situation. 

58. It is now well known that a fraud vitiates all solemn acts. 

Thus, even if the date of birth of the petitioner had been 

recorded in the service returns on the basis of the certificate 

produced by the petitioner, the same is not sacrosanct nor the 

respondent company would be bound thereby.” 

9. This Court in Express Newspapers (P) Ltd.& Ors. v. Union of India & 

Ors. (1986) 1 SCC 133 at para 119 has held thus:- 

“119. Fraud on power voids the order if it is not exercised bona fide for 

the end design. There is a distinction between exercise of power in good 

faith and misuse in bad faith. The former arises when an authority 

misuses its power in breach of law, say, by taking into account bona 

fide, and with best of intentions, some extraneous matters or by 

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ignoring relevant matters. That would render the impugned act or order 

ultra vires. It would be a case of fraud on powers. The misuse in bad 

faith arises when the power is exercised for an improper motive, say, to 

satisfy a private or personal grudge or for wreaking vengeance of a 

Minister as in S. Partap Singh v. State of Punjab AIR 1964 SC 72. A power 

is exercised maliciously if its repository is motivated by personal 

animosity towards those who are directly affected by its exercise. Use of 

a power for an ‘alien’ purpose other than the one for which the power is 

conferred is mala fide use of that power. Same is the position when an 

order is made for a purpose other than that which finds place in the 

order. The ulterior or alien purpose clearly speaks of the misuse of the 

power and it was observed as early as in 1904 by Lord Lindley in General 

Assembly of Free Church of Scotland v. Overtoun (1904) AC 515, ‘that 

there is a condition implied in this as well as in other instruments which 

create powers, namely, that the powers shall be used bona fide for the 

purpose for which they are conferred’. It was said by Warrington, C.J. 

in Short v. Poole Corpn. (1926) Ch 66, that:- 

‘No public body can be regarded as having statutory authority 

to act in bad faith or from corrupt motives, and any action 

purporting to be of that body, but proved to be committed in 

bad faith or from corrupt motives, would certainly be held to be 

inoperative.’” 

233 


10. The Division Bench of the High Court has ignored and overlooked 

the material fact that verification has already been done by the Medical Board 

and it has been found that certificates of 21% were fraudulently obtained. The 

High Court has issued a direction in the impugned order for physical verification 

of the candidate by the authorities and in case he does not suffer from disability 

so certified candidate can be subjected to fresh medical test. The High Court has 

overlooked that on mere physical verification it may not be possible to know 

various kinds of disabilities such as that of eyes, ear impairment etc. That can 

only be done by the medical examination and particularly when the High Court


itself has observed that in case there is genuine suspicion and fraud has been 

committed medical certification can be reopened. Direction issued in this regard 

has not been questioned by the respondents and in fact process of reverification 

was already over when High Court issued aforesaid directions. 

11. In our considered opinion in the peculiar facts of this case of such a 

fraud and genuine suspicion raised in the representation lodged by the Viklang 

Sangh and when 21% of such certificates have been found to be fraudulently 

obtained there was no scope for the Division Bench to interfere and issue order 

to perpetuate fraud, writ is to be declined in such a scenario and no equity can 

be claimed by the respondents. 

234 


12. In the circumstance we set aside the impugned judgment and order 

passed by the Division Bench of the High Court and dismiss the writ petition. 

However before taking any action against the individuals they shall be issued 

show cause in the matter and thereafter decision will be rendered in 

accordance with law. Let this exercise be completed within a period of four 

months. The appeal is allowed to the aforesaid extent. 

---ss--- 

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Present: T.S. Thakur, CJI, Justice A.K. Sikri and Justice R. Banumathi. 

NANKAUNOO – Appellant, 

Versus 

STATE OF U.P. – Respondent. 

Criminal Appeal No. 46 OF 2016 

(Arising out of SLP (Crl.) No.7437 of 2013) 

Indian Penal Code, 1860 Section 300, 302 IPC, 304 Part 1 - Intention is 

different from motive - It is the intention with which the act is done 

that makes a difference in arriving at a conclusion whether the offence 

is culpable homicide or murder - Emphasis in Section 300 (3) IPC is on 

the sufficiency of the injury in the ordinary course of nature to cause 

death - Sufficiency is the high probability of death in the ordinary 

course of nature - When the sufficiency exists and death follows, 

causing of such injury is intended and causing of such offence is murder 

- For ascertaining the sufficiency of the injury, sometimes the nature of 

the weapon used, sometimes the part of the body on which the injury is 

caused and sometimes both are relevant - Depending on the nature of 

weapon used and situs of the injury, in some cases, the sufficiency of 

injury to cause death in the ordinary course of nature must be proved 

and cannot be inferred from the fact that death has, in fact, taken place 

- Appellant emerged carrying pistol in his hand and fired at the 

deceased - The weapon used and the manner in which attack was made 

and the injury was inflicted due to premeditation clearly establish that 

the appellant intended to cause the injury - Once it is established that 

the accused intentionally inflicted the injury, then the offence would be 

murder, if it is sufficient in the ordinary course of nature to cause the 

235 



death- Injury was on the inner part of left thigh, which is the non-vital 

organ - Sufficiency of injury to cause death must be proved and cannot 

be inferred from the fact that death has taken place - Prosecution has 

not elicited from the doctors that the gunshot injury on the inner part 

of left thigh caused rupture of any important blood vessel and that it 

was sufficient in the ordinary course of nature to cause the death - 

Conviction converted form Section 302 IPC to Section 304 Part 1 IPC. 

[Para 11, 12, 13] 

JUDGMENT 


R. Banumathi, J. – (January 19, 2016) - Leave granted. 

2. This appeal arises out of the judgment dated 16.05.2013 passed by 

the High Court of Judicature at Allahabad, Lucknow Bench in Criminal Appeal 

236 


No.775 of 1981, whereby the High Court affirmed the conviction of the 

appellant-accused under Section 302 IPC and also sentence of imprisonment for 

life imposed on him. 

3. Briefly stated case of the prosecution is as under:- 

Deceased- Chhedi Lal was running a barber shop in Kurari Khurd 

Market. On 18.02.1981, the appellant visited the shop of Chhedi Lal and asked 

for a haircut. An altercation took place between the two when appellant 

insisted the deceased for haircut claiming preference over other customers; but 

the deceased-Chhedi Lal declined his demand. The appellant felt insulted and 

left the barber shop threatening the deceased. At around 5.00 p.m., deceased- 

Chhedi Lal closed the shop and went back home. Later at 6.00 p.m., the 

deceased went towards the canal lying in the western side of the 

village abadi to answer the nature’s call. When the deceased reached near the 

eastern mend of the grove of Ishwari, the appellant emerged from the northern 

side carrying a pistol in his hand and threatened the deceased as he had 

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insulted the appellant in the market and that he would not spare him alive. The 

deceased fled towards the west to save himself and appellant fired from his 

pistol which hit the deceased on his left thigh and he had fallen down. The 

incident was witnessed by Janoo-PW2, Udan-PW3 and Muneshwar. Also father 

of the deceased namely Kishore-PW1 and his son-Ram Pal saw the incident 

when they were returning from their field. On the alarm raised by the deceased 

and the witnesses, the appellant fled away from the scene. The deceased was 

taken on a cot to his house and on the narration of incident by Kishore-the 

father of the deceased, the complaint was written by Shiv Pujan Singh. 

Thereafter, deceased was taken to Police Station-Achal Ganj, where FIR (Ex. Ka- 

1) bearing CrimeNo.37/81 dated 18.02.1981 was registered against the 

appellant under Section 307 IPC. SI-Ravinder Prasad Yadav (PW-6) recorded the 

statement of Chhedi Lal who was lying injured on the kharkhara outside the 

Police Station and the deceased was sent to Achal Ganj Hospital from where he 

was referred to District Hospital Unnao; but the deceased died on the way to 

the hospital. FIR was altered from Section 307 IPC to Section 302 IPC and further 

investigation was taken up. After inquest by the police, post mortem was 

conducted by Dr. J.N. Bajpai (PW-4) at District Hospital Unnao on 19.02.1981 at 

3.30 p.m. PW-4-Dr. Bajpai noted a gunshot would of entry ½” x ½” on the back 

and inner part of left thigh and six gunshot wounds of exit each 1/3” x 1/3” in 

size in front and middle left thigh. Dr. J. N. Bajpai (PW-4) opined that the death 

was due to shock and hemorrhage due to injuries of firearm. After completion 

of investigation, chargesheet was filed against the appellant under Section 302 

IPC. After committal of the case to the Sessions Court, charge was framed 

against the appellant under Section 302 IPC. 

237 


4. To bring home the guilt of the accused-appellant, prosecution has 

examined in all eight witnesses and exhibited the material object on record. The 

incriminating evidence and circumstances were put to the appellant under 

Section 313 Cr.P.C. and the accused denied all of them and pleaded that he was 

falsely implicated. Upon consideration of the evidence, the Sessions Judge, 

Unnao found the appellant guilty of the offence under Section 302 IPC and


sentenced him to undergo imprisonment for life. Being aggrieved, the appellant 

preferred appeal before the High Court which was dismissed by the impugned 

judgment. 

5. Learned counsel for the appellant Mr. Kapil Arora submitted that the 

prosecution could not have relied on the testimony of PWs 1, 2 and 3 as PW-1- 

Kishore, father of the deceased, is an interested witness and PWs 2 and 3 are 

the inimical interested witnesses and the trial court was not right in basing the 

conviction of the appellant on the testimony PWs 1 to 3 and the High Court 

erred in confirming the conviction. It was further contended that the courts 

below failed to take note of the fact that the alleged weapon of murder ‘country 

made pistol’ was never recovered by the investigating officer and in the absence 

of clear connection of the weapon used for crime and resultant injury, the 

prosecution cannot be said to have proved its case beyond reasonable doubt. 

6. Per contra, learned counsel for the respondent-State Ms. Pragati 

Neekhra submitted that witnesses have consistently deposed that the appellant 

238 


threatened the deceased that he would not be spared alive and thereafter fired 

shot from his loaded pistol and medical evidence amply corroborates the 

version of the eye witnesses and the courts below rightly convicted the 

appellant under Section 302 IPC. 

7. We have carefully considered the rival contentions and perused the 

impugned judgment and the material on record. 

8. PW-1 Kishore, PW-2 Janoo and PW-3 Udan have given consistent 

version about the occurrence that the appellant fired at the deceased-Chhedi 

Lal with ‘country made pistol’ which he was carrying in his hand. Despite the 

searching cross-examination, nothing substantial was elicited from the 

witnesses to discredit their testimony. In the context of unimpeachable oral 

evidence coupled with the medical evidence that deceased-Chhedi Lal met with 

homicidal death due to gunshot injuries, trial court rightly held that the 

appellant was responsible for the death of Chhedi Lal. High Court rightly agreed 

with the finding of the trial court that PWs 1 to 3 were reliable witnesses. 

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Having heard the learned counsel for the parties and on going through the 

record, we do not find any reason to disbelieve the evidence of eye witnesses- 

PWs 2 and 3. 

9. Learned counsel for the appellant contended that the courts below 

failed to take note of the fact that the alleged weapon ‘country made pistol’ was 

never recovered by the investigating officer and in the absence of any clear 

connection between the weapon used for crime and ballistic report and 

resultant injury, the prosecution cannot be said to have established the guilt of 

the appellant. In the light of unimpeachable oral evidence which is amply 

corroborated by the medical evidence, non-recovery of ‘country made pistol’ 

does not materially affect the case of the prosecution. In a case of this nature, 

any omission on the part of the investigating officer cannot go against the 

prosecution case. Story of the prosecution is to be examined dehors such 

omission by the investigating agency. Otherwise, it would shake the confidence 

of the people not merely in the law enforcing agency but also in the 

administration of justice. 

10. Learned counsel for the appellant then contended that the gunshot 

injury was on the lower part of the left thigh which is a non-vital organ and it 

cannot be said that the appellant intended to cause the death of the deceased 

and therefore the conviction of the appellant under Section 302 IPC is not 

sustainable. In the light of the above contention, the question falling for 

consideration is whether the conviction of the appellant under Section 302 IPC 

is sustainable. 

239 


11. Intention is different from motive. It is the intention with which the 

act is done that makes a difference in arriving at a conclusion whether the 

offence is culpable homicide or murder. The third clause of Section 300 IPC 

consists of two parts. Under the first part it must be proved that there was an 

intention to inflict the injury that is present and under the second part it must 

be proved that the injury was sufficient in the ordinary course of nature to 

cause death.


Considering the clause thirdly of Section 300 IPC and reiterating the 

principles in Virsa Singh’s case, in Jai Prakash v. State (Delhi 

Administration) (1991) 2 SCC 32, para (12), this Court held as under:- 

“12. Referring to these observations, Division Bench of this 

Court in Jagrup Singh case, (1981) 3 SCC 616 observed thus: (SCC p. 620, 

para 7) 

“These observations of Vivian Bose, J. have become 

locus classicus. The test laid down in Virsa Singh case, AIR 1958 

SC 465 for the applicability of Clause Thirdly is now ingrained in 

our legal system and has become part of the rule of law.” 

The Division Bench also further held that the decision in Virsa 

Singh case AIR 1958 SC 465 has throughout been followed as laying 

down the guiding principles. In both these cases it is clearly laid down 

that the prosecution must prove (1) that the body injury is present, (2) 

that the injury is sufficient in the ordinary course of nature to cause 

240 


death, (3) that the accused intended to inflict thatparticular injury that 

is to say it was not accidental or unintentional or that some other kind 

of injury was intended. In other words Clause Thirdly consists of two 

parts. The first part is that there was an intention to inflict the injury 

that is found to be present and the second part that the said injury is 

sufficient to cause death in the ordinary course of nature. Under the 

first part the prosecution has to prove from the given facts and 

circumstances that the intention of the accused was to cause that 

particular injury. Whereas the second part whether it was sufficient to 

cause death is an objective enquiry and it is a matter of inference or 

deduction from the particulars of the injury. The language of Clause 

Thirdly of Section 300 speaks of intention at two places and in each the 

sequence is to be established by the prosecution before the case can fall 

in that clause. The ‘intention’ and ‘knowledge’ of the accused are 

subjective and invisible states of mind and their existence has to be 

gathered from the circumstances, such as the weapon used, the ferocity 

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of attack, multiplicity of injuries and all other surrounding 

circumstances. The framers of the Code designedly used the words 

‘intention’ and ‘knowledge’ and it is accepted that the knowledge of the 

consequences which may result in doing an act is not the same thing as 

the intention that such consequences should ensue. Firstly, when an act 

is done by a person, it is presumed that he must have been aware that 

certain specified harmful consequences would or could follow. But that 

knowledge is bare awareness and not the same thing as intention that 

such consequences should ensue. As compared to ‘knowledge’, 

‘intention’ requires something more than the mere foresight of the 

consequences, namely the purposeful doing of a thing to achieve a 

particular end.” 

12. The emphasis in clause three of Section 300 IPC is on the sufficiency 

of the injury in the ordinary course of nature to cause death. The sufficiency is 

the high probability of death in the ordinary course of nature. When the 

sufficiency exists and death follows, causing of such injury is intended and 

causing of such offence is murder. For ascertaining the sufficiency of the injury, 

sometimes the nature of the weapon used, sometimes the part of the body on 

which the injury is caused and sometimes both are relevant. Depending on the 

nature of weapon used and situs of the injury, in some cases, the sufficiency of 

injury to cause death in the ordinary course of nature must be proved and 

cannot be inferred from the fact that death has, in fact, taken place. 

241 


13. Keeping in view the above principles, when we examine the facts of 

the present case, the deceased sustained gunshot wound of entry 1-1/2” x 1- 

1/2” on the back and inner part of left thigh, six gunshot wounds of exit each 

1/3” x 1/3” in size in front and middle left thigh. Due to the occurrence in the 

morning at the barber shop of the deceased, the appellant emerged from the 

northern side of the grove carrying pistol in his hand and fired at the deceased. 

The weapon used and the manner in which attack was made and the injury was 

inflicted due to premeditation clearly establish that the appellant intended to 

cause the injury. Once it is established that the accused intentionally inflicted


the injury, then the offence would be murder, if it is sufficient in the ordinary 

course of nature to cause the death. We find substance in the contention of the 

learned counsel for the appellant the injury was on the inner part of left thigh, 

which is the non-vital organ. Having regard to the facts and circumstances of the 

case that the gunshot injury was caused in the inner part of left thigh, the 

sufficiency of injury to cause death must be proved and cannot be inferred from 

the fact that death has taken place. But the prosecution has not elicited from 

the doctors that the gunshot injury on the inner part of left thigh caused rupture 

of any important blood vessel and that it was sufficient in the ordinary course of 

nature to cause the death. Keeping in view the situs and nature of injury and in 

the absence of evidence elicited from the doctor that the said injury was 

sufficient in the ordinary course of nature to cause death, we are of the view 

that it is a fit case where the conviction of the appellant under Section 302 IPC 

should be under Section 304 Part 1 IPC. 

14. In the result, the conviction of the appellant under Section 302 IPC is 

242 


modified as conviction under Section 304 Part 1 IPC and the appellant is 

sentenced to undergo ten years rigorous imprisonment and the appeal is partly 

allowed. 

---SS--- 

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Present: Justice V. Gopala Gowda and Justice Uday Umesh Lalit. 

JAYA BISWAL & ORS. – Appellants, 

Vs. 

BRANCH MANAGER, IFFCO TOKIO GENERAL INSURANCE COMPANY 

LTD. & Anr. – Respondents. 

Civil Appeal No.869 OF 2016 

(Arising out of S.L.P. (C) No. 1903 of 2015) 

(i) Employee’s Compensation Act, 1923 Section 3(1) – Negligence of 

workman - The E.C. Act is a welfare legislation enacted to secure 

compensation to the poor workmen who suffer from injuries at their 

place of work. - Liability of the employer, thus, arises, when the 

workman sustains injuries in an accident which arises out of and in the 

course of his employment - Section 3 of the Act does not create any 

exception of the kind, which permits the employer to avoid his liability 

if there was negligence on part of the workman - The Act does not 

envisage a situation where the compensation payable to an injured or 

deceased workman can be reduced on account of contributory 

negligence - While no negligence on part of the deceased has been 

made out as he was merely trying his best to stop the truck from 

moving unmanned, even if there were negligence on his part, it would 

not disentitle his dependents from claiming compensation under the 

Act. [Para 21] 

243 


(ii) Employee’s Compensation Act, 1923 – Wages - Neither of the parties 

produced any document on record to prove the exact amount of wages 

being earned by the deceased at the time of the accident - Deceased


was a highly skilled workman and would often be required to undertake 

long journeys outside the state in the line of duty, especially 

considering the fact that the vehicle in question had a registered 

National Route Permit - Wages of the deceased were accepted as 

Rs.4,000/- per month + daily bhatta of Rs.6,000/- per month – Under 

the Payment of Wages Act, 1936, Section 13A, the onus is on the 

employer to maintain the register and records of wages - Since the 

employer has failed in his duty to maintain the proper records of wages 

of the deceased, the appellants cannot be made to suffer for it - 

Payment of Wages Act, 1936, Section 13A . 

(iii) Employee’s Compensation Act, 1923 - Interest @12% - Insurance 

company liable to pay. 

For Appellant(s) Mr. Kedar Nath Tripathy,Adv. For Respondent(s) Mr. Ranjan 

244 


Kumar Pandey,Adv. 

JUDGMENT 


V. Gopala Gowda, J. – (February 4, 2016) - Leave granted. 

2. The present appeal arises out of the impugned judgment and order 

dated 13.08.2014 passed in F.A.O. No. 472 of 2013 by the High Court of Orissa 

at Cuttack, wherein the learned single Judge reduced the amount of 

compensation awarded to the appellants by the learned Commissioner for 

Employees’ Compensation from Rs.10,75,253/- to Rs.6,00,000/- and also waived 

the award of 50% penalty with interest. 

3. The brief facts of the case required to appreciate the rival legal 

contentions advanced on behalf of the parties are stated here under:- 

The elder son of appellant Nos. 1 and 2 worked as a truck driver with 

one Bikram Keshari Patnaik (respondent no. 2 herein). On 19.07.2011, he met 

with an accident while on his way to deliver wheat bags in the truck from 

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Berhampur, Orissa to Paralakhemundi, Andhra Pradesh. He sustained severe 

injuries on the back of his head and died on the spot. The cleaner of the truck, 

who was present at the time of the accident, gave information regarding the 

accident to the Mandasa Police Station, Srikakulam, whose personnel reached 

the spot and conducted the inquest, prepared the panchnama and sent the 

body of the deceased for post mortem. The cleaner also informed the father of 

the deceased (Appellant No.1 herein), who made arrangements for taking the 

dead body of his son back to the native village for cremation. On 03.11.2011, 

the appellants, being the father, mother and younger brother of the deceased, 

filed claim petition W.C. Case No. 61 of 2011 before the Court of the 

Commissioner for Workmen’s Compensation, Berhampur, Ganjam District. The 

claim of the appellants was that the deceased was aged around 26 years at the 

time of death and had died while he was in and during the course of 

employment of respondent no. 2 herein. They claimed that he was getting 

monthly wages at Rs.4,000/- per month, daily bhatta (allowance) at Rs.200/- 

which comes to Rs.6,000/- per month, along with additional trip benefit 

amounting to Rs.3,000/-, the total amounting to Rs.13,000/- per month. On this 

basis, they claimed a lump sum of Rs.18,00,000/- as pecuniary damages towards 

loss of past and future wages and loss of earning. They claimed additional 

amount of Rs.20,000/- towards funeral expenses, Rs.30,000/- towards mental 

agony, physical shock and pain, and Rs.50,000/- towards expectation of life and 

Rs.1,00,000/- towards loss of estate, inconvenience and hardships caused to the 

family members of the deceased on account of the death of deceased. 

245 


4. In response, the owner of the truck, respondent no.2 herein filed a 

Written Statement and denied his liability. He claimed that he was not liable to 

compensate the deceased as he had died on the spot due to his own negligence, 

as he had tried to enter the vehicle while it was in motion. Respondent no. 2 

also contended that in any case he is not liable to pay the amount as claimed by 

the appellants. He submitted in the Written Statement that he has been paying 

only Rs. 100/- per day as wages, and Rs. 50/- per day as bhatta. Further, he had 

already given financial assistance to the father of the deceased for the


cremation. The learned Employees Compensation - cum- Assistant Labour 

Commissioner considered the above aspect of the matter at length and arrived 

at the conclusion that the deceased was working in the employment of 

Respondent no.2 at the time of his death and that he had lost his life in an 

accident caused during and in the course of his employment with Respondent 

no.2. The learned Commissioner relied upon the testimony of the witnesses to 

construct the following chain of events leading up to the accident:- 

“The deceased was working as a driver in truck No. OR 15J-1047 

owned by the O.P.I……On 19-07- 2011 at about 4.30 A.M., the deceased 

246 


received personal back head injury near Sandhigam village by vehicular 

accident arising out of and in course of his employment as a driver of 

the truck No. OR 15J-1047 which was loaded with wheat bags. He along 

with the cleaner Sarada Prasana Patnaik loaded the said wheat bags on 

18-07-2011 at about 11.30 P.M. at godown. On the way, they stopped 

and kept the vehicle and took the rest and slept there on 18-07-2011. 

Another truck bearing No. OR 07B-8791 which was also followed with 

the offending vehicle had also halted and stopped there along with 

them. They all had taken rest and slept there and got up early morning 

at about 4.30 A.M. on 19.07.2011 and started to proceed to 

Paralakhemundi for unloading the goods. While to proceed, the 

deceased had started the vehicle but the vehicle did not start. Hence, 

the deceased and the cleaner got down from the vehicle and checked 

the battery box and removed the wooden log piece kept for obstructing 

the right wheel of the said truck. After removal of the wooden log piece, 

the vehicle moved to run down. The deceased saw that the vehicle was 

moving ahead, he immediately climbed into the vehicle through the iron 

stepping of the truck, but unfortunately, he fell down from the truck 

and sustained severe and grievous bleeding injuries on the back side of 

the head and died at the spot. The vehicle proceeded few distance on 

the public road and capsized in the field. Thereafter, he and the cleaner 

of the vehicle saw the condition of the deceased and had consulted with 

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the village Revenue Officer of Sandigam village and told the fact. They 

immediately reported the matter to the police, Mandasa Police Station 

and informed the same to the O.P.I as well as to the father of the 

deceased.” 

5. Further, Respondent no.2 had also admitted before the learned 

Commissioner that the death of the deceased had occurred due to an accident 

arising out of and during the course of the employment for which a compromise 

was sought to be reached by Respondent no.2 with the appellants, to the 

amount of Rs.3,50,000/-. Accordingly, the learned Commissioner came to the 

conclusion that the deceased was an ‘employee’ within the meaning of 

the Employee’s Compensation Act, 1923 (hereinafter referred to as the “E.C. 

Act”) and had died in an accident arising out of and in the course of his 

employment under Respondent no.2. The learned Commissioner, relying on the 

date of birth of the deceased as 01.07.1984, as mentioned in the driver’s license 

and Transfer Certificate, came to the conclusion that the age of the deceased 

was 27 years at the time of the accident. On the question of the monthly wages 

being earned by the deceased at the time of his death, the learned 

Commissioner concluded that the contentions advanced by Respondent no.2 

that he was being paid wages of Rs. 100/- per day and bhatta of Rs. 50/- per day 

cannot be believed. The vehicle in which the accident had occurred possessed a 

National Route Permit, and the deceased often drove the vehicle to destinations 

outside the state. He was also a highly skilled workman. In the light of the said 

fact stated by the appellants, the wages of Rs.4,000/- per month and bhatta of 

Rs.200/- per day and trip charges of Rs.3,000/- per month (i.e.Rs.13,000/- per 

month) seemed genuine. Accordingly, the learned Commissioner calculated the 

compensation as under:- 

247 


Rs.8,000/- (wage limited to) x 50% x 213.57 (27 years of age factor) = 

Rs.8,54,280/- 

The learned Commissioner further awarded an interest @ 12% per 

annum to the appellants from the date of accident, as well as Rs.20,000/- as the 

cost of proceedings, the total amount of compensation thus coming to Rs. 10,


75, 253/-. 

6. Aggrieved by the same, the Insurance Company filed an appeal under 

Section 30 of the E.C. Act before the High Court of Orissa at Cuttack. The 

learned single Judge allowed the appeal and set aside the award passed by the 

learned Commissioner. The learned single Judge of the High Court held as 

under:- 

“Considering the submissions made by the learned counsel for 

the parties and keeping in view the findings of the Commissioner as 

given in the impugned award with regard to the quantum of 

248 


compensation amount awarded and the basis on which the same has 

been arrived at, I feel, the interest of justice would be best served, if the 

awarded compensation amount of Rs.10,75,253/- is modified and 

reduced to Rs.6,00,000/- However the award of 50% penalty with 

interest @12% per annum is not proper and justified and the same is 

accordingly waived. Accordingly, the claimants are entitled to modified 

compensation amount of Rs.6,00,000/- on which no penalty or interest 

is payable. The impugned award is modified to the said extent only.” 

7. The present appeal has been filed by the appellants challenging the 

correctness of impugned judgment and order passed by the High Court. 

8. Mr. Alakh Alok Srivastava, the learned counsel appearing on behalf of 

the appellants contends that the High Court committed a grave error in 

entertaining an appeal under Section 30(1) of the E.C. Act, which reads as 

under:- 

“30. Appeals 

(1) An appeal shall lie to the High Court from the following 

orders of a Commissioner namely:- 

(a) an order as awarding as compensation a lump sum whether 

by way of redemption of a halfmonthly payment or otherwise or 

disallowing a claim in full or in part for a lump sum;” 

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The proviso to the Section reads as under:- 

“Provided that no appeal shall lie against any order unless a 

substantial question of law is involved in the appeal and in the case of 

an order other than an order such is referred to in clause (b) unless the 

amount in dispute in the appeal is not less than three hundred 

rupees…” 


9. The learned counsel contends that the High Court could not have 

entertained the appeal under Section 30(1) of the E.C. Act in the light of the fact 

that no substantial question of law was involved in the appeal. The learned 

counsel places reliance on a decision of this Court in the case of T.S. 

Shylaja v. Oriental Insurance Co. & Anr., ***(2014) 2 SCC 587 wherein this 

Court held that the High Court committed an error in entertaining an appeal 

against the decision of the Compensation Commissioner without answering or 

framing any substantial question of law. In that case, this Court held as under:- 

“10. The only reason which the High Court has given to upset the above 

finding of the Commissioner is that the Commissioner could not blindly 

accept the oral evidence without analysing the documentary evidence 

on record. We fail to appreciate as to what was the documentary 

evidence which the High Court had failed to appreciate and what was 

the contradiction, if any, between such documents and the version 

given by the witnesses examined before the Commissioner. The High 

Court could not have, without adverting to the documents vaguely 

referred to by it have upset the finding of fact which the Commissioner 

was entitled to record. Suffice it to say that apart from appreciation of 

evidence adduced before the Commissioner the High Court has neither 

referred to nor determined any question of law much less a substantial 

question of law existence whereof was a condition precedent for the 

maintainability of any appeal under Section 30. Inasmuch as the High 

court remained oblivious of the basic requirement of law for the 

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maintainability of an appeal before it and inasmuch as it treated the 

appeal to be one on facts it committed an error which needs to be 

corrected.” 

10. The learned counsel further places reliance on the decision of this 

Court in the case of National Insurance Co. Ltd. v. Mastan & Anr., ***(2006) 2 

SCC 641 wherein it was held that an appeal under Section 30 of the E.C. Act 

would be maintainable subject to the limitations placed under Section 30 itself. 

11. The learned counsel further contends that the High Court patently 

erred in waiving off the 50% penalty alongwith the 12% interest payable by 

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Respondent No.1 in case of default without assigning the cogent reason. The 

learned counsel places reliance on a Four Judge Bench decision of this Court in 

the case of Pratap Narain Singh Deo v. Srinivas Sabata,*** (1976) 1 SCC 289 

wherein this Court held that the amount of compensation is payable from the 

date of accident and not from the date of award. The same was reiterated by a 

Division Bench of this Court in the case of Oriental Insurance 

Company Ltd.v. Siby George & Ors.,*** (2012) 12 SCC 540 wherein after 

referring to several decisions of the Court, it was held that:- 

“In the light of the decisions in Pratap Narain Singh Deo and Valsala K., it 

is not open to contend that the payment of compensation would fall 

due only after the Commissioner's order or with reference to the date 

on which the claim application is made.” 

12. The learned counsel further contends that the High Court 

committed an error in reducing the amount of compensation awarded by the 

learned Commissioner without assigning any cogent reasons. Further, there was 

no discussion in the impugned judgment as to whether there was any 

connection between the death of the deceased and the use of the offending 

vehicle. The learned counsel places reliance on the decision of this Court in the 

case of Harijan Mangri Siddakka & Ors. v. Oriental Insurance Co. Ltd. & 

Anr., *** (2008) 16 SCC 115 wherein it was held as under:- 

“We find that there is practically no discussion on the factual scenario as 

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to whether there was any connection between the death and the use of 

the vehicle. It would depend upon the factual scenario in each case and 

there cannot be any strait jacket formula to be applied.” 

13. The learned counsel further contends that the deceased had died as 

a result of an injury sustained in an accident arising out of and in the course of 

employment. He placed reliance on the decision of this Court in Mackinnon 

Mackenzie & Co. (P) Ltd. v. Ibrahim Mohd. Issak,*** 1970 AIR 1906, 1970 SCR 

(1) 869, (1969) 2 SCC 607 wherein it was held as under:- 

“To come within the Act the injury by accident must arise both out of 

and in the course of employment. The words "in the course of the 

employment" mean "in the course of the work which the workman is 

employed to do and which is incidental to it.” The words "arising out of 

employment" are understood to mean that during the course of the 

employment, injury has resulted from some risk incidental to the duties 

of the service, when, unless engaged in the duty owing to the master, it 

is reasonable to believe the workman would not otherwise have 

suffered. 

In other words, there must be a causal relationship between the 

accident and the employment. The expression "arising out of 

employment" is again not confined to the mere nature of the 

employment. The expression applies to employment as such-- to its 

nature, its conditions, its obligations and its incidents. If by reason of 

any of those factors the workman is brought within the zone of special 

danger, the injury would be one which arises "out of employment.” To 

put it differently, if the accident had occurred or account of a risk which 

is an incident of the employment, the claim for compensation must 

succeed, unless of course the workman has exposed himself to an 

added peril by his own imprudent act.” 

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14. The learned counsel contends that the judgment of the High Court 

thus being wholly and patently erroneous is liable to be set aside and the order


of award of compensation passed by the learned Commissioner be restored. 

15. On the other hand, Mr. K.K. Bhat, the learned counsel appearing on 

behalf of the respondent Insurance Company contends that the High Court has 

been compassionate and reasonable in allowing even the amount of 

compensation it did award, considering the fact situation of the case on hand. In 

fact, the appellants are not entitled to any compensation whatsoever when the 

deceased himself was solely negligent and responsible for the accident which 

resulted in his death. The learned counsel places reliance on the three judge 

Bench decision of this Court in the case of Khenyei v. New India Assurance Co. 

Ltd.,*** (2015) 9 SCC 273, wherein it was held as under:- 

“In the case of contributory negligence, a person who has himself 

contributed to the extent cannot claim compensation for the injuries 

sustained by him in the accident to the extent of his own 

negligence……” 

16. The learned counsel further contends that the Insurance Company is 

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not liable to pay the penalty in any case. He places reliance on the decision of 

this Court in the case of Ved Prakash v. Premi Devi & Ors., *** (1997) 8 SCC 1 

wherein this Court held as under:- 

“In other words the insurance company will be liable to meet the claim 

for compensation along with interest as imposed on the insured 

employer by the Workmen's Commissioner under the Compensation 

Act on the conjoint operation of Section 3 and Section 4-A Sub-section 

(3)(a) of the Compensation Act. So far as additional amount of 

compensation by way of penalty imposed on the insured employer by 

the Workmen's Commissioner under Section 4A(3)(b) is concerned, 

however, the insurance company would not remain liable to reimburse 

the said claim and it would be the liability of the insured employer 

alone.” 

17. We have heard the learned counsel appearing on behalf of both the 

parties. We are unable to agree with the contentions advanced by the learned 

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counsel appearing on behalf of the respondent Insurance Company. 

18. The E.C. Act is a welfare legislation enacted to secure compensation 

to the poor workmen who suffer from injuries at their place of work. This 

becomes clear from a perusal of the preamble of the Act which reads as under:- 

“An Act to provide for the payment by certain classes of employers to 

their workmen of compensation for injury by accident.” 

This further becomes clear from a perusal of the Statement of Objects 

and Reasons, which reads as under:- 

“……The growing complexity of industry in this country, with the 

increasing use of machinery and consequent danger to workmen, 

alongwith the comparative poverty of the workmen 

themselves, renders it advisable that they should be protected, as far as 

possible, from hardship arising from accidents. 

An additional advantage of legislation of this type is that by 

increasing the importance for the employer of adequate safety devices, 

it reduces the number of accidents to workmen in a manner that cannot 

be achieved by official inspection. Further, the encouragement given to 

employers to provide adequate medical treatment for their workmen 

should mitigate the effects to such accidents as do occur. The benefits 

so conferred on the workman added to the increased sense of security 

which he will enjoy, should render industrial life more attractive and 

thus increase the available supply of labour. At the same time, a 

corresponding increase in the efficiency of the average workman may 

be expected.” 


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Thus, the E.C. Act is a social welfare legislation meant to benefit the 

workers and their dependents in case of death of workman due to accident 

caused during and in the course of employment should be construed as such. 

Section 3 of the E.C. Act provides for employer’s liability for 

compensation and reads as:- 

“ 3 (1) If personal injury is caused to a workman by accident arising out


of and in the course of his employment his employer shall be liable to 

pay compensation in accordance with the provisions of this Chapter” 


19. The liability of the employer, thus, arises, when the workman 

sustains injuries in an accident which arises out of and in the course of his 

employment. In the case of Regional Director, E.S.I. Corporation & 

Anr. v. Francis De Costa & Anr., ***(1996) 6 SCC 1, a Three Judge Bench of this 

Court held as under:- 

“In the case of Dover Navigation Company Limited v. Isabella Craig 1940 

A.C. 190, it was observed by Lord Wright that- 

Nothing could be simpler than the words "arising out of and in the 

course of the employment.” It is clear that there are two conditions to 

be fulfilled. What arises "in the course of the employment is to be 

distinguished from what arises "out of the employment.” The former 

words relate to time conditioned by reference to the man's service, the 

254 


latter to causality. Not every accident which occurs to a man during the 

time when he is on his employment, that is directly or indirectly 

engaged on what he is employed to do, gives a claim to compensation 

unless it also arises out of the employment. Hence the section imports a 

distinction which it does not define. The language is simple and 

unqualified. 

Although the facts of this case are quite dissimilar, the principles laid 

down in this case, are instructive and should be borne in mind. In order 

to succeed, it has to be proved by the employee that (1) there was an 

accident, (2) the accident had a causal connection with the employment 

and (3) the accident must have been suffered in course of 

employment.” 

20. The learned counsel appearing on behalf of the appellants has also 

rightly placed reliance on the decision of this Court in the case 

of Mackinnon Mackenzie (supra). In the facts of the instant case, the deceased 

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was on his way to deliver goods during the course of employment when he met 

with the accident. The act to get back onto the moving truck was just an 

attempt to regain control of the truck, which given the situation, any reasonable 

person would have tried to do so. The accident, thus, fairly and squarely arose 

out of and in the course of his employment. 

21. The next contention which needs to be dispelled is that the 

appellants are not entitled to any compensation because the deceased died as a 

result of his own negligence. We are unable to agree with the same. Section 3 of 

the E.C. Act does not create any exception of the kind, which permits the 

employer to avoid his liability if there was negligence on part of the workman. 

The reliance placed on the decisions of this Court on Contributory negligence 

like the Three Judge Bench decision in the case of Mastaan (supra) is wholly 

misplaced as the same have been passed in relation to the Motor Vehicles Act, 

1988, and have no bearing on the facts of the case on hand. The E.C. Act does 

not envisage a situation where the compensation payable to an injured or 

deceased workman can be reduced on account of contributory negligence. It 

has been held by various High Courts that mere negligence does not disentitle a 

workman to compensation. Lord Atkin in the case of Harris v. Associated 

Portland Cement Manufacturers Ltd., 1939 AC 71 observed as under:- 

255 


"Once you have found the work which he is seeking to be within his 

employment the question of negligence, great or small, is irrelevant and 

no amount of negligence in doing an employment job can change the 

workman's action into a non-employment job ... In my opinion if a 

workman is doing an act which is within the scope of his employment in 

a way which is negligent in any degree and is injured by a risk incurred 

only by that way of doing it he is entitled to compensation.” 

The above reasoning has been subsequently adopted by several High Courts. In 

the case of Janaki Ammal v. Divisional Engineer, (1956) 2 LLJ 233, the High 

Court of Madras held as under:- 

“Men who are employed to work in factories and elsewhere are human


beings, not machines. They are subject to human imperfections. No 

man can be expected to work without ever allowing his attention to 

wander, without ever making a mistake, or slip, without at some period 

in his career being momentarily careless. Imperfections of this and the 

like nature form the ordinary hazards of employment and bring a case 

of this kind within the meaning of the Act.” 

While no negligence on part of the deceased has been made out from the facts 

of the instant case as he was merely trying his best to stop the truck from 

moving unmanned, even if there were negligence on his part, it would not 

disentitle his dependents from claiming compensation under the Act. 

22. Thus, what becomes clear from the preceding discussion is that the 

deceased died in an accident which arose in and during the course of 

employment. The learned counsel for the appellants has rightly placed reliance 

on the decision of this Court in the case of T.S. Shylaja (supra), wherein 

referring to proviso of Section 30 of the E.C. Act, this Court held as under:- 

256 


“What is important is that in terms of the 1st proviso, no appeal is 

maintainable against any order passed by the Commissioner unless a 

substantial question of law is involved. This necessarily implies that the 

High Court would in the ordinary course formulate such a question or at 

least address the same in the judgment especially when the High Court 

takes a view contrary to the view taken by the Commissioner.” 

In the light of the well reasoned and elaborate order of award of compensation, 

the High Court could not have reduced the compensation amount by more than 

half by merely mentioning that it is in the ‘interest of justice’. It was upon the 

High Court to explain how exactly depriving the poor appellants, who have 

already lost their elder son, of the rightful compensation would serve the ends 

of justice. 

23. Since neither of the parties produced any document on record to 

prove the exact amount of wages being earned by the deceased at the time of 

the accident, to arrive at the amount of wages, the learned Commissioner took 

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into consideration the fact that the deceased was a highly skilled workman and 

would often be required to undertake long journeys outside the state in the line 

of duty, especially considering the fact that the vehicle in question had a 

registered National Route Permit. The wages of the deceased were accepted as 

Rs.4,000/- per month + daily bhatta of Rs.6,000/- per month, which amounts to 

a total of Rs.10,000/-. The High Court did not give any reason on which basis it 

interfered with the finding recorded by the Commissioner on the aspect of 

monthly wages earned by the deceased. The impugned judgment does not even 

mention what according to the High Court, the wages of the deceased were at 

the time of the accident. Such an unnecessary interference on part of the High 

Court was absolutely uncalled for, especially in light of the fact that the 

appellant Nos.1 and 2 are old and have lost their elder son and they have 

become destitutes. Further, under the Payment of Wages Act, 1936, the onus is 

on the employer to maintain the register and records of wages, Section 13A of 

which reads as under:- 

“13-A. Maintenance of registers and records 

(1) Every employer shall maintain such registers and records giving such 

particulars of persons employed by him, the work performed by them, 

the wages paid to them, the deductions made from their wages, the 

receipts given by them and such other particulars and in such form as 

may be prescribed. 

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(2) Every register and record required to be maintained under this 

section shall, for the purposes of this Act, be preserved for a period of 

three years after the date of the last entry made therein.” 

From a perusal of the aforementioned section it becomes clear that the onus to 

maintain the wage roll was on the employer, i.e. Respondent No.2. Since in the 

instant case, the employer has failed in his duty to maintain the proper records 

of wages of the deceased, the appellants cannot be made to suffer for it. 

24. In view of the foregoing, the judgment and order of the High Court 

suffers from gross infirmity as it has been passed not only in ignorance of the


decisions of this Court referred to supra, but also the provisions of the E.C. Act 

and therefore, the same is liable to be set aside and accordingly set aside. 

25. The monthly wage of the deceased arrived at by the learned 

Commissioner was Rs.10,000/-. The date of birth of the deceased according to 

the Driver’s License produced on record is 01.07.1984. The date of death of the 

deceased is 19.07.2011. Thus, according to Schedule IV of the E.C. Act, 

the ‘completed years of age on the last birthday of the employee immediately 

preceding the date on which the compensation fell due’, is 27 years, the factor 

for which is 213.57. Hence, the amount of compensation payable to the 

appellants is calculated as under:- 

Rs.10,000/- x 50% x Rs.213.57 = Rs.10,67,850/-. 

Funeral expenses to the tune of Rs.25,000/- are also awarded. 

The total amount of compensation payable thus comes to 

Rs.10,92,850/-. 

26. Further, an interest at the rate of 12% per annum from the date of 

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accident, that is 19.07.2011, is also payable to the appellants over the above 

awarded amount. In light of the unnecessary litigation and the hardship of the 

appellants in spending litigation to get the compensation which was rightly due 

to them under the Act, we deem it fit to award the appellants costs as Rs. 

25,000/-. 

27. Appeal is accordingly allowed. The respondent- Insurance Company 

is directed to deposit the amount within six weeks from today with the 

Employees Compensation Commissioner. On such deposit, he shall disperse the 

same to the appellants. 

---SS--- 

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Present: Justice M.Y. Eqbal and Justice Arun Mishra. 

KERALA PUBLIC SERVICE COMMISSION & Ors. – Appellants, 

Versus 

THE STATE INFORMATION COMMISSION & Anr. – Respondents. 

CIVIL APPEAL Nos.823-854 OF 2016 (Arising out of SLP (C ) Nos. 15919- 

15950 of 2011) 

With CIVIL APPEAL NO.855 OF 2016 (Arising out of SLP (Civil) No.5433 of 

2014) 

(i) Right to information Act, 2005 (22 of 2005) - Disclosure of names of 

examiners who have evaluated the answer-sheet - Public Service 

Commission (PSC) has taken upon itself in appointing the examiners to 

evaluate the answer papers and as such, the PSC and examiners stand 

in a principal-agent relationship - PSC is in the shoes of a Principal has 

entrusted the task of evaluating the answer papers to the Examiners - 

Examiners in the position of agents are bound to evaluate the answer 

papers as per the instructions given by the PSC - As a result, a fiduciary 

relationship is established between the PSC and the Examiners - 

Therefore, any information shared between them is not liable to be 

disclosed. [Para 9] 

259 


(ii) Right to information Act, 2005 (22 of 2005) - Disclosure of names of 

examiners who have evaluated the answer-sheet - Don’t see any logical 

reason as to how this will benefit him or the public at large - Disclosure 

of the identity of Examiners is in the least interest of the general public 

and also any attempt to reveal the examiner’s identity will give rise to 

dire consequences - Commission has reposed trust on the examiners 

that they will check the exam papers with utmost care, honesty and


impartially and, similarly, the Examiners have faith that they will not be 

facing any unfortunate consequences for doing their job properly - If we 

allow disclosing name of the examiners in every exam, the unsuccessful 

candidates may try to take revenge from the examiners for doing their 

job properly - May, further, create a situation where the potential 

candidates in the next similar exam, especially in the same state or in 

the same level will try to contact the disclosed examiners for any 

potential gain by illegal means in the potential exam. [Para 9] 

260 


(iii) Right to information Act, 2005 (22 of 2005) – Candidates 

application for information of answer sheets and details of the 

interview marks can be and should be provided - It is not something 

which a public authority keeps it under a fiduciary capacity - Disclosing 

the marks and the answer sheets to the candidates will ensure that the 

candidates have been given marks according to their performance in 

the exam - Will ensure a fair play in this competitive environment, 

where candidate puts his time in preparing for the competitive exams. 

[Para 10] 

JUDGMENT 


M.Y. Eqbal, J.-(4 th February, 2016)- Leave granted. 

2. In these two appeals the short question which needs consideration is 

as to whether the Division Bench of the Kerala High Court by impugned 

judgment has rightly held that the respondents are entitled not only to get 

information with regard to the scan copies of their answer sheet, tabulationsheet 

containing interview marks but also entitled to know the names of the 

examiners who have evaluated the answer sheet. 

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3. The information sought for by the respondents were denied by the 

State Public Information Officer and the Appellate Authority. However, the State 

Information Commission allowed the second appeal and held that there is no 

fiduciary relationship in case of answer scripts. Further, the interview marks 

cannot be considered as personal information, since the public authority had 

already decided to publish them. 

4. Both the High Courts of Kerala and Allahabad have taken the view, 

following the earlier decisions of this Court that no fiduciary relationship exists 

between the appellants and the respondents and, therefore, the information 

sought for have to be supplied to them. 

5. We have heard learned counsel for the parties and have gone 

through the impugned judgments passed by the Division Bench of the High 

Court of Kerala at Ernakulam and Allahabad. 

6. So far as the information sought for by the respondents with regard 

to the supply of scanned copies of his answer-sheet of the written test, copy of 

the tabulation sheet and other information, we are of the opinion that the view 

taken in the impugned judgment with regard to the disclosure of these 

information, do not suffer from error of law and the same is fully justified. 

However, the view of the Kerala High Court is that the information seekers are 

also entitled to get the disclosure of names of examiners who have evaluated 

the answer-sheet. 

7. The view taken by the Kerala High Court holding that no fiduciary 

relationship exists between the University and the Commission and the 

examiners appointed by them cannot be sustained in law. The Kerala High Court 

while observing held:- 

“16.What, if any , is the fiduciary relationship of the PSC qua the 

examinees? Performance audit of constitutional institutions would only 

strengthen the confidence of the citizenry in such institutions. The PSC 

is a constitutional institution. To stand above board, is one of its own 

prime requirements. There is nothing that should deter disclosure of the 

contents of the materials that the examinees provide as part of their 

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262 



performance in the competition for being selected to public service. The 

confidence that may be reposed by the examinees in the institution of 

the PSC does not inspire the acceptability of a fiduciary relationship that 

should kindle the exclusion of information in relation to the evalution or 

other details relating to the examination. Once the evaluation is over 

and results are declared, no more secrecy is called for. Dissemination of 

such information would only add to the credibility of the PSC, in the 

constitutional conspectus in which it is placed. A particular examinee 

would therefore be entitled to access to information in relation to that 

person’s answer scripts. As regards others, information in relation to 

answer scripts may fall within the pale of “third party information” in 

terms of section 11 of the RTI Act. This only means that such 

information cannot be accessed except in conformity with the 

provisions contained in section 11. It does not, in any manner, provide 

for any immunity from access. 

17. We shall now examine the next contention of PSC that there 

is a fiduciary relationship between it and the examiners and as a 

consequence, it is eligible to claim protection from disclosure, except 

with the sanction of the competent authority, as regards the identity of 

the examiners as also the materials that were subjected to the 

examination. We have already approved TREESA and the different 

precedents and commentaries relied on therein as regards the concept 

of fiduciary relationship. We are in full agreement with the law laid by 

the Division Bench of this Court in Centre of Earth Science Studies 

(supra), that S.8 (1)(e) deals with information available with the person 

in his fiduciary relationship with another; that information under this 

head is nothing but information in trust, which, but for the relationship 

would not have been conveyed or known to the person concerned. 

What is it that the PSC holds in trust for the examiners? Nothing. At the 

best, it could be pointed out that the identity of the examiners has to be 

insulated from public gaze, having regard to issues relatable to 

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vulnerability and exposure to corruption if the identities of the 

examiners are disclosed in advance. But, at any rate, such issues would 

go to oblivion after the conclusion of the evaluation of the answer 

scripts and the publication of the results. Therefore, it would not be in 

public interest to hold that there could be a continued secrecy even as 

regards the identity of the examiners. Access to such information, 

including as to the identity of the examiners, after the examination and 

evaluation process are over, cannot be shied off under any law or 

avowed principle of privacy.” 

8. We do not find any substance in the reasoning given by the Kerala 

High Court on the question of disclosure of names of the examiners. 

9. In the present case, the PSC has taken upon itself in appointing the 

examiners to evaluate the answer papers and as such, the PSC and examiners 

stand in a principal-agent relationship. Here the PSC in the shoes of a Principal 

has entrusted the task of evaluating the answer papers to the Examiners. 

Consequently, Examiners in the position of agents are bound to evaluate the 

answer papers as per the instructions given by the PSC. As a result, a fiduciary 

relationship is established between the PSC and the Examiners. Therefore, any 

information shared between them is not liable to be disclosed. Furthermore, 

the information seeker has no role to play in this and we don’t see any logical 

reason as to how this will benefit him or the public at large. We would like to 

point out that the disclosure of the identity of Examiners is in the least interest 

of the general public and also any attempt to reveal the examiner’s identity will 

give rise to dire consequences. Therefore, in our considered opinion revealing 

examiner’s identity will only lead to confusion and public unrest. Hence, we are 

not inclined to agree with the decision of the Kerala High Court with respect to 

the second question. 

10. In the present case the request of the information seeker about the 

information of his answer sheets and details of the interview marks can be and 

should be provided to him. It is not something which a public authority keeps it 

under a fiduciary capacity. Even disclosing the marks and the answer sheets to 

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the candidates will ensure that the candidates have been given marks according 

to their performance in the exam. This practice will ensure a fair play in this 

competitive environment, where candidate puts his time in preparing for the 

competitive exams, but, the request of the information seeker about the details 

of the person who had examined/checked the paper cannot and shall not be 

provided to the information seeker as the relationship between the public 

authority i.e. Service Commission and the Examiners is totally within fiduciary 

relationship. The Commission has reposed trust on the examiners that they will 

check the exam papers with utmost care, honesty and impartially and, similarly, 

the Examiners have faith that they will not be facing any unfortunate 

consequences for doing their job properly. If we allow disclosing name of the 

examiners in every exam, the unsuccessful candidates may try to take revenge 

from the examiners for doing their job properly. This may, further, create a 

situation where the potential candidates in the next similar exam, especially in 

the same state or in the same level will try to contact the disclosed examiners 

for any potential gain by illegal means in the potential exam. 

11. We, therefore, allow these appeals in part and modify the judgment 

only to the extent that the respondents-applicants are not entitled to the 

disclosure of names of the examiners as sought for by them. 

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Present: Justice M.Y. Eqbal and Justice C. Nagappan, JJ. 

VIPINCHANDRA VADILAL BAVISHI (D) by Lrs. and another – Appellant 

versus 

STATE OF GUJARAT and others – Respondent 

Civil Appeal No. 7434 OF 2012 

(i) Urban Land (Ceiling and Regulation) Act, 1976, the provisions 

contained in Sections 8, 9 and 10 have to be mandatorily complied with 

before the land is declared in excess of the ceiling limit. 

(ii) Arithmetical mistake and Clerical mistake - An arithmetical mistake 

is a mistake in calculation, while a clerical mistake is a mistake of 

writing or typing error occurring due to accidental slip or omissions or 

error due to careless mistake or omission - Substituting different lands 

in place of the lands which have been notified by a statutory 

Notification under Section 10(1), 10(3) and 10(5) of the Urban Land 

(Ceiling and Regulation) Act, 1976 cannot and shall not be done by 

issuing a corrigendum unless the mandatory requirements contained in 

the aforementioned sections is complied with - A land holder cannot be 

divested from his land on the plea of clerical or arithmetical mistake 

liable to be corrected by issuing corrigendum - Urban Land (Ceiling and 

Regulation) Act, 1976, Section 10. [Para 26] 

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JUDGMENT 

M.Y. Eqbal, J. – (January 28, 2016) - The appellants are aggrieved by the 

judgment and order dated 26.3.2010 passed by the Division Bench of Gujarat 

High Court dismissing the Letters Patent Appeal No.740 of 2002 holding that the


appellants are not entitled to the benefit of the Urban Land (Ceiling and 

Regulation) Repeal Act, 1999 and thereby upheld the judgment passed by the 

learned Single Judge in the writ petition filed by the appellants. 

2. The factual matrix of the case is that the appellants were the owners 

and land holders of vacant lands situated in different places in the State of 

Gujarat. When the Urban Land (Ceiling and Regulation) Act, 1976 (in short, “Act 

of 1976”) came into force in August, 1976, the appellants filed the return as 

required under Section 6 of the Act of 1976 and in the said form the appellants 

declared their lands situated in village Rajkot, Kothariya and Nana Mauva in the 

district of Rajkot, Gujarat. The return in the specified form shows that the 

appellants owned land in survey nos. 1, 2, 7 to 18 and 44 in Village Rajkot and 

plot nos. 36 to 43 in village Nana Mauva in the district of Rajkot. The wife of the 

appellant Bipin Chandra Babhishi (appellant No.2) also filed separate return. 

3. The draft statement was prepared by the authority and final 

statement under Section 9 was issued showing plot nos. 1 to 16 as excess land 

266 


held by the appellants beyond ceiling limit. 

4. The Notification under Section 10(1) of the Act was published on 24- 

3-1986 declaring the land together with other land as surplus land. The 

respondent’s case is that the numbers of plots and the measurements were 

described as Plot Nos. 1 to 16, instead of either 16 plots or Plot Nos. 36 to 43 

and the area was mentioned as of 9030.71 sq.mtrs. instead of 4610 sq.mtrs. 

Thereafter, on 16-6-1986, the Notification under Section 10 (3) was published 

showing the details of the land of Plot No. 1 to 16 as they were shown in the 

Notification under Section 10(1) of the Act. Against the order dated 27-2-1986 

for declaring the land in question together with the other land as surplus land, 

the appellant preferred appeal being No. Rajkot/41/86, before the Urban Land 

Tribunal and on 17-6-1986. In the said appeal, the interim stay was granted 

against the publication of the Notification under Section 10(3) of the Act. 

However, prior thereto, i.e. on 16-6-1986, the Notification under Section 10(3) 

of the Act as stated above, was already published. On 20-12-1988, the Urban 

Land Tribunal dismissed the appeal preferred by the appellant as well as by his 

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wife. However, so far as the land in question is concerned, the Tribunal, vide 

Para No. 4 of the judgment in the Appeal No. 41 of 1986 of the appellants, 

considered that the land in question bearing Plot Nos. 36 to 43 admeasuring 

4610 sq. mtrs. was declared as land under holding of the appellant and had also 

recorded that the declaration under Section 10(3) of the Act was issued on 16-6- 

1986. 

5. Thereafter, corrigendum dated 26-6-1989 allegedly issued for 

correcting the mistake occurred in the description of plot numbers and areas of 

the land in question and as per the said order, it was mentioned that the plot 

numbers are to be correctly read as 16 to 23 and 36 to 43. It is the case of the 

respondent authorities that on 26-6-1989, the possession of the land in 

question bearing Plot Nos. 16 to 23 and Plot Nos. 36 to 43 was taken over and 

the panchnama was also drawn to that effect. In the panchnama dated 26-6- 

1989, it has also been mentioned that over the land in question Plot Nos. 16, 17, 

23 and 24, the construction of houses are made. In October 1989, the appellant 

preferred Spl.C.A. No. 3456 of 1989 before the High Court against the order 

dated 27-2- 1986 passed by the Urban Land Authority and order dated 28-12- 

1988 passed by the Urban Land Tribunal. In the said Spl. Civil Application, High 

Court passed an order of issuing notice and directed the parties to maintain the 

status quo as on that day. The said petition was heard and dismissed by the High 

Court on 19-7-1993. Being aggrieved, the appellant had preferred appeal before 

this Court under Article 136 of the Constitution, which stood dismissed. 

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6. On 18th March, 1999, the Urban Land (Ceiling and Regulation) Repeal 

Act, 1999 (in short, “Repeal Act”) came into force whereby the Urban Land 

(Ceiling & Regulation) Act stood repealed. In September, 2000, the appellant 

preferred a petition before the High Court for declaration that respondent nos. 

1 and 2 have no powers or authority to take the possession of the land in 

question and has also prayed for the permanent injunction against respondent 

Nos. 1 and 2 for dealing or disposing of the land in question pending the 

petition. The appellants came to know that the land in question admeasuring 

2100 Sq. Mtrs. has been allotted to one Shram Deep Co-op. Housing Society, by


the State Government as per order dated 12th Sept., 2000, and therefore, the 

appellants also challenged the legality and validity of the said order for 

allotment of the land. 

7. Learned Single Judge of the High Court dismissed the petition filed by 

the appellants. Observing that the State Government was not legally justified in 

disposing the land in question after the Repeal Act and since the same has been 

disposed of without observing the settled norms for disposal of the public 

property, learned Single Judge also quashed and set aside the order dated 12-9- 

2000 whereby the land in question was allotted to the respondent No. 3- 

Society. The appellants herein challenged dismissal of their petition by way of 

filing Letters Patent Appeal. Respondent-Society also filed Letters Patent Appeal 

challenging cancellation of aforesaid allotment. 

8. After hearing both sides, the Division Bench of the High Court 

dismissed the appeal preferred by the appellants and allowed the appeal filed 

by the Society. The Division Bench confirmed the order of learned Single Judge 

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in Special Civil Application so far as it related to the appellant, and set aside the 

findings so far it related to the Co-operative Society, holding thus: 

“39. Learned Single Judge has non-suited the petitioners on the 

ground that their land at village Kotharia was sold in the year 1997 by 

the State Government authorities, no objection was raised by them in 

this relation. Thus, for all practical purposes they have understood that 

the land belonging to them having been declared as surplus has rightly 

vested in the State Government and the State Government had a right 

to sell the same and therefore no grievance whatsoever was raised in 

that relation. That tantamounts to acquiescence of the petitioners and 

we do not think that learned Single Judge was wrong in holding the 

same. 

40. Learned Single Judge has also noticed that there is nondisclosure 

of necessary facts in the petition filed before this Court 

regarding the material questions, such as corrigendum, preparation of 

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panchnama and the proceedings initiated by them for encroachment 

which tantamounts to withholding the material information and this 

shows that the petitioners had not come to this Court with clean hands 

and lack bona fides and therefore on that count also the judgement of 

learned Single Judge is not found vitiated by us. 

xxxxxxxx 

44. In view of the aforesaid, we are of the considered opinion 

that the petitioners' petition has rightly been dismissed by learned 

Single Judge. Since the petitioners' petition held by us to be not 

maintainable in the facts of this case, the question of allotment of the 

land acquired from the petitioners to the respondent/appellant Cooperative 

Society is not gone into by us because if the petition itself is 

held to be not maintainable then that question was not liable to be 

gone into by learned Single Judge because such allotment would not fall 

within the purview of its jurisdiction exercised by learned Single Judge. 

That could have been done in a Public Interest Litigation. In any case, 

the Co-operative Society having been made to deposit money in the 

year 1991 and the State having not allotted the land to it until this Court 

had issued a direction, we consider that that question is not required to 

be gone into at the instance of the petitioners. Therefore, the findings 

of learned Single Judge in that relation are considered by us to be not 

proper and therefore they are liable to be set aside. 45. In view of the 

above, the petition filed by the petitioners before learned Single Judge 

is dismissed. Since we have dismissed Special Civil Application filed by 

the petitioners, the findings in relation to the Cooperative Society are 

also set aside. In that view of the matter, the appeal of the Co-operative 

Society stands allowed.” 

269 


9. Hence the present appeal by special leave by the landholders. 

10. Mr. Harin P. Raval, learned senior counsel appearing for the 

appellants-landholders, before briefing the point of submission, contended that


the instant case is squarely covered by the judgment rendered by this Court in 

the case of State of Uttar Pradesh v. Hari Ram, (2013) 4 SCC 280. Learned 

counsel submitted that in the instant case the State Government has failed to 

establish that possession has been legally taken over either by way of the 

voluntary surrender of possession under sub-section (5) of Section 10 or forceful 

dispossession under sub-section (6) of Section 10 of the Act. 

11. Mr. Raval submitted that admittedly there was a status quo order 

granted by the Land Ceiling Tribunal on 17.6.1986. Hence, the notification 

purported to have been issued under sub-section (3) of Section 10 and any 

action taken will be a nullity. Consequently, Notification under Section 10 (1), 

under Section 10(3) and under Section 10(5) and the Panchnama mentioned 

therein in respect of survey nos. 73, 74 and 71 are patently bad and illegal. 

12. Mr. Raval submitted that in the final statement dated 27.2.1986 

issued under Section 9 of the Act relates to plot nos. 1 to 16 of survey no.71. So 

also Notification under Section 10(1), Section 10(3) are in respect of of plot Nos. 

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1 to 16 whereas Panchnama dated 26.6.1989 was prepared for taking 

possession of plot nos.16 to 23 and 36 to 43 of Survey No. 71 of village Mauva. 

That was based on so called corrigendum dated 26.6.1989 alleging that plot 

numbers have been corrected. Admittedly the same was not published in the 

Government Gazette and the appellants never knew the same. Learned counsel 

submitted that the said corrigendum is a got up document which is very clear 

from the letter dated 18.8.2000. 

13. Mr. Raval, learned senior counsel, lastly contended that the stand of 

the State Government that the corrigendum is not required to be published in 

the Government Gazette cannot be sustained in view of Section 21 of the 

General Clauses Act and the law decided by this Court in the case of Mahendra 

Lal Jaini v. State of U.P. & Ors. AIR 1963 SC 1019, and State of Kerala v. P.J. 

Joseph, AIR 1958 SC 296. 

14. Mr. Preetesh Kapur, learned counsel appearing for the respondent- 

State firstly contended that the learned Single Judge rightly dismissed the writ 

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petition on the ground of constructive res judicata as well delay and 

acquiescence. Learned counsel submitted that all the contentions raised by the 

appellant in the present proceedings could have been and ought to have been 

raised in the first round of litigation in the Writ Petition No. 3456 of 1989. 

Learned counsel submitted that the appellants were fully aware that in 

pursuance of the corrigendum dated 26.6.1989 possession of the land in 

question namely plot Nos. 36 to 43 has been taken over by the State which is 

clear from the Panchnama and the notice dated 23.10.1989. Further, in the 

earlier writ petition, the appellants in effect accepted that the correct plot nos. 

36 to 43 were declared surplus. According to the learned counsel, therefore, the 

appellants were all along aware of this corrigendum. 

15. Mr. Kapur then contended that in any view of the matter, the 

appellants could have challenged the said corrigendum as well as taking over 

the possession of plot nos. 36 to 43, if according to the appellant there is no 

valid Notification under Section 10(3) in respect of plots in question or that the 

corrigendum was required to be notified. 16. Referring to the Repeal Act of 

1999, learned counsel submitted that the said Repeal Act does not give any 

fresh cause of action to the appellants if the foundation for the relief in the 

present proceedings is nothing but the ground that was always available to the 

appellants in the earlier round of litigation. In this regard, learned counsel relied 

upon the decision in the case of Shiv Chander More & Ors. v. Lieutenant 

Governor & Ors., (2014) 11 SCC 744. 

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17. Mr. C.A. Sundaram, learned senior counsel appearing for some of 

the appellants, at the very outset, submitted that a person can be divested from 

his property only by Notification under Section 10(3) of the Act and not by an 

order under Section 45 of the Act. Learned counsel submitted that the cause of 

action for approaching the court arose only after the Repeal Act of 1999 came 

into force. Learned counsel drawn our attention to the scheme of the Act and 

the mandate provided therein. Divesting the land-holders from their property 

without following the mandatory provision is a nullity. 

18. In order to decide the correctness of the impugned judgment of the


High Court, we would like to refer some of the facts which are not in dispute. 

(i) After the statutory form under Section 6 of the Act was 

submitted by the appellants-land-holders, Notification was issued under 

Section 10(1) of the Act giving the particulars of the vacant land held by 

the appellants in excess of ceiling limit. In the said Notification, plot nos. 

1 to 16 were declared as excess land. There is no mention of plot nos. 

36 to 43. 

(ii) On 16.6.1986, Notification under Section 10(3) was issued by 

the competent authority declaring the excess vacant land referred to in 

the Notification under Section 10(1) deemed to have been acquired by 

the State Government. In that Section 10(3) Notification also there is no 

mention of vesting of land of plot nos. 36 to 43. 

(iii) Although Land Ceiling Tribunal by order dated 17.6.1986 

granted status quo restraining publication of Section 10(3) Notification 

and not to conduct further proceedings, but in spite of status quo, again 

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Section 10(3) Notification was published in the Gazette on 24.7.1986 

showing plot nos. 1 to 16 as excess vacant land deemed to have been 

acquired. 

(iv) A handwritten corrigendum was allegedly prepared on 

26.6.1989, but it was never given effect to, which is evident from the 

letter dated 18.8.2000. We shall discuss the said letter dated 18.8.2000 

hereinafter. 

19. Now the question that needs consideration is as to whether 

handwritten corrigendum dated 26.6.1989 and the alleged panchnama of the 

same dated 26.6.1989 can be relied upon and that on the basis of said 

corrigendum and the panchnama can the land stood vested in the State. As 

noticed above, according to the respondent-State a handwritten corrigendum 

dated 26.6.1989 correcting plot numbers have been issued, but from the letter 

dated 18.8.2000, it is clear that the said handwritten corrigendum was never 

given effect to. In the letter dated 18.8.2000 issued by the Deputy Secretary, 

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Revenue Department to the Additional Collector, (Competent Officer of Urban 

Land Ceiling), it was mentioned that possession of land of plot nos. 1 to 16 of 

survey no. 71 was taken over by the Government and when it came to the 

notice that the landholders were holding plot nos. 36 to 43, possession was 

taken over of those plots. The competent officer has sought sanction of the 

Government for publishing necessary corrigendum. It is also mentioned in the 

letter that sanction is required for showing plot nos. 36 to 43 by issuing a 

corrigendum. 

20. From these facts and the documents available on record, it is 

evidently clear that neither the Notifications under Sections 10(1), 10(2), 10(3) 

and 10(5) were issued in respect of plot nos. 36 to 43 nor possession of those 

plots have been taken over by the respondents. Curiously enough even the map 

attached to the letter dated 26.6.1989 shows that the possession of plot nos. 1 

to 16 were taken and not of plot nos. 36 to 43. 

21. From perusal of the Urban Land (Ceiling and Regulation) Act, 1976 

(in short “Ceiling Act”), the provisions contained in Sections 8, 9 and 10 have to 

be mandatorily complied with before the land is declared in excess of the ceiling 

limit. Section 8 empowers the authority to prepare a draft statement giving 

particulars of the land holders, vacant lands and such draft statement is served 

upon the land holders inviting objections to the draft statement. Admittedly, in 

the draft statement, neither the lands comprised within plot nos. 36 to 43 were 

shown as excess land nor objection was invited from the appellants. In the final 

statement prepared under Section 9 of the Act, again the land of plot nos. 36 to 

43 was not shown as excess land beyond ceiling limit. As noticed above, a 

Notification under Section 10(1) of the Act was published showing the land of 

plot nos. 1 to 16 as excess vacant land held by the appellants. Thereafter, the 

competent authority issued Notification under Section 10(3) of the Act which 

was published in the Gazette of the State declaring that the land of plot nos. 1 

to 16 deemed to have been acquired by the State. In spite of the fact that the 

land in question being plot nos. 36 to 43 of survey no. 71 was not the land under 

Notification issued under Section 10(1) and 10(3) of the Act, the authority 

273 



alleged to have proceeded under Section 10(5) of the Act for taking possession 

of the land. At this juncture, it is relevant to mention here that no notice has 

been produced by the State to show that the appellants were asked to 

surrender or deliver the possession of plot nos. 36 to 43. Nor there is any 

evidence to show that the appellants ever refused or failed to comply with any 

notice issued under Section 10(5) of the Act. 

22. Perusal of the documents reveals that the respondent State has not 

come with clean hands which is evident from the counter affidavit filed by the 

State before the High Court in the writ petition. In paragraph 13 of the counter 

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affidavit it was stated by the State that by order dated 27.2.1986 land 

comprised within the plot nos. 1 to 16 of Village Nana mauva was declared 

excess. It is stated that the said order was passed relying upon the documents 

dated 6.9.1965 submitted with form No.1, wherein total number of plots were 

shown as 1 to 16. However, it is stated that by corrigendum dated 26.6.1989, 

instead of plot nos. 1 to 16, possession of plot nos. 16 to 23 and 36 to 43 was 

published in compliance with the provision contained in Section 45 of the Act 

and accordingly the possession of plot nos. 16 to 23 and 36 to 43 was taken over 

on 26.6.1989 in the presence of panchas. From perusal of panchnama dated 

26.6.1989, it is mentioned that the appellants were informed to remain present 

for handing over possession but the appellants had not remained present to 

hand over the possession. Hence, in presence of two panchs possession of 

excess land as per particulars given therein was taken over. In the particulars of 

land regarding the taken over possession plot nos. 16 to 19 has been shown 

with boundary. If the contention of the respondent is accepted, then according 

to the respondent everything i.e. preparation of corrigendum, information to 

the appellant for the handing over the possession and finally taking over the 

possession have been done on the same date i.e. on 26.6.1989. If that was so, 

then why sanction was sought by the authority of the respondent for notifying 

the corrigendum by letter dated 18.8.2000 after the Repeal Act came into force. 

We are therefore, constraint to hold that the case made out by the respondent- 

State the possession of plot nos. 36 to 43 was taken over on 26.6.1989 cannot 

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be accepted. 

23. A similar question came up for consideration before this Court in the 

case of State of U.P. v. Hari Ram, 2013 (4) SCC 280. In this case, a question 

arose as to whether the deemed vesting of surplus land under Section 10(3) of 

the Act would amount to taking de facto possession depriving the landholders 

of the benefit of the saving clause under Section 4 of the Urban Land (Ceiling 

and Regulation) Repeal Act, 1999. After examining in detailed provisions of the 

Ceiling Act as also the Repeal Act, the Court observed :- 

“35. If de facto possession has already passed on to the State 

Government by the two deeming provisions under sub-section (3) of 

Section 10, there is no necessity of using the expression “where any 

land is vested” under sub-section (5) of Section 10. Surrendering or 

transfer of possession under sub-section (3) of Section 10 can be 

voluntary so that the person may get the compensation as provided 

under Section 11 of the Act early. Once there is no voluntary surrender 

or delivery of possession, necessarily the State Government has to issue 

notice in writing under sub-section (5) of Section 10 to surrender or 

deliver possession. Sub-section (5) of Section 10 visualises a situation of 

surrendering and delivering possession, peacefully while sub-section (6) 

of Section 10 contemplates a situation of forceful dispossession. 

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Forceful dispossession 

36. The Act provides for forceful dispossession but only when a 

person refuses or fails to comply with an order under sub-section (5) of 

Section 10. Sub-section (6) of Section 10 again speaks of “possession” 

which says, if any person refuses or fails to comply with the order made 

under sub-section (5), the competent authority may take possession of 

the vacant land to be given to the State Government and for that 

purpose, force—as may be necessary—can be used. Sub-section (6), 

therefore, contemplates a situation of a person refusing or fails to 

comply with the order under sub-section (5), in the event of which the


competent authority may take possession by use of force. Forcible 

dispossession of the land, therefore, is being resorted to only in a 

situation which falls under sub-section (6) and not under sub-section (5) 

of Section 10. Sub-sections (5) and (6), therefore, take care of both the 

situations i.e. taking possession by giving notice, that is, “peaceful 

dispossession” and on failure to surrender or give delivery of possession 

under Section 10(5), then “forceful dispossession” under sub-section (6) 

of Section 10. 

37. The requirement of giving notice under subsections (5) and 

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that:- 

(6) of Section 10 is mandatory. Though the word “may” has been used 

therein, the word “may” in both the sub-sections has to be understood 

as “shall” because a court charged with the task of enforcing the statute 

needs to decide the consequences that the legislature intended to 

follow from failure to implement the requirement. Effect of non-issue of 

notice under sub-section (5) or sub-section (6) of Section 11 is that it 

might result in the landholder being dispossessed without notice, 

therefore, the word “may” has to be read as “shall”.” 

24. The Bench further considered the effect of Repeal Act and held 

“41. Let us now examine the effect of Section 3 of Repeal Act 15 

of 1999 on sub-section (3) of Section 10 of the Act. The Repeal Act, 1999 

has expressly repealed Act 33 of 1976. The objects and reasons of the 

Repeal Act have already been referred to in the earlier part of this 

judgment. The Repeal Act has, however, retained a saving clause. The 

question whether a right has been acquired or liability incurred under a 

statute before it is repealed will in each case depend on the 

construction of the statute and the facts of the particular case. 

42. The mere vesting of the land under subsection (3) of Section 

10 would not confer any right on the State Government to have de facto 

possession of the vacant land unless there has been a voluntary 

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surrender of vacant land before 18-3-1999. The State has to establish 

that there has been a voluntary surrender of vacant land or surrender 

and delivery of peaceful possession under sub-section (5) of Section 10 

or forceful dispossession under sub-section (6) of Section 10. On failure 

to establish any of those situations, the landowner or holder can claim 

the benefit of Section 4 of the Repeal Act. The State Government in this 

appeal could not establish any of those situations and hence the High 

Court is right in holding that the respondent is entitled to get the 

benefit of Section 4 of the Repeal Act. 

43. We, therefore, find no infirmity in the judgment of the High 

Court and the appeal is, accordingly, dismissed so also the other 

appeals. No documents have been produced by the State to show that 

the respondents had been dispossessed before coming into force of the 

Repeal Act and hence, the respondents are entitled to get the benefit of 

Section 4 of the Repeal Act. However, there will be no order as to 

costs.” 

25. The submission of Mr. Kapoor, learned counsel appearing for the 

respondent-State, that mentioning of Plot Nos. 1 to 16 in the Notification issued 

under Sections 10(1), 10(3) and 10(5) is a clerical mistake which can be 

corrected by issuing a corrigendum, is absolutely not tenable in law. How Plot 

Nos. 1 to 16 can be replaced by Plot Nos. 36 to 43 in those Notifications by 

issuing a hand-written corrigendum which was not even finally approved by the 

authorities after 1976 Act stood repealed. 

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26. An arithmetical mistake is a mistake in calculation, while a clerical 

mistake is a mistake of writing or typing error occurring due to accidental slip or 

omissions or error due to careless mistake or omission. In our considered 

opinion, substituting different lands in place of the lands which have been 

notified by a statutory Notification under Section 10(1), 10(3) and 10(5) cannot 

and shall not be done by issuing a corrigendum unless the mandatory 

requirements contained in the aforementioned sections is complied with. A land 

holder cannot be divested from his land on the plea of clerical or arithmetical


mistake liable to be corrected by issuing corrigendum. 

27. The submission of the learned counsel appearing for the 

respondent-State that the writ petition is barred by res judicata is also not 

sustainable in law. In our considered view, question as to whether the 

appellants landholders were dispossessed from the land in question and the 

effect of the Repeal Act on this was not the issue in the earlier writ petition and, 

therefore, it cannot be held that the instant writ petition is barred by res 

judicata or constructive res judicata. 

28. For the aforesaid reasons this appeal is allowed and the impugned 

judgment passed by the High Court is set aside. Consequently, it is held that the 

appellants landholders are entitled to retain possession of the land comprised 

within Plot Nos. 36-43, Survey No.71 in village Nana Mauva in the District of 

Rajkot, Gujarat, as the same is not vested in the State. 

29. So far the contention made by respondent no.3 - Cooperative 

Society is concerned, we have examined their case and found that the Division 

278 


Bench rightly set aside the finding of the learned Single Judge so far it related to 

the Co-operative Society. 

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Present: Justice M.Y. Eqbal and Justice Arun Mishra, JJ. 

SATISH KUMAR – Appellant 

versus 

KARAN SINGH and Another – Respondent 

Civil appeal no. 7385 of 2013 

(i) Specific Relief Act - Jurisdiction to order specific performance of 

contract is based on the existence of a valid and enforceable contract - 

Where a valid and enforceable contract has not been made, the Court 

will not make a contract for them - Specific performance will not be 

ordered if the contract itself suffers from some defect which makes the 

contract invalid or unenforceable - The discretion of the Court will not 

be there even though the contract is otherwise valid and enforceable. 

[Para 8] 

(ii) Specific Relief Act - Suit for specific performance - Suit filed on the 

basis of a “receipt + agreement” - Decision taken by the Development 

Authority for allotment of a plot in favour of the defendant - In the year 

1995 the defendant had desired to sell his right in the said 

recommendation letter which was to be allotted by the DDA - 

Defendant agreed to sell his right in the aforesaid recommendation 

letter and the plot to be allotted at a price of Rs.4,60,000/- - During the 

pendency of the lis DDA allotted the plot in question in favour of the 

defendant by executing a lease deed putting a condition that the plot in 

question will remain non-transferable for a period of ten years – Decree 

for specific performance of “receipt + agreement” cannot be passed. 

279 



JUDGMENT 

M.Y. EQBAL, J. - (January 21, 2016) - The question that needs 

consideration in the instant appeal is as to whether the so called agreement to 

sell dated 6.1.1995, which is extracted hereinbelow, is enforceable in law for 

passing a decree for specific performance of contract. The said agreement reads 

as under :- 

” RECEIPT + AGREEMENT DATED 6.1.1995 

Received a sum of amount Rs.2,30,000/-(Two Lac Thirty 

Thousand) from Karan Singh S/o Sh. Basti Ram R/o Village and PO 

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Mahipal Pur New Delhi-110 037 on sixth January, 1995 against our DDA 

alternative plot F.No.32(5)113/87/L&B/Alt./2511 dated 11.8.1989 in the 

name of Sh. Jaishi S/o Sh. Ram Saran R/o V&PO Mahipalpur New Delhi. 

The total area of the above said plot is 400 Sq.Yds. The total premium 

settled for the above said plot is Rs.4,60,000/- (Four Lacs Sixty 

Thousand) will be given at the time of receive the lease after execution 

at the Registrar Office. No payment will be given in between.” 

Sd/- 

Jaisi Ram 

In the presence of 

J.N. Sehrawat 

S/o Ram Saran 

Village Mahipal Pur 

V& PO Mahipal Pur 

New Delhi-110037. 

2. The trial court after recording the evidence decreed the suit of 

plaintiff-respondent for specific performance and the High Court by the 

impugned judgment dismissed the appeal filed by the appellant and affirmed 

the decree passed by the Trial Court. 

3. We have heard learned counsel appearing for the parties. 

4. The plaintiff’s case in the plaint is that a decision was taken by the 

Delhi Development Authority for allotment of a plot of land measuring 400 

Sq.yds. in favour of the defendant-respondent. It was pleaded that in the year 

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1995 the defendant had desired to sell his right in the said recommendation 

letter which was to be allotted by the DDA in favour of the defendant. It was 

further pleaded that the defendant agreed to sell his right in the aforesaid 

recommendation letter and the plot to be allotted at a price of Rs.4,60,000/-. 

For better appreciation para 6 of the plaint is extracted hereinbelow :- 

“6. That the negotiations in between the parties had taken 

place and the plaintiff had agreed to purchase the said rights of the 

defendant in the said recommendation letter and the plot to be allotted 

thereto. The dealings were finalized and a Receipt-cum-Agreement (for 

short Agreement) was also executed in between the parties on January 

6, 1995. 

It is stated that the defendant had agreed to sell his rights in the 

aforementioned recommendation letter and the plot to be allotted 

thereunder to the plaintiff for the sale consideration of Rs.4,60,000/- 

(Rupees Four lakhs and Sixty thousand only). A sum of Rs.2,30,000/- 

(Rupees Two Lakhs and Thirty Thousand only) was also paid by the 

plaintiff to the defendant on January 6, 1995 itself. Vide the said 

agreement dated January 6, 1995, the defendant had acknowledged 

receipt of the sum of Rs.2,30,000/- (Rupees Two Lakhs Thirty Thousand 

only) from the plaintiff. It was further agreed that the balance amount 

of Rs.2,30,000/- (Rupees Two Lakhs Thirty Thousand only) would be 

paid by the plaintiff to the defendant when the defendant hands over 

the original lease deed duly executed by the Delhi Development 

Authority in favour of the defendant.” 

281 


5. Curiously enough although the total sale consideration fixed was Rs. 

4,60,000/- but the suit was valued at Rs.6,77,262.75p. on the basis of the value 

fixed by the DDA in respect of the plot in question. 

6. During the pendency of the suit in the trial court the original 

defendant who was an old person died and his legal representative was 

substituted. The original defendant as also the legal representative contested


the suit denying and disputing the alleged receipt-cum-agreement and stated 

that no decree for specific performance can be passed. The trial court held that 

the receipt-cum-agreement is a legal and valid agreement to sell and shall be 

enforced by passing a decree for specific performance. The High Court on the 

basis of evidence adduced by the parties affirmed the finding recorded by the 

trial court. 

7. Prima facie, we are of the view that both the trial court and the High 

Court have completely failed to consider the provisions of Specific Relief Act and 

the principles laid down by this Court in catena of decisions as to the 

requirement of law for passing a decree for specific performance. 

8. It is well settled that the jurisdiction to order specific performance of 

contract is based on the existence of a valid and enforceable contract. Where a 

valid and enforceable contract has not been made, the Court will not make a 

contract for them. Specific performance will not be ordered if the contract itself 

suffers from some defect which makes the contract invalid or unenforceable. 

282 


The discretion of the Court will not be there even though the contract is 

otherwise valid and enforceable. 

9. This Court in Mayawanti v. Kaushalya Devi (1990) 3 SCC 1 held thus:- 

“8. In a case of specific performance it is settled law, and indeed 

it cannot be doubted, that the jurisdiction to order specific performance 

of a contract is based on the existence of a valid and enforceable 

contract. The Law of Contract is based on the ideal of freedom of 

contract and it provides the limiting principles within which the parties 

are free to make their own contracts. Where a valid and enforceable 

contract has not been made, the court will not make a contract for 

them. Specific performance will not be ordered if the contract itself 

suffers from some defect which makes the contract invalid or 

unenforceable. The discretion of the court will be there even though the 

contract is otherwise valid and enforceable and it can pass a decree of 

specific performance even before there has been any breach of the 

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contract. It is, therefore, necessary first to see whether there has been a 

valid and enforceable contract and then to see the nature and 

obligation arising out of it. The contract being the foundation of the 

obligation the order of specific performance is to enforce that 

obligation.” 

10. Exercise of discretionary power under Section 20 of the Specific 

Relief Act for granting a decree, this Court in the case of Parakunnan Veetill 

Joseph’s Son Mathew v. Nedumbara Kuruivila’s Son and others, AIR 1987 SC 

2328 observed:- 

“14. Section 20 of the Specific Relief Act, 1963 preserves judicial 

discretion of courts as to decreeing specific performance. The court 

should meticulously consider all facts and circumstances of the case. 

The court is not bound to grant specific performance merely because it 

is lawful to do so. The motive behind the litigation should also enter into 

the judicial verdict. The court should take care to see that it is not used 

as an instrument of oppression to have an unfair advantage to the 

plaintiff. The High Court has failed to consider the motive with which 

Varghese instituted the suit. It was instituted because Kuruvila could not 

get the estate and Mathew was not prepared to part with it. The sheet 

anchor of the suit by Varghese is the agreement for sale Exhibit A-1. 

Since Chettiar had waived his rights thereunder, Varghese as an 

assignee could not get a better right to enforce that agreement. He is, 

therefore, not entitled to a decree for specific performance.” 

283 


11. In the instant case both the Trial Court and the High Court have 

completely overlooked and failed to appreciate the following facts:- 

(a) The receipt + agreement dated 6.1.1995 is a document by 

which the defendant alleged to have received a sum of Rs.2,30,000/- 

against the alternative plot in question which the DDA recommended to 

give to the defendant. The said plot will in turn will be given by the 

defendant to the plaintiff after a lease was executed in favour of the


defendant by the DDA; 

(b) The total premium amount settled by the said agreement in 

respect of the plot was Rs.4,60,000/- whereas the defendant deposited 

a sum of Rs.8,13,389/- with the DDA for the allotment of the said plot; 

(c) The plaintiff pleaded in his plaint that the defendant had 

agreed to sell his rights in the recommendation letter and the plot to be 

allotted thereunder to the plaintiff for a consideration of Rs.4,60,000/-; 

(d) Although the right to get the plot was agreed to be sold to 

the plaintiff by the defendant for Rs.4,60,000/- but the suit was valued 

at Rs. 6,77,262.75p. being the rate fixed by the DDA. 

12. On the basis of these admitted facts the Trial Court erroneously held 

that the receipt-cum-agreement is an enforceable contract and on that finding 

decreed the suit which was affirmed by the High Court. 

13. It is interesting to note that the High Court has noticed the fact 

mentioned in para 24 of trial court judgment that during the pendency of the lis 

284 


DDA allotted the plot in question in favour of the deceased father of the 

defendant (original plaintiff) by executing a lease deed putting a condition that 

the plot in question will remain non-transferable for a period of ten years. Para 

24 of the trial court judgment is quoted hereinbelow:- 

“It is stated on oath by Umed Singh (DW1) that the DDA allotted plot in 

dispute to his deceased father on certain terms and conditions, which 

were embodied in the lease deed. One of such conditions was that suit 

will remain nontransferable for a period of ten years.” 

14. In spite of the aforesaid fact noticed by the High Court, that the land 

so allotted to the defendant- is not transferable for a period of 10 years, the 

High Court failed to hold that a decree for specific performance cannot be 

passed. 

15. We are sorry to hold that both the Trial Court and the High Court 

have completely misconstrued the facts of the case and misunderstood the law 

laid down by this Court in the matter of exercising discretionary power for 

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granting a decree for specific performance. 

16. After giving our anxious consideration to the matter, we are of the 

view that the impugned order passed by the trial court and affirmed by the High 

Court cannot be sustained in law inasmuch as no decree for specific 

performance can be passed on the basis of the alleged receipt-cum-agreement. 

We therefore, allow this appeal and set aside the judgments passed by the Trial 

Court and the High Court. 

17. Consequently, we direct the appellant to refund a sum of Rs.4,30,000/- 

(Rupees Four Lakhs Thirty Thousand) which was paid by the respondents to the 

appellant together with interest @ 6% per annum from the date of such receipt 

within two months from today. Any amount deposited by the respondents in 

the High Court shall be withdrawn by them. 

285 





Present: Justice Anil R. Dave and Justice Adarsh Kumar Goel, JJ. 

K. MALLESH – Appellant, 

versus 

K. NARENDER and Ors. – Respondent. 

CIVIL APPEAL NOS.6841-6842 OF 2008 

Admissibility of documents at interlocutory stage, during the pendency 

of the suit - Admissibility, reliability and registrability of the documents 

shall be considered independently only at the time of hearing of the 

trial and not prior thereto - High Court should not have interfered at the 

stage when the trial was still in progress - Set aside the impugned order 

passed by the High Court without going into the merits of the case. 

JUDGMENT 

286 


Anil R. Dave, J. – (15th October, 2015) - Upon hearing the learned 

counsel for the parties and upon perusal of the impugned order, we find that 

the said order passed at an interlocutory stage, during the pendency of the suit. 

The question is with regard to the admissibility of two documents. 

2. In our opinion the High Court should not have interfered at the stage 

when the trial was still in progress. Therefore, we set aside the impugned order 

passed by the High Court without going into the merits of the case. We say that 

the admissibility, reliability and registrability of the documents shall be 

considered independently only at the time of hearing of the trial and not prior 

thereto. All questions with regard to the aforesaid issues shall remain open. 

3. The appeals are disposed of as allowed. 

4. No order as to costs. 

--ss-- 

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Present : Justice Anil R. Dave and Justice Adarsh Kumar Goel. 

KULDEEP SINGH – Appellant 

versus 

PANNA LAL & Anr. – Respondent 

Civil Appeal No. 9178 of 2015 arising out of S.L.P. (Civil) No. 18507 of 2015 

Workmen's Compensation Act Section 29 - Employer had agreed to pay 

a sum of Rs.1,50,000/- by way of compensation - But the said 

settlement had not been registered, as required under the provisions of 

Section 29 of the Workmen's Compensation Act - As the settlement had 

not been registered, the said settlement could not have been looked 

into - Order of the Commissioner whereby the employer was directed 

to pay a sum of Rs.1,31,971 plus interest, upheld. 

JUDGMENT 

287 


Anil R. Dave, J. –( 30th October, 2015) – Leave granted. 

2. The appellant before this court is an emplyee who had made a claim 

under Workmen's Compensation Act against the respondent-employer, as he 

had suffered injury in the course of his employment. 

3. It was a case of the respondent-employer that the employer had 

agreed to pay a sum of Rs.1,50,000/- by way of compensation. But the said 

settlement had not been registered, as required under the provisions of Section 

29 of the Workmen's Compensation Act. In view of the above fact when the 

employee had approached the Commissioner, the Commissioner had not 

considered the settlement which had not been registered. 

4. After considering the evidence and after looking at the facts of the 

case, the Commissioner ultimately directed that a sum of Rs.1,31,971/- should 

be awarded by way of compensation to the appellant-employee, as mentioned


in the order passed by the Commissioner. 

5. Being aggrieved by the aforesaid order passed by the Commissioner, 

the respondent-employer approached the High Court and the High Court, by 

virtue of the impugned judgement set aside the order of the Commissioner in 

view of the fact that the parties had already settled and the respondentemployer 

had agreed to pay a sum of Rs.1,50,000/- by way of settlement 

between the parties. 

288 


6. In the process of delivering the judgement, the High Court lost sight 

of the provisions of Section 29 of the Act, whereby the settlement which had 

been arrived at between the parties ought to have been registered. As the 

settlement had not been registered, in our opinion the said settlement could 

not have been looked into by the High Court or by any other authority. 

7. For the aforesaid reason, we set aside the order of the High Court and 

restore the order of the Commissioner whereby the respondent-employer was 

directed to pay a sum of Rs.1,31,971 plus interest and other amount. 

8. Accordingly, the appeal is disposed of as allowed. No order as to 

costs. 

-- ss-- 

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Pesent: Justice M.Y.Eqbal and Justice Arun Mishra, JJ. 

TEKAN ALIAS TEKRAM - Appellant, 

VERSUS 

STATE OF MADHYA PRADESH (NOW CHHATTISGARH) – Respondent. 

Criminal Appeal No. 884 OF 2015 

(i) Victim Compensation Scheme - Cr.P.C. Section 357-A - 

Whether the prosecutrix is entitled to victim compensation and, if so, to 

what extent? - Prosecutrix, blind and illiterate girl, was subjected to 

sexual intercourse on the promise of marriage - Victim being physically 

disadvantaged, she was already in a socially disadvantaged position 

which was exploited maliciously by the accused for his own ill 

intentions to commit fraud upon her and rape her in the garb of 

promised marriage which has put the victim in a doubly disadvantaged 

situation and after the waiting of many years it has worsened - Victim, 

who has already suffered a lot since the day of the crime till now, needs 

a special rehabilitation scheme and being in a vulnerable position and 

who is not being taken care of by anyone and having no family to 

support her either emotionally or economically, we are not ordering the 

respondent-State to give her any lump sum amount as compensation 

for rehabilitation as she is not in a position to keep and manage the 

lump sum amount - State to pay Rs.8,000/- per month till her life time, 

treating the same to be an interest fetched on a fixed deposit of 

Rs.10,00,000/- . [Para 15, 18] 

289 


(ii) Victim Compensation Scheme - Cr.P.C. Section 357-A - All the


States and Union Territories shall make all endeavour to formulate a 

uniform scheme for providing victim compensation in respect of 

rape/sexual exploitation with the physically handicapped women as 

required under the law taking into consideration the scheme framed by 

the State of Goa for rape victim compensation which provides that in 

case of injury causing, severe mental agony to women and child (eg. 

Rape cases etc.) Rs. 10,00,000/- (Ten Lakh) will be granted. 

JUDGMENT 

M.Y. Eqbal, J. - (February 11, 2016) - Aggrieved by the judgment and 

order dated 16th January, 2014 passed by the High Court of Chhattisgarh in 

Criminal Appeal No. 2554 of 1997 affirming the judgment dated 29.11.1997 

passed by the Sixth Additional Sessions Judge, Durg, in Sessions Trial No. 342 of 

1996, whereby the appellant has been convicted under Section 376 IPC and 

290 


sentenced to 7 years R.I., the accused-appellant has preferred this appeal 

challenging the conviction and sentence. 

2. This is a case where the prosecutrix, who is blind and an illiterate girl, 

was subjected to sexual intercourse on the promise of marriage. 

3. The case of the prosecution in brief is that the prosecutrix was 

residing with her father at Village Nandini Khundini. Her mother had left and 

married somewhere else and, thereafter, the prosecutrix was living with her 

three brothers Nand Kumar, Iswari and Baldau. Along with brother of 

prosecutrix Iswari, the accused Tikendra was also studying. Because of the 

friendship, the accused used to visit the house of the prosecutrix and was in 

conversation with her. It is the case of the prosecution that when the 

prosecutrix used to remain alone in her house, the accused used to visit her and 

expressed her that he is in love with her. Further, the case of the prosecution is 

that about one year before the incident, the accused came to the house of the 

prosecutrix when she was alone. Thereafter, the accused had told her that he is 

in love with her and will marry her and wanted to commit sexual intercourse 

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with her. The prosecutrix tried to avoid it since she was a blind girl, but the 

prosecutrix was told by the accused that he will marry her and will give her all 

support and, therefore, she submitted herself to the accused. Thereafter, the 

accused committed sexual intercourse with her. It is the case of the prosecution 

that whenever the prosecutrix remained alone in the house, the accused used 

to come and commit sexual intercourse with her. By such course of action, 

when the prosecutrix became pregnant, the prosecutrix told the accused to 

marry her. At that point of time, the accused stopped visiting the house of the 

prosecutrix. Subsequent to it, the incident was disclosed to the father of the 

prosecutrix who called the meeting of the Panchayat in the Village. In the 

Panchayat, the accused was also called. It is the case of the prosecution that in 

the Panchayat, the accused admitted the fact that he had committed sexual 

intercourse with the prosecutrix but refused to marry her and left the 

Panchayat. It was the specific case of prosecution that though the prosecutrix 

was blind, she could recognize the accused person by his voice and by touch. 

4. It reveals that the matter was investigated by the police and the 

prosecutrix was also subjected to medical examination and finally a chargesheet 

was filed under Section 376 IPC. Number of witnesses was examined from 

the prosecution side including the Doctor who submitted the medical 

examination report (Ex.P2 and P3) and the radiologist who obtained X-Ray of 

the prosecutrix and gave his report (Ex. P4) confirming the age of the 

prosecutrix as approximately 18 years. The prosecutrix was also examined as 

PW-1, who narrated the entire incident and the manner in which she was 

subjected to sexual abuse. In her evidence, she has categorically stated that she 

is blind but she could recognize a person by his voice. She has also stated that 

the accused-appellant had told her that he will keep her. She has further stated 

that the accused committed rape on her and, thereafter, whenever she used to 

stay alone in the house the accused-appellant used to come and committed 

sexual intercourse with her on the pretext of marriage. It has further come in 

evidence that when the prosecutrix became pregnant the accused stopped 

visiting her house. She has further stated that after the incident was disclosed 

291 



by her the accused was called before the Panchayat. 

5. The trial court after appreciating the entire evidence including the 

evidence of the Doctor and the persons who attended the Panchayat and the 

medical reports, recorded a finding and held that the prosecution was able to 

prove the guilt of the accused-appellant. Accordingly, the accused was convicted 

under Section 376 IPC and was sentenced to 7 years rigorous imprisonment. 

6. As against the judgment of the trial court, the appellant filed an 

appeal before the High Court being Criminal Appeal No.2554 of 1997. The High 

Court examined the facts and reappreciated the entire evidence adduced from 

the side of the prosecution and recorded an independent finding and affirmed 

the judgment of conviction passed by the trial court. 

7. We have heard learned counsel for the appellant and the respondent 

State. We have also meticulously examined the finding recorded by the two 

courts on the basis of the evidence brought on record by the prosecution side. 

After giving our anxious consideration to the matter we are of the definite view 

292 


that the prosecution has been able to prove the guilt of the appellant beyond all 

reasonable doubt. We, therefore, do not find any infirmity or illegality in the 

judgment passed by the two courts. Hence, the judgment of conviction must 

sustain in law. 

8. Now the question that arises for consideration is as to whether in the 

facts and circumstances of the case the prosecutrix is entitled to victim 

compensation and, if so, to what extent? During the course of hearing, this 

Court by order dated 01.07.2015 directed the learned counsel appearing for the 

respondent-State to file a copy of the Victim Compensation Scheme applicable 

in the State of Chhattisgarh and to inquire about the financial status of the 

victim, her brothers and also of the accused-appellant. Pursuant to the aforesaid 

order, learned counsel for the State has filed an additional affidavit giving 

details of the inquiries made to ascertain the financial status of the victim and 

the accused and also has placed on record a copy of Notification/ Compensation 

Scheme. 

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9. From the inquiry, it reveals that the victim (now aged about 37 years) 

lives alone in Village Nandini Kundini, District- Durg, Chhattisgarh. She is 

unmarried and lives in a kuccha house. She has two brothers who lives 

separately from her. One of the brothers Ishwari Sahu lives in a different village 

Dhour (distance 12 kms from Nandini Kundini). Another brother Baldau Sahu 

lives is district Bhila (distance 22 kms from Nandini Kundini) and works as a 

daily-labourer. She receives a pension of Rs.300/- per month from the State 

being a person with disability. She is also a BPL card holder which entitles her 

35kg rice per month at the rate of Rs.1/- per kg. and free salt. The financial 

status of victim’s brothers is also not good. 

10. It further reveals from the inquiry regarding financial status of the 

accused that the accused lives in the same village i.e. Nandini Kundini where the 

victim lives. He is married and has four children. Mother of the accused also 

lives with him. He has inherited about 2 acres of land being ancestral property 

which is also the source of his livelihood. Further, the wife of the accused is a 

blue card holder which entitles the family to receive 35 kg. rice per month at the 

rate of Rs.2/- per kg. The accused lives in a pucca house. 

11. Learned counsel for the State submitted that the State of 

293 


Chhattisgarh has notified Victim Compensation Scheme under Section 357-A, 

Cr.P.C for providing fund for the purpose of compensation to the victim or his 

dependents who has have suffered loss or injury as a result of crime and who 

require rehabilitation. Relevant part of the Schedule appended to the aforesaid 

notification is extracted herein for easy reference. 

SCHEDULE 

No . 

S. 

Details of Loss or Injury 

Compensation 

Maximum Limit of 

4. Rape of Minor 50,000/- 

5. Rape 25,000/- 

6. Rehabilitation 20,000/-


12. Before dealing with the present matter it is pertinent to mention 

briefly the amount payable to the rape victim and for rehabilitation under 

Victim Compensation Schemes notified by the other State Governments and 

Union Territories under Section 357A of the Cr.P.C., 1973. Sr.no . State/ UT 

Details of Loss or Injury Maximum Limit of Compensation(Rs.) 

1. Arunachal Pradesh Rape 50,000/- Rehabilitation 20,000/- 3. Assam 

Rape 75,000/- Rape of Minor/Gang Rape 1,00,000/- 5. Bihar Rape 50,000/- 6. 

Delhi Rape 3,00,000/- Rehabilitation 20,000/- 8. Goa In case of injury causing, 

294 


severe mental agony to women and child (eg. Rape cases etc.) 10,00,000/- (Ten 

Lakh) 9. Gujarat Rape 1,00,000/- Rehabilitation 50,000/- 11. Haryana Rape 

3,00,000/- Medical expenses on account of injury 15,000/- 13. Himachal 

Pradesh Rape 50,000/- 14. Jammu & Kashmir Rape of minor or rape in police 

custody 1,00,000/- Rape 50,000/- 16. Karnataka Rape of minor 3,00,000/- Rape 

other than minor 1,50,000/- 18. Kerala (50 % extra if the victim is 14 years or 

less) Rape 3,00,000/- Rehabilitation 1,00,000/- 20. Maharashtra No amount for 

the offence of rape Nil 21. Manipur Rape of Minor 30,000/- Rape 20,000/- 

Rehabilitation 20,000/- 24. Nagaland Rape of Minor 1,00,000/- Rape 50,000/- 

Rehabilitation 50,000/- 27. Odisha Loss or injury causing severe mental agony to 

women and child victims in case like Human Trafficking 10,000/- 28. Rajasthan 

Rape of Minor 3,00,000/- Rape 2,00,000/- Rehabilitation 1,00,000/- 31. Sikkim 

Rape 50,000/- Rehabilitation 30,000/- 33. Tripura Rape 50,000/- of which 

Rs.5,000/- shall be paid after preliminary verification of the complaint and the 

balance amount shall be sanctioned on the filling of charge sheet. 34. Uttar 

Pradesh Rape 2,00,000/- 35. Uttarakhand Rape of Minor 2,50,000/- Rape 

2,00,000/- Rehabilitation in case of rape victim 1,00,000/- 38. West Bengal Rape 

of Minor 30,000/- Rape 20,000/- Rehabilitation 20,000/- 41. UT of Chandigarh 

Rape 3,00,000/- Rehabilitation 20,000/- 43. UT of Dadar and Nagar Haveli Rape 

3,00,000/- Rehabilitation 20,000/- 45. UT of Daman Rape 3,00,000/- 

Rehabilitation 20,000/- 47. UT of Puducherry Rape 3,00,000/- Rehabilitation 

20,000/- 

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13. Perusal of the aforesaid victim compensation schemes of different 

States and the Union Territories, it is clear that no uniform practice is being 

followed in providing compensation to the rape victim for the offence and for 

her rehabilitation. This practice of giving different amount ranging from 

Rs.20,000/- to Rs.10,00,000/- as compensation for the offence of rape under 

section 357A needs to be introspected by all the States and the Union 

Territories. They should consider and formulate a uniform scheme specially for 

the rape victims in the light of the scheme framed in the State of Goa which has 

decided to give compensation up to Rs.10,00,000/-. 

14. While going through different schemes for relief and rehabilitation 

of victims of rape, we have also come across one Scheme made by the National 

Commission of Women (NCW) on the direction of this court in Delhi Domestic 

Working Women’s Forum v. Union of India and Ors. ***[Writ Petition (Crl) No. 

362/93], whereby this Court inter alia had directed the National Commission for 

Women to evolve a “scheme” so as to wipe out the tears of unfortunate victims 

of rape. This scheme has been revised by the NCW on 15th April 2010. The 

application under this scheme will be in addition to any application that may be 

made under Section 357, 357A of the Code of Criminal Procedure as provided in 

paragraph 22 of the Scheme. Under this scheme maximum of Rs.3,00,000/- 

(Three lakhs) can be given to the victim of the rape for relief and rehabilitation 

in special cases like the present case where the offence is against an 

handicapped woman who required specialized treatment and care. 

295 


15. Coming to the present case in hand, victim being physically 

disadvantaged, she was already in a socially disadvantaged position which was 

exploited maliciously by the accused for his own ill intentions to commit fraud 

upon her and rape her in the garb of promised marriage which has put the 

victim in a doubly disadvantaged situation and after the waiting of many years it 

has worsened. It would not be possible for the victim to approach the National 

Commission for Women and follow up for relief and rehabilitation. Accordingly 

the victim, who has already suffered a lot since the day of the crime till now, 

needs a special rehabilitation scheme.


16. Mr. Atul Jha, learned counsel appearing for the Respondent-State, 

on instructions received from the Superintendent of Police, District Durg, 

submitted that for the rehabilitation of the victim the Home Secretary, 

Department of Home has taken decision to keep the victim in Nari Niketan, to 

provide her food, clothes and shelter and the monthly pension of Rs.300/- 

throughout her life. For the said rehabilitation programme, the State has to 

incur about Rs.8,000/- to Rs.10,000/- per month. 

17. Indisputably, no amount of money can restore the dignity and 

confidence that the accused took away from the victim. No amount of money 

can erase the trauma and grief the victim suffers. This aid can be crucial with 

aftermath of crime. 

18. The victim, being in a vulnerable position and who is not being taken 

care of by anyone and having no family to support her either emotionally or 

economically, we are not ordering the respondent-State to give her any lump 

sum amount as compensation for rehabilitation as she is not in a position to 

296 


keep and manage the lump sum amount. From the records, it is evident that no 

one is taking care of her and she is living alone in her Village. Accordingly, we in 

the special facts of this case are directing the respondent-State to pay 

Rs.8,000/- per month till her life time, treating the same to be an interest 

fetched on a fixed deposit of Rs.10,00,000/-. By this, the State will not be 

required to pay any lump sum amount to the victim and this will also be in the 

interest of the victim. 

19. In the result, we dismiss the appeal having no merit and issue the 

following directions:- 

1) All the States and Union Territories shall make all endeavour to 

formulate a uniform scheme for providing victim compensation in 

respect of rape/sexual exploitation with the physically handicapped 

women as required under the law taking into consideration the scheme 

framed by the State of Goa for rape victim compensation; 

2) So far as this case is concerned, the respondent-State shall pay a sum 

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of Rs.8,000/- per month as victim compensation to the victim who is 

physically handicapped, i.e. blind, till her life time. 

297 





Present: Justice Kurian Joseph and Justice Arun Mishra, JJ. 

MUKUND DEWANGAN – Appellant, 

Versus 

ORIENTAL INSURANCE CO. LTD. ETC. – Respondents. 

Civil Appeal No.5826 Of 2011 [With SLP [C] Nos.32828, 32833 and 32835/2010, 

8709-8710 and 8712-8713/2014, 20072, 3300 and 3302/2015, 887-890/2013, 

16082/2012, 28455-28456/2013, CA No. 6379/2013, SLP (C) Nos.13008, 15759- 

15760 and 14333-14334/2014, 6429/2015, 36364- 36365/2014, 15924/2015, CA 

No.9990/14, SLP (C) Nos. 8704- 8706/2014, CA Nos. 4068-4069/2012, SLP (C) 

No. 32827/2010 and CA No.8992/2012] 

Motor Vehicle Act, 1988 - Whether for the drivers having licence 

298 


to drive light motor vehicles there is a necessity of obtaining 

endorsement to drive the transport vehicle when the transport vehicle 

is of class of light motor vehicle - Following questions are required to be 

referred to larger Bench : 

1. What is the meaning to be given to the definition of “light 

motor vehicle” as defined in section 2(21) of the MV Act ? 

Whether transport vehicles are excluded from it ? 

2. Whether ‘transport vehicle’ and ‘omnibus’ the “gross vehicle 

weight” of either of which does not exceed 7500 kgs. would be a 

“light motor vehicle” and also motor-car or tractor or a road 

roller, “unladen weight” of which does not exceed 7500 kgs. and 

holder of licence to drive class of “light motor vehicle” as 

provided in section 10(2)(d) would be competent to drive a 

transport vehicle or omnibus, the “gross vehicle weight” of 

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which does not exceed 7500 kgs. or a motor-car or tractor or 

road roller, the “unladen weight” of which does not exceed 7500 

kgs. ? 

3. What is the effect of the amendment made by virtue of Act 

No.54 of 1994 w.e.f. 14.11.1994 while substituting clauses (e) to 

(h) of section 10(2) which contained “medium goods vehicle”, 

“medium passenger motor vehicle”, “heavy goods vehicle” and 

“heavy passenger motor vehicle” by “transport vehicle”? 

Whether insertion of expression ‘transport vehicle’ under 

section 10(2)(e) is related to said substituted classes only or it 

also excluded transport vehicle of light motor vehicle class from 

purview of Sections 10(2)(d) and 2(41) of the Act? 

4. What is the effect of amendment of the Form 4 as to 

operation of the provisions contained in section 10 as amended 

in the year 1994 and whether procedure to obtain driving licence 

for transport vehicle of class of “Light Motor Vehicle” has been 

changed ? 

299 


ORDER 

Arun Mishra, J. – (February 11, 2016.) - The question raised is whether 

for the drivers having licence to drive light motor vehicles there is a necessity of 

obtaining endorsement to drive the transport vehicle when the transport 

vehicle is of class of light motor vehicle. 

2. We have heard learned counsel for the parties at length. For 

consideration of aforesaid question, it is necessary to refer to various provisions 

and decisions. 

3. Driving licence has been defined in section 2(10) of the Act of 1988. 

The provision is extracted hereinbelow : 

“2(10) “driving licence" means the licence issued by a competent 

authority under Chapter II authorising the person specified therein to


drive, otherwise than as a learner, a motor vehicle or a motor vehicle of 

any specified class or description.” 

Gross vehicle weight has been defined in section 2(15) thus : 

“2(15) “gross vehicle weight" means in respect of any vehicle the total 

weight of the vehicle and load certified and registered by the registering 

authority as permissible for that vehicle;” 

Heavy goods vehicle has been defined in section 2(16) to mean: 

“2(16) “heavy goods vehicle" means any goods carriage the gross 

vehicle weight of which, or a tractor or a road-roller the unladen weight 

of either of which, exceeds 12,000 kilograms;” 

Heavy passenger motor vehicle has been defined in section 2(17) thus : 

“2(17) “heavy passenger motor vehicle" means any public service 

vehicle or private service vehicle or educational institution bus or 

omnibus the gross vehicle weight of any of which; or a motor-car the 

unladen weight of which, exceeds 12,000 kilograms;” 

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Light motor vehicle has been defined in section 2(21) of the Act thus : 

“2(21) “light motor vehicle" means a transport vehicle or omnibus the 

gross vehicle weight of either of which or a motorcar or tractor or roadroller 

the unladen weight of any of which, does not exceed 7,500 

kilograms;” 

Medium goods vehicle has been defined in section 2(23) to mean : 

“2(23) “medium goods vehicle" means any goods carriage other than a 

light motor vehicle or a heavy goods vehicle;” 

Medium passenger motor vehicle is defined under section 2(24) thus : 

“2(24) “medium passenger motor vehicle" means any public service 

vehicle or private service vehicle, or educational institution bus other 

than a motor-cycle, invalid carriage, light motor vehicle or heavy 

passenger motor vehicle;” 

Motor car has been defined in section 2(26) of the Act of 1988 thus : 

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“2(26) “motor-car" means any motor vehicle other than a transport 

vehicle, omnibus, road-roller, tractor, motor-cycle or invalid carriage;” 

“Omnibus” has been defined in section 2(29) thus : 

“2(29) “omnibus" means any motor vehicle constructed or adapted to 

carry more than six persons excluding the driver;” 

“Tractor” has been defined in section 2(44) of the Act thus : 

“2(44) “tractor" means a motor vehicle which is not itself constructed to 

carry any load (other than equipment used for the purpose of 

propulsion); but excludes a road-roller;” 

“Transport vehicle has been defined in section 2(47) thus : 

“2(47) “transport vehicle" means a public service vehicle, a goods 

carriage, an educational institution bus or a private service vehicle;” 

“Unladen weight” has been defined in section 2(48) thus : 

“2(48) “unladen weight" means the weight of a vehicle or trailer 

including all equipments ordinarily used with the vehicle or trailer when 

working, but excluding the weight of a driver or attendant; and where 

alternative parts or bodies are used the unladen weight of the vehicle 

means the weight of the vehicle with the heaviest such alternative part 

or body;” 

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4. The provisions under section 2 define heavy goods vehicles, heavy 

passenger motor vehicle, medium goods vehicle, medium passenger motor 

vehicle and light motor vehicle separately. Section 2(21) deals with class of Light 

Motor Vehicle which includes a transport vehicle or omnibus, the gross vehicle 

weight of either of which does not exceed 7500 kgs. or a motor car or tractor or 

road roller, the unladen weight of any of which does not exceed 7500 kgs. The 

transport vehicle has been defined in section 2(47), omnibus has been defined 

in section 2(29). However, the transport vehicle or omnibus the gross vehicle 

weight of which does not exceed 7500 kgs., has been included in section 2(21) 

of the Act of 1988. The gross vehicle weight has been defined in section 2(15). In 

the case of Light Motor Vehicle, the total weight of the transport vehicle or


omnibus, the load certified by the Registering Authority should not exceed 7500 

kgs. and in case of motor car, tractor or road roller, it is necessary that unladen 

weight as defined in section 2(48) of the Act of 1988 should not exceed 7500 

kgs. 

5. To dilate further upon the issue, it is necessary to take note of other 

provisions of the Act. Public service vehicle, goods carriage, an educational 

institution bus and private service vehicle are included in transport vehicles. 

They are defined in Sections 2(35), 2(14), 2(11) and 2(33) respectively. The 

provisions are extracted hereunder:- 

“2(35) “public service vehicle" means any motor vehicle used or 

adapted to be used for the carriage of passengers for hire or reward, 

and includes a maxi-cab, a motor-cab, contract carriage, and stage 

carriage;” 

“2(14) “goods carriage" means any motor vehicle constructed or 

adapted for use solely for the carriage of goods, or any motor vehicle 

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not so constructed or adapted when used for the carriage of goods;” “ 

2(11) “educational institution bus" means an omnibus, which is owned 

by a college, school or other educational institution and used solely for 

the purpose of transporting students or staff of the educational 

institution in connection with any of its activities;” 

“2(33) “private service vehicle" means a motor vehicle constructed or 

adapted to carry more than six persons excluding the driver and 

ordinarily used by or on behalf of the owner of such vehicle for the 

purpose of carrying persons for, or in connection with, his trade or 

business otherwise than for hire or reward but does not include a motor 

vehicle used for public purposes;” 

6. Section 3 of the Act of 1988 deals with the necessity for driving 

licence. Same is extracted below : 

“3. Necessity for driving licence.-- (1) No person shall drive a motor 

vehicle in any public place unless he holds an effective driving licence 

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issued to him authorising him to drive the vehicle; and no person shall 

so drive a transport vehicle [other than a motor cab or motor cycle 

hired for his own use or rented under any scheme made under subsection 

(2) of section 75] unless his driving licence specifically entitles 

him so to do. 

(2) The conditions subject to which sub-section (1) shall not apply to a 

person receiving instructions in driving a motor vehicle shall be such as 

may be prescribed by the Central Government.” 

7. Section 9 deals with grant of driving licence which reads as under : 

“9. Grant of driving licence.-- (1) Any person who is not for the time 

being disqualified for holding or obtaining a driving licence may apply to 

the licensing authority having jurisdiction in the area— 

(i) in which he ordinarily resides or carries on business, or 

(ii) in which the school or establishment referred to in section 12 from 

where he is receiving or has received instruction in driving a motor 

vehicle is situated, for the issue to him of a driving licence. 

(2) Every application under sub-section (1) shall be in such form and 

shall be accompanied by such fee and such documents as may be 

prescribed by the Central Government. 

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(3) If the applicant passes such test as may be prescribed by the Central 

Government, he shall be issued the driving licence: 

Provided that no such test shall be necessary where the applicant 

produces proof to show that – 

(a) (i) the applicant has previously held a driving licence and that the 

period between the date of expiry of that licence and the date of such 

application does not exceed five years; or 

(ii) the applicant holds or has previously held a driving licence to drive 

such class of vehicle issued under section 18; or 

(iii) the applicant holds a driving licence to drive such class of vehicle 

issued by a competent authority of any country outside India, subject to


the condition that the applicant complies with the provisions of sub – 

section (3) of section 8, 

(b) the applicant is not suffering from any disease or disability which is 

likely to cause the driving by him to be a source of danger to the public; 

and the licensing authority may, for that purpose, require the applicant 

to produce a medical certificate in the same form and in the same 

manner as is referred to in sub-section (3) of section 8. 

Provided further that where the application is for a driving licence to 

drive a motor vehicle (not being a transport vehicle), the licensing 

authority may exempt the applicant from the test of competence to 

drive prescribed under this subsection, if the applicant possesses a 

driving certificate issued by an automobile association recognised in this 

behalf by the State Government. 

(4) Where the application is for a licence to drive a transport vehicle, no 

such authorisation shall be granted to any applicant unless he possesses 

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such minimum educational qualification as may be prescribed by the 

Central Government and a driving certificate issued by a school or 

establishment referred to in section 12. 

(5) Where the applicant does not pass the test, he may be permitted to 

reappear for the test after a period of seven days: 

Provided that where the applicant does not pass the test even after 

three appearances, he shall not be qualified to reappear for such test 

before the expiry of a period of sixty days from the date of last such 

test. 

(6) The test of competence to drive shall be carried out in a vehicle of 

the type to which the application refers: 

Provided that a person who passed a test in driving a motor cycle with 

gear shall be deemed also to have passed a test in driving a motor cycle 

without gear. 

(7) When any application has been duly made to the appropriate 

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licensing authority and the applicant has satisfied such authority of his 

competence to drive, the licensing authority shall issue the applicant a 

driving licence unless the applicant is for the time being disqualified for 

holding or obtaining a driving licence: 

Provided that a licensing authority may issue a driving licence to drive a 

motor cycle or a light motor vehicle notwithstanding that it is not the 

appropriate licensing authority, if the licensing authority is satisfied that 

there is good and sufficient reason for the applicant's inability to apply 

to the appropriate licensing authority: 

Provided further that the licensing authority shall not issue a new 

driving licence to the applicant, if he had previously held a driving 

licence, unless it is satisfied that there is good and sufficient reason for 

his inability to obtain a duplicate copy of his former licence. 

(8) If the licensing authority is satisfied, after giving the applicant an 

opportunity of being heard, that he— 

(a) is a habitual criminal or a habitual drunkard; or 

(b) is a habitual addict to any narcotic drug or psychotropic substance 

within the meaning of the Narcotic Drugs and Psychotropic Substances 

Act, 1985; (61 of 1985); or 

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(c) is a person whose licence to drive any motor vehicle has, at any time 

earlier, been revoked, it may, for reasons to be recorded in writing, 

make an order refusing to issue a driving licence to such person and any 

person aggrieved by an order made by a licensing authority under this 

sub-section may, within thirty days of the receipt of the order, appeal to 

the prescribed authority. 

(9) Any driving licence for driving a motor cycle in force immediately 

before the commencement of this Act shall, after such commencement, 

be deemed to be effective for driving a motor cycle with or without 

gear.” 

8. The application has to be made in such form as may be prescribed.


Section 10 deals with the form and contents of the licence to drive. Section 10 

before its amendment made in 1994 by Act 54 of 1994 provided as under : 

“10. Form and contents of licences to driver.-- (1) Every learner's licence 

and driving licence, except a driving licence issued under section 18, 

shall be in such form and shall contain such information as may be 


(2) A learner's licence or, as the case may be, driving licence shall also 

be expressed as entitling the holder to drive a motor vehicle of one or 

more of the following classes, namely:-- 

(a) motor cycle without gear; 

(b) motor cycle with gear; 

(c) invalid carriage; 

(d) light motor vehicle; 

(e) medium goods vehicle; 

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(f) medium passenger motor vehicle; 

(g) heavy goods vehicle; 

(h) heavy passenger motor vehicle;” 

(i) road-roller; 

(j) motor vehicle of a specified description. ” 

9. It is clear from the provisions of section 10(2) that the classes of 

vehicles have been separately provided. Light motor vehicle has been provided 

in section 10(2)(d). Transport vehicle had been inserted in 1994 in place of 

sections 10(2)(e) to 10(2)(h), in place of medium goods vehicle as provided in 

section 10(2)(e), medium passenger motor vehicle provided in section 10(2)(f), 

heavy goods vehicle in section 10(2)(g) and heavy passenger motor vehicle in 

section 10(2) (h). Thus it is apparent that transport vehicles were included under 

the Act of 1988 under the category of “light motor vehicle”, “heavy motor 

vehicle” etc. as per gross vehicle weight or unladen weight, as the case may be, 

is apparent from a bare reading of the aforesaid classification given in section 

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10(2) of the Act read with definition of light motor vehicle as defined in section 

2(21) of the Act. 

The provisions contained in section 10 of the Act had been amended 

vide Amendment Act 54 of 1994. The Statement of Objects and Reasons of the 

Amendment Act 54 of 1994 reads : 

“Amendment Act 54 of 1994 - Statement of Objects and 

Reasons. – The Motor Vehicles Act, 1988 (59 of 1988) consolidated and 

rationalised various laws regulating road transport. The Act came into 

force with effect from 1st July, 1989 replacing the Motor Vehicles Act, 

1939. 

2. After the coming into force of the Motor Vehicles Act, 1988, 

Government received a number of representations and suggestions 

from the state govt. transport operators and members of public 

regarding the inconvenience faced by them because of the operation of 

some of the provisions of the 1988 Act. A Review Committee was, 

therefore, constituted by the Government in March, 1990 to examine 

and review the 1988 Act. 

3. The recommendations of the Review Committee were 

forwarded to the State Governments for comments and they generally 

agree with these recommendations. The Government also considered a 

large number of representations received, after finalisation of the 

Report of the Review Committee, from the transport operators and 

public for making amendments in the Act. The draft of the proposals 

based on the recommendation of the Review Committee and 

representations from the public were placed before the Transport 

Development Council for seeking their views in the matter. The 

important suggestions made by the Transport Development Council 

relate to, or are on account of, - 

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(a) The introduction of newer type of vehicles and fast 

increasing number of both commercial and personal vehicles in the


country. 

(b) Providing adequate compensation to victims of road 

accidents without going into long drawn procedure; 

(c) Protecting consumers’ interest in Transport Sector; 

(d) Concern for road safety standards, transport of hazardous 

chemicals and pollution control; 

(e) Delegation of greater powers to State Transport Authorities 

and rationalising the role of public authorities in certain matters; 

(f) The simplification of procedures and policy liberalisation in 

the field of Road Transport; 

(g) Enhancing penalties for traffic offenders. 

4. Therefore, the proposed legislation has been prepared in the 

light of the above background. The Bill inter alia provides for – 

(a) modification and amplification of certain definitions of new 

308 


type of vehicles ; 

(b) simplification of procedure for grant of driving licences; 

(c) putting restrictions on the alteration of vehicles; 

(d) certain exemptions for vehicles running on nonpolluting 

fuels; 

(e) ceilings on individuals or company holdings removed to curb 

“benami” holdings; 

(f) states authorised to appoint one or more State Transport 

Appellate Tribunals; 

(g) punitive checks on the use of such components that do not 

conform to the prescribed standards by manufactures, and also stocking 

/ sale by the traders; 

(h) increase in the amount of compensation of the victims of hit 

and run cases; 

(i) removal of time limit for filling of application by road 

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accident victims for compensation; 

(j) punishment in case of certain offences is made stringent; 

(k) a new pre-determined formula for payment of compensation 

to road accident victims on the basis of age/income, which is more 

liberal and rational. 

5. The Law Commission in its 119th Report had recommended 

that every application for a claim be made to the Claims Tribunal having 

jurisdiction over the area in which the accident occurred or to the 

Claims Tribunal within the local limits of whose jurisdiction the claimant 

resides or carries on business or within the local limits of whose 

jurisdiction the defendant resides, at the option of the claimant. The bill 

also makes necessary provision to give effect to the said 

recommendation.” 

Section 10 has been amended vide Act 54/1994 to the following effect : 

“10. Form and contents of licences to drive.—(1) Every learner's licence 

and driving licence, except a driving licence issued under section 18, 

shall be in such form and shall contain such information as may be 


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(2) A learner's licence or, as the case may be, driving licence shall also 

be expressed as entitling the holder to drive a motor vehicle of one or 

more of the following classes, namely:-- 

(a) motor cycle without gear; 

(b) motor cycle with gear; 

(c) invalid carriage; 

(d) light motor vehicle; 

(e) transport vehicle; 

(i) road-roller; 

(j) motor vehicle of a specified description.” 

10. Form 4 which was in vogue till 28.3.2001 as prescribed under Rule


14 of the Central Motor Vehicles Rules, 1989 (hereinafter referred to as ‘the 

Rules of 1989’), is extracted hereunder : 

“FORM 4 

[See Rule 14] 

Form of Application for Licence to drive a Motor Vehicle 

To, 

[passport size Photograph] 

THE LICENSING AUTHORITY, 

…………………………………….. 

I apply for a licence to enable me to drive vehicles of the 

following description:- 

(a) Motor cycle without gear 

(b) Motor cycle with gear 

(c) Invalid Carriage 

(d) Light Motor Vehicle 

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(e) Medium Goods Vehicle 

(f) Medium Passenger Motor Vehicle 

(g) Heavy Goods Vehicle 

(h) Heavy Passenger Motor Vehicle 

(i) Road roller 

(j) Motor Vehicle of the following description. 

Particulars to be furnished by the Applicant 

1. Name ……………………………… 

2. Son/wife/daughter of ………………………………. 

3.Permanent address ……………………………… (Proof to be 

enclosed) 

4.Temporary address/ Official address (if any) …………. 

5. Date of birth ……………………………………. (Proof to be enclosed) 

6. Educational qualification ……………………….. 

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7. Identification mark (1)……………………… (2) ……………………… 

8. Optional/Blood Group -- RH factor………………… 

9. Have you previously held driving licence?…………… 

If so, give details. 

10. Particulars and date of every conviction which has been 

ordered to be endorsed on any licence held by the applicant….…………….. 

11. Have you been disqualified for obtaining a licence to drive? 

If so, for what reason?...……….. 

12. Have you been subjected to a driving test as to your fitness 

or ability to drive a vehicle in respect of which a licence to drive is 

applied for? If so, give the following details :- Date of test Testing 

Authority Result of test (1) (2) (3) 

13. I enclose three copies of my recent [passport size 

photographs] (where laminated card is used, no photographs are 

required) … ………………… 

14. I enclose Learner’s licence No. ………….. dated ……………. 

issued by Licensing Authority. 

15. I enclose the Driving Certificate No. ….…………….dated 

…………issued by…………….. 

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16. I have submitted along with my application for learner’s 

licence the written consent of parent / guardian. 

17. I have submitted along with the application for learner’s 

licence./I enclose the medical fitness certificate. 

18. I am exempted from the medical test under rule 6 of the 

Central Motor Vehicles Rules , 1989. 

19. I am exempted from preliminary test under rule 11 (2) of the 

Central Motor Vehicles Rules 1989. 

20. I have paid the fee of Rs. I hereby declare that to the best of 

my knowledge and belief the particulars given above are true.


Note : Strike out whichever is inapplicable. 

Date : …………….. 

Signature/Thumb impression of applicant. 

Certificate of test of competence to drive 

The applicant has passed the test prescribed under rule 15 of 

the Central Motor Vehicles Rules, 1989. The test was conducted on 

(here enter the registration mark and description of the 

vehicle)………..…… on (date). 

The applicant has failed in the test. 

(The details of deficiency to be listed out.) 

Date_________________ 

Signature of Testing Authority 

Full name and designation 

312 


Two specimen signatures of applicant: 

Strike out whichever is inapplicable.” 

11. It is apparent from the Form prescribed under Rule 14 till 28.3.2001, 

the aforesaid classification of vehicles remained the same As provided in Section 

10(2) of the Act of 1988 for the first time transport vehicle was inserted w.e.f. 

28.3.2001 by deleting the existing classes, medium passenger and goods vehicle, 

heavy goods vehicle and heavy passenger motor vehicles to bring in tune with 

Section 10(2)(e) to (h). Form 4 has undergone other changes with respect to 

item ‘a’ motorcycle without gear which was substituted vide GSR 684(E) on 

5.10.1999 w.e.f. 22.10.1999 and again substituted by GSR 76(E) dated 31.1.2000 

w.e.f. 31.1.2000. With aforesaid changes brought about by notifications in 1989 

and 2000 in Section 10(2)(a) we are not concerned here. Amended Form ‘4’ is 

extracted hereunder: 

“FORM 4 

[See Rule 14(1)] 

Sample Copy 




Form of Application for Licence to Drive a Motor Vehicle 

To 

The Licensing Authority ……………………………… 

Space for 

……………………………… Passport size 

photograph 

I apply for a licence to enable me to drive vehicles of the 

following description:- 



(c) Invalid carriage 

(d) Light Motor vehicle 

(e) Transport vehicle 

(f) Medium passenger motor vehicle 

[*****] 

(i) Road roller 

(j) Motor vehicles of the following description: 

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Particulars to be furnished by Applicant 

1.Full Name…………………… 

2.Son/Wife/Daughter of ………………………… ........... 

3.Permanent address ……………………… …………… 

(Proof to be enclosed) ………………………… ............. 

4.Temporary address/ Official address (if any).................. 

5.Date of birth………………………… .. 

(proof to be enclosed) …..………… ................................ 

6. Educational qualification .……………………… ....... 

7. Identification mark(s) 1.……………… ……… 2….……………………. 

8.Optional


Blood Group 

RH FACTOR 

9. Have you previously held driving ……………… ... Licence? If so, 

give details. 

10. Particulars and date of every……………………… .. conviction 

which has been ordered to be endorsed on any licence held by applicant 

11. Have you been disqualified for……………………… obtaining a 

Licence to drive? If so, for what reason? 

12. Have you been subjected to a driving test as to your fitness 

or ability to drive a vehicle in respect of which a licence to drive is 

applied for ? If so, give the following details. ………………………… 

Date of test Testing Authority Result of test 

1. 

2. 

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13. I enclose 3 copies of my recent (passport size photograph) 

(where laminated card is used no photographs are required). 

14. I enclose the learner’s Licence No .................. dated ………… 

issued by Licensing Authority. 

15. I enclose the Driving Certificate No. ............. Dated 

................ issued by ........................ 

16. I have submitted along with my application for Learner’s 

Licence the written consent of parent/guardian. 

17. I have submitted along with the application for learner’s 

licence/I enclose the medical fitness certificate. 

18. I am exempted from the medical test under rule 6 of the 

Central Motor Vehicles Rules, 1989. 

19. I am exempted from preliminary test under rule 11(2) of the 

Central Motor Vehicles Rules. 1989. 

20. I have paid the fee of Rs………….. 

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I hereby declare that to the best of my knowledge and belief the 

particulars given above are true. 

* Strike out whichever is inapplicable. 

Date ................... 

Signature/Thumb impression of Applicant 

Certificate of test of competence to drive 

The applicant has passed the test prescribed under rule 15 of 

the Central Motor Vehicles Rules 1989. The test conducted on (here 

enter the registration mark and description of the 

vehicle)..................................... on (date) ………….. 

The applicant has failed in the test. (The details of the deficiency 

to be listed out) Date .................. 

Signature of Testing Authority 

Full name & designation 

Two specimen signatures of Applicant: 

1. 

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2. 

Strike out whichever is inapplicable.” 

12. Thus, as per Amendment of Section 10 vide Act 54 of 1994, there is 

deletion of categories of medium goods vehicle, medium passenger motor 

vehicle, heavy goods vehicle and heavy passenger motor vehicle and these have 

been substituted by the classification “transport vehicle”. It is pertinent to note 

here that the definition and classification of light motor vehicle in the Act 

remains intact as it existed. It is also apparent from the Statement of Objects 

and Reasons of the Amendment Act No.54 of 1994 that the transport operators 

and members of public faced inconvenience because of operation of some of 

the provisions of the Act of 1988. It was intended for simplification of 

procedures and policy liberalization and it became necessary due to


introduction of newer type of vehicles and faced increasing numbers of both 

personal and commercial vehicles in the country. Hence, it was intended to 

modify and amplify certain definitions of new types of vehicles for simplification 

of procedure for grant of driving licences as provided in para 4(a) and (b) of the 

Statement of Objects and Reasons. The question is whether intendment 

appears not to touch the classification of light motor vehicle which has to be 

understood in the light of the definition in section 2(21) of the Act of 1988 and it 

was never intended that the transport vehicles of light motor vehicle category 

should be taken out of the purview of the existing classification of light motor 

vehicles and the transport vehicles as inserted in section 10 has to be 

understood in the light of the amendment brought about vide deletion of the 

provisions of medium goods vehicle, medium passenger motor vehicle, heavy 

goods vehicle and heavy passenger motor vehicle. Thus, no change had been 

brought about with respect to the transport vehicles of class of light motor 

vehicle as defined in section 2(21) of the Act of 1988. 

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13. To consider further on the issue, certain rules and forms are also 

required to be referred to. Rule 8 provides for minimum educational 

qualification for driving transport vehicles which is 8th standard. However 

proviso makes it clear that the qualification of 8th standard shall not apply in 

the case of renewal of driving licence to drive a transport vehicle and/or 

addition of another class of transport vehicle to the driving licence already held 

before the commencement of the Motor Vehicles Act, 2007. Rule 8 of the Rules 

of 1989 inserted on 10.4.2007 is quoted below : 

“8. Minimum educational qualification for driving transport vehicles.-- 

The minimum educational qualification in respect of an applicant for 

obtaining a licence to drive a transport vehicle shall be a pass in the 

eighth standard: 

Provided that the minimum educational qualification specified in this 

rule shall not apply in the case of – 

(i) renewal of a driving licence to drive a transport vehicle : or 

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(ii) addition of another class of transport vehicle to the driving licence, 

already held before the commencement of the Motor Vehicles 

(Amendment) Rules, 2007.” 

14. Earlier Rule 8 was omitted by GSR No.933(E) dated 28.10.1989 w.e.f. 

28.10.1989. The Rule has been inserted in the year 2007 and it is provided that 

Eighth standard qualification will not apply in the case of addition of another 

class of transport vehicle to the driving licence. Thus, it is clear that Rule 8 

contemplates addition of transport vehicle of other category than the existing 

one in the licence. Question arises whether that refers to the addition to light 

motor vehicle’s category, and gross vehicle weight or the unladen weight of 

vehicle in section 2(21) does not exceed 7500 kgs. would remain a light motor 

vehicle. Section 10 of the Act contains the provisions as to class of vehicles of 

the transport vehicle and light motor vehicle separately. The question arises 

whether the transport vehicle insertion in Section 10(2)(e) is confined to the 

category of substitution made by deleting existing sections 10(2)(e), (f), (g) and 

(h) which were for medium goods vehicle, medium passenger motor vehicle, 

heavy goods vehicle and heavy passenger motor vehicle, and in case “transport 

vehicle” even of the weight of light motor vehicle is treated in one category 

under section 10(2)(e) in that case whether any purpose would be left behind 

insertion of Rule 8 again in the year 2007. 

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15. Rule 16 provides for the Form of driving licence. Same shall be 

issued or renewed by licensing authority in Form 6. Rule 16 and Form 6 are 

quoted below : 

“16. Form of driving licence.— 

(Form Omitted…. Editor) “ 

16. Rule 17 of the Rules deals with the additional driving licence. Same 

has to be applied for in Form 8. Rule 17 and Form 8 read thus : 

“17. Addition to driving licence.— 

(1) An application for addition of another class of description of motor 

vehicle to the driving licence shall be made in Form 8 to the licensing


authority and shall be accompanied by— 

(a) an effective learner’s licence and driving licence held by the 

applicant; Date Section and Rule Fine or other punishment Date 

Proceedings number and date Disqualification period 

(b) in the case of an application for addition of a transport vehicle, the 

driving certificate in Form 5; (c) [* * *] 

(d) appropriate fee as specified in Rule 32. 

(2) The provisions of sub-section (1), sub-section (3) and subsection (4) 

of Section 9 shall, insofar as may be, apply in relation to an application 

under sub-section (1) as they apply in relation to an application for the 

grant of a driving licence.” 

Form 8 as provided in Rule 17(1) of the Rules reads as under : 

“FORM 8 

[See Rule 17(1)] 

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APPLICATION FOR THE ADDITION OF A NEW CLASS OF VEHICLE TO A 

DRIVING LICENCE 

…. 

To 

The Licensing Authority, 

………………………… 

I, Shri/Smt./ Kumari…... hereby apply for the addition of the following 

class/classes of motor vehicles to the attached licence:- 



(c) Invalid carriages, 

(d) Light motor vehicles, 

(e) Transport vehicle 

(f) Medium passenger motor vehicles 

(g) x x x 

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(h) x x x 

(i) Road rollers, 

(j) Motor vehicle of the following description : 

I enclose, 

(a) a Medical Certificate in Form 1-A 

(b) Learner’s licence in Form 3, 

(c) Driving licence in Form 6/7, 

I hereby apply for the addition of the following : 

(d) Driving Certificate in Form 5 if the application is to drive a transport 

vehicle, 

(e) I have paid the fee of Rs. … … … … … … … … … .. 

Dated: …….. 

Signature or thumb-impression of the Applicant 

CERTIFICATE OF TEST OF COMPETENCE TO DRIVE 

The applicant has passed/failed in the test specified in Rule 15 of the 

Central Motor Vehicles Rules, 1989. The test was conducted on a ….(here enter 

description of vehicles) on date.… 

319 


Signature of Testing Authority Name & Designation” 

17. Form 8 also separately provide the light motor vehicle and transport 

vehicle. Question arises whether in Forms 4, 5 and 8, transport vehicle has to be 

understood for the categories of vehicles for which substitution has been made 

in section 10(2) by deleting the existing provisions of section 10(2)(e), (f), (g) and 

(h). However the form still contains the provision with respect to “medium 

passenger motor vehicles”, notwithstanding the insertion of the changed 

classification of the vehicles in section 10(2) of the Act or it may be printer’s 

omission to delete ? 

18. Rule 34 has also been referred to which deals with the trade 

certificate. Rule 34(2) provides that separate application shall be made for the


classes of vehicles prescribed therein. Rule 34 is quoted below: 

“34. Trade certificate.-- (1) An application for the grant or 

renewal of a trade certificate shall be made in Form 16 and shall be 

accompanied by the appropriate fee as specified in Rule 81. 

(2) Separate applications shall be made for each of the following 

classes of vehicles, namely:— 

(a) motorcycle; 

(b) invalid carriage; 

(c) light motor vehicle; 

(d) medium passenger motor vehicle; 

(e) medium goods vehicle; 

(f) heavy passenger motor vehicle; 

(g) heavy goods vehicle; 

(h) any other motor vehicle of a specified description.” 

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Rule 34 also makes a distinction between light motor vehicle, medium 

passenger motor vehicle, medium goods vehicle, heavy passenger motor vehicle 

and heavy goods vehicle. As per Rule 126 of the Rules, proto-type of every 

motor vehicle is subject to test by the Vehicle Research & Development 

Establishment of the Ministry of Defence of the Government of India or 

Automotive Research Association of India. Testing Agency has to conduct test as 

provided in Rule 126A to verify whether these vehicles conform to the 

provisions of the Rules made under section 110 of the Act. All the relevant 

information has to be inserted as per section 41 of the Act in the registration 

particulars as may be prescribed by the Central Government. Application for 

registration of motor vehicle has to be made in Form 20. Class of vehicle, gross 

vehicle weight as well as unladen weight are to be mentioned. 

19. Rule 31 of the Rules contains a syllabus for imparting instructions in 

driving of motor vehicles in schools or establishments. That syllabus is divided in 

parts A to K. Part A deals with driving theory-1. B- Traffic education-I. C-light 

vehicles driving practice. DVehicle mechanism and repairs. E-Medium and heavy 

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vehicle driving. F- Traffic education-II. G- Public relations for drivers. H-Heavy 

vehicle driving practice. I-Fire hazards. J- Vehicle maintenance. K-First-aid. 

20. It is apparent from the syllabus that there is a separate syllabus for 

light motor vehicle and for medium and heavy vehicle driving practice. No 

separate syllabus has been provided for transport vehicles. They are included in 

the aforesaid categories. Thus, it appears that as per the weight of the vehicles, 

the syllabus has been provided and different teaching is prescribed as per 

different weights of the vehicles. A driving licence has to be issued as per Rule 

16 in Form 6. Form 6 also separately provides for light motor vehicle, transport 

vehicle. 

21. The Central Government, inter alia, has the power to frame the rules 

provided under section 27 of the Act, regarding minimum qualification, 

regarding forms and contents of the licences referred to in sub-section (1) of 

section 10 and providing for authority to grant licences and other matters as 

provided in section 27. State Government is enjoined to maintain a register of 

motor vehicles under Rule 75 as provided in Form 41 which includes gross 

vehicle weight, unladen weight etc. Thus it is clear that the scheme of the Act, 

Rules and the Forms emphasise the gross vehicle weight and unladen weight 

which is required to be mentioned specifically in the State registration 

particulars etc. so as to ascertain the class of vehicle whether it is light, medium 

or heavy etc. 

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22. In Skandia Insurance Co. Ltd. v. Kokilaben Chandravadan & Ors. 

(1987) 2 SCC 654, it was held that in order to consider the intention of the 

Legislature in the course of interpretation, motive and philosophy of the 

relevant provisions keeping in mind the goals to be achieved by enacting the 

same, has to be taken into consideration. It was observed thus : 

“12. The defence built on the exclusion clause cannot succeed 

for three reasons, viz.: 

(1) On a true interpretation of the relevant clause which 

interpretation is at peace with the conscience of Section 96, the


condition excluding driving by a person not duly licensed is not 

absolute and the promisor is absolved once it is shown that he 

has done everything in his power to keep, honour and fulfil the 

promise and he himself is not guilty of a deliberate breach. 

(2) Even if it is treated as an absolute promise, there is 

substantial compliance therewith upon an express or implied 

mandate being given to the licensed driver not to allow the 

vehicle to be left unattended so that it happens to be driven by 

an unlicensed driver. 

(3) The exclusion clause has to be “read down” in order that it is 

not at war with the “main purpose” of the provisions enacted 

for the protection of victims of accidents so that the promisor is 

exculpated when he does everything in his power to keep the 

promise. 

13. In order to divine the intention of the legislature in the course of 

322 


interpretation of the relevant provisions there can scarcely be a better 

test than that of probing into the motive and philosophy of the relevant 

provisions keeping in mind the goals to be achieved by enacting the 

same. Ordinarily it is not the concern of the legislature whether the 

owner of the vehicle insures his vehicle or not. If the vehicle is not 

insured any legal liability arising on account of third party risk will have 

to be borne by the owner of the vehicle. Why then has the legislature 

insisted on a person using a motor vehicle in a public place to insure 

against third party risk by enacting Section 94? Surely the obligation has 

not been imposed in order to promote the business of the insurers 

engaged in the business of automobile insurance. The provision has 

been inserted in order to protect the members of the community 

travelling in vehicles or using the roads from the risk attendant upon the 

user of motor vehicles on the roads. The law may provide for 

compensation to victims of the accidents who sustain injuries in the 

course of an automobile accident or compensation to the dependants 

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of the victims in the case of a fatal accident. However, such protection 

would remain a protection on paper unless there is a guarantee that the 

compensation awarded by the courts would be recoverable from the 

persons held liable for the consequences of the accident. A court can 

only pass an award or a decree. It cannot ensure that such an award or 

decree results in the amount awarded being actually recovered, from 

the person held liable who may not have the resources. The exercise 

undertaken by the law courts would then be an exercise in futility. And 

the outcome of the legal proceedings which by the very nature of things 

involve the time cost and money cost invested from the scarce 

resources of the community would make a mockery of the injured 

victims, or the dependants of the deceased victim of the accident, who 

themselves are obliged to incur not inconsiderable expenditure of time, 

money and energy in litigation. To overcome this ugly situation the 

legislature has made it obligatory that no motor vehicle shall be used 

unless a third party insurance is in force. To use the vehicle without the 

requisite third party insurance being in force is a penal offence (Section 

94 of the Motor Vehicles Act). The legislature was also faced with 

another problem. The insurance policy might provide for liability walled 

in by conditions which may be specified in the contract of policy. In 

order to make the protection real, the legislature has also provided that 

the judgment obtained shall not be defeated by the incorporation of 

exclusion clauses other than those authorised by Section 96 and by 

providing that except and save to the extent permitted by Section 96 it 

will be the obligation of the insurance company to satisfy the judgment 

obtained against the persons insured against third party risk (vide 

Section 96). In other words, the legislature has insisted and made it 

incumbent on the user of a motor vehicle to be armed with an 

insurance policy covering third party risks which is in conformity with 

the provisions enacted by the legislature. It is so provided in order to 

ensure that the injured victims of automobile accidents or the 

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dependants of the victims of fatal accidents are really compensated in 

terms of money and not in terms of promise. Such a benign provision 

enacted by the legislature having regard to the fact that in the modern 

age the use of motor vehicles notwithstanding the attendant hazards, 

has become an inescapable fact of life, has to be interpreted in a 

meaningful manner which serves rather than defeats the purpose of the 

legislation. The provision has therefore to be interpreted in the twilight 

of the aforesaid perspective.” 

14. Section 96(2)(b)(ii) extends immunity to the insurance company if a 

324 


breach is committed of the condition excluding driving by a named 

person or persons or by any person who is not fully licensed, or by any 

person who has been disqualified for holding or obtaining a driving 

licence during the period of disqualification. The expression “breach” is 

of great significance. The dictionary meaning of “breach” is 

“infringement or violation of a promise or obligation” (See Collins 

English Dictionary). It is therefore abundantly clear that the insurer will 

have to establish that the insured is guilty of an infringement or 

violation of a promise that a person who is duly licensed will have to be 

in charge of the vehicle. The very concept of infringement or violation of 

the promise that the expression “breach” carries within itself induces an 

inference that the violation or infringement on the part of the promisor 

must be a wilful infringement or violation. If the insured is not at all at 

fault and has not done anything he should not have done or is not amiss 

in any respect how can it be conscientiously posited that he has 

committed a breach? It is only when the insured himself places the 

vehicle in charge of a person who does not hold a driving licence, that it 

can be said that he is “guilty” of the breach of the promise that the 

vehicle will be driven by a licensed driver. It must be established by the 

insurance company that the breach was on the part of the insured and 

that it was the insured who was guilty of violating the promise or 

infringement of the contract. Unless the insured is at fault and is guilty 

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of a breach the insurer cannot escape from the obligation to indemnify 

the insured and successfully contend that he is exonerated having 

regard to the fact that the promisor (the insured) committed a breach 

of his promise. Not when some mishap occurs by some mischance. 

When the insured has done everything within his power inasmuch as he 

has engaged a licensed driver and has placed the vehicle in charge of a 

licensed driver, with the express or implied mandate to drive himself it 

cannot be said that the insured is guilty of any breach. And it is only in 

case of a breach or a violation of the promise on the part of the insured 

that the insurer can hide under the umbrella of the exclusion clause. In 

a way the question is as to whether the promise made by the insured is 

an absolute promise or whether he is exculpated on the basis of some 

legal doctrine. The discussion made in para 239 of Breach of Contract by 

Carter (1984 Edn.) under the head Proof of Breach, gives an inkling of 

this dimension of the matter. In the present case even if the promise 

were to be treated as an absolute promise the grounds for exculpation 

can be found from Section 84 of the Act which reads thus: 

“84. Stationary vehicles—No person driving or in charge of a 

325 


motor vehicle shall cause or allow the vehicle to remain 

stationary in any public place, unless there is in the driver’s seat 

a person duly licensed to drive the vehicle or unless the 

mechanism has been stopped and a brake or brakes applied or 

such other measure taken as to ensure that the vehicle cannot 

accidentally be put in motion in the absence of the driver.” 

In view of this provision apart from the implied mandate to the licensed 

driver not to place an unlicensed person in charge of the vehicle, there 

is also a statutory obligation on the said person not to leave the vehicle 

unattended and not to place it in charge of an unlicensed driver. What is 

prohibited by law must be treated as a mandate to the employee and 

should be considered sufficient in the eye of law for excusing 

noncompliance with the conditions. It cannot therefore in any case be

326 



considered as a breach on the part of the insured. To construe the 

provision differently would be to rewrite the provision by engrafting a 

rider to the effect that in the event of the motor vehicle happening to 

be driven by an unlicensed person, regardless of the circumstances in 

which such a contingency occurs, the insured will not be liable under 

the contract of insurance. It needs to be emphasised that it is not the 

contract of insurance which is being interpreted. It is the statutory 

provision defining the conditions of exemption which is being 

interpreted. These must therefore be interpreted in the spirit in which 

the same have been enacted accompanied by an anxiety to ensure that 

the protection is not nullified by the backward looking interpretation 

which serves to defeat the provision rather than to fulfil its life-aim. To 

do otherwise would amount to nullifying the benevolent provision by 

reading it with a non-benevolent eye and with a mind not tuned to the 

purpose and philosophy of the legislation without being informed of the 

true goals sought to be achieved. What the legislature has given, the 

Court cannot deprive of by way of an exercise in interpretation when 

the view which renders the provision potent is equally plausible as the 

one which renders the provision impotent. In fact it appears that the 

former view is more plausible apart from the fact that it is more 

desirable. When the option is between opting for a view which will 

relieve the distress and misery of the victims of accidents or their 

dependants on the one hand and the equally plausible view which will 

reduce the profitability of the insurer in regard to the occupational 

hazard undertaken by him by way of business activity, there is hardly 

any choice. The Court cannot but opt for the former view. Even if one 

were to make a strictly doctrinaire approach, the very same conclusion 

would emerge in obeisance to the doctrine of “reading down” the 

exclusion clause in the light of the “main purpose” of the provision so 

that the “exclusion clause” does not cross swords with the “main 

purpose” highlighted earlier. The effort must be to harmonize the two 

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instead of allowing the exclusion clause to snipe successfully at the main 

purpose. This theory which needs no support is supported by Carter’s 

“Breach of Contract” vide paragraph 251. To quote: 

“Notwithstanding the general ability of contracting parties to 

agree to exclusion clauses which operate to define obligations 

there exists a rule, usually referred to as the “main purpose 

rule”, which may limit the application of wide exclusion clauses 

defining a promisor’s contractual obligations. For example, in 

Glynn v. Margetson & Co (1893 AC 351, 357, Lord Halsbury, L.C. 

stated: 

It seems to me that in construing this 

document, which is a contract of carriage between the 

parties, one must in the first instance look at the whole 

instrument and not at one part of it only. Looking at the 

whole instrument, and seeing what one must regard ... 

as its main purpose, one must reject words, indeed 

whole provisions, if they are inconsistent with what one 

assumes to be the main purpose of the contract.’ 

327 


Although this rule played a role in the development of the doctrine of 

fundamental breach, the continued validity of the rule was 

acknowledged when the doctrine was rejected by the House of Lords in 

Suissee Atlantique Societe d’ Armement Maritime S.A. v. N.V. 

Rotterdamsche Kolen Centrale (1967) 1 AC 361, 393, 412-413, 427-428, 

430. Accordingly, wide exclusion clauses will be read down to the extent 

to which they are inconsistent with the main purpose, or object of the 

contract. (emphasis supplied)” 

23. A 3-Judge Bench of this Court in Sohan Lal Passi v. P. Sesh Reddy & 

Ors. (1996) 5 SCC 21 examined the correctness of the aforesaid view in 

Skandia’s case (supra) and has laid down thus : 

“12. … According to us, Section 96(2)(b)(ii) should not be

328 



interpreted in a technical manner. Sub-section (2) of Section 96 only 

enables the insurance company to defend itself in respect of the liability 

to pay compensation on any of the grounds mentioned in sub-section 

(2) including that there has been a contravention of the condition 

excluding the vehicle being driven by any person who is not duly 

licensed. This bar on the face of it operates on the person insured. If the 

person who has got the vehicle insured has allowed the vehicle to be 

driven by a person who is not duly licensed then only that clause shall 

be attracted. In a case where the person who has got insured the 

vehicle with the insurance company, has appointed a duly licensed 

driver and if the accident takes place when the vehicle is being driven by 

a person not duly licensed on the basis of the authority of the driver 

duly authorised to drive the vehicle whether the insurance company in 

that event shall be absolved from its liability? The expression ‘breach’ 

occurring in Section 96(2)(b) means infringement or violation of a 

promise or obligation. As such the insurance company will have to 

establish that the insured was guilty of an infringement or violation of a 

promise. The insurer has also to satisfy the Tribunal or the Court that 

such violation or infringement on the part of the insured was wilful. If 

the insured has taken all precautions by appointing a duly licensed 

driver to drive the vehicle in question and it has not been established 

that it was the insured who allowed the vehicle to be driven by a person 

not duly licensed, then the insurance company cannot repudiate its 

statutory liability under sub-section (1) of Section 96…..” 

24. It is relevant to note the various decisions rendered by this Court. In 

Ashok Gangadhar Maratha v. Oriental Insurance Co. Ltd. (1999) 6 SCC 620, this 

Court considered the definition of light motor vehicle and held thus : 

“10. The definition of "light motor vehicle" as given in clause (21) of 

Section 2 of the Act can apply only to a "light goods vehicle" or a "light 

transport vehicle". A "light motor vehicle" otherwise has to be covered 

by the definition of "motor vehicle" or "vehicle" as given in clause (28) 

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of Section 2 of the Act. A light motor vehicle cannot always mean a light 

goods carriage. Light motor vehicle can be a non-transport vehicle as 

well.” 

25. In Oriental Insurance Co. Ltd. v. Zaharulnisha & Ors. (2008) 12 SCC 

385 this Court has referred to the decision in National Insurance Co. Ltd. v. 

Swaran Singh (2004) 3 SCC 297 to the effect that if a person has been given a 

licence for a particular type of vehicle he cannot be said to have no licence for 

driving another type of vehicle which is of the same category but of a different 

type. As for example when a person is granted a licence for driving a light motor 

vehicle he can drive either a car or a jeep and it is not necessary that he must 

have driving licence both for car and jeep separately. This Court has laid down 

that since the driver was having licence to drive heavy motor vehicle but at the 

time of accident was driving a scooter which is a totally different class of vehicle, 

the act was held to be in violation of Section 10(2) of the MV Act. The relevant 

provisions read thus : 

“18. A three-Judge Bench of this Court in National Insurance Co. 

Ltd. v. Swaran Singh (2004) 3 SCC 297 has extensively dealt with the 

meaning, application and interpretation of various provisions, including 

Sections 3(2), 4(3), 10(2) and 149 of the MV Act. In para 47 of the 

judgment, the learned Judges have held that if a person has been given 

a licence for a particular type of vehicle as specified therein, he cannot 

be said to have no licence for driving another type of vehicle which is of 

the same category but of different type. As for example, when a person 

is granted a licence for driving a light motor vehicle he can drive either a 

car or a jeep and it is not necessary that he must have driving licence 

both for car and jeep separately. In para 48, it is held as under: (SCC pp. 

324-25) 

329 


“48. Furthermore, the insurance company with a view to avoid 

its liabilities is not only required to show that the conditions laid 

down under Section 149(2)(a) or (b) are satisfied but is further 

required to establish that there has been a breach on the part


of the insured. By reason of the provisions contained in the 

1988 Act, a more extensive remedy has been conferred upon 

those who have obtained judgment against the user of a vehicle 

and after a certificate of insurance is delivered in terms of 

Section 147(3). After a third party has obtained a judgment 

against any person insured by the policy in respect of a liability 

required to be covered by Section 145, the same must be 

satisfied by the insurer, notwithstanding that the insurer may 

be entitled to avoid or to cancel the policy or may in fact have 

done so. The same obligation applies in respect of a judgment 

against a person not insured by the policy in respect of such a 

liability, but who would have been covered if the policy had 

covered the liability of all persons, except that in respect of 

liability for death or bodily injury.” 

19. The judgment (in Swaran Singh case) proceeds to hold that under 

330 


the MV Act, holding of a valid driving licence is one of the conditions of 

the contract of insurance. Driving of a vehicle without a valid licence is 

an offence. However, the question herein is whether a third party 

involved in an accident is entitled to the amount of compensation 

granted by the Motor Accidents Claims Tribunal although the driver of 

the vehicle at the relevant time might not have had a valid driving 

licence but would be entitled to recover the same from the owner or 

driver thereof. It is trite that where the insurers, relying upon the 

provisions of violation of law by the assured, take an exception to pay 

the assured or a third party, they must prove a wilful violation of the 

law by the assured. In some cases, violation of criminal law, particularly 

violation of the provisions of the MV Act, may result in absolving the 

insurers but, the same may not necessarily hold good in the case of a 

third party. In any event, the exception applies only to acts done 

intentionally or “so recklessly as to denote that the assured did not care 

what the consequences of his act might be”. The provisions of sub- 

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sections (4) and (5) of Section 149 of the MV Act may be considered as 

to the liability of the insurer to satisfy the decree at the first instance. 

The liability of the insurer is a statutory one. The liability of the insurer 

to satisfy the decree passed in favour of a third party is also statutory. 

20. The learned Judges having considered the entire material and 

relevant provisions of the MV Act and conflict of decisions of various 

High Courts and this Court on the question of defences available to the 

insurance companies in defending the claims of the victims of the 

accident arising due to the harsh and negligent driving of the vehicle 

which is insured with the insurance companies, proceeded to record the 

following summary of findings: (Swaran Singh case, SCC pp. 341-42, para 

110) 

“110. (i) Chapter XI of the Motor Vehicles Act, 1988 providing 

compulsory insurance of vehicles against third-party risks is a 

social welfare legislation to extend relief by compensation to 

victims of accidents caused by use of motor vehicles. The 

provisions of compulsory insurance coverage of all vehicles are 

with this paramount object and the provisions of the Act have 

to be so interpreted as to effectuate the said object. 

331 


(ii) An insurer is entitled to raise a defence in a claim petition 

filed under Section 163-A or Section 166 of the Motor Vehicles 

Act, 1988 inter alia in terms of Section 149(2)(a)(ii) of the said 

Act. 

(iii) The breach of policy condition e.g. disqualification of the 

driver or invalid driving licence of the driver, as contained in 

sub-section (2)(a)(ii) of Section 149, has to be proved to have 

been committed by the insured for avoiding liability by the 

insurer. Mere absence, fake or invalid driving licence or 

disqualification of the driver for driving at the relevant time, are 

not in themselves defences available to the insurer against


either the insured or the third parties. To avoid its liability 

towards the insured, the insurer has to prove that the insured 

was guilty of negligence and failed to exercise reasonable care 

in the matter of fulfilling the condition of the policy regarding 

use of vehicles by duly licensed driver or one who was not 

disqualified to drive at the relevant time. 

(iv) Insurance companies, however, with a view to avoid their 

liability must not only establish the available defence(s) raised 

in the said proceedings but must also establish ‘breach’ on the 

part of the owner of the vehicle; the burden of proof wherefor 

would be on them. 

(v) The court cannot lay down any criteria as to how the said 

burden would be discharged, inasmuch as the same would 

depend upon the facts and circumstances of each case. 

(vi) Even where the insurer is able to prove breach on the part 

332 


of the insured concerning the policy condition regarding holding 

of a valid licence by the driver or his qualification to drive during 

the relevant period, the insurer would not be allowed to avoid 

its liability towards the insured unless the said breach or 

breaches on the condition of driving licence is/are so 

fundamental as are found to have contributed to the cause of 

the accident. The Tribunals in interpreting the policy conditions 

would apply “the rule of main purpose” and the concept of 

“fundamental breach” to allow defences available to the 

insured under Section 149(2) of the Act. 

(vii) The question as to whether the owner has taken reasonable 

care to find out as to whether the driving licence produced by 

the driver, (a fake one or otherwise), does not fulfil the 

requirements of law or not will have to be determined in each 

case. 

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(viii) If a vehicle at the time of accident was driven by a person 

having a learner’s licence, the insurance companies would be 

liable to satisfy the decree. 

(ix) The Claims Tribunal constituted under Section 165 read with 

Section 168 is empowered to adjudicate all claims in respect of 

the accidents involving death or of bodily injury or damage to 

property of third party arising in use of motor vehicle. The said 

power of the Tribunal is not restricted to decide the claims inter 

se between the claimant or claimants on one side and the 

insured, insurer and driver on the other. In the course of 

adjudicating the claim for compensation and to decide the 

availability of defence or defences to the insurer, the Tribunal 

has necessarily the power and jurisdiction to decide disputes 

inter se between the insurer and the insured. The decision 

rendered on the claims and disputes inter se between the 

insurer and insured in the course of adjudication of claim for 

compensation by the claimants and the award made thereon is 

enforceable and executable in the same manner as provided in 

Section 174 of the Act for enforcement and execution of the 

award in favour of the claimants. 

333 


(x) Where on adjudication of the claim under the Act the 

Tribunal arrives at a conclusion that the insurer has 

satisfactorily proved its defence in accordance with the 

provisions of Section 149(2) read with sub-section (7), as 

interpreted by this Court above, the Tribunal can direct that the 

insurer is liable to be reimbursed by the insured for the 

compensation and other amounts which it has been compelled 

to pay to the third party under the award of the Tribunal. Such 

determination of claim by the Tribunal will be enforceable and 

the money found due to the insurer from the insured will be 

recoverable on a certificate issued by the Tribunal to the


Collector in the same manner under Section 174 of the Act as 

arrears of land revenue. The certificate will be issued for the 

recovery as arrears of land revenue only if, as required by subsection 

(3) of Section 168 of the Act the insured fails to deposit 

the amount awarded in favour of the insurer within thirty days 

from the date of announcement of the award by the Tribunal. 

(xi) The provisions contained in sub-section (4) with the proviso 

thereunder and sub-section (5) which are intended to cover 

specified contingencies mentioned therein to enable the insurer 

334 


to recover the amount paid under the contract of insurance on 

behalf of the insured can be taken recourse to by the Tribunal 

and be extended to the claims and defences of the insurer 

against the insured by relegating them to the remedy before 

regular court in cases where on given facts and circumstances 

adjudication of their claims inter se might delay the adjudication 

of the claims of the victims.” 

21. In the light of the above settled proposition of law, the appellant 

Insurance Company cannot be held liable to pay the amount of 

compensation to the claimants for the cause of death of Shukurullah in 

road accident which had occurred due to rash and negligent driving of 

scooter by Ram Surat who admittedly had no valid and effective licence 

to drive the vehicle on the day of accident. The scooterist was 

possessing a driving licence of driving HMV and he was driving a totally 

different class of vehicle, which act of his is in violation of Section 10(2) 

of the MV Act.” 

26. In New India Assurance Co. Ltd. v. Prabhu Lal (2008) 1 SCC 696 this 

Court considered the question of driving a transport vehicle by a driver having 

valid licence to ply only light motor vehicle, no endorsement was made on the 

licence enabling the driver to drive transport vehicle. A two Judge Bench of this 

Court has laid down that the owner of the said vehicle cannot claim 

indemnification in such circumstances from the insurer. It has been held that 

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goods carrier will be a transport vehicle. The accident took place on 17.4.1998. 

The vehicle involved was Tata 709. The District Forum held it to be a goods 

carrier and covered by transport vehicle whereas the State Commission held 

that it was a light motor vehicle relying on the gross weight of the vehicle. This 

Court laid down that the said Commission was wrong in reversing the finding of 

the District Forum. This Court has considered the question thus : 

“38. We find considerable force in the submission of the learned 

counsel for the Insurance Company. We also find that the District Forum 

considered the question in its proper perspective and held that the 

vehicle driven by Ram Narain was covered by the category of transport 

vehicle under Clause (47) of Section 2 of the Act. Section 3, therefore, 

required the driver to have an endorsement which would entitle him to 

ply such vehicle. It is not even the case of the complainant that there 

was such endorsement and Ram Narain was allowed to ply transport 

vehicle. On the contrary, the case of the complainant was that it was 

Mohd. Julfikar who was driving the vehicle. To us, therefore, the District 

Forum was right in holding that Ram Narain could not have driven the 

vehicle in question. 

335 


39. The learned counsel for the complainant, however, heavily relied 

upon Ashok Gangadhar (1999) 6 SCC 620. In that case, the appellant 

was the owner of a truck, light motor vehicle, which was insured with 

the respondent Insurance Company. The vehicle met with an accident 

and a claim was lodged by the complainant before the Consumer 

Commission. It was contended by the Insurance Company that the truck 

was a goods carriage or a transport vehicle and since the driver of the 

truck was holding a driving licence issued in Form 6 to drive light motor 

vehicle only, he was not authorised to drive transport vehicle as there 

was no endorsement on his driving licence authorising him to drive such 

transport vehicle. The aggrieved complainant approached this Court. 

Allowing the appeal and setting aside the order passed by the 

Commission, this Court held that the driver of the vehicle was holding a

336 



valid driving licence for driving a light motor vehicle and there was no 

material on record to show that he was disqualified from holding an 

effective valid licence at the time of accident. In view of those facts, the 

Court held that the policy did not insist on the driver to have a licence to 

drive a transport vehicle by obtaining a specific endorsement. 

Considering the definition of “light motor vehicle” as given in Clause 

(21) of Section 2 of the Act, this Court held that such light motor vehicle 

(LMV) cannot always mean a light goods carriage. A light motor vehicle 

(LMV) can be a non-transport vehicle as well. The Court proceeded to 

observe that since there was neither a pleading nor a permit produced 

on record, the vehicle remained as a light motor vehicle. And though it 

can be said to have been designed to be used as a transport vehicle or a 

goods carriage, it could not be so held on account of statutory 

prohibition contained in Section 66 of the Act to be a transport vehicle. 

It was, therefore, held that the Commission was not right in rejecting 

the claim of the claimant. Accordingly this Court set aside the order 

passed by the Commission and directed the Insurance Company to pay 

compensation to the complainant. 

40. It is no doubt true that in Ashok Gangadhar (supra) in spite of the 

fact that the driver was holding valid driving licence to ply light motor 

vehicle (LMV), this Court upheld the claim and ordered the Insurance 

Company to pay compensation. But, in our considered opinion, the 

learned counsel for the Insurance Company is right in submitting that it 

was because of the fact that there was neither pleading nor proof as 

regards the permit issued by the Transport Authority. In absence of 

pleading and proof, this Court held that, it could not be said that the 

driver had no valid licence to ply the vehicle which met with an accident 

and he could not be deprived of the compensation. This is clear if one 

reads para 11 of the judgment, which reads thus: (SCC p. 626) 

“11. To reiterate, since a vehicle cannot be used as a transport 

vehicle on a public road unless there is a permit issued by the 

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Regional Transport Authority for that purpose and since in the 

instant case there is neither a pleading to that effect by any 

party nor is there any permit on record, the vehicle in question 

would remain a light motor vehicle. The respondent also does 

not say that any permit was granted to the appellant for plying 

the vehicle as a transport vehicle under Section 66 of the Act. 

Moreover, on the date of the accident, the vehicle was not 

carrying any goods and though it could be said to have been 

designed to be used as a transport vehicle or a goods carrier, it 

cannot be so held on account of the statutory prohibition 

contained in Section 66 of the Act.” 

(emphasis supplied) 

41. In our judgment, Ashok Gangadhar (supra) did not lay down that the 

driver holding licence to drive a light motor vehicle need not have an 

endorsement to drive transport vehicle and yet he can drive such 

vehicle. It was on the peculiar facts of the case, as the Insurance 

Company neither pleaded nor proved that the vehicle was transport 

vehicle by placing on record the permit issued by the Transport 

Authority that the Insurance Company was held liable. 

337 


42. In the present case, all the facts were before the District Forum. It 

considered the assertion of the complainant and defence of the 

Insurance Company in the light of the relevant documentary evidence 

and held that it was established that the vehicle which met with an 

accident was a “transport vehicle”. Ram Narain was having a licence to 

drive light motor vehicle only and there was no endorsement as 

required by Section 3 of the Act read with Rule 16 of the Rules and Form 

6. In view of necessary documents on record, the Insurance Company 

was right in submitting that Ashok Gangadhar (supra) does not apply to 

the case on hand and the Insurance Company was not liable.” 

27. In New India Assurance Co. Ltd. v. Roshanben Rahemansha Fakir &


Anr. (2008) 8 SCC 253 the driver was holder of a licence to drive a threewheeler. 

This Court noted that the licence was not meant to be used to drive a 

transport vehicle. The vehicle involved was an autorickshaw delivery van and 

was a goods carrier. Contention was raised that the driver of the vehicle was not 

holder of a legal and valid licence. Question arose whether driver was holding a 

licence to drive a transport vehicle. This Court held thus : 

“10. Section 10 of the Act provides for classes of the driving licence. 

Different classes of vehicle have been defined in different provisions of 

the Motor Vehicles Act. The “transport vehicle” is defined in Section 

338 


2(47) of the Act to mean a public service vehicle, a goods carriage, an 

educational institution bus or a private service vehicle. We have noticed 

hereinbefore the provisions of sub-section (4) of Section 41. We have 

also noticed the notification issued by the Central Government in this 

behalf. The said notification clearly postulates that a three-wheeled 

vehicle for transport of passengers or goods comes within the purview 

of Class 5 of the Table appended thereto. The licence granted in favour 

of the said Salim Amadbhai goes to show that the same was granted for 

a vehicle other than the transport vehicle. It was valid from 13.5.2004 to 

12.5.2024. Section 14(2)(a) provides that a driving licence issued or 

renewed under the Act shall, in case of a licence to drive a transport 

vehicle will be effective for a period of three years whereas in the case 

of any other vehicle it can be issued or renewed for a period of 20 years 

from the date of issuance or renewal. The fact that the licence was 

granted for a period of 20 years, thus, clearly shows that Salim 

Amadbhai, driver of the vehicle, was not granted a valid driving licence 

for driving a transport vehicle. 

x x x x x 

13. From the discussions made hereinbefore, it is evident that the driver 

of the vehicle was not holding an effective licence. Possession of an 

effective licence is necessary in terms of Section 10 of the Motor 

Vehicles Act.” 

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28. In National Insurance Co. Ltd. v. Annappa Irappa Nesaria alias 

Nesaragi & Ors. (2008) 3 SCC 464, a Division Bench of this Court has considered 

the question with respect to an accident which took place on 9.12.1999 

involving a Matador van, a “goods carriage” vehicle. The driver was holding a 

licence to drive light motor vehicle. Submission was raised before this Court that 

“light motor vehicle” cannot be a transport vehicle. Forms 4 and 6 were also 

referred along with Rules 14 and 16 of the 1989 Rules. After referring to Form 4 

as it has been amended w.e.f. 28.3.2001, this Court has held that transport 

vehicle has been substituted for “medium goods vehicle” and “heavy goods 

vehicle”, and continued at the relevant time, to cover both “light passenger 

carriage vehicle” and “light goods carriage vehicle”. The driver who had a valid 

licence to drive a light motor vehicle, therefore, was authorized to drive a light 

goods vehicle as well. This Court has laid down thus : 

“20. From what has been noticed hereinbefore, it is evident that 

“transport vehicle” has now been substituted for “medium goods 

vehicle” and “heavy goods vehicle”. The light motor vehicle continued, 

at the relevant point of time to cover both “light passenger carriage 

vehicle” and “light goods carriage vehicle”. A driver who had a valid 

licence to drive a light motor vehicle, therefore, was authorized to drive 

a light goods vehicle as well. 

339 


21. The amendments carried out in the Rules having a prospective 

operation, the licence held by the driver of the vehicle in question 

cannot be said to be invalid in law.” 

29. Thus, this Court has opined that prior to the amendment made in 

the form in 2001 a person holding a licence to drive “light motor vehicle” could 

have driven “light passenger carriage vehicle” and “light goods carriage vehicle” 

also. 

30. In Oriental Insurance Co. Ltd. v. Angad Kol & Ors. (2009) 11 SCC 

356, this Court has considered the decision in National Insurance Co. Ltd. v. 

Annappa Irappa Nesaria (supra) and Prabhu Lal (supra). The accident in the


said case took place on 31.10.2004. A mini door auto dashed against the 

insured. Question arose whether the driver was not having an effective driving 

licence to drive “goods carriage vehicle”. Driver was holding a licence to drive 

motor-cycle and light motor vehicle. Licence was granted for a period of 20 

years. Therefore, this Court presumed that it was meant for the purpose of a 

vehicle other than a transport vehicle. This Court observed thus : 

“21. Licence having been granted for a period of 20 years, a 

presumption, therefore, arises that it was meant for the purpose of a 

vehicle other than a transport vehicle. Had the driving licence been 

granted for transport vehicle, the tenure thereof could not have 

exceeded to three years.” 

31. This Court observed that the grant of licence to drive transport 

vehicle became effective from 28.3.2001 i.e. date on which the form was 

amended and held that the vehicle was a “goods vehicle” as such the driver did 

not hold a valid driving licence for driving a “goods vehicle”. 

340 


32. In S.Iyyapan v. United India Insurance Co. (2013) 7 SCC 62, this 

Court has considered the decisions in Ashok Gangadhar (supra), Annappa 

Irappa Nesaria (supra), Prabhu Lal (supra) and other decisions and laid down 

thus : 

“18. In the instant case, admittedly the driver was holding a valid driving 

licence to drive light motor vehicle. There is no dispute that the motor 

vehicle in question, by which accident took place, was Mahindra Maxi 

Cab. Merely because the driver did not get any endorsement in the 

driving licence to drive Mahindra Maxi Cab, which is a light motor 

vehicle, the High Court has committed grave error of law in holding that 

the insurer is not liable to pay compensation because the driver was not 

holding the licence to drive the commercial vehicle. The impugned 

judgment is, therefore, liable to be set aside.” 

33. This Court in Kulwant Singh & Ors. v. Oriental Insurance Co. Ltd. 

(2015) 2 SCC 186, referring to the decisions of this Court in S.Iyyapan (supra) 

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and Annappa Irappa Nesaria (supra) has laid down that when one driver is 

holding a licence to drive light motor vehicle, he can drive commercial vehicle of 

that category. This Court has considered the question thus : 

“8. We find that the judgments relied upon cover the issue in favour of 

the appellants. In Annappa Irappa Nesaria (2008) 3 SCC 464, this Court 

referred to the provisions of Sections 2(21) and (23) of the Motor 

Vehicles Act, 1988, which are definitions of “light motor vehicle” and 

“medium goods vehicle” respectively and the rules prescribing the 

forms for the licence i.e. Rule 14 and Form 4. It was concluded: (SCC p. 

468, para 20) 

“20. From what has been noticed hereinbefore, it is evident that 

‘transport vehicle’ has now been substituted for ‘medium goods 

vehicle’ and ‘heavy goods vehicle’. The light motor vehicle 

continued, at the relevant point of time to cover both ‘light 

passenger carriage vehicle’ and ‘light goods carriage vehicle’. A 

driver who had a valid licence to drive a light motor vehicle, 

therefore, was authorised to drive a light goods vehicle as well.” 

9. In S. Iyyapan (2013) 7 SCC 62, the question was whether the driver 

who had a licence to drive “light motor vehicle” could drive “light motor 

vehicle” used as a commercial vehicle, without obtaining endorsement 

to drive a commercial vehicle. It was held that in such a case, the 

insurance company could not disown its liability. It was observed: (SCC 

p. 77, para 18) 

341 


“18. In the instant case, admittedly the driver was holding a 

valid driving licence to drive light motor vehicle. There is no 

dispute that the motor vehicle in question, by which accident 

took place, was Mahindra Maxi Cab. Merely because the driver 

did not get any endorsement in the driving licence to drive 

Mahindra Maxi Cab, which is a light motor vehicle, the High 

Court has committed grave error of law in holding that the


insurer is not liable to pay compensation because the driver was 

not holding the licence to drive the commercial vehicle. The 

impugned judgment [Civil Misc. Appeal No. 1016 of 2002, order 

dated 31-10-2008 (Mad)] is, therefore, liable to be set aside.” 

10. No contrary view has been brought to our notice. 

11. Accordingly, we are of the view that there was no breach of any 

condition of insurance policy, in the present case, entitling the 

Insurance Company to recovery rights.” 

34. The decision in Nagashetty v. United India Insurance Co. Ltd. & Ors. 

342 


(2001) 8 SCC 56 has also been referred in which it has been laid down that the 

tractor will be used for carrying goods. The goods will be carried in a trailer 

attached to it. Thus it was held that the holder having an effective driving 

licence can drive a tractor, if used for carrying goods. He would not become 

disqualified to drive a tractor if a trailer is attached to it. The contention that it 

was a transport vehicle, as trailer was attached to it, consequently, driver was 

not holding a valid licence, was rejected. This Court considered the submission 

and held as under : 

“9. Relying on these definitions, Mr S.C. Sharda submitted that 

admittedly the trailer was filled with stones. He submitted that once a 

trailer was attached to the tractor the tractor became a transport 

vehicle as it was used for carriage of goods. He submitted that Section 

10(2) of the Motor Vehicles Act provides for grant of licences to drive 

specific types of vehicles. He submitted that the driver only had a 

licence to drive a tractor. He submitted that the driver did not have a 

licence to drive a transport vehicle. He submitted that therefore it could 

not be said that the driver had an effective and valid driving licence to 

drive a goods carriage or a transport vehicle. He submitted that thus the 

driver did not have a valid driving licence to drive the type of vehicle he 

was driving. He submitted that as the driver did not have a valid driving 

licence to drive a transport vehicle, the Insurance Company could not be 

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made liable. He submitted that the High Court was right in so holding. 

10. We are unable to accept the submissions of Mr S.C. Sharda. It is an 

admitted fact that the driver had a valid and effective licence to drive a 

tractor. Undoubtedly under Section 10, a licence is granted to drive 

specific categories of motor vehicles. The question is whether merely 

because a trailer was attached to the tractor and the tractor was used 

for carrying goods, the licence to drive a tractor becomes ineffective. If 

the argument of Mr S.C. Sharda is to be accepted, then every time an 

owner of a private car, who has a licence to drive a light motor vehicle, 

attaches a roof carrier to his car or a trailer to his car and carries goods 

thereon, the light motor vehicle would become a transport vehicle and 

the owner would be deemed to have no licence to drive that vehicle. It 

would lead to absurd results. Merely because a trailer is added either to 

a tractor or to a motor vehicle by itself does not make that tractor or 

motor vehicle a transport vehicle. The tractor or motor vehicle remains 

a tractor or motor vehicle. If a person has a valid driving licence to drive 

a tractor or a motor vehicle, he continues to have a valid licence to drive 

that tractor or motor vehicle even if a trailer is attached to it and some 

goods are carried in it. In other words, a person having a valid driving 

licence to drive a particular category of vehicle does not become 

disabled to drive that vehicle merely because a trailer is added to that 

vehicle. 

343 


11. In this case we find that the Insurance Company, when issuing the 

insurance policy, had also so understood. The insurance policy has been 

issued for a tractor. In this insurance policy, an additional premium of 

Rs.12 has been taken for a trailer. Therefore the insurance policy covers 

not just the tractor but also a trailer attached to the tractor. The 

insurance policy provides as follows for the “persons or classes of 

persons entitled to drive”: 

“Persons or classes of persons entitled to drive.—Any person 

including insured provided that the person driving holds an


effective driving licence at the time of the accident and is not 

disqualified from holding or obtaining such a licence: Provided 

also that the person holding an effective learner’s licence may 

also drive the vehicle when not used for the transport of goods 

at the time of the accident and that such a person satisfies the 

requirements of Rule 3 of the Central Motor Vehicles Rules, 

1989, limitations as to use.” 

12. The policy is for a tractor. The “effective driving licence” is thus for a 

tractor. The restriction on a learner driving the tractor when used for 

344 


transporting goods shows that the policy itself contemplates that the 

tractor could be used for carriage of goods. The tractor by itself could 

not carry goods. The goods would be carried in a trailer attached to it. 

That is why the extra premium for a trailer. The restriction placed on a 

person holding a learner’s licence i.e. not to drive when goods are being 

carried is not there for a permanent licence-holder. Thus a permanent 

licence-holder having an effective/valid licence to drive a tractor can 

drive even when the tractor is used for carrying goods. When the policy 

itself so permits, the High Court was wrong in coming to the conclusion 

that a person having a valid driving licence to drive a tractor would 

become disqualified to drive the tractor if a trailer was attached to it.” 

35. “Transport vehicle” as defined in section 2(47) means a public 

service vehicle, a goods carriage, an educational institution bus or a private 

service vehicle. Public service vehicle has been defined in section 2(35) to mean 

any motor vehicle used or adapted to be used for the carriage of passengers for 

hire or reward, and includes a maxicab, a motorcab, contract carriage, and stage 

carriage. “Goods carriage” which is also a transport vehicle, is defined in section 

2(14) to mean any motor vehicle constructed or adapted for use solely for the 

carriage of goods, or any motor vehicle not so constructed or adapted when 

used for the carriage of goods. It was submitted that a person holding licence to 

drive Light Motor Vehicle who is driving a vehicle registered for private use, is 

driving a similar vehicle, which is registered or insured, for the purpose of 

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carrying passengers for hire or reward, would require endorsement as to drive a 

“transport vehicle” is not contemplated by the provisions of the Act. There are 

several vehicles which can be used for private use as well as for carrying 

passengers for hire or reward. It was also submitted that a driver who is 

competent to drive a vehicle for private use, would be entitled to drive the 

same vehicle if it is used for hire or reward or for even carrying the goods in the 

said vehicle. It was also submitted that it was intended by the Amendment Act 

54/1994 to simplify the procedure not to make it complicated and invalidate the 

licence of light motor vehicle and its holder could drive transport vehicle of the 

weight specified in section 2(21) of the Act. 

36. It was further submitted that there is difference in ‘class of vehicles’ 

and ‘type of vehicles’ and it is not necessary to obtain endorsement to drive 

transport vehicle of Light Motor Vehicle category when a person is competent 

to drive the same class of vehicle i.e. a light motor vehicle, as per the 

Amendment Act 54 of 1994 and Forms 4 and 6 as amended in 2001. 

37. It was also submitted that when this Court has held in Annappa 

Irappa Nesaria (supra) that prior to insertion of the Forms in 2001 the holder of 

licence of “light motor vehicle” was competent to drive a transport vehicle also. 

It was further submitted that no change has been brought by insertion of the 

Forms in the provisions contained in section 10(2)(d). 

345 


38. It was also submitted that Section 3 of the MV Act, 1988 from the 

very beginning provided about the transport vehicle. However, classes of vehicle 

classified in section 10(2) were light motor vehicle, medium goods and 

passenger motor vehicle, and heavy goods and passenger vehicle. The change 

brought about in 1994 was substitution of transport vehicle in place of medium 

and heavy goods and passenger vehicles and in view of the decisions of this 

Court in Ashok Gangadhar (supra), Annappa Irappa Nesaria (supra) and 

Kulwant Singh (supra), a person holding LMV licence was competent to drive a 

transport vehicle. The provisions of “light motor vehicle” in section 10(2)(d) 

remains intact. It has not been amended. It was also submitted that the Forms 

which have been amended would not govern the interpretation of the


provisions of Act; whereas the intendment of the Rule 8 inserted in 2007 was 

that type of vehicle could be added. What is the effect and purpose of insertion 

of Rule 8 in 2007, has not been taken into consideration. The Form has to be 

interpreted in tune with provisions of the Act and Rules. The object of the Act 

and Amendment Act 54/1994 has also not been taken into consideration in any 

of the decisions, and the effect of different syllabus having been prescribed for 

“light motor vehicle”, heavy and medium vehicles was also not placed for 

consideration. 

39. In Ashok Gangadhar Maratha in para 10 (supra), S.Iyyapan v. 

346 


United India Insurance Co. (supra), Kulwant Singh & Ors. v. Oriental Insurance 

Co. Ltd. (supra), and Nagashetty v. United India Insurance Co. Ltd. & Ors. 

(supra), the view taken is that when driver is holding licence to drive light motor 

vehicle, he is competent to drive transport vehicle of that category; whereas in 

New India Assurance Co. Ltd. v. Prabhu Lal (supra) the view taken is that before 

2001 also it was necessary for a driver possessing licence to drive Light Motor 

Vehicle to obtain endorsement to drive transport vehicle of that category; 

whereas in National Insurance Co. Ltd. v. Annappa Irappa Nesaria (supra), this 

Court laid down that before 28.3.2001 there was no necessity for holder of 

licence to drive light motor vehicle to have endorsement to drive transport 

vehicle; whereas in New India Assurance Co. Ltd. v. Roshanben Rahemansha 

Fakir & Anr. (supra) and Oriental Insurance Co. Ltd. v. Angad Kol & Ors. (supra), 

the view taken is that it is necessary for holder of light motor vehicle licence to 

obtain specific endorsement on licence, to drive transport vehicle of the light 

motor vehicle weight as provided in section 2(41). 

Thus, there appears to be a conflict in the decisions of this Court with 

respect to the pre-amended position and also after amendment has been 

effected in the Forms in 2001. In view of aforesaid discussion, following 

questions are required to be referred to larger Bench : 

1. What is the meaning to be given to the definition of “light motor 

vehicle” as defined in section 2(21) of the MV Act ? Whether transport 

vehicles are excluded from it ? 

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2. Whether ‘transport vehicle’ and ‘omnibus’ the “gross vehicle weight” 

of either of which does not exceed 7500 kgs. would be a “light motor 

vehicle” and also motor-car or tractor or a road roller, “unladen weight” 

of which does not exceed 7500 kgs. and holder of licence to drive class 

of “light motor vehicle” as provided in section 10(2)(d) would be 

competent to drive a transport vehicle or omnibus, the “gross vehicle 

weight” of which does not exceed 7500 kgs. or a motor-car or tractor or 

road roller, the “unladen weight” of which does not exceed 7500 kgs. ? 

3. What is the effect of the amendment made by virtue of Act No.54 of 

1994 w.e.f. 14.11.1994 while substituting clauses (e) to (h) of section 

10(2) which contained “medium goods vehicle”, “medium passenger 

motor vehicle”, “heavy goods vehicle” and “heavy passenger motor 

vehicle” by “transport vehicle”? Whether insertion of expression 

‘transport vehicle’ under section 10(2)(e) is related to said substituted 

classes only or it also excluded transport vehicle of light motor vehicle 

class from purview of Sections 10(2)(d) and 2(41) of the Act? 

4. What is the effect of amendment of the Form 4 as to operation of the 

provisions contained in section 10 as amended in the year 1994 and 

whether procedure to obtain driving licence for transport vehicle of 

class of “Light Motor Vehicle” has been changed ? 

347 


40. Let the matters be placed before Hon’ble the Chief Justice of India 

to constitute a larger Bench in order to resolve conflict in the views expressed 

by different Benches of this Court. 

--- ss ---




Present: Justice Pinaki Chandra Ghose and Justice R.K. Agrawal 

RASHTRIYA ISPAT NIGAM LTD.- Appellant, 

VERSUS 

M/S. PRATHYUSHA RESOURCES & INFRA PRIVATE LIMITED and anr. – 

Respondents. 

Civil appeal no. 3699 of 2006 

Limitation Act, 1963, Article 137 – Cause of action arises when the real 

dispute arises i.e. when one party asserts and the other party denies 

any right - Cause of action in the present case is the claim of the 

claimant to the determination of base year for the purposes of 

escalation and the calculation made thereon, and the refusal of the 

appellant to pay as per the calculations - Arbitration Act, 1996. 

348 


ORDER 

Pinaki Chandra Ghose, J. – (February 12, 2016) - The present appeal is 

filed by the appellant challenging the judgment and order dated 16.12.2005 

passed by the Division Bench of the High Court of Judicature for Andhra Pradesh 

at Hyderabad, whereby the order dated 6.7.2004, passed by the learned District 

Judge, Vishakhapatnam, was set aside and the arbitration award was confirmed. 

2. The appellant - Rashtriya Ispat Nigam Ltd., which is popularly known 

as Visakhapatnam Steel Plant, is a Government of India Undertaking, inter alia, 

engaged in manufacture and sale of steel products and pig iron in the domestic 

and export markets. Respondent No.1 is a transporter, stevedoring, clearing & 

forwarding agent at Visakhapatnam. The appellant floated a tender vide 

Notification dated 31.03.1992 for transportation of pig iron etc. from its 

Visakhapatnam Steel Plant to the Visakhapatnam Port area. Respondent No.1 

being the successful bidder, was awarded the work order on 28.07.1992. An 

Agreement was entered into between the appellant and respondent No.1 on 

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24.02.1993 which was to expire on 31.03.1993. But owing to circumstances, the 

work was extended several times and the contract was finally completed on 

23.10.1997. Issues arose as to the rate of escalation based on the base year 

1992 or 1994. Respondent No.1 submitted final bill having three annexures out 

of which first two were admitted, however, the appellant rejected the third one 

which was as to deciding the base year for calculating escalation. 

3. The Arbitration Tribunal (consisting of a retired Judge of the High 

Court) decided the five issues framed in favour of the respondent/claimant 

whereby the base year was adjudged as 1992, the bar of limitation was negated 

and the calculations made by the Claimant were upheld. The appellant 

challenged the said award under Section 34 of the Arbitration Act, 1996 before 

the Ld. District Court which set aside the award as the relief was barred by 

limitation. Upon appeal under Section 37 of the Act by the 

respondent/claimant, the High Court set aside the order of the District Judge 

and upheld the award of the Arbitrator. 

4. The appellant/ Employer herein have challenged the said Order of the 

High Court. The bone of contention in this appeal is the question of relief being 

barred by the law of limitation. The appellant submits that the High Court has 

arrived at a wrong conclusion by invoking Article 137 of the Limitation Act, 

1963, and since the contract was in the nature of work contract, Article 18 

would apply. This Article would thereby provide that the right to sue accrued 

when the contract was completed i.e. 23.10.1997 and hence notice for 

arbitration was beyond the period of limitation. The respondent/claimant also 

argued that the dispute as to determination of base year for calculating 

escalation arose vide letter dated 15.7.1996 and hence the notice for arbitration 

was issued beyond the period of limitation. Either ways the cause of action in 

favour of the respondent/claimant accrued, if any, is an imperfect right. 

349 


5. We shall now consider the settled law on the subject. This Court in a 

catena of judgments has laid down that the cause of action arises when the real 

dispute arises i.e. when one party asserts and the other party denies any right. 

The cause of action in the present case is the claim of the respondent/claimant


to the determination of base year for the purposes of escalation and the 

calculation made thereon, and the refusal of the appellant to pay as per the 

calculations. 

350 


6. We find that the view taken by the High Court is correct as to when 

the real dispute arose between the parties to be adjudicated by the Arbitrator. 

It is nobody's case that the contract came to an end on 23.10.1997, but the 

difference on determination of base year first arose in the letter dated 

15.7.1996. The said letter is already controverted as the service of the same was 

seriously contested before in Arbitration. However, the said letter was there 

even before completion of the work and prior to that the respondent/claimant 

had reserved his right to claim money later since the contract was still subsisting 

then. In light of the above reservation by the respondent/claimant, bills were 

raised in 1998 vide letter dated 4.9.1998, which actually resulted into exchange 

of letters which formed the base of dispute between the parties. It is an 

admitted fact that the bills were not finalized as could be seen from the letters 

dated 7.2.2000 and 9.5.2000. Therefore, we find that the findings of the learned 

Arbitrator and concurrently affirmed by the High Court are correct on the point 

that the cause of action arose on or after 4.9.1998. Hence, the said letter by the 

respondent/claimant to the appellant to initiate arbitration was not barred by 

the law of limitation. 

7. Accordingly, the civil appeal is dismissed with no order as to costs. 

- Appeal Dismissed - 

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Present: Justice Pinaki Chandra Ghose and Justice R.K. Agrawal 

STATE OF MAHARASHTRA – Appellant, 

VERSUS 

SYED UMAR SAYED ABBAS & ors. - Respondents. 

Criminal Appeal Nos. 345-346 OF 2012 

(i) Criminal trial – Test identification parade – Incident of 

12.8.1995 - When the incident of firing occurred in the circumstances 

wherein much time was not available for the eye-witnesses to clearly 

see the accused - In such a situation, it was of much more importance 

that the Test Identification Parades were to be conducted without any 

delay - The first Test Identification Parade was held after about 1½ 

months of the incident and the second Test Identification Parade was 

conducted after more than a year of the incident - Even if it is taken 

into account that A12 was arrested after a year and within one month 

thereafter the test Identification Parade was conducted, still it is highly 

doubtful whether the eye-witnesses could have remembered the faces 

of the accused after such a long period - Accused was arrested by the 

first week of September, 1996 and the Test Identification Parade was 

conducted on 4.10.1996 - It is too large a gap for the witness to have 

remembered the face of the accused - Though the incident took place in 

broad daylight, the time for which the eye-witnesses could see the 

accused was not sufficient for them to observe the distinguishing 

features of the accused, especially because there was a commotion 

created after the firing and everyone was running to shelter themselves 

from the firing. [Para 9, 17] 

351 



(ii) Criminal trial – Test identification parade – PW stated that in 

the Test Identification Parade he had identified four persons out of 10- 

12 persons standing in the row - Special Executive Officer deposed that 

he conducted 2 Test Identification Parades on the same day - In the first 

Parade, he placed A1 and one more accused who died later and in the 

second, he placed A3 and A4 for identification - At no point of time, 4 

accused were put together for identification for PW to identify out of 

the whole group - Also, PW1 stated that he had seen the deceased 

receiving a bullet injury on his forehead but as per the postmortem 

report, there was no injury on the forehead of the deceased as he had 

been attacked from behind -Makes the testimony of PW even more 

vulnerable. [Para 9, 10] 

352 


(iii) Criminal trial – PW the first informant stated that he 

witnessed the incident while he was standing in the first floor gallery of 

his building which was abutting the Pandal where the incident took 

place - He also deposed that he had identified A1 and A12 in the Test 

Identification Parades - But it is not clear whether he could have 

witnessed the incident from the first floor as the setting up of the 

Pandal was completed and the work of putting tarpaulin over the 

Pandal was done and only the decoration of the frill was going on - It is 

doubtful whether PW could have witnessed the incident in the state of 

commotion when everyone was running for shelter due to firing. 

[Para 12] 

JUDGMENT 

Pinaki Chandra Ghose, J. – (February 12, 2016 ) These appeals, by 

special leave, have been directed against the judgment and order dated 

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15.9.2009 passed by the High Court of Judicature at Bombay in Criminal Appeal 

No.1133 of 2003 and Criminal Appeal No.1156 of 2003, whereby the High Court 

allowed the criminal appeals filed by the respondents herein and acquitted 

them. 

2. The brief facts necessary to dispose of these appeals are that on 

12.8.1995, at about 3.00 P.M., Rajendra Rajaram Gupta (deceased), who was a 

social worker belonging to a particular political party and had a shop in Mahim 

area of Mumbai, was sitting in Ganesh festival Pandal and was busy talking with 

one Rajaram Sarfare (PW6-injured eye-witness), who was the Contractor for 

decoration of the Ganesh festival Pandal. As per the prosecution story, when 

Rajendra Rajaram Gupta and PW-6 were talking to each other while sitting on 

chairs in the Pandal, two unknown persons entered the Pandal from Kapad 

Bazaar Road, opened fire on Rajendra Rajaram Gupta and pumped many bullets 

in his head, chest and various parts of his body at point blank range. Allegedly, 

the said two assailants were escorted by three other persons. The firing noise 

created commotion in the Pandal and while PW6 tried to run, he was also hit by 

one bullet and he fell down. The assailants managed to escape. The deceased 

Rajendra Rajaram Gupta was taken to Hinduja Hospital immediately, where he 

was declared dead on arrival. The FIR came to be immediately lodged at 4:15 

P.M. by one eyewitness Rajesh Tanaji Akre (PW-5), who happened to have seen 

the incident from the first floor gallery of his residential building which was 

abutting to the said Pandal. 

353 


3. After investigation, charges were framed against 13 accused persons 

(Accused Nos.1 to 13) under Sections 302, 307, 120B read with Section 34 of the 

Indian Penal Code, 1860 (hereinafter referred to as “IPC”) and Sections 25, 27, 

and 29 of the Arms Act, 1959. Accused Nos.2, 5, 6, 8, 10 and 13 had either died 

or were absconding during the trial. Hence, the trial proceeded against the 

remaining accused i.e. Accused Nos.1, 3, 4, 7, 9, 11 and 12. 

4. The Trial Court by its judgment and order dated 23.07.2003 convicted 

Accused Nos.1, 3, 4, 9 and 12 for offences punishable under Sections 302 and 

307 read with Section 120-B of the IPC. Accused Nos.1, 3, 4 and 12 were also


convicted for the offence punishable under Section 27 of the Arms Act, whereas 

Accused No.9 was also convicted for the offence punishable under Section 25 of 

the Arms Act. Original Accused Nos.7 and 11 were acquitted of all the charges. 

The High Court vide the impugned judgment acquitted all the accused of all the 

charges by overturning the judgment of the Trial Court. 

5. The State of Maharashtra has filed these appeals against the acquittal 

of Accused Nos.1, 3, 4, 9 and 12. Learned Additional Government Advocate 

appearing for the State of Maharashtra has inter alia reiterated that the 

judgment of the Trial Court is well reasoned and well considered. The learned 

counsel for the respondents have rebutted the submissions of the appellant by 

relying upon the judgment of the High Court pressing that it had gone deeper 

into the case that the prosecution could not bring home the charges levelled 

against the accused. 

6. The Trial Court convicted the accused respondents on the basis of the 

testimonies of five eye-witnesses - Hemant Parshuram Akre (PW1), Ganesh 

354 


(PW4), Rajesh Tanaji Akre (PW5), Rajaram Sarfare (PW6) and Kishor Maniklal 

Damaniya (PW7), out of which PW6 was the injured eye-witness. The Trial Court 

found their depositions to be corroborative of each other and also in tandem 

with the testimonies of PW18 and PW21, the Special Executive Magistrates, 

who conducted the Test Identification Parade of the accused. The Trial Court 

held that it was conclusively established by the Test Identification Parade and 

eye-witness testimonies that A1 and A12 had fired on the deceased. The 

recovery of the weapon along with the ballistic report further strengthens the 

conclusion. The Trial Court found that the prosecution has proved its case 

beyond reasonable doubt and hence the accused were convicted of the 

offences charged after being found guilty. 

7. However, the High Court pointed out serious lacunae in the above 

said evidences and hence the conviction order was set aside and the benefit of 

doubt was given to the accused. The High Court is of the view that the Trial 

Court had placed unwarranted reliance on the Test Identification Parades in 

arriving at the guilt of the accused when the same suffered major discrepancies 

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along with the inconsistencies of the depositions of the eyewitnesses to that of 

the injured eyewitness’ testimony. 

8. We have perused the documentary and oral evidences on record and 

gone through the submissions of both - the appellant State as well as the 

respondents. We shall now examine each and every contention in light of the 

arguments adduced before us in the Court. In our considered view, the main 

issue in the case is whether the identity of the accused was properly established 

with the aid of the testimonies of the eyewitnesses and whether the Test 

Identification Parades were conducted properly. All the other evidences are 

secondary and need to be examined only if the accused can be linked to the 

crime. To decide the same we shall analyse the depositions of the eyewitnesses. 

9. There are five eye-witnesses, including the injured eyewitness. We 

shall peruse their statements one by one. PW1 allegedly recognized two 

persons, who shot at the deceased and the injured PW6, as A1 and A12, but his 

evidence suffers few infirmities. He stated that he first heard some shots and 

then some noise like bursting of firecrackers and saw the accused firing at PW6 

when he was running towards the Police Chowky nearby. The major 

inconsistency is with respect to his deposition regarding the Test Identification 

Parade. He stated that in the Test Identification Parade held on 30.8.1995, at 

Arthur Road Prison, he had identified four persons out of 10-12 persons 

standing in the row. According to the prosecution, the Test Identification Parade 

was conducted by PW21 (Special Executive Officer) on 30.9.1995. Even if it is 

presumed that the date was stated to be incorrect by mistake, the fact remains 

that PW21 deposed that he conducted 2 Test Identification Parades on that day. 

In the first Parade, he placed A1 and one more accused who died later and in 

the second, he placed A3 and A4 for identification. At no point of time, 4 

accused were put together for identification for PW1 to identify out of the 

whole group. This contradiction shows that it is not clear as to whether he 

rightly identified the accused. Also, he stated that in another parade held after 

almost a year, he identified A12. That parade was conducted by PW18 (another 

Special Executive Officer). We are aware that A12 was arrested by the first week 

355 



of September, 1996 and thus the Test Identification Parade was conducted on 

4.10.1996, but it is too large a gap for PW1 to have remembered his face. 

10. Also, PW1 had stated that he had seen the deceased receiving a 

bullet injury on his forehead but as per the postmortem report, there was no 

injury on the forehead of the deceased as he had been attacked from behind. 

This makes the testimony of PW1 even more vulnerable. 

11. We now proceed to peruse the evidence of PW4 another eyewitness, 

who was the son of the deceased and was sitting in his grocery shop at 

the time of the incident and was making payment to one Bhatia who was not 

examined by the prosecution. Even PW4 heard the noise of bursting of some 

crackers and then he could see what was happening in the Pandal and he 

recognized A1 in the parade conducted by PW21 on 30.9.1995 and A12 in the 

parade conducted by PW18 on 4.10.1996. 

12. PW5 is the first informant who stated that he witnessed the incident 

while he was standing in the first floor gallery of his building which was abutting 

356 


the Pandal. He also deposed that he had identified A1 and A12 in the Test 

Identification Parades conducted by PW21 and PW18, respectively. But it is not 

clear whether he could have witnessed the incident from the first floor as the 

setting up of the Pandal was completed and the work of putting tarpaulin over 

the Pandal was done and only the decoration of the frill was going on. It is also 

pertinent to note that PW5 deposed before the Court that he does not 

remember the physical appearance of both the suspects seen by him on the 

date of incident. It is doubtful whether PW5 could have witnessed the incident 

in the state of commotion when everyone was running for shelter due to firing. 

13. PW6 is the injured eye-witness who sustained bullet injuries. He 

deposed that he could not see any of the accused and while he was talking to 

the deceased, he received a bullet injury and fell unconscious. He stated nothing 

about the fact that he was running to the Police Chowky when he got injured. 

To that extent his testimony does not support the case of the prosecution as the 

other prosecution witnesses stated that they saw the accused falling down due 

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to the injury while he was running towards the Police Chowky. 

14. The prosecution adduced the testimony of PW7 as an eyewitness, 

but PW7 did not identify any of the accused/ respondents in the Test 

Identification Parade which can be concluded from the substantive evidence. 

15. The recovery of arms need not be discussed by us in detail as the 

same has already been discussed by the High Court to arrive at the conclusion 

that it is not trustworthy and incriminating against the respondents. 

16. Learned counsel for the accused/respondents has cited the decision 

of this Court in Siddanki Ram Reddy v. State of Andhra Pradesh,*** [(2010) 7 

SCC 697] wherein it was held: 

“When an attack is made on the injured/deceased by a mob in a 

crowded place and the eyewitnesses had little time to see the accused, 

the substantive evidence should be sufficiently corroborated by a test 

identification parade held soon after the occurrence and any delay in 

holding the test identification parade may be held to be fatal to the 

prosecution case.” 

17. It is very clear that in the present case the incident of firing occurred 

in the circumstances wherein much time was not available for the eye-witnesses 

to clearly see the accused. In such a situation, it was of much more importance 

that the Test Identification Parades were to be conducted without any delay. 

The first Test Identification Parade was held by PW21 after about 1½ months of 

the incident. The second Test Identification Parade was conducted by PW18 

after more than a year of the incident. Even if it is taken into account that A12 

was arrested after a year and within one month thereafter the test 

Identification Parade was conducted, still it is highly doubtful whether the eyewitnesses 

could have remembered the faces of the accused after such a long 

period. Though the incident took place in broad daylight, the time for which the 

eye-witnesses could see the accused was not sufficient for them to observe the 

distinguishing features of the accused, especially because there was a 

commotion created after the firing and everyone was running to shelter 

357 



themselves from the firing. 

18. In view of the discussion in the foregoing paragraphs, we are of the 

considered view that the testimonies of the witnesses suffer various infirmities 

and contradictions and the Test Identification Parade was not conducted 

properly and was delayed. The High Court is, therefore, correct in giving the 

benefit of doubt to the accused as their identity had not been clearly 

established by the prosecution. 

19. Thus, in the light of the above discussion, we find no grounds to 

interfere with the judgment passed by the High Court. The appeals are, 

accordingly, dismissed. 

SS - Appeal Dismissed 

358 


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Present: Justice V. Gopala Gowda and Justice Uday Umesh Lalit 

AIR CUSTOMS OFFICER, IGI NEW DELHI – Appellant, 

Versus 

PRAMOD KUMAR DHAMIJA – Respondent. 

Criminal Appeal No. 123 of 2016 

(Arising out of the SLP(Crl.) No. 7767 of 2011) 

Constitution of India, Article 20(2) - Sea Customs Act – Exoneration in 

related adjudication proceedings and the effect thereof on criminal 

proceedings - Plea that the finding of the Collector of Customs that the 

accused are not proved to be guilty operated as estoppel in the criminal 

case against the accused - Adjudicating proceedings were initiated 

pursuant to the show cause notice and Order was passed by the 

Additional Commissioner of Customs imposing penalty on the accused - 

Commissioner of Customs (Appeal) set aside the penalty - Petition 

under Section 482 of the Criminal Procedure Code filed seeking 

quashing - Exoneration of the respondent in the adjudication 

proceedings was the basis for petition under Section 482 Cr.P.C. – 

Accused was declared “proclaimed offender” - Accused was declared a 

proclaimed offender and had not participated in any of the proceedings 

personally - In the circumstances no weightage could be given to copies 

of the passport submitted in support of the assertion that he had not 

visited India - Statement of VS did allege the involvement of the 

respondent - In law, if such statement is otherwise admissible and 

reliable, conviction can lawfully rest on such material – Quashing order 

passed by High Court set aside. 

359 


JUDGMENT


Uday U. Lalit, J. – (February 15, 2016) - Leave granted. 

2. This appeal challenges the judgment and order dated 04.1.2011 

passed by the High Court of Delhi at New Delhi in Crl. M.C. No.460 of 2009. 

3. That the facts leading to the filing of this appeal are as under:- 

(A) On the basis of specific information, AIR Customs Officers 

(Preventive) at IGI Airport, New Delhi, on 09.07.1996 recovered and seized from 

meal trolleys of the aircraft of Lufthansa Airlines flight from Frankfurt to Delhi, 

184 gold biscuits of ten tolas each, weighing 21454.400 grams valued at 

Rs.1,09,84,652/- concealed in the meal trolleys by two passengers, named 

Varyam Singh and Ranbir Singh. In their statements, Varyam Singh and Ranbeer 

Singh admitted the recovery and seizure of gold and named other persons 

involved in the incident. Varyam Singh, inter alia, disclosed the name of one 

Pramod Kumar i.e. the respondent herein who invested the money with him in 

the seized gold as well as the gold smuggled on earlier occasions. 

360 


(B) Varyam Singh further stated that on 6.07.1996, Ranbeer Singh and 

he went to Dubai where the respondent delivered two packets of gold; that 

they went to Frankfurt; that in the flight from Frankfurt to Delhi with the help of 

Ranbeer Singh, he put both the packets in dry ice trays and as per 

prearrangement these packets were to be removed and delivered to him near 

Moti Bagh Gurudwara by the catering staff and that he had agreed to pay Rs. 

50,000/- for this job to that person; that he had to hand over this gold to the 

respondent and in return he was to get Rs. 2,00,000/- out of the profit; that his 

share of investment in the gold seized on 9.7.1996 was Rs.Thirty Two lacs and 

that the balance was invested by the respondent. He admitted that earlier he 

had gone to Frankfurt via Dubai and come back to Delhi on six occasions and 

brought gold in the same manner. The authorities recorded the statements of 

all the persons involved. However, the statement of the respondent could not 

be recorded as inspite of numerous summons, he did not cooperate with the 

investigating authorities and remained in hiding. 

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(C) The Commissioner of Customs, Delhi accorded sanction on 

04.09.1996 for the prosecution of the respondent, Varyam Singh, Ranbeer Singh 

and four others and accordingly Complaint No. 66/1/96 was filed in the Court of 

ACMM, New Delhi. The respondent was declared “proclaimed offender” by the 

Ld. ACMM, New Delhi in the subject case. 

(D) In the meantime adjudicating proceedings were initiated pursuant 

to the show cause notice to the respondent. Order in Original No. 66/99 dated 

30.09.1999 was passed by the Additional Commissioner of Customs, IGI Airport, 

New Delhi imposing penalty of Rs.15 lacs on the respondent. 

Following observations in the said order are noteworthy:- 

“In response to summons Shri Kanwar Bhan appeared before the 

Customs authorities and he in his further voluntary statement dated 

30.8.1996 recorded under Section 108 of the Customs Act, 1962, stated 

that he was shown the record of details of call charges of Mobile phone 

number 9811028643 obtained from Essar Cell Phone mobile phone 

services, that on 21.04.1996 and 27.04.1996 telephone calls were made 

to telephone number 6914037; that he had been told that telephone 

number 6914037 belonged to Shri Varyam Singh and was his residence 

number and who had been arrested for smuggling of 184 gold biscuits. 

On being asked about that he stated that neither did he know any 

person by name of Shri Varyam Singh nor his telephone number on 

being asked about as to how telephone calls were made to telephone 

number 6914037 on 21.04.1996 three times and one time on 

27.04.1996 from his mobile phone, he stated that he did not know the 

exact date but in the month of April, 1996, his younger brother Shri 

Pramod Kumar came to Delhi from Dubai as his mother was seriously ill, 

it might be possible that Shri Pramod Kumar had made four calls from 

his (Kanwar Bhan) mobile phone to telephone number 6914037 

belonging to Shri Varyam Singh as he did not know Shri Varyam Singh 

361 



and his telephone number.” 

(E) The aforesaid order dated 30.09.1999 was carried in appeal and the 

Commissioner of Customs (Appeal) vide his order dated 25.01.2008 set aside 

the penalty imposed on the respondent. The Appellate Authority was of the 

view that there were two persons having same name i.e. Pramod Kumar, one in 

Dubai and the second being the respondent and that beyond the statement of 

the co-accused there was no material on record. During the course of this order 

it was observed as under:- 

“If the investment was made by Shri Pramod Kumar of Dubai, 

then it cannot be linked to the appellant. The department has not made 

Shri Pramod Kumar of Dubai a party in the case and nothing is on record 

to suggest that efforts were made to trace and identify Shri Pramod 

Kumar of Dubai and how the telephone number in Dubai i.e. 531228 is 

linked to the appellant. 

362 


Thus there is only the lone statement of Shri Varyam Singh 

alleging the involvement of the appellant and is not corroborated by the 

statement of any other person or by any documentary evidence. On the 

other hand the claim of the appellant that he had left India on 

06.09.1994 and since then he has not visited India again is corroborated 

by the statements of various persons tendered under Section 108 of the 

Customs Act 1962 and also by documentary evidence i.e. copies of his 

passports. No other person involved in the case has mentioned anything 

about the appellant. Thus the statement of Shri Varyam Singh who 

himself accepted as evidence whereas the claim of the appellant is 

supported by way of corroborative statements under Section 108 of the 

Customs Act 1962 and documentary evidence is acceptable as credible 

evidence in his favour. Moreover the appellant has not laid any claim on 

the impugned gold under seizure in this case. 

Keeping the above in view the finding of the Adjudicating Authority 

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about the appellant are not fair, legal and based on facts and hence the 

penalty imposed on the appellant is hereby set aside.” 

(F) Based on the observations and findings rendered in the aforesaid 

order dated 25.01.2008, a petition under Section 482 of the Criminal Procedure 

Code being Crl. M.C. No. 460 of 2009 was filed on behalf of the respondent in 

the High Court of Delhi at New Delhi. It is relevant to note that in the petition 

itself two addresses of the respondent were given, one of Dubai and the other 

of Delhi. The affidavit in support of the petition was filed by none other than 

Shri Kanwar Bhan, the brother of the respondent. It was submitted on behalf of 

the Department that the respondent had not joined investigation and as such 

the instant petition did not deserve any consideration and that there were not 

two Pramod Kumars but only one person having two addresses. The High Court 

by its judgment and order under appeal, allowed the petition and quashed 

Complaint No.66/1/96 pending before the Additional Chief Metropolitan 

Magistrate, New Delhi. It was observed by the High Court as under:- 

“The entire evidence sought to be relied upon by the respondent 

department against the petitioner is the same, that was before the 

Appellate Authority and since the Appellate Authority had considered 

the entire evidence and come to above conclusion, I consider that no 

useful purpose would be served by continuing with the prosecution 

against the petitioner before the trial court.” 

363 


4. The exoneration of the respondent in the adjudication proceedings 

was the basis for petition under Section 482 Cr.P.C. and such exoneration 

certainly weighed with the High Court. In Collector of Customs v. L.R. Melwani, 

(1969) 2 SCR 438 , question Nos.1 & 2 posed before the Constitution Bench of 

this Court were as under:- 

“(i) Whether the prosecution from which these criminal revision 

petitions arose is barred under Article 20(2) of the Constitution as 

against accused 1 and 2 in that case by reason of the decision of the


Collector of Customs in the proceedings under the Sea Customs Act? 

(ii) Whether under any circumstance the finding of the Collector 

of Customs that the 1st and 2nd accused are not proved to be guilty 

operated as in issue estoppel in the criminal case against those 

accused?” 

5. The observations of the court in respect of aforesaid questions were 

as under:- 

“8…… The rule laid down in that decision was adopted by this Court in 

Pritam Singh v. State of Punjab, and again in N.R. Ghose v. State of W.B. 

364 


But before an accused can call into aid the above rule, he must establish 

that in a previous lawful trial before a competent court, he has secured 

a verdict of acquittal which verdict is binding on his prosecutor. In the 

instant case for the reasons already mentioned, we are unable to hold 

that the proceeding before the Collector of Customs is a criminal trial. 

From this it follows that the decision of the Collector does not amount 

to a verdict of acquittal in favour of accused 1 and 2.” 

6. A subsequent three-Judge Bench in K.G. Premshankar v. Inspector of 

Police, (2002) 8 SCC 87 considered the effect of the decision of a civil court on 

criminal proceedings and it was concluded as under:- 

“30…. What emerges from the aforesaid discussion is – (1) the 

previous judgment which is final can be relied upon as provided under 

Sections 40 to 43 of the Evidence Act; (2) in civil suits between the same 

parties, principle of res judicata may apply; (3) in a criminal case, 

Section 300 Cr.P.C. makes provision that once a person is convicted or 

acquitted, he may not be tried again for the same offence if the 

conditions mentioned therein are satisfied; (4) if the criminal case and 

the civil proceedings are for the same cause, judgment of the civil court 

would be relevant if conditions of any of Sections 40 to 43 are satisfied, 

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but it cannot be said that the same would be conclusive except as 

provided in Section 41. Section 41 provides which judgment would be 

conclusive proof of what is stated therein. 

31. Further, the judgment, order or decree passed in a previous 

civil proceeding, if relevant, as provided under Sections 40 and 42 or 

other provisions of the Evidence Act then in each case, the court has to 

decide to what extent it is binding or conclusive with regard to the 

matter(s) decided therein…. 

32. In the present case, the decision rendered by the 

Constitution Bench in M.S. Sheriff case would be binding, wherein it has 

been specifically held that no hard-and-fast rule can be laid down and 

that possibility of conflicting decision in civil and criminal courts is not a 

relevant consideration. The law envisages 

‘such an eventuality when it expressly refrains from making the decision 

of one court binding on the other, or even relevant, except for limited 

purpose such as sentence or damages’”. 

7. The exoneration in related adjudication proceedings and the effect 

thereof on criminal proceedings again came up for consideration before a three- 

Judge Bench of this Court in Radheshyam Kejriwal v. State of West Bengal and 

Another , (2011) 3 SCC 581. In his dissenting opinion P. Sathasivam, J. (as the 

learned Chief Justice then was) concluded that there was nothing in Foreign 

Exchange Regulation Act, 1973 to indicate that a finding in adjudication is 

binding on a court in prosecution under Section 56 of Act or that the 

prosecution under Section 56 depended upon the result of the adjudication 

under the Act. C.K. Prasad J., speaking for the majority summed up as under:- 

365 


“38. The ratio which can be culled out from these decisions can 

broadly be stated as follows:- 

(i) Adjudication proceedings and criminal prosecution can be


launched simultaneously; 

(ii) Decision in adjudication proceedings is not necessary before 

initiating criminal prosecution; 

(iii) Adjudication proceedings and criminal proceedings are 

independent in nature to each other; 

(iv) The finding against the person facing prosecution in the 

adjudication proceedings is not binding on the proceeding for criminal 

prosecution; 

(v) Adjudication proceedings by the Enforcement Directorate is 

not prosecution by a competent court of law to attract the provisions of 

Article 20(2) of the Constitution or Section 300 of the Code of Criminal 

Procedure; 

(vi) The finding in the adjudication proceedings in favour of the 

366 


person facing trial for identical violation will depend upon the nature of 

finding: If the exoneration in adjudication proceedings is on technical 

ground and not on merit, prosecution may continue; and 

(viii) In case of exoneration, however, on merits where the 

allegation is found to be not sustainable at all and the person held 

innocent, criminal prosecution on the same set of facts and 

circumstances cannot be allowed to continue the underlying principle 

being the higher standard of proof in criminal cases.” 

8. The majority judgment in Radheyshyam Kejriwal v. State of West 

Bengal and Another, (2011)3 SCC 581 is relied upon by the respondent in 

support of the submission that the exoneration in the present case being on 

merits, criminal prosecution on the same set of facts ought not to be allowed to 

continue. Ms. Ranjana Narayan, learned Advocate appeared for the appellant 

while Mr. Naveen Malhotra, learned Advocate appeared for the respondent. We 

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have considered rival submissions and gone through the record which brings 

out following crucial facets :- 

(a) The order in original dated 30.09.1999 referred to the statement of 

Kanwar Bhan, the brother of the respondent, which clearly suggests that the 

respondent had come down to Delhi in April, 1996. This statement is not even 

referred to in the appellate order dated 30.09.1999 but a finding is rendered 

that the respondent had not visited India after September, 1994. 

(b) The respondent was declared a proclaimed offender and had not 

participated in any of the proceedings personally. In the circumstances no 

weightage could be given to copies of the passport submitted in support of the 

assertion that he had not visited India after September 1994. 

(c) The appellate order further discloses that the statement of Varyam 

Singh did allege the involvement of the respondent. In law, if such statement is 

otherwise admissible and reliable, conviction can lawfully rest on such material. 

(d) The finding in the appellate order that there were two Pramod 

Kumars, is completely incorrect and unstateable. 

367 


In the back drop of these facts it cannot be accepted that the 

exoneration of the respondent in the adjudication proceeding was on merits or 

that he was found completely innocent. 

9. Considering the facts and circumstances of the case, we are of the 

view that the High Court was not right and justified in accepting the prayer for 

quashing of the proceedings. We, therefore, allow this appeal and set-aside the 

view taken by the High Court. Case No. 66/1/96, on the file of the ACMM, New 

Delhi, shall be proceeded with, in accordance with law. 

SS - High court order set aside




Present: Justice V. Gopala Gowda and Justice Uday Umesh Lalit 

DEEPAK SURANA and Ors. – Appellants, 

Versus 

STATE OF MADHYA PRADESH - Respondent. 

Criminal Appeal No. 128 of 2016 (Arising out of SLP(Crl.) No. 8816 of 2011) 


368 


Section 15 read with Section 120B of the IPC – Release of land from 

acquisition – Subsequently agreements for sale of certain parcels were 

said to have been executed - Though the intending purchasers in said 

four agreements were stated to be the appellants herein, the 

agreements in question were not signed by the appellants - The 

agreements were signed only by the prospective vendors namely, the 

owners of the land – FIR lodged by the Lokayukta that land was 

released conferring undue advantage upon the owners of the land 

under under provisions of the Prevention of Corruption Act, 1988 read 

with Section 120B of the IPC – Agreements relied upon by the 

prosecution do not bear the signatures of the appellants - True that in 

Aloka Bose v. Parmatma Devi , it has been observed that an agreement 

of sale signed by the vendor alone is enforceable by the purchaser 

named in the agreement - Question here is whether the appellants 

could be said to be involved in the conspiracy - The agreements in 

question were not even recovered from the custody of the appellants 

and were recovered from the vendors themselves - Agreements being 

unilateral and not bearing the signatures of the appellants, mere 

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execution of such agreements cannot be considered as a relevant 

circumstance against the appellants - Nothing on record to indicate 

that the consideration mentioned in the agreement could be traced to 

the appellants, nor is there any statement by any of the witnesses 

suggesting even proximity or meeting of minds between the appellants 

and any of the other accused - High Court was not justified in setting 

aside the order passed by the Special Judge. 

ORDER 

Uday U. Lalit, J. – (February 08, 2016) - Leave granted. 

2. This appeal challenges the judgment and order dated 01.10.2011 

passed by the High Court of Madhya Pradesh, Jabalpur in Criminal Revision 

No.649 of 2008. The High Court was pleased to set aside the order passed by 

the Special Court discharging the present appellants of the charges leveled 

against them. 

3. Land admeasuring about 22.56 acres, situated at Mumbai-Agra Road 

in Indore belonging to one Smt. Sohan Kumari Sankhla and her son was subject 

matter of acquisition by the Indore Town Improvement Trust (subsequently, 

Indore Development Authority). The challenge in that behalf was pending in the 

High Court of Madhya Pradesh in Writ Petition No.1181 of 1988, during which 

pendency, a proposal was initiated by the then Additional Secretary in the 

Department of Housing on behalf of the State Government to release 7 acres of 

land to the land owners on no profit no loss basis. In view of such proposal, the 

aforesaid Writ Petition was disposed of by the High Court vide order dated 

13.05.1996 directing Indore Development Authority to take appropriate 

decision in accordance with law. 

369 


4. Soon thereafter, four agreements for sale of certain parcels from the 

aforesaid land, admeasuring 5.50 acres in all, were said to have been executed. 

Though the intending purchasers in said four agreements were stated to be the


appellants herein, the agreements in question were not signed by the 

appellants. The agreements were signed only by the prospective vendors 

namely, the aforesaid owners of the land. 

5. Despite the aforesaid disposal of the Writ Petition by order dated 

13.05.1996, since nothing was done in the matter, the land owners filed Writ 

Petition No.1437 of 1996 in the High Court submitting inter-alia that Indore 

Development Authority was avoiding implementation of the direction issued by 

the State Government. While this matter was so pending, a Public Interest 

Litigation being Writ Petition No. 511 of 1997 was filed challenging the decision 

of the State Government to release a portion of the land. This Writ Petition 

prayed for direction that the lands from the scheme of Indore Development 

Authority should not be permitted to be released. The High Court had issued 

notice in the matter and granted ex parte stay as prayed for. 

6. Around this time, an FIR came to be lodged by Special Police 

370 


Establishment, Lokayukta after conducting preliminary investigation. The basic 

allegations in this FIR dated 31.03.1998 were to the effect that a conspiracy was 

hatched between certain public servants including the then Ministers, 

Additional Secretary and the owners of the land. The object of that conspiracy 

was stated to be conferring undue advantage upon the owners of the land. The 

FIR alleged commission of offences punishable under Sections 13(1)(d) read 

with 13(2), Section 15 of the Prevention of Corruption Act, 1988 read with 

Section 120B of the IPC. It is relevant to note that the names of the appellants 

do not find any mention in this FIR. 

7. After due investigation, Special Police Establishment, Lokayukta filed 

charge sheet in Special Case No.9 of 1998 arising from the aforesaid FIR in the 

Court of Special Judge, Bhopal against 18 accused persons. The appellants were 

arrayed as accused in this charge sheet. 

8. The Special Judge, Bhopal after considering the entire material on 

record came to the conclusion that there was no material to proceed against 

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the appellants and therefore he discharged the appellants of the charges 

leveled against them. He, however, framed charges against rest of the accused 

persons including the public servants and the owners of the land. It was 

observed by the Special Judge that names of the appellants were neither 

mentioned in the FIR nor in the original complaint, that the agreements relied 

upon by the prosecution were unilateral in the sense that they did not bear the 

signatures of the appellants and that there was no mention how the alleged 

consideration was transferred. The Special Judge thus found that no case was 

made out by the prosecution to frame appropriate charges against the 

appellants and he thus vide his order dated 15.01.2008 discharged the 

appellants. 

9. The aforesaid order of the Special Judge was challenged by the State 

in Criminal Revision No.649 of 2008. By the judgment and order under appeal, 

the High Court allowed the said Revision. It was observed that merely because 

the agreement of sale did not bear the signatures of the appellants it would not 

mean that the agreements could not be relied upon. Certain material furnished 

by the appellants in support of their case was not taken into account by the 

High Court on the ground that the material furnished by the accused could not 

be considered at the stage of framing of charge. 

371 


10. This appeal challenges the correctness of the decision of the High 

Court. We have heard Mr. K. K. Venugopal, learned Senior Advocate in support 

of the appeal and Mr. Naveen Sharma, learned Advocate for the respondent- 

State. We have gone through the entire record and considered rival 

submissions. 

11. In the present case, the agreements relied upon by the prosecution 

do not bear the signatures of the appellants. It is undoubtedly true that in Aloka 

Bose v. Parmatma Devi, AIR 2009 SC 1527 it has been observed that an 

agreement of sale signed by the vendor alone is enforceable by the purchaser 

named in the agreement. But the question here is whether the appellants could


be said to be involved in the conspiracy. The agreements in question were not 

even recovered from the custody of the appellants and were recovered from 

the vendors themselves. The agreements being unilateral and not bearing the 

signatures of the appellants, mere execution of such agreements cannot be 

considered as a relevant circumstance against the appellants. There is nothing 

on record to indicate that the consideration mentioned in the agreement could 

be traced to the appellants, nor is there any statement by any of the witnesses 

suggesting even proximity or meeting of minds between the appellants and any 

of the other accused. In the circumstances, the view that weighed with the 

Special Judge was quite correct. The High Court was not justified in setting aside 

the order passed by the Special Judge. In our considered view, the material on 

record completely falls short of and cannot justify framing of charges against the 

appellants. 

12. We, therefore, set aside the decision taken by the High Court in the 

judgment under appeal and restore the order dated 15.1.2008 passed by the 

372 


Special Judge in Special Case No. 9/98. The appeal is thus allowed. 

SS - Appeal allowed 

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Pre sent: Justice T.S. Thakur, CJI and Justice R. Banumathi. 

NASHIK MUNICIPAL CORPORATION – Appellant, 

Versus 

M/S. R.M. BHANDARI & ANR. – Respondents. 

Civil Appeal No. 1856 OF 2016 (Arising out of SLP (C) No.12330 of 2011) 

Civil Procedure Code, 1908, Section 148 - Whether or not the court has 

the discretion to enlarge the time for doing any act prescribed by the 

Code or allowed by the Code under section 148 - High Court imposed 

the cost of Rs.25,000/- upon the appellant as a condition precedent for 

restoration of the execution petition - Not deposited in time as per the 

order of the High Court - High Court did not allow extention of time - 

In terms of Section 148 C.P.C. court has the discretion to extend the 

time - The words “not exceeding thirty days in total” have been inserted 

by the C.P.C. (Amendment) Act, 1999 - If the act could not be performed 

within thirty days for the reasons beyond the control of the parties, the 

time beyond maximum thirty days can be extended under Section 151 

C.P.C. - What was important was whether the appellant has made out a 

case for extension based on which time can be extended. 

373 


JUDGMENT 

R. BANUMATHI, J. - (February 26, 2016) -Leave granted. 

2. The present appeal impugns the order of High Court of Judicature at 

Bombay dismissing Civil Application No.2305 of 2010 in Writ Petition No.1077 of 

2010, filed by the appellant declining to extend the time in depositing the cost 

of Rs.25,000/- in terms of the order dated 03.05.2010 passed by the High Court 

in the said Writ Petition No.1077 of 2010. 

3. There has been a chequered history of litigation between the parties 

for about two decades leading to filing of the present appeal. The appellant 

being a municipal corporation had invited public tender for construction and 

concreting of the area from Gadage Maharaj Bridge to Rokadoba Sandwa, to

374 



which the respondents emerged as successful bidders. The respondents were to 

commence the work on 23.01.1990 and the same was to be completed on or 

before 22.10.1990. However, the respondents did not show any progress in the 

work and consequently the appellant-corporation withdrew the work from the 

respondents and allotted the same to M/s. N.H. Company Pvt. Ltd. for the 

purpose of getting the work completed, for which the appellant suffered an 

excess amount of Rs.29,76,740/-. 

4. The appellant-corporation filed a suit being Special Civil Suit No.339 

of 1991 against the respondents seeking recovery of the said amount before the 

Civil Judge (Senior Division), Nashik. The respondents also preferred Special Civil 

Suit No.171 of 1991 against the appellant for a declaration and recovery of 

amount before the Civil Judge (Senior Division), Nashik. The court disposed of 

both the suits vide common judgment dated 18.10.1994 thereby decreeing the 

suit of the appellant and dismissed the suit filed by the respondents. The court 

directed the respondents to pay an amount of Rs.29,40,366/- to the appellant 

alongwith interest at the rate of 18% per annum. Being aggrieved, the 

respondents filed the appeal being First Appeal No.344 of 1995 challenging the 

decree dated 18.10.1994 before the High Court of Bombay. Alongwith the 

appeal, the respondents also filed Civil Application No.2330 of 1995 for stay of 

the decree. Vide order dated 12.06.1995, the High Court granted stay of the 

decree on condition that the respondents will deposit the entire decretal 

amount before the lower court within eight weeks failing which the stay shall 

stand vacated automatically. The respondents did not deposit the decretal 

amount. Thereafter, the said First Appeal No.344 of 1995 was dismissed as 

withdrawn vide order dated 13.01.2009. 

5. The appellant had preferred an execution petition in Special Darkhast 

No.49 of 2002 for execution of the decree dated 18.10.1994. The said execution 

petition was dismissed for default of the decree holder vide order dated 

29.07.2006. The appellant then preferred C.M.A. No.155 of 2006 on 28.08.2006 

seeking restoration of the execution petition. Relying upon the judgment in 

Mhatarba Laxman Dongare (Dead) thr. L.Rs v. Central Bank of India and Ors., 

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reported in 2005 (2) ALL. M.R. 742, the executing court vide order dated 

29.10.2007 declined to restore the execution petition-Special Darkhast No.49 of 

2002. The appellant then preferred the second execution petition being Special 

Darkhast No.40 of 2008 and the same was dismissed as being barred by 

limitation. 

6. The appellant challenged the said order of the executing court in Writ 

Petition No.6622 of 2009. While the said writ petition was pending, the 

appellant also filed another Writ Petition No.1077 of 2010 challenging the order 

dated 29.10.2007 passed by the executing court rejecting the appellant’s 

application for restoration of the earlier Special Darkhast No.49 of 2002. Both 

the writ petitions were disposed of by the High Court by the common judgment 

dated 03.05.2010 and the High Court allowed the writ petition No.1077 of 2010 

and the order dated 29.10.2007 passed by the executing court was set aside and 

Special Darkhast No.49 of 2002 was restored. However, the High Court imposed 

the cost of Rs.25,000/- upon the appellant as a condition precedent for 

restoration of the execution petition. Challenging the said order dated 

03.05.2010, respondents preferred SLP (C) No.21975 of 2010 before this Court 

and the said SLP was dismissed as withdrawn vide order dated 16.08.2010. 

7. Pursuant to the order passed in W.P. No.1077/2010, the appellantcorporation 

filed applications before the executing court on 30.06.2010 

requesting the court to accept the cost of Rs.25,000/- and to restore Special 

Darkhast No.49 of 2002. Those applications were rejected by the executing 

court interalia stating that the time limit granted by the High Court was over on 

28.06.2010 and that the court had no power to extend the time granted by the 

High Court. In these circumstances, the appellant preferred Civil Application 

No.2305 of 2010 in Writ Petition No.1077 of 2010 under Section 148 C.P.C. 

seeking extension of time for depositing the cost of Rs.25,000/- and the same 

was dismissed by the impugned order. 

8. Learned counsel for the appellant Mr. S.M. Jadhav submitted that the 

High Court erred in not taking note of the explanation given by the appellant for 

the delay in depositing the cost and the High Court was not justified in 

375 


376 



dismissing the application. It was contended that the High Court failed to 

consider that the right of the appellant for invoking the jurisdiction of the court 

under Section 148 C.P.C. is an independent right and the same cannot be 

curtailed in view of the order passed by this Court in SLP (C) No.21975 of 2010. 

It was further submitted that the High Court failed to consider that withdrawal 

of the first appeal by the respondent before the High Court was at their own risk 

and the appellant’s right to restore the execution petition cannot be curtailed 

on that basis. 

9. Per contra, learned counsel for the respondents Mr. Aniruddha P. 

Mayee submitted that the appellant offered a vague explanation for the delay in 

depositing the cost and the appellant cannot take advantage of its own wrong. 

It was further contended that since the execution petition was dismissed, the 

respondents have withdrawn the first appeal and by restoration of the 

execution petition at this distant point of time the respondents cannot be 

rendered remediless and the learned counsel prayed for liberty to restore the 

first appeal. 

10. Upon consideration of the rival contentions, the point falling for 

consideration is whether or not the court has the discretion to enlarge the time 

for doing any act prescribed by the Code or allowed by the Code. 

11. Section 148 C.P.C. provides for enlargement of the time by the 

court. Section 148 C.P.C. reads as under: 

S.148. Enlargement of time.- Where any period is fixed or granted by 

the Court for the doing of any act prescribed or allowed by this Code, the Court 

may, in its discretion, from time to time, enlarge such period not exceeding 

thirty days in total, even though the period originally fixed or granted may have 

expired. 

A plain reading of the above would show that when any period or time 

is granted by the court for doing any act, the court has the discretion from time 

to time to enlarge such period even if the time originally fixed or granted by the 

court has expired. Previously discretion was given to the court to enlarge the 

period fixed or granted by the court for any act prescribed or allowed by the 

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Code. The C.P.C. (Amendment) Act, 1999 puts a limit of thirty days on the 

enlargement of such period. The words “not exceeding thirty days in total” have 

been inserted with a view to curtail procedural delay caused by any party to the 

suit or proceeding. Enlargement of time, whether one-time or phased, cannot 

exceed thirty days. 

12. Considering the reason for the delay in depositing the cost, as 

noticed earlier, the High Court allowed the Writ Petition No.1077 of 2010 vide 

order dated 03.05.2010 and restored the Special Darkhast No.49 of 2002 subject 

to the payment of cost of Rs. 25,000/- to the respondents within a period of 

eight weeks from the date of the order. The appellant stated that the copy of 

the order dated 03.05.2010 was received in the office of its Legal Department 

on 12.05.2010 and the Accounts Department gave its approval for the payment 

of cost on 26.05.2010. The Legal Department thereafter prepared voucher/bill 

for the amount of Rs.25,000/- for being paid in the name of Civil Judge (Senior 

Division), Nashik and the same was approved on 03.06.2010 and after 

completing the procedural formalities, the Accounts Department issued the 

cheque on 15.06.2010. It is further averred that the applications were presented 

before the executing court to accept the cheque on 30.06.2010 and the said 

applications were dismissed interalia holding that the time limit granted by the 

High Court was over on 28.06.2010 and the executing court had no power to 

extend the time granted by the High Court. The executing court was correct in 

saying that it could not extend time for depositing the cost as the same had 

been stipulated by the High Court. The High Court has declined to extend the 

time mainly on the ground that the SLP(C) No.21975 of 2010 filed by the 

respondents was dismissed as withdrawn and that the respondents have lost 

their right to challenge the order passed by the Court in Writ Petition No.1077 

of 2010. The High Court while declining to enlarge the time to deposit the cost 

neither took into consideration the sequence of dates and events stated by the 

appellant-corporation nor the explanation offered by the appellant-corporation 

for the delay in depositing the amount. This, in our view, is not correct. 

13. In Chinnamarkathian alias Muthu Gounder and Anr. v. Ayyavoo 

377 


378 



alias Periana Gounder and Ors., (1982) 1 SCC 159, this Court called in the 

principle of equity and held that the court has the jurisdiction to examine 

alteration or modification which may necessitate extension of time. In para (15), 

this Court held as under:- 

“….It is a well accepted principle statutorily recognised in Section 148 of 

the Code of Civil Procedure that where a period is fixed or granted by the court 

for doing any act prescribed or allowed by the Code, the court may in its 

discretion from time to time enlarge such period even though the period 

originally fixed or granted may expire. If a court in exercise of the jurisdiction 

can grant time to do a thing, in the absence of a specific provision to the 

contrary curtailing, denying or withholding such jurisdiction, the jurisdiction to 

grant time would inhere in its ambit the jurisdiction to extend time initially fixed 

by it. Passing a composite order would be acting in disregard of the jurisdiction 

in that while granting time simultaneously the court denies to itself the 

jurisdiction to extend time. The principle of equity is that when some 

circumstances are to be taken into account for fixing a length of time within 

which a certain action is to be taken, the court retains to itself the jurisdiction to 

re-examine the alteration or modification of circumstances which may 

necessitate extension of time. If the court by its own act denies itself the 

jurisdiction to do so, it would be denying to itself the jurisdiction which in the 

absence of a negative provision, it undoubtedly enjoys….” 

14. Reference may also be made to the decisions of this Court in 

Jogdhayan v. Babu Ram and Ors., (1983) 1 SCC 26, Johri Singh v. Sukh Pal Singh 

and Ors., (1989) 4 SCC 403, Ganesh Prasad Sah Kesari and Anr. v. Lakshmi 

Narayan Gupta, (1985) 3 SCC 53 and D.V. Paul v. Manisha Lalwani, (2010) 8 

SCC 546. 

15. In terms of Section 148 C.P.C. court has the discretion to extend the 

time. The words “not exceeding thirty days in total” have been inserted by the 

C.P.C. (Amendment) Act, 1999. Observing that if the act could not be performed 

within thirty days for the reasons beyond the control of the parties, the time 

beyond maximum thirty days can be extended under Section 151 C.P.C., in 

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Salem Advocates Bar Association, T.N. v. Union of India (2005) 6 SCC 344, this 

Court in para (41) held as under: 

“41. The amendment made in Section 148 affects the power of 

the court to enlarge time that may have been fixed or granted by the 

court for the doing of any act prescribed or allowed by the Code. The 

amendment provides that the period shall not exceed 30 days in total. 

Before amendment, there was no such restriction of time. Whether the 

court has no inherent power to extend the time beyond 30 days is the 

question. We have no doubt that the upper limit fixed in Section 148 

cannot take away the inherent power of the court to pass orders as may 

be necessary for the ends of justice or to prevent abuse of process of 

the court. The rigid operation of the section would lead to absurdity. 

Section 151 has, therefore, to be allowed to operate fully. Extension 

beyond maximum of 30 days, thus, can be permitted if the act could not 

be performed within 30 days for reasons beyond the control of the 

party. We are not dealing with a case where time for doing an act has 

been prescribed under the provisions of the Limitation Act which cannot 

be extended either under Section 148 or Section 151. We are dealing 

with a case where the time is fixed or granted by the court for 

performance of an act prescribed or allowed by the court.” 

16. Coming to the finding of the High Court that the respondents have 

lost their right to challenge the order passed by the High Court in Writ Petition 

No.1077 of 2010, it is true that SLP (C) No.21975 of 2010 was dismissed by this 

Court on the ground that cost was not deposited by the appellant-corporation. 

But that was not of much significance. In the application before the High Court, 

what was important was that whether the appellant has made out a case for 

extension based on which time can be extended. From the sequence of events, 

in our opinion, the appellant-corporation has explained the reasons for the 

delay in depositing the cost and the time ought to be extended to deposit the 

cost. 

17. We find substance in the submission of the respondents that since 

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380 


the execution petition was dismissed, the respondents have withdrawn the First 

Appeal No.344 of 1995 and the respondents cannot be deprived of the 

opportunity of maintaining a first appeal for challenging the decree passed 

against them. While extension of time is granted to the appellant to deposit the 

cost, the respondents cannot be rendered remediless and in our view, the 

respondents are to be given liberty to have their first appeal restored by making 

necessary application before the first appellate court. 

18. In the result, the impugned order is set aside and this appeal is 

allowed. The appellant-corporation shall deposit the cost of Rs.25,000/- as 

directed by the High Court in Writ Petition No.1077 of 2010 within a period of 

four weeks from today and on such deposit, Special Darkhast No.49 of 2002 

shall stand restored and the same shall be proceeded with in accordance with 

law. The respondents are at liberty to have the first appeal filed by them being 

Appeal No.344 of 1995 restored by making an application. We make it clear that 

we have not expressed any opinion on the merits of the matter. In the facts and 

circumstances of the case, there is no order as to costs. 

- SS - 


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HINA – Appellant, 

Versus 

UNION OF INDIA & Ors. – Respondents 

Civil appeal no. 1676 OF 2016 [@ Special Leave Petition (C) No. 37555 OF 2012] 

Age proof - School Leaving Certificate - Age proof submitted was not of 

the Secondary School as per the norms, but of a Higher Secondary 

School - In case, the copy of the Secondary School Leaving Certificate 

meets the requirement of the Eligibility Criteria, we fail to understand 

as to how does it make a difference in case the School Leaving 

Certificate is of the Higher Secondary School - Secondary School 

Leaving Certificate is issued by the Board whereas the School Leaving 

Certificate of the Higher Secondary School is issued by the School - 

School Leaving Certificate, is issued by the School since the pupil leaves 

the school - In case, a copy of the Secondary School Leaving Certificate 

can be accepted as proof of age, it does not even strike to common 

sense as to why the copy of the Higher Secondary School Leaving 

Certificate, duly attested, cannot be accepted as proof of age. 

381 


JUDGMENT 

Kurian, J. – (February 23, 2016) - Leave granted. 

2. The short question which arises in this appeal is whether the second 

respondent-Corporation was justified in rejecting the application of the 

appellant for allotment of retail outlet of petroleum/diesel dealership at 

location Kalamnuri in District Hingoli in the State of Maharashtra, on the ground 

that the age proof submitted by her was not of the Secondary School as per the 

norms, but of a Higher Secondary School.


3. It is not in dispute that the appellant had submitted an attested copy 

of the School Leaving Certificate issued by Shri Shanti Vidya Mandir Higher 

Secondary School, Shiradshahpur, Hingoli, which is of a Higher Secondary 

School. That certificate was issued by the Principal of the school and the 

appellant had produced an attested copy of the same. 

4. The High Court, in the impugned Judgment, held as under :- 

"We find that though the approach of the Corporation seems to be 

382 


technical, however, the petitioner could have submitted proof of age as 

required by the Corporation and in accordance with the clauses set out 

in the advertisement. It would not be proper to direct the Corporation 

to add/amend or alter the conditions of advertisement." 

5. The application was rejected, as already noted, on the ground that 

the appellant had not complied with the requirement in terms of Clause 2(c) of 

Eligibility Criteria. Clause 2(c) reads as under :- 

"(c) Age - As on date of Application (In completed years) : not less than 

21 years. Enclose an attested copy of either Matriculation or Secondary 

School Leaving Certificate indicating date of birth or identity card issued 

by election commission or PAN card or Passport or an affidavit as proof 

of age." 

6. The learned counsel for the Corporation contends that the 

requirement being attested copy of Secondary School Leaving Certificate, the 

Corporation was justified in rejecting the application since what had been 

produced before them was an attested copy of the Higher Secondary School 

Leaving Certificate. It is also submitted that in all those cases where the 

applicants had not strictly complied with the requirement as per the Eligibility 

Criteria notified by the Corporation, the Corporation has rejected those 

applications. Whether the dispute pertained to the same issue as raised by the 

appellant herein is not clear. 

7. It is seen from the Eligibility Criteria, as extracted above, even an 

Affidavit was sufficient as proof of age. Be that as it may, in case, the copy of the 

Secondary School Leaving Certificate meets the requirement of the Eligibility 

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Criteria, we fail to understand as to how does it make a difference in case the 

School Leaving Certificate is of the Higher Secondary School. The learned 

counsel for the Corporation was at pains to explain before us that the Secondary 

School Leaving Certificate is issued by the Board whereas the School Leaving 

Certificate of the Higher Secondary School is issued by the School. School 

Leaving Certificate, as the very expression indicates, is issued by the School 

since the pupil leaves the school. Annexure P1, which was produced by the 

appellant before the Corporation is captioned as "School Leave Certificate". The 

requirement of the Corporation is only a proof regarding the age. No doubt, 

certain documents are specified in the Eligibility Criteria which would be 

accepted by the Corporation as proof of age. In case, a copy of the Secondary 

School Leaving Certificate can be accepted as proof of age, it does not even 

strike to common sense as to why the copy of the Higher Secondary School 

Leaving Certificate, duly attested, cannot be accepted as proof of age. The High 

Court, however, is not correct in its approach. The clarification we have made 

does not in any way amend the criteria. 

8. Mr. S. M. Jadhav, learned counsel appearing for Respondent No. 4, 

apart from supporting the arguments advanced by the learned counsel for the 

Corporation, also submits that during the pendency of the writ petition in the 

High Court, the 4th Respondent had already been allotted the outlet. Obviously, 

that will be subject to the selection to be conducted by the Corporation after 

allowing the participation of the appellant herein as well. 

9. Accordingly, we allow this appeal, set aside the Judgment passed by 

the High Court and direct the second respondent-Corporation to conduct the 

selection afresh, allowing the participation of the appellant herein as well along 

with those who have been considered as eligible by the Corporation. The 

needful shall be done within a period of two months from today. No costs. 

383 


- SS -




Present: Justice Kurian Joseph and Justice Rohinton Fali Nariman. 

RATTI RAM – Appellant, 

Versus 

UNION OF INDIA and another … Respondent. 

Civil Appeal No 11177 OF 2011 With Civil Appeal No. 11178 of 2011 


384 


statutory benefits - Appellants could not be denied the statutory 

benefits available under the Act, in respect of the value of this land 

fixed, merely because there was a period of stay operating, may be in a 

proceeding at the instance of the appellants - Those are not relevant 

considerations or factors at all for the purpose of grant of statutory 

benefits available to a person, whose land has been acquired in terms 

of Section 28 of the Act - There is no exclusion of any period 

contemplated on whatever account under Section 28 of the Act - The 

only reference is to the date of dispossession - Liability to pay interest 

starts to run from that date. 

JUDGMENT 

Kurian, J. – (February 17, 2016) - In land acquisition proceedings 

pertaining to Award No. 79 of 1982-1983 in respect of the land belonging to the 

appellants, this Court finally fixed the land value at the rate of Rs. 76, 550/- per 

Bigha, in the Judgment dated 03.08.2004 in Delhi Development Authority v. 

Bali Ram Sharma and Other, (2004) 6 SCC 533 (equivalent : AIR 2004 SC 4114, 

2004 (6) ALT 3 SC, 112 (2004) DLT 880 SC, JT 2004 (6) SC 422, 2004 (6) SCALE 

452). 

2. Once the land value is fixed by the Court, it refers to the value of the 

land as per the Award passed by the Collector. That should carry all eligible 

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statutory benefits. It appears that in the case before us, statutory benefits have 

been denied for a short period on the ground that the proceedings initiated at 

the instance of the appellants, remained stayed before the Reference Court. To 

quote from Paragraph-4 of the impugned judgment: 

“Learned Counsel for the appellant, however, had submitted that the 

learned trial court was not justified in declining the relief of interest on 

the enhanced compensation for the period during which the reference 

proceedings had remained stayed sine die and that relief at least should 

be given by this Court. However, this prayer of the appellant cannot be 

accepted since he himself had got his reference proceedings before the 

trial Court stayed sine die and the Government cannot be burdened 

with the liability of interest for the delay in disposal of the reference 

proceedings caused by the appellant himself.” 

3. We fail to understand how the appellants could be denied the 

statutory benefits available under the Land Acquisition Act, 1894 (hereinafter 

referred to as “the Act”) in respect of the value of this land fixed, merely 

because there was a period of stay operating, may be in a proceeding at the 

instance of the appellants. Those are not relevant considerations or factors at all 

for the purpose of grant of statutory benefits available to a person, whose land 

has been acquired in terms of Section 28 of the Act. Section 28 reads as under: 

“28. Collector may be directed to pay interest on excess compensation. If 

the sum which, in the opinion of the Court, the Collector ought to have 

awarded as compensation is in excess of the sum which the Collector 

did award as compensation, the award of the Court may direct that the 

Collector shall pay interest on such excess at the rate of nine per 

centum per annum from the date on which he took possession of the 

land to the date of payment of such excess into Court: 

Provided that the award of the Court may also direct that where such 

excess or any part thereof is paid into Court after the date of expiry of a 

period of one year from the date on which possession is taken, interest 

at the rate of fifteen per centum per annum shall be payable from the 

385 



date of expiry of the said period of one year on the amount of such 

excess or part thereof which has not been paid into Court before the 

date of such expiry.” 

4. There is no exclusion of any period contemplated on whatever 

account under Section 28 of the Act. The only reference is to the date of 

dispossession. Liability to pay interest starts to run from that date. Therefore, 

these appeals are allowed. It is directed that the appellants shall be entitled to 

interest for the compensation, as per Section 28 r/w Section 23(1A), in respect 

of the land acquired from the appellants, on value at the rate of Rs. 76, 550/- 

per Bigha for the period of stay also, i.e., from 24.04.1997 to 27.09.2001. 

5. We direct the Delhi Development Authority to compute the amounts 

as above and deposit the same before the Executing Court within a period of 

four weeks from today which shall disburse the amounts to the appellants in 

accordance with law. 

6. There shall be no order as to costs. 

386 

SS - 


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Present: Justice Anil R. Dave and Justice Adarsh Kumar Goel 

SHAJI K. JOSEPH - Appellant 

Versus 

V. VISWANATH & Ors. – Respondents. 

Civil Appeal No.1629 OF 2016 (Arising out of S.L.P.(C) No.22902 of 2011) 


the process of election had commenced - Whenever the process of 

election starts, normally courts should not interfere with the process of 

election for the simple reason that if the process of election is 

interfered with by the courts, possibly no election would be completed 

without court’s order - Very often, for frivolous reasons candidates or 

others approach the courts and by virtue of interim orders passed by 

courts, the election is delayed or cancelled and in such a case the basic 

purpose of having election and getting an elected body to run the 

administration is frustrated - Dentists Act, 1948 Section 3 (a) - Dental 

Council (Election) Regulations, 1952. 

387 


JUDGMENT 

Anil R. Dave, J. - (February 22, 2016) - Leave granted. 

2. Heard the learned counsel for the parties. 

3. The issue involved in this appeal is with regard to election of a 

member to the Dental Council of India under Section 3 (a) of the Dentists Act, 

1948 [hereinafter referred to as 'the Act'] and Dental Council (Election) 

Regulations, 1952 [hereinafter referred to as 'the Regulations']. Respondent 

no.1 herein wanted to contest the election, but as his name was not in the 

electoral roll in Part A of the register of dentists for the State, his nomination 

form had not been accepted by the Returning Officer, Respondent no.3 herein. 

In these circumstances, Respondent no.1 preferred Writ Petition (C) No.4075 of

388 



2011 before the High Court of Kerala at Ernakulam challenging the validity of 

rejection of his nomination paper. The Learned Singe Judge of the High Court 

vide judgment dated 23rd May, 2011 allowed Respondent no.1’s Writ Petition 

by setting aside the order passed by the Returning Officer, rejecting nomination 

in respect of candidature of Respondent no.1 and directed the Returning Officer 

to conduct the election afresh after including name of Respondent no.1 and to 

declare the result on the basis of such election to be conducted afresh from the 

stage after submission of the nominations. 

4. Being aggrieved by the aforestated judgment delivered in the writ 

petition, the present appellant preferred Writ Appeal No.806 of 2011 assailing 

the validity and correctness of the said judgment rendered by the Learned 

Single Judge of the High Court. The Division Bench of the High Court dismissed 

the Writ Appeal by its judgment dated 18th July, 2011 and therefore, the 

appellant has approached this Court by way of this appeal. 

5. The learned counsel appearing for the appellant submitted that on 

3rd May, 2010, the Returning Officer had published preliminary electoral roll as 

specified in Regulation 3(1) of the Regulations and the last date for preferring 

claims and objections relating to the entries or omissions in the preliminary 

electoral rolls was 30th July, 2010. However, the said last date was extended up 

to 31st August 2010. Ultimately, the Final Electoral Roll was published in the 

Extra-ordinary Gazette no.35 on 10th January, 2011. The election programme 

was notified in the Gazette on 27th January, 2011, whereby it was notified that 

the last date for receiving nomination papers was 7th February, 2011 and the 

scrutiny of the nomination papers was to take place on 9th February, 2011. The 

schedule prescribed the last date for withdrawal of the nomination as 16th 

February, 2011 and the election was to take place on 18th March, 2011. 

Counting was to take place on 19th March, 2011. The aforestated facts are not 

in dispute. 

6. The learned counsel further submitted that after the process of 

election had started by publication of the election programme on 27th January, 

2011, the High Court should not have entertained the petition filed by 

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Respondent no.1, especially when he was not even an elector/voter and that 

nomination of Respondent no.1 was rightly rejected by the Returning Officer 

because his name was not in the electoral roll. 

7. In the circumstances, the learned counsel submitted that the appeal 

should be allowed especially in view of the law laid down by this Court in the 

case of N.P. Ponnuswami v. The Returning Officer, Namakkal Constituency, 

Namakkal, Salem Dist. and others, AIR 1952 SC 64, Nanhoo Mal and others v. 

Hira Mal and others 1976 (3) SCC 211 and Shri Sant Sadguru Janardan Swami 

(Moingiri Maharaj) Sahakari Dugdha Utpadak Sanstha and another v. State of 

Maharashtra and others 2001 (8) SCC 509. He submitted that the aforestated 

judgments of this Court have laid down the law to the effect that once the 

process of election starts, no court should interfere with the election process. 

He further added that in view of the fact that Section 5 of the Act read with 

Regulation 20 of the Regulations, specifically provides that whenever any 

dispute arises in the course of election, it should be referred to the Central 

Government, whose decision shall be final. Section 5 of the Act read with 

Regulation 20 of the Regulations thereunder reads thus:- 

“Section 5. Mode of elections: - Elections under this Chapter 

shall be conducted in the prescribed manner and where any dispute 

arises regarding any such election, it shall be referred to the Central 

Government whose decision shall be final. 

Regulation 20. Procedure for setting aside election.- 

(1) Before setting aside an election under Section 5, the Central 

Government shall give an opportunity to all the parties concerned to 

show cause why the election should not be set aside. 

(2) A decision under Section 5 may be given on the inquiry and 

report of any person appointed by the Central Government in that 

behalf.” 

8. In view of the aforestated provisions of the Act and the Regulations, 

the High Court should not have interfered with the process of the election as it 

was open to Respondent no.1 to raise the election dispute before the Central 

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390 



Government after completion of the election. The learned counsel, therefore, 

submitted that the impugned judgment should be set aside. 

9. On the other hand, the learned counsel for Respondent no.1 

submitted that Respondent no.1 was competent to contest the election though 

his name was not registered in Part A of the State register. Respondent no.1 was 

to be elected by the Dentists whose names were registered as Dentists in Part A 

of the State register and for the purpose of contesting the election, it was not 

necessary that his name should be in Part A of the State register. To contest the 

election one must be a registered Dentist possessing a recognised dental 

qualification and in fact Respondent no.1 was having qualification of a Dentist 

and he was registered as a Dentist. In these circumstances, according to the 

learned counsel appearing for Respondent no.1, non- inclusion of name of 

Respondent no.1 in Part A of the State register was not relevant. 

10. He referred to the provisions of Section 3 of the Act, relevant 

portion whereof reads as under: 

“Section 3. Constitution and composition of Council.- The 

Central Government shall, as soon as may be, constitute a Council 

consisting of the following members, namely:- 

(a) One registered dentist possessing a recognized dental 

qualification elected by the dentists registered in Part A of each (State) 

register; 

(b) ……………………………………………………….” 

11. According to him, a registered Dentist possessing recognised Dental 

qualification can contest election and as Respondent no.1 is a registered 

Dentist, he was competent to contest election even though he was not 

registered in Part A of the State register. Thus, according to him, to become a 

member of Dental Council of India one need not be in the electoral roll or need 

not be registered in Part A of register of dentists for the State. 

12. According to the learned counsel, the High Court had rightly 

intervened by setting aside the order passed by the Returning Officer of 

rejecting nomination paper of Respondent no.1 and therefore, the appeal 

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deserved to be dismissed. 

13. We have heard the learned counsel for the parties at length and 

have considered the provisions of the Act and the judgments referred to 

hereinabove. 

14. In our opinion, the High Court was not right in interfering with the 

process of election especially when the process of election had started upon 

publication of the election program on 27th January, 2011 and more particularly 

when an alternative statutory remedy was available to Respondent no.1 by way 

of referring the dispute to the Central Government as per the provisions of 

Section 5 of the Act read with Regulation 20 of the Regulations. So far as the 

issue with regard to eligibility of Respondent no.1 for contesting the election is 

concerned, though prima facie it appears that Respondent no.1 could contest 

the election, we do not propose to go into the said issue because, in our 

opinion, as per the settled law, the High Court should not have interfered with 

the election after the process of election had commenced. The judgments 

referred to hereinabove clearly show the settled position of law to the effect 

that whenever the process of election starts, normally courts should not 

interfere with the process of election for the simple reason that if the process of 

election is interfered with by the courts, possibly no election would be 

completed without court’s order. Very often, for frivolous reasons candidates or 

others approach the courts and by virtue of interim orders passed by courts, the 

election is delayed or cancelled and in such a case the basic purpose of having 

election and getting an elected body to run the administration is frustrated. For 

the aforestated reasons, this Court has taken a view that all disputes with 

regard to election should be dealt with only after completion of the election. 

15. This Court, in Ponnuswami v. Returning Officer (supra) has held that 

once the election process starts, it would not be proper for the courts to 

interfere with the election process. Similar view was taken by this Court in Shri 

Sant Sadguru Janardan Swami (Moingiri Maharaj) Sahakari Dugdha Utpadak 

Sanstha v. State of Maharashtra (supra). 

16. Thus, in view of the aforestated settled legal position, the High Court 

391 



should not have interfered with the process of election. We, therefore, set aside 

the impugned judgment and direct that the result of the election should be 

published. We are sure that due to interim relief granted by this Court, 

Respondent no.1 must not have been permitted to contest the election. It 

would be open to Respondent no.1 to approach the Central Government for 

referring the dispute, if he thinks it proper to do so. No issue with regard to 

limitation will be raised if Respondent no.1 initiates an action under Section 5 of 

the Act within four weeks from today. 

17. For the aforestated reasons, we allow the appeal with no orders as 

to costs. 

392 


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Present: Justice T.S. Thakur, CJI and R. Banumathi 

GAJANAN DASHRATH KHARATE - Appellant, 

Versus 

STATE OF MAHARASHTRA - Respondent. 

Criminal appeal no. 2057 OF 2010 

Indian Penal Code 1860, Section 302 - Evidence Act, Section 106 - 

When an offence like murder is committed in secrecy inside a house, 

the initial burden to establish the case would undoubtedly be upon the 

prosecution - In view of Section 106 of the Evidence Act, there will be a 

corresponding burden on the inmates of the house to give cogent 

explanation as to how the crime was committed - The inmates of the 

house cannot get away by simply keeping quiet and offering no 

explanation on the supposed premise that the burden to establish its 

case lies entirely upon the prosecution and there is no duty at all on the 

accused to offer - On the date of occurrence, when accused and his 

father were in the house and when the father of the accused was found 

dead, it was for the accused to offer an explanation as to how his father 

sustained injuries - When the accused could not offer any explanation 

as to the homicidal death of his father, it is a strong circumstance 

against the accused that he is responsible for the commission of the 

crime. [Para 12] 

393 


JUDGMENT 

R. Banumathi, J. – (February 26, 2016 ) - This appeal arises out of the 

judgment of the High Court of Judicature at Bombay, Nagpur Bench dated 

02.12.2009 in Criminal Appeal No.247 of 2004 affirming the conviction of the 

appellant under Section 302 IPC and sentence of life imprisonment imposed on 

him. 

2. Briefly stated case of the prosecution is as under:- PW-1-Nagorao 

Kharate, cousin of the deceased-Dashrath was residing adjacent to the house of 

Dashrath and his son appellant-accused in village Dapura. PW-1-Nagorao 

Kharate lodged a complaint at Police Station Boregaon Manju on the evening of

394 



08.04.2002 stating that on the preceding night i.e. 07.04.2002 at around 08.30 

p.m. he heard an altercation between Gajanan-the appellant-accused and his 

father-Dashrath and Dashrath was wailing till about 10.00 p.m. According to 

PW-1-Nagorao Kharate, such incidents of altercations and assault were frequent 

in the house of the appellant-accused and therefore he paid no attention to the 

incident. On the next day morning at about 7.30 a.m., PW-1-Nagorao Kharate 

was informed by Madhukar Kharate-PW-4 that he had found Dashrath lying 

dead in a pool of blood inside his house. PW-1 rushed to the house of the 

appellant and found his cousin Dashrath-father of the appellant lying dead in a 

pool of blood and a stone smeared with blood lying next to his body. PW-1- 

Nagorao Kharate then went to the Police Station, Boregaon Manju lodged a 

complaint, on the basis of which, First Information Report was registered vide 

RC No.40/2002 for the offence punishable under Section 302 IPC. Investigation 

was taken up by PW-7-Hanuman Rathod, who was incharge of the police station 

and PW-7 recorded the statement of witnesses. PW-6-Dr.Prashant Agrawal 

conducted autopsy on the body of deceased-Dashrath and noted number of 

injuries on his eyes, forehead, cheek, shoulder, elbow etc. and opined that 

Dashrath died due to injuries to vital organs and head injuries. Accused was 

arrested on 09.04.2002 and while in police custody he gave a confession 

statement which led to the recovery of blood stained clothes of the accused 

inside his house. On chemical analysis, recovered clothes of the accused found 

to contain ‘B’ Group blood which is the blood group of the deceased. On 

completion of the investigation, police filed the chargesheet against the 

appellant-Gajanan under Section 302 IPC and the case was committed to the 

Court of Sessions, Akola. 

3. To substantiate the charges against the appellant, prosecution has 

examined as many as seven witnesses and exhibited number of documents and 

material objects. The accused was questioned under Section 313 Cr. P.C. about 

the incriminating evidence and circumstances and the appellant denied all of 

them and pleaded that false case has been foisted against him. Upon 

appreciation of oral evidence and the circumstances and the conduct of the 

appellant-accused in not giving explanation for the homicidal death of his 

father, the trial court convicted the appellant for the offence under Section 302 

IPC and sentenced him to undergo imprisonment for life and to pay a fine of 

rupees one thousand with default clause. Being aggrieved, the appellant 

preferred appeal before the High Court and by the impugned judgment, the 

High Court dismissed the same confirming the conviction of the appellant and 

the sentence of life imprisonment imposed on him. 

4. Learned counsel for the appellant Mr. Praveen Chaturvedi contended 

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that PW-1-Nagorao Kharate came to know about the death of Dashrath only 

from PW-4-Madhukar Kharate and the High Court failed to appreciate that PW- 

1-Nagorao Kharate was not an eye-witness to the occurrence. It was further 

contended that the evidence of PWs 1 and 2 are untrustworthy and conviction 

of the appellant was based on mere suspicion and the High Court erred in not 

appreciating the lapses in the prosecution case and therefore conviction of the 

appellant is not sustainable. 

5. Learned counsel for the respondent-State Mr. Kunal Cheema 

submitted that prosecution adduced direct evidence against the appellant to 

prove that he committed murder of his father-Dashrath and the evidence of two 

eye-witnesses PWs 1 and 2 corroborates each other and the courts below 

rightly based the conviction upon the testimonies of PWs 1 and 2. It was further 

submitted that prosecution has proved presence of the appellant at his house at 

the time of incident and there was no explanation from the appellant as to how 

his father-Dashrath sustained injuries and the courts below rightly convicted the 

appellant under Section 302 IPC. 

6. We have carefully considered the rival contentions and perused the 

impugned judgment and material on record. 

7. As seen from the evidence adduced by the prosecution, deceased- 

Dashrath, his wife-Mankarnabai and their son accused Gajanan were residing 

together. PW-1-Nagorao Kharate whose house was adjacent to the house of 

Dashrath and was also closely related to him had deposed that the appellant 

was addicted to bad habits of liquor and gambling and appellant used to 

demand money frequently from his father and quarrelled with his father. In his 

evidence, PW-1-Nagorao Kharate stated that on 07.04.2002 at about 5.00 p.m. 

accused-Gajanan demanded money from his father and when his father refused 

to give money to the appellant, the appellant abused his father and thereafter 

left the house. PW-1 further stated that appellant-accused returned home at 

about 8.30 p.m., he again started abusing his father and also assaulted him and 

Dashrath was wailing till about 10.00 p.m. The testimony of PW-2-Ratnaprabhawife 

of PW-1 is to the same effect which amply corroborates the version of PW- 

1. 

395 


8. PW-1-Nagorao Kharate stated that he and his wife PW-2-Ratnaprabha 

and grand-daughter have witnessed the occurrence but due to fear of the 

appellant they did not intervene in the occurrence on the night of 07.04.2002. 

On the next day, they were informed by PW-4-Madhukar Kharate that deceased 

Dashrath was lying dead in a pool of blood. PW-1 in his evidence stated that on 

08.04.2002 at about 7.00-7.30 a.m. he learnt about death of his cousin through


PW-4-Madhukar Kharate and when he went to the house of Dashrath, he saw 

him dead lying in a pool of blood. Assailing trustworthiness of PW-1, it was 

submitted that PW-1 came to know about the death of Dashrath only from PW- 

4- Madhukar Kharate and PW-1 could not have witnessed the occurrence. 

Evidence of PWs 1 and 2 is assailed contending that had they witnessed the 

occurrence, they would have certainly tried to intervene in the quarrel to pacify 

the appellant and the deceased and the conduct of PWs 1 and 2 in not trying to 

intervene is unnatural and the courts below ought to have disbelieved their 

version. 

396 


9. On the night of 07.04.2002 after witnessing the incident, PWs 1 and 2 

retired to bed. PWs 1 and 2 did not try to intervene in the quarrel between the 

appellant and the deceased as they assumed that it was a routine and usual 

quarrel between father and son. On the next day morning, when they were in 

their house, they came to know about the death of Dashrath-deceased through 

PW-4-Madhukar Kharate. At the time of incident, as the appellant was in a 

drunken state, as noted by the courts below, PW-1 did not try to intervene in 

their dispute. Further PWs 1 and 2 are persons of advance age. Trial court 

noticed that PW-1-Nagorao Kharate was of 71 years and PW-2-Ratnaprabha was 

of 65 years and therefore it was quite natural on their part to keep themselves 

away from the appellant; more so, when the appellant was in a drunken state. 

Credibility of PWs 1 and 2 cannot be doubted on the ground that they did not 

try to intervene in the incident. 

10. On behalf of the appellant, it was submitted that delay in 

registration of first information report creates serious doubts about the 

prosecution case and the prosecution has not satisfactorily explained the delay. 

PW-1-Nagorao Kharate lodged the complaint at Boregaon Manju Police Station 

on 08.04.2002 at about 5.00 p.m. In his evidence, PW-1-Nagorao Kharate stated 

that Boregaon Manju Police Station is about eight miles from their village and 

that they had to go to Boregaon Manju Police Station via Akola. PW-1 further 

stated that he went to Akola at 3.00 p.m. and from Akola he went to Boregaon 

Manju Police Station at about 5.00 p.m., as no vehicle was available at that time. 

PW-1 further stated that it takes two to three hours by walk to reach Boregaon 

Manju Police Station from his village. Delay in setting the law into motion by 

lodging of complaint and registration of first information report is normally 

viewed by courts with suspicion because there is possibility of concoction and 

embellishment of the occurrence. So it becomes necessary for the prosecution 

to satisfactorily explain the delay. The object of insisting upon a prompt lodging 

of the report is to obtain early information not only regarding the assailants but 

also about the part played by the accused, the nature of the incident and the 

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names of witnesses. In the case at hand, prosecution has satisfactorily explained 

the delay in lodging the complaint. When the prosecution has explained the 

delay in lodging the complaint, prosecution case cannot be doubted on the 

small delay between the time of occurrence and in registration of first 

information report. 

11. Apart from the oral evidence, case of prosecution is also 

strengthened by recovery of blood stained clothes of the appellant. During 

chemical analysis, it was found that the shirt of the appellant contained ‘B’ 

Group blood which is the blood group of deceased-Dashrath. The appellant has 

not offered any explanation as to presence of ‘B’ Group blood in his clothes, 

which is yet another incriminating circumstance against the appellant. 

12. As seen from the evidence, appellant-Gajanan and his father- 

Dashrath and mother-Mankarnabai were living together. On 07.04.2002, 

mother of the appellant-accused had gone to another village-Dahigaon. 

Prosecution has proved presence of the appellant at his home on the night of 

07.04.2002. Therefore, the appellant is duty bound to explain as to how the 

death of his father was caused. When an offence like murder is committed in 

secrecy inside a house, the initial burden to establish the case would 

undoubtedly be upon the prosecution. In view of Section 106 of the Evidence 

Act, there will be a corresponding burden on the inmates of the house to give 

cogent explanation as to how the crime was committed. The inmates of the 

house cannot get away by simply keeping quiet and offering no explanation on 

the supposed premise that the burden to establish its case lies entirely upon the 

prosecution and there is no duty at all on the accused to offer. On the date of 

occurrence, when accused and his father Dashrath were in the house and when 

the father of the accused was found dead, it was for the accused to offer an 

explanation as to how his father sustained injuries. When the accused could not 

offer any explanation as to the homicidal death of his father, it is a strong 

circumstance against the accused that he is responsible for the commission of 

the crime. 

397 


13. In Trimukh Maroti Kirkan v. State of Maharashtra *** (2006) 10 

SCC 681, it was held as under:- 

“22. Where an accused is alleged to have committed the murder of his 

wife and the prosecution succeeds in leading evidence to show that 

shortly before the commission of crime they were seen together or the 

offence takes place in the dwelling home where the husband also 

normally resided, it has been consistently held that if the accused does 

not offer any explanation how the wife received injuries or offers an

398 



explanation which is found to be false, it is a strong circumstance which 

indicates that he is responsible for commission of the crime. In Nika 

Ram v. State of H.P.(1972) 2 SCC 80 it was observed that the fact that 

the accused alone was with his wife in the house when she was 

murdered there with “khukhri” and the fact that the relations of the 

accused with her were strained would, in the absence of any cogent 

explanation by him, point to his guilt. In Ganeshlal v. State of 

Maharashtra (1992) 3 SCC 106 the appellant was prosecuted for the 

murder of his wife which took place inside his house. It was observed 

that when the death had occurred in his custody, the appellant is under 

an obligation to give a plausible explanation for the cause of her death 

in his statement under Section 313 CrPC. The mere denial of the 

prosecution case coupled with absence of any explanation was held to 

be inconsistent with the innocence of the accused, but consistent with 

the hypothesis that the appellant is a prime accused in the commission 

of murder of his wife. In State of U.P. v. Dr. Ravindra Prakash Mittal 

(1992) 3 SCC 300 the medical evidence disclosed that the wife died of 

strangulation during late night hours or early morning and her body was 

set on fire after sprinkling kerosene. The defence of the husband was 

that the wife had committed suicide by burning herself and that he was 

not at home at that time. The letters written by the wife to her relatives 

showed that the husband ill-treated her and their relations were 

strained and further the evidence showed that both of them were in 

one room in the night. It was held that the chain of circumstances was 

complete and it was the husband who committed the murder of his wife 

by strangulation and accordingly this Court reversed the judgment of 

the High Court acquitting the accused and convicted him under Section 

302 IPC. In State of T.N. v. Rajendran (1999) 8 SCC 679 the wife was 

found dead in a hut which had caught fire. The evidence showed that 

the accused and his wife were seen together in the hut at about 9.00 

p.m. and the accused came out in the morning through the roof when 

the hut had caught fire. His explanation was that it was a case of 

accidental fire which resulted in the death of his wife and a daughter. 

The medical evidence showed that the wife died due to asphyxia as a 

result of strangulation and not on account of burn injuries. It was held 

that there cannot be any hesitation to come to the conclusion that it 

was the accused (husband) who was the perpetrator of the crime.” 

Same view was reiterated by this Court in State of Rajasthan v. Parthu 

(2007) 12 SCC 754. 

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14. Upon appreciation of oral evidence and the circumstance of the 

recovery of blood stained clothes of the accused and the conduct of the accused 

in not offering any explanation for the homicidal death of his father, by 

concurrent findings, the trial court and the High Court rightly convicted the 

appellant-accused under Section 302 IPC and we do not find any reason to 

interfere with the impugned judgment. 

15. In the result, the conviction of the appellant under Section 302 IPC 

and the sentence of life imprisonment imposed on him is confirmed and this 

appeal is dismissed. The appellant is on bail and his bail bonds are cancelled. 

The appellant be taken to custody to serve out the remaining sentence. 

Ss - Appeal dismissed. 

399 





Present : Justice Shiva Kirti Singh and Justice R. Banumathi 

M/s. Electro Optics (P) Ltd. – Appellant, 

Versus 

State of Tamil Nadu – Respondent. 

Civil Appeal No.10554 OF 2010 with C.A.Nos.10562 of 2010 and 10563 of 2010 

(i) Penalty - Tax – Even if minimum penalty is prescribed, the authority 

may be justified in refusing to impose any penalty in some peculiar 

situations, such as, where the breach flows from a bona fide belief that 

the offender is not liable to act in the manner prescribed by the Statute. 

M/s Hindustan Steel Ltd. v. State of Orissa, (1969) 2 SCC 627 relied. 

(ii) Sales Tax – Mens Rea in taxing statutes - There is a rebuttable 

400 


presumption that mens rea is essential ingredient in every offence - For 

examining whether mens rea is essential for an offence created under a 

tax Statute, three factors require particular attention, (i) the object and 

scheme of the Statute; (ii) the language of the section; and (iii) the 

nature of penalty – Appellant, in the eyes of the Authorities has 

submitted incorrect return leading to imposition of penalty in 

accordance with the relevant clauses - Considering that the situation of 

dispute arose on account of amendments in the Schedule in 1993 and 

was confined only to immediate two assessment years and also 

considering that the appellant had a good arguable case even in this 

Court which had stayed the penalty orders, we find that the return 

submitted by the appellant was on account of bona fide belief in 

correctness of appellant’s stand that the goods in question were 

chargeable only at the rate of 3% - In the facts of the case it would not 

be proper to hold that the appellant had submitted a return which was 

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incorrect to its knowledge or belief - Only after the outcome of the legal 

dispute by virtue of this judgment, the authorities can be justified in 

holding henceforth that the return was incorrect - In such a situation it 

would not be just and proper exercise of discretion to hold the 

appellant guilty of submitting incorrect return so as to attract penalty 

for the same - Set aside the balance dues of penalty - Tamil Nadu 

General Sales Tax Act, 1959, Entry 14, 50. 

Commissioner of Sales Tax, Uttar Pradesh v. Sanjiv Fabrics, (2010) 9 SCC 

630 relied 

JUDGMENT 

Shiva Kirti Singh, J. – (February 26, 2016) - Common judgment and 

order of the High Court of Judicature at Madras dated 29.09.2009 in Tax Case 

Nos.1834 of 2006, 2307 of 2008 and Writ Petition No.18770 of 2000 is under 

challenge in these appeals. The High Court has rejected the case of the 

appellant assessee in respect of Assessment Years 1993-94 and 1994-95 and as 

a consequence also rejected the challenge to the penalty and thereby upheld 

order of Sales Tax Appellate Tribunal which arose out of orders under Tamil 

Nadu General Sales Tax Act, 1959 (hereinafter referred to as ‘the Act’) passed by 

the original authority as well as appellate authority, all against the appellant. 

2. For both the assessment years the dispute is confined to an issue of 

law relating to classification of the goods sold by the appellant. According to the 

appellant it is engaged in the sale of electronic goods (survey instruments) 

imported from other countries and such goods should rightfully fall within Entry 

50, Part B of Schedule I of the Act attracting rate of 3%. On the other hand the 

authorities have taken the stand that survey instruments, whether electronic or 

otherwise, are covered by Entry 14, Part F of Schedule I, chargeable @ 16%. 

Since appellant’s claim was not accepted by the Commercial Tax Officer who 

assessed the appellant at 16% leading to demand of tax as well as penalty, the 

appellant preferred appeal before the Appellate Commissioner. On being 

401 


402 



unsuccessful, the appellant preferred further appeal before the Tribunal and 

then the matter reached the High Court leading to the impugned order under 

appeal. The two relevant entries, i.e., Entry 50 of Part B and Entry 14 of Part F of 

Schedule I are as follows: “Part B Sl. No. Description of Goods Point of levy Rate 

of tax 50 Electronic systems, instruments, apparatus, appliances and other 

electronic goods (other than those specified elsewhere in the Schedule) but 

including electronic cash registering, indexing, card punching, franking, 

addressing machines, and computers of analog and digital varieties, one record 

units, word At the point of first sale in the State 3% processor and other 

electronic goods and parts and accessories of all such goods Part F Sl. No. 

Description of Goods Point of levy Rate of tax 14 Binoculars, monoculars, opera 

glasses, other optical telescope, astronomical instruments, microscopes, 

binocular microscopes, magnifying glasses, diffraction apparatus and mountings 

therefor including theodolite, survey instruments and optical lenses parts and 

accessories thereof At the point of first sale in the State 16% 

3. There is no difficulty in accepting the consistent finding of the 

authorities based upon appellant’s own declaration in respect of goods which 

were imported and declared before the customs authorities as survey 

instruments, that the goods are covered by the generic expression ‘survey 

instruments’. The main controversy is whether on account of being electronic 

survey instruments the goods would be out of Entry 14 so as to fall under Entry 

50. The High Court and all the authorities have taken a consistent view that 

Entry 50 itself clarifies that it covers all electronic instruments, apparatus, other 

than those specified elsewhere in the Schedule and since the goods in question 

are specified under the generic term ‘survey instruments’ in Part F Entry 14, 

they will stand excluded from Entry 50 of Part B. 

4. We have heard learned counsel appearing for the parties at length. In 

order to persuade us to take a different view than that of the High Court and 

the Authorities, learned counsel for the appellant reiterated the submissions 

advanced before the High Court and further highlighted some entries in Part – B 

of Schedule I such as Entries 38 to 42 and pointed out that these entries, all 

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providing for rate of tax at 3% use the word “electronic” in all the entries before 

various machines such as duplicating machines, teleprinters, typewriters, 

tabulating/calculating machines and clocks/time pieces. The submission is that 

after enumerating such electronic machines in the various entries noted above, 

the policy was to charge same 3% rate of tax for all residuary electronic system, 

apparatus and other electronic goods and if any other meaning is given by 

placing reliance upon words used in Entry 50, especially those in parenthesis – 

“other than those specified elsewhere in the Schedule” then there would be no 

rationale for using the word “electronic” to qualify duplicating machines, 

teleprinters etc. covered by Entries 38 to 42. The submission lacks merits. Part-B 

of the Schedule covers various kinds of goods such as agricultural products, 

vegetable oils, kerosene, aluminium domestic utensils, raw wool, hosiery goods, 

gold and silver articles, cycles, tractors, different electronic items, television 

sets, gramophones, all chargeable at the rate of 3%. In this background, Entry 50 

of Part-B is meant to accommodate only such left over electronic system, 

apparatus etc. which are not specified elsewhere in the Schedule and are 

therefore chargeable at the rate of 3%. Clearly, if specified elsewhere and 

chargeable at a different rate, they cannot be included under Entry 50. This 

conclusion is further strengthened by a look at some of the entries in Part-F, just 

preceding Entry 14. Entries 10, 11, 12 and 13 cover goods chargeable at the rate 

of 16%, such as typewriters, teleprinters, tabulating, calculating machines and 

duplicating machines etc. In all these four entries there is a specific exclusion of 

electronic variety of these machines. On the other hand in relevant Entry no. 14 

such exclusion of electronic variety of any of the machines and apparatus such 

as survey instruments is conspicuously missing. Clearly the intended effect is 

deliberate so as to include binoculars, monoculars, survey instruments etc. of all 

varieties, be they manual or electronic. Had the intention been different, in 

Entry 14 also exclusion of ‘electronic’ survey instruments could have been 

inserted and specified as in Entry Nos. 10 to 13 in respect of other different 

machines or instruments. Hence, the conclusion is obvious that even electronic 

survey instruments are covered by Entry No. 14 in Part-F of the First Schedule of 

403 


404 



the Act. 

5. Learned Counsel for the appellant has placed reliance upon judgment 

in the case of M/s BPL Ltd. v. State of Andhra Pradesh reported in (2001) 2 SCC 

139. This judgment has been elaborately discussed by the High Court and held 

to be not applicable to the facts of this case. We have also considered the facts 

and law involved in the said judgment and we agree with the conclusion of the 

High Court. In that case the dispute under the Andhra Pradesh General Sales Tax 

Act, 1957 was on the interpretation of definition of the term “Electronic Goods”. 

On the basis of the definition it was held that the goods “automatic washing 

machine” was covered by the term electronic goods and not under the other 

item i.e, Entry 38 (IV) which related to electrical items including electrical 

washing machine. The wordings and expressions used and interpreted in that 

case were entirely different and are of no help to the appellant in the present 

case. 

6. As a result, the Civil Appeals arising out of Tax Case Nos. 1834 of 2006 

and 2307 of 2008 must fail. However, the Appeal arising out from Writ Petition 

containing challenge to imposition of penalty deserves further consideration in 

the light of submissions to the effect that appellant has been in same business 

since 1985 and no controversy or dispute of this nature ever arose except for 

the two assessment years under consideration. It has been pointed out that all 

earlier Schedules were re-written on account of extensive amendments in the 

year 1993 and since most of the electronic items were brought under Part-B, a 

genuine controversy or misunderstanding arose as to whether the goods in 

question would be covered by Entry No. 50 of Part B or not. Genuinely believing 

that it is so covered, the appellant contested the matter and in the process 

suffered penalty for both the assessment years in total amounting to Rs. 15.48 

lakhs approximately. Out of this, appellant claims to have paid approximately 

Rs. 3.74 lakhs but still about Rs. 11.73 lakhs remain as balance payable towards 

penalty. It was pointed out that considering the merit of appellant’s case this 

Court has stayed realization of penalty. Hence, it has been submitted that in the 

interest of justice the balance penalty be set aside on account of bona fide 

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belief on the part of the appellant that it was liable to pay only at the rate of 3% 

and therefore there was absolute lack of any mens rea in not paying in time the 

tax assessed by the authorities. It was also pointed out that against the total tax 

demand of Rs. 16.39 lakhs approximately the appellant has by now paid about 

Rs. 16.18 lakhs. 

7. Learned counsel for the appellant has supported the submissions 

against imposition of penalty by placing reliance upon the following judgments:- 

(1) M/s Hindustan Steel Ltd. v. State of Orissa, (1969) 2 SCC 627 

(2) Commissioner of Sales Tax, Uttar Pradesh v. Sanjiv Fabrics, (2010) 9 

SCC 630 

In M/s Hindustan Steel Ltd. in paragraph 8 it was held that although the 

Statute permitted imposition of penalty but still the authority concerned had 

the judicial discretion to consider whether penalty should be imposed for failure 

to perform a statutory obligation. In such a situation the discretion has to be 

exercised judicially after consideration of all the relevant circumstances. Even if 

minimum penalty is prescribed, the authority may be justified in refusing to 

impose any penalty in some peculiar situations, such as, where the breach flows 

from a bona fide belief that the offender is not liable to act in the manner 

prescribed by the Statute. In Sanjiv Fabrics it was reiterated that there is a 

rebuttable presumption that mens rea is essential ingredient in every offence. 

For examining whether mens rea is essential for an offence created under a tax 

Statute, three factors require particular attention, (i) the object and scheme of 

the Statute; (ii) the language of the section; and (iii) the nature of penalty. Since 

the relevant expression for constituting the offence in that case was – “falsely 

represents”, the Court held that the offence attracting penalty would be 

established only where it is proved that the dealer has acted deliberately in 

defiance of law and is guilty of contumacious or dishonest conduct. 

8. In the present case penalty is imposable by the assessing authority 

under Section 12 of the Act, both, for failure to submit return or for submission 

of incorrect or incomplete return. Appellant, in the eyes of the Authorities has 

submitted incorrect return leading to imposition of penalty in accordance with 

405 


406 



relevant clauses of Section 12. Considering that the situation of dispute arose on 

account of amendments in the Schedule in 1993 and was confined only to 

immediate two assessment years and also considering that the appellant had a 

good arguable case even in this Court which had stayed the penalty orders, we 

find that the return submitted by the appellant was on account of bona fide 

belief in correctness of appellant’s stand that the goods in question were 

chargeable only at the rate of 3%. In our considered view, in the facts of the 

case it would not be proper to hold that the appellant had submitted a return 

which was incorrect to its knowledge or belief. Only after the outcome of the 

legal dispute by virtue of this judgment, the authorities can be justified in 

holding henceforth that the return was incorrect. In such a situation it would 

not be just and proper exercise of discretion to hold the appellant guilty of 

submitting incorrect return so as to attract penalty for the same. Hence, in the 

peculiar facts of the case and in the interest of justice, we set aside the balance 

dues of penalty. However, the penalty already paid by the appellant shall not be 

refunded and the same may be retained by the respondent authorities by way 

of cost of this protracted litigation. 

9. In the result, the Civil Appeal Nos. 10554 and 10562 of 2010 

containing challenge to assessments orders are dismissed. The remaining appeal 

Civil Appeal No. 10563 of 2010 relating to penalty is allowed to the extent that 

balance amount of penalty shall not be realised from the appellant. There shall 

be no order as to further costs. 

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RAM RATI - Appellant, 

versus 

MANGE RAM (D) THR LRS. & ors. – Respondent. 

Civil Appeal No. 1684 OF 2016 [@ Special Leave Petition (C) 22141 of 2013] 

Civil Procedure Code (V of 1908) Order 18 Rule 17– Application moved 

that after consolidation of suits, the plaintiff in one suit should get an 

opportunity to cross examine the PW already examined in the other 

suit in which the evidence was recorded prior to consolidation and was 

ordered be read as the main evidence – Contention Upheld. 

JUDGMENT 

Kurian, J. – (February 23, 2016) - Leave granted. 

2. There are two suits filed by the respective parties and pending before 

the Tis Hazari Courts at Delhi. Civil Suit No. 43 of 2009 was filed by the 

respondents herein for declaration and injunction in respect of the plaint 

schedule property. In respect of very same property, the appellant herein also 

filed a suit seeking permanent injunction and that suit has been numbered as 

Civil Suit No. 44 of 2009. The suits were consolidated on 26.09.2005. Much 

before that, evidence in Civil Suit No. 44 of 2009 had commenced and the 

appellant herein had been examined as PW1 and the respondents herein had 

crossexamined PW1 as well. That evidence was closed on 16.04.2005. After the 

consolidation of the two suits, the respondents herein filed an application on 

13.04.2010. We shall extract the averments made in the said application as 

under :- 

407 


"APPLICATION ON BEHALF OF DEFENDANT FOR DISCHARGING 

THE STATEMENT OF PW-1 AND EXAMINATION OF WITNESS I.E.

408 



PW-1 AFRESH UNDER ORDER 18 RULE 7 CPC READ WITH 

SECTION 51 C.P.C. 

Sir, 

The applicant most respectfully submits as under :- 

1. That the plaintiff examined PW- 1, Sh. Chottu Ram as PW-1 

on 6.12.2004. His cross examination was concluded on 

16.4.2005. 

2. That this Hom'ble Court consolidated the present suit was 

another suit titled as Mange Ram v. Chander Kanta etc. vide its 

order dated 8.12.2007. 

3. That while passing the order of consolidation dated 

8.12.2007, this Hon'ble Court ordered as under :- 

"It has been so urged on behalf of both contesting sides that 

trial in two cases be conducted commonly and evidence led in 

either case be read in both these cases." 

4. That directions or observations of this Hon'ble Court as 

reproduced above operates prospectively and not 

retrospectively. 

5. That when the Hon'ble Court ordered that evidence in one 

case may be read in evidence in another case, then plaintiff in 

Mange Ram v. Chander Kanta & ors. would be deprived of the 

opportunity of cross examination of PW-1 which was concluded 

on 16.4.2005, much prior to the date of order of consolidation. 

6. That as per settled position of law on this point and as per 

terms of order of this Hon'ble Court dated 08.12.2007, either 

the PW1 be examined afresh or opportunity to cross examine 

the PW-1 may be granted to the applicant/plaintiff in Mange 

Ram v. Chander Kanta and ors. 

It is, therefore, prayed that PW-1 may kindly be examined 

afresh or opportunity to cross examine the PW1 in Ram Rati v. 

Mange Ram etc. may kindly be granted to the applicant." 

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3. By order dated 15.04.2008 of the Additional District Judge, Delhi in 

Civil Suit No. 43 of 2009 filed by the respondents, the suit as against Defendant 

Nos. 5 and 6 was rejected, holding that the plaint did not disclose any cause of 

action against them. Defendant Nos. 5 was the plaintiff in Suit No. 44 of 2009 

and Defendant No. 6 is her husband. That Defendant No. 5 is the appellant 

before this Court. 

4. Thus, the only ground taken up in the application filed under Order 

18 Rule 17 CPC is that after consolidation of the suits, the plaintiff in Civil Suit 

No. 43 of 2009 should get an opportunity to cross examine the PW1 (Defendant 

No. 5 in Civil Suit No. 43 of 2009). 

5. It is interesting to note that in the order dated 24.02.2010 passed by 

the Additional District Judge in Civil Suit No. 44 of 2009, consolidated with Civil 

Suit No. 43 of 2009, it has been noted by the Court that the plaintiff in Civil Suit 

No. 44 of 2009 is no more a party to Civil Suit No. 43 of 2009 and the earlier 

order of consolidation of suits dated 8.12.2007 was maintained, further 

clarifying that the past evidence of plaintiff in Civil Suit No. 44 of 2009, which 

has already been recorded, to be treated as the main suit. 

6. We shall extract the order dated 24.02.2010, which reads as follows :- 

409 


"Since the facts in this suit and suit No. 43/09 are intertwined 

even though Plaintiff is no more a party to suit No. 43/09, her claim for 

declaration to suit property therein may have refletion on the 

entitlement of Plaintiff, therefore, with the consent of both sides, the 

consolidated order dated 8.12.2007 is being maintained and suit No. 

44/09 wherein past evidence of Plaintiff Ram Rati has been recorded is 

treated as main suit." 

7. Unfortunately, those crucial aspects apparantly have been missed by 

the trial court and the High Court while passing the impugned orders. 

8. In that view of the matter, it is not necessary to us to go into the 

various other contentions regarding the permissibility of recalling under Order


18 Rule 17, though Mr. Pritesh Kapur, learned counsel appearing for the 

appellant has elaborated on those aspects as well. 

9. In the above circumstances, the impugned order is set aside and the 

appeal is allowed. 

10. We are informed that during the pendency of the appeal, the 

evidence has been closed and what remains is only the final order to be passed. 

In view of the above, we direct the trial court to dispose of the suits 

expeditiously and preferably within one month from the date of receipt of a 

copy of this order. No costs. 

410 


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Present: Justice J. Chelameswar and Justice Abhay Manohar Sapre 

ANUBHAV KUMAR CHOUDHARY & Ors. – Appellant 

Versus 

UNION OF INDIA & Ors. – Respondents. 

Civil Appeal No. 2405 OF 2016 (Arising Out Of SLP(C) NO. 6342/2016) (@ 

SLP(c)…..CC 3551/2016) 

Right of legal remedy - A right to prosecute the legal remedy in the 

court of law to challenge any decision of the State or/and its agency is a 

valuable legal right of the citizen and the High Court could not take 

away such right from the appellant without assigning any reason - High 

Court while disposing of the appellant’s writ petition granted liberty to 

file representation to the NTPC but at the same time ordered that 

appellants will have no liberty to move the High Court again for the 

same cause of action raised therein - High Court having rightly granted 

indulgence to the appellant to file the representation to the NTPC for 

ventilating his grievance, should have also granted liberty to the 

appellant to take recourse to all legal remedies to challenge the 

decision once taken on his representation, if occasion so arises - No 

justifiable reason to deny the appellant from taking recourse to the 

legal remedies to prosecute his grievance in a Court of law in relation to 

the dispute, which is the subject matter of the representation in case if 

occasion arises in future. [Para 9] 

411 


JUDGMENT 

Abhay Manohar Sapre, J. – (February 29, 2016) - Delay in filing special 

leave petition is condoned. Leave granted.


2) This appeal is filed against the final judgment and order dated 

08.04.2015 of the High Court of Judicature at Patna in CWJC No. 5402 of 2015 

whereby the High Court while disposing of the appellant’s writ petition granted 

liberty to file representation to the National Thermal Power Corporation (NTPC) 

but at the same time passed an order that the appellants will have no liberty to 

move the High Court again for the same cause of action raised therein. 

3) We have heard learned counsel for the appellant and have perused 

the record of the case. 

4) Having heard learned counsel for the appellant, we are inclined to 

dispose of this appeal after granting leave at the admission stage itself as we are 

of the view that the same can be disposed of without notice to the other side. 

5) In the light of the order that we have passed, it is neither necessary 

to set out the facts of the case in detail and as mentioned above nor necessary 

to issue notice of this appeal to the other side. 

412 


6) The impugned order passed by the High Court reads as under: 

“After some arguments, learned counsel for the petitioners seeks 

permission to withdraw this application in order to enable the 

petitioners to file representation before the competent authority of the 

National Thermal Power Corporation (NTPC). While this Court would 

accord such leave to the petitioner but it is made clear that the 

petitioners will have now no liberty to move this Court again for the 

same cause of action raised herein.” 

7) The only grievance of learned counsel for the appellant is that the 

High Court having rightly granted liberty to the appellant to file the 

representation for ventilating his grievance before the NTPC erred in taking 

away his right to prosecute his grievance, if occasion arises in future depending 

upon the outcome of his representation. It is his submission that the appellant 

has every right to take recourse to all legal remedies as are available to him in 

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law in the event any adverse order is passed on his representation or when no 

orders are passed on his representation once made. We find force in this 

submission. 

8) In our considered view, the High Court having rightly granted 

indulgence to the appellant to file the representation to the NTPC for ventilating 

his grievance, should have also granted liberty to the appellant to take recourse 

to all legal remedies to challenge the decision once taken on his representation, 

if occasion so arises. 

9) A right to prosecute the legal remedy in the court of law to challenge 

any decision of the State or/and its agency is a valuable legal right of the citizen 

and the High Court could not take away such right from the appellant without 

assigning any reason. There is apparently no justifiable reason to deny the 

appellant from taking recourse to the legal remedies to prosecute his grievance 

in a Court of law in relation to the dispute, which is the subject matter of the 

representation in case if occasion arises in future. 

10) In the light of foregoing discussion, we allow the appeal in part and 

set aside that part of the impugned order, which deprives the appellant to move 

to the Court again in the event his representation is decided against him by the 

NTPC. 

413 


11) We, therefore, grant the appellant further liberty to take recourse 

to all legal remedies, as may be available to him in law, by approaching 

appropriate Court to ventilate his grievance, if occasion arises, in relation to the 

dispute for which he is granted liberty by the High Court to file the 

representation.




Present : Justice Jagdish Singh Khehar and Justice C.Nagappan 

SHAHID KHAN - Appellant, 

versus 

State of Rajasthan - Respondent. 

Criminal Appeal No.1460 of 2008 With Criminal Appeal No.1461 of 2008 And 

Criminal Appeal No.1462 of 2008 

(i) Criminal - Statements of alleged eye witnesses – Disbelieved - In the 

complaint, the names of the assailants are not mentioned and also the 

names of the persons who were present during the occurrence are not 

mentioned - PW slipping away unnoticed by the others particularly 

after the alleged attack is utterly unbelievable - It appears unreal - They 

414 


are not strange to expect and they did not render any help for shifting 

the injured to the hospital nor had the courtesy to go inside the hospital 

to ascertain the condition and also did not inform the occurrence to the 

police - The aspect of fear is without any foundation and is not 

supported by any evidence of act or conduct. [Para 10] 

(ii) Criminal - Delay in recording of Statements of alleged eye witnesses 

- Were recorded after 3 days of the occurrence - No explanation is 

forthcoming as to why they are not examined for 3 days - It is also not 

known as to how the police came to know that these witnesses saw the 

occurrence - The delay in recording the statements casts a serious 

doubt about their being eye-witnesses to the occurrence - Suggests that 

the investigating officer was deliberately marking time with a view to 

decide about the shape to be given to the case and the eye-witnesses to 

be introduced - PW in view of their unexplained silence and delayed 

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statement to the police, does not appear to us to be wholly reliable 

witnesses - No corroboration of their evidence from any other 

independent source either - Find it rather unsafe to rely upon their 

evidence only to uphold the conviction and sentence of the appellants - 

Case against the appellants has not been proved beyond reasonable 

doubt. [Para 11] 

JUDGMENT 

C. Nagappan, J. – (March 02, 2016) - These three appeals are preferred 

against the judgment dated 20.12.2006, passed by the High Court of Judicature 

for Rajasthan at Jaipur in DB Criminal Appeal No.1001 of 2003. 

2. The appellants in DB Criminal Appeal No.1001 of 2003 are accused 

nos.2 to 5 in the Sessions case no.31 of 2003 on the file of the Special Judge, 

SC/ST(POA), Jhalawar and they were tried with accused no.1 for alleged 

offences under Sections 147, 148, 302/149 and 397 Indian Penal Code. The 

Sessions Court found accused no.1 not guilty of all the charges and found 

accused nos. 2 to 5 not guilty of the charge under Section 397. At the same time 

Sessions Court convicted accused nos. 2 to 5 for the offence under Section 148 

and sentenced them each to undergo Simple imprisonment for 2 years with fine 

of Rs.500 and in default to undergo further simple imprisonment for one month 

and convicted them under Section 302/149 and sentenced them each to 

undergo life imprisonment with fine of Rs.2000 and in default to undergo simple 

imprisonment for six months. 

3. Aggrieved by this conviction and sentence, accused nos. 2 to 5 

preferred appeal being DB Criminal Appeal No.1001 of 2003, before the High 

Court of Rajasthan at Jaipur Bench. During pendency of appeal, appellant/A3 

Irfan Ali died and his appeal abated. The High Court by its judgment dated 

20.12.2006 dismissed the appeal preferred by the appellants. Challenging the 

same accused nos.2, 4 and 5 have preferred present appeals. 

4. The prosecution case as it discerned from the records is briefly, as 

415 


416 



follows : PW 19 Anil Kumar Jain is the brother of deceased Ashok Kumar. On 

22.1.2001 he submitted Exh. P34 complaint at Police Station Kotwali Jhalawar 

stating that Ashok Kumar was looking after the factory of Kota stones and the 

contract of royalty of toll tax was obtained by Abdul Khalid in which his brother 

Ashok Kumar was also a partner. It is further stated that Khalid was arrested for 

committing the murder of Kallu and Ashok Kumar gave assistance to Khalid. Due 

to this reason on 22.1.2001 companions of Kallu came to the factory and 

murdered Ashok Kumar. It is further stated therein that as per the information 

provided by PW 20 Lal Chand the accused were five in number and they caused 

injuries to Ashok Kumar with sword and knife. PW 25 Mirza Majid Beg came 

from Kota to Jhalawar to meet Ashok Kumar on the occurrence day, and he and 

his driver PW 24 Mohamed Shakir saw the occurrence in which the accused 

inflicted injuries with weapons on Ashok Kumar. Due to fear they hid 

themselves in the factory. PW 19 Anil Kumar Jain took injured Ashok Kumar in 

the Maruti car to hospital at Jhalawar where he was declared dead. On the 

written complaint of PW 19 Anil Kumar Jain a case under Sections 147, 148 

302/149 and 448 IPC was registered and investigation commenced. PW 17 Dr. 

Arvind Kumar Bohra conducted autopsy on the body of Ashok Kumar and found 

the following ante-mortem injuries: 

1. Incised wound 2 ½ x ½ x bone deep horizontally mid of 

forehead. 

2. Abrasion 3 ½ long in front and over the pinna of left ear. 

3. Stab incised wound 2” X ½” X cavity deep omentum and fresh 

blood come out from wound vertically Rt para umbilicus region. 

4. Stab incised wound 2” X ½” X cavity deep. Vertically oblique 

omenten and fresh blood comes out left para umbilicus part of 

abdomen. 

5. Stab incised wound 2” X ½” X cavity deep omentum and fresh 

bleeding present vertically left renal region of abdomen. 

6. Stab incised wound 2” X ½” X cavity deep oblique ½” below 

lower costal margin left Hypocondrium of abdomen. 

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7. Incised wound 1” X ¼” x skin deep oblique lat. Aspect of 

middle of left thigh.” 

He issued Exh.P21 post-mortem report by expressing opinion that the 

cause of death was hemorrhagic shock as a result of cutting of pedicle of spleen 

omental and mesenteric vessels. 

5. The investigation officer examined the witnesses, arrested the 

accused and recovered weapons by drawing the necessary memos and on 

completion of the investigation filed the charge-sheet. The Sessions Court on 

framing of charges conducted the trial in which prosecution examined 28 

witnesses and marked documents and the defence examined 2 witnesses on 

their side. The trial court acquitted accused No.1 of all the charges and 

convicted accused Nos. 2 to 5 as stated supra. On appeal the High Court 

confirmed the conviction and sentence. Aggrieved by the same the present 

appeals have been preferred. 

6. Mr. Sushil Kumar Jain, Senior Advocate appearing for the appellants 

contended that PW 25 Mirza Majid Beg and his driver PW 24 Mohamed Shakir 

who claimed to have witnessed the occurrence are chance witnesses whose 

presence at the place of occurrence is doubtful and their conduct in not 

informing the relatives of the deceased and not lodging police complaint is quite 

unnatural and their statements were recorded after 3 days of the occurrence for 

which there is no explanation and the prosecution case was conceived and 

constructed after a good deal of deliberation and it is doubtful. It is further 

contended by him that PW 25 Mirza Majid Beg implicated the appellants falsely 

because his son-in-law Khalid was tried for committing the murder of Kallu and 

in the said case the present appellantBanti gave evidence against him as 

prosecution witness, resulting in conviction. It is his further submission that the 

courts below have erroneously believed the uncorroborated testimonies of the 

eye-witnesses and conviction and sentence imposed on the appellants are not 

sustainable in law and liable to be set aside. In support of his submission 

reliance was placed on various decisions of this Court. 

7. Per contra the learned counsel appearing for the respondent 

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418 



contended that the presence of the eyewitnesses at the time of occurrence is 

established and their testimonies have rightly been relied upon by the courts 

below for convicting the appellants and the impugned judgment is sustainable. 

8. Ashok Kumar died of homicidal violence is evident from the medical 

evidence adduced in the case. PW 17 Dr. Arvind Kumar Bohra who conducted 

post mortem found 4 stab incised wounds in the abdomen and 2 incised 

wounds on forehead and left thigh. Exh.P21 is the postmortem report issued by 

him in which he has opined that the cause of death was hemorrhagic shock as a 

result of cutting of pedicle of spleen omental and mesenteric vessels. From the 

above it is clear that Ashok Kumar died of injuries sustained in the occurrence. 

9. The prosecution case is that the appellants (Accused Nos.2, 4 and 5) 

alongwith other accused inflicted injuries with sword and knife to Ashok Kumar. 

During the trial PW 20 Lal Chand, PW 24 Mohammad Shakir and PW 25 Mirza 

Majid Beg were examined as having witnessed the occurrence. PW 20 Lal Chand 

did not support the prosecution case and was declared hostile. PW 25 Mirza 

Majid Beg in his testimony has stated that on 22.1.2001 he started from Kota at 

10 O’ clock and reached Jhalawar at about 12 O’ clock in his Maruti Van driven 

by his driver PW 24 Shakir and halted for 5-10 minutes in the Toll Post and then 

went to the factory of Ashok Kumar to meet him and on reaching there they 

heard the sound of crying and they got down from the vehicle and ran inside the 

factory and saw accused no.2 Banti and accused no.4 Shahid Khan with daggers 

in their hand and accused no.5 Mansoor with Gupti type weapon and all the 

accused were attacking Ashok Kumar with the said weapons. According to him 

he and his driver stood adjacent to the quarter wall inside the factory and saw 

the occurrence and thereafter they ran away from the said place to Toll Tax and 

boarded a tanker lorry and reached the hospital at Jhalawar and they found 

their Maruti vehicle parked in the hospital and they drove from there directly to 

Kota in the said vehicle. It is the testimony of PW 24 Mohamed Shakir that on 

22.1.2001 he drove the Maruti van of PW 25 Mirza Majid Beg from Kota to 

Jhalawar and when they reached the factory of Ashok Kumar they heard the 

sound of crying and both of them got down and rushed inside the factory and 

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saw the appellants and other accused attacking Ashok Kumar with knife and 

they ran to the backside of the factory and hid themselves near the wall and 

after 5-10 minutes they came out and went to the Toll Tax check post and by 

taking a lift in a truck they reached Jhalawar hospital and on seeing their car 

there, both of them drove back to Kota. 

10. Both the above witnesses are residents of Kota which is at a distance 

of about 150 kms. from Jhalawar town. According to PW 25 Mirza Majid Beg he 

went to Jhalawar to meet Ashok Kumar and on reaching the factory at 1.00 p.m. 

they happened to witness the occurrence. It is relevant to point out that PW 9 

Anwar and PW 19 Anil Kumar Jain, who on intimation rushed to the occurrence 

place, did not state that they saw PW 25 Mirza Majid Beg and PW 24 Mohamed 

Shakir in the occurrence place. It is only PW 19 Anil Kumar Jain with the help of 

PW 9 Anwar and PW 20 Lal Chand lifted injured Ashok Kumar and put in the 

Maruti vehicle and took him to Jhalawar hospital, where he was declared dead. 

Thereafter PW 19 Anil Kumar Jain went to the Police Station and lodged the 

written complaint. In the said complaint, the names of the assailants are not 

mentioned and also the names of the persons who were present during the 

occurrence are not mentioned. PW 25 Mirza Majid Beg and PW 24 Mohamed 

Shakir have stated in their cross examination that they did not help PW 9 Anwar 

and PW 19 Anil Kumar Jain to shift the injured to the hospital and they rushed 

towards Toll Tax and reached the hospital in a truck and on seeing their car, 

without entering the hospital, they drove to Kota and they did not inform any 

one about the occurrence and they did not also go to the Police Station for 

lodging the complaint. The High Court in the impugned judgment has concluded 

that the presence of PW 25 Mirza Majid Beg is established in view of the fact 

that his Maruti van was used for shifting injured to the hospital. There was 

nothing on record to show the Maruti vehicle used for transporting Ashok 

Kumar to the hospital belonged to PW 25 Mirza Majid Beg. In fact PW 19 Anil 

Kumar Jain in his cross examination has stated that he did not know the 

Registration number of the Maruti van in which Ashok Kumar was taken to 

hospital and he also did not know whose vehicle it was. In other words, nothing 

419 


420 



is stood established by the use of this Maruti vehicle for transporting to the 

injured to the hospital and in any event this will not clinch the presence of PW 

25 Mirza Majid Beg at the time of occurrence. PW 25 Mirza Majid Beg and PW 

24 Mohamed Shakir slipping away unnoticed by the others particularly after the 

alleged attack is utterly unbelievable. It appears unreal. They are not strange to 

expect and they did not render any help for shifting the injured to the hospital 

nor had the courtesy to go inside the hospital to ascertain the condition and 

also did not inform the occurrence to the police. The aspect of fear is without 

any foundation and is not supported by any evidence of act or conduct. This 

plea does not impress us. In this context, it is relevant to point out that PW 25 

Mirza Majid Beg has admitted that he is a history-sheeter, and two cases under 

NDPS Act were imposed on him and he was also bound down under Section 110 

Cr.P.C. 

11. The statements of PW 25 Mirza Majid Beg and PW 24 Mohamed 

Shakir were recorded after 3 days of the occurrence. No explanation is 

forthcoming as to why they are not examined for 3 days. It is also not known as 

to how the police came to know that these witnesses saw the occurrence. The 

delay in recording the statements casts a serious doubt about their being eyewitnesses 

to the occurrence. It may suggest that the investigating officer was 

deliberately marking time with a view to decide about the shape to be given to 

the case and the eye-witnesses to be introduced. The circumstances in this case 

lend such significance to this delay. PW 25 Mirza Majid Beg and PW 24 

Mohamed Shakir, in view of their unexplained silence and delayed statement to 

the police, does not appear to us to be wholly reliable witnesses. There is no 

corroboration of their evidence from any other independent source either. We 

find it rather unsafe to rely upon their evidence only to uphold the conviction 

and sentence of the appellants. The High Court has failed to advert to the 

contentions raised by the appellants and re-appreciate the evidence thereby 

resulting in miscarriage of justice. In our opinion, the case against the appellants 

has not been proved beyond reasonable doubt. 

12. Consequently, the appeals are allowed and the conviction and 

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sentence of the appellants is hereby set aside. The appellants are on bail. Their 

bail bonds shall stand discharged. 

Ss - 

421 





Present: Justice Ranjan Gogoi and Justice Prafulla C. Pant. 

STATE OF KERALA – Appellant, 

Versus 

P.B. SOURABHAN & Ors. – Respondent. 

Criminal Appeal No. 192 OF 2016 (Arising out of S.L.P.(Crl.) No.9088 of 2012) 

with Criminal Appeal No. 193 of 2016 

(Arising out of S.L.P. (Crl.) No.9388 of 2012) 

(i) Criminal Procedure Code , Section 36 - Whether the State Police 

Chief/Director General of Police is empowered to appoint a superior 

police officer to investigate a crime case registered outside the 

territorial jurisdiction of such officer - Section 36 Cr.P.C, does not in any 

422 


way, debar the exercise of powers by the State Police Chief to appoint 

any superior officer who, in his opinion, would be competent and fit to 

investigate a particular case keeping in view the circumstances thereof - 

Section 36 Cr.P.C does not fetter the jurisdiction of the State Police 

Chief to pass such an order based on his satisfaction - It is the 

satisfaction of the State Police Chief, in the light of the facts of a given 

case, that would be determinative of the appointment to be made in 

which situation the limits of jurisdiction will not act as fetter or come in 

the way of exercise of such jurisdiction by the superior officer so 

appointed - Such an appointment would not be hedged by the 

limitations imposed by Section 36 Cr.P.C. - Kerala Police Act, Section 18. 

[Para 6] 

(ii) Criminal Procedure Code , Section 36 - Power of State Police 

Chief/Director General of Police to appoint a superior police officer to 

investigate a crime case registered outside the territorial jurisdiction of 

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such officer - Power of the State Police Chief would be amenable to 

the judicial process and it can always be subjected to challenge on 

grounds of malafide or as being without justification and reasonable 

cause. [Para 8] 

JUDGMENT 

Ranjan Gogoi, J. – (March 04, 2016 ) - Leave granted. 

2. The short question that arises for decision in the present appeals is 

whether the State Police Chief/Director General of Police is empowered to 

appoint a superior police officer to investigate a crime case registered outside 

the territorial jurisdiction of such officer. 

3. The High Court answered the aforesaid question in the negative 

giving rise to the present appeals by the State as well as by the complainant in 

one of the cases (who is also the accused in the other case) at whose instance 

the appointment was made and authorisation issued by the State Police Chief. 

4. Over certain matrimonial disputes between the parties, two police 

cases i.e. Crime No. 621 of 2011 and Crime No. 637 of 2011 were registered in 

the Pettah Police Station. The complainant in Crime No. 637 of 2011, who is the 

accused in Crime No. 621 of 2011, had filed a representation before the State 

Police Chief for further investigation by a competent/ neutral officer. On the 

said representation, the State Police Chief by an order dated 24.01.2012 

directed the District Police Chief of Thiruvananthapuram City that the Assistant 

Commissioner of Police, Cantonment, Thiruvananthapuram City may be 

entrusted with further investigation of Crime Nos.621 of 2011 and 637 of 2011 

of Pettah Police Station. Pursuant to the above direction of the State Police 

Chief, one M.G.Haridas, Assistant Commissioner of Police, Cantonment, 

Thiruvananthapuram City was authorised to conduct further investigation of the 

two cases and send weekly reports. This was by order dated 12.03.2012 of the 

Deputy Commissioner of Police (L & O) Thiruvananthapuram City. Thereafter it 

appears that the specially authorised and entrusted officer filed an application 

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before the learned trial court for further investigation of the two cases which 

was allowed by the said court on 20.03.2012. The aforesaid order appointing 

M.G. Haridas, Assistant Commissioner of Police, Cantonment to conduct further 

investigation of the two cases and the order of the learned trial court dated. 

20.03.2012 granting permission for further investigation under Section 173(8) 

Cr.P.C were assailed before the High Court. The challenge before the High Court 

was primarily on the ground that the said orders are in excess of the powers 

vested by Section 36 of the Cr. P.C. and that Section 18 of the Kerala Police Act 

which vests the administration, supervision, direction and control of the police 

throughout the State in the State Police Chief cannot override the provisions of 

Section 36 Cr. P.C. 

5. We have heard the learned counsel for the parties and considered 

the matter. 

6. Section 36 of the Cr.P.C. and Section 18(1) of the Police Act are in the 

following terms : 

424 


“36. Powers of superior officers of police :- 

Police officers superior in rank to an officer in charge of a police station 

may exercise the same powers, throughout the local area to which they 

are appointed, as may be exercised by such officer within the limits of 

his station.” 

“18. State Police Chief :- 

(1) The administration, supervision, direction and control of the Police 

throughout the State shall, subject to the control of the Government, be 

vested in an officer designated as the State Police Chief.” 

7. Section 36 empowers police officers superior in rank to an officer in 

charge of a Police Station to exercise the same powers as that of an officer in 

charge of a police station insofar as the territorial/local area within the 

jurisdiction of such superior police officers is concerned. Section 18(1) of the 

State Police Act, on the other hand, vests the administration, supervision, 

direction and control of the police throughout the State in the State Police 

Chief. The power under Section 36, on a plain reading thereof, is to be exercised 

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by the District Police Chief who, by virtue of the said section, is empowered to 

appoint an officer above the rank of an officer in charge of a police station to 

exercise the same powers as may be exercised by an officer in charge of the 

police station. This is, however, subject to the condition that such superior 

officer would be competent to exercise powers within the territorial/local limits 

of his jurisdiction. We do not see how Section 36 Cr.P.C, in any way, can debar 

the exercise of powers by the State Police Chief to appoint any superior officer 

who, in his opinion, would be competent and fit to investigate a particular case 

keeping in view the circumstances thereof. Section 36 Cr.P.C does not fetter the 

jurisdiction of the State Police Chief to pass such an order based on his 

satisfaction. It is the satisfaction of the State Police Chief, in the light of the facts 

of a given case, that would be determinative of the appointment to be made in 

which situation the limits of jurisdiction will not act as fetter or come in the way 

of exercise of such jurisdiction by the superior officer so appointed. Such an 

appointment would not be hedged by the limitations imposed by Section 36 

Cr.P.C. Section 18 of the State Police Act, on the other hand, does not confer 

any such power and merely recognises the State Police Chief as the head of the 

police force in the State. 

8. In the instant case the High Court, in our considered view, was not 

right in reading the constraints imposed by Section 36 of the Cr.P.C. on the 

powers of the State Police Chief to appoint a suitable and competent officer to 

investigate a case irrespective of the limits of local jurisdiction of such officer, if 

such a course of action is required. This is not to say that the power of the State 

Police Chief would not be amenable to the judicial process; it can always be 

subjected to challenge on grounds of malafide or as being without justification 

and reasonable cause. This, however, is not the ground(s) on which the 

impugned actions were challenged before the High Court. Furthermore, a 

perusal of the representation on the basis of which the appointment of the 

special officer was made by the State Police Chief goes to show that what was 

sought for was the appointment of a neutral and impartial police officer to 

conduct further investigation in a fair and unbiased manner without specifically 

425 



naming of any particular officer in the said application. 9. For the aforesaid 

reasons, we cannot agree with the view taken by the High Court and the 

conclusions reached. Consequently, the order dated 01.08.2012 passed by the 

High Court is set aside and both appeals are allowed. 

Ss - 

426 


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Present: T.S. Thakur, CJI, Justice A.K. Sikri and Justice R. Banumathi. 

STATE OF PUNJAB & ors. – Appellant 

VERSUS 

M/S. SHREYANS INDUS LTD. ETC. – Respondent 

Civil appeal nos. 2506-2511 of 2016 

(arising out of SLP(C) nos. 21712-21717 of 2009) 

Punjab General Sales Tax Act, 1948, Section 11(10) - Section 11(3) of the Act, 

time-limit for completing the assessment provided therein is three years from 

the end of the year - Assessing Officer, however, sent notices to the 

respondent-assessee for the respective Assessment Years, after the expiry of 

three years - Extension of time for assessment has the effect of enlarging the 

period of limitation and, therefore, once the period of limitation expires, the 

immunity against being subject to assessment sets in and the right to make 

assessment gets extinguished - Therefore, there would be no question of 

extending the time for assessment when the assessment has already become 

time barred - A valuable right has also accrued in favour of the assessee when 

the period of limitation expires - If the Commissioner is permitted to grant the 

extension even after the expiry of original period of limitation prescribed 

under the Act, it will give him right to exercise such a power at any time even 

much after the last date of assessment - Section 10(11) has to be interpreted 

in the manner which is equitable to both the parties - Therefore, the only way 

to interpret the same is that by holding that power to extend the time is to be 

exercised before the normal period of assessment expires. 

427 


Held, 

In the instant appeals itself, when the last dates of assessment were 

30th April, 2004, 30th April, 2005, 30th April, 2006 and 30th April, 2007, order


extending the time under Section 11(10) of the Act were passed on August 17, 

2007, August 17, 2007, August 17, 2007 and May 25, 2007 respectively. Thus, 

for the Assessment Year 2000-2001, order of extension is passed more than 

three years after the last date and for the Assessment Year 2001-2002, it is 

more than two years after the last date. Such a situation cannot be 

countenanced as rightly held by the High Court. When the last date of 

assessment in respect of these Assessment Years expired, it vested a valuable 

right in the assessee which cannot be lightly taken away. [Para 24] 

JUDGMENT 

A.K. Sikri, J. – (March 04, 2016) - Leave granted. 

2) In these appeals, the judgment which is impugned is passed by the 

High Court of Punjab & Haryana. The issue involved in these appeals is identical 

which pertains to the interpretation that is to be accorded to sub-section (10) of 

Section 11 of Punjab General Sales Tax Act, 1948 (hereinafter referred to as the 

428 


“Act”). It is for this reason that all these appeals were heard together and can 

conveniently be disposed of by one common judgment. Since SLP (C) Nos. 

21712-21717 of 2009 was taken as the lead case, for understanding the nature 

of lis that is involved, the factual narration can be addressed from the said 

appeal. 

3) In these appeals, we are concerned with Assessment Years 2000- 01, 

2001-02, 2002-03 and 2003-04. Obviously, assessment in respect of these 

Assessment Years was to be made under the said Act. The assessee had filed 

quarterly returns in respect of the aforesaid Assessment Years. In terms of 

Section 11(3) of the Act, time-limit for completing the assessment provided 

therein is three years from the end of the year. Accordingly, assessments were 

to be made by 30th April, 2004 for the Assessment Year 2000-01, 30th April, 

2005 for the Assessment Year 2001-02, 30th April, 2006 for the Assessment Year 

2002-03 and 30th April, 2007 for the Assessment Year 2003-04. It is an admitted 

case that no assessment was made in respect of any of these Assessment Years 

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by the aforesaid stipulated dates. 

4) The Assessing Officer, however, sent notices to the respondentassessee 

in Form ST-XIV for the aforesaid Assessment Years, i.e., after the expiry 

of three years. The assessee took an objection that these notices were sent 

beyond the period of assessment and, therefore, it was not permissible for the 

Assessing Officer to issue notice after the expiry of three years and carry on with 

the assessment proceedings. 

5) We may point out that under Section 11(10) of the Act, the 

Commissioner is empowered to extend the period of three years for passing the 

order of assessment for such further period as he may deem fit, after recording 

in writing the reasons for extending such period. When the objection was taken 

by the assessee that the notices were time barred, the Excise and Taxation 

Commissioner, Patiala passed orders dated August 17, 2007 granting extension 

of time. Reason given for extension of time was that the case of the assessee for 

the year 1999-2000 was pending with the Tribunal. This order of extension was 

challenged by the respondent along with the order of assessment passed by the 

Assessing Officer. The Tribunal, however, dismissed the appeal of the assessee 

vide its orders September 13, 2007 holding that since there was a power of 

extension conferred upon the Commissioner under Section 11(10) of the Act, 

the Commissioner was within his powers to extend the period. The contention 

of the assessee was that though there was a power of extension, such a power 

could be exercised only within the limitation prescribed. In other words, it was 

contended that when the normal period of limitation for passing assessment 

order by the Assessing Officer was three years, as per Section 11(3) of the Act, 

the power to extend the period could be exercised within the said period of 

three years and not after the expiry of limitation period. This plea of the 

assessee was rejected by the Tribunal. 

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6) The assessee took up the matter further by filing appeals before the 

High Court. Here, the assessee has succeeded in its submission as the High Court 

of Punjab and Haryana vide impugned judgment dated September 26, 2008 has 

held that once the period of limitation expires, the immunity from subjecting


itself to the assessment sets in and the right to make assessment gets 

extinguished. Therefore, when the period of limitation prescribed in the Act for 

passing the assessment order expires, thereafter, the Commissioner is debarred 

from exercising his powers under sub-section (10) of Section 11 of the Act and 

cannot extend the period of limitation for the purposes of assessment. This 

order is assailed by the Revenue in the instant appeals before us. 

7) It would also be pertinent to note, at this stage, that while arriving at 

the aforesaid conclusion, the Punjab and Haryana High Court has placed heavy 

reliance upon the view taken by a Division Bench of Karnataka High Court in 

430 


Bharat Heavy Electricals Ltd. v. Assistant Commissioner of Commercial Taxes 

(INT-I), South Zone, Bangalore and others, (2006) 143 STC 10 which judgment 

of Karnataka High Court, in turn, refers to similar view taken by Gujarat High 

Court in Javer Jivan Mehta v. Assistant Commissioner of Sales Tax (Appeal), 

(1998) 111 STC 199. Thus, three High Courts have taken identical view, namely, 

though power to extend time of three years for a further period of passing the 

assessment is there with the Commissioner, the same has to be exercised 

before the expiry of normal period of three years and not subsequent there to. 

8) As the submissions of the parties on either side would be better 

understood once the relevant statutory provision is noted, it would be apposite 

to reproduce the provisions of Section 11 of the Act, which are as follows: 

“11. Assessment of tax. - (1) If the Assessing Authority is 

satisfied without requiring the presence of dealer or the production by 

him of any evidence that the returns furnished in respect of any period 

are correct and complete, he shall pass an order of assessment on the 

basis of such returns within a period of three years from the last date 

prescribed for furnished the last return in respect of such period. 

(2) If the Assessing Authority is not satisfied without requiring 

the presence of dealer who furnished the returns or production of 

evidence that the returns furnished in respect of any period are correct 

and complete, he shall serve on such dealer a notice in the prescribed 

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manner requiring him, on a date and at place specified therein, either to 

attend in person or to produce or to cause to be produced any evidence 

on which such dealer may rely in support of such returns. 

(3) On the day specified in the notice or as soon afterwards as 

may be, the Assessing Authority shall, after hearing such evidence as 

the dealer may produce, and such other evidence as the Assessing 

Authority may require on specified points, [pass an order of assessment 

within a period of three years from the last date prescribed for 

furnishing the last return in respect of any period.] 

(4) If a dealer having furnished returns in respect of a period, 

fails to comply with the terms of notice issued under sub-section (2), the 

Assessing Authority shall, [within a period of three years from the 1st 

date prescribed for furnishing the last return in respect of such period, 

pass an order of assessment to the best of his judgment.] 

(5) If a dealer does not furnish returns in respect of any period 

by the last date prescribed the assessing authority shall within a period 

of five years from the last date prescribed for furnishing the return in 

respect of such period and after giving the dealer a reasonable 

opportunity of being heard, pass an order of assessment to the best of 

his judgment. 

431 


(6) IF upon information which has come into his possession, the 

Assessing Authority is satisfied that any dealer has been liable to pay tax 

under this Act in respect of any period but has failed to apply for 

registration, the Assessing Authority shall, within five years after the 

expiry of such period, after giving the dealer a reasonable opportunity 

of being heard, proceed to access, to the best of his judgment the 

amount of tax, if any, due from the dealer in respect of such period and 

all subsequent periods and in case where such dealer has willfully failed 

to apply for registration, the Assessing Authority may direct that the 

dealer shall pay by way of penalty, in addition to the amount so

432 



assessed, in addition to the amount so assessed, a sum not exceeding 

one and a half times that amount. 

(7) The amount of any tax, penalty or interest payavble under 

this Act shall be paid by the dealer in the manner prescribed, by such 

date as may be specified in the notice issued by the Assessing Authority 

for the purpose and the date so specified shall not be less than fifteen 

days and not more than thirty days from the date of service of such 

notice: Provided that the Assessing Authority may, with the prior 

approval of the Assistant Excise and Taxation Commissioner, Incharge of 

the District extend the date of such payment or allow payment by 

instalments against an adequate security or bank guarantee. 

(8) If the tax assessed under this Act or any instalment thereof is 

not paid b y any dealer within the time specified thereof in the notice of 

assessment or in the order permitting payment in installments, the 

Commissioner or any other person appointed to assist him under s9bsection 

(1) of Section 3 may, after giving such dealer an opportunity of 

being heard, impose on him a penalty not exceeding in amount the sum 

due from him. 

(9) Any assessment made under this section shall be without 

prejudice to any penalty imposed under this Act. 

(10) The Commissioner, may for reasons to be recorded in 

writing, extends the period of three years, for passing the order of 

assessment for such further period as he may deem fit. 

(11) Where the proceedings of assessment are stayed by an 

order of any court, the period for which such stay remains in force, shall 

not count towards computing the period of three years specified under 

this section for passing the order of assessment. 

(12) The assessing authority may on his own motion, review any 

assessment order passed by him and such review shall be completed 

within a period of one year from the date of order under review.” 

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9) A mere reading of the aforesaid provision would reflect that 

wherever return is filed by the assessee, assessment is to be made within a 

period of three years from the last date prescribed for furnishing the return in 

respect of such period. On the other hand, in those cases where return is not 

filed or any dealer, who is liable to pay the tax under the Act, does not get 

himself registered therein, the period of assessment prescribed is five years. We 

are not concerned with the alternate situation as in instant appeals not only the 

assessees are registered dealers, they had also filed their returns regularly 

within the prescribed period and, therefore, assessments were to be completed 

within a period of three years from the last date prescribed for furnishing the 

returns, which is the normal period prescribed. At the same time, sub-section 

(10) of Section 11 gives power to the Commissioner to extend a period of three 

years. Interestingly, there is no upper limit prescribed for which the period can 

be extended, meaning thereby such an extension can be given, theoretically, for 

any length of time. This discretion is, however, controlled by obligating the 

Commissioner to give his reasons for extension, and such reasons are to be 

recorded in writing. Obviously, the purpose of giving reasons in writing is to 

ensure that the power to extend the period of limitation is exercised for valid 

reasons based on material considerations and that power is not abused by 

exercising it without any application of mind, or mala fide or on irrelevant 

considerations or for extraneous purposes. Such an order of extension of time, 

naturally, is open to judicial review, albeit within the confines of law on the 

basis of which such judicial review is permissible. 

433 


10) Be that as it may, the question before us is as to whether the power 

to extend time is to be necessarily exercised before the normal expiry of the 

said period of three years run out. 

11) Mr. Ganguli, submitted that there is no such embargo or 

impediment provided in sub-section (10) of Section 11 mandating the 

Commissioner to pass an order of extension necessarily within the normal 

period of three years. He submitted that the word used in the aforesaid


provision 'extension' of time is in contradistinction to the word 'deferment' 

which appears in the Karnataka Legislation. On that basis, he argued that it was 

inappropriate on the part of the High Court to refer to and rely upon the 

judgment of Karnataka High Court inasmuch as provision of law contained in the 

Karnataka Sales Tax Act is entirely different. He further submitted that since in 

Punjab Legislation, the expression used is 'extension of time', the Court was 

required to construe the provision keeping in mind the said language. Mr. 

Ganguli argued that a reading of meaning of expression 'deferment' and 

'extension' of time as contained in Black's Law Dictionary will clearly bring out 

the difference. 

•“defer, vb. 1. To postpone; to delay ” 

•“deferment, n. 1. The act of delaying; postponement ” 

It was submitted that the expressions 'defer' and 'deferment' as can be 

seen from the above definitions, clearly contemplate postponement, which 

presupposes that the time period originally fixed is not extinguished. In other 

434 


words, an action, which is deferred, (i.e. an action which is required to be 

completed within a specified time frame) can only be deferred of which the 

time so fixed has not expired. 

It was submitted that, in contrast, Black's Law Dictionary defines the 

expression 'extension' as follows: 

“Extension, n. 3. Tax. A period of additional time to file an income-tax 

return beyond its due date. 4. A period of additional time to take an action, 

make a decision, accept an offer, or complete a task” 

It was argued that the word 'extension has' varied meanings, dependent 

on the context in which it is used. The expression 'extension' in the context of 

surveillance orders, has been interpreted in the following manner: 

“Where surveillance pursuant to order issued under Title III of Omnibus 

Crime Control and Safe Streets Act is of same premises, involves 

substantially same persons, and is part of same investigation, second 

Title III surveillance order issued after expiration of first order is 

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'extension' of first order for purposes of requirement of sealing of 

recordings, even if there is gap of time in between expiration of first 

order and entry of second.” (Emphasis supplied) 

12) Mr. Ganguli also referred to the concept of extension as 

incorporated in Section 148 of the Code of Civil Procedure, 1908. He relied upon 

the judgment of this Court in D.V. Paul v. Manisha Lalwani, (2010) 8 SCC 546 . 

This Court in paragraph 26 of the said judgment held as under: 

“26. Insofar as the first aspect is concerned Section 148 CPC, in 

our opinion, clearly reserves in favour of the court the power to enlarge 

the time required for doing an act prescribed or allowed by the Code of 

Civil Procedure. Section 148 of the Code may at this stage be extracted. 

“148. Enlargement of time.— Where any period is fixed or 

granted by the court for the doing of any act prescribed or 

allowed by this Code, the court may, it its discretion, from time 

to time, enlarge such period not exceeding thirty days in total, 

even though the period originally fixed or granted may have 

expired.” 

A plain reading of the above would show that when any period 

or time is granted by the court for doing any act, the court has the 

discretion from time to time to enlarge such period even if the time 

originally fixed or granted by the court has expired. It is evident from 

the language employed in the provision that the power given to the 

court is discretionary and intended to be exercised only to meet the 

ends of justice.” 

435 


13) Mr. Ganguli further submitted that even in the context of taxation 

law, a similar reasoning has been adopted by the Court in Commissioner of 

Income Tax, Jullundur v. Ajanta Electricals, (1994) 5 SCC 182 . While 

interpreting Section 139(2) of the Income Tax Act, which empowered the 

Assessing Officer to grant an extension of time for filing of the return of income, 

upholding the power of the Income Tax Officer to extend the time for filing of


the Income Tax return by the assessee even after the expiry of the time 

originally granted, this Court held as follows: 

“9. In this context, the question whether a belated application 

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could be regarded as valid or not has to be considered. As rightly 

pointed out by the Punjab and Haryana High Court while deciding these 

cases under Section 256(2) and by the Calcutta High Court in Sunderdas 

Thackersay & Bros.(137 ITR 646), there are no words of limitation in 

Section 139(2) to the effect that no application could be filed after the 

period allowed had expired. As we have stated earlier, it was a 

procedural provision. The limit of thirty days was not intended to be 

final as discretion was given to the ITO to extend that date. The ITO 

could have been called upon to exercise that discretion for proper 

reasons. No fetters were placed upon the discretion of the ITO as 

regards the number of times he could extend the date or the period for 

which he could extend it. It is conceded that repeated applications could 

be made within the time allowed, in view of the clear indication to that 

effect in Form No. 6, by the use of words “it has not been possible”. If it 

was intended that the application for extension of time under Section 

139(2) was to be made within the time allowed originally or within the 

extended time then the words “it has not been possible” were not at all 

necessary and the words “it is not possible” would have been sufficient. 

Though the rule cannot affect, control or derogate from the section of 

the Act, so long as it does not have that effect, it has to be regarded as 

having the same force as the section of the Act. If Section 139(2) is read 

along with Rule 13 and Form No. 6 it becomes clear that an application 

for extension could be made even after the period allowed originally or 

as a result of extension granted had expired. Keeping in mind the object 

of giving discretion to the ITO and the consequences that were to follow 

from not filing the return within time, we see no justification for reading 

into the section any limitation to the effect that no application could be 

made after the time allowed had expired. We see no good reason to 

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construe the section so narrowly.” (emphasis supplied) 

In that judgment, applying the principles contained in Section 148, CPC, 

it was remarked as under: 

“10. We cannot accept the contention raised on behalf of the 

Revenue that the word ‘extend’ in the proviso to Section 139(2) implies 

that at the time of making the application the time allowed should not 

have expired. Though the Civil Procedure Code by itself does not apply 

to the proceedings under the Income Tax Act, we see no reason why a 

principle of procedure evolved for doing justice to a party to the 

proceeding cannot be called in aid to while interpreting a procedural 

provision contained in the Act. Section 148 of the Code provides that 

where any period is fixed or granted by the court for the doing of any 

act prescribed or allowed by the Code, the court may, in its discretion, 

from time to time, enlarge such period, even though the period 

originally fixed or granted may have expired. Various situations can be 

envisaged where a party to the proceeding is prevented by 

circumstances beyond his control from doing the required act within the 

fixed period. The assessee may be able to point out that because of a 

sudden death in the family or because of his sudden illness of a serious 

nature or because he had to leave for an outside place all of a sudden or 

because he could not return from outside in spite of his best efforts, or 

for other good reasons, as the case may be, he was not able to file the 

return within time............” *Emphasis supplied] 

437 


14) Mr. Ganguli also drew sustenance from the Arbitration Act, 1940 

which gave power to the Court to extend time. It was submitted that this Court 

has held in the matter of Hindustan Steelworks Construction Ltd. v. C. 

Rajasekhar Rao, (1987) 4 SCC 93 that the Court has got the power to extend 

time even after the award has been given or after the expiry of the period 

prescribed from the award. 

15) Mr. Ganguli re-emphasised that reliance upon the decision of


Gujarat High Court in the impugned judgment was untenable as the provisions 

of Karnataka Sales Tax Act are totally different inasmuch as Section 12(6) of the 

Karnataka Act provided only 'deferment'. He submitted that even the judgment 

of Gujarat High Court in Javer Jivan Mehta case was distinguishable since that 

was also a case of exclusion of a period and the issue therein was the 

computation of period of limitation. 

16) The aforesaid contentions were refuted by the learned counsel who 

appeared for assessees in these appeals. It was submitted that sub-section (10) 

of Section 11 states, in no uncertain term, that the assessment order is to be 

438 


passed 'within a period of three years......'. It was emphasised that the word 

'within' was of significance. It was pointed out that before the year 1998, no 

period of limitation was prescribed and such a provision came to be inserted by 

way of amendment vide Act No. 12 of 1998 dated April 20, 1998 . It was further 

argued that sub-section (10) of Section 11 obligates the Commissioner to record 

reasons in writing while extending the period. It was submitted that this 

requirement of recording of reasons came up for consideration before Punjab & 

Haryana High Court and in a series of judgments, it is held that such an order of 

extension of time can be passed only after giving an opportunity of hearing to 

the assessee. The learned counsel referred to the following judgments of the 

High Court: 

(i) State of Punjab, Through Assistant Excise and Taxation 

Commissioner, Bathinda v. M/s. Olam Agro India Ltd. (formerly Olam Export 

India Ltd.); decided by the Punjab & Haryana High Court on August 20, 2013. 

(ii) State of Punjab v. M/s. Olam Agro India Ltd.; Daily Order; Dismissed 

by the Supreme Court vide Oder dated May 08, 2015. 

(iii) A.B. Sugars Limited v. The State of Punjab and others; Decided by 

the Punjab & Haryana High Court on September 01, 2009. 

17) It was also argued that conceptually there was no difference 

between 'deferment' and 'extension' insofar as it related to the issue at hand 

which is concerned with the point of time at which Commissioner is to exercise 

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his powers. For that, the reasons given by Karnataka High Court as well as 

Gujarat High Court holding that such a power gets extinguished with the expiry 

of normal period of limitation prescribed and, therefore, cannot be exercised 

after the limitation period were germane and relevant while construing the 

provisions of sub-section (10) of Section 11 of the Act as well and, therefore, 

those cases were rightly relied upon by the High Court in the impugned 

judgment. 18) In rejoinder, Mr. Ganguli refuted the aforesaid submissions of the 

learned counsel for the assessees. The arguments advanced by him was that the 

submission of the assessees that the Commissioner has to afford an opportunity 

of hearing to the dealer before extending the period of limitation does not arise 

in the present case as this was not the issue raised in the Courts below. He 

argued that the question to be decided in these appeals was as to whether the 

power under sub-section (10) of Section 11 of the Act could be exercised on the 

expiry of the period of three years and this question is not answered in the 

judgments referred to by the opposite party. He further submitted that it is a 

question of fact to be decided in each case as to whether assessee was entitled 

to such a right of hearing and, therefore, this issue could not be taken up for the 

first time in these appeals. 

439 


19) We have bestowed our serious considerations to the submissions 

made by the counsel who argued the matter. 

20) We may say at the outset that though provisions of the Punjab Act 

are couched in different language from Karnataka Act or Gujarat Act, the 

essence of these provisions is same. As noticed above, insofar as scheme of 

Punjab Act is concerned, the assessment order is to be normally passed within a 

period of three years. At the same time, power is given to the Commissioner 

under Section 11(10) of the Act to extend the said period of three years. Once 

such an extension is given, the order is passed even beyond the period of three 

years. Significantly, no upper limit is fixed while giving such extension which 

means that the power can be exercised for extending the period for any length 

of time, subject however to the condition that the Commissioner is bound to 

record the reasons justifying such an extension. Obviously, when the


Commissioner passes such an order and give reasons, not only he would have to 

justify his action of extending time but also the period by which the time is 

extended. In the Karnataka Legislation, the power is of 'deferment'. In that 

Legislation as well, the Assessment Order is to be passed within three years as 

sub-section (5) of Section 12 of Karnataka Sales Tax Act stipulates that no 

assessment shall be made after a period of three years from the date on which 

the return under sub-section (1) of that order is submitted by a dealer subject to 

two provisos mentioned therein. Sub-section (6) of Section 12 mentions as to 

how the period of limitation is to be computed and reads as under: 

“(6) In computing the period of limitation for assessment under 

this Section,- 

(a) the time during which the proceedings for assessment in 

question have been deferred on account of any stay order granted by 

any Court or any other authority shall be excluded; 

(b) the time during which the assessment has been deferred in 

440 


any case or class of cases by the Joint Commissioner for reasons to be 

recorded in writing shall be excluded.” 

21) Clause (b) of sub-section (6) indicates that Joint Commissioner, in 

appropriate cases, may pass an order for deferment of Assessment Order to be 

passed by the Assessing Authority and once such an order is passed, that period 

has not to be counted while computing the period of limitation. Significantly, 

this provision also mandates the Joint Commissioner to record reasons for 

deferring the orders of assessment. In essence, therefore, the purport and 

objective behind the provisions in Punjab Act as well as in Karnataka Act 

remains the same. By making any order of deferment under sub-section (6) of 

Section 12 of Karnataka Sales Tax Act, the Joint Commissioner is, in fact, 

achieving the same purpose of granting more time to the Assessing Officer to 

pass the Assessment Order. Same is the purpose behind sub-section (11) of 

Section 10 of the Punjab Act. In view thereof, it may not be appropriate to go 

into the nuanced distinction between “deferment” and “extension” as per the 

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definitions contained Black's Law Dictionary in the given situation, which is dealt 

with in the instant appeals. 

22) Even otherwise, it is important to understand the ratio laid down in 

the judgment of Karnataka High Court in Bharat Heavy Electricals Ltd. (supra). 

The issue in the said case before the Karnataka High Court was as to whether 

the power to pass a deferment order is to be exercised even after the expiry of 

the period of limitation which was answered in the negative. The reasons given 

in support of this conclusion are as follows: 

“...Deferment of assessment has the effect of enlarging the 

period of limitation which did not expire by the time the deferment 

order is contemplated to be passed. When once the period of limitation 

expires, the immunity against being subject to assessment sets in and 

the right to make assessment gets extinguished. Resort to deferment 

provisions does not retrieve the situation. There is no question of 

deferring assessment which has already become time barred. The 

provision for exclusion of time in computing the period of limitation of 

deferment of assessment is meant to prevent further running of time 

against the Revenue if the limitation had not expired.” (emphasis 

supplied) 

441 


23) It was also observed that upon the lapse of the period of limitation 

prescribed, the right of the Department to assess an assessee gets extinguished 

and this extension confers a very valuable right on the assessee. 

24) If one is to go by the aforesaid dicta, with which we entirely agree, 

the same shall apply in the instant cases as well. In the context of the Punjab 

Act, it can be said that extension of time for assessment has the effect of 

enlarging the period of limitation and, therefore, once the period of limitation 

expires, the immunity against being subject to assessment sets in and the right 

to make assessment gets extinguished. Therefore, there would be no question 

of extending the time for assessment when the assessment has already become 

time barred. A valuable right has also accrued in favour of the assessee when

442 



the period of limitation expires. If the Commissioner is permitted to grant the 

extension even after the expiry of original period of limitation prescribed under 

the Act, it will give him right to exercise such a power at any time even much 

after the last date of assessment. In the instant appeals itself, when the last 

dates of assessment were 30th April, 2004, 30th April, 2005, 30th April, 2006 

and 30th April, 2007, order extending the time under Section 11(10) of the Act 

were passed on August 17, 2007, August 17, 2007, August 17, 2007 and May 25, 

2007 respectively. Thus, for the Assessment Year 2000-2001, order of extension 

is passed more than three years after the last date and for the Assessment Year 

2001-2002, it is more than two years after the last date. Such a situation cannot 

be countenanced as rightly held by the High Court. When the last date of 

assessment in respect of these Assessment Years expired, it vested a valuable 

right in the assessee which cannot be lightly taken away. As a consequence, subsection 

(11) of Section 10 has to be interpreted in the manner which is equitable 

to both the parties. Therefore, the only way to interpret the same is that by 

holding that power to extend the time is to be exercised before the normal 

period of assessment expires. On the aforesaid interpretation, other arguments 

of Mr. Ganguli lose all significance. Argument of learned senior counsel for the 

appellants based on Section 148 of the CPC would be of no consequence. This 

Section categorically states that power to enlarge the period can be exercised 

even when period originally fixed has expired. Likewise, reliance upon Section 

139(2) of the Income Tax Act is misconceived. That provision is made for the 

benefit of the assessee which empowers the Assessing Officer to grant an 

extension of time for filing of the return of income and, therefore, obviously will 

have no bearing on the issue at hand. Moreover, this Court in Ajantha 

Electricals's case (supra), which is relied upon by the learned counsel for the 

appellant, held that the time can be extended even after the time allowed 

originally has expired on the interpretation of the words “it has not been 

possible” occurring in Section 133(2) of the Act. The Court, thus, opined that the 

aforesaid expression would mean that the time can be extended even after 

original time prescribed in the said provision has expired. Same is our answer to 

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the argument of Mr. Ganguli predicated on Section 28 of the Arbitration Act, 

1940 as that provision was in altogether different context. 

25) We, thus, do not find any error in the impugned judgments of 

Punjab and Haryana High Court and as a consequence, dismiss all these appeals. 

Parties are, however, left to bear their own cost. 

Ss --- 

443 





Present: Justice Dipak Misra and Justice Shiva Kirti Singh 

STATE OF M.P. – Appellant, 

Versus 

UDAIBHAN - Respondent. 

Criminal Appeal No. 182 OF 2016 [Arising out of S.L.P.(Crl.)No.8006 of 2012] 

With Criminal Appeal No. 183 OF 2016 [Arising out of S.L.P.(Crl.)No.8011 of 

2012] 

Criminal - Quantum of sentence - It is the duty of the Court awarding 

sentence to ensure justice to both the parties and therefore undue 

leniency in awarding sentence needs to be avoided because it does not 

have the necessary effect of being a deterrent for the accused and does 

not re-assure the society that the offender has been properly dealt with 

- It is not a very healthy situation to leave the injured and complainant 

444 


side thoroughly dissatisfied with a very lenient punishment to the 

accused – High court reduced the sentence for imprisonment which was 

R.I. for 10 years for the offence punishable under Section 307 as well as 

Section 307 read with Section 34 of the IPC to a period already 

undergone by the respondents which was of one year and nine months 

only –The order of punishment imposed by the High Court suffers from 

the vice of being over-lenient even in absence of any mitigating 

circumstance - Apex court held the sentence of rigorous imprisonment 

for three years in place of period already undergone as awarded by the 

High court . 

JUDGMENT 

Shiva Kirti Singh, J. - (March 01, 2016) These appeals by special leave 

have been preferred by State of Madhya Pradesh against common judgment 

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and order dated 14.12.2011 passed in Criminal Appeal Nos.92/2002 and 

106/2002. 

2. By the impugned judgment and order the High Court has partly 

allowed criminal appeals preferred by the three accused, namely, Rajaram, 

Udaibhan and Hakim Singh, respondents in these appeals so as to convert their 

conviction under Section 307 of IPC for Rajaram and under Section 307 read 

with Section 34 of the IPC for the other two appellants into one under Section 

326 for Rajaram and 326/34 for the other two. The High Court did not interfere 

with the fine imposed on the respondents for the offence noted above as well 

as for the offence under Section 323 IPC but reduced the sentence for 

imprisonment which was R.I. for 10 years for the offence punishable under 

Section 307 as well as Section 307 read with Section 34 of the IPC to a period 

already undergone by the respondents which was of one year and nine months 

only. 

3. Since the High Court did not disbelieve the substratum of the 

prosecution case and has maintained the conviction of respondents, albeit for 

an offence minor to one under Section 307 or Section 307 read with Section 34 

of IPC, the only material issue worth consideration in these appeals is whether 

the High Court in the matter of awarding of punishment has ignored the 

relevant considerations and adopted an erroneous approach. The High Court 

accepted the contention advanced on behalf of the accused that the evidence 

on record did not establish any intention on the part of the accused persons to 

kill the complainant or his brother, the two injured in this case. The High Court 

did not doubt nor did the accused persons raise any contention that the injury 

sustained by the complainant on head was not a grievous injury. Being an 

incised wound on temporal region of the head, it was clearly caused by a sharp 

cutting weapon and dangerous to life. The doctor held the aforesaid injury no.1 

on the head to be grievous on the basis of X-ray which showed fracture of the 

skull bone. 

445 


4. The High Court in our considered opinion failed to keep under focus 

various relevant factors for a proper decision on the quantum of sentence which

446 



should have been imposed even for the altered conviction under Section 326 or 

Section 326/34 of the IPC. The prosecution case which has been accepted as 

true disclosed that the complainant Kriparam was called to Panchayat Bhawan 

where the accused persons were already present with weapons. Rajaram was 

having farsa whereas Hakim was armed with an iron rod and Udaibhan with 

lathi. As soon as the complainant arrived he was threatened and assaulted by all 

the three with their respective weapons. Rajaram caused a farsa injury on the 

head, Hakim caused an injury with iron bar on the eyebrow near the right eye. 

Udaibhan gave more than one lathi blows. When complainant’s brother Prabhu 

came for his rescue then he was also assaulted with lathi blows by Udaibhan. 

5. The High Court did not even note down the six injuries on the 

complainant which included a grievous injury on the temporal part, a reddish 

blue mark on the upper side of right eye, another injury having blue mark on the 

forehead and another wound on the eyebrow on the right eye. There was 

hardly any mitigating circumstance to take such a lenient view as has been done 

by the High Court. The law on the principles governing proper sentencing has 

been elaborated by this Court in large number of cases. It is the duty of the 

Court awarding sentence to ensure justice to both the parties and therefore 

undue leniency in awarding sentence needs to be avoided because it does not 

have the necessary effect of being a deterrent for the accused and does not reassure 

the society that the offender has been properly dealt with. It is not a very 

healthy situation to leave the injured and complainant side thoroughly 

dissatisfied with a very lenient punishment to the accused. In the present case 

the order of punishment imposed by the High Court suffers from the vice of 

being over-lenient even in absence of any mitigating circumstance. 

6. In such a situation, the interest of justice requires interference with 

the punishment imposed by the High Court. The ends of justice would be 

satisfied by imposing on all the three accused persons a sentence of rigorous 

imprisonment for three years in place of period already undergone, for the 

offence under Section 326 as well as Section 326/34 of the IPC. The other 

sentence which has been maintained by the High Court is left intact. However, it 

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is clarified that sentence of imprisonment for different offences against the 

respondents shall run concurrently. The impugned judgment and order are 

modified accordingly. The Trial Court shall take all necessary steps to ensure 

that the respondents are taken into custody forthwith to serve out the 

remainder period of imprisonment in connection with Sessions Case No. 

16/2001, tried by Third Additional Sessions Judge, Shivpuri (Madhya Pradesh). 

The appeals preferred by the State are allowed to the aforesaid extent only. 

Ss ---- 

447 






M/S. ARTI SPINNING MILLS ETC. ETC. – Appellants, 

Versus 

STATE OF HARYANA and another – Respondents. 

Civil Appeal Nos.1863-1865 OF 2016 

(Arising out of S.L.P.(C) No.30933-30935 of 2015) 

448 


Delay - Review application - Review application filed before the High 

Court dismissed on the ground of delay of 706 days in filing - Delay of 

1705 days before the Supreme Court – Relates to claim made for 

enhancement of compensation - Review application was filed before 

the High Court seeking land value at the rate of as was granted to the 

adjoining property - Appeals allowed - Appellants shall be entitled to 

land value fixed for adjoining land - However, the appellants shall not 

be entitled for any statutory benefits for a period of 2411 days covered 

by delay before the High Court as well as before this Court - Land 

Acquisition. 

JUDGMENT 

Kurian, J. - (February 26, 2016) - Leave granted. 

2. We have heard learned senior counsel appearing on behalf of the 

appellants as well as learned Advocate General for the State of Haryana. 

3. The appellants are aggrieved by the rejection of the review 

application filed before the High Court on the ground of delay of 706 days in 

filing the review application. There is a delay of 1705 days before this Court. 

4. Be that as it may, the issues pertain to the claim made by the 

appellants for enhancement of compensation. The review application was filed 

before the High Court seeking land value at the rate of Rs.16.08 per acre as they 

are granted to the adjoining property covered by R.F.A. No. 363 of 2005 titled as 

Ram Chand @ Ram Chander (since deceased) through L.R. Raghbir Singh versus 

State of Haryana and others decided on 29.5.2009. 

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5. We also find that this Court in all connected cases have set aside the 

orders passed by the High Court and remanded the matters before the High 

Court. 

6. We are informed, on remand, the High Court, has allowed the review 

application by fixing the compensation at the rate of Rs.16,08,000/- per acre. 

7. Therefore, these appeals are allowed. The appellants shall be entitled 

to land value fixed at Rs.16,08,000/- per acre. However, the appellants shall not 

be entitled for any statutory benefits for a period of 2411 days covered by delay 

before the High Court as well as before this Court. 

Ss ---- 

449 





Present: Justice Jagdish Singh Kheharand Justice R. Banumathi. 

M/S INDIAN INSTT. OF PLANNING & MGMT.& Anr. - Appellants 

Versus 

M/S AK & I ADVERTISING PVT.LTD. – Respondent. 

Civil Appeal No.13700 OF 2015 (Arising out of SLP(C) No.26955 of 2011) 

Arbitration and Conciliation Act, 1996 - Section 11(5) - Only if the 

parties fail to agree to appoint an arbitrator within 30 days from the 

receipt of a request made by one party to the other, then and only 

then, Section 11 of the Act can be invoked seeking a direction at the 

hands of the High Court, to appoint an Arbitrator - Section 2(1)(a) of 

the Act, leaves no room for any doubt, that the term “party” expressed 

in Section 11(5) of the Act is referable to a party to an arbitration 

450 


agreement - No such request had been made by respondent for the 

appointment of an arbitrator, to the appellants, for the settlement of 

their contractual dispute – No document was brought to notice 

indicating that respondent had ever approached the appellants 

requiring the appellants to agree to the appointment of an arbitrator, 

for the settlement of their monetary disputes, emerging out of their 

contractual relationship - Respondent approached the Indian 

Newspaper Society for settling the dispute - Chairman of the INS 

advised the parties to have their dispute amicably settled through 

arbitration - Since parties could not agree to settle their dispute by way 

of arbitration, the respondent approached the High Court under Section 

11 for appointment fo arbitrator - High Court appointed a sole 

arbitrator - Set aside. 

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JUDGMENT 

J.S.Khehar, J. – (November 24, 2015) - Leave granted. 

2. The respondent-M/s AK & I Advertising Pvt.Ltd. and the appellants 

were admittedly in a contractual relationship wherein the respondent was 

assigned with the responsibility of handling advertisement work of the 

appellants. According to the agreement between the parties, the payment 

mechanism settled between the parties required the respondent to raise bills 

with supporting vouchers within 15 to 30 days of the publication of the 

advertisement. The bills were to be honoured within 55 days of the date of 

publication and/or telecast of the advertisement. It is also not a matter of 

dispute, that Clause 11 of the contract contemplated, that disputes and 

differences arising between the parties in connection with their contractual 

obligations would be referred to an arbitrator as agreed to by the parties. And 

that, the dispute would be settled in consonance with the provisions of the 

Indian Arbitration Act. 

3. It is also not a matter of dispute, that consequent upon differences 

arising between the parties, the contract was eventually terminated by the 

appellants in December, 2006. After the termination of the contract, the 

respondent - M/s AK & I Advertising Pvt.Ltd issued a letter requiring the 

appellants to clear the outstanding dues, which were quantified at 

Rs.3,17,82,789/-, and in addition thereto, interest on delayed payment till 

31.12.2006. After the receipt of the aforesaid communication, the appellants 

released an amount of Rs.71,58,100/-, and a further amount of Rs.60,00,000/-, 

totalling in all Rs.1,31,58,100/- (less TDS of Rs.4,12,678/-). 

4. For recovering the remaining principal amount claimed by the 

respondent as also the interest component, the respondent- M/s AK & I 

Advertising Pvt.Ltd approached the Indian Newspaper Society (hereinafter 

referred to as `the INS') for intervening between the parties for settling their 

dispute. During the course of the negotiations, the appellants, through a 

communication dated 24.06.2007, offered a full and final settlement of 

Rs.99,50,000/- (which included Rs.92,00,000/- towards the principal amount 

451 


452 



and Rs.7,50,100/- towards interest). This offer was made towards a full and final 

settlement of all pending dues between the parties. In the ongoing negotiations, 

a meeting was arranged by the then Deputy Secretary of the INS, where both 

the parties participated on 10.07.2007. Thereafter, on 23.07.2007, the 

appellants paid a sum of Rs.92,24,206/- and described the same as - “towards 

full and final settlement”. 

5. It is the contention of the learned counsel for the appellants, that on 

25.06.2007, the Chairman of the INS advised the parties to have their dispute 

amicably settled through arbitration. And for the said purpose, to nominate an 

arbitrator. Even thereafter, through an another communication dated 

06.08.2007, the Chairman of the INS again sought the consent of the rival 

parties for appointment of an arbitrator, with reference to the above subject. 

6. Since the parties could not agree to settle their dispute by way of 

arbitration, the respondent approached the High Court of Delhi by filing 

Arbitration Petition No.16 of 2011, under Section 11 of the Arbitration and 

Conciliation Act, 1996 (hereinafter referred to as `the Act'). The prayer made in 

the above petition was for appointment of an arbitrator with reference to 

monetary obligations arising out of their contractual obliations. This prayer 

made before the High Court by the respondent, was accepted through the 

impugned order dated 10.05.2011. The High Court disposed of the above 

petition by appointing Mr.Ashwini Mata, Senior Advocate, as the sole arbitrator 

to adjudicate the dispute between the parties. While appointing the arbitrator, 

the High Court left open all objections including the objections raised by the 

appellants, that the claim raised by M/s AK & I Advertising Pvt.Ltd was barred by 

limitation. The High Court also determined the fee payable to the arbitrator. 

7. During the course of hearing, learned counsel for the appellants, 

relied upon Section 11 of the Act to assail the validity of the impugned order 

dated 10.05.2011. It was the contention of the learned counsel for the 

appellants, that the mandate of Sub-section (5) of Section 11 required a party to 

a dispute, to enjoin the other party to the contract, to agree to appoint an 

arbitrator, to settle their disputes, and only on the presentation of such request, 

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the other party fails to agree to appoint an arbitrator within 30 days, the 

aggrieved party can approach the jurisdictional High Court under Section 11 of 

the Act, with a request to appoint an arbitrator. In order to understand the 

claim raised by the appellants, it is necessary to extract hereunder Section 11(5) 

of the Act, as also, Section 2(1)(h) defining the term “party”. The above 

provisions are reproduced hereunder.: 

“2. Definitions.-(1) In this Part, unless the context otherwise 

requires,- 

(h) “party” means a party to an arbitration agreement. 

11. Appointment of arbitrators.- 

xxx xxx xxx 

(5) Failing any agreement referred to in subsection (2), in an 

arbitration with a sole arbitrator, if the parties fail to agree on the 

arbitrator within thirty days from receipt of a request by one party from 

the other party to so agree the appointment shall be made, upon 

request of a party, by the Chief Justice or any person or institution 

designated by him.” 

8. Having given our thoughtful consideration to the submissions 

advanced at the hands of the learned counsel for the appellants, we are 

satisfied to hold, that if the parties fail to agree to appoint an arbitrator within 

30 days from the receipt of a request made by one party to the other, then and 

only then, Section 11 of the Act can be invoked seeking a direction at the hands 

of the High Court, to appoint an Arbitrator. Section 2(1)(a) of the Act, leaves no 

room for any doubt, that the term “party” expressed in Section 11(5) of the Act 

is referable to a party to an arbitration agreement. 

9. During the course of hearing, learned counsel for the appellants 

emphasised, that no such request had been made by M/s AK & I Advertising 

Pvt.Ltd for the appointment of an arbitrator, to the appellants, for the 

settlement of their contractual dispute, details whereof have been narrated 

hereinabove. It is the pointed contention of the learned counsel for the 

appellants, that a request for appointment of an arbitrator was made only by 

453 



the Indian Newspaper Society and never by M/s AK & I Advertising Pvt.Ltd. It 

was the submission of the learned counsel for the appellants that the term 

“party” in Section 2(h) of the Act would include either the appellants before this 

Court or M/s AK & I Advertising Pvt.Ltd., and not, the Indian Newspaper Society. 

No document was brought to our notice during the course of hearing by the 

learned counsel for the respondent, indicating that M/s AK & I Advertising 

Pvt.Ltd. had ever approached the appellants requiring the appellants to agree to 

the appointment of an arbitrator, for the settlement of their monetary disputes, 

emerging out of their contractual relationship, with regard to handling of the 

advertisement work of the appellants. 

10. In the above view of the matter, we are satisfied, that it was not 

open to the High Court to invoke its jurisdiction under Section 11 of the Act, for 

nominating/appointing an arbitrator. In view of the above, the impugned order 

passed by the High Court deserves to be set aside, and the same is accordingly 

hereby set aside. 

454 


11. The appeal is accordingly allowed. 

SS --- 

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Present: Justice Dipak Misra and Justice Shiva Kirti Singh. 

ANANT PRAKASH SINHA @ ANANT SINHA – Appellant, 

Versus 

STATE OF HARYANA & Anr. – Respondents. 

Criminal Appeal No.131 of 2016 

(@ Special Leave Petition (Criminal) No. 837 of 2016) 

(i) Code of Criminal Procedure, Section 216 - It is graphic that the court 

can change or alter the charge if there is defect or something is left out - 

The test is, it must be founded on the material available on record - It 

can be on the basis of the complaint or the FIR or accompanying 

documents or the material brought on record during the course of trial - 

It can also be done at any time before pronouncement of judgment - It 

is not necessary to advert to each and every circumstance - If the court 

has not framed a charge despite the material on record, it has the 

jurisdiction to add a charge - Similarly, it has the authority to alter the 

charge - An application was filed by the informant to add a charge 

under Section 406 IPC as there were allegations against the husband 

about the criminal breach of trust as far as her stridhan is concerned - It 

was, in a way, bringing to the notice of the learned Magistrate about 

the defect in framing of the charge - The court could have done it suo 

motu. [Para 16, 20] 

455 


(ii) Code of Criminal Procedure, Section 216 - Court can change or alter 

the charge if there is defect or something is left out - The principle that 

has to be kept in mind is that the charge so framed by the Magistrate is 

in accord with the materials produced before him or if subsequent


evidence comes on record - It is not to be understood that unless 

evidence has been let in, charges already framed cannot be altered, for 

that is not the purport of Section 216 CrPC. [Para 16] 

(iii) Code of Criminal Procedure, Section 216 - Court can change or alter 

the charge - It is obligatory on the part of the court to see that no 

prejudice is caused to the accused and he is allowed to have a fair trial - 

There are in-built safeguards in Section 216 CrPC - It is the duty of the 

trial court to bear in mind that no prejudice is caused to the accused as 

that has the potentiality to affect a fair trial. [Para 17] 

JUDGMENT 

Dipak Misra, J. - (March, 4, 2016) - Despite completion of a decade 

from the date of solemnisation of the marriage and in spite of two off springs in 

456 


the wedlock, neither the time nor the expansion of family nor the concern for 

the children could cement the bond or weld the affinity between the appellanthusband 

and the wife, the 2nd respondent herein, as a consequence of which 

she was compelled to set the criminal law in motion by lodging FIR No. 376 

dated 23.11.2013 which was registered for the offences punishable under 

Section 498A/323/34 of the Indian Penal Code (IPC) against the husband and 

the mother-in-law alleging that the husband was insistent upon getting mutual 

divorce and on her resistance, he had physically assaulted her and deprived her 

of basic facilities of life. All these allegations had the foundation in demand of 

dowry and non-meeting of the same by the family members of wife. After due 

investigation, the prosecuting agency placed the charge-sheet against the 

husband alone for the offences punishable under Section 498A and 323 IPC 

before the learned Judicial Magistrate 1st Class, Gurgaon who eventually vide 

order dated 04.04.2009 framed charges against the husband for commission of 

the said offences. 

2. When the matter was pending before the learned Magistrate, an 

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application dated 31.07.2014 under Section 216 of the Code of Criminal 

Procedure (CrPC) was filed by the informant-wife for framing an additional 

charge under Section 406 IPC against the husband and mother-in-law, Renuka 

Sinha. It was stated in the said application that there was an express complaint 

with regard to misappropriation of the entire stridhan and other articles and 

hence, the accused persons had committed breach of trust, but no charge-sheet 

was filed in respect of the said offence. It was contended that in her statement 

recorded under Section 161 CrPC, she had categorically stated about 

misappropriation of the stridhan by the family members of her husband. The 

learned Magistrate took note of the materials, namely, stridhan list, complaint 

addressed to D.C.P. (East), Gurgaon, statements recorded under Section 161 

CrPC and letter dated 16.11.2013 from Women Cell, D.C.P. (East), Gurgaon and 

came to hold that in view of the specific allegations regarding misappropriation 

of her entire stridhan by the husband and the other statements recorded during 

investigation, a prima facie case for criminal breach of trust was made out and, 

accordingly, allowed the application under Section 216 CrPC against the 

husband and the mother-in-law. Be it noted, a prayer had been made to add the 

charge for the offence under Section 120B IPC also but the same was not 

accepted by the learned Magistrate. 

3. The order passed by the learned Magistrate came to be assailed in 

Criminal Revision No. 5 of 2015 before the learned Additional Sessions Judge, 

Gurgaon and it was contended in the revision that the mother-in-law was not 

charge-sheeted by the police but the trial court had directed to frame the 

charge against her and, therefore, the whole approach was erroneous. It was 

also urged that there was no material to make out a prima facie case under 

Section 406 IPC against the husband. The stand put forth by the revisionist was 

combatted by the prosecution as well as by the informant on the ground that 

the trial court has power to add or alter any charge under Section 216 CrPC and, 

therefore, no exception could be taken to the order passed by the learned 

Magistrate. The revisional court dwelt upon the law pertaining to alteration and 

addition of charges and came to hold that the framing of the charge against 

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mother-in-law was unsustainable but the framing of additional charge under 

Section 406 IPC against the husband, the appellant herein, could not be faulted. 

Being of this view, the revisional court partly allowed the revision petition by 

setting aside the order of framing of charge against the mother-in-law. 

4. The defensibility of the aforesaid order was called in question by the 

husband by preferring a petition under Section 482 CrPC in the High Court of 

Punjab and Haryana forming the subject matter of CRL.M. No. 24510 of 2015. 

The soundness of the order was attacked by placing reliance on the principles as 

elucidated in CBI v. Karimullah Osan Khan, (2014) 11 SCC 538 and Hasanbhai 

Valibhai Qureshi v. State of Gujarat and others, (2004) 5 SCC 347 . As is 

demonstrable from the impugned order, the learned single Judge appreciating 

the ratio of the aforesaid decisions has opined that the court can exercise power 

of addition or modification of charge under Section 216 CrPC on the basis of 

material before the court. The High Court has also observed that the trial court 

has spelt out the reasons that have necessitated for addition of the charge and 

hence, the impugned order did not warrant any interference. To buttress the 

view, the High Court has drawn support from the authority in Jasvinder Saini 

and others v. State (Government of NCT of Delhi), (2013) 7 SCC 256 . 

5. We have heard Mr. Amarendra Sharan, learned senior counsel 

appearing for the appellant and Mr. Sanjay Kumar Visen, learned counsel for the 

respondent-State. 

6. It is submitted by Mr. Sharan, learned senior counsel for the appellant 

that the High Court would have been well within the domain of its jurisdiction in 

exercise of power under Section 482 CrPC in setting aside the orders passed by 

the courts below, for the Magistrate has no power under Section 216 CrPC to 

alter or modify the charge on the basis of an application filed by the informant. 

It is his further submission that the trial court could have altered the charge if 

some evidence had come on record but not on the basis of the material that 

was already on record. Additionally, it is urged by Mr. Sharan that materials on 

record do not remotely attract any of the ingredients of the offence under 

Section 406 CrPC and, therefore, addition of charge in respect of the said 

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offence is wholly unsound and faulty. It has also been argued by Mr. Sharan that 

the charges could not have been added on the basis of an application filed by 

the informant, for such an application as required in law is to be filed only by 

the Public Prosecutor. In support of the aforesaid submissions, he has drawn 

inspiration from the authorities in Harihar Chakravarty v. State of West Bengal, 

AIR 1954 SC 266 , Hasanbhai Valibhai Qureshi (supra), Jasvinder Saini and 

others (supra), Umesh Kumar v. State of Andhra Pradesh and another (2013) 

10 SCC 591 , Karimullah Osan Khan (supra) and orders passed by the High 

Court of Punjab and Haryana in Poonam and anr. V. State of Punjab CRR 657 of 

2015 [High Court of Punjab and Haryana] and Anant Sinha v. State of Haryana 

and ors. Criminal Misc. No. M-1044 of 2014 (O&M) Order dated 07.03.2014 . 

7. Mr. Visen, learned counsel for the respondent-State, has supported 

the order passed by the High Court and submitted that there is no prohibition 

under Section 216 CrPC to alter or add a charge prior to the recording of 

evidence if the court is moved for the said purpose and it is satisfied that charge 

framed by it deserves to be altered or an additional charge is required to be 

added. According to him, the order passed by the High Court being totally 

correct and impenetrable, there is no reason to interfere with the same in 

exercise of jurisdiction under Article 136 of the Constitution of India. Learned 

counsel would further contend that when the Magistrate has jurisdiction to 

rectify the mistake by adding or altering the charge, he can hear the counsel for 

the parties and do it suo motu and an application either filed by the Public 

Prosecutor or by the informant is only to bring the said facts to his notice and in 

any case, that would not invalidate the order. 

8. The controversy as raised rests on two aspects. The first aspect that 

has emanated for consideration is whether without evidence being adduced 

another charge could be added. In this context, we may usefully refer to Section 

216 CrPC which reads as follows:- 

“216. Court may alter charge.— 

(1) Any court may alter or add to any charge at any time before 

judgment is pronounced. 

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460 



(2) Every such alteration or addition shall be read and explained to the 

accused. 

(3) If the alteration or addition to a charge is such that proceeding 

immediately with the trial is not likely, in the opinion of the court, to 

prejudice the accused in his defence or the prosecutor in the conduct of 

the case, the court may, in its discretion, after such alteration or 

addition has been made, proceed with the trial as if the altered or 

added charge had been the original charge. 

(4) If the alteration or addition is such that proceeding immediately with 

the trial is likely, in the opinion of the court, to prejudice the accused or 

the prosecutor as aforesaid, the court may either direct a new trial or 

adjourn the trial for such period as may be necessary. 

(5) If the offence stated in the altered or added charge is one for the 

prosecution of which previous sanction is necessary, the case shall not 

be proceeded with until such sanction is obtained, unless sanction has 

been already obtained for a prosecution on the same facts as those on 

which the altered or added charge is founded.” 

9. The aforesaid provision has been interpreted in Hasanbhai Valibhai 

Qureshi (supra) wherein the Court has observed:- 

“Section 228 of the Code in Chapter XVII and Section 240 in Chapter XIX 

deal with framing of the charge during trial before a Court of Session 

and trial of warrant cases by Magistrates respectively. There is a scope 

of alteration of the charge during trial on the basis of materials brought 

on record. Section 216 of the Code appearing in Chapter XVII clearly 

stipulates that any court may alter or add to any charge at any time 

before judgment is pronounced. Whenever such alteration or addition is 

made, the same is to be read out and informed to the accused.” 

10. In the said case, reference was made to Kantilal Chandulal Mehta v. 

State of Maharashtra (1969) 3 SCC 166 wherein it has been ruled that Code 

gives ample power to the courts to alter or amend a charge provided that the 

accused has not to face a charge for a new offence or is not prejudiced either by 

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keeping him in the dark about the charge or in not giving him full opportunity of 

meeting it and putting forward any defence open to him on the charge finally 

preferred against him. Placing reliance on the said decision, it has been opined 

that if during trial the trial court on a consideration of broad probabilities of the 

case based upon total effect of the evidence and documents produced is 

satisfied that any addition or alteration of the charge is necessary, it is free to do 

so, and there can be no legal bar to appropriately act as the exigencies of the 

case warrant or necessitate. 

11. In Jasvinder Saini and others (supra), the chargesheet was filed 

before the jurisdictional Magistrate alleging commission of offences under 

Sections 498-A, 304-B, 406 and 34 IPC against the appellant Nos. 1 to 4 therein. 

A supplementary charge-sheet was filed in which the appellant Nos. 5 to 8 

therein were implicated for the case to which Section 302 IPC was also added by 

the investigating officer. After the matter was committed to the Court of 

Session, the trial court came to the conclusion that there was no evidence or 

material on record to justify framing of a charge under Section 302 IPC, as a 

result of which charges were framed only under Sections 498-A, 304-B read with 

Section 34 IPC. When the trial court was proceeding with the matter, this Court 

delivered the judgment in Rajbir alias Raju and anr. v. State of Haryana (2010) 

15 SCC 116 , and directed that all the trial courts in India to ordinarily add 

Section 302 to the charge on Section 304-B IPC so that death sentences could be 

imposed in heinous and barbaric crimes against women. The trial court noted 

the direction in Rajbir (supra) and being duty-bound, added the charge under 

Section 302 IPC to the one already framed against the appellant therein and 

further for doing so, it placed reliance on Section 216 CrPC. The said order was 

assailed before the High Court which opined that the appearance of evidence at 

the trial was not essential for framing of an additional charge or altering a 

charge already framed, though it may be one of the grounds to do so. That 

apart, the High Court referred to the autopsy surgeon which, according to the 

High Court, provided prima facie evidence for framing the charge under Section 

302 IPC. Being of this view, it declined to interfere with the order impugned. 

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This Court adverting to the facts held thus:- 

“It is common ground that a charge under Section 304-B IPC is not a 

substitute for a charge of murder punishable under Section 302. As in 

the case of murder in every case under Section 304-B also there is a 

death involved. The question whether it is murder punishable under 

Section 302 IPC or a dowry death punishable under Section 304-B IPC 

depends upon the fact situation and the evidence in the case. If there is 

evidence whether direct or circumstantial to prima facie support a 

charge under Section 302 IPC the trial court can and indeed ought to 

frame a charge of murder punishable under Section 302 IPC, which 

would then be the main charge and not an alternative charge as is 

erroneously assumed in some quarters. If the main charge of murder is 

not proved against the accused at the trial, the court can look into the 

evidence to determine whether the alternative charge of dowry death 

punishable under Section 304-B is established. The ingredients 

constituting the two offences are different, thereby demanding 

appreciation of evidence from the perspective relevant to such 

ingredients. The trial court in that view of the matter acted 

mechanically for it framed an additional charge under Section 302 IPC 

without adverting to the evidence adduced in the case and simply on 

the basis of the direction issued in Rajbir case. The High Court no doubt 

made a half-hearted attempt to justify the framing of the charge 

independent of the directions in Rajbir case (supra), but it would have 

been more appropriate to remit the matter back to the trial court for 

fresh orders rather than lending support to it in the manner done by the 

High Court.” 

12. It is appropriate to note here, the Court further observed that the 

annulment of the order passed by the court would not prevent the trial court 

from re-examining the question of framing a charge under Section 302 IPC 

against the appellant therein and passing an appropriate order if upon a prima 

facie appraisal of the evidence adduced before it, the trial court comes to the 

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conclusion that there is any room for doing so. In that context, reference was 

made to Hasanbhai Valibhai Qureshi (supra). 

13. In Karimullah Osan Khan (supra), the Court was concerned with the 

legality of the order passed by the Designated Court under the Terrorist and 

Disruptive Activities (Prevention) Act, 1987 for Bomb Blast Case, Greater 

Bombay rejecting the application filed by the Central Bureau of Investigation 

(for short “CBI”) under Section 216 CrPC for addition of the charges punishable 

under Section 302 and other charges under the IPC and the Explosives Act read 

with Section 120-B IPC and also under Section 3(2) of the Terrorist and 

Disruptive Activities (Prevention) Act, 1987. The Designated Court framed 

charges in respect of certain offences and when the CBI filed an application for 

addition of the charge under Section 302 IPC and other offences, the Designated 

Court rejected the application as has been indicated earlier. In the said context, 

the Court proceeded to interpret the scope of Section 216 CrPC. Reference was 

made to the decisions in Jasvinder Saini (supra) and Thakur Shah v. King 

Emperor (1942-43) 70 IA 196 : (1943) 56 LW 706 : AIR 1943 PC 192. Proceeding 

further, it has been ruled thus:- 

“17. Section 216 CrPC gives considerable power to the trial court, that 

is, even after the completion of evidence, arguments heard and the 

judgment reserved, it can alter and add to any charge, subject to the 

conditions mentioned therein. The expressions “at any time” and before 

the “judgment is pronounced” would indicate that the power is very 

wide and can be exercised, in appropriate cases, in the interest of 

justice, but at the same time, the courts should also see that its orders 

would not cause any prejudice to the accused. 

18. Section 216 CrPC confers jurisdiction on all courts, including the 

Designated Courts, to alter or add to any charge framed earlier, at any 

time before the judgment is pronounced and sub-sections (2) to (5) 

prescribe the procedure which has to be followed after that addition or 

alteration. Needless to say, the courts can exercise the power of 

addition or modification of charges under Section 216 CrPC, only when 

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there exists some material before the court, which has some connection 

or link with the charges sought to be amended, added or modified. In 

other words, alteration or addition of a charge must be for an offence 

made out by the evidence recorded during the course of trial before the 

court. (See Harihar Chakravarty v. State of W.B. (supra) Merely because 

the charges are altered after conclusion of the trial, that itself will not 

lead to the conclusion that it has resulted in prejudice to the accused 

because sufficient safeguards have been built in Section 216 CrPC and 

other related provisions.” 

14. At this juncture, we have to appropriately recapitulate the principles 

stated in Harihar Chakravarty (supra). In the said case, a complaint was filed 

charging the appellant and another for the offences punishable under Sections 

409, 406, 477 and 114 of the IPC. The complainant and his witnesses were 

examined and on the basis of said evidence, the learned Magistrate had framed 

a charge under Section 409 IPC against the appellant. The appellant entered 

upon his defence and after the trial, the Magistrate acquitted the appellant and 

the other accused under Section 409 IPC. The complainant filed a criminal 

revision before the High Court which set aside the order of acquittal and 

remanded the matter to the Magistrate for decision for amendment of the 

charge by examining appropriate evidence. The said order was the subject 

matter of assail before this Court. This Court, addressing to the merits of the 

case opined thus:- 

“8. This was a private prosecution in which the complainant came 

forward with a story that the never ordered the appellant to purchase 

these shares and that therefore the shares did not belong to him, and 

he had no interest in them or title to them. In fact his case was that the 

shares were never purchased by the appellant under his instructions. All 

that was found to be false and it was found that he did order them to be 

purchased and that therefore the shares were his. The order which was 

made by the learned Judge in effect meant that the complainant should 

abandon his original story to lay claim to the shares and prosecute the 

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Appellant for another and distinct offence which could only arise on a 

different set of facts coming into existence after the purchase of the 

shares. The appellant might or might not be guilty of this other offence, 

but he is certainly innocent of the offence with which he was charged 

and for which he was fully tried and therefore he is entitled to an 

acquittal and the learned Judge had no power to set aside that order so 

long as he agreed, as he did, that the appellant was not guilty of the 

offence with which he was charged. Once a charge is framed and the 

accused is found not guilty of that charge an acquittal must be recorded 

under Section 258(1) of the Criminal Procedure Code. There is no option 

in the matter and we are of the opinion therefore that the order setting 

aside the acquittal was in any event bad. 

9. Next as regards the direction to alter the charge so as to include an 

offence for which the appellant was not originally charged, that could 

only be done if the trial court itself had taken action under Section 227 

of the Criminal Procedure Code before it pronounced judgment. It could 

only have done so if there were materials before it either in the 

complaint or in the evidence to justify such action. 

10. The complaint affords no material for any such case because it is 

based on the allegation that the shares did not belong to the 

complainant and that in fact they were never purchased. The learned 

Judge observed that the contention was that the shares belonged to the 

complainant and were dishonestly pledged by the appellant with the 

Nath Bank. We do not find even a word about this either in the 

complaint or in the examination of the complainant.” *emphasis is 

added] 

15. After so stating, the Court opined that there was no material on 

which the trial court could have amended the charge under Section 227 CrPC 

and the learned Judge therefore had no power to direct an amendment and a 

continuation of the same trial as he purported to do. The purpose of laying 

stress on the said authority is that the trial court could issue a direction for 

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alteration of the charge if there were materials before it in the complaint or any 

evidence to justify such action. On the aforesaid three-Judge Bench decision, it 

is quite vivid that if there are allegations in the complaint petition or for that 

matter in FIR or accompanying material, the court can alter the charge. In 

Thakur Shah v. King Emperor (supra), what the Court has held is that alteration 

or addition of a charge must be for an offence made out by the evidence 

recorded during the course of trial before the court. It does not necessarily 

mean that the alteration can be done only in a case where evidence is adduced. 

We may hasten to clarify that there has been a reference to the decision 

rendered in Harihar Chakravarty (supra) but the said reference has to be 

understood in the context. Section 216 CrPC, as is evincible, does not lay down 

that the court cannot alter the charge solely because it has framed the charge. 

In Hasanbhai Valibhai Qureshi (supra), it has been stated there is scope for 

alteration of the charge during trial on the basis of material brought on record. 

In Jasvinder Saini and others (supra), it has been held that circumstances in 

which addition or alteration of charge can be made have been stipulated in 

Section 216 CrPC and sub-sections (2) to (5) of Section 216 CrPC deal with the 

procedure to be followed once the court decides to alter or add any charge. It 

has been laid down therein that the question of any such addition or alteration 

generally arise either because the court finds the charge already framed to be 

defective for any reason or because such addition is considered necessary after 

the commencement of the trial having regard to the evidence that may come 

before the court. If the said decision is appositely understood, it clear lays down 

the principle which is in consonance with Harihar Chakravarty (supra). 

16. From the aforesaid, it is graphic that the court can change or alter 

the charge if there is defect or something is left out. The test is, it must be 

founded on the material available on record. It can be on the basis of the 

complaint or the FIR or accompanying documents or the material brought on 

record during the course of trial. It can also be done at any time before 

pronouncement of judgment. It is not necessary to advert to each and every 

circumstance. Suffice it to say, if the court has not framed a charge despite the 

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material on record, it has the jurisdiction to add a charge. Similarly, it has the 

authority to alter the charge. The principle that has to be kept in mind is that 

the charge so framed by the Magistrate is in accord with the materials produced 

before him or if subsequent evidence comes on record. It is not to be 

understood that unless evidence has been let in, charges already framed cannot 

be altered, for that is not the purport of Section 216 CrPC. 

17. In addition to what we have stated hereinabove, another aspect also 

has to be kept in mind. It is obligatory on the part of the court to see that no 

prejudice is caused to the accused and he is allowed to have a fair trial. There 

are in-built safeguards in Section 216 CrPC. It is the duty of the trial court to 

bear in mind that no prejudice is caused to the accused as that has the 

potentiality to affect a fair trial. It has been held in Amar Singh v. State of 

Haryana (1974) 3 SCC 81 , that the accused must always be made aware of the 

case against them so as to enable him to understand the defence that he can 

lead. An accused can be convicted for an offence which is minor than the one he 

has been charged with, unless the accused satisfies the court that there has 

been a failure of justice by the non-framing of a charge under a particular penal 

provision, and some prejudice has been caused to the accused. While so stating, 

we may reproduce the following two passages from Bhimanna v. State of 

Karnataka (2012) 9 SCC 650:- 

“25. Further, the defect must be so serious that it cannot be covered 

under Sections 464/465 CrPC, which provide that, an order of sentence 

or conviction shall not be deemed to be invalid only on the ground that 

no charge was framed, or that there was some irregularity or omission 

or misjoinder of charges, unless the court comes to the conclusion that 

there was also, as a consequence, a failure of justice. In determining 

whether any error, omission or irregularity in framing the charges has 

led to a failure of justice, this Court must have regard to whether an 

objection could have been raised at an earlier stage during the 

proceedings or not. While judging the question of prejudice or guilt, the 

court must bear in mind that every accused has a right to a fair trial, 

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where he is aware of what he is being tried for and where the facts 

sought to be established against him, are explained to him fairly and 

clearly, and further, where he is given a full and fair chance to defend 

himself against the said charge(s). 

26. This Court in Sanichar Sahni v. State of Bihar (2009) 7 SCC 198, while 

considering the issue placed reliance upon various judgments of this 

Court particularly on Topandas v. State of Bombay AIR 1956 SC 33 , 

Willie (William) Slaney v. State of M.P. AIR 1956 SC 116 , Fakhruddin v. 

State of M.P. AIR 1967 SC 1326, State of A.P. v. Thakkidiram Reddy 

(1998) 6 SCC 554 , Ramji Singh v. State of Bihar (2001) 9 SCC 528 , and 

Gurpreet Singh v. State of Punjab (2005) 12 SCC 615 , and came to the 

following conclusion: (Sanichar Sahni case (supra), SCC p. 204, para 27) 

“27. Therefore … unless the convict is able to establish that 

defect in framing the charges has caused real prejudice to him 

and that he was not informed as to what was the real case 

against him and that he could not defend himself properly, no 

interference is required on mere technicalities. Conviction order 

in fact is to be tested on the touchstone of prejudice theory.” 

A similar view has been reiterated in Abdul Sayeed v. State of M.P. 

(2010)10 SCC 259 . ” 

18. We have reproduced the aforesaid passages by abundant caution so 

that while adding or altering a charge under Section 216 CrPC, the trial court 

must keep both the aforestated principles in view. The test of prejudice, as has 

been stated in the aforesaid judgment, has to be borne in mind. 

19. Presently to the second aspect. Submission of Mr. Sharan is that the 

learned Magistrate could not have entertained the application preferred by the 

informant, for such an application is incompetent because it has to be filed by 

the public prosecutor. In this regard, he has laid stress on the decision in Shiv 

Kumar v. Hukam Chand and another (1999) 7 SCC 467 . In the said case, the 

grievance of the appellant was that counsel engaged by him was not allowed by 

the High Court to conduct the prosecution in spite of obtaining a consent from 

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the concerned Public Prosecutor. The trial court had passed an order to the 

extent that the advocate engaged by the informant shall conduct the case under 

the supervision, guidance and control of the Public Prosecutor. He had further 

directed that the Public Prosecutor shall retain with himself the control over the 

proceedings. The said order was challenged before the High Court and the 

learned single Judge allowing the revision had directed that the lawyer 

appointed by the complainant or private person shall act under the directions 

from the Public Prosecutor and may with the permission of the court submit 

written arguments after evidence is closed and the Public Prosecutor in-charge 

of the case shall conduct the prosecution. This Court referred to Sections 301, 

302(2), 225 CrPC and various other provisions and came to hold as follows:- 

“13. From the scheme of the Code the legislative intention is manifestly 

clear that prosecution in a Sessions Court cannot be conducted by 

anyone other than the Public Prosecutor. The legislature reminds the 

State that the policy must strictly conform to fairness in the trial of an 

accused in a Sessions Court. A Public Prosecutor is not expected to show 

a thirst to reach the case in the conviction of the accused somehow or 

the other irrespective of the true facts involved in the case. The 

expected attitude of the Public Prosecutor while conducting prosecution 

must be couched in fairness not only to the court and to the 

investigating agencies but to the accused as well. If an accused is 

entitled to any legitimate benefit during trial the Public Prosecutor 

should not scuttle/conceal it. On the contrary, it is the duty of the Public 

Prosecutor to winch it to the fore and make it available to the accused. 

Even if the defence counsel overlooked it, the Public Prosecutor has the 

added responsibility to bring it to the notice of the court if it comes to 

his knowledge. A private counsel, if allowed a free hand to conduct 

prosecution would focus on bringing the case to conviction even if it is 

not a fit case to be so convicted. That is the reason why Parliament 

applied a bridle on him and subjected his role strictly to the instructions 

given by the Public Prosecutor. 

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14. It is not merely an overall supervision which the Public Prosecutor is 

expected to perform in such cases when a privately engaged counsel is 

permitted to act on his behalf. The role which a private counsel in such 

a situation can play is, perhaps, comparable with that of a junior 

advocate conducting the case of his senior in a court. The private 

counsel is to act on behalf of the Public Prosecutor albeit the fact that 

he is engaged in the case by a private party. If the role of the Public 

Prosecutor is allowed to shrink to a mere supervisory role the trial 

would become a combat between the private party and the accused 

which would render the legislative mandate in Section 225 of the Code 

a dead letter.” 

20. Being of this view, this Court upheld the order passed by the High 

Court. The said decision is, in our opinion, is distinguishable on facts. The instant 

case does not pertain to trial or any area by which a private lawyer takes control 

of the proceedings. As is evident, an application was filed by the informant to 

add a charge under Section 406 IPC as there were allegations against the 

husband about the criminal breach of trust as far as her stridhan is concerned. It 

was, in a way, bringing to the notice of the learned Magistrate about the defect 

in framing of the charge. The court could have done it suo motu. In such a 

situation, we do not find any fault on the part of learned Magistrate in 

entertaining the said application. It may be stated that the learned Magistrate 

has referred to the materials and recorded his prima facie satisfaction. There is 

no error in the said prima facie view. We also do not perceive any error in the 

revisional order by which it has set aside the charge framed against the motherin-law. 

Accordingly, we affirm the order of the High Court in expressing its 

disinclination to interfere with the order passed in revision. We may clarify that 

the entire scrutiny is only for the purpose of framing of charge and nothing else. 

The learned Magistrate will proceed with the trial and decide the matter as per 

the evidence brought on record and shall not be influenced by any observations 

made as the same have to be restricted for the purpose of testing the legal 

defensibility of the impugned order. 

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21. Consequently, the appeal, being devoid of merit, stands dismissed. 

Ss ---- 

471 






BALWAN SINGH & ORS. – APPELLANTS, 

VERSUS 

LAND ACQUISITION COLLECTOR & ANR. - RESPONDENTS 

CIVIL APPEAL NOS. 1867-1872 OF 2009 

Land Acquisition Act, 1894, Section 4(1) - Whether the appellants are 

entitled to interest for the period from the date of dispossession to the 

date of Notification under Section 4(1) - Award additional interest by 

way of damages, at the rate of 15% per annum for the period between 

1.7.1984, the date when the appellants were dis-possessed till 2.9.1993, 

the date of Notification under Section 4(1) of the Act. 

JUDGMENT 

472 


Kurian, J. – (March 09, 2016 ) - The short issue arising for consideration 

in this appeal is whether the appellants are entitled to interest for the period 

from the date of dispossession to the date of Notification under Section 4(1) of 

the Land Acquisition Act, 1894 (For short `the Act'). That issue is no more res 

integra. In the case of R.L. Jain (D) by Lrs. v. DDA & Ors. *** reported in (2004) 

4 SCC 79 at paragraph 18, this Court has taken the view that the land owner is 

not entitled to interest under the Act. However, it has been clarified that the 

land owner will be entitled to get rent or damages for use and occupation for 

the period the Government retained possession of the property. 

2. Noticing the above position, this Court in the case of Madishetti Bala 

Ramul (dead) by Lrs. v. Land Acquisition Officer*** reported in (2007) 9 SCC 

650, took the view that it may not be proper to remand the matter to the 

Collector to determine the amount of compensation to which the appellants 

therein would be entitled for the period during which they remained out of 

possession and hence, in the interest of justice, this Court directed that 

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additional interest at the rate of 15% per annum on the amount awarded by the 

Land Acquisition Collector, shall be paid for the period between the date of dispossession 

and the date of Notification under Section 4(1) of the Act. 

3. The said view was followed by this Court in the case of Tahera 

Khatoon & Ors. v. Revenue Divisional Officer/Land Acquisition Officer & Ors. 

reported in (2014) 13 SCC 613. 

4. Following the above view taken by this Court, these appeals are 

disposed of directing the respondents to award additional interest by way of 

damages, at the rate of 15% per annum for the period between 1.7.1984, the 

date when the appellants were dis-possessed till 2.9.1993, the date of 

Notification under Section 4(1) of the Act. 

5. Needless to say that this compensation will be on the basis of land 

value fixed by the Reference Court. The amount as above, shall be calculated 

and deposited before the Reference Court within a period of three months from 

today. 

6. The appeals are disposed of with no order as to costs. 

SS- 

473 






SIDDHARTH CHATURVEDI - Appellant, 

Versus 

SECURITIES AND EXCHANGE BOARD OF INDIA – Respondent. 

Civil Appeal No.14730 Of 2015 With Civil Appeal No. 14728 OF 2015 

(i) SEBI Act Section 15A, 15J - Whether the expression “namely” fixes 

the discretion which can be exercised only in the circumstances mentioned in 

the three clauses set out in Section 15J, or whether it would also take into 

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account other relevant circumstances, having particular regard to the fact that 

it is a penalty provision that the Court is construing - Find it a little difficult to 

accept what is stated in paragraph 5 of SEBI Through its Chairman versus 

Roofit Industries Limited, 2015 (12) SCALE 642- Refer it to a larger Bench for 

such authoritative pronouncement. 

(ii) Words and Phrases - “shall have due regard to” - Is a very known 

legislative device used from the time of Julius v Bishop of Oxford (1880) LR 5 

AC 214 (HL), and followed in many judgments both English as well as of our 

Courts as words vesting a discretion in an Adjudicating Officer 

ORDER 

(March 14, 2016) - These appeals raise an interesting question of the 

interplay between section 15A, as amended in the year 2002, and Section 15J of 

the Securities and Exchange Board of India Act, 1992 (in short 'the SEBI Act') . 

2. The brief facts necessary to understand the present controversy are 

that the appellants before us made certain purchases of shares of the Brijlaxmi 

Leasing and Finance Company between October and December, 2012. On 16th 

June, 2014, in Civil Appeal No.14730 of 2015, a show cause notice came to be 

issued by the respondent SEBI to the appellant under Rule 4(1) of the Securities 

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and Exchange Board of India (Procedure for holding inquiry and imposing 

penalty by adjudicating officer) Rules, 1995 for the alleged violation of the 

provisions of Regulations 13(4), 13(4A) and 13(5) of the Securities and Exchange 

Board of India (Prohibition of Insider Trading) Regulations, 1992. 

3. A detailed reply was filed by the appellant to the show cause notice, 

on 13th August, 2014, submitting that there was no intention to violate any rule 

or regulation. The entire transaction value of purchases and sale of the shares 

did not exceed Rs.55,000/-. It was further submitted that the transaction was 

neither made with a view to make any disproportionate gain or unfair 

advantage nor was it for the purpose of causing any loss to investors. The 

default, if any, was a technical default that did not call for any penal action. 

4. The Adjudicating Officer, by various orders imposed a penalty of Rs.5 

lacs, 7 lacs and 11 lacs respectively, in the three civil appeals, before us. An 

appeal made to the Securities Appellate Tribunal suffered the same fate, and 

was dismissed by the Tribunal stating that there is no dispute that there was 

violation of mandatory regulations, and that in any case, a penalty of Rs.one 

crore could have been imposed on facts, whereas, in fact, the Adjudicating 

Officer penalised the appellants with a penalty of Rs.5 lacs, 7 lacs and 11 lacs 

respectively, which cannot be said to be excessively harsh or unreasonable. 

5. It is these judgments of the Securities Appellate Tribunal, Mumbai 

that have come up before us in these appeals. 

6. Learned counsel appearing on behalf of the appellants has argued 

that Section 15A, after its amendment in 2002, which was the law until the 

section was further amended in the year 2014, would undoubtedly apply to the 

present facts of the case. However, learned counsel submitted that Section 15A 

would, at all times, have to be read with Section 15J of the SEBI Act and that, 

this being so, it is clear that the violation of the regulations being only technical, 

and not involving any disproportionate gain to the appellant, or unfair 

advantage or loss to any investor, SEBI was not, in the first instance, correct in 

imposing any penalty at all. According to the learned counsel for the appellants, 

the defaults that were made were technical, and were made on three days only, 

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and there was no repetitive nature of any default as well. 

7. Mr. C.U. Singh, learned senior counsel appearing on behalf of the 

respondent SEBI has placed before us a judgment of a Division Bench of this 

Court titled as SEBI Through its Chairman versus Roofit Industries Limited,*** 

reported in 2015 (12) SCALE 642. Mr. Singh has pointed out, one may say fairly, 

to us that observations made in paragraph 5 of the said judgment would 

completely foreclose the arguments made by the learned counsel for the 

appellants in the present cases, but that these observations may not constitute 

the ratio of the judgment for the reason that the judgment ultimately construed 

Section 15A prior to its amendment in the year 2002. 

8. It is necessary at this juncture to set out paragraphs 4 and 5 of the 

aforesaid judgment in order to first ascertain as to what this Court has stated :- 

“4. We find merit in the contentions of learned senior counsel 

for the appellant that the penalty imposed by the Adjudicating Officer 

should not have been reduced on wholly extraneous grounds not 

mentioned in Section 15J of the SEBI Act. Section 15J reads thus : 

15J. While adjudging the quantum of penalty under Section 15-I, 

the adjudicating officer shall have due regard to the following facts, 

namely :- 

a. the amount of disproportionate gain or unfair advantage, 

wherever quantifiable, made as a result of the default. 

b. the amount of loss caused to an investor or group of 

investors as a result of the default; 

c. the repetitive nature of the default. 

The use of the word “namely' indicates that these factors alone 

are to be considered by the Adjudicating Officer. Black's Law Dictionary 

defines “namely” as “by name or particular mention. The term indicates 

what is to be included by name. By contrast, including implies a partial 

list and indicates something that is not listed.” In this context, we find 

no reason to read “namely” as “including”, as learned senior counsel for 

the respondent would have us do. 

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5. It would be apposite for us to begin our analysis of the 

penalty to be imposed by laying out Section 15A(a) as it stood 

subsequent to the 2002 amendment, for the facility of reference: 

15A. If any person, who is required under this Act or any rules 

or regulations made thereunder,- 

a. to furnish any document, return or report to the Board, fails 

to furnish the same, he shall be liable to a penalty of one lakh rupees for 

each day during which such failure continues or one crore rupees, 

whichever is less; 

…...... 

In the connected appeals before us, the appellant has imposed 

a penalty of Rs.75 lakhs despite the failure having continued for 

substantially more than 75 days. Learned senior counsel for the 

appellant has contended that the appellant has discretion to impose a 

penalty below the number of days of default regardless of the words 

“whichever is less”. He has argued that there would be no purpose to 

Section 15J if the Adjudicating Officer's discretion to fix the quantum of 

penalty did not exist, and that such an interpretation would render 

certain Sections of the SEBI Act as expropriatory legislation due to the 

crippling penalties they would impose. We do not agree with these 

submissions. The clear intention of the amendment is to impose harsher 

penalties for certain offences, and we find no reason to water them 

down. The wording of the statute clarifies that the penalty to be 

imposed in case the offence continued for over one hundred days is 

restricted to Rs.1 crore. No scope has been given for discretion. Prior to 

the amendment, the section provided for a penalty “not exceeding one 

lakh fifty thousand rupees for each such failure”, thus giving the 

appellant the discretion to decide the appropriate amount of penalty. In 

this context, the change to language which does not repose any 

discretion is even more significant, as it indicates a legislative intent to 

recall and remove the previously provided discretion. Additionally 

477 


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Section 15J existed prior to the amendment and was relevant at that 

time for adjudging quantum of penalty. Once this discretionary power 

of the adjudicating officer was withdrawn, the scope of Section 15J was 

drastically reduced, and it became relevant only to the Sections where 

the Adjudicating Officer retained his prior discretion, such as in Section 

15F(a) AND Section 15HB. This ought to have been reflected in the 

language of Section 15-I, but was clearly overlooked. Section 15J has 

become relevant once again, subsequent to the Securities Laws 

(Amendment) Act, 2014, which changed Section 15A(a), with effect 

from 8.9.2014, to read as follows :- 

15A. Penalty for failure to furnish information, return, etc. - If 

any person, who is required under this Act or any rules or regulations 

made thereunder :- 

a. to furnish any document, return or report to the Board, fails 

to furnish the same, he shall be liable to a penalty which shall not be 

less than one lakh rupees but which may extend to one lakh rupees for 

each day during which such failure continues subject to a maximum of 

one crore rupees; 

The purpose of amendment was clearly to reintroduce the 

discretion of the adjudicating Officer which was taken away by the SEBI 

(Amendment) Act, 2002. Had the failure of the respondent taken place 

between 29.10.2002 and 8.9.2014, the penalty ought to have been Rs.1 

crore, without the possibility of any discretion for reduction.” 

9. Two things have been clearly stated by this Court in so far as the 

amended Section 15A read with Section 15J is concerned. First, this Court has 

indicated that by the use of the expression “namely” in Section 15J, SEBI in 

adjudging the quantum of penalty under Section 15A can have due regard only 

to the three factors set out therein and not to other relevant factors as the 

expression “namely” cannot be equated with the expression “including”, being 

an exhaustive provision on the subject matter covered by the provision. This 

Court has also clearly held that Section 15J would suffer an eclipse for the 

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period 2002 to 2014 inasmuch as the intention of the Legislature, by amending 

Section 15A, seems to be that no scope for any discretion for this period is to be 

exercised, if in fact, there is any infraction of Rules or Regulations. This Court 

clearly held that the discretionary power of the Adjudicating Officer having been 

withdrawn, the scope of Section 15J would correspondingly stand drastically 

reduced. 

10. Prima facie, we find it a little difficult to subscribe to both the views 

contained in paragraph 4 as well as in paragraph 5 of the said judgment. The 

expression “shall have due regard to” is a very known legislative device used 

from the time of Julius v Bishop of Oxford (1880) LR 5 AC 214 (HL), and followed 

in many judgments both English as well as of our Courts as words vesting a 

discretion in an Adjudicating Officer. The question which arises in the present 

appeals is whether the expression “namely” fixes the discretion which can be 

exercised only in the circumstances mentioned in the three clauses set out in 

Section 15J, or whether it would also take into account other relevant 

circumstances, having particular regard to the fact that it is a penalty provision 

that the Court is construing. As this needs to be authoritatively decided for the 

future, it would be better if we refer it to a larger Bench for such authoritative 

pronouncement. 

11. We also find it a little difficult to accept what is stated in paragraph 

5 of the judgment. It is very difficult, keeping in view, particularly, two 

important legal facets – one the doctrine of harmonious construction of a 

statute; and two, the fact that we are construing a penalty provision of a statute 

which is to be strictly construed, Section 15A, post amendment in 2002, is 

suddenly given a pride of place, and Section 15J is made to yield entirely to it. 

The familiar expression “notwithstanding anything contained” does not appear 

in the amended Section 15A. This being the case, it is a little difficult to 

appreciate as to how one can construe Section 15A, as amended, in isolation, 

without regard to Section 15J. In fact, the facts of the present case would go to 

show that where there is allegedly only a technical default, and the three 

parameters of Section 15J would allegedly be satisfied by the appellants, 

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namely, that no disproportionate or unfair advantage has been made as a result 

of the default; no loss has been caused to an investor or group of investors as a 

result of the default; and there is in fact, no repetitive nature of default, no 

penalty at all ought to be imposed. What has been done by the appellants here 

is to fail to adhere to Regulation 13, as alleged in the show cause notice, which 

failure has occurred on three days and consequently, has allegedly not been 

repeated by the appellants anytime thereafter. If we were to read Section 15A, 

as amended in 2002, in the manner suggested by the Division Bench of this 

Court, it may lead to anomalous results in that the effect of continuing failure to 

adhere to statutory regulations alleged to have been continued well beyond the 

period of three days, and which continues till this day, has Rs.1 lakh per day as 

the minimum mandatory penalty under the provisions, which would culminate 

in the appellants herein having to pay Rs.1 crore in each of the three appeals. 

We do not think that this could have been the intention of the Parliament in 

enacting Section 15A, as amended in 2002. We also feel that on the assumption 

that paragraph 5 of the judgment is correct, it would be very difficult for Section 

15A to be construed as a reasonable provision, as it would then arbitrarily and 

disproportionately invade the appellants' fundamental rights. This being the 

case, on both the conclusions reached by this Court in paragraphs 4 and 5, as 

stated by us hereinabove, these matters deserve consideration at the hands of a 

larger Bench. The Registry is, accordingly, directed to place the papers of these 

appeals before Hon'ble the Chief Justice of India for placing these matters 

before a larger Bench. 

12. Interim orders passed by this Court shall continue to operate. 

SS - 

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PRATIBHA RAMESH PATEL – Appellant 

Versus 

UNION OF INDIA AND ORS. – Respondent 

Writ Petition(Civil) no. 35 of 2016 

Constitution of India, Article 32, 226 - Having invoked a constitutional remedy 

before the High Court under Article 226 of the Constitution of India, the 

petitioner cannot, under Law, file another petition under Article 32 of the 

Constitution of India on identical set of facts for identical reliefs -Writ petition 

is dismissed with costs of Rs.1,00,000/- . [Para 10] 

JUDGMENT 

Kurian, J. - (March 09, 2016) - We have heard learned counsel for the 

parties. 

2. This writ petition under Article 32 of the Constitution of India is filed 

mainly with the following prayers :- 

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(a) To declare that sections 2, 12 and 15(a) of the Enforcement of 

Security Interest and Recovery of Debts Laws (Amendment) Act, 2012, which 

has since been notified on 3rd of January, 2013 and the said Act to have 

brought into force as well on 15th January, 2013, as unconstitutional and void 

since the said Act by amendment to the Securitisation and reconstruction of 

Financial Assets and Enforcement of Securities Interest Act, 2002 and the 

Recovery of Debts Due to Banks and Financial Institutions Act, 1993, has 

brought Multi State Co-operative Society within the ambit of SARFAESI ACT, 

2002 and the RDDBFI Act, 1993 and that to further declare that the (Amended) 

Act, 2012 as unconstitutional and void for it is beyond the legislative domain of 

the parliament to enact law concerning the “co-operative societies” except as 

provided for under Articles 249, 250, 252 or 253 of the constitution, and in 

doing so in contravention of Article 245 and 246 read with Schedule VII of the 

Constitution of India, has trenched into the exclusive legislative domain of the


State legislature, nay, had inflicted fatal injury to the federal structure of the 

constitution, which constitute to be the very basic feature of our constitution; 

(b) To declare that, between Securitisation and Reconstruction of 

Financial Assets and Enforcement of Securities Interest Act, 2002 (as amended) 

and the Multi-State Cooperative Societies Act, 2002, provisions of the latter Act 

will prevail for recovery of purported amount due to/from a Co-operative 

Society or a Member or Borrower thereof and vice versa, and that the former 

Act stands ousted; 

(c) To declare that Sections 2, 12 and 15(a) of The Enforcement of 

Security Interest and Recovery of Debts Laws (amendment) Act, 2012, inserting 

sub-section 2(c)(iva) in the Securitisation and reconstruction of Financial Assets 

and Enforcement of securities Interest Act, 2002, and sub-sections 2(d)(vi) and 

19(1A) in Recovery of Debts Due to Banks and Financial Institutions Act, 1993, 

passed by the Parliament, is unconstitutional inasmuch as by the said 

amendment a Co-operative Society, is sought to be brought within the purview 

of the SARFAESI Act, 2002; 

482 


(d) issue a writ in the nature of certiorari or certiorarified prohibition 

or any other appropriate writ or order or direction, quashing and setting aside 

the notice dated 7.10.2013 issued by Respondent Bank under Section 13(2) of 


Securities Interest Act, 2002 and the order of the Ld. District Magistrate, Thane, 

dated 10.04.2015 in Case No. 88/2014, Ld. Tahsildar, Thane Notice No. 

revenue/Room- 1/T-1/Criminal/Vashi/7268/2015/dated 30.04.2015 and the 

two Possession Notices dated 10.12.2015 vide Ref. No. Criminal/201/2015 and 

Ref. No. Criminal/202/2015 issued by Divisional Official, Belapur, (Annexure 

“P2” and Annexure “P3”) as without jurisdiction, in violation of the principles of 

natural justice, section 91 and 91A of the Maharashtra Co-operative Societies 

Act, 1960 (XXIV of 1961) and section 84 of the Multi State Co-operative 

Societies Act, 2002 and hence null and void ab initio and by an order of 

injunction or prohibition restrain the Respondent Bank, its officers, men, 

agents and privies from in any manner interfering with the peaceful possession 

and enjoyment of the petitioner's properties, which the Respondent Bank 

claims to be a secured asset at its hands and, in particular, from dispossessing 

the petitioner of her residential home under the purported powers under 

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Section 13 of the SARFAESI Act, 2002; 

(e) To declare that the notice dated 7.10.2013 purportedly under 

Section 13(2) of the Securitisation and Reconstruction of Financial Assets and 

Enforcement of Security Interest Act, 2002, and impugned order of the Ld. 

District Magistrate, raigad, Alibag dated 30/06/2014 (Annexure “P1” 

purportedly under section 14 of the SARFAESI Act, 2002 in Case No. 18/2014 as 

null and void, being in violation of the principles of natural justice; 

(f) To issue an appropriate writ, order or direction, declaring that the 

respondent banks which are guilty of breach of contract, civil breach of trust, 

culpable negligence, and malicious and tortuous action and therefore no right 

or title has inured in them to invoke sections 5, 6 and 7 much less section 13(2) 

of the SARFAESI Act, 2002, and that in any scenario the respondent banks are 

duty bound to afford an opportunity of being heard to the petitioner/her 

Company before an assignment of the 'security interest' as defined in section 

2(zf) of the SARFAESI Act, 2002, which it falsely claim to be existing in its favour 

to any securitization companies and further that such an obligation, to observe 

the principles of natural justice, is liable to be read into sections 5, 6 and 7 of 

the SARFAESI Act, 2002 and in particularly section 6 thereof. 

(g) issue a writ of prohibition or any other appropriate writ or order 

restraining and prohibiting the respondents its agents, servants and privies 

from classifying the account of the petitioner or her Company as willful 

defaulter and proceeding in any manner or take recourse to any judicial 

proceedings either by way of institution of a petition as against the petitioner 

company or by taking recourse to the statutory powers vested in them under 

section 13 of the SARFAESI Act, for to permit the respondent Bank to do so 

would amount to multiplicity of proceedings, and further to restrain and 

prohibit the Respondent Bank from taking recourse to any precipitatory steps 

including assignment of the petitioner's property to any Asset Reconstruction 

Company; 

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(h) issue a writ of prohibition or any other appropriate writ or order 

restraining and prohibiting the respondents, its agents, servants and privies 

from in any manner interfering with the peaceful possession and enjoyment of 

the properties of the petitioner/petitioner's company or the purported 

borrowers and purported guarantors which the Respondent Bank falsely claim


to be secured assets at its hands and in particular proceeding any further 

pursuant to the notice dated 7.10.2013 purportedly under Section 13(2) of the 


Security interest Act, 2002, and impugned order of the Ld. District Magistrate, 

dated 30/06/2014 purportedly under Section 14 of the SARFAESI Act, 2002 in 

Case No. 18/2014. 

(i) issue a writ in the nature of mandamus or any other appropriate 

writ, order or direction, to the Respondent Bank/Authorised Officer to state on 

affidavit the source of his authority to invoke Section 13 of the Securitisation 

and Reconstruction of Financial Assets and Enforcement of Security Interest 

Act, 2002 and to produce a copy of the Resolution, if any, passed by the Board 

of Directors of the Respondent Bank by which he was appointed as an 

authorized officer to exercise the function under Section 13(2) of the 


Security Interest Act, 2002 and the Security Interest. 

484 


(j) pass any other order or orders which this Hon'ble Court may deem fit and 

proper under the facts and circumstances of the case as also in the interest of 

justice as the nature and circumstances of the case may require.” 

3. The petitioner has filed another writ petition under Article 226 of the 

Constitution of India before the High Court of Bombay, literally with the same 

prayers. In the said writ petition, on 30th October, 2015, the High Court passed 

the following interim order :- 

“Not on Board. Mentioned. 

2.Having heard Mr. Nedumpara, learned counsel appearing for the 

petitioner and since our attention is invited to the communication at pages 59 

and 60 of the paper book, we pass the following order :- 

i. Issue notice to Respondent Nos. 1 and 2 returnable on 4th 

December, 2015. 

ii. On the condition that the petitioner deposits a sum equivalent of 

50% of the amount claimed by respondent Nos. 1 and 2 with Respondent No.1 

Bank on or before 3rd December, 2015 and without prejudice to its rights and 

contentions, there would be adinterim order restraining Respondent Nos. 1 

and 2 and respondent Nos. 5, 6, 7 and 8 from enforcing and executing the 

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order passed under Section 14 of the SARFAESI Act in Case No. 18 of 2014. 

iii. If the amount as mentioned above, is not deposited on or before 

3rd December, 2015, the ad-interim order to stand vacated without any further 

reference to the Court. 

3. Needless to clarify that this order and direction is without prejudice 

to the rights and contentions of all parties.” 

4. Admittedly, the said order was not complied with and therefore, 

interim order stood vacated. But the writ petition having been admitted by the 

Court is still pending before the High Court. 

5. In the writ petition filed under Article 32 of the Constitution of India, 

before this Court, the petitioner has, no doubt, disclosed filing of the writ 

petition before the High court at paragraph 39. To the extent relevant, the 

statement reads as follows :- 

“The petitioner instituted the petition under Article 226 of the 

Constitution of India, seeking a declaration that the measures under Sections 13 

and 14 of the SARFAESI Act, 2002 are void ab initio. The Hon'ble High Court, 

Bombay was pleased to admit the said Writ Petition. Though the Hon'ble High 

Court, Bombay, was pleased to admit the said Writ Petition it was not inclined 

to stay the proceedings under Sections 13 and 14 of the SARFAESI Act, 2002 

unconditionally. The Hon'ble High Court was pleased to grant an injunction, 

however, the condition subject to which the interim injunction was granted was 

erroneous that the petitioner was unable to comply with the same. Considering 

the larger issue, the petitioner, has instituted the instant Writ Petition under 

Article 32 of the Constitution of India before this Hon'ble Court....” 

485 


6. In I.A. No.2 of 2016, the Respondent No.2 has produced copy of the 

Writ Petition No. 3145 of 2015 filed by the writ petitioner before the High Court 

of Bombay. 

7. We have gone through the pleadings in both the writ petitions. 

8. Virtually, the writ petition filed before this Court is a true copy of the 

writ petition filed by the petitioner under Article 226 of the Constitution of India 

before the High Court except for the disclosure of the pendency of the writ


petition and some other minor changes. 

9. What is revealed from what we have narrated above is certainly 

shocking. The petitioner having filed a writ petition before the High Court under 

Article 226 of the Constitution of India, the writ petition having been admitted 

by the Court, the High Court having granted an interim order which has worked 

itself out and the petition is still pending before the High Court, filing a writ 

petition under Article 32 of the Constitution of India before this Court is nothing 

but an abuse of process of the Court, if not misuse. 

10. Having invoked a constitutional remedy before the High Court under 

Article 226 of the Constitution of India, the petitioner cannot, under Law, file 

another petition under Article 32 of the Constitution of India on identical set of 

facts for identical reliefs. 

11. In the above circumstances, this writ petition is dismissed with costs 

of Rs.1,00,000/- (rupee one lakh only) to be deposited with the Supreme Court 

Legal Services committee within four weeks. 

486 

SS - 


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SHAKUNTALA YADAV and others – Appellant, 

Versus 

STATE OF HARYANA and others – Respondent. 

Civil Appeal Nos.2174-2175 Of 2012 With Civil Appeal Nos. 2176-2177 of 2012 


under Lal Dora in terms of letter of the Finance Minister of Haryana - 

High Powered Committee turned down the request on the ground that 

possession of the property had already been taken, pursuant to Award 

and that the same had already been handed over to Haryana Urban 

Development Authority - There being no Rojnama to show that the 

physical possession had already been taken, nor any pleadings in that 

regard - Find it difficult to appreciate the submission made by the State 

that the possession had already been taken and handed over to HUDA - 

Unless the property is taken possession of, in accordance with law, 

there arises no question of handing over the property to HUDA - 

Symbolic possession, as has been held in Raghbir Singh Sehrawat v. 

State of Haryana and others,***, (2012) 1 SCC 792 will not serve the 

487 


purpose . [Para 13] 

JUDGMENT 

Kurian, J. – (March 09, 2016 ) - We have heard learned counsel for the 

parties. 

2. The appellants are aggrieved since their request for release of 1.23 

acres of land falling in Khasra No. 23/8/1, 8/2, 9/2, 12/2 and 13/1 in village 

Sahaul, Tehsil and District Gurgaon and .25 acres of land falling I Khasra No. 

23/10/1 in the same village has been rejected.


3. Placing reliance on the letter of the Finance Minister of Haryana, for 

releasing lands coming under Lal Dora, the appellants approached the High 

Powered Committee. It appears that the High Powered Committee turned down 

the request on the ground that possession of the property had already been 

taken, pursuant to Award passed on 12.3.2004 and that the same had already 

been handed over to Haryana Urban Development Authority (in short 'the 

HUDA'). That decision of the High Powered Committee was challenged before 

the High Court leading to the impugned judgments. 

4. The High Court endorsed the view taken by the High Powered 

Committee and has held that once the acquired land has already been taken 

possession of, there is no question of release under Section 48 of the Land 

Acquisition Act, 1894 (in short 'the Act'). 

5. Learned counsel appearing for the State sought to establish that the 

land had already been taken possession of, by inviting our attention to the order 

passed by the High Powered Committee on 28.3.2008, wherein it is stated as 

488 


follows :- 

“8. In fact the petitioner had two pockets of land measuring 1.23 acres 

falling in Khasra No. 23/8/1, 8/2, 9/2, 12/2, 13/1 and 0.25 acres falling in Khasra 

No. 23/10/1. The applicants had applied for change of land use of these khasra 

numbers for setting up of information technology unit on 5.12.2005 in the 

office of Director, Town and Country Planning. The said application was 

returned vide No. G-1721-AD(B)- 2006/9881 dated 21,4,2006 mentioning that 

the applied land is under acquisition and the applicants were asked to get the 

land released and then apply for change of land use permission. The land is 

already acquired and HUDA has taken a possession of land of other land 

owners vide Rapat Rojnamcha dated 12.3.2004. It was also informed by Chief 

Town Planner (HUDA) that HUDA has planned industrial plots on this land and 

allotted 11 No. such plots. It was noted that land of the applicant is lying 

vacant. Since as mentioned above the land is awarded, possession of the 

adjoining land stands taken and also stands allotted by HUDA, therefore, the 

land of the petitioner mentioned in CWP No. 10294/2004 and 14669 of 2005 

cannot be considered for release.” 

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6. We find it difficult to appreciate the contention of the learned counsel for the 

State, that the High Powered Committee had taken note of the fact of taking 

possession. On the other hand, what is revealed from the order is that the lands 

which were taken possession and handed over to HUDA was that of other land 

owners. The stand in the counter affidavit is not clear on the aspect of taking 

possession. On the other hand, the appellants assert that they have never been 

dispossessed from the land. 

7. In the above circumstances, this Court on 7th July, 2010 passed the 

following order :- 

“Learned counsel for the petitioners submits that in pursuance of the 

orders of the Finance Minister of Haryana, issued in the year 1981, two acres of 

land of Lal Dora on all four sides of the lands in Village Sarhaul, Tehsil and 

District Gurgaon was left free from acquisition and this has been confirmed by 

the Land Acquisition Officer, Urban Estate, Gurgaon, Haryana by letter dated 

2.3.2005 and by the District Town Planner Enforcement, Gurgaon in his letter 

dated 9.6.2006 addressed to Millennium Industries Private Limited who are 

neighbours of petitioners. He also submits that on the basis of the said 

direction, the land of Millennium Industries Private Limited has been left out of 

acquisition. It is submitted that the land of the petitioners also falls within the 

two acres area around the village as in the case of Millennium Industries 

Private Limited but the High Powered Committee (HPC) has erroneously 

refused to leave out the land of the petitioners. 

489 


In view of the said submissions, issue notice. Status quo regarding 

possession.” 

8. Thereafter it is seen that the matters were adjourned from time to time, to 

13.9.2010, 9.11.2010, 22.2.2011, 30.3.2011, 4.5.2011 all before the Registrar 

and on 22.7.2011 before the Court. Thereafter, on 26.8.2011, this Court passed 

a specific order that the counter affidavit was vague on the aspect of Lal Dora 

and Millennium Industries Private Limited, specifically referring to in the order 

dated 7th July, 2010. The order dated 26.8.2011 reads as follows :- 

“We find that the counter affidavit filed on behalf of respondents 1 to 

3 does not deal with the submission that was recorded by this Court in the


order dated 7.7.2010. 

At this stage, learned counsel for the respondents submitted that an 

additional affidavit with reference to the order dated 7.7.2010 will be filed. 

Finally, adjourned by four weeks.” 

9. On 23.9.2011, since time was sought for additional affidavit, a 

detailed order was passed, which reads as follows :- 

“By order dated 7.7.2010, we had noted the submission of the 

490 


petitioner that on the orders of the Finance Minister of Haryana, issued in the 

year 1981, two acres of land of Lal Dora on all four sides in village Sarhaul, 

Tehsil and District Gurgaon was left free from acquisition and this has been 

confirmed by the Land Acquisition Officer, Urban Estate, Gurgaon, Haryana by 

letter dated 2.3.2005 and by the District Town Planning and Enforcement by 

letter dated 9.6.2006. The contention of the petitioner was that on that ground 

the lands of Millennium Industries Private Limited who are neighbours of 

petitioners were left out of acquisition, but their land, which is similarly 

situated, has not been left out. In the counter filed, this issue was not dealt 

with and consequently on 26.8.2011, when we drew the attention to this fact, 

the learned counsel for the respondent submitted that an additional affidavit 

will be filed. But the said additional affidavit has not been filed. Learned 

counsel for respondents 1 to 3 again seeks time. We find no reason to grant 

further time. However, finally four weeks' time is granted to file an additional 

affidavit subject to deposit of Rs.2500/- as costs with the Supreme Court Legal 

Services Committee and producing acknowledgment within that period. 

List thereafter.” 

10. Despite the State being put on cost for filing additional affidavit, it 

was noted by this Court when the matter was taken up thereafter on 

21.11.2011, that the additional affidavit had not been filed. Hence four weeks' 

more time was granted and the matter came up before this Court again on 

3.1.2012. It was noted that neither the cost was deposited nor the affidavit 

filed. Therefore, this Court imposed a further cost of Rs.5000/- and gave one 

more opportunity, by way of last indulgence, to file the additional affidavit. Yet 

the additional affidavit was not filed and therefore, on 10th February, 2012, this 

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Court passed the following order :- 

“Right of the respondents to file additional affidavit is closed. 

Delay condoned in filing special leave petitions. 

Leave granted. 

List the matters for hearing at an early date. 

In the meanwhile, interim order to continue.” 

11. We have extensively referred to the background of the case before 

this Court only to indicate that there was no assistance on the two crucial 

aspects which are actually pivotal for a decision in the case. 

12. The High Court, unfortunately, has gone only on one tangent that 

the land having vested with the Government on operation of Section 16 of the 

Act, the request for release under Section 48 cannot be considered. An attempt 

for review, when the appellants pointed out the instance of Millennium 

Industries Private Limited, in similar circumstances, was also turned down, 

without going into those aspects, by passing a cryptic order. 

13. There being no Rojnama to show that the physical possession had 

already been taken, nor any pleadings in that regard, we find it difficult to 

appreciate the submission made by the learned counsel for the State that the 

possession had already been taken and handed over to HUDA. Unless the 

property is taken possession of, in accordance with law, there arises no question 

of handing over the property to HUDA. Symbolic possession, as has been held 

by this Court in (2012) 1 SCC 792 titled as Raghbir Singh Sehrawat v. State of 

Haryana and others,*** will not serve the purpose . 

491 


14. In case the land of the appellants is in Lal Dora, we find no reason to 

deny, a similar treatment as has been granted to Millennium Industries Private 

Limited. However, on the pleadings available before this Court, we find it 

difficult to arrive at a definite conclusion in that regard. Therefore, we deem it 

just and proper to remand the matter to the High Powered Committee. 

15. In the above circumstances, the appeals are allowed, the impugned 

orders passed by the High Court are set aside. The impugned order passed by


the High Powered Committee is also set aside. The request made by the 

appellants for release of their land are remanded to respondent No.3 – High 

Powered Committee for consideration afresh. 

16. We make it clear that the request of the appellants shall not be 

turned down, on the ground of operation of Section 16 of the Act. In case it is 

found that the land is in Lal Dora, they shall also be granted similar treatment, 

as has been given to Millennium Industries Private Limited. 

17. The orders, as above, shall be passed expeditiously by Respondent 

No.3 – High Powered Committee, at any rate, within a period of three months 

from the date of production of copy of this judgment. In the event of any delay 

beyond the said period, the members of the Committee shall be personally 

liable for costs to the tune of Rs.500/- (rupees five hundred only) each per day. 

18. Till orders are passed, as above, the interim orders passed by this 

Court to maintain status quo, with regard to possession, will continue to 

operate. 

492 


19. No order as to costs. 

Ss - 

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Present: Justice Ranjan Gogoi, Justice Arun Mishra and Justice Prafulla C. Pant. 

UNION OF INDIA - Petitioner, 

Versus 

M/s. AMBICA CONSTRUCTION - Respondent. 

Special Leave Petition [C] No.11114/2009 (With SLP [C] No.17219/2009] 

Arbitration Act, 1940 - Power of the Arbitrator to award pendente lite 

interest when contract contains bar for grant of interest in a case 

covered by the Arbitration Act, 1940 - In our opinion, it would depend 

upon the nature of the ouster clause in each case - In case there is 

express stipulation which debars pendente lite interest, obviously, it 

cannot be granted by Arbitrator - The award of pendente lite interest 

inter alia must depend upon the overall intention of the agreement and 

what is expressly excluded - Thus, our answer to the reference is that if 

contract expressly bars award of interest pendente lite, the same 

cannot be awarded by the Arbitrator - Also make it clear that the bar to 

award interest on delayed payment by itself will not be readily inferred 

as express bar to award interest pendente lite by the Arbitral Tribunal, 

as ouster of power of Arbitrator has to be considered on various 

relevant aspects referred to in the decisions of this Court. [Para 14, 24] 

493 


Held, 

The decision in Madnani Construction Corporation (2010) 1 SCC 549, 

has followed decision in Engineers-De-Space-Age, (1996) 1 SCC 516. Same is 

also required to be diluted to the extent that express stipulation under contract 

may debar the Arbitrator from awarding interest pendente lite. Grant of 

pendente lite interest may depend upon several factors such as phraseology 

used in the agreement, clauses conferring power relating to arbitration, nature


of claim and dispute referred to Arbitrator and on what items power to award 

interest has been taken away and for which period. [Para 23] 

JUDGMENT 

494 


Arun Mishra, J. - (March 16, 2016) - The issue involved in the reference 

is in regard to the power of the Arbitrator to award pendente lite interest when 

contract contains bar for grant of interest in a case covered by the Arbitration 

Act, 1940 (hereinafter referred to as “the Act”). A Division Bench of this Court 

had doubted the correctness of the decisions in Board of Trustees for the Port 

of Calcutta v. Engineers-De-Space-Age*** (1996) 1 SCC 516; and Madnani 

Construction Corporation (P) Ltd. v. Union of India and Others*** (2010) 1 SCC 

549. In view of the decision of the Constitution Bench judgment in Secretary, 

Irrigation Department, Government of Orissa & Ors. v. G.C. Roy*** (1992) 1 

SCC 508 and Executive Engineer, Dhenkanal Minor Irrigation Division, Orissa & 

Ors. v. N.C. Budharaj (D) by L.Rs. & Ors. (2001) 2 SCC 721 which held that the 

Arbitrator had the jurisdiction and authority to award interest for pre-reference 

period, pendente lite and future period if there was no express bar in the 

contract regarding award of interest. A doubt was expressed about the 

correctness of the decision in Engineers-De-Space Age (supra) in Sayeed Ahmed 

& Co. v. State of U.P. & Ors. *** (2009) 12 SCC 26 and Sree Kamatchi Amman 

Constructions v. Divisional Railway Manager (Works), Palghat & Ors. (2010) 8 

SCC 767. Hence the matter had been referred to a larger Bench for decision. 

2. The case has a chequered history. The tender of M/s. Ambica 

Construction for fabrication of tie bars from M.S. Flats in CST-9 sleepers was 

accepted on 8.9.1989. Final agreement was executed on 30.11.1989. The work 

was completed on 21.11.1990. With respect to payments, certain differences 

and disputes arose between the parties. Thus M/s. Ambica Construction prayed 

for appointment of an Arbitrator. On 5.3.1991 as the petitioner M/s. Ambica 

Construction was in serious financial difficulties, it accepted the amount in full 

and final settlement. Later on, the Union of India informed the petitioner on 

11.3.1991 that the matter was under consideration. However the Arbitrator was 

not appointed. An application under section 20 of the Act was filed before the 

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High Court of Calcutta for referring the case to arbitration. On 2.6.1992 the High 

Court directed to file the arbitration agreement in the court and appointed two 

Arbitrators in terms of the arbitration clause. Said Arbitrators failed to publish 

the award and as such an application was filed for revocation of the authority of 

joint Arbitrators and another sole Arbitrator was appointed. The sole Arbitrator 

ultimately published the award on 30.12.1997. On an application filed by the 

Union of India, the High Court vide order dated 9.4.1998 remitted the award to 

the Arbitrator to give an item-wise break-up. On 12.5.1998 the sole Arbitrator 

published the item-wise award. Again the Union of India questioned the same 

before the High Court. The award was set aside on the ground that the 

Arbitrator had not given an intelligible award in terms of clause 64(3)(a) (iii) of 

the agreement and had not taken into effect the supplementary agreement 

dated 5.3.1991. The appeal preferred by the petitioner was dismissed by the 

Division Bench of the High Court on 15.10.2004 against which an SLP was filed in 

which leave was granted and ultimately C.A. No.6621/2005 was allowed and 

case was remitted vide order dated 7.11.2005 passed by this Court to the 

Arbitrator for assigning reasons and to pass fresh award. Thereafter, Arbitrator 

passed a fresh award on 11.2.2006. Again an application was filed by the Union 

of India under sections 30 and 33 of the Act. The Single Judge dismissed the 

application vide order dated 26.6.2007. Union of India filed an application for 

recall. The order dated 26.6.2007 was recalled. Vide order dated 22.8.2007 

learned Single Judge set aside the award with regard to interest for prereference 

period and directed that interest would be allowed on the principal 

sum of Rs.9,82,660/- at the rate of 10% per annum from 1.9.1992 the date from 

which the original Arbitrator entered upon the reference. An appeal was 

preferred before the Division Bench and the same had been partly allowed with 

regard to claim Nos.6 and 7. Aggrieved thereby, M/s. Ambica Construction had 

preferred S.L.P. [C] No.17219/2009 in this Court and Union of India has also 

assailed the judgment and order of the High Court in S.L.P. [C] No.11114/2009. 

3. The only question for consideration is whether an Arbitrator has the power to 

award pendente lite interest in case contract bars the same in a case covered by 

495 



Act and decisions of this Court in Engineers De-Space Age (supra) and Madnani 

Construction Corporation (P) Ltd. (supra) have been correctly decided. 

4. It was submitted on behalf of the Union of India that the Arbitrator is 

bound by the terms of the contract and cannot award interest in case the 

contract bars the same. On the other hand, learned counsel appearing on behalf 

of M/s. Ambica Construction has contended that in view of the decision in 

Engineers-De-Space Age (supra) followed in Madnani Construction Corporation 

(P) Ltd. (supra) notwithstanding the terms in the contract agreement barring 

the award of interest would cover the prereference period and not pendente 

lite interest. 

5. There are certain provisions which are statutorily implied in 

arbitration agreement unless excluded in the agreement. Section 3 of the Act of 

1940 deals with the provisions which are implied in the arbitration agreement. 

Section 3 is extracted below : 

“3. Provisions implied in arbitration agreement.— 

496 


An arbitration agreement, unless a different intention is expressed 

therein, shall be deemed to include the provisions set out in the First 

Schedule in so far as they are applicable to the reference.” 

The provisions of section 3 make it clear that unless a different intention 

is expressed in the arbitration agreement, the agreement would include the 

provisions contained in the First Schedule so far as they are applicable to the 

reference. Provisions in the First Schedule contain 8 paragraphs. It provides for 

reference to a sole Arbitrator and in case there are even numbers of Arbitrators, 

appointment of umpire is also provided. An Arbitrator is required to pass award 

within 4 months from the date of entering on the reference. In case Arbitrator 

fails to pass an award within the specified time the umpire shall make the award 

within 2 months. Para 6 of First Schedule provides that the Arbitrator or umpire 

shall examine the matters in difference and the award shall be final and binding. 

Arbitrator or umpire has the power for examining the witnesses and production 

of relevant documents. Para 8 of Schedule I provides for costs of reference and 

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awards shall be in the discretion of the Arbitrator. 

6. “Court” has been defined in section 2(c) of the Act to mean a civil 

court having jurisdiction to decide the questions forming the subject-matter of 

the reference. Section 41 of the Act is extracted hereunder: 

“41. Procedure and powers of Court. – Subject to the provisions of this 

Act and of rules made thereunder : 

(a) The provisions of the Code of Civil Procedure, 1908 (5 of 1908), shall 

apply to all proceedings before the Court, and to all appeals, under this 

Act, and 

(b)The Court shall have, for the purpose of, and in relation to arbitration 

proceedings, the same power of making orders in respect of any of the 

matters set out in the Second Schedule as it has for the purpose of, and 

in relation to any proceedings before the Court: 

Provided that nothing in CI. (b) shall be taken to prejudice any power 

which may be vested in an Arbitrator or umpire for making orders with 

respect to any of such matters.” 

The court can exercise the power specified in Second Schedule of the 

Act. However, Arbitrator is not a court. Arbitrator is the outcome of agreement. 

He decides the disputes as per the agreement entered into between the parties. 

Arbitration is an alternative forum for resolution of disputes but an Arbitrator 

ipso facto does not enjoy or possess all the powers conferred on the courts of 

law. 

497 


7. Section 29 of the Act confers on the court power to award interest 

from the date of decree. Section 34 of the C.P.C. confers on the court power to 

award interest prior to the institution of the suit and during pendency of the 

suit and post decree. 

8. A Constitution Bench of this Court in G.C. Roy (supra) has considered 

the question of power of the Arbitrator to award pendente lite interest and it 

has been laid down that if the arbitration agreement or the contract itself 

provides for interest, Arbitrator would have the jurisdiction to award the


interest. Similarly, where the agreement expressly provides that no interest 

pendente lite shall be payable on the amount due, the Arbitrator has no power 

to award pendente lite interest. In G.C. Roy (supra) this Court has held thus : 

“xxx If the arbitration agreement or the contract itself provides for 

award of interest on the amount found due from one party to the other, 

no question regarding the absence of Arbitrator’s jurisdiction to award 

the interest could arise as in that case the Arbitrator has power to 

award interest pendent lite as well. Similarly, where the agreement 

expressly provides that no interest pendente lite shall be payable on the 

amount due, the Arbitrator has no power to award pendente lite 

interest. But where the agreement does not provide either for grant or 

denial of interest on the amount found due, the question arises 

whether in such an event the Arbitrator has power and authority to 

grant pendente lite interest.” 

The question involved in G.C. Roy (supra) was with respect to the award 

498 


of interest for the period commencing from the date of Arbitrator entering upon 

the reference till the date of making the award. In G.C. Roy (supra), this Court 

has considered decisions in Raipur Development Authority & Ors. v. M/s. 

Chokhamal Contractors & Ors., (1989) 2 SCC 721; Executive Engineer 

(Irrigation) Balimela & Ors. v. Abhaduta Jena & Ors., (1988) 1 SCC 418; 

Nachiappa Chettiar & Ors, v. Subramaniam Chettiar, AIR 1960 SC 307; Satinder 

Singh v. Amrao Singh & Anr., AIR 1961 SC 908; Firm Madanlal Roshanlal 

Mahajan v. Hukumchand Mills Ltd., Indore, AIR 1967 SC 1030; Union of India v. 

Bungo Steel Furniture Pvt. Ltd., AIR 1967 SC 1032; Ashok Construction 

Company v. Union of India, (1971) 3 SCC 66; State of M.P. v. M/s. Saith and 

Skelton Pvt. Ltd., (1972) 1 SCC 702, various foreign courts decisions and 

decisions of the High Court. This Court has also referred to Halsbury’s Laws of 

England in Paras 36 & 37 thus:- 

“36. “534. Express and implied clauses.— In general, the parties 

to an arbitration agreement may include in it such clauses as they think 

fit. By statute, however, certain terms are implied in an arbitration 

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agreement unless a contrary intention is expressed or implied therein. 

Moreover, it is normally an implied term of an arbitration agreement 

that the Arbitrator must decide the dispute in accordance with the 

ordinary law. This includes the basic rules as to procedure, although 

parties can expressly or impliedly consent to depart from those rules. 

The normal principles on which terms are implied in an agreement have 

to be considered in the context that the agreement relates to an 

arbitration.” 

37. At page 303, para 580 (4th edn., Vol. 2) dealing with the 

award of interest, it reads: 

“580. Interest.— A Arbitrator or umpire has power to award 

interest on the amount of any debt or damages for the whole or any 

part of the period between the date when the cause of action arose and 

the date of the award.” 

Ultimately, in G.C. Roy (supra), this Court has answered the question 

whether Arbitrator has the power to award interest pendent lite. Their 

Lordships have reiterated that they have dealt with the situation where the 

agreement does not provide for grant of such interest nor does it prohibit such 

grant when the agreement is silent as to award of interest. This Court has laid 

down various principles in para 43 of the report thus: 

499 


“43. The question still remains whether Arbitrator has the 

power to award interest pendente lite, and if so on what principle. We 

must reiterate that we are dealing with the situation where the 

agreement does not provide for grant of such interest nor does it 

prohibit such grant. In other words, we are dealing with a case where 

the agreement is silent as to award of interest. On a conspectus of 

aforementioned decisions, the following principles emerge: 

(i) A person deprived of the use of money to which he is 

legitimately entitled has a right to be compensated for the deprivation, 

call it by any name. It may be called interest, compensation or damages.


This basic consideration is as valid for the period the dispute is pending 

before the Arbitrator as it is for the period prior to the Arbitrator 

entering upon the reference. This is the principle of Section 34, Civil 

Procedure Code and there is no reason or principle to hold otherwise in 

the case of Arbitrator. 

(ii) An Arbitrator is an alternative form (sic forum) for resolution 

of disputes arising between the parties. If so, he must have the power 

to decide all the disputes or differences arising between the parties. If 

the Arbitrator has no power to award interest pendente lite, the party 

claiming it would have to approach the court for that purpose, even 

though he may have obtained satisfaction in respect of other claims 

from the Arbitrator. This would lead to multiplicity of proceedings. 

(iii) An Arbitrator is the creature of an agreement. It is open to 

the parties to confer upon him such powers and prescribe such 

procedure for him to follow, as they think fit, so long as they are not 

500 


opposed to law. (The proviso to Section 41 and Section 3 of Arbitration 

Act illustrate this point). All the same, the agreement must be in 

conformity with law. The Arbitrator must also act and make his award in 

accordance with the general law of the land and the agreement. 

(iv) Over the years, the English and Indian courts have acted on 

the assumption that where the agreement does not prohibit and a party 

to the reference makes a claim for interest, the Arbitrator must have 

the power to award interest pendente lite. Seth Thawardas Pherumal 

v. Union of India, AIR 1955 SC 468 has not been followed in the later 

decisions of this Court. It has been explained and distinguished on the 

basis that in that case there was no claim for interest but only a claim 

for unliquidated damages. It has been said repeatedly that observations 

in the said judgment were not intended to lay down any such absolute 

or universal rule as they appear to, on first impression. Until Executive 

Engineer (Irrigation) Balimela & Ors. v. Abhaduta Jena & Ors., (1988) 1 

SCC 418 almost all the courts in the country had upheld the power of 

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the Arbitrator to award interest pendente lite. Continuity and certainty 

is a highly desirable feature of law. 

(v) Interest pendente lite is not a matter of substantive law, like 

interest for the period anterior to reference (pre-reference period). For 

doing complete justice between the parties, such power has always 

been inferred.” 

“44. Having regard to the above consideration, we think that 

the following is the correct principle which should be followed in this 

behalf: 

Where the agreement between the parties does not prohibit 

grant of interest and where a party claims interest and that dispute 

(along with the claim for principal amount or independently) is referred 

to the Arbitrator, he shall have the power to award interest pendente 

lite. This is for the reason that in such a case it must be presumed that 

interest was an implied term of the agreement between the parties and 

therefore when the parties refer all their disputes — or refer the 

dispute as to interest as such — to the Arbitrator, he shall have the 

power to award interest. This does not mean that in every case the 

Arbitrator should necessarily award interest pendente lite. It is a matter 

within his discretion to be exercised in the light of all the facts and 

circumstances of the case, keeping the ends of justice in view.” 

501 


The Constitution Bench of this Court has laid down that where the 

agreement between the parties does not prohibit grant of interest and where 

the party claims interest and that dispute is referred to the Arbitrator, he shall 

have the power to award interest pendent lite. The law declared has been held 

applicable prospectively. 

9. Another Constitution Bench of this Court in N.C. Budharaj (supra), 

considered the question of award of interest by the Arbitrator for the 

prereference period. In that connection, discussion has been made and it has 

been observed as long as there is nothing in the arbitration agreement to


exclude the jurisdiction of the Arbitrator entertaining claim for interest on the 

amount due under the contract or any provision to claim interest on the amount 

due, the jurisdiction of the Arbitrator to award interest for pre-reference period 

under section 29 of the Arbitration Act, 1940 has to be upheld. In majority 

opinion, this Court has held thus: 

“25. If that be the position, courts which of late encourage litigants to 

opt for and avail of the alternative method of resolution of disputes, 

would be penalising or placing those who avail of the same in a serious 

disadvantage. Both logic and reason should counsel courts to lean more 

502 


in favour of the Arbitrator holding to possess all the powers as are 

necessary to do complete and full justice between the parties in the 

same manner in which the civil court seized of the same dispute could 

have done. By agreeing to settle all the disputes and claims arising out 

of or relating to the contract between the parties through arbitration 

instead of having recourse to civil court to vindicate their rights the 

party concerned cannot be considered to have frittered away and given 

up any claim which otherwise it could have successfully asserted before 

courts and obtained relief. By agreeing to have settlement of disputes 

through arbitration, the party concerned must be understood to have 

only opted for a different forum of adjudication with less cumbersome 

procedure, delay and expense and not to abandon all or any of its 

substantive rights under the various laws in force, according to which 

only even the Arbitrator is obliged to adjudicate the claims referred to 

him. As long as there is nothing in the arbitration agreement to exclude 

the jurisdiction of the Arbitrator to entertain a claim for interest on the 

amounts due under the contract, or any prohibition to claim interest on 

the amounts due and become payable under the contract, the 

jurisdiction of the Arbitrator to consider and award interest in respect of 

all periods subject only to Section 29 of the Arbitration Act, 1940 and 

that too the powers of the court thereunder, has to be upheld. The 

submission that the Arbitrator cannot have jurisdiction to award 

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interest for the period prior to the date of his appointment or entering 

into reference which alone confers upon him power, is too stale and 

technical to be countenanced in our hands, for the simple reason that in 

every case the appointment of an Arbitrator or even resort to court to 

vindicate rights could be only after disputes have cropped up between 

the parties and continue to subsist unresolved, and that if the Arbitrator 

has the power to deal with and decide disputes which cropped up at a 

point of time and for the period prior to the appointment of an 

Arbitrator, it is beyond comprehension as to why and for what reason 

and with what justification the Arbitrator should be denied only the 

power to award interest for the pre-reference period when such 

interest becomes payable and has to be awarded as an accessory or 

incidental to the sum awarded as due and payable, taking into account 

the deprivation of the use of such sum to the person lawfully entitled to 

the same. 26. For all the reasons stated above, we answer the reference 

by holding that the Arbitrator appointed with or without the 

intervention of the court, has jurisdiction to award interest, on the sums 

found due and payable, for the pre-reference period, in the absence of 

any specific stipulation or prohibition in the contract to claim or grant 

any such interest. The decision in Jena case taking a contraview does 

not lay down the correct position and stands overruled, prospectively, 

which means that this decision shall not entitle any party nor shall it 

empower any court to reopen proceedings which have already become 

final, and apply only to any pending proceedings. No costs.” 

503 


It has also been observed that G.C. Roy’s case (supra) cannot be said to 

have overruled Executive Engineer (Irrigation) Balimela’s case (supra) insofar as 

it dealt with the power of Arbitrator to award interest for the pre-reference 

period. 

10. A 3 Judges Bench of this Court in Hindustan Construction Co. Ltd. v. 

State of Jammu & Kashmir (1992) 4 SCC 217 has laid down that the Arbitrator 

has the power to award pendente lite interest on the basis of principle of


Section 34 of the Code of Civil Procedure though same is not applicable. 

However, the observation has to be considered in case there is no express bar in 

the agreement for awarding pendente lite interest as it has simply followed 

what has been laid down in G.C. Roy (supra). This Court has laid down thus: 

“5. The question of interest can be easily disposed of as it is covered by 

recent decisions of this Court. It is sufficient to refer to the latest 

decision of a five Judge bench of this Court in Secretary, Irrigation 

Department, Govt. of Orissa & Ors. v. G.C. Roy. Though the said decision 

deals with the power of the Arbitrator to award interest pendente lite, 

504 


the principle of the decision makes it clear that the Arbitrator is 

competent to award interest for the period commencing with the date 

of award to the date of decree or date of realisation, whichever is 

earlier. This is also quite logical for, while award of interest for the 

period prior to an Arbitrator entering upon the reference is a matter of 

substantive law, the grant of interest for the post-award period is a 

matter of procedure. Section 34 of Code of Civil Procedure provides 

both for awarding of interest pendente lite as well as for the postdecree 

period and the principle of Section 34 has been held applicable 

to proceedings before the Arbitrator, though the section as such may 

not apply. In this connection, the decision in Union of India v. Bungo 

Steel Furniture (P) Ltd. AIR 1967 SC 1032 may be seen as also the 

decision in Gujarat Water Supply & Sewerage Board v. Unique Erectors 

(Gujarat) P. Ltd. 1989 1 532 SCC which upholds the said power though 

on a somewhat different reasoning. We, therefore, think that the award 

on Item No. 8 should have been upheld.” 

11. In Sayeed Ahmed (supra) various decisions of this Court have been 

referred. In State of Orissa v. B.N. Agarwalla, (1997) 2 SCC 469, this Court has 

laid down thus: 

“18. In view of the aforesaid decisions there can now be no doubt with 

regard to the jurisdiction of the Arbitrator to grant interest. The 

principles which can now be said to be well-settled are that the 

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Arbitrator has the jurisdiction to award pre-reference interest in cases 

which arose after the Interest Act, 1978 had become applicable. With 

regard to those cases pertaining to the period prior to the applicability 

of the Interest Act, 1978, in the absence of any substantive law, contract 

or usage, the Arbitrator has no jurisdiction to award interest. For the 

period during which the arbitration proceedings were pending in view 

of the decision in G.C. Roy case and Hindustan Construction Ltd. case, 

the Arbitrator has the power to award interest. The power of the 

Arbitrator to award interest for the post-award period also exists and 

this aspect has been considered in the discussion relating to Civil Appeal 

No. 9234 of 1994 in the later part of this judgment.” 

12. The decision in B.N. Agarwalla (supra) has been considered and 

distinguished by this Court in Sayeed Ahmed (supra) thus : 

“20. The appellant next relied upon the judgment of this Court in State 

of Orissa v. B.N. Agarwalla (1997) 2 SCC 469. In that case, this Court held 

that the Arbitrator has jurisdiction to award: (i) interest for prereference 

period, (ii) interest for pendente lite, and (iii) future interest. 

This Court also held that the following part of Clause (4) of the contract 

dealing with “Rates, materials and workmanship” did not bar award of 

interest by the Arbitrator on the claims of the contractor: (SCC p. 478, 

para 22) 

505 


No interest is payable on amount withheld under the item of the 

agreement. 

Interpreting the said clause (which provided that interest was not 

payable on the amount which was withheld), this Court held that it 

referred only to the amount withheld by the employer State towards 

retention money for the defect liability period. This Court in fact 

clarified the position that if the terms of contract expressly stipulated 

that no interest would be payable, then the Arbitrator would not get the 

jurisdiction to award interest. As Clause G1.09 in the present case


contains an express bar and is different from the clause considered in 

B.N. Agarwalla (supra) the said decision is also of no assistance.” 

In B.N. Agarwalla (supra) this Court has observed that Clause 4 of the 

contract dealing with “Rates, materials and workmanship” did not bar award of 

interest by the Arbitrator on the claims of the contractor. The stipulation was no 

interest was payable on amount withheld under the agreement. 

13. In Sayeed Ahmed (supra), this Court has referred the decision in 

State of U.P. v. Harish Chandra & Co. (1999) 1 SCC 63, in which this Court has 

interpreted the stipulation contained in clause 1.9 of the agreement which 

came up for consideration before a 3 Judges Bench of this Court. Clause 1.9 is 


“1.9 No claim for delayed payment due to dispute etc.—No claim for 

interest or damages will be entertained by the Government with 

respect to any moneys or balances which may be lying with the 

Government owing to any dispute, difference; or misunderstanding 

506 


between the Engineer-inCharge in marking periodical or final payments 

or in any other respect whatsoever.” 

This Court has interpreted the clause 1.9 and held that there is no 

provision which could be culled out against the respondent-contractor that he 

could not raise claim of interest by way of damages before the Arbitrator on the 

relevant items placed for adjudication. This Court in Sayeed Ahmed (supra) has 

also distinguished the decision in Harish Chandra (supra) in which clause 1.09 

came up for consideration thus : 

“17. x x x x x This Court held that the said clause did not bar award of 

interest on any claim for damages or for claim for payment for work 

done. We extract below the reasoning for such decision: (SCC p. 67, 

para 10) 

“10. A mere look at the clause shows that the claim for interest 

by way of damages was not to be entertained against the 

Government with respect to only a specified type of amount, 

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namely, any moneys or balances which may be lying with the 

Government owing to any dispute, difference between the 

Engineer-in-Charge and the contractor; or misunderstanding 

between the Engineer-in-Charge and the contractor in making 

periodical or final payments or in any other respect whatsoever. 

The words ‘or in any other respect whatsoever’ also referred to 

the dispute pertaining to the moneys or balances which may be 

lying with the Government pursuant to the agreement meaning 

thereby security deposit or retention money or any other 

amount which might have been with the Government and 

refund of which might have been withheld by the Government. 

The claim for damages or claim for payment for the work done 

and which was not paid for would not obviously cover any 

money which may be said to be lying with the Government. 

Consequently, on the express language of this clause, there is 

no prohibition which could be culled out against the respondent 

contractor that he could not raise the claim for interest by way 

of damages before the Arbitrator on the relevant items placed 

for adjudication.” (emphasis supplied) 

507 


18. In Harish Chandra (1999) 1 SCC 63 a different version of 

Clause 1.09 was considered. Having regard to the restrictive wording of 

that clause, this Court held that it did not bar award of interest on a 

claim for damages or a claim for payments for work done and which 

was not paid. This Court held that the said clause barred award of 

interest only on amounts which may be lying with the Government by 

way of security deposit/retention money or any other amount, refund 

of which was withheld by the Government. 

19. But in the present case, Clause G1.09 is significantly 

different. It specifically provides that no interest shall be payable in 

respect of any money that may become due owing to any dispute, 

difference or misunderstanding between the Engineer-in-Charge and


contractor or with respect to any delay on the part of the Engineer-in- 

Charge in making periodical or final payment or in respect of any other 

respect whatsoever. The bar under Clause G1.09 in this case being 

absolute, the decision in Harish Chandra (supra) will not assist the 

appellant in any manner.” 

In Harish Chandra (supra), this Court has laid down that clause 1.09 did 

not bar award of interest for claim of damages for payment for work done and 

which was not paid for would not obviously cover any money which may be said 

to be lying with the Government. 

14. In our opinion, it would depend upon the nature of the ouster clause 

in each case. In case there is express stipulation which debars pendente lite 

interest, obviously, it cannot be granted by Arbitrator. The award of pendente 

lite interest inter alia must depend upon the overall intention of the agreement 

and what is expressly excluded. 

15. In Sayeed Ahmed (supra), this Court has referred the decision in 

508 


Superintending Engineer v. B. Subba Reddy (1999) 4 SCC 423 and observed thus 

: 

“11. Two more decisions dealing with cases arising under the Arbitration 

Act, 1940 require to be noticed. In Superintending Engineer v. B. Subba 

Reddy (1999) 4 SCC 423 this Court held that interest for pre-reference 

period can be awarded only if there was an agreement to that effect or 

if it was allowable under the Interest Act, 1978. Therefore, claim for 

interest for pre-reference period, which is barred as per the agreement 

or under the Interest Act, 1978 could not be allowed. This Court 

however held that the Arbitrator can award interest pendente lite and 

future interest.” 

In Sayeed Ahmed (supra) this Court has also referred the decision in 

State of Rajasthan & Anr. v. Ferro Concrete Construction (P) Ltd. (2009) 12 SCC 

1 thus : 

“12. The principles relating to interest were summarised by this Court in 

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State of Rajasthan v. Ferro Concrete Construction (P) Ltd. (2009) 12 SCC 

1 thus: 

(a) Where a provision for interest is made on any debt or damages, in 

any agreement, interest shall be paid in accordance with such 

agreement. 

(b) Where payment of interest on any debt or damages is barred by 

express provision in the contract, no interest shall be awarded. 

(c) Where there is no express bar in the contract and where there is also 

no provision for payment of interest then the principles of Section 3 of 

the Interest Act will apply and consequently interest will be payable: 

(i) where the proceedings relate to a debt (ascertained sum) payable by 

virtue of a written instrument at a certain time, then from the date 

when the debt is payable to the date of institution of the proceedings; 

(ii) where the proceedings is for recovery of damages or for recovery of 

a debt which is not payable at a certain time, then from the date 

mentioned in a written notice given by the person making a claim to the 

person liable for the claim that interest will be claimed. 

(d) Payment of interest pendente lite and future interest shall not be 

governed by the provisions of the Interest Act, 1978, but by the 

provisions of Section 34 of the Code of Civil Procedure, 1908 or the 

provisions of law governing arbitration as the case may be.” In Sayeed 

Ahmed (supra), the provisions of Arbitration & Conciliation Act, 1996 

were applicable. 

509 


16. A 3-Judge Bench of this Court in Union of India v. Bright Power 

Projects (India) Pvt. Ltd.*** (2015) 9 SCC 695 has considered the provisions 

contained in section 31(7)(a) of the Arbitration and Conciliation Act, 1996 and 

considered the words “unless otherwise agreed by parties” in the said section 

and held that the Arbitrator is bound by the terms of the contract so far as 

award of interest from the date of execution to the date of award is concerned. 

This Court considered clause 13(3) of the contract and came to the conclusion


that once agreed that contractor would not claim any interest on the amount to 

be paid under the contract, he could not have claimed the interest. The 

Arbitrator while awarding interest failed to consider the provisions of section 

31(7)(a) and binding nature of clause 13(3) of the terms of agreement. With 

respect to section 31(7)(a) of the Arbitration & Conciliation Act, 1996 this Court 

in Union of India v. Bright Power Projects (supra) has observed thus : 

“18. Section 31(7)(a) of the Act ought to have been read and interpreted 

by the Arbitral Tribunal before taking any decision with regard to 

awarding interest. The said section, which has been reproduced 

hereinabove, gives more respect to the agreement entered into 

between the parties. If the parties to the agreement agree not to pay 

interest to each other, the Arbitral Tribunal has no right to award 

interest pendente lite.” 

Section 31(7)(a) of the 1996 Act confers power on Arbitrator to award 

interest pendente lite, “unless otherwise agreed by parties”. Thus, it is clear 

510 


from the provisions contained in section 31(7)(a) that the contract between the 

parties has been given importance and is binding on the Arbitrator. Arbitration 

clause is also required to be looked into while deciding the power of the 

Arbitrator and in case there is any bar contained in the contract on award of 

interest, it operates on which items and in the arbitration clause what are the 

powers conferred on Arbitrator and whether bar on award of interest has been 

confined to certain period or it relates to pendency of proceedings before 

Arbitrator. 

17. In Sree Kamatchi Amman Constructions (supra), it was observed 

that the words “unless otherwise agreed by the parties” in section 31 of new 

Act of 1996 clarify that Arbitrator is bound by the terms of contract for award of 

interest pendente lite. It was also held thus : 

“19. Section 31(7) of the new Act by using the words “unless otherwise 

agreed by the parties” categorically clarifies that the Arbitrator is bound 

by the terms of the contract insofar as the award of interest from the 

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date of cause of action to the date of award. Therefore, where the 

parties had agreed that no interest shall be payable, the Arbitral 

Tribunal cannot award interest between the date when the cause of 

action arose to the date of award. 

20. We are of the view that the decisions in Engineers-DeSpace-Age 

(supra) and Madnani (supra) are inapplicable for yet another reason. In 

Engineers-De-Space-Age (supra) and Madnani (supra) the Arbitrator had 

awarded interest for the pendente lite period. This Court upheld the 

award of such interest under the old Act on the ground that the 

Arbitrator had the discretion to decide whether interest should be 

awarded or not during the pendente lite period and he was not bound 

by the contractual terms insofar as the interest for the pendente lite 

period. But in the instant case the Arbitral Tribunal has refused to award 

interest for the pendente lite period. Where the Arbitral Tribunal has 

exercised its discretion and refused award of interest for the period 

pendente lite, even if the principles in those two cases were applicable, 

the award of the Arbitrator could not be interfered with. On this ground 

also the decisions in Engineers-De-Space-Age (supra) and Madnani 

(supra) are inapplicable. Be that as it may.” 

511 


18. This Court in Union of India v. Krafters Engineering & Leasing Pvt. 

Ltdhttp://judis.nic.in/supremecourt/imgst.aspx?filename=38225 *** (2011) 7 

SCC 279 has held that by a provision in the agreement, the jurisdiction of the 

Arbitrator to award interest can be excluded. This Court considered the nature 

of the claim vis-à-vis the provision contained in the relevant clause. 

19. It is apparent from various decisions referred to above that in G.C. 

Roy (supra) Constitution Bench of this Court has laid down where agreement 

expressly provides that no interest pendente lite shall be payable on amount 

due. The arbitrator has no power to award interest. In N.C. Budharaj (supra) a 

Constitution Bench has observed that in case there is nothing in the arbitration 

agreement to exclude jurisdiction of arbitrator to entertaining claim for interest, 

the jurisdiction of arbitrator to consider and award interest in respect to all

512 



periods is subject to section 29 of the Act. In Hindustan Construction Co. Ltd. 

(supra) this Court has followed decision in G.C. Roy (supra) and laid down that 

on the basis of principles of section 34 arbitrator would have the power to 

award pendente lite interest also. In B.N. Agarwalla (supra), this Court has 

again followed G.C. Roy (supra) and Hindustan Construction Co. Ltd. (supra) 

with respect to power of arbitrator to award pendente lite interest and it was 

held that arbitrator has power to award interest. In Harish Chandra (supra) this 

Court interpreted the clause 1.9 which provided that no claim for interest or 

damages will be entertained by the Government in respect to any moneys or 

balances which may be lying with the Government. It was held that there was 

no provision which could be culled out against the contractor not to claim 

interest by way of damages before the arbitrator on the relevant items placed 

for adjudication. In Ferro Concrete Construction (P) Ltd. (supra) this Court 

considered clause 4 containing a stipulation that no interest was payable on 

amount withheld under the agreement. It was held that clause 4 dealt with 

rates, material and workmanship did not bar award of interest by the arbitrator 

on claims of the contractor made in the said case. In Sayeed Ahmed (supra) this 

Court has emphasized that award of interest would depend upon nature of the 

clause in the agreement. In Bright Power Projects (India) Pvt. Ltd. (supra) this 

Court has considered the expression “unless otherwise agreed by parties” 

employed in section 31(7)(a) of the Act of 1996 and laid down that in case 

contract bars claim of interest contractor could not have claimed interest. The 

provision of section 31(7)(a) of the Act of 1996 is binding upon the arbitrator. In 

Sree Kamatchi Amman Constructions (supra) similar view has been taken. 

20. Now we come to the question of correctness of decision of this 

Court rendered by a Bench of two Judges in Engineers-De-Space-Age (supra) 

which has been referred for our consideration in which this Court after 

consideration of G.C. Roy’s case has observed thus : 

“3….. It will appear from what the Constitution Bench stated to be the 

legal position, that ordinarily a person who is deprived of his money to 

which he is legitimately entitled as of right is entitled to be 

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compensated in deprivation thereof, call it by whatever name. This 

would be in terms of the principle laid down in Section 34 of the Code of 

Civil Procedure. Their Lordships pointed out that there was no reason or 

principle to hold otherwise in the case of an Arbitrator. Pointing out that 

Arbitrator is an alternative forum for resolution of disputes arising 

between the parties, it said that he must have the power to decide all 

disputes and differences arising between the parties and if he were to 

be denied the power to award interest pendente lite, the party entitled 

thereto would be required to go to a court which would result in 

multiplicity of proceedings, a situation which the court should 

endeavour to avoid. Reliance was, however, placed on the observation 

in sub-para (iii) wherein it is pointed out that an Arbitrator is a creature 

of an agreement and if the agreement between the parties prohibits the 

payment of interest pendente lite the Arbitrator must act in accordance 

therewith. In other words, according to their Lordships the Arbitrator is 

expected to act and make his award in accordance with the general law 

of the land but subject to an agreement, provided, the agreement is 

valid and legal. Lastly, it was pointed out that interest pendente lite is 

not a matter of substantive law, like interest for the period anterior to 

reference. Their Lordships concluded that where the agreement 

between the parties does not prohibit grant of interest and where a 

party claims interest and that dispute is referred to the Arbitrator, he 

shall have the power to award interest pendente lite for the simple 

reason that in such a case it is presumed that interest was an implied 

term of the agreement between the parties; it is then a matter of 

exercise of discretion by the Arbitrator. The position in law has, 

therefore, been clearly stated in the aforesaid decision of the 

Constitution Bench”. 

513 


4. We are not dealing with a case in regard to award of interest for the 

period prior to the reference. We are dealing with a case in regard to 

award of interest by the Arbitrator post reference. The short question,


therefore, is whether in view of sub-clause (g) of clause 13 of the 

contract extracted earlier the Arbitrator was prohibited from granting 

interest under the contract. Now the term in sub-clause (g) merely 

prohibits the Commissioner from entertaining any claim for interest and 

does not prohibit the Arbitrator from awarding interest. The opening 

words “no claim for interest will be entertained by the Commissioner” 

clearly establishes that the intention was to prohibit the Commissioner 

from granting interest on account of delayed payment to the 

contractor. Clause has to be strictly construed for the simple reason that 

as pointed out by the Constitution Bench, ordinarily, a person who has a 

legitimate claim is entitled to payment within a reasonable time and if 

the payment has been delayed beyond reasonable time he can 

legitimately claim to be compensated for that delay whatever 

nomenclature one may give to his claim in that behalf.” 

21. In Sayeed Ahmed (supra) the decision in Engineers-De-Space-Age 

514 


(supra) has been considered and it was observed that it cannot be used to 

support an outlandish argument that bar on the Government or department 

paying interest is not a bar on the Arbitrator awarding interest. This Court 

expressed doubt as to the correctness of certain observations made in 

Engineers-De-Space-Age (supra) to the extent that the Arbitrator could award 

interest pendente lite ignoring the express bar in the contract. But this Court did 

not consider the question further as the case in Sayeed Ahmed (supra) arose 

under the Arbitration and Conciliation Act of 1996, and there was a specific 

provision under new Act regarding award of interest by the Arbitrator. From the 

discussion made in Sayeed Ahmed (supra) it is apparent that this Court has 

emphasized that it would depend upon the nature of clause and claim etc. and 

it is required to be found on consideration of stipulation whether interest is 

barred, if yes, on what amounts interest is barred under the contract. 

22. A three-Judge Bench of this Court in Tehri Hydro Development 

Corporation Limited and Another v. Jai Prakash Associates Limited,*** (2012) 

12 SCC 10, has considered the question which has been referred in the instant 

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case and it has been laid down in the context of clauses 1.2.14 and 1.2.15 

imposed a clear bar on either entertainment or payment of interest in any 

situation of non-payment or delayed payment of either the amounts due for 

work done or lying in security deposit. Thus, the arbitrator had no power to 

grant pendente lite interest. This Court has also doubted the correctness of the 

decisions in Engineers-De-Space Age (supra) and Madnani Construction 

Corporation (P) Ltd. (supra). This court has considered the aforesaid clauses and 

various decisions in Tehri Hydro Development Corporation (supra) in which one 

of us Ranjan Gogoi, J. spoke for the Court. This Court has laid down thus :– 

“14. This will lead the court to a consideration of what is the principal 

bone of contention between the parties in the present case, namely, 

the issue with regard to payment of interest. Clauses 1.2.14 and 1.2.15 

on which much arguments have been advanced by Learned Counsel for 

both sides may now be extracted below: 

PART - II 

CONDITIONS OF CONTRACT 

1.2.14. No claim for delayed payment due to dispute, etc. - The 

contractor agrees that no claim for interest of damages will be 

entertained or payable by the Government in respect of any money or 

balances which may be lying with the Government owing to any 

disputes, differences or misunderstandings between the parties or in 

respect of any delay or omission on the part of the engineer-in-charge in 

making immediate or final payments or in any other respect 

whatsoever. 

515 


1.2.15. Interest on money due to the contractor. - No omission on the 

part of the engineer-in-charge to pay the amount due upon 

measurement or otherwise shall vitiate or make void the contract, nor 

shall the contractor be entitled to interest upon any guarantee or 

payments in arrears nor upon any balance which may on the final 

settlement of his accounts be due to him.


A reading of the aforesaid two clauses of the contract agreement 

between the parties clearly reveal that despite some overlapping of the 

circumstances contemplated by the two clauses, no interest is payable 

to the contractor for delay in payment, either, interim or final, for the 

works done or on any amount lying in deposit by way of guarantee. The 

aforesaid contemplated consequence would be applicable both to a 

situation where withholding of payment is on account of some dispute 

or difference between the parties or even otherwise. 

15. Of the several decisions of this Court referred to by the learned 

516 


counsel for the appellant the judgments of the Constitution Bench of 

this Court in Irrigation Deptt., Govt. of Orissa v. G.C. Roy, (1992) 1 SCC 

508 and Dhenkanal Minor Irrigation Division v. N.C. Budharaj, (2001) 2 

SCC 721 will require specific notice. The true ratio laid down in the 

aforesaid two judgments have been elaborately considered in a more 

recent pronouncement of this Court in the case of Union of India v. 

Krafters Engg. and Leasing (P) Ltd., (2011) 7 SCC 279. In Krafters 

Engineers's case (supra) the ratio of the decision in G.C. Roy's case 

(supra) was identified to mean that if the agreement between the 

parties does not prohibit grant of interest and the claim of a party to 

interest is referred to the arbitrator, the arbitrator would have the 

power to award the interest. This is on the basis that in such a case of 

silence (where the agreement is silent) it must be presumed that 

interest was an implied term of the agreement and, therefore, whether 

such a claim is tenable can be examined by the arbitrator in the 

reference made to him. The aforesaid view, specifically, is with regard 

to pendente lite interest. In the subsequent decision of the Constitution 

Bench in N.C. Budharaj's case (supra) a similar view has been taken with 

regard to interest for the prereference period. 

16. In Krafters Engineers' case (supra), the somewhat discordant note 

struck by the decisions of this Court in Port of Calcutta v. Engineers-De- 

Space-Age (supra) and Madnani Construction Corporation Private 

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Limited v. Union of India and Ors. (supra), were also taken note of. 

Thereafter, it was also noticed that the decision in Engineers-De-Space- 

Age's case (supra) was considered in Sayeed Ahmed & Co. v. State of 

U.P. (supra) and the decision in Madnani Construction case (supra) was 

considered in Sree Kamatchi Amman Constructions v. Railways (2010) 8 

SCC 767. In Sayeed Ahmed's case (supra) (SCC para 24) it was held that 

in the light of the decision of the Constitution Bench in G.C. Roy's case 

(1992) 1 SCC 508 and N.C. Budharaj case (2001) 2 SCC 721 it is doubtful 

whether the observations in Engineers-de-Space-Age's case (supra) to 

the effect that the Arbitrator could award interest pendente lite, 

ignoring the express bar in the contract, is good law. In Sree Kamatchi 

Amman Construction's case (Supra) while considering Madnani's case 

(supra) this Court noted that the decision in Madnani case (supra) 

follows the decision in Engineers-de-Space-Age's case (supra). 

17. From the above discussions, it is crystal clear that insofar as 

pendente lite interest is concerned, the observations contained in Para 

43 and 44 of the judgment in G.C. Roy case (supra) will hold the field. 

Though the gist of the said principle has been noticed earlier it would 

still be appropriate to set out para 44 of the judgment in G.C. Roy's case 

(supra) which is in the following terms: 

517 


44. Having regard to the above consideration, we think that the 

following is the correct principle which should be followed in this behalf. 

Where the agreement between the parties does not prohibit grant of 

interest and where a party claims interest and that dispute (along with 

the claim for principal amount or independently) is referred to the 

arbitrator, he shall have the power to award interest pendente lite. This 

is for the reason that in such a case it must be presumed that interest 

was an implied term of the agreement between the parties and 

therefore when the parties refer all their disputes - or refer the dispute 

as to interest as such - to the arbitrator, he shall have the power to 

award interest. This does not mean that in every case the arbitrator


should necessarily award interest pendente lite. It is a matter within his 

discretion to be exercised in the light of all the facts and circumstances 

of the case, keeping the ends of justice in view. 

518 


18. The provisions of the U.P. Civil Laws (Reforms and Amendment) Act 

amending the First Schedule to the Arbitration Act, 1940 does not assist 

the respondent contractor in any manner to sustain the claim of award 

of interest pendente lite, inasmuch, as Para 7-A of the First Schedule, as 

amended, is only an enabling provision which will have no application to 

a situation where there is an express bar to the entertainment or 

payment of interest on the delayed payment either of an amount due 

for the work done or of an amount lying in deposit as security. The 

decision in B.N. Agarwalla case (supra) on which reliance has been 

placed by the learned counsel for the respondent, once again, does not 

assist the claim of the respondent to interest pendente lite inasmuch as 

in B.N. Agarwalla case (supra) the views of the Constitution Bench in 

G.C. Roy case (supra) with regard to interest pendente lite could not 

have been and, in fact, were not even remotely doubted. The 

observation of the Bench in B.N. Agarwalla case that in G.C. Roy case 

(supra) the decision in Deptt. of Irrigation v. Abhaduta Jena (1988) 1 SCC 

418 was not overruled was only in the context of the issue of award of 

interest for the pre- reference period. The decision in Asian Techs 

Limited case (supra) also relied on by the respondent takes note of the 

decision in Engineers-De-Space-Age case (supra) to come to the 

conclusion the prohibition on payment of interest contained in Clause 

11 of the agreement between the parties was qua the department and 

did not bar the arbitrator from entertaining the claim. It has already 

been noticed that the correctness of the propositions laid down in 

EngineersDe-Space-Age case (supra) have been doubted in the 

subsequent decisions of this Court, reference to which has already been 

made. 

19. Clauses 1.2.14 and 1.2.15, already extracted and analysed, imposed 

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a clear bar on either entertainment or payment of interest in any 

situation of non-payment or delayed payment of either the amounts 

due for work done or lying in security deposit. On the basis of the 

discussions that have preceded we, therefore, take the view that the 

grant of pendente lite interest on the claim of Rs. 10,17,461/- is not 

justified. The award as well as the orders of the courts below are 

accordingly modified to the aforesaid extent.” 

In para 4 in Engineers-De-Space-Age (supra) this Court has observed 

that bar under the contract will not be applicable to Arbitrator cannot be said to 

be observation of general application. In our opinion, it would depend upon the 

stipulation in the contract in each case whether power of Arbitrator to grant 

pendente lite interest is expressly taken away. If answer is ‘yes’ then Arbitrator 

would have no power to award pendente lite interest. 

23. The decision in Madnani Construction Corporation (supra) has 

followed decision in Engineers-De-Space-Age (supra). Same is also required to 

be diluted to the extent that express stipulation under contract may debar the 

Arbitrator from awarding interest pendente lite. Grant of pendente lite interest 

may depend upon several factors such as phraseology used in the agreement, 

clauses conferring power relating to arbitration, nature of claim and dispute 

referred to Arbitrator and on what items power to award interest has been 

taken away and for which period. 

519 


24. Thus, our answer to the reference is that if contract expressly bars 

award of interest pendente lite, the same cannot be awarded by the Arbitrator. 

We also make it clear that the bar to award interest on delayed payment by 

itself will not be readily inferred as express bar to award interest pendente lite 

by the Arbitral Tribunal, as ouster of power of Arbitrator has to be considered 

on various relevant aspects referred to in the decisions of this Court, it would be 

for the Division Bench to consider the case on merits. 

Ss -





EMPLOYEES STATE INSURANCE CORPORATION – Appellant, 

Versus 

A.K. ABDUL SAMAD & Anr. – Respondents. 

Criminal Appeal Nos.1065-1066 Of 2005 

(i) Employees’ State Insurance Corporation Act, 1948, Section 85(a)(i)(b) 

- Whether the court has been given judicial discretion only to reduce 

the sentence of imprisonment for any term lesser than six months or 

whether it also has discretion to levy no fine or a fine of less than five 

thousand rupees – The object of creating offence and penalty under 

the Employees’ State Insurance Act, 1948 is clearly to create deterrence 

520 


against violation of provisions of the Act which are beneficial for the 

employees - Non-payment of contributions is an economic offence and 

therefore the Legislature has not only fixed a minimum term of 

imprisonment but also a fixed amount of fine of five thousand rupees 

under Section 85(a)(i)(b) of the Act - There is no discretion of awarding 

less than the specified fee, under the main provision - It is only the 

proviso which is in the nature of an exception whereunder the court is 

vested with discretion limited to imposition of imprisonment for a 

lesser term - Conspicuously, no words are found in the proviso for 

imposing a lesser fine than that of five thousand rupees. [Para 8] 

(ii) Interpretation of statutes - The law is well settled that when the 

wordings of the Stature are clear, no interpretation is required unless 

there is a requirement of saving the provisions from vice of 

unconstitutionality or absurdity. 

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(iii) Indian Penal Code - “shall also be liable to fine” - Clause “shall also 

be liable to fine”, in the context of Indian Penal Code may be capable of 

being treated as directory and thus conferring on the court a discretion 

to impose sentence of fine also in addition to imprisonment although 

such discretion stands somewhat impaired as per the view taken by this 

Court in the case of Zunjarrao Bhikaji Nagarkar v. Union of India (1999) 

7 SCC 409 - But clearly no minimum fine is prescribed for the offences 

under the IPC nor that Act was enacted with the special purpose of 

preventing economic offences as was the case in Chern Taong Shang v. 

S.D. Baijal (1988) 1 SCC 507 - Employees’ State Insurance Corporation 

Act, 1948, Section 85(a)(i)(b), is an economic offence and therefore the 

Legislature has not only fixed a minimum term of imprisonment but 

also a fixed amount of fine of five thousand rupees under Section 

85(a)(i)(b) of the Act. [Para 8] 

JUDGMENT 

Shiva Kirti Singh, J. –( March 10, 2016) -The question of law deserving 

adjudication in these appeals arises out of Section 85(a)(i)(b) of the Employees’ 

State Insurance Corporation Act (for brevity, ‘the Act’). The aforesaid statutory 

provision prescribes punishment for a particular offence as imprisonment which 

shall not be less than six months and the convict shall also be liable to fine of 

five thousand rupees. The proviso however empowers the court that it may, 

“for any adequate and special reasons to be recorded in the judgment, impose a 

sentence of imprisonment for a lesser term;”. The question to be answered is 

whether the court has been given judicial discretion only to reduce the sentence 

of imprisonment for any term lesser than six months or whether it also has 

discretion to levy no fine or a fine of less than five thousand rupees. 

2. The facts of the case lie in a very narrow compass. The case arises out 

of criminal proceedings initiated by the appellant – Employees State Insurance 

521 


522 



Corporation – under Section 85 of the Act for conviction and punishment of the 

respondents for failure to pay contributions required by the Act. Both the 

respondents faced trial before the Special Court for Economic Offences, 

Bangalore and were found guilty and were inflicted with imprisonment till rising 

of the Court and fine of Rs.1000/-. According to appellant, the fine amount 

could not have been reduced and ought to have been Rs.5000/- as per mandate 

of law. Hence the Corporation preferred Revision Petitions before the High 

Court of Karnataka at Bangalore. By the impugned judgment and order under 

appeal dated 09th January 2004, the Division Bench of the High Court dismissed 

Criminal Revision Petition Nos.1326 and 1327 of 2002 by placing reliance on 

judgments of Kerala High Court and Patna High Court respectively in the case of 

Sebastian @ Kunju v. State 1992 Cri LJ 3642 and Tetar Gope v. Ganauri Gope 

AIR 1968 Pat 287 as well as two Supreme Court judgments in the case of 

Surinder Kumar v. State (1987) 1 SCC 467 and Palaniappa Gounder v. State of 

Tamil Nadu*** (1977) 2 SCC 634. 

3. Before adverting to the submissions and the case law cited by the 

rival parties, it would be useful to notice relevant part of Section 85 which is as 

under : 

“85. Punishment for failure to pay contributions, etc. – If any person – 

(a) fails to pay any contribution which under this Act he is liable to pay, or 

(b) …. …. …. 

(c) …. …. …. 

(d) …. …. …. 

(e) …. …. …. 

(f) …. …. …. 

(g) …. …. …. 

he shall be punishable 

(i) where he commits an offence under clause (a), with imprisonment for a 

term which may extend to three years but- 

(a) which shall not be less than one year, in case of failure to pay the 

employee’s contribution which has been deducted by him from the employee’s 

wages and shall also be liable to fine of ten thousand rupees; 

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(b) which shall not be less than six months, in any other case and shall also be 

liable to fine of five thousand rupees: 

Provided that the court may, for any adequate and special reason to be 

recorded in the judgment, impose a sentence of imprisonment for a lesser 

term; 

(ii) …. …. ….” 

4. Learned counsel for the appellant has relied upon judgment of this 

Court in the case of Zunjarrao Bhikaji Nagarkar v. Union of India*** (1999) 7 

SCC 409. In that case not imposing appropriate penalty as required by law was 

one of the charges against the delinquent employee in a departmental 

proceeding. In the context of the charge, in paragraphs 37, 38 and 39 of the 

Report, the judgment of a Single Judge of Patna High Court in the case of Tetar 

Gope (supra) was noticed along with its view that expression “shall also be liable 

to fine” in Section 325 of the Indian Penal Code does not mean that a sentence 

of fine must be imposed in every case of conviction for that offence. That view 

of Patna High Court was noticed and then this Court over-ruled it as incorrect by 

holding that the language of the Section made the sentence of both, 

imprisonment and fine imperative and only the extent of fine has been left to 

the discretion of the Court. For this view, strength was derived from judgment 

in the case of Rajasthan Pharmaceutical Laboratory v. State of Karnataka*** 

(1981) 1 SCC 645 wherein a similar expression – “shall also be liable to fine” 

used under Section 34 of the Drugs & Cosmetics Act, 1940 was analysed in the 

light of Section 27 of the said Act, in paragraph 38 of the Report which is as 

follows : 

523 


"38. We do not think that the view expressed by the Patna High Court is correct 

as it would appear from the language of the section that sentences of both 

imprisonment and fine are imperative. It is the extent of fine which has been 

left to the discretion of the court. In Rajasthan Pharmaceutical Laboratory v. 

State of Karnataka, (1981) 1 SCC 645 : 1981 SCC (Cri) 244 this Court has taken 

the view that imprisonment and fine both are imperative when the expression 

“shall also be liable to fine” was used under Section 34 of the Drugs and 

Cosmetics Act, 1940. In that case, this Court was considering Section 27 of the


Drugs and Cosmetics Act, 1940, which enumerates the penalities for illegal 

manufacture, sale, etc., of drugs and is as under: 

‘27. Whoever himself or by any other person on his behalf manufactures for 

sale, sells, stocks or exhibits for sale or distributes— 

(a) any drug – 

(i) * * * 

(ii) without a valid licence as required under clause (c) of Section 18, 

shall be punishable with imprisonment for a term which shall not be less than 

one year but which may extend to ten years and shall also be liable to fine: 

Provided that the court may, for any special reasons to be recorded in writing, 

impose a sentence of imprisonment of less than one year; 

* * *” 

In view of language of Section 27(a)(ii) it was held that award of 

524 


imprisonment and fine, both are imperative. The proviso to aforesaid Section 27 

is similar in tone and tenor as the proviso to Section 85(i)(b) of the Act. In both 

the provisos there is no discretion vested in the Court to do away with the fine. 

Additionally, under the Act, a minimum fine is mandated by an explicit and 

specific provision. 

5. In the case of Chern Taong Shang v. S.D. Baijal*** (1988) 1 SCC 507 

this Court had the occasion to consider the meaning and implication of a clause 

– “shall also be liable to confiscation”, occurring in Section 13 of Maritime Zones 

of India (Regulation of Fishing by Foreign Vessels) Act, 1981. Looking at the 

legislative intent to provide deterrent punishment with a view of prohibit illegal 

fishing in exclusive economic zones of India, Section 13 was held to be 

mandatory and therefore conviction had to follow penalty of confiscation once 

the offence was established. 

6. Per contra, learned counsel for the respondents has supported the 

impugned judgment which has held in favour of availability of judicial discretion 

to impose a fine of even less than Rupees five thousand in view of several 

judgments dealing with cases under the Indian Penal Code wherein the word 

“shall” has been interpreted as an equivalent of the word “may”. The 

submission is that if “shall” is read as “may” then the clause “and shall also be 

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liable to fine of five thousand rupees” will evidently be directory in nature and 

shall vest judicial discretion in the court to levy or not to levy fine which at the 

maximum can be Rupees five thousand. In support of this stand reliance has 

been placed upon two judgments of this Court arising out of convictions under 

Section 302 of the IPC. In the case of Palaniappa Gounder (supra) the Court was 

called upon to decide the propriety of a particular quantum of fine in the 

context of Section 357(1)(c) of the Code of Criminal Procedure providing for 

compensation to the victim of a crime. In the case of Surinder Kumar (supra) 

this Court again had the occasion to consider the propriety of imposition of fine 

in a case of conviction under Section 302 of the IPC. In the facts of that case the 

Court affirmed the conviction and imprisonment for life but set aside the fine of 

Rs.500/-. 

7. As noticed earlier, the interpretation given by Patna High Court in the 

case of Tetar Gope (supra), on which learned counsel for the respondents has 

placed reliance has already been over-ruled by this Court in the case of 

Zunjarrao Bhikaji Nagarkar (supra). The remaining judgment in the case of 

Sebastian @ Kunju (supra) also arose out of conviction under Section 302 of the 

IPC. In paragraph 11 of that judgment, the Kerala High Court has placed reliance 

upon judgment of Patna High Court in the case of Tetar Gope (supra). 

8. In our considered view, the clause “shall also be liable to fine”, in the 

context of Indian Penal Code may be capable of being treated as directory and 

thus conferring on the court a discretion to impose sentence of fine also in 

addition to imprisonment although such discretion stands somewhat impaired 

as per the view taken by this Court in the case of Zunjarrao Bhikaji Nagarkar 

(supra). But clearly no minimum fine is prescribed for the offences under the IPC 

nor that Act was enacted with the special purpose of preventing economic 

offences as was the case in Chern Taong Shang (supra). The object of creating 

offence and penalty under the Employees’ State Insurance Act, 1948 is clearly to 

create deterrence against violation of provisions of the Act which are beneficial 

for the employees. Non-payment of contributions is an economic offence and 

therefore the Legislature has not only fixed a minimum term of imprisonment 

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526 



but also a fixed amount of fine of five thousand rupees under Section 85(a)(i)(b) 

of the Act. There is no discretion of awarding less than the specified fee, under 

the main provision. It is only the proviso which is in the nature of an exception 

whereunder the court is vested with discretion limited to imposition of 

imprisonment for a lesser term. Conspicuously, no words are found in the 

proviso for imposing a lesser fine than that of five thousand rupees. In such a 

situation the intention of the Legislature is clear and brooks no interpretation. 

The law is well settled that when the wordings of the Stature are clear, no 

interpretation is required unless there is a requirement of saving the provisions 

from vice of unconstitutionality or absurdity. Neither of the twin situations is 

attracted herein. 

9. Hence the question is answered in favour of the appellant and it is 

held that the amount of fine has to be Rupees five thousand and the courts 

have no discretion to reduce the same once the offence has been established. 

The discretion as per proviso is confined only in respect of term of 

imprisonment. 

10. Accordingly the appeals are allowed. The respondents shall now be 

required to pay a fine of Rupees five thousand. If they have already paid the 

earlier imposed fine of Rs.1000/-, they shall pay the balance or otherwise the 

entire fine of Rs.5000/- within six weeks and in default the fine shall be realised 

expeditiously in accordance with law by taking recourse to all the available 

machinery. 

Ss - 

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Present:Justice Jagdish Singh Khehar and Justice C.Nagappan. 

VIJAY PRAKASH JARATH - Appellant, 

VERSUS 

TEJ PRAKASH JARATH – Respondent. 

Civil Appeal Nos.2308-2309 Of 2016 

(Arising out of SLP(C)Nos.8536-8537 of 2008) With Civil Appeal No.2310 OF 

2016 (Arising out of SLP(C)No.32118 of 2009) 

Civil Procedure Code, 1908, Order VIII Rule 6A - Counter-claim filed 

almost two and a half years after the framing of the issues - Sub-clause 

(1) of Section 6A of Order VIII, provides that the cause of action in 

respect of which a counter claim can be filed, should accrue before the 

defendant has delivered his defence, namely, before the defendant has 

filed a written statement – Plaintiff's evidence was still being recorded 

by the trial court, when the counter-claim was filed - It has also not 

been shown, that any prejudice would be caused to the respondentplaintiff 

before the trial court, if the counter-claim was to be 

adjudicated upon, along with the main suit - No serious injustice or 

irreparable loss, would be suffered by the plaintiff. [Para 9] 

527 


Rohit Singh & ors. v. State of Bihar (Now State of Jharkhand) & 

Ors.,*** (2006) 12 SCC 734 distinguished. 

Bollepanda P. Poonacha & Anr v. K.M.Madapa,*** (2008) 13 SCC 179, 

relied. 

JUDGMENT 

Jagdish Singh Khehar, J. – (MARCH 1, 2016 ) - The respondent before 

this Court – Tej Prakash Jarath filed Suit No.608 of 1992 on 09.11.1992. In the 

aforesaid suit, defendants Nos.3 and 4 – Om Prakash Jarath (the father of the

528 



plaintiff in the suit) and Vijay Prakash Jarath (the elder brother of the plaintiff) 

respectively, filed written statements on 11.11.1992. Thereupon, issues came to 

be framed on 18.10.1993. After the framing of the issues, the petitioners before 

this Court (i.e. defendant Nos.3 and 4 in the original suit), filed a counter-claim 

on 17.06.1996 i.e. almost two and a half years after the framing of the issues. 

2. The trial court, vide its order dated 28.10.1996, accepted the 

aforesaid counter-claim. The above order dated 28.10.1996, came to be assailed 

by the respondent-plaintiff-Tej Prakash Jarath through Civil Miscellaneous Writ 

Petition No.1266 of 2001, before the High Court of Uttarakhand at Nainital 

(hereinafter referred to as `the High Court’). The High Court relying upon the 

judgment of this Court in Rohit Singh & ors. v. State of Bihar (Now State of 

Jharkhand) & Ors.,*** (2006) 12 SCC 734, concluded, that the counter-claim 

filed by the petitioner-defendant Nos.3 and 4 before the trial court, was not 

legally acceptable. The order passed by the High Court dated 02.01.2008, 

recording the above conclusion, has been assailed through the instant special 

leave petitions. 

3. Leave granted. 

4. Before adverting to the merits of the controversy, we would first 

endeavour to deal with the issues as to whether the High Court correctly 

applied the judgment rendered by this Court in Rohit Singh’ case (supra), to the 

controversy in hand. In order to appreciate the conclusions drawn by this Court 

in Rohit Singh’s case (supra), the following observations (relating to the facts 

and conclusions) recorded therein need to be taken into consideration: 

“17. We shall first consider whether there was a counterclaim in the suit 

in terms of Order 8 Rule 6A of the Code in this case. The suit was filed 

against the Divisional Forest Officer and the State of Bihar as 

Defendants 1 and 2 on 26.2.1996 by Respondent No.6 herein. After the 

written statement was filed by the defendants, issues were framed and 

the suit went to trial. On 3.6.1996 and 6.6.1996 the evidence on the side 

of the plaintiff was concluded. On 14.6.1996 the evidence on the side of 

the defendants was completed. On 24.6.1996 arguments were 

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concluded. Judgment was reserved. 25.6.1996 was fixed as the date for 

pronouncing the judgment. The judgment was not pronounced and it 

appears that the Judge was subsequently transferred. Therefore, on 

20.8.1996 arguments were again heard by the successor Judge and 

judgment was reserved. 27.8.1996 was fixed as the date for judgment. 

Apparently, it was not pronounced. It is thereafter that Defendants 3 to 

17 filed an application on 11.9.1996 for intervention in the suit. We have 

already referred to the allegations in that application for impleading 

filed. We only notice again that they claimed to be in possession of the 

property and that their presence before the court was necessary in 

order to enable the court to effectually and completely adjudicate upon 

and settle all the questions involved in the suit. On 19.9.1996 the 

application for intervention was allowed. On 30.9.1996 a written 

statement was filed by Defendants 3 to 12. We have already 

summarised the pleas raised therein. 

18. After this, the witnesses of the plaintiff were recalled and permitted 

to be cross-examined by these Defendants. That was on 5.10.1996. 

Again the witnesses for defendants 1 and 2, were recalled and they were 

permitted to be cross-examined on behalf of these defendants. The 

evidence on the side of Defendants 3 to 17 was let in. It commenced on 

24.2.1997 and was closed on 30.1.1997. Thereafter, arguments were 

heard again and the arguments on the side of the defendants including 

that of Defendants 3 to 17 were concluded on 4.3.1997. The suit was 

adjourned for arguments on the side of the plaintiff. On 5.3.1997, the 

suit was dismissed for default of the plaintiff. It was then restored on 

29.5.1998. It was thereafter on 5.6.1998, that Defendants 3 to 17 filed 

an application for amending the written statement. The amendment 

was allowed on 20.7.1998. There was no order treating the amended 

written statement as a counter-claim or directing either the plaintiff or 

Defendants 1 and 2 to file a written statement or an answer thereto. 

Defendants 3 to 17 had questioned the pecuniary jurisdiction of the trial 

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530 



court in their written statement. That plea was permitted to be 

withdrawn on 4.2.1999. It is clear that after the evidence was closed, 

there was no occasion for impleading the interveners. Even assuming 

that they were properly impleaded, after they had filed their written 

statement, the suit had gone for further trial and further evidence 

including that of the interveners had been taken, the evidence again 

closed and even arguments on the side of the interveners had been 

concluded. The suit itself was dismissed for default only because on 

behalf of the plaintiff there was a failure to address arguments. But the 

suit was subsequently restored. At that stage no counter-claim could be 

entertained at the instance of the interveners. A counter-claim, no 

doubt, could be filed even after the written statement is filed, but that 

does not mean that a counter-claim can be raised after issues are 

framed and the evidence is closed. Therefore, the entertaining of the socalled 

counter-claim of Defendants 3 to 17 by the trial court, after the 

framing of issues for trial, was clearly illegal and without jurisdiction. On 

that short ground the so called counter-claim, filed by Defendants 3 to 

17 has to be held to be not maintainable. 

19. As can be seen, what Defendants 3 to 17 did, was to merely amend 

their written statement by adding a sentence to para 16 of the written 

statement they originally filed. In para 16 it was only pleaded that those 

defendants were claiming to be in peaceful possession of the suit lands 

ever since the time of their predecessors. They wanted to add that they 

had claimed acquisition of title based on long and uninterrupted 

possession and they crave leave to get their title declared in the suit for 

which a declaratory court fee is paid. It may be noted that not even a 

prayer was sought to be added seeking a declaration of their title as is 

the normal practice. It is, therefore, clear that on going through the 

original written statement and the amendment introduced, that there 

was no counter-claim in terms of Order 8 Rule 6A of the Code in the case 

on hand, which justifies a trial of that counter-claim even assuming that 

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such a counter-claim was maintainable even if no relief was claimed 

against the plaintiff in the suit but it was directed only against the codefendants 

in the suit. The counter-claim so called is liable to be rejected 

on that ground as well.” (emphasis is ours) 

5. The factual position in the relied upon judgment, is not similar to the 

factual position of the case in hand. In the present case, after the issues had 

been framed, the plaintiff’s evidence had commenced to be recorded. Though 

the same had not yet been concluded. In Rohit Singh’ case (supra), on the other 

hand, not only were issues framed, and the evidence of the rival parties, 

including the defendant recorded. Furthermore, on several occasions, 

arguments were heard for the ultimate disposal of the suit. And more than 

once, the judgment was also reserved, but then, on account of transfer of the 

Judge, and for other reasons, evident from the extract recorded hereinabove, 

judgment could not be pronounced. It is in the aforesaid situation, that the 

counter claim filed by the defendants, at such a belated stage, was considered 

to be, not sustainable in law. We are, therefore, satisfied in holding, that the 

judgment rendered in Rohit Singh’s case is clearly not applicable to the facts and 

circumstances of this case. 

6. Furthermore, learned counsel for the appellants had contended, on 

the basis of observations recorded in para 18 (extracted above) in Rohit Singh’s 

case (supra), that counter claim would not be permissible after framing of the 

issues, and after the evidence is concluded. Even if the above parameter is 

applied to the facts of the present case, it is apparent, that the judgment 

rendered in Rohit Singh’s case (supra) would not lead to the findings recorded 

by the High Court in the impugned order, for the simple reason, that in Rohit 

Singh's case, evidence from both sides was concluded, and even arguments had 

been heard, whereas, in the present case, even though evidence on behalf of 

the respondent-plaintiff has commenced, it has not yet concluded. The evidence 

on behalf of the defendants is yet to commence. 

531 


7. Despite the conclusions recorded by us hereinabove, it is relevant to 

record, that it was also the contention of the learned counsel for the

532 



respondent-plaintiff, that the decision rendered by this Court in Rohit Singh’s 

case, has been reiterated inBollepanda P. Poonacha & Anr v. K.M.Madapa,*** 

(2008) 13 SCC 179, and a perusal of the above judgment, would lead to the 

conclusion, that in the factual analysis, the conclusions drawn by the High Court 

were justified. Our pointed attention was drawn to the conclusions recorded in 

paragraph 15 of the above judgment, which is extracted hereunder: 

“15. A belated counter claim must be discouraged by this Court. See 

Ramesh Chand Ardawatiya v. Anil Panjwani [(2003) 7 SCC 350]. We are, 

however, not unmindful of the decisions of this Court where a 

defendant has been allowed to amend his written statement so as to 

enable him to elaborate his defence or to take additional pleas in 

support of his case. The Court in such matters has a wide discretion. It 

must, however, subserve the ultimate cause of justice. It may be true 

that further litigation should be endeavoured to be avoided. It may also 

be true that joinder of several causes of action in a suit is permissible. 

The Court, must, however, exercise the discretionary jurisdiction in a 

judicious manner. While considering that subservance of justice is the 

ultimate goal, the statutory limitation shall not be overstepped. Grant of 

relief will depend upon the factual background involved in each case. 

The Court, while undoubtedly would take into consideration the 

questions of serious injustice or irreparable loss, but nevertheless should 

bear in mind that a provision for amendment of pleadings are not 

available as a matter of right under all circumstances. One cause of 

action cannot be allowed to be substituted by another. Ordinarily, effect 

of an admission made in earlier pleadings shall not be permitted to be 

taken away. See State of A.P v. M/s. Pioneer Builders, A.P. [(2006) 9 

SCALE 520] and Steel Authority of India Ltd. v. Union of India [2006 (9) 

SCALE 597] and Himmat Singh v. I.C.I. India Ltd. *2008 (2) SCALE 152+.” 

(emphasis is ours) 

Having perused the conclusions drawn in paragraph 15, extracted above, we are 

satisfied, that the same are wholly inapplicable to the facts and circumstances 

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of this case, and that, the decision of the High Court could not have been 

legitimately based on the conclusions recorded in paragraph 15, extracted 

above. 

8. It is in these circumstances, that we advert to Order VIII Rule 6A of the Code 

of Civil Procedure, which is being reproduced below: 

“6A. Counter-claim by defendant - (1) A defendant in a suit may, in 

addition to his right of pleading a set-off under rule 6, set up, by way of 

counter-claim against the claim of the plaintiff, any right or claim in 

respect of a cause of action accruing to the defendant against the 

plaintiff either before or after the filing of the suit but before the 

defendant has delivered his defence or before the time limited for 

delivering his defence has expired, whether such counter-claim is in the 

nature of a claim for damages or not: 

Provided that such counter-claim shall not exceed the pecuniary limits 

of the jurisdiction of the Court. 

(2) Such counter-claim shall have the same effect as a cross-suit so as to 

enable the Court to pronounce a final judgment in the same suit, both 

on the original claim and on the counter-claim. 

(3) The plaintiff shall be at liberty to file a written statement in answer 

to the counter-claim of the defendant within such period as may be 

fixed by the Court. 

(4) The counter-claim shall be treated as a plaint and governed by the 

rules applicable to plaints.” 

A perusal of Sub-clause (1) of Section 6A of Order VIII, leaves no room for any 

doubt, that the cause of action in respect of which a counter claim can be filed, 

should accrue before the defendant has delivered his defence, namely, before 

the defendant has filed a written statement. The instant determination of ours 

is supported by the conclusions drawn in Bollepanda P. Poonacha & Anr v. 

K.M.Madapa (supra), wherein this Court observed as under: 

“11. The provision of Order 8 Rule 6-A must be considered having 

regard to the aforementioned provisions. A right to file counterclaim is 

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534 



an additional right. It may be filed in respect of any right or claim, the 

cause of action therefor, however, must accrue either before or after the 

filing of the suit but before the defendant has raised his defence. The 

respondent in his application for amendment of written statement 

categorically raised the plea that the appellants had tresspassed on the 

lands in question in the summer of 1998. Cause of action for filing the 

counterclaim inter alia was said to have arisen at that time. It was so 

explicitly stated in the said application. The said application, in our 

opinion, was, thus, clearly not maintainable. The decision of Ryaz 

Ahmed (supra) is based on the decision of this Court in Baldev Singh v. 

Manohar Singh *(2006) 6 SCC 498+.” (emphasis is ours) 

It is not a matter of dispute in the present case, that cause of action for which 

the counter-claim was filed in the present case, arose before the respondentplaintiff 

filed the suit (out of which these petitions/appeals have arisen). It is 

therefore apparent that the appellants before this Court were well within their 

right to file the counter-claim. 

9. It is quite apparent from the factual position noticed hereinabove, that after 

the issues were framed on 18.10.1993, the counter claim was filed by the 

appellants before this Court (i.e. by defendant Nos.3 and 4 before the trial 

court) almost two and a half years after the framing of the issues. Having given 

our thoughtful consideration to the provisions relating to the filing of counter 

claim, we are satisfied, that there was no justification whatsoever for the High 

Court to have declined, the appellant before this Court from filing his counter 

claim on 17.06.1996, specially because, it is not a matter of dispute, that the 

cause of action, on the basis of which the counter claim was filed by defendant 

Nos.3 and 4, accrued before their written statement was filed on 11.11.1992. In 

the present case, the respondent-plaintiff's evidence was still being recorded by 

the trial court, when the counter-claim was filed. It has also not been shown to 

us, that any prejudice would be caused to the respondent-plaintiff before the 

trial court, if the counter-claim was to be adjudicated upon, along with the main 

suit. We are of the view, that no serious injustice or irreparable loss (as 

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expressed in paragraph 15 of Bollepanda P.Pooncha's case), would be suffered 

by the respondent-plaintiff in this case. 

10. For the reasons recorded hereinabove, we set aside the impugned order 

passed by the High Court dated 02.01.2008, and restore the order passed by the 

trial court dated 28.10.1996. 

11. The appeals are allowed in the above terms. 

12. Needless to mention, that it shall be open to the respondent-plaintiff to 

raise all pleas open to him through the written statement which is filed by the 

respondent-plaintiff, to the counter claim. 

Civil Appeal No.2310 of 2016 (Arising out of SLP(C)No.32118 of 2009) 


14. Learned counsel for the parties are agreed, that the controversy raised in 

the instant appeal, is akin to the one adjudicated upon by this Court in Vijay 

Prakash Jarath v. Tej Prakash Jarath (Civil Appeal Nos.2308-2309 of 2016, 

arising out of SLP(C)Nos.8536-8537 of 2008, decided by us on 01.03.2016. The 

instant appeal is accordingly allowed in terms of the decision rendered by this 

Court in Vijay Prakash Jarath v. Tej Prakash Jarath decided on 01.03.2016. 

535 


Ss -




Present: Mr. Justice J. Chelameswar and Mr. Justice Pinaki Chandra Ghose 

T. VASANTHAKUMAR - Appellant, 

Versus 

VIJAYAKUMARI - Respondent. 

CRIMINAL APPEAL NO.728 OF 2015 (Arising out of SLP (Crl.) No. 8091 of 2011) 

(i) Negotiable Instruments Act, 1881 (26 of 1881) - Section 139 

– Burden of Proof - Since the cheque as well as the signature has been 

accepted by the accused respondent, the presumption under Section 

139 would operate - Thus, the burden was on the accused to disprove 

the cheque or the existence of any legally recoverable debt or liability – 

Burden of proof had shifted on the accused which the accused failed to 

discharge. [Para 10] 

536 


(ii) Negotiable Instruments Act, 1881 (26 of 1881) - Section 138 

– Accused disputed taking any loan from the complainant – Pleaded 

she never visited the place of complainant and never borrowed any 

money and claimed there were differences with the complainant in the 

year 2006 – That the cheque was given in the year 1999 as security - 

Cheque leaf itself mentioned the date in printed ink as “__/__/199__” - 

Transaction was in 2006 - Cheque has not been disputed nor the 

signature of the defendant on it - Accused has come up with a story that 

the cheque was given to the complainant long back in 1999 as a security 

to a loan, the loan was repaid but the complainant did not return the 

security cheque - It may be noted that the cheque was dishonoured 

because the payment was stopped and not for any other reason - 

Implies that the accused had knowledge of the cheque being presented 

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to the bank, or else how would the accused have instructed her banker 

to stop the payment – Conviction upheld. [Para 10] 

(iii) Negotiable Instruments Act, 1881 (26 of 1881) - S. 138 – 

Security Cheque - Cheque leaf itself mentioned the date in printed ink 

as “__/__/199__” - Transaction was in 2006 - However, we are of the 

view that by itself, in absence of any other evidence, cannot be 

conclusive of the fact that the cheque was issued in 1999 - The date of 

the cheque was as such 20/05/2006. [Para 11] 

Cases referred to: 

1. (2010) 11 SCC 441, Rangappa v. Sri Mohan.*** 

Appeal from the judgment and order dated 22.07.2011 passed by the 

High Court of Karnataka in Criminal Revision Petition No. 263/2011. 

JUDGEMENT 

The judgment of the court was delivered by :- 

Pinaki Chandra Ghose, J. – (28 th April, 2015) - 


2. This appeal, by special leave, arises from the judgment and order 

dated 22-07-2011 passed by the High Court of Karnataka in Criminal Revision 

Petition No.263/2011 by which the High Court set aside the judgments of the 

two Courts below and acquitted the respondent herein. 

537 


3. The genesis of the litigation in the present case is that a complaint 

under Section 138 of the Negotiable Instruments Act, 1881 was filed by the 

complainant before the XII Magistrate, Bangalore. The learned Magistrate had, 

after trial, found the defendant guilty and sentenced her to pay Rs.5,55,000/- 

and in default of payment of the said amount, to undergo simple imprisonment 

for a period of five months. This order of the learned Magistrate was challenged 

in the appeal before the Fast Track Court, Bangalore, but the same was 

dismissed by the Fast Track Court. The defendant preferred a revision of the 

Fast Track Court's order before the High Court, being Criminal Revision Petition


No.263/2011. 

4. The case of the complainant is that he is the owner of the Ullas 

Theatre situated at Yashwantpur, Bangalore, while the defendant is the 

538 


distributor of films. The two parties had a business relationship whereunder the 

defendant provided movies to the complainant for screening at his Theatre. In 

May 2006, the defendant sought a loan of Rupees Five Lakhs from the 

complainant for supporting the making of a Tamil movie “Pokari”. The said loan 

was advanced by the complainant on 20-05-2006. The defendant had promised 

to repay the loan on release of the said movie. However, the defendant failed to 

repay the said loan. On repeated requests made by the complainant, the 

defendant on 16-01-2007, gave a cheque for Rs.5 lakhs, bearing No.822408, 

drawn on State Bank of Mysore, Vyalikaval Branch, Bangalore. This cheque was 

presented by the complainant on the same day through his banker Vijaya Bank, 

Yeshwantpur Branch, Bangalore. But the cheque was returned on 18-01-2007 by 

the Bank with the remarks: “Stop Payment”. Thereafter, the complainant issued 

a legal notice to the defendant on 27-01-2007, at the office address as well as 

residential address of the defendant. The notice sent at the residential address 

through RPAD was duly received, while the one sent at the office address of the 

defendant was returned with the report: “Absent - Information delivered”. Even 

after the notice was served, the defendant neither made the payment nor 

responded to the same. 

5. The defendant's case is that she is only the name lender to the 

business of films distribution run in the name of Vijayakumari Films which is 

actually controlled and managed by her husband Kuppuswamy. She has 

disputed taking any loan from the complainant as claimed by him. According to 

her, she never visited the place of complainant and never borrowed any money. 

The defendant has claimed that Vijayakumari Films had differences with the 

complainant in the year 2006, over release of the film “Pokari”. The defendant's 

husband had denied to release the film in the complainant's theatre on the 

ground that at the time of the release of the said movie, another Kannada 

movie was being shown there and it could have been a sensitive matter. The 

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defendant's case is that the alleged cheque was given to the complainant in the 

year 1999 as security against loan of Rs.5 lakhs taken then. After the defendant 

paid the loan, the complainant did not return the said cheque saying that he 

had misplaced it. The defendant alleges that the complainant, due to ill will in 

release of the movie “Pokari”, used this old cheque to take revenge against the 

defendant firm. 

6. The Trial Court found the defendant guilty under Section 138 of 

Negotiable Instruments Act and sentenced her to pay a fine of Rs.5,55,000/-, in 

default of payment, she was to undergo simple imprisonment for five months. 

The first appellate Court found that although the defendant disputed the 

transaction, they did not dispute the cheque or her signature on it. The learned 

Sessions Judge (Fast Track Court) found that there was no evidence forthcoming 

to show that the cheque was issued in 1999. It noted that there was no 

suggestion put to the defendant with respect to the loan taken in 1999 or 

cheque given to him as security in 1999. Further the Court relied on the 

presumption in favour of the complainant under Section 139 and held that the 

defendant had failed to rebut that presumption. The Court also rejected the 

claim of the defendant that she and her husband were not in Bangalore on the 

alleged date when the loan was advanced i.e. 20-05-2006. The defendant had 

produced hotel bills of Chennai for those dates, but the Court held that the bills 

do not prove the presence of the Defendant along with her husband in Chennai. 

On these grounds the Court did not find weight in the case of the defendant. 

539 


7. The High Court in appeal reversed the concurrent finding of the 

learned Magistrate and learned Sessions Judge. The High Court found that the 

cheque was actually from the cheque book that was issued prior to 2000 as the 

cheque leaf itself mentioned the date in printed ink as “__/__/199__”. The High 

Court observed that it is hard to believe that a business transacting party would 

give a cheque which is of the decade 1990 in relation to the transaction in 2007. 

The High Court accepted the argument of the defendant that the Complainant 

used the old cheque due to ill will because of denial of the defendant firm to 

release the film “Pokari” in his theatre. Further, the High Court noted that the


complainant in his statement has deposed that he had withdrawn the amount 

of Rs.5 lakhs, 2 days prior to giving it to the defendant but he failed to bring on 

record any receipt or other proof of such withdrawal of money from bank. The 

High Court found the case of the complainant lacking to prove the offence 

under Section 138 of the Negotiable Instruments Act. 

8. We have heard the learned counsel appearing for the appellant as 

also the learned counsel appearing for the respondent. The complainant has 

alleged that the money (loan) was advanced to the defendant on 20-05-2006 in 

relation to which the cheque was issued to him by the defendant on 16-01- 

540 


2007. The cheque was for Rs.5 lakhs only, bearing No.822408. It is of great 

significance that the cheque has not been disputed nor the signature of the 

defendant on it. There has been some controversy before us with respect to 

Section 139 of Negotiable Instruments Act as to whether complainant has to 

prove existence of a legally enforceable debt before the presumption under 

Section 139 of the Negotiable Instruments Act starts operating and burden 

shifts to the accused. Section 139 reads as follows: 

“139. Presumption in favour of the holder- It shall be presumed, 

unless the contrary is proved, that the holder of a cheque received the 

cheque of the nature referred to in Section 138 for the discharge, in 

whole or in part, of any debt or other liability.” 

9. This Court has held in its three judge bench judgment in Rangappa v. 

Sri Mohan.*** 1 (2010) 11 SCC 441: 

“The presumption mandated by Section 139 includes a presumption 

that there exists a legally enforceable debt or liability. This is of course 

in the nature of a rebuttable presumption and it is open to the accused 

to raise a defence wherein the existence of a legally enforceable debt or 

liability can be contested. However, there can be no doubt that there is 

an initial presumption which favours the respondent complainant.” 

10. Therefore, in the present case since the cheque as well as the signature has 

been accepted by the accused respondent, the presumption under Section 139 

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would operate. Thus, the burden was on the accused to disprove the cheque or 

the existence of any legally recoverable debt or liability. To this effect, the 

accused has come up with a story that the cheque was given to the complainant 

long back in 1999 as a security to a loan; the loan was repaid but the 

complainant did not return the security cheque. According to the accused, it 

was that very cheque used by the complainant to implicate the accused. 

However, it may be noted that the cheque was dishonoured because the 

payment was stopped and not for any other reason. This implies that the 

accused had knowledge of the cheque being presented to the bank, or else how 

would the accused have instructed her banker to stop the payment. Thus, the 

story brought out by the accused is unworthy of credit, apart from being 

unsupported by any evidence. 

11. Further, the High Court relied heavily on the printed date on the 

cheque. However, we are of the view that by itself, in absence of any other 

evidence, cannot be conclusive of the fact that the cheque was issued in 1999. 

The date of the cheque was as such 20/05/2006. The accused in her evidence 

brought out nothing to prove the debt of 1999 nor disprove the loan taken in 

2006. 

541 


12. In light of the above reasoning, we find that the learned High Court 

was misplaced in putting the burden of proof on the complainant. As per 

Section 139, the burden of proof had shifted on the accused which the accused 

failed to discharge. Thus, we find merit in this appeal. 

13. The appeal is allowed. The judgment and order passed by the High 

Court is accordingly set aside and the judgment dated 22.01.2011, delivered by 

the Presiding Officer, Fast Track Court-I, Bengaluru, confirming the order passed 

by the XIIth Addl. Chief Metropolitan Magistrate, Bengaluru, convicting the 

respondent for an offence under Section 138 of the Negotiable Instruments Act 

and sentencing her to pay a fine of Rs.5,55,000/-, in default to suffer Simple 

Imprisonment for five months, is hereby restored. 

S.S. 

Appeal allowed.




Present: Mr. Justice J. Chelameswar and Mr. Justice Pinaki Chandra Ghose 

CENTRAL BANK OF INDIA – Appellant, 

Versus 

C.L. VIMLA & Ors. - Respondents. 

Civil Appeal No. 4043 of 2015 (Arising out of SLP(C) No.10173 of 2011) WITH 

Civil Appeal No. 4044-4046 OF 2015 (Arising out of SLP(C) Nos.14188-14190 of 

2011) 

(i) Indian Contract Act, 1872, Section 128 - Guarantor - Liability 

542 


of - The legislature has succinctly stated that the liability of the 

guarantor is co-extensive with that of the principal debtor unless it is 

otherwise provided by the contract - The only exception to the nature 

of the liability of the guarantor is provided in the Section itself, which is 

only if it stated explicitly to be otherwise in the Contract - It is the 

prerogative of the Creditor alone whether he would move against the 

principal debtor first or the surety, to realize the loan amount - The 

guarantor cannot escape from her liability as a guarantor for the debt 

taken by the principal debtor - Loan agreement,- There is no clause 

which shows that the liability of the guarantor is not co-extensive with 

the principal debtor - Banking. [Para 11] 

(ii) Auction purchaser – Sale not set aside – Held that since the 

auction purchaser has already paid the full amount of sale 

consideration and is in possession of the property in question for more 

than about 8 years - For equity and good conscience, do not intend to 

interfere with his possession. 

Held, that we cannot brush aside the fact that respondent Nos.4, 6 & 7 

filed a claim petition before the Recovery Officer on 4th January, 2007 claiming 

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their share of balance of sale proceedings after adjustment of the dues of the 

Central Bank which shows that the parties to the dispute have accepted the 

award passed by the Lok Adalat. It appears to us that the High Court did not 

consider the said facts and further it has escaped from the mind of the High 

Court that the auction purchaser has purchased the auctioned property for sale 

consideration of Rs.3.27 crores and 25% of the sale consideration was duly paid 

on 5th October, 2006 and furthermore on 19th October, 2006, the balance 

amount of sale consideration was duly paid by the auction purchaser. We have 

further noted that the sale was confirmed on 15th November, 2006. The sale 

certificate was also issued in favour of the auction purchaser after paying the 

requisite stamp duty and registration fees which, as pointed out to us on behalf 

of the auction purchaser, to the tune of Rs.30,73,800/-. It is also not in dispute 

that auction purchaser was put in possession of the property and is still in 

possession of the property since the sale certificate was issued and registration 

was made in his favour. It is submitted on behalf of the auction purchaser that 

he has purchased the property by availing private borrowing for the said 

property and he is paying nearly Rs.5 lakhs per month as interest. Therefore, in 

our opinion, the equity and good conscience also has to play a role in the matter 

in question on the given facts and after considering the conduct of the 

respondents in the matter. In these circumstances, we feel that it would not be 

proper for us at this stage to set aside the sale, as has been done by the High 

Court without taking into consideration all these facts. 

543 


(iii) Guarantors - No reason why the Joint Memo, which states 

compromise arrived at between the Bank and the principal debtors, 

would not bind the guarantor when under the Clause she has admitted 

that any judgment or award obtained by the Bank against the principal 

debtor would bind the parties – Bank Loan. [Para 14] 

(iv) Ignorance - The mere fact of ignorance cannot be a valid 

ground - Settlement was not within the knowledge of the guarantor as 

she had not signed the joint memo signed by her son - C stood a


guarantor – Property mortgaged to bank – High Court Lok Adalat passed 

an award whereunder the borrower agreed to pay amount as final 

settlement of the claim of the Bank - Settlement was not within the 

knowledge of the guarantor C as she had not signed the joint memo - 

One of her sons N has signed it - Her advocate has also signed the Joint 

Memo - Only later she learnt that the property has been ordered to be 

sold by auction - Also learnt about the signing of Joint Memo by N (her 

son) and the Bank - The respondent, and her son, who signed the joint 

memo, were residing in the same house - No reason why the 

Respondent would not know of the joint memo, when she could have 

by reasonable means made herself aware of the proceedings. 

[Para 15] 


1. (1998)8 SCC 653, United Bank of India v. Bengal Behar Construction 

544 


Company Ltd. and others 

JUDGMENT 


Pinaki Chandra Ghose, J. – (28 th April, 2015) - 


2. These appeals, by special leave, arise from the Judgment and Order 

dated 23.12.2010 passed by the Division Bench of the High Court of Karnataka 

at Bangalore in Writ Petition No.3531 of 2007, Writ Petition No.17320 of 2007 

and Writ Petition No.17544 of 2007, whereby Writ Petition No.3531 of 2007 

filed by C.L. Vimla was allowed while Writ Petition Nos.17320 and 17544 of 2007 

filed by the auction purchaser and Central bank of India respectively, were 

dismissed. 

3. The facts material to the present case are that Respondent No.1 C.L. 

Vimla who is a senior citizen aged about 85 years, is the guarantor. The 

appellant Central Bank of India is the Bank to whom the property involved in the 

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present case, was mortgaged. The property involved in the present case is a 

residential house which was purchased by the husband of C.L. Vimla, namely, 

C.L.Narsimhaiah Shetty, under a sale deed dated 10.06.1997. She is in 

possession of the property along with other family members. Her husband, 

during his life time, executed a Will dated 31.05.1995 bequeathing his undivided 

share in favor of his sons equally and while settling the property he granted life 

interest in favour of the guarantor. However, he has not authorized her to sell 

or mortgage the property. The property was mortgaged in favour of Central 

Bank of India (hereinafter referred to as “the Bank”) for raising a loan of 

Rs.17,50,000/- for family business. The business suffered loss. Consequently, as 

the respondents were unable to repay the mortgage amount, the Bank filed 

O.A. No.309/2002 before the Debt Recovery Tribunal, Bangalore. The Debt 

Recovery Tribunal referred the case for settlement before Lok Adalat. The High 

Court Legal Services Committee considered the reference and passed an award 

whereunder the borrower have agreed to pay Rs.33,50,000/- as final settlement 

of the claim of the Bank. This settlement was not within the knowledge of the 

guarantor C.L. Vimla as she had not signed the joint memo. One of her sons N. 

Surya Bhagavan has signed it. Her advocate has also signed the Joint Memo. It 

was only on 5.4.2006 when she learnt that the property has been ordered to be 

sold by auction. She also learnt about the signing of Joint Memo by N.Surya 

Bhagavan and the Bank. So she filed Writ Petition No.6625 of 2006 before the 

High Court of Karnataka for setting aside the award dated 20.03.2004 of the Lok 

Adalat, as far as she was concerned. The High Court by an order dated 

1.06.2006, dismissed the writ petition on the ground of laches. Thereafter, she 

filed Writ Appeal No.899 of 2006, which was permitted to be withdrawn with 

liberty to approach the Lok Adalat for appropriate relief. Thereafter, the 

guarantor approached the Lok Adalat by filing an application under Order 9 Rule 

13 read with Sections 21 and 25 of Legal Services Authority Act, 1987 on 

03.10.2006. 

545 


4. During pendency of the writ petition, the Recovery Officer conducted 

auction on 5.10.2006. The guarantor filed an interim application being I.A.

546 



1464/2006 on 17.10.2006 before the DRT for setting aside the same. The office 

of the DRT raised an objection stating that the application amounted to an 

appeal. The Guarantor requested the DRT on 2.11.2006 not to confirm the sale 

since her case was pending before the Lok Adalat at High Court. The copy of the 

bid sheet did not contain the full particulars of the auction purchasers. Thus, she 

moved an application seeking stay of delivery of property. On 28.11.2006, the 

DRT directed the Recovery Officer not to deliver the property to the auction 

purchaser until further orders. In the meanwhile, the auction purchaser filed the 

applications seeking vacation of the Interim orders. On 22.01.2007, the interim 

order was vacated by the DRT in the absence of the appellant. Thus, the 

guarantor continued in possession till 31.1.2007. The auction purchaser moved 

an application on 01.02.2007 for recalling the order dated 22.01.2007. On 

5.02.2007, the High Court Lok Adalat permitted the appellant to request the 

DRT to defer the proceedings. An application made in this regard was dismissed 

on 22.2.2007. The High Court Lok Adalat held on 5.2.2007 that the guarantor 

not being a party to the joint memo to referring the matter to the Lok Adalat, 

the decree is not binding on her. While the guarantor was agitating her right in 

the property, the sale conducted is not valid in law, so she sought for setting 

aside the sale. 

5. In Writ Petition No.17320 of 2007, the auction purchaser contends 

that he is the auction purchaser in the auction conducted by the Recovery 

Officer in pursuance of order passed by DRT in OA No.309 of 2002 and as per 

Certificate No.3264 issued by DRT on 5.10.2006. The auction purchaser has 

purchased the property for Rs.3.27 crores. In pursuance of the deposit the sale 

was confirmed on 15.11.2006. 

6. The High Court of Karnataka, in the impugned judgment, has dealt 

with the issues individually. The Court had framed issues on the inherent power 

of the Lok Adalat, the action of the Debt Recovery Tribunal (DRT) in deciding the 

interim applications filed by the guarantor and the possession by the auction 

purchaser and payment of solatium to the Central Bank of India. On the issue of 

the inherent power of the Lok Adalat, the High Court after relying on a number 

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of decisions held that as the guarantor was not a party to the Joint Memo, the 

decree would not be binding on her. Regarding the validity of the sale, the High 

Court held that the sale was not done as per the mandate of the sale 

proclamation which said that the sale was to be conducted part by part and 

stopped as soon as the decree amount was realized. Thus, the High Court held 

that the auction was violative of Order 21 Rule 64. It also rejected the plea for 

solatium of 20% of the Central Bank of India. 

7. The learned counsel for the appellant contends that the respondent 

cannot seek recalling of the settlement which was entered into between the 

Lender and the Borrower. The appellant contends that there is no provision 

under the Legal Services Authority Act, 1987 (“the Act”, for short) which entitles 

the Lok Adalat to set-aside or adjudicate on its own orders. Under Section 21 of 

the Act of 1987 the awards of the Lok Adalat are given the status of a decree of 

a Civil Court and finality is given to them. Under Section 21(2), no appeal lies to 

any Court against the award. The High Court has erred in upholding that the 

settlement entered into between the Bank and Borrower can be recalled at the 

behest of the Guarantor after 3 years of the settlement order being passed. The 

High Court has not appreciated Clause 2 of the Form of Guarantee that was 

executed by Respondent No.1 in favour of the Bank. She cannot escape liability 

merely on the ground of being unaware, after 3 years, when a letter dated 

26.12.2006 was written by the learned counsel for the respondents to the 

learned counsel for the Bank, making an offer to settle the matter by paying 

Rs.33.50 Lakhs as per award dated 20.03.2004. The High Court has failed to 

appreciate that Respondent No.1 and her family members had availed loan for 

business purposes. They were unable to repay the loan amount. Thus, it is 

apparent that various proceedings were initiated by Respondent No.1 with a 

mala fide and fraudulent intent to stall the recovery proceedings. The High 

Court failed to appreciate that huge amounts exceeding Rs.52,45,967/- were 

due, as on 20.03.2004, to a public institution and inspite of expiry of more than 

10 years the Bank has not realized the amounts due. The High Court also failed 

to appreciate that the sale of mortgaged property was effected under provisions 

547 



of Income Tax (Certificate proceedings) Rules. The sale was effected as per Rule 

60 and Rule 61. The High Court failed to appreciate that the mortgaged property 

comprised of a residential house, car shed, vacant portico and open space and it 

was not possible to sell only a portion thereof. The learned counsel for the 

appellant finally concluded that the High Court was not justified in rejecting the 

request made by the appellant that if for any reason the Court came to the 

conclusion that the auction of the property is to be set-aside, 20 per cent of the 

bid money should be awarded to the appellant Bank as solatium. 

8. The learned counsel for Respondents contends that the appellant has 

548 


suppressed material facts, that the award passed by the Lok Adalat was without 

her consent and further, the sale proceedings were null and void. Originally the 

partnership firm called Satyashree Silks had raised a loan of Rs.17.5 lakhs from 

Central Bank of India. The Counsel for the Respondents contends that she has 

got nothing to do with the firm. When the matter was pending before the DRT, 

N. Surya Bhagavan, Respondent No.2 signed a Joint Memo for referring the 

matter to the Lok Adalat. The counsel for the Respondents stated that Joint 

Memo was not signed by the Respondents. No notice was issued on the Joint 

Memo to the Respondents. Before the Lok Adalat, Respondents alleges that the 

Joint Memo was filed whereunder the partners of Satyashree Silks would repay 

the sum of Rs.33,50,000/-. The learned counsel contends that N. Surya 

Bhagavan had no authority to enter into a contract on behalf of the 

Respondents. After lapse of two years, the property was attached and notice of 

proclamation for sale was published on the ground of non-payment of amount. 

It was only at this juncture that the Respondents came to know of the 

settlement. As soon as the answering respondent came to know of the 

proclamation and auction sale notice of the property, she preferred a writ 

petition before the Karnataka High Court, being W.P. No.6625/2006. The High 

Court dismissed the writ petition by its order dated 01.06.2006. The 

Respondents thereafter preferred a writ appeal being W.A. No.899/2006 and 

the High Court permitted the Respondents to approach the Lok Adalat for 

recalling of the award passed. 

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9. Learned counsel for the respondents further contends that when the 

recall application of the respondents was pending before the Lok Adalat, the 

appellant published sale proclamation. In the proclamation it was stated 

specifically that the property would be put for sale in lots, and it was further 

directed that if the amount is realized from sale of 1st lot, the sale would be 

stopped immediately. As per the contention of the Respondents, this vital 

document had been suppressed. As per the sale proclamation itself, it is clear 

that the dues as on that day were only Rs.52,45,967. On that very day the 

auction was finalized for Rs.3.27 crores when actually the worth of the property 

was more than 5 crores. The auction sale was a collusive sale. 

10. We have heard the learned counsel for the parties. 

11. We are of the opinion that the questions that need to be decided by 

us are regarding the liability of the guarantor under Section 128 of the Indian 

Contract Act, 1872. The legislature has succinctly stated that the liability of the 

guarantor is co-extensive with that of the principal debtor unless it is otherwise 

provided by the contract. This Court has decided on this question, time and 

again, in line with the intent of the legislature. In Ram Kishun and Ors. v. State 

of U.P. and Ors., (2012) 11 SCC 511, this Court has held that “in view of the 

provisions of Section 128 of the Contract Act, the liability of the 

guarantor/surety is co-extensive with that of the debtor.” The only exception to 

the nature of the liability of the guarantor is provided in the Section itself, which 

is only if it stated explicitly to be otherwise in the Contract. 

549 


12. In the case of Ram Kishun (supra), this Court has also stated that it is 

the prerogative of the Creditor alone whether he would move against the 

principal debtor first or the surety, to realize the loan amount. This Court 

observed: 

“Therefore, the creditor has a right to obtain a decree against 

the surety and the principal debtor. The surety has no right to restrain 

execution of the decree against him until the creditor has exhausted his 

remedy against the principal debtor for the reason that it is the business


of the surety/guarantor to see whether the principal debtor has paid or 

not. The surety does not have a right to dictate terms to the creditor as 

to how he should make the recovery and pursue his remedies against 

the principal debtor at his instance”. 

Thus, we are of the view that in the present case the guarantor cannot 

escape from her liability as a guarantor for the debt taken by the principal 

debtor. In the loan agreement, which is the contract before us, there is no 

clause which shows that the liability of the guarantor is not co-extensive with 

the principal debtor. Therefore Section 128 of the Indian Contract Act will apply 

here without any exception. 

13. After a thorough reading of the Form of Guarantee for Advances & 

Credit Generally, our attention has been drawn to Clause 2 where Respondent 

No.1, C.L. Vimala and one of her sons N. Ramesh Babu, have stated under the 

relevant part of the clause as under: 

“2)……in relation to the subject matter of this guarantee or any 

550 


judgement or award obtained by you against the principal debtor shall 

be binding on us….” 

14. This Court has held in United Bank of India v. Bengal Behar 

Construction Company Ltd. and others, (1998) 8 SCC 653, that the Clauses in 

the letter of guarantee are binding on the guarantors as follows: 

“In view of the above, the question regarding confirmation of 

the decree against the guarantors now needs to be settled. ……………… 

we see no reason why the guarantors should not be made liable under 

the letters of guarantee, the terms whereof clearly stipulate that on the 

failure of the principal debtor to abide by the contract, they will be 

liable to pay the amount due from the principal debtor by the 

appellants. Clause 15 of the letter of guarantee, in terms states that any 

action settled or stated between the bank and the principal debtor or 

admitted by the principal debtor shall be accepted by the guarantors as 

conclusive evidence. In view of this stipulation in the letter of guarantee, 

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once the decree on admission is passed against the principal debtor, the 

guarantors would become liable to satisfy the decree jointly and 

severally.” (Emphasis supplied) 

Thus, we see no reason why the Joint Memo, which states compromise 

arrived at between the Central Bank of India and the principal debtors, would 

not bind C.L. Vimla when under Clause (2) she has admitted that any judgment 

or award obtained by the Central Bank of India against the principal debtor 

would bind the parties. 

15. The mere fact of ignorance cannot be a valid ground. The 

respondent, C.L. Vimala and her son, N.Surya Bhagavan who signed the joint 

memo, were residing in the same house. We see no reason why the Respondent 

would not know of the joint memo, when she could have by reasonable means 

made herself aware of the proceedings. 

16. It appears that respondent No.1 Smt. C.L. Vimla filed writ petitions 

one after the other, being Writ Petition No.6625 of 2006 filed on 1st June, 2006, 

and another writ petition, being Writ Petition No.8186 of 2006, was filed by her 

two sons on 20th June, 2006. The said writ petitions were also dismissed by the 

High Court. Smt.C.L. Vimla had life interest of 1/6th share in the property in 

question. It is not in dispute that Smt.C.L. Vimla was residing with her son 

respondent No.3 and was under his care and custody and it appears from the 

facts that the said respondent No.3 categorically stated before the State Legal 

Services Authority on his behalf and on behalf of other defendants, including his 

mother, the respondent No.1, in respect of the settlement dated 20th March, 

2004. We have further noticed that the Court on a number of occasions granted 

time to deposit the amount to meet the liabilities of the bank by the 

respondents. But it appears that, time and again, they have failed to comply 

with the orders. 

551 


17. The respondent Nos.3 to 8 who were actual owners of the property 

in dispute have remained ex-parte throughout, i.e. from the date of filing of 

Miscellaneous Petition dated 29th April, 2006, challenging the award dated 20th


March, 2004. Respondent No.1 had the only right of residence in respect of the 

property in question. She did not dispute the fact that she was the guarantor in 

the transaction by which her sons took loan from the Central Bank. It is also not 

in dispute that the property was mortgaged with the Bank. 

18. We cannot brush aside the fact that respondent Nos.4, 6 & 7 filed a 

claim petition before the Recovery Officer on 4th January, 2007 claiming their 

share of balance of sale proceedings after adjustment of the dues of the Central 

Bank which shows that the parties to the dispute have accepted the award 

passed by the Lok Adalat. It appears to us that the High Court did not consider 

552 


the said facts and further it has escaped from the mind of the High Court that 

the auction purchaser has purchased the auctioned property for sale 

consideration of Rs.3.27 crores and 25% of the sale consideration was duly paid 

on 5th October, 2006 and furthermore on 19th October, 2006, the balance 

amount of sale consideration was duly paid by the auction purchaser. We have 

further noted that the sale was confirmed on 15th November, 2006. The sale 

certificate was also issued in favour of the auction purchaser after paying the 

requisite stamp duty and registration fees which, as pointed out to us on behalf 

of the auction purchaser, to the tune of Rs.30,73,800/-. It is also not in dispute 

that auction purchaser was put in possession of the property and is still in 

possession of the property since the sale certificate was issued and registration 

was made in his favour. It is submitted on behalf of the auction purchaser that 

he has purchased the property by availing private borrowing for the said 

property and he is paying nearly Rs.5 lakhs per month as interest. Therefore, in 

our opinion, the equity and good conscience also has to play a role in the matter 

in question on the given facts and after considering the conduct of the 

respondents (C.L. Vimla and others) in the matter. In these circumstances, we 

feel that it would not be proper for us at this stage to set aside the sale, as has 

been done by the High Court without taking into consideration all these facts. 

Further, the High Court has failed to appreciate these facts and wrongly held 

that the auction purchaser is a party to the negligence of the Recovery Officer 

and, accordingly, the sale was set aside. In our opinion, the auction purchaser 

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had nothing to do in holding the auction. Rather he deposited the money after 

bonafidely participating in the auction and, in fact, suffered for long time to pay 

a price by participating in auction proceedings. 

19. In these circumstances, we further noticed that the principal debtors 

were not prepared to pay back the amount to the Bank and did not choose to 

defend themselves properly. The conduct of the principal debtors also cannot 

be overlooked by us. 

20. Accordingly, we set aside the order passed by the High Court and 

hold that since the auction purchaser has already paid the full amount of sale 

consideration and is in possession of the property in question for more than 

about 8 years, for equity and good conscience, we do not intend to interfere 

with his possession and we, therefore, set aside the order passed by the High 

Court, and allow these appeals. 

S.S. - Appeal Allowed 

553 





Present: Mr. Justice Pinaki Chandra Ghose and Mr. Justice R.K. Agrawal 

GOLBAR HUSSAIN and Ors. - Appellants, 

Versus 

STATE OF ASSAM and Anr. – Respondents. 

CRIMINAL APPEAL NO. 181 OF 2013 

(i) Indian Penal Code, 1860 (XLV of 1860) Section 302 read with 

Section 149 - Legal principles regarding powers of the appellate Court 

while dealing with an appeal against an order of acquittal reiterated. 

Held, that five general principles in Chandrappa and Ors. v. State of 

Karnataka, (2007) 4 SCC 415, as follows: 

“(1) An appellate court has full power to review, reappreciate 

and reconsider the evidence upon which the order of acquittal is 

554 


founded. 

(2) The Code of Criminal Procedure, 1973 puts no limitation, 

restriction or condition on exercise of such power and an appellate 

court on the evidence before it may reach its own conclusion, both on 

questions of fact and of law. 

(3) Various expressions, such as, ‘substantial and compelling 

reasons’, ‘good and sufficient grounds’, ‘very strong circumstances’, 

‘distorted conclusions’, ‘glaring mistakes’, etc. are not intended to 

curtail extensive powers of an appellate court in an appeal against 

acquittal. Such phraseologies are more in the nature of ‘flourishes of 

language’ to emphasise the reluctance of an appellate court to interfere 

with acquittal than to curtail the power of the court to review the 

evidence and to come to its own conclusion. 

(4) An appellate court, however, must bear in mind that in case 

of acquittal, there is double presumption in favour of the accused. 

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Firstly, the presumption of innocence is available to him under the 

fundamental principle of criminal jurisprudence that every person shall 

be presumed to be innocent unless he is proved guilty by a competent 

court of law. Secondly, the accused having secured his acquittal, the 

presumption of his innocence is further reinforced, reaffirmed and 

strengthened by the trial court. 

(5) If two reasonable c onclusions are possible on the basis of 

the evidence on record, the appellate court should not disturb the 

finding of acquittal recorded by the trial court.” 

[Para 7] 

(ii) Criminal trial - Related witnesses - Admissibility of a 

statement by related witnesses - There is no bar on the admissibility of 

a statement by related witnesses supporting the prosecution case, but 

it should stand the test of being credible, reliable, trustworthy, 

admissible in accordance with law and corroborated by other witnesses 

or documentary evidence of the prosecution - It is the quality of the 

witness that matters and not the quantity, when the related witness 

was examined and found credible - In such a case non-examination of 

an independent witness would not be fatal to the prosecution case - 

Evidence . 

555 


Held, that in the present case, however, the prosecution witnesses PW- 

4 and PW-5, contradict each other, and their statements are not corroborated 

by any independent witness in spite of the incident happening in the market 

place, with shops on both sides of the road. Therefore, in our view, as the 

testimonies of PW-4 and PW-5 are not completely reliable, this is a fit case 

where corroboration by an independent witness was required. The case of the 

prosecution also weakens on the ground that the only independent witness PW- 

8 turned hostile. [Para 9]



1. (2007) 4 SCC 415, Chandrappa and Ors. v. State of Karnataka *** 

2. (2006) 10 SCC 313, Kallu alias Masih and Ors. v. State of M.P, *** 

3. (2013) 7 SCC 629, Manga alias Man Singh v. State of Uttarakhand*** 

4. (2014) 12 SCC 321, Shyamal Saha and Anr. v. State of West Bengal,*** 

Appeal against the judgment and order dated 31.08.2012 passed by the Gauhati 

High Court in Criminal Appeal No. 105 of 2004. 

JUDGMENT 

The judgment of the Court was delivered by :- 

Pinaki Chandra Ghose, J. - (28 th April , 2015) - 

1. This appeal is preferred by the appellants against the judgment and 

order dated 31.08.2012 passed by the Gauhati High Court in Criminal Appeal 

No.165 of 2004 whereby the High Court has allowed the appeal filed by the 

State and convicted all the appellants under Section 302 read with Section 149 

of the Indian Penal Code (“IPC”) and sentenced them to undergo rigorous 

556 


imprisonment for life and to pay a fine of Rs.10,000/- each. 

2. The brief facts of the case, as per the prosecution story, are that on 

5.1.2001 at about 6:10 p.m. at Chapra Beparipara which is under Chapar Police 

Station, the accused persons formed an unlawful assembly and in prosecution 

of the common object of such assembly, committed the murder of Hasen Ali. 

Amir Hussain, son of the deceased (PW-3) lodged an Ejahar about the incident 

at Chapar Police Station on 5.1.2001 at about 10:00 p.m. On receipt of the 

Ejahar, F.I.R. No.3/2001 was registered by Chapar Police Station and started 

investigation. The police arrived at the place of occurrence and called the 

Executive Magistrate who prepared the inquest on the dead body and the 

inquest was sent for post-mortem examination to Dhubri Civil Hospital. The 

police found one bag containing one dagger and two hand-made bombs lying 

near the dead body. After investigation, charge-sheet was submitted against the 

accused persons under Sections 147, 148, 149, 341 and 302 of the IPC. On 

29.6.2001, the said charge-sheet was received by the Chief Judicial Magistrate, 

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Dhubri. Since the offence was triable exclusively by the Court of Sessions, the 

Chief Judicial Magistrate by his order dated 15.3.2002 committed the case to 

the Court of Sessions for trial. During the course of trial the prosecution 

examined 10 witnesses to bring home the charges levelled against the 

appellants. The defense adduced no evidence and took a plea of total denial. 

3. The Trial Court on a careful scrutiny of the evidence found that the 

statements of PW-4 & PW-5 were contradictory which created doubt as to the 

presence of these two witnesses at the place of occurrence. Jamaluddin (PW-1) 

deposed that about 6 months ago, when he was returning from the Pharmacy, 

he met Shah Alam who said that his brother had been killed in the market, but 

he did not mention the name of any person. The incident took place in the 

market place where there were about 50 shops on both sides of the road. The 

Trial Court observed that if accused Golbar and Abu Sama appeared from the 

left and right, they must have come out of one of the shops on both sides of the 

road since PW-4 categorically stated that he had not seen the accused persons 

on the road while they were going towards the house of the deceased. But none 

of the shopkeepers, adjacent to the place of occurrence, came forward to 

depose that any occurrence as stated by PW-4 & PW-5 had taken place in front 

of their shops. PW-5 during cross-examination stated that he knew the names of 

two shopkeepers and they are Sattar and Hazrat Ali. Hazrat Ali (PW-2) did not 

state that the occurrence took place in front of his shop. PW-5 further stated 

during cross examination that the deceased was an accused in a murder case 

and had no explanation as to whether the deceased would move around having 

bombs and other weapons with him. The Trial Court drew the conclusion that 

the seized articles were belonging to the deceased persons. On analysis of the 

evidence the Trial Court decided that the evidence of PW-4 and PW-5 was full of 

contradictions on material particulars and as such the testimony of these 

witnesses did not inspire any confidence. Under the circumstances, the 

uncorroborated testimony of PW-4 and PW-5 by some independent eye witness 

could not be accepted to warrant the conviction of the accused persons. 

557 


4. The High Court on the other hand overruled the decision of the Trial


Court and convicted all the five accused under Section 302 read with Section 

149 of IPC and sentenced them to undergo rigorous imprisonment for life and to 

pay a fine of Rs.10,000/- each. 

5. We have heard the learned counsel appearing for the appellants as 

also the learned counsel appearing for the State of Assam. 

6. The present case involves consideration on two issues. First being the 

powers of appellate Court while dealing with an appeal against an order of 

acquittal. Second, being the sufficiency of the testimonies of PW-4 and PW-5 to 

convict the accused persons without any corroboration from an independent 

witness and the relevancy of the statement of a hostile witness involving 

appreciation of the statement of PW-8 who turned hostile. 

7. On the first issue, the legal principles regarding powers of the 

appellate Court while dealing with an appeal against an order of acquittal, have 

been reiterated by this Court in a catena of cases. This Court culled down five 

general principles in Chandrappa and Ors. v. State of Karnataka ***, 1 (2007) 4 

558 


SCC 415, as follows: 

“(1) An appellate court has full power to review, reappreciate 

and reconsider the evidence upon which the order of acquittal is 

founded. 

(2) The Code of Criminal Procedure, 1973 puts no limitation, 

restriction or condition on exercise of such power and an appellate 

court on the evidence before it may reach its own conclusion, both on 

questions of fact and of law. 

(3) Various expressions, such as, ‘substantial and compelling 

reasons’, ‘good and sufficient grounds’, ‘very strong circumstances’, 

‘distorted conclusions’, ‘glaring mistakes’, etc. are not intended to 

curtail extensive powers of an appellate court in an appeal against 

acquittal. Such phraseologies are more in the nature of ‘flourishes of 

language’ to emphasise the reluctance of an appellate court to interfere 

with acquittal than to curtail the power of the court to review the 

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evidence and to come to its own conclusion. 

(4) An appellate court, however, must bear in mind that in case 

of acquittal, there is double presumption in favour of the accused. 


fundamental principle of criminal jurisprudence that every person shall 

be presumed to be innocent unless he is proved guilty by a competent 

court of law. Secondly, the accused having secured his acquittal, the 

presumption of his innocence is further reinforced, reaffirmed and 

strengthened by the trial court. 

(5) If two reasonable c onclusions are possible on the basis of 

the evidence on record, the appellate court should not disturb the 

finding of acquittal recorded by the trial court.” (Emphasis supplied) 

8. The Court referred to Kallu alias Masih and Ors. v. State of M.P, ***. 2 

, (2006) 10 SCC 313, in the above-mentioned judgment, where it held that; 

“While deciding an appeal against acquittal, the power of the 

Appellate Court is no less than the power exercised while hearing 

appeals against conviction. In both types of appeals the power exists to 

review the entire evidence. However, one significant difference is that 

an order of acquittal will not be interfered with, by an appellate court, 

where the judgment of the trial court is based on evidence and the view 

taken is reasonable and plausible. It will not reverse the decision of the 

trial court merely because a different view is possible. The appellate 

Court will also bear in mind that there is a presumption of innocence in 

favour of the accused and the accused is entitled to get the benefit of 

any doubt. Further if it decides to interfere, it should assign reasons for 

differing with the decision of the trial Court”. 

559 


In our view, the above mentioned are certain cardinal rules to be kept in 

mind in appeals against acquittal. In our view the Trial Court has given a 

reasoned decision after careful and thorough analysis of the evidence produced 

by the parties. The Trial Court also had the advantage of looking at the


demeanor of the witnesses, and was correct in granting the benefit of doubt to 

the accused and acquitting them. The High Court erred in presuming a version 

against the accused as the view which is favourable to the accused should be 

taken in cases where two views are probable. 

9. The Second issue for consideration is the testimonies of PW-4 and 

PW-5 in absence of any corroboration from any independent witness. PW-4 and 

PW-5 are related witnesses as they are the brothers of the deceased Hasen Ali. 

There is no bar on the admissibility of a statement by related witnesses 

supporting the prosecution case, but it should stand the test of being credible, 

560 


reliable, trustworthy, admissible in accordance with law and corroborated by 

other witnesses or documentary evidence of the prosecution. This Court has 

held in Manga alias Man Singh v. State of Uttarakhand ***, 3 (2013) 7 SCC 629, 

that it is the quality of the witness that matters and not the quantity, when the 

related witness was examined and found credible. In such a case nonexamination 

of an independent witness would not be fatal to the prosecution 

case. In the present case, however, the prosecution witnesses PW-4 and PW-5, 

contradict each other, and their statements are not corroborated by any 

independent witness in spite of the incident happening in the market place, 

with shops on both sides of the road. Therefore, in our view, as the testimonies 

of PW-4 and PW-5 are not completely reliable, this is a fit case where 

corroboration by an independent witness was required. The case of the 

prosecution also weakens on the ground that the only independent witness PW- 

8 turned hostile. A similar situation arose in Shyamal Saha and Anr. v. State of 

West Bengal,*** 4 (2014) 12 SCC 321, where the only independent witness 

turned hostile. This Court decided to affirm the acquittal and granted benefit of 

doubt to the accused considering the factual background and circumstances 

involved in the case. 

10. Therefore, in the light of the above conclusions on the issues for 

consideration, the view taken by the Trial Court was reasonable and probable 

on the facts of the present case. We are, therefore, of the opinion that the High 

Court should not have set aside the acquittal of the appellants. Accordingly, this 

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appeal is allowed and the impugned judgment and order passed by the High 

Court is set aside. The appellants are accordingly directed to be set free from 

incarceration, if not required in any other case. 

S.S. 

Appeal allowed. 

561 





Present: Mr. Justice Pinaki Chandra Ghose and Mr. Justice R.K. Agrawal 

UPENDRA PRADHAN - Appellant, 

Versus 

STATE OF ORISSA – Respondent. 


(i) Criminal Trial - That in case there are two views which can be 

culled out from the perusal of evidence and application of law, the view 

which favours the accused should be taken - It has been recognized as a 

human right by this Court. [Para 10] 

(ii) Acquittal - Concurrent finding of acquittal - The Additional 

Sessions Judge was right in granting him benefit of doubt - The view 

which favours the accused/appellant has to be considered and we 

562 


discard the opposite view which indicates his guilt - We are also of the 

view that the High Court should not have interfered with the decision 

taken by the Additional Session Judge, as the judgment passed was not 

manifestly illegal, perverse, and did not cause miscarriage of justice - In 

absence of any manifest illegality, perversity and miscarriage of justice, 

High Court would not be justified interfering with the concurrent 

finding of acquittal of the accused merely because on re-appreciation of 

evidence it found the testimony of PWs to be reliable whereas the trial 

Court had taken an opposite view - Criminal Trial. [Para 11] 

(iii) Criminal Trial – Interested witnesses -The ground pleaded 

before us by the counsel for the accused appellant, that the testimonies 

of P.W. should not have been considered, as they were interested 

witnesses - Holds no teeth - Testimonies of interested witnesses are of 

great importance and weightage - No man would be willing to spare 

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the real culprit and frame an innocent person. This view has been 

supplemented by the decision of this Court in Mohd. Ishaque v. State of 

West Bengal, 3 (2013) 14 SCC 581. 

(iv) Juvenile Justice (Care and Protection of children) Act, 2000 ( 

of ) Section 2(k), 7(a) - The appellant falls within the definition of 

“juvenile” under Section 2(k) of the Juvenile Justice (Care and 

Protection of children) Act, 2000 - He can raise the plea of juvenility at 

any time and before any court as per the mandate of Section 7(a) and 

has rightly done so. [Para 13] 


1. (2004) 10 SCC 699, Narendra Singh and Another v. State of M.P *** 

2. (2003) 8 SCC 180, State of Rajasthan v. Raja Ram *** 

3. (2002) 6 SCC 650, Bindeshwari Prasad Singh v. State of Bihar, *** 

4. (2013) 14 SCC 581, Mohd. Ishaque v. State of West Bengal *** 

5. (2010) 15 SCC 83, Ajay Kumar v State of M.P. 

6. (2014) 13 SCC 427, Hakim v. State, 

7. (2011) 2 SCC 251, Lakhan Lal v. State of Bihar *** 

563 


Appeal against the judgment and order dated 17.09.2008 passed by the High 

Court of Orissa at Cuttack in Government Appeal No. 18 of 1995. 

JUDGMENT 


Pinaki Chandra Ghose, J. 1. This appeal under Section 379 of the Code 

of Criminal Procedure, 1973 read with Section 2 of the Supreme Court 

(Enlargement of Criminal Appellate Jurisdiction) Act, 1970, has been preferred 

against the judgment and order dated 17.9.2008 passed by the High Court of 

Orissa at Cuttack in Government Appeal No.18 of 1995, filed by the State 

against the acquittal of the appellant herein. The High Court by the impugned 

judgment allowed the Government appeal and convicted the appellant for 

offence under Section 302/34 of the Indian Penal Code (“IPC”) and sentenced


him to imprisonment for life. 

2. The facts pertinent to the present case, as unfolded by the 

prosecution, are that Upendra Pradhan, Debendra Pradhan and Rabindra 

564 


Pradhan are sons of Sanatan Pradhan and Jamadevi is his wife. Sanatan Pradhan 

and his younger brother Brundaban are having title deeds of their lands 

standing in their names jointly. They possessed land on an amicable division. 

According to the prosecution story, a dispute arose between Sanatan Pradhan 

and his younger brother Brundaban when Brundaban did not yield to the 

request of Sanatan Pradhan to hand over the Patta of their lands to procure a 

loan as the Patta was with the mother. Thereafter, Panchayat meetings were 

held on 27.8.93 and 29.8.93 and it was decided that Brundaban shall collect the 

Patta from his mother and hand over the same to Sanatan Pradhan. Accused 

Sanatan Pradhan and his family members bore grudge against Brundaban for 

non-complying with the direction of the Panchayat. Sanatan Pradhan got angry 

and declared to ruin his family. Fearing for his life, Brundaban along with his 

family left his house and stayed in the house of Keshab Pradhan (P.W.10) of his 

village. At about 8 P.M. on 29.8.93, Brundaban along with his three children, 

Sanjib, Pravasini and Rajib and wife Radha Pradhan (P.W.1), returned to his 

house. On seeing them, the accused Sanatan and Jama Devi called out the other 

accused persons. No sooner did Brundaban enter his house and asked his 

children to sleep on cots, than the accused Rabindra, Debendra and Upendra, 

each armed with axe and lathi, rushed towards them. Accused Rabindra dealt 

two blows on his neck and head with axe. Accused Debendra dealt a blow with 

axe on Brundaban’s head. Brundaban started bleeding profusely and groveled 

into the house of Kulamani Budhia nearby. He became unconscious. Thereafter, 

the three sons of the accused Sanatan Pradhan focused their attention on his 

children and Upendra and Debendra caught the eldest son Sanjib from both 

sides and accused Rabindra dealt axe blows causing injuries on the neck and 

other parts of the body. Then the accused Upendra caused injuries on the girl 

child Pravasini and killed her. Thereafter, accused Debendra and Upendra 

caught hold of Rajib, the second son of Brundaban Pradhan and accused 

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Rabindra dealt axe blows and killed him. According to the prosecution version, 

the entire incident was witnessed by P.W.1-the mother of the deceased, and 

P.W.6 and P.W.12. When the villagers came out on hearing the shout of P.W.1, 

the accused persons decamped and P.W.1 brought all the three deceased 

children from inside the room to front-side of the house. Brundaban Pradhan in 

severely injured condition was lying senseless in a neighbour’s house. The local 

Sarpanch informed the matter to Jujumura Police Station. On the basis of this 

information, investigation was made, charge-sheet was filed and after the case 

was committed to the Court of Sessions, charges were framed under Section 

307 and 302 read with Section 34 of IPC. 

3. In the Court of Additional Sessions Judge, to bring charges home to 

the accused persons, the prosecution examined 15 witnesses of whom, P.W.1 is 

the wife of the injured P.W.7 and mother of the deceased, P.Ws.6, 8, 9, 11, 12 

are local persons, P.W.3 to P.W.5 are doctors, P.W.10 and P.W.13 are police 

constables, P.W.14 is the I.O. and P.W.15 is the Judicial Magistrate, First Class, 

Sambalpur. The defence examined one witness D.W.1 Damodar Pradhan. The 

Sessions Court, on analysis of the evidence adduced by the parties, decided that 

there were little contradictions and discrepancies in the evidence of 

P.Ws.1,7,6,9,11 and 12 on the aspect of presence of P.W.1 at the spot, and 

threats given by the accused Sanatan or other male accused persons to P.W.7. 

The defence witness (D.W.1) has excluded the presence of accused Sanatan at 

the place of occurrence as both of them went home from Fuljijaran and accused 

Sanatan was with him from 7 P.M. to 9 or 10 P.M. The Additional Sessions Judge 

held that the three male persons were guilty. The female accused had been 

falsely implicated in this case on exaggerated version of P.W.1, not supported by 

independent corroboration. However, the evidence of P.W.12 preparing Biri on 

the verandah of Kulamani Budhia has not been challenged by the prosecution to 

the extent of her finding the accused Upendra absent from the spot. The 

Statements of P.W.1 and P.W.6, stating that the part played by Upendra in 

catching deceased Pravasini, are not in conformity with each other. On these 

ground the Additional Sessions Judge gave the benefit of doubt to the Upendra 

565 



Pradhan (appellant herein) and Jema Devi and did not find them guilty under 

Sections 307 and 302/34 of IPC. 

4. The High Court pointed out that the prosecution allegation against 

the accused Jema Devi was relating to the instigation whereas against the 

accused Upendra in making active participation in the murder of three children. 

In view of the death sentence imposed against the Sanatan and Rabindra, the 

Trial Court made a reference under Section 366 of the Code of Criminal 

Procedure (Cr.P.C.) and that was registered as Death Sentence Reference No.1 

of 1994. Accused Sanatan, Debendra and Rabindra also preferred appeals from 

jail in 1994. 

5. A Division Bench of the High Court analogously heard the Reference 

and Jail Criminal appeals and disposed of the same on 27.03.1995. The High 

Court held that the accusation against each of the appellants had been proved 

beyond all reasonable doubt. Therefore, the order of the Trial Court in recording 

the conviction of the appellants was sustained. However, in the matter of death 

566 


sentence, the High Court was of the view that the circumstances behind the 

crime were good enough to take a lenient view and accordingly it awarded 

sentence of imprisonment for life. The State thereafter filed leave application 

under Section 378(1) Cr.P.C. as against the judgment and leave was granted on 

15.05.1995 and the Government appeal was registered in the High Court. In the 

meantime, by virtue of the High Court’s order accused Upendra Pradhan was on 

bail. However, the High Court reversed the decision taken by the Additional 

Sessions Judge, and held that when accused Upendra is a party to the murder of 

three innocent children, he is guilty like other accused persons for offence 

punishable under Section 302/34 I.P.C. The High Court recorded that the 

accused should be awarded appropriate punishment instead of taking any other 

view, and convicted Upendra under Section 302/34 I.P.C. and sentenced him to 

imprisonment for life, because that is the alternative and lesser punishment as 

provided in Section 302 I.P.C. The High Court ordered the appellant Upendra 

Pradhan to be taken into custody to serve the sentence. 

6. In this Court the Counsel for the appellant contended that after the 

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incident took place, the local Sarpanch informed the matter to the Police Station 

and after investigation, charges were framed under Sections 307 and 302 read 

with Section 34 of I.P.C. There was, however, no specific finding against the 

present appellant. It was further contended that the Additional Sessions Judge, 

after trial, acquitted the appellant along with his mother and held that the 

female accused had been implicated on an exaggerated version of P.W.1 not 

supported by independent corroboration. The Additional Sessions Judge also 

noted that the evidence of P.W.12 preparing Biri on the verandah of Kulamani 

Budhia, had not been challenged by the prosecution to the extent of her finding 

accused Upendra absent from the place of occurrence. The Court has given 

benefit of doubt to the appellant as the statements of P.W.1 to P.W.6 about the 

part played by Upendra in catching the deceased Pravasini, are not in 

conformity with each other. The learned counsel further contended that the 

Additional Sessions Judge has held that P.W.1 has stated that P.W.2, P.W.6, 

P.W.8 and P.W.12 had only seen the dead bodies of the children. It was further 

pointed out by the appellant before us, that P.W.6 is the Aunt of P.W.1 and P.W. 

12 had fled out of fear and, therefore, the High Court was wrong in reversing 

the acquittal order of the appellant on certain wrong presumption and 

interpretation. The appellant has further taken the plea of being a juvenile 

under the Juvenile Justice (Care and Protection of Children) Act, 2000, and 

accordingly under Section 7(a) raised the claim of juvenility before the Court 

and stated that the High Court had recorded this aspect but did not act upon it. 

It was brought to our notice that the appellant has already undergone the 

sentence for a period of about 8 years in jail. 

567 


7. Learned counsel for the respondent, on the other hand, contended 

before us that while modifying the sentence and maintaining conviction, the 

Trial Court and the High Court have believed the testimony of all the 

prosecution witnesses and have opined that the prosecution has fully proved 

the case by leading credible evidences of credible witnesses. Thus, there is no 

occasion for the Trial Court to disbelieve the same set of witnesses. The 

witnesses have unrebuttably deposed that the present appellant was not only


present but was armed with stick. The eyewitness in the present case is P.W.1, 

who is the mother of the deceased and Brundaban’s wife, has stated facts in her 

testimonies which have been corroborated by the testimonies of other 

witnesses, thus is unrebuttable. P.Ws.1, 6, 7 & 12 have narrated the incident 

unequivocally and the defence could not derive much in the cross-examination. 

The learned counsel thus submitted that the prosecution had proved the case 

beyond reasonable doubt. The learned counsel finally submitted that the Trial 

Court had formed the conclusion that the prosecution had proved its case 

beyond reasonable doubt, but abruptly mentioned that the testimonies of 

P.W.6 and P.W.12 created a doubt regarding the part played by Upendra. This 

view taken by the Trial Court is erroneous and the High Court has rightly taken 

the correct view. 


9. There are mainly three questions for our consideration. First being, 

whether the presence of a view favouring the accused appellant should be 

568 


considered. Second being, whether the prosecution witnesses P.W.1 and P.W.7 

being interested witnesses, should be relied upon. The third being the juvenility 

of the accused appellant. 

10. Taking the First question for consideration, we are of the view that 

in case there are two views which can be culled out from the perusal of 

evidence and application of law, the view which favours the accused should be 

taken. It has been recognized as a human right by this Court. In , Narendra 

Singh and Another v. State of M.P ***, 1 (2004) 10 SCC 699, this Court has 

recognized presumption of innocence as a human right and has gone on to say 

that: 

“30. It is now well settled that benefit of doubt belonged to the 

accused. It is further trite that suspicion, however grave may be, cannot 

take place of a proof. It is equally well settled that there is a long 

distance between ‘may be’ and ‘must be’. 

31. It is also well known that even in a case where a plea of alibi 

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is raised, the burden of proof remains on the prosecution. Presumption 

of innocence is a human right. Such presumption gets stronger when a 

judgment of acquittal is passed. This Court in a number of decisions has 

set out the legal principle for reversing the judgment of acquittal by a 

Higher Court (see Dhanna v. State of M.P., Mahabir Singh v. State of 

Haryana and Shailendra Pratap v. State of U.P.) which had not been 

adhered to by the High Court. 

Xxx xxx xxx xxx xxx 

33. We, thus, having regard to the post-mortem report, are of 

the opinion that the cause of death of Bimla Bai although is shrouded in 

mistery but benefit thereof must go to the appellants as in the event of 

there being two possible views, the one supporting the accused should 

be upheld.” 

(Emphasis Supplied) 

11. The decision taken by this Court in the aforementioned case, has 

been further reiterated in , State of Rajasthan v. Raja Ram *** 2 , (2003) 8 SCC 

180, wherein this Court observed thus: 

“Generally the order of acquittal shall not be interfered with 

because the presumption of innocence of the accused is further 

strengthened by acquittal. The golden thread which runs through the 

web of administration of justice in criminal cases is that if two views are 

possible on the evidence adduced in the case, one pointing to the guilt of 

the accused and the other to his innocence, the view which is favourable 

to the accused should be adopted. The paramount consideration of the 

Court is to ensure that miscarriage of justice is prevented. A miscarriage 

of justice which may arise from acquittal of the guilty is no less than 

from the conviction of an innocent. In a case where admissible evidence 

is ignored, a duty is cast upon the appellate court to reappreciate the 

evidence in a case where the accused has been acquitted, or the 

purpose of ascertaining as to whether any of the accused committed 

any offence or not. (see Bhagwan Singh v. State of M.P.) The principle to 

569 



be followed by the appellate court considering the appeal against the 

judgment of acquittal is to interfere only when there are compelling and 

substantial reasons for doing so. If the impugned judgment is clearly 

unreasonable, it is a compelling reason for interference.” 


Therefore, the argument of the learned counsel for the appellant that 

the High Court has erred in reversing the acquittal of accused appellant, stands 

good. The Additional Sessions Judge was right in granting him benefit of doubt. 

The view which favours the accused/appellant has to be considered and we 

570 


discard the opposite view which indicates his guilt. We are also of the view that 

the High Court should not have interfered with the decision taken by the 

Additional Session Judge, as the judgment passed was not manifestly illegal, 

perverse, and did not cause miscarriage of justice. On the scope of High Court’s 

revisional jurisdiction, this Court has held in Bindeshwari Prasad Singh v. State 

of Bihar, ***, 3 (2002) 6 SCC 650, “that in absence of any manifest illegality, 

perversity and miscarriage of justice, High Court would not be justified 

interfering with the concurrent finding of acquittal of the accused merely 

because on re-appreciation of evidence it found the testimony of PWs to be 

reliable whereas the trial Court had taken an opposite view.” This happens to be 

the situation in the matter before us and we are of the view that the High Court 

was wrong in interfering with the order of acquittal of Upendra Pradhan passed 

by the Additional Sessions Judge. 

12. The Second ground pleaded before us by the counsel for the 

accused appellant, that the testimonies of P.W. 1 and P.W.7 should not have 

been considered, as they were interested witnesses, holds no teeth. We are of 

the opinion that the testimonies of interested witnesses are of great importance 

and weightage. No man would be willing to spare the real culprit and frame an 

innocent person. This view has been supplemented by the decision of this Court 

in Mohd. Ishaque v. State of West Bengal ***, 4 (2013) 14 SCC 581. 

13. The Third and last ground pleaded before us was the plea of 

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juvenility of the accused appellant. The accused appellant has submitted before 

us, true copy of the certificate issued by the Basiapara Nodal U.P. School which 

shows that the accused appellant was less than 18 years on the date of the 

occurrence. As per the School Certificate, the date of birth of the appellant is 

08.07.1976. The age of the appellant on the date of occurrence i.e. 28.8.1993, 

was 17 years, 1 month & 20 days. The learned counsel for the appellant raises 

the plea of juvenility under Section 7(A) of the Juvenile Justice (Care and 

Protection) Act, 2000. The plea can be raised before any Court and at any point 

of time. We feel that the stand taken by the counsel is correct and we will look 

into the present lis keeping in mind the juvenility of the accused appellant at the 

time of commission of the crime. As stated earlier, the age of the accused 

appellant was less than 18 years at the time of the incident. It has been brought 

to our notice that the appellant has undergone about 8 years in jail. The 

appellant falls within the definition of “juvenile” under Section 2(k) of the 

Juvenile Justice (Care and Protection of children) Act, 2000. He can raise the 

plea of juvenility at any time and before any court as per the mandate of Section 

7(a) and has rightly done so. It has been proved before us, as per the procedure 

given in the Rule 12 of the Juvenile Justice Model Rules, 2007, and the age of 

the accused appellant has been determined following the correct procedure and 

there is no doubt regarding it. 

571 


14. On the question of sentencing, we believe that the accused 

appellant is to be released. In the present matter, in addition to the fact that he 

was a juvenile at the time of commission of offence, the accused appellant is 

entitled to benefit of doubt. Therefore, the conviction order passed by the High 

Court is not sustainable in law. Assuming without conceding, that even if the 

conviction is upheld, Upendra Pradhan has undergone almost 8 years of 

sentence, which is more than the maximum period of three years prescribed 

under Section 15 of the Juvenile Justice Act of 2000. Thus, giving him the benefit 

under the Act, we strike down the decision of the High Court. This Court has 

time and again held in a plethora of judgments on the benefit of the Act of 2000 

and on the question of sentencing.


15. In Ajay Kumar v State of M.P., 5 (2010) 15 SCC 83, this Court 

observed as follows: 

“In the light of the aforesaid provisions, the maximum period 

for which a juvenile could be kept in a special home is for three years. In 

the instant case, we are informed that the appellant who is proved to 

be a juvenile has undergone detention for a period of about 

approximately 14 years. In that view of the matter, since the appellant 

herein was a minor on the date of commission of the offence and has 

already undergone more than the maximum period of detention as 

provided for under section 15 of the Juvenile Justice Act, by following the 

provisions of Rule 98 of Juvenile Justice Rules, 2007 read with Section 15 

of the Juvenile Justice Act, we allow the appeal with a direction that the 

appellant be released forthwith.” (Emphasis Supplied) 

The same view was followed on the question of sentencing in Hakim v. 

State, 6 (2014) 13 SCC 427, and Lakhan Lal v. State of Bihar ***, 7 (2011) 2 SCC 

572 


251. 

16. Therefore, in the light of the above discussion, we allow this appeal 

and set aside the impugned judgment and order passed by the High Court. The 

appellant has been released on bail vide this Court’s order dated 15.04.2014. His 

bail bonds are discharged. 

S.S. - Appeal allowed 

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Present : Justice M.Y.Eqbal and. Justice Amitava Roy 

UNION OF INDIA & ORS. ......APPELLANTS 

Versus 

SHRI HANUMAN INDUSTRIES & ANR. ....RESPONDENTS 

Civil Appeal No. 3962 of 2011 With CA No. 3963-65/2011 & CA No. 3966- 

69/2011 

(i) Delay and laches - Grievance primarily on the basis of the 

adjudication made earlier by the High Court since affirmed by the 

Supreme court by Order dated 01.05.2009 - Present writ petitions filed 

on 27.08.2009 dismissed on the ground of delay and laches, the 

decision in the earlier proceedings notwithstanding - High Court held 

passive conduct of the respondents herein tantamounted to sleeping 

over their rights for over two years to wake from their feigned slumber 

after the decision of the Supreme Court on 01.05.2009, to agitate their 

perceived rights - That having regard as were, to the financial 

implications that would ensue in case the inordinately delayed claim of 

the respondents is/was by entertained, thus adversely impacting upon 

public exchequer, the learned Single Judge declined the relief sought 

for - Upheld by Supreme court - See no weighty or cogent reason for 

the respondents to wait till the earlier Special Leave Petition was 

dismissed on 01-05-2009 by this Court to embark upon their pursuit for 

redress in similar terms. - Upholding the view, held, that in our 

considered opinion therefore, the respondents were deliberately 

bidding time to seek judicial remedy in case their co-applicants under 

the scheme emerged successful in their adjudicative enterprise. 

573 


[Para 10, 17, 18]


Facts, 

It is not disputed that the writ petitioners in the earlier round of 

adjudication were applicants under SPINE alike the respondents herein. They 

being appalled by the delay in the grant of their receivables thereunder and 

being faced with the letter dated 05-02-2007 whereby pending receipt and 

scrutiny of the reports as called for, further sanction/disbursement of Grants-in- 

Aid under the said scheme was stopped, did promptly approach the Guwahati 

High Court with a batch of writ petitions in the year 2007 itself and as narrated 

hereinabove were favoured with a direction to the implementing authorities for 

consideration of their application for the investment subsidy in accordance with 

law without being influenced by the said letter. Admittedly, the respondents 

herein elected not to join them and instead, soon thereafter this Court affirmed 

the above verdict on 01-05-2009, staked their claim on 27-08-2009. There is 

evidently thus a time lag of more than two years by which the respondents’ 

challenge was delayed. 

574 


(ii) Promissory Estoppel - An equitable doctrine that would yield 

when equity so required - That the same had been evolved to avoid 

injustice where it is demonstrated that a party acting on the words or 

conduct of another, amounting to clear and unequivocal promise and 

intended to create legal relations or effect legal relationships to arise in 

the future had altered his position, then the promise would be binding 

on the promisor and he would not be permitted to renege therefrom 

unless it would be inequitable to compel him to do so - While extending 

this doctrine to the Government as well, it was enunciated that if it can 

be shown that having regard to the facts as had subsequently 

transpired, it would be inequitable to hold the Government to the 

promise made by it, the Court would not raise the equity in favour of 

the promisee and enforce the promise against the Government - The 

doctrine of the promissory estoppel would be displaced in such a case, 

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because on the facts, equity would not require that the Government 

should be held bound by the promise made by it - That aside overriding 

public interest against enforcement of the doctrine qua the 

Government, it would be still competent for it to depart from the 

promise on giving reasonable notice which need not be a formal one, 

affording the promisee a reasonable opportunity of resuming his 

position was underlined. [Para 15] 

M/S Motilal Padampt Sugar Mills Co. v. The State of Uttar Pradesh & Ors., AIR 

1979 SCC 621, 

Cases referred to:- 

1. AIR 1979 SCC 621, M/S Motilal Padampt Sugar Mills Co. v. The State of Uttar 

Pradesh & Ors., 

2. (2004) 6 SCC 465, State of Punjab v. Nestle India Ltd., *** 

3. (2006) 8 SCC 702, MRF Limited v. Assistant Commissioner Sales Tax., *** 

4. (2004) 1 SCC 139, State of Orissa & Ors v. Mangalam Timber Products 

Limited., 

575 


5. (2009) 6 SCC 791, Basanti Prasad v. Chairman, Bihar School Examination 

Boards *** 

6. (2010) 6 SCC 786, Improvement Trust, Ludhiana v. Ujagar Singh & Ors., *** 

7. (2013) 12 SCC 649, Esha Bhattacharjee v. Raghunathpur Nafar Academy *** 

JUDGMENT 


Amitava Roy, J. – (8 th May, 2015) - 

1. All these appeals seek to impeach the decision rendered by the 

Guwahati High Court (Shilong Bench) in a batch of Writ Appeals preferred 

amongst others by the respondents herein being aggrieved by the dismissal of 

their respective writ petitions, questioning the refusal of the appellants to


sanction financial assistance to them under the “Scheme of Promotion of 

Industries in North East” (SPINE) on the ground of delay and laches. By the 

determination made in the appeals, the grievance of the respondents has been 

redressed primarily on the basis of the adjudication made earlier by the same 

High Court in Writ Petition(C) No. 279 (SH) of 2007 since affirmed by this Court 

by Order dated 01-05-2009 rendered in SLP(C) 9578-9584/2009. 

2. We have heard Dr. Abhishek Atrey, learned counsel for the appellant 

and Ms. N. Saikiya, learned counsel for the respondents. 

3. The individual facts qua the respondents marginally vary and do not 

demand separate dilation in the face of the common issues that need to be 

addressed. Common arguments have also been advanced. The pleadings 

pertaining to Civil Appeal No. 3962/2011, Union of India and Ors. v. Shri 

Hanuman Industries & Anr. would, therefore, be outlined for the factual 

foundation of the debate. 

3.1 In the year 1997, a policy decision was taken by the Planning and 

576 


Development Department, Government of India for promotion of industries in 

the North East Region, during the period of 9th Plan by providing inter alia a 

package of incentives to create an entrepreneurial environment. With this 

objective, a scheme nomenclatured SPINE, as above, was launched by the 

Ministry of Development of North Eastern Region, North Eastern Council, 

Shilong (for short DONER). In terms of the scheme, The North Eastern Council 

(NEC) was to provide to the newly set up industries to the extent of 25 per cent 

of the project cost or Rs. 50 lacs, whichever was less as deemed proper by the 

recommending authority on the fulfillment of the conditions stipulated therein. 

The Union of India, represented by the Ministry of DONER and the NEC were 

entrusted with the role of implementing the scheme. 

4. In response to this scheme, which was apparently akin to a State 

policy, the respondents on various dates submitted their applications 

accompanied by necessary documents for setting up their industries as 

mentioned therein inter alia disclosing the investments made even by obtaining 

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financial accommodation from banking institutions and otherwise. According to 

the respondents though their applications remained pending and they were 

made to understand that the same were being processed as per the norms 

applicable, it was noticeable, that the implementing authorities were adopting 

pick and choose methods in the matter of disbursement of the financial 

assistance to a selected few by overlooking their worthy claims. 

5. It is a matter of record that another set of such applicants with the 

similar grievance had meanwhile instituted writ proceedings registered as 

WP(C) 279 (SH) to 285 (SH) of 2007 and eventually as adverted to hereinabove a 

Single Bench followed by a Division Bench of the Guwahati High Court had 

entertained the challenge made therein and the implementing authorities of the 

scheme were directed to process the applications of the said writ petitioners for 

grant of subsidy under it (SPINE) in accordance with law and for sanctioning the 

same to each of them, within a period of ninety days from the receipt of the 

copy of the judgment and order. To reiterate, this Court by its Order dated 01- 

05-2009 passed in SLP(C) 9578-9584/2009, declined to interfere with this 

adjudication. 

6. Be that as it may, a learned Single Judge of the same High Court by 

577 


judgment and order dated 07-10-2009, rejected the writ petitions filed by the 

respondents herein on the ground of delay and laches, the decision in the 

earlier proceedings notwithstanding. This determination, however, was 

reversed in the appeals filed by the respondents, by the common judgment and 

order impugned herein, whereby the direction, in the earlier proceedings to the 

implementing authority for processing the applications for investment subsidy 

under SPINE in accordance with the law was reiterated vis-à-vis the present 

respondents. Being aggrieved, the Union of India and the NEC are before this 

Court. 

7. At this juncture, the admitted facts need be noted. As per the 

procedure prescribed, the applications submitted by the respondents along with 

the accompanying documents were to be routed through the Department of 

Industries of the respective State Governments to be forwarded to the NEC by


the Planning Department of the State concerned and that no proposal was to be 

received directly by the NEC. 

8. While the said applications were thus pending a letter dated 05-02- 

2007 was issued by the Secretary, Ministry of Development of North Eastern 

Region etc. New Delhi, addressed to the Secretary North Eastern Council, 

Shilong referring to various correspondences mentioned therein pertaining to 

request for reports in respect of alleged financial irregularities in the 

disbursement of Grant-in-Aid under SPINE qua each unit for inquiry. It was 

underlined in the said letter that the report had been sought for to positively 

reach the issuing Ministry by 15-02-2007. It was in clear terms mentioned that 

in view of the pending inquiry and decisions in connection therewith, further 

sanction/disbursement of Grant-in-Aid particularly under SPINE should be 

stopped forthwith. The letter also contained a caveat that in case the report was 

not submitted by the deadline of time given, the matter would be forwarded for 

investigation. 

578 


8.1 The records reveal that thereafter in the meeting of the Ministry of 

DONER to review the scheme of the NEC with particular reference to SPINE held 

on 21-02-2007, it was resolved amongst others that a committee would be 

constituted to monitor and evaluate projects before release of funds under the 

SPINE. Subsequent thereto, the Deputy Secretary, NEC addressed a letter dated 

23-2-2007 to the Commissioner and Secretary, Planning Department of the 

North Eastern States as named therein intimating about the receipt of a letter 

from the Secretary, Ministry of DONER, recommending discontinuance of SPINE 

immediately. The letter further required that a review of the liabilities be 

undertaken and submitted for necessary decision by the Chairman, NEC. That 

this view of the Ministry of DONER, had also been shared with the State 

Governments, was mentioned. The addressee was requested to ensure that no 

new proposal for consideration under SPINE be forwarded to NEC. 

8.2 It is noticeable, that with effect from 01-04-2007, the Government 

of India, Ministry of Commerce and Industry, Department of Industrial Policy 

and Promotion did approve a package of fiscal incentives and other concessions 

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for the northeast region named “Northeast Industrial and Investment 

Promotion Policy (NEIIPP) 2007”. Parallely by a communication dated 04-09- 

2007, the Government of India, Ministry of DONER reiterated its request to the 

Industries and Commerce Department of Government of Assam to get the 

industries in the list appended thereto, inspected and reports submitted to the 

NEC as per the format enclosed. The letter disclosed that a formal meeting of 

the Committee in this regard would consider and recommend further release to 

the said industries. It was thereafter that the same Ministry i.e. of DONER vide 

its letter dated 01-10-2007 addressed to the Commissioner and Secretary, 

Planning and Development, Assam while referring to its earlier letter dated 23- 

02-2007, conveyed that as the proposals pending at the time of closure of SPINE 

could no longer be processed, it had been decided that the same be returned to 

the State Governments. Thereby a list of the pending proposals, State-wise, was 

forwarded with the observation that the Units concerned could take the benefit 

of Northeast Industrial and Investment Promotion Policy 2007(NEIIPP – 2007). It 

was assured that the relevant papers would be returned at a later date. The list 

appended amongst others contained the names of the respondent units 

involved in the present proceedings. It is thus apparent from the 

communication dated 01-10-2007 and the annexures thereto that at the time of 

the issuance thereof indicating the closure of SPINE, the proposals vis-à-vis 

these units had remained pending and were not processed as per the procedure 

prescribed. In the contemporary context, the media also flashed the decision of 

withdrawal of SPINE at or about the same time. Prior to these developments, 

the working group on NEC while deliberating upon the related issues for the 

11th Five Year Plan held on 22-06-2006, however, had recommended 

continuance of SPINE with improved guidelines to block loopholes, increase 

opportunities for generating local employment and expedite industrialisation of 

the region. This recommendation, however, needless to mention, has to be 

construed in the backdrop of the decision for closure of SPINE as was taken and 

communicated vide the letters dated 23-2-2007 and 01-10-2007 alluded 

hereinabove. 

579 


580 



9. Exasperated by the delay in the grant of the incentives under SPINE, 

to reiterate, several similarly situated industrial units had meanwhile 

approached the Guwahati High Court with a series of writ petitions seeking 

judicial intervention. By common judgment and order dated 20-06-2008, the 

petitions were allowed by the Single Judge of that Court directing the 

implementing authorities to process the applications of the writ petitioners for 

grant of subsidy under SPINE in accordance with law for sanctioning the same to 

each of them without being influenced by the letter dated 05-02-2007 of the 

Secretary, Ministry of DONER within a period of ninety days from the receipt of 

the copy of the judgment and order. In pronouncing this verdict, the learned 

Single Judge inter alia recorded that relying on the assurance under the scheme, 

units concerned had materially altered their positions by investing huge 

amounts for setting up their respective new industrial units even by obtaining 

secured and unsecured loans and that denial of the financial assistance under 

the scheme would result in their closure observing that the letter dated 05-02- 

2007 did not indicate withdrawal of the scheme and that only enquiry into some 

irregularities was comprehended. The learned Single Judge noted as well that 

meanwhile the concerned industries had made their units functional. The 

minutes of the meeting dated 21-02-2007 was also taken note of in expressing 

this view. The learned Single Judge entertained the plea of promissory estoppel 

as well in issuing the operative directions. 

9.1 This decision was taken in appeals before a Division Bench of the 

Guwahati High Court by the Union of India and NEC which were dismissed on 

27-11-2008. Admittedly, the present respondents were not parties in the earlier 

round of litigation. This adjudication undertaken by the Guwahait High Court, 

attained finality by the order dated 01-05-2009 passed by this Court in SLP No. 

9578-9584/2009, whereby the same was left uninterfered. 

10. Close on the heels of this affirmation by this Court, the respondents 

herein on 27-08-2009 filed their writ petitions claiming the same relief seeking 

parity of treatment. The learned Single Judge of the Guwahati High Court by 

judgment and order dated 07-10-2009 dismissed all the petitions analogously 

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heard on the ground of delay and laches. Observing with reference to the 

relevant decisions of this Court that the benefit of a judicial verdict in a case 

cannot automatically be extended to another more particularly in the face of 

unexplained and/or unsatisfactory explanation of delay in between, the learned 

Single Judge declined the relief holding that the exercise of powers under Article 

226 of the Constitution of India was primarily equitable in nature. According to 

the learned Single Judge, in the attendant facts and circumstances, the 

respondents were not only aware of the decision of the concerned authorities 

to wind up SPINE by refusing financial assistance thereunder as intimated by the 

letter dated 05-02-2007, it was held as well that the respondents without 

joining the writ petitioners in the earlier outing had deliberately chosen to await 

the outcome thereof and thus were really fence sitters to avail the benefit of a 

favourable verdict, if forthcoming. The learned Single Judge was of the view that 

the passive conduct of the respondents herein tantamounted to sleeping over 

their rights for over two years to wake from their feigned slumber after the 

decision of this Court on 01-05-2009, to agitate their perceived rights. That 

having regard as were, to the financial implications that would ensue in case the 

inordinately delayed claim of the respondents is/was by entertained, thus 

adversely impacting upon public exchequer, the learned Single Judge declined 

the relief sought for. 

581 


11. By the decision impugned in the present proceedings, a Division 

Bench of the same High Court reversed these findings and granted the relief 

prayed for by the respondents in the same terms as sanctioned earlier to the 

otherwise equally placed industrial units. The Division Bench adverted inter alia 

to the letters dated 05-02-2007 and 04-05-2010 issued by the Ministry of 

DONER apart from heavily relying on the decision in the earlier lis and returned 

a finding that SPINE had continued till the issuance of the notification/letter 

dated 04-05-2010. Their Lordships held the view that as the respondents had 

set up their industrial units during the validity of the scheme and their claims 

were pending in course thereof, the appellants, the implementing authorities 

were obliged to consider the same. That the view taken by the learned Single

582 



Judge was inconsistent with the one taken in the judgment and order dated 20- 

6-2008 was also noted. It was held as well that apart from the fact that there 

was no prescribed period of limitation to invoke the writ jurisdiction under 

Article 226 of the Constitution of India, as under the Limitation Act 1963, it was 

in any case, three years, their writ petitions could not have been dismissed on 

the ground of delay. In any view of the matter, it was observed that, the time 

lag in filing the writ petitions could not have been reckoned from 05-02-2007 

where the SPINE was not closed. That the implementing authorities did not at 

any point of time communicate to the respondents the rejection of their claims 

was also recorded. The aspect of financial implications was also dismissed as 

inconsequential. Relying on the determination made in the earlier proceedings, 

the appellants herein were directed to process the application of the 

respondents for investment subsidy under SPINE in accordance with the law and 

without being influenced by the letter dated 05-02-2007 for sanctioning the 

same within a period of ninety days. In another words, the operative directions 

contained in the judgment and order dated 20-06-2008 in the earlier batch of 

writ petitions was replicated vis-à-vis the respondents. 

12. In the backdrop of this factual matrix, Dr. Atrey the learned counsel 

for the appellants has insistently argued that it being apparent on a combined 

reading of the letters dated 05-02-2007, 20-3-2007 and 04-05-2010 that a 

conscious decision had been taken by the concerned authorities to discontinue 

SPINE with effect from 23-2-2007, the writ petitions of the respondents, who 

had admittedly not joined the earlier set of industrial units had been rightly 

rejected by the learned Single Judge on the ground of unexplained delay , laches 

and inaction on their part. Referring to the letter dated 04-05-2010 in particular, 

he has urged that it being evident therefrom that SPINE had been discontinued 

with effect from 23-02-2007, an advance indication to that effect being 

disclosed in the letter dated 05-02-2007 preceding thereto, and conveyed by 

the one dated 23-2-2007, it is apparent that the respondents herein had not 

approached the Guwahati High Court in time, to take a gambling chance later on 

and to cash upon any favourable verdict in the earlier litigation. As the approach 

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of the respondents lack in bonafide and as they cannot be construed to have 

invoked the writ jurisdiction of the High Court in time, their claim had been 

rightly rejected by the learned Single Judge in the exercise of the equitable 

prerogative, he urged. The learned counsel maintained that as the claim of the 

respondents had not been allowed during the pendency of SPINE, they have no 

vested right to insist for a direction to sanction the incentives thereunder and 

thus the impugned judgment and order in the prevailing facts and 

circumstances ought to be interfered with. He further argued that not only on 

the closure of the scheme in 2007, as conveyed by the letter dated 23-2-2007, 

the pending proposals including those of the respondents herein had been 

returned to the respective State Governments, in absence of any challenge to 

the said decision, the respondents even otherwise are not entitled to the 

benefit under it. According to the learned counsel, the respondents are not 

entitled to the benefit of the earlier adjudication and that if their claim is 

entertained it would not only signify unwarranted premium on their speculative 

inaction but also would severely impinge upon the financial resources of the 

State qua an unworthy cause. 

13. As against this, Ms. N. Saikia has emphatically argued that the 

583 


respondents being similarly placed with the writ petitioners in the earlier 

proceedings, they had been rightly extended equal treatment and thus the 

impugned judgment and order is unassailable in law and on facts. As admittedly 

by the letter dated 05-02-2007, the scheme had not been withdrawn and in fact 

no decision rejecting their claim thereunder had ever been conveyed to the 

respondents, the action of the appellants in endeavouring to deny the benefit 

thereunder is patently arbitrary, whimsical and unconstitutional, she urged. In 

any view of the matter, according to the learned counsel, as the implementing 

authorities were generally sloth in processing the applications, taking about 

four/five years’ time to complete the process, the respondents could not have 

been non-suited on the purported ground of delay and laches. While asserting 

that the scheme was in force when the writ petitions were filed Ms. N. Saikia 

insisted that the respondents having altered their position in view of the


incentives promissed thereunder, the action of the appellants in declining them 

the same is violative of the doctrine of promissory estoppel. According to the 

learned counsel, as others similarly placed with the respondents have been 

extended the benefits under the scheme, the denial to the respondents was 

discriminatory as well. The following decisions were relied upon to buttress the 

above assertions: 

AIR 1979 SCC 621 M/S Motilal Padampt Sugar Mills Co. v. The 

State of Uttar Pradesh & Ors., (2004) 6 SCC 465 State of Punjab v. 

Nestle India Ltd., ***, (2006) 8 SCC 702 , MRF Limited v. Assistant 

Commissioner Sales Tax., ***, (2004) 1 SCC 139 State of Orissa & Ors v. 

Mangalam Timber Products Limited.., (2009) 6 SCC 791 Basanti Prasad 

v. Chairman, Bihar School Examination Boards ***, (2010) 6 SCC 786 

Improvement Trust, Ludhiana v. Ujagar Singh & Ors., ***, (2013) 12 

SCC 649 Esha Bhattacharjee v. Raghunathpur Nafar Academy ***. 

14. The pleaded facts and the competing arguments have received our 

584 


due attention. To start with, it is not disputed that the writ petitioners in the 

earlier round of adjudication were applicants under SPINE alike the respondents 

herein. They being appalled by the delay in the grant of their receivables 

thereunder and being faced with the letter dated 05-02-2007 whereby pending 

receipt and scrutiny of the reports as called for, further sanction/disbursement 

of Grants-in-Aid under the said scheme was stopped, did promptly approach the 

Guwahati High Court with a batch of writ petitions in the year 2007 itself and as 

narrated hereinabove were favoured with a direction to the implementing 

authorities for consideration of their application for the investment subsidy in 

accordance with law without being influenced by the said letter. Admittedly, the 

respondents herein elected not to join them and instead, soon thereafter this 

Court affirmed the above verdict on 01-05-2009, staked their claim on 27-08- 

2009. There is evidently thus a time lag of more than two years by which the 

respondents’ challenge was delayed. 

14.1 It is a matter of record, that by letter/notification dated 04-05- 

2010 issued by the Secretary, Ministry of DONER, NEC, Shillong, confirmation of 

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the decision of withdrawal and closure of SPINE with effect from 23-02-2007, 

was notified. A plain perusal of the contents of this document would reveal in 

no uncertain terms that the withdrawal and closure of SPINE had been effected 

by an Order of Government of India vide NEC/PLAN/ii-23-2-2007. Thus the 

letter/notification dated 04-05-2010, did relate back to 23-02-2007 for all 

intents and purposes. Therefore the scheme, SPINE stood withdrawn and/or 

closed on and from 23-02-2007. As a corollary, on a cumulative reading of the 

letters dated 05-02-2007, 23-02-2007 and 04-05-2010 as well as the resolution 

dated 21-02-2007 it is indubitable that SPINE stood withdrawn and/or closed 

with effect from 23-02-2007. As adverted to hereinabove, by letter dated 01- 

10.2007, as a consequential step, the proposal which had remained 

unprocessed as per the standard procedures of the scheme were returned to 

the State Governments. The list of proposals remitted back admittedly included 

those amongst others of the respondents herein. It is thus patent that on such 

date i.e. 01-10-2007, the claims of the respondents had not been accepted and 

in view of the closure of the scheme, were returned to the respective State 

Governments. In this pronounced backdrop, the plea of the respondents that at 

the institution of the writ petitions in 2009, no decision had been taken 

rejecting their applications fades into insignificance, as those by implication had 

not been entertained under the scheme. 

585 


14.2 The letters dated 04-08-2006, 04-09-2007 and 12-09-2007 to which 

our attention has been drawn in course of the arguments, suffice it to mention, 

do not contain any assurance on the part of the implementing authorities 

promising grant of the subsidy allowance under the scheme or any other 

incentive to the respondent. No reference has been made before us of any 

other document qua the other respondents. We are thus constrained to hold 

that there was no promise on the part of the public functionaries in charge of 

implementation of SPINE to the respondents to extend benefits thereunder, 

inspite of the decision to withdraw or close the same with effect from 23-02- 

2007. 

15. In M/s Motilal Padampt Sugar Mills Company (supra), this Court, on

586 



an exhaustive survey of the law pertaining to the doctrine of promissory 

estoppel held that the same was an equitable doctrine that would yield when 

equity so required. While propounding that the same had been evolved to avoid 

injustice where it is demonstrated that a party acting on the words or conduct 

of another, amounting to clear and unequivocal promise and intended to create 

legal relations or effect legal relationships to arise in the future had altered his 

position, then the promise would be binding on the promisor and he would not 

be permitted to renege therefrom unless it would be inequitable to compel him 

to do so. While extending this doctrine to the Government as well, it was 

enunciated that if it can be shown that having regard to the facts as had 

subsequently transpired, it would be inequitable to hold the Government to the 

promise made by it, the Court would not raise the equity in favour of the 

promisee and enforce the promise against the Government. Their Lordships 

held that the doctrine of the promissory estoppel would be displaced in such a 

case, because on the facts, equity would not require that the Government 

should be held bound by the promise made by it. That aside overriding public 

interest against enforcement of the doctrine qua the Government, it would be 

still competent for it to depart from the promise on giving reasonable notice 

which need not be a formal one, affording the promisee a reasonable 

opportunity of resuming his position was underlined. We consider it inessential 

to dilate on the other decisions cited on behalf of the respondents on this 

theme as these are in essence in reiteration of the above proposition. 

16. The gravamen of the authorities pertaining to delay highlight in 

unison that the same has to be explained by cogent convincing and persuasive 

explanation to justify condonation thereof. The legal diktat being so 

fundamental that a detailed treatment of the decisions relied upon by the 

respondents in this regard is not warranted. 

17. Noticeably, in the earlier round of litigation, there was no scope to 

examine the purport of the contents of the letter dated 04-05-2010, which to 

reiterate only affirmed the decision of withdrawal and closure of SPINE with 

effect from 23-02-2007. The contents of the said letter to repeat disclose in 

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unequivocal terms that even prior thereto a decision to that effect had been 

taken on and from that date. This decision as referred to hereinabove amongst 

others also received media coverage. The plea that the respondents had no 

knowledge of the withdrawal/closure of SPINE then, is to say the least, 

unconvincing. We see no weighty or cogent reason for the respondents to wait 

till the earlier Special Leave Petition was dismissed on 01-05-2009 by this Court 

to embark upon their pursuit for redress in similar terms. Their writ petitions 

dated 27-08-2009 also do not evince that the same were filed after the 

letter/notification dated 04-05-2010. In our considered opinion therefore, the 

respondents were deliberately bidding time to seek judicial remedy in case their 

co-applicants under the scheme emerged successful in their adjudicative 

enterprise. As the initial decision conveyed by the letter dated 05-02-2007 to 

stop further sanction/disbursement of Grant-in-Aid under the scheme pending 

scrutiny of the report of the industrial units involved did eventually 

metamorphosise in the closure/withdrawal of the scheme, there is an apparent 

correlation between the intervening developments conveyed from time to time 

eventuating in such a conclusion. The merit of the factums leading to this 

decision however has not been questioned or impeached. 

587 


18. On a consideration of the totality of the aspects involved, we are 

thus of the unhesitant view that the respondents herein in view of their 

deliberate laches, negligence and inaction have disentitled themselves to the 

benefit of the adjudication in the earlier lis. In the accompanying facts and 

circumstances in our comprehension, it would be iniquitous and repugnant as 

well to the public exchequer to entertain the belated claim of the respondents 

on the basis of the doctrine of promissory estoppel which is even otherwise 

inapplicable to the case in hand. 

19. For the foregoing determination, we are constrained to interfere 

with the impugned judgment and order which is hereby set aside. The appeals 

are allowed. No cost. 

S.S - Appeal allowed.




Present: Mr. Justice Pinaki Chandra Ghose and Mr. Justice R.K. Agrawal. 

SANJEEV KUMAR GUPTA - Appellant, 

Versus 

STATE OF U.P. (Now State of Uttarakhand) - Respondent. 

CRIMINAL APPEAL NO. 507, with 508, 509, 510, 511 512, 513 OF 2013 

(i) Criminal Trial - Eye witness - Inconsistency of statements - 

Inconsistency with the statement given by P.W. in the F.I.R and the 

588 


statement given in the Court - Do not find this to be fatal to the 

prosecution case - Cannot rule out the possibility of post incident 

trauma and shock which might have been caused to the injured eye 

witness -In such a situation one cannot expect the witness to depose 

about every detail with accuracy - Testimony of an injured eye witness 

has to be given much credence - The testimonies of the prosecution 

witnesses have been fully corroborated by the medical reports of the 

doctors who examined the deceased and the injured witness - 

Therefore, we hold that the testimonies of the prosecution witnesses 

are fully reliable and there has been no improvement made. [Para 28] 

Held, that when other evidence, such as medical evidence, supports the 

prosecution’s case, the difference in what is stated in the F.I.R. and in Court as 

regards the weapon of offence is a very insignificant contradiction, 

Dharmendrasinh alias Mansing Ratansinh v. State of Gujarat, (2002) 4 SCC 679, 

relied. [Para 28] 

(ii) Criminal Trial - Non-recovery - Non-recovery of the weapon 

used by the accused appellants and recovery of the blood stained shirt 

after six days of the date of the incident - However, merely on the basis 

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of these circumstances the entire case of the prosecution cannot be 

brushed aside when it has been proved by medical evidence 

corroborated by testimonies of the prosecution witnesses that the 

deceased died a homicidal death - When there is ample unimpeachable 

ocular evidence and the same has received corroboration from medical 

evidence, non-recovery of blood stained clothes or even the murder 

weapon does not affect the prosecution case . [Para 29] 

Manjit Singh and Anr. v. State of Punjab and Anr. ***, (2013) 12 SCC 

746, relied. 

(iii) Indian Penal Code, (XLV of 1860) Section 149 - Unlawful 

assembly - It is not disputed that the accused persons were present at 

the site of the incident and were armed with deadly weapons - They 

had shared the common intention of stopping the deceased from 

contesting for the elections - These circumstances are indicative of the 

fact that all the accused persons, at that time, were the members of 

unlawful assembly because their common object was to threaten and 

prevent the deceased and other persons from contesting the College 

elections. [Para 30] 

589 


(iv) Indian Penal Code, (XLV of 1860) Section 149 - Common 

Object – Common Intention to kill – Can arise at the spur of the 

moment – Even if it is assumed that there was no common object of 

killing, but only of stopping the deceased and others from contesting 

the elections - It cannot be ruled out that the common intention to kill 

might have arisen on the spur of the moment - The actions of the 

appellants and the injuries inflicted on the body of the deceased also go 

to substantiate the same . [Para 30, 31] 

Held, 

Indian Penal Code, Section 149 has essentially two ingredients


viz. (i) offence committed by any member of an unlawful assembly 

consisting of five or more members, and (ii) such offence must be 

committed in prosecution of the common object under Section 141 IPC) 

of the assembly or members of that assembly knew to be likely to be 

committed in prosecution of the common object - For ‘common object’, 

it is not necessary that there should be prior concert in the sense of a 

meeting of the members of the unlawful assembly, the common object 

may form on the spur of the moment; it is enough if it is adopted by all 

the members and is shared by all of them - Ramachandran and Ors. v. 

State of Kerala, (2011) 9 SCC 257, relied. 

[Para 30] 

Cases referred to :- 

1. (2002) 4 SCC 679, Dharmendrasinh alias Mansing Ratansinh v. State of 

Gujarat, 

590 


2. (2013) 12 SCC 746, Manjit Singh and Anr. v. State of Punjab and Anr. 

***, 

3. (2011) 9 SCC 257, Ramachandran and Ors. v. State of Kerala, 

JUDGMENT 


Pinaki Chandra Ghose, J. – (8 th May, 2015) – 

1. In these appeals, by special leave, the appellants have challenged the 

judgment and order dated 8th April, 2011 passed by the High Court of 

Uttarakhand at Nainital, in Criminal Appeal No.675 of 2001, whereby the High 

Court has dismissed the appeals preferred by the appellants herein and 

confirmed the judgment and order of the Additional Sessions Judge/Special 

Judge, Anti Corruption, U.P. (East), Dehradun, convicting the appellants under 

Section 302 read with Section 149 of the Indian Penal Code, 1860 (for short 

“I.P.C.”) and sentencing them to life imprisonment and to pay a fine of 

Rs.10,000/- each. 

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2. The facts pertinent to the case, as unfolded by the prosecution, are 

that on 24.9.96 at about 10:30 A.M., Vipin Singh Negi, Alok Chandana, Suyesh 

Kukreti and Rajneesh Chhatwal were standing near the cycle stand, situated 

within the campus of D.A.V. (P.G.) College, Dehradun and at the same time, 

accused Dheeraj Kalra along with Rish Kumar, Som Prakash, Saurabh, Nitin @ 

Vippu, Bhagat and Sanjeev Kumar @ Happy armed with Lathis, Knives and 

Khukries reached there and asked Vipin Singh Singh Negi and Alok Chandana to 

withdraw their names from the election of Commerce Faculty of the College. 

When they refused to withdraw their names from the election, they were 

assaulted by the accused persons with the help of their respective arms. As a 

result this assault, Alok Chndana and Vipin Singh Negi received serious injuries. 

Alok Chandana was immediately taken to Coronation Hospital by some College 

students but he succumbed to his injuries on the succeeding day. Vipin Singh 

Negi lodged a written complaint of the incident at the Police Station, Dalanwala. 

On the strength of his written complaint, a case was registered on the same day 

at 11:00 A.M. as Case Crime No.275/96 under Sections 147, 148,149, 307, 323 

I.P.C., which was later converted under Section 302 I.P.C. 

3. Charges were framed against all the accused persons under Section 

591 


148 and Section 302 read with Section 149 of I.P.C. An additional charge was 

framed against accused Rishi Kumar, Saurabh and Dheeraj under Sections 147 

and 323 read with Section 149 of I.P.C. Likewise additional charge was framed 

against accused Sanjeev @ Happy, Som Prakash, Nitin @ Vippu and Bhagat 

under Section 302 read with Section 149 of I.P.C. Charges were denied by all the 

accused persons and claimed to be tried. Prosecution, in support of charges, 

have examined Vipin Singh Negi (PW-1), Dheeraj Negi (PW-2), Suyesh Kukreti 

(PW-3), Rajneesh Chatwal (PW-4), Dr. Ajay Sharma (PW-5), Dr. C.M. Tyagi (PW- 

6), A.S.I. Rajendra Pal (PW- 7), Dr. Bharat Kishore (PW-8), Mahendra Pal Sharma 

(PW-9), Const. 493 Anil Kumar (PW-10), Virendra Kumar Sharma (PW-11) and 

Sub Inspector Prem Pal Singh (PW-12). 

4. Shri Vipin Singh Negi (P.W.-1) is an eye witness and he also received 

injuries in the incident. In addition to substantiating the prosecution version, he

592 



disclosed the specific role played by the accused persons at the spot. He 

disclosed that accused Bhagat had caused injury with his knife on the back of 

Alok Chandana, accused Som Prakash caused injury on his neck with Khukhri, 

accused Nitin @ Vippu caused injury below his left eye with his Khukhri. P.W.-1 

also stated that when he strived to rescue Alok Chandna, he was caught hold by 

accused Saurabh and Rishi, whereas accused Dheeraj Kalra instantly caused 

head injury with a Danda. After receiving injuries, Alok Chanda ran towards 

canteen but fell down near the I.G.N.O.U. building as he got tangled with the 

wire-fencing. Accused Dheeraj Kalra, Saurabh and Rishi chased him and attacked 

again with Dandas. About 300 students had assembled at the place of 

occurrence and Alok Chandana was instantaneously taken to the Coronation 

Hospital on a Motorcycle. Two students of the College also brought Vipin Singh 

Negi (PW-1) to the Coronation Hospital. Vipin Singh Negi along with Suyesh 

Kukreti went to the Police Station, Dalanwala and appraised of the incident to 

the Police Officer on duty and lodged a written complaint, which was written 

and signed by this witness. After registration of the case, this witness was 

brought to the Coronation Hospital for medical examination. The shirt of 

witness, which he was wearing at the time of incident, was taken by the Police 

in their possession and a memo was prepared in this regard and the shirt was 

sealed in presence of this witness. A charge-sheet was filed by the Inspector 

(Police) Vikas Sharma, against the accused persons, namely, Dheeraj Kalra, Rishi 

Kumar, Saurabh, Som Prakash, Sanjeev Kumar @Happy, Nitin @ Vippu and 

Bhagat Singh under Sections 147, 148, 149, 323, 307, 302 I.P.C. 

5. In the Court of the Additional Sessions Judge, Special Judge, Anti 

Corruption, U.P. (East), after hearing the counsel for the parties at length, the 

Court opined that there was no delay in filing of the FIR, and the nature of FIR is 

that of a substantive piece of evidence which could be used for corroboration or 

contradiction. It does not require containing neither the exhaustive details of 

occurrence nor a catalogue of the particulars. The FIR was lodged within half an 

hour of the occurrence and such an early reporting of the occurrence, with all its 

vivid details, gives assurance regarding truth of its version. 

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6. During cross-examination, the complainant has also stated the fact 

that he was nervous and due to that he omitted some details. The complainant 

has lodged the FIR within half an hour on the same day. The eye witness Vipin 

Singh Negi (PW-1) was also cross-examined at length, on the issue of the 

identity of the accused persons. He clearly disclosed that he knew accused Som 

Prakash and Rishi about one year prior to this occurrence and also knew of the 

location of their residence. The statement of P.W.1 Vipin Singh Negi has been 

corroborated by Suyesh Kukreti (P.W.3). There was no contradiction in the 

testimonies of the abovementioned prosecution witnesses and the Sessions 

Judge relied on them. The prosecution case was further supported by the 

testimony of Rajeev Negi (P.W.2). The medical examination also fully supported 

the case of the prosecution. Thus, the Trial Court convicted Dheeraj Kalra, 

Surabh, Rishi Kumar, Nitin @ Vippu, Som Prakash, Bhagat and Sanjeev @ Happy 

under Section 302 read with Section 149 of I.P.C. and sentenced them to 

imprisonment for life and a fine of Rs.10,000/- was imposed on each of them. 

All the accused persons were also convicted under Section 148 of I.P.C. and 

sentenced to rigorous imprisonment for two years. However, the sentences 

were directed to run concurrently. 

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7. The finding of the High Court was concurrent with that of the Court of 

Sessions and it cancelled the bail of the appellants affirming the conviction and 

sentence of the accused persons under Section 302 read with Section 149 and 

under Section 148 of I.P.C. 

8. We have heard the learned counsel appearing for the appellants as 

also the counsel for the State of Uttarakhand. For a proper analysis of the 

evidence on record, we need to examine the statements given by the 

prosecution and defense witnesses in detail. 

9. The injured eyewitness and complainant in the present case is P.W.1 

Vipin Singh Negi, who disclosed the specific roles played by the accused persons 

in the occurrence. He disclosed the weapons which the accused persons 

possessed and the injuries sustained by the deceased and by himself. Accused 

Bhagat Singh caused the injury with knife on the back of Alok Chandana, Som


Prakash caused injury on the neck with knife, Vippu caused injury with Khukri 

below the left eye of Alok. In an attempt to save Alok Chandana, P.W.1 was 

caught hold by accused Saurabh and accused Dheeraj Kalra instantly caused 

head injury with Danda. After receiving injuries the deceased Alok Chandana ran 

towards the canteen but fell down near the I.G.N.O.U. building as he got 

trapped in wire fencing. He further stated that during the incident, about 300 

students had assembled. Thereafter, Alok Chandana was instantaneously 

brought to the Coronation Hospital and P.W.1 was also taken to the same 

hospital. Thereafter, P.W.1 along with Suyash Kukreti reached the police station 

and a written complaint was lodged. It was signed by P.W.1. and thereafter 

P.W.1 was also brought to Coronation Hospital by a constable. The shirt which 

P.W.1 was wearing during the incident was seized and a memo was prepared 

and the shirt was sealed. The shirt and vest of Alok Chandana was also taken by 

the Police in possession for which a memo was prepared. 

10. P.W.2 Shri Rajeev Negi, is also an eye witness, who has supported 

594 


the prosecution version. He has stated in his deposition that the incident took 

place on 24.9.96 at about 10:00 A.M. He was taking tea at the Canteen and saw 

Alok Chandana coming towards the I.G.N.O.U building from the Cycle Stand and 

after trapping into wire fencing fell down. He was being chased by accused 

Saurabh, Rishi, Dheeraj Kalra and they attacked him after he fell down. This 

prosecution witness has also supported the fact of Alok Chandana being taken 

to the Coronation hospital and the filing of the FIR. 

11. Prosecution witness Shri Suyesh Kukreti (P.W.3) is also an eye 

witness, and he has corroborated and confirmed the statements of P.W.1. 

12. Eye witness and prosecution witness Shri Rajneesh Chatwal (P.W.4) 

confirmed his presence along with Alok Chandana, Vipin Singh Negi, Suyesh 

Kukreti near the cycle stand on 24.9.1996 at about 10:30 A.M. however this 

witness has turned hostile. 

13. Medical examination was conducted by Dr. Bharat Kishore (P.W.8) 

and it corroborates the prosecution story and confirmed that the injuries of 

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Vipin Singh Negi and Alok Chandana could have been received on 24.9.1996 at 

about 10:30 A.M. He has further stated that the injuries to Vipin Singh Negi 

could have been caused by Danda and injuries to Alok Chandana could have 

been caused by knife and one of his injury could have been sustained by friction. 

The statement of P.W.8 gets strengthened further by the statement of Dr. C.M. 

Tyagi, who conducted the internal examination of the deceased and found the 

frontal bone fractured and right lung ruptured. On external examination, Dr. 

Tyagi found all the injuries as were found by Dr. Bharat Kishore (P.W.8). 

14. The accused persons have adduced evidences in their defense. Shri 

P.S. Bisht (D.W.1), Office Superintendent of D.A.V. College produced the record 

of the College pertaining to the year 1996-1997 and stated that accused Som 

Prakash and Rishi were not the students in the Commerce Faculty of D.A.V 

College during 1996-1997 session. 

15. Shri Jaswant Singh (D.W.2) is the Contractor in-charge of the cycle 

stand from 1989 till date. He has brought to light the timings of the classes in 

the College, starting at 7.55 A.M. and continuing till 1:30 P.M. and thereafter 

evening classes to start at 6:00 P.M. and continue till 8:00 P.M. He stated that 

he remained present at the stand during that time and he was present at the 

cycle stand during the said timings on 24.9.1996. 

595 


16. Shri Tejendra Pal Singh (D.W.3) resides just opposite the residence 

of accused Saurabh. He deposed that on 24.9.1996, at about 10:30 A.M. he saw 

Saurabh with his father outside his residence and they were ready to go to their 

shop. 

17. Shri Pravesh Kumar Nagpal (D.W.4) is the neighbour of the accused 

Saurabh in the commercial premises. The shop of this witness is situated just 

opposite to the shop of Saurabh’s father. He stated that on 24.9.1996 at about 

10:30 A.M., he saw accused Saurabh with his father going to their shop. He 

further stated that at 10:30 A.M. to 10:45 A.M. when he was having a 

conversation with the father of the accused Saurabh, Saurabh told his father 

that some incident had occurred in the College and he was going to the hospital.

596 



18. Learned counsel for appellant Sanjeev Kumar Gupta submitted that 

the Trial Court as also the High Court overlooked the fact that the name of 

appellant Sanjeev Kumar Gupta was not mentioned in the F.I.R.. P.W.1 neither 

mentioned his name in the examination-in-chief nor in the F.I.R. It is only in the 

cross-examination that P.W.1 has made allegation of participation by the 

appellant Sanjeev Kumar Gupta. Learned counsel for the appellant submitted 

that the appellant has been falsely implicated, which is evident from the fact 

that details of all the accused were mentioned in the F.I.R. except accused 

Sanjeev. The Trial Court and the High Court ought to have appreciated that the 

prosecution story stands disproved by the evidence of P.W.4 Rajnish Chatwal, 

because while the prosecution alleges that P.W.4 had taken the deceased Alok 

Chandana to the Coronation Hospital immediately after the incident and that he 

had given a statement under Section 161 Cr.P.C., the said P.W.4 clearly denied 

the prosecution story stating that neither he had given statement under Section 

161 Cr.P.C. nor did he know any of accused persons. Furthermore, the counsel 

submitted that even the main witnesses (P.W.1 and P.W.3) have stated that 

only four or five of the accused persons attacked the deceased, but the Trial 

Court and the High Court maintained the conviction of all seven of them. The 

High Court and Trial Court should have appreciated that the evidence of P.W.1 

and P.W.3 was not trustworthy and reliable. P.W.3 himself is named as an 

accused in another murder case. Regarding the place of occurrence, the learned 

counsel submitted that the prosecution story is unbelievable as, according to 

the prosecution, the incident took place at two places, first near the cycle stand 

and next near the I.G.N.O.U building. However, the F.I.R. only states that the 

incident took place at the cycle stand. The counsel argued that P.W.1 also stated 

that he was at the cycle stand and had not gone to I.G.N.O.U building where the 

deceased was stated to have fallen down. The prosecution story that the 

deceased had fallen down near the I.G.N.O.U building and was again attacked 

there, is untrue. In addition to that, no witness has stated that they had seen 

the accused attacking the deceased after having fallen down at the I.G.N.O.U 

building. Therefore, the Trial Court erred in not considering that the deceased 

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could have died due to falling on the ground. The counsel submitted further that 

the Trial Court erred in holding that the fact that the dying declaration of the 

deceased was not recorded, was not significant. The Trial Court should have 

appreciated that conviction under Sections 148/149/302 I.P.C. was not 

sustainable in view of the fact that the objective of the assembly was to 

threaten the deceased and the motive of murdering Alok Chandana did not and 

could not arise. 

19. The arguments put forward by learned counsel appearing for 

appellant Dheeraj Kalra were as follows: Dr. Bharat Kishore prepared the report 

of the injuries and as per the report only one injury was found on the body of 

the informant. Further, the learned counsel also questioned the absence of a 

dying declaration, and the inconsistent views of the eye witnesses. The mere 

refusal by the deceased and P.W.1 to withdraw their names from the election of 

Commerce Faculty of College cannot be a motive of the accused persons to 

commit the alleged crime under Section 302 read with Section 149 IPC. The 

evidences of the alleged crime do not connect the accused with the crime as no 

weapon was recovered by the Police and the blood on the shirt of the deceased 

could not be ascertained during chemical examination, and thus, it could not be 

ascertained that it belonged to the deceased. The high Court and Trial Court had 

wrongly disbelieved the plea of alibi, according to the counsel. 

597 


20. Learned counsel appearing for appellant Rishi Kumar, submitted 

that the appellant was not armed and was not a member of the unlawful 

assembly and, therefore, could not have been convicted under Section 149 I.P.C. 

The F.I.R. was ante timed. Further, P.W.1 neither stated in the F.I.R. nor in 

Section 161 Cr.P.C. statement that Alok Chandana, after being beaten near the 

cycle stand, ran towards I.G.N.O.U. building and got entangled in barbed wire 

fencing and fell down where he got Lathi blows. This shows that there was clear 

improvement. He further submitted that the Courts below failed to appreciate 

that the medical evidence does not support the ocular evidence and also failed 

to note the improvements made. 

21. Learned counsel appearing for appellant Saurabh took the following


defenses: That the common object was missing in respect of the present 

appellant; there was contradiction in the version stated by P.W.1 in the F.I.R. 

and in his deposition in Court; the credibility of P.W.1 as an eye witness is 

weakened by the medical version. Further there was no test Identification 

Parade conducted which was imperative as there were some members who 

were stated to be outsiders. P.W.1 and P.W.3 are not consistent in their 

deposition. In addition to the above, the evidences of the alleged crime do not 

connect with the accused appellant as no weapon of offence was recovered by 

the Police and the blood on the shirt of the deceased could not be ascertained. 

22. Learned counsel appearing for Nitin@ Vippu submitted that the 

name of this appellant is mentioned in the F.I.R. without parentage. There is no 

specific allegation against him of having weapon and only a general allegation of 

assault is made against him. The allegation of causing a Khukhri blow by him 

below the left eye of the deceased is not supported by medical evidence. 

23. The injury attributed to appellant Bhagat Singh is the knife blow on 

598 


the back of the deceased. Learned counsel appearing for the appellant has 

taken similar grounds, of absence of common object and not being part of 

unlawful assembly. In addition to this, there is contradiction in the statement of 

P.W.1 in the F.I.R. and his deposition in Court. Along with this the counsel has 

taken the plea of contradictions in the ocular version and the medical version 

and the absence of a Test Identification Parade. 

24. Learned counsel appearing for appellant Som Prakash took similar 

grounds of defense as in the cases of abovementioned appellants. The role 

attributed to Som Prakash was that he attacked the deceased with Khukri on 

the neck of Alok Chandana from behind. The additional defense taken was of no 

common object being present. 

25. We believe that the following issues have emerged from the 

arguments put forward by the defense and from the testimonies of the 

prosecution witnesses. Firstly, the place of occurrence of the incident; Secondly, 

the inconsistencies in the statements given by the prosecution witnesses in the 

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F.I.R and their statements in Court; Thirdly, the question of unlawful assembly 

and common object being present. 

26. The appellants in the present case have raised the common defense 

that there has been an improvement by the prosecution witnesses with respect 

to the place of occurrence of the incident. However, from a perusal of the site 

map it becomes clear that the incident originally took place near the cycle stand 

and on receiving the injuries Alok Chandana (deceased) ran away from the place 

and fell down after 10-20 steps. Out of the seven accused, he was chased by 

four accused and injuries were caused to him by them near I.G.N.O.U building, 

which was hardly 10-20 steps from the place where he fell down after getting 

trapped with the wire. The veracity of the above-mentioned distance has come 

forth in the cross-examination of the witnesses. We believe a person may 

presume them to be one place or two separate places. Therefore, in our 

opinion, the discrepancy with respect to the place of occurrence has no bearing 

on the prosecution case. 

27. We believe that the testimonies of the prosecution witnesses are 

consistent, on the whole, and minor discrepancies are such that those will not 

weaken the prosecution case. The prosecution witnesses have established the 

presence and participation of all the accused in the offence. The medical 

examination has gone further to strengthen their testimonies. The statement of 

P.W.1 Vipin Singh Negi gets corroborated by the injury report prepared by Dr. 

Bharat Kishore (P.W.8) of Coronation Hospital who recorded the injuries on the 

person of Vipin Singh Negi (P.W.1). Dr. Bharat Kishore found a lacerated wound 

on the head of P.W.1, which supported the version of the prosecution witness. 

Another eyewitness P.W.3 Suyash Kukreti has supported the version given by 

P.W.1. He has named all the seven accused with respect to their presence at the 

cycle stand. He has also supported P.W.1 with respect to their individual roles 

played in assaulting the deceased and P.W.1. With respect to the question of 

presence of the seven accused persons and the individual role played by them, 

we find that there is no inconsistency in the statements of the prosecution 

witnesses. 

599 



28. Coming to the question of inconsistency with the statement given by 

P.W.1 in the F.I.R and the statement given in the Court, we do not find this to be 

fatal to the prosecution case. We cannot rule out the possibility of post incident 

trauma and shock which might have been caused to the injured eye witness. In 

such a situation one cannot expect the witness to depose about every detail 

with accuracy. Further, this Court has held in a number of cases that the 

testimony of an injured eye witness has to be given much credence. Apart from 

this, this Court has also laid down in Dharmendrasinh alias Mansing Ratansinh 

v. State of Gujarat, (2002) 4 SCC 679, that when other evidence, such as 

medical evidence, supports the prosecution’s case, the difference in what is 

stated in the F.I.R. and in Court as regards the weapon of offence is a very 

insignificant contradiction. This Court in paragraph 10 of the above-mentioned 

judgment observed: 

“…In this connection, the other related argument which has 

been raised is that in the F.I.R. P.W.3 had mentioned that the appellant 

600 


had assaulted the children with an axe but later on changed her 

statement in the Court saying that it was by mistake she had mentioned 

‘axe’ in the F.I.R. but in fact it was dharia. In our view it is a very 

insignificant contradiction which may not lead to any worthwhile 

conclusion in view of the fact that it was immaterial whether the 

weapon was an axe or a dharia as both are sharp-edged weapons and 

according to the statement of the doctor the injuries as received by the 

two children were caused by a sharp-edged weapon. There was thus no 

design or purpose in changing the statement or deliberately giving out 

something wrong in the first information report about the weapon used 

by the appellant to cause the injuries upon the deceased persons. The 

medical evidence supports the prosecution case in all respects. We 

therefore find no force in this submission as well.” 

In the present case also, the testimonies of the prosecution witnesses 

have been fully corroborated by the medical reports of the doctors who 

examined the deceased and the injured witness. Therefore, we hold that the 

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testimonies of the prosecution witnesses are fully reliable and there has been 

no improvement made. 

29. We do note that the investigation suffers from certain flaws such as 

non-recovery of the weapon used by the accused appellants and recovery of the 

blood stained shirt after six days of the date of the incident. However, merely 

on the basis of these circumstances the entire case of the prosecution cannot be 

brushed aside when it has been proved by medical evidence corroborated by 

testimonies of the prosecution witnesses that the deceased died a homicidal 

death. This Court has held in Manjit Singh and Anr. v. State of Punjab and Anr. 

***, (2013) 12 SCC 746, that when there is ample unimpeachable ocular 

evidence and the same has received corroboration from medical evidence, nonrecovery 

of blood stained clothes or even the murder weapon does not affect 

the prosecution case. 

30. Now, we come to the question as to whether the accused persons 

formed an unlawful assembly. It is not disputed that the accused persons were 

present at the site of the incident and were armed with deadly weapons. They 

had shared the common intention of stopping the deceased from contesting for 

the elections. These circumstances are indicative of the fact that all the accused 

persons, at that time, were the members of unlawful assembly because their 

common object was to threaten and prevent the deceased and other persons 

from contesting the College elections. As far as the argument regarding the 

absence of a common intention to kill the deceased or the prior concert is 

concerned, we are of the view that it can arise at the spur of the moment. This 

Court in the case of Ramachandran and Ors. v. State of Kerala, (2011) 9 SCC 257, 

has observed: 

601 


“17. Section 149 IPC has essentially two ingredients viz. (i) 

offence committed by any member of an unlawful assembly consisting 

of five or more members, and (ii) such offence must be committed in 

prosecution of the common object under Section 141 IPC) of the 

assembly or members of that assembly knew to be likely to be 

committed in prosecution of the common object.


18. For ‘common object’, it is not necessary that there should 

be prior concert in the sense of a meeting of the members of the 

unlawful assembly, the common object may form on the spur of the 

moment; it is enough if it is adopted by all the members and is shared 

by all of them.” (Emphasis supplied) 

31. We are of the view that in the present case, even if it is assumed 

that there was no common object of killing, but only of stopping the deceased 

and others from contesting the elections, it cannot be ruled out that the 

common intention to kill might have arisen on the spur of the moment. The 

actions of the appellants and the injuries inflicted on the body of the deceased 

also go to substantiate the same. We, therefore, uphold the judgment and order 

passed by the High Court of Uttarakhand at Nainital, confirming the judgment 

and order of the Additional Sessions Judge/Special Judge, Anti Corruption, U.P. 

(East), Dehradun. Accordingly, these appeals are dismissed. 

S.S. - Appeals dismissed. 

602 


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Present: Mr. Justice M.Y. Eqbal and Mr. Justice Kurian Joseph. 

M/S. BHANDARI UDYOG LIMITED …..Appellant, 

versus 

INDUSTRIAL FACILITATION COUNCIL AND ANOTHER …..Respondents. 

Civil Appeal NO. 2077 OF 2015 (Arising out of SLP (C) NO. 8675 OF 2014) 

Arbitration and Conciliation Act, 1996 (26 of 1996) - Section 34, 

42 - Jurisdiction of a Court to entertain application under Section 34 of 

the Arbitration and Conciliation Act, 1996 - Respondent resides at Latur, 

delivery of cotton bales was taken at Latur and the place of business of 

respondent was at Latur - Cotton bales were dispatched by the 

appellant from Raichur supported by all bills/invoices specifically 

mentioning that “subject to Raichur jurisdiction” - The dispute arose 

and the matter was referred to Industrial Facilitation Council, Bangalore 

– Parties participated in the arbitration proceedings in Bangalore 

without raising objection with regard to the jurisdiction of the 

Karnataka High Court referring the matter to arbitration or the 

jurisdiction of Industrial Facilitation Council to decide the dispute - 

Arbitration proceeding was concluded within the jurisdiction of Raichur 

Court - The only forum available to respondent was to make an 

application under Section 34 of the Act before the Civil Court of original 

jurisdiction at Raichur - Award challenged by filing an application under 

Section 34 of 1996 Act before the District Court at Latur, Maharashtra – 

Dismissed - Exercise of jurisdiction by such court shall be against the 

provision of Section 42 of the Act. [Para 8,10] 

603 


Held, Indisputably, the Arbitration proceeding has been conducted 

within the jurisdiction of Raichur court, which has jurisdiction as per Section 20


of the Code of Civil Procedure and is subordinate to the High Court of Karnataka 

which entertained Section 11 Application. Hence, the Award cannot be 

challenged before a Court subordinate to the High Court of Bombay. Exercise of 

jurisdiction by such court shall be against the provision of Section 42 of the Act. 

[Para 10] 

Acts: Arbitration and Conciliation Act, 1996 - Section 34, 42 - 

34. Application for setting aside arbitral award. 

(1) Recourse to a Court against an arbitral award may be made only by an 

application for setting aside such award in accordance with sub- section (2) and 

subsection (3). 

(2) An arbitral award may be set aside by the Court only if- 

(a) the party making the application furnishes proof that- 

(i) a party was under some incapacity, or 

(ii) the arbitration agreement is not valid under the law to which the 

parties have subjected it or, failing any indication thereon, under the law for the 

time being in force; or 

604 


(iii) the party making the application was not given proper notice of the 

appointment of an arbitrator or of the arbitral proceedings or was otherwise 

unable to present his case; or 

(iv) the arbitral award deals with a dispute not contemplated by or not 

falling within the terms of the submission to arbitration, or it contains decisions 

on matters beyond the scope of the submission to arbitration: Provided that, if 

the decisions on matters submitted to arbitration can be separated from those 

not so submitted, only that part of the arbitral award which contains decisions on 

matters not submitted to arbitration may be set aside; or 

(v) the composition of the arbitral tribunal or the arbitral procedure was 

not in accordance with the agreement of the parties, unless such agreement was 

in conflict with a provision of this Part from which the parties cannot derogate, 

or, failing such agreement, was not in accordance with this Part; or 

(b) the Court finds that- 

(i) the subject- matter of the dispute is not capable of settlement by 

arbitration under the law for the time being in force, or 

(ii) the arbitral award is in conflict with the public policy of India. 

Explanation.- Without prejudice to the generality of sub- clause (ii), it is hereby 

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declared, for the avoidance of any doubt, that an award is in conflict with the 

public policy of India if the making of the award was induced or affected by fraud 

or corruption or was in violation of section 75 or section 81. 

(3) An application for setting aside may not be made after three months 

have elapsed from the date on which die party making that application had 

received the arbitral award or, if a request had been made under section 33, from 

the date on which that request had bow disposed of by the arbitral tribunal: 

Provided that if the Court is satisfied that the applicant was prevented by 

sufficient cause from making the application within the said period of three 

months it may entertain the application within a further period of thirty days, but 

not thereafter. 

(4) On receipt of an application under sub- section (1), the Court may, 

where it is appropriate and it is so requested by a party, adjourn the proceedings 

for a period of time determined by it in order to give the arbitral tribunal an 

opportunity to resume the arbitral proceedings or to take such other action as in 

the opinion of arbitral tribunal will eliminate the grounds for setting aside the 

arbitral award. 

42. Jurisdiction. Notwithstanding anything contained elsewhere in this 

Part or in any other law for the time being in force, where with respect to an 

arbitration agreement any application under this Part has been made in a Court, 

that Court alone shall have jurisdiction over the arbitral proceedings and all 

subsequent applications arising out of that agreement and the arbitral 

proceedings shall be made in that Court and in no other Court. 


605 


1. (2015) 1 SCC 32, State of West Bengal & Ors. v. Associated contractors, 

JUDGMENT 


M. Y. EQBAL, J. – (20th February, 2015) - Leave granted. 

2. The short question that falls for consideration in this appeal is as to 

whether the Bombay High Court has correctly decided the jurisdiction of a Court 

to entertain application under Section 34 of the Arbitration and Conciliation Act, 

1996? 

3. The facts of the case lie in a narrow compass.


4. The Appellant Company is running a small scale industry at Raichur in 

the State of Karnataka and is engaged in the business of cotton ginning, pressing 

while extraction and in marketing the finished products. Whereas Respondent 

No.2 is running a cotton spinning mill at Latur in the State of Maharashtra. 

Respondent no.2 purchased 750 bales of cotton from the appellant-company 

and made part payment to the appellant. The balance amount was not paid 

which led to a dispute between the parties. 

5. It further appears that the appellant filed an application under 

Sections 3 and 4 of the Interest on Delayed Payments to Small Scale and 

606 


Ancillary Industrial Undertakings Act,1993 (for short ‘IDP Act’) before 

respondent no.1, the Industrial Facilitation Council (for short ‘IFC’) to arbitrate 

the dispute between the appellant and respondent no.2. The appellant 

thereafter filed a petition before the Karnataka High Court under Section 11 of 

the Arbitration and Conciliation Act, 1996 (for short ‘Act of 1996’) for 

appointment of Arbitrator. The said petition was allowed by the Chief Justice 

Designate and directed respondent No.1 (IFC) to decide the dispute between 

the parties. The respondent no.1 passed an Award on 16.8.2010 directing 

respondent no.2 to pay a sum of Rs.20,25,213.54 with interest. 

6. The respondent no.2 challenged the Award by filing an application 

under Section 34 of 1996 Act before the District Court at Latur, Maharashtra for 

setting aside the Award. The appellant opposed the said application by 

challenging the jurisdiction of the District Court in Latur. The appellant 

contended that the District Court at Raichur has jurisdiction to hear the 

application under Section 34 of the Act. The District Judge proceeded to decide 

the jurisdiction by referring various provisions including Sections 15 to 20 of the 

Code of Civil Procedure and held that since respondent no.2 resides at Latur, 

delivery of cotton bales was taken at Latur and the place of business of 

respondent no.2 was at Latur, it is the District Judge, Latur, who has jurisdiction 

to entertain the application under Section 34 of the Act. 

7. As against the aforesaid order passed by the District Judge, Latur, 

appellant preferred a revision before the Bombay High Court. The Bombay High 

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Court dismissed the revision holding that since the Chief Justice of the High 

Court dealing with an application under Section 11 of the Act is not a court, and 

that no application was filed in any court prior to the filing of application under 

Section 34 of the Act and further the bales were supplied at Latur, it is the Latur 

Court which has jurisdiction to entertain the application under Section 34 of the 

Act. 

8. We have heard Mr. Jayant Bhushan, learned senior counsel appearing 

for the appellant and Mr. Shrish K. Deshpande, learned counsel appearing for 

respondent no.2. It is not in dispute that pursuant to the order passed by 

respondent no.2, the cotton bales were dispatched by the appellant from 

Raichur supported by all bills/invoices specifically mentioning that “subject to 

Raichur jurisdiction”. The dispute arose and the matter was referred to 

respondent no.1, IFC Bangalore. Respondent No.2 participated in the arbitration 

proceedings in Bangalore without raising objection with regard to the 

jurisdiction of the Karnataka High Court referring the matter to arbitration or 

the jurisdiction of IFC to decide the dispute. Admittedly, the arbitration 

proceeding was concluded within the jurisdiction of Raichur Court. The only 

forum available to respondent no.2 was to make an application under Section 

34 of the Act before the Civil Court of original jurisdiction at Raichur, since the 

Karnataka High Court has no original jurisdiction. 

607 


9. Recently, when a similar question for consideration arose before 

three Judges Bench of this Court in the case of State of West Bengal & Ors. v. 

Associated Contractors, 1 (2015) 1 SCC 32, this Court held:- 

“22. One more question that may arise under Section 42 is 

whether Section 42 would apply in cases where an application made in 

a court is found to be without jurisdiction. Under Section 31(4) of the 

old Act, it has been held in F.C.I. v. A.M. Ahmed & Co.,(2001) 10 SCC 532 

at p. 532, para 6 and Neycer India Ltd. v. GMB Ceramics Ltd. (2002) 9 

SCC 489 at pp. 490-91, para 3 that Section 31(4) of the 1940 Act would 

not be applicable if it were found that an application was to be made 

before a court which had no jurisdiction. In Jatinder Nath v. Chopra Land


Developers (P) Ltd.,(2007) 11 SCC 453 at p. 460, para 9 and Rajasthan 

SEB v. Universal Petro Chemicals Ltd. (2009) 2 SCC 107 at p. 116, paras 

33 to 36 and Swastik Gases (P) Ltd. v. Indian Oil Corpn. Ltd. (2013) 9 SCC 

32 at pp. 47-48, para 32, it was held that where the agreement between 

the parties restricted jurisdiction to only one particular court, that court 

alone would have jurisdiction as neither Section 31(4) nor Section 42 

contains a non obstante clause wiping out a contrary agreement 

between the parties. It has thus been held that applications preferred to 

courts outside the exclusive court agreed to by parties would also be 

without jurisdiction.” 

10. Indisputably, the Arbitration proceeding has been conducted within 

the jurisdiction of Raichur court, which has jurisdiction as per Section 20 of the 

Code of Civil Procedure and is subordinate to the High Court of Karnataka which 

entertained Section 11 Application. Hence, the Award cannot be challenged 

before a Court subordinate to the High Court of Bombay. Exercise of jurisdiction 

608 


by such court shall be against the provision of Section 42 of the Act. 

11. We, after giving our anxious consideration to the matter, are of the 

view that the District Court at Latur and High Court of Bombay have committed 

error of law in entertaining the application under Section 34 of the Act and 

dismissing the revision petition. 

12. We, therefore, allow this appeal and set aside the order passed by 

the High Court. There shall be no order as to costs. 

Ss - Appeal Allowed 

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Present : Mr. Chief Justice of India H.L. Dattu, Mr. Justice S.A. Bobde and Mr. 

Justice Arun Mishra. 

KHENYAL – Appellant, 

Versus 

NEW INDIA ASSURANCE CO. LTD. And others – Respondents. 

Civil Appeal Nos. .4244-50 of 2015 [Arising out of SLP (C) No.14015/2010, 

14699-701, 14743 of 2010 and 14865/2010] 

(i) Motor Vehicle Act, 1988 (59 of 1988) – Liability – Joint tort 

feasors - Suffice it to clarify that even if all the joint tort feasors are 

impleaded and both the drivers have entered the witness box and the 

tribunal or the court is able to determine the extent of negligence of 

each of the driver that is for the purpose of inter se liability between 

the joint tort feasors but their liability would remain joint and several 

so as to satisfy the plaintiff/claimant. [Para 13] 

(ii) Motor Vehicle Act, 1988 (59 of 1988) - Claimant has right to 

recover the compensation from both or any one of the joint Tort 

feasors. [Para 16] 

609 


(iii) Contributory and Composite negligence - Difference 

between - In the case of contributory negligence, a person who has 

himself contributed to the extent cannot claim compensation for the 

injuries sustained by him in the accident to the extent of his own 

negligence; whereas in the case of composite negligence, a person who 

has suffered has not contributed to the accident but the outcome of 

combination of negligence of two or more other persons. 

[Para 14] 

(iv) Tort Feasors - Joint Tort Feasors - Remedies available to


one of the joint tort feasors from whom compensation has been 

recovered - When the other joint tort feasor has not been impleaded, 

obviously question of negligence of non-impleaded driver could not be 

decided, apportionment of composite negligence cannot be made in the 

absence of impleadment of joint tort feasor - It would be open to the 

impleaded joint tort feasors after making payment of compensation, so 

as to sue the other joint tort feasor and to recover from him the 

contribution to the extent of his negligence - In case when both the tort 

feasors are before the court/tribunal, if evidence is sufficient, it may 

determine the extent of their negligence so that one joint tort feasor 

can recover the amount so determined from the other joint tort feasor 

in the execution proceedings, whereas the claimant has right to recover 

the compensation from both or any one of them – Motor Vehicle Act . 

[Para 16] 

610 


Held, that what emerges from the aforesaid discussion is as follows : 

(i) In the case of composite negligence, plaintiff/claimant is 

entitled to sue both or any one of the joint tort feasors and to recover 

the entire compensation as liability of joint tort feasors is joint and 

several. 

(ii) In the case of composite negligence, apportionment of 

compensation between two tort feasors vis a vis the plaintiff/claimant is 

not permissible. He can recover at his option whole damages from any 

of them. 

(iii) In case all the joint tort feasors have been impleaded and 

evidence is sufficient, it is open to the court/tribunal to determine inter 

se extent of composite negligence of the drivers. However, 

determination of the extent of negligence between the joint tort feasors 

is only for the purpose of their inter se liability so that one may recover 

the sum from the other after making whole of payment to the 

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plaintiff/claimant to the extent it has satisfied the liability of the other. 

In case both of them have been impleaded and the apportionment/ 

extent of their negligence has been determined by the court/tribunal, in 

main case one joint tort feasor can recover the amount from the other 

in the execution proceedings. 

(iv) It would not be appropriate for the court/tribunal to 

determine the extent of composite negligence of the drivers of two 

vehicles in the absence of impleadment of other joint tort feasors. In 

such a case, impleaded joint tort feasor should be left, in case he so 

desires, to sue the other joint tort feasor in independent proceedings 

after passing of the decree or award. 

Cases referred to:- 

1. [1962 (1) QB 33], Performance Cars Ltd. v. Abraham. 

2. 1970 A.C. 467, Baker v. Willoughby. 

3. [2003] EWHC 2450 (QB), G.N.E.R. v. Hart. 

4. 1996 (2) All E.R. 836, Mortgage Express Ltd. v. Bowerman & Partners. 

5. [ILR (1939) Mad. 306], Palghat Coimbatore Transport Co. Ltd. v. Narayanan. 

6. [1991 (1) ACC 226], National Insurance Co. Ltd. v. P.A. Vergis & Ors. 

611 


7. [1989 2 ACC 483 = 1989 ACJ 472], United India Fire & Page 6 6 Genl. Ins. Co. Ltd. v. 

Varghese & Ors. 

8. [AIR 1985 Kar. 160], United India Fire & General Insurance Co. Ltd. v. U.E. Prasad & 

Ors. 

9. [AIR 1984 Mad. 358], Andhra Marine Exports (P) Ltd. & Anr. v. P. Radhakrishnan & 

Ors. 

10. [AIR 1983 All. 409], Smt. Kundan Bala Vora & Anr. v. State of U.P. 

11. [1989 2 ACC 116 (Del.) = 1989 ACJ 1118], Narain Devi & Ors. v. Swaran Singh & Ors. 

12. [AIR 2004 Kar. 149], Karnataka State Road Transport Corporation, Bangalore and 

etc. v. Arun alias Aravind and etc. etc. 

13. [ILR (1999) Kar. 403], Ganesh v. Syed Munned Ahamed & Ors. 

14. [1982 ACJ (Supp.) 414 (Guj.)], Hiraben Bhaga & Ors. v. Gujarat State Road Transport 

Corporation.


15. [2005 (1) MPLJ 372], Smt. Sushila Bhadoriya & Ors. v. M.P. State Road Transport 

Corpn. & Anr. 

16. [2008 (3) SCC 748], T.O. Anthony v. Karvarnan & Ors. *** 

17. [2008 (6) SCC 767], Andhra Pradesh State Road Transport Corpn. & Anr. v. K 

Hemlatha & Ors, ***. 

18. [2014 (3) SCC 590], Pawan Kumar & Anr. v. Harkishan Dass Mohan Lal & Ors. *** 

19. [2008 (13) SCC 198], Machindranath Kernath Kasar v. D.S. Mylarappa & Ors. *** 

20. [2004 (8) SCC 517], National Insurance Co. Ltd. v. Challa Bharathamma & Ors. *** 

21. [2004 (13) SCC 224], Oriental Insurance Co. Ltd. v. Nanjappan & Ors. *** 

JUDGMENT 


Arun Mishra, J. - (7 th May, 2015) - 


2. In the appeals, the main question which arises for consideration is, 

612 


whether it is open to a claimant to recover entire compensation from one of the 

joint tort feasors, particularly when in accident caused by composite negligence 

of drivers of trailor-truck and bus has been found to 2/3rd and 1/3rd extent 

respectively. 

3. In the instant cases the injuries were sustained by the claimants when 

two vehicles – bus and trailor-truck collided with each other. The New India 

Assurance Co. Ltd. is admittedly the insurer of the bus. However, on the basis of 

additional evidence adduced the High Court has come to the conclusion that the 

New India Assurance Co. Ltd. is not the insurer of the trailor-truck, hence is not 

liable to satisfy 2/3rd of the award. 

4. It is a case of composite negligence where injuries have been caused 

to the claimants by combined wrongful act of joint tort feasors. In a case of 

accident caused by negligence of joint tort feasors, all the persons who aid or 

counsel or direct or join in committal of a wrongful act, are liable. In such case, 

the liability is always joint and several. The extent of negligence of joint tort 

feasors in such a case is immaterial for satisfaction of the claim of the 

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plaintiff/claimant and need not be determined by the court. However, in case all 

the joint tort feasors are before the court, it may determine the extent of their 

liability for the purpose of adjusting inter-se equities between them at 

appropriate stage. The liability of each and every joint tort feasor vis a vis to 

plaintiff/claimant cannot be bifurcated as it is joint and several liability. In the 

case of composite negligence, apportionment of compensation between tort 

feasors for making payment to the plaintiff is not permissible as the 

plaintiff/claimant has the right to recover the entire amount from the easiest 

targets/solvent defendant. 

5. In Law of Torts, 2nd Edn., 1992 by Justice G.P. Singh, it has been 

observed that in composite negligence, apportionment of compensation 

between two tort feasors is not permissible. 

6. In Law of Torts by Winfield and Jolowicz, 17th Edn., 2006, the author 

has referred to Performance Cars Ltd. v. Abraham 1 [1962 (1) QB 33], Baker v. 

Willoughby 2 1970 A.C. 467, Rogers on Unification of Tort Law: Multiple 

Tortfeasors; G.N.E.R. v. Hart 3 [2003] EWHC 2450 (QB), Mortgage Express Ltd. v. 

Bowerman & Partners 4 1996 (2) All E.R. 836 etc. and observed thus : 

“WHERE two or more people by their independent breaches of 

duty to the claimant cause him to suffer distinct injuries, no special rules 

are required, for each tortfeasor is liable for the damage which he 

caused and only for that damage. Where, however, two or more 

breaches of duty by different persons cause the claimant to suffer a 

single, indivisible injury the position is more complicated. The law in 

such a case is that the claimant is entitled to sue all or any of them for 

the full amount of his loss, and each is said to be jointly and severally 

liable for it. If the claimant sues defendant A but not B and C, it is open 

to A to seek “contribution” from B and C in respect of their relative 

responsibility but this is a matter among A, B and C and does not affect 

the claimant. This means that special rules are necessary to deal with 

the possibilities of successive actions in respect of that loss and of 

claims for contribution or indemnity by one tortfeasor against the 

613 


614 



others. It may be greatly to the claimant’s advantage to show that he 

has suffered the same, indivisible harm at the hands of a number of 

defendants for he thereby avoids the risk, inherent in cases where there 

are different injuries, of finding that one defendant is insolvent (or 

uninsured) and being unable to execute judgment against him. Even 

where all participants are solvent, a system which enabled the claimant 

to sue each one only for a proportionate part of the damage would 

require him to launch multiple proceedings, some of which might 

involve complex issues of liability, causation and proof. As the law now 

stands, the claimant may simply launch proceedings against the “easiest 

target”. The same picture is not, of course, so attractive from the point 

of view of the solvent defendant, who may end up carrying full 

responsibility for a loss in the causing of which he played only a partial, 

even secondary role. Thus a solicitor may be liable in full for failing to 

point out to his client that there is reason to believe that a valuation on 

which the client proposes to lend is suspect, the valuer being insolvent; 

and an auditor will be likely to carry sole responsibility for negligent 

failure to discover fraud during a company audit. A sustained campaign 

against the rule of joint and several liability has been mounted in this 

country by certain professional bodies, who have argued instead for a 

regime of “proportionate liability” whereby, as against the claimant, and 

not merely among defendants as a group, each defendant would bear 

only his share of the liability. While it has not been suggested here that 

such a change should be extended to personal injury claims, this has 

occurred in some American jurisdictions, whether by statute or by 

judicial decision. However, an investigation of the issue by the Law 

Commission on behalf of the Dept of trade and Industry in 1996 led to 

the conclusion that the present law was preferable to the various forms 

of proportionate liability.” 

7. Pollock in Law of Torts, 15th Edn. has discussed the concept of 

composite negligence. The relevant portion at page 361 is extracted below : 

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“Another kind of question arises where a person is injured 

without any fault of his own, but by the combined effects of the 

negligence of two persons of whom the one is not responsible for the 

other. It has been supposed that A could avail himself, as against Z who 

has been injured without any want of due care on his own part, of the 

so-called contributory negligence of a third person B. It is true you were 

injured by my negligence, but it would not have happened if B had not 

been negligent also, therefore, you can not sue me, or at all events not 

apart from B. Recent authority is decidedly against allowing such a 

defence, and in one particular class of cases it has been emphatically 

disallowed. It must, however, be open to A to answer to Z: You were not 

injured by my negligence at all, but only and wholly by B's. It seems to 

be a question of fact rather than of law (as, within the usual limits of a 

jury's discretion, the question of proximate cause is in all ordinary cases) 

what respective degrees of connection, in kind and degree, between the 

damage suffered by Z and the independent negligent conduct of A and B 

will make it proper to say that Z was injured by the negligence of A 

alone, or of B alone, or of both A and B,. But if this last conclusion be 

arrived at, it is now quite clear that Z can sue both A and B. 

615 


At page 362 Author has observed as :- 

"The strict analysis of the proximate or immediate cause 

of the event: the inquiry who could last have prevented the 

mischief by the exercise of due care, is relevant only where the 

defendant says that the plaintiff suffered by his own negligence. 

Where negligent acts of two or more independent persons have 

between them caused damage to a third, the sufferer is not 

driven to apply any such analysis to find out whom he can sue. 

He is entitled- of course, within the limits set by the general 

rules as to remoteness of damage- to sue all or any of the 

negligent persons. It is no concern of his whether there is any 

duty of contribution or indemnity as between those persons,


though in any case he can not recover in the whole more than 

his whole damage." 

8. In Palghat Coimbatore Transport Co. Ltd. v. Narayanan, 5 [ILR (1939) 

Mad. 306], it has been held that where injury is caused by the wrongful act of 

two parties, the plaintiff is not bound to a strict analysis of the proximate or 

immediate cause of the event to find out whom he can sue. Subject to the rules 

as to remoteness of damage, the plaintiff is entitled to sue all or any of the 

negligent persons and it is no concern of his whether there is any duty of 

contribution or indemnity as between those persons, though in any case he 

cannot recover on the whole more than his whole damage. He has a right to 

recover the full amount of damages from any of the defendants. 

9. In National Insurance Co. Ltd. v. P.A. Vergis & Ors. 6 [1991 (1) ACC 

226], it has been observed that the case of composite negligence is one when 

accident occurs and resulting injuries and damages flow without any negligence 

on the part of the claimant but as a result of the negligence on the part of two 

616 


or more persons. In such a case, the Tribunal should pass a composite decree 

against owners of both vehicles. In United India Fire & Genl. Ins. Co. Ltd. v. 

Varghese & Ors. 7 [1989 2 ACC 483 : 1989 ACJ 472], it has been observed that in 

a case of composite negligence, the injured has option to proceed against all or 

any of the joint tortfeasors. Therefore, the insurer cannot take a defence that 

action is not sustainable as the other joint tort feasors have not been made 

parties. 

Similar is the view taken in United India Fire & General Insurance Co. 

Ltd. v. U.E. Prasad & Ors. 8 AIR 1985 Kar. 160. In Andhra Marine Exports (P) Ltd. 

& Anr. v. P. Radhakrishnan & Ors. 9 AIR 1984 Mad. 358, it has been held that 

every wrong doer is liable for whole damages in the case of composite 

negligence if it is otherwise made out. Similar is the view taken in Smt. Kundan 

Bala Vora & Anr. v. State of U.P. 10 AIR 1983 All. 409, where a collision between 

bus and car took place. Negligence of both the drivers was found. It was held 

that they would be jointly and severally liable to pay the whole damages. In 

Narain Devi & Ors. v. Swaran Singh & Ors. 11 1989 2 ACC 116 (Del.) : 1989 ACJ 

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1118 there was a case of composite negligence by drivers of two trucks involved 

in an accident which hit the tempo from two sides. The proportion in which the 

two vehicles misconducted or offended was not decided. It was held by the High 

Court that the Tribunal was right in holding the liability of tort feasors as joint 

and several. 

10. A Full Bench of the High Court of Karnataka at Bangalore in 

Karnataka State Road Transport Corporation, Bangalore and etc. v. Arun alias 

Aravind and etc. etc. 12 AIR 2004 Kar. 149 has affirmed the decision of another 

Full Bench of the same High Court in Ganesh v. Syed Munned Ahamed & Ors. 13 

ILR (1999) Kar. 403. A Division Bench referred the decision in Ganesh’s case 

(supra) on following two questions to the larger Bench : 

“1. If the proceedings are finally determined with an award 

made by the Tribunal and disposed of in some cases by the appeal 

against the same by the High Court, does the Tribunal not become 

functus officio for making any further proceedings like impleading the 

tort feasor or initiating action against him legally impermissible ? 

2. What is the remedy of a tort feasor who has satisfied the 

award, but who does not know the particulars of the vehicle which was 

responsible for the accident?” 

617 


11. A Full Bench in KSRTC v. Arun @ Aravind (supra) while answering 

aforesaid questions has observed that it was a case of composite negligence and 

the liability of tort feasors was joint and several. Hence, even if there is nonimpleadment 

of one of tort feasors, the claimant was entitled to full 

compensation quantified by the Tribunal. The Full Bench referred to the 

decision of a Division Bench of the Gujarat High Court in Hiraben Bhaga & Ors. v. 

Gujarat State Road Transport Corporation, 14 1982 ACJ (Supp.) 414 (Guj.) in 

which it has been laid down that it is entirely the choice of the claimant whether 

to implead both the joint tort feasors or either of them. On failure of the 

claimant to implead one of the joint tort feasors, contributory liability cannot be 

fastened upon the claimant to the extent of the negligence of non-impleaded


joint tort feasors. It is for the joint tort feasors made liable to pay compensation 

to take proceedings to settle the equities as against other joint tort feasors who 

had not been impleaded. It is open to the impleaded joint tort feasor to sue the 

other wrong doer after the decree or award is given to realize to the extent of 

others’ liability. It has been laid down that the law in Ganesh’s case (supra) has 

been rightly laid down and it is not necessary to implead all joint tort feasors 

and due to failure of impleadment of all joint tort feasors, compensation cannot 

be reduced to the extent of negligence of non-impleaded tort feasors. Nonimpleadment 

of one of the joint tort feasors is not a defence to reduce the 

compensation payable to the claimant. In our opinion, the law appears to have 

been correctly stated in KSRTC v. Arun @ Aravind (supra). 

12. A Full Bench of Madhya Pradesh High Court in Smt. Sushila 

Bhadoriya & Ors. v. M.P. State Road Transport Corpn. & Anr. 15 2005 (1) MPLJ 

372 has also laid down that in case of composite negligence, the liability is joint 

and several and it is open to implead the driver, owner and the insurer one of 

618 


the vehicles to recover the whole amount from one of the joint tort feasors. As 

to apportionment also, it has been observed that both the vehicles will be 

jointly and severally liable to pay the compensation. Once the negligence and 

compensation is determined, it is not permissible to apportion the 

compensation between the two as it is difficult to determine the apportionment 

in the absence of the drivers of both the vehicles appearing in the witness box. 

Therefore, there cannot be apportionment of the claim between the joint tort 

feasors. The relevant portion of decision of Full Bench is extracted hereunder : 

“When injury is caused as a result of negligence of two joint 

tort-feasors, claimant is not required to lay his finger on the exact 

person regarding his proportion of liability. In the absence of any 

evidence enabling the Court to distinguish the act of each joint tortfeasor, 

liability can be fastened on both the tort-feasors jointly and in 

case only one of the joint tort-feasors is impleaded as party, then entire 

liability can be fastened upon one of the joint tort-feasors. If both the 

joint tort-feasors are before the Court and there is sufficient evidence 

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regarding the act of each tort-feasors and it is possible for the Court to 

apportion the claim considering the exact nature of negligence by both 

the joint tort-feasors, it may apportion the claim. However, it is not 

necessary to apportion the claim when it is not possible to determine 

the ratio of negligence of joint tort-feasors. In such cases, joint tortfeasors 

will be jointly and severally liable to pay the compensation. 

On the same principle, in the case of joint tort- feasors where 

the liability is joint and several, it is the choice of the claimant to claim 

damages from the owner and driver and insurer of both the vehicles or 

any one of them. If claim is made against one of them, entire amount of 

compensation on account of injury or death can be imposed against the 

owner, driver and insurer of that vehicle as their liability is joint and 

several and the claimant can recover the amount from any one of them. 

There can not be apportionment of claim of each tort- feasors in the 

absence of proper and cogent evidence on record and it is not necessary 

to apportion the claim. 

To sum up, we hold as under:- 

(i) Owner, driver and insurer of one of the vehicles can be sued 

and it is not necessary to sue owner, driver and insurer of both the 

vehicles. Claimant may implead the owner, driver and insurer of both 

the vehicles or anyone of them. 

619 


(ii) There can not be apportionment of the liability of joint tortfeasors. 

In case both the joint tort-feasors are impleaded as party and if 

there is sufficient material on record, then the question of 

apportionment can be considered by the Claims Tribunal. However, on 

general principles of Jaw, there is no necessity to apportion the inter se 

liability of joint tort-feasors. 

Reference is answered accordingly. Appeal be placed before 

appropriate Bench for hearing.” 

13. In our opinion, the law laid down by the Madhya Pradesh High Court


in Smt. Sushila Bhadoriya (supra) is also in tune with the decisions of the High 

Court of Karnataka in Ganesh (supra) and Arun @ Aravind (supra). However, at 

the same time, suffice it to clarify that even if all the joint tort feasors are 

impleaded and both the drivers have entered the witness box and the tribunal 

or the court is able to determine the extent of negligence of each of the driver 

that is for the purpose of inter se liability between the joint tort feasors but 

their liability would remain joint and several so as to satisfy the 

plaintiff/claimant. 

14. There is a difference between contributory and composite 

620 


negligence. In the case of contributory negligence, a person who has himself 

contributed to the extent cannot claim compensation for the injuries sustained 

by him in the accident to the extent of his own negligence; whereas in the case 

of composite negligence, a person who has suffered has not contributed to the 

accident but the outcome of combination of negligence of two or more other 

persons. This Court in T.O. Anthony v. Karvarnan & Ors. *** 2008 (3) SCC 748 

has held that in case of contributory negligence, injured need not establish the 

extent of responsibility of each wrong doer separately, nor is it necessary for the 

court to determine the extent of liability of each wrong doer separately. It is 

only in the case of contributory negligence that the injured himself has 

contributed by his negligence in the accident. Extent of his negligence is 

required to be determined as damages recoverable by him in respect of the 

injuries have to be reduced in proportion to his contributory negligence. The 

relevant portion is extracted hereunder : 

“6. 'Composite negligence' refers to the negligence on the part 

of two or more persons. Where a person is injured as a result of 

negligence on the part of two or more wrong doers, it is said that the 

person was injured on account of the composite negligence of those 

wrong-doers. In such a case, each wrong doer, is jointly and severally 

liable to the injured for payment of the entire damages and the injured 

person has the choice of proceeding against all or any of them. In such a 

case, the injured need not establish the extent of responsibility of each 

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wrong-doer separately, nor is it necessary for the court to determine 

the extent of liability of each wrong-doer separately. On the other hand 

where a person suffers injury, partly due to the negligence on the part 

of another person or persons, and partly as a result of his own 

negligence, then the negligence of the part of the injured which 

contributed to the accident is referred to as his contributory negligence. 

Where the injured is guilty of some negligence, his claim for damages is 

not defeated merely by reason of the negligence on his part but the 

damages recoverable by him in respect of the injuries stands reduced in 

proportion to his contributory negligence. 

7. Therefore, when two vehicles are involved in an accident, and 

one of the drivers claims compensation from the other driver alleging 

negligence, and the other driver denies negligence or claims that the 

injured claimant himself was negligent, then it becomes necessary to 

consider whether the injured claimant was negligent and if so, whether 

he was solely or partly responsible for the accident and the extent of his 

responsibility, that is his contributory negligence. Therefore where the 

injured is himself partly liable, the principle of 'composite negligence' 

will not apply nor can there be an automatic inference that the 

negligence was 50:50 as has been assumed in this case. The Tribunal 

ought to have examined the extent of contributory negligence of the 

appellant and thereby avoided confusion between composite 

negligence and contributory negligence. The High Court has failed to 

correct the said error.” 

621 


15. The decision in T.O. Anthony v. Karvarnan & Ors. (supra) has been 

relied upon in Andhra Pradesh State Road Transport Corpn. & Anr. v. K 

Hemlatha & Ors, *** [2008 (6) SCC 767]. 

16. In Pawan Kumar & Anr. v. Harkishan Dass Mohan Lal & Ors. *** 

[2014 (3) SCC 590], the decisions in T.O. Anthony (supra) and Hemlatha (supra) 

have been affirmed, and this Court has laid down that where plaintiff/claimant 

himself is found to be negligent jointly and severally, liability cannot arise and


the plaintiff’s claim to the extent of his own negligence, as may be quantified, 

will have to be severed. He is entitled to damages not attributable to his own 

negligence. The law/distinction with respect to contributory as well as 

composite negligence has been considered by this Court in Machindranath 

Kernath Kasar v. D.S. Mylarappa & Ors. *** [2008 (13) SCC 198] and also as to 

joint tort feasors. This Court has referred to Charlesworth & Percy on negligence 

as to cause of action in regard to joint tort feasors thus: 

“42. Joint tortfeasors, as per 10th Edn. of Charlesworth & Percy 

on Negligence, have been described as under : 

622 


Wrongdoers are deemed to be joint tortfeasors, within the 

meaning of the rule, where the cause of action against each of them is 

the same, namely, that the same evidence would support an action 

against them, individually….. Accordingly, they will be jointly liable for a 

tort which they both commit or for which they are responsible because 

the law imputes the commission of the same wrongful act to two or 

more persons at the same time. This occurs in cases of (a) agency; (b) 

vicarious liability; and (c) where a tort is committed in the course of a 

joint act, whilst pursuing a common purpose agreed between them.” 

The question also arises as to the remedies available to one of the joint 

tort feasors from whom compensation has been recovered. When the other 

joint tort feasor has not been impleaded, obviously question of negligence of 

non-impleaded driver could not be decided apportionment of composite 

negligence cannot be made in the absence of impleadment of joint tort feasor. 

Thus, it would be open to the impleaded joint tort feasors after making payment 

of compensation, so as to sue the other joint tort feasor and to recover from 

him the contribution to the extent of his negligence. However, in case when 

both the tort feasors are before the court/tribunal, if evidence is sufficient, it 

may determine the extent of their negligence so that one joint tort feasor can 

recover the amount so determined from the other joint tort feasor in the 

execution proceedings, whereas the claimant has right to recover the 

compensation from both or any one of them. This Court in National Insurance 

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Co. Ltd. v. Challa Bharathamma & Ors. *** [2004 (8) SCC 517] with respect to 

mode of recovery has laid down thus : 

“13. The residual question is what would be the appropriate 

direction. Considering the beneficial object of the Act, it would be 

proper for the insurer to satisfy the award, though in law it has no 

liability. In some cases the insurer has been given the option and liberty 

to recover the amount from the insured. For the purpose of recovering 

the amount paid from the owner, the insurer shall not be required to 

file a suit. It may initiate a proceeding before the concerned Executive 

Court as if the dispute between the insurer and the owner was the 

subject matter of determination before the Tribunal and the issue is 

decided against the owner and in favour of the insurer. Before release 

of the amount to the claimants, owner of the offending vehicle shall 

furnish security for the entire amount which the insurer will pay to the 

claimants. The offending vehicle shall be attached, as a part of the 

security. If necessity arises the Executive Court shall take assistance of 

the concerned Regional Transport Authority. The Executing Court shall 

pass appropriate orders in accordance with law as to the manner in 

which the owner of the vehicle shall make payment to the insurer. In 

case there is any default it shall be open to the Executing Court to direct 

realization by disposal of the securities to be furnished or from any 

other property or properties of the owner of the vehicle i.e. the insured. 

In the instant case considering the quantum involved we leave it to the 

discretion of the insurer to decide whether it would take steps for 

recovery of the amount from the insured.” 

623 


17. In Oriental Insurance Co. Ltd. v. Nanjappan & Ors. *** 2004 (13) 

SCC 224 also, this Court has laid down thus : 

“8. Therefore, while setting aside the judgment of the High 

court we direct in terms of what has been stated in Baljit Kaur's case 

[2004 (2) SCC 1] that the insurer shall pay the quantum of compensation 

fixed by the Tribunal, about which there was no dispute raised, to the

624 



respondents-claimants within three months from today. The for the 

purpose of recovering the same from the insured, the insurer shall not 

be required to file a suit. It may initiate a proceeding before the 

concerned Executing Court as if the dispute between the insurer and 

the owner was the subject matter of determination before the Tribunal 

and the issue is decided against the owner and in favour of the insurer. 

Before release of the amount to the insured, owner of the vehicle shall 

be issued a notice and he shall be required to furnish security for the 

entire amount which the insurer will pay to the claimants. The offending 

vehicle shall be attached, as a part of the security. If necessity arises the 

Executing Court shall take assistance of the concerned Regional 

Transport authority. The Executing Court shall pass appropriate orders 

in accordance with law as to the manner in which the insured, owner of 

the vehicle shall make payment to the insurer. In case there is any 

default it shall be open to the Executing Court to direct realization by 

disposal of the securities to be furnished or from any other property or 

properties of the owner of the vehicle, the insured. The appeal is 

disposed of in the aforesaid terms, with no order as to costs.” 

18. This Court in Challa Bharathamma & Nanjappan (supra) has dealt 

with the breach of policy conditions by the owner when the insurer was asked 

to pay the compensation fixed by the tribunal and the right to recover the same 

was given to the insurer in the executing court concerned if the dispute 

between the insurer and the owner was the subject-matter of determination for 

the tribunal and the issue has been decided in favour of the insured. The same 

analogy can be applied to the instant cases as the liability of the joint tort feasor 

is joint and several. In the instant case, there is determination of inter se liability 

of composite negligence to the extent of negligence of 2/3rd and 1/3rd of 

respective drivers. Thus, the vehicle – trailor-truck which was not insured with 

the insurer, was negligent to the extent of 2/3rd. It would be open to the 

insurer being insurer of the bus after making payment to claimant to recover 

from the owner of the trailor-truck the amount to the aforesaid extent in the 

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execution proceedings. Had there been no determination of the inter se liability 

for want of evidence or other joint tort feasor had not been impleaded, it was 

not open to settle such a dispute and to recover the amount in execution 

proceedings but the remedy would be to file another suit or appropriate 

proceedings in accordance with law. 

What emerges from the aforesaid discussion is as follows : 

(i) In the case of composite negligence, plaintiff/claimant is 

entitled to sue both or any one of the joint tort feasors and to recover 

the entire compensation as liability of joint tort feasors is joint and 

several. 


compensation between two tort feasors vis a vis the plaintiff/claimant is 

not permissible. He can recover at his option whole damages from any 

of them. 

(iii) In case all the joint tort feasors have been impleaded and 

evidence is sufficient, it is open to the court/tribunal to determine inter 

se extent of composite negligence of the drivers. However, 

determination of the extent of negligence between the joint tort feasors 

is only for the purpose of their inter se liability so that one may recover 

the sum from the other after making whole of payment to the 

plaintiff/claimant to the extent it has satisfied the liability of the other. 

In case both of them have been impleaded and the apportionment/ 

extent of their negligence has been determined by the court/tribunal, in 

main case one joint tort feasor can recover the amount from the other 

in the execution proceedings. 

625 



determine the extent of composite negligence of the drivers of two 

vehicles in the absence of impleadment of other joint tort feasors. In 

such a case, impleaded joint tort feasor should be left, in case he so 

desires, to sue the other joint tort feasor in independent proceedings


after passing of the decree or award. 

19. Resultantly, the appeals are allowed. The judgment and order 

passed by the High Court is hereby set aside. Parties to bear the costs as 

incurred. 

S.S. - Appeal allowed. 

626 


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Present : Justice M.Y. Eqbal and Justice S.A. Bobde 

BILASPUR RAIPUR KSHETRIYA GRAMIN BANK AND ANOTHER …..APPELLANTS, 

VERSUS 

MADANLAL TANDON …..RESPONDENT. 

Civil Appeal No. 4467 of 2015 (Arising out of SLP(C)No. 22488 of 2012) 

Service Matter - Departmental inquiry – Documents not 

provided - No documents were supplied to the respondent along with 

the charge-sheet on the basis of which charges were framed - Some of 

the documents were given during departmental inquiry, but relevant 

documents on the basis of which findings were recorded were not 

made available to the respondent - It further appears that the list of 

documents and witnesses were also not supplied and some of the 

documents were produced during the course of inquiry - Show cause 

notice was served along with 17 charges, but all the documents were 

not supplied to the respondent - Order of punishment cannot be 

sustained in law - Respondent was out of employment since 1991, a 

lump sum payment of Rs.5,00,000/- towards the salary would meet the 

ends of justice . [Para 8, 10] 

627 


JUDGMENT 

M. Y. EQBAL, J. – (May 15, 2015) - Leave granted. 

2. This appeal by special leave is directed against the judgment and 

order dated 17th February, 2012, whereby Division Bench of the High Court of 

Chhattisgarh in the writ appeal preferred by the appellants upheld the order of 

the learned Single Judge and directed payment towards respondent’s claim of


salary up to Rs.5,00,000/- with all consequential benefits. 

3. The factual matrix of the case is that the respondent was working as a 

Field Supervisor in the appellant Bank since 1981. In February, 1984, a chargesheet 

was issued to him for having committed misconduct and after a 

departmental inquiry, an order dated 5.7.1984 was passed by the Disciplinary 

Authority imposing punishment of stoppage of his two annual increments. 

Thereafter a second charge-sheet was issued to the respondent in November, 

1987 alleging that the respondent had committed several financial irregularities 

in various loan cases. An inquiry was conducted, wherein fourteen charges were 

found proved against the respondent and three charges were not found proved. 

Consequently, the punishment of removal from service was inflicted against the 

respondent on 1.10.1991. Respondent preferred an appeal before the Board of 

Directors of the appellant Bank, but the same was dismissed. 

4. The respondent, therefore, moved the High Court by way of writ 

petition, inter alia contending that both the charge-sheets being identical, the 

628 


second inquiry was not competent. It was also contended that along with the 

second charge-sheet, neither the list of documents nor the documents sought 

to be relied upon were supplied. It was also contended by the respondent-writ 

petitioner that appropriate opportunity was not afforded to him to have 

inspection of the relevant documents and as such the respondent was not in a 

position to reply the said show cause notice effectively and to defend him in the 

inquiry. Learned Single Judge of the High Court rejected his first contention and 

held that the charges were not identical and, therefore, the second inquiry was 

competent. However, it was held that along with the charge-sheet and 

imputation of charges, there was no list of documents and list of witnesses were 

also not supplied as such the respondent was not afforded an opportunity to 

put forward his case in response to show cause notice along with the chargesheet. 

Observing that the object of rules of natural justice is to ensure that a 

government servant is treated fairly in proceedings which may culminate in 

imposition of punishment including dismissal/removal from service, learned 

Single Judge of the High Court quashed the orders of removal passed by the 

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appellant and allowed the writ petition of the respondent with all consequential 

benefits. 

5. Aggrieved by aforesaid decision, the appellants preferred writ appeal, 

wherein Division Bench of the High Court, after perusing the record, found that 

although the show cause notice was served along with 17 charges, but no 

documents were supplied along with the show cause to the respondent. Even 

the list of documents sought to be relied during the inquiry was not supplied 

along with the show cause. The Division Bench opined that it is trite law that 

when a delinquent employee is facing disciplinary proceeding, he is entitled to 

be afforded with a reasonable opportunity to meet the charges against him in 

an effective manner. If the copies of the documents are not supplied to the 

concerned employee, it would be difficult for him to prepare his defence and to 

cross-examine the witnesses and point out the inconsistencies with a view to 

show that the allegations are false or baseless. 

6. The Division Bench of the High Court further observed that in the 

instant case neither the list of witnesses nor the list of documents was supplied 

to the respondent along with the charge-sheet. Though during the course of 

inquiry some documents were supplied to him but those documents, on which 

the reliance was placed by the Inquiry Officer for holding various charges 

proved, were not supplied to the respondent. The High Court further observed 

that the respondent is out of employment since 01.10.1991 and his claim for 

arrears of salary, as stated by counsel for both the parties, would be more than 

45-50 lakhs. The Bank’s money is public money and a huge amount cannot be 

paid to anyone for doing no work. The principle of “no work no pay” has been 

evolved in view of the public interest that an employee who does not discharge 

his duty is not entitled to arrears of salary at the cost of public exchequer. By 

way of impugned judgment, the High Court, therefore, concluded that in the 

facts and circumstances of the case a lump-sum payment of Rs. 5,00,000/- 

towards the claim of salary, would be just and proper in this matter. The 

respondent was also held to be entitled to all other consequential benefits. 

629 


7. Hence, the present appeal by special leave by the appellant Bank and


its Board of Directors. It is worth to mention here that the respondent has not 

come to this Court against the impugned judgment passed by the High Court. 

8. We have heard Mr. Akshat Shrivastava, learned counsel for the 

appellants and Mr. T.V.S. Raghavendra Sreyas, learned counsel for the 

respondent. We have also perused the impugned order passed by the Division 

Bench of the High Court. The only controversy that falls for our consideration is 

as to whether the documents, which were the basis of the charges leveled 

against the respondent, were supplied to the respondent or not? 

9. Indisputably, no documents were supplied to the respondent along 

with the charge-sheet on the basis of which charges were framed. Some of the 

documents were given during departmental inquiry, but relevant documents on 

the basis of which findings were recorded were not made available to the 

respondent. It further appears that the list of documents and witnesses were 

also not supplied and some of the documents were produced during the course 

of inquiry. 

630 


10. Admittedly, show cause notice was served along with 17 charges, 

but all the documents were not supplied to the respondent. A perusal of the 

impugned order will show that when the Division Bench, during the course of 

arguments, asked the learned counsel appearing for the appellants whether 

documents viz. P-21, P-25, P-23, P-19, P-30, P-31 & P-32 were supplied to the 

respondent, on the basis of which various charges have been held to be proved, 

learned counsel was not able to demonstrate that the above documents were 

supplied to the respondent even during the course of inquiry. The Division 

Bench then following a catena of decisions of this Court came to the conclusion 

that the order of punishment cannot be sustained in law. However, taking into 

consideration the fact that the respondent was out of employment since 1991, a 

lump sum payment of Rs.5,00,000/- towards the salary would meet the ends of 

justice. 

11. After giving our anxious consideration, we do not find any reason to 

differ with the finding recorded by the learned Single Judge and also the Division 

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Bench of the High Court in writ appeal. Therefore, this civil appeal is dismissed. 

SS - Appeal Dismissed. 

631 





Present : Justice T.S. Thakur and Justice Rohinton Fali Nariman 

RAMANLAL AND ANR. - Appellants, 

VERSUS 

STATE OF HARYANA - Respondent. 

Criminal Appeal No.2279 Of 2009 With Criminal Appeal No.1351 Of 2010 

(i) Indian Penal Code, 1860 (XLV of 1860) - S. 149 - Provisions of 

Section 149 of the IPC are no longer available to the prosecution for 

convicting the appellants whose number is reduced to 4 consequent 

upon the acquittal of the remaining accused persons - It is a case which, 

in our opinion, falls more appropriately in situation three where the 

prosecution had named all those constituting the unlawful assembly, 

but, only four of those named were eventually convicted, thereby 

632 


reducing the number to less than five - There is no evidence to suggest 

that any one, apart from the persons named in the charge-sheet were 

members of the unlawful assembly, but, were either not available or 

remained unidentified - Such being the position, the conviction of the 

appellants with the help of Section 149 of the IPC does not appear to be 

legally sustainable. [Para 12] 

(ii) Indian Penal Code, 1860 (XLV of 1860) - S. 300 Exception 4 - 

Keeping in view the nature of the injury, the vital part of the body on 

which the same was inflicted and the weapon used by the accused, and 

the medical evidence, that the said injury was sufficient in the ordinary 

course to cause death, culpable homicide would tantamount to murder 

but for the application of Exception 4 to Section 300 - The circumstances 

of the case leave no manner of doubt that the incident was without any 

pre-meditation and a sudden fight upon a sudden quarrel - The injuries 

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upon the deceased were inflicted in the heat of passion and without the 

appellant taking any undue advantage or acting in a cruel or unusual 

manner - The fact situation of the case, therefore, attracts Exception 4 

especially when in terms of explanation to Exception 4, it is immaterial 

in such cases which party offers the provocation or commits the first 

assault - Offence committed by the author of the injury is not murder 

but culpable homicide not amounting to murder punishable under 

Section 304 of the IPC. [Para 16] 

(ii) Indian Penal Code, 1860 (XLV of 1860) - Section 304 Part I - 

Act committed was with intention to cause death or of causing such 

bodily injury as was likely to cause death - That even when the act may 

not have been committed with the intention of causing death, the same 

was intended to cause such bodily injury as was likely to cause death, 

within the meaning of Section 304 Part I. [Para 17] 

(iv) Indian Penal Code, 1860 (XLV of 1860) - S. 300 Exception 4 - 

In terms of explanation to Exception 4, it is immaterial in such cases 

which party offers the provocation or commits the first assault. 

[Para 16] 

633 



1. AIR 1963 SC 174, Mohan Singh v. State of Punjab *** 

2. (1991)2 SCC 532, Nagamalleswara Rao (K) and Ors. v. State of Andhra 

Pradesh *** 

3. AIR 1958 SC 465, Virsa Singh v. State of Punjab *** 

JUDGMENT 

T.S. Thakur, J. – (May 15, 2015) 

1. These two appeals by special leave assail a common judgment and 

order dated 7th May, 2009 passed by a Division Bench of the High Court of 

Punjab and Haryana at Chandigarh whereby Criminal Appeal No.631 of 2000 

filed by the appellants challenging their conviction for offences punishable


under Sections 323, 325, 302 read with Section 149 of the IPC has been 

dismissed and the sentence of life imprisonment awarded to each one of them 

by the trial Court affirmed. 

634 


2. The prosecution case in a nutshell is that on 2nd July, 1998 at about 

10 O’ clock in the morning Ved Pal and his brother Gopal, now deceased, were 

watering their fields in village Doongriwala, district Faridabad in the State of 

Haryana. At about 12.00 noon Jai Pal, son of Nihar Singh entered their field in 

which the two brothers had grown their paddy crop. Deceased-Gopal appears to 

have objected to Jai Pal’s trespass into the paddy crop to which objection Jai Pal 

gave an abusive reply insisting that he would pass through the paddy crop 

regardless of Gopal’s objection. While this altercation was going on between 

deceased-Gopal and Jai Pal, 10 to 12 persons appeared on the spot armed with 

lathis, pharsas and ballams. They included Har Chand, Digamber and Bhagat 

Singh sons of Jairam; Rajbir, Lal and Bhola sons of Har Chand; Jagdish son of 

Girraj; Rattan Lal son of Jagdish; Naresh and Rajkumar sons of Ramesh all Jats 

by caste and residents of village Doongriwala. They are alleged to have given a 

lalkara to eliminate Ved Pal and deceased Gopal and assaulted both of them 

causing several injuries including an injury on the head of the deceased-Gopal 

that felled him to the ground. The injured were removed to the hospital at 

Hodal for treatment where Ved Pal made a statement which was made before 

ASI Narain Singh that led to the registration of a case against the persons 

aforementioned for offences punishable under Sections 148, 149, 323 and 307 

of the IPC. With Gopal succumbing to the injuries in the Escorts Hospital at 

Faridabad, the offence under Section 307 of the IPC was converted into one of 

murder punishable under Section 302 of the IPC. Investigation by the police led 

to the arrest of accused Har Chand, Digambar and Jagdish on 3rd July, 1998. 

Several recoveries from the accused persons are said to have been made in the 

course of investigation which culminated in filing of a charge-sheet against ten 

persons in all excluding Bhagat Singh son of Jai Ram who even though named in 

the FIR, was found innocent while Jai Pal being a juvenile was referred to the 

Juvenile Court at Faridabad. The net result was that nine out of those named in 

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the FIR only were eventually committed to face the trial before the Additional 

Sessions Judge at Faridabad for offences under Sections 148, 323, 325 and 302 

read with Section 149 of the IPC. At the trial, Bhagat Singh son of Jai Ram was 

also added as an accused under Section 319 of the Cr.P.C, taking the number of 

those accused to face the trial to ten in all. 

3. In support of its case, the prosecution examined as many as ten 

witnesses. These included the first informant Ved Pal examined as PW-1; 

Prakash examined as PW-2; Kishan Singh examined as PW-3; Satbir Singh 

examined as PW-4 and Drs. HK Mishra, VR Gupta and SP Jayant examined as 

PWs 5, 6 and 10 respectively. The remaining witnesses happened to be police 

officials including the investigating officer. The accused did not lead any 

evidence in defence. In their statements recorded under Section 313 of the 

Cr.P.C., they alleged false implication. It was further alleged that Jai Prakash and 

Har Chand alone were present on the spot at the time of the incident and that 

the remaining nine accused persons had been falsely implicated. Their further 

case was that on the fateful day Jai Pal was watering his fields when deceased 

Gopal tried to commit sodomy upon him. Har Chand noticed this attempt of the 

deceased and objected to it, whereupon deceased Gopal inflicted a lathi blow 

upon the person of Har Chand. Har Chand, in exercise of the right of private 

defence and with a view to rescuing Jai Pal, inflicted a lathi blow on deceased 

Gopal, while Jai Pal caused injuries to Ved Pal in the incident. 

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4. The Trial Court appraised the evidence adduced by the prosecution 

and came to the conclusion that the depositions of PW1-Ved Pal and PW2- 

Prakash were completely reliable. The Trial Court rejected the contention urged 

on behalf of the accused persons that the delay in the lodging of the FIR was not 

satisfactorily explained or that the prosecution ought to suffer on account of its 

failure to explain the injuries sustained by the accused persons. The Trial Court 

also rejected the contention that there was no motive for the commission of the 

offence or that there was any contradiction between the medical and ocular 

evidence led in the case. The Trial Court on that reasoning sentenced all the ten 

accused persons arraigned before it to undergo imprisonment for life under


Section 302 of the IPC and a fine of Rs.5,000/- each. In default of payment of 

fine, they were directed to undergo further rigorous imprisonment for a period 

of one year each. They were also sentenced to under rigorous imprisonment for 

a period of one year and a fine of Rs.1,000/- with a default sentence of three 

months each under Section 325 of the IPC. For the offences punishable under 

Sections 323 and 148 of the IPC the accused were sentenced to pay a fine of 

Rs.1,000/- each. No default sentence in regard to those offences was, however, 

awarded. 

5. Aggrieved by the conviction and sentence awarded to them, the 

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appellants filed Criminal Appeal No.631 of 2000 before the High Court of Punjab 

and Haryana at Chandigarh, which was disposed of along with Criminal Revision 

No.345 of 2001 filed by Ved Pal-the first informant by a common judgment and 

order impugned in these appeals. The High Court upon a reappraisal of the 

evidence adduced at the trial came to the conclusion that the appeal filed by 

Digamber, Rajbir, Lala, Bhola, Jagdish and Raj Kapoor deserved to be allowed, 

while the same deserved dismissal qua Har Chand, Raman Lal, Naresh and 

Bhagat Singh. That is precisely the backdrop in which Har Chand, Raman Lal, 

Naresh and Bhagat Singh are before us in these appeals by special leave 

assailing their conviction and the sentence awarded to them. 

6. On behalf of the appellants it was argued that the courts below had 

fallen in error in convicting the appellants by placing an implicit reliance upon 

the depositions of PW1-Ved Pal and PW2-Prakash and in the process, ignoring 

the defence version about the genesis of the incident. It was contended that the 

incident had occurred on account of an attempted act of sodomy by the 

deceased upon Jaipal to which the appellant-Har Chand had objected resulting 

in lathi blows being inflicted by the two sides rivals to each other. The argument 

needs notice only to be rejected. We say so because there is nothing in the 

evidence to probablise the defence version that the incident in question had 

taken place on account of an attempt on the part of Gopal to sodomise Jaipal. 

There are no tell tale signs of any such attempt having been made. Not only 

that, the defence has not taken care to examine Jaipal the alleged victim of the 

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attempted act as a witness to prove that any such attempt was at all made by 

the deceased-Gopal. We have, therefore, no hesitation in rejecting the 

argument that the defence version was a probable version which could not be 

given credence. The courts below have, in our opinion, rightly rejected the 

defence version for which there was no factual foundation whatsoever in the 

evidence. 

7. It was next argued by learned counsel for the appellants that with the 

acquittal of 6 out of 10 accused persons, the charge that the appellants 

constituted an unlawful assembly ought to fail and as an inevitable consequence 

thereof, the conviction of the appellants for murder with the help of Section 149 

of the IPC rendered unsustainable. It was contended that acquittal of other 

accused persons alleged to be members of the unlawful assembly, implied that 

the said accused had been falsely implicated in the case or that they, even if 

physically present on the spot as alleged, did not share the common object of 

the convicted accused. 

8. Section 141 of the IPC defines unlawful assembly as under: 

“141. Unlawful assembly.—An assembly of five or more persons 

is designated an “unlawful assembly”, if the common object of the 

persons composing that assembly is— 

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(First) — To overawe by criminal force, or show of criminal force, 

1[the Central or any State Government or Parliament or the Legislature 

of any State], or any public servant in the exercise of the lawful power of 

such public servant; or 

(Second) — To resist the execution of any law, or of any legal 

process; or 

(Third) — To commit any mischief or criminal trespass, or other 

offence; or 

(Fourth) — By means of criminal force, or show of criminal force, 

to any person, to take or obtain possession of any property, or to deprive 

any person of the enjoyment of a right of way, or of the use of water or


other incorporeal right of which he is in possession or enjoyment, or to 

enforce any right or supposed right; or 

(Fifth) — By means of criminal force, or show of criminal force, 

to compel any person to do what he is not legally bound to do, or to 

omit to do what he is legally entitled to do. Explanation.—An assembly 

which was not unlawful when it assembled, may subsequently become 

an unlawful assembly.” 

9. In terms of Section 149 of the IPC every member of an unlawful 

assembly is guilty of the offence committed by any other member of the 

assembly in prosecution of the common object. Section 149 of the IPC reads: 

“149. Every member of unlawful assembly guilty of offence 

committed in prosecution of common object.—If an offence is 

committed by any member of an unlawful assembly in prosecution of 

the common object of that assembly, or such as the members of that 

assembly knew to be likely to be committed in prosecution of that 

638 


object, every person who, at the time of the committing of that offence, 

is a member of the same assembly, is guilty of that offence.” 

10. The question is whether acquittal of some of the accused persons 

reducing the number of those convicted to less than 5 has the effect of taking 

the case out of the purview of Section 149 (supra). A Constitution Bench of this 

Court has in Mohan Singh v. State of Punjab *** 1 AIR 1963 SC 174 , examined 

that question and authoritatively answered the same. The prosecution story in 

that case also was that on the date of the incident 5 accused persons composed 

an unlawful assembly and that in prosecution of the common object of the said 

assembly, they committed rioting while armed with deadly weapons. The 

prosecution alleged that in pursuance of the common object of the assembly 

Gurdip Singh was murdered and injuries caused to Harnam Singh. The 

prosecution alleged that although the fatal injury was inflicted by only one of 

the accused persons on Gurudip Singh’s head since the same was in prosecution 

of the common object of unlawful assembly, all those who were members of 

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the assembly were guilty under Section 302 read with Section 149 of the IPC. On 

behalf of the defence it was argued that the constructive criminal liability under 

Section 149 did not arise once two of the accused who were alleged to be 

members of that assembly were acquitted thereby reducing the number 

comprising the assembly to three persons only. This Court while dealing with 

that contention conceived of three possible situations and the legal position 

applicable to each one of such situations. This Court observed: 

“8. The true legal position in regard to the essential ingredients 

of an offence specified by s. 149 are not in doubt. Section 149 prescribes 

for vicarious or constructive criminal liability for all members of an 

unlawful assembly where an offence is committed by any member of 

such an unlawful assembly in prosecution of the common object of that 

assembly or such as the members of that assembly knew to be likely to 

be committed in prosecution of that object. It would thus be noticed that 

one of the essential ingredients of section 149 is that the offence must 

have been committed by any member of an unlawful assembly, and 

S.141 makes it clear that it is only where five or more persons 

constituted an assembly that an unlawful assembly is born, provided, of 

course; the other requirements of the said section as to the common 

object of the persons composing that assembly are satisfied. In other 

words, it is an essential condition of an unlawful assembly that its 

membership must be five or more. The argument, therefore, is that as 

soon as the two Piara Singhs were acquitted, the membership of the 

assembly was reduced from five to three and that made S. 141 

inapplicable which inevitably leads to the result that S. 149 cannot be 

invoked against the appellants. In our opinion, on the facts of this 

case, this argument has to be upheld. We have already observed that 

the point raised by the appellants has to be dealt with on the 

assumption that only five persons were named in the charge as persons 

composing the unlawful assembly and evidence led in the course of the 

trial is confined only to the said five persons. If that be so, as soon as 

639 



two of the five named persons are acquitted, the assembly must be 

deemed to have been composed of only three persons and that clearly 

cannot be regarded as an unlawful assembly.” 

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9. In dealing with the question as to the applicability of S.149 in 

such cases it is necessary to bear in mind the several categories of cases 

which come before the Criminal Courts for their decision. If five or more 

persons are named in the charge as composing an unlawful assembly 

and evidence adduced by the prosecution proves that charge against all 

of them, that is a very clear case where S.149 can be invoked. It is, 

however, not necessary that five or more persons must be convicted 

before a charge under S.149 can be successfully brought home to any 

members of the unlawful assembly. It may be that less than five persons 

may be charged and convicted under S.302/149 if the charge is that the 

persons before the Court, along with others named constituted an 

unlawful assembly; the other persons so named may not be available for 

trial along with their companions for the reason, for instance, that they 

have absconded. In such a case, the fact that less than five persons are 

before the Court does not make section 149 inapplicable for the simple 

reason that both the charge and the evidence seek to prove that the 

persons before the court and others number more than five in all and as 

Such, they together constitute an unlawful assembly. Therefore, in order 

to bring home a charge under S.149 it is not necessary that five or more 

persons must necessarily be brought before the court and convicted. 

Similarly, less than five persons may be charged under s. 149 if the 

prosecution case is that the persons before the Court and others 

numbering in all more than five composed an unlawful assembly, these 

others being persons not identified and so not named. In such a case, if 

evidence shows that the persons before the Court along with 

unidentified and un-named assailants or members composed an 

unlawful assembly, those before the Court, can be convicted under 

section 149 though the unnamed. and unidentified persons are not 

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traced and charged. Cases may also arise where in the charge, the 

prosecution names five or more persons and alleges that they 

constituted an unlawful assembly. In such cases, if both the charge and 

the evidence are confined to the persons named in the charge and out of 

the persons so named two or more are acquitted leaving, before the 

court less than five persons to be tried, then s. 149 cannot be invoked. 

Even in such cases, it is possible that though the charge names five or 

more persons is composing an unlawful assembly, evidence may 

nevertheless show that the unlawful assembly consisted of some other 

persons as well who were not identified and so not named. In such 

cases, either the trial court or even the High Court in appeal may be able 

to come to the conclusion that the acquittal of some of the persons 

named in the charge and tried will not necessarily displace the charge 

under section 149 because along with the two or three persons 

convicted were others who composed the unlawful assembly but who 

have not been identified and so have not been named. In such cases the 

acquittal of one or more persons named in the charge does not affect 

the validity of the charge under section 149 because-on the evidence the 

court of facts is able to reach the conclusion that the persons composing 

the unlawful assembly nevertheless were five or more than five. It is true 

that in the last category of cases, the court will have to be very careful in 

reaching the said conclusion. But there is no legal bar which prevents the 

court from reaching such a conclusion. The failure to refer in the charge 

to other members of the unlawful assembly un-named and unidentified 

may conceivably raise the point as to whether prejudice would be 

caused to the persons before the Court by reason of the fact that the 

charge did not indicate that un-named persons also were members of 

the unlawful assembly. But apart from the question of such prejudice 

which may have to be carefully considered, there is no legal bar 

preventing the court of facts from holding that though the charge 

specified only five or more persons, the unlawful assembly in fact 

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consisted of other persons who were not named and identified. That 

appears to be the true legal position in respect of the several categories 

of cases which may fall to be tried when a charge under section 149 is 

framed.” 


11. To the same effect is the decision of this Court in Nagamalleswara 

Rao (K) and Ors. v. State of Andhra Pradesh *** 2 (1991)2 SCC 532 , where this 

Court observed: 

“However, the learned Judges over-looked that since the 

accused who are convicted were only four in number and the 

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prosecution has not proved the involvement of other persons and the 

courts below have acquitted all the other accused of all the offences, 

section 149 cannot be invoked for convicting the four appellants herein. 

The learned Judges were not correct in stating that A1, A2, A5 and A11 

"can be held to be the members of the unlawful assembly along with 

some others unidentified persons’ on the facts and circumstances of this 

case. The charge was not that accused 1, 2, 5 and 11 "and others’ or 

"and other unidentified persons" formed into an unlawful assembly but 

it is that "you accused 1 to 15" who formed into an unlawful assembly. It 

is not the prosecution case that apart from the said 15 persons there 

were other persons who were involved in the crime. When the 11 other 

accused were acquitted it means that their involvement in the offence 

had not been proved. It would not also be permissible to assume or 

conclude that others named or unnamed acted conjointly with the 

charged accused in the case unless the charge itself specifically said so 

and there was evidence to conclude that some others also were involved 

in the commission of the offence conjointly with the charged accused in 

furtherance of a common object.” 

12. Applying the above principles to the case at hand, we are of the 

view that the provisions of Section 149 of the IPC are no longer available to the 

prosecution for convicting the appellants whose number is reduced to 4 

consequent upon the acquittal of the remaining accused persons. The facts of 

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the case at hand are not covered by situations one and two referred to in 

Mohan Singh’s case (supra). It is a case which, in our opinion, falls more 

appropriately in situation three where the prosecution had named all those 

constituting the unlawful assembly, but, only four of those named were 

eventually convicted, thereby reducing the number to less than five. There is no 

evidence to suggest that any one, apart from the persons named in the chargesheet 

were members of the unlawful assembly, but, were either not available or 

remained unidentified. Such being the position, the conviction of the appellants 

with the help of Section 149 of the IPC does not appear to be legally sustainable. 

13. The third and the only other submission made by learned counsel 

for the appellants related to the nature of the offence committed by Har Chand, 

the author of the fatal injury. It was urged that the incident in question had 

taken place without any pre-meditation in a sudden fight because of a sudden 

quarrel following Jai Pal’s insistence to enter the crop growing field of the 

complainant. Injuries were caused by those involved in the fight to each other. 

Appellant-Har Chand had not taken any undue advantage nor had he acted in a 

cruel or unusual manner. The case, therefore, fell within Exception 4 to Section 

300 of the IPC. The fact that Har Chand had inflicted a single injury on the head 

of the deceased-Gopal showed that there was no intention to kill deceased- 

Gopal, other injuries inflicted by the remaining accused being only simple in 

nature. The offence, according to the learned counsel, could not, therefore, be 

graver than culpable homicide not amounting to murder punishable under 

Section 304 Part-II of the IPC. 

643 


14. The locus classicus on the interpretation of Sections 299 and 300 of 

the IPC is the often quoted decision of this Court in Virsa Singh v. State of 

Punjab *** 3 AIR 1958 SC 465 where Vivian Bose, J. speaking for the Court, 

explained the ingredients that must be satisfied for a culpable homicide to 

amount to murder. Dealing with clause ‘Thirdly’ under Section 300 of the IPC, 

the Court explained the essentials of that clause in the following words: 

“12. To put it shortly, the prosecution must prove the following 

facts before it can bring a case under Section 300 ‘thirdly’;


First, it must establish, quite objectively, that a bodily injury is 

present. 

Secondly, the nature of the injury must be proved; These are 

purely objective investigations. 

Thirdly, it must be proved that there was an intention to inflict 

that particular bodily injury, that is to say, that it was not accidental or 

unintentional, or that some other kind of injury was intended. Once 

these three elements are proved to be present, the enquiry proceeds 

further and, 

Fourthly, it must be proved that the injury of the type just 

described made up of the three elements set out above is sufficient to 

cause death in the ordinary course of nature. This part of the enquiry is 

purely objective and inferential and has nothing to do with the intention 

of the offender.” 

15. The Court then goes on to explain the third ingredient referred to 

644 


the above passage and makes the following observations which bring home the 

essence of the third ingredient in simple words: 

“The question is not whether the prisoner intended to inflict a 

serious injury or a trivial one but whether he intended to inflict the injury 

that is proved to be present. If he can show that he did not, or if the 

totality of the circumstances justify such an inference, then, of course, 

the intent that the section requires is not proved. But if there is nothing 

beyond the injury and the fact that the appellant inflicted it, the only 

possible inference is that he intended to inflict it. Whether he knew of its 

seriousness, or intended serious consequences, is neither here nor there. 

The question, so far as the intention is concerned, is not whether he 

intended to kill, or to inflict an injury of a particular degree of 

seriousness, but whether he intended to inflict the injury in question; and 

once the existence of the injury is proved the intention to cause it will be 

presumed unless the evidence or the circumstances warrant an opposite 

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conclusion.” 

16. Applying the above to the case at hand, we have no difficulty in 

holding that keeping in view the nature of the injury, the vital part of the body 

on which the same was inflicted and the weapon used by the accused appellant- 

Har Chand, and the medical evidence, that the said injury was sufficient in the 

ordinary course to cause death, culpable homicide would, in the case at hand, 

tantamount to murder but for the application of Exception 4 to Section 300. The 

question, however, is whether Exception 4 really applies and, if so, whether the 

injury was inflicted with the intention of causing death or of causing such bodily 

injury as is likely to cause death. The circumstances of the case to which we 

have referred in the earlier part of this judgment, however, leave no manner of 

doubt that the incident was without any pre-meditation and a sudden fight 

upon a sudden quarrel. The injuries upon the deceased were inflicted in the 

heat of passion and without the appellant taking any undue advantage or acting 

in a cruel or unusual manner. The fact situation of the case, therefore, attracts 

Exception 4 especially when in terms of explanation to Exception 4, it is 

immaterial in such cases which party offers the provocation or commits the first 

assault. That being so, the offence committed by the author of the injury is not 

murder but culpable homicide not amounting to murder punishable under 

Section 304 of the IPC. 

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17. Coming then to the question whether the act committed by Har 

Chand-appellant was with intention to cause death or of causing such bodily 

injury as was likely to cause death, we are of the opinion that even when the act 

may not have been committed with the intention of causing death, the same 

was intended to cause such bodily injury as was likely to cause death, within the 

meaning of Section 304 Part I. 

18. In the result, we allow these appeals in part and to the following 

extent: 

1. The conviction of the appellants under Section 302 read with 

Section 149 IPC and the sentence of imprisonment for life awarded to


them is set aside. 

2. Appellant Har Chand is, instead, convicted under Section 304 

Part-I and sentenced to undergo rigorous imprisonment for a period of 

eight years and a fine of Rs.5000/-. In default payment of fine he shall 

undergo further imprisonment for a period of six months. His conviction 

and sentence for offences punishable under Section 325 shall remain 

unaffected and so also the fine and default sentence awarded to him. 

3. The conviction of Appellants-Raman Lal, Naresh and Bhagat 

Singh for offences punishable under Sections 325 and 323 of the IPC and 

the sentence awarded to them shall stand affirmed. They shall be set 

free unless required in connection of any other case, as they have 

already undergone the imprisonment awarded to them. 

Ss - 

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Present: Justice T.S. Thakur and Justice R. Banumathi 

M/S GMG ENGINEERING INDUSTRIES & Ors. – Appellants, 

Versus 

M/S ISSA GREEN POWER SOLUTION & Ors. - Respondents. 

Civil Appeal No. 4472 /2015 (arising out of S.L.P.(C) NO. 21762 of 2013) with 

Civil Appeal No. 4473 /2015 (arising out of S.L.P.(C) NO. 22156 of 2013) 

(i) Civil Procedure Code , 1908 (V of 1908) - Order 9 Rule 13 - 

While exercising the discretion for setting aside the ex-parte decrees or 

condoning the delay in filing the application to set aside the ex-parte 

decrees, the court is competent to direct the defendants to pay a 

portion of the decreetal amount or the cost - While the trial court has 

exercised the discretion to condone the delay in filing the applications 

to set aside the ex-parte decrees, in our view, the trial court should not 

have imposed such an unreasonable and onerous condition of 

depositing the entire suit claim in the suits when the issues are yet to 

be decided on merits - While considering the revision, the High Court 

should have kept in view that the parties are yet to go for trial and the 

appellants ought to have been afforded the opportunity to contest the 

suits on merits. [Para 9, 11] 

647 


(ii) Limitation Act, Section 5 - It is well settled that the 

expression ‘sufficient cause’ is to receive liberal construction so as to 

advance substantial justice. When there is no negligence, inaction or 

want of bonafide is imputable to the appellants, the delay has to be 

condoned - The discretion is to be exercised like any other judicial 

discretion with vigilance and circumspection - The discretion is not to be 

exercised in any arbitrary, vague or fanciful manner - The true test is to


see whether the applicant has acted with due diligence. [Para 8] 


1. (2002) 3 SCC 159, V.K. Industries and Ors. v. M.P. Electricity Board, Rampur, Jabalpur 

*** 

2. (2006) 12 SCC 104: (2006) 9 SCALE 223, Tea Auction Limited v. Grace Hill Tea 

Industry And Anr. *** 

3. (2002) 5 SCC 30, Vijay Kumar Madan and Ors. v. R.N. Gupta Technical Education 

Society and Ors. *** 

JUDGMENT 

R. Banumathi, J. - (May 15, 2015) - Leave granted. 

2. These appeals arise out of common order dated 16.04.2013, passed 

by the High Court of Madras, Madurai Bench in C.R.P. (NPD) (MD) No.4/2013 

and C.R.P. (NPD) (MD) No.5/2013 respectively, confirming the order dated 

4.12.2012 passed by the Principal District Judge, Thanjavur, imposing conditions 

648 


to deposit Rs.1,50,00,000/- and Rs.10,00,000/-, as a condition to condone the 

delay in filing the applications to set aside the ex-parte decrees passed in 

O.S.No.3 of 2011 and O.S. No.6 of 2011. 

3. Appellants and respondents entered into an agreement of sale on 

1.08.2008, under which the respondents agreed to purchase the property of the 

appellants being the factory premise for a sum of Rs.5,00,00,000/- and the 

respondents paid Rs.1,50,00,000/- towards part of sale consideration. The sale 

transaction could not be completed. The respondents issued legal notice dated 

24.11.2010 calling upon the appellants either to execute the sale deed or refund 

the advance amount of Rs.1,50,00,000/- with interest at the rate of 12% p.a. 

The appellants received the said notice and sent the reply offering to return the 

said amount but without interest. The respondents filed the suit being 

O.S.No.3/2011 for recovery of the sum of Rs. 1,50,00,000/- with interest. The 

case was adjourned from time to time on various dates. On 16.06.2011, the 

appellants-defendants were set ex-parte in the suit. After recording evidence 

adduced by the respondents-plaintiffs on 5.07.2011, the said suit was decreed 

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ex-parte by the Principal District Judge, Thanjavur. 

4. Respondents have also filed another suit O.S. No.6 of 2011 for 

recovery of a sum of Rs.10,00,000/- said to have been paid by them to the 

appellants by way of an advance towards the purchase of another property. The 

said suit was decreed ex-parte on 16.06.2011. The appellants have filed I.A. 

No.78 of 2012 to set aside the ex-parte decree alongwith application to 

condone the delay of 382 days under Section 5 of the Limitation Act. The said 

application was allowed by the Principal District Judge, Thanjavur by order 

dated 4.12.2012 imposing condition to deposit a sum of Rs.10,00,000/-. 

5. The appellants filed I.A.No.77 of 2012 and I.A. No.78 of 2012 in both 

the suits praying for condonation of delay of 355 days and 382 days respectively 

in filing the applications under Order IX Rule 13 CPC, for setting aside the exparte 

decrees. The appellants averred that they came to know about the exparte 

decrees only on 13.07.2012, when they saw a public notice in the daily 

newspaper regarding the attachment of the suit property. The Principal District 

Judge, Thanjavur vide separate order dated 4.12.12 condoned the delay of 355 

days and 382 days in filing the applications under Order IX Rule 13 CPC for 

setting aside the ex-parte decree and allowed the applications in IA No.77 of 

2012 and I.A. No.78 of 2012 but subject to condition that the appellants should 

deposit Rs.1,50,00,000/- and Rs.10,00,000/- respectively in the court on or 

before 3.01.2013, failing which the applications will automatically stand 

dismissed. Being aggrieved by the stringent condition, the appellants filed 

revision petitions before the High Court. The High Court vide impugned order 

dated 16.04.13 upheld the order imposing condition to deposit Rs.1,50,00,000/- 

and Rs.10,00,000/- as a condition precedent to condone the delay in filing 

application to set aside the ex-parte decrees and thereby dismissed the 

revisions which are under challenge in these appeals. 

649 


6. Learned counsel for the appellants contended that the direction to 

deposit the entire decreetal amount of Rs.1,50,00,000/- in O.S. No.3 of 2011 

and the decreetal amount of Rs.10,00,000/- in O.S. No.6 of 2011 as a condition 

precedent to set aside the ex-parte decrees is onerous and unreasonable and

650 



prayed to set aside the impugned order. In support of his contention, learned 

Senior Counsel Mr. Brijender Chahar for the appellants placed reliance upon the 

judgment of this Court in V.K. Industries and Ors. v. M.P. Electricity Board, 

Rampur, Jabalpur ***, 1 (2002) 3 SCC 159. 

7. Learned Senior Counsel for the respondents Ms. Nalini Chidambaram 

submitted that the trial court was constrained to impose the said condition in 

view of the dilatory tactics adopted by the appellants deliberately not being 

present for hearing in the trial court on several occasions when the suits were 

posted for trial. Learned Senior Counsel further submitted that even after exparte 

decrees dated 5.07.2011 were brought to the notice of the appellants by a 

series of telegrams (Annexures-R5/R1), the appellants did not file the 

applications to set aside the ex-parte decree within the period of limitation and 

waited for more than a year. It was submitted that the respondents are more 

than seventy years old and had borrowed sum of Rs.1,50,00,000/- and 

Rs.10,00,000/- from the bank and paid the said amount to the appellants under 

the agreements for sale and the appellants are paying interest on that amount 

to the bank. It was contended that even though the appellants sold away their 

property, they did not choose to refund the sum paid towards part of sale 

consideration and if the suits are decreed, the appellants have no assets to 

execute the decrees and the rights of both the parties should be balanced and 

therefore the impugned order does not warrant interference by this Court 

under Article 136 of the Constitution. 

8. It is well settled that the expression ‘sufficient cause’ is to receive 

liberal construction so as to advance substantial justice. When there is no 

negligence, inaction or want of bonafide is imputable to the appellants, the 

delay has to be condoned. The discretion is to be exercised like any other 

judicial discretion with vigilance and circumspection. The discretion is not to be 

exercised in any arbitrary, vague or fanciful manner. The true test is to see 

whether the applicant has acted with due diligence. 

9. While exercising the discretion for setting aside the ex-parte decrees 

or condoning the delay in filing the application to set aside the ex-parte decrees, 

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the court is competent to direct the defendants to pay a portion of the 

decreetal amount or the cost. In Tea Auction Limited v. Grace Hill Tea Industry 

And Anr. *** , 2 (2006) 12 SCC 104: (2006) 9 SCALE 223, this Court has held as 

under: 

“15. ….A discretionary jurisdiction has been conferred upon the 

court passing an order for setting aside an ex parte decree not only on 

the basis that the defendant had been able to prove sufficient cause for 

his non-appearance even on the date when the decree was passed, but 

also on other attending facts and circumstances. It may also consider 

the question as to whether the defendant should be put on terms. The 

court, indisputably, however, is not denuded of its power to put the 

defendants to terms. It is, however, trite that such terms should not be 

unreasonable or harshly excessive. Once unreasonable or harsh 

conditions are imposed, the appellate court would have power to 

interfere therewith…..” 

10. In Vijay Kumar Madan and Ors. v. R.N. Gupta Technical Education 

Society and Ors. ***, 3 (2002) 5 SCC 30, this Court has held as under: 

“8. Costs should be so assessed as would reasonably 

compensate the plaintiff for the loss of time and inconvenience caused 

by relegating back the proceedings to an earlier stage. The terms which 

the court may direct may take care of the time or mode of proceedings 

required to be taken pursuant to the order under Rule 7. ….…the court 

cannot exercise its power to put the defendant-applicant on such terms 

as may have the effect of prejudging the controversy involved in the suit 

and virtually decreeing the suit though ex parte order has been set aside 

or to put the parties on such terms as may be too onerous……… That 

condition in the order of the trial court having been set aside by the 

High Court, we are inclined to sustain the order of the High Court but 

subject to certain modification. In our opinion the High Court was 

justified in setting aside the condition imposed by the trial court in its 

order which was too onerous, also vague, uncertain and suffering from 

651 



want of clarity. The order of the High Court to the extent of setting aside 

the ex parte proceedings and directing the expeditious trial of the suit 

has to be sustained as it serves the ends of justice….” 

The same view was reiterated in V.K. Industries case (supra). 

11. In the present case, while the trial court has exercised the discretion 

to condone the delay in filing the applications to set aside the ex-parte decrees, 

in our view, the trial court should not have imposed such an unreasonable and 

onerous condition of depositing the entire suit claim of Rs.1,50,00,000/- and 

Rs.10,00,000/- respectively in the suits when the issues are yet to be decided on 

652 


merits. While considering the revision, the High Court should have kept in view 

that the parties are yet to go for trial and the appellants ought to have been 

afforded the opportunity to contest the suits on merits. When the S.L.Ps came 

up for admission on 1.08.2013, this Court passed the conditional order that 

subject to deposit a sum of Rs.50,00,000/- before the trial court, notice shall be 

issued to the respondents. In compliance with the order dated 1.08.2013, the 

appellants have deposited Rs.50,00,000/- before the trial court. Since the 

appellants have satisfactorily explained the reasons for the delay and with a 

view to provide an opportunity to the appellants to contest the suit, the 

impugned order is liable to be set aside. 

12. The order dated 16.04.2013 of the High Court passed in C.R.P. (NPD) 

(MD) No.4/2013 and C.R.P. (NPD) (MD) No.5/2013, is set aside and these 

appeals are allowed. Delay in filing the applications to set aside the ex-parte 

decrees is condoned and the ex-parte decrees passed in O.S. No.3 of 2011 and 

O.S. No.6 of 2011 are set aside and the suits are ordered to be restored to file. 

The appellants shall file their written statements within a period of six weeks if 

not already filed. Since the suits are of the year 2011 and the respondents are 

stated to be senior citizens, the trial court is directed to take up the suits at an 

early date and dispose of the suits expeditiously. It is made clear that we have 

not expressed any opinion on the merits of the matter. The amount of 

Rs.50,00,000/- deposited by the appellants before the trial court shall be 

invested in a Nationalized Bank so that the accrued interest may enure to the 

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benefit of either party. In the facts and circumstances of the case, we make no 

order as to costs. 

SS - Appeals allowed 

653 





Present : Justice H.L. Dattu, CJI, Justice S.A. Bobde, Justice Arun Mishra. 

HIMALAYAN COOPERATIVE GROUP HOUSING SOCIETY - Appellant, 

VERSUS 

BALWAN SINGH - Respondent. 

Civil Appeal Nos. 4360-4361 of 2015 (Arising out of S.L.P.(C) Nos. 9302-9303 of 

2013) 

(i) Constitution of India , Art. 226 and 227 - Writ of Certiorari 

under Article 226 though directed against the orders of a inferior court 

would be distinct and separate from the challenge to an order of an 

inferior court under Article 227 of the Constitution - The supervisory 

jurisdiction comes into play in the latter case and it is only when the 

scope and ambit of the remedy sought for does not fall in purview of 

654 


the scope of supervisory jurisdiction under Article 227, the jurisdiction 

of the Court under Article 226 could be invoked. [Para 17] 

Held, 

In the present case, what was challenged by the members of the Society 

was an order passed by the Registrar and the Revisional Authority under the 

provisions of the Act and the Rules framed thereunder. The prayer was to set 

aside the orders passed by the authorities below. Even if the said petitions(s) 

were styled as a petition under Article 226, the content and the prayers 

thereunder being ones requiring exercise of supervisory jurisdiction only, could 

be treated as petitions filed under Article 227 of the Constitution only. 

[Para 18] 

(ii) Constitution of India , Article 227 – Concession made by 

counsel - Court ought not to have issued the impugned directions 

merely because a request was made by the learned counsel appearing 

for the respondents - The same would hold true even if a concession 

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was made by the counsel for the appellant - The Court, while, 

exercising its powers under Article 227 of the Constitution of India, 

ought to have confined itself to the subject matter and the issues raised 

by parties in the Writ Petition - The digression of or expansion of the 

supervisory jurisdiction under Article 227 of the Constitution of India, 

would open precarious floodgates of litigation should the limitation on 

the supervisory jurisdiction not be observed mindfully - If for any 

reason, the Writ Court perceived the oral request made by the 

respondents to have justified the ends of justice and desired to accept 

the concession so made by the counsel for appellant-Society, the said 

request not being the subject matter of the Writ Petition required the 

Court to query whether the counsel for the appellant-Society has been 

authorized to make such a statement by the appellant-Society or 

whether any such resolution has been passed by the appellant-Society 

giving concession in matters of this nature - Since the required caution 

was not exercised by the learned Judges of the Writ Court, the 

directions issued by the Writ Court suffer from infirmity and hence 

require to be set aside – Advocate – Concession – Duty of court. 

655 


[Para 21,22] 

(iii) Advocate - An advocate under the Code expressly includes a 

group of advocates and a law firm whose partner or associate acts for 

the client - Bar Council of India Rules, 1975. [Para 28] 

(iv) Advocate – Duty of - It is the solemn duty of an advocate not 

to transgress the authority conferred him by the client - It is always 

better to seek appropriate instructions from the client or his authorized 

agent before making any concession which may, directly or remotely, 

affect the rightful legal right of the client - The advocate represents the 

client before the Court and conducts proceedings on behalf of the


client. He is the only link between the Court and the client - Therefore 

his responsibility is onerous - He is expected to follow the instructions 

of his client rather than substitute his judgment - Bar Council of India 

Rules, 1975. [Para 32] 

(v) Advocate - Admissions of fact made by a counsel - Is binding 

upon their principals as long as they are unequivocal; where, however, 

doubt exists as to a purported admission, the Court should be wary to 

accept such admissions until and unless the counsel or the advocate is 

authorised by his principal to make such admissions - Admissions of 

fact. [Para 33] 

(vi) Advocate and client - A client is not bound by a statement or 

admission which he or his lawyer was not authorised to make - Lawyer 

generally has no implied or apparent authority to make an admission or 

statement which would directly surrender or conclude the substantial 

656 


legal rights of the client unless such an admission or statement is clearly 

a proper step in accomplishing the purpose for which the lawyer was 

employed - Neither the client nor the Court is bound by the lawyer’s 

statements or admissions as to matters of law or legal conclusions - 

Thus, according to generally accepted notions of professional 

responsibility, lawyers should follow the client’s instructions rather 

than substitute their judgment for that of the client - We may add that 

in some cases, lawyers can make decisions without consulting client - 

While in others, the decision is reserved for the client - It is often said 

that the lawyer can make decisions as to tactics without consulting the 

client, while the client has a right to make decisions that can affect his 

rights. [Para 33] 

(vi) Words and phrases - “An advocate, in the discharge of his 

duty knows but one person in the world and that person is his client” 

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(vii) ‘Code of Ethics’ - Prescribed by the Bar Council of India, in 

recognition of the evolution in professional and ethical standards within 

the legal community, provides for certain rules which contain canons of 

conduct and etiquette which ought to serve as general guide to the 

practice and profession. [Para 28] 

(viii) ‘Advocate’s duty to the Client’ – Code of ethics - Rule 26 

thereunder mandates that an “advocate shall not make any 

compromise or concession without the proper and specific instructions 

of his/her client.” - ‘Code of Ethics’ – Advocate. [Para 28] 


1. (2010) 9 SCC 385, Jaisingh and Ors. v. Municipal Corporation of Delhi and Anr 

2. Civil Appeal No.2548 of 2009, Radhey Shyam and Anr v. Chhabi Nath & Ors 

*** 

3. (1991) 4 SCC 195, Periyar & Pareekanni Rubber Ltd. v. State of Kerala *** 

4. AIR 1930 PC 158, Sourendra Nath Mitra v. Tarubala Dasi 

ORDER 

(29th April, 2015) - Leave granted. 

657 


2. These appeals are directed against the judgment and order passed by 

the High Court in Writ Petition No.7546 of 2005 and connected matters, dated 

25.11.2010 and in Review Petition No.138 of 2010 and connected matters, 

dated 12.10.2012. By the impugned judgment and order in the Writ Petition, 

the High Court has affirmed the orders passed by the Courts/authorities below 

and, on the basis of a concession made by the counsel appearing on behalf of 

the appellant, issued certain directions to the appellant. 

3. For convenience, we would only notice the facts in Civil Appeals 

arising out of S.L.P.(C) Nos.9302-9303 of 2013. 

4. The appellant is a co-operative society registered under the 

provisions of the Delhi Cooperative Societies Act, 1972 (for short, “the Act”). 

The appellant-Society comprised of 150 members, including the respondents, 

who had enrolled themselves with the said Society for allotment of residential


quarters/ apartments. The appellant-Society raised a demand for payment 

towards allotment of residential quarters/ apartments on 28.05.1998. The 

respondents failed to comply with the demand. They continued to be defaulters 

in spite of continuous demand notices. In view of the default in payment of 

initial deposit amount, the appellant-Society after following the due procedure 

had passed a resolution expelling the respondents from the membership of the 

Society. 

5. The resolution requires confirmation of the Registrar of Co-Operative 

Societies (respondent No.2-herein) under Rule 36 of the Delhi Co-Operative 

658 


Societies Rules, 1973 (for short, “the Rules”) and therefore, was placed before 

the Registrar for his consideration and approval. The Registrar, after due 

verification of the records of the appellant-Society and in compliance with the 

procedure as contemplated under the provisions of the Act and the Rules, by an 

order dated 29.01.2004, has approved the resolution passed by the appellant- 

Society. However, in the interest of justice the Registrar has provided a last 

opportunity to the respondents to pay their outstanding dues to the appellant- 

Society within four weeks, failing which their expulsion from the appellant- 

Society would come into effect. The respondents not having complied with the 

aforesaid order, the said resolution stood confirmed and the respondents 

ceased to be members of the appellant Society. 

6. The aforesaid order of the Registrar was carried in appeal by the 

respondents before the Presiding Officer, Delhi Co-operative Tribunal under 

Section 86(4) of the Delhi Co-operative Societies Act, 2003. However, on a later 

date, the respondents withdrew the said appeal and preferred Revision Petition 

before the Financial Commissioner, Government of NCT of Delhi under Section 

80 of the Act. The Revisional Authority has carefully considered the documents 

on record and the submissions made by parties to the lis and concluded that the 

Registrar has rightly confirmed the expulsion of members of the Society. The 

Revisional Authority, while dismissing the revision petitions, by its order dated 

24.02.2005 has noticed that despite ample opportunity provided to the 

respondents, they have failed to pay the outstanding amount and therefore, 

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their expulsion is proper and justified. 

7. The respondents, aggrieved by the aforesaid orders passed by the 

Registrar and the Revisional Authority, had approached the Writ Court. In the 

Writ Petition filed, their main prayer was to set aside the orders passed by the 

Registrar and the revisional authority by exercising supervisory jurisdiction of 

the Court. 

8. The Writ Court, after duly considering the contentions raised in the 

Writ Petition has come to the conclusion that the Registrar and the revisional 

authority have not committed any error in arriving at their respective 

conclusions and have rightly confirmed the resolution expelling the respondents 

from the membership of appellant-Society. The Writ Court has observed that 

the respondents have not made out a case for interference with the orders of 

the authorities below. However, on a request made by the respondents seeking 

issuance of direction to the appellant-Society for consideration of their request 

to construct and allot the additional quarters/ apartments to them, the same 

being agreeable to by the learned counsel appearing for the appellant Society, 

the Court has issued certain directions to the appellant-Society for construction 

of additional quarters/ apartments and their allotment to the respondents, by 

judgment and order dated 25.11.2010. 

659 


9. Being of the firm view, that, the appellant-Society had not authorized 

the learned counsel who had appeared for them before the Writ Court to make 

any concession in favour of the respondents had preferred Review Petitions 

against the aforesaid common judgment and order of the Writ Court. The said 

Review Petitions were confined to the limited question of feasibility of 

implementation of the directions issued by the Writ Court in the impugned 

judgment and order. The High Court after considering the merits of the Review 

Petitions has dismissed the same by its order dated 12.10.2012. 

10. Aggrieved by the aforesaid judgment and order passed by the High 

Court in the Writ Petitions as well as in the Review Petitions, the appellant- 

Society is before us in these appeals.


11. We have heard learned counsel appearing for the parties to the lis. 

12. Shri Jayant Bhushan, learned counsel appearing for the appellant- 

Society contends that in the Writ Petitions filed under Article 226 read with 

660 


Article 227 of the Constitution of India, the Writ Court was not justified in 

passing the incidental and ancillary directions in respect of construction and 

allotment of the additional flats/apartments to the respondents. In support of 

his contention, Shri Bhushan would rely upon the concurrent finding of the 

Registrar, Revisional Authority and the Writ Court and submit, that, the 

respondents are indeed the defaulters and, therefore, they were not entitled to 

continue as members of the appellant Society. Further, Shri Bhushan would 

submit that appellant-Society at no point of time had authorized the learned 

counsel for the appellant-Society to make any concession before the Writ Court 

and such being the case, the Writ Court ought not have issued any further 

direction to the appellant-Society solely on the basis of a concession made by 

the lawyer appearing on its behalf without any express consent by the 

appellant-Society. 

13. Learned counsel, Shri N. Prabhakar, appearing for one set of the 

respondents submits that the Writ Court had only issued the impugned 

directions in light of the concession made by the learned counsel for the 

appellant-Society. Shri Prabhakar would state that the appellant-Society having 

made a concession before the Writ Court, cannot now dispute the authority of 

the lawyer to settle and compromise a claim before this Court and therefore, 

submits that the Writ Court was justified in issuing the said directions to the 

appellant-Society. 

14. Shri Huzefa Ahmadi, learned counsel appearing for some of the 

respondents contends that the jurisdiction exercised by the Writ Court was not 

under Article 227 of the Constitution but only under Article 226 of the 

Constitution of India and therefore, such directions could be issued and have 

been rightly issued by the Writ Court. Shri Ahmadi, would submit that since, the 

appellant-Society in the affidavit filed before this Court has stated that certain 

apartments are still lying vacant, the same may be allotted to the respondents 

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in the interest of justice. Further, Shri Ahmadi would support the directions 

issued by the Writ Court and submit that the counsel who had appeared for the 

appellant-Society had not only given his consent for the same before the Writ 

Court but also not disputed the same in the Review Petition preferred by the 

appellant-Society and therefore, the appellant Society now cannot resile from 

the concession made by its counsel before the Writ Court. 

15. The issues that would arise for consideration and decision are: 

(a) What is the jurisdiction of the Court while dealing with a 

petition filed under Articles 226 and 227 of the Constitution of India? 

(b) whether the counsel appearing for an appellant-Society 

could make concession for or on behalf of the appellant-Society without 

any express instructions/ authorisation in that regard by the Society? 

(c) Whether such a concession would bind the appellant-Society 

and its members? 

(d) Since the subject matter of the concession made by the 

counsel was not the issue before the Writ Court, whether the same 

would bind the appellant-Society and its members? 

16. The first issue need not detain us for long. It is the stand of the 

learned counsel for the respondents, that, since the Writ Petition that was filed 

was both under Articles 226 and 227 of the Constitution of India, the Court 

apart from examining the merits of the Writ Petition could also issue incidental 

and ancillary directions to do complete justice between parties litigating before 

it. We do not agree. The issue in our view is no more debatable in view of the 

decision of this Court in the case of Jaisingh and Ors. v. Municipal Corporation 

of Delhi and Anr. 1 (2010) 9 SCC 385. The Court has stated: 

661 


“15. …we may notice certain well recognised principles 

governing the exercise of jurisdiction by the High Court under Article 

227 of the Constitution of India. Undoubtedly the High Court, under this 

article, has the jurisdiction to ensure that all subordinate courts as well 

as statutory or quasi-judicial tribunals, exercise the powers vested in


them, within the bounds of their authority. The High Court has the 

power and the jurisdiction to ensure that they act in accordance with 

the well-established principles of law. The High Court is vested with the 

powers of superintendence and/or judicial revision, even in matters 

where no revision or appeal lies to the High Court. The jurisdiction under 

this article is, in some ways, wider than the power and jurisdiction under 

Article 226 of the Constitution of India. It is, however, well to remember 

the well-known adage that greater the power, greater the care and 

caution in exercise thereof. The High Court is, therefore, expected to 

exercise such wide powers with great care, caution and circumspection. 

The exercise of jurisdiction must be within the well recognised 

constraints…” (emphasis supplied) 

17. The scope and extent of power of the Writ Court in a petition filed 

under Article 226 and 227 of the Constitution came up for consideration before 

three Judge Bench of this Court in the recent case of Radhey Shyam and Anr v. 

662 


Chhabi Nath & Ors ***, 2 Civil Appeal No.2548 of 2009. This Court observed that 

the Writ of Certiorari under Article 226 though directed against the orders of a 

inferior court would be distinct and separate from the challenge to an order of 

an inferior court under Article 227 of the Constitution. The supervisory 

jurisdiction comes into play in the latter case and it is only when the scope and 

ambit of the remedy sought for does not fall in purview of the scope of 

supervisory jurisdiction under Article 227, the jurisdiction of the Court under 

Article 226 could be invoked. 

18. In the present case, what was challenged by the members of the 

Society was an order passed by the Registrar and the Revisional Authority under 

the provisions of the Act and the Rules framed thereunder. The prayer was to 

set aside the orders passed by the authorities below. Even if the said petitions(s) 

were styled as a petition under Article 226, the content and the prayers 

thereunder being ones requiring exercise of supervisory jurisdiction only, could 

be treated as petitions filed under Article 227 of the Constitution only. 

19. Having said so, we will now consider the issues that falls for our 

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consideration and decision in the present appeals. 

20. In the present case, the subject matter of the petitions was the 

orders passed by the Registrar and the Revisional Authority under the provisions 

of the Act and the Rules framed thereunder. The Registrar and the Revisional 

Authority in their order have considered the validity of the expulsion of the 

respondents from the membership of the appellant-Society for having defaulted 

in paying the principal amount to the appellant-Society. The Registrar and the 

Revisional Authority have recorded a concurrent finding that despite notice and 

repeated opportunities to deposit the required amounts to the appellant- 

Society, the respondents have continued to be in default and hence, the said 

authorities have confirmed the resolution passed by the appellant-Society 

expelling the respondents from the membership of the appellant-Society. The 

Writ Court, in the impugned judgment and order, has also reached the 

conclusion that since the respondents had defaulted in paying the principal 

amount to the appellant-Society, the appellant-Society was justified in expelling 

them from the membership of the appellant-Society and hence, confirmed the 

orders passed by the authorities below. 

21. The Writ Court after considering the merits of the case has come to 

663 


the conclusion that the expulsion of respondents from the appellant Society was 

justified. Having said so, in our view, the Court ought not to have issued the 

impugned directions merely because a request was made by the learned 

counsel appearing for the respondents-herein. The same would hold true even if 

a concession was made by the counsel for the appellant-Society. The Court, 

while, exercising its powers under Article 227 of the Constitution of India, ought 

to have confined itself to the subject matter and the issues raised by parties in 

the Writ Petition. The digression of or expansion of the supervisory jurisdiction 

under Article 227 of the Constitution of India, would open precarious floodgates 

of litigation should the limitation on the supervisory jurisdiction not be observed 

mindfully. 

22. If for any reason, the Writ Court perceived the oral request made by 

the respondents to have justified the ends of justice and desired to accept the


concession so made by the counsel for appellant-Society, the said request not 

being the subject matter of the Writ Petition required the Court to query 

whether the counsel for the appellant-Society has been authorized to make 

such a statement by the appellant-Society or whether any such resolution has 

been passed by the appellant-Society giving concession in matters of this 

nature. Since the required caution was not exercised by the learned Judges of 

the Writ Court, the directions issued by the Writ Court suffer from infirmity and 

hence require to be set aside. 

23. Apart from the above, in our view lawyers are perceived to be their 

664 


client’s agents. The law of agency may not strictly apply to the client – lawyer’s 

relationship as lawyers or agents, lawyers have certain authority and certain 

duties. Because lawyers are also fiduciaries, their duties will sometimes more 

demanding than those imposed on other agents. The authority-agency status 

affords the lawyers to act for the client on the subject matter of the retainer. 

One of the most basic principles of the lawyer-client relationships is that lawyers 

owe fiduciary duties to their clients. As part of those duties, lawyers assume all 

the traditional duties that agents owe their principals and, thus, have to respect 

the client’s autonomy to make decisions at a minimum, as to the objectives of 

the representation. Thus, according to generally accepted notions of 

professional responsibility, lawyers should follow the client’s instructions rather 

than substitute their judgment for that of the client. The law is now well settled 

that a lawyer must be specifically authorised to settle and compromise a claim, 

that merely on the basis of his employment he has no implied or ostensible 

authority to bind his client to a compromise/ settlement. To put it alternatively 

that a lawyer by virtue of retention, has the authority to choose the means for 

achieving the client’s legal goal, while the client has the right to decide on what 

the goal will be. If the decision in question falls within those that clearly belong 

to the client, the lawyers conduct in failing to consult the client or in making the 

decision for the client, is more likely to constitute ineffective assistance of 

counsel. 

24. The Bar Council of India Rules, 1975 (for short, “the BCI Rules”), in 

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Part VI, Chapter II provide for the ‘Standards of Professional Conduct and 

Etiquette’ to be observed by all the advocates under the Advocates Act, 1972 

(for short, “the Act, 1972”). In the preamble to Chapter II, the BCI Rules provide 

as follows: 

“An advocate shall, at all times, comport himself in a manner 

befitting his status as an officer of the Court, a privileged member of the 

community, and a gentleman, bearing in mind that what may be lawful 

and moral for a person who is not a member of the Bar, or for a 

member of the Bar in his non-professional capacity may still be 

improper for an advocate. Without prejudice to the generality of the 

foregoing obligation, an advocate shall fearlessly uphold the interests of 

his client and in his conduct conform to the rules hereinafter mentioned 

both in letter and in spirit. The rules hereinafter mentioned contain 

canons of conduct and etiquette adopted as general guides; yet the 

specific mention thereof shall not be construed as a denial of the 

existence of others equally imperative though not specifically 

mentioned.” (emphasis supplied) 

25. The Preamble makes it imperative that an advocate has to conduct 

665 


himself and his duties in an extremely responsible manner. They must bear in 

mind that what may be appropriate and lawful for a person who is not a 

member of the Bar, or for a member of the Bar in his non-professional capacity, 

may be improper for an advocate in his professional capacity. 

26. Section II of the said Chapter II provides for duties of an advocate 

towards his client. Rules 15 and 19 of the BCI Rules, has relevance to the subject 

matter and therefore, they are extracted below: 

“15. It shall be the duty of an advocate fearlessly to uphold the 

interests of his client by all fair and honourable means without regard to 

any unpleasant consequences to himself or any other. He shall defend a 

person accused of a crime regardless of his personal opinion as to the 

guilt of the accused, bearing in mind that his loyalty is to the law which


requires that no man should be convicted without adequate evidence. 

*** 

*** 

*** 

19. An advocate shall not act on the instructions of any person 

other than his client or his authorised agent.” 

27. While Rule 15 mandates that the advocate must uphold the interest 

of his clients by fair and honourable means without regard to any unpleasant 

consequences to himself or any other. Rule 19 prescribes that an advocate shall 

only act on the instructions of his client or his authorized agent. Further, The BCI 

Rules in Chapter I of the said Section II provide that the Senior advocates in the 

matter of their practice of the profession of law mentioned in Section 30 of the 

Act, 1972 would be subject to certain restrictions. One of such restrictions 

contained in clause (cc) reads as under: 

“(cc) A Senior Advocate shall, however, be free to make 

666 


concessions or give undertaking in the course of arguments on behalf of 

his clients on instructions from the junior advocate.” 

28. Further, the ‘Code of Ethics’ prescribed by the Bar Council of India, 

in recognition of the evolution in professional and ethical standards within the 

legal community, provides for certain rules which contain canons of conduct 

and etiquette which ought to serve as general guide to the practice and 

profession. Chapter of the said Code provides for an ‘Advocate’s duty to the 

Client’. Rule 26 thereunder mandates that an “advocate shall not make any 

compromise or concession without the proper and specific instructions of 

his/her client.” It is pertinent to notice that an advocate under the Code 

expressly includes a group of advocates and a law firm whose partner or 

associate acts for the client. 

29. Therefore, the BCI Rules make it necessary that despite the specific 

legal stream of practice, seniority at the Bar or designation of an advocate as a 

Senior advocate, the ethical duty and the professional standards in so far as 

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making concessions before the Court remain the same. It is expected of the 

lawyers to obtain necessary instructions from the clients or the authorized 

agent before making any concession/ statement before the Court for and on 

behalf of the client. 

30. While the BCI Rules and the Act, does not draw any exception to the 

necessity of an advocate obtaining instructions before making any concession 

on behalf of the client before the Court, this Court inPeriyar & Pareekanni 

Rubber Ltd. v. State of Kerala ***, 3 (1991) 4 SCC 195 has noticed the sui generis 

status and the position of responsibility enjoyed by the Advocate General in 

regards to the statements made by him before the Courts. The said observation 

is as under: 

“19. …Any concession made by the government pleader in the trial 

court cannot bind the government as it is obviously, always, unsafe to 

rely on the wrong or erroneous or wanton concession made by the 

counsel appearing for the State unless it is in writing on instructions 

from the responsible officer. Otherwise it would place undue and 

needless heavy burden on the public exchequer. But the same yardstick 

cannot be applied when the Advocate General has made a statement 

across the bar since the Advocate General makes the statement with all 

responsibility.” 

667 


(See: Joginder Singh Wasu v. State Of Punjab, 1994 SCC (1) 184). 

31. The Privy Council in the case of Sourendra Nath Mitra v. Tarubala 

Dasi, 4 AIR 1930 PC 158 has made the following two observations which hold 

relevance to the present discussion: 

"Two observations may be added. First, the implied authority of 

counsel is not an appendage of office, a dignity added by the Courts to 

the status of barrister or advocate at law. It is implied in the interests of 

the client, to give the fullest beneficial effect to his employment of the 

advocate. Secondly, the implied authority can always be 

countermanded by the express directions of the client. No advocate has


actual authority to settle a case against the express instructions of his 

client. If he considers such express instructions contrary to the interests 

of his client, his remedy is to return his brief." 

(See: Jamilabai Abdul Kadar v. Shankarlal Gulabchand, (1975) 2 

SCC 609, Svenska Handelsbanken vs Indian Charge Chrome Ltd, 1994 

SCC (2) 155) 

32. Therefore, it is the solemn duty of an advocate not to transgress the 

authority conferred him by the client. It is always better to seek appropriate 

instructions from the client or his authorized agent before making any 

concession which may, directly or remotely, affect the rightful legal right of the 

client. The advocate represents the client before the Court and conducts 

proceedings on behalf of the client. He is the only link between the Court and 

the client. Therefore his responsibility is onerous. He is expected to follow the 

instructions of his client rather than substitute his judgment. 

33. Generally, admissions of fact made by a counsel is binding upon 

668 


their principals as long as they are unequivocal; where, however, doubt exists as 

to a purported admission, the Court should be wary to accept such admissions 

until and unless the counsel or the advocate is authorised by his principal to 

make such admissions. Furthermore, a client is not bound by a statement or 

admission which he or his lawyer was not authorised to make. Lawyer generally 

has no implied or apparent authority to make an admission or statement which 

would directly surrender or conclude the substantial legal rights of the client 

unless such an admission or statement is clearly a proper step in accomplishing 

the purpose for which the lawyer was employed. We hasten to add neither the 

client nor the Court is bound by the lawyer’s statements or admissions as to 

matters of law or legal conclusions. Thus, according to generally accepted 

notions of professional responsibility, lawyers should follow the client’s 

instructions rather than substitute their judgment for that of the client. We may 

add that in some cases, lawyers can make decisions without consulting client. 

While in others, the decision is reserved for the client. It is often said that the 

lawyer can make decisions as to tactics without consulting the client, while the 

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client has a right to make decisions that can affect his rights. We do not intend 

to prolong this discussion. We may conclude by noticing a famous statement of 

Lord Brougham: 

“an advocate, in the discharge of his duty knows but one person 

in the world and that person is his client.” 

34. In view of the above, while allowing these appeals, we set aside the 

directions issued by the Writ Court to the appellant-Society as also the 

judgment and order passed by the High Court in Review Petition. Ordered 

accordingly. 

Ss - Ordered accordingly. 

669 





Present: Justice A.K. Sikri and Justice Uday Umesh Lalit 

INDRA DALAL - Appellant, 

VERSUS 


Criminal appeal no. 1261 of 2009 with 1620 of 2009 and 1189 of 2011 

(i) Words and meanings - Confession – Meaning - The word 

'confession' has no where been defined - Courts have resorted to the 

dictionary meaning and explained that incriminating statements by the 

accused to the police suggesting the inference of the commission of the 

crime would amount to confession and, therefore, inadmissible under 

this provision - It is also defined to mean a direct acknowledgment of 

670 


guilt and not the admission of any incriminating fact, however grave or 

conclusive - Section 26 of the Evidence Act makes all those confessions 

inadmissible when they are made by any person, whilst he is in the 

custody of a police officer, unless such a confession is made in the 

immediate presence of a Magistrate - Therefore, when a person is in 

police custody, the confession made by him even to a third person, that 

is other than a police officer, shall also become inadmissible - Indian 

Evidence Act, 1872, Section 25. [Para 17] 

(ii) Confession – When a person is in police custody, the 

confession made by him even to a third person, that is other than a 

police officer, shall also become inadmissible - This provision applies 

even to those confessions which are made to a police officer who may 

not otherwise be acting as such - If he is a police officer and confession 

was made in his presence, in whatever capacity, the same becomes 

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inadmissible in evidence - Indian Evidence Act, 1872, Section 25. 

[Para 16, 17] 

Held, 

The philosophy behind the aforesaid provision is acceptance of a harsh 

reality that confessions are extorted by the police officers by practicing 

oppression and torture or even inducement and, therefore, they are unworthy 

of any credence. The provision absolutely excludes from evidence against the 

accused a confession made by him to a police officer. This provision applies 

even to those confessions which are made to a police officer who may not 

otherwise be acting as such. If he is a police officer and confession was made in 

his presence, in whatever capacity, the same becomes inadmissible in evidence. 

(iii) Indian Evidence Act, 1872, Section 25, 26, 27 - Section 27 is 

in the form of proviso to Sections 25 and 26 of the Evidence Act - It 

makes it clear that so much of such information which is received from 

a person accused of any offence, in the custody of a police officer, 

which has led to discovery of any fact, may be used against the accused 

- Such information as given must relate distinctly to the fact discovered 

- In the present case, the information provided by all the accused/ 

appellants in the form of confessional statements, has not led to any 

discovery - More starkly put, the recovery of scooter is not related to 

the confessional statements allegedly made by the appellants - This 

recovery was pursuant to the statement made by H - It was not on the 

basis of any disclosure statements made by these appellants - 

Confessional statement allegedly given by Appellant is again in another 

FIR - Therefore, the situation contemplated under Section 27 of the 

Evidence Act also does not get attracted - Even if the scooter was 

recovered pursuant to the disclosure statement, it would have made 

the fact of recovery of scooter only, as admissible under Section 27 of 

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the Evidence Act, and it would not make the so-called confessional 

statements of the appellants admissible which cannot be held as proved 

against them. [Para 23] 

(iv) Word - Actus reus - Usage - Insofar as the appellants are 

concerned, admittedly they have not taken active part in the 

commission of crime, namely, there is no actus reus. 

[Para 13] 

Meaning: Actus reus (/ˈæktəs ˈreɪɪəs/), sometimes called the 

external element or the objective element of a crime, is the Latin term for 

the "guilty act" which, when proved beyond a reasonable doubt in 

combination with the mens rea, "guilty mind", produces criminal liability. 

672 


Actus Reus [Latin, Guilty act.] As an element of criminal 

responsibility, the wrongful act or omission that comprises the physical 

components of a crime. Criminal statutes generally require proof of both 

actus reus and mens rea on the part of a defendant in order to establish 

criminal liability. (West's Encyclopedia of American Law, edition 2. 

Copyright 2008 The Gale Group, Inc. All rights reserved). 

JUDGEMENT 

A.K. Sikri, J. – (29th May, 2015) - First Information Report (FIR) No. 99 

dated May 24, 2001 was registered at Police Station: City Dadri, Haryana. In this 

FIR, five persons were implicated and made accused for committing the murder 

of one Nand Karan (hereinafter referred to as the 'deceased'). Out of them, 

three appellants are before us who were tried together and convicted for the 

said offence by the Sessions Court vide judgment dated April 11, 2008, followed 

by the order of sentence dated April 12, 2008 sentencing them for life 

imprisonment and also to pay a fine of ₹10,000 each for commission of the 

offence punishable under Section 120-B read with Section 302 of the Indian 

Penal Code, 1860. In default of payment of fine, it was directed that they would 

undergo simple imprisonment for a period of one year each. One more person 

was also made accused and tried with these appellants. However, he was 

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acquitted of the charges framed against him. Fifth person, Udeyveer @ Udey @ 

Sandeep, who was also an accused in the said charge-sheet, was convicted by a 

separate judgment pronounced on the same date, i.e. on April 11, 2008, and 

given the identical sentence. All the four convicted persons appealed to the 

High Court. The High Court dismissed these appeals affirming the conviction and 

sentence passed by the learned Additional Sessions Judge-II, Bhiwani. Udeyveer 

has not preferred any further appeal. The three appellants before us in these 

three appeals, however, chose to challenge the judgment of the High Court by 

filing special leave petitions, in which leave was granted earlier. 

2) Now, we take note of the case of the prosecution, in brief, which can 

be safely culled out from the impugned judgment of the High Court as there is 

no dispute that the said judgment correctly records the prosecution version: 

3) The deceased Nand Karan, a retired Master, and his wife Suraj Kaur, 

were residing in the house known as 'Lal Kothi' situated on the Loharu Road, 

Dadri. On May 24, 2001, at about 8.00 p.m., the deceased, his wife and his 

brother Harish Chander Godara were present in the house. While the 

deceased's wife was watering the plants in the lawn, the deceased inside the 

room and his brother on the roof, one young boy aged about 22-25 years, came 

on a scooter. He told Suraj Kaur that he had come from Rohtak and wanted to 

meet Master Nand Karan. When she was talking with that boy, the deceased 

came out of the house to the gate. Suraj Kaur told the deceased that a boy had 

come to meet him. Soon thereafter, the boy took out a pistol from his pant's 

pocket and fired at the deceased on his chest. Another shot was fired at the 

head of the deceased. The deceased fell down crying. After hearing the sound of 

shots fired, Harish Chander Godara, brother of the deceased, immediately came 

down to the spot. After throwing the pistol at the spot, the boy ran away on the 

scooter on which he came. After the occurrence, many persons, including 

Suresh Kumar, s/o. Hoshiar Singh, and Jaipal, s/o. Kamal Singh, reached the 

spot. After arranging vehicle, they took the deceased to the hospital, where he 

was declared dead. Dr. H.L. Beniwal (PW-3), who attended the deceased at the 

hospital, declared him dead and sent a ruqqa (Exhibit PE) to the Station House 

673 



Officer, Dadri Police Station at 9.10 p.m., regarding the dead body being 

brought by Suresh Kumar and Jaipal. 

4) In the hospital, statement of Suraj Kaur (Exhibit PA) was recorded by 

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Sub-Inspector Ram Chander (PW-17) on May 24, 2001 at 11.00 p.m. In her 

statement, she narrated the abovesaid occurrence and further stated that her 

husband was got murdered by Dr. Indra Dalal, her brother Bijender @ Vijay and 

Mahabir, through some unknown person, by hatching a conspiracy. The cause of 

grudge, as stated by her, was that an allegation of murder was levelled by them 

against her husband, her son Ravinder Kumar and one Sandeep, s/o. Mahabir 

Singh and in that regard a criminal trial under Section 302 IPC was pending. Her 

son and Sandeep are in jail in connection with the alleged murder. However, her 

husband was released on bail about three months back. Due to the said grudge, 

Indra Dalal, her brother Bijender @ Vijay and Mahabir committed the murder of 

her husband by hiring a contract killer in a conspiracy. On the basis of the said 

statement, FIR (Exhibit PA/1) was registered at Police Station Dadri on May 24, 

2001 at 11.10 p.m. Special report of the said FIR was received by the area 

Magistrate at 12.30 a.m. on May 25, 2001. 

5) On May 25, 2001, post mortem of the deceased was conducted by 

Dr. Anil Chaudhary (PW-4), Dr. H.L. Beniwal and Dr. Giri Raj. They found two gun 

shot injuries on the body of the deceased, one on the chest and the other on 

the brain. One pallet each was got removed from those injuries. In the post 

mortem report (Exhibit PF), the cause of death of the deceased was stated to be 

haemorrhage and shock due to gun shot injury on vital organs. 

6) The prosecution case, thus, in nutshell is this: One Dipender @ Banti, 

who was the son of the appellant Indra Dalal and nephew of Bijender, was 

murdered, in which deceased Nand Karan was implicated along with his sons, 

namely, Ravinder Kumar and Sandeep, who were even in jail in that connection. 

In order to take revenge, the appellants Indra Dalal and her brothers Bijender 

and Mahabir had hatched a conspiracy to kill Nand Karan, for which they 

enticed Udeyveer and got him murdered through him. 

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7) Investigation was conducted on the basis of the aforesaid FIR. During 

the investigation, statements of Suresh and Harish Chander Godara were 

recorded. Harish Chander Godara mentioned that the registration number of 

the scooter, on which the assailant Udeyveer came, was HR 20G 1102. The 

clothes of the deceased, one fired bullet, one cartridge of fired bullet were 

seized along with certain other articles, on which CFL report was obtained. Post 

mortem was conducted on the body of the deceased. 

8) On May 31, 2001, appellant Bijender was arrested. He allegedly made 

a disclosure/confessional statement (Exhibit PH) admitting the aforesaid 

conspiracy and motive for committing the murder of the deceased. On June 02, 

2001, appellant Indra Dalal was arrested and she also made a similar 

disclosure/confessional statement (Exhibit PT). On the same day, another 

confessional statement (Exhibit PK) was made by Bijender. 

9) As per the investigation, Police recorded the statement of one 

Pradeep Kumar, s/o. Daya Nand, on July 07, 2001, who was a resident of Charkhi 

Dadri. He stated that on May 27, 2001, he had went to the clinic of the appellant 

Indra Dalal for medical checkup of his wife. At that time, Bijender came there 

and both the appellants went inside. When she did not come out for some time, 

Pradeep Kumar went near the door, which was slightly open, and heard the 

talks of both the appellants, as per which Bijender was telling Indra Dalal that he 

had engaged Udeyveer for killing Nand Karan. During investigation, a cream 

colour LML scooter bearing registration No. HR 20G 1102 was recovered on July 

13, 2001 from the old house of Indra Dalal vide recovery Exhibit PD. 

675 


10) Thereafter, the other appellant Jaibir was arrested on December 10, 

2001, who also gave his disclosure/confessional statement (Exhibit PL) to the 

same effect as was given by the other two appellants Indra Dalal and Bijender. 

He further stated that he had given the scooter in question to Udeyveer and 

Ramesh for that purpose. On his naming Ramesh, he was also arrested and his 

disclosure/ confessional statement (Exhibit PO) was recorded on December 23, 

2001 on the same lines. After investigation, challan was filed against these 

accused persons, except Udeyveer, who could not be arrested and was declared


a proclaimed offender. However, during the pendency of the trial, Udeyveer 

was also arrested on February 07, 2004. His disclosure/confessional statement 

(Exhibit PN) was recorded as well. 

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11) During the trial, in the challan/case filed against these appellants 

and also against Ramesh, the prosecution examined eighteen witnesses. These 

include Suraj Kaur/complainant (PW-1), who supported the prosecution version, 

Harish Chander Godara, brother of the deceased (PW-2), who had also 

supported the prosecution version, Dr. H.L. Beniwal (PW-3), who had sent ruqqa 

(Exhibit PE) to the Station House Officer, Police Station Dadri, Dr. Anil Chaudhary 

(PW-4), who conducted the post mortem of the deceased, and Pradeep Kumar 

(PW-7), who was the alleged witness of conspiracy, but he did not support the 

prosecution version and was declared hostile. Other witnesses were mostly 

police officials who proved one or the other disclosure/confessional statements 

of these accused persons as well as the Investigating Officer who conducted the 

investigation. Gulab Singh (PW-18), Registration Clerk with the Regional 

Transport Office, was also produced, who stated that as per the record, Jaibir 

s/o. Kanshi Ram, was the owner of the scooter which was seized by the Police. 

In the statements of the accused persons recorded under Section 313 of the 

Code of Criminal Procedure, 1973, all of them stated that they were innocent 

and were falsely implicated in the case. They also pleaded that their 

confessional statements were recorded by putting pressure upon them to 

compromise the matter of murder of son of Indra Dalal. 

12) Supplementary charge-sheet was filed against accused Udeyveer, in 

which the prosecution examined seventeen witnesses. However, since 

Udeyveer has not filed any appeal, we are eschewing the discussion pertaining 

to the evidence appearing against him. 

13) As mentioned above, the trial court acquitted only Ramesh and 

convicted all other accused persons and the High Court has affirmed the same. 

The reading of the impugned judgment of the High Court would disclose that 

major portion of the judgment is devoted to the alleged role of accused 

Udeyveer and the Court came to the conclusion that there was sufficient 

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evidence against him proving his guilt, who had actually murdered the 

deceased. Insofar as the appellants are concerned, admittedly they have not 

taken active part in the commission of crime, namely, there is no actus reus. 

However, they have been implicated as the accused who actively hatched 

conspiracy to murder the deceased and for this purpose hired the assassin 

Udeyveer for a consideration of Rs. 3,00,000/-. Thus, the central issue in these 

appeals, qua these appellants, is as to whether the prosecution has been able to 

prove the involvement of the appellants with the aid of Section 120-B of the IPC. 

14) As mentioned above, the prosecution had produced one witness, 

Pradeep Kumar (PW-7), who was allegedly the witness of conspiracy. However, 

during trial, he did not support the prosecution version and was declared 

hostile. Therefore, there is no witness to this conspiracy. No doubt, such 

conspiracies are normally hatched in dark and clandestinely and there may not 

be any eye witnesses. We have to see from the circumstantial evidence or other 

evidence produced as to whether such a charge is established or not. In the 

present case, the conviction is recorded by the trial court and upheld by the 

High Court against these appellants primarily on the basis of their confessional 

statements and recovery of the scooter from the house of Indra Dalal. 

Therefore, it is to be examined as to whether conviction could be sustained on 

the basis of such statements. 15) Mr. Sushil Kumar, learned senior counsel 

appearing for the appellants Indra Dalal and Bijender, argued that these 

confessional statements were admittedly recorded after the arrest of these 

accused and when these accused were in police custody. Therefore, such 

statements were inadmissible having regard to the provisions of Sections 25 and 

26 of the Indian Evidence Act, 1872. Section 25 of the Evidence Act mandates 

so, in certain and unequivocal terms, as is clear from the language thereof. It 

reads as follows: 

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“25. Confession to police officer not to be proved. - No 

confession made to a police officer shall be proved as against a person 

accused of any offence.” 

Likewise, Section 26 makes any such statement inadmissible if given


when in police custody. It reads: 

“26. Confession by accused while in custody of police not to be 

proved against him. – No confession made by any person whilst he is in 

the custody of a police-officer, unless it be made in the immediate 

presence of a Magistrate, shall be proved as against such person. 

Explanation. – In this section “Magistrate” does not include the 

head of a village discharging magisterial functions (in the Presidency of 

Fort St. George or elsewhere), unless such headman is a Magistrate 

exercising the powers of a Magistrate under the Code of Criminal 

Procedure, 1882.” 

16) The philosophy behind the aforesaid provision is acceptance of a 

harsh reality that confessions are extorted by the police officers by practicing 

oppression and torture or even inducement and, therefore, they are unworthy 

of any credence. The provision absolutely excludes from evidence against the 

accused a confession made by him to a police officer. This provision applies 

678 


even to those confessions which are made to a police officer who may not 

otherwise be acting as such. If he is a police officer and confession was made in 

his presence, in whatever capacity, the same becomes inadmissible in evidence. 

This is the substantive rule of law enshrined under this provision and this strict 

rule has been reiterated countlessly by this Court as well as the High Courts. 

17) The word 'confession' has no where been defined. However, the 

courts have resorted to the dictionary meaning and explained that incriminating 

statements by the accused to the police suggesting the inference of the 

commission of the crime would amount to confession and, therefore, 

inadmissible under this provision. It is also defined to mean a direct 

acknowledgment of guilt and not the admission of any incriminating fact, 

however grave or conclusive. Section 26 of the Evidence Act makes all those 

confessions inadmissible when they are made by any person, whilst he is in the 

custody of a police officer, unless such a confession is made in the immediate 

presence of a Magistrate. Therefore, when a person is in police custody, the 

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confession made by him even to a third person, that is other than a police 

officer, shall also become inadmissible. 

18) In the present case, as pointed out above, not only the confessions 

were made to a police officer, such confessional statements were made by the 

appellants after their arrest while they were in police custody. In Bullu Das v. 

State of Bihar *** 1 (1998) 8 SCC 130 , while dealing with the confessional 

statements made by accused before a police officer, this Court held as under: 

“7. The confessional statement, Ex.5, stated to have been made 

by the appellant was before the police officer in charge of the Godda 

Town Police Station where the offence was registered in respect of the 

murder of Kusum Devi. The FIR was registered at the police station on 8- 

8-1995 at about 12.30 p.m. On 9-8-1995, it was after the appellant was 

arrested and brought before Rakesh Kumar that he recorded the 

confessional statement of the appellant. Surprisingly, no objection was 

taken by the defence for admitting it in evidence. The trial court also did 

not consider whether such a confessional statement is admissible in 

evidence or not. The High Court has also not considered this aspect. The 

confessional statement was clearly inadmissible as it was made by an 

accused before a police officer after the investigation had started.” 

679 


19) Notwithstanding the same, the trial court as well as the High Court 

had relied upon these confessions on the basis of these statements, coupled 

with 'other connected evidence available on the record', particularly the 

recovery of the scooter from the old house of accused Indra Dalal and the 

disclosure/confessional statement (Mark A) made by Jaibir in another case 

bearing FIR No. 718 dated November 30, 2001 registered under Sections 

420/407/463/471/120-B IPC and Sections 25/54/59 of the Arms Act, 1959 

registered at Police Station: Civil Lines, Hisar, which has been proved by 

Inspector Ram Avatar (PW-15). 

20) What follows from the above reasoning given by the High Court is 

that the confessional statements were supported with other evidence. Though


the High Court has mentioned 'other connected evidence', what is relied upon is 

the recovery of scooter and the disclosure/confessional statement made by 

Jaibir in some other case. No other evidence is pointed out by the High Court. 

On our specific query to the learned counsel for the State during the arguments, 

he also conceded that the only 'connected evidence available on record' was the 

recovery of scooter and the confessional statement (Mark A) made by Jaibir in 

FIR No. 718 dated November 30, 2001. This approach of the High Court relying 

upon the confessional statements, otherwise inadmissible, with the aid of 'other 

connected evidence' is contrary to law. We harbour serious doubts about basing 

criminal punishment on such an unapproach, not permissible in law. This 

conclusion gets strengthened as we proceed to discuss the nuances of legal 

principles and its application to the factual canvas herein. 

21) The question is as to whether these could be taken into 

consideration to believe the confessional statements by the appellants, which 

were otherwise inadmissible in law. 

680 


22) The only portion of the information contained in the confessional 

statements that may be proved is provided under Section 27 of the Evidence 

Act, which reads as under: 

“27. How much of information received from accused may be 

proved. - Provided that, when any fact is deposed to as discovered in 

consequence of information received from a person accused of any 

offence, in the custody of a police officer, so much of such information, 

whether it amounts to a confession or not, as relates distinctly to the 

fact thereby discovered, may be proved.” 

23) It is clear that Section 27 is in the form of proviso to Sections 25 and 

26 of the Evidence Act . It makes it clear that so much of such information which 

is received from a person accused of any offence, in the custody of a police 

officer, which has led to discovery of any fact, may be used against the accused. 

Such information as given must relate distinctly to the fact discovered. In the 

present case, the information provided by all the accused/ appellants in the 

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form of confessional statements, has not led to any discovery. More starkly put, 

the recovery of scooter is not related to the confessional statements allegedly 

made by the appellants. This recovery was pursuant to the statement made by 

Harish Chander Godara. It was not on the basis of any disclosure statements 

made by these appellants. Likewise, insofar as confessional statement (Mark A) 

allegedly given by Jaibir is concerned, that is again in another FIR. We shall come 

to its admissibility separately. Therefore, the situation contemplated under 

Section 27 of the Evidence Act also does not get attracted. Even if the scooter 

was recovered pursuant to the disclosure statement, it would have made the 

fact of recovery of scooter only, as admissible under Section 27 of the Evidence 

Act, and it would not make the so-called confessional statements of the 

appellants admissible which cannot be held as proved against them. 

24) At this juncture, let us discuss as to whether the disclosure/ 

confessional statement (Mark A) made by appellant Jaibir in another case would 

be relevant to prove the charge of conspiracy. It would be pertinent to point out 

that this statement is made by Jaibir much after the incident, when, naturally, 

the common intention had ceased to exist. On this ground alone it would not be 

admissible. We would like to refer to the judgment of this Court in Mohd. Khalid 

v. State of West Bengal *** 2 (2002) 7 SCC 334 wherein this Court held: 

681 


“33. In view of what we have said about the confessional 

statement it is not necessary to go into the question as to whether the 

statement recorded under Section 164 of the Code has to be given 

credence even if the confessional statement has not been recorded 

under Section 15 of the TADA Act. However, we find substance in the 

stand of learned counsel for the accusedappellants that Section 10 of 

the Evidence Act which is an exception to the general rule while 

permitting the statement made by one conspirator to be admissible as 

against other conspirator restricts it to the statements made during the 

period when the agency subsisted. In State of Gujarat v. Mohd. Atik 

[(1998) 4 SCC 351] it was held that the principle is no longer res integra 

that any statement made by an accused after his arrest, whether as a


confession or otherwise, cannot fall within the ambit of Section 10 of 

the Evidence Act. Once the common intention ceased to exist, any 

statement made by a former conspirator thereafter cannot be regarded 

as one made in reference to their common intention. In other words, 

the post-arrest statement made to a police officer, whether it is a 

confession or otherwise touching his involvement in the conspiracy, 

would not fall within the ambit of Section 10 of the Evidence Act.” 

25) Likewise, in Firozuddin Basheeruddin & Ors. v. State of Kerala *** 3 

(2001) 7 SCC 596 , this Court discussed the law of conspiracy exhaustively and 

following passages therefrom would be sufficient to elucidate the legal position 

enshrined in Sections 120-A and 120-B of the IPC: 

“25. Conspiracy is not only a substantive crime, it also serves as 

a basis for holding one person liable for the crimes of others in cases 

where application of the usual doctrines of complicity would not render 

that person liable. Thus, one who enters into a conspiratorial 

682 


relationship is liable for every reasonably foreseeable crime committed 

by every other member of the conspiracy in furtherance of its 

objectives, whether or not he knew of the crimes or aided in their 

commission. The rationale is that criminal acts done in furtherance of a 

conspiracy may be sufficiently dependent upon the encouragement and 

support of the group as a whole to warrant treating each member as a 

casual agent to each act. Under this view, which of the conspirators 

committed the substantive offence would be less significant in 

determining the defendant's liability than the fact that the crime was 

performed as a part of a larger division of labour to which the accused 

had also contributed his efforts. 

26. Regarding admissibility of evidence, loosened standards 

prevail in a conspiracy trial. Contrary to the usual rule, in conspiracy 

prosecutions, any declaration by one conspirator, made in furtherance 

of a conspiracy and during its pendency, is admissible against each coconspirator. 

Despite the unreliability of hearsay evidence, it is 

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admissible in conspiracy prosecutions. Explaining this rule, Judge Hand 

said: 

“Such declarations are admitted upon no doctrine of 

the law of evidence, but of the substantive law of crime. When 

men enter into an agreement for an unlawful end, they become 

ad hoc agents for one another, and have made 'a partnership in 

crime'. What one does pursuant to their common purpose, all 

do, and as declarations may be such acts, they are competent 

against all. (Van Riper v. United States, 13 F 2d 961, 967 (2d Cir 

1926)).” 

27. Thus conspirators are liable on an agency theory for 

statements of co-conspirators, just as they are for the overt acts and 

crimes committed by their confreres.” 

26) The Court also noted the earlier judgment in the case of State v. 

Nalini *** 4 (1999) 5 SCC 253 wherein the principles governing the law of 

conspiracy had been summarized. Those principles are reproduced in para 32 of 

the judgment. For our purposes, principle No.2 is reproduced as under: 

“2. Acts subsequent to the achieving of the object of conspiracy 

may tend to prove that a particular accused was party to the conspiracy. 

Once the object of conspiracy has been achieved, any subsequent act, 

which may be unlawful, would not make the accused a part of the 

conspiracy like giving shelter to an absconder.” 

683 


Thus, the alleged disclosure/confessional statement (Mark A) made by 

Jaibir in another case would be of no consequence. 

27) With this, we now discuss the evidentiary value of the recovery of 

scooter. 

28) Sub-Inspector Ram Chander, who was the Investigating Officer and 

who appeared as PW-17, deposed in his statement that on July 13, 2001, the 

scooter in question, which was allegedly used in the offence, was recovered 

from the house of Indra Dalal. It was parked in verandah and the same was

684 



taken into possession vide recovery memo Exhibit PD. It is important to note 

that on July 13, 2001, appellant Indra Dalal was in jail, as she was arrested on 

June 02, 2001, when the so-called recovery was made. Recovery was, thus, 

made in her absence. Harish Chander Godara, brother of the deceased, 

appeared as PW-2. According to him, he was at the roof of the house at the 

time when a boy came and shot at his brother. He rushed from upstairs to the 

ground floor and saw the boy leaving on scooter towards the town. He noted 

down the number of the scooter which was HR 20G 1102 and was of cream 

colour. He further stated that on July 13, 2001, on seeing the police vehicle near 

bus stand, he went to the Police to enquire about the case. During that time, 

one informant informed the police that one scooter bearing No. HR 20G 1102 

was standing in the store of the old house of Indra Dalal. It would be of interest 

to point out that the Investigating Officer (PW-17) had earlier gone to the house 

of Indra Dalal immediately after the incident, but did not find any scooter. If the 

registration number of the scooter was given by PW-2 during investigation and 

the Investigating Officer had visited the house of Indra Dalal, how he could not 

find the scooter parked there with the same number on that date. All these 

facts cast a shadow of doubt on the alleged recovery of scooter from the house 

of appellant Indra Dalal. 

29) Appellant Jaibir has denied that the scooter in question belonged to 

him. In order to prove his ownership, the prosecution had produced Gulab Singh 

(PW-18), Registration Clerk with Regional Transport Office. He produced on 

record application (Exhibit PZ) moved by the police officer and report (Exhibit 

PZ/1) made by Pavan Kumar, Clerk working in the Regional Transport Office. No 

documents have been produced to show the ownership of Jaibir. Only the 

report prepared by Pavan Kumar, Clerk, allegedly on the basis of the record, is 

produced. That cannot partake the character of primary evidence. Moreover, in 

the crossexamination of PW-18, he has accepted that there is cutting in the 

relevant entry of ownership. He also admitted that he had not brought the 

forms/applications for change of ownership of the scooter in question. He 

further mentioned that as per the record, the original registration of the scooter 

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was in the name of one Vipul Kaushal, s/o. Prithi Singh, resident of Hisar. In such 

a circumstance, necessary evidence was required to prove how the ownership 

changed hands and came to be recorded in the name of Jaibir. No such evidence 

has been produced. We are, therefore, of the opinion that there is no sufficient 

evidence to prove the ownership of the scooter in the name of Jaibir. 

30) Aforesaid discussion leads us to conclude that the entire bucket of 

evidence is either inadmissible putting the roadblock creating by the Evidence 

Act or unbelievable/untrustworthy. For all the aforesaid reasons, we are of the 

view that the prosecution has miserably failed to prove, beyond reasonable 

doubt, the charge of conspiracy against these appellants with the aid of Section 

120-B of IPC. As a result, the appeals are allowed and the impugned judgment 

and sentence are, accordingly, set aside. During the pendency of these appeals, 

sentence of the appellant Indra Dalal had been suspended. Her bail bonds shall, 

accordingly, stand discharged. The other two appellants, namely, Bijender @ 

Vijay and Jaibir, shall be released from jail forthwith, unless they are required in 

any other case. 

SS -- 

685 





Present: Justice Anil R. Dave, Justice Madan B. Lokur, and Justice Kurian Joseph 

MUNNA LAL JAIN and another - Appellant, 

VERSUS 

VIPIN KUMAR SHARMA and others - Respondent. 

Civil Appeal No. 4497 OF 2015 (Arising from S.L.P. (C) No. 8362/2013) 

(i) Motor Vehicles Act, 1998 (59 of 1988) - Compensation - In the 

absence of any statutory and a straight jacket formula, there are bound 

to be grey areas despite several attempts made by this Court to lay 

down the guidelines - Compensation would basically depend on the 

evidence available in a case and the formulas shown by the courts are 

only guidelines for the computation of the compensation - That 

precisely is the reason the courts lodge a caveat stating “ordinarily”, 

686 


“normally”, “exceptional circumstances”, etc., while suggesting the 

formula. [Para 3] 

(ii) Motor Vehicles Act, 1998 (59 of 1988) - Deceased - Aged 30 

years – Bachelor - Deduction of 50% towards the personal and living 

expenses – Future prospects 50% - Multiplier, in the case of the age of 

the deceased between 26 to 30 years is 17 - Bachelor. 


1. (2012-3)167 P.L.R. 803, (2012) 6 SCC 421, Santosh Devi v. National 

Insurance Company Limited *** 

1. (2009-3)155 P.L.R.22 (S.C.) , (2009) 6 SCC 121 , Sarla Verma (Smt.) v. 

Delhi Transport Corporation *** 

2. (2013) 9 SCC 65, Reshma Kumari v. Madan Mohan. *** 

3. (2014-1)173 P.L.R. 779 (S.C.), (2013) 9 SCC 54, Rajesh v. Rajbir Singh 

JUDGMENT 

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Kurian, J. –( May 15, 2015)- Leave granted. 

2. The never ending dispute on computation of compensation under the 

Motor Vehicles Act, 1988 (hereinafter referred to as ‘the Act’), is the subject 

matter of this appeal as well. 

3. In the absence of any statutory and a straight jacket formula, there 

are bound to be grey areas despite several attempts made by this Court to lay 

down the guidelines. Compensation would basically depend on the evidence 

available in a case and the formulas shown by the courts are only guidelines for 

the computation of the compensation. That precisely is the reason the courts 

lodge a caveat stating “ordinarily”, “normally”, “exceptional circumstances”, 

etc., while suggesting the formula. 

4. In the case before us, the appellants are the claimants before the 

Motor Accidents Claims Tribunal, Karkardooma, Delhi in M.A.C.T. No. 736/2008. 

They are the parents of late Satendra Kumar Jain, aged 30 years, who died in a 

motor accident on 12.07.2008. He was self-employed as Pandit. He was a 

bachelor. Hence, the claim by the parents. 

5. The appellants claimed an amount of Rs.95,50,000.00. The Claims 

Tribunal awarded a total compensation of Rs.6,59,000.00 including loss of 

dependency to the tune of Rs.6,24,000.00 with interest @ 7.5 per cent from the 

date of institution of the petition. Dissatisfied, appellants approached the High 

Court of Delhi in MAC APP. 687/2011 leading to the impugned judgment. The 

High Court enhanced the compensation and fixed it at Rs.12,61,800.00 with 

interest as ordered by the Claims Tribunal. 

687 


6. The High Court fixed the monthly income to Rs.12,000.00 and added 

30% towards future prospects relying on Santosh Devi v. National Insurance 

Company Limited *** 1, (2012-3)167 P.L.R. 803, (2012) 6 SCC 421. 50 per cent 

was deducted towards personal expenditure and a multiplier of 13 was applied. 

Still not satisfied, the claimants are before this Court. 

7. On 08.02.2013, this Court issued notice … “confined to the issues on 

application of correct multiplier and reduction of the amount”. In other words,


the Court intended to consider the appeal limited to the question of application 

of multiplier and deduction on account of personal and living expenses. 

8. On the issue of deduction towards personal and living expenses in 

Sarla Verma (Smt.) v. Delhi Transport Corporation *** 2 , (2009-3)155 P.L.R.22 

(S.C.) , (2009) 6 SCC 121 at paragraph-31, it was held that: 

“31. … In regard to bachelors, normally, 50% is deducted as 

personal and living expenses, because it is assumed that a bachelor 

would tend to spend more on himself. Even otherwise, there is also the 

possibility of his getting married in a short time, in which event the 

688 


contribution to the parent(s) and siblings is likely to be cut drastically. 

Further, subject to evidence to the contrary, the father is likely to have 

his own income and will not be considered as a dependant and the 

mother alone will be considered as a dependant. In the absence of 

evidence to the contrary, brothers and sisters will not be considered as 

dependants, because they will either be independent and earning, or 

married, or be dependent on the father.” 

9. The deduction ordinarily in the case of a bachelor at 50 % was 

approved recently by a three-Judge Bench decision in Reshma Kumari v. Madan 

Mohan. *** 3 (2013) 9 SCC 65, holding that the standard fixed in Sarla Verma 

(supra) on the aspect of deduction for personal and living expenses … “must 

ordinarily be followed unless a case for departure in the circumstances noted in 

the preceding paragraph is made out”. Preceding paragraph-41 reads as follows: 

“41. The above does provide guidance for the appropriate 

deduction for personal and living expenses. One must bear in mind that 

the proportion of a man’s net earnings that he saves or spends 

exclusively for the maintenance of others does not form part of his 

living expenses but what he spends exclusively on himself does. The 

percentage of deduction on account of personal and living expenses 

may vary with reference to the number of dependent members in the 

family and the personal living expenses of the deceased need not 

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exactly correspond to the number of dependants.” 

10. In the case before us, there are no such exceptional circumstances 

or compelling reasons for deviation on the basis of evidence and therefore 

deduction of 50% towards the personal and living expenses is not to be 

disturbed. 

11. As far as future prospects are concerned, in Rajesh and others v. 

Rajbir Singh and others 4 (2014-1)173 P.L.R. 779 (S.C.) , (2013) 9 SCC 54, a 

three-Judge Bench of this Court held that in case of self-employed persons also, 

if the deceased victim is below 40 years, there must be addition of 50% to the 

actual income of the deceased while computing future prospects. To quote: 

“8. Since, the Court in Santosh Devi case actually intended to 

follow the principle in the case of salaried persons as laid down in Sarla 

Verma case and to make it applicable also to the self-employed and 

persons on fixed wages, it is clarified that the increase in the case of 

those groups is not 30% always; it will also have a reference to the age. 

In other words, in the case of self-employed or persons with fixed 

wages, in case, the deceased victim was below 40 years, there must be 

an addition of 50% to the actual income of the deceased while 

computing future prospects. Needless to say that the actual income 

should be income after paying the tax, if any. Addition should be 30% in 

case the deceased was in the age group of 40 to 50 years.” 

689 


The deceased being of the age of 30 years, 50% is the required addition. 

12. The remaining question is only on multiplier. The High Court 

following Santosh Devi (supra), has taken 13 as the multiplier. Whether the 

multiplier should depend on the age of the dependants or that of the deceased, 

has been hanging fire for sometime; but that has been given a quietus by 

another three-Judge Bench decision in Reshma Kumari (supra). It was held that 

the multiplier is to be used with reference to the age of the deceased. One 

reason appears to be that there is certainty with regard to the age of the 

deceased but as far as that of dependants is concerned, there will always be


room for dispute as to whether the age of the eldest or youngest or even the 

average, etc., is to be taken. To quote: 

“36. In Sarla Verma, this Court has endeavoured to simplify the 

otherwise complex exercise of assessment of loss of dependency and 

determination of compensation in a claim made under Section 166. It 

has been rightly stated in Sarla Verma that the claimants in case of 

death claim for the purposes of compensation must establish (a) age of 

the deceased; (b) income of the deceased; and (c) the number of 

dependants. To arrive at the loss of dependency, the Tribunal must 

consider (i) additions/deductions to be made for arriving at the income; 

(ii) the deductions to be made towards the personal living expenses of 

the deceased; and (iii) the multiplier to be applied with reference to the 

age of the deceased. We do not think it is necessary for us to revisit the 

law on the point as we are in full agreement with the view in Sarla 

Verma.” 

690 


13. In Sarla Verma (supra), at paragraph-19, a two-Judge Bench dealt 

with this aspect in Step 2. To quote: 

“19. xxxxxx xxx 

Step 2 (Ascertaining the multiplier) Having regard to the age of 

the deceased and period of active career, the appropriate multiplier 

should be selected. This does not mean ascertaining the number of 

years he would have lived or worked but for the accident. Having regard 

to several imponderables in life and economic factors, a table of 

multipliers with reference to the age has been identified by this Court. 

The multiplier should be chosen from the said table with reference to 

the age of the deceased.” 

14. The multiplier, in the case of the age of the deceased between 26 to 

30 years is 17. There is no dispute or grievance on fixation of monthly income as 

Rs.12,000.00 by the High Court. 

15. Thus, the appellants are entitled to compensation of 

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Rs.18,36,000.00 towards loss of dependency, which is calculated as follows 

CALCULATION 

Rs.12,000/- (Monthly Income) add [50% of Rs.12,000/- 

(Future Prospects)] = 

TOTAL (IN RS.) 

18,000.00 

50% of [Rs.18,000/- (Deductions)] = 9,000.00 

[Rs.9,000/-] multiply by [12(Annual Income)] = 1,08,000.00 

[Rs.1,08,000/-] multiply by [17(Multiplier)] = 18,36,000.00 

There shall be no change on the amounts awarded by the High Court on 

other heads or on rate of interest. 

16. The appeal is allowed as above. There shall be no order as to costs. 

Ss - Appeal Allowed 

691 





Present: Justice A.K. Sikri and Justice Uday Umesh Lalit 

SHABNAM - Petitioner, 

VERSUS 

UNION OF INDIA & Ors. – Respondent. 

Writ Petition (Criminal) No. 88 of 2015 with Writ Petition (Criminal) No. 89 of 

2015 

(I) Constitution of India, Article 136, 137 – Appeal and review – 

Death sentence - Supreme Court pronounced judgment on 15.05.2015 

dismissing appeal under Article 136 confirming the death penalty and 

within six days of the dismissal of the criminal appeals, learned Sessions 

692 


Judge issued the death warrants on 21.05.2015 - This is clearly 

impermissible and unwarranted for various reasons - First and foremost 

reason is that the convicts have not exhausted their judicial and 

administrative remedies, which are still open to them even if their 

appeals in the highest Court have failed affirming the imposition of 

death penalty - Those appeals were filed via the route of Article 136 of 

the Constitution - However, law gives such persons another chance, 

namely, to seek review of the orders so passed, by means of filing of 

review petition - It is to provided under Article 137 of the Constitution - 

The limitation of 30 days is prescribed for filing such review petitions - 

We have to emphasize at this stage that in case of convicts facing death 

penalty, the remedy of review has been given high procedural sanctity - 

Review petition in a case of death sentence shall be heard in the open 

court by giving an opportunity to the review petitioner to make oral 

submissions, unlike other review petitions which are decided by the 

Court by circulation in Chambers - Not only this, such a review petition 

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is to be heard by a Bench consisting of minimum three Judges . 

[Para 13] 

(ii) Constitution of India, Article 21, 72, 136, 137, 161 Death 

Sentence - Supreme Court pronounced judgment on 15.05.2015 

dismissing appeal under Article 136 confirming the death penalty and 

within six days of the dismissal of the criminal appeals, learned Sessions 

Judge issued the death warrants on 21.05.2015 - 

impermissible and unwarranted for various reasons – 

This is clearly 

(I) First and foremost reason is that the convicts have not exhausted 

their judicial and administrative remedies, which are still open to them even if 

their appeals in the highest Court have failed affirming the imposition of death 

penalty. Those appeals were filed via the route of Article 136 of the 

Constitution. However, law gives such persons another chance, namely, to seek 

review of the orders so passed, by means of filing of review petition. It is to 

provided under Article 137 of the Constitution. 

(II) That apart, right to file mercy petitions to the Governor of the State 

as well as to the President of India also remains intact. 

693 


(III) Article 21 of the Constitution lays down that nobody shall be 

deprived of his life and liberty except according to the procedure established by 

law. After long judicial debate, it now stands settled that the procedure 

established by law has to be 'due procedure' 

(IV) There is another facet of right to life enshrined in Article 21 of the 

Constitution which needs to be highlighted at this juncture, namely, 'human 

dignity'. Article 21 has its traces in the dignity of human being. It has been 

recognized as part of Article 21 of the Constitution. 

(iii) Constitution of India, Article 72, Article 161 - Right to file 

mercy petitions to the Governor of the State as well as to the President 

of India 

- These remedies are also of substance and not mere

694 



formalities - Power to pardon is a part of the constitutional scheme 

which has been reposed by the people through the Constitution in the 

Head of the State, and enjoys high status - In exercise of their powers, 

the President or the Governor, as the case may be, may examine the 

evidence afresh and this exercise of power is clearly independent of the 

judiciary - It is clarified that while exercising such a power, the 

Executive is not sitting as a Court of Appeal - Rather power to grant 

remission of sentence is an act of grace, humanity in appropriate cases, 

i.e. distinct, absolute and unfettered in nature - This is again a 

constitutional remedy provided to the convicts of death sentence and 

they have a right to avail this remedy which cannot be snatched by 

executing the death sentence before even giving such convicts a chance 

or opportunity to avail the same - For this purpose, State has to wait for 

reasonable period, even after such convicts fail in the review petition, if 

they so file. 

[Para 13 (ii)] 

(iv) Constitution of India, Article 21 - Lays down that nobody 

shall be deprived of his life and liberty except according to the 

procedure established by law - It now stands settled that the procedure 

established by law has to be 'due procedure' - By judicial interpretation, 

this Court has read the principle of reasonableness into the said 

procedure contemplated by Article 21, holding that it must be 'right and 

just and fair' and not arbitrary, fanciful or oppressive - Even as per the 

statute book, this procedure does not culminate with the dismissal of 

appeals of the convicts by the final Court - No doubt, when an accused 

is tried of an offence by a competent court of law and is imposed such 

death penalty and the said death penalty is upheld by the highest Court, 

the procedure that is established by law has been followed up to this 

stage - However, in the statutory framework, further procedural 

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safeguards in the form of judicial review as well as mercy petitions are 

yet to be traversed - This would also be covered by the expression 

'procedure established by law' occurring in Article 21 - Therefore, till the 

time limitation period for filing the review petition and thereafter 

reasonable time for filing the mercy petition has not lapsed, issuing of 

death warrants would be violative of Article 21 - Death Sentence. 

[Para 13(iii)] 

(v) Constitution of India, Article 21 - 'human dignity' - Article 21 

has its traces in the dignity of human being. It has been recognized as 

part of Article 21 -Once we recognize this aspect of dignity of human 

being, it does not end with the confirmation of death sentence, but 

goes beyond and remains valid till such a convict meets his/her destiny 

- Therefore, the process/procedure from confirmation of death 

sentence by the highest Court till the execution of the said sentence, 

the convict is to be treated with human dignity to the extent which is 

reasonable and permissible in law – Death Sentence. 

[Para 13(iv)] 

695 


Held, 

This right to human dignity has many elements. First and foremost, 

human dignity is the dignity of each human being 'as a human being'. Another 

element, which needs to be highlighted, in the context of the present case, is 

that human dignity is infringed if a person's life, physical or mental welfare is 

armed. It is in this sense torture, humiliation, forced labour, etc. all infringe on 

human dignity. It is in this context many rights of the accused derive from his 

dignity as a human being. These may include the presumption that every person 

is innocent until proven guilty; the right of the accused to a fair trial as well as 

speedy trial; right of legal aid, all part of human dignity. Even after conviction, 

when a person is spending prison life, allowing humane conditions in jail is part 

of human dignity. Prisons reforms or Jail reforms measures to make convicts a


reformed person so that they are able to lead normal life and assimilate in the 

society, after serving the jail term, are motivated by human dignity 

jurisprudence. [Para 15] 

Further Held, 

In this country, however, since the death penalty has been held to be 

constitutionally valid (See Bachan Singh v. State of Punjab 9 (1980) 2 SCC 684), 

we do not have to travel to that extent. At the same time, even if death 

sentence is to be awarded, it has to be in accord with due dignity. In fact, this 

element of human dignity is well recognized in choosing the mode of execution 

of death sentence with general consensus that method of execution of death 

sentence should be such which is certain, humane, quick and decent. 

(vi) Words and Phrases - 'State should not punish with 

vengeance' - Emperor Ashoka. 


696 


1. PIL No. 57810 of 2014 decided on 28.01.2015, Peoples' Union for 

Democratic Rights (PUDR) v. Union of India & Ors. 

1. (2014) 3 SCC 1, Shatrughan Chauhan v. Union of India & Ors. *** 

2. (2014) 9 SCC 737, Mohd. Arif @Ashfaq v. Registrar, Supreme Court of 

India & Ors. *** 

3. (2014) 4 SCC 242, V. Sriharan @ Murugan v. Union of India & Ors. *** 

4. (1978) 1 SCC 248, Maneka Gandhi v. Union of India *** 

5. (2014) 5 SCC 438, National Legal Services Authority v. Union of India & 

Ors 

6. 408 US 238 (1972), Furman v. Georgia 

7. 428 US 153 (1976), Gregg v. Georgia 

8. (1980) 2 SCC 684, Bachan Singh v. State of Punjab *** 

9. (1983) 4 SCC 645, Deena v. Union of India *** 

10. (1978) 4 SCC 494, Sunil Batra v. Delhi Administration & Ors. *** 

ORDER 

A.K. SIKRI, J. - 27 th May, 2015 - Rule. 

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2) Ms. Pinky Anand, learned ASG, accepts notice on behalf of Union of 

India and Ms. Pragati Neekhra, learned counsel, accepts notice on behalf of 

State of Uttar Pradesh. 

3) With the consent of the learned counsel appearing for the parties, we 

have taken up these petitions for final hearing and propose to dispose of these 

writ petitions by this order. 

4) Writ Petition (Criminal) No. 88 of 2015 is filed by Shabnam and Writ 

Petition (Criminal) 89 of 2015 is filed by National Law University, Delhi, 

espousing the cause of Salim. Both Shabnam and Salim (hereinafter referred to 

as, “the convicts”) were co-accused in a murder case, that was tried against 

them on the allegations that they had committed murders of seven persons 

who were the members of Shabnam's family during the intervening night of 

14th and 15th April, 2008. They were tried together and after the trial, the 

learned Sessions Court returned with the finding holding them guilty of the said 

murders, for which they were charged and pronounced death sentence on both 

these convicts vide Judgment and Sentence dated 15.07.2010, subject to 

confirmation by the High Court. 

5) The High Court of Allahabad confirmed the death sentence of both 

the convicts vide Judgment and order dated 26.04.2013. The Judgment of the 

High Court was challenged in this Court and on 15.05.2015, the appeals of the 

convicts were dismissed by this Court as well, thereby confirming the conviction 

as well as sentence of death imposed on them. 

697 


6) The present writ petitions are filed on the allegations that on 

21.05.2015, death warrants have been issued by the learned Sessions Judge, 

which are impermissible inasmuch as various remedies which are available to 

the convicts, even after the dismissal of the appeals by this Court, are still open 

and yet to be exercised by them. It is submitted that these convicts can file 

review petition seeking review of the judgment dated 15.05.2015. They also 

have the right to file mercy petitions to the Governor of Uttar Pradesh and to 

the President of India. In these circumstances, the execution of the death


warrants within six days of the dismissal of the Criminal Appeals is challenged as 

illegal and contrary to the provisions of Article 21 of the Constitution of India. 

7) Notice of these petitions was issued to the Union of India as well as 

to the State of Uttar Pradesh on 25.05.2015. Ms. Pinky Anand, learned ASG, has 

appeared on behalf of the Union of India and Ms. Pragati Neekhra, learned 

counsel, has appeared on behalf of the State of Uttar Pradesh. 

8) Ms. Pinky Anand, learned ASG, has brought to our notice the 

instructions issued by the Ministry of Home Affairs, Government of India, which 

delineates the procedure regarding petitions for mercy in death sentence cases. 

She has referred to the following portion from the said instructions which 

impose certain duties on the Superintendent of Jail in connection with petitions 

for mercy from or on behalf of the convicts in sentence of death, paragraph (II) 

thereof reads as under: 

“On receipt of the intimation of the dismissal by the Supreme 

Court of the appeal or the application for special leave to appeal to it 

698 


lodged by or on behalf of the convict, in case the convict concerned has 

made no previous petition for mercy, the Jail Superintendent shall 

forthwith inform him (the convict) that if he desires to submit a petition 

for mercy it should be submitted in writing within seven days of the 

date of such intimation.” 

9) She fairly stated that the death warrants would not be executed 

immediately and the procedure laid down as per the aforesaid instructions of 

the Ministry of Home Affairs shall be followed. The learned counsel for the State 

of Uttar Pradesh also informed this Court that after the death warrants dated 

21.05.2015 issued by the learned Sessions Judge were received by the 

Superintendent of Jail, the Superintendent of Jail sent these death warrants 

back to the learned Sessions Judge pointing out that the warrants were 

defective as the date and time of execution of the death sentence was not 

affixed thereupon. 

10) The learned senior counsel appearing for the petitioners, on the 

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other hand, submitted that merely following the procedure as contained in the 

instructions issued by the Ministry of Home Affairs would not suffice. It was the 

submission of Mr. Anand Grover, learned senior counsel, that this procedure is 

applicable in respect of petitions for mercy. 

11) On the other hand, in so far as the present case is concerned, the 

stage of petition for mercy has not yet come inasmuch as the convicts have right 

to file an application for review in this Court seeking review of the Judgment 

dated 15.05.2015, vide which, the appeals of both the convicts were dismissed. 

He has also drawn our attention to the Judgment of the Division Bench of the 

Allahabad High Court in a matter titled as Peoples' Union for Democratic Rights 

(PUDR) v. Union of India & Ors. 1 PIL No. 57810 of 2014 decided on 28.01.2015 

He has submitted that in the said case, the High Court has mandated the 

following procedure which has to be followed before the execution of the death 

sentence. The said portion from the judgment is extracted below: 

“We are affirmatively of the view that in a civilized society, the 

execution of the sentence of death cannot be carried out in such an 

arbitrary manner, keeping the prisoner in the dark and without allowing 

him recourse and information. Essential safeguards must be observed. 

Firstly, the principles of natural justice must be read into the provisions 

of Sections 413 and 414 of Cr. P. C. and sufficient notice ought to be 

given to the convict before the issuance of a warrant of death by the 

sessions court that would enable the convict to consult his advocates 

and to be represented in the proceedings. Secondly, the warrant must 

specify the exact date and time for execution and not a range of dates 

which places a prisoner in a state of uncertainty. Thirdly, a reasonable 

period of time must elapse between the date of the order on the 

execution warrant and the date fixed or appointed in the warrant for 

the execution so that the convict will have a reasonable opportunity to 

pursue legal recourse against the warrant and to have a final meeting 

with the members of his family before the date fixed for execution. 

Fourthly, a copy of the execution warrant must be immediately supplied 

699 



to the convict. Fifthly, in those cases, where a convict is not in a position 

to offer a legal assistance, legal aid must be provided. These are 

essential procedural safeguards which must be observed if the right to 

life under Article 21 is not to be denuded of its meaning and content.” 

12) He also pointed out that this Court has laid down several guidelines 

to govern cases involving capital punishment in the case ofShatrughan Chauhan 

v. Union of India & Ors. ***. 2 (2014) 3 SCC 1. 

13) In the present case, we find that this Court pronounced the 

judgment dated 15.05.2015 confirming the death penalty and within six days of 

700 


the dismissal of the criminal appeals filed by these convicts, the learned 

Sessions Judge issued the death warrants on 21.05.2015. This is clearly 

impermissible and unwarranted for various reasons, as discussed hereinafter: (I) 

First and foremost reason is that the convicts have not exhausted their judicial 

and administrative remedies, which are still open to them even if their appeals 

in the highest Court have failed affirming the imposition of death penalty. Those 

appeals were filed via the route of Article 136 of the Constitution. However, law 

gives such persons another chance, namely, to seek review of the orders so 

passed, by means of filing of review petition. It is to provided under Article 137 

of the Constitution. The limitation of 30 days is prescribed for filing such review 

petitions. We have to emphasize at this stage that in case of convicts facing 

death penalty, the remedy of review has been given high procedural sanctity. 

In the case of Mohd. Arif @Ashfaq v. Registrar, Supreme Court of India 

& Ors. ***. 3 (2014) 9 SCC 737 , the Constitution Bench of this Court has laid 

down that the review petition in a case of death sentence shall be heard in the 

open court by giving an opportunity to the review petitioner to make oral 

submissions, unlike other review petitions which are decided by the Court by 

circulation in Chambers. Not only this, such a review petition is to be heard by a 

Bench consisting of minimum three Judges. Following discussion from the said 

Constitutional Bench judgment will bring home the importance which we are 

attaching to these review petitions: 

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“30...A sentence is a compound of any factors, including the 

nature of the offence as well as the circumstances extenuating or 

aggravating the offence. A large number of aggravating circumstances 

and mitigating circumstances have been pointed out in Bachan Singh v. 

State of Punjab ***, (1980) 2 SCC 684, SCC at pp. 749-50, paras 202 & 

206, that a Judge should take into account when awarding the death 

sentence. Again, as pointed out above, apart from the fact that these 

lists are only illustrative, as clarified in Bachan Singh itself, different 

judicially trained minds can apply different aggravating and mitigating 

circumstances to ultimately arrive at a conclusion, on considering all 

relevant factors that the death penalty may or may not be awarded in 

any given case. Experience based on judicial decisions touching upon 

this aspect amply demonstrate such a divergent approach being taken. 

Though, it is not necessary to dwell upon this aspect elaborately, at the 

same time, it needs to be emphasized that when on the same set of 

facts, one judicial mind can come to the conclusion that the 

circumstances do not warrant the death penalty, whereas another may 

feel it to be a fit case fully justifying the death penalty, we feel that 

when a convict who has suffered the sentence of death and files a 

review petition, the necessity of oral hearing in such a review petition 

becomes an integral part of “reasonable procedure”. 

701 


31. We are of the opinion that “reasonable procedure” would 

encompass oral hearing of review petitions arising out of death 

penalties. The statement of Justice Holmes, that the life of law is not 

logic; it is experience, aptly applies here. 

32. The first factor mentioned above, in support of our 

conclusion, is more fundamental than the second one. Death penalty is 

irreversible in nature. Once a death sentence is executed, that results in 

taking away the life of the convict. If it is found thereafter that such a 

sentence was not warranted, that would be of no use as the life of that 

person cannot be brought back. This being so, we feel that if the


fundamental right to life is involved, any procedure to be just, fair and 

reasonable should take into account the two factors mentioned above. 

That being so, we feel that a limited oral hearing even at the review 

stage is mandated by Art. 21 in all death sentence cases.” 

Therefore, the right to file Review Petition is a valuable right given to 

the convicts who are imposed death penalty. 

(II) That apart, right to file mercy petitions to the Governor of the State 

as well as to the President of India also remains intact. These remedies are also 

of substance and not mere formalities. This remedy is again a constitutional 

702 


remedy as Executive Head is empowered to pardon the death sentence (this 

power lies with the President under Article 72 and with the Governor of the 

State under Article 161 of the Constitution). Thus, power to pardon is a part of 

the constitutional scheme which has been reposed by the people through the 

Constitution in the Head of the State, and enjoys high status. In exercise of their 

powers, the President or the Governor, as the case may be, may examine the 

evidence afresh and this exercise of power is clearly independent of the 

judiciary. It is clarified by this Court that while exercising such a power, the 

Executive is not sitting as a Court of Appeal. Rather power to grant remission of 

sentence is an act of grace, humanity in appropriate cases, i.e. distinct, absolute 

and unfettered in nature (See Shatrughan Chauhan (supra)). Even this Court 

inV. Sriharan @ Murugan v. Union of India & Ors. *** 4 (2014) 4 SCC 242 

observed that clemency procedure under Articles 72/161 of the Constitution 

provides a ray of hope to the condemned prisoners and his family members for 

commutation of death sentence into life imprisonment. Of course, in a given 

case, it would be for the convict to make out a justifiable case for remission of 

death sentence. However, what is emphasized in the present context is that this 

is again a constitutional remedy provided to the convicts of death sentence and 

they have a right to avail this remedy which cannot be snatched by executing 

the death sentence before even giving such convicts a chance or opportunity to 

avail the same. For this purpose, State has to wait for reasonable period, even 

after such convicts fail in the review petition, if they so file. 

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Otherwise, there would be violation of the famous rhetoric of Emperor 

Ashoka who said 'State should not punish with vengeance'. 

(III) Article 21 of the Constitution lays down that nobody shall be 

deprived of his life and liberty except according to the procedure established by 

law. After long judicial debate, it now stands settled that the procedure 

established by law has to be 'due procedure' (See Maneka Gandhi v. Union of 

India *** 5 (1978) 1 SCC 248). By judicial interpretation, this Court has read the 

principle of reasonableness into the said procedure contemplated by Article 21, 

holding that it must be 'right and just and fair' and not arbitrary, fanciful or 

oppressive. Even as per the statute book, this procedure does not culminate 

with the dismissal of appeals of the convicts by the final Court. No doubt, when 

an accused is tried of an offence by a competent court of law and is imposed 

such death penalty and the said death penalty is upheld by the highest Court, 

the procedure that is established by law has been followed up to this stage. 

However, in the statutory framework, further procedural safeguards in the form 

of judicial review as well as mercy petitions are yet to be traversed. This would 

also be covered by the expression 'procedure established by law' occurring in 

Article 21. Therefore, till the time limitation period for filing the review petition 

and thereafter reasonable time for filing the mercy petition has not lapsed, 

issuing of death warrants would be violative of Article 21. 

703 


(IV) There is another facet of right to life enshrined in Article 21 of the 

Constitution which needs to be highlighted at this juncture, namely, 'human 

dignity'. Article 21 has its traces in the dignity of human being. It has been 

recognized as part of Article 21 of the Constitution. We would like to extract the 

following passage from National Legal Services Authority v. Union of India & Ors. 

6 (2014) 5 SCC 438 : 

“106. The basic principle of the dignity and freedom of the 

individual is common to all nations, particularly those having democratic 

set up. Democracy requires us to respect and develop the free spirit of 

human being which is responsible for all progress in human history. 

Democracy is also a method by which we attempt to raise the living


standard of the people and to give opportunities to every person to 

develop his/her personality. It is founded on peaceful co-existence and 

cooperative living. If democracy is based on the recognition of the 

individuality and dignity of man, as a fortiori we have to recognize the 

right of a human being to choose his sex/gender identity which is 

integral his/her personality and is one of the most basic aspect of selfdetermination 

dignity and freedom. In fact, there is a growing 

recognition that the true measure of development of a nation is not 

economic growth; it is human dignity.” 

14) Once we recognize this aspect of dignity of human being, it does not 

end with the confirmation of death sentence, but goes beyond and remains 

valid till such a convict meets his/her destiny. Therefore, the process/procedure 

from confirmation of death sentence by the highest Court till the execution of 

the said sentence, the convict is to be treated with human dignity to the extent 

which is reasonable and permissible in law. 

704 


15) This right to human dignity has many elements. First and foremost, 

human dignity is the dignity of each human being 'as a human being'. Another 

element, which needs to be highlighted, in the context of the present case, is 

that human dignity is infringed if a person's life, physical or mental welfare is 

armed. It is in this sense torture, humiliation, forced labour, etc. all infringe on 

human dignity. It is in this context many rights of the accused derive from his 

dignity as a human being. These may include the presumption that every person 

is innocent until proven guilty; the right of the accused to a fair trial as well as 

speedy trial; right of legal aid, all part of human dignity. Even after conviction, 

when a person is spending prison life, allowing humane conditions in jail is part 

of human dignity. Prisons reforms or Jail reforms measures to make convicts a 

reformed person so that they are able to lead normal life and assimilate in the 

society, after serving the jail term, are motivated by human dignity 

jurisprudence. 

16) In fact, this principle of human dignity has been used frequently by 

Courts in the context of considering the death penalty itself. Way back in the 

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year 1972, the United States Supreme Court kept in mind this aspect in the case 

of Furman v. Georgia 7 408 US 238 (1972) . The Court, speaking through 

Brennan, J., while considering the application of Eighth Amendment's 

prohibition on cruel and unusual punishments, summed up the previous 

jurisprudence on the Amendment as 'prohibit(ing) the infliction of uncivilized 

and inhuman punishments. The State, even as it punishes, must treat its 

members with respect for their intrinsic worth as human beings. A punishment 

is 'cruel and unusual', therefore, if it does not comport with human dignity'. In 

Gregg v. Georgia 8 428 US 153 (1976) , that very Court, again through Brennan, 

J., considered that 'the fatal constitutional infirmity in the punishment of death 

is that it treats “members of the human race as non-humans, as objects to be 

toyed with an discarded. (It is), thus, inconsistent with the fundamental premise 

of the clause that even the vilest criminal remains a human being possessed of 

common human dignity'. The Canadian Supreme Court, the Hungarian 

Constitutional Court and the South African Supreme Court have gone to the 

extent of holding that capital punishment constitutes a serious impairment of 

human dignity and imposes a limitation on the essential content of the 

fundamental rights to life and human dignity and on that touchstone declaring 

that dignity as unconstitutional. 

705 


17) In this country, however, since the death penalty has been held to 

be constitutionally valid (See Bachan Singh v. State of Punjab 9 (1980) 2 SCC 

684), we do not have to travel to that extent. At the same time, even if death 

sentence is to be awarded, it has to be in accord with due dignity. In fact, this 

element of human dignity is well recognized in choosing the mode of execution 

of death sentence with general consensus that method of execution of death 

sentence should be such which is certain, humane, quick and decent. This was 

so stated in the 35th Report of the Law Commission on Capital Punishment way 

back in the year 1967. Thereafter, the Law Commission of India brought out a 

consultation paper on 'Mode of Execution of Death Sentence and Incidental 

Matters' and made comparative analysis of hanging, intravenous lethal injection 

and shooting as the mode of execution. While undertaking this study, the Law


Commission also recognized and emphasized standards of human decency in 

the following words: 

“ The execution of the death sentence by hanging by rope has 

706 


to be judged with reference to the objective factors such as the 

international standards or norms or the climate of the international 

opinion, modern penological theories and evolving standards of human 

decency. The standards of human decency with reference to death 

punishment is required to be judged with reference to various aspects 

which vary from society to society depending on the cultural and 

spiritual tradition of the society, its history and philosophy and its sense 

of moral and ethical values. To take an example, if a sentence of cutting 

off the arm for the offence of the theft or a sentence of stoning to death 

for the offence of adultery were prescribed by law, as practiced in South 

Africa, there can be no doubt that such punishment would be 

condemned as barbaric and cruel in our country, even though it may be 

regarded as proportionate to the offence and hence reasonable and just 

in some other countries. So also the standards of human decency vary 

from time to time even with in the same society. In an evolutionary 

society, the standards of human decency are progressively evolving to 

higher levels and what was regarded as legitimate and reasonable 

punishment proportionate to the offence at one time may now 

according to the evolving standards of human decency, be regarded as 

barbaric and inhuman punishment wholly disproportionate to the 

offence.” 

18) United Nations Economic and Social Council (ECOSOC), in its 

Economic and Social Council Resolution 1984/50, annex. General Assembly 

Resolution 29/118, 1984, described one of the important standard and 

safeguards against the death penalty enunciated in safeguard No.9 as “where 

capital punishment occurs it shall be carried out so as to inflict minimum 

possible suffering”. Even this Court, more than quarter century ago, laid down 

fourfold test that is to be satisfied in the execution of death penalty in Deena v. 

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Union of India *** 10 (1983) 4 SCC 645. This quadruple test is: 

(i) The act of execution should be as quick and simple as possible and 

free from anything that unnecessarily sharpens the poignancy of the prisoner's 

apprehension. 

(ii) The act of the execution should produce immediate unconsciousness 

passing quickly into the death. 

(iii) It should be decent. 

(iv) It should not involve mutilation. 

19) We can also draw sustenance from another judgment of this Court 

in the case of Sunil Batra v. Delhi Administration & Ors. *** 11 (1978) 4 SCC 494 

Though in the context of jail conditions for those prisoners sentenced to death, 

the Court held that putting them in solitary confinement was impermissible and 

provision to this effect was unconstitutional and violative of a prisoner's 

fundamental rights under Article 21, 20(2), 19 and 14 of the Constitution. The 

Court held that prisoner in jail still retains his fundamental rights. In the eternal 

words of Justice V.R. Krishna Iyer in the said judgment: 

“And in our constitutional order it is axiomatic that the prison 

laws do not swallow up the fundamental rights of the legally unfree, 

and, as sentinals on the qui-vive, courts will guard freedom behind bars, 

tempered, of course, by environmental realism but intolerant of torture 

by executive echelons. The policy of the law and the paramountcy of 

the Constitution are beyond purchase by authoritarians glibly invoking 

'dangerousness' of inmates and peace in prisons”. It is so obvious that 

the aforesaid ageless message has its root in human dignity which has 

to be preserved even when a prisoner is sentenced to death.” 

707 


20) Thus, we hold that condemned prisoners also have a right to dignity 

and execution of death sentence cannot be carried out in a arbitrary, hurried 

and secret manner without allowing the convicts to exhaust all legal remedies. 

21) We find that the procedure prescribed by the High Court of 

Allahabad in PUDR's case (supra) is in consonance with Article 21 of the


Constitution. While executing the death sentence, it is mandatory to follow the 

said procedure and it is also necessary for the authorities to keep in mind the 

guidelines contained in the judgment of this Court in Shatrughan Chauhan's 

case (supra). 

22) Since we find that the death warrants were signed by the Sessions 

Judge in a haste, without waiting for the exhaustion of the aforesaid remedies 

on the part of the convicts, the same are hereby quashed and set aside. 

23) We direct the respondents to follow the procedure, particularly the 

five steps, which are already extracted above, as contained in PUDR's case 

(supra) passed by the High Court of Allahabad, for executing the death 

sentence. 

24) We make the Rule absolute. These writ petitions are allowed in the 

aforesaid terms. 

SS - Rule Absolute 

708 


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Present: Mr. Justice T.S. Thakur and Mr. Justice Adarsh Kumar Goel 

PREM RAM – Appellant, 

VERSUS 

MANAGING DIRECTOR, UTTARAKHAND PEY JAL & NIRMAN NIGAM, 

DEHRADUN and ors. - Respondents. 

CIVIL APPEAL NO. 4474 OF 2015 (Arising out of Special Leave Petition(C) No.837 

of 2012) 

Workman – Daily wager and work charged employee - If 

engagement in a work-charged establishment rest on a criterion, no 

better than the absolute discretion of the authority engaging them or 

the fortuitous circumstances of a vacancy or need in a work-charged 

establishment, then, there is indeed no difference between a dailywager 

on the one hand and work-charged employees on the other - No 

distinction can resultantly be made between these two categories of 

employees for in essence, the nature of their engagement remains the 

same except that in the case of work-charged employees, the 

wages/emoluments appear to be borne from out of the allocation for 

the project in which they are employed while in the other case there is 

no such specific allocation of funds - The classification of workcharged 

and other employees to say the least remains wholly unsatisfactory at 

least for the purposes of the case in hand leaving no option for us but to 

treat the case of the daily-wagers and work-charge employees on the 

same footing when it comes to granting regularization to them - Daily 

wager and work charged employee. [Para 8] 

709 



1. (2006) 4 SCC 1, Secretary, State of Karnataka and Ors. v. Umadevi ***


JUDGMENT 

T.S. THAKUR, J. – (15 th May, 2015) - 


2. This appeal arises out of an order dated 30th June, 2011 passed by 

the High Court of Uttarakhand at Nanital whereby Special Appeal No.128 of 

2011 filed by the appellant has been dismissed and the order passed by the 

learned Single Judge of that Court in Writ Petition 324(MS) of 2004 affirmed. 

3. The appellant, it appears, was appointed as a daily-wager in the 

erstwhile Uttar Pradesh Pey Jal & Nirman Nigam sometime in the year 1988. 

710 


Nine years later his services were terminated in February 1997. The termination, 

when assailed by the appellant before the Labour Court, was set aside with a 

direction to the respondent to reinstate the appellant with 50% back wages and 

continuity of service. The writ petition filed by the respondent-Jal Nigam who is 

the successor-in interest of the erstwhile Uttar Pradesh Pey Jal Nigam against 

the award made by the Labour Court succeeded only in part and to the extent 

that the award of back wages was deleted from the award by the Labour Court. 

It is common ground that pursuant to the award, the appellant was allowed to 

rejoin as a daily-wager and to serve the respondent-Jal Nigam till the date of his 

superannuation upon completion of 60 years of age. 

4. In the year 2008, the appellant filed Writ Petition No.1116 of 2008 

before the High Court for a mandamus directing respondents to regularise his 

services w.e.f. 1st July, 2003 on the post of Jeep Driver and to release 

consequential benefits in his favour including arrears due to him. The 

appellant’s case in the writ petition was that other daily-wagers who were 

junior to him and appointed after the year 1988 having been regularized in 

service, the appellant could not merely because of an illegal order of 

termination of his services be deprived of that benefit. The appellant contended 

that the termination order having been set aside by the Labour Court which 

order was affirmed by the High Court with continuity of his service, there was 

no reason for denial of benefits that would have flowed to him but for the order 

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of termination especially when such benefits were extended to other similarly 

situate contemporaries and juniors of the appellant. 

5. The writ petition coming before the Single Judge Bench of the High 

Court at Uttarakhand was dismissed by an order dated 23rd May, 2011 on the 

authority of the decision of this Court in Secretary, State of Karnataka and Ors. 

v. Umadevi *** (2006) 4 SCC 1. The High Court at the same time allowed the 

appellant to move a representation before the concerned authorities in the light 

of paragraph 53 of the decision in Umadevi case (supra). The High Court 

observed that if there is a scheme of regularization the claim of the appellant 

should also be considered in accordance therewith. 

6. Dissatisfied with the above order, the appellant preferred Special 

Appeal No.128 of 2011 which, as noticed earlier, has been dismissed by the 

Division Bench of the High Court. The High Court held that since there was no 

scheme for regularization of daily-wagers and those named by the appellant in 

the writ petition had been regularized by the Uttar Pradesh Jal Nigam at a time 

when Uttarakhand Pey Jal and Nirman Nigam was not in existence, nothing 

further could be done in the matter nor any relief granted to the appellant. The 

present appeal assails the correctness of the said two judgments and orders of 

the High Court. 

711 


7. When the matter came up for hearing before this Court on 8th July, 

2013, learned counsel for the respondent-Corporation was granted time to take 

instructions whether any scheme within the contemplation of para 53 of 

Umadevi case (supra) had been formulated by the respondent-Corporation and 

in case no such scheme has been formulated, whether the Corporation is willing 

to formulate one. The matter again came up for hearing on 18th November, 

2013. It was argued by Ms. Rachana Srivastava, counsel appearing for the 

respondent-Uttarakhand Pey Jal & Nirman Nigam that while the Nigam had 

passed a resolution adopting the scheme formulated by the State Government 

in terms of the directions of this Court in Umadevi case (supra), the 

Government’s approval for such an adoption had not so far been received. She 

prayed for and was granted time to place on record a copy of the Government

712 



scheme adopted by the Nigam as also the resolution under which the same was 

adopted besides, a copy of the approval, if any, granted by the Government to 

such adoption. On 27th October, 2014, when the matter came-up once again for 

hearing, our attention was drawn to additional documents filed by the appellant 

from which it appeared that the persons who figured at serials no.78 to 82 at 

page 12 of the said additional documents had been regularized w.e.f. 1st July, 

2003, although their entry into service was shown to be 6th of June, 1989 

onwards. It was on that basis argued that persons junior to the appellant having 

been regularized in service, whereas the appellant could not have been 

deprived of a similar benefit simply because his services were illegally 

terminated. On behalf of the respondent-Jal Nigam it was, on the other hand, 

argued that there was a difference between cases of persons appearing at serial 

nos.78 to 82 and that of the appellant inasmuch as the former were workcharged 

employees while the appellant was appointed as a daily-wager. At the 

request of learned counsel for the respondent-Nigam the matter was adjourned 

by four weeks to enable the Nigam to file an additional affidavit as to whether 

regularization had been ordered after undertaking any screening/selection 

process and if so, on what terms and conditions. 

8. From the affidavit filed, in compliance with the directions issued by 

this Court, it appears that the Government of Uttarakhand had framed 

Regularization Rules 2011 for regularization of daily-wagers and temporary 

employees who had been appointed on or before 1st November, 2011 and had 

completed 10 years of continuous service by that date. The said Rules were then 

adopted by the Board of respondent-Jal Nigam in terms of resolution passed in 

its 12th Meeting and approval of the State Government for implementation of 

the said Rules in the Nigam sought under Managing Director’s letter dated 3rd 

March, 2012 addressed to the Principal Secretary, Peyjal Nigam, Government of 

Uttarakhand. While the approval of the Government was still awaited, the 

Government appears to have framed fresh Regularisation Rules in supersession 

of the Rules of 2011. These Rules are said to be under challenge before the High 

Court of Uttarakhand at Nanital in which the High Court appears to have passed 

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certain interim orders also. From the affidavits it is further evident that five 

persons named by the appellant appearing at serials no.78 to 82 of the list of 

juniors have been regularized in service. It is not in dispute that all these 

persons were appointed on dates subsequent to the date of appointment of the 

appellant. The respondent, however, has attempted to justify the regularization 

of juniors mentioned above on the ground that they had been appointed in 

work-charge establishment whereas the appellant herein was a daily-wager. We 

asked learned counsel for the respondent as to whether daily-wagers on the 

basis of their seniority or otherwise were brought on to the work-charged 

establishment and if there was no such practice or procedure followed, what 

was the basis on which the department would decide whether the person has to 

be engaged on a work-charged establishment or as a daily-wager. We must 

regretfully say that we did not get a satisfactory answer to that question nor 

does any of the several affidavits filed in these proceedings by the respondent- 

Jal Nigam point out a qualitative difference between daily-wager on the one 

hand and a temporary engagement on work-charged establishment on the 

other. If engagement in a work-charged establishment rest on a criterion, no 

better than the absolute discretion of the authority engaging them or the 

fortuitous circumstances of a vacancy or need in a work-charged establishment, 

then, there is indeed no difference between a daily-wager on the one hand and 

work-charged employees on the other. No distinction can resultantly be made 

between these two categories of employees for in essence, the nature of their 

engagement remains the same except that in the case of work-charged 

employees, the wages/emoluments appear to be borne from out of the 

allocation for the project in which they are employed while in the other case 

there is no such specific allocation of funds. The classification of workcharged 

and other employees to say the least remains wholly unsatisfactory at least for 

the purposes of the case in hand leaving no option for us but to treat the case of 

the daily-wagers and work-charge employees on the same footing when it 

comes to granting regularization to them. 

713 


9. If that be so, there is no denying the fact that the persons who were

714 



junior to the appellant, having been engaged much later than him, steal a march 

over him in terms of regularization in service while the appellant remained 

embroiled in litigation over what was eventually found to be an illegal 

termination of his service. It is true that the appellant has already 

superannuated. That does not, however, make any difference. What is 

important is that the appellant had been appointed as early as in the year 1988 

and had by the time the decision of this Court in Umadevi’s case (supra) 

pronounced, already completed more than 10 years service. Government has 

formulated rules for regularization of such daily-wagers, no matter the same are 

the subject matter of a challenge before the High Court. What is noteworthy is 

that neither the State Government nor the Jal Nigam has resented the idea of 

regularization of those who have served for over a decade. The rules providing 

for regularization are a sufficient enough indication of that fact. We do not, 

therefore, see any impediment in directing regularization of the service of the 

appellant on the analogy of his juniors with effect from the date his juniors were 

regularized and for the release of all retiral benefits in his favour on that basis 

by treating him to be in continuous service till the date of his superannuation. 

We make it clear that this direction will not entitle the appellant to claim any 

amount towards arrears of salary based on such regularization. 

10. In the result, this appeal succeeds and is hereby allowed. The orders 

passed by the High Court are set aside and the writ petition filed by the 

appellant disposed of in terms of the directions contained hereinabove. The 

parties are directed to bear their own costs. 

SS - 

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Present: Mr. Justice T.S. Thakur, Justice Rohinton Fali Nariman and Justice 

Prafulla C. Pant. 

MANYATA DEVI – Appellant, 

Versus 

STATE OF U.P. & Ors. – Respondents. 

Civil Appeal No. 4475 of 2015 (Arising out of SLP (C) No.25607 of 2013) 

Character/enlistment certificate – Petitioner applied for 

Character/enlistment certificate in her favour, which it appears is one 

of the requirements prescribed for registration as a contractor - District 

Magistrate declined to issue the character certificate to the appellant 

on the solitary ground that her husband was involved in four criminal 

cases during the past- District Magistrate again rejected the prayer for 

the issuance of a character certificate on the ground that the appellant 

did not have any knowledge of contract works which works were being 

got executed by her through her son and other persons – There is no 

dispute that the appellant is not involved in any criminal case or activity 

of any objectionable kind - District Magistrate should have simply 

certified her character because that was the only question which the 

former was called upon to examine while dealing with the request 

made by the appellant - The District Magistrate, however, appears to 

have been swayed by considerations wholly extraneous to the question 

whether the appellant had a good moral character – Second time, the 

certificate was denied on the ground that she had no experience in 

getting the contract works executed - We have not been able to 

appreciate as to how the District Magistrate could have brought in the 

question of the appellant’s capability as a contractor or her experience 

715 



in executing works to bear upon her good moral character - Even when 

the appellant may have had no experience in getting government works 

executed she could still claim that she bore a good moral character. 

JUDGMENT 

T.S. Thakur, J. – (15 th May , 2015) – Leave granted. 

2. This appeal arises of out an order dated 2nd April, 2013, passed by 

the High Court of Judicature at Allahabad whereby Writ Petition No.17398 of 

2013 filed by the appellant has been dismissed and the order passed by the 

District Magistrate, Basti, refusing to issue a character certificate in favour of 

the appellant upheld. 

3. The appellant appears to have applied to the District Collector, Basti, 

for a character/enlistment certificate in her favour, which it appears is one of 

the requirements prescribed for registration as a contractor under the Irrigation 

716 


Department of the State of Uttar Pradesh. The appellant, as proprietor of M/s 

Krishna Construction was already registered as a contractor but since the said 

registration was valid only for a period three years ending 31st June, 2009, a 

fresh character/solvency certificate was necessary for renewal of her 

registration. 

4. The application made by the petitioner appears to have remained 

unattended for some time forcing her to file Writ Petition No.17945 of 2010 

which was disposed of by the High Court by its order dated 5th April, 2010 

directing the District Magistrate, Basti, to consider and decide the application of 

the appellant within a period of six weeks. The District Magistrate in compliance 

with the said order issued a solvency certificate in favour of the appellant on 

24th May, 2010 but deferred the grant of character certificate till such time the 

Superintendent of Police inquired into the matter and submitted a report. On 

receipt of the report from the Superintendent of Police, the District Magistrate 

passed an order dated 15th June, 2010 declining to issue the character 

certificate to the appellant on the solitary ground that her husband was 

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involved in four criminal cases during the past. 

5. Aggrieved by the refusal of the character certificate in her favour, the 

appellant filed Writ Petition No.9875 of 2011 before the High Court which was 

disposed of by the High Court on 14th February, 2012 with a direction that the 

appellant should approach the Commissioner in appeal against the order passed 

by the District Magistrate. The appellant accordingly preferred an appeal before 

the Commissioner, Basti, who set aside the order passed by the District 

Magistrate and remitted the matter back to him for appropriate orders with the 

observation that the request for grant of a character certificate must be 

considered on the basis of the personal character of the person applying for the 

same and not of her family members. Notwithstanding that direction, the 

District Magistrate once again passed an order dated 12th December, 2012 

rejecting the prayer for the issuance of a character certificate on the ground 

that the appellant did not have any knowledge of contract works which works 

were being got executed by her through her son and other persons. The 

appellant challenged the said order before the High Court in Writ Petition 

No.17398 of 2013 which came to be dismissed by the High Court by its order 

dated 2nd April, 2013. Hence the present appeal. 

717 


6. We have heard learned counsel for the parties at length and perused 

the orders passed by the District Magistrate and the Commissioner and those 

passed by the High Court. The material facts are not in dispute. It is not in 

dispute that the appellant is the sole proprietor of M/s Krishna Construction. It 

is also not in dispute that the appellant was a registered contractor with the 

Irrigation Department of the Government of U.P. for executing civil works. It is 

also not disputed that the registration was earlier granted in favour of the 

appellant pursuant to a solvency and character certificate issued in her favour 

by the District Magistrate, Basti. It is common ground that the registration of 

the appellant remained valid upto 31st June, 2009, whereafter the same 

required a renewal based on a fresh solvency certificate and a character 

certificate according to the applicable norms prescribed by the Irrigation 

Department. That a solvency certificate was issued in favour of the appellant is

718 



also not in dispute. So also there is no dispute that the appellant is not involved 

in any criminal case or activity of any objectionable kind. That being the 

position, the District Magistrate should have simply certified her character 

because that was the only question which the former was called upon to 

examine while dealing with the request made by the appellant. The District 

Magistrate, however, appears to have been swayed by considerations wholly 

extraneous to the question whether the appellant had a good moral character. 

In the first order of refusal passed by him, he opined that since the appellant’s 

husband had criminal cases registered against him, she was disentitled from 

claiming a certificate of good moral character. Apart from the fact that the cases 

against the appellant’s husband to which the District Magistrate appears to be 

referring had ended in his acquittal, it is difficult to appreciate how criminal 

cases registered against the husband of the appellant could possibly deny her a 

certificate of good moral character. The Commissioner, Basti was, therefore, 

perfectly justified in setting aside the order passed by the District Magistrate 

and directing him to consider the request for the issue of a certificate based on 

the character of the applicant and not her relative or member of the family. 

Since there was nothing adverse about the appellant, one would have expected 

the District Magistrate to issue the requisite certificate in favour of the 

appellant. Instead of doing so, the District Magistrate appears to have invented 

fresh reasons for denial of a certificate. This time, the certificate was denied not 

because the appellant or anyone in her family was implicated in any criminal 

case but on the ground that she had no experience in getting the contract works 

executed. We have not been able to appreciate as to how the District 

Magistrate could have brought in the question of the appellant’s capability as a 

contractor or her experience in executing works to bear upon her good moral 

character. Even when the appellant may have had no experience in getting 

government works executed she could still claim that she bore a good moral 

character. The reasoning given by the District Magistrate was wholly irrelevant 

to say the least. Inasmuch as the District Magistrate ignored the order passed by 

the Commissioner and the considerations that would go into grant or refusal of 

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the character certificate, he committed a mistake that is palpable on the face of 

record. 

7. It was argued on behalf of the respondent-State that since the 

appellant had no experience of executing contracted works, the refusal of a 

character certificate was only meant to prevent her from getting registered as a 

contractor with the department. It was also argued that the registration of a 

contractor was necessary and unless such registration was granted only in 

deserving cases, the very purpose of the registration would stand defeated. 

There was, according to learned counsel for the respondent, a “contractors 

mafia” operating in the State of Uttar Pradesh which demanded that 

registration is granted only to people who have no criminal background so that 

genuine contractors are not prevented from winning contracts from the 

Government and competing for allotment of works. It was argued that since the 

husband of the appellant could not himself be registered on account of his 

criminal background, the appellant was being projected for such a registration 

only to make it possible for the husband to carry out the works in the name of 

his wife. Registration of the appellant, in such a situation, would defeat the very 

purpose behind such registrations, argued the learned counsel. 

719 


8. There is no quarrel with the proposition that registration can be 

insisted upon by the State Government or its departments for purposes of 

allotment of works and participation in auctions relating thereto. There is also 

no difficulty in the State providing for production of a character certificate as 

one of the conditions of eligibility. Experience of the Contractor, if considered 

relevant for the purposes of such registration, could also be stipulated as one of 

the requirements to be satisfied by the applicants under the Rules or 

Regulations. That such regulation ought to ensure participation of only genuine 

contractors and prevent the mafia from hijacking the system cannot also be 

faulted. The question, however, is whether that purpose which is indeed 

laudable could be achieved by a side wind viz. by the District Magistrate denying 

a character certificate to an applicant. Our answer is in the negative. We say so 

because the very fact that a character certificate is issued does not mean that


everyone who has such a certificate gets a vested right to be registered as a 

contractor. The District Magistrate did not have any authority under the rules 

stipulating registration of contractors to consider such requests for registration 

or to grant or refuse the same. It is the competent authority in the Irrigation 

Department concerned who has to take a call. Inasmuch as the District 

Magistrate took upon himself the duty of examining whether the appellant was 

suitable for registration, he went beyond the legitimate sphere of the 

jurisdiction vested in him which was limited to considering the request for 

issuance of a character certificate. 

720 


9. Having said so, we must add that copy of the rules regulating the 

registration of contractors has not been produced by the State. It is, therefore, 

difficult for us to say whether the rules are comprehensive enough to disentitle 

persons who do not have any experience in execution of the contract works 

from claiming registration. But there is no manner of doubt that, if the ground 

situation in the State of Uttar Pradesh so requires, the department concerned 

can and indeed ought to strengthen the registration procedure by framing new 

rules or amending the existing rules on the subject making registration possible 

only upon satisfaction of such conditions as may be prescribed by such rules 

including experience in executing contracts as one such condition. 10. In the 

result we allow this appeal, set aside the order passed by the High Court and 

direct the District Magistrate to reconsider the matter and dispose of the 

application for grant of a character certificate keeping in view the observations 

made herein. We make it clear that even when the character certificate is issued 

by the District Magistrate in favour of the appellant, the Competent Authority 

shall be free to examine the prayer for registration or renewal in accordance 

with law having regard to the requirements that already exist or may be 

prescribed on the subject by the authority competent to do so. No costs. 

SS - 

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(2016)3 PLRSC. 721 


Present: Justice R. K. Agrawal and Justice Amitava Roy. 

TANVI SARWAL - PETITIONER, 

VERSUS 

CENTRAL BOARD OF SECONDARY EDUCATION AND ORS. - RESPONDENTS. 

Writ Petition (Civil) No.298/2015 with [W.P.(C)Nos.299/2015, 305/2015 and 

W.P.(C)No.325/2015] 

(i) Examination - As it is, the system of examination pursued 

over the decades, has been accepted by all who are rationale, 

responsible and sensible, to be an accredited one, for comparative 

evaluation of the merit and worth of candidates vying for higher 

academic pursuits - It is thus necessary, for all the role players in the 

process, to secure and sustain the confidence of the public in general 

and the student fraternity in particular in the system by its 

unquestionable trustworthiness - Such a system is endorsed because of 

its credibility informed with guarantee of fairness, transparency 

authenticity and sanctity - There cannot be any compromise with these 

imperatives at any cost - All India Pre-Medical and Pre-Dental Test , 

2015. 

721 


Held, 

The disclosures in the investigation suggest that the benefit of answer 

key has been availed by several candidates taking the examination, by illegal 

means - Having regard to the modus operandi put in place, the numbers of cell 

phones and other devices used, it is not unlikely that many more candidates 

have availed such undue advantage, being a part of the overall design and in the 

process have been unduly benefited qua the other students who had made 

sincere and genuine endeavours to solve the answer paper on the basis of their 

devoted preparation and hard labour - In view of the widespread network, that


has operated, as the status reports disclose and the admission of the persons 

arrested including some beneficiary candidates, we are of the opinion, in view 

of the strong possibilities of identification of other candidates as well involved in 

such mal practices, that the examination has become a suspect. 

[Para 15] 

(ii) Examination - Segregation only of the already 44 identified 

candidates stated to be the beneficiaries of the unprincipled 

manoeuvre by withholding their results for the time being, in our 

comprehension cannot be the solution to the problem that confronts all 

of us - Not only thereby, if the process is allowed to advance, it would 

be pushed to a vortex of litigation pertaining thereto in the foreseeable 

future, the prospects of the candidates would not only remain 

uncertain and tentative, they would also remain plagued with the 

prolonged anguish and anxiety if involved in the ordeal of court cases - 

722 


Acting on this option, would in our estimate, amount to driving 

knowingly the students, who are not at fault, to an uncertain future 

with their academic career in jeopardy on many counts - Further, there 

would also be a lurking possibility of unidentified beneficiary 

candidates stealing a march over them, on the basis of the advantages 

availed by them through the underhand dealings as revealed - Having 

regard to the fact, that the course involved with time would yield the 

future generations of doctors of the country, who would be in charge of 

public health, their inherent merit to qualify for taking the course can 

by no means be compromised - All India Pre-Medical and Pre-Dental 

Test , 2015. [Para 16] 

(ii) Education – Reexamination - All India Pre-Medical and Pre- 

Dental Test , 2015 - Having regard to the uncompromising essentiality 

of a blemishless process of examination involving public participation, 

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we have no alternative but to hold that the examination involved, 

suffers from an infraction of its expected requirement of authenticity 

and credence - We are conscious of the fact that every examination 

being conducted by a human agency is likely to suffer from some 

shortcomings, but deliberate inroads into its framework of the 

magnitude and the nature, as exhibited, in the present case, 

demonstrate a deep seated and pervasive impact, which ought not to 

be disregarded or glossed over, lest it may amount to travesty of a 

proclaimed mechanism to impartially judge the comparative merit of 

the candidates partaking therein - If such an examination is saved, merit 

would be a casualty generating a sense of frustration in the genuine 

students, with aversion to the concept of examination - The possibility 

of leaning towards unfair means may also be the ultimate fall out - Even 

if, one undeserving candidate, a beneficiary of such illegal machination, 

though undetected is retained in the process it would be in denial of, 

the claim of more deserving candidates - At the present, the 

examination stands denuded of its sanctity as it is not possible to be 

cleansed of all the participating beneficiary candidates with certainty - 

We are thus, on an overall assessment of the materials on record, left 

unpersuaded to sustain the examination - We must observe that till this 

stage of the investigation, no conscious lapse or omission on the part of 

the Board, contributing to the otherwise appalling mischief has 

surfaced. [Para 17] 

723 


(iv) Education – Reexamination - Schedule of dates for 

examination - Conscious are we that, as a consequence, the All India 

Pre-Medical and Pre-Dental Test 2015 would have to be annulled, 

thereby disturbing the time schedule fixed by this court in Mridul Dhar

724 



and Priya Gupta) - We perceive that in the extraordinary fact situation 

where the examination involved is vitiated to the core by use of 

deceitful means and measures to benefit some, the consideration of 

departure from the said time schedule per se would not be a 

wholesome justification to sustain the otherwise tainted exercise - The 

time frame fixed by this court in the above cases, in our opinion, was 

not intended to be inflexibly adhered to in the situation of the kind with 

which we are seised of - The schedule of dates was fixed, so as to 

streamline and discipline the process of admission by its uniform 

application - We are of the understanding that the annulment of the 

examination and the consequences to follow, in the singular facts and 

circumstances of the cases, would not in any way be repugnant to the 

renderings of this court in Mridul Dhar (supra) and Priya Gupta (supra) - 

The course we proposed to embark upon, is the demand of the 

situation based on contemporaneous official records and that facts 

corroborated thereby - The pleadings of the Board, that its answer key 

had been prepared whereafter the challenges from the candidates have 

been received and have been verified with the subject experts, in the 

teeth of the disclosures in the investigation lack in persuasion to save 

the examination. [Para 18] 

(v) Education – Reexamination - The abrogation of the 

examination, would result in some inconvenience to all concerned and 

that same extra time would be consumed for holding a fresh 

examination with renewed efforts therefor - This however, is the price, 

the stakeholders would have to suffer in order to maintain the 

impeccable and irrefutable sanctity and credibility of a process of 

examination, to assess the innate worth and capability of the 

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participating candidates for being assigned inter se merit positions 

commensurate to their performance based on genuine and sincere 

endeavours - All India Pre-Medical and Pre-Dental Test , 2015. 

[Para 19] 

Held, 

It is a collective challenge that all the role-players would have to meet, 

by rising to the occasion and fulfill the task ahead at the earliest, so as to thwart 

and abort the deplorable design of a mindless few seeking to highjack the 

process for selfish gain along with the unscrupulous beneficiaries thereof. 

Though the Board has taken a plea that having regard to the enormity of the 

exercise to be undertaken, the same cannot be redone before four months, we 

would emphasize that this is an occasion where it (the Board) ought to gear up 

in full all its resources in the right spirit, in coordination with all other 

institutions that may be involved so as to act in tandem and hold the 

examination afresh at the earliest. 

Held further, 

We are not unaware that in holding the present examination as well as 

in participating in the exercise, all genuinely concerned have put in tireless 

efforts. All these however have been rendered futile by a handful of elements 

seeking to reap undue financial gain by subjecting the process to their evil 

manoeuvres. We have thus no hesitation to order that the All India Pre-Medical 

and Pre-Dental Test stands cancelled. 

725 



1. (2005) 2 SCC 65 , Mridul Dhar v. Union of India *** 

2. (2012) 7 SCC 433, Priya Gupta v. State of Chhatisgarh *** 

JUDGMENT 

Amitava Roy, J. All these Writ Petitions, analogously heard, register a 

challenge to the All India Pre-Medical and Pre-Dental Entrance Test, 2015 

(hereinafter referred to as Test/Examination) held on 03.5.2015 under the aegis 

of the Central Board of Secondary Education, New Delhi (for short hereinafter


referred to as “CBSE/Board”) having been perceived by the petitioners to have 

been irreversibly vitiated by the use of unfair means and malpractices through 

electronic gadgets and devices facilitating the illegal and unfair access to 90 

answer keys during the examination conducted on 03.5.2015 to the beneficiary 

candidates of such corrupt design at the behest of a syndicate for unlawful gain. 

Whereas the petitioner in W.P.(Civil) No. 325/2015 has introduced himself to be 

a social activist and a reformer claiming to espouse a public cause, the others 

registering the impugnment, are the candidates who have taken the 

examination and apprehend that not only they but also others who are similarly 

situated and have put in sincere and hard labour would therefore be unfairly 

out performed by those availing the advantage of the pilfered answer keys 

provide by a group of operators by misusing the information technology. 


3. The skeletal facts outlining the factual conspectus would be briefly 

narrated so as to better comprehend the issues seeking adjudication. 

726 


4. The CBSE had issued an admission notice in the month of November 

2014 intimating that the All India Pre-Medical/ Pre-Dental Entrance Test for the 

Academic Session 2015-16 would be held on 03.5.2015. The examination was 

to consist of one paper of 180 objective type questions from Physics, Chemistry 

and Biology (Botany & Zoology) and of duration of three hours from 10.00 a.m. 

to 1.00 p.m. As a matter of record, the test/examination was to be conducted 

for 15% All India Quota Seats and was to be governed by the Rules and 

Regulations in that regard framed by the Ministry of Health and Family Welfare, 

Govt. of India from time to time. The CBSE has been conducting such 

examination and declaring the results thereof and thereafter providing the 

merit list to the Director General of Health Services and the participating States 

/ Universities / Institutions in order to facilitate their counseling / admissions. 

Some States / Universities / Institutions have also been voluntarily participating 

in the examination for using the merit list prepared for admission in the 

Medical/Dental Colleges against seats under their control. Admittedly, the 

counseling of the successful candidates under 15% quota seats is conducted by 

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the Director General of Health Services (for short also hereafter referred to 

DGHS) and the counseling for admission to seats for the other participating 

States/Universities/Institutions is conducted by their respective authorities. 

5. As scheduled, the examination was held on 03.5.2015 between 10.00 

a.m. to 1.00 p.m. and more than six lakh candidates did take part therein. The 

examination was held in 1050 centers all over the country. Immediately 

thereafter on 04.5.2015, news reports started surfacing in many dailies 

disclosing that 90 answer keys had been transmitted to the candidates during 

the examination, in consideration of Rs.15 to 20 lakhs and that Rohtak Police 

had meanwhile arrested 7 persons including 2 doctors and one MBBS student 

for conspiring to effectuate the said plot. Reference was also made to the 

disclosures in the investigation, to the effect that the arrested individuals in 

collusion with others had arranged for supplying vests fitted with SIM card etc. 

apart from Bluetooth device to facilitate transmission of answer keys through 

such appliances to the users thereof. It was mentioned, that the same gang had 

been involved in the leakage of AIIMS Medical Examination in the year 2012 by 

applying the same modus operandi. Contending that the revelations in the 

investigation underway, did demonstrate the use of such unfair and illicit means 

thus vitiating the examination as a whole, denuding it of its credibility and 

sanctity, the petitioners have sought to invoke the jurisdiction of the Court 

under Article 32 of the Constitution of India to annul the examination. The 

necessity of holding a fresh examination has been emphasized, stating that in 

terms of the time schedule fixed by this Court, the results in the examination 

were to be declared by 5.5.2015 to be followed by the first counseling of All 

India quota seats, to be completed by 30.6.2015 and second counseling by 

8.8.2015. That the academic session as per the time schedule was to commence 

on 1.8.2015 and that no student could be admitted to the course after 

30.9.2015 was underlined as well. 

727 


6. Having regard to the gravity of the imputations made and the prime 

facie materials furnished with the petition in W.P.(Civil) No. 298/2015, this 

Court issued notice on 18.5.2015 directing dasti service on all the respondents.

728 



The other Writ Petitions gradually got tagged having regard to the identicalness 

of the issues involved. On 21.5.2015, after hearing the learned counsel for the 

parties and on a consideration of the status report dated 20.5.2015 submitted 

by the Superintendent of Police, Rohtak, Haryana with regard to the progress of 

the investigation in the matter, this Court, feeling the urgency, required the 

police to complete the investigation at the earliest and directed submission of 

the next status report by 26.5.2015. On a perusal of the next status report dated 

26.5.2015, this Court by its order of the same date, directed the investigation to 

proceed and ordered that the cases be listed on 3.6.2015. The police was 

required to file further status report by then and try to complete the 

investigation meanwhile. On 3.6.2015, on a consideration of the status report 

dated 2.6.2015 filed by the S.P., Rohtak, Haryana and noticing the progress 

made and the materials collected in support of the allegations and being of the 

view that all the beneficiaries of the stratagem were yet to be identified, on 

balancing the equities, this Court directed that further steps in examination 

process be kept in abeyance till the next date i.e. 10.6.2015. On the prayer 

made on behalf of the CBSE so as to enable it to file its affidavit, the hearing of 

the petitions was postponed till 12.6.2015. The interim restraint was extended. 

7. Apt it would be, before adverting to the pleaded assertions on behalf 

of the CBSE to extract the relevant excerpts of the status reports dated 

20.5.2015, 25.5.2015, 2.6.2015 and 11.6.2015 submitted by the investigating 

agency so as to mark the progress in the inquisition, facts unearthed, arrests 

made and also the extent of identification of the beneficiaries arrested by the 

police till date. 

RELEVENT EXTRACTS FROM THE STATUS RESPORTS DATED 20.5.2015, 

25.5.2015, 02.6.2015 AND 11.6.2015 

20.5.2015: 

“1. That on 03.5.2015, a secret information was received from an 

informer that some persons namely Bhupender S/o Sh. Satpal R/o 

Gudhana, District Bhiwani, Haryana, Rajesh S/o Sh. Umed Singh R/o 

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Gaddhi Kheri, District Rohtak, Haryana, Sanjeet S/o Sh. Ramkishan R/o 

Basant Vihar, District Rohtak, Haryana and Ravi S/o Sh. Gorakh Singh 

R/o Greater Noida, Uttar Pradesh are involved in leakage of answer key 

or question paper of AIPMT Exam and its circulation to candidates in 

lieu of monetary gain and who are moving around in Swift Car No. HR- 

12R-5552 in Rohtak. After receiving the information, raids were 

conducted by the police near examination centres. During checking a 

car bearing No. HR-12R-5552 came from the Delhi byepass to Jhajjar 

Road, Rohtak and on checking the car, four persons were found sitting 

in the car. During verification, the person who was driving the Swift Car 

No. HR-12R-5552 disclosed his identity as Dr. Bhupender Singh (BDS) 

S/O Sh. Satpal R/o Gudhana, District Bhiwani, Haryana and his mobile 

NO. 9992472959 was checked and answer key of code ‘G’ of AIPMT 

question paper i.e. 23331* 11431* 23432* 33214* 24214* 44233* 

12131* 33142* 34133* 34432* 34234* 41124* 31234* 31313* 44444* 

24001* 31222* 42121* 1365E* 222* 142* 9342341* 23222* 32341* 

43244* 43114* 21224 was found in his mobile and the message of said 

key was also forwarded at 12.51 PM on 03.5.2015 to mobile number 

7409770216 and at 12.56 PM to mobile number 8397804478. Similarly 

as per record, answer key of cod ‘F’ of AIPMT exam 2015 was also 

transmitted from mobile number 9996668824 (used & recovered from 

accused Dr. Sanjeet) to mobile number 9899089958 (used by Mr. 

Gautam student of MBBS from Ujjain, Madhya Pradesh) at 12.33 PM 

through Whatsapp. It is pertinent to mention here that timing of 

transmitting of answer key to other candidates of different states can 

only be ascertained after the arrest of main accused i.e. Roop Singh 

Dangi. Further after his arrest the exact point of leakage of AIPMT exam 

question paper could be ascertained. During verification of the other 

three persons sitting on rear seat of Swift car, their identity was known 

as Rajesh (MA, MEd qualified person) S/o Sh. Umed Singh R/o Gaddhi 

Kheri District Rohtak, Haryana, Sanjeet (BDS Doctor) S/o Sh. Ramkishan 

729 


730 



R/o Basant Vihar, District Rohtak, Haryana and Ravi (Student of MBBS 

from PGIMS, Rohtak) S/o Sh. Gorakh Singh R/o Greater Noida, Uttar 

Pradesh. During checking of Ravi (Student of MBBS) a carton containing 

three vests of gents (two black colour and one grey colour) and three 

lady vest (white colour) were found. All the above said vests were 

tagged with micro SIM devices, five Bluetooth devices were also 

recovered from the possession of Ravi (Student of MBBS from PGIMS, 

Rohtak), five data cables were recovered from the possession of Sanjeet 

(BDS Doctor) and one wrist watch consisting spy camera including data 

cable was recovered from the possession of Rajesh (MA, Med qualified 

person). The entire recovered articles were taken in possession by the 

Police officer through recovery memo. On finding that answer key had 

already been leaked and transmitted to different mobile numbers prior 

to end of the exam, the Police Officer sent a written report to the 

Station House Officer sent a written report to the Station House Officer, 

Police Station PGIMS, Rohtak and consequently a case FIR No. 110 dated 

04.5.2015 U/s 420/120B IPC & 66 IT Act was registered in Police Station 

PGIMS, Rohtak, Haryana against Bhupender, Rajesh, Ravi and Sanjeet. 

2. That during investigation, the accused suffered disclosure statements 

on which basis police proceeded with investigation. Inspector Vijay 

Singh, Incharge CIA – 2 unit, investigating officer of the case produced 

the four arrested accused before the Id. Area Magistrate at Rohtak. On 

the application of the investigating officer, the court of learned area 

magistrate granted four days police custody. 

3. That during interrogation, the accused suffered the disclosure 

statement on 05.5.2015 that about 15/16 days back, a meeting was 

organized by Roop Singh Dangi S/o Ramphal R/o Village Madina, District 

Rohtak, Haryana at his house in OMAX City Rohtak with co-accused 

namely Sonu @ Dhan Singh S/o Dalel R/o Village Gadhhi Kheri, District 

Rohtak, Haryana, Sunny Dahiya S/o Ranbir Singh R/o Kripal Nagar 

Rohtak, District Rohtak, Haryana and Rakesh Guliya. As per disclosure 

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statement of Dr. Bhupender, Rajesh, etc. in the meeting it was decided 

that for qualifying AIPMT exam Rs. 20 lakhs will be taken from the 

candidates and the person who ropes in such candidates will be given 

one third of the amount. It was also disclosed by the above accused that 

Roop Singh Dangi will leak the AIPMIT question paper from Behror 

(Distt. Alwar, Rajasthan) and after arranging the answer key, provide it 

to Dr. Bhupender, Ravi (Student of MBBS), Dr. Sanjeet and Rajesh 

through mobile phone. It was also disclosed by Dr. Bhupender and coaccused 

(Rajesh, Ravi & Dr. Sanjeet arrested accused) that they 

contacted one Subhash Shrivastav, who runs an electronic gadgets shop 

in Patel Nagar, New Delhi in the name of “SPY SHOP” and told him 

about the whole plan and requested him to supply them undergarments 

of gents and ladies in which they can fix the SIM devices, etc. On this, 

Subhash Shrivastav, owner of the shop stated that this is illegal work, so 

he will take four times the cost of the garments. On this, Rs. 60,000/- 

for six garments were paid to Subhash Shrivastav. 

4. That during investigation it is found that on 02.5.2015, Roop Singh 

Dangi and co-accused Sunny S/o Ranbir Singh booked four rooms on the 

ID of Sunny in Shakti Resort, Behror, District Alwar, Rajasthan. That 

CCTV camera footage and relevant documentary evidence were 

collected and prima facie it was proved that accused Roop Singh Dangi 

was present at Shakti Resort, Behror, District Alwar, Rajasthan on 

03.5.2015 along with master solvers. It is pertinent to mention here that 

besides private cars, three buses were used by the accused Roop Singh 

Dangi to transport the master solvers/beneficiaries from various places 

to Behror. The statement of Manager of the Shakti Resort, Behror, 

District Alwar, Rajasthan, and another hotel in which accused Roop 

Singh Dangi and other exam solvers/beneficiaries stayed has been 

recorded u/s 161 Cr. P.C. by the investigating officer. 

731 


That during investigation, till date, it has came on file that accused Roop 

Singh and co-accused namely Krishan, Sunny Dahiya etc. have


telephoned several people in different cities of Bihar, Jharkhand, Uttar 

Pradesh, Rajasthan, Delhi, Maharasthra, Odisha and Haryana from 

several SIM cards from Behror. It is pertinent to mention here that 

Investigating Officer of the case invoked section 467/468/471 of the IPC 

in the case no. 07.5.2015. 

***** ***** ***** ***** ***** 

During investigation, it was revealed that out of 123 ‘solved’ answers of 

code “G” found in the mobile set of arrested accused Dr. Bhupender, 

102 answers were found correct while comparing with the answer key 

provided by the CBSE on their official website http://aipmt.nic.in 

Similarly 42 answers were found correct out of 50 of solved answer key 

delivered of Code “F” by the accused. 

**** **** **** **** **** 

9. That during investigation it came to notice that arrested accused Ravi 

(MBBS Student) was found involved in case FIR No. 06 dated 08.1.2012 

732 


Under Section 420/1208 IPC Police Station Crime Branch District 

Daryaganj, Delhi regarding leakage of All India P.G. Medical Entrance 

Examination -2012. Further another case FIR No. 178 dated 27.5.2012 

Under Section 419/420/468/471/1208 IPC was registered in Police 

Station Shabad Diary, District Outer Delhi has been found against 

accused Ravi for the offence of leakage of State Bank of India 

competition exam. It is pertinent to mention here that in these two 

cases, accused Ravi had leaked the respective exam by similarly using 

electronic gadgets and devices. 

**** **** **** **** **** 

10. That during the course of investigation, on 19.5.2015 accused 

Subhash Shrivastav (owner of spy shop) supplier of under garments 

affixed with electronic gadgets which were instrumental in leakage of 

AIPMT exam 2015 has been arrested from Delhi and has been produced 

before Id. Area magistrate, which has granted 2 days police custody. 

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During preliminary interrogation, he has admitted that he sold around 

300 such vests to others just before the exam.” 

**** ***** **** **** **** 

25.5.2015: 

**** **** **** **** **** 

“4. That it is suspected that 358 mobile numbers were used for 

receiving answer keys of unfairly solved question papers of AIPMT-2015 

to various mobile phones across the country while the exam was being 

conducted at various centres in the country from Behror, District Alwar, 

Rajasthan, where the question papers were solved by the accused 

persons. Out of these 358 mobile numbers, 260 mobile numbers were 

of other states and remaining 98 mobile numbers belong to the State of 

Haryana and the verification of these 98 SIM card holders is still under 

process. 

**** **** **** **** **** 

6. That on 25.5.2015, information was received from Central Board of 

Secondary Education (CBSE) regarding alleged malpractices in the 

AIPMT-2015. The list of unfair means cases which comprises of a total of 

29 cases has been received and out of these, in 21 cases the modus 

operandi is similar in nature i.e. use of electronic devices with concealed 

wiring in the undergarments and in one such case, an FIR No. 105 dt. 

03.5.2015 U/s 420/511/120-B IPC & Section 66 of IT Act, Police Station 

Bistupur, District Jamshedpur, Jharkhand has been found to be 

registered against three aspirants namely Md. Shabbir Zeya Roll No. 

51700365, Shashi Shekar Azad Roll No. 51700543 and Dhananjay Kumar 

Yadav Roll No. 51700222. All the three students were caught with vests 

fitted with electronic communication devices. It is pertinent to mention 

here that as per information received from CBSE, 15 candidates of one 

examination centre namely Siliguri Model High School Sr. Sec. Gurung 

Basti, P.O. Pradhan Nagar, Siliguri Distt. Darjeeling, West Bengal (Centre 

733 



55207) were caught with vests fitted with electronic devices. It is further 

submitted that in five cases it was found that the candidates were found 

in possession of other electronic devices for receiving messages. 

Similarly, another case FIR No. 208/15 has also been registered against 

student Annu Lal Roll No. 54835467 by Lucknow Police, Uttar Pradesh as 

he was also caught with an electronic device tied on his left hand with 

speaker in the ear. All the above aspirants need to be joined 

investigation in the instant case as well.“ 

**** **** **** **** **** 

02.6.2015: 

**** **** **** **** **** 

“3. That after sincere efforts, accused Nanha Kumar S/o Sh. Meena 

Parsad, resident of Kushi Nagar, Uttar Pradesh, who appeared in AIPMT 

-2015 was arrested on 29.5.2015. During interrogation, he disclosed the 

name of Sujit S/o. Sh. Dud Nath, who also appeared in AIPMT -2015 and 

734 


there upon he was also arrested by the SIT. Two vests of gents tagged 

with micro SIM devices, ear devices, charger and two mobile phones of 

dual SIMs were also recovered from the possession of both the accused 

Nanha and Sujit. During interrogation, they further disclosed that all 

these items were provided to them by one Vijay Yadav, who is a student 

of MBBS 1st Year in Banaras Hindu University, Uttar Pradesh. 

4. That during investigation, both the arrested candidates disclosed 

that they had jointly prepared for AIPMT -2014 with the said Vijay Yadav 

and one Rahul Verma. They further stated that Vijay Yadav and Rahul 

Verma were able to successfully qualify AIPMT -2014 by using the same 

modus operandi, i.e. use of electronic devices with concealed wiring in 

the under garments. As a result of it, they could secure admission in 

prestigious Medical Colleges i.e. King George Medical College, Lucknow, 

Uttar Pradesh and Banaras Hindu University, Uttar Pradesh respectively. 

Influenced by their success in the 2014 examination, the two arrested 

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candidates admitted to having met Vijay Yadav and Rahul Verma 

regarding AIPMT – 2015 and it was decided that for qualifying AIPMT – 

2015 Rs. 17 lakhs each will be paid by both of them to Vijay Yadav and 

Rahul Verma. They further disclosed that on 30.4.2015 they paid token 

money i.e. Rs. 50,000/- to Vijay Yadav, who provided the vests fitted 

with electronic devices and promised to deliver the answer key on the 

day of examination. They further stated that they received answer keys 

during the examination hours through electronic devices, which were 

supplied by Vijay Yadav and with the help of answer key they solved the 

question paper of AIPMT – 2015. On 30.5.2015, they were produced 

before the Id. Area Magistrate, Rohtak, which granted six days police 

remand. 

5. That it is pertinent to mention here that during investigation, the 

accused Nanha and Sujit disclosed that even in UPPMT – 2015 state 

examination held on 25.5.2015, they received answer keys from Vijay 

Yadav by using the same modus operandi, i.e. use of electronic devices 

with concealed wiring in the under garments. 

6. That on 01.6.2015, during the course of investigation, accused Vijay 

735 


Yadav S/o Sh. Satnarain Yadav (student of MBBS from BHU) has been 

arrested from Village Padroma, District Kushi Nagar, Uttar Pradesh. 

During interrogation, on 02.6.2015, he suffered a disclosure statement 

in which he stated that he used to prepare for AIPMT entrance exam 

along with Rahul Verma. He further stated that he along with Rahul 

Verma were able to qualify AIPMT – 2014 by using the same modus 

operandi, i.e. use of electronic devices with concealed wiring in the 

under garments. He further disclosed that answer keys were supplied to 

them by one Veer Bahadur (friend of Rahul Verma) and he along with 

Rahul Verma got admission in prestigious Medical Colleges. He further 

stated that this year he along with Rahul Verma again contacted Veer 

Bahadur regarding AIPMT – 2015 and it was decided that for qualifying 

the AIPMT exam, Rs. 17 lakhs each will be taken from the interested


candidates and they managed to prepare four candidates for the same. 

They collected original marksheets of all four candidates as surety. He 

further admitted that on 30.4.2015, he provided vests fitted with 

electronic devices to candidates namely Nanah, Sujit, Vinod and Sneh 

and received token money of Rs. 15,50,000/- each from Nanah and Suit 

and Rs. 30,000/- each from Vinod and Sneh. 

7. That accused Vijay Yadav further disclosed that on 02/3.5.2015, he 

went to Shakti Resort at Behror, Rajasthan by private bus (which was 

arranged by main accused Roop Singh Dangi). He also admitted that he 

736 


met the said Veer Bahadur at Shakti Resort, Behror, Rajasthan where 

Roop Singh Dangi was already present who provided them new mobile 

phones and SIM cards. He further disclosed that Roop Singh Dangi had 

leaked the AIPMT question papers and supplied the answer keys with 

the help of master solvers. He further stated that the solved answer 

keys were supplied to the candidates namely Vinod, Sneh, Nanah and 

Sujit during the examination hours through mobile phone from Behror, 

Rajasthan. He was produced before the Id. Area Magistrate, Rohtak on 

02.6.2015, which granted three days police remand. Further 

interrogation is going on. It is further submitted that, in reference to the 

DO letters written by the answering respondent to the SPs concerned 

regarding verification of 260 suspected mobile numbers, report of 50 

mobile numbers/SIM cards have been received till date. Out of these 50 

mobile numbers, 22 mobile numbers/SIM cards were found to be 

registered on fake identities.” 

**** **** **** **** **** 

11.06.2015: 

**** **** **** **** **** 

“4. That till date, 44 candidates have been found to be confirmed 

beneficiaries who were supplied answer key s during the examination 

by the gang through special vests fitted with electronic gadgets. The 

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detail of 44 beneficiaries’ candidates is annexed as ANNEXURE R -1. It is 

pertinent to mention here that out of 44 candidates, FIRs, have already 

been registered against three candidates in districts Jamshedpur, 

Jharkhand. Out of the remaining 41 candidates, 21 candidates were 

joined investigation by the SIT who admitted to having received answer 

keys through vests fitted with electronic devices during the examination 

hours. Notices to join investigation have been served upon the 

remaining 20 candidates who have yet to do so. The above mentioned 

44 beneficiaries appeared in the examination at various centres spread 

across the country. Out of these, 15 candidates appeared at Siligudi, 

District Darjeeling, West Bengal; 11 appeared at Rohtak, Haryana; four 

appeared at Ajmer, Rajasthan; three appeared at Delhi; three appeared 

at Jamshedpur, Jharkhand, and one each at Shimla, Himachal Pradesh; 

Dehradun, Uttrakhand; Patna, Bihar; Gurgaon, Haryana; Chandigarh; 

Bhubaneswar, Odisha; Bagdogra, District Darjeeling, West Bengal and 

Nagpur, Maharashtra and all them were able to secure answer keys 

through vests fitted with electronic devices. 

**** **** **** **** **** 

737 


6. That from the investigation conducted so far, it has been revealed 

beyond doubt that the network of this organized gang was spread 

across different parts of the country. Beneficiaries Sanjit and Naneh and 

the gang’s intermediary/handler Vijay Yadav (MBBS student from BHU) 

were already arrested from Kushi Nagar, Uttar Pradesh. It is further 

submitted that on 07.6.2015, during the course of investigation, one 

Parimal Koth Paliwal S/o Sh. Chander Shekhar Paliwal resident of House 

No. 389 Gajesh Nagar, Nagpur, Maharashtra, who owns a consultancy 

firm in Nagpur, Maharashtra was also arrested and during interrogation, 

he suffered the disclosure statement in which he admitted that he and 

his accomplice Abid Ali (2nd year MBBS student in Basant Dada Pawar 

Medical College, Nasik, Maharashtra) were able to successfully deliver 

answer key to a candidate namely Sahil S/o Sh. Bhand Kishore Gaddam


resident of Bodh Colony, Azad Chowk, District Gondia, Maharashtra 

through the same modus operandi. The notices were served upon both 

the accused to join the investigation. 

7. It is further submitted that in reference to the DO letters written by 

the answering respondent to various district SSP regarding verification 

of 358 suspected mobile numbers of beneficiaries, verification reports 

of 210 mobile numbers have been received till date, the details of which 

are as under: 

44 mobile numbers were found to be registered on fake identities.166 

738 


mobile numbers were found to be registered on genuine addresses and 

as per the verification reports, relatives/wards of 37 out of these 166 

mobile number users appeared in AIPMT – 2015. Out of these 37 mobile 

number users, incriminating evidence has been found against 17 

candidates / SIM cards holders (confirmed beneficiaries). The remaining 

20 users need to be joined investigation.The verification of remaining 

148 mobile numbers is still under process. 

**** **** **** ***** 

10. During interrogation, accused Vijay Yadav stated that he knew two 

persons namely Vikas and Sumit both residents of Prem Market, 

Gohana, District Sonipat, Haryana who are master solvers and who 

solved the question paper on 03.5.2015 from Shakti Resort, Behror, 

Rajasthan. Thereafter, on 06.6.2015 accused Vikas S/o Sh. Rishiraj and 

Sumit S/o Sh. Suresh both residents of Ward No. 13, Prem Market, 

Rohtak Gate, Gohana District Sonipat, Haryana were arrested. During 

preliminary interrogation, they disclosed that one Guddu of Rohtak, 

Haryana contacted them before the examination and discussed about 

leakage of question paper of AIPMT -2015 and it was also decided that 

they will be paid Rs. 50,000/- each for solving the question paper and 

they further admitted to having received Rs. 10,000/- each as advance 

money. They also disclosed that on 02.5.2015, the reached Shakti 

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Resort, Behror, Rajasthan and in the evening they met the main 

accused Roop Singh Dangi who told them that the question paper will 

be supplied to them about one hour prior to the start of the 

examination. They further disclosed that main accused Roop Singh 

Dangi provided them question paper of AIPMT – 2015at about 10.30 

AM and after receiving the question paper they solved it from Shakti 

Resort, Behror, Rajasthan and the answer keys were circulated to 

candidates across the country.” 

**** **** **** **** **** 

8. The CBSE in essence, while contending that there had been no 

omission or lapse on its part, in taking the necessary precautions for making 

foolproof arrangements, for smooth and fair conduct of the examination, has 

asserted that in view of the time schedule fixed by this Court in Mridul Dhar v. 

Union of India *** 1 (2005) 2 SCC 65 and Priya Gupta v. State of Chhatisgarh 

*** 2 (2012) 7 SCC 433, the prayer for holding a fresh examination would 

evidently upset the same and would result in formidable delay in all the 

following stages and adversely impact upon the academic session as well as the 

prospects of the candidates involved. While iterating that, it having prepared 

the answer key of 11.5.2015 there was no scope for the same being leaked prior 

to or on 3.5.2015 from its hold, the CBSE has stated, that in addition, it had 

provided various checks and balances, whereby every candidate in one 

examination room had been furnished with different sets of question papers 

where not only the sequence of the questions was different but even the order 

of choices of the answers did vary. It has stated as well that, in order to ensure 

smooth and secured conduct of the examination, all necessary authorities 

including the Director General of Police/S.P. of Police of all the States and Union 

Territories had been requested to take the necessary steps. That in response to 

a request, made by the investigating agency, it had furnished the requisite 

information, with regard to the question key 1 to 90, has been stated. The CBSE 

has claimed, that the answer keys of four sets of questions papers have been 

displayed on its web site from 18.5.2015 to 20.5.2015 and the individual OMR 

739 


740 



images of each candidate have also been provided from 21.5.2015 to 23.5.2015. 

Accordingly, an opportunity to challenge the answer key had been provided to 

the candidates and their objections as received have been finalized by the 

subject experts. It, however, admitted to have been reported of 29 cases from 

certain examination centers in the country where unfair means were allegedly 

used in the examination and out of those, in 21 cases, candidates have been 

reported to have used electronic devices concealed in their 

vests/undergarments. According to the Board, it did forward the details of 29 

candidates to the investigating agency. While pleading that in such a situation, 

pending the completion of the investigation, and identification of the 

beneficiaries of such malpractice, necessary action may be permitted to be 

taken against those already identified only and that the examination as a whole 

ought not to be scrapped in the interest of other students, the Board has 

indicated as well that having regard to the magnitude of the exercise to be 

undertaken, it would require at least 120 days to hold a fresh examination and 

that the whole process thereby would be delayed by four to seven months thus 

dislocating the time schedule therefor as fixed by this Court. 

9. In this pleaded background, the learned counsels for the petitioners 

led by Mr. Jaideep Gupta, Sr. Advocate have assertively argued that it being 

evident from the findings in the investigation till this stage, that a countrywide 

network with a preplanned design by a group of unscrupulous persons has 

successfully made, inroads in the examination process and has been able to 

illegally communicate the answer keys to a substantial number of candidates 

through electronic devices, the entire process stands defiled beyond repair and 

thus it ought to be nullified forthwith. According to them, with the progress of 

the investigation, the modus operandi has become apparent and the arrest of 

some of the perpetrators of the offence involved and the beneficiaries thereof, 

warrant immediate cancellation of the besieged examination in order to sustain 

the faith of all and sundry in the existing system of examination to judge the 

inter se merit of the participating candidates. The learned counsels have 

insisted, that having regard to the strategy applied and the electronic appliances 

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used, non-identification of all the beneficiaries cannot be a defence to save the 

examination afflicted by an incurable infirmity and thus a fresh examination is 

the only alternative in the attendant facts and circumstances. Having regard to 

the expected sanctity of an examination process, and the nature and extent of 

vitiation by the diabolic and deplorable outrages disclosed in the investigation 

till this stage, the beneficiaries of the plot even if they remain unidentified, 

cannot be permitted to score a march over their counterparts who are not party 

to the fraud and cannot be made to suffer for no fault of theirs, they 

maintained. 

10. Per contra, Mr. Ranjit Kumar appearing for the Union of India as well 

as the CBSE has asserted, that the Board having taken all precautions to hold 

the examination fairly and in accordance with the law, it cannot in any view of 

the matter be held liable for any lapse. He has urged that, even assuming that 

some beneficiaries of the alleged deceitful operation had been identified in 

course of the investigation, these being only 44 in number, the whole process 

cannot be construed to have been invalidated thereby. He has argued that in 

such an eventuality, having regard to the time schedule fixed by this Court and 

in the interest of other six lakh students, at best, the results of these identified 

beneficiaries can be kept withheld and the process be allowed to proceed to its 

logical end. He reiterated, abiding by the pleaded stand of the Board, that 

cancellation of the examination is not called for and that in case it is done, it 

would require at least four months for the same to be held again having regard 

to the infrastructural and other imperatives. 

741 


11. We have extended our anxious consideration to the averments, the 

documents laid and the contentious arguments advanced. Admittedly, the 

examination under the scanner had been conducted by the CBSE on 03.05.2015. 

The duration of the examination, the type of questions, total marks and the 

mode of assessment of performance, have been referred to hereinabove. 180 

objective type questions were to be attempted by the students in the 

examination. While the test was on, as it appears from the status reports 

submitted before this Court by the Superintendent of Police, Rohtak, Haryana, a

742 



secret information was received that some persons namely Bhupender S/o Shri 

Satpal, Rajesh S/o Shri Umed Singh, Sanjeet S/o Shri Ramkishan and Ravi S/o 

Shri Gorakh Singh, were involved in the leakage of answer key of the question 

paper of the said examination and the circulation thereof to the candidates, in 

lieu of monetary gain and that they were moving around in a Swift Car No. HR- 

12R-5552 in Rohtak. In course of the raids conducted by the police near 

examination centers, they intercepted a car with the above registration number 

on Delhi Byepass Road to Jhajjar Road, Rohtak in which four persons were 

travelling. On interrogation, it appeared that the car was being driven by Dr. 

Bhupender Singh S/o Shri Satpal and on checking his mobile number 

9992472959, several answer keys were found stored therein and further 

message of such key had been forwarded at 12.51 PM on the same date i.e. 

03.05.2015 to two mobile numbers. As per the status report dated 20.05.2015, 

the answer key of the same examination was found to be transmitted from the 

mobile number of Dr. Sanjeet, who was also travelling in the car to the mobile 

number of one Mr. Gautam, student of MBBS from Ujjain, Madhya Pradesh at 

12.33 PM through Whatsapp. Investigation followed thereafter and is 

continuing as on date as adverted to hereinabove from time to time, the 

investigating agency has submitted status reports on 20.05.2015, 25.05.2015, 

02.06.2015 and 11.06.2015, the relevant extracts wherefrom have already been 

quoted. A bare perusal of the said excerpts yields the following salient features: 

(a) On verification of the identity of the other occupants of the car those 

were disclosed to be Rajesh S/o Shri Umed Singh and Ravi S/o Shri Gorakh 

Singh, a student of MBBS from PGI, Rohtak. 

(b) On frisking Ravi, a carton containing three vests of gents and three 

vests of ladies were found to be tagged with micro SIM. 

(c) Similarly five Bluetooth devices were discovered from the possession 

of Sanjeet, a doctor. 

(d) One wrist watch consisting spy camera including data cables was 

recovered from the possession of Rajesh. 

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(e) The arrested accused persons made disclosures indicating that a 

meeting was organized by one Roop Singh Dangi S/o Ram Pal at his house at 

Omax City, Rohtak in which it was decided that Rs.20 lakh each would be taken 

from the candidates to help them for qualifying in the examination and that the 

person who would be able to bring such candidates would be awarded 1/3 of 

the amount collected. 

(f) It was disclosed as well that Roop Singh Dangi had leaked the 

question paper from Behror (Dist. Alwar, Rajasthan) and after arranging the 

answer key provided it to Dr. Bhupender, Ravi, Sanjeet and Rajesh at their 

mobile phones, to be transmitted to the beneficiaries in course of the 

examination. 

(g) It was further disclosed that to actuate this plan one Shri Subhash 

Shrivastav, who runs an electronic gadgets shop in Patel Nagar, New Delhi in the 

name of “SPY SHOP”, was contacted and after revealing to him the plan he was 

requested to supply undergarments of gents and ladies in which SIM devices 

etc. can be fixed to, which the shop owner agreed, at four times the normal 

price of the garments. 

(h) On 02.05.2015, Roop Singh Dangi and the co-accused Sunny S/o 

Ranbir Singh booked four rooms on the ID of Sunny in Shakti Resort, Behror, 

District Alwar, Rajasthan where, Roop Singh Dangi was present along with 

master solvers. Private cars and buses were used by Roop Singh Dangi to 

transport the master solvers/beneficiaries from various places to Behror. 

743 


(i) Roop Singh Dangi and co-accused namely Krishan, Sunny Dahiya etc. 

had telephoned several people in the cities of Bihar, Jharkhand, Uttar Pradesh, 

Rajasthan, Delhi, Maharashtra, Orissa and Haryana from several SIM cards from 

Behror. 

(j) Out of 123 solved answers of code “G” found in the mobile set of the 

arrested accused Dr. Bhupender, 102 answers were correct when compared 

with the answer key provided by the CBSE on their official website. Similarly, 42 

answers were found correct out of 50 solved answer key of Code ‘F’ delivered


by the accused. 

(k) Ravi was found involved in a similar malpractice pertaining to All 

India PG Medical Entrance Examination, 2012 and also relating to State Bank of 

India Competition Examination by using electronic gadgets/devices. 

(l) About 358 mobile numbers have been used, for receiving answer keys of 

unfairly solved question papers of the examination to be transmitted to various 

mobile phones across the country where the examination was underway. 

(m) Information was received from CBSE with regard to 29 candidates 

involved in malpractices in the examination out of whom 21 had been found to 

be using the electronic devices concealed in their undergarments. 

(n) 18 such candidates whose names had been disclosed in the status 

report were caught in course of the examination with electronic devices in their 

vests. 

(o) Two arrested candidates namely Nanha Kumar S/o Shri Meena 

Parsad and Sujit S/o Shri Dud Nath who had also taken the examination and 

744 


from whom vests fixed with micro SIM devices together with ear devices, 

charger and two mobile phones of dual SIMs were recovered, disclosed that all 

these have been provided to them by one Vijay Yadav, student of MBBS of 1st 

year in Banaras Hindu University, Uttar Pradesh. 

(p) These candidates further disclosed that Vijay Yadav and Rahul Verma 

have been able to qualify AIPMT, 2014 examination by using the same modus 

operandi. 

(q) These candidates admitted to have received the answer key during 

the examination though the three electronic devices which were supplied by 

Vijay Yadav and that with the help of the answer key they had solved the 

question paper. 

(r) Vijay Yadav on his arrest did disclose, that he used to prepare for 

AIPMT examination along with Rahul Verma and that they were able to 

successfully qualify in AIPMT-2014 by using the same modus operandi. He 

admitted that he along with Rahul Verma did contact Veer Bahadur for AIPMT, 

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2015 and planned to charge Rs.17 lakhs from each candidate to enable them to 

qualify in the examination. He admitted further to have provided vests fitted 

with electronic devices to the candidates Nanha Kumar, Surjit and others. He 

also admitted to have visited Shakti Resort, Behror, Rajasthan on 02/03.05.2015 

and had participated in the meeting where Roop Singh Dangi and Veer Bahadur 

were present who provided new mobile phones and SIM cards to the persons 

concerned with the understanding that Roop Singh would leak the AIPMT 

question paper and supply the answer key with the help of master solvers. 

(s) Till date 44 candidates have been found to be confirmed 

beneficiaries in the scheme who have been supplied with answer keys during 

the examination through electronic devices installed in their vests. 

(t) Out of 358 suspected mobile numbers of the beneficiaries, 44 have 

been found to be registered on fake identities, 166 are registered on genuine 

basis and verification with regard to the remaining 148 mobile numbers is under 

process. The names and details of these 45 beneficiaries have been furnished in 

the status report dated 01.06.2015 

12. The investigating agency in its report has stated in clear terms that 

from the disclosures recorded, it is beyond doubt that the strategy of providing 

answer key has been executed by an organized gang with a network spreading 

over different parts of the country. The Inspector General of Police, Haryana 

who was present with his team, having been granted the leave, submitted that 

the investigation in full swing is in progress and that undoubtedly many more 

beneficiaries of the plot would be identified at the earliest. He however could 

not, provide a deadline of time by which it could be done and the ongoing 

investigation could be completed. He frankly admitted as well, that in the 

process it might not be possible to identify each and every beneficiary of the 

malpractice perpetrated. 

745 


13. On a consideration of the revelations in course of the investigation, 

we are of the view that the examination indeed have been exposed to a deep 

rooted conspiracy of a gang of persons who with the aid of electronic devices


have been able to access the beneficiary candidates with the answer keys 

during the test so as to enable them to solve the question paper. This, as the 

investigation discloses was on the basis of a premeditated design and the 

benefit has been extended on monetary consideration. These, we hasten to 

add, are gathered from the status reports submitted before this Court from time 

to time, the authenticity whereof has not been questioned. The disclosures, to 

state the least, are startling and alarming as well. The status reports disclose 

involvement of persons who had been similarly involved in such a strategy and 

are the beneficiaries thereof. We have noted that the investigation in the cases 

registered has progressed well and having regard to the magnitude of the 

exercise involved, we accept that some more time would be necessary to 

complete the same in all respects. 

14. Situated thus, with the time schedule fixed by this Court for 

completion of the admission process for the 1st MBBS/BDS courses as per the 

pronouncements made in Mridul Dhar v. Union of India, (2005) 2 SCC 65 and 

746 


Priya Gupta v. State of Chattisgarh, (2012) 7 SCC 433, there are presently two 

alternative courses, either to segregate the 44 already identified beneficiary 

candidates, direct their results to be withheld and permit CBSE to proceed with 

process underway or direct a fresh examination by cancelling the ongoing 

exercise. 

15. As has been noticed hereinabove, the disclosures in the 

investigation suggest that the benefit of answer key has been availed by several 

candidates taking the examination, by illegal means. Though as on date, 44 such 

candidates have been identified, having regard to the modus operandi put in 

place, the numbers of cell phones and other devices used, it is not unlikely that 

many more candidates have availed such undue advantage, being a part of the 

overall design and in the process have been unduly benefited qua the other 

students who had made sincere and genuine endeavours to solve the answer 

paper on the basis of their devoted preparation and hard labour. In view of the 

widespread network, that has operated, as the status reports disclose and the 

admission of the persons arrested including some beneficiary candidates, we 

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are of the opinion, in view of the strong possibilities of identification of other 

candidates as well involved in such mal practices, that the examination has 

become a suspect. As it is, the system of examination pursued over the decades, 

has been accepted by all who are rationale, responsible and sensible, to be an 

accredited one, for comparative evaluation of the merit and worth of 

candidates vying for higher academic pursuits. It is thus necessary, for all the 

role players in the process, to secure and sustain the confidence of the public in 

general and the student fraternity in particular in the system by its 

unquestionable trustworthiness. Such a system is endorsed because of its 

credibility informed with guarantee of fairness, transparency authenticity and 

sanctity. There cannot be any compromise with these imperatives at any cost. 

16. Segregation only of the already 44 identified candidates stated to be 

the beneficiaries of the unprincipled manoeuvre by withholding their results for 

the time being, in our comprehension cannot be the solution to the problem 

that confronts all of us. Not only thereby, if the process is allowed to advance, it 

would be pushed to a vortex of litigation pertaining thereto in the foreseeable 

future, the prospects of the candidates would not only remain uncertain and 

tentative, they would also remain plagued with the prolonged anguish and 

anxiety if involved in the ordeal of court cases. Acting on this option, would in 

our estimate, amount to driving knowingly the students, who are not at fault, to 

an uncertain future with their academic career in jeopardy on many counts. 

Further, there would also be a lurking possibility of unidentified beneficiary 

candidates stealing a march over them, on the basis of the advantages availed 

by them through the underhand dealings as revealed. Having regard to the fact, 

that the course involved with time would yield the future generations of doctors 

of the country, who would be in charge of public health, their inherent merit to 

qualify for taking the course can by no means be compromised. 

747 


17. As would be available from the status reports, out of 123 solved 

answers of a particular code and retrieved from the mobile set of one of the 

persons arrested i.e. Dr. Bhupender, 102 answers were found correct on a 

comparison with the answer key provided by the CBSE. As referred to

748 



hereinabove, 358 mobile numbers had been pressed into service and at least 

300 vests fitted with electronic devices have been used. Having regard to the 

uncompromising essentiality of a blemishless process of examination involving 

public participation, we have no alternative but to hold that the examination 

involved, suffers from an infraction of its expected requirement of authenticity 

and credence. We are conscious of the fact that every examination being 

conducted by a human agency is likely to suffer from some shortcomings, but 

deliberate inroads into its framework of the magnitude and the nature, as 

exhibited, in the present case, demonstrate a deep seated and pervasive 

impact, which ought not to be disregarded or glossed over, lest it may amount 

to travesty of a proclaimed mechanism to impartially judge the comparative 

merit of the candidates partaking therein. If such an examination is saved, merit 

would be a casualty generating a sense of frustration in the genuine students, 

with aversion to the concept of examination. The possibility of leaning towards 

unfair means may also be the ultimate fall out. Even if, one undeserving 

candidate, a beneficiary of such illegal machination, though undetected is 

retained in the process it would be in denial of, the claim of more deserving 

candidates. At the present, the examination stands denuded of its sanctity as it 

is not possible to be cleansed of all the participating beneficiary candidates with 

certainty. We are thus, on an overall assessment of the materials on record, left 

unpersuaded to sustain the examination. We must observe that till this stage of 

the investigation, no conscious lapse or omission on the part of the Board, 

contributing to the otherwise appalling mischief has surfaced. 

18. Conscious are we that, as a consequence, the All India Pre-Medical 

and Pre-Dental Test 2015 would have to be annulled, thereby disturbing the 

time schedule fixed by this court in Mridul Dhar (supra) and Priya Gupta (supra). 

Though we respectfully subscribe to the calendar of dates fixed in these cases, 

more particularly in the textual context thereof, we perceive that in the 

extraordinary fact situation that confronts us, where the examination involved is 

vitiated to the core by use of deceitful means and measures to benefit some, 

the consideration of departure from the said time schedule per se would not be 

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a wholesome justification to sustain the otherwise tainted exercise. The time 

frame fixed by this court in the above cases, in our opinion, was not intended to 

be inflexibly adhered to in the situation of the kind with which we are seised of. 

The schedule of dates was fixed, so as to streamline and discipline the process 

of admission by its uniform application. In that view of the matter, we are of the 

understanding that the annulment of the examination and the consequences to 

follow, in the singular facts and circumstances of the cases, would not in any 

way be repugnant to the renderings of this court in Mridul Dhar (supra) and 

Priya Gupta (supra). The course we proposed to embark upon, is the demand of 

the situation based on contemporaneous official records and that facts 

corroborated thereby. The pleadings of the Board, that its answer key had been 

prepared on 11.5.2015 and that the same for all the four sets of question paper, 

had been displayed on its website from 18.5.2015 to 20.5.2015, along with the 

individual OMR images of each candidate between 21.5.2015 and 23.5.2015 

whereafter the challenges from the candidates have been received and have 

been verified with the subject experts, in the teeth of the disclosures in the 

investigation lack in persuasion to save the examination. 

19. We are aware, that the abrogation of the examination, would result 

749 


in some inconvenience to all concerned and that same extra time would be 

consumed for holding a fresh examination with renewed efforts therefor. This 

however, according to us, is the price, the stakeholders would have to suffer in 

order to maintain the impeccable and irrefutable sanctity and credibility of a 

process of examination, to assess the innate worth and capability of the 

participating candidates for being assigned inter se merit positions 

commensurate to their performance based on genuine and sincere endeavours. 

It is a collective challenge that all the role-players would have to meet, by rising 

to the occasion and fulfill the task ahead at the earliest, so as to thwart and 

abort the deplorable design of a mindless few seeking to highjack the process 

for selfish gain along with the unscrupulous beneficiaries thereof. Though the 

Board has taken a plea that having regard to the enormity of the exercise to be 

undertaken, the same cannot be redone before four months, we would

750 



emphasize that this is an occasion where it (the Board) ought to gear up in full 

all its resources in the right spirit, in coordination with all other institutions that 

may be involved so as to act in tandem and hold the examination afresh at the 

earliest. In the course of the arguments, this court was apprised that on 

previous occasions such type of examination had been held anew within a 

period of one month. We have no reason to doubt, that all other institutions 

would not lag behind to extend all possible assistance to the Board in its 

renewed endeavour. We are not unaware that in holding the present 

examination as well as in participating in the exercise, all genuinely concerned 

have put in tireless efforts. All these however have been rendered futile by a 

handful of elements seeking to reap undue financial gain by subjecting the 

process to their evil manoeuvres. We have thus no hesitation to order that the 

All India Pre-Medical and Pre-Dental Test stands cancelled. The CBSE would now 

have to hold a fresh examination at the earliest, by complying with all necessary 

and prescribed norms, being mindful of the exigency amongst others of the 

commencement of the academic session which presently stands scheduled to 

be on and from 01.8.2015. We direct the Board, in the attendant of facts and 

circumstances to hold the examination within a period of four weeks from 

today. It would take the necessary follow up steps in the coordination with all 

other institutions involved in the admission process and space the intermediate 

phases in the same pattern (understandably with dates changed) of the time 

schedule as mandated by this court in Mridul Dhar (supra) Priya Gupta (supra). 

Endeavours should be made to minimize the delay after the examination is held 

afresh as directed. We part with the expectation that the CBSE and the other 

stakeholder institutions would act in the right sprit in complying with this order 

for the paramountcy and trustworthiness of the system as well as the 

sustenance of the confidence that it enjoys. We all owe this, in the minimum, to 

the society in general and the student community in particular. 

20. These petitions are thus allowed to the extent indicated herein 

above. The investigating agency would, in accordance with law, complete its 

drill with all alacrity and earnestness. We reiterate, that the references to the 

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status reports and the contents thereof so far relatable to the cases in hand 

have been only in the context of the adjudication of the issues involved herein 

and have to be construed accordingly. 

21. No costs. 

Ss --- 

751 





Present: Justice R.K.. Agrawal and Justice Abhay Manohar Sapre. 

JAGTAR SINGH - Appellant, 

VERSUS 


CRIMINAL APPEAL No.86 OF 2013 

(i) Criminal - Co-accused was acquitted of the charges – Plea 

hence the benefit of the same be also extended to the appellant - 

Negated - Eevidence on record in no uncertain terms proves that it was 

the appellant who was the aggressor and hit the deceased - When the 

evidence directly attributes the appellant for commission of the act 

then we fail to appreciate as to how and on what basis we can ignore 

this material evidence duly proved by the eyewitnesses - Such was not 

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the case so far as co-accused is concerned - The prosecution witnesses 

too did not speak against the co-accused and hence he was given the 

benefit of doubt. [Para 23, 24] 

(ii) Indian Penal Code, Section 304 part II - We find that 

punishment of five years appears to be just and proper - It could have 

been even more because eventually the incident resulted in death of a 

person though the appellant did not intend to cause death of deceased 

- In the absence of any cross appeal by the State on the issue of 

quantum of sentence, we do not therefore consider it to be proper to 

go into the question of adequacy of sentence in this appeal filed by the 

accused. [Para 27] 

JUDGMENT 

Abhay Manohar Sapre, J. – (19 th June, 2015) - 

1. This appeal is filed by the accused against the final judgment and 

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order dated 22.12.2009 passed by the High Court of Punjab and Haryana at 

Chandigarh in Criminal Appeal No. 910-SB of 1998 which arose from the order 

of conviction and sentence dated 06.10.1998 and 07.10.1998 respectively 

passed by the Sessions Judge, Karnal in Sessions Case No. 37 of 1996/Session 

Trial No. 9 of 1997 convicting the accused persons under Section 304 Part II read 

with Section 34 of the Indian Penal Code, 1860 (hereinafter referred to as “IPC”) 

and sentencing them to undergo imprisonment for five years and to pay a fine 

of Rs.1000/- each. By impugned judgment, the High Court dismissed the appeal 

in respect of the present appellant–accused by upholding his conviction and 

sentence and allowed the appeal in respect of the co-accused by acquitting him 

of the charge. 

2. Facts of the case need mention in brief to appreciate the issue 

involved in this appeal. 

3. Harwant Singh/Harbans Singh, (PW-3)-first informant and the 

accused persons are related to each other. Kapoor Singh (since deceased), 

father of PW-3 was having three brothers, namely, Amar Singh, Gurnam Singh 

and Surinder Singh. The accused persons–Ajaib Singh and Jagtar Singh - the 

appellant herein are sons of Gurnam Singh. Amar Singh and Gurnam Singh have 

expired. The family of these persons owned extensive agricultural land. The 

forefathers of the parties had, therefore, partitioned the agricultural land 

verbally amongst the family members and accordingly all sharers were 

cultivating their respective share. 

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4. In the year 1991, the appellant-accused and his brother raised a 

grievance to PW-3 that the land which was allotted to them was not of good 

quality. PW-3, acceded to their request and exchanged his land with the 

accused persons. The parties accordingly executed the exchange deed on a 

written document before the Panchayat in relation to exchange of lands. 

However, the girdawari in respect of the exchanged land remained unaltered 

and both the parties continued to cultivate their exchanged land. PW-3 then 

made improvements in the land which was in his possession by investing his 

money and labour. On finding that the land had been improved by PW-3, the


appellant and his brother raised a demand to reverse the exchange. On noticing 

that this might lead to a dispute, PW-3 applied for correction of the girdawari 

entries in revenue records. The Tehsildar, Nilokheri on 31.07.1996, visited the 

spot to enable him to pass appropriate orders on adjudication of the 

application. 

5. On 20.09.1996, when PW-3 went to the Court to attend the 

proceedings, his uncle Surinder Singh and Gurmeet Singh, son of Amar Singh 

also accompanied him. The Tehsildar passed the order in favour of PW-3. At 

about 5.15 p.m., when they were coming out of the office of the Tehsildar, the 

754 


appellant and his brother came there and caught hold of PW-3 and said that the 

verdict of the revenue officer is wrong and, therefore, they would not allow him 

to enter the land in question. When Surinder Singh tried to intervene, Jagtar 

Singh, the appellant-accused herein caught hold of the beard of Surinder Singh 

and pulled him down on the ground and hit him on his head 2-3 times by hand. 

Due to injuries received, Surinder Singh became unconscious. PW-3 and his 

cousin-Gurmeet Singh then tried to catch hold of the accused persons but they 

managed to run away from the spot. Both of them then took Surinder Singh to 

the nearest hospital at Nilokheri but in midway, he died. Thereafter, PW-3 

lodged an FIR bearing No.404 dated 20.09.1996 at P.S. Butana, Dist. Karnal 

under Section 302/341/34 IPC of the incident. 

6. After investigation, on 07.10.1996, charge sheet against the accused 

persons, namely, Jagtar Singh-appellant (accused) herein and Ajaib Singh, was 

filed under Section 302/341/34 IPC. 

7. By order dated 16.11.1996, the Judicial Magistrate-1st Class, Karnal 

committed the case for trial to the Sessions Judge, Karnal which was numbered 

as Session Case No. 37 of 1996 (Session Trial No.9 of 1997). The prosecution 

examined six witnesses to prove their case whereas defence examined one 

witness and filed certain documents. 

8. By order dated 06.10.1998 in Sessions Case No. 37 of 1996 and 

Sessions Trial No. 9 of 1997 convicted both the accused under Section 304 Part- 

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II read with Section 34 of IPC and vide order dated 07.10.1998 sentenced them 

to undergo imprisonment for five years and to pay a fine of Rs.1000/- each, in 

default of payment of fine to further undergo imprisonment for six months 

under Section 304 Part II read with Section 34 of IPC. 

9. Aggrieved by the said order, the accused persons filed appeal bearing 

Appeal No. 910-SB of 1998 before the High Court. The High Court, by judgment 

dated 22.12.2009 dismissed the appeal of Jagtar Singh-the appellant (accused) 

herein and in consequence upheld his conviction whereas while allowing the 

appeal filed by Ajaib Singh, co-accused, set side his conviction and acquitted him 

of the charges. 

10. Feeling aggrieved, Jagtar Singh (accused) has filed this appeal by way 

of special leave. 

11. Heard Mr. Akshat Goel, learned counsel for the appellant-accused 

and Dr. Monika Gusain, learned counsel for the State. 

12. Challenging the conviction and sentence, learned counsel for the 

appellant-accused has submitted that: 

(i) there was neither any motive on the part of accused to 

commit the offence in question and nor there was any incident of any 

type in the past during the course of proceedings. 

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(ii) in any case, since there was only one simple injury found on 

the body of the deceased and no weapon was used to inflict such injury, 

the courts below erred in convicting the appellant for an offences 

punishable under Section 304 Part II of IPC. 

(iii) even if the case against the appellant-accused is held proved 

yet at best it is punishable under Section 323/325 of IPC. 

(iv) the statement of the eyewitnesses are not trustworthy and 

hence the Court below erred in placing reliance on their testimony. 

(v) In any event, the High Court having rightly acquitted the coaccused, 

the same benefit should have been extended to the appellant 

and he too should have been acquitted on the same reasoning


(vi) and lastly since the appellant has already undergone 

sentence for a period around 3 years or so out of total sentence 

awarded to him and hence the appellant be now left with the sentence 

already undergone by appropriately reducing the quantum of sentence. 

13. In contra, learned counsel for the respondent-State contended that 

no case is made out for any interference in the concurrent conviction recorded 

by the two Courts below. He urged that none of the submissions of the 

appellant-accused has any substance. 

14. Having heard learned counsel for the parties and on perusal of the 

record of the case, we find no merit in any of the submissions of the appellantaccused. 

15. The High Court dealt with the case of appellant herein for holding 

him guilty as under: 

“The same is, however, not true in case of appellant Jagtar 

Singh. There is clear, clinching and unambiguous evidence on the 

756 


record, in the statements of PW-3-Harbans Singh and PW-4 Gurmeet 

Singh to the effect that it was he who caught hold of Surinder Singh, 

deceased by latter’s beard and hair, felled him upon ground and hit his 

head twice or thrice against ground. It was on account of that hit that 

Surinder Singh became unconscious on the spot. Though appellant 

Jagtar Singh did make an attempt, abortive though, to raise above 

indicated plea (in the statement under Section 313 Cr.P.C.) but that plea 

does not stand proved on record. If there was an iota of truth in the 

above noticed plea of appellant Jagtar Singh (to the effect that matter 

was under discussion in the presence of certain common relations), 

there is no reason why he could not have named them or examined at 

least one or two out of them at the trial. Their testimony could be 

supportive of the plea raised by Jagtar Singh appellant at the trial.” 

16. We have also on our part perused the ocular evidence and having so 

perused are inclined to concur with the aforementioned view of the High Court 

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calling no interference. 

17. The evidence, in our opinion, does prove that it was the appellant 

who took the lead, caught hold of deceased by his hand, pulled him down to the 

ground and hit him on his head. The injury in the head resulted the deceased 

first becoming unconscious and later succumbed to it. The ocular evidence on 

this issue was properly appreciated by the trial Court and the High Court for 

holding the appellant guilty for committing the offence in question and hence it 

deserves to be upheld. 

18. We have not been able to notice any kind of inconsistency or 

exaggeration in the evidence adduced by the prosecution on this material issue 

so as to disbelieve the evidence of eyewitnesses account and hence we concur 

with the finding of the High Court quoted above and reject the submission of 

the learned counsel for the appellant. 

19. Now so far as the issue relating to existence of motive is concerned, 

we consider it apposite to reproduce the finding of the High Court on this issue. 

“There also, Jagtar Singh appellant is not on firmer footing. 

There is plethora of evidence available on record to prove that the first 

informant had filed an application for correction of Girdawari entries 

and the adjudication announced on the relevant date by the revenue 

officer was favourable to him. There is also material available on record 

that first informant had improved the land which he exchanged with the 

appellant to redress the grievance of the latter that the quality of the 

land which fell to their share in a partition was inferior. It was after the 

further exchange, as between the appellants on the one hand and PW-3 

Harbans Singh on the other hand, that the latter had improved the 

quality of that land. It was obvious that the appellants entertained a 

feeling of envy towards the first informant and they had an eye upon 

the improved land under the cultivation of first informant. The 

favourable announcement of the Girdwari correction provided the 

proverbial combustible material to the appellants who have been 

757 



proved on record to have announced thereafter that announcement of 

the verdict of the revenue officer notwithstanding, they would not allow 

the first informant to enter upon the land qua which Khasra girdwaries 

entries had been ordered to be corrected. It cannot, thus be said with 

any justification that the appellant had no motive to commit the 

impugned crime.” 

20. We have on our part perused the evidence on this issue and find no 

case to differ with the finding of the two courts below. Learned counsel for the 

appellant was also not able to show as to why the aforementioned finding of 

the High Court is rendered bad in law and legally unsustainable. 

21. In our considered view, there is enough evidence both ocular and 

documentary to prove that the motive did exist prior to commission of the 

crime in question. Firstly, it was not in dispute that the parties were related to 

each other; secondly, everyone had a share in the lands which belong to their 

forefathers; thirdly, proceedings for mutation were going in revenue courts in 

758 


relation to the lands belonging to them; fourthly, an order of mutation was 

passed by Tehsildar in PW-3’s favour which the accused did not like being 

adverse to them resulting in developing some grudge against PW-3 and his 

family members. 

22. In the light of these facts, which are duly proved by the prosecution 

with the aid of their eyewitnesses, we find no good ground to differ with the 

finding of the High Court and accordingly hold that there was a motive to 

commit the offence. We accordingly hold so. 

23. We are not impressed by the submission of the learned counsel for 

the appellant when he urged that since the co-accused was acquitted of the 

charges, hence the benefit of the same be also extended to the appellant. 

24. As held above, the evidence on record in no uncertain terms proves 

that it was the appellant who was the aggressor and hit the deceased. This 

evidence was rightly made basis by the two courts to hold the appellant guilty 

for committing the offence in question. When the evidence directly attributes 

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the appellant for commission of the act then we fail to appreciate as to how and 

on what basis we can ignore this material evidence duly proved by the 

eyewitnesses. Such was not the case so far as co-accused is concerned. The 

prosecution witnesses too did not speak against the co-accused and hence he 

was given the benefit of doubt. It is pertinent to mention that the State did not 

file any appeal against his acquittal and hence that part of the order has 

attained finality. 

25. Now coming to the issue of conviction and sentence awarded under 

Section 304 Part II of IPC to the appellant, though arguments were advanced by 

the learned counsel for the appellant for its conversion under Section 323/325 

of IPC or in the alternative to reduce the quantum of sentence to the extent of 

appellant already undergone i.e. three years, we are not inclined to accept the 

submission of learned counsel even on this issue. 

26. In our considered opinion, having regard to the nature of injury 

caused by the appellant to the deceased and the manner in which it was caused 

and taking into account the cause of death - shock and hemorrhage, the Courts 

below were justified in bringing the case under Section 304 part II instead of 

bringing the same either under Section 302 or/and Section 304 Part I. It is apart 

from the fact that the State has not filed any appeal against the impugned order 

seeking conviction of the appellant under Section 302 or under Section 304 Part 

I or even for enhancement of punishment awarded to the appellant under 

Section 304 Part II. 

759 


27. In any event, we find that punishment of five years appears to be 

just and proper. It could have been even more because eventually the incident 

resulted in death of a person though the appellant did not intend to cause death 

of deceased. In the absence of any cross appeal by the State on the issue of 

quantum of sentence, we do not therefore consider it to be proper to go into 

the question of adequacy of sentence in this appeal filed by the accused. 

28. In the light of foregoing discussion, we find no merit in this appeal 

which thus fails, and is accordingly dismissed. As a result, the conviction and


sentence awarded to the appellant by the courts below is upheld. 

29. The appellant is accordingly directed to undergo remaining period of 

sentence. If the appellant is on bail, his bail bonds are cancelled to enable him 

to surrender and undergo remaining period of sentence. 

30. A copy of the order be sent to concerned court for compliance. 

Ss- 

760 


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Present: Justice T.S. Thakur, Justice Anil R. Dave and Justice A.K. Sikri. 

SECURITIES AND EXCHANGE BOARD OF INDIA (SEBI) & ANR. – APPLICANT, 

VERSUS 

SAHARA INDIA REAL ESTATE CORPN. LTD. & ORS. - RESPONDENT. 

Civil Appellate Jurisdiction I.A. Nos. 59 – 61 OF 2015 and I.A. Nos. 62 – 64 OF 

2015 In Contempt Petition (Civil) Nos. 412 and 413 Of 2012 In Civil Appeal Nos. 

9813 And 9833 Of 2011 And Contempt Petition (Civil) No. 260 OF 2013 In Civil 

Appeal No. 8643 OF 2012 

(i) Contempt - We are conscious of the fact that three persons 

are under confinement for the last fifteen months - This court was 

virtually compelled to do so, going by the stubborn attitude of the 

contemnors in taking the orders for granted, as if those orders were 

only on papers and were not meant to be complied with - It is only 

when the Court felt that unless some drastic action is taken there will 

be no desired effect, that this extreme step was taken - However, this 

step was taken in good faith to uphold the rule of law and to ensure 

that dignity of this Court is maintained and there is faithful compliance 

with its directions - Rule of law - - Sahara Case. 

761 


(ii) Personal liberty versus Public good - Sahara Case - This Court 

feels concerned with the fact that three persons are deprived of their 

liberty for the last fifteen months and this situation is quite onerous to 

them - On the other hand, public interest as well as public good 

demands that the two Sahara Companies, which had collected 

whopping amount of more than Rs. 22,000 crores from the public in an 

illegal and unauthorised manner, are made accountable for the same -


By any yardstick, this is a huge liability, which the contemnors are 

bound to discharge by depositing the same with SEBI - It is, thus, an 

unprecedented situation of personal liberty of the three applicants on 

the one hand vis a vis majesty of law and ensuring larger public good, 

on the other hand - It is this sense of justice, in an unprecedented kind 

of situation, that has compelled the Court to take such an extreme step 

- It is this legal realism which has compelled the Court to adopt an 

approach which sounds more pragmatic - It is “doing what comes 

naturally” approach to the problem at hand, which required such a 

drastic step, going by the experience of this case, giving rise to 

'Reflection' that provided 'Understanding'. 

Held, 

This case is a burning example where the true dictate of justice is 

difficult to discern, and the law needed to come down on the side of practical 

762 


convenience. We may borrow the jurisprudential theory propounded by Ronald 

Dworkin, albeit in somewhat different context, viz. the “conventional 

jurisprudential wisdom” which holds that in certain cases of a particularly 

complex or novel character the law does not provide a definite answer. In 

denying that judges in hard cases have a discretion to determine what the law 

is, Dworkin has instead argued for the judicial use of public standards or 

principles in a way that is capable of providing the right legal answer. The 

process of reaching a right answer in hard cases obviously differs from the 

process of reaching the legal answer in easy cases. After all, the avowed 

objective of rule of law is also to ensure that the orders of this Court are 

respected and obeyed. Therefore, its a classic case where the approach 

adopted is influenced by the necessity of “making the law work”. Therefore, the 

orders passed may not be strictly construed as arising out of contempt 

jurisdiction, but in exercise of inherent jurisdiction vested in this Court to do 

complete justice in the matter and to ensure that the applicants render full 

compliance of its orders. It's the unprecedented situation which has led to 

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passing of unprecedented, but justifiable, orders. 

(iii) Bank guarantee - The bank guarantee format does not 

provide for a trigger point for its encashment - Furnishing the bank 

guarantee without stipulating the situations in which the guarantee 

shall become encashable, will be meaningless. 


1. (2014) 8 SCC 470, Subrata Roy Sahara v. Union of India *** 

JUDGMENT 

A.K. Sikri, J. – (19 th June, 2015) - Before we advert to the reliefs 

claimed in these applications and announce the outcome thereof, we would like 

to recapitulate, very briefly, the genesis for moving these applications as we feel 

that such a recount of the previous events would make it easy to understand 

the circumstances under which these applications have been filed. It would also 

provide us the course of action that is to be taken on the prayers made in these 

applications. 

2) The main proceedings with which we are concerned are the 

contempt petitions bearing Nos. 412 of 2012 and 413 of 2012 in Civil Appeal 

Nos. 9813 of 2011 and 9833 of 2011 as well as Contempt Petition No. 260 of 

2013 in Civil Appeal No. 8643 of 2012. These contempt petitions filed by the 

Securities and Exchange Board of India (for short, 'SEBI') have the origin in the 

judgments that were pronounced in the civil appeals, numbers whereof are 

mentioned above. It so happened that Sahara India Real Estate Corporation 

Limited (SIRECL) and Sahara Housing Investment Corporation Limited (SHICL) 

(hereinafter referred to as the 'Saharas') invited and claimed to have collected 

deposits from general public who, allegedly, included cobblers, labourers, 

artisans, peasants etc. This invitation for deposit was in the form of 'Optional 

Fully Convertible Debentures' (OFCD). SEBI found that offering of such OFCD 

was not legally permissible and passed orders directing Saharas not to offer 

their equity shares/ OFCDs or any other securities to the public or invite 

subscription in any manner whatsoever either directly or indirectly. The High 

763 


764 



Court of Bombay dismissed their petitions and directed Sahara Companies, in 

particular the promoter Mr. Subrata Roy Sahara, and Directors Ms. Vandana 

Bhargava, Mr. Ravi Shankar Dubey and Mr. Ashok Roy Choudhary of Saharas to 

jointly and severely refund the amount collected by Saharas in terms of the 

aforesaid issue along with interest @ 15% per annum. It is pertinent to mention 

that on the basis of these directions of the High Court, SEBI ordered that refund 

of the amount shall be made only through demand drafts or pay orders. Certain 

other directions were also issued. Aggrieved by these orders of SEBI, Saharas 

approached Securities Appellate Tribunal (for short, 'SAT'). SAT also declined to 

interfere with the view taken by SEBI and directed Saharas to refund the 

amount collected from the investors within a period of six weeks. Against these 

orders of SAT, Civil Appeal Nos. 9813 of 2011 and 9833 of 2011 were preferred 

by Saharas in this Court, which were finally disposed of by order dated 

31.08.2012. While substantially maintaining the orders of SEBI and SAT, a 

modification was made in those orders with a direction to Saharas to deposit 

the amount collected by them along with interest @ 15% per annum with SEBI 

within a period of three months. The amount when deposited was directed to 

be invested in a nationalised bank to earn interest. Saharas were also directed 

to furnish details with supporting documents to establish whether they had 

refunded any amount to the investors who had subscribed through the Red 

Herring Prospectus (RHP) in question. SEBI was then to examine the correctness 

of the details so furnished. Failure to prove the refund of the amount by Saharas 

had to give rise to an inference that Saharas had not refunded the amount to 

the real and genuine subscribers as directed by SEBI. 

3) Aforesaid directions were admittedly not complied with. Instead, 

another appeal, being Appeal No. 221 of 2012, was preferred by Saharas before 

SAT which was dismissed as premature. Against that order, Civil Appeal No. 

8643 of 2012 was filed in this Court which was decided on 05-12-2012. The 

Saharas had produced before the Court, demand drafts for a total sum of Rs. 

5120 crores. This Court directed them to handover the same to SEBI. Further 

direction was given to deposit the balance amount of Rs. 17,400 crores together 

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with interest @ 15% per annum with SEBI in two installments. First installment 

of 10,000 crores was to be Rs. deposited with SEBI by first week of January, 

2013 and balance amount, along with interest, was to be deposited by first 

week of February, 2013. However, the balance amount or the interest payable, 

as per the installments, was not deposited though it was to be deposited by 

January/February, 2013. It resulted in filing of the contempt petitions, which are 

the main proceedings at hand. In these contempt petitions various 

opportunities were given to the contemnors to purge the contempt by 

depositing the amount, as directed. The record shows that at various stages the 

contemnors gave the proposals for compliance with the directions which were 

explored from time to time, but eventually all these proposals were found to be 

unsatisfactory, yielding no tangible results. This was perceived as stubborn 

attitude of the contemnors with sole intent to drag on the matter endlessly 

without complying with the orders. This attitude of the contemnors forced this 

Court to issue non-bailable warrants against Mr. Subrata Roy Sahara for his 

production and directing personal presence of the other three Directors in the 

Court on the date fixed. On 04.03.2014, when the matter was listed, and during 

the hearing as it transpired that no acceptable proposal was forthcoming to 

comply with the directions, the Court was left with no option except to commit 

the three out of four contemnors to judicial custody. We would like to mention 

that by that time, after including the interest which had accumulated, a sum of 

Rs. 33,000 crores had to be deposited. 

765 


4) The matter came up for hearing on 26.03.2014 again and the three 

contemnors committed to judicial custody prayed for grant of bail on that day. 

The Court passed conditional order of bail on that day. The condition was that 

the contemnors deposit 10,000 Rs. crores – Rs. 5000 crores in cash and balance 

of Rs. 5000 crores in the form of bank guarantee of a nationalised bank, to be 

furnished in favour of SEBI. It was specifically directed that upon compliance 

with these conditions the contemnors would be released from the custody. 

5) Till date there is no full compliance of the aforesaid condition for 

grant of interim bail, with the result the three contemnors are still in judicial


custody and 15 months have passed thereby. 

6) We would like to point out at this stage that by orders dated 

21.11.2013 passed by this Court the assets of Sahara Group of Companies were 

766 


frozen, to ensure that the contemnors do not fritter away these assets without 

complying with the directions of this Court passed in the Civil Appeals. However, 

on the request made by Sahara Group for lifting the embargo on certain 

properties in order to enable the Saharas to sell those properties so that the 

interim bail conditions are fulfilled, on 04.06.2014, this Court permitted various 

Sahara Group Companies to deal with/sell some of their assets, but only for the 

purpose of complying with the order dated 26.03.2014 with further condition 

that whatever amount is realized by the sale of the said assets, same shall be 

deposited into the SEBI – Sahara Refund Account and for providing the requisite 

bank guarantee in favour of SEBI in the sum of Rs. 5000 crores, as per the 

directions. Though this liberty was granted to Saharas one year ago and some 

other directions were given from time to time providing various facilities to the 

three contemnors in judicial custody felicitating contacts and 

dialogue/interaction with the prospective buyers for clinching of deals, the 

contemnors have been able to achieve only a partial success. They have mooted 

various proposals for the sale of these properties. However, major proposals run 

into rough weather, hitting one or the other kind of road block and had to be 

terminated midday. We would like to point out that the embargo which was 

lifted in respect of certain properties, the value thereof as per the books of 

accounts is in several thousand crores and had the Sahara group succeeded in 

selling even few of these properties, bail conditions would have been met long 

ago. Thus, insofar as this Court is concerned it gave all necessary stimulus to 

enable the applicants to sell the assets, that too at reasonable market price. If, 

the contemnors have still not been able to achieve the required target, it is 

either because of the reason that the efforts made by the contemnors as well as 

other officers of Sahara group in raising money from the sale/encumbrance of 

these properties were not adequate or it was their ill-luck or it is the market 

conditions which have to be blamed. Fact remains that by order dated 

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26.03.2014, this Court had granted bail, albeit with certain conditions. However, 

it is the contemnors who have not been able to fulfil those conditions for one 

reason or the other. 

7) During this period, certain properties have been sold and the amount 

realised therefrom stands deposited in the SEBI – Sahara Refund Account. 

Things have come to a stage where, according to the applicants, they are at the 

verge of fulfiling the conditions imposed by the orders dated 26.03.2014. It is 

mentioned that they have certain buyers for some of the properties and the sale 

proceeds therefrom would meet the deficit. It is also stated that the 

contemnors have been able to negotiate with a nationalised bank, through two 

of its Sahara group companies and the said bank has agreed to furnish the 

required bank guarantee. The format of the bank guarantee is also produced at 

the time of hearing for the approval of the Court, so that the guarantee is given 

in the said format, if approved. 

8) Assets of various companies of Sahara group have been frozen. 

According to the applicants, by reason of the said freeze the financial and 

liquidity position of various Sahara group companies has been adversely 

affected and it has also resulted into mounting liabilities in the form of statutory 

liabilities, unpaid salary and wages, outstanding and overdue amounts payable 

to banks, etc. Because of this reason, IA Nos. 59-61 of 2015 are filed praying for 

the following reliefs: 

767 


“(i) allow the Sahara Group Companies to meet their respective 

statutory and other liabilities as enumerated in this application under 

such terms and condition as this Court may deem proper along with the 

compliance of the order dated 26.03.2014 passed by this Hon'ble Court; 

(ii) permit the Sahara Group Companies to utilize the balance, if 

any, of the proceeds obtained from the sale/encumbrance of assets 

which has been specifically permitted by this Hon'ble Court that remains 

after complying with the order dated 26.03.2014 passed by this Hon'ble 

Court for the purpose of meeting the liabilities enumerated in this


application; and 

(iii) For such further and other orders and directions as may 

appear just, necessary and appropriate to this Hon'ble Court, in the 

circumstances of the case.” 

9) Insofar as permission to sell certain properties of Sahara group is 

concerned, it was subject to certain conditions as indicated above and one of 

the conditions was that sale must not be for a price lower than 5% of the 

estimated value for such a property. The applicants state that in respect of one 

such property at Gorakhpur, Uttar Pradesh, they have been able to find a 

768 


purchaser who is ready to step into the shoes of the applicants for 

development/ maintenance of the said property. MOU with the said party has 

already been entered into, which is placed on record. It is pointed out, however, 

that the price being offered is Rs. 64 crores. The price offered is lower than 5% 

of the estimated value. However, according to the applicants, due to the 

depressed real estate market, the present estimated market value of the said 

property is Rs. 53.70 crores, as per the valuation report received. This value is 

calculated on the basis of circle rate of the project land. On that basis, IA Nos. 

62-64 of 2015 are filed with the following prayers: 

“(i) Allow the applicants to enter into the Definitive Agreement 

for the property situated at Gorakhpur; and 

(ii) pass such further or other orders as this Hon'ble Court may 

deem fit and proper in the facts and circumstances of the present 

case.” 

10) Insofar as the aforesaid prayer (i) in IA Nos. 62-64 of 2015 is 

concerned, having regard to the reasons mentioned in paras 4 and 5 of the 

application, which are stated in brief above, and the fact that the MOU is 

entered for an area of undeveloped land of 45.71 acres out of the total land 

area of 146 acres, coupled with the fact that there is slump in the real estate 

market, we allow the applicants to enter into Definitive Agreement, making it 

clear that the entire amount from the aforesaid deal shall be deposited in SEBI- 

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Sahara Refund Account after adjusting transaction cost and taxes. 

11) Insofar as prayers (i) and (ii) contained in IA Nos. 59-61 of 2015 are 

concerned, we are of the opinion that the stage for making such prayers has not 

ripened as yet. The Sahara group companies want to meet their statutory and 

other liabilities from the surplus that would be available after complying with 

order dated 26.03.2014. As soon as there is a compliance with the said order, 

this Court shall consider at that stage the availability of the surplus funds along 

with other factors and then pass appropriate orders on these applications. It is 

necessary to mention that even after order dated 26.03.2014 is complied with, 

there is a huge deficit in the form of balance amount that would still be required 

to be deposited by the applicants/contemnors in order to comply with the 

directions contained in the orders dated 31.08.2012 and 05.12.2012 passed by 

this Court in the civil appeals. Therefore, orders on the prayers made in IA Nos. 

59-61 of 2015 are deferred for the time being. 

12) Coming to the format of the guarantee given by the applicants, on 

which the applicants want seal of approval from this Court in order to enable 

them to submit the requisite bank guarantee, we would like to reproduce the 

same, which reads as follows: 

769 


“ GUARANTEE 

We _____________ Bank, a scheduled Bank within the meaning 

of the Banking Regulation Act, and having our office at _________ do 

hereby grant and issue this unconditional and irrevocable guarantee of 

Rs.5000 crores (rupees five thousand corres) in favour of Securities and 

Exchange Board of India (SEBI) at the request made by Amby Valley 

(Mauritius) Ltd. on behalf of Sahara India Real Estate Corporation Ltd. 

and Sahara Housing Investment Corporation Ltd., in compliance with 

the order of the Hon'ble Supreme Court of India dated 26th March 

2014. We hereby guarantee that on the demand in writing made by 

SEBI, we shall, without demur, pay the amount demanded upto the 

maximum amount of Rupees Five Thousand Crores. This guarantee


shall remain in force initially for a period of six months and shall be 

extended for further periods of six months at the time, until SEBI 

otherwise directs pursuant to the order of Hon'ble Supreme Court.” 

13) SEBI has given its nod to the aforesaid format. Likewise, Mr. Shekhar 

Naphade, learned amicus appointed by this Court, has made a statement that 

the guarantee to be furnished in the aforesaid format may be accepted. At the 

same time, Mr. Arvind Datar, learned senior counsel appearing for SEBI, as well 

as Mr. Naphade were very emphatic in pointing out that this Court should 

indicate in its order as to what should be the trigger point for encashing the 

bank guarantee. In other words, it was their submission that insofar as balance 

amount payable by the applicants/contemnors is concerned, this Court may give 

some specified time to them for this purpose and on the contemnors/applicants 

failure to deposit the balance amount, with accrued interest with SEBI, SEBI 

should be allowed to encash the bank guarantee in question. 

14) M/s. Kapil Sibal, Rajeev Dhawan and S. Ganesh, learned senior 

770 


counsel appearing for the applicants, on the other hand, submitted that it is not 

necessary to go into this aspect at this stage. They pointed out that last para of 

the bank guarantee categorically mentions that the guarantee is to remain in 

force 'until SEBI otherwise directs, pursuant to the orders of the Hon'ble Court' 

and, thus, this Court can direct at any stage as at what point of time the bank 

guarantee is to be encashed. Their argument was that the applicants have 

refunded almost Rs. 16,000 crores to the investors and voluminous record of 

documents in support thereof has already been handed over to SEBI. It is for the 

SEBI to verify the same and inform as to what would be the balance amount 

payable after adjustment of the amounts already paid to the investors and to 

the extent it is found to be genuine, the same be refunded. They submitted that 

it is SEBI which is not fulfilling its part of obligation by going into the verification 

of those documents, for which applicants cannot be blamed or prejudiced. 

15) Since this aspect was hotly debated at the Bar, we have gone into 

the same in some depth and detail. We find that the issue of refund of Rs. 

17,000 crores approximately to the depositors has been raked up by the 

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contemnors/applicants time and again, but to their dismay, this Court has not 

accepted their plea to this effect, so far. In the writ petition (Writ Petition 

(Criminal) No. 57 of 2014, titled Subrata Roy Sahara v. Union of India *** 1 

(2014) 8 SCC 470 ), this very plea of exempting the applicants from depositing 

the amount already redeemed by them was considered at length and rejected. 

In the said judgment, the Court took note of and expressed its opinion on this 

aspect at various places. In para 55 of the judgment, the Court observed that 

such a plea was not accepted even earlier by a three Judge Bench while 

disposing of Civil Appeal No. 8643 of 2012 vide order dated 05.12.2012, in the 

following manner: 

“During the pendency of the contempt proceedings, we also 

decided to determine the veracity of the redemption theory, projected 

by the two companies. As a matter of law, it was not open to the two 

companies to raise the aforesaid defence. This is because, exactly the 

same defence was raised by the two companies, when they had 

approached this Court by filing Civil Appeal No. 8643 of 2012 (and Writ 

Petition (Civil) No. 527 of 2012). In the aforesaid Civil Appeal, it was 

submitted on behalf of the two companies that they should be 

exempted from depositing the amount already redeemed by them. The 

above contention advanced by the two companies was not accepted, by 

the three Judge Division Bench, when it disposed of Civil Appeal No. 

8643 of 2012 (and Writ Petition (Civil) No. 527 of 2012) by order dated 

5.12.2012. It is, therefore, apparent that the instant defence of having 

already redeemed most of the OFCD's was not open to the two 

companies (and even the contemnors). Yet, so as to ensure that no 

injustice was done, we permitted the two companies to place material 

on the record of this case to substantite the factum of redemption. 

(emphasis supplied)” 

771 


16) The Court, thus, went into this issue again permitting the two 

companies to place requisite material on record to substantiate the factum of 

redemption and took into consideration whatever material was placed on


record. However, it refused to accept the plea of the two companies, which is 

clear from the following discussion in paras 86 and 108 of the said judgment: 

“When asked how disbursements were made to the investors, 

the response was that 95% of the payments made to the investors were 

also made by way of cash, the learned Senior Counsel representing the 

Contemnors (including the petitioner herein) invited our attention to 

the books of accounts (only general ledger entries) to demonstrate 

proof of the transactions under reference. Details in this behalf have 

been recorded by us under heading IX: “A few words about the defence 

of redemption of OFCDs offered by the two Companies”. The above 

explanation may seem to be acceptable to the contemnors, but our 

view is quite the converse. It is not possible for us to accept that the 

funds amounting to thousands of crores were transacted by way of 

cash, we would therefore, on the face of it, reject the above explanation 

tendered on behalf of the two Companies.” 

772 


17) The Court further found that in order dated 05.12.2012 in Civil 

Appeal No. 8643 of 2012, balance amount of Rs. 17,400 crores, together with 

interest @ 15% per annum, was still payable even after the deposit of Rs. 5,120 

crores. It further mentioned that this figure has swelled up to Rs. 36,608 

crores. Thereafter, the position was concluded in para 154 as under: 

“Therefore, viewed from any angle, there is no substance in the 

contention advanced on behalf of the two companies that the moneys 

payable to the investors had been refunded to them. Accordingly, there 

is no merit in the prayer, that while making payments in compliance 

with this Court's orders dated 31.08.2012 and 05.12.2012, the two 

companies were entitled to make deductions of Rs. 17,443 crores 

(insofar as SIRECL is concerned) and Rs.5,442 crores (insofar as SHICL is 

concerned).” 

18) The aforesaid discussion clinchingly shows, without any cavil of doubt, that 

the contemnors/applicants have failed to give satisfactory proof of redemption 

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of Rs. 17,400 crores by SIRECL and Rs. 5,442 crores for SHICL. 

19) Mr. Sibal, however, drew our attention to certain lines appearing in 

paragraph 154 of the same judgment and submitted that it is still open to the 

applicants to demonstrate that the aforesaid amount is redeemed to the 

depositors and virtually nothing more is payable. This window which was still 

kept open by the Court in the said paragraph is in the following form: “154. 

“…..Be that as it may, we have still retained a safety valve, inasmuch as, SEBI has 

been directed to examine the authenticity of the documents produced by the 

two Companies, and in case SEBI finds that redemptions have actually been 

made, the two Companies will be refunded the amounts, equal to the 

redemptions found to have been genuinely made.” 

20) No doubt, this much scope is still left for Sahara group. Fact remains 

that a definite course of action that is to be chartered is also laid down, namely, 

in the first instance it is obligatory on the part of the contemnors/applicants to 

deposit the entire balance amount along with interest accrued thereon in the 

SEBI-Sahara Refund Account. This obligation has to be performed in all 

circumstances. It is only thereafter, if and when the applicants are able to 

substantiate the factum of redemption, they would be entitled to refund of the 

said amount to the extent they are able to prove in this behalf. Therefore, at 

this stage, one thing which is more than apparent is that after the conditions for 

interim bail stipulated in order dated 26.03.2014 are fulfilled and pursuant 

thereto the three contemnors who are in judicial custody are released, the 

obligation or liability to deposit the balance would still remain. We may remind 

the contemnors that as per directions dated 05.12.2012, this amount was to be 

deposited in two installments, first installment by the first week of January 2013 

and the second by the first week of February 2013. Therefore, it would be 

essential for the applicants/contemnors to not only to deposit the balance 

amount in a time bound schedule but also the manner on which they propose to 

muster the said amount. This cannot go on endlessly. 

773 


21) We are conscious of the fact that three persons are under 

confinement for the last fifteen months. The circumstances under which orders

774 



dated 04.03.2014 were passed taking these persons into custody and sending 

them to jail are well known. This court was virtually compelled to do so, going 

by the stubborn attitude of the contemnors in taking the orders dated 

31.08.2012 and 05.12.2012 for granted, as if those orders were only on papers 

and were not meant to be complied with. So many opportunities were given, 

showing all that leniency which could be extended, to enable the contemnors to 

comply with those directions. It is only when the Court felt that unless some 

drastic action is taken there will be no desired effect, that this extreme step was 

taken. However, this step was taken in good faith to uphold the rule of law and 

to ensure that dignity of this Court is maintained and there is faithful 

compliance with its directions. The contemnors, instead of taking steps to follow 

and fulfil the directions, started making hue and cry. Still, in the application filed 

immediately thereafter for release, this Court showed desired compassion and 

empathy by passing orders dated 26.03.2014, thereby paving a way for grant of 

interim bail. It was, however, with a legitimate condition that out of almost Rs. 

33,000 crores that had become due by that time, the contemnors deposit at 

least Rs. 10,000 crores, that too with relaxed provision of deposit of 50% thereof 

by means of bank guarantee only. There was a genuine hope that for the sake of 

attaining their own freedom, the contemnors shall at least comply with this 

direction immediately. Since then, though there have been attempts on the part 

of the contemnors to do the needful, but all in vain. This is notwithstanding the 

fact that insofar as this Court is concerned, it has shown and extended all 

support in the form of giving desired facilities in jail; lifting the attachments in 

respect of those properties chosen by the applicants themselves, for sale/ 

encumbrances etc.; allowing these applicants to accept the offer of lesser 

amount than the book value of a particular asset, going by the fact that these 

were akin to distress sales in a depressed real estate market. May be the 

applicants now see the light at the end of the tunnel as it is projected that the 

Sahara companies has finally found the buyers for certain assets and/or 

financers who are ready to provide the requisite finance against some of the 

Sahara Companies properties and that would bridge the gap insofar as 

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conditions of interim bail are concerned. However, as mentioned above, the 

matter does not rest with the deposit of Rs. 5,000 crores and Rs. 5,000 crores by 

way of bank guarantee. Total liability has swelled to more than Rs. 36,000 

crores. The aforesaid deposit of Rs. 10,000 crores is only a condition of interim 

bail. It is the bounden duty of this Court to ensure that balance amount is also 

deposited by the applicants. 

22) This Court feels concerned with the fact that three persons are 

deprived of their liberty for the last fifteen months and this situation is quite 

onerous to them. On the other hand, public interest as well as public good 

demands that the two Sahara Companies, which had collected whopping 

amount of more than Rs. 22,000 crores from the public in an illegal and 

unauthorised manner, are made accountable for the same in the manner it is 

directed vide orders dated 31.08.2012 and 05.12.2012. By any yardstick, this is a 

huge liability, which the contemnors are bound to discharge by depositing the 

same with SEBI. It is, thus, an unprecedented situation of personal liberty of the 

three applicants on the one hand vis a vis majesty of law and ensuring larger 

public good, on the other hand. It is this sense of justice, in an unprecedented 

kind of situation, that has compelled the Court to take such an extreme step. It 

is this legal realism which has compelled the Court to adopt an approach which 

sounds more pragmatic. It is “doing what comes naturally” approach to the 

problem at hand, which required such a drastic step, going by the experience of 

this case, giving rise to 'Reflection' that provided 'Understanding'. This case is a 

burning example where the true dictate of justice is difficult to discern, and the 

law needed to come down on the side of practical convenience. We may borrow 

the jurisprudential theory propounded by Ronald Dworkin, albeit in somewhat 

different context, viz. the “conventional jurisprudential wisdom” which holds 

that in certain cases of a particularly complex or novel character the law does 

not provide a definite answer. In denying that judges in hard cases have a 

discretion to determine what the law is, Dworkin has instead argued for the 

judicial use of public standards or principles in a way that is capable of providing 

the right legal answer. The process of reaching a right answer in hard cases 

775 



obviously differs from the process of reaching the legal answer in easy cases. 

After all, the avowed objective of rule of law is also to ensure that the orders of 

this Court are respected and obeyed. Therefore, its a classic case where the 

approach adopted is influenced by the necessity of “making the law work”. 

Therefore, the orders passed may not be strictly construed as arising out of 

contempt jurisdiction, but in exercise of inherent jurisdiction vested in this 

Court to do complete justice in the matter and to ensure that the applicants 

render full compliance of its orders. It's the unprecedented situation which has 

led to passing of unprecedented, but justifiable, orders. 

776 


23) This Court is not powerless as it can always direct selling the 

properties of the Sahara Companies to ensure recovery of the aforesaid amount 

as the value of those properties is stated to be much higher. However, it is not 

done so far pursuant to the wishes of the applicants who have pleaded against 

the sale of these properties by the Court with repeated assurances that these 

companies would be taking necessary steps for generating the desired finances 

and the Court has accepted their request and given them opportunities and 

chances to do so. 

24) Shri Datar, Senior Counsel for SEBI and Shri Naphade, Amicus Curiae 

contended and in our view rightly so, that if the format of the bank guarantee is 

accepted, this Court ought to indicate the circumstances in which the SEBI can 

seek encashment of the said guarantee. It was argued that the Bank Guarantee 

as furnished by the contemnors did not indicate a trigger point for encashment 

which ought to be suitably mentioned and entered either in the guarantee or in 

the order of this Court. It was further argued that release of the contemnors 

from the custody even after deposit of a sum of Rs.5000 crores and a bank 

guarantee of Rs.5000 crores pursuant to the order of this Court was meant only 

to enable them to deposit the balance amount. It was submitted that in case the 

contemnors comply with the conditions for release from custody, the next thing 

they must do is to comply with the directions regarding deposit of the balance 

amount. This Court, it was argued, should not only direct the deposit of balance 

amount but provide for the consequences in default of such deposits. 

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The bank guarantee format does not provide for a trigger point for its 

encashment. Furnishing the bank guarantee without stipulating the situations in 

which the guarantee shall become encashable, will be meaningless. The Bank 

guarantee is actually meant to ensure that the entire amount is deposited by 

the contemnors once they are released from custody. That is because the 

liability to deposit the amount does not get obliterated by furnishing the bank 

guarantee which is intended to grant release of the contemnors from custody to 

enable them to comply with the orders passed by this Court. We have in that 

view examined several options that may provide for a trigger point for 

encashment. We are of the view that since most of the properties owned by 

Sahara group remain frozen by the order of this Court, the contemnors require 

time to enable them to deposit the balance outstanding. In case the bank 

guarantee is made encashable on default, the trigger point for encashment 

would be the default by the contemnors in depositing the balance amount in 

terms of the directions that we propose to issue. It is in that spirit that we 

accept the bank guarantee format furnished by the contemnors and grant to 

them time to deposit the balance amount that remains to be deposited subject 

to the following conditions: 

777 


(1) Keeping in view the total liability which according to SEBI, has risen 

to Rs.36,000 crores (approximately), the contemnors shall deposit the balance 

outstanding amount within a period of 18 months commencing from the date of 

their release from custody in nine installments. First eight installments shall be 

of Rs.3,000 crores payable every two months from the date of their release 

from custody and last installment shall be of the remaining amount. 

(2) In the event of the default in payment of two instalments (not 

necessarily consecutive) the bank guarantee furnished by the contemnors 

pursuant to the order of this Court shall be encashed by SEBI and the amount so 

received counted towards part compliance with the earlier directions given by 

this Court. 

(3) The bank guarantee shall also be encashable in the event of failure 

of the contemnors to deposit the full amount outstanding against them within a


period of 18 months commencing from the date of their release. 

(4) In the event of failure of the contemnors to deposit three 

instalments (not necessarily consecutive), the contemnors shall surrender back 

to custody and in case they fail to do so, they shall be taken into custody and 

committed to jail. 

(5) Since only some of the properties have been released by this Court 

for sale by the contemnors, the contemnors shall be free to apply for permission 

to sell any further property within 15 days from their release in order to enable 

them to raise funds for deposit of the required amount in terms of the order of 

this Court. 

(6) Keeping in view the fact that a large amount remains to be deposited 

by the contemnors, we direct the contemnors to deposit their passports in this 

Court within 15 days from the date of this order or before their release, 

whichever is earlier. They shall not leave the country without prior permission 

of this Court. Insofar as their movements within the country are concerned, 

778 


they shall keep police station Tilak Marg, New Delhi informed and updated 

about their whereabouts every fortnight. 

25) The Interlocutory Applications stand disposed of on the aforesaid 

terms. 

SS 

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Present: Justice Dipak Misraand Justice Uday Umesh Lalit 

RAHUL YADAV & Anr. - Appellants, 

Versus 

M/S. INDIAN OIL CORPORATION LTD. and Others - Respondents. 

Civil Appellate Jurisdiction Civil Appeal No.4909 Of 2015 (@ SLP(C) No. 14256 OF 

2014) 

(i) Petrol Pump - Grant of dealership in favour of the appellant 

was cancelled by the Committee and that received the stamp of 

approval of Apex Court – Question that once the dealership is cancelled, 

the land owner who had parted with the land by way of a long-term 

lease for a period of thirty years, can be allowed to retain possession 

over the land; and only the super structure which had been affixed on 

the land by the Corporation, can only be removed - On a plain reading 

of the aforesaid agreement, it is clear as noon day that it has no 

connection whatsoever with the lease agreement - Both the 

agreements are independent of each other - The appellant was a dealer 

under the lessee, that is, the Corporation - The dealership is liable to be 

cancelled on many a ground - In case there is a termination, dealership 

is bound to be cancelled and at that juncture, if the lease deed is 

treated to have been terminated along with the dealership, it will lead 

to a situation which does not flow from the interpretation of the 

instruments - The inevitable consequence of that is the appellant has to 

vacate the premises and the Corporation has the liberty to operate 

either independently or through another dealer - The appellant cannot 

be allowed to cause obstruction or create an impediment. [Para 18] 

779 


(ii) Public Premises (Eviction of Unauthorised Occupants) Act,


1971, S. 17 – Indian Oil Corporation - That the 1971 Act would not be 

applicable has really no force - Admittedly, the respondent is a public 

sector undertaking - The appellant whose dealership has been 

cancelled, cannot claim possession to retain possession on the basis of 

ownership of the land as the lease is in continuance - Therefore, he is a 

trespasser. Thus, the provisions of the 1971 Act apply on all fours and 

accordingly we repel the said submission. [Para 19] 


1. (2003) 2 SCC 673 , Onkar Lal Bajaj v. Union of India *** 

2. (1996) 6 SCC 530, Common Cause, a Registered Society v. Union of 

India *** 

3. (2007) 2 SCC 536, Mukund Swarup Mishra v. Union of India *** 

JUDGMENT 

Dipak Misra, J. – (July 1, 2015 ) - Leave granted. 

780 


2. The appellant is the owner in possession of the premises being land 

measuring 2571 sq. yards on Rewari-Palwal-Delhi Road, Rewari and Khewat No. 

1139/941, Khatauni no. 1380, Rectangle No. 117, Kila No. 2412/2 (2-0), Khewat 

No. 1125/930 mm, Khautani No. 136 mm, Rectangle No. 117, Kila No. 24/211 (1- 

9), Rectangle N. 150, 6/80 share Le. 6 maria out of Kila No. 411 (4-0) total 

measuring Kanal 5 marla in 3 kittas thereabouts. The respondent no.1, namely, 

Indian Oil Corporation (for short, the ‘Corporation’) issued an advertisement in 

the newspaper on 6.10.2000 for retail outlet dealership in the state of Delhi and 

Haryana for which the appellant applied and was selected. Letter of intent was 

issued in his favour on 6.7.2001. It was stipulated in the said letter of intent that 

the appellant was required to own a suitable plot of land and entered into a 

long-term lease with the Corporation at the rate acceptable to the respondent. 

To meet the mandate of the letter of intent, the appellant bought the land in 

question for the purpose of getting dealership agreement. On 23.10.2001, the 

appellant executed a long-term lease of 30 years in accordance with the terms 

of the advertisement and the letter of intent in favour of the Corporation at the 

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monthly rent of Rs.10,000/-. After completion of formalities, a dealership 

agreement was entered into between the appellant and the Corporation on 

14.5.2002. Be it noted, as per the letter of intent, the Corporation was to 

provide certain facilities and develop the land as an outlet with an office 

building, storage tank and pump, etc. for operating the dealership and it was to 

charge the appellant a licence fee for the said facilities. 

3. The allotment of such petrol pumps by the competent authorities 

became a front page news item in Indian Express mentioning that there had 

been grant of retail outlets of petrol pumps to the near and dear ones of the 

political functionaries on account of political consideration. Number of cases 

were filed in various courts and all of them were transferred to this Court and a 

two-Judge Bench in Onkar Lal Bajaj v. Union of India *** 1 (2003) 2 SCC 673 , 

after referring to such earlier event that was the subject matter of Common 

Cause, a Registered Society v. Union of India *** 2 (1996) 6 SCC 530 , wherein 

it had been observed that for these kind of allotments, a transparent and 

objective criteria/procedure has to be evolved based on reason, fair play and 

non-arbitrariness, adverted to many a facet, namely, the criteria evolved for 

grant of dealership, the concept of probity in governance and the concept of 

public interest, the role of the executive and the right of the public to know the 

circumstance under which their elected representatives get the outlets and/or 

dealerships/distributorships, and directed as follows:- 

781 


“In view of the aforesaid: 

I. We appoint a committee comprising Mr Justice S.C. Agrawal, a 

retired Judge of this Court and Mr Justice P.K. Bahri, a retired Judge of 

the Delhi High Court, to examine the aforesaid 413 cases. We request 

the Committee to submit the report to this Court within a period of 

three months. 

II. The Committee would devise its own procedure for 

undertaking the examination of these cases. If considered necessary, 

the Committee may appoint any person to assist it.


III. We direct the Ministry of Petroleum and Natural Gas, 

Government of India and the four oil companies to render full, complete 

and meaningful assistance and cooperation to the Committee. The 

relevant records are directed to be produced before the Committee 

within five days. 

IV. We direct the Ministry to appoint a nodal officer not below 

the rank of a Joint Secretary for effective working of the Committee. 

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. 

VI. The oil companies are directed to provide as per the 

Committee’s directions, the requisite infrastructure, staff, transport and 

make necessary arrangements, whenever so directed, for travel, stay, 

payments and other facilities etc. 

VII. In respect of any case if the Committee, on preliminary 

782 


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 the probe in detail.” 

4. It is necessary to state here that certain transferred cases were finally 

disposed of and certain transferred cases were directed to be listed after receipt 

of the report. After reports were received, certain interim applications were 

filed by the persons who were aggrieved by the report of the committee 

appointed by this Court. In Mukund Swarup Mishra v. Union of India *** 3 

(2007) 2 SCC 536, the Court referred to Onkar Lal Bajaj (supra) and while dealing 

with the plea of promissory estoppel opined thus:- 

“We are also not impressed by the argument of the petitioners 

that the doctrine of promissory or equitable estoppel would apply. May 

be that the petitioners have spent some amount. But once the 

allotment itself was found to be vitiated, obviously they cannot claim 

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any benefit as allotment was contrary to law. Moreover, such allotment 

has been made in remote past and even though an order of cancellation 

had been passed by the Central Government as early as in August 2002, 

the allottees have been protected by interim order passed by this Court. 

Even after the decision in Onkar Lal Bajaj 1 , interim order was continued. 

In the circumstances, for more than four years interim order is in favour 

of allottees even though the allotment was found to be illegal or 

contrary to law. In our opinion, therefore, it is not open to the allottees 

whose allotments have been found to be vitiated to plead equity.” 

After so stating, the Court proceeded to delve into the justifiability of 

the report and in that regard observed that:- 

“In our opinion, the learned amicus curiae is right that the 

Committee had considered in detail individual cases and submitted the 

report. This Court, therefore, would consider a complaint of an allottee 

who can successfully put forward his complaint and may satisfy this 

Court that in the facts and circumstances of the case, the finding of the 

Committee that the allotment was not on merits was not correct. But 

only in those individual cases, the Court would consider and may grant 

relief to such applicants. It, however, cannot be said that the report of 

the Committee was without power, authority or jurisdiction or was 

uncalled for and liable to be ignored.” 

783 


5. It is apt to note here that the Court proceeded to scrutinize the 

report State-wise where grants were made and as far as the States of Punjab 

and Haryana are concerned, it has been held thus:- 

“State of Punjab 

36. In respect of the State of Punjab, the Committee considered 

thirty-seven cases referred to it. It found that seven allotments were on 

merit and twenty-nine allotments were not in consonance with the 

guidelines. Out of them, twenty-six have filed applications. We have 

been taken through the reasoning recorded by the Committee. So far as


cases of Shri Surinder Singh, Chander Kant Bhatia, Gurpreet Singh, Smt 

Kavita Rani, Smt Suman Lata, Ms Ruby Sekhri, Mr Manmohan Singh, Mr 

Rajesh Madan and Mr Tejinder Singh are concerned, they appear to be 

borderline cases. In our view, it may not be appropriate to cancel the 

allotment in favour of these nine persons. Their applications are 

allowed. Rest of the cases do not call for interference and the 

applications are rejected. There are six applications by non-allottees. 

They are also rejected as we are not concerned with non-allottees. State 

of Haryana 

37. In regard to the State of Haryana, the Committee considered 

twenty-one cases referred to it. It found no irregularity in allotment in 

seven cases. It disapproved allotments in fourteen cases. Out of them, 

twelve have filed applications. We find no infirmity in the conclusions 

arrived at or reasons recorded by the Committee and no interference is 

called for. The other applications are rejected.” 

784 


6. There is no cavil over the fact that the grant of dealership in favour of 

the appellant was cancelled by the Committee and that received the stamp of 

approval of this Court. After the decision of this Court, the Corporation 

terminated the dealership and intended to take back the possession from the 

dealer with a view to appoint another dealer as specifically permitted in the 

lease deed as well as in the dealership agreement. The appellant built a wall to 

stop the functioning of the retail outlet and refused to hand over the 

possession which constrained the Corporation to initiate a proceeding for 

eviction under the Public Premises (Eviction of Unauthorised Occupants) Act, 

1971 (for short, “the 1971 Act”) as a valid lease deed existed between the 

appellant and the respondent, a public sector undertaking. The appellant 

participated in the proceeding and after hearing commenced, he sought to go 

for arbitration, but the said prayer was not accepted by the Estate Officer on the 

ground that the same was not permissible under the provisions of the 1971 Act. 

After six years of participation in the said proceeding, he initiated a civil suit 

alleging illegality in termination of the lease and prayed that the proceedings 

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under the 1971 Act to be kept in abeyance which was not accepted. The 

competent authority, that is, the Estate Officer passed an order of eviction in 

exercise of powers conferred on him under sub-section 1 of Section 5 of the 

1971 Act, after rejecting all the contentions raised by the appellant. 

7. Being aggrieved by the aforesaid order, the appellant preferred Civil 

Appeal No. 92 of 2013 before the learned District Judge, Rewari under Section 9 

of the 1971 Act. It was contended before the learned District Judge by the 

appellant that the order passed by the Estate Officer was passed on surmises 

and conjectures; that the Estate Officer had failed to appreciate that the lease 

deed and the dealership agreement were interlinked and hence, the lease deed 

could not survive after the cancellation of dealership agreement; that the 1971 

Act was not applicable to him as he was not in unauthorized occupation, but is 

the owner of the premises; that the competent authority had directed order of 

eviction to circumvent the eventual result of the pending suit; and that there 

had been violation of the principles of natural justice. 

8. The learned appellate Judge, on the basis of the material brought on 

record, came to hold that the respondent is a government company and the 

premises were taken on lease by it and hence, the premises fell within the 

meaning and ambit of “public premises”, as defined under Section 2(e) of the 

1971 Act; that the submission that the lease was contingent upon the 

appointment of the appellant as a dealer and upon his ceasing to be such the 

lease agreement became extinct was sans substance, for the document 

granting dealership and the lease agreement were different documents and 

they were neither interlinked nor interdependent; that the fact that the 

dealership agreement and the lease agreement had been executed separately 

would leave no room for doubt that they were independent and it could not be 

inferred from any one of the covenants agreed to between the parties that one 

agreement was to come to an end on the termination of the other; that it could 

not be construed that once the dealership stood terminated pursuant to the 

order passed by this Court, the lease agreement also stood terminated; that the 

submission to the effect that the proceeding under the 1971 Act had been 

785 



initiated to circumvent the suit instituted by the appellant was too spacious to 

be accepted. Being of this view, the learned appellate Judge recorded the 

conclusion thus:- 

“As an upshot of the discussion foregoing, it can be safely concluded 

that the appellant was running a retail outlet only on a leave and licence 

basis and the moment his dealership licence was terminated, he was 

bound to vacate the premises which, for all intents and purposes, are 

public premises. Needless to say that by virtue of lease agreement the 

respondent is at liberty to run the outlet/petrol pump even through 

third and outside party without any restriction and objection from the 

appellant. So long as the lease agreement is intact and the civil court 

does not order eviction, the respondent has right not only to remain in 

possession but to oust any licencee/trespasser. The appellant may be 

the owner of the premises, but by virtue of the lease deed, it is the 

respondent who has the right to occupy premises.” 

786 


9. Being aggrieved by the aforesaid order passed by the appellate court, 

the appellant preferred CWP No. 26287 of 2013 in the High Court of Punjab and 

Haryana and the learned Single Judge, after referring to the authority in Mukund 

Swarup Mishra (supra), came to hold that the Committee had considered 21 

cases and it had disapproved allotments in 14 cases and the dealership of the 

writ petitioner was one of them and, therefore, proceeding under the 1971 Act 

was a sequitur of the conclusions arrived at by the judgment of this Court, and 

hence, the orders passed by the forums below did not warrant any interference. 

Being of this view, the writ petition was dismissed by the learned Single Judge. 

10. The non-success in the writ petition compelled the appellant to 

prefer LPA No. 665 of 2014 and the Division Bench concurred with the view 

expressed by the learned Single Judge and declined to interfere in intra-court 

appeal. 

11. We have heard Mr. Kapil Sibal, learned senior counsel for the 

appellant and Ms. Meenakshi Arora, learned senior counsel for the Corporation, 

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the first respondent herein. 

12. The controversy, as we perceive, raises two issues though an 

attempt had been made by the appellant to create an imbroglio before the 

appellate court wherein the order of the Estate Officer was in assail. The thrust 

of the matter is whether the interpretation of the clauses of the agreement 

would anyway suggest any kind of inextricable connection to place a 

construction on them to the effect that once the dealership is cancelled, the 

land owner who had parted with the land by way of a long-term lease for a 

period of thirty years, can be allowed to retain possession over the land; and 

only the super structure which had been affixed on the land by the Corporation, 

can only be removed. 

13. Mr. Sibal, learned senior counsel for the appellant has taken us 

through the advertisement issued on 6.10.2000. It is urged by him that the 

appellant was compelled to purchase the land as it was the basic requirement to 

meet the eligibility criteria to get the allotment of dealership. It is his 

proponement that there has to be a conjoint reading of the advertisement 

issued by the respondent, the letter of intent and the lease deed and that would 

clearly establish that the appellant was to make available a suitable plot of land 

and transfer the land on a long-term lease to the Corporation for the sole and 

exclusive purpose of running a retail outlet dealership of respondent- 

Corporation and hence, the said lease deed cannot be looked at as a singular or 

solitary document, more so, when the appellant had agreed to give such highly 

valuable land to the Corporation on a nominal monthly rent of Rs.10,000/-. 

Emphasis is laid on the intention of creating the documents. To appreciate the 

said submission, we have carefully perused the advertisement and other 

documents. Relevant part of the advertisement reads as follows: 

787 


“For locations for Retail Outlet Dealership and LPG Distributorship. The 

applicant should furnish, along with the application, details of land/land 

for godown which he/she may make available for the 

dealership/distributorship considering the location of the land from the 

point of view of commercial and applicants willing to transfer the land


on ownership/long lease to the Oil Company at the rates acceptable to 

the Oil Company would be given preference if an applicant, after 

selection, is unable to provide the land indicated by him/her earlier, 

within a period of 2 months the allotment of the 

dealership/distributorship made to him/her would be cancelled.” 

14. In this context, we have to scrutinize the letter of intent dated 

6.7.2001. The relevant paragraphs of letter of intent read as follows:- 

1.1 For enabling you to operate the dealership said above, we 

will develop the Retail Outlet at Rewari, and provide the same to you 

with certain facilities such as suitable plot of land duly developed as an 

outlet with an office building, storage tank and pump etc. for operating 

your dealership. 

xxx xxx xxx 

1.7 This letter is merely a letter of intent and is not to be 

constructed as a firm offer of dealership to you. The dealership to you 

788 


will, on your complying with the condition spelt out herein above, be 

confirmed/formalised by an Appointment Letter followed by the signing 

of our standard dealership Agreement. 

xxx xxx xxx 

2. You have stated in your application form/during the interview 

that you are willing to transfer the land on ownership/long lease to the 

Indian Oil corporation Ltd. at the rates acceptable to Indian Oil 

Corporation Ltd. Accordingly, you will make available a suitable plot of 

land as indicated by you within a period of TWO months from the date 

of this letter, after getting suitable clearance from us in writing for the 

particular plot of land. You are required to transfer the land on 

ownership/long lease for a minimum period of 15 years with one 

renewal option for next 5 years under such term and conditions as may 

be agreed upon between you and Indian Oil Corporation Ltd. In case 

you fail to make available the suitable land within 2 months, this offer is 

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liable to be withdrawn. However, there is no commitment from India Oil 

Corporation Ltd. for taking the said land from you.” 

15. Keeping in view the aforesaid documents, it is necessary to look at 

the lease agreement dated 23.10.2001. The relevant clauses of the lease deed 

are extracted below:- 

“..the Lessor/s do and each of them doth hereby demise unto the 

Lessee All that the said land and premises situated at Rewari, Tehsil & 

District Rewari in the Registration Sub District of Rewari District and 

more particularly described in the Schedule hereunder written 

TOGETHER WITH structure that may hereafter be erected thereon by 

the Lessee to hold the premises hereby demised hereafter for brevity’s 

sake referred to as “the demised premises” unto the lessee for a term of 

30 years commencing from the date of lease signed, renewable and 

determinable as hereinafter provided yielding and paying therefore 

during the said term the monthly and the proportionately for any part 

of the month the rent of Rs.10,000/- per month (Rupees Ten Thousand 

only) to be paid on or before the 5th day of each and every calendar 

month, the first of such monthly rent to be paid from the date of 

commencement of lease deed proportionately and the subsequent rent 

to be paid on or before the 5 th day of every succeeding month 

regularly (with increase in rent by 10% after every three year). 

789 


xxxxx xxxxx xxxxx 

(d) The Lessee shall be free to use and the Lessor shall permit 

the use of demised premises by the Lessee for itself and for all its 

associated concerns. The Lessee shall also be entitled to use the 

demised premises by their agents, sales representatives, distributors, 

local dealers, other licensees or representatives, customers and all 

other authorised persons. 

(e) The Lessee shall be entitled to assign, transfer, sublet, under 

let, or part with possession of the demised premises or any part thereof


to any person abovenamed whomsoever it chooses without the consent 

of the Lessor. 

(f)The Lessee shall be entitled to appoint remove, re-appoint 

change and substitute any dealers, agents, licensees and other 

authorised representatives on and in respect of the demised premises 

without the consent of the Lessor. 

xxx xxx xxx 

(i) The Lessee shall be entitled to excavate, dig or break open 

the surface of any part of the demised premises at any time, during or 

after the expiration of the term hereby granted and to remove any 

stone, sand, gravel, clay, earth or other material therefrom for the 

purpose of erecting, laying, maintaining and/or removing storage tanks, 

containers, receptacles and other erections or installations for the 

purpose of the business of the Lessee or any other person. 

(j) The Lessee for the purpose of the construction and erection 

790 


mentioned in any of the preceding sub-clause shall be entitled to allow 

any, sub lessee, dealer, sub dealer, agent, person or other authorised 

representative or person to enter upon the demised premises and to 

build and erect according to the Lessee’s specifications requisite items 

herein mentioned without any let hindrance or obstruction from the 

Lessor/s or any other person claiming by, through or under 

him/her/them.” 

16. We have referred to the clauses in extenso to highlight that the 

lessee had entered into an agreement of lease with the appellant with immense 

liberty and the lease deed does lay down that the lessee has the freedom to 

sublet and appoint another dealer. The lease would remain in force till the 

dealership of the appellant continued and the licence remained in vogue. At this 

juncture, it is pertinent to reproduce certain clauses of the dealership 

agreement which would clearly spell out the purpose. They read as follows:- 

“2. The Corporation do hereby grant to the Dealer leave and 

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licence and permission for the duration of this Agreement to enter on 

the said premises and to use the premises and outfit for the sole and 

exclusive purpose of storing, selling and handling the products 

purchased by the Dealer from the Corporation, Save as aforesaid, the 

Dealer shall have no right, title or interest in the said premises or outfit 

and shall not be entitled to claim the right of lessee, sub-lessee, tenant 

or any other interest in the premises or outfit, is being specifically 

agreed and declared in particular that the Dealer shall not be deemed 

to be in exclusive possession of the premises. 

3. This Agreement shall remain in force for five years from 14th 

day of May, 2002 and continue thereafter for successive periods of one 

year each until determined by either party by giving three months 

notice in writing to the other of its intention to terminate this 

Agreement, and upon the expiration of any such notice this Agreement 

and the Licence granted as aforesaid shall stand cancelled and revoked 

but without prejudice to the rights of either party against the other in 

respect of any matter or thing antecedent to such termination 

provided that nothing contained in this clause shall prejudice the rights 

of the corporation to terminate this Agreement earlier on the 

happening of the events mentioned in clause 56 of this Agreement. 

791 


xxx xxx xxx 

7. Nothing contained in this Agreement shall be construed to 

prohibit the Corporation from making direct and/or indirect sales to 

any person whomsoever or from appointing other dealers for the 

purpose of direct or indirect sales at such places as the Corporation 

may think fit. The dealer shall not be entitled to any claim or allowance 

for such direct or indirect sales.” 

17. It is appropriate to mention here that clause 56 of the said 

agreement stipulates that notwithstanding anything to the contrary containing 

before the said clause, the Corporation would be at liberty to terminate the


agreement forthwith upon any time after happening of certain events. The 

conditions are manifold. We may, for the sake of completeness, reproduce two 

conditions:- 

“(h) If the Dealer does not adhere to the instructions issued 

from time to time by the Corporation in connection with safe practices 

to be followed by him in the supply/storage of the Corporation’s 

products or otherwise. 

(i) If the Dealer shall deliberately contaminate of temper with 

the quality of any of the Corporation’s products.” 

792 


18. On a plain reading of the aforesaid agreement, it is clear as noon day 

that it has no connection whatsoever with the lease agreement. Both the 

agreements are independent of each other. The appellant was a dealer under 

the lessee, that is, the Corporation. The dealership is liable to be cancelled on 

many a ground. In case there is a termination, dealership is bound to be 

cancelled and at that juncture, if the lease deed is treated to have been 

terminated along with the dealership, it will lead to a situation which does not 

flow from the interpretation of the instruments. The dealership agreement has 

been terminated because of the decision rendered by this Court in Mukund 

Swarup Mishra (supra). The consequence of cancellation of the dealership is a 

sequitur of the judgment. The inevitable consequence of that is the appellant 

has to vacate the premises and the Corporation has the liberty to operate either 

independently or through another dealer. The appellant cannot be allowed to 

cause obstruction or create an impediment. The submission that the appellant 

entered into the lease agreement at a monthly rent of Rs.10,000/- as it was 

given the dealership is a mercurial plea, only to be noted to be rejected. The 

dealership was availed of as has been held by this Court in an inapposite 

manner. In such a situation, consequences are to be faced by the appellant. 

19. The second issue which has been feebly raised by the learned senior 

counsel for the appellant that the 1971 Act would not be applicable has really 

no force. Admittedly, the respondent is a public sector undertaking. The 

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appellant whose dealership has been cancelled, cannot claim possession to 

retain possession on the basis of ownership of the land as the lease is in 

continuance. Therefore, he is a trespasser. Thus, the provisions of the 1971 Act 

apply on all fours and accordingly we repel the said submission. 

20. We will be failing in our duty if we do not take note of another 

submission which has been alternatively and assiduously canvassed by Mr. Sibal, 

learned senior counsel for the appellant. It is urged by him as the termination 

was directed by the Corporation by virtue of the judgment of this Court and not 

because of any wrong committed by the appellant and hence, his case should be 

reconsidered for grant of dealership under the new policy. Ms. Meenakshi 

Arora, learned senior counsel for the Corporation has filed the prevalent policy. 

We do not intend to allude to the same and issue any direction. Once there is a 

policy and any candidate fits in, needless to say, when there is an 

advertisement; he is at liberty to apply. We are not disposed to advert to the 

policy at this juncture. If the policy permits, as we have said, the appellant is at 

liberty to apply. However, we must clarify that our grant of liberty does not 

mean that the appellant shall create an impediment for the Corporation to 

enter into and take possession and run the petrol pump on its own or appoint a 

dealer. 

793 


21. In view of the aforesaid analysis, it is directed that the appellant 

shall hand over the peaceful possession of the land and the structure and other 

fixtures standing thereon to the Corporation after demolishing the wall on his 

own within four weeks hence, failing which he shall be liable for contempt of 

this Court. 

22. In view of the aforesaid premises, the appeal, being sans 

substratum, stands dismissed with the directions recorded in the preceding 

paragraph. Ordinarily, we would have thought of imposing costs but we have 

refrained from doing so as we have directed the appellant to vacate the 

premises within four weeks so the first respondent-Corporation can operate 

either on its own or through any agent or dealer.




Present: Justice Pinaki Chandra Ghose and Justice Uday Umesh Lalit. 

MAINUDDIN ABDUL SATTAR SHAIKH - Appellant, 

Versus 

VIJAY D. SALVI - Respondent. 

Criminal Appeal No. 1472 of 2009 

(i) Negotiable Instruments Act, 1881, S. 138 - In the complaint no 

averment that the accused was the person incharge of and responsible 

for the affairs of the Company - However, as the respondent was the 

Managing Director there is no need of specific averment on the point. 

[Para 11] 

(ii) Negotiable Instruments Act, 1881, S. 138 – Complaint had 

dealing with SI - Cheque was drawn by the accused in his individual 

794 


capacity and not in the capacity as a Director of SI - Accused can be 

made liable under Section 138 of the NI Act, even though the Company 

had not been named in the notice or the complaint - There was no 

necessity for the appellant to prove that the said respondent was 

incharge of the affairs of the company, by virtue of the position he held 

- Thus, we hold that the respondent is liable for the offence under 

Section 138 of the NI Act. [Para 9] 

Held, 

The Respondent has adduced the argument that in the complaint the 

appellant has not taken the averment that the accused was the person incharge 

of and responsible for the affairs of the Company. However, as the respondent 

was the Managing Director of SI and sole proprietor of SB, there is no need of 

specific averment on the point. [Para 11] 

Thus, in the light of the position which the respondent in the present 

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case held, we are of the view that the respondent be made liable under Section 

138 of the NI Act, even though the Company had not been named in the notice 

or the complaint. There was no necessity for the appellant to prove that the said 

respondent was incharge of the affairs of the company, by virtue of the position 

he held. Thus, we hold that the respondent is liable for the offence under 

Section 138 of the NI Act. [Para 13] 

(iii) Negotiable Instruments Act, 1881, S. 138 – We see that from 

the bare text of the Section it has been stated clearly that the person, 

who draws a cheque on an account maintained by him, for paying the 

payee, alone attracts liability. 


1. (2010) 12 SCC 146, P.J. Agro Tech Limited and Ors. v. Water 

Base Limited. *** 

2. (2010) 3 SCC 330 , National Small Industries Corporation 

Ltd. v. Harmeet Singh Paintal and Anr. ***. 

3. (2012) 1 SCC 260, R. Vijayan v. Baby and Anr *** 

JUDGEMENT 

Pinaki Chandra Ghose, J. – (6 TH July, 2015) - This appeal, by 

special leave, has been filed against the judgment and order dated 9.10.2007 

passed by the High Court of Judicature at Bombay in Criminal Application 

No.646 of 2006, whereby the High Court has refused leave to appeal against the 

judgment of the Trial Court, to the appellant herein. 

795 


2. The brief facts necessary to dispose of this appeal are that in the year 

1999, the appellant had booked a flat at Khargar Project proposed to be 

developed by M/s. Salvi Infrastructure Pvt. Ltd. through the accused-respondent 

by paying him Rs.74,200/-. In acknowledgment of the said amount, the accused 

respondent issued two receipts to the appellant, for a sum of Rs.59,000/- and 

Rs.14,200/-, respectively. By the year 2003, as alleged by the appellant, the 

aforesaid project of the respondent did not materialize. After much persuasion, 

the accused respondent drew cheque No.075073 for Rs.74,200/- in favour of


the appellant, of an account maintained by him with his banker towards refund 

of the aforesaid booking amount. The cheque was drawn by the respondent in 

his individual capacity and not in the capacity as a Director of M/s. Salvi 

Infrastructure Pvt. Ltd. or as Proprietor of Salvi Builders and Developers. When 

the appellant presented the said cheque on 1.08.2003 to his Bank for 

realization, the same was returned unpaid. Hence, the appellant sent notice of 

demand dated 25.8.2003 through his advocate under Section 138(b) of the 

Negotiable Instruments Act, 1881 (hereinafter referred to as "the NI Act"), to 

the respondent. As the accused respondent failed to pay the amount within 15 

days of the notice of demand, the appellant filed a complaint under Section 138 

of the N.I. Act. 

3. The aforesaid complaint filed by the appellant was taken up by the 

Metropolitan Magistrate, 33 rd Court, Ballard Pier, Mumbai, and vide his order 

dated 15.12.2005 passed in C.C. No.5194/2003, the Metropolitan Magistrate 

acquitted the respondent. The reasons given for the acquittal of the respondent 

796 


were that the Company M/s. Salvi Infrastructure Pvt. Ltd. was not made the 

accused and instead the respondent was made accused in his personal capacity. 

The cheque could not be said to have been issued for the discharge of whole or 

part of the liability because it exceeded the liability. Further, it had not been 

proved that the respondent was a person liable to make the payment for M/s. 

Salvi Infrastructure Pvt. Ltd. 

4. Being aggrieved by the order passed by the Metropolitan Magistrate, 

the appellant filed an application for leave to appeal under Section 378 of 

Cr.P.C. along with a Criminal Application No.646 of 2006 under Section 378(4) of 

Cr.P.C., before the Bombay High Court. The High Court by the impugned order 

dismissed the said application on the ground that the reasoning set out by the 

Trial Court in its order did not call for reconsideration. 

5. The appellant is thus before us. Learned counsel for the appellant 

has raised the following grounds in this appeal. Learned counsel submits that 

the Courts below have failed to appreciate that under Section 138 of the NI Act, 

it is the drawer of the cheque who is made punishable for offence under Section 

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138 of the NI Act. Further, the Courts below have failed to appreciate that in the 

present matter the cheque in question was drawn by the respondent and not by 

the Company of which the respondent is the Managing Director. The cheque 

was drawn by him in his personal capacity on an account maintained by him 

with his Banker. The Courts below have wrongly concluded that notices under 

Section 138(b) of the N.I. Act were sent to all the Directors of the Company. 

Learned counsel for the appellant contended that such a conclusion was not 

supported by any evidence inasmuch as there was only one acknowledgment 

card on record, showing receipt of notice under Section 138(b) of the Act, by the 

respondent. The Courts below did not appreciate that the accused respondent 

in his statement under Section 313 Cr.P.C. had admitted that he was paid 

Rs.74,200/- as earnest money and that he had issued receipt for the same and 

thus there is no substance in the argument of the respondent that the cheque 

for Rs.74,200/- cannot be said to have been issued for discharge of whole or 

part of liability, because it exceeded the liability. 

6. The plea taken by the learned counsel for the respondent in the 

Court of Metropolitan Magistrate, 33 rd Court, Ballard Pier, Mumbai, was that the 

Company had not been made an accused in the case. As per Section 141 of the 

NI Act, if the person committing an offence under Section 138 is a Company, 

every person who, at the time the offence was committed, was incharge of, and 

was responsible to the Company for the conduct of business of the Company as 

well the Company, shall be liable. In the complaint and the affidavit, M/s. Salvi 

Infrastructure Pvt. Ltd. was not made the accused. Further, it was argued that 

there was no averment that the accused was the person incharge of, and 

responsible for the affairs of the Company. In that case the accused was 

mentioned as the said person incharge. In the present case, the accused Vijay 

Salvi was made accused in his personal capacity. 

797 


7. We have heard the learned counsel appearing for the parties and 

have perused the order passed by the Metropolitan Magistrate, 33 rd Court, 

Ballard Pier, Mumbai. 

8. In our opinion, the issue involved in the present case is whether the


respondent can be made liable in his personal capacity when the Company has 

not been made a party to the complaint. 

9. From a bare reading of Section 138 of the NI Act, the following 

essentials have to be met for attracting a liability under the Section. The first 

and foremost being that the person who is to be made liable should be the 

drawer of the cheque and should have drawn the cheque on an account 

maintained by him with a Banker for payment of any amount of money to 

another person from out of that account for discharge in whole or part, of any 

debt or other liability. We see that from the bare text of the Section it has been 

stated clearly that the person, who draws a cheque on an account maintained 

by him, for paying the payee, alone attracts liability. 

10. In the present case, it is an admitted fact that the drawer of the 

cheque was the respondent, who had drawn the cheque, bearing No.075073 for 

Rs.74,200/- on a bank account maintained by him towards the refund of the 

booking amount. Therefore, he was the drawer of the cheque. The case of the 

798 


appellant, apart from being supported by the provision of Section 138 of the NI 

Act, also gets buttressed by the judgment inP.J. Agro Tech Limited and 

Ors. v. Water Base Limited. *** 1 (2010) 12 SCC 146 where this Court 

has dealt with the scope of Section 138 and held that it is very clear that in 

order to attract the provisions thereof a cheque which is dishonoured will have 

to be drawn by a person on an account maintained by him with the banker for 

payment of any amount of money to another person from out of that account 

for the discharge, in whole or in part of any debt or other liability. It is only such 

a cheque which is dishonoured which would attract the provisions of Section 

138 of the above Act against the drawer of the cheque. 

11. About the liability under Section 138 of the NI Act, where the 

cheque drawn by the employee of the appellant company on his personal 

account, even if it be for discharging dues of the appellant - company and 

its directors, the appellant-company and its Directors cannot be made liable 

under Section 138. Thus, we observe that in the abovementioned case, the 

personal liability was upheld and the Company and its Directors were absolved 

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of the liability. The logic applied was that the Section itself makes the drawer 

liable and no other person. This Court in P.J. Agro Tech Limited (supra) 

noted as under: 

"An action in respect of a criminal or a quasi-criminal provision 

has to be strictly construed in keeping with the provisions alleged to 

have been violated. The proceedings in such matters are in personam 

and cannot be used to foist an offence on some other person, who under 

the statute was not liable for the commission of such offence." 


Going by the strict interpretation of the provision the drawer which in 

the present case is the respondent is liable under Section 138 of the N.I. Act. 

11. The Respondent has adduced the argument that in the complaint 

the appellant has not taken the averment that the accused was the person 

incharge of and responsible for the affairs of the Company. However, as the 

respondent was the Managing Director of M/s. Salvi Infrastructure Pvt. Ltd. 

and sole proprietor of M/s. Salvi Builders and Developers, there is no need of 

specific averment on the point. This Court has held in National Small 

Industries Corporation Ltd. v. Harmeet Singh Paintal and 

Anr. ***, 2 (2010) 3 SCC 330 as follows: 

799 


Para 39 (v) "If the accused is a Managing Director or a Joint Managing 

Director then it is not necessary to make specific averment in the complaint and 

by virtue of their position they are liable to be proceeded with." 

13. Thus, in the light of the position which the respondent in the 

present case held, we are of the view that the respondent be made liable under 

Section 138 of the NI Act, even though the Company had not been named in the 

notice or the complaint. There was no necessity for the appellant to prove that 

the said respondent was incharge of the affairs of the company, by virtue of the 

position he held. Thus, we hold that the respondent Vijay D Salvi is liable for the 

offence under Section 138 of the NI Act. 

14. The law laid down by this Court in R. Vijayan v. Baby and Anr


***, 3 (2012) 1 SCC 260 was to the following effect: 

"As the provisions of Chapter XVII of the Act strongly lean 

towards grant of reimbursement of the loss by way of compensation, 

the courts should, unless there are special circumstances, in all cases of 

conviction, uniformly exercise the power to levy fine up to twice the 

cheque amount (keeping in view the cheque amount and the simple 

interest thereon at 9% per annum as the reasonable quantum of loss) 

and direct payment of such amount as compensation. Direction to pay 

compensation by way of restitution in regard to the loss on account of 

dishonor of the cheque should be practical and realistic, which would 

mean not only the payment of the cheque amount but interest thereon 

at a reasonable rate. Uniformity and consistency in deciding similar 

cases by different courts, not only increase the credibility of cheque as a 

negotiable instrument, but also the credibility of courts of justice." 

We, therefore, award compensation to the extent of twice the cheque 

800 


amount and simple interest thereon at 9% per annum to the complainant. 

Accordingly, the respondent Vijay D Salvi is sentenced to undergo simple 

imprisonment for a period of five months for the offence under Section 138 of 

the NI Act. Considering the fact that the cheque amount is Rs.74,200/-, we 

direct the respondent Vijay D Salvi to pay a compensation of Rs.1,48,400/- 

(Rupees one lakh forty-eight thousand four hundred only) with simple interest 

thereon at 9% per annum, to the complainant-appellant. In default of payment 

of the said compensation, the respondent will have to undergo simple 

imprisonment for a period of six months. 

15. Accordingly, this appeal is allowed and the impugned order passed 

by the High Court as also the order passed by the Metropolitan Magistrate, 33 rd 

Court, Ballard Pier, Mumbai, are set aside. We direct that the respondent shall 

be taken into custody forthwith to undergo the sentence. 

Ss ---- 

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Present: Justice T.S. Thakur, Justice R.K. Agrawal and Justice R. Banumathi. 

M. VENKATESH and Ors. – Appellants, 

Versus 

COMMISSIONER, BANGALORE DEVELOPMENT AUTHORITY – Respondent. 

Civil Appeal No. 7944 OF 2015 (Arising out of SLP (C) No.38601 of 2012) With 

Civil Appeal Nos. 7945-7947 OF 2015 (Arising out of SLP (C) Nos.12013-12015 of 

2013) 

(i) Land Acquisition Act, 1894 – Panchnama - It is settled that one 

of the modes of taking possession is by drawing a Panchnama. Tamil 

Nadu Housing Board v. A. Viswam (dead) by Lrs. AIR 1996 SC 3377 and 

Larsen & Toubro Ltd. v. State of Gujarat and Ors. AIR 1998 SC 1608, 

relied. [Para 14] 

(ii) Vacant Property – Possession of - Suit property was a vacant 

801 


piece of land from which structures stood demolished and removed 

before the institution of the suits- The decision in John B. James and 

Ors. v. Bangalore Development Authority (2001) 1 KarLJ 364 did not 

permit anyone to claim that he is in settled possession of vacant land - 

No infirmity in the reasoning - Once the High Court recorded a finding 

that the property was vacant as on the date of the filing of the suit 

there was no question of the plaintiffs claiming settled possession of 

the said property. 

(iii) Injunction - Injunction could not be claimed when plaintiffs 

stand dispossessed from the suit property prior to the filing of the suit - 

The question of establishing settled possession did not, therefore, arise 

in relation to the properties that already stood cleared of any structures


by demolition of whatever stood on the same – Property was vacant as 

on the date of the filing of the suit there was no question of the 

plaintiffs claiming settled possession of the said property. [Para 12] 

(iv) Land Acquisition Act, 1894 S. 4 - Sale after notification 

under S. 4 - Plaintiff said to have purchased the suit property in terms of 

a sale deed long after the issue of the preliminary notification published 

in July 1984 - Legal position about the validity of any such sale, post 

issue of a preliminary notification is fairly well settled - The sale in such 

cases is void and non-est in the eyes of law giving to the Vendee the 

limited right to claim compensation and no more - Land Acquisition Act, 

1894. 

U.P. Jal Nigam v. Kalra Properties Pvt. Ltd. AIR 1996 SC 1170, 

referred. [Para 13] 

802 


(v) Adverse possession - As on the date of the suit, the 

respondents had not completed 12 years in possession of the suit 

property so as to entitle them to claim adverse possession against BDA, 

the true owner - The argument that possession of the land was never 

taken also needs notice only to be rejected for it is settled that one of 

the modes of taking possession is by drawing a Panchnama which part 

has been done to perfection according to the evidence led by the 

defendant BDA. 

Tamil Nadu Housing Board v. A. Viswam (dead) by Lrs. AIR 1996 

SC 3377 and Larsen & Toubro Ltd. v. State of Gujarat and Ors. AIR 1998 

SC 1608, relied. [Para 14] 

(vi) Title – Adverse possession - Claim of title to the property and 

adverse possession are in terms contradictory. 

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Mohan Lal v. Mirza Abdul Gaffar (1996) 1 SCC 639 relied. 

[Para 17] 

For Appellant(s) Ms. Anjana Chandrashekhar, Adv. Mr. Ankur S.Kulkarni, Adv. 

For Respondent(s) Mr. Ankur S.Kulkarni, Adv. Ms. Anjana Chandrashekhar, Adv. 

JUDGMENT 

T.S. Thakur, J. – (September 24, 2015 ) - Leave granted. 

2. These appeals arise out of a common judgment and order dated 30th 

May, 2012 passed by a Single Bench of the High Court of Karnataka at Bangalore 

whereby the High Court has allowed RFA Nos.912, 914, 915 and 916 of 2002, set 

aside the judgments and orders of the courts below and dismissed the suits 

relevant to those appeals. The High Court has, at the same time, affirmed the 

decree passed in OS No.6925 of 2001 and dismissed RFA No.911 of 2002 filed by 

the appellant against the same. The factual backdrop in which the suits and the 

appeals mentioned above came to be filed may be summarised as under: 

3. M. Venkatesh-appellant in SLP (C) No.38601 of 2012 claimed 

ownership over the suit schedule property by inheritance from his grandfather 

Munishamappa who is said to have purchased the same under a registered 

sale-deed dated 7th July, 1954. In connected SLP (C) No.12016 of 2013 

Prabhaudas Patel also claimed to be the owner of suit schedule property 

relevant to his suit on the basis of purchase of the said property from its 

previous owner. The aforementioned two parcels of land together with a larger 

extent in the vicinity were acquired by the Bangalore Development Authority 

(‘BDA’ For short) for the formation of Hosur Road, Sarjapur Layout in terms of a 

preliminary notification dated 17th July, 1984 and a final notification dated 28th 

November, 1986 published on 25th December, 1986, after notices to the 

Khatedars and the persons interested, some of whom had filed their claims 

before the competent authority. Determination of amount of compensation 

payable to the landowners having been approved by the competent authority 

on 21st August, 1986, the BDA claimed that possession of the land was taken 

over from the landowners and handed over to the engineering section of the 

803 



authority by drawing a possession mahazar on 6th November, 1987. A 

Notification under Section 16(2) of the Act was also published in the Karnataka 

Gazette dated 4th July, 1991 which, according to the BDA, signified that the 

land in question stood vested with the BDA free from all encumbrances 

whatsoever. The further case of BDA is that long after the land had vested in the 

BDA, sites were carved out and sold to different persons by the erstwhile 

owners, the unauthorised act of the plaintiffs, however, got vacated and the 

possession was taken over. 

4. The case of the plaintiffs M. Venkatesh and Prabhaudas Patel on the 

804 


other hand was that they were always in established possession of the suit 

schedule property owned and that apprehending their dispossession from the 

same they had approached the High Court along with several others to restrain 

the BDA from interfering with their peaceful occupation of the suit property. 

Those petitions were disposed of by the High Court reserving liberty to the writpetitioners 

to approach the civil court for appropriate relief in a proper civil 

action. It was only after the disposal of the said petitions that OS Nos.3075 of 

2000, 6925 of 2001, 5742 of 2001, 7945 of 2000 and 5791 of 2001 came to be 

filed by the aggrieved parties in which the plaintiffs claimed to be the owners 

and occupants of the suit property and prayed for an order restraining the BDA 

from interfering with their peaceful occupation. Plaintiffs also claimed that they 

had the title over the suit schedule property by prescription. 

5. The suits aforementioned were contested by the defendant-BDA in 

which they, inter alia, claimed that the suit property stood duly acquired and its 

ownership vested in the BDA was free from all encumbrances whatsoever and 

that the plaintiffs had no right, title or interest in the same nor were they 

entitled to any declaration of title or injunction. According to the Trial Court the 

pleadings of the parties gave rise to the following issues which were clubbed 

together for a common disposal: 

(1) Whether the Plaintiffs prove that, they have acquired and 

perfected their alleged title to the suit schedule properties by virtue of 

the alleged law on adverse possession, as claimed? 

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(2) Whether the Plaintiffs prove their alleged lawful possession 

and enjoyment of the suit schedule properties, as on the date of the 

suit? 

(3) Whether the Plaintiffs further prove the alleged illegal 

interferences and obstructions by the defendant? 

(4) Whether the defendant proves that, the suit schedule 

properties is duly acquired by the defendant, in accordance with law 

and as such, the same have stood vested with the defendant, free from 

all the encumbrances? 

(5) Whether the Plaintiffs are entitled to the suit relief of 

declaration and injunction, against the defendant? 

(6) What Order or Decree? 

6. The Trial Court answered issue nos. 1 to 3 and 5 in the affirmative 

while issue no.4 was answered in the negative. The suits were on those findings 

decreed. 

7. Aggrieved by the judgment and decree passed by the Trial Court, BDA 

filed RFA Nos.911, 912, 914, 915 and 916 of 2002 before the High Court of 

Karnataka at Bangalore. A Single Judge of the High Court, as noticed earlier, has 

allowed RFA Nos.912, 914, 915 and 916 of 2002 but dismissed RAF No.911 of 

2002. The High Court took the view that respondents in RFA No.911 of 2002 

who happened to be respondents in SLP No.12016 of 2013 were running a sawmill 

which was in operation long prior to the filing of the suit and which 

continues to be in existence even on the date of the suit and the judgment of 

the High Court. The High Court held that the legal position stated by the 

Division Bench of that Court in John B. James and Ors. v. Bangalore 

Development Authority (2001) 1 KarLJ 364 was clearly applicable to the said 

appeal entitling the owner in occupation to protection against attempted 

eviction by the BDA. The High Court, on that basis, dismissed RFA No.911 of 

2012 filed by BDA upholding the judgment and decree passed by the Trial Court 

and restraining the BDA from interfering with possession of the plaintiff over 

805 



the suit schedule property. As regards the remaining appeals, the High Court 

held that the plaintiffs in those appeals were claiming settled possession of 

vacant pieces of land which even according to the pronouncement in John B. 

James case (supra) did not entitle them to any relief as no one could claim to be 

in established possession of a vacant piece of land. The High Court found that 

there was no dispute that all the structures on the suit properties relevant to 

those suits had been demolished and that the land was a vacant piece of land all 

along and at all material times including the date of the judgment. The High 

Court accordingly non-suited all the plaintiffs except plaintiff in RFA No.911 of 

2002. In SLP (C) No.12016 of 2013 the BDA has assailed the judgment of the 

High Court in so far as the same has dismissed RAF No.911 of 2002 filed by it. 

SLP (C) No.38601 of 2012 and SLP (C) Nos.12013-15 of 2013 have been on the 

other hand filed by the appellants to assail the orders passed by the High Court 

in so far as the same have dismissed RAF Nos.912, 914, 915 and 916 of 2002. 

8. We have heard Mr. Rama Jois, learned senior counsel, appearing for 

806 


the appellants and Mr. S.K. Kulkarni, counsel appearing for the BDA. We may 

first deal with the question whether the plaintiffs in the suits relevant to RFA 

Nos.912, 914, 915 and 916 of 2002 could claim to be the owners of the suit 

property on the basis of inheritance or sale instruments in their favour and yet 

plead adverse possession over the very same property. The case set up by the 

plaintiffs in their suits was that they were the lawful owners of the suit schedule 

property and that they had been duly recognised as Khatedars by the village 

panchayat concerned. It was further alleged that property tax was also being 

assessed and levied by the competent authority from time to time and is being 

paid by them. It was alleged that the suit properties were being used for 

carrying on business in different names and style. The local authorities had also 

issued no objection certificates for grant of electricity supply connections in 

their favour and that they were paying electricity charges as and when 

demanded. The appellants claim to have set up their business which was their 

source of livelihood. Whatever may be the rights vested in the BDA pursuant to 

the notifications and the award, the BDA was not entitled to disturb the 

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peaceful occupation of the landowners according to the averments in the plaint. 

The plaintiffs, on that basis claimed the relief of permanent injunction 

restraining the BDA and its officials from disturbing their possession over the 

suit schedule properties. The plaintiffs, it is noteworthy, claimed ignorance 

about the acquisition proceedings and alleged that they had not received any 

compensation and that they had continued to be in occupation as owners to the 

knowledge of the BDA and its officials. 

9. In the written statement filed by the BDA it was asserted that the suit 

schedule properties stood acquired and vested in BDA as early as in the year 

1986-87 and that the question of anyone developing or using any part of the 

same did not arise. The documents relied upon by the plaintiffs were, according 

to the BDA, of no value or relevance. 

10. The High Court has, as noticed earlier, on an appraisal of the 

material on record, held that the suit schedule properties relevant to RFA 

No.911 of 2002 was a vacant piece of land from which structures stood 

demolished and removed before the institution of the suits. The High Court in 

this regard observed: 

“But, insofar as the other respondents are concerned, whether the 

appellant was justified in law or not in carrying out the demolition, 

there is no dispute that all structures in the respective suit properties 

have been razed to the ground and it was vacant land during the 

pendency of the suit and as on the date of the judgment. Therefore, the 

trial court was clearly in error in holding that the plaintiffs continued in 

settled possession of what was vacant land. The law, as laid down in 

John B. James’s case, supra clearly disentitled persons claiming to be in 

settled possession of vacant land. Therefore, the remedy of damages 

which was certainly available to the plaintiffs was unfortunately not 

claimed and though the plaintiffs are said to have sought to reserve 

their right to claim such damages, it is not shown that the court below 

has expressly granted any such relief.” 

807 



11. There is, in our opinion, no infirmity in the above reasoning. The 

decision in John B. James case (supra) upon which heavy reliance was placed by 

the plaintiffs before the courts below itself did not permit anyone to claim that 

he is in settled possession of vacant land. The following passage from the said 

decision in this regard is apposite: 

“If anyone, who has trespassed into BDA land or in unauthorised 

possession of BDA land, has put up a structure and completes and 

accomplishes the act of possession and continues in such settled 

possession asserting possession and ownership in himself, openly, 

808 


peacefully and uninterruptedly to the knowledge of BDA for more than 

12 years, then it is possible for him to contend that he has perfected his 

title to such property by adverse possession and consequently, the title 

of BDA stood extinguished. It is needless to say that such adverse 

possession for 12 years should be subsequent to the date of vesting of 

land in BDA. The person claiming such title by adverse possession 

cannot call in aid any possession on his part or his predecessor for any 

period prior to date of vesting of land in BDA, to establish adverse 

possession, or possession during the tendency of any litigation 

regarding the property, cannot be considered as possession adverse to 

BDA.” 

12. Once the High Court recorded a finding that the property was vacant 

as on the date of the filing of the suit there was no question of the plaintiffs 

claiming settled possession of the said property assuming the view taken in John 

B. James case (supra) was otherwise legally sound since the so called settled 

possession of the appellants in RFA No.911 of 2002 stood vacated from the suit 

schedule property, no prayer for injunction as set out in the petition filed by the 

appellants in those appeals could help them for an injunction issues only to 

protect what is in lawful possession of the plaintiffs. Injunction could not be 

claimed when plaintiffs stand dispossessed from the suit property prior to the 

filing of the suit. The question of establishing settled possession did not, 

therefore, arise in relation to the properties that already stood cleared of any 

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structures by demolition of whatever stood on the same. The High Court was, in 

that view, justified in setting aside the decree passed by the Trial Court and 

dismissing the suit filed by the plaintiffs. 

13. That brings us to the question whether Prabhaudas Patel and other 

respondents in SLP (C) No.12016 of 2013 were entitled to any relief from the 

Court. These respondents claim to have purchased the suit property in terms of 

a sale deed dated 22nd August, 1990, i.e. long after the issue of the preliminary 

notification published in July 1984. The legal position about the validity of any 

such sale, post issue of a preliminary notification is fairly well settled by a long 

line of the decisions of this Court. The sale in such cases is void and non-est in 

the eyes of law giving to the Vendee the limited right to claim compensation 

and no more. Reference may in this regard be made to the decision of this Court 

in U.P. Jal Nigam v. Kalra Properties Pvt. Ltd. *** AIR 1996 SC 1170, where this 

Court said : 

“3. It is settled law that after the notification under Section 4(1) is 

published in the Gazette any encumbrance created by the owner does 

not bind the Government and the purchaser does not acquire any title 

to the property. In this case, notification under Section 4(1) was 

published on 24-3-1973, possession of the land admittedly was taken on 

5-7-1973 and pumping station house was constructed. No doubt, 

declaration under Section 6 was published later on 8-7-1973. 

Admittedly power under Section 17(4) was exercised dispensing with 

the enquiry under Section 5-A and on service of the notice under 

Section 9 possession was taken, since urgency was acute, viz., pumping 

station house was to be constructed to drain out flood water. 

Consequently, the land stood vested in the State under Section 17(2) 

free from all encumbrances. It is further settled law that once 

possession is taken, by operation of Section 17(2), the land vests in the 

State free from all encumbrances unless a notification under Section 

48(1) is published in the Gazette withdrawing from the acquisition. 

Section 11-A, as amended by Act 68 of 1984, therefore, does not apply 

809 



and the acquisition does not lapse. The notification under Section 4(1) 

and the declaration under Section 6, therefore, remain valid. There is no 

other provision under the Act to have the acquired land divested, 

unless, as stated earlier, notification under Section 48(1) was published 

and the possession is surrendered pursuant thereto. That apart, since 

M/s Kalra Properties, respondent had purchased the land after the 

notification under Section 4(1) was published, its sale is void against the 

State and it acquired no right, title or interest in the land. Consequently, 

it is settled law that it cannot challenge the validity of the notification or 

the regularity in taking possession of the land before publication of the 

declaration under Section 6 was published.” 

14. To the same effect are the decisions of this Court in Ajay Kishan 

Singhal v. Union of India*** AIR 1996 SC 2677; Mahavir and Anr. v. Rural 

Institute, Amravati and Anr.*** (1995) 5 SCC 335; Gian Chand v. Gopala and 

Ors. *** (1995) 5 14 SCC 528; Meera Sahni v. Lieutenant Governor of Delhi and 

810 


Ors. *** (2008) 9 SCC 177 and Tika Ram v. State of U.P. *** (2009) 10 SCC 689. 

More importantly, as on the date of the suit, the respondents had not 

completed 12 years in possession of the suit property so as to entitle them to 

claim adverse possession against BDA, the true owner. The argument that 

possession of the land was never taken also needs notice only to be rejected for 

it is settled that one of the modes of taking possession is by drawing a 

Panchnama which part has been done to perfection according to the evidence 

led by the defendant BDA. Decisions of this Court in Tamil Nadu Housing Board 

v. A. Viswam (dead) by Lr. *** AIR 1996 SC 3377 and Larsen & Toubro Ltd. v. 

State of Gujarat and Ors.*** AIR 1998 SC 1608, sufficiently support the BDA 

that the mode of taking possession adopted by it was a permissible mode. 

15. Coming then to the question whether the plaintiffs-respondents 

could claim adverse possession, we need to hardly mention the well known and 

oft quoted maxim nec vi, nec clam, nec precario meaning thereby that adverse 

possession is proved only when possession is peaceful, open, continuous and 

hostile. The essentials of adverse possession were succinctly summed-up by 

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this Court in Karnataka Board of Wakf v. Govt. of India, *** (2004) 10 SCC 779 

in the following words: 

“11. In the eye of the law, an owner would be deemed to be in 

possession of a property so long as there is no intrusion. Non-use of the 

property by the owner even for a long time won’t affect his title. But the 

position will be altered when another person takes possession of the 

property and asserts a right over it. Adverse possession is a hostile 

possession by clearly asserting hostile title in denial of the title of the 

true owner. It is a well-settled principle that a party claiming adverse 

possession must prove that his possession is “nec vi, nec clam, nec 

precario”, that is, peaceful, open and continuous. The possession must 

be adequate in continuity, in publicity and in extent to show that their 

possession is adverse to the true owner. It must start with a wrongful 

disposition of the rightful owner and be actual, visible, exclusive, hostile 

and continued over the statutory period. (See S.M. Karim v. Bibi Sakina 

(AIR 1964 SC 1254), Parsinni v. Sukhi (1993) 4 SCC 375 and D.N. 

Venkatarayappa v. State of Karnataka (1997) 7 SCC 567). Physical fact 

of exclusive possession and the animus possidendi to hold as owner in 

exclusion to the actual owner are the most important factors that are to 

be accounted in cases of this nature. Plea of adverse possession is not a 

pure question of law but a blended one of fact and law. Therefore, a 

person who claims adverse possession should show: (a) on what date he 

came into possession, (b) what was the nature of his possession, (c) 

whether the factum of possession was known to the other party, (d) 

how long his possession has continued, and (e) his possession was open 

and undisturbed. A person pleading adverse possession has no equities 

in his favour. Since he is trying to defeat the rights of the true owner, it 

is for him to clearly plead and establish all facts necessary to establish 

his adverse possession. [Mahesh Chand Sharma (Dr.) v. Raj Kumari 

Sharma (1996) 8 SCC 128).” 

811 


16. Reference may also be made to the decision of this Court in Saroop


Singh v. Banto *** (2005) 8 SCC 330, where this Court emphasised the 

importance of animus possidendi and observed: 

“29. In terms of Article 65 the starting point of limitation does not 

commence from the date when the right of ownership arises to the 

plaintiff but commences from the date the defendant’s possession 

becomes adverse. (See Vasantiben Prahladji Nayak v. Somnath 

Muljibhai Nayak (2004) 3 SCC 376). 

30. “Animus possidendi” is one of the ingredients of adverse 

possession. Unless the person possessing the land has the requisite 

animus the period for prescription does not commence. As in the 

instant case, the appellant categorically states that his possession is not 

adverse as that of true owner, the logical corollary is that he did not 

have the requisite animus. (See Mohd. Mohd. Ali v. Jagadish Kalita 

(2004) 1 SCC 371, SCC para 21.)” 

17. Also noteworthy is the decision of this Court in Mohan Lal v. Mirza 

812 


Abdul Gaffar, *** (1996) 1 SCC 639, where this Court held that claim of title to 

the property and adverse possession are in terms contradictory. This Court 

observed: 

“4. As regards the first plea, it is inconsistent with the second 

plea. Having come into possession under the agreement, he must 

disclaim his right thereunder and plead and prove assertion of his 

independent hostile adverse possession to the knowledge of the 

transferor or his successor in title or interest and that the latter had 

acquiesced to his illegal possession during the entire period of 12 years, 

i.e., up to completing the period of his title by prescription nec vi, nec 

clam, nec precario. Since the appellant’s claim is founded on Section 53- 

A, it goes without saying that he admits by implication that he came into 

possession of the land lawfully under the agreement and continued to 

remain in possession till date of the suit. Thereby the plea of adverse 

possession is not available to the appellant.” 

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18. To the same effect is the decision of this Court in Annasaheb 

Bapusaheb Patil v. Balwant, *** (1995) 2 SCC 543, where this Court elaborated 

the significance of a claim to title viz.-a-viz. the claim to adverse possession over 

the same property. The Court said: 

“15. Where possession can be referred to a lawful title, it will 

not be considered to be adverse. The reason being that a person whose 

possession can be referred to a lawful title will not be permitted to 

show that his possession was hostile to another’s title. One who holds 

possession on behalf of another, does not by mere denial of that other’s 

title make his possession adverse so as to give himself the benefit of the 

statute of limitation. Therefore, a person who enters into possession 

having a lawful title, cannot divest another of that title by pretending 

that he had no title at all.” 

19. The Courts below have not seen the plaintiff-respondent’s claim 

from the above perspectives. The High Court has, in particular, remained 

oblivious of the principle enunciated in the decisions to which we have referred 

herein above. All that the High Court has found in favour of the plaintiffs is that 

their possession is established. That, however, does not conclude the 

controversy. The question is not just whether the plaintiffs were in possession, 

but whether they had by being in adverse possession for the statutory period of 

12 years perfected their title. That question has neither been adverted to nor 

answered in the judgment impugned in this appeal. Such being the case the 

High Court, in our opinion, erred in dismissing the appeal filed by the appellant- 

BDA. The fact that the plaintiffs had not and could not possibly establish their 

adverse possession over the suit property should have resulted in dismissal of 

the suit for an unauthorised occupant had no right to claim relief that would 

perpetuate his illegal and unauthorised occupation of property that stood 

vested in the BDA. In the result: 

813 


(i) Civil Appeals arising out of SLP (C) No.38601 of 2012 and SLP (C) Nos. 

12013-12015 of 2013 fail and are, hereby, dismissed.


(ii) Civil Appeal arising out of SLP (C) No.12016 of 2013 succeeds and is, 

hereby, allowed. 

The impugned judgment of the High Court is set aside insofar as the 

same dismisses BDA’s RFA No.911 of 2002. Resultantly RFA No.911 of 2002 19 

shall stand allowed and the suit filed by the plaintiff dismissed but in the 

circumstances without any order as to costs. 

Ss - 

814 


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Present: Justice Jagdish Singh Khehar and Justice C. Nagappan. 

GYANESHWAR SHYAMAL - Appellant, 

Versus 

STATE OF WEST BENGAL – Respondent. 

Criminal Appeal No.2147 OF 2009 With Criminal Appeal No.2295 of 2009 

(i) FIR – Delay in lodging - Occurrence had taken place at about 2.00 

p.m. on 9.10.1983 and the complaint had been lodged at about 6.15 

p.m. on the same day, on which the case came to be registered - As 

mentioned in the FIR, the police station was situated at a distance of 54 

kms. from the occurrence place - In such circumstances there is no 

delay in lodging the complaint – Criminal Trial. 

(ii) Eye Witness – Family member - Unable to appreciate the contention 

that the eye-witnesses are only the family members and their 

testimonies are interested ones - Occurrence having taken place inside 

the house it is only the family members who could witness it- PW4 is 

an independent witness and he was also injured during the occurrence - 

His testimony corroborates the testimonies of other eye-witnesses. 

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(iii) Cr.P.C., Section 313 – Accused in their replies made under Section 

313 Cr.P.C. have not denied their presence in the occurrence - 

Appellants-accused belong to different villages - Their names are found 

mentioned with their residential village in the complaint which was 

lodged at the earliest point in time - PWs have testified about the 

participation of both the above accused in the occurrence and have


identified them also - Nothing is put in the cross-examination of the 

prosecution witnesses either denying their presence or absence of any 

role played by them in the assembly - Not even a suggestion is made in 

this regard - It is also relevant to point out that these accused in their 

replies made under Section 313 Cr.P.C. have not denied their presence 

in the occurrence - Presence in the occurrence place is established – 

Criminal Trial. 

JUDGMENT 

C. Nagappan, J. – (March 29, 2016) - These two appeals are preferred 

against the judgment dated 9.2.2009 passed by the High Court of Judicature at 

Calcutta in CRA No.7 of 1991. 

2. The appellants in Criminal Appeal No.7 of 1991 are accused Nos.1 to 

5, 10 and 25 in Sessions Trial Case No. XIV of March 1987 on the file of 5th 

Additional Sessions Judge at Midnapore. They along with 28 other accused were 

816 


tried for the alleged offences under Sections 148, 364/149, 302/149 and 

307/149 of the Indian Penal Code. The Sessions Court found accused Nos.1 to 5, 

10 and 25 guilty of charges under Sections 148, 324/149 and 364/149 and not 

guilty of the charge under Section 302/149 of the Indian Penal Code. Accused 

Nos.1 to 5, 10 and 25 were sentenced to undergo rigorous imprisonment for 10 

years each with fine of Rs.1,000/- each and in default to undergo further 

rigorous imprisonment for six months each for the conviction under Section 

364/149 IPC; sentenced them to undergo rigorous imprisonment for one year 

each for the conviction under Section 148 IPC and further sentenced them to 

undergo rigorous imprisonment for one year each for the conviction under 

Section 324/149. At the same time the Sessions Court acquitted remaining 28 

accused of all the charges. 

3. Aggrieved by this conviction and sentence accused Nos.1 to 5, 10 and 

25 preferred Criminal Appeal in CRA No.7 of 1991 before the High Court of 

Judicature at Calcutta. The High Court by its judgment dated 9.2.2009 dismissed 

the appeal. Accused Nos. 2, 3 and 4 died during the pendency of the appeal. 

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Challenging the impugned judgment accused No.25 Ganeshwar Shyamal 

preferred Criminal Appeal No.2147 of 2009 and accused No.1 Manik Mondal, 

No.5 Amar Mondal and No.10 Mihir Patra preferred Criminal Appeal No.2295 of 

2009 before this Court. These two appeals are heard together. 

4. Briefly the prosecution case is as follows : PW2 Jitobahan is the 

husband of PW3 Smt. Khiroda. Deceased Satyaban is their elder unmarried son 

and PW8 Manoranjan Mondal is their younger son. All of them lived together in 

Karthnala village. PW4 Muralidhar Kuila is friend of deceased Satyaban. On 

9.10.1983 between 9 and 10 a.m., the cattle of accused Hariram Mondal caused 

damage to the Kundri plants grown on the back side of the house of PW2 

Jitobahan. Satyaban drew away the cattle and this enraged Manik Mondal, son 

of Hariram Mondal, who retaliated with the bow and arrow in his hand. 

Satyaban came inside the house. It was also alleged that there was political 

rivalry between them. Around noon time on the same day all the accused 

including the appellants armed with lathis, tangis, bows and arrows assembled 

in the house of Golak Mondal, situated at a distance of 30 cubits from the house 

of Satyaban. At about 1.30 p.m. PW4 Muralidhar Kuila came to the house of 

Satyaban and was talking to him in his house. At that time all the accused with 

arms in their hands came there and surrounded Satyaban and Muralidhar. 

Accused No.1 Monik Mondal hit Satyaban with tangi, a sharp cutting weapon 

and he also attacked PW4 Muralidhar above the right eye with tangi. PW4 

Muralidhar fled away. The accused persons assaulted Satyaban and took him to 

the house of Golak Mondal. Satyaban was thereafter never found either alive or 

dead. PWs 2 and 3, parents of Satyaban and PW8 Manoranjan, brother 

witnessed the occurrence. Fearing for life PW8 Manoranjan fled to the house of 

his brother-in-law at Satma village and narrated the occurrence to PW1 

Ardhendu Satpati who rushed to the police station in his motor-cycle which was 

at a distance of about 44 kilometers. PW1 Ardhendu Satpati lodged Exh.1 

written complaint and PW10 Sub-Inspector Mriganka Sekhar Misra received the 

same and registered Exh.1(a) First Information Report at 6.15 p.m. on the same 

day. The police had to requisition a vehicle and ultimately reached the place of 

817 



occurrence at about 5.00 a.m. in the morning on the next day. PW10 Sub- 

Inspector searched for the accused persons but they were not found. He 

searched the house of accused Golak Mondal and seized a large number of 

blood-stained articles by preparing Exh.6 and 6-A Mahazars. He sent PW4 

Muralidhar to Gopiballavpur primary health centre, though PW4 was given first 

aid by Dr. Pushpa Ranjan Ghose. PW9 Dr. Bepari examined PW4 Muralidhar 

Kuila at the primary health centre and found 1½” x ¼” sharp cut wound over 

right eye and ½” x ¼” sharp wound below the right eye. The injury report given 

by him is Exh.3. PW10 Sub-Inspector on completing the investigation filed 

chargesheet against 35 accused. The Sessions Court on framing of charges 

conducted the trial in which prosecution examined 10 witnesses and marked 

documents. No evidence was adduced by the defence. The trial court convicted 

only seven accused and sentenced them as stated supra. On appeal the High 

Court confirmed the conviction and sentence. Aggrieved by the same the 

present appeals have been filed. 

818 


5. Mr. P.K. Ghosh, learned senior counsel appearing on behalf of the 

appellants would urge: 

a) the prosecution case must be held to have not been proved 

since the family members are the eyewitnesses; 

b) Whether the occurrence took place inside the house or 

outside is not established; 

c) two of the appellants belong to different villages and their 

presence in the occurrence place is doubtful and they have been 

implicated falsely due to political rivalry and the courts below 

committed error in passing the judgments; 

d) in any event most of the appellants having not taken any 

active part, benefit of doubt should be given to them. 

The learned senior counsel in support of his submission mainly placed 

reliance on the decision of this Court in Akbar Sheikh and Ors. vs. State of West 

Bengal *** [(2009) 7 SCC 415]. 

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6. Mr. Joydeep Mazumdar, learned counsel appearing on behalf of the 

State, on the other hand, supported the impugned judgment contending that 

the appellants armed with deadly weapons attacked PW4 Muralidhar Kuila and 

abducted Satyaban to murder him and thereafter Satyaban was never found 

alive or dead and each one of the appellants had the requisite common object 

and the conviction and sentence imposed on them are sustainable. 

7. The prosecution case is that the accused armed with deadly weapons 

indulged in rioting and abducted Satyaban from his residence and murdered 

him. The trial court held that Satyaban was murdered in the house of accused 

Golak Mondal was not proved since his dead body was not found despite 

vigorous search and it is a case of untraceability of the corpus delicti and hence 

the charge of murder was not proved. The State did not prefer appeal against 

the acquittal of the accused on the said charge and it became final. At the same 

time the trial court held that the appellants indulged in rioting by causing injury 

to PW4 Muralidhar Kuila and abducted Satyaban by assaulting him with intent 

to commit murder and found the appellants guilty of the charges stated supra. 

PW2 Jitobahan and his wife PW3 Smt. Khiroda were living with their sons 

Satyaban and PW8 Manoranjan in their house in Karthnala village. According to 

PWs 2, 3 and 8 on the occurrence day in the morning cattle of accused Hariram 

caused damage to the Kundri plants grown on the back side of their house and 

Satyaban drew away the cattle and enraged by this accused No.1 Monik Mondal 

retaliated with bow and arrow and Satyaban came inside the house. It is their 

further testimony that by noon time on the same day all the accused including 

the appellants assembled in the house of Golak Mondal which was situated near 

their house and at that time they were armed with lathis, tangis, bow and 

arrows. PWs 2, 3 and 8 have testified further that PW4 Muralidhar Kuila came at 

about 1.30 p.m. to their house to meet Satyaban and both of them were talking 

in their house and at that time all the accused with arms in their hands came to 

their house and surrounded Satyaban and PW4 Muralidhar Kuila. Accused No.1 

Monik Mondal hit Satyaban with tangi and he also attacked PW4 Muralidhar 

Kuila above right eye with tangi and all the accused assaulted Satyaban and took 

819 



him to the house of accused Golak Mondal and Satyaban was never found 

thereafter alive or dead. PW4 Muralidhar Kuila has also testified that when he 

was indulged in conversation with Satyaban in their house they were 

surrounded by all the accused and he was attacked by accused No.1 Monik 

Mondal with tangi resulting in injury in his right eye and he fled for life and 

Satyaban was abducted by them. PW9 Dr. Bepari examined PW4 Muralidhar 

Kuila and found two sharp cut wounds over and below his right eye. Exh.3 is the 

injury report issued by him. PW8 Manoranjan fled to the house of his brotherin-law 

at Satma village and narrated the occurrence to PW1 Ardhendu Satpati 

who lodged the written complaint in the police station. 

8. The occurrence had taken place at about 2.00 p.m. on 9.10.1983 and 

the complaint had been lodged at about 6.15 p.m. on the same day, on which 

the case came to be registered. As mentioned in the FIR, the police station was 

situated at a distance of 54 kms. from the occurrence place. In such 

circumstances there is no delay in lodging the complaint and it assumes 

820 


significance. Seven accused persons have been named with their residential 

village in the complaint and it includes the appellants herein. The complainant 

PW1 Ardhendu Satpati has not witnessed the occurrence and on the instruction 

given by PW8 Manoranjan he had lodged the complaint. 

9. PW4 Muralidhar Kuila in his testimony has stated that he saw 

Satyaban and his brother Manoranjan in front of the house and he started 

talking to Satyaban and at that time the accused persons surrounded and 

attacked them. PWs 2, 3 and 8 have categorically stated that PW4 Muralidhar 

Kuila on the occurrence day at about 1.30 p.m. came to their house to meet 

Satyaban and both of them were talking inside the house at which point of time 

the accused barged in. The Investigation Officer PW10 in Exh.5 Sketch Map 

prepared by him has shown the occurrence place inside the house of Satyaban. 

We also perused the sketch map and are convinced that the occurrence had 

taken place only inside the house of Satyaban. In the same way we are unable 

to appreciate the other contention that the eye-witnesses are only the family 

members and their testimonies are interested ones. The occurrence having 

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taken place inside the house it is only the family members who could witness it. 

PW4 Muralidhar Kuila is an independent witness and he was also injured during 

the occurrence. His testimony corroborates the testimonies of other eyewitnesses. 

10. It is true that two of the appellants/A10 and A25 belong to different 

villages. As already stated their names are found mentioned with their 

residential village in the complaint which was lodged at the earliest point in 

time. PWs 2, 4 and 8 have testified about the participation of both the above 

accused in the occurrence and have identified them also. Nothing is put in the 

cross-examination of the prosecution witnesses either denying their presence or 

absence of any role played by them in the assembly. Not even a suggestion is 

made in this regard. It is also relevant to point out that these accused in their 

replies made under Section 313 Cr.P.C. have not denied their presence in the 

occurrence. On the other hand their presence in the occurrence place is 

established by the evidence available on record. 

11. In the facts of the decision cited supra 29 accused had faced trial 

and the testimony of two eye-witnesses were found to be credible and those 

witnesses had not named some of the accused in their testimonies and in the 

absence of any clinching evidence against those accused they were acquitted by 

this Court. 

821 


12. The prosecution in a case of this nature was required to establish : 

i) Whether the appellants were present; and 

ii) Whether they shared a common object. The appellants undisputedly 

raided the house of Satyaban and they were armed with deadly weapons and 

they attacked Satyaban and PW4 Muralidhar Kuila and abducted Satyaban in 

order to murder him. The appellants right from the beginning viz., when they 

assembled in the house of Golak Mondal till the abduction of Satyaben, shared 

the common object of the assembly at all stages. We are of the view that the 

impugned judgment of the High Court does not suffer from any infirmity to 

warrant interference.


13. There are no merit in the appeals and the same are dismissed. 

Ss - 

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Present : Justice V. Gopala Gowda and Justice Arun Mishra, JJ. 

SAVELIFE FOUNDATION & Anr. – Petitioners, 

versus 

UNION OF INDIA & Anr. – Respondents. 

Writ Petition (C) No.235 OF 2012 

(i) Constitution of India, Article 21 - Right to life is enshrined under Article 21 

includes right to safety of persons while travelling on the road and the 

immediate medical assistance as a necessary corollary is required to be 

provided and also adequate legal protection and prevention from harassment 

to good Samaritans. 

(ii) Constitution of India, Article 32, 141, 142 - Guidelines and directions can 

be issued by the Supreme Court including a command for compliance of 

guidelines and standard operating procedure issued by Government of India, 

Ministry of Road Transport and Highways, till such time as the legislature 

steps in to substitute them by proper legislation - This Court can issue such 

directions under Article 32 read with Article 142 to implement and enforce the 

guidelines which are necessary for protection of rights under Article 21 read 

with Article 14 of the Constitution of India so as to provide immediate help to 

the victims of the accident and at the same time to provide protection to Good 

Samaritans. The guidelines will have the force of law under Article 141 - By 

virtue of Article 144, it is the duty of all authorities – judicial and civil – in the 

territory of India to act in aid of this Court by implementing them - 

Constitution of India, Article 14, 21. [Para 18] 

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(iii) Good Samaritan – Rights - Accident cases require fastest care and rescue 

which could be provided by those closest to the scene of the accident.


Bystanders clear support is essential to enhance the chances of survival of 

victim in the ‘Golden Hour’ i.e. the first hour of the injury - Direct that the 

court should not normally insist on appearance of Good Samaritans as that 

causes delay, expenses and inconvenience - The concerned court should 

exercise the power to appoint the Commission for examination of Good 

Samaritans in accordance with the provisions contained in section 284 of the 

Code of Criminal Procedure, 1973 suo motu or on an application moved for 

that purpose, unless for the reasons to be recorded personal presence of good 

Samaritan in court is considered necessary. [Para 20] 

(iv) Good Samaritan – Rights - Notification dated 12.5.2015, 21.1.2016 issued 

by the Ministry of Road Transport and Highways containing guidelines for 

protection of good Samaritans 

Notification dated 12.5.2015 issued by the Ministry of Road Transport 

and Highways containing guidelines for protection of good Samaritans to be in 

824 


force till appropriate legislation is framed by Union Legislature,: 

“No.25035/101/2014-RS.—Whereas the Hon’ble Supreme Court in the 

case of Savelife Foundation and another V/s. Union Of India and another 

in Writ Petition (Civil) No. 235 of 2012 vide its order dated 29th October, 

2014, inter alia, directed the Central Government to issue necessary 

directions with regard to the protection of Good Samaritans until 

appropriate legislation is made by the Union Legislature; 

And whereas, the Central Government considers it necessary 

to protect the Good Samaritans from harassment on the actions being 

taken by them to save the life of the road accident victims and, 

therefore, the Central Government hereby issues the following 

guidelines to be followed by hospitals, police and all other authorities for 

the protection of Good Samaritans, namely:- 

1.(1) A bystander or good Samaritan including an eyewitness 

of a road accident may take an injured person to the nearest hospital, 

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and the bystander or good Samaritan should be allowed to leave 

immediately except after furnishing address by the eyewitness only and 

no question shall be asked to such bystander or good Samaritan. 

(2) The bystander or good Samaritan shall be suitably 

rewarded or compensated to encourage other citizens to come forward 

to help the road accident victims by the authorities in the manner as 

may be specified by the State Governments. 

(3) The bystander or good Samaritan shall not be liable for 

any civil and criminal liability. 

(4) A bystander or good Samaritan, who makes a phone call to 

inform the police or emergency services for the person lying injured on 

the road, shall not be compelled to reveal his name and personal details 

on the phone or in person. 

(5) The disclosure of personal information, such as name and 

contact details of the good Samaritan shall be made voluntary and 

optional including in the Medico Legal Case (MLC) Form provided by 

hospitals. 

(6) The disciplinary or departmental action shall be initiated 

by the Government concerned against public officials who coerce or 

intimidate a bystander or good Samaritan for revealing his name or 

personal details. 

825 


(7) In case a bystander or good Samaritan, who has 

voluntarily stated that he is also an eye-witness to the accident and is 

required to be examined for the purposes of investigation by the police 

or during the trial, such bystander or good Samaritan shall be examined 

on a single occasion and the State Government shall develop standard 

operating procedures to ensure that bystander or good Samaritan is not 

harassed or intimidated. 

(8)The methods of examination may either be by way of a 

commission under section 284, of the Code of Criminal Procedure 1973


or formally on affidavit as per section 296, of the said Code and 

Standard Operating Procedures shall be developed within a period of 

thirty days from the date when this notification is issued. 

(9)Video conferencing may be used extensively during 

examination of bystander o rgood Samaritan including the persons 

referred to in guideline (1) above, who are eye witnesses in order to 

prevent harassment and inconvenience to good Samaritans. 

(10)The Ministry of Health and Family Welfare shall issue 

guidelines stating that all registered public and private hospitals are not 

to detain bystander or good Samaritan or demand payment for 

registration and admission costs, unless the good Samaritan is a family 

member or relative of the injured and the injured is to be treated 

immediately in pursuance of the order of the Hon’ble Supreme Court 

in Pt. Parmanand Katara v. Union of India & Ors [1989] 4 SCC 286, JT 

1989 (3)SC 496. 

826 


(11)Lack of response by a doctor in an emergency situation 

pertaining to road accidents, where he is expected to provide care, shall 

constitute “Professional Misconduct”, under Chapter 7 of the Indian 

Medical Council (Professional Conduct, Etiquette and Ethics) Regulation, 

2002 and disciplinary action shall be taken against such doctor under 

Chapter 8 of the said Regulations. 

(12)All hospitals shall publish a charter in Hindi, English and 

the vernacular language of the State or Union territory at their entrance 

to the effect that they shall not detain bystander or good Samaritan or 

ask depositing money from them for the treatment of a victim. 

(13)In case a bystander or good Samaritan so desires, the 

hospital shall provide an acknowledgement to such good Samaritan, 

confirming that an injured person was brought to the hospital and the 

time and place of such occurrence and the acknowledgement may be 

prepared in a standard format by the State Government and 

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disseminated to all hospitals in the State for incentivising the bystander 

or good Samaritan as deemed fit by the State Government. 

(14)All public and private hospitals shall implement these 

guidelines immediately and in case of noncompliance or violation of 

these guidelines appropriate action shall be taken by the concerned 

authorities. 

(15)A letter containing these guidelines shall be issued by the 

Central Government and the State Government to all Hospitals and 

Institutes under their respective jurisdiction, enclosing a Gazette copy of 

this notification and ensure compliance and the Ministry of Health and 

Family Welfare and Ministry of Road Transport and Highways shall 

publish advertisements in all national and one regional newspaper 

including electronic media informing the general public of these 

guidelines. 

2.The above guidelines in relation to protection of bystander 

or good Samaritan are without prejudice to the liability of the driver of a 

motor vehicle in the road accident, as specified under section 134 of the 

Motor Vehicles Act, 1988(59 of 1988). 

827 


Sd/- Jt. Secy.” 

Ministry of Road Transport and Highways has issued notification on 

21.1.2016 which is as under: 

“No.RT-25035/101/2014-RS.—Whereas, the Hon’ble Supreme 

Court in the case of SaveLife Foundation and another v. Union of India 

and another in Writ Petition(Civil) No. 235/2012 vide its order dated 

29th October 2014, interalia, directed to issue necessary directions 

with regard to the protection of Good Samaritans until appropriate 

legislation is made by the Union Legislature; 

And whereas, the Central Government published the 

guidelines in the Gazette of India, Extraordinary, Part I, Section I dated


12th May 2015 for protection of the Good Samaritans, i.e. a person who 

is a bystander or a passer-by, who chooses to assist an injured person or 

a person in distress on the road; 

And whereas, as per para 1 (7) and (8) of the said guidelines 

dated 12th May, 2015,Standard Operating Procedures are to be framed 

for the examination of Good Samaritans by the Police or during trial; 


to issue Standard Operating Procedure for the examination of Good 

Samaritans by the Police or during trial and here by issue the following 

standard operating procedure, namely:— 

1.1. The Good Samaritan shall be treated respectfully and 

without any discrimination on the grounds of gender, religion, 

nationality, caste or any other grounds. 

2.Any person who makes a phone call to the Police control 

room or Police station to give information about any accidental injury or 

828 


death, except an eyewitness may not reveal personal details such as full 

name, address, phone number etc. 

3.Any Police official, on arrival at the scene, shall not compel 

the Good Samaritan to disclose his / her name, identity, address and 

other such details in the Record Form or Log Register. 

4.Any Police official or any other person shall not force any 

Good Samaritan who helps an injured person to become a witness in the 

matter. The option of becoming a witness in the matter shall solely rest 

with the Good Samaritan. 

5.The concerned Police official(s) shall allow the Good 

Samaritan to leave after having informed the Police about an injured 

person on the road, and no further questions shall be asked if the Good 

Samaritan does not desire to be a witness in the matter. 

2.Examination of Good Samaritan by the Police 

i. In case a Good Samaritan so chooses to be a witness, he 

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shall be examined with utmost care and respect and without any 

discrimination on the grounds of gender, religion, nationality, caste or 

any other grounds. 

ii.In case a Good Samaritan chooses to be a witness, his 

examination by the investigating officer shall, as far as possible, be 

conducted at a time and place of his convenience such as his place of 

residence or business, and the investigation officer shall be dressed in 

plain clothes, unless the Good Samaritan chooses to visit the police 

station. 

iii.Where the examination of the Good Samaritan is not 

possible to be conducted at a time and place of his convenience and the 

Good Samaritan is required by the Investigation Officer to visit the police 

station, the reasons for the same shall be recorded by such officer in 

writing. 

iv. In case a Good Samaritan so chooses to visit the Police 

Station, he shall be examined in a single examination in a reasonable 

and time-bound manner, without causing any undue delay. 

v. In case the Good Samaritan speaks a language other than 

the language of the Investigating Officer or the local language of the 

respective jurisdiction, the Investigating Officer shall arrange for an 

interpreter. 

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vi. Where a Good Samaritan declares himself to be an eyewitness, 

he shall be allowed to give his evidence on affidavit, in 

accordance with section 296 of the Code of Criminal Procedure, 1973 (2 

of 1974) which refers to Evidence in Formal Character on Affidavit. 

vii.The affidavit of Good Samaritan if filed, shall be treated as 

complete statement by the Police official while conducting the 

investigation. In case statement is to be recorded, complete statement 

shall be recorded in a single examination.*** 

viii.In case the attendance of the Good Samaritan cannot be


procured without delay, expense or inconvenience which, under the 

circumstances of the case, would be unreasonable, or his examination is 

unable to take place at a time and place of his convenience, the Court of 

Magistrate may appoint a commission for the examination of the Good 

Samaritan in accordance with section 284 of the Code of Criminal 

Procedure, 1973 (2 of 1974) on an application by the concerned. 

3.The Superintendent of Police or Deputy Commissioner of 

Police or any other Police official of corresponding seniority heading the 

Police force of a District, as the case may be, shall be responsible to 

ensure that all the above mentioned procedures are implemented 

throughout their respective jurisdictions with immediate effect. 

Sd/- Jt. Secretary.” 

*** 2(vii) as inserted by the Supreme court 

830 


JUDGMENT 

Arun Mishra, J. – (30 th March, 2016) - The petition has been filed under 

Article 32 of the Constitution of India in public interest for the development of 

supportive legal framework to protect Samaritans i.e. bystanders and passers-by 

who render the help to the victims of road accidents. These individuals can play 

a significant role in order to save lives of the victims by either immediately 

rushing them to the hospital or providing immediate life saving first aid. 

2. The petitioner is ‘Save Life Foundation’, a non-profit, nongovernmental 

organization registered as a Public CharitableTrust and had been 

established in 2008. The petitioner aims to create a unique network of medical 

responders to come to the victim’s aid. The petitioner has also drafted 

recommendations to address the critical deficiencies in the Motor Vehicles Act, 

and other laws governing road safety. 

3. The Department of Road Transport is responsible for framing motor 

vehicle legislation and evolving road safety standards in India. The WHO in its 

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‘World Report on Road Traffic Injury Prevention, 2004’ has projected that by 

2020, road accidents will be one of the biggest killers in India. It also emphasized 

that in low income countries, the most common desisting factor restraining the 

public from coming forward to help victims, is the apparent fear of being 

involved in police cases. There is need to build confidence amongst the public to 

help road accident victims. Bystanders should not be insisted to divulge their 

personal particulars or detained in the hospital for interrogation. People are 

hesitant to render immediate help to the road accident victims. The victims lay 

wounded on the road for some time till the arrival of police. Delay rendering 

medical help in such cases sometimes is fatal. Good Samaritans have the fear of 

legal consequences, involvement in litigation and repeated visits to police 

station. There is urgent need to tackle these issues. There is need to establish 

legal framework so that Good Samaritan is empowered to act without any fear 

of adverse consequences or harassment. Save life must be the top priority. 

4. Several countries have enacted such laws. In England and Wales, the 

Parliament has enacted the Social Action, Responsibility and Heroism Act 2015 

which provides for certain factors to be considered by the Court while hearing 

an action for negligence or breach of duty. Section 2 of the Act provides that the 

Court must consider whether the respondent was acting for the benefit of 

society or any of its members. Section 5 of the Act further provides that the 

Court must consider whether the respondent was acting heroically by 

intervening in an emergency to assist an individual in danger. In Ireland, section 

51D of the Civil Law (Miscellaneous Provisions) Act 2011 provides that a good 

Samaritan will not be liable in negligence for any act done in emergency to help 

person in serious and imminent danger. In Australia, protection to good 

Samaritan is provided in several states. In New South Wales and Victoria, for 

instance, a good Samaritan is protected from personal civil liability with respect 

to anything done in state of emergency or accident by virtue of Civil Liability Act 

2002 and Wrongs Act 1958 respectively. In Canada, various states like Ontario, 

Alberta and British Columbia offer protection to good Samaritans. In Ontario, 

the Good Samaritan Act 2001, by Section 2 (1), provides that except for gross 

831 



negligence, a person is not liable for damages resulting from his acts during aid 

in emergency. Similar protection is provided in states of Alberta, British 

Columbia and Nova Scotia by Emergency Medical Aid Act, Good Samaritan Act 

and Volunteer Services Act respectively. Similar protection to good Samaritans is 

to be found indifferent states’ laws in the USA. States of Alabama, Alaska, 

Arizona, Arkansas, California and New York, to name a few, provide that if a 

person lends emergency assistance or service to another person in good faith, 

he is not liable in civil damages with respect to his act or omission. 

5. Accident cases require fastest care and rescue which could be 

832 


provided by those closest to the scene of the accident. Bystanders clear support 

is essential to enhance the chances of survival of victim in the ‘Golden Hour’ i.e. 

the first hour of the injury. As per the WHO India Recommendations, 50% of the 

victims die in the first 15 minutes due to serious cardiovascular or nervous 

system injuries and the rest can be saved through by providing basic life support 

during the ‘Golden Hour’. Right to life is enshrined under Article 21 which 

includes right to safety of persons while travelling on the road and the 

immediate medical assistance as a necessary corollary is required to be 

provided and also adequate legal protection and prevention from harassment to 

good Samaritans. 

6. In letter dated 9.9.2004, Joint Secretary, Department of Road 

Transport and Highways addressed to all the State Governments and Union 

Territories, it has been highlighted that the WHO in its World Report on Road 

Traffic Injury Prevention, 2004 has pointed out that “while in high-income 

countries, there is a reasonably well-organised ambulance based rescue system, 

in middle and low-income countries, assistance by bystanders is most common. 

In our country, while organizing of trauma care apart of intervention is also 

required, there is another factor, namely, relative ignorance on part of public to 

come forward to help the road crash victims, for apparent fear that they might 

be involved in “police cases.” The letter further states that Research shows that 

a number of the accident victims can be saved if they receive immediate 

medical attention.” The letter also admits that due to fear of harassment people 

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do not always come forward to attend them.” 

6.1 The Department of Road Transport and Highways had also sent 

letter dated 19.2.2004 to the States and Union Territories enclosing a Circular 

issued by the police authorities in Delhi in order to build confidence in the public 

for helping road accident victims. The Circular stated that it is likely that the 

person who brings the injured to the hospital would hesitate to provide his 

particulars, and in such a case, it should not be insisted upon. Furthermore, it 

was also stated therein that the escorters or the person who bring the victims to 

the hospital should, under no circumstances, be detained in the hospital for 

interrogation. It was suggested in the said letter that action on similar lines may 

be considered by the States and UTs. 

7. The people have the notion that touching the body could lend them 

liable for police interrogation. Passerby plays safe and chose to wait for the 

police to arrive whereas injured gradually bleeds to death. People are reluctant 

to come forward for help despite, desperate attempts to get help from 

passerby, by and large they turn blind eyes to the person in distress. Sometimes 

those who help are rebuked due to ignorance by the others on touching the 

scene. In the case of a convoy even when there are several vehicles in the 

convoy, people wait for the ambulance to arrive and also for the concerned 

police help. There are several desisting factors which are required to be taken 

care of such as fear of legal consequences if once action is ineffective or harmful 

to victim, fear of involvement in subsequent prolonged investigation and visit to 

the police station. There is need to evolve the system by promptly providing 

effective care system with certain ethical and legal principles. It is absolutely 

necessary that Good Samaritans feel empowered to act without fear of adverse 

consequence. There is need to provide certain incentives to Good Samaritans. 

There is also dire need to enact a Good Samaritan Law in the country since there 

is a felt need of legislation for affording protection to Good Samaritans. 

833 


8. While issuing notice on 17.8.2012, this Court has observed: 

“It remains undisputed before us that it is not insufficiency of


law but it is implementation of law which is a matter of concern. 

Different guidelines including guidelines for ambulance Code, 

emergency care and appropriate directions to the hospitals on the 

highways for handling the accident trauma patients, as a top priority are 

stated to have been issued. 

Learned counsel appearing for the parties submit that an 

expert committee would need to be constituted to monitor the various 

directions issued for their due compliance. 

Learned counsel for the parties even propose to make joint 

834 


suggestions in this regard after consulting the relevant Ministries and 

NHA. The counsel appearing for the petitioner has vehemently argued 

that the joint suggestions now to be filed should also consider the 

directions and safeguards that could be provided to the passers-by or 

informers of the accident. This will even help the expeditious disposal of 

criminal cases. Let this aspect be also examined by the learned counsel 

appearing for the parties who are to submit the joint suggestions.” 

9. This Court vide order dated 11.12.2012 has constituted a Committee 

consisting of 8 members and to submit the suggestions before this Court. The 

members of the said Committee are as follows: 

1.Additional Secretary of Ministry of Home Affairs; 

2.Secretary and or his nominee, Ministry of Health and Family 

Welfare to be nominated in consultation with Directorate General 

Health Services; 

3. Secretary and or his nominee from Ministry of Law and Justice; 

4. Jt. Commissioner (Traffic) – Delhi Police; 

5. Chief of the AIIMS Trauma Centre; 

6. The Director General or his nominee not below the rank of the 

Additional Director General of the Protection Road Organizations; 

7. Save Life foundation representative; 

8. Mr. M.P. Tiwari or his nominee from any of the NAOS John 

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Ambulance representative. 

9.1The scope of reference of the Committee inter alia included 

following aspects with which we are concerned in the instant matter; 

“(ix) Identify the root causes for fear of harassment and legal 

hassles in general public regarding helping injured victims. 

(x) Deliberate and develop a set of guidelines for protecting 

Good Samaritans from police harassment and legal hassles. The 

guidelines will aim to address the root causes for fear of harassment 

and legal hassles in general public regarding helping injured victims. 

These guidelines will also serve as a foundation for further legislative 

work in the area of protecting Good Samaritans.” 

9.2 The Committee was required to submit report to this Court within 

three months. On 14.8.2014, this Court passed an order to have the views of 

concerned ministries of Union of India. This Court observed in order dated 

24.9.2014 that in this petition the only issue which is required to be addressed is 

with regard to ‘Good Samaritans’. All other issues that arise in the writ petition 

have already been referred to the Committee headed by Mr. Justice K.S. 

Radhakrishnan, former Judge of this Court. 

835 


10. This Court on 29.10.2014 has passed an order in view of affidavit 

filed on behalf of Ministry of Road Transport and Highways wherein it has been 

stated that the recommendation made in the Skandan Committee’s report 

regarding protection of good Samaritans has been accepted by the said ministry 

and also by Ministry of Law & Justice. This Court directed both the ministries in 

consultation with each other to issue necessary directions with regard to 

protection of good Samaritans until appropriate legislation is made by the Union 

Legislature. 

10.1 On 7.8.2015, this Court has noted that notification dated 12.5.2015 

laying down ‘Good Samaritan Guidelines’ has been issued by the Ministry of 

Road Transport and Highways, Government of India. Suggestions were invited 

so as to give more teeth to the guidelines.


10.2 On 27.11.2015, this Court was informed by the learned Additional 

Solicitor General that the suggestions given have been incorporated in the form 

of Standard Operating Procedure which has been issued as an Office 

Memorandum. The views of Ministry of Health and Family Welfare, Ministry of 

Home Affairs and Ministry of Law and Justice are awaited. This Court issued a 

direction to look into the possibility of giving statutory status to the Standard 

Operating Procedure either in the form of a notification or regulations or 

guidelines. 

11. The Ministry of Road Transport and Highways has issued a 

836 


notification containing guidelines on 12.5.2015 published in the Gazette of India 

para 1 of Section 1 of the Notification dated 12.5.2015 for protection of good 

Samaritans and a further Notification has been issued on 21.1.2016 in 

accordance with para 1(7) and 1(8) of the guidelines dated 12.5.2015 which 

required standard operating procedures to be framed and issued for 

examination of good Samaritans by the police or during trial. It has been 

mentioned in the affidavit filed by Ministry of Road Transport and Highways, 

Government of India that in the absence of any statutory backing, it is felt that it 

will be difficult to enforce these guidelines issued on 12.5.2015 and standard 

operating procedures as notified on 21.1.2016. It has also been mentioned that 

the notified guidelines in relation to protection of a bystander or good 

Samaritan are without prejudice to the liability of the driver of a motor vehicle 

involved in the road accident, as specified under section 134 of the Motor 

Vehicles Act, 1988. 

11.1 Notification dated 12.5.2015 issued by the Ministry of Road 

Transport and Highways containing guidelines for protection of good Samaritans 

to be in force till appropriate legislation is framed by Union Legislature, is 


“No.25035/101/2014-RS.—Whereas the Hon’ble Supreme Court in the 

case of Savelife Foundation and another V/s. Union Of India and 

another in Writ Petition (Civil) No. 235 of 2012 vide its order dated 29th 

October, 2014, inter alia, directed the Central Government to issue 

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necessary directions with regard to the protection of Good Samaritans 

until appropriate legislation is made by the Union Legislature; 


to protect the Good Samaritans from harassment on the actions being 

taken by them to save the life of the road accident victims and, 

therefore, the Central Government hereby issues the following 

guidelines to be followed by hospitals, police and all other authorities 

for the protection of Good Samaritans, namely:- 

1.(1) A bystander or good Samaritan including an eyewitness 

of a road accident may take an injured person to the nearest hospital, 

and the bystander or good Samaritan should be allowed to leave 

immediately except after furnishing address by the eyewitness only and 

no question shall be asked to such bystander or good Samaritan. 

(2) The bystander or good Samaritan shall be suitably 

rewarded or compensated to encourage other citizens to come forward 

to help the road accident victims by the authorities in the manner as 

may be specified by the State Governments. 

(3) The bystander or good Samaritan shall not be liable for 

any civil and criminal liability. 

837 


(4) A bystander or good Samaritan, who makes a phone call to 

inform the police or emergency services for the person lying injured on 

the road, shall not be compelled to reveal his name and personal details 

on the phone or in person. 

(5) The disclosure of personal information, such as name and 

contact details of the good Samaritan shall be made voluntary and 

optional including in the Medico Legal Case (MLC) Form provided by 

hospitals. 

(6) The disciplinary or departmental action shall be initiated 

by the Government concerned against public officials who coerce or 

intimidate a bystander or good Samaritan for revealing his name or


personal details. 

(7) In case a bystander or good Samaritan, who has 

voluntarily stated that he is also an eye-witness to the accident and is 

required to be examined for the purposes of investigation by the police 

or during the trial, such bystander or good Samaritan shall be examined 

on a single occasion and the State Government shall develop standard 

operating procedures to ensure that bystander or good Samaritan is not 

harassed or intimidated. 

(8)The methods of examination may either be by way of a 

commission under section 284, of the Code of Criminal Procedure 1973 

or formally on affidavit as per section 296, of the said Code and 

Standard Operating Procedures shall be developed within a period of 

thirty days from the date when this notification is issued. 

(9)Video conferencing may be used extensively during 

examination of bystander o rgood Samaritan including the persons 

838 


referred to in guideline (1) above, who are eye witnesses in order to 

prevent harassment and inconvenience to good Samaritans. 

(10)The Ministry of Health and Family Welfare shall issue 

guidelines stating that all registered public and private hospitals are not 

to detain bystander or good Samaritan or demand payment for 

registration and admission costs, unless the good Samaritan is a family 

member or relative of the injured and the injured is to be treated 

immediately in pursuance of the order of the Hon’ble Supreme Court 

in Pt. Parmanand Katara v. Union of India & Ors [1989] 4 SCC 286, JT 

1989 (3)SC 496. 

(11)Lack of response by a doctor in an emergency situation 

pertaining to road accidents, where he is expected to provide care, shall 

constitute “Professional Misconduct”, under Chapter 7 of the Indian 

Medical Council (Professional Conduct, Etiquette and Ethics) Regulation, 

2002 and disciplinary action shall be taken against such doctor under 

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Chapter 8 of the said Regulations. 

(12)All hospitals shall publish a charter in Hindi, English and 

the vernacular language of the State or Union territory at their entrance 

to the effect that they shall not detain bystander or good Samaritan or 

ask depositing money from them for the treatment of a victim. 

(13)In case a bystander or good Samaritan so desires, the 

hospital shall provide an acknowledgement to such good Samaritan, 

confirming that an injured person was brought to the hospital and the 

time and place of such occurrence and the acknowledgement may be 

prepared in a standard format by the State Government and 

disseminated to all hospitals in the State for incentivising the bystander 

or good Samaritan as deemed fit by the State Government. 

(14)All public and private hospitals shall implement these 

guidelines immediately and in case of noncompliance or violation of 

these guidelines appropriate action shall be taken by the concerned 

authorities. 

(15)A letter containing these guidelines shall be issued by the 

Central Government and the State Government to all Hospitals and 

Institutes under their respective jurisdiction, enclosing a Gazette copy of 

this notification and ensure compliance and the Ministry of Health and 

Family Welfare and Ministry of Road Transport and Highways shall 

publish advertisements in all national and one regional newspaper 

including electronic media informing the general public of these 

guidelines. 

839 


2.The above guidelines in relation to protection of bystander 

or good Samaritan are without prejudice to the liability of the driver of a 

motor vehicle in the road accident, as specified under section 134 of the 

Motor Vehicles Act, 1988(59 of 1988). 

Sd/- Jt. Secy.” 

12. Para 1(7) and 1(8) of the guidelines dated 12.5.2015 required


standard operating procedure to be framed for the examination of the good 

Samaritans. The Central Government, Ministry of Road Transport and Highways 

has issued notification on 21.1.2016 which is as under: 

“No.RT-25035/101/2014-RS.—Whereas, the Hon’ble Supreme 

Court in the case of SaveLife Foundation and another v. Union of India 

and another in Writ Petition(Civil) No. 235/2012 vide its order dated 

29th October 2014, interalia, directed to issue necessary directions 

with regard to the protection of Good Samaritans until appropriate 

legislation is made by the Union Legislature; 

And whereas, the Central Government published the 

guidelines in the Gazette of India, Extraordinary, Part I, Section I dated 

12th May 2015 for protection of the Good Samaritans, i.e. a person who 

is a bystander or a passer-by, who chooses to assist an injured person or 

a person in distress on the road; 

And whereas, as per para 1 (7) and (8) of the said guidelines 

840 


dated 12th May, 2015,Standard Operating Procedures are to be framed 

for the examination of Good Samaritans by the Police or during trial; 


to issue Standard Operating Procedure for the examination of Good 

Samaritans by the Police or during trial and here by issue the following 

standard operating procedure, namely:— 

1.1. The Good Samaritan shall be treated respectfully and 

without any discrimination on the grounds of gender, religion, 

nationality, caste or any other grounds. 

2.Any person who makes a phone call to the Police control 

room or Police station to give information about any accidental injury or 

death, except an eyewitness may not reveal personal details such as full 

name, address, phone number etc. 

3.Any Police official, on arrival at the scene, shall not compel 

the Good Samaritan to disclose his / her name, identity, address and 

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other such details in the Record Form or Log Register. 

4.Any Police official or any other person shall not force any 

Good Samaritan who helps an injured person to become a witness in 

the matter. The option of becoming a witness in the matter shall solely 

rest with the Good Samaritan. 

5.The concerned Police official(s) shall allow the Good 

Samaritan to leave after having informed the Police about an injured 

person on the road, and no further questions shall be asked if the Good 

Samaritan does not desire to be a witness in the matter. 

2.Examination of Good Samaritan by the Police 

i. In case a Good Samaritan so chooses to be a witness, he 

shall be examined with utmost care and respect and without any 

discrimination on the grounds of gender, religion, nationality, caste or 

any other grounds. 

ii.In case a Good Samaritan chooses to be a witness, his 

examination by the investigating officer shall, as far as possible, be 

conducted at a time and place of his convenience such as his place of 

residence or business, and the investigation officer shall be dressed in 

plain clothes, unless the Good Samaritan chooses to visit the police 

station. 

841 


iii.Where the examination of the Good Samaritan is not 

possible to be conducted at a time and place of his convenience and the 

Good Samaritan is required by the Investigation Officer to visit the 

police station, the reasons for the same shall be recorded by such 

officer in writing. 

iv. In case a Good Samaritan so chooses to visit the Police 

Station, he shall be examined in a single examination in a reasonable 

and time-bound manner, without causing any undue delay. 

v. In case the Good Samaritan speaks a language other than 

the language of the Investigating Officer or the local language of the


respective jurisdiction, the Investigating Officer shall arrange for an 

interpreter. 

vi. Where a Good Samaritan declares himself to be an eyewitness, 

he shall be allowed to give his evidence on affidavit, in 

accordance with section 296 of the Code of Criminal Procedure, 1973 (2 

of 1974) which refers to Evidence in Formal Character on Affidavit. 

vii.The complete statement or affidavit of such Good 

Samaritan shall be recorded bythe Police official while conducting the 

investigation in a single examination. 

842 


viii.In case the attendance of the Good Samaritan cannot be 

procured without delay, expense or inconvenience which, under the 

circumstances of the case, would be unreasonable, or his examination is 

unable to take place at a time and place of his convenience, the Court of 

Magistrate may appoint a commission for the examination of the Good 

Samaritan in accordance with section 284 of the Code of Criminal 

Procedure, 1973 (2 of 1974) on an application by the concerned. 

3.The Superintendent of Police or Deputy Commissioner of 

Police or any other Police official of corresponding seniority heading the 

Police force of a District, as the case may be, shall be responsible to 

ensure that all the above mentioned procedures are implemented 

throughout their respective jurisdictions with immediate effect. 

Sd/- Jt. Secretary.” 

12.1 Prayer has been made on the part of the Ministry of Road 

Transport and Highways of Government of India that the guidelines notified on 

12.5.2015 and the standard operating procedure notified on 21.1.2016 may be 

declared to be enforceable by this Court so that it is binding on all the States 

and Union Territories until the Union Government enacts a law to this effect. 

13. In Lakshmi Kant Pandey v. Union of India ***[1984 (2) SCC 244] in 

the matter of inter-country adoption and so as to prevent malpractices and 

trafficking of children under the guise of adoption, this Court has laid down 

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certain principles and norms to be followed in the cases of such adoption in 

detail, as there was absence of statutory provisions with respect to intercountry 

adoptions. 

14. In D.K. Basu v. State of W.B. *** [JT1997 (1) SC 1 : 1997 (1) SCC 

416], this Court considering the fact that the custodial violence, torture, rape, 

death in police custody/lock-up infringes Article 21 as well as basic human rights 

and strikes a blow at the rule of law, directions have been issued for compliance 

by Police personnel while arresting or detaining any person as preventive 

measures in addition to constitutional and statutory safeguards and previous 

directions of this Court. 

15. In Vishaka and Ors. v. State of Rajasthan & Ors. *** (1997) 6 SCC 

241 , JT 1997 (7) SC 384 considering the absence of enacted law to provide for 

effective enforcement of the basic rights to gender equality and guarantee 

against sexual harassment and abuse, more particularly against sexual 

harassment at workplaces, this Court has laid down guidelines and norms for 

due observance at all work places or institutions until the legislation is enacted 

for the purpose. 

16. In Vineet Narain & Ors. v. Union of India & Anr. *** 1998 (1) SCC 

226 this Court has referred to various decisions in which guidelines and 

directions have been issued in exercise of powers of this Court under Article 32 

read with Article142. The relevant portion is extracted hereunder : 

843 


“51. 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 [WP 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 1984(2) SCC 244 (In re, Foreign Adoption), guidelines for 

adoption of minor children by foreigners were laid down. Similarly 

in State of W.B. v. Sampat Lal 1985 (1) SCC 317, K. Veeraswami v.


Union of India (1991) 3 SCC 655,Union Carbide Corpn. v. Union of 

India 1991 (4) SCC 584, Delhi Judicial Service Assn. v. State of 

Gujarat (1991) 4 SCC 406 (Nadiad case), Delhi Development Authority 

v. Skipper Construction Co. (P) Ltd. (1996) 4 SCC 622 and Dinesh Trivedi, 

M.P. v. Union of India (1997) 4 SCC 306, guidelines were laid down 

having the effect of law, requiring rigid compliance. In Supreme Court 

Advocates-on-Record Assn. v. Union of India (1993) 4 SCC 441 (IInd 

Judges case) 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 (1997) 6 SCC 241elaborate guidelines have been laid down 

for observance in workplaces relating to sexual harassment of working 

women. In Vishaka (supra) it was said: (SCC pp. 249-50, para 11) 

“11. The obligation of this Court under Article 32 of the 

844 


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 the 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 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 

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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 wellsettled 

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. 

52. As pointed out in Vishaka (supra) it is the duty of the 

executive to fill the vacuum by executive orders because its field is 

coterminous with that of the legislature, and where there is inaction 

even by the executive, for whatever reason, the judiciary must step in, 

in exercise of its constitutional obligations under the aforesaid 

provisions to provide a solution till such time as the legislature acts to 

perform its role by enacting proper legislation to cover the field.” 

17. In Union of India v. Association for Democratic Reforms & 

Anr. http://judis.nic.in/supremecourt/imgs1.aspx?filename=18463*** 2002 (5) 

SCC 294, the decisions in Vineet Narain (supra), Vishaka (supra) and other 

decisions have been followed and this Court has laid down the law that an 

exercise to fill the void in the absence of suitable legislation is now a well-settled 

practice which has taken firm roots in our constitutional jurisprudence. Similar is 

the decision in Kalyan Chandra Sarkar v. Rajesh Ranjan alias Pappu Yadav & 

Anr. *** 2005 (3) SCC 284. In Common Cause v. Union of India, *** 2015 (7) 

SCC 1, law to the same effect has been reiterated thus : 

845 


“7.In the earlier order dated 23-4-2014 (2014) 6 SCC 552, this Court, 

after holding that reasonableness and fairness consistent with Article 14 

of the Constitution would be the ultimate test of all St ate activities 

proceeded to hold that the deployment of public funds in any


government activity which is not connected with a public purpose 

would justify judicial intervention. We would like to say something 

more. 

846 


8. Part IV of the Constitution is as much a guiding light for the Judicial 

organ of the State as the Executive and the Legislative arms, all three 

being integral parts of the “State” within the meaning of Article 12 of 

the Constitution. AIR 1967 SC 1, (1973) 4 SCC 225. A policy certainly 

cannot be axed for its alleged failure to comply with any of the 

provisions of Part IV. Neither can the courts charter a course, merely on 

the strength of the provisions of the said Part of the Constitution, if the 

effect thereof would be to lay down a policy. However, in a situation 

where the field is open and uncovered by any government policy, to 

guide and control everyday governmental action, surely, in the exercise 

of jurisdiction under Article142 of the Constitution, parameters can be 

laid down by this Court consistent with the objects enumerated by any 

of the provisions of Part IV. Such an exercise would be naturally timebound 

i.e. till the legislature or the executive, as the case may be, steps 

in to fulfil its constitutional role and authority by framing an appropriate 

policy.” 

18. In view of the aforesaid discussion, it is apparent that guidelines and 

directions can be issued by this Court including a command for compliance of 

guidelines and standard operating procedure issued by Government of India, 

Ministry of Road Transport and Highways, till such time as the legislature steps 

in to substitute them by proper legislation. This Court can issue such directions 

under Article 32 read with Article 142 to implement and enforce the guidelines 

which are necessary for protection of rights under Article 21 read with Article 14 

of the Constitution of India so as to provide immediate help to the victims of the 

accident and at the same time to provide protection to Good Samaritans. The 

guidelines will have the force of law under Article 141. By virtue of Article 144, it 

is the duty of all authorities – judicial and civil – in the territory of India to act in 

aid of this Court by implementing them. 

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19. We have carefully gone through the notification dated 12.5.2015. 

However, as per the guidelines contained in para13, the ‘acknowledgement’ if 

so desired by Good Samaritans, has to be issued as may be prescribed in a 

standard format by the State Government. In our opinion, till such time the 

format is prescribed, there should be no vacuum hence we direct that 

acknowledgement be issued on official letter-pad etc. and in the interregnum 

period, if so desired by Good Samaritan, mentioning the name of Samaritan, 

address, time, date, place of occurrence and confirming that the injured person 

was brought by the said Samaritan. 

19.1We have also gone through the notification dated 21.1.2016 with 

respect to the examination of Good Samaritan by the Police as contained in para 

2(vii) which we modify and be read in the following manner : 

“The affidavit of Good Samaritan if filed, shall be treated as complete 

statement by the Police official while conducting the investigation. In 

case statement is to be recorded, complete statement shall be recorded 

in a single examination.” 

19.2 Remaining guidelines in the notifications dated 12.5.2015 and 

21.1.2016 are approved and it is ordered that guidelines with aforesaid 

modifications made by us be complied with by the Union Territories and all the 

functionaries of the State Governments as law laid down by this Court under 

Article 32 read with Article 142 of the Constitution of India and the same be 

treated as binding as per the mandate of Article 141. 

847 


20. We also direct that the court should not normally insist on 

appearance of Good Samaritans as that causes delay, expenses and 

inconvenience. The concerned court should exercise the power to appoint the 

Commission for examination of Good Samaritans in accordance with the 

provisions contained in section 284 of the Code of Criminal Procedure, 1973 suo 

motu or on an application moved for that purpose, unless for the reasons to be 

recorded personal presence of good Samaritan in court is considered necessary. 

21. Affidavits have been filed on behalf of State of Tripura and State of


Orissa. They have issued the notification. However, the treatment shall not be 

less favourable than the one as provided in the aforesaid guidelines which are 

issued by the Ministry of Road Transport& Highways which have been made a 

part of this Order, and the guidelines issued by the state Governments in 

consonance thereof shall also be binding upon all concerned to be complied 

with scrupulously. However, it is clarified that guidelines in relation to 

protection of a Good Samaritan are without prejudice to the liability of the 

driver of a motor vehicle involved in a road accident as specified under section 

134 of the Motor Vehicles Act, 1988. 

22. We record our appreciation for the efforts made in formulating 

guidelines by all concerned, the members of Committee, concerned 

Department, learned Solicitor General and positive attitude of the counsel for 

the other parties who have readily agreed that guidelines be approved and be 

enforced as binding till appropriate legislative provisions are made. 

23. We also direct that the scheme framed by the Central Government 

848 


and this order be widely published through electronic media and print media for 

the benefit of public so that public is made aware and that serves as impetus to 

good Samaritans to extend timely help and protection conferred upon them 

without incurring the risk of harassment. 

24. In view of the aforesaid directions, the writ petition stands allowed. 

No order as to costs. 

Ss - 

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HARDEI – Appellant, 

Versus 

STATE OF U.P. – Respondent. 

Criminal appeal no. 186 OF 2016 [Arising out of S.L.P.(Crl.)No.3438 of 2014] 

Code of Criminal Procedure, Section 319 – Accused not named in FIR - It 

is well accepted in criminal jurisprudence that F.I.R. may not contain all 

the details of the occurrence or even the names of all the accused - It is 

not expected to be an encyclopedia even of facts already known - There 

are varieties of crimes and by their very nature, details of some crimes 

can be unfolded only by a detailed and expert investigation - This is 

more true in crimes involving conspiracy, economic offences or cases 

not founded on eye witness accounts - Case fixed for evidence and 

prosecution had already examined five witnesses - On the basis of 

evidence of prosecution witnesses recorded in the course of trial, it was 

urged involvement of MS and H had emerged and such materials were 

also available in the statement of concerned witnesses recorded under 

Section 161 of Criminal Procedure Code - The fact that Police chose not 

to send up a suspect to face trial does not affect power of the trial court 

under Section 319 of the Cr.P.C. to summon such a person on account of 

evidence recorded during trial. 

849 


JUDGMENT 

Shiva Kirti Singh, J. – (30 March, 2016) - This appeal is directed against 

order dated 29.01.2014 by the Hon’ble High Court of Judicature at Allahabad 

dismissing Criminal Revision No.2554/2013 preferred by the appellant seeking

850 



relief against order dated 09.07.2013 passed by the Chief Judicial Magistrate, 

Amroha, the trial Court, summoning the appellant, in exercise of power under 

Section 319, Code of Criminal Procedure, to face trial in Sessions Trial No.9191 

of 2010 (State Vs. Omkar & Ors.) arising out of Case Crime No.1364 of 2010 

under Sections 420/467/468/471/409, IPC pertaining to Police Station Amadpur, 

District Amroha, Uttar Pradesh. 

2. Before adverting to the rival submissions, the relevant facts may be 

noted in brief. The FIR bearing No. 53 of 2010 leading to this case was lodged on 

20th July 2010 by R.D. Sharma, the Project Director of a scheme under the 

Mahatma Gandhi National Rural Employment Guarantee Act (hereinafter 

referred to as ‘MNREGA’ Scheme). One Rahul Yadav, a Junior Clerk in the 

Amroha Block Office and one Omkar Singh were named as accused with 

allegation that they had, as per enquiry report, prima facie embezzled an 

amount to the tune of Rs.49 Lacs from official account for the MNREGA Scheme, 

thereby attracting offence under Section 409 IPC. 

3. In the Special Leave Petition there is reference to another FIR bearing 

No. 50 of 2010 dated 16th July, 2010 lodged by one Mr. Muneshwar Singh, 

Block Development Officer, Gangeshwari, (J.P. Nagar). In this FIR the same Rahul 

Yadav, Junior Clerk alone has been named as an accused with allegation of 

cheating and embezzlement in respect of an amount of Rs.25 lacs of MNREGA. 

However, in course of further hearing it was made clear by learned counsel for 

the appellant that the present proceeding does not arise from this FIR and the 

whole purpose of annexing a copy of this FIR was to draw attention of this Court 

to allegations to the affect that the appellant although signed cheques for 

withdrawal of money from MNREGA account, she was innocent and had been 

cheated by Rahul Yadav. 

4. The written notes of arguments on behalf of the appellant also clarify 

that the instant proceedings arise only out of FIR No. 53 of 2010 leading to 

Crime No. 1364 of 2010. The first charge-sheet dated 3.10.2010 was only 

against Omkar Singh and the other was filed subsequently against accused 

Rahul Yadav, after he surrendered. 

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5. The criminal case progressed as Trial No. 9191 of 2010 and after some 

witnesses had been examined, an application under Section 319 of the Code of 

Criminal Procedure was filed by the Prosecution on 4.7.2013. The application 

discloses that the case was fixed for evidence and prosecution had already 

examined five witnesses including PW-1, R.D. Sharma. On the basis of evidence 

of prosecution witnesses recorded in the course of trial, it was urged in the 

application that involvement of Muneshwar Singh, the then Block Development 

Officer and the appellant Smt. Hardei, the then Block Pramukh of Kshetra 

Panchayat, Gangeshwari had emerged and such materials were also available in 

the statement of concerned witnesses recorded under Section 161 of Criminal 

Procedure Code. The prayer to summon both of them under Section 319 Cr.P.C. 

was considered by the learned Chief Judicial Magistrate, Amroha. He, after 

noticing in particular the statement made by R.D. Sharma as P.W.1, came to the 

conclusion that prima facie offence was made against both the proposed 

accused and hence the application was allowed by order passed on 9th July, 

2013. As already noticed, the High Court affirmed the order of the Magistrate by 

rejecting Criminal Revision preferred by the appellant on 29.1.2014 and that 

order has given rise to the present appeal. 

6. Mr. R. K. Kapoor, learned counsel for the appellant has relied heavily 

upon the fact that the appellant was not named as an accused in the FIR nor any 

charge-sheet was submitted against her after completion of investigation. He 

further submitted that the amount has been embezzled mainly by accused 

Rahul Yadav and Omkar Singh and therefore, the defence of the appellant that 

she was illiterate lady who does not know even to sign much less reading or 

writing should have been accepted by the Magistrate and the High Court. It was 

pointed out that in the FIR lodged by co-accused Muneshwar Singh against 

Rahul Yadav, the defence of the appellant was clearly spelt out. 

7. Learned counsel for the State of U.P., on the other hand supported 

the summoning order of Chief Judicial Magistrate as well as the order under 

appeal by the High Court. According to him, there is no denial of the fact that 

along with Muneshwar Singh, this appellant was the cosignatory and only with 

851 


852 



their signatures money could be withdrawn from the MNREGA account; 

therefore, in such a situation the statement emerging from the deposition of 

the complainant/informant R.D. Sharma, P.W.1 that amounts used to be 

withdrawn jointly by the appellant and the Muneshwar Singh, the Block 

Development Officer and hence they are also answerable for the embezzlement 

of the concerned amount could not have been ignored at the present stage in 

anticipation of defence of the appellant that she is illiterate and cannot sign her 

name and that she was duped or cheated by co-accused Rahul Yadav. 

8. Having given our anxious consideration to the rival submissions, we 

find no good reason to interfere with the order under appeal. 

9. It is well accepted in criminal jurisprudence that F.I.R. may not 

contain all the details of the occurrence or even the names of all the accused. It 

is not expected to be an encyclopedia even of facts already known. There are 

varities of crimes and by their very nature, details of some crimes can be 

unfolded only by a detailed and expert investigation. This is more true in crimes 

involving conspiracy, economic offences or cases not founded on eye witness 

accounts. The fact that Police chose not to send up a suspect to face trial does 

not affect power of the trial court under Section 319 of the Cr.P.C. to summon 

such a person on account of evidence recorded during trial. This is the factual 

scenario in the case at hand also. 

10. It would not be proper for us to deal with detailed merits of the 

prosecution case or the defence case at this juncture. Hence, while dismissing 

the appeal, we make it clear that the observations made in the impugned orders 

or this order shall not have any adverse effect on the case of either of the 

parties. It is also made clear that the appellant shall be at liberty to take all the 

defence available to her, in accordance with law, in course of the trial. The 

appeal stands dismissed with the aforesaid observations. 

Ss - 

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RAGHAVENDRA SWAMY MUTT – Appellant, 

Versus 

UTTARADI MUTT - Respondent. 

Civil Appeal No.3190 Of 2016 (Arising out of S.L.P. (Civil) No. 6662 of 2016) 

(i) Civil Procedure Code, 1908 (V of 1908) Section 100 - High Court has 

not yet admitted the matter - No substantial question of law has been 

formulated as it could not have been when the appeal has not been 

admitted - We say so, as appeal under Section 100 CPC is required to be 

admitted only on substantial question/questions of law - It cannot be 

formal admission like an appeal under Section 96 CPC - That is the 

fundamental imperative - It is peremptory in character, and that makes 

the principle absolutely cardinal - Civil Procedure Code, 1908 (V of 1908) 

Section 96. [Para 18] 

853 


(ii) Civil Procedure Code, 1908 (V of 1908) Section 100, Order XLI Rule 

5(3) - Whether the High Court without admitting the second appeal 

could have entertained IA filed seeking interim relief - Solely because 

the Court has the jurisdiction to pass an ex parte order, under Order XLI 

Rule 5(3), it does not empower it not to formulate the substantial 

question of law for the purpose of admission, defer the date of 

admission and pass an order of stay or grant an interim relief. 

Held, 

Submission of the learned senior counsel for the appellant is that Order XLI Rule 

5 confers jurisdiction on the High Court while dealing with an appeal under 

Section 100 CPC to pass an ex parte order and such an order can be passed

854 



deferring formulation of question of law in grave situations. Be it stated, for 

passing an ex parte order the Court has to keep in mind the postulates provided 

under sub-rule (3) of Rule 5 of Order XLI. It has to be made clear that the Court 

for the purpose of passing an ex parte order is obligated to keep in view the 

language employed under Section 100 CPC. It is because formulation of 

substantial question of law enables the High Court to entertain an appeal and 

thereafter proceed to pass an order and at that juncture, needless to say, the 

Court has the jurisdiction to pass an interim order subject to the language 

employed in Order XLI Rule 5(3). It is clear as day that the High Court cannot 

admit a second appeal without examining whether it raises any substantial 

question of law for admission and thereafter, it is obliged to formulate the 

substantial question of law. Solely because the Court has the jurisdiction to pass 

an ex parte order, it does not empower it not to formulate the substantial 

question of law for the purpose of admission, defer the date of admission and 

pass an order of stay or grant an interim relief. That is not the scheme of CPC 

after its amendment in 1976 and that is not the tenor of precedents of this 

Court. [Para 23] 

JUDGMENT 

Dipak Misra, J. – (March 30, 2016) - The present appeal, by special leave, 

assails the order dated 11.02.2016 passed by the learned Single Judge of the 

High Court of Karnataka at Dharwad in I.A. No.1 of 2016 in RSA No.100446 of 

2015 whereby he has vacated the interim order dated 16.12.2015 passed in I.A. 

No.1 of 2015. 

2. The facts for the purpose of adjudication of the present appeal need to be 

stated in brief. The respondent, Uttaradi Mutt, filed O.S. No.193/1992 in the 

Court of Civil Judge, Koppal but in due course the said suit was transferred to 

the Court of Additional Civil Judge, Gangavati and was registered as O.S. 

No.74/2010. The suit was filed by the plaintiff-respondent for the relief(s) for 

perpetual injunction for restraining the defendant-Mutt, its agents, servants, 

devotees, etc., from entering upon the suit schedule property or interfering 

with its possession and enjoyment of the suit property and/or interfering or 

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disturbing with the performance of annual "Aradhana" of His Holiness Sri 

Padmanabha Teertharu, Sri Kavindra Teertharu and Sri Vageesha Teertharu. The 

suit preferred by the plaintiff was dismissed. 

3. The judgment and decree passed in the suit was assailed before the Principal 

Civil Judge, Senior Division, Gangavati and eventually by virtue of the order 

passed by this Court in Special Leave Petition (Civil) No. 20346 of 2014, it stood 

transferred to the Court of Civil Judge, Senior Division, Dharwad and numbered 

as R.A. No.123/2014. The first appellate Court allowed the appeal in part. The 

appellate Court restrained the present appellant from interfering with the 

plaintiff/respondent Mutt's possession and enjoyment of suit property subject 

to the right of the defendant Mutt to perform Adradhanas and Poojas of the 

Vrindavanas at Navavrindavanagatti. 

4. After the appeal was disposed of, the respondent filed execution 

petition, E.P. No.122/2015 before the Principal Civil Judge, Junior Division, 

Gangavati. The executing court passed certain orders on 10.12.2015. In the 

meantime, the appellant, being grieved by the order in the Regular Appeal, had 

preferred RSA No.100446/2015. As the order passed by the executing court 

affected certain rights of the appellant, it filed IA No.1 of 2015 seeking 

temporary injunction against the respondent. Be it stated, the respondent had 

filed a caveat which was defective but it was allowed to represent through the 

counsel when the IA No.1 of 2015 was argued. As is discernible from the 

narration of facts, the executing court had directed the Deputy Superintendent 

of Police, Gangavati to give police protection to the decree-holder for 

possession and enjoyment of the suit scheduled property and preventing the 

judgment-debtor from trespassing into the suit property violating the decree in 

RA No.123/2014. 

855 


5. When the matter stood thus, IA No.1 of 2015 was taken up by the High 

Court. The learned Single Judge, while considering the interlocutory application 

for injunction, passed the following order:- 

"List this matter on 20.01.2016 for filing of objections to I.A.1/2015 and


2/15. In the meanwhile, registry to secure the LCR from both the courts 

below. The same should reach this court on or before 16.01.2016. 

However, it is made clear that the appellant, who is defendant in O.S., 

and respondent who is plaintiff in the O.S., shall have their right to 

perform pooja on regular basis without staking claim with respect to 

disputed land, which shall be subject to out come of this appeal." 

6. As is manifest, the respondent filed objections to I.A. No. 1/2015 and 

also filed I.A. No.1/2016 for vacation of the interim order. I.A. No.1/2016 was 

taken up by the learned Single Judge who referred to Order XXXIX Rule 3-A of 

the Code of Civil Procedure (CPC), the authority in A. Venkatasubbiah Naidu v. S. 

Chellappan & others, AIR 2000 SC 3032, noted the contentions advanced by the 

learned counsel for the parties, adverted to the litigations that had been taken 

recourse to by both sides, acquainted itself with the earlier order passed by the 

High Court and came to hold thus :- 

"On a reading of the aforesaid order it becomes clear that the interim 

856 


application filed by the appellant along with the appeal before this Court 

had to be considered independently and on its own merits. But, in the 

instant case what has happened is that this Court, without issuing notice 

to the respondent in the second appeal has granted an interim order 

which is to be in operation till the end of the appeal. It is not known as 

to whether the appellant had satisfied the Court on any substantial 

question of law that would arise in the matter as the matter was listed 

for admission." 

7. After so stating, the High Court opined that the principle stated in Order 

XXXIX Rule 3 had not been followed, notice to the respondent had not been 

issued although permission was granted to the counsel to raise objections and 

further delved into the distinction between an appeal under Section 100 CPC 

and the regular first appeal, and in the ultimate eventuate, concluded thus:- 

"If notice to respondent was to be dispensed with prior to grant of an ad 

interim order till the conclusion of the second appeal then reasons for 

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doing so had to be recorded. But the interim order which is sought to be 

vacated is bereft of any reason. I am of the view that on this short 

ground alone order dated 16.12.2015 has to be vacated as there are 

procedural irregularities in the grant of the ad interim order. Secondly, it 

is also not known at this point of time as to whether, the order passed 

by this Court in M.F.A. no.21690/2012 was brought to the notice of this 

Court by the appellant or not before the interim order was passed. 

In view of the above, the application I.A. no.1/2016 for vacating 

interim order dated 16.12.2015 is allowed. Order dated 16.12.2015 

stands vacated. The appellant to seek any date for admission of the 

matter and after hearing learned counsel for the appellant on admission 

of the appeal, this Court to consider I.A. no. 1/2015 afresh. All 

contentions on both sides on I.A. No.1/2015 are kept open." 

8. When the matter was taken up on 18.03.2016, this Court, after hearing 

the learned counsel for the parties, had passed the following order :- 

"Having heard learned counsel for the parties, as an interim measure, it 

is directed that the petitioner, Sri Raghavendra Swamy Mutt, is 

permitted to do 'aradhana' from 24 th to 26 th March, 2016 and not a day 

prior to that or beyond that. Needless to say, no equity shall be claimed 

by the petitioner on the basis of this order. That apart, the present 

arrangement shall be restricted to this occasion only." 

857 


9. We had, at that time, blissfully perceived being under the impression 

that "Aradhana" is a yearly event, that request to the High Court to dispose of 

the second appeal could sub-serve the cause of justice, but the learned counsel 

for the parties apprised us that it is a monthly affair. Ergo, we have heard Dr. 

Rajiv Dhawan and Mr. R.Venkataramani, learned senior counsel for the 

appellant and Mr. Fali S. Nariman, learned senior counsel for the respondent. 

10. It is submitted by Dr. Dhawan and Mr. Venkataramani, learned senior 

counsel, that the High Court was not justified in vacating the order of stay on 

the grounds it has done, for the principle of Order XXXIX Rule 3-A is not


applicable when the appellant had prayed for stay and passing of interim 

orders. It is urged by them that the respondent had entered caveat which was 

defective in nature but it had participated in the hearing and, therefore, the 

interim order could not be regarded as an ex parte order. Learned senior 

counsel appearing for the appellant would further submit that when the 

judgment and decree passed in the regular appeal is demonstrably 

unsustainable, the High Court should have maintained the order of stay and 

finally disposed of I.A. No.1/2015 and should not have entertained I.A. 

No.1/2016 seeking vacation of the order of stay. It has been highlighted that the 

language employed in Section 100 CPC though stipulates that appeal is to be 

entertained on substantial question of law involved in the case, it does not bar 

the High Court to pass an ad interim order in a grave situation and that is the 

basic purport of Order XLI Rule 5 and Order XLII CPC. 

11. Combating the aforesaid submissions, it is urged by Mr. Nariman, learned 

senior counsel appearing for the respondent that the interim order passed by 

858 


the High Court in I.A. No.1/2015 from all angles is an ex parte order, for 

adjournment was sought on behalf of respondent to argue the matter but the 

same was declined. Learned senior counsel would propone that passing an 

order of stay or issuing an order of injunction in a second appeal is quite 

different than an interim order passed in a regular first appeal preferred under 

Section 96 CPC. It is canvassed by him that formulation of substantial question 

of law by the Court under Section 100 CPC is an imperative to proceed with the 

appeal and the Court cannot proceed unless the condition precedent is satisfied 

and in such a situation, the question of passing any interim order or granting 

any interim relief does not arise. Mr. Nariman has drawn support from a two- 

Judge Bench decision in Ram Phal v. Banarsi & Ors., (2003) 11 SCC 762. 

12. To appreciate the controversy, it is seemly to refer to Section 100 CPC. It 

reads as follows:- 

"Section 100. Second appeal.— 

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(1) Save as otherwise expressly provided in the body of this Code or 

by any other law for the time being in force, an appeal shall lie to the 

High Court from every decree passed in appeal by any Court 

subordinate to the High Court, if the High Court is satisfied that the case 

involves a substantial question of law. 

(2) An appeal may lie under this section from an appellate decree 

passed ex-parte. 

(3) In an appeal under this section, the memorandum of appeal shall 

precisely state the substantial question of law involved in the appeal. 

(4) Where the High Court is satisfied that a substantial question of law 

is involved in any case, it shall formulate that question. 

(5) The appeal shall be heard on the question so formulated and the 

respondent shall, at the hearing of the appeal, be allowed to argue that 

the case does not involve such question : 

Provided that nothing in this sub-section shall be deemed to take away 

or abridge the power of the Court to hear, for reasons to be recorded, 

the appeal on any other substantial question of law, not formulated by 

it, if it is satisfied that the case involves such question." 

859 


13. Section 101 CPC reads as under:- 

"Section 101. Second appeal on no other grounds.—No second appeal 

shall lie except on the ground mentioned in section 100." 

14. A plain reading of Section 100 CPC makes it explicit that the High Court 

can entertain a second appeal if it is satisfied that the appeal involves a 

substantial question of law. More than a decade and a half back, in Ishwar Dass 

Jain v. Sohan Lal, (2000) 1 SCC 434 it has been ruled that after the 1976 

Amendment, it is essential for the High Court to formulate a substantial 

question of law and it is not permissible to reverse the judgment of the first 

appellate court without doing so. 

15. In Roop Singh v. Ram Singh, (2000) 3 SCC 708 the Court had to say 

thus:-


"It is to be reiterated that under Section 100 CPC jurisdiction of the High 

Court to entertain a second appeal is confined only to such appeals 

which involve a substantial question of law and it does not confer any 

jurisdiction on the High Court to interfere with pure questions of fact 

while exercising its jurisdiction under Section 100 CPC." 

16. In Municipal Committee, Hoshiarpur v. Punjab SEB & Others, 

(2010) 13 SCC 216 it has been categorically laid down that the existence of a 

substantial question of law is a condition precedent for entertaining the second 

appeal and on failure to do so, the judgment rendered by the High Court is 

unsustainable. It has been clearly stated that existence of a substantial question 

of law is the sine qua non for the exercise of jurisdiction under the provisions of 

Section 100 CPC. 

17. In Umerkhan v. Bismillabi alias Babulal Shaikh and others (2011) 9 SCC 684 

a two-Judge Bench was constrained to ingeminate the legal position thus:- 

"In our view, the very jurisdiction of the High Court in hearing a second 

860 


appeal is founded on the formulation of a substantial question of law. 

The judgment of the High Court is rendered patently illegal, if a second 

appeal is heard and judgment and decree appealed against is reversed 

without formulating a substantial question of law. The second appellate 

jurisdiction of the High Court under Section 100 is not akin to the appellate 

jurisdiction under Section 96 of the Code; it is restricted to such 

substantial question or questions of law that may arise from the judgment 

and decree appealed against. As a matter of law, a second appeal 

is entertainable by the High Court only upon its satisfaction that a 

substantial question of law is involved in the matter and its formulation 

thereof. Section 100 of the Code provides that the second appeal shall 

be heard on the question so formulated. It is, however, open to the 

High Court to reframe substantial question of law or frame substantial 

question of law afresh or hold that no substantial question of law is involved 

at the time of hearing the second appeal but reversal of the 

judgment and decree passed in appeal by a court subordinate to it in 

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exercise of jurisdiction under Section 100 of the Code is impermissible 

without formulating substantial question of law and a decision on such 

question." 

18. In the instant case, the High Court has not yet admitted the matter. It is not 

in dispute that no substantial question of law has been formulated as it could 

not have been when the appeal has not been admitted. We say so, as appeal 

under Section 100 CPC is required to be admitted only on substantial 

question/questions of law. It cannot be formal admission like an appeal under 

Section 96 CPC. That is the fundamental imperative. It is peremptory in 

character, and that makes the principle absolutely cardinal. The issue that arises 

for consideration is; whether the High Court without admitting the second 

appeal could have entertained IA No. 1/2015 which was filed seeking interim 

relief. In Ram Phal (supra), from which Mr. Nariman, learned senior counsel has 

drawn immense inspiration, the two-Judge Bench was dealing with a case 

where the High Court had granted an interim order by staying the execution of 

the decree but had not framed the substantial question of law. In that context, 

the Court held: 

"... However, the High Court granted interim order by staying the 

861 


execution of the decree. It is against the said order granting interim 

relief the respondent in the second appeal has preferred this appeal. 

This Court, on a number of occasions, has repeatedly held that the High 

Court acquires jurisdiction to decide the second appeal or deal with the 

second appeal on merits only when it frames a substantial question of 

law as required to be framed under Section 100 of the Civil Procedure 

Code. In the present case, what we find is that the High Court granted 

interim order and thereafter fixed the matter for framing of question of 

law on a subsequent date. This was not the way to deal with the matter 

as contemplated under Section 100 CPC. The High Court is required to 

frame the question of law first and thereafter deal with the matter. 

Since the High Court dealt with the matter contrary to the mandate 

enshrined under Section 100 CPC, the impugned order deserves to be


set aside." 

19. To meet the reasoning in the aforequoted passage, Dr. Dhawan and Mr. 

Venkataramani with resolute perseverance submitted that the decision in Ram 

Phal (supra) is distinguishable as it does not take note of Order XLI Rule 5 and 

Order XLII Rule 1 CPC. 

20. Order XLI Rule 5 reads as follows:- 

"5. Stay by appellate court.—(1) An appeal shall not operate as a stay 

of proceedings under a decree or order appealed from except so far as 

the appellate court may order, nor shall execution of a decree be stayed 

by reason only of an appeal having been preferred from the decree; but 

the appellate court may for sufficient cause order stay of execution of 

such decree. 

Explanation : An order by the Appellate Court for the stay of execution 

of the decree shall be effective from the date of the communication of 

such order to the court of first instance, but an affidavit sworn by the 

862 


appellant, based on his personal knowledge, stating that an order for 

the stay of execution of the decree has been made by the Appellate 

Court shall, pending the receipt from the Appellate Court of the order 

for the stay of execution or any order to the contrary, be acted upon by 

the court of first instance. 

(2 ) Stay by court which passed the decree.— 

Where an application is made for stay of execution of an appealable 

decree before the expiration of the time allowed for appealing 

therefrom, the court which passed the decree may on sufficient cause 

being shown order the execution to be stayed. 

(3) No order for stay of execution shall be made under sub-rule (1) or 

sub-rule (2) unless the court making it is satisfied— 

(a) that substantial loss may result to the party applying for stay of 

execution unless the order is made; 

(b) that the application has been made without unreasonable delay; and 

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(c) that security has been given by the applicant for the 

due performance of such decree or order as may ultimately be 

binding upon him. 

(4) Subject to the provisions of sub-rule (3), the court may make an ex 

parte order for stay of execution pending the hearing of the 

application. 

(5) Notwithstanding anything contained in the foregoing sub-rules, 

where the appellant fails to make the deposit or furnish the security 

specified in sub-rule (3) of Rule 1, the court shall not make an order 

staying the execution of the decree." 

21. Order XLII Rule 1 that occurs under the Heading "Appeals From 

Appellate Decrees" is as follows:- 

"1. Procedure.— The rules of Order XLI shall apply, so far as may be, to 

appeals from appellate decrees." 

22. In this context, it is useful to refer to Order XLII Rule 2 which has been 

inserted by Act 104 of 1976 with effect from 01.02.1977. It provides as under:- 

"2. Power of court to direct that the appeal be heard on the question 

formulated by it . — At the time of making an order under rule 11 of 

Order XLI for the hearing of a second appeal, the court shall formulate 

the substantial question of law as required by section 100, and in doing 

so, the court may direct that the second appeal be heard on the 

question so formulated and it shall not be open to the appellant to urge 

any other ground in the appeal without the leave of the court, given in 

accordance with the provision of section 100." 

863 


23. Submission of the learned senior counsel for the appellant is that Order XLI 

Rule 5 confers jurisdiction on the High Court while dealing with an appeal under 

Section 100 CPC to pass an ex parte order and such an order can be passed 

deferring formulation of question of law in grave situations. Be it stated, for 

passing an ex parte order the Court has to keep in mind the postulates provided 

under sub-rule (3) of Rule 5 of Order XLI. It has to be made clear that the Court

864 



for the purpose of passing an ex parte order is obligated to keep in view the 

language employed under Section 100 CPC. It is because formulation of 

substantial question of law enables the High Court to entertain an appeal and 

thereafter proceed to pass an order and at that juncture, needless to say, the 

Court has the jurisdiction to pass an interim order subject to the language 

employed in Order XLI Rule 5(3). It is clear as day that the High Court cannot 

admit a second appeal without examining whether it raises any substantial 

question of law for admission and thereafter, it is obliged to formulate the 

substantial question of law. Solely because the Court has the jurisdiction to pass 

an ex parte order, it does not empower it not to formulate the substantial 

question of law for the purpose of admission, defer the date of admission and 

pass an order of stay or grant an interim relief. That is not the scheme of CPC 

after its amendment in 1976 and that is not the tenor of precedents of this 

Court and it has been clearly so stated in Ram Phal (supra). Therefore, the High 

Court has rectified its mistake by vacating the order passed in IA No. 1/2015 and 

it is the correct approach adopted by the High Court. Thus, the impugned order 

is absolutely impregnable. 

24. Having so concluded, we would have proceeded to record dismissal of 

the appeal. But in the obtaining facts and circumstances, we request the High 

Court to take up the second appeal for admission and, if it finds that there is a 

substantial question of law involved, proceed accordingly and deal with IA No. 

1/2015 as required in law. Needless to say, the interim order passed by this 

Court on earlier occasion should not be construed as an expression of any 

opinion from any count. It was a pure and simple ad interim arrangement. 

25. Resultantly, the appeal, being sans substance, stands dismissed with no 

order as to costs. 

Ss - 

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Present: Justice Madan B. Lokur and Justice N.V. Ramana. 

NARAYAN - Appellant, 

VERSUS 

BABASAHEB & Ors. - Respondents. 

Civil Appeal No. 3486 of 2016 arising out of Special Leave Petition (Civil) No. 

15966 of 2012 

(i) Limitation Act neither confers a right nor an obligation to file a Suit, if no 

such right exists under the substantive law - It only provides a period of 

limitation for filing the Suit. [Para 28] 

(ii) Principle of interpretation - It is well settled principle of interpretation that 

inconvenience and hardship to a person will not be the decisive factors while 

interpreting the provision - When bare reading of the provision makes it very 

clear and unequivocally gives a meaning it was to be interpreted in the same 

sense as the Latin maxim says "dulo lex sed lex", which means the law is hard 

but it is law and there cannot be any departure from the words of the law. 

865 


Held, 

The High Court as well as the Trial Court erred in applying Article 109 of the 

Limitation Act, where Article 109 of the Act clearly speaks about alienation 

made by father governed by Mitakshara law and further Courts below 

proceeded in discussing about the long rope given under Article 109 of the 

Limitation Act of 12 years and comparatively lesser time of 3 years specified 

under Article 60 of the Act. [Para 30] 

(iii) Limitation Act, Article 109 - Alienation made by mother of minors after 

death of father - After the death of the Father (2 nd defendant's husband)


automatically the Mother (2 nd defendant) becomes a natural guardian to her 

children - Finding that as she was not the guardian appointed on the day to 

alienate the Suit schedule property therefore Article 109 of the Act applies 

which gives 12 years limitation from the day the alienee takes possession of 

the property and the alienation made by the father of ancestral property of 

the Hindus who are governed by Mitakshara law, and that the Suit is well 

within limitation, cannot be sustained. [Para 20] 

(iv) Hindu Minority and Guardianship Act, 1956, Section 8(1), 8(2)(a) - A bare 

866 


reading of Section 8(1) of the Act indicates that it empowers the natural 

guardian to do all the acts which are necessary or reasonable or proper for the 

benefit of the minor - Section 8(2)(a) of the Act prescribes that either the 

purchaser or the seller should obtain the permission of the District Court to 

transfer the property by sale – Permission of court not taken at the time of 

alienation - Hence, the present transaction on the face of it is in contravention 

of the mandatory provisions laid down by the Act - When once a transaction 

takes place in the name of the minor which is in contravention of the 1956 Act 

and which is not done for legal necessity, such transaction is voidable and 

unless such a transaction is sought to be impeached or set aside, the question 

of recovery of possession of that property does not arise. [Para 23, 24, 25] 

(v) Limitation Act, Article 60 - Would indicate that it applies to Suits by a 

minor who has attained majority and further by his legal representatives 

when he dies after attaining majority or from the death of the minor - The 

broad spectrum of the nature of the Suit is for setting aside the transfer of 

immovable property made by the guardian and consequently, a Suit for 

possession by avoiding the transfer by the guardian in violation of Section 8(2) 

of the 1956 Act - In essence, it is nothing more than seeking to set aside the 

transfer and grant consequential relief of possession - There cannot be any 

doubt that a Suit by quondam minor to set aside the alienation of his property 

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by his guardian is governed by Article 60 - To impeach the transfer of 

immovable property by the Guardian, the minor must file the Suit within the 

prescribed period of three years after attaining majority - We are of the 

considered opinion that a quondam minor plaintiff challenging the transfer of 

an immovable property made by his guardian in contravention of Section 

8(1)(2) of the 1956 Act and who seeks possession of property can file the Suit 

only within the limitation prescribed under Article 60 of the Act and Articles 

109, 110 or 113 of the Act are not applicable to the facts of the case. 

[Para 26, 27, 29] 

(vi) Limitation Act, Section 7, Article 60 - A reading of Section 7 makes it clear 

that when one of several persons who are jointly entitled to institute a Suit or 

make an application for the execution of the decree and a discharge can be 

given without the concurrence of such person, time will run against all of them 

but when no such discharge can be given, time will not run against all of them 

until one of them becomes capable of giving discharge - In the case on hand at 

the time of the filing of the suit, the 1 st plaintiff was 20 years old, the 2 nd 

Plaintiff was still a minor and the plaintiffs 3, 4 and 5, who are married 

daughters, were aged 29, 27 and 25 respectively, on the date of institution of 

the Suit - As per Explanation 2 of Section 7, the manager of a Hindu undivided 

family governed by Mithakshara law shall be deemed to be capable of giving a 

discharge without concurrence of other members of family only if he is in 

management of the joint family property - In this case, plaintiffs 3 to 5 though 

majors as on the date of institution of Suit will not fall under Explanation 2 of 

Section 7 of the Limitation Act as they are not the manager or Karta of the 

joint family - The first plaintiff was 20 years old as on the date of institution of 

the Suit - Suit is instituted well within three years of limitation from the date 

of attaining majority as envisaged under Article 60 of the Limitation Act. 

867 



Limitation Act Section 7, Articles 60, 109, 110 and 113 

Hindu Minority and Guardianship Act, 1956, Section 8(1), 8(2)(a) - 

Facts: 

868 


Plaintiffs 1 and 2 are the real brothers and the 2 nd plaintiff, being minor, 

is under the guardianship of plaintiff No.1. Plaintiff Nos.3 to 5 are the real 

sisters, whereas defendant No.2 is their mother and the defendant No.1 is the 

purchaser in whose favour defendant No.2 alleged to have executed the sale 

deeds dated 20.01.1982 and 28.11.1988 which were sought to be set aside. 

Father was the original owner of the Suit schedule property which is ancestral 

property. He died in the year 1972 leaving behind him his two sons, four 

daughters and the widow i.e. the 2 nd defendant. After the death of their father, 

the 2 nd defendant, who is alleged to be a person of loose character, left the 

matrimonial home and remarried. The father of the plaintiffs, during his 

lifetime, performed the marriage of plaintiff Nos.3 and 4 and the marriage of 

the 5 th plaintiff was performed by the1 st plaintiff. The 2 nd defendant, without 

there being any legal necessity, has alienated the property for a meager amount 

of Rs.6,000/- when the surrounding lands were fetching an amount of 

Rs.15,000/-. At the time of execution of the second sale deed, though the 1 st 

plaintiff was major, he was shown as minor. It is stated that as the 2 nd defendant 

was never taking care of them at any point of time and staying with some other 

person, she cannot be termed as a guardian. It was pleaded that the 1 st 

defendant, without paying any consideration, in active connivance with the 2 nd 

defendant, has got the sale deed registered with an intention to defraud the 

interest of the minors. At the time of the filing of the suit 1 st plaintiff was aged 

20 years, the 2 nd plaintiff was minor and plaintiffs 3, 4 and 5 were aged 29, 27 

and 25 years respectively. 

JUDGMENT 

N.V. Ramana, J. – (April 5, 2016) - Leave granted. 

2. The appellant is before us aggrieved by the Judgment and decree 

passed by the High Court of Bombay, Bench at Aurangabad, dated 5.10.2011 in 

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Second Appeal No.213 of 2004 wherein and whereby the High Court has 

confirmed the judgment and decree of the Courts below. 

3. This Court, while issuing notice on 27 th April, 2012, has passed the 

following order: 

"Delay condoned. 

Issue notice returnable in ten weeks limited to the question as 

to whether the Suit filed in the year 1989 with regard to the sale deed 

dated January 20, 1982 was within limitation. 

Dasti, in addition to the ordinary process. 

In the meanwhile, the parties shall maintain status quo with 

regard to the property which is subject matter of the sale deed dated 

January 20, 1982." 

4. In the light of the order passed by this Court on 27.04.2012, we are 

confining ourselves only to the question as to whether the Suit filed in the year 

1989 in respect of a sale deed dt. 20.01.1982 is well within limitation or barred 

by limitation. 

5. The appellant before us is the 1 st defendant in the Suit. Respondents 1 

to 5 are the plaintiffs and the 6 th respondent is defendant no.2. For the purpose 

of convenience, the parties are referred as they are before the trial Court. 

869 


6. The brief facts which are necessary for proper appreciation of the 

dispute between the parties in nutshell are as follows: 

The plaintiff/respondents 1 to 5 filed Reg. Civil Suit No.12 of 1989 

against the 1 st defendant (appellant herein) and 2 nd defendant (respondent No. 

6). The Suit was filed seeking the relief of partition and for a declaration that the 

sale deed dated 20.01.1982 and 28.11.1988 executed by defendant No.2 in 

favour of defendant No.1 are not binding and to set aside the same and also for 

recovery of possession of the Suit schedule property and for mesne profits. 

7. The brief averments of the plaint are that the plaintiffs 1 and 2 are the 

real brothers and the 2 nd plaintiff, being minor, is under the guardianship of 

plaintiff No.1. Plaintiff Nos.3 to 5 are the real sisters, whereas defendant No.2 is


their mother and the defendant No.1 is the purchaser in whose favour 

defendant No.2 alleged to have executed the sale deeds dated 20.01.1982 and 

28.11.1988 which are sought to be set aside and defendant No.3 is another 

sister who is married about 12 years back and whose whereabouts are not 

known to the plaintiffs. The 3 rd defendant is later impleaded. 

8. It is the specific case of the plaintiffs that their father is the original 

owner of the Suit schedule property which is ancestral property. He died in the 

year 1972 leaving behind him his two sons, four daughters and the widow i.e. 

the 2 nd defendant. After the death of their father, the 2 nd defendant, who is 

870 


alleged to be a person of loose character, left the matrimonial home and 

married one Begaji. The father of the plaintiffs, during his lifetime, performed 

the marriage of plaintiff Nos.3 and 4 and the marriage of the 5 th plaintiff was 

performed by the1 st plaintiff. The 2 nd defendant, without there being any legal 

necessity, has alienated the property for a meager amount of Rs.6,000/- when 

the surrounding lands were fetching an amount of Rs.15,000/-. At the time of 

execution of the second sale deed, though the 1 st plaintiff was major, he was 

shown as minor. It is stated that as the 2 nd defendant was never taking care of 

them at any point of time and staying with some other person, she cannot be 

termed as a guardian. The 1 st defendant, without paying any consideration, in 

active connivance with the 2 nd defendant, has got the sale deed registered with 

an intention to defraud the interest of the minors. It is further pleaded that as 

on the date of execution of the second sale deed, the land fetches an amount of 

Rs.20,000/- per acre, apart from that as the 1 st defendant is in possession of the 

property, they are entitled to mesne profits at the rate of Rs.2,000/- per annum 

from the date of taking over possession by the 1 st defendant till the date of 

recovery of possession. 

9. The defendants filed the written statement resisting the claim of the 

plaintiffs by denying the averments in the plaint and put forth their case stating 

that the 2 nd defendant sold the Suit schedule property for the purpose of legal 

necessity. She had the responsibility of getting her daughters married, 

maintaining the large family and under those circumstances she was compelled 

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to sell the property and further the consideration received was also adequate 

and as such the sale deeds are binding on the plaintiffs. The 2 nd defendant took 

the objection that one of her daughters was not made as a party to the Suit as 

such Suit requires to be dismissed for non-joinder of proper and necessary 

parties and accordingly sought for dismissal of the Suit. 

10. Later the 3 rd defendant was arrayed as a party to the Suit and in spite of 

the best efforts by the plaintiffs, the notice could not be served and it was 

reported that her whereabouts are not known for more than ten years. No 

written statement was filed on her behalf. 

11. The trial Court, after a full-fledged trial, has come to the conclusion that 

under Section 11 of the Hindu Minority and Guardianship Act, 1956 (for short 

'the 1956 Act') the sale made by the de facto guardian of the minor is void ab 

initio and is incapable of subsequent clarification in the absence of evidence to 

show that the transfer is made for legal necessity. Hence, the sale deeds are not 

binding on the plaintiffs and accordingly decreed the Suit holding that the 

plaintiffs are entitled to partition and separate possession of their share. 

Plaintiffs 1 and 2 are entitled to 7/12 th share and plaintiffs 3 to 5 are entitled to 

1/24 th each and the 2 nd defendant is entitled to 7/24 th share and plaintiffs are 

entitled for mesne profits. 

871 


13. Assailing the said judgment and decree, the 1 st defendant has filed 

RCA.No.120/1991 on the file of the District Judge, Parbhani. The issue of 

limitation was raised by the defendants before the 1 st appellate court 

contending that the Suit is barred by limitation as per Article 60 of the 

Limitation Act, 1963 (for short 'the Act') and as on the date of filing of the Suit, 

except the 2 nd plaintiff (Waman), all other plaintiffs are majors and hence the 

Suit ought to have been instituted within three years as envisaged by Article 60 

of the Act. It is further urged that the legal disability of 2 nd plaintiff (Waman) 

does not entitle other plaintiffs to institute the Suit after the prescribed period 

in the Act and relied upon Section 7 of the Act. As per the cause title in the 

plaint, as on the date of filing of the Suit, the Basing on the contentions, the 

appellate Court has come to the conclusion that Article 60 of the Act is not


applicable to the facts of the case as the 2 nd defendant is not the guardian 

appointed by the Court. Therefore, Article 109 of the Act, which prescribed 12 

years is applicable where the alienation made by the father of the ancestral 

property by the Hindus who are governed by the Mitakshara law and hence the 

Suit filed in the year 1989 is well within limitation. But however, the appellate 

court has modified the decree to the extent that the 1 st defendant is entitled to 

the share of the 2 nd defendant. 

14. The unsuccessful and unsatisfied 1 st defendant has approached the High 

Court of Bombay, Bench at Aurangabad by way of Second Appeal No.223/2004. 

The High Court has dismissed the appeal holding that Article 109 of the Act 

applies to the alienation made by the mother and Article 60 of the Act does not 

apply to the facts of the case and its application altogether is in a different 

eventuality and Section 109 of the Act applies to the facts of the case and the 

Suit is well within limitation. Against the said order, the present appeal is filed 

before this Court. 

872 


15. We are not inclined to go into any of the factual issues or otherwise 

which has attained finality and we are restraining ourselves to the limited 

question whether the Suit filed in the year 1989 for setting aside the sale deed 

dated 20.01.1982 is governed under which Article of the Limitation Act and 

whether the same is within limitation or not? 

16. We have heard the learned counsel on either side and given our anxious 

consideration to their submissions, to the relevant provisions of the Act and the 

material placed before us. 

17. It is argued on behalf of the appellant/1 st defendant that a challenge to 

the sale deed dated 20.01.1982 is barred by limitation as Article 60 of the Act 

applies to the facts of the case and the limitation is 3 years. It is contended by 

him that the Courts below have erroneously applied Article 109 and further 

Article 109 applies to cases where alienation was made by the father but in the 

case on hand, alienation was made by the mother. He further submitted that 

the interpretation of Articles under the Act is against the settled principles of 

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interpretation of statutes and when a provision is provided exclusively which 

deals with alienation made by father, the Courts below were not right in 

applying the same to the alienation made by the mother. It is for the first time 

contended before the Court that Article 110 of the Act applies but the provision 

will be applied only once the sale deed dated 20.01.1982 is set aside and sought 

for allowing the appeal. 

18. On the other hand, the learned counsel appearing on behalf of the 

respondents/plaintiffs has urged that Article 60 is applicable to cases where 

guardian sells exclusive property of minor but not joint family property. Further 

the residuary clause has no application as it will apply only when there is no 

other Article provided under the Act and he further stated that the case of the 

plaintiffs squarely falls under Article 110 of the Act and as such the Suit filed by 

the plaintiffs is well within the limitation and sought for dismissal of the appeal. 

19. In the light of the submission made by the counsel, before we proceed 

to deal with the main issue, it is appropriate to have a look at Section 7, Articles 

60, 109, 110 and 113 of the Act which read as follows: 

Section 7 : Disability of one of several persons: 

Where one of several persons jointly entitled to institute a 

Suit or make an application for the execution of a decree is under 

any such disability, and a discharge can be given without the 

concurrence of such person, time will run against them all; but, 

where no such discharge can be given, time will not run as against 

any of them until one of them becomes capable of giving such 

discharge without the concurrence of the others or until the 

disability has ceased. 

873 


Explanation I: This section applies to a discharge from every 

kind of liability, including a liability in respect of any immovable 

property; 

Explanation II: For the purpose of this section, the manager 

of a Hindu undivided family governed by the Mitakshara law shall


be deemed to be capable of giving a discharge without the 

concurrence of the other members of the family only if he is in 

management of the joint family property. 

Articles 60, 109, 110, 113 of the Act:- 

60. To set aside a 

transfer of property 

made by the 

guardian of a ward 

(a) by the ward who 

Three years 

When the ward 

has attained 

attains majority. 

majority; 

(b) by the ward’s 

legal 

representative- 

874 


(i) When the ward 

dies within three 

years from the date 

Three years 

When the ward 

attains majority. 

of attaining 

majority; 

(ii) When the ward 

Three years 

When the ward 

dies before 

dies. 

attaining majority. 

109. By a Hindu 

Twelve years 

The date of the 

governed by 

dispossession or 

Mitakshara law to 

discontinuance. 

set aside his 

father’s alienation 

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of ancestral 

property. 

110. By a person 

excluded from a 

joint family property 

to enforce a right to 

share therein. 

113. Any Suit for 

which no period of 

limitation is 

provided elsewhere 

in this Schedule. 

Twelve years 

Three years 

When the exclusion 

becomes known to 

the plaintiff. 

When the right to 

sue accrues. 

19. Before we venture to discuss the applicability of Section 7 of the Act 

which deals with disability of one of several persons, we have to bestow our 

attention to the Articles which are applicable to the facts of the case. 

20. In the case on hand, there cannot be any dispute about the fact that 

after the death of the 2 nd defendant's husband automatically the 2 nd defendant 

becomes a natural guardian to her children. On this, the finding of the lower 

appellate court, that as she was not the guardian appointed on the day to 

alienate the Suit schedule property therefore Article 109 of the Act applies 

which gives 12 years limitation from the day the alienee takes possession of the 

property and the alienation made by the father of ancestral property of the 

Hindus who are governed by Mitakshara law, and that the Suit is well within 

limitation, cannot be sustained. 

875 


21. Even the High Court has proceeded on the same notion that Article 60 

of the Act applies where the ward files a Suit after attaining majority, for setting 

aside transfer of property made by his guardian when he was minor.


22. The High Court has further observed that under Article 109 of the Act, a 

long rope is given to file the Suit to the plaintiff than a Suit filed by the plaintiff 

under Article 60 of the Act and the case of the plaintiff strictly falls under Article 

109 of the Act. 

23. A bare reading of Section 8(1) of the 1956 Act indicates that it 

empowers the natural guardian to do all the acts which are necessary or 

reasonable or proper for the benefit of the minor. Section 8(2)(a) of the 1956 

Act prescribes that either the purchaser or the seller should obtain the 

permission of the District Court to transfer the property by sale. 

24. Hence, the present transaction on the face of it is in contravention of 

the mandatory provisions laid down by the 1956 Act. 

25. When once a transaction takes place in the name of the minor which is 

in contravention of the 1956 Act and which is not done for legal necessity, such 

transaction is voidable and unless such a transaction is sought to be impeached 

or set aside, the question of recovery of possession of that property does not 

876 


arise. 

26. A close analysis of the language of Article 60 would indicate that it 

applies to Suits by a minor who has attained majority and further by his legal 

representatives when he dies after attaining majority or from the death of the 

minor. The broad spectrum of the nature of the Suit is for setting aside the 

transfer of immovable property made by the guardian and consequently, a Suit 

for possession by avoiding the transfer by the guardian in violation of Section 

8(2) of the 1956 Act. In essence, it is nothing more than seeking to set aside the 

transfer and grant consequential relief of possession. 

27. There cannot be any doubt that a Suit by quondam minor to set aside 

the alienation of his property by his guardian is governed by Article 60. To 

impeach the transfer of immovable property by the Guardian, the minor must 

file the Suit within the prescribed period of three years after attaining majority. 

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28. The Limitation Act neither confers a right nor an obligation to file a Suit, 

if no such right exists under the substantive law. It only provides a period of 

limitation for filing the Suit. 

29. Hence, we are of the considered opinion that a quondam minor plaintiff 

challenging the transfer of an immovable property made by his guardian in 

contravention of Section 8(1)(2) of the 1956 Act and who seeks possession of 

property can file the Suit only within the limitation prescribed under Article 60 

of the Act and Articles 109, 110 or 113 of the Act are not applicable to the facts 

of the case. 

30. The High Court as well as the Trial Court erred in applying Article 109 of 

the Act, where Article 109 of the Act clearly speaks about alienation made by 

father governed by Mitakshara law and further Courts below proceeded in 

discussing about the long rope given under Article 109 of the Act and 

comparatively lesser time specified under Article 60 of the Act. It is well settled 

principle of interpretation that inconvenience and hardship to a person will not 

be the decisive factors while interpreting the provision. When bare reading of 

the provision makes it very clear and unequivocally gives a meaning it was to be 

interpreted in the same sense as the Latin maxim says "dulo lex sed lex", which 

means the law is hard but it is law and there cannot be any departure from the 

words of the law. 

877 


31. Hence, in view of our above discussion, the limitation to file the present 

Suit is governed by Article 60 of the Act and the limitation is 3 years from the 

date of attaining majority. When once we arrive at a conclusion that Article 60 

of the Act applies and the limitation is 3 years, the crucial question is when 

there are several plaintiffs, what is the reckoning date of limitation? A reading 

of Section 7 makes it clear that when one of several persons who are jointly 

entitled to institute a Suit or make an application for the execution of the 

decree and a discharge can be given without the concurrence of such person, 

time will run against all of them but when no such discharge can be given, time 

will not run against all of them until one of them becomes capable of giving 

discharge.


32. In the case on hand, the 1 st plaintiff was 20 years old, the 2 nd 

defendant was still a minor and the plaintiffs 3, 4 and 5, who are married 

daughters, were aged 29, 27 and 25 respectively, on the date of institution of 

the Suit in the year 1989. As per Explanation 2 of Section 7, the manager of a 

Hindu undivided family governed by Mithakshara law shall be deemed to be 

capable of giving a discharge without concurrence of other members of family 

only if he is in management of the joint family property. In this case, plaintiffs 3 

to 5 though majors as on the date of institution of Suit will not fall under 

Explanation 2 of Section 7 of the Limitation Act as they are not the manager or 

Karta of the joint family. The first plaintiff was 20 years old as on the date of 

institution of the Suit and there is no evidence forthcoming to arrive at a 

different conclusion with regard to the age of the 1 st plaintiff. In that view of the 

matter, the Suit is instituted well within three years of limitation from the date 

of attaining majority as envisaged under Article 60 of the Act. 

33. Hence, in view of the above discussion, as the appeal is devoid of 

878 


merits, we deem it appropriate to dismiss the appeal and accordingly the 

appeal is dismissed but in the circumstances without costs. 

Ss - 

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Present: Justice Kurian Josephand Justice Rohinton Fali Nariman 

PUNJAB & SIND BANK – APPELLANT 

VERSUS 

PUNJAB BREEDERS LTD. & Another - Respondent 

Civil Appeal No. 3197 of 2016 (Arising out of SLP (C) No. 106/2013) 

(i) Sale - Creation of third party interest or arrangement by way of agreement 

for sale is different from sale – F entered into an agreement with S for sale of 

the mortgaged property mortgaged to Bank - Possession of the mortgaged 

property has not been delivered to F by the bank – Sale not complete – OTS. 

[Para 10] 

(ii) Banking - One Time Settlement (OTS) Scheme - As per the OTS proposal 

restriction put on sale of the mortgaged property for a period of three years, 

and in case, the properties are sold within the said lock in period of three 

years, the same should be done with the permission of the bank and that the 

first respondent should share 50% of the increase in fair market value of the 

property, fixed at the time of sanction of the settlement – First respondent 

managed to enter into an agreement with the second respondent for sale of 

half of the mortgaged property and pursuant to that agreement, the whole 

amount of OTS , as per the offer made by the bank, was paid in terms of the 

OTS - Bank declined to settle the accounts and release the mortgage on the 

ground that the third party interest having been created, the bank was 

entitled to 50% of the fair market value - Possession of the mortgaged 

property has not been delivered to the first respondent and the three year 

lock in period has expired - The creation of third party interest or 

arrangement by way of agreement for sale within the three year period is 

different from sale - Admittedly, sale has not been made within the period of 

three years of settlement – Bank cannot rest any claim under law for the share 

879 


880 



of the increase in fair market value by way of recompense - There is nothing to 

be recompensed since the bank has not suffered or lost anything – Bank to 

release the property. 

JUDGMENT 

Kurian, J. – (March 29, 2016) - Leave granted. 

2. The short question arising for consideration in this case is whether 

the appellant-bank is entitled to fifty per cent of the increase in fair market 

value of property fixed at the time of settlement, in terms of the One Time 

Settlement (OTS) Scheme. 

3. As per letter dated 01.03.2012, the appellant offered OTS to the first 

respondent for settlement of the entire dues to the bank on payment of Rs.542 

lakhs, subject to a few conditions. The one relevant for the purpose of the 

present appeal reads as follows: 

“The OTS shall be subject to Bank’s right to recompense that the 

mortgaged properties shall not be sold within a period of three years 

and if the properties are sold within the next three years; 

(a) The parties obtain prior permission of the bank. 

(b) The parties shall share with the bank 50% of increase in FMV 

of the properties which is Rs.882.00 lacs at the time of sanction of this 

settlement.” 

4. Prior to the OTS offer, the bank had made several attempts to sell 

property mortgaged by the first respondent. Since the highest offer was of 

Rs.5.40 crores, the bank had given an opportunity to the first respondent, by 

letter dated 03.03.2011, to get any buyer for more than 5.40 crores by 

16.03.2011, and if not, the bank would be confirming the sale of Rs.5.40 crores. 

Thereafter, the OTS offer was made for settlement of the dues at Rs.542 lakhs 

by letter dated 01.03.2012. In response to the offer made by the bank, the first 

respondent managed to enter into an agreement with the second respondent 

for sale of half of the mortgaged property and pursuant to that agreement, the 

whole amount of Rs.5.42 crores, as per the offer made by the bank, was paid in 

terms of the OTS. However, the bank declined to settle the accounts and 

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released the mortgage on the ground that the third party interest having been 

created, the bank was entitled to 50% of the fair market value. 

5. The High Court, as per the impugned judgment, directed the bank to 

accept the payment of Rs.5.42 crores in full and final settlement of all the 

claims, as per the OTS proposed on 01.03.2012 and release the mortgaged 

property with a further direction not to sell the property for a period of three 

years from 01.03.2012. Aggrieved, the appellant-bank is before this Court. 

6. Following are the main questions of law raised in this appeal: 

“E. Whether by the impugned order, the Hon’ble High Court could have 

allowed the Writ Petition and directed the petitioner to accept the 

amount of Rs.5.42 crores and release the sale deed, notwithstanding 

the fact that as per terms of one time settlement sanction, the 

respondent No.1 could not have alienated the mortgaged property for 

three years? 

F. Whether by the impugned order, the Hon’ble High Court has failed to 

consider that as per terms of one time settlement dated 01.03.2012, there was 

bar on alienation for three years and if the properties are sold within the next 

three years, the respondent No.1 had to take prior permission from the 

petitioner and share 50% of increase in Fair Market Value of the property which 

was Rs.882 lacs at the time of sanction of the settlement? 

G. Whether by the impugned order, the Hon’ble High Court failed to 

consider that inspite of bar on alienation as per sanction dated 01.03.2012, duly 

accepted by respondent no.1, the respondent No.1 clandestinely entered into 

an Agreement to Sell with respondent No.2 in respect of land measuring 

11855.5 sq.yds. for an amount of Rs.4.95 crores, without either seeking prior 

permission from the petitioner Bank and/or sharing 50% increase in the Fair 

Market Value of the Property?” 

7. Heard the learned Counsel appeared on both sides. 

8. The main contention advanced by the learned Counsel for the 

appellant-bank is that the first respondent having entered into agreement for 

sale of the property, as per OTS, the bank is entitled to 50% of the fair market 

881 


882 



value in addition to the OTS payment. It is further submitted that the first 

respondent having created a third party interest, the appellant-bank is entitled 

to claim the fair market value. 

9. We are afraid, the contentions cannot be appreciated. As per the OTS 

proposal dated 01.03.2012. the restriction is only on sale of the mortgaged 

property for a period of three years, and in case, the properties are sold within 

the said lock in period of three years, the same should be done with the 

permission of the bank and that the first respondent should share 50% of the 

increase in fair market value of the property, fixed at the time of sanction of the 

settlement. 

10. The undisputed factual position is that the appellant bank has not 

released the mortgage. The possession of the mortgaged property has not been 

delivered to the first respondent so far. The three year lock in period expired on 

01.03.2015. The creation of third party interest or arrangement by way of 

agreement for sale within the three year period is different from sale. 

Admittedly, sale has not been made within the period of three years of 

settlement. The scheme has not provided for any other restriction of 

involvement of third party interest for settlement of the dues. The only 

restriction is on sale of the property within three years of the settlement. That 

admittedly having not been done, the appellant cannot rest any claim under law 

for the share of the increase in fair market value by way of recompense. There is 

nothing to be recompensed since the bank has not suffered or lost anything. 

11. Thus, we see no error in the view taken by the High Court. The 

appeal is dismissed. The appellant-bank is directed to release the title deed of 

the mortgaged property to the first respondent and also handover the 

possession of the property to the first respondent within two weeks. 

12. There shall be no order as to costs. 

SS - 

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S.R. SUKUMAR - Appellant, 

Versus 

S. SUNAAD RAGHURAM - Respondent. 

Criminal Appeal No. 844 OF 2015 (Arising out of S.L.P. (Crl.) No.4813/2012) 

(i) Criminal complaint - Amendment - Amendment in a criminal 

complaint on the premise that the amendment was made prior to 

taking cognizance of the offence – On date of allowing amendment 

application cognizance of case was not taken – Before examination of 

the complainant, the Court was yet to make up the mind whether to 

take cognizance of the offence or not - It is wrong to contend that the 

Magistrate has taken cognizance of the case even on 18.5.2007 when 

the Magistrate has recorded the statement of complainant–respondent 

in part and even when the Magistrate has not applied his judicial mind - 

Even though the order dated 18.05.2007 reads “cognizance taken under 

Section 200 Cr.P.C.”; the same is not grounded in reality and actual 

cognizance was taken only later. [Para 16] 

883 


(ii) Criminal complaint - Amendment - That easily curable legal 

infirmity could be cured by means of a formal application for 

amendment - If the amendment sought to be made relates to a simple 

infirmity which is curable by means of a formal amendment and by 

allowing such amendment, no prejudice could be caused to the other 

side, notwithstanding the fact that there is no enabling provision in the 

Code for entertaining such amendment, the Court may permit such an 

amendment to be made - On the contrary, if the amendment sought to 

be made in the complaint does not relate either to a curable infirmity or


the same cannot be corrected by a formal amendment or if there is 

likelihood of prejudice to the other side, then the Court shall not allow 

such amendment in the complaint. [Para 18] 

Held, 

In the instant case, the amendment application was filed on 24.05.2007 

to carry out the amendment by adding paras 11(a) and 11 (b). Though, the 

proposed amendment was not a formal amendment, but a substantial one, the 

Magistrate allowed the amendment application mainly on the ground that no 

884 


cognizance was taken of the complaint before the disposal of amendment 

application. Firstly, Magistrate was yet to apply the judicial mind to the contents 

of the complaint and had not taken cognizance of the matter. Secondly, since 

summons was yet to be ordered to be issued to the accused, no prejudice would 

be caused to the accused. Thirdly, the amendment did not change the original 

nature of the complaint being one for defamation. Fourthly, the publication of 

poem ‘Khalnayakaru’ being in the nature of subsequent event created a new 

cause of action in favour of the respondent which could have been prosecuted 

by the respondent by filing a separate complaint and therefore to avoid 

multiplicity of proceedings, the trial court allowed the amendment application. 

Considering these factors which weighed in the mind of the courts below, in our 

view, the High Court rightly declined to interfere with the order passed by the 

Magistrate allowing the amendment application and the impugned order does 

not suffer from any serious infirmity warranting interference in exercise of 

jurisdiction under Article 136 of the Constitution of India. [Para 19] 

(iii) Criminal complaint - Amendment - It is true that there is no 

specific provision in the Code to amend either a complaint or a petition 

filed under the provisions of the Code, but the Courts have held that the 

petitions seeking such amendment to correct curable infirmities can be 

allowed even in respect of complaints – Criminal Procedure Code. 

[Para 17] 

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(iv) Cr.P.C. Section 200 - Cognizance - Magistrate is not bound 

to take cognizance of an offence merely because a complaint has been 

filed before him when in fact the complaint does not disclose a cause of 

action - Section 200 Cr.P.C. clearly suggests that for taking cognizance of 

an offence on complaint, the Court shall examine the complainant upon 

oath - The object of examination of the complainant is to find out 

whether the complaint is justifiable or is vexatious - Merely because the 

complainant was examined that does not mean that the Magistrate has 

taken cognizance of the offence - Taking cognizance of an offence 

means the Magistrate must have judicially applied the mind to the 

contents of the complaint and indicates that Magistrate takes judicial 

notice of an offence - Mere presentation of the complaint and receipt of 

the same in the court does not mean that the Magistrate has taken 

cognizance of the offence. [Para 8, 9] 

(v)Cr.P.C. Section 200 - Cognizance - A Magistrate takes 

cognizance of an offence when he decides to proceed against the 

person accused of having committed that offence and not at the time 

when the Magistrate is just informed either by complainant by filing the 

complaint or by the police report about the commission of an offence. 

885 


[Para 10] 

Held, 

“Cognizance” therefore has a reference to the application of judicial 

mind by the Magistrate in connection with the commission of an offence and 

not merely to a Magistrate learning that some offence had been committed. 

Only upon examination of the complainant, the Magistrate will proceed to apply 

the judicial mind whether to take cognizance of the offence or not. Under 

Section 200 Cr.P.C., when the complainant is examined, the Magistrate cannot


be said to have ipso facto taken the cognizance, when the Magistrate was 

merely gathering the material on the basis of which he will decide whether a 

prima facie case is made out for taking cognizance of the offence or not. 

“Cognizance of offence” means taking notice of the accusations and applying 

the judicial mind to the contents of the complaint and the material filed 

therewith. It is neither practicable nor desirable to define as to what is meant by 

taking cognizance. Whether the Magistrate has taken cognizance of the offence 

or not will depend upon facts and circumstances of the particular case. 

(vi) Words and Meanings - “Cognizance” - Has a reference to the 

application of judicial mind by the Magistrate in connection with the 

commission of an offence and not merely to a Magistrate learning that 

some offence had been committed. 

(vii) Cr.P.C. Section 200 - Contemplates a Magistrate taking 

cognizance of an offence on complaint to examine the complaint and 

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examine upon oath the complainant and the witnesses present, if any - 

Then normally three courses are available to the Magistrate - The 

Magistrate can either issue summons to the accused or order an inquiry 

under Section 202 Cr.P.C. or dismiss the complaint under Section 203 

Cr.P.C. - Upon consideration of the statement of complainant and the 

material adduced at that stage if the Magistrate is satisfied that there 

are sufficient grounds to proceed, he can proceed to issue process 

under Section 204 Cr.P.C. 

(viii) Cr.P.C. , Section 202 - Contemplates ‘postponement of 

issue of process’ - It provides that the Magistrate on receipt of a 

complaint of an offence of which he is authorised to take cognizance 

may, if he thinks fit, postpones the issue of process for compelling the 

attendance of the person complained against, and either inquire into 

the case himself, or have an inquiry made by any Magistrate 

subordinate to him, or an investigation made by a police officer, or by 

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some other person for the purpose of deciding whether or not there is 

sufficient ground for proceeding - If the Magistrate finds no sufficient 

ground for proceeding, he can dismiss the complaint by recording 

briefly the reasons for doing so as contemplated under Section 203 

Cr.P.C. - A Magistrate takes cognizance of an offence when he decides 

to proceed against the person accused of having committed that 

offence and not at the time when the Magistrate is just informed either 

by complainant by filing the complaint or by the police report about the 

commission of an offence. 


1. AIR 2000 SC 2946, Narsingh Das Tapadia v. Goverdhan Das Partani 

2. (2012) 3 SCC 64, Subramanian Swamy v. Manmohan Singh 

3. (2008) 2 SCC 492, S.K. Sinha, Chief Enforcement Officer v. Videocon 

International Ltd. 

4. 1951 SCR 312, R.R. Chari v. State of Uttar Pradesh. 

5. AIR 1950 Cal. 437, Superintendent and Remembrancer of Legal Affairs, 

West Bengal v. Abani Kumar Banerjee 

6. (1964) 5 SCR 37, Jamuna Singh & Ors. v. Bhadai Sah. 

7. (1973) 3 SCC 753, Nirmaljit Singh Hoon v. State of West Bengal 

8. AIR 1976 SC 1672, Devarapally Lakshminarayana Reddy & Ors. v. V. 

Narayana Reddy 

9. (2005) 7 SCC 467, CREF Finance Ltd. v. Shree Shanthi Homes (P) Ltd. 

10. (1987) 3 SCC 684, U.P. Pollution Control Board v. Modi Distillery 

887 


JUDGMENT 

R. Banumathi, J. - (2 nd July , 2015) -Leave granted. 

2. This appeal arises out of an order dated 20.01.2012 passed by the 

High Court of Karnataka at Bangalore in Criminal Petition No.5077/2007 

wherein the High Court declined to quash the order dated 21.06.2007 passed in 

PCR No.8409/2007 thereby confirming the order passed by the VII Addl. Chief 

Metropolitan Magistrate, Bangalore permitting the respondent to carry out the


amendment in a criminal complaint on the premise that the amendment was 

made prior to taking cognizance of the offence. 

3. On 9.05.2007, respondent filed the complaint under Section 200 

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Cr.P.C. against the first appellant and his mother Smt. H.R. Leelavathi (A-2) 

alleging that they have committed the offences punishable under Sections 120- 

B, 499 and 500 IPC. In the complaint, the respondent has alleged that he was 

born of the wedlock of his father late Shri S.G. Raghuram and mother Late Smt. 

B.S. Girija. However, his father after the death of his mother Girija, married 

another divorcee lady namely Smt. H.R. Leelavathi (A-2) who at the time of the 

second marriage, already had a son aged six years S.H. Sukumar (appellant), 

born from her previous wedlock. The respondent alleged in the complaint that 

his father’s name i.e. Late Shri S.G. Raghuram has been purportedly used by the 

appellant portraying as if he is his natural father. Respondent alleged that the 

act of the appellant using name of respondent’s father as his own father often 

created doubts among the near and dear ones about the legitimacy of the 

respondent-complainant and integrity and character of his father which had 

affected the respondent’s reputation. 

4. Respondent filed the complaint on 9.05.2007 and his statement was 

recorded in part on 18.05.2007 and further recorded on 23.05.2007. Next day 

i.e. on 24.05.2007, respondent moved an application seeking amendment to the 

complaint by praying for insertion of paras 11(a) and 11(b) in the complaint 

stating the fact of poem named ‘Khalnayakaru’ written by the appellant in 

connivance with his mother (A-2) depicting the respondent as Villain- 

‘Khalnayak’, with an intention to malign the character, image and status of the 

respondent. The trial court allowed the amendment on 24.05.2007 and took the 

cognizance of the offence and directed issuance of the process to the appellant 

vide Order dated 21.06.2007. Aggrieved by the Order dated 21.06.2007, the 

appellant approached the High Court praying for quashing the proceedings in 

PCR No.8409/2007 registered as C.C. No.15851/2007 on the ground that there 

is no provision under the Code, providing for amendment of the complaint. The 

High Court vide impugned Order dated 20.01.2012 dismissed the petition filed 

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by the appellant observing that before the date of allowing amendment 

application i.e. 24.05.2007, cognizance of case was not taken and therefore no 

prejudice is caused to the appellant. Further, the High Court was of the view 

that if amendment is not allowed, then the multiple proceedings would have 

ensued between the parties. 

5. Mrs. Kiran Suri, learned Senior Counsel appearing for the appellant 

contended that under the Criminal Procedure Code there is no provision for 

amendment of complaint and in the absence of any specific provision in the 

Code, courts below erred in allowing the amendment in criminal complaint. It 

was submitted that on 18.05.2007, the Magistrate took cognizance of the 

complaint for the first time and the Magistrate allowed the amendment 

application on 24.05.2007 and the Magistrate again took cognizance of case for 

the second time on 21.06.2007 and thus the cognizance taken twice by the 

Magistrate is impermissible under the law. It was further submitted that once 

cognizance was taken, the Magistrate ought not to have allowed the 

amendment and the impugned order is liable to be set aside. 

6. Per contra, learned counsel for the respondent contended that the 

respondent-complainant was examined in Court on oath in part on 18.05.2007 

and his examination was deferred to 23.05.2007 for further inquiry and during 

the course of inquiry, the amendment application was filed and the same was 

allowed in order to avoid multiplicity of proceedings. It was further contended 

that on 18.05.2007, no cognizance was taken and therefore it would be wrong 

to suggest that cognizance was taken twice by the Magistrate. It was submitted 

that though there is no enabling provision in the Criminal Procedure Code to 

amend the complaint and there is no specific bar in carrying out the 

amendment and in the interest of justice, Court has power to do so. 

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7. Upon consideration of the rival contentions and materials on record, 

the points falling for determination are: (i) in the facts of the case, when did the 

Magistrate take cognizance of the complaint for the first time i.e. on 18.05.2007 

or on 21.06.2007, when the Magistrate satisfied of a prima facie case to take 

cognizance of the complaint; (ii) whether amendment to a complaint filed under


Section 200 Cr.P.C. is impermissible in law and whether the order allowing the 

amendment suffers from serious infirmity. 

8. Section 200 Cr.P.C. provides for the procedure for Magistrate taking 

cognizance of an offence on complaint. The Magistrate is not bound to take 

cognizance of an offence merely because a complaint has been filed before him 

when in fact the complaint does not disclose a cause of action. The language in 

Section 200 Cr.P.C. “a Magistrate taking cognizance of an offence on complaint 

shall examine upon oath the complainant and the witnesses present, if any…” 

clearly suggests that for taking cognizance of an offence on complaint, the Court 

shall examine the complainant upon oath. The object of examination of the 

complainant is to find out whether the complaint is justifiable or is vexatious. 

Merely because the complainant was examined that does not mean that the 

Magistrate has taken cognizance of the offence. Taking cognizance of an offence 

means the Magistrate must have judicially applied the mind to the contents of 

the complaint and indicates that Magistrate takes judicial notice of an offence. 

890 


9. Mere presentation of the complaint and receipt of the same in the 

court does not mean that the Magistrate has taken cognizance of the offence. In 

Narsingh Das Tapadia v. Goverdhan Das Partani & Another., 1 AIR 2000 SC 2946, 

it was held that the mere presentation of a complaint cannot be held to mean 

that the Magistrate has taken the cognizance. In Subramanian Swamy v. 

Manmohan Singh & Another, 2 (2012) 3 SCC 64, this Court explained the 

meaning of the word ‘cognizance’ holding that “…In legal parlance cognizance is 

taking judicial notice by the court of law, possessing jurisdiction, on a cause or 

matter presented before it so as to decide whether there is any basis for 

initiating proceedings and determination of the cause or matter judicially”. 

10. Section 200 Cr.P.C. contemplates a Magistrate taking cognizance of 

an offence on complaint to examine the complaint and examine upon oath the 

complainant and the witnesses present, if any. Then normally three courses are 

available to the Magistrate. The Magistrate can either issue summons to the 

accused or order an inquiry under Section 202 Cr.P.C. or dismiss the complaint 

under Section 203 Cr.P.C. Upon consideration of the statement of complainant 

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and the material adduced at that stage if the Magistrate is satisfied that there 

are sufficient grounds to proceed, he can proceed to issue process under 

Section 204 Cr.P.C. Section 202 Cr.P.C. contemplates ‘postponement of issue of 

process’. It provides that the Magistrate on receipt of a complaint of an offence 

of which he is authorised to take cognizance may, if he thinks fit, postpones the 

issue of process for compelling the attendance of the person complained 

against, and either inquire into the case himself, or have an inquiry made by any 

Magistrate subordinate to him, or an investigation made by a police officer, or 

by some other person for the purpose of deciding whether or not there is 

sufficient ground for proceeding. If the Magistrate finds no sufficient ground for 

proceeding, he can dismiss the complaint by recording briefly the reasons for 

doing so as contemplated under Section 203 Cr.P.C. A Magistrate takes 

cognizance of an offence when he decides to proceed against the person 

accused of having committed that offence and not at the time when the 

Magistrate is just informed either by complainant by filing the complaint or by 

the police report about the commission of an offence. 

11. “Cognizance” therefore has a reference to the application of judicial 

mind by the Magistrate in connection with the commission of an offence and 

not merely to a Magistrate learning that some offence had been committed. 

Only upon examination of the complainant, the Magistrate will proceed to apply 

the judicial mind whether to take cognizance of the offence or not. Under 

Section 200 Cr.P.C., when the complainant is examined, the Magistrate cannot 

be said to have ipso facto taken the cognizance, when the Magistrate was 

merely gathering the material on the basis of which he will decide whether a 

prima facie case is made out for taking cognizance of the offence or not. 

“Cognizance of offence” means taking notice of the accusations and applying 

the judicial mind to the contents of the complaint and the material filed 

therewith. It is neither practicable nor desirable to define as to what is meant by 

taking cognizance. Whether the Magistrate has taken cognizance of the offence 

or not will depend upon facts and circumstances of the particular case. 

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12. In S.K. Sinha, Chief Enforcement Officer v. Videocon International


Ltd. And Ors., 3 (2008) 2 SCC 492, considering the scope of expression 

“cognizance” it was held as under:- “The expression “cognizance” has not been 

defined in the Code. But the word (cognizance) is of indefinite import. It has no 

esoteric or mystic significance in criminal law. It merely means “become aware 

of” and when used with reference to a court or a Judge, it connotes “to take 

notice of judicially”. It indicates the point when a court or a Magistrate takes 

judicial notice of an offence with a view to initiating proceedings in respect of 

such offence said to have been committed by someone.” 

13. A three Judge Bench of this Court in the case of R.R. Chari v. State of 

Uttar Pradesh, 4 1951 SCR 312, while considering what the phrase ‘taking 

cognizance’ mean, approved the decision of Calcutta High Court in 

Superintendent and Remembrancer of Legal Affairs, West Bengal v. Abani Kumar 

Banerjee, 5 AIR 1950 Cal. 437, wherein it was observed that: 

“…What is “taking cognizance” has not been defined in the 

Criminal Procedure Code and I have no desire now to attempt to define 

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it. It seems to me clear, however, that before it can be said that any 

Magistrate has taken cognizance of any offence under S.190(1)(a), 

Criminal P.C., he must not only have applied his mind to the contents of 

the petition, but he must have done so for the purpose of proceeding in 

a particular way as indicated in the subsequent provisions of this 

Chapter,– proceeding under S. 200, and thereafter sending it for enquiry 

and report under S. 202. When the Magistrate applies his mind not for 

the purpose of proceeding under the subsequent sections of this 

Chapter, but for taking action of some other kind, e.g., ordering 

investigation under Section 156(3), or issuing a search warrant for the 

purpose of the investigation, he cannot be said to have taken cognizance 

of the offence...” (Underlining added) 

The same view was reiterated by this Court in Jamuna Singh & Ors. v. 

Bhadai Sah, 6 (1964) 5 SCR 37 and Nirmaljit Singh Hoon v. State of West Bengal & 

Anr., 7 (1973) 3 SCC 753. 

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14. Elaborating upon the words expression “taking cognizance” of an 

offence by a Magistrate within the contemplation of Section 190 Cr.P.C., in 

Devarapally Lakshminarayana Reddy & Ors. v. V. Narayana Reddy & Ors., 8 AIR 

1976 SC 1672, this Court held as under:- 

“…But from the scheme of the Code, the content and marginal 

heading of Section 190 and the caption of Chapter XIV under which 

Sections 190 to 199 occur, it is clear that a case can be said to be 

instituted in a court only when the court takes cognizance of the offence 

alleged therein. The ways in which such cognizance can be taken are set 

out in clauses (a), (b) and (c) of Section 190(1). Whether the Magistrate 

has or has not taken cognizance of the offence will depend on the 

circumstances of the particular case including the mode in which the 

case is sought to be instituted, and the nature of the preliminary action, 

if any, taken by the Magistrate. Broadly speaking, when on receiving a 

complaint, the Magistrate applies his mind for the purposes of 

proceeding under Section 200 and the succeeding sections in Chapter XV 

to the Code of 1973, he is said to have taken cognizance of the offence 

within the meaning to Section 190(1)(a). It, instead of proceeding under 

Chapter XV, he has, in the judicial exercise of his discretion, taken action 

of some other kind, such as issuing a search warrant for the purpose of 

investigation, or ordering investigation by the police under Section 

156(3), he cannot be said to have taken cognizance of any offence.” 

893 


15. Contention of the appellant is that the act of taking cognizance of an 

offence by the Magistrate precedes the examination of the complainant under 

Section 200 Cr.P.C. and the learned Senior Counsel for the appellant placed 

reliance on the decision of this Court in CREF Finance Ltd. v. Shree Shanthi 

Homes (P) Ltd. And Anr., 9 (2005) 7 SCC 467 wherein this Court has held as 

under:- 

“10. In the instant case, the appellant had filed a detailed 

complaint before the Magistrate. The record shows that the Magistrate 

took cognizance and fixed the matter for recording of the statement of

894 



the complainant on 1-6-2000. Even if we assume, though that is not the 

case, that the words “cognizance taken” were not to be found in the 

order recorded by him on that date, in our view that would make no 

difference. Cognizance is taken of the offence and not of the offender 

and, therefore, once the court on perusal of the complaint is satisfied 

that the complaint discloses the commission of an offence and there is 

no reason to reject the complaint at that stage, and proceeds further in 

the matter, it must be held to have taken cognizance of the offence. One 

should not confuse taking of cognizance with issuance of process. 

Cognizance is taken at the initial stage when the Magistrate peruses the 

complaint with a view to ascertain whether the commission of any 

offence is disclosed. The issuance of process is at a later stage when 

after considering the material placed before it, the court decides to 

proceed against the offenders against whom a prima facie case is made 

out. It is possible that a complaint may be filed against several persons, 

but the Magistrate may choose to issue process only against some of the 

accused. It may also be that after taking cognizance and examining the 

complainant on oath, the court may come to the conclusion that no case 

is made out for issuance of process and it may reject the complaint…..” 

(Underlining added) 

In our considered view, the above decision is of no assistance to the 

appellant. A perusal of the above decision would show that this Court has 

emphasized upon the satisfaction of the Court to the commission of offence as a 

condition precedent for taking cognizance of offence. However, in the facts of 

the said case, Court was of the view that the cognizance was taken by the 

Magistrate once the Magistrate applied his mind on the contents of the 

complaint and on the satisfaction that prima facie case existed. 

16. In the present case, the complaint was filed on 9.05.2007 and the 

matter was adjourned to 15.05.2007 and on that date on request for inquiry, 

the matter was adjourned to 18.05.2007. On 18.05.2007, statement of 

complainant was recorded in part and the order sheet for 18.05.2007 reads as 

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under:- 

“Complainant is present with Shri N.V. Adv. Cognizance taken 

u/s 200 of Cr.P.C. r/w statement Complainant is recorded in part. Now 

5.35 p.m. hence on request call on 23.5.2007.” 

On 23.05.2007, the complainant was present and his statement was 

recorded and the same was marked as Ex.P-1 and annexures A to G were 

referred. On request, the matter was adjourned to 24.05.2007 on which date 

the complainant filed application under Section 200 Cr.P.C. seeking amendment 

to the complaint by adding paras 11(a) and 11(b) and the said application was 

allowed. Amended complaint was filed and one witness was examined for the 

complainant on 2.06.2007. On 21.06.2007, the Magistrate passed the detailed 

order recording his satisfaction to proceed against the appellant(A-1) and also 

observing that there are no sufficient grounds to proceed against Smt. H.R. 

Leelavathi and ordered issuance of summons to accused No.1–appellant herein. 

Before examination of the complainant, the Court was yet to make up the mind 

whether to take cognizance of the offence or not. It is wrong to contend that 

the Magistrate has taken cognizance of the case even on 18.5.2007 when the 

Magistrate has recorded the statement of complainant–respondent in part and 

even when the Magistrate has not applied his judicial mind. Even though the 

order dated 18.05.2007 reads “cognizance taken under Section 200 Cr.P.C.”; the 

same is not grounded in reality and actual cognizance was taken only later. 

895 


17. Insofar as merits of the contention regarding allowing of 

amendment application, it is true that there is no specific provision in the Code 

to amend either a complaint or a petition filed under the provisions of the Code, 

but the Courts have held that the petitions seeking such amendment to correct 

curable infirmities can be allowed even in respect of complaints. In U.P. 

Pollution Control Board v. Modi Distillery And Ors 10 , (1987) 3 SCC 684, wherein 

the name of the company was wrongly mentioned in the complaint that is, 

instead of Modi Industries Ltd. the name of the company was mentioned as 

Modi Distillery and the name was sought to be amended. In such factual 

background, this Court has held as follows:-


“…The learned Single Judge has focussed his attention only on 

the technical flaw in the complaint and has failed to comprehend that 

the flaw had occurred due to the recalcitrant attitude of Modi Distillery 

and furthermore the infirmity is one which could be easily removed by 

having the matter remitted to the Chief Judicial Magistrate with a 

direction to call upon the appellant to make the formal amendments to 

the averments contained in para 2 of the complaint so as to make the 

controlling company of the industrial unit figure as the concerned 

accused in the complaint. All that has to be done is the making of a 

formal application for amendment by the appellant for leave to amend 

by substituting the name of Modi Industries Limited, the company 

owning the industrial unit, in place of Modi Distillery…. Furthermore, 

the legal infirmity is of such a nature which could be easily cured...” 

18. What is discernible from the U.P. Pollution Control Board’s case is 

that easily curable legal infirmity could be cured by means of a formal 

896 


application for amendment. If the amendment sought to be made relates to a 

simple infirmity which is curable by means of a formal amendment and by 

allowing such amendment, no prejudice could be caused to the other side, 

notwithstanding the fact that there is no enabling provision in the Code for 

entertaining such amendment, the Court may permit such an amendment to be 

made. On the contrary, if the amendment sought to be made in the complaint 

does not relate either to a curable infirmity or the same cannot be corrected by 

a formal amendment or if there is likelihood of prejudice to the other side, then 

the Court shall not allow such amendment in the complaint. 

19. In the instant case, the amendment application was filed on 

24.05.2007 to carry out the amendment by adding paras 11(a) and 11 (b). 

Though, the proposed amendment was not a formal amendment, but a 

substantial one, the Magistrate allowed the amendment application mainly on 

the ground that no cognizance was taken of the complaint before the disposal 

of amendment application. Firstly, Magistrate was yet to apply the judicial mind 

to the contents of the complaint and had not taken cognizance of the matter. 

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Secondly, since summons was yet to be ordered to be issued to the accused, no 

prejudice would be caused to the accused. Thirdly, the amendment did not 

change the original nature of the complaint being one for defamation. Fourthly, 

the publication of poem ‘Khalnayakaru’ being in the nature of subsequent event 

created a new cause of action in favour of the respondent which could have 

been prosecuted by the respondent by filing a separate complaint and therefore 

to avoid multiplicity of proceedings, the trial court allowed the amendment 

application. Considering these factors which weighed in the mind of the courts 

below, in our view, the High Court rightly declined to interfere with the order 

passed by the Magistrate allowing the amendment application and the 

impugned order does not suffer from any serious infirmity warranting 

interference in exercise of jurisdiction under Article 136 of the Constitution of 

India. 

20. The appeal is dismissed. The trial court is directed to take up the 

matter and dispose the same in accordance with law as early as possible. It is 

made clear that we have not expressed any opinion on the merits of the matter. 

SS ----- 

897 





Present : Justice J. Chelameswar, and Justice Adarsh Kumar Goel. 

VIJAY MALLYA - APPELLANT, 

VERSUS 

ENFORCEMENT DIRECTORATE, MIN. OF FINANCE - RESPONDENT. 

CRIMINAL APPEAL NO.1406 OF 2009 

(i) Complaint - During pendency of the complaint, the Act (FERA) was 

898 


repealed - The fact that the adjudicating officer chose to drop the 

proceedings against the appellant herein does not absolve the appellant 

of the criminal liability incurred by him by virtue of the operation of 

Section 40 read with Section 56 of the Act - The offence under Section 

56 read with Section 40 of the A renewal of ct is an independent offence 

- Fera. 

Held, 

If the factual allegations contained in the charge are to be proved eventually at 

the trial of the criminal case, the appellant is still liable for the punishment 

notwithstanding the fact that the presence of the appellant was required by the 

adjudicating officer in connection with an enquiry into certain alleged violations 

of the various provisions of the Act, but at a subsequent stage the adjudicating 

officer opined that there was either insufficient or no material to proceed 

against the appellant for the alleged violations of the Act, is immaterial. 

[Para 14] 

Editors note: 

Section 40 - Power to summon persons to give evidence and produce 

documents 

Section 56 - Offences and prosecutions. Without prejudice to any award of 

penalty by the adjudicating officer under this Act, if any person contravenes any 

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of the provisions of this Act or of any rule, direction or order made thereunder, 

he shall, upon conviction by a court, be punishable 

(ii) Notice issued by lawful authority – Non appearance - Commits an 

independent offence - Dy. Chief Controller of Import and Export v. 

Roshan Lal Agarwal - The said case cannot be read as laying down a 

general statement of law that the prosecution of the accused, who is 

alleged to be guilty of an offence of not responding to the summons 

issued by a lawful authority for the purpose of either an inquiry or 

investigation into another substantive offence, would not be justified - 

Exonerating such an accused, who successfully evades the process of 

law and thereby commits an independent offence on the ground that 

he is found to be not guilty of the substantive offence would be 

destructive of law and order, apart from being against public interest - 

Such an exposition of law would only encourage unscrupulous elements 

in the society to defy the authority conferred upon the public servants 

to enforce the law with impunity. It is also possible, in certain cases that 

the time gained by such evasive tactics adopted by a person summoned 

itself would result in the destruction of the material which might 

otherwise constitute valuable evidence for establishing the commission 

of a substantive offence by such a recalcitrant accused. [Para 14] 

899 


Dy. Chief Controller of Import and Export v. Roshan Lal Agarwal, (2003) 4 SCC 

139, Not good law. 

(iii) Complaint quashed on the ground that FERA Act repealded - Appeal 

pending – Appeal against the conclusion of the adjudicating officer that 

the proceedings against the appellant herein for the alleged violation of 

the various provisions of the FERA Act are required to be dropped has


not even attained finality - Admittedly, such an order of the 

adjudicating officer confirmed by the statutory appellate authority is 

pending consideration in an appeal before the High Court - Though, in 

our opinion, the result of such an appeal is immaterial for determining 

the culpability of the appellant for the alleged violation of Section 40 

read with Section 56 (of the FERA Act) , we must record that the 

submission made on behalf of the appellant in this regard itself is 

inherently untenable. 

JUDGMENT 

Adarsh Kumar Goel, J. – (13 th July, 2015) – 

1. This appeal has been preferred against judgment and order dated 

21st May, 2007 of the High Court of Delhi at New Delhi in Criminal Revision 

Petition No.554 of 2001. 

900 


2. Brief facts necessary for decision of this appeal are that the appellant 

was summoned by the Chief Enforcement Officer, Enforcement Directorate, 

under Section 40 of the Foreign Exchange Regulation Act, 1973 (“the Act”) with 

his passport and correspondence relating to a transaction with Flavio Briatore of 

M/s. Benetton Formula Ltd., London, to which the appellant, as Chairman of 

United Breweries Ltd., was a party. Allegation against the appellant was that he 

entered into an agreement dated 1st December, 1995 with the earlier 

mentioned English Company for advertisement of ‘Kingfisher’ brand name on 

racing cars during Formula-I World Championships for the years 1996, 1997 and 

1998 providing for fee payable. Requisite permission of the Reserve Bank of 

India was not taken which was in violation of provisions of Sections 47(1) & (2), 

9(1)(c) and 8(1) of the Act. Approval was later sought from Finance Ministry for 

payment on 19th June, 1996, which was rejected on 4th February, 1999. Since 

the appellant failed to appear in response to summons issued more than once, a 

complaint dated 8 th March, 2000 under Section 56 of the Act was filed before 

the Additional Chief Metropolitan Magistrate, New Delhi. The trial court after 

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considering the material on record summoned the appellant and framed charge 

against him under Section 56 of the Act. 

3. The appellant challenged the order of the Magistrate dated 9th 

August, 2001 in above Criminal Complaint No.16/1 of 2000 and also sought 

quashing of proceedings in the said complaint before the High Court by filing 

Criminal Revision Petition No.554 of 2001 on the ground that willful default of 

the appellant could not have been inferred and that there was non-application 

of mind in the issuance of summons as well as in framing the charge which was 

in violation of procedure laid down under Section 219 of the Criminal Procedure 

Code. The charge relat the any material that you are ed to failure of the 

appellant to appear on four occasions, i.e., 27th September, 1999, 8th 

November,1999, 26th November, 1999 and 3rd January, 2000. In respect of first 

date, it was submitted that the trial court itself accepted that the service of 

summons was after the time for appearance indicated in the summons. In 

respect of second and third dates, the appellant had responded and informed 

about his inability to appear and for the last date, summons was not as per 

procedure, i.e., by registered post. It was submitted that composite charge was 

against Section 219 of the Criminal Procedure Code. 

901 


4. The High Court rejected the contentions by holding that framing of 

composite charge could not be treated to have caused prejudice so as to vitiate 

the proceedings. It was further observed that default of the appellant in relation 

to summons dated 15th September, 1999 for attendance on 27th September, 

1999 could not be taken into account and to that extent the charge was liable to 

be deleted but with regard to the defaults in relation to summons dated 7th 

October, 1989, 8th November, 2009 and 21st December, 1999, the proceedings 

were not liable to be interfered with as the appellant could contest the matter 

before the trial court itself in the first instance. 

5. We have heard Shri F.S. Nariman, learned senior counsel for the 

appellant and Shri K. Radhakrishnan, learned senior counsel for the respondent. 

6. When the matter came up for hearing before this Court earlier, a


statement was made on behalf of the appellant that the appellant expressed 

regret for not responding to the summons on which learned senior counsel for 

the respondent took time to ascertain whether the complaint could be 

withdrawn. Thereafter, it was stated that withdrawal of the complaint may have 

impact on other matters and for that reason withdrawal was not possible. 

However, the question whether the non compliance was deliberate was 

required to be examined. Learned senior counsel for the appellant submitted 

that the default was not deliberate, intentional or willful which may be 

punishable under Section 56 of the Act and the appellant had sent reply and 

sought a fresh date on two occasions. 

7. It was further submitted that subsequent events which were not 

gone into by the High Court may also be seen. The complaint was filed on 8th 

March, 2000. During pendency of the complaint, the Act (FERA) was repealed on 

1st June, 2000. Still, show cause notice dated 13th March, 2001 was issued to 

which reply was given and the adjudicating officer vide order dated 10th 

902 


January, 2002 dropped the proceedings on merits. The Appellate Board 

dismissed the Revision Petition filed by the Department on 16th March, 2004. 

Against the said order, Criminal Appeal No.515 of 2004 was pending in the High 

Court. 

8. It was submitted that having regard to repeal of the Act and 

exoneration of the appellant by the departmental authorities (even though an 

appeal was pending in the High Court), this Court in the circumstances of the 

case ought to quash proceedings, following law laid down in Dy. Chief Controller 

of Import and Export v. Roshan Lal Agarwal 1 (2003) 4 SCC 139 as follows : 

“13. In view of the findings recorded by us, the learned 

Magistrate has to proceed with the trial of the accused-respondents. 

Shri Ashok Desai, learned Senior Counsel has, however, submitted that 

the Imports and Exports (Control) Act, 1947 has since been repealed 

and in the departmental proceedings taken under the aforesaid Act, the 

Central Government has passed orders in favour of the respondents 

and, therefore, their trial before the criminal court at this stage would 

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be an exercise in futility. He has placed before us copies of the orders 

passed by the Additional Director General of Foreign Trade on 16-8- 

1993 and also by the Appellate Committee Cell, Ministry of Commerce, 

Government of India on 13-3-1997 by which the appeals preferred by 

the respondents were allowed by the Appellate Committee and the 

accused-respondents were exonerated. Having regard to the material 

existing against the respondents and the reasons and findings given in 

the aforesaid orders, we are of the opinion that no useful purpose 

would be served by the trial of the accused-respondents in the criminal 

court at this stage. The proceedings of the criminal cases instituted 

against the accused-respondents on the basis of the complaints filed by 

the Deputy Chief Controller of Imports and Exports are, therefore, 

quashed”. 

Alternatively, explanation of the appellant for non appearance may be 

looked into on merits instead of the same being left to the trial court. 

9. Before we consider the submissions made, the provisions of Section 

40 and 56 of the Act may be noticed which are as follows : 

“Section 40 - Power to summon persons to give evidence and 

produce documents 

903 


(1) Any Gazetted Officer of Enforcement shall have power to summon 

any person whose attendance he considers necessary either to give 

evidence or to produce a document during the course of any 

investigation or proceeding under this Act. 

(2) A summon to produce documents may be for the production of 

certain specified documents or for the production of all documents of a 

certain description in the possession or under the control of the person 

summoned. 

(3) All persons so summoned shall be bound to attend either in person 

or by authorised agents, as such officer may direct; and all persons so 

summoned shall be bound to state the truth upon any subject


respecting which they are examined or make statements and produce 

such documents as may be required: Provided that the exemption 

under section 132 of the Code of Civil Procedure, 1908 (5 of 1908) shall 

be applicable to any requisition for attendance under this section. 

(4) Every such investigation or proceeding as aforesaid shall be deemed 

to be a judicial proceeding within the meaning of sections 193 and 228 

of the Indian Penal Code, 1860 (45of 1860). 

Section 56 - Offences and prosecutions 

(1)Without prejudice to any award of penalty by the adjudicating officer 

under this Act, if any person contravenes any of the provisions of this 

Act [other than Section 13, Clause (a) of sub-section(1) of (Section 18, 

Section 18A), clause (a) of sub-section (1) of Section 19, sub-section(2) 

of Section 44 and Section 57 and 58] or of any rule, direction or order 

made thereunder, he shall, upon conviction by a court, be punishable 

(i) in the case of an offence the amount or value involved in which 

904 


exceeds one lakh of rupees with imprisonment for a term which shall 

not be less than six months, but which may extend to seven years and 

with fine; Provided that the Court may, for any adequate and special 

reasons to be mentioned in the judgment, impose a sentence of 

imprisonment for a term of less than six months; 

(ii)in any other case, with imprisonment for a term which may extend to 

three years or with fine or with both.” 

10. In Enforcement Directorate v. M. Samba Siva Rao 2 (2000) 5 SCC 431 

, it was observed: 

“3. xxxxxxxx The Foreign Exchange Regulation Act, 1973 was 

enacted by Parliament, basically for the conservation of the foreign 

exchange resources of the country and the proper utilisation thereof in 

the interest of economic development of the country. The Act having 

been enacted in the interest of national economy, the provisions 

thereof should be construed so as to make it workable and the 

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interpretation given should be purposive and the provisions should 

receive a fair construction without doing any violence to the language 

employed by the legislature. The provisions of Section 40 itself, which 

confers power on the officer of the Enforcement Directorate, to 

summon any person whose attendance he considers necessary during 

the course of any investigation, makes it binding as provided under subsection 

(3) of Section 40, and the investigation or the proceeding in the 

course of which such summons are issued have been deemed to be a 

judicial proceeding by virtue of sub-section (4) of Section 40. These 

principles should be borne in mind, while interpreting the provisions of 

Section 40 and its effect, if a person violates or disobeys the directions 

issued under Section 40.” 

11. The above observations clearly show that a complaint is 

maintainable if there is default in not carrying out summons lawfully issued. The 

averments in the complaint show that the summons dated 21st December, 

1999 were refused by the appellant and earlier summons were not carried out 

deliberately. The averments in paras 3 and 4 of the complaint are as follows : 

“3. That the complainant issued a summons dated 21.12.1999 

905 


under Section 40 of FERA, 1973 in connection with the impending 

investigations for the appearance of the accused on 3.1.2000 but the 

same have been returned back by the postal authorities with the 

remarks “refused”. 

It is submitted that the accused has deliberately avoided his 

appearance before the Investigating Officer and on account of his non 

co-operative attitude the investigation has come to a standstill. 

4. It is respectfully submitted that the accused has been 

intentionally avoiding his appearance before the Enforcement 

Directorate knowing fully well that non compliance of the directions 

made under Section 40 of the Act renders the person liable for 

prosecution in a Court of law under Section 56 of the Act which is a non-


bailable offence. It is further submitted that by virtue of Section 40(3) of 

the Act, the accused was bound to appear before the Officers of the 

Enforcement Directorate in the best interest of investigation. Section 

40(3) is reproduced below for kind perusal and ready reference to this 

Hon’ble Court : 

“Section 40(3) : 

(3) All persons so summoned shall be bound to attend either in 

person or by authorised agents, as such officer may direct; and all 

persons so summoned shall be bound to state the truth upon any 

subject respecting which they are examined or make statements and 

produce such documents as may be required.” 

It is respectfully submitted that non compliance of any rule, 

directions or law is punishable under Section 56 of the Act. The accused 

willfully failed to appear before the Enforcement Directorate at the 

given venue, time and dates mentioned in the respective summons and 

906 


has thus, contravened the provisions of Section 56 of the Act.” 

12. As regards summons dated 8th November, 1999, learned senior 

counsel for the appellant has referred to the explanation offered by the 

appellant. Letter dated 22nd November, 1999 is as follows : 

“As you will appreciate, I am the Chairman of several public 

Companies both in India as well as in the USA and, therefore, my 

schedule is finalized several months in advance. During the fiscal year 

end period, the problem only gets compounded. 

I would, therefore, request you to excuse me from the personal 

appearance on November 26, 1999 as I will be out of India. 

I am willing to fix a mutually convenient date to appear before 

you.” 

13. From the tenor of the letter, it appears that it was not a case of 

mere seeking accommodation by the appellant but requiring date to be fixed by 

his convenience. Such stand by a person facing allegation of serious nature 

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could hardly be appreciated. Obviously, the enormous money power makes him 

believe that the State should adjust its affairs to suit his commercial 

convenience. 14. In our opinion, the appeal is required to be dismissed for more 

than one reason. The fact that the adjudicating officer chose to drop the 

proceedings against the appellant herein does not absolve the appellant of the 

criminal liability incurred by him by virtue of the operation of Section 40 read 

with Section 56 of the Act. The offence under Section 56 read with Section 40 of 

the Act is an independent offence. If the factual allegations contained in the 

charge are to be proved eventually at the trial of the criminal case, the appellant 

is still liable for the punishment notwithstanding the fact that the presence of 

the appellant was required by the adjudicating officer in connection with an 

enquiry into certain alleged violations of the various provisions of the Act, but at 

a subsequent stage the adjudicating officer opined that there was either 

insufficient or no material to proceed against the appellant for the alleged 

violations of the Act, is immaterial. The observations made by this Court in 

Roshanlal Agarwal (supra), in our opinion, must be confined to the facts of that 

case because this Court recorded such a conclusion “having regard to the 

material existing against the respondent and the reasons and findings given in 

the aforesaid orders…..”. The said case cannot be read as laying down a general 

statement of law that the prosecution of the accused, who is alleged to be guilty 

of an offence of not responding to the summons issued by a lawful authority for 

the purpose of either an inquiry or investigation into another substantive 

offence, would not be justified. Exonerating such an accused, who successfully 

evades the process of law and thereby commits an independent offence on the 

ground that he is found to be not guilty of the substantive offence would be 

destructive of law and order, apart from being against public interest. Such an 

exposition of law would only encourage unscrupulous elements in the society to 

defy the authority conferred upon the public servants to enforce the law with 

impunity. It is also possible, in certain cases that the time gained by such evasive 

tactics adopted by a person summoned itself would result in the destruction of 

the material which might otherwise constitute valuable evidence for 

907 



establishing the commission of a substantive offence by such a recalcitrant 

accused. 

15. Secondly, an appeal against the conclusion of the adjudicating 

officer that the proceedings against the appellant herein for the alleged 

violation of the various provisions of the FERA Act are required to be dropped 

has not even attained finality. Admittedly, such an order of the adjudicating 

officer confirmed by the statutory appellate authority is pending consideration 

in an appeal before the High Court. Though, in our opinion, the result of such an 

appeal is immaterial for determining the culpability of the appellant for the 

alleged violation of Section 40 read with Section 56, we must record that the 

submission made on behalf of the appellant in this regard itself is inherently 

untenable. 

16. For all the abovementioned reasons, we do not see any merit in the 

appeal. We are also of the opinion that the entire approach adopted by the 

appellant is a sheer abuse of the process of law. Any other view of the matter 

908 


would only go to once again establishing the notorious truth stated by Anatole 

France that – “the law in its majestic equality, forbids the rich as well as the 

poor to sleep under bridges, to beg in the streets and to steal bread”. 17. The 

appeal is dismissed with exemplary costs quantified at rupees ten lakhs to be 

paid to the Supreme Court Legal Service Authority. 

SS --- 

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RAVINDER SINGH – Appellant, 

Versus 

STATE OF HARYANA & ORS. - Respondents. 

CRIMINAL APPEAL NO. 931 Of 2015 (Arising out of S.L.P. (Crl.) No. 1839 of 2012) WITH 

CRIMINAL APPEAL NO. 932/2015 (Arising out of S.L.P. (Crl.) No. 7101/2012) 

Criminal Procedure Code Section 304 Part II IPC read with 

Section 149 IPC - Sentence – Quantum - Question of sentence is always 

a difficult task requiring balancing of various considerations. The 

question of awarding sentence is a matter of discretion to be exercised 

on consideration of circumstances aggravating and mitigating in the 

individual cases. Law courts have been consistent in the approach that a 

reasonable proportion has to be maintained between the seriousness 

of the crime and the punishment - While it is true that sentence 

disproportionately severe should not be passed that does not clothe the 

court with an option to award the sentence manifestly inadequate - 

Justice demands that courts should impose punishment befitting the 

crime so that the courts reflect public abhorrence of the crime - As far 

as the award of compensation is concerned, particularly in the case of 

homicidal death, monetary benefits cannot be equated with the life of a 

person and the society’s cry for justice - Object is just to mitigate 

hardship that is caused to the deceased - Fine amount of Rs.25,000/- 

imposed on each of the accused is increased to Rs.1,25,000/- each. 

909 


[Para 9] 

Held, 

Considering the facts of the present case as submitted by the learned


counsel for the respondents two accused namely Raj and Narender were the 

students at the time of the incident while Manphool has crossed the age of 72 

years. The occurrence was in the year 1993 and more than 22 years have 

elapsed from the date of the incident. For the conviction under Section 304 Part 

II IPC read with Section 149 IPC reduction of sentence from seven years to the 

period already undergone, though, appears to be inadequate, at this distant 

point of time, we are not inclined to interfere with the exercise of discretion by 

the High Court in reducing the sentence of imprisonment from seven years to 

the period already undergone by each of the accused. As far as the award of 

compensation is concerned, particularly in the case of homicidal death, 

monetary benefits cannot be equated with the life of a person and the society’s 

cry for justice. Object is just to mitigate hardship that is caused to the deceased. 

Fine amount of Rs.25,000/- imposed on each of the accused is increased to 

Rs.1,25,000/- each. 

JUDGMENT 

910 


R. BANUMATHI, J. – (July 15, 2015 ) - Delay condoned and leave granted 

in both the special leave petitions. 

2. These appeals arise out of the impugned judgment dated 16.08.2010 

passed by the High Court of Punjab and Haryana at Chandigarh in Criminal 

Appeal No.514-SB/1998 whereby the High Court disposed of the appeal filed by 

the respondents-accused directing the reduction of sentence of the accused 

persons under Section 304 Part II IPC read with Section 149 IPC and Section 148 

IPC to the period already undergone and further directing the accused Pyare Lal 

@ Hitender Pradeep and Manphool to deposit Rs.1,25,000/- each and directing 

other accused persons to deposit an amount of Rs.25,000/- each with the trial 

court with default clause and directing the trial court to disburse the said 

amount of compensation to the legal heirs of the deceased-Duli Chand. 

3. Brief facts which led to the filing of these appeals are as under:- On 

04.08.1993 complainant-Sher Singh (PW6) along with his elder brother Duli 

Chand were returning from Bus adda of village Devsar towards their house. No 

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Sooner they reached the tyre puncture shop owned by Rajpal, they saw these 

accused persons–respondents, namely, Pyare Lal @ Hitender Pradeep (A-4) 

armed with lathi, Ramesh @ Ravinder Pardeep (A-1) armed with a jailly and 

Surender (A-2), Raj Kumar (A-3) and Manphool (A-5) also armed with lathi. 

Fourth accused-Pyare Lal whooped (lalkar) stating that ‘Duli Chand should be 

taught a lesson for making a complaint against them before the panchayat’ and 

the accused persons assaulted Duli Chand. Accused-Pyare Lal @ Hitender 

Pradeep (A-4) gave lathi blow on the head of Duli Chand, Ramesh inflicted a 

jailly blow on the right arm of Duli Chand, Surender (A-2) hit Duli Chand with a 

lathi on the right hand. Accused Raj Kumar (A-3) gave a lathi blow on the hands 

of Duli Chand. Narender (A-6) gave a lathi blow on the right leg of Duli Chand 

while Manphool (A-5) gave a lathi blow on the head of Duli Chand. Due to the 

attack deceased sustained grievous injuries and fell down and all the accused 

persons dragged him inside the house of Bhundu. On hearing the screaming of 

the complainant-Sher Singh for help, Jai Singh and Roshan Lal came to the spot. 

Sher Singh (PW6) with the help of Jai Singh and Roshan Lal (PW7) had taken Duli 

Chand to General Hospital, Bhiwani. Duli Chand remained in coma and 

succumbed to injuries on 09.08.1993. On the basis of the complaint lodged by 

complainant-Sher Singh, FIR No.277 was registered under Sections 147, 148, 

149, 323, 324 and 342 IPC. On the death of Duli Chand, the FIR was altered to 

Section 304 Part II IPC. On completion of investigation, chargesheet was filed 

against the accused persons. 

911 


4. The charges were framed against all the accused persons under 

Sections 148 and 302/149 IPC and all the accused pleaded not guilty. Upon 

consideration of the evidence adduced by the prosecution, the trial court vide 

judgment dated 11.06.1998 convicted all the six accused persons under Section 

304 Part II IPC read with Section 149 IPC and sentenced each of them to 

undergo rigorous imprisonment for a period of seven years. The accused were 

also convicted under Section 148 IPC and were sentenced to undergo rigorous 

imprisonment for two years. Being aggrieved by the judgment passed by the 

Sessions Court, accused persons filed Criminal Appeal No.514-SB/1998 before


the High Court of Punjab and Haryana at Chandigarh wherein vide impugned 

judgment dated 16.08.2010, High Court reduced the sentence of imprisonment 

imposed on all the six accused persons under Section 304 Part II IPC read with 

Section 149 IPC and 148 IPC to the period already undergone by each of them 

and also imposed fine as indicated in paragraph 2. Being aggrieved by the 

reduction of sentence, the appellant Ravinder Singh son of the deceased-Duli 

Chand has preferred criminal appeal arising out of SLP (Crl.) No.1839 of 2012 

assailing the correctness of the impugned judgment. 

5. Learned counsel for the appellant-Ravinder Singh contended that the 

injuries caused by the accused resulting in the death of Duli Chand have been 

well established by the prosecution and the penal liability cannot be substituted 

by payment of compensation. It was submitted that having regard to the 

manner of attack and the injuries, the respondents-accused do not deserve any 

mercy and the High Court has erred in showing undue sympathy in reducing 

sentence to the period already undergone. 

912 


6. Learned counsel for the respondents-accused submitted that accused 

Narender (A-6), Raj Kumar (A-3) were the students and Pyare Lal (A-4) was a 

police personnel and Manphool (A-5-since dead) was aged about 72 years and 

having regard to the facts and circumstances of the case, High Court reduced 

the sentence to the period already undergone and it cannot be said to be an 

erroneous exercise of discretion warranting interference in exercising 

jurisdiction under Article 136 of the Constitution of India. 

7. We have heard the rival contentions advanced by the parties and 

gave our thoughtful consideration to the evidence and material on record. 

8. The evidence adduced by the prosecution that the respondentsaccused 

inflicted injuries on the deceased-Duli Chand which caused his death 

and conviction of the respondents-accused is unassailable. The only point to be 

considered is whether there was improper exercise of discretion by the High 

Court in reducing the substantive sentence to the period already undergone and 

directing the accused to pay the amount of compensation is correct. 

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9. Question of sentence is always a difficult task requiring balancing of 

various considerations. The question of awarding sentence is a matter of 

discretion to be exercised on consideration of circumstances aggravating and 

mitigating in the individual cases. Law courts have been consistent in the 

approach that a reasonable proportion has to be maintained between the 

seriousness of the crime and the punishment. While it is true that sentence 

disproportionately severe should not be passed that does not clothe the court 

with an option to award the sentence manifestly inadequate. Justice demands 

that courts should impose punishment befitting the crime so that the courts 

reflect public abhorrence of the crime. In State of Karnataka v. Krishnappa, 

(2000) 4 SCC 75, this Court held thus: 

“…The sentencing courts are expected to consider all relevant 

facts and circumstances bearing on the question of sentence and 

proceed to impose a sentence commensurate with the gravity of the 

offence. Courts must hear the loud cry for justice by the society in cases 

of the heinous crime of rape on innocent helpless girls of tender years, 

as in this case, and respond by imposition of proper sentence. Public 

abhorrence of the crime needs reflection through imposition of 

appropriate sentence by the court. There are no extenuating or 

mitigating circumstances available on the record which may justify 

imposition of any sentence less than the prescribed minimum on the 

respondent. To show mercy in the case of such a heinous crime would 

be a travesty of justice and the plea for leniency is wholly misplaced. 

The High Court, in the facts and circumstances of the case, was not 

justified in interfering with the discretion exercised by the trial court 

and our answer to the question posed in the earlier part of the 

judgment is an emphatic — No…” 

913 


10. Considering the facts of the present case as submitted by the 

learned counsel for the respondents two accused namely Raj Kumar (A-3) and 

Narender (A-6) were the students at the time of the incident while Manphool 

(A-5) has crossed the age of 72 years. The occurrence was in the year 1993 and


more than 22 years have elapsed from the date of the incident. For the 

conviction under Section 304 Part II IPC read with Section 149 IPC reduction of 

sentence from seven years to the period already undergone, though, appears to 

be inadequate, at this distant point of time, we are not inclined to interfere with 

the exercise of discretion by the High Court in reducing the sentence of 

imprisonment from seven years to the period already undergone by each of the 

accused. As far as the award of compensation is concerned, particularly in the 

case of homicidal death, monetary benefits cannot be equated with the life of a 

person and the society’s cry for justice. Object is just to mitigate hardship that is 

caused to the deceased. 

11. In the facts and circumstances of the case considering the plight of 

deceased family, the fine amount of Rs.25,000/- imposed on each of the 

accused Ramesh @ Ravinder Pardeep (A-1), Surender (A-2), Raj Kumar (A-3), 

Narender (A-6) is increased to Rs.1,25,000/- each. Apart from the fine amount 

of Rs.25,000/- said to have been deposited by each of the accused 1, 2, 3 and 6, 

914 


they shall pay an additional fine of Rs.1,00,000/- each within eight weeks. 

Accused No.4-Pyare Lal @ Hitender Pradeep shall pay fine amount of 

Rs.1,25,000/- if he has not so far deposited within eight weeks. In case, the fine 

amount/enhanced fine amount is not deposited by the respondents-accused 

before the trial court within the time stipulated, then they shall undergo the 

substantive sentence of imprisonment as imposed by the trial court. Once the 

aforesaid amount is deposited by the respondents accused, the trial court shall 

disburse the same to the legal representatives of Duli Chand. Accused 

Manphool (A-5) died during the proceedings. If he had already paid the fine 

amount, the same shall also be disbursed to the legal heirs of Duli Chand. Since 

this order is passed in the peculiar facts and circumstances of the case, this may 

not be treated as a precedent. The appeal is disposed of in the above terms. 

Criminal Appeal arising out of SLP (Crl.) No.7101 of 2012 is disposed of in the 

same terms. 

Ss --- 

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Present: Mr. Justice Jagdish Singh Khehar and Mr. Justice Arun Mishra. 

INDIAN PERFORMING RIGHTS SOCIETY LTD. – Appellant, 

versus 

SANJAY DALIA & Anr. – Respondents. 

CIVIL APPEAL NOS.10643-10644 OF 2010 

(With C.A. No.4912/2015 @ SLP [C] No.8253/2013) 

(i) Cause of action - Accrual of cause of action is a sine qua non 

for a suit to be filed. Cause of action is a bundle of facts which is 

required to be proved to grant relief to the plaintiff - Cause of action 

not only refers to the infringement but also the material facts on which 

right is founded. [Para 15] 

(ii) Copyright Act, Section 62 - Trade Marks Act, section 134 - In 

a case where cause of action has arisen at a place where the plaintiff is 

residing or where there are more than one such persons, any of them 

actually or voluntarily resides or carries on business or personally works 

for gain would oust the jurisdiction of other place where the cause of 

action has not arisen though at such a place, by virtue of having 

subordinate office, the plaintiff instituting a suit or other proceedings 

might be carrying on business or personally works for gain – Head office 

of complainant at Mumbai, Offence at Mumbai, New Delhi where 

subordinate office is situated shall not have jurisdiction - CPC Section 

20. [Para 18] 

915 


Held, 

The intendment of the aforesaid provisions inserted in the Copyright 

Act and the Trade Marks Act is to provide a forum to the plaintiff where he is

916 



residing, carrying on business or personally works for gain. The object is to 

ensure that the plaintiff is not deterred from instituting infringement 

proceedings “because the court in which proceedings are to be instituted is at a 

considerable distance from the place of their ordinary residence”. The 

impediment created to the plaintiff by section 20 C.P.C. of going to a place 

where it was not having ordinary residence or principal place of business was 

sought to be removed by virtue of the aforesaid provisions of the Copyright Act 

and the Trade Marks Act. Where the Corporation is having ordinary 

residence/principal place of business and cause of action has also arisen at that 

place, it has to institute a suit at the said place and not at other places. The 

provisions of section 62 of the Copyright Act and section 134 of the Trade Marks 

Act never intended to operate in the field where the plaintiff is having its 

principal place of business at a particular place and the cause of action has also 

arisen at that place so as to enable it to file a suit at a distant place where its 

subordinate office is situated though at such place no cause of action has arisen. 

Such interpretation would cause great harm and would be juxtaposed to the 

very legislative intendment of the provisions so enacted. [Para 17] 

There is no doubt about it that the words used in section 62 of the 

Copyright Act and section 134 of the Trade Marks Act, ‘notwithstanding 

anything contained in CPC or any other law for the time being in force’, 

emphasise that the requirement of section 20 of the CPC would not have to be 

complied with by the plaintiff if he resides or carries on business in the local 

limits of the court where he has filed the suit but, in our view, at the same time, 

as the provision providing for an additional forum, cannot be interpreted in the 

manner that it has authorised the plaintiff to institute a suit at a different place 

other than the place where he is ordinarily residing or having principal office 

and incidentally where the cause of action wholly or in part has also arisen. The 

impugned judgments, in our considered view, do not take away the additional 

forum and fundamental basis of conferring the right and advantage to the 

authors of the Copyright Act and the Trade Marks Act provided under the 

aforesaid provisions. [Para 20] 

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If they were residing or carrying on business or personally worked for 

gain already at such place, where cause of action has arisen, wholly or in part, 

the said provisions have not provided additional remedy to them to file a suit at 

a different place. The said provisions never intended to operate in that field. The 

operation of the provisions was limited and their objective was clearly to enable 

the plaintiff to file a suit at the place where he is ordinarily residing or carrying 

on business etc., as enumerated above, not to go away from such places. The 

Legislature has never intended that the plaintiff should not institute the suit 

where he ordinarily resides or at its Head Office or registered office or where he 

otherwise carries on business or personally works for gain where the cause of 

action too has arisen and should drag the defendant to a subordinate office or 

other place of business which is at a far distant place under the guise of the fact 

that the plaintiff/corporation is carrying on business through branch or 

otherwise at such other place also. 

(iii) Copyright Act, Section 62 - Trade Marks Act, section 134 - It 

was also submitted that as the bulk of litigation of such a nature is filed 

at Delhi and lawyers available at Delhi are having expertise in the 

matter, as such it would be convenient to the parties to contest the suit 

at Delhi - Such aspects are irrelevant for deciding the territorial 

jurisdiction - It is not the convenience of the lawyers or their expertise 

which makes out the territorial jurisdiction. [Para 45] 

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Qoute: “Right to approach the court/pursuing the legal remedy 

cannot be made a farce or oppressive as that would not be conducive 

for the effective administration of justice.” 

JUDGMENT 

ARUN MISHRA, J. - ( 1 st july, 2015) –


1. Leave granted in SLP[C] No.8253 of 2013. 

2. In the appeals, the question arising for consideration is as to the 

interpretation of section 62 of the Copyright Act, 1957 and section 134(2) of the 

Trade Marks Act, 1999 with regard to the place where a suit can be instituted by 

the plaintiff. 

3. The plaintiff/appellant in Civil Appeal Nos. 10643-44/2010 had filed a 

suit praying for relief against defendant No.1 so as to prevent infringement of 

the rights of the plaintiff without obtaining the licence. The defendant owns 

cinema halls in Maharashtra and Mumbai where infringement is alleged and the 

entire cause of action, as alleged in the plaint, has arisen in Mumbai, 

Maharashtra. 

4. Civil Suit FAO (OS) No. 359/2007 has been filed in the High Court at 

Delhi, by virtue of the fact that the Branch Office of the plaintiff is situated at 

Delhi and the plaintiff is carrying on the business at Delhi. However, it is not 

disputed that the plaintiff’s Head Office is situated at Mumbai. The objection 

918 


was raised by the defendant with regard to the territorial jurisdiction of the 

court at Delhi. The single Bench and the Division Bench of the High Court have 

upheld the objection and held that the suit should have been filed in the facts of 

the case, in the court at Mumbai. Hence, the impugned order has been 

questioned in the appeals. 

5. In Civil Appeal arising out of SLP [C] No. 8253/2013 – (Advance 

Magazine Publishers Inc. & Anr. v. Just Lifestyle Pvt. Ltd.), the suit has been filed 

with respect to the infringement of the trademark. The registered office of 

“Vogue India” is in Mumbai. The magazine is processed and published in 

Mumbai. It was submitted that because the plaintiff has branch office at Delhi, it 

had sufficient ground for invoking the jurisdiction under section 134 of the 

Trade Marks Act. The plaintiff filed an application seeking an amendment in the 

plaint under Order 6 Rule 17 of the Code of Civil Procedure so as to indicate how 

the court at Delhi would have the jurisdiction. The magazine is sold and 

circulated to the subscribers at Delhi. The application seeking amendment has 

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also been dismissed by the High Court as even if allowed, amended pleadings 

would not confer jurisdiction upon the court. Merely situation of branch office is 

not enough as no cause of action as per the plaint, has arisen in Delhi. The 

Division Bench has allowed the appeal and set aside the order passed by the 

Single Bench, allowing the amendment. The said order has been impugned in 

SLP [C] No.8253/2013. 

6. It was submitted by Shri T.R. Andhiarujina, learned senior counsel 

representing the appellants, that a special right has been conferred under 

section 62(2) of the Copyright Act and section 134 of the Trade Marks Act 

containing non-obstante clause to the applicability of the Code of Civil 

Procedure or any other law for the time being in force, and the plaintiff has 

been conferred a right to file a suit where it carries on its business. That cannot 

be whittled down by combining with it the cause of action. The impediment of 

section 20 of the Code of Civil Procedure is not applicable. Section 62(2) of the 

Copyright Act and section 134 of the Trade Marks Act have no co-relation to the 

cause of action and suit can be filed where plaintiff resides or carries on his 

business or personally works for gain. The interpretation made by the High 

Court is contrary to the aforesaid provisions. Convenience of the defendant is 

not a relevant consideration. The binding decision of this Court in Exphar SA & 

Anr. v. Eupharma Laboratories Ltd. & Anr [2004 (3) SCC 688] has been violated. 

The judgment has not been taken into consideration though it was decided 

earlier to the passing of the impugned decision. Reliance has also been placed 

on the decisions of this Court in Dhodha House v. S.K. Maingi [2006 (9) SCC 41], 

Dabur India Ltd. v. K.R. Industries [2008 (10) SCC 595] and various other 

decisions of the High Court of Delhi viz., Smithkline Beecham & Anr. v. Sunil 

Singhi & Anr. [2000 (1) PTC 321 (Del.)], Caterpillar Inc. v. Kailash Nichani & Ors. 

[2002 (24) PTC 405 (Del.)], Intas Pharmaceuticals Ltd. v. Allergan Inc. [132 (2006) 

Delhi Law Times 641] to contend that under the aforesaid provisions accrual of 

cause of action wholly or in part is not necessary at a place where the plaintiff 

chooses to file a suit where he is carrying on business. 

919 


7. On behalf of the applicants in C.A. Nos. 10643-44/2010, Mr. Sudhir

920 



Chandra, learned senior counsel, submitted that while interpreting section 62 of 

the Copyright Act and section 134(2) of the Trademarks Act, the intention of 

Parliament is to be gathered from plain and natural meaning. Heydon’s ‘rule of 

mischief’ is not attracted where the words of the statute are clear and 

unambiguous. There is no challenge to the vires of section 62 of the Copyright 

Act. Thus, the court cannot invoke the doctrine of reading down the provisions. 

Section 62 of the Copyright Act is a special legislation and confers a special right 

on the plaintiff where it carries on business or resides. Reading the Explanation 

to section 20 of the Code of Civil Procedure into section 62 will do violence to 

the Copyright Act. The requirement of cause of action or Explanation as to the 

corporation of Section 20 C.P.C. cannot be added to the aforesaid provisions. 

Facts of few cases cannot be considered so as to make interpretation of 

provisions. Interpretation of the statute is to be made de hors the facts of 

individual cases. The intention of legislation is also clear from the Parliamentary 

Debates and where the law has held the field for a long time it should not be 

unsettled. The decision in Dhodha House (supra) holds the field. As such, if a 

different interpretation is to be made, the case should be referred to a larger 

Bench of this Court. Non-obstante clause cannot be diluted. 

8. On the other hand, on behalf of the respondents, it was submitted 

that abuse of provisions of section 62 of the Copyright Act and section 134 of 

the Trade Marks Act cannot be permitted at the hands of multi-national 

corporations to harass the defendant/s. With respect to the suit being filed by 

the Corporation, section 20 is not inapplicable. ‘Carrying on business’ cannot be 

defined subjectively. Reliance has been placed upon Patel Roadways Ltd., 

Bombay v. Prasad Trading Co. [1991 (4) SCC 270]. The object of the Parliament 

behind enacting section 62 of the Copyright Act and section 134 of the Trade 

Marks Act has to be taken into consideration while interpreting the said 

provisions. The mischief rule of Heydon has been pressed into service so as to 

prevent harassment of the defendants and abuse of the said provisions. Court is 

duty-bound to avoid disproportionate counter mischief while interpreting a 

provision. Public policy and convenience to parties have to be taken into 

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consideration. The interpretation of provisions must be such so as to avoid 

hardship and absurdity. The decisions relied upon by the appellants have been 

sought to be distinguished. 

9. The Code of Civil Procedure, 1908 contains the provisions under 

section 20 with respect to institution of the suits where defendant resides or 

cause of action arose. Section 20 of the Code of Civil Procedure reads thus : 

“Section 20 - Other suits to be instituted where defendants 

reside or cause of action arises. -- Subject to the limitations aforesaid, 

every suit shall be instituted in a Court within the local limits of whose 

jurisdiction – 

(a) the defendant, or each of the defendants where there are 

more than one, at the time of the commencement of the suit, actually 

and voluntarily resides, or carries on business, or personally works for 

gain; or 

(b) any of the defendants, where there are more than one, at 

the time of the commencement of the suit, actually and voluntarily 

resides, or carries on business, or personally works for gain, provided 

that in such case either the leave of the Court is given, or the 

defendants who do not reside, or carry on business, or personally work 

for gain, as aforesaid, acquiesce in such institution; or 

921 


(c) the cause of action, wholly or in part, arises. 

[Explanation]. : A corporation shall be deemed to carry on 

business at its sole or principal office in India or, in respect of any cause 

of action arising at any place where it has also a subordinate office, at 

such place.” 

10. In order to amend and consolidate the law relating to copyrights, 

the matter was referred to a Joint Committee. The Joint Committee of the 

Houses submitted the report which contained the object of the provisions of 

section 62 is that many authors are deterred from instituting infringement 

proceedings because the court in which the proceedings are to be instituted are


at a considerable distance from the place of their ordinary residence. Such 

impediments should be removed and the proceedings may be instituted in the 

local court where the person instituting the proceedings ordinarily resides, 

carries on business etc. Clause 61 of the Report of the said Committee is 

extracted below : 

“Clause 61 (Original clause 65). --Sub-clause (2) of the original 

clause 65 has been omitted and replaced by a new sub-clause. The 

Committee feels that the provisions of the original sub-clause (2) would 

virtually make registration of copyright compulsory and would be an 

922 


undue restriction on the owner of the copyright to exercise his rights. In 

the opinion of the Committee many authors are deterred from 

instituting infringement proceedings because the court in which such 

proceedings are to be instituted is situated at a considerable distance 

from the place of their ordinary residence. The Committee feels that this 

impediment should be removed and the new sub-clause (2) accordingly 

provides that infringement proceedings may be instituted in the district 

court within the local limits of whose jurisdiction the person instituting 

the proceedings ordinarily resides, carries on business, etc.” (emphasis 

supplied by us) 

Section 62 of the Copyright Act is extracted below : 

“62. Jurisdiction of court over matters arising under this 

Chapter. – 

(1) Every suit or other civil proceeding arising under this Chapter 

in respect of the infringement of copyright in any work or the 

infringement of any other right conferred by this Act shall be instituted 

in the district court having jurisdiction. 

(2) For the purpose of sub-section (1), a "district court having 

jurisdiction" shall, notwithstanding anything contained in the Code of 

Civil Procedure, 1908 (5 of 1908), or any other law for the time being in 

force, include a district court within the local limits of whose 

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jurisdiction, at the time of the institution of the suit or other 

proceeding, the person instituting the suit or other proceeding or, 

where there are more than one such persons, any of them actually and 

voluntarily resides or carries on business or personally works for gain.” 

Section 134 of the Trade Marks Act is also extracted below : 

“134. Suit for infringement, etc., to be instituted before District 

Court. – 

(1) No suit— 

(a) for the infringement of a registered trade mark; or 

(b) relating to any right in a registered trade mark; or 

(c) for passing off arising out of the use by the defendant of any 

trade mark which is identical with or deceptively similar to the plaintiff's 

trade mark, whether registered or unregistered, 

shall be instituted in any court inferior to a District Court having 

jurisdiction to try the suit. 

(2) For the purpose of clauses (a) and (b) of sub-section (1), a 

"District Court having jurisdiction" shall, notwithstanding anything 

contained in the Code of Civil Procedure, 1908 (5 of 1908) or any other 

law for the time being in force, include a District Court within the local 

limits of whose jurisdiction, at the time of the institution of the suit or 

other proceeding, the person instituting the suit or proceeding, or, 

where there are more than one such persons any of them, actually and 

voluntarily resides or carries on business or personally works for gain. 

Explanation.--For the purposes of sub-section (2), "person" includes the 

registered proprietor and the registered user.” 

923 


11. Following portion of the Parliamentary Debates as to Copyright Act 

has been relied upon : 

“Shri P. Trikamdas: Ordinarily it should fall within the 

jurisdiction of the court where the infringing copy was published. But 

there is nothing to prevent Parliament from making a law, as for


instance in the case of divorce, and saying that the cause of action may 

also arise at any place where the author resides or where the original 

publication took place, so that you could drag the infringer to that court. 

Instead of making the another run all over the country facing the 

infringer, the right may be given to the injured party-the author-to sue 

the main in the place where the author resides or where the first copy 

was published. 

Dr. Raghubir Sinh: So you agree to that? 

Shri P. Trikamdas: Yes, and I am obliged to you for asking me 

that question. 

Dr. Raghubir Sinh: Does Mr. Masani also approve of it? 

Shri Masani : Yes. 

Shri P. Trikamdas: It is desirable, also because it may act as a 

deterrent on the infringer when he knows that he may have to go a few 

hundred miles off to a High Court where the author lives or where the 

924 


book got published first.” 

12. Considering the very language of section 62 of the Copyright Act 

and section 134 of the Trade Marks Act, an additional forum has been provided 

by including a District Court within whose limits the plaintiff actually and 

voluntarily resides or carries on business or personally works for gain. The 

object of the provisions was to enable the plaintiff to institute a suit at a place 

where he or they resided or carried on business, not to enable them to drag 

defendant further away from such a place also as is being done in the instant 

cases. In our opinion, the expression “notwithstanding anything contained in 

the Code of Civil Procedure” does not oust the applicability of the provisions of 

section 20 of the Code of Civil Procedure and it is clear that additional remedy 

has been provided to plaintiff so as to file a suit where he is residing or carrying 

on business etc., as the case may be. Section 20 of the Code of Civil Procedure 

enables a plaintiff to file a suit where the defendant resides or where cause of 

action arose. Section 20(a) and section 20(b) usually provides the venue where 

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the defendant or any of them resides, carries on business or personally works 

for gain. Section 20(c) of the Code of Civil Procedure enables a plaintiff to 

institute a suit where the cause of action wholly or in part, arises. The 

Explanation to Section 20 C.P.C. has been added to the effect that Corporation 

shall be deemed to carry on business at its sole or principal office in India or in 

respect of any cause of action arising at any place where it has subordinate 

office at such place. Thus, ‘corporation’ can be sued at a place having its sole or 

principal office and where cause of action wholly or in part, arises at a place 

where it has also a subordinate office at such place. 

13. Learned author Mulla in the Code of Civil Procedure, 18th Edn., has 

observed that under clauses (a) to (c) of section 20, plaintiff has a choice of 

forum to institute a suit. The intendment of the Explanation to section 20 of the 

Code of Civil Procedure is that once the corporation has a subordinate office in 

the place where the cause of action arises wholly or in part, it cannot be heard 

to say that it cannot be sued there because it did not carry on business at that 

place. The linking of the place with the cause of action in the Explanation where 

subordinate office of the corporation is situated is reflective of the intention of 

the Legislature and such a place has to be the place of the filing of the suit and 

not the principal place of business. Ordinarily the suit has to be filed at the place 

where there is principal place of business of the corporation. 

925 


14. ‘Corporation’ in the Explanation would mean not only the statutory 

corporation but companies registered under the Companies Act, as held by this 

Court in Patel Roadways Ltd., Bombay v. Prasad Trading Co. etc. [1991 (4) SCC 

270] and New Moga Transport Co., through its Proprietor v. United India 

Insurance Co. Ltd. & Ors. [2004 (4) SCC 677]. The domicile of the company is 

fixed by the situation of its principal place of business as held in Jones v. Scottish 

Accident Insurance Co. (1886) 17 QBD 421. In the case of companies registered 

under the Companies Act, the controlling power is, as a fact, generally exercised 

at the registered office, and that office is therefore not only for the purposes of 

the Act, but for other purposes, the principal place of business, as held in 

Watkins v. Scottish Imperial Insurance Co. (1889) 23 QBD 285. A company may


have subordinate or branch offices in fifty different jurisdictions and it may be 

sued in any one of such jurisdictions in respect of a cause of action arising there, 

has been held in Peoples’ Insurance Co. v. Benoy Bhushan [AIR 1943 Cal. 190]; 

Home Insurance Co. v. Jagatjit Sugar Mills Co. [AIR 1952 Punj. 142]; and Prag Oil 

Mils Depot v. Transport Corpn. of India [AIR 1978 Ori. 167]. 

15. Accrual of cause of action is a sine qua non for a suit to be filed. 

Cause of action is a bundle of facts which is required to be proved to grant relief 

to the plaintiff. Cause of action not only refers to the infringement but also the 

material facts on which right is founded. Section 20 of the CPC recognises the 

territorial jurisdiction of the courts inter alia where the cause of action wholly or 

in part arises. It has to be decided in each case whether cause of action wholly 

or in part arises at a particular place. As held by this Court in Rajasthan High 

Court Advocates Association v. Union of India & Ors. [AIR 2001 SC 416]. Thus, a 

plaintiff can also file a suit where the cause of action wholly or in part arises. 

16. On a due and anxious consideration of the provisions contained in 

926 


section 20 of the CPC, section 62 of the Copyright Act and section 134 of the 

Trade Marks Act, and the object with which the latter provisions have been 

enacted, it is clear that if a cause of action has arisen wholly or in part, where 

the plaintiff is residing or having its principal office/carries on business or 

personally works for gain, the suit can be filed at such place/s. Plaintiff(s) can 

also institute a suit at a place where he is residing, carrying on business or 

personally works for gain de hors the fact that the cause of action has not arisen 

at a place where he/they are residing or any one of them is residing, carries on 

business or personally works for gain. However, this right to institute suit at 

such a place has to be read subject to certain restrictions, such as in case 

plaintiff is residing or carrying on business at a particular place/having its head 

office and at such place cause of action has also arisen wholly or in part, plaintiff 

cannot ignore such a place under the guise that he is carrying on business at 

other far flung places also. The very intendment of the insertion of provision in 

the Copyright Act and Trade Marks Act is the convenience of the plaintiff. The 

rule of convenience of the parties has been given a statutory expression in 

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section 20 of the CPC as well. The interpretation of provisions has to be such 

which prevents the mischief of causing inconvenience to parties. 

17. The intendment of the aforesaid provisions inserted in the Copyright 

Act and the Trade Marks Act is to provide a forum to the plaintiff where he is 

residing, carrying on business or personally works for gain. The object is to 

ensure that the plaintiff is not deterred from instituting infringement 

proceedings “because the court in which proceedings are to be instituted is at a 

considerable distance from the place of their ordinary residence”. The 

impediment created to the plaintiff by section 20 C.P.C. of going to a place 

where it was not having ordinary residence or principal place of business was 

sought to be removed by virtue of the aforesaid provisions of the Copyright Act 

and the Trade Marks Act. Where the Corporation is having ordinary 

residence/principal place of business and cause of action has also arisen at that 

place, it has to institute a suit at the said place and not at other places. The 

provisions of section 62 of the Copyright Act and section 134 of the Trade Marks 

Act never intended to operate in the field where the plaintiff is having its 

principal place of business at a particular place and the cause of action has also 

arisen at that place so as to enable it to file a suit at a distant place where its 

subordinate office is situated though at such place no cause of action has arisen. 

Such interpretation would cause great harm and would be juxtaposed to the 

very legislative intendment of the provisions so enacted. 

927 


18. In our opinion, in a case where cause of action has arisen at a place 

where the plaintiff is residing or where there are more than one such persons, 

any of them actually or voluntarily resides or carries on business or personally 

works for gain would oust the jurisdiction of other place where the cause of 

action has not arisen though at such a place, by virtue of having subordinate 

office, the plaintiff instituting a suit or other proceedings might be carrying on 

business or personally works for gain. 

19. At the same time, the provisions of section 62 of the Copyright Act 

and section 134 of the Trade Marks Act have removed the embargo of suing at 

place of accrual of cause of action wholly or in part, with regard to a place


where the plaintiff or any of them ordinarily resides, carries on business or 

personally works for gain. We agree to the aforesaid extent the impediment 

imposed under section 20 of the CPC to a plaintiff to institute a suit in a court 

where the defendant resides or carries on business or where the cause of action 

wholly or in part arises, has been removed. But the right is subject to the rider in 

case plaintiff resides or has its principal place of business/carries on business or 

personally works for gain at a place where cause of action has also arisen, suit 

should be filed at that place not at other places where plaintiff is having branch 

offices etc. 

928 


20. There is no doubt about it that the words used in section 62 of the 

Copyright Act and section 134 of the Trade Marks Act, ‘notwithstanding 

anything contained in CPC or any other law for the time being in force’, 

emphasise that the requirement of section 20 of the CPC would not have to be 

complied with by the plaintiff if he resides or carries on business in the local 

limits of the court where he has filed the suit but, in our view, at the same time, 

as the provision providing for an additional forum, cannot be interpreted in the 

manner that it has authorised the plaintiff to institute a suit at a different place 

other than the place where he is ordinarily residing or having principal office 

and incidentally where the cause of action wholly or in part has also arisen. The 

impugned judgments, in our considered view, do not take away the additional 

forum and fundamental basis of conferring the right and advantage to the 

authors of the Copyright Act and the Trade Marks Act provided under the 

aforesaid provisions. 

21. The provisions of section 62(2) of the Copyright Act and section 134 

of the Trade Marks Act are pari materia. Section 134(2) of the Trade Marks Act 

is applicable to clauses (a) and (b) of section 134(1) of the Trade Marks Act. 

Thus, a procedure to institute suit with respect to section 134(1)(c) in respect of 

“passing off” continues to be governed by section 20 of CPC. 

22. If the interpretation suggested by the appellant is accepted, several 

mischiefs may result, intention is that the plaintiff should not go to far flung 

places than that of residence or where he carries on business or works for gain 

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in order to deprive defendant a remedy and harass him by dragging to distant 

place. It is settled proposition of law that the interpretation of the provisions 

has to be such which prevents mischief. The said principle was explained in 

Heydon’s case [76 ER 637]. According to the mischief rule, four points are 

required to be taken into consideration. While interpreting a statute, the 

problem or mischief that the statute was designed to remedy should first be 

identified and then a construction that suppresses the problem and advances 

the remedy should be adopted. The Heydon’s mischief rule has been referred to 

in Interpretation of Statutes by Justice G.P. Singh, 12th Edn., at pp. 124-125 thus 

: 

“(b) Rule in Heydon’s case; purposive construction: mischief rule 

When the material words are capable of bearing two or more 

constructions the most firmly established rule for construction of such 

words “of all statutes in general (be they penal or beneficial, restrictive 

or enlarging of the common law)” is the rule laid down in Heydon’s case 

(76 ER 637) which has “now attained the status of a classic *Kanailal Sur 

v. Paramnidhi Sadhukhan AIR 1957 SC 907]. The rule which is also 

known as ‘purposive construction’ or ‘mischief rule’ *Anderton v. Ryan 

1985 2 ALL ER 355], enables consideration of four matters in construing 

an Act: (i) What was the law before the making of the Act, (ii) What was 

the mischief or defect for which the law did not provide, (iii) What is the 

remedy that the Act has provided, and (iv) What is the reason of the 

remedy. The rule then directs that the courts must adopt that 

construction which “shall suppress the mischief and advance the 

remedy”. The rule was explained in the Bengal Immunity Co. v. State of 

Bihar *AIR 1955 SC 661+ by S.R. DAS, CJI as follows: “It is a sound rule of 

construction of a statute firmly established in England as far back as 

1584 when Heydon’s case (supra) was decided that for the sure and true 

interpretation of all Statutes in general (be they penal or beneficial, 

restrictive or enlarging of the common law) four things are to be 

discerned and considered: 

929 



1 st - What was the common law before the making of the Act? 

2 nd - What was the mischief and defect for which the common 

law did not provide? 

3 rd - What remedy the Parliament hath resolved and appointed 

to cure the disease of the commonwealth, and 

4 th - The true reason of the remedy; 

and then the office of all the judges is always to make such 

construction as shall suppress the mischief, and advance the remedy, 

and to suppress subtle inventions and evasions for continuance of the 

mischief, and pro private commodo, and to add force and life to the 

cure and remedy, according to the true intent of the makers of the Act, 

pro bono publico. [Bengal Immunity Co. v. State of Bihar (supra)+.” 

23. Considering the first aspect of aforesaid principle, the common law 

which was existing before the provisions of law were passed was section 20 of 

the CPC. It did not provide for the plaintiff to institute a suit except in 

930 


accordance with the provisions contained in section 20. The defect in existing 

law was inconvenience/deterrence caused to the authors suffering from 

financial constraints on account of having to vindicate their intellectual property 

rights at a place far away from their residence or the place of their business. The 

said mischief or defect in the existing law which did not provide for the plaintiff 

to sue at a place where he ordinarily resides or carries on business or personally 

works for gain, was sought to be removed. Hence, the remedy was provided 

incorporating the provisions of section 62 of the Copyright Act. The provisions 

enabled the plaintiff or any of them to file a suit at the aforesaid places. But if 

they were residing or carrying on business or personally worked for gain already 

at such place, where cause of action has arisen, wholly or in part, the said 

provisions have not provided additional remedy to them to file a suit at a 

different place. The said provisions never intended to operate in that field. The 

operation of the provisions was limited and their objective was clearly to enable 

the plaintiff to file a suit at the place where he is ordinarily residing or carrying 

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on business etc., as enumerated above, not to go away from such places. The 

Legislature has never intended that the plaintiff should not institute the suit 

where he ordinarily resides or at its Head Office or registered office or where he 

otherwise carries on business or personally works for gain where the cause of 

action too has arisen and should drag the defendant to a subordinate office or 

other place of business which is at a far distant place under the guise of the fact 

that the plaintiff/corporation is carrying on business through branch or 

otherwise at such other place also. If such an interpretation is permitted, as 

rightly submitted on behalf of the respondents, the abuse of the provision will 

take place. Corporations and big conglomerates etc. might be having several 

subordinate offices throughout the country. Interpretation otherwise would 

permit them to institute infringement proceedings at a far flung place and at 

unconnected place as compared to a place where plaintiff is carrying on their 

business, and at such place, cause of action too has arisen. In the instant cases, 

the principal place of business is, admittedly, in Mumbai and the cause of action 

has also arisen in Mumbai. Thus, the provisions of section 62 of the Copyright 

Act and section 134 of the Trade Marks Act cannot be interpreted in a manner 

so as to confer jurisdiction on the Delhi court in the aforesaid circumstances to 

entertain such suits. The Delhi court would have no territorial jurisdiction to 

entertain it. 

931 


24. The avoidance of counter mischief to the defendant is also 

necessary while giving the remedy to the plaintiff under the provisions in 

question. It was never visualised by the law makers that both the parties would 

be made to travel to a distant place in spite of the fact that the plaintiff has a 

remedy of suing at the place where the cause of action has arisen where he is 

having head office/carrying on business etc. The provisions of the Copyright Act 

and the Trade Marks Act provide for the authors/trade marks holders to sue at 

their ordinary residence or where they carry on their business. The said 

provisions of law never intended to be oppressive to the defendant. The 

Parliamentary Debate quoted above has to be understood in the manner that 

suit can be filed where the plaintiff ordinarily resides or carries on business or


personally works for gain. Discussion was to provide remedy to plaintiff at 

convenient place; he is not to travel away. Debate was not to enable plaintiff to 

take defendant to farther place, leaving behind his place of residence/business 

etc. The right to remedy given is not unbriddled and is subject to the prevention 

of abuse of the aforesaid provisions, as discussed above. Parliament never 

intended that the subject provisions to be abused by the plaintiff by instituting 

suit in wholly unconnected jurisdiction. In the instant cases, as the principal 

place of business is at Mumbai the cause of action is also at Mumbai but still the 

place for suing has been chosen at Delhi. There may be a case where plaintiff is 

carrying on the business at Mumbai and cause of action has arisen in Mumbai. 

Plaintiff is having branch offices at Kanyakumari and also at Port Blair, if 

interpretation suggested by appellants is acceptable, mischief may be caused by 

such plaintiff to drag a defendant to Port Blair or Kanyakumari. The provisions 

cannot be interpreted in the said manner devoid of the object of the Act. 

25. It was also submitted that Heydon’s rule is not applicable where the 

932 


words of the statute are clear. Reliance has been placed on M/s. Hiralal 

Rattanlal etc. etc. v. State of U.P. and Anr. etc. [1973 (1) SCC 216] in which it has 

been observed that when the provision is unambiguous and if from the 

provision legislative intent is clear, the court need not call into aid the other rule 

of construction of statutes such as that of ‘mischief’. However, we opine, when 

two interpretations are possible, the court has to adopt the one which furthers 

the object as provided in the statute itself. 

26. Reliance has been placed on Padmasundara Rao (Dead) & Ors.v. 

State of Tamil Nadu and Ors. [AIR 2002 SC 1334] in which it has been observed 

that the intention of the Legislature must be found in the words used by the 

Legislature itself. Reliance has also been placed on Grasim Industries Ltd. v. 

Collector of Customs, Bombay [2002 (4) SCC 297] in which it has been observed 

that wherever the language is clear, the intention of the Legislature is to be 

gathered from the language used. While doing so, what has been said as also 

what has not been said, has to be noted. There is no dispute with the aforesaid 

proposition. However, the object of the Act and the intention of the Legislature 

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is clear which is to the otherwise. 

27. Bennion on Statutory Interpretation in section 318 in Part XXI has 

mentioned that strict construction may be avoided or at least reduced by 

limiting the remedy where a counter mischief would arise if the remedy 

provided by the Act was eschewed widely. It may appear to the court that one 

of the opposing construction of the enactment, if adopted, would operate a 

mischief of its own. The prospects of this would constitute a negative factor in 

weighing the applicability of the construction in question. The court also has in 

mind the consequences for the public welfare. Bennion has discussed thus : 

“General presumption against ‘absurdity’ For the general 

presumption that an ‘absurd’ result is not intended, of which the 

present section depicts one aspect, see Code s.312. 

Mischief As to the ‘mischief’ to which an enactment is directed 

see Code s.289. 

Counter-mischief Clearly it would be absurd to suppose that 

Parliament intended to abolish one mischief only at the cost of 

establishing another which is just as bad, or even worse. Many legal 

rules have adverse side-effects, and the policy of the law is to discard 

possible rules whose disadvantages outweigh their benefits. 

933 


Example 318.1 Lord Bingham of Cornhill said: 

‘My Lords, s.4 of the Statute of Frauds was enacted in 1677 to 

address a mischief facilitated, it seems, by the procedural deficiencies of 

the day…. It quickly became evident that if the seventeenth century 

solution addressed one mischief it was capable of giving rise to 

another….’ 

Regulatory Acts: Some types of remedy necessarily carry in 

their train corresponding drawbacks. One of the most frequent and 

inescapable of these is the loss of freedom that accompanies a 

regulatory measure. Such consequences are manifest, and must be 

treated as part of Parliament’s intention.


Strict construction : Where a counter-mischief would arise if the 

remedy provided by the Act were construed widely, the court may avoid 

or at least reduce it by limiting the remedy. 

Example 318.2 Section 1 of the Domestic Violence and 

Matrimonial Proceedings Act 1976 (repealed) empowered the county 

court to make orders excluding a violent husband from the matrimonial 

home. No limit was specified for the duration of such exclusion orders. 

The courts held that, to reduce the counter-mischief of keeping a man 

out of his own home, exclusion orders should be made only for a brief 

period. In one case Viscount Dilhorne inferred that the purpose of the 

1976 Act was ‘immediate relief not permanent resolution’. In another 

case Ormrod LJ said the 1976 Act was to be regarded as ‘a short-term 

remedy essentially’. 

It may appear to the court that one of the opposing 

constructions of the enactment, if adopted, would create a mischief of 

934 


its own. It is not unusual for a construction contended for by one of the 

parties to have as one of its consequences the infliction of a serious 

injustice on the other party. The prospect of this would constitute a 

negative factor in weighing the applicability of the construction in 

question. The court also has in mind the consequences for the public 

welfare. 

x x x x x 

Often it is reasonable to assume that the counter-mischief that 

has arisen was quite unforeseen by Parliament. Enacted law suffers by 

comparison with unwritten law in that it involves Laying down in 

advance an untried remedy.....” 

As observed, such a counter mischief to the defendant was unforeseen 

by Parliament and it is the court’s duty to mitigate the counter mischief. 

28. Strong reliance has been placed by the appellants on the discussions 

made by Bennion on avoiding disproportionate counter-mischief at page 1006 

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thus : 

“the Court seeks to avoid a construction that cures the mischief 

the enactment was designed to remedy only at the cost of setting up a 

disproportionate counter-mischief since this is unlikely to have been 

intended by Parliament. Sometimes there are overriding reasons for 

applying such a construction, for example, where the Parliament really 

intended it or a literal meaning is too strong.” 

We find no overriding reasons to apply construction solicited by the 

appellants as that was never intended by the Parliament. 

29. Bennion has also observed that public policy must inform the court’s 

interpretation of the relevant statutory provision and that public policy 

ascertained from the Act of the Parliament. In our opinion, right to approach the 

court/pursuing the legal remedy cannot be made a farce or oppressive as that 

would not be conducive for the effective administration of justice. 

30. Justice G.P. Singh in ‘Principles of Statutory Interpretation’, 12th 

Edition, has observed that regard be had to the subject and object of the Act. 

The court’s effort is to harmonise the words of the statute with the subject of 

enactment and the object the Legislature has in view. When two interpretations 

are feasible, the court will prefer the one which advances the remedy and 

suppresses the mischief as envisioned. The relevant portion is extracted below : 

935 


“As stated earlier (Chapter 1, title 2 ‘Intention of the Legislature’, text 

and notes 57 to 69, pages 14 to 17) and as approved by the Supreme Court: 

"The words of a statute, when there is doubt about their meaning, are to be 

understood in the sense in which they best harmonise with the subject of the 

enactment and the object which the Legislature has in view. Their meaning is 

found not so much in a strict grammatical or etymological propriety of language, 

nor even in its popular use, as in the subject or in the occasion on which they 

are used, and the object to be attained". [Workmen of Dimakuchi Tea Estate v. 

Management of Dimakuchi Tea Estate, AIR 1958 SC 353, p.356 ...] The courts 

have declined "to be bound by the letter, when it frustrates the patent purposes

936 



of the statute". [Cabell v. Markham, 148 F 2d 737 92nd cir 1945), (Judge 

Learned Hand). In the words of SHAH, J.: "It is a recognised rule of interpretation 

of statutes that expressions used therein should ordinarily be understood in a 

sense in which they best harmonise with the object of the statute, and which 

effectuate the object of the Legislature". [New India Sugar Mills Ltd. v. 

Commissioner of Sales Tax, Bihar, AIR 1963 SC 1207, p. 1213 ...]. Therefore when 

two interpretations are feasible the court will prefer that which advances the 

remedy and suppresses the mischief as the Legislature envisioned. [Carew & 

Company v. Union of India, AIR 1975 SC 2260, p. 2270...]. The Court should 

adopt an object oriented approach keeping in mind the principle that legislative 

futility is to be ruled out so long as interpretative possibility permits. (Busching 

Schmitz Private Ltd. v. P.T. Menghani, AIR 1977 SC 1569, pp. 1575, 1576...]. The 

object oriented approach, however, cannot be carried to the extent of doing 

violence to the plain language used by rewriting the section or substituting 

words in place of the actual words used by the Legislature. [CIT v. Budhraja and 

Company, AIR 1993 SC 2529, p. 2535]. 

Having regard to the object of the U.P. Bhoodan Yagna Act, 1953 to 

implement the Bhoodan movement, which aimed at distribution of land to 

landless labourers who were versed in agriculture and who had no other means 

of subsistence, it was held that the expression 'landless persons' in section 14, 

which made provision for grant of land to landless persons, was limited to 

landless labourers as described above and did not include a landless 

businessman residing in a city. [U.P. Bhoodan Yagna Samiti v. Braj Kishore, AIR 

1988 SC 2239+.” 

31. In Busching Schmitz Private Ltd. v. P.T. Menghani [1977 (2) SCC 835], 

it has been observed that purposive interpretation may be made having regard 

to the object of the provisions and to avoid any obvious lacuna. 

32. The learned author Justice G.P. Singh in Interpretation of Statutes, 

12th Edn. has also observed that it is the court’s duty to avoid hardship, 

inconvenience, injustice, absurdity and anomaly while selecting out of different 

interpretations. The doctrine must be applied with great care and in case absurd 

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inconvenience is to be caused that interpretation has to be avoided. Cases of 

individual hardship or injustice have no bearing for enacting the natural 

construction. The relevant discussion at pages 132-133 and 140-142 is extracted 

hereunder : 

“(a) Hardship, inconvenience, injustice, absurdity and anomaly 

to be avoided 

In selecting out of different interpretations "the court will adopt 

that which is just, reasonable and sensible rather than that which is 

none of those things" [Holmes v. Bradfield Rural District Council, (1949) 

1 All ER 381, p. 384] as it may be presumed "that the Legislature should 

have used the word in that interpretation which least offends our sense 

of justice". [Simms v. Registrar of Probates, (1900) AC 323, p. 335 CPC] If 

the grammatical construction leads to some absurdity or some 

repugnance or inconsistency with the rest of the instrument, it may be 

departed from so as to avoid that absurdity, and inconsistency. [Grey v. 

Pearson, (1857) 6 HLC 61, p. 106]. Similarly, a construction giving rise to 

anomalies should be avoided. [Veluswami Thevar v. G.Raja Nainar, AIR 

1959 SC 422, pp. 427, 428]. As approved by VENKATARAMA AIYAR, J., 

"Where the language of a statute, in its ordinary meaning and 

grammatical construction, leads to a manifest contradiction of the 

apparent purpose of the enactment, or to some inconvenience or 

absurdity, hardship or injustice, presumably not intended, a 

construction may be put upon it which modifies the meaning of the 

words, and even the structure of the sentence.” *Tirath Singh v. 

Bachittar Singh, AIR 1955 SC 830+.”' 

937 


x x x x x 

“Consideration of hardship, injustice or absurdity as avoiding a 

particular construction is a rule which must be applied with great care. 

"The argument ab inconvenienti", said LORD MOULTON, "is one which 

requires to be used with great caution". [Vacher & Sons v. London

938 



Society of Compositors, (1913) AC 107]. Explaining why great caution is 

necessary LORD MOULTON further observed: "There is a danger that it 

may degenerate into a mere judicial criticism of the propriety of the 

Acts of Legislature. We have to interpret statutes according to the 

language used therein, and though occasionally the respective 

consequences of two rival interpretations may guide us in our choice in 

between them, it can only be where, taking the Act as a whole and 

viewing it in connection with existing state of the law at the time of the 

passing of the Act, we can satisfy ourselves that the words cannot have 

been used in the sense to which the argument points". [Vacher & Sons 

v. London Society of Compositors, (1913) AC 107]. According to BRETT, 

L.J., the inconvenience necessitating a departure from the ordinary 

sense of the words should not only be great but should also be what he 

calls an “absurd inconvenience”. Moreover, individual cases of hardship 

or injustice have no bearing for rejecting the natural construction, 

[Young & Co. v. Leamington Spa Corporation, (1993) 8 AC 517], and it is 

only when the natural construction leads to some general hardship or 

injustice and some other construction is reasonably open that the 

natural construction may be departed from. It is often found that laws 

enacted for the general advantage do result in individual hardship; for 

example laws of Limitation, Registration, Attestation although enacted 

for the public benefit, may work injustice in particular cases but that is 

hardly any reason to depart from the normal rule to relieve the 

supposed hardship or injustice in such cases. [Lucy v. Henleys Telegraph 

Works, (1969) 3 All ER 456]. "It is the duty of all courts of justice", said 

LORD CAMPBELL, "to take care for the general good of the community, 

that hard cases do not make bad law". [East India Company v. Odichurn 

Paul, 7 Moo PC 85]. 'Absurdity' according to WILLES, J., should be 

understood "in the same sense as repugnance that is to say something 

which would be so absurd with reference to the other words of the 

statute as to amount to a repugnance". [Christopherson v. Lotinga, 

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(1864) 33 LJ CP 121]. "Absurdity", said LORD GREENE, M.R., "like public 

policy, is a very unruly horse". [Grundt v. Great Boulder Proprietary Gold 

Mines Ltd., (1948) 1 All ER 21]. He proceeded to add: "There is one rule, 

I think which is clear that, although the absurdity or the non-absurdity 

of one conclusion as compared with another may be and very often is, 

of assistance to the court in choosing between two possible meanings of 

ambiguous words, it is a doctrine which must be applied with great care, 

remembering that judges may be fallible in this question of an absurdity 

and in any event it must not be applied so as to result in twisting 

language into a meaning which it cannot bear. It is a doctrine which 

must not be used to re-write the language in a way different from that 

in which it was originally framed". [Grundt v. Great Boulder Proprietary 

Gold Mines Ltd. (supra)]. The alternative construction contended for 

must be such which does not put an undue strain on the words used; 

[Kanailal Sur v. Paramnidhi Sadhukhan, AIR 1957 SC 907] and does not 

require recasting of the Act or any part of it. It must be possible to spell 

the meaning contended for out of the words actually used. [Shamrao V. 

Parulekar v. District Magistrate, Thana AIR 1952 SC 324]. 

939 


No doubt in cases of ambiguity that construction which better 

serves the ends of fairness and justice will be accepted, but otherwise it 

is for the Legislature in forming its policy to consider these elements. 

[IRC v. Mutual Investment Co. (1966) 3 All ER 265]. If no alternative 

construction is open, the court cannot ignore a statutory provision "to 

relieve what it considers a distress resulting from its operation; a statute 

has to be given effect to whether the court likes it or not". [Martin Burn 

Ltd. v. Calcutta Corporation, AIR 1966 SC 524]. The function of the court 

is to find out what is legal and not what is right. [Chandavarkar Sita 

Ratna Rao v. Ashalata S.Guram, (1986) 4 SCC 447]. It is presumed that a 

legislative body intends which is the necessary effect of its enactments; 

the object, the purpose and the intention of the enactment is the same; 

it need not be expressed in any recital or preamble; and it is not


competent for any court judicially to ascribe any part of the legal 

operation of the statute to inadvertence. [Kariapper v. Wijesinha, (1967) 

3 All ER 485]. 

The Courts should as far as possible avoid a construction which results 

in anomalies. [N.T.Veluswami Thevar v. G.Raja Nainar, AIR 1959 SC 422+.” 

33. Bennion on ‘Statutory Interpretation’ has mentioned law to same 

effect under section 312 and has observed that there is a presumption that 

absurd result is not intended and in section 314 it has been observed that the 

court has to avoid an inconvenient result while interpreting a provision. It was 

940 


stated that it can be presumed that Parliament intends that while construing an 

enactment the court will avoid a construction that is unworkable or 

impracticable, inconvenient, anomalous or illogical as the same is unlikely to be 

intended by the Parliament. In Rosali V. v. Taico Bank and Ors. [2009 (17) SCC 

690], this Court referring to Halsbury’s Commonsense construction rule held 

that it is a well-settled principle of law that common sense construction rule 

should be taken recourse in certain cases. 

34. This Court in Sonic Surgical v. National Insurance Co. Ltd. [2010 (1) 

SCC 135] has also laid down law to the same effect and has discussed the term 

‘branch office’ used in section 17(2) of the Consumer Protection Act, 1986 in the 

context of cause of action. Section 17(2) of the said Act reads thus : 

“17(2) A complaint shall be instituted in a State Commission 

within the limits of whose jurisdiction,-- 

(a) the opposite party or each of the opposite parties, where 

there are more than one, at the time of the institution of the complaint, 

actually and voluntarily resides or carries on business or has a branch 

office or personally works for gain; or 

(b) any of the opposite parties, where there are more than one, 

at the time of the institution of the complaint, actually and voluntarily 

resides, or carries on business or has a branch office or personally works 

for gain, provided that in such case either the permission of the State 

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Commission is given or the opposite parties who do not reside or carry 

on business or have a branch office or personally works for gain, as the 

case may be, acquiesce in such institution; or 

(c) the cause of action, wholly or in part, arises.+” 

This Court while interpreting the provision held that the term ‘branch 

office’ as used in the amended section 17(2)(b) has to be interpreted to mean 

only that branch office where the cause of action has arisen. Thus, the court 

departed from the plain and literal meaning of the words of section 17(2)(b) of 

the Consumer Protection Act in order to avoid absurdity. The decision in Sonic 

Surgical (supra) has been approved by this Court in State of Madhya Pradesh 

and Anr. v. Narmada Bachao Andolan & Anr. [2011 (7) SCC 639] inasmuch as 

this Court has observed that in case the natural meaning leads to mischievous 

consequences, it must be avoided by accepting other permissible construction. 

35. Reliance has been placed by the appellants on the decision in Union 

of India & Anr. v. Deoki Nandan Aggarwal [1992 Supp. (1) SCC 323] so as to 

contend that the court cannot usurp the legislative intention and cannot supply 

omissions to a statute. There is no dispute with the aforesaid proposition. 

However, we are simply interpreting the provisions considering the object of the 

Act. 

941 


36. Respondents have placed reliance on Patel Roadways Ltd., Bombay 

v. Prasad Trading Co. etc. [1991 (4) SCC 270] in which this Court has considered 

the provisions of section 20 of the CPC. This Court has observed thus : 

“12. We would also like to add that the interpretation sought to 

be placed by the appellant on the provision in question renders the 

Explanation totally redundant. If the intention of the legislature was, as 

is said on their behalf, that a suit against a corporation could be 

instituted either at the place of its sole or principal office (whether or 

not the corporation carries on business at that place) or at any other 

place where the cause of action arises, the provisions of clauses (a), (b) 

and (c) together with the first part of the Explanation would have

942 



completely achieved the purpose. Indeed the effect would have been 

wider. The suit could have been instituted at the place of the principal 

office because of the situation of such office (whether or not any actual 

business was carried on there). Alternatively, a suit could have been 

instituted at the place where the cause of action arose under clause (c) 

(irrespective of whether the corporation had a subordinate office in 

such place or not). This was, therefore, not the purpose of the 

Explanation. The Explanation is really an Explanation to clause (a). It is in 

the nature of a clarification on the scope of clause (a) viz. as to where 

the corporation can be said to carry on business. This, it is clarified, will 

be the place where the principal office is situated (whether or not any 

business actually is carried on there) or the place where a business is 

carried on giving rise to a cause of action (even though the principal 

office of the corporation is not located there) so long as there is a 

subordinate office of the corporation situated at such place. The linking 

together of the place where the cause of action arises with the place 

where a subordinate office is located clearly shows that the intention of 

the legislature was that, in the case of a corporation, for the purposes of 

clause (a), the location of the subordinate office, within the local limits 

of which a cause of action arises, is to be the relevant place for the filing 

of a suit and not the principal place of business. If the intention was that 

the location of the sole or principal office as well as the location of the 

subordinate office (within the limits of which a cause of action arises) 

are to be deemed to be places where the corporation is deemed to be 

carrying on business, the disjunctive “or” will not be there. Instead, the 

second part of the Explanation would have read “and, in respect of any 

cause of action arising at any place where it has a subordinate office, 

also at such place”. 

13. As far as we can see the interpretation which we have 

placed on this section does not create any practical or undue difficulties 

or disadvantage either to the plaintiff or a defendant corporation. It is 

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true that, normally, under clauses (a) to (c), the plaintiff has a choice of 

forum and cannot be compelled to go to the place of residence or 

business of the corporation and can file a suit at a place where the 

cause of action arises. If a corporation desires to be protected from 

being dragged into litigation at some place merely because a cause of 

action arises there it can save itself from such a situation by an 

exclusion clause as has been done in the present case. The clear 

intendment of the Explanation, however, is that, where the corporation 

has a subordinate office in the place where the cause of action arises, it 

cannot be heard to say that it cannot be sued there because it does not 

carry on business at that place. It would be a great hardship if, in spite 

of the corporation having a subordinate office at the place where the 

cause of action arises (with which in all probability the plaintiff has had 

dealings), such plaintiff is to be compelled to travel to the place where 

the corporation has its principal place. That place should be convenient 

to the plaintiff; and since the corporation has an office at such place, it 

will also be under no disadvantage. Thus the Explanation provides an 

alternative locus for the corporation’s place of business, not an 

additional one.” 

943 


This Court has considered while interpreting the provision of section 20 

CPC that no practical or undue difficulties or disadvantage either to the plaintiff 

or the defendant corporation could be caused. It has also been observed that it 

would be a great hardship if in spite of the corporation having a subordinate 

office at a place where the cause of action arises, such plaintiff is compelled to 

travel where the corporation has its principal office. That place should be 

convenient to the plaintiff and the corporation has an office at such place, will 

also be under no disadvantage. 

37. Under clauses (a) to (c) of section 20 CPC, a plaintiff has a choice of 

forum and cannot be compelled to go to a place of business or residence of the 

defendant and can file a suit where the cause of action arises. The intendment 

of the Explanation has also been taken into consideration by this Court in New


Moga Transport Co. (supra) thus : 

“9. Normally, under clauses (a) to (c) the plaintiff has a choice of 

forum and cannot be compelled to go to the place of residence or 

business of the defendant and can file a suit at a place where the cause 

of action arises. If the defendant desires to be protected from being 

dragged into a litigation at some place merely because the cause of 

action arises there it can save itself from such a situation by an 

exclusion clause. The clear intendment of the Explanation, however, is 

that where the corporation has a subordinate office in the place where 

the cause of action arises it cannot be heard to say that it cannot be 

sued there because it does not carry on business at that place. Clauses 

(a) and (b) of Section 20 inter alia refer to a court within the local limits 

of whose jurisdiction the defendant inter alia “carries on business”. 

Clause (c) on the other hand refers to a court within the local limits of 

whose jurisdiction the cause of action wholly or in part arises. 

944 


10. On a plain reading of the Explanation to Section 20 CPC it is 

clear that the Explanation consists of two parts: (i) before the word “or” 

appearing between the words “office in India” and the words “in 

respect of”, and (ii) the other thereafter. The Explanation applies to a 

defendant which is a corporation, which term would include even a 

company. The first part of the Explanation applies only to such 

corporation which has its sole or principal office at a particular place. In 

that event, the court within whose jurisdiction the sole or principal 

office of the company is situate will also have jurisdiction inasmuch as 

even if the defendant may not actually be carrying on business at that 

place, it will be deemed to carry on business at that place because of 

the fiction created by the Explanation. The latter part of the Explanation 

takes care of a case where the defendant does not have a sole office but 

has a principal office at one place and has also a subordinate office at 

another place. The expression “at such place” appearing in the 

Explanation and the word “or” which is disjunctive clearly suggest that if 

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the case falls within the latter part of the Explanation it is not the court 

within whose jurisdiction the principal office of the defendant is situate 

but the court within whose jurisdiction it has a subordinate office which 

alone has the jurisdiction “in respect of any cause of action arising at 

any place where it has also a subordinate office”. 

38. In Exphar SA (supra), this Court had considered the provisions 

contained in section 62 of the Copyright Act and has observed that the word 

‘include’ shows that the jurisdiction for the purpose of section 62 is wider than 

that of the court as prescribed under the Code of Civil Procedure, 1908. This 

Court has laid down thus: 

“12. We would like to emphasise the word "include". This shows 

that the jurisdiction for the purposes of Section 62 is wider than that of 

the Court as prescribed under the Code of Civil Procedure, 1908. The 

relevant extract of the report of the Joint Committee published in the 

Gazette of India dated 23-11-1956 which preceded and laid the 

foundation for Section 62(2) said : 

"In the opinion of the Committee many authors are deterred 

from instituting infringement proceedings because the court in which 

such proceedings are to be instituted is situated at a considerable 

distance from the place of their ordinary residence. The Committee 

feels that this impediment should be removed and the new sub-clause 

(2) accordingly provides that infringement proceedings may be 

instituted in the District Court within the local limits of whose 

jurisdiction the person instituting the proceedings ordinarily resides, 

carries on business etc." 

945 


13. It is, therefore, clear that the object and reason for the 

introduction of sub-section (2) of Section 62 was not to restrict the 

owners of the copyright to exercise their rights but to remove any 

impediment from their doing so. Section 62(2) cannot be read as 

limiting the jurisdiction of the District Court only to cases where the


person instituting the suit or other proceeding, or where there are more 

than one such persons, any of them actually and voluntarily resides or 

carries on business or presently works for gain. It prescribes an 

additional ground for attracting the jurisdiction of a court over and 

above the “normal” grounds as laid down in Section 20 of the Code.” 

This Court held therein that the Delhi court had jurisdiction since the 

plaintiff had averred that it has its registered office in Delhi and seize and desist 

notice was also received by the appellants at Delhi. The decision in Exphar SA 

(supra) does not oust the applicability of the provisions of section 20 of the 

Code of Civil Procedure as this Court has laid down that section 62 has 

prescribed an additional ground other than the normal ground prescribed in 

section 20 of the CPC. The question posed before us in the instant cases is 

different. In our considered opinion, the decision in Exphar SA (supra) 

buttresses the interpretation adopted by us. 

39. Reliance has also been placed on decision in Dhodha House (supra) 

946 


in which this Court considered the question about the maintainability of the 

composite suit for infringement of the Copyright Act, and the Trade and 

Merchandise Marks Act, 1958. The Trade Marks Act, 1999 was also considered. 

This Court has laid down that composite suit may be maintainable under the 

Copyright Act and the Trade and Merchandise Act, 1958 but that may not be 

relevant for the purpose of determining the question of a forum where a suit 

can be instituted. In case the court is not having jurisdiction under one of the 

Acts, merely by combining the causes of action, the jurisdiction cannot be 

conferred upon the court. In that context, this Court has observed thus : 

“20. The jurisdiction of the District Court to determine a lis under 

the 1957 Act as also the 1958 Act must, thus, be instituted where the 

whole or a part of cause of action arises. Sub-section (2) of Section 62 of 

the 1957 Act provides for an additional forum therefore in the following 

terms: 

"(2) For the purpose of sub-section (1), a "district court having 

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jurisdiction" shall, notwithstanding anything contained in the Code of 

civil Procedure, 1908 (5 of 1908), or any other law for the time being in 

force, include a district court within the local limits of whose 

jurisdiction, at the time of the institution of the suit or other 

proceeding, the person instituting the suit or other proceeding or, 

where there are more than one such persons, any of them actually and 

voluntarily resides or carries on business or personally works for gain." 

Admittedly, no such additional forum had been created in 

terms of the provisions of the 1958 Act. 

x x x x x 

44. A cause of action in a given case both under the 1957 Act as 

also under the 1958 Act may be overlapping to some extent. The 

territorial jurisdiction conferred upon the court in terms of the 

provisions of the Code of civil Procedure indisputably shall apply to a 

suit or proceeding under the 1957 Act as also the 1958 Act. Sub-section 

(2) of Section 62 of the 1957 Act provides for an additional forum. Such 

additional forum was provided so as to enable the author to file a suit 

who may not otherwise be in a position to file a suit at different places 

where his copyright was violated. The Parliament while enacting the 

Trade and Merchandise Marks Act in the year 1958 was aware of the 

provisions of the 1957 Act. It still did not choose to make a similar 

provision therein. Such an omission may be held to be a conscious 

action on the part of the Parliament. The intention of the Parliament in 

not providing for an additional forum in relation to the violation of the 

1958 Act is, therefore, clear and explicit. The Parliament while enacting 

the Trade Marks Act, 1999 provided for such an additional forum by 

enacting sub-section (2) of Section 134 of the Trade Marks Act. The 

court shall not, it is well well-settled, readily presume the existence of 

jurisdiction of a court which was not conferred by the statute. For the 

purpose of attracting the jurisdiction of a court in terms of sub-section 

(2) of Section 62 of the 1957 Act, the conditions precedent specified 

947 



therein must be fulfilled, the requisites wherefor are that the plaintiff 

must actually and voluntarily reside to carry on business or personally 

work for gain. 

x x x x x 

47. A corporation in view of Explanation appended to Section 20 

of the Code would be deemed to be carrying on business inter alia at a 

place where it has a subordinate office. Only because, its goods are 

being sold at a place would thus evidently not mean that it carries a 

business at that place.” (emphasis supplied by us) 

948 


In Dhodha House (supra), the question which is posed before us did not 

come up for consideration and it has been observed that the Act provides for an 

additional forum. Such additional forum was provided so as to enable a plaintiff 

who may not be otherwise in a position to file a suit at different places where 

the copyright was violated. We have anxiously considered the aforesaid 

observations made and the object of the Act, we find that the interpretation 

made by us does not militate against the observations made by this Court in 

Dhodha House (supra), the precise question which is before us, was not 

involved in the aforesaid case. A decision is not to be construed like a statute 

nor by inferential process it can be assumed that this Court has decided the 

question also which is before this Court in the instant cases. 

40. This Court in Paragon Rubber Industries & Ors. v. Pragathi Rubber 

Mills & Ors. [2014 (57) PTC 1(SC)] held that a composite suit would not be 

maintainable unless the court had jurisdiction to entertain the suit in relation to 

both the Copyright Act and the Trade Marks Act. No such question is involved in 

the cases. 

41. In Dabur India Ltd. (supra), the question was whether composite suit 

of infringement of copyright and passing off could be filed in a court having 

jurisdiction where the plaintiff actually and voluntarily resides or carries on 

business or personally works for gain as provided under section 62 of the 

Copyright Act. This Court answered the question in the negative, dismissed the 

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appeal and held that Order 2 Rules 2 and 3 of the CPC can be exercised only in 

the event when the court has otherwise jurisdiction in respect of the cause of 

action wherefor the action has been brought. This Court has observed with 

respect to section 62 of the Copyright Act thus : 

“32. There cannot be any doubt whatsoever that the Parliament 

having inserted sub-section (2) in Section 62 of the 1957 Act, the 

jurisdiction of the court thereunder would be wider than the one under 

Section 20 of the Code. The object and reasons for enactment of subsection 

(2) of Section 62 would also appear from the report of the 

Committee, as has been noticed by this Court being a provision which 

has been specially designed to confer an extra benefit upon the authors 

who were not in a position to instate copyright infringement proceeding 

before the courts. It is in the aforementioned context the law laid down 

by this Court in paragraph 13 of Dhodha House (supra) must be 

understood. 

x x x x x 

34. What then would be meant by a composite suit? A 

composite suit would not entitle a court to entertain a suit in respect 

whereof it has no jurisdiction, territorial or otherwise. Order 2 Rule 3 of 

the Code specifically states so and, thus, there is no reason as to why 

the same should be ignored. A composite suit within the provisions of 

the 1957 Act as considered in Dhodha House (supra), therefore, would 

mean the suit which is founded on infringement of a copyright and 

wherein the incidental power of the court is required to be invoked. A 

plaintiff may seek a remedy which can otherwise be granted by the 

court. It was that aspect of the matter which had not been considered 

in Dhodha House (supra) but it never meant that two suits having 

different causes of action can be clubbed together as a composite suit.” 

(emphasis supplied by us) 

949 


This Court in Dabur India (supra) with respect to the maintainability of a


composite suit observed that a composite suit would not entitle a court to 

entertain a suit in respect whereof it has no jurisdiction territorial or otherwise. 

The decision in Dabur India (supra) is of no help to the cause espoused by the 

appellants. 

42. Now, we advert to various decisions of High Courts: 

(a) The decision of the Delhi High Court in Smithkline Beecham (supra) has been 

relied upon. As the registered office was situated in Delhi, it was held that the 

plaintiffs were entitled to institute a suit in Delhi court and the questions of 

cause of action etc. did not come up for consideration. 

(b) Delhi High Court in Caterpillar Inc. v. Kailash Nichani (supra) has observed 

that section 62 of the Copyright Act makes a significant and obvious departure 

from the norm that the choice of jurisdiction should primarily be governed by 

convenience of the defendants. 

(c) In the decision in Intas Pharmaceuticals Ltd. (supra), Delhi High Court has 

considered the provisions of section 20 of the CPC and section 134 of the Trade 

950 


Marks Act. The High Court has observed in para 17 of the report that the court 

has jurisdiction by virtue of the provisions contained in section 20(c) of the CPC 

as the defendant is selling the offending drug in Delhi. 

(d) In Ford Motor Co. & Anr. v. C.R. Borman & Anr. [2008 (38) PTC 76 (Del.)], 

Delhi High Court considered that the plaintiff carried on the business in 

commercial quantities in Delhi and have authorised agents also. The pleadings 

of plaintiff have to be taken into consideration at the time of rejection of the 

plaint under Order VII Rule 11 CPC. It was observed on averments made that the 

Delhi High Court possessed territorial jurisdiction to entertain the suit as 

plaintiff carried on business at Delhi. 

(e) In Sap Aktiengesellschaft & Anr. v. M/s. Warehouse Infotech [IA No. 

11153/2009 in CS(OS) No.623/2009 decided on 19.11.2009], the question came 

up for consideration whether the plaintiff had a right a file a suit if he carries on 

business in the territorial jurisdiction of Delhi. The High Court held that in the 

plaint, jurisdiction was invoked on the ground that the defendants are 

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voluntarily residing and carrying on business at Delhi. The plaintiff has branch 

office at Delhi and plaintiff’s authorised partner was offering the products from 

its office at Delhi. The judgment was delivered considering the provisions of 

Order VII Rule 10, C.P.C. taking the plaint averments to be correct. 

(f) In Wipro Ltd. & Anr. v. Oushadha Chandrika Ayurvedic India (P) Ltd. & Ors. 

[2008 (37) PTC 269 Mad.], the High Court at Madras has observed that the 

provisions of section 20 CPC are not applicable as far as the High Court at 

Madras is concerned. Therefore, the scope of section 62 of the Copyright Act 

and section 134 of the Trade Marks Act, cannot be curtailed by reference to 

section 20 CPC or clause 12 of the Letters Patent. 

(g) In Hindustan Unilever Ltd. v. Ashique Chemicals & Ors. [2011 (47) PTC 209 

(Bom.)], the Bombay High Court has dealt with the territorial jurisdiction and 

held that section 134 of the Trade Marks Act conferred upon the plaintiff the 

benefit of bringing an action stipulated therein notwithstanding the provisions 

of the Code of Civil Procedure or any other law. 

(h) In the case of Ultra Tech Cement Ltd. & Anr. v. Shree Balaji Cement Industries 

& Ors. [2014 (58) PTC 1 (Bom.)], the High Court held that it has the jurisdiction 

as the plaintiff carries on business within the jurisdiction of the court and 

plaintiff No.1 has registered office and plaintiff No.2 has corporate office within 

the jurisdiction of the said court, though the defendants did not carry on 

business nor do they have place of business within the jurisdiction of that court. 

951 


The facts of the instant cases and the question posed is different which 

did not come up for consideration in any of the aforesaid decisions rendered by 

the High Courts and even otherwise any observations in any of aforesaid 

decisions contrary to our decision cannot hold the field. Interpretation of 

provisions cannot be so wide so as to open it to be misused, it has to be subject 

to object of the Act as explained above. 

43. Coming to submission that vires of Section 62 has not been 

questioned. There is no doubt about it that the challenge to the vires of section 

62 has not been made. However, the question is that of interpretation and not


that of vires of the provisions which has been considered by us. There will be no 

violence to section 62 of Copyright Act and section 134 of Trade Marks Act by 

the interpretation adopted by us and the right of the plaintiff which has been 

conferred under the provisions, also remains intact. There is no question of 

giving disadvantage to the plaintiff vis-a-vis the defendant but both will stand to 

gain by proper interpretation. 

44. We also find the submission to be futile that the law as to the 

otherwise on the basis of aforesaid decisions, has prevailed for a long time as 

such there should not be any interference. Firstly, the judgments are of recent 

952 


origin. Even otherwise, we have considered each and every decision threadbare 

which has been referred to us. It cannot be said that the precise question 

involved in the cases before us was involved in the aforesaid decisions or came 

up for consideration. In Dhodha House (supra) also, the question posed for 

consideration was different and the observations made therein are not 

supporting the cause raised on behalf of the appellants. We are not taking a 

view contrary to any of the said decisions of this Court. Thus, there is no need to 

refer the case to a larger Bench. 

45. It was also submitted that as the bulk of litigation of such a nature is 

filed at Delhi and lawyers available at Delhi are having expertise in the matter, 

as such it would be convenient to the parties to contest the suit at Delhi. Such 

aspects are irrelevant for deciding the territorial jurisdiction. It is not the 

convenience of the lawyers or their expertise which makes out the territorial 

jurisdiction. Thus, the submission is unhesitatingly rejected. 

46. It was also submitted that the suit may be ordered to be transferred 

to Delhi. We cannot order transfer of suit in these proceedings. In case parties 

so desire, they are free to file appropriate application but the suit is required to 

be presented in the court of competent jurisdiction only thereafter the question 

of transfer would be germane. 

47. In our opinion, the provisions of section 62 of the Copyright Act and 

section 134 of the Trade Marks Act have to be interpreted in the purposive 

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manner. No doubt about it that a suit can be filed by the plaintiff at a place 

where he is residing or carrying on business or personally works for gain. He 

need not travel to file a suit to a place where defendant is residing or cause of 

action wholly or in part arises. However, if the plaintiff is residing or carrying on 

business etc. at a place where cause of action, wholly or in part, has also arisen, 

he has to file a suit at that place, as discussed above. Thus, for the aforesaid 

reasons mentioned by us in the judgment, we are not inclined to interfere with 

the orders passed by the High Court. Appeals are hereby dismissed. No costs. 

SS ----- 

953 





Present: Justice Vikramajit Sen and Justice Shiva Kirti Singh. 

DELHI DEVELOPMENT AUTHORITY - Appellant, 

Versus 

P.R. SAMANTA – Respondent. 


(i) Contractual rate of interest - The MRTP Commission has 

clearly erred in interfering with the contractual rate of interest in 

absence of any finding against the actions and orders of the appellant - 

Without returning a finding that there was any unfair trade practice or 

any restrictive/monopolistic trade practice pursuant to inquiry under 

the provisions of the Act, the Commission clearly erred in compensating 

the respondent with a higher rate of interest - Monopolies and 

954 


Restrictive Trade Practices Act, 1969. [Para 10] 

(ii) Interest on refund of registration amount - Rate of interest 

payable on refund of registration amount - Delhi Development 

Authority - Refunded the registration amount along with only 7% 

interest in terms of the offer document – Upheld - No material for 

coming to the finding by the MRTP that payment of interest on the 

registration amount should not be less than one charged from the 

applicants when they commit a default - A default clause is introduced 

to deter any delay or default and hence such penalty is by its very 

nature a deterrent one - That by itself offers a reasonable justification 

for the appellant to charge a higher rate of interest in the case of 

delay/default - So far as interest on the registration amount is 

concerned it stands on a different footing - The relevant provision in the 

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Brochure of the 1985 scheme by itself does not appear to be 

unreasonable in allowing interest @ 7% p.a. - Nothing has been brought 

to our notice which may show that the registration amount is to remain 

locked for any fixed term or that the appellant can refuse an application 

for cancellation of registration at an early stage or even before draw of 

lots for allotment/allocation of flats - In such a situation it is not 

possible to infer that the registration deposits must reasonably be kept 

in long term fixed deposits with a view to earn higher interests. 

[Para 10] 

JUDGMENT 

Shiva Kirti Singh, J. – (21 st July , 2015) - This statutory appeal under 

Section 55 of the Monopolies and Restrictive Trade Practices Act, 1969 

(hereinafter referred to as ‘the Act’) is directed against judgment and order 

dated 20.08.2002 passed by the Monopolies and Restrictive Trade Practices 

Commission, New Delhi (hereinafter referred to as ‘the Commission’) in 

Compensation Application No.367/97 preferred by the sole respondent. 

2. In view of controversy arising for determination being very limited 

and confined to reasonableness of rate of interest payable on refund of 

registration amount, it is not necessary to delve deeper into the facts. Suffice to 

note that the appellant Delhi Development Authority is a statutory body 

constituted under the Delhi Development Act, 1957. It is entrusted with the 

planned development of Delhi and claims to function on a No Profit No Loss 

basis in the matter of providing subsidized housing to different income groups. 

The appellant invited applications from eligible members of the general public 

during the period May 1985 to August 1985 in a scheme described as Sixth Self 

Financing Housing Registration Scheme, 1985. The respondent deposited the 

requisite sum of Rs.15000/- and by filing application became a member of that 

scheme. In due course the appellant released a scheme for allocation of self 

financing society flats. Pursuant to advertisements published by the appellant 

the respondent vide his application dated 27.02.1991 opted for a flat at either 

955 



of three locations, namely, (1) Sarita Vihar, (2) Kondli Gharoli and (3) Narela. He 

was allotted a flat at Narela but the offer was declined by the respondent on 

27.10.1991. 

956 


3. In the year 1995 under a similar fresh scheme the persons who had 

registered with the appellant were required to indicate their preferences for 

upto 14 localities mentioned in the Brochure Annexure ‘A’ and ‘B’. The 

advertised terms and conditions clarified that the registrants not indicating their 

preferences for 14 localities will be allocated/allotted flats which would be 

available after accommodating the preferences and choices of the registrants 

applying in terms of advertisement and the allotment would be through draw of 

lots. The respondent gave his preference only for 6 localities. He could not be 

accommodated against any of his 6 preferred localities but as per draw of lots 

he was allotted a flat in Dwarka. On receipt of the allotment letter dated 

14/22.03.1995 the respondent through his letter dated 17.5.1995 declined the 

offer on the ground that the allotment was not as per his preferences. He 

demanded the registration deposit of Rs.15000/- made in 1985 along with an 

interest @ 15% p.a. in place of 7% p.a. indicated in the scheme and the 

Brochure on the ground that the deposit would have earned a minimum of 15% 

interest if it was deposited in a Class I company. 

4. The appellant chose to accept the proposal for cancellation of 

allotment made by the respondent but it refunded the registration amount 

along with only 7% interest in terms of the offer document which had been 

accepted by the respondent and was thus the rate finalized by agreement 

between the parties. 

5. The respondent in his complaint before the Commission filed on 

29.6.1997 raised two-fold grievances which have been noted by the Commission 

in paragraph 3 of the impugned judgment. The first grievance was against the 

levy of cancellation charges and penalty when the flat allotted to him was not in 

the 6 localities for which he had indicated his preference. The second grievance 

of the respondent was that the interest paid on the registration amount is at a 

rate lower than the rate at which the applicants are to be charged in case of 

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delay/default. 

6. After noticing the relevant provisions in the Brochure for 1985 

scheme the Commission found no merit in the first grievance of the respondent 

since clause 5.5 of the Brochure made it clear that allotment of flat as per 

preference would depend on its availability and it was not the case of the 

respondent that inspite of availability of flats in the localities preferred, the 

same was not allocated to the applicant. 

7. The Commission thereafter considered the next grievance in respect 

of rate of interest in the penultimate paragraph of the judgment which reads as 

follows : 

“The applicant’s main grievance is against the payment of the 

interest on the registration amount, which is less than the one charged 

from the applicants when in default. I find substantial force in this plea 

of the applicant and would award interest @ 12% per annum on the 

registration amount as against the one paid by the Respondent 

authority. The rate of interest at 12% per annum is considered to be 

reasonable and equitable and has also been awarded in other cases in 

the similar circumstances. The applicant is also awarded a sum of 

Rs.5,000/- towards litigation charges which the Respondent is directed 

to pay.” 

957 


8. Inspite of notice the respondent has not chosen to appear nor he has 

filed any counter affidavit. We have heard learned counsel for the appellant and 

perused the relevant materials on record including the order under appeal. 

According to learned counsel for the appellant when the main grievance of the 

respondent in respect of levy of cancellation charges and penalty was not found 

acceptable by the Commission and when the Commission found nothing wrong 

in the action of the appellant in the light of declared policy and contract 

governing the matter at hand, it should not have enhanced the contract rate of 

7% interest over registration amount on the singular ground that it was less 

than the one charged from the applicants when in default. According to learned


counsel for the appellant the Commission was wholly unjustified in interfering 

with the contractual terms and conditions and directing the appellant to pay a 

higher rate of interest at 12% p.a. on the specious plea that such rate in the 

consideration of the Commission was reasonable and equitable and had been 

awarded in some other cases. The award of litigation charges of Rs.5000/- was 

also seriously contested when the Commission had not found any action of the 

appellant to be unfair, monopolistic or increasing the cost of production 

unreasonably. 

9. The Act was enacted with the object of preventing the concentration 

958 


of economic power to the common detriment, for the control of monopolies, 

for the prohibition of monopolistic and restrictive trade practices and for 

matters connected therewith or incidental thereto. It has now been replaced by 

the Competition Act, 2002. The terms ‘monopolistic trade practice’ as well as 

‘restrictive trade practice’ have been defined and undoubtedly the Commission 

had the jurisdiction and power to inquire into any restrictive trade practice or 

any monopolistic trade practice in view of Section 10 of the Act and also into 

unfair trade practice as stipulated in Section 36A. 

10. Considering the submissions advanced on behalf of the appellant as 

well as the discussion and reasonings in the impugned order in respect of rate of 

interest, we find sufficient merit in the submissions advanced on behalf of the 

appellant. The Commission has clearly erred in interfering with the contractual 

rate of interest in absence of any finding against the actions and orders of the 

appellant. Without returning a finding that there was any unfair trade practice 

or any restrictive/monopolistic trade practice pursuant to inquiry under the 

provisions of the Act, the Commission clearly erred in compensating the 

respondent with a higher rate of interest. Even the basis for grant of higher 

interest is without discussion of any material. The judgment and order under 

appeal indicates no material for coming to the impugned finding that payment 

of interest on the registration amount should not be less than one charged from 

the applicants when they commit a default. A default clause is introduced to 

deter any delay or default and hence such penalty is by its very nature a 

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deterrent one. That by itself offers a reasonable justification for the appellant to 

charge a higher rate of interest in the case of delay/default. So far as interest on 

the registration amount is concerned it stands on a different footing. In absence 

of relevant pleadings and evidence it cannot be presumed that the appellant has 

resorted to any unfair trade practice as defined under Section 36A or has 

increased its price unreasonably or made unreasonable earnings by investing 

the registration amount in accounts bearing higher interest. The relevant 

provision in the Brochure of the 1985 scheme by itself does not appear to be 

unreasonable in allowing interest @ 7% p.a. It is relevant to indicate here that 

nothing has been brought to our notice which may show that the registration 

amount is to remain locked for any fixed term or that the appellant can refuse 

an application for cancellation of registration at an early stage or even before 

draw of lots for allotment/allocation of flats. In such a situation it is not possible 

to infer that the registration deposits must reasonably be kept in long term fixed 

deposits with a view to earn higher interests. In any case such aspects had to be 

pleaded and proved by the respondent before the Commission but that has not 

been done leading to absence of requisite findings. 

11. Accordingly, we find the impugned order of the Commission 

959 


awarding interest at the rate of 12% per annum on the registration amount and 

also award of Rs.5000/- towards litigation charges to be against law and 

unjustified. The impugned judgment and order is therefore set aside. The appeal 

stands allowed. However, in the facts of the case the appellant shall itself bear 

its cost of litigation. 

Ss ----




Present: Mr, Justice T.S. Thakur and Justice R. Banumathi 

STATE OF MAHARASHTRA - Appellant, 

Versus 

SHIVA @ SHIVAJI RAMAJI SONAWANE & ORS. ETC. - Respondents. 

CRIMINAL APPEAL NOs.458-460 OF 2009 WITH CRIMINAL APPEAL NOs.461-464 

OF 2009 

Criminal - Maharashtra Control of Organised Crime Act, 1999, 

Section 3 - The High Court was, therefore, right in holding that Section 

3 of the MCOCA could not be invoked only on the basis of the previous 

charge sheets for Section 3 would come into play only if the 

respondents were proved to have committed an offence for gain or any 

960 


pecuniary benefit or undue economic or other advantage after the 

promulgation of MCOCA - Offences which the respondents are alleged 

to have committed after the promulgation of MCOCA were not proved 

against them - Commission of offences prior to the enactment of 

MCOCA does not by itself constitute an offence under MCOCA . 

Held, 

Registration of cases, filing of charge sheets and taking of cognizance by 

the competent court in relation to the offence alleged to have been committed 

by the respondents in the past is but one of the requirements for invocation of 

Section 3 of the MCOCA. Continuation of unlawful activities is the second and 

equally important requirement that ought to be satisfied. It is only if an 

organised crime is committed by the accused after the promulgation of MCOCA 

that he may, seen in the light of the previous charge sheets and the cognizance 

taken by the competent court, be said to have committed an offence under 

Section 3 of the Act. 

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JUDGMENT 

T.S. THAKUR, J. – (24th July, 2015) - 

1. High Court of Bombay has, by a common order dated 18th 

November, 2008, impugned in these appeals, set aside orders passed by the 

Special Court under Maharashtra Control of Organised Crime Act, 1999 and 

acquitted the respondents of the charges framed against them. The High Court 

has relying upon several earlier pronouncements on the subject, held that mere 

proof of filing of charge sheets in the past was not enough to hold the persons 

accused in such charge sheets to be guilty of the offences of committing 

organised crime punishable under Section 3 of MCOCA for such charge sheets 

satisfy but one of the requirements under the said Act. What is according to the 

High Court equally important is to prove that the accused were guilty of 

committing the offence of organised crime by reason of their continuing 

unlawful activities. The High Court further held that any such unlawful activity 

should be by use of threat of violence, intimidation, coercion or other unlawful 

means with the objective of “gaining pecuniary or other advantages”, and that 

the provisions of MCOCA can be invoked only by strictly complying with the 

provisions of Section 23 of the Act. The competent authority was, declared the 

High Court, duty bound to apply its mind to the attendant facts while permitting 

registration of an FIR under MCOCA or granting sanction for prosecution. The 

High Court held that the competent authority, in the case at hand, had not 

applied its mind properly which rendered the registration of the cases and the 

filing of the charge sheets against the respondents legally unsustainable. The 

High Court further held that the respondents were, in the facts of the cases 

before it, not shown to have committed any offence for pecuniary, economic or 

similar other advantage which was one of the requirements to be satisfied 

before they could be held guilty of an organised crime. The orders of conviction 

recorded by the Special Court, and the sentences awarded to the respondents 

were on those findings set aside. 

961 


2. We have heard learned counsel for the parties at considerable length. 

We have also been taken through the record including the judgments of the trial


court and that passed by the High Court. The factual matrix in which the 

respondents were prosecuted and found guilty for offences punishable under 

MCOCA, have been set out at great length by the Trial Court and even by the 

High Court. Recapitulation of the same all over again would, therefore, serve no 

useful purpose. All that need be mentioned is that the respondent Shiva @ 

Shivaji Sonwane, accused in Special Criminal Case No.1 of 2001 and Mehmood 

Khan Pathan, accused in Special Case No.2 of 2001 started off as partners in 

crimes which they committed with the help of other gangsters in the industrial 

town of Khaparkheda situate on the outskirts of the city of Nagpur. The gang, in 

due course, appears to have split into two, one each led by Shivaji Ramaji 

Sonwane and Mehmood Khan Pathan. 

3. The prosecution case is that the two gangs have over ten years prior 

to the enactment of MCOCA been involved in commission of several crimes 

which constitutes “continuing unlawful activity” within the meaning of Section 

2(d) of MCOCA. This, according to the prosecution, was evident from the fact 

962 


that a very large number of charge sheets had been filed against them in which 

the competent jurisdictional Courts had taken cognizance. To be precise, as 

many as 42 charge-sheets had been filed against the gang led by Shiva Sonwane, 

whereas 30 similar charge-sheets were presented against the rival gang led by 

Mehmood Khan Pathan. What led to the invocation of MCOCA in Criminal Case 

No.1 of 2002 against the gang led by Shiva Sonwane is an incident that took 

place on 16th March, 2001 at about 9.15 a.m. when Shiva Sonwane is alleged to 

have gone to the shop of one Rameshwar Bawankar in which one Sunil Bante 

PW-8/I was working as an employee. Respondent-Shiva and his companion 

gangsters are alleged to have beaten up Sunil Bante and set the shop on fire 

resulting in a loss of 1.5 lacs to the owner. Crime No.37 of 2001 for several 

offences punishable under the Indian Penal Code and the Arms Act was 

registered with the police station Khaparkheda, in connection with the incident. 

4. So also MCOCA was invoked against respondents Mehmood Khan 

Pathan, Sanjay Girhe and Samad Pathan on the basis and in connection with 

Crime Case No.38 of 2001 registered at police station Khaparkheda for offences 

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punishable under the I.P.C. and the Arms Act. Interestingly, this crime (Criminal 

Case No.38 of 2001) was registered on a complaint made by Shiva Sonwane the 

rival gangster in which the latter alleged that on 16th March, 2001 the accused 

had barged into the complainant’s house, demanded a gold chain, beat up the 

complainant’s father and set the house on fire. 

5. The prosecution version is that PW-13/1, PI Abdul Razzak, 

Investigating Officer in Crime No.37 of 2001, had on the basis of his 

investigation come to the conclusion that Shiva had formed and was heading an 

organised crime syndicate. He, therefore, prepared a proposal for invocation of 

the provisions of MCOCA in connection with Crime No.37/2001 and requested 

for permission to record information and register a case under Sections 3(1)(ii) 

and 3(4) of MCOCA. The proposal was forwarded to the Special Inspector 

General of Police examined at the trial as PW-15/1. The proposal was upon 

consideration, accepted and registration of information under MCOCA in terms 

of Section 23 of the Act permitted. The information relating to the commission 

of the offence under MCOCA was accordingly registered against Shiva Sonwane 

and his gang on 21st March, 2001 which eventually is presented to this Court as 

Crime Case No.1 of 2001 under MCOCA. 

963 


6. In Crime Case No.2 of 2001 also under MCOCA a similar version has 

been put forth by the prosecution. The proposal for invoking MCOCA was 

moved even in that case by PI Abdul Razzak resulting in grant of approval for 

invocation and registration of information under Section 3(i)(ii) read with 

Section 3(4) of MCOCA. According to the prosecution, investigation into the 

cases was entrusted to Deputy Superintendent of Police examined as PW-16 in 

Criminal Case No.1 of 2001 and PW-20 in Criminal Case No.2 of 2001. According 

to this witness, investigation in both the cases was made over to him on 21st 

March, 2001 when Shiva was in jail. The custody of accused Shiva was secured 

by him in terms of a production warrant on 28th March, 2001 and his house 

searched on 10th April, 2001 leading to the seizure of a sword. As regards 

respondent Mehmood Khan Pathan, he was arrested on 8th May, 2001 and his 

house searched on 30th May, 2001 resulting in the recovery of a sword and a


‘Hattimar’ knife which was seized. After completion of investigation in both the 

crimes, the Deputy Superintendent of police filed two separate and 

independent charge sheets one each against the two gangs for offences 

punishable under Section 3(i)(ii) of the MCOCA and Section 4 read with Section 

25 of the Arms Act. 

7. The significant feature of the two cases is that for Crimes No.37 of 

2001 and 38 of 2001 the respondents were separately tried and acquitted on 

18th January, 2008 in the case of Shiva and on 28th February, 2006 in the case 

of Mehmood Khan Pathan. In the said charge sheets, the respondents were 

accused of committing offences only under the IPC and the Arms Act. For the 

offences punishable under MCOCA separate and independent charge sheets 

were filed against the accused persons in which they were convicted by the Trial 

Court which conviction was reversed by the High Court as noticed earlier. 

8. It was in the above backdrop that the High Court held that once the 

respondents had been acquitted for the offence punishable under the IPC and 

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Arms Act in Crimes No.37 and 38 of 2001 and once the Trial Court had recorded 

an acquittal even for the offence punishable under Section 4 read with Section 

25 of the Arms Act in MCOCA Crimes No.1 and 2 of 2002 all that remained 

incriminating was the filing of charge sheets against the respondents in the past 

and taking of cognizance by the competent court over a period of ten years 

prior to the enforcement of the MCOCA. The filing of charge sheets or taking of 

the cognizance in the same did not, declared the High Court, by itself constitute 

an offence punishable under Section 3 of the MCOCA. That is because the 

involvement of respondents in previous offences was just about one 

requirement but by no means the only requirement which the prosecution has 

to satisfy to secure a conviction under MCOCA. What was equally, if not, more 

important was the commission of an offence by the respondents that would 

constitute “continuing unlawful activity”. So long as that requirement failed, as 

was the position in the instant case, there was no question of convicting the 

respondents under Section 3 of the MCOCA. That reasoning does not, in our 

opinion, suffer from any infirmity. The very fact that more than one charge 

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sheets had been filed against the respondents alleging offences punishable with 

more than three years imprisonment is not enough. As rightly pointed out by 

the High Court commission of offences prior to the enactment of MCOCA does 

not by itself constitute an offence under MCOCA. Registration of cases, filing of 

charge sheets and taking of cognizance by the competent court in relation to 

the offence alleged to have been committed by the respondents in the past is 

but one of the requirements for invocation of Section 3 of the MCOCA. 

Continuation of unlawful activities is the second and equally important 

requirement that ought to be satisfied. It is only if an organised crime is 

committed by the accused after the promulgation of MCOCA that he may, seen 

in the light of the previous charge sheets and the cognizance taken by the 

competent court, be said to have committed an offence under Section 3 of the 

Act. 

9. In the case at hand, the offences which the respondents are alleged 

to have committed after the promulgation of MCOCA were not proved against 

them. The acquittal of the respondents in Crimes No.37 and 38 of 2001 signified 

that they were not involved in the commission of the offences with which they 

were charged. Not only that the respondents were acquitted of the charge 

under the Arms Act even in Crimes Case No.1 and 2 of 2002. No appeal against 

that acquittal had been filed by the State. This implied that the prosecution had 

failed to prove the second ingredient required for completion of an offence 

under MCOCA. The High Court was, therefore, right in holding that Section 3 of 

the MCOCA could not be invoked only on the basis of the previous charge 

sheets for Section 3 would come into play only if the respondents were proved 

to have committed an offence for gain or any pecuniary benefit or undue 

economic or other advantage after the promulgation of MCOCA. Such being the 

case, the High Court was, in our opinion, justified in allowing the appeal and 

setting aside the order passed by the Trial Court. 

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10. In the light of what we have said above, it is not necessary for us to 

go into the question whether the competent authority had duly and properly 

applied its mind while granting permission to the registration of the information


under MCOCA or sanctioning the prosecution of the respondents under Section 

3(2) of the Act. It is also unnecessary for us to examine whether the expression 

“any other advantage” appearing in Section 2(e) can be read ejusdem generis 

which aspect is left open to be decided in an appropriate case. 

11. These appeals accordingly fail and are hereby dismissed. 

SS -- 

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Present; Justice Dipak Misra and Justice Prafulla C. Pant, JJ. 

DARSHAN SINGH - Appellant, 

VERSUS 

STATE OF PUNJAB – Respondent. 


(i) Alibi - The word alibi means "elsewhere" - Plea of alibi is not 

one of the General Exceptions contained in Chapter IV of IPC - It is a 

rule of evidence recognized under Section 11 of the Evidence Act - 

However, plea of alibi taken by the defence is required to be proved 

only after prosecution has proved its case against the accused – Indian 

Penal Code, Chapter IV - Evidence Act, Section 11. [Para 17] 

(ii) Indian Penal Code, 1860 (45 of 1860) – Alibi - Ocular testimony 

of eye witness - 3 injured eye witnesses have deposed in the present 

case - It is a case of day light incident - Injuries on the person of said eye 

witnesses have been corroborated by other witnesses - Ocular 

testimony of eye witnesses cannot be discarded lightly - Once the 

prosecution has discharged its burden, the burden to prove that 

accused was not present with other accused at the place of incident 

and had gone elsewhere, lies on him - Injured eye witnesses have 

assigned specific role as to how he assaulted S who suffered ante 

mortem injuries which gets corroborated from the autopsy report - 

Defence plea of accused - There is no cavil over the fact that accused 

was posted as Lab Assistant with the Senior Secondary School - It is 

proved on the record that in the proceedings under Section 107/151 of 

Cr.PC before Executive Magistrate, he was to be present in said case on 

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17.02.1995 - His presence and role is narrated in detail by the injured 

eye witnesses - In view of his role in the incident narrated by the eye 

witnesses, it is hard to believe that after moving application on 

16.02.1995 for casual leave for 17.02.1995, accused attended the school 

next day in the first half and sought half day leave thereafter - The 

attendance register was not seized immediately after the incident - His 

plea of alibi is vacillating - Accused has taken false plea of alibi. 

[Para 12,16] 

JUDGMENT 

The Judgement of the court was delivered by 

Prafulla C. Pant, J.- (January 06, 2016) - This appeal is directed against 

judgment and order dated 02.09.2008, passed by High Court of Punjab and 

Haryana, Chandigarh, whereby the High Court has disposed of Criminal Appeals 

No. 209 D.B. and 568 DBA, both of 1998 and Criminal Revision No. 654 of 1998. 

The appeal filed by the State qua Darshan Singh (present appellant) against his 

acquittal by the trial court, was allowed and his acquittal was reversed. The 

present appellant has been convicted by the High Court under Section 302 of 

Indian Penal Code, 1860 (for short "IPC"), and sentenced to imprisonment for 

life and directed to pay a fine Rs. 5,000/- and in default of payment of fine he is 

directed to undergo rigorous imprisonment for a further period of six months. 

Appellant Darshan Singh has been further found guilty of the charge of offence 

punishable under Section 324 of IPC, and sentenced to undergo rigorous 

imprisonment for a period of one year and directed to pay fine of Rs. 1,000/- 

with default clause directing to undergo rigorous imprisonment for further 

period of two months. 

2. We have heard learned counsel for the parties and perused the 

papers on record. 

3. Prosecution story, in brief, is that there was dispute between 

complainant and his relatives on one side and accused persons on the other side 

regarding their turn of irrigating their fields. On account of this, earlier there had 

been incidents of assaulting each other. In the circumstances, both the parties 

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were facing proceedings under Section 107/151 of Code of Criminal Procedure, 

1973 (for short "Cr.PC") before Executive Magistrate, Faridkot. On 17.02.1995, 

complainant Amrik Singh (PW-1) along with Raj Singh (PW-3), Sukhchain Singh 

(PW-2) , Harbans Singh (one of the deceased), and their father Mander Singh 

and cousin Gursewak Singh with maternal uncle Santa Singh (another deceased) 

and Boota Singh had gone to attend the proceedings of the court. From the side 

of accused Surain Singh, Jasmail Singh, Darshan Singh (present appellant), 

Jhanda Singh and Boota Singh had also come to the court on said date. At about 

11.00 a.m. both the sides started quarrelling and had a heated exchange of 

words, as Surain Singh objected to presence of Bhajan Singh who was relative of 

complainant Amrik Singh and not a party to the proceedings. He (Surain Singh), 

a Amritdhari Sikh, took out his Siri Sahib (Small Kripan, a sharp edged weapon) 

and gave blow to Bhajan Singh. When complainant party attempted to separate 

them, Surain Singh gave Kripan blow on the person of Mander Singh. He 

assaulted also on the left shoulder of the complainant Amrik Singh, and gave 

two blows on the person of Suckhchain Singh. He did not stop there and also 

assaulted Harbans Singh (deceased) with Kripan. Accused Darshan Singh 

(appellant) also took out his Kripan and inflicted injuries on the person of Santa 

Singh (another deceased). Accused Darshan Singh (appellant) is said to have 

given blows also to Raj Singh. Pal Singh and Jhanda Singh caught hold of 

Gursewak Singh, and Darshan Singh assaulted them also. Accused Boota Singh 

instigated other accused that no one should be escaped alive. The injured were 

taken to Guru Gobind Singh Medical Hospital, Faridkot, where Santa Singh and 

Harbans Singh succumbed to their injuries. 

4. Report of the above incident was lodged by complainant Amrik Singh 

(PW-2). On the basis of it, FIR No. 14, dated 17.02.1995 was registered at Police 

Station, City Faridkot. The investigation was taken up by Sub-inspector Ranjit 

Singh (PW-17), who took the dead bodies in his possession, sealed it, prepared 

inquest report and got sent them for postmortem examination. Dr. Sarabjit 

Singh Sandhu (PW-4) conducted post-mortem examination on the dead bodies 

of Santa Singh and Harbans Singh on 17.02.1995, and prepared autopsy reports. 

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The other injured were also medically examined by PW-4 Dr. Sarabjit Singh 

Sandhu and PW-5 Dr. Manjit Singh. There were injuries also on the side of the 

accused, and from their side accused Pal Singh, accused Surain Singh and 

accused Jhanda Singh suffered injuries. After interrogating witnesses and on 

completion of investigation PW-16 Assistant Sub-inspector Ram Singh (who 

took over investigation from S.I Ranjit Singh) submitted charge-sheet against 

accused persons in the court. 

5. It appears that after the committal of the case it was registered as 

Session Case No. 33 of 1995. On 7.7.1995, Additional Sessions Judge, Faridkot 

framed charge against all the accused, namely, Surain Singh, Darshan Singh 

(present appellant), Pal Singh, Jhanda Singh , Jasmail Singh, Boota Singh and 

Lachman Dass relating to offences punishable under Section 148, 302/149 (on 

separate counts of death of two persons), 307/149, 324/149, 218 and 201 IPC 

to which accused pleaded not guilty and claimed to be tried. 

6. Thereafter prosecution got examined PW-1 Amrik Singh 

(informant), PW-2 Sukhchain Singh, PW-3 Raj Singh (all the three injured eye 

witnesses), PW-4 Dr. Sarabjit Singh Sandhu who conducted post-mortem 

examination, PW-5 Dr. Manjit Singh, PW-6 Gurcharanjit Kaur, Ahalmad, PW-7 

Ujjagar Singh, Steno to A.D.C. Moga, PW-8 ASI Basant Singh, PW-9 Head 

Constable Shagan Singh, PW-10 Inspector Prithvi Singh, PW-11 Prithi Pal Singh, 

S.S.Teacher, PW-12 Dharam Singh, Draftsman, PW-13 MHC Baljit Singh, PW-14 

Dr. S.P. Singla, PW-15 Sub Inspector Shivraj Bhushan, PW- 16 Sub Inspector Ram 

Singh, PW-17 Inspector Ranjit Singh, PW-18 Constable Jagjit Singh and PW-19 

Satish Kalia, Ahalmad. 

7. The evidence adduced by prosecution was put to the accused 

by the trial court under Section 313 of Cr.PC. In reply to which the accused 

persons alleged that evidence against them was incorrect. Appellant Darshan 

Singh took the specific plea of alibi stating that on 17.02.1995 he was attending 

his duty as a Laboratory Assistant in Senior Secondary School, Janerian. Other 

accused took pleas of self defence. On behalf of the defence DW-1 Satnam 

Kaur, DW-2 Rajinder Kumar, DW-3 Darshan Singh (Teacher in primary school, 

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Pakhi Khurd), DW-4 Pawan Kumar, Ahalmad, DW-5 J.V. Tiwari, DW-6 Mukhtiar 

Singh, DW-7 Om Parkash and DW-8 ASI Harvinder Pal Singh were examined. 

8. The trial court after hearing the parties found that charge as against 

accused Boota Singh, Darshan Singh and Lachman Dass is not proved and, as 

such, they were acquitted. However, accused Surain Singh was convicted under 

Section 302 of IPC for committing murder of Harbans Singh and also under 

Section 307 of IPC for attempting to murder Sukhchain Singh. He (Surain Singh) 

was further convicted under Section 324 of IPC. Rest of the accused Jhanda 

Singh, Jasmail Singh and Pal Singh were convicted under Sections 302/34, 

307/34 and 324/34 of IPC. After hearing the sentence, the trial court sentenced 

the convicts to various sentences. 

9. Convicts Surain Singh, Jhanda Singh, Jasmail Singh and Pal Singh 

challenged their conviction before the High Court, and by the impugned order 

the High Court allowed appeal of Jhanda Singh, Jasmail Singh and Pal Singh, but 

appeal of Surain Singh was dismissed. The connected appeal No. 568 DBA of 

1998 filed by the State qua Darshan Singh against order of his acquittal was 

allowed, and he was convicted under Section 302 of IPC for committing murder 

of Santa Singh and sentenced to imprisonment for life and directed to pay fine 

of Rs. 5,000/- with default clause. He was further convicted under Section 324 

of IPC for voluntarily causing hurt with a deadly weapon on person of Gursewak 

Singh and Raj Singh and sentenced to rigorous imprisonment for a period of one 

year and to pay fine of Rs. 1,000/- with default clause. Aggrieved by said 

judgment and order dated 02.09.2008, passed by the High Court, this appeal is 

filed by accused Darshan Singh who was acquitted by the trial court, but order 

of acquittal was reversed and was convicted by the High Court. 

10. Mr. K.T.S. Tulsi, Senior Advocate, on behalf of the appellant, has 

argued before us that where two views are possible on the basis of evidence on 

record, the High Court should not have reversed the order of acquittal recorded 

by trial court. It is further contended that appellant Darshan Singh was 

discharging his duties in the school on 17.02.1995 and was not present at the 

place of incident when occurrence took place and as such, the acquittal 

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recorded by the trial court was not liable to be interfered with. Our attention is 

drawn to the evidence adduced in defence in support of plea of alibi. 

11. On the other hand, learned counsel for the State pointed out 

that in the incident in question, while Surain Singh committed murder of 

Harbans Singh, the appellant (Darshan Singh) committed murder of Santa Singh. 

It is further submitted that plea of alibi taken by the defence was correctly 

found false by the High Court after re-appreciation of evidence. Learned 

counsel for the State referred to the statements of injured eye witnesses. 

12. We have considered rival submissions and perused the entire record 

of the case. There are three injured eye witnesses in the present case, namely, 

PW-1 Amrik Singh, PW-2 Sukhchain Singh and PW-3 Raj Singh. It is a case of day 

light incident. Injuries on the person of said eye witnesses have been 

corroborated by PW-4 Dr. Sarabjit Singh Sandhu, PW-5 Dr. Manjit Singh and 

PW-14 Dr. S.P. Singla. Ocular testimony of eye witnesses cannot be discarded 

lightly. Once the prosecution has discharged its burden, the burden to prove 

that appellant Darshan Singh was not present with other accused at the place of 

incident and had gone elsewhere, lies on him. Injured eye witnesses have 

assigned specific role as to how he assaulted Santa Singh who suffered ante 

mortem injuries which gets corroborated from the autopsy report of Santa 

Singh. There are as many as five stabbed wounds out of the six ante mortem 

injuries. 

The same are being reproduced below from autopsy report of Santa 

Singh:- 

"1. Transverse stab wound 3 x 0.5 cm was present on the 

anterior side of chest on the left side, 6 cms below and lateral to left 

nipple at 4.00 O' clock position. C.B.P was present. On dissection, it is 

going in wards and medially through 6 th inter costal space, piercing the 

pericardium and left vertical. Pericardial sac contains about 200 C.C of 

fluid blood. 

2. Transverse stab wound 3 x 0.5 cm on the lateral side of left side of 

chest 6 cms lateral to the injury no.1. It was bone deep C.B.P. 

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3. Transverse stab wound 2 x 0.5 cm was present at the back of the 

left side of abdomen 3 cms lateral to midline and 15 cm above the 

posterior superior iliac spine of left side on dissection, the peritoneum 

large intestia was cut. Peritoneal cavity contained about 500 C.C. of 

fluid and clotted blood. 

4. Transverse stab wound 2.5 x 0.5 cm was present on the back of the 

left side of abdomen, 6 cms lateral to the injury no.3 C.B.P. It was skin 

deep. 

5. An oblique stab wound 1.5 x 25 cm on the back of left side of chest, 

2 cms from the midline and 20 cms below the nape of the neck, it was 

bone deep C.B.P. 

6. A transverse stab wound 4 x 0.5 cms on the back of left side of 

chest, 5 cms from the midline and 12 cms below the nape of the neck. 

C.B.P. It was bone deep." 

13. From the record, PW-1 Amrik Singh (eye witness) appears to 

have suffered following injuries at the time of the incident:- 

"2.4cm x 1cm incised wound-10.5 cms below and posterior to 

left shoulder joint. X-ray of left shoulder joint advised. 

Injury was kept under observation and duration was within 6 

hours weapon used was sharp weapon" 

Injuries were declared simple in nature as per x-ray report and 

was result of a sharp weapon." 

14. Another eye witness PW-2 Sukhchain Singh found to have 

suffered following injuries as per the injury report proved on the record:- 

"1. 1.0 cm x 0.25 cm incised wound on the middle of 

forehead. X-ray advised. 

2. 2 cm x 1 cm incised wound on right side of chest 17 cms 

from xiphisternum. Profuse bleeding was present. X-ray advised. 

3. 3 x 2 cms incised wound on right lumber region-10 cms 

below injury no.2. Surgical opinion and X-ray advised." 

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15. Third eye witness PW-3 Raj Singh suffered following injuries on 

the date of incident, as proved on the record:- 

"1. 1.9 cm x 1 incised wound in right Gluteal region-6 V2 cms 

below the right. Anterior superior iliac spine. X-ray advised. 

2. 2cms x 1 cm incised wound on right lower chest. Bonedeep 

22 cms below the right anterior, Axillary fold-17 cms below and slightly 

lateral to right memory gland. Surgical opinion was advised." 

16. Now, we come to the defence plea of appellant Darshan Singh which 

was accepted by the trial court but rejected by the High Court. There is no cavil 

over the fact that appellant Darshan Singh was posted as Lab Assistant with the 

Senior Secondary School, Janerian. After carefully going through the statements 

of defence witnesses and other evidence on record, we agree with the High 

Court that accused Darshan Singh has taken false plea of alibi. It is proved on 

the record that in the proceedings under Section 107/151 of Cr.PC before 

Executive Magistrate, Faridkot, he was to be present in said case on 17.02.1995. 

His presence and role is narrated in detail by the injured eye witnesses. In view 

of his role in the incident narrated by the eye witnesses, it is hard to believe that 

after moving application on 16.02.1995 for casual leave for 17.02.1995, Darshan 

Singh attended the school next day in the first half and sought half day leave 

thereafter. The attendance register was not seized immediately after the 

incident. His plea of alibi is vacillating. 

17. The word alibi means "elsewhere". The plea of alibi is not one of the 

General Exceptions contained in Chapter IV of IPC. It is a rule of evidence 

recognized under Section 11 of the Evidence Act. However, plea of alibi taken 

by the defence is required to be proved only after prosecution has proved its 

case against the accused. In the present case said condition is fulfilled. 

18. After scrutinizing the entire evidence on record, we do not find 

any illegality in appreciation of evidence, or in arriving at the conclusion as to 

the guilt of the present appellant by the High Court. 

19. Therefore, for the reasons discussed above, we find no force in 

this appeal which liable to be dismissed. 

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20. Accordingly, the appeal is dismissed. Appellant be taken into 

custody by the court concerned to make him serve out the remaining part of 

sentence, awarded by the High Court. 

----SS---- 

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Present : T.S.. Thakur, CJI and R. Banumathi. 

SANJAY – Appellant, 

Versus 

STATE OF UTTAR PRADESH – Respondent. 

Criminal Appeal No. 11 OF 2016 (Arising out of S.L.P. (Crl.) No.3896 of 2013) 

With Criminal Appeal No. 12 OF 2016 (Arising out of S.L.P. (Crl.) No.3897 of 

2013) 

Indian Penal Code, 1860 (45 of 1860) - Section 300 clause (3), 302 IPC 

304 Part I - Condition of deceased at time of admission in hospital was serious 

and injuries received in the head was dangerous to his life – Doctor opined 

that condition of the deceased at the time of discharge from hospital was not 

critical and his condition was stable - Apparent that the death occurred sixty 

two days after the occurrence due to septicaemia and it was indirectly due to 

the injuries sustained by the deceased caused in the incident - Prosecution 

failed to elicit from the Doctor that the head injury sustained by the deceased 

was sufficient in the ordinary course of nature to cause death - Having regard 

to the fact that deceased survived for sixty two days and that his condition 

was stable when he was discharged from the hospital, the court cannot draw 

an inference that the intended injury caused was sufficient in the ordinary 

course of nature to cause death so as to attract clause (3) of Section 300 IPC - 

Conviction under Section 302 IPC modified to Section 304 Part I IPC. 

[Para 15] 

JUDGMENT 

R. Banumathi, J.- (6 th January, 2016) - Leave granted in both the special 

leave petitions. 

2. These criminal appeals have been filed assailing the 

impugned judgment dated 30.08.2012 passed by the High Court of Judicature 

at Allahabad dismissing the criminal appeals No.2188/2007 and 2561/2007 

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upholding the conviction of the appellant Narendra for offences under Sections 

302, 307 read with Section 34 IPC and Section 452 IPC and also the sentence of 

life imprisonment, ten years imprisonment with fine of Rs.5,000/- and three 

years imprisonment with fine of Rs.1,000/- respectively. The High Court also 

confirmed the conviction of the appellant Sanjay under Section 302 read with 

Section 34 IPC, Section 307 read with Section 34 IPC and Section 452 IPC and 

sentence of life imprisonment, ten years imprisonment with a fine of Rs.5,000/- 

and three years imprisonment with a fine of Rs. 1,000/- respectively. 

3. Case of the prosecution is that appellant-Sanjay is the 

brother of deceased Roop Singh. According to PW-2 Sheela wife of Roop Singh, 

after selling his land to Narendra, Sanjay was insisting his brother Roop Singh to 

sell his land to Narendra for which Roop Singh refused, due to which appellant- 

Sanjay is said to have developed enmity towards Roop Singh. On the intervening 

night of 10/11.08.1998 at 3.00 a.m., Roop Singh and his wife Sheela were 

sleeping in their chowk and a lantern was lit in the house. Appellants-Narendra 

and Sanjay along with another person armed with tamancha (pistol) came to 

the house of Roop Singh. Appellant-Narendra fired multiple bullets at Roop 

Singh and Roop Singh sustained bullet injury in his head. Sanjay fired at PW-2 

Sheela and she sustained bullet injuries at neck, abdomen and her right leg. 

Hearing sounds of bullets, the complainant-Partap Singh and one Ompal and 

several other persons rushed to the spot and on seeing them, the appellants 

Narendra, Sanjay and the third assailant fled away from the scene. On the basis 

of the complaint lodged by Partap Singh at Police Station Sardhana, Meerut, 

case was registered in Crime No. 387/1998 for offences under Sections 307 and 

452 IPC. Injured victims were sent to Primary Health Centre, Sardhana, Meerut 

for treatment. Roop Singh (deceased) was admitted at Safdarjung Hospital, 

Delhi and after treatment, Roop Singh was discharged from the hospital on 

25.09.1998. Subsequently, Roop Singh developed complications, Roop Singh 

was taken for check up to Delhi and Roop Singh died on 13.10.1998. Ram Pal 

gave written information about the death of injured Roop Singh to the police 

and Section 302 IPC was added to the FIR. After completion of investigation, 

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chargesheet was filed against the appellants for offences under Sections 302, 

307 and 452 IPC. 

4. To substantiate the charges against the appellants, prosecution 

examined nine witnesses and exhibited twenty five documents and materia! 

objects. Upon appreciation of evidence, the learned Additional Sessions Judge, 

Meerut vide judgment dated 17.03.2007 found the appellants guilty for 

offences under Section 302 IPC read with Section 34 IPC and Section 307 IPC 

read with Section 34 IPC and Section 452 IPC and they were sentenced to suffer 

life imprisonment, ten years imprisonment with a fine of Rs.5,000/- and three 

years imprisonment with a fine of Rs.1,000/- respectively. The trial court 

ordered that half of the fine amount be paid to PW-2 Sheela as compensation. 

Aggrieved by the verdict of conviction, the appellants filed criminal appeals 

before the High Court of Judicature at Allahabad which were dismissed vide 

common impugned judgment dated 30.08.2012 upholding the conviction and 

sentence imposed upon the appellants as aforesaid. Aggrieved, the appellants 

have preferred these appeals assailing the conviction and sentence imposed on 

them. 

5. Learned counsel for the appellants contended that as the 

deceased Roop Singh had already transferred his land to Partap Singh (PW-1) 

about one and a half years prior to the occurrence and therefore it is 

improbable that Sanjay would have insisted his brother Roop Singh to sell his 

land also to appellant-Narendra and as such the motive suggested by the 

prosecution is not a probable one. It was further submitted that death of Roop 

Singh as seen from the evidence of Dr. Laxman Das (PW-9) when Roop Singh 

was discharged from the hospital his condition was stable and two months 

thereafter Roop Singh died due to septicaemia and therefore conviction of the 

appellants under Section 302 IPC is not sustainable. 

6. Per contra, Mr. Ratnakar Dash, learned Senior Counsel for the 

respondent contended that death of Roop Singh was the direct result of the 

multiple bullet injury inflicted by the appellants and the head injury caused by 

the appellants was sufficient in the ordinary course of nature to cause death 

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and the courts below rightly convicted the appellants under Section 302 IPC and 

the same cannot be interfered. Learned Senior Counsel submitted that as the 

deceased Roop Singh sustained bullet injuries on his head, intention to cause 

death can be inferred from the situs and nature of the injury and the weapon 

used. 

7. Case of the prosecution as seen from the evidence is that 

appellants-Sanjay and Narendra and one unidentified assailant armed with 

countrymade pistols entered the house of deceased Roop Singh at the wee 

hours-3.00 a.m. on 11.08.1998. It is alleged that the appellant-Sanjay fired four 

times at his sister-in- law-Sheela (PW-2) wife of the deceased and Narendra 

fired one gun shot on the deceased-Roop Singh. Roop Singh was operated at 

Safdarjung Hospital, Delhi and was discharged on 25.09.1998 and he was taken 

back to his home at village Sardhana. When injured Roop Singh was taken to 

Delhi for check up, he died on the way to hospital on 13.10.1998, PWs 1 and 2 

have consistently spoken about the overt act of the appellants. PW-2-Sheela is 

an injured witness and her version stands on a higher footing. The testimony of 

the injured witness coupled with the fact that the complaint was promptly 

lodged by the complainant-Partap Singh within one and half hours of the 

incident lends assurance to the prosecution case. As the prosecution version is 

unassailable, by order dated 18.04.2013, this Court issued notice limited to the 

question of nature of the offence committed by the appellants. 

8. In the light of the specific contention advanced by the 

appellants that after the attack the deceased survived for sixty two days after 

his surgery discharged in stable condition, the only issue which needs to be 

examined is whether conviction of the appellants under Section 302 IPC is 

sustainable. 

9. Dr. Laxman Das (PW-9), Neuro Surgeon at Safdarjung Hospital, 

Delhi who examined injured Roop Singh on 12.08.1998 found one wound of 

insertion of bullet in the head mid frontal region of Roop Singh which measured 

2 cm x 2 cm. PW-9 conducted the operation on 15.09.1998 and bullet was 

extracted from the supra cellar part of the head of Roop Singh. PW-9 stated at 

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the time of admission of Roop Singh in the hospital on 12.08.1998, general 

condition of the patient was serious and that the injuries received in the head 

was dangerous to his life. Dr. Laxman Das (PW-9) opined that condition of the 

deceased at the time of discharge from the hospital on 25.09.1998 was not 

critical and his condition was stable. In the instant case, admittedly, deceased 

Roop Singh died after sixty two days of the fateful incident. PW-3-Dr. M.C. 

Gulecha, who conducted the postmortem examination on the body of 

deceased-Roop Singh opined that the cause of death was septicaemia which 

was due to the wounds sustained by him prior to his death. 

10. Learned counsel for the appellants submitted that since Roop 

Singh died more than two months after the date of the occurrence and that he 

was discharged from the hospital in good condition and septicaemia might have 

set in due to lack of proper care after he was discharged from the hospital and 

therefore the appellants cannot be said to have caused the death of deceased 

and the conviction under Section 302 IPC is not sustainable. 

11. Learned Senior Counsel for the respondent contended that 

second appellant-Narendra inflicted serious injuries on the forehead of the 

deceased and fire shots with intention to kill the deceased and the intention to 

cause death can be inferred from the situs of the injury and that the act was 

sufficient in the ordinary course of nature to cause death. Reliance was placed 

upon the judgment of this Court in Jagtar Singh And Anr. v. State of Punjab, 

(1999) 2 SCC 174 and Dhupa Chamar And Ors. v. State of Bihar, (2002) 6 SCC 

506. 

12. In Jagtar Singh's case (supra), Harbans Singh gave gandasa 

blow on the left side of the head of deceased-Naib Singh, Jagtar Singh inflicted 

khapra blow to the deceased. The incident happened on 23.09.1991 and the 

injured succumbed to his injuries even while he was undergoing treatment at 

PGI Hospital Chandigarh on 09.10.1991. In the said case, it was brought out 

from evidence that the deceased succumbed to injuries even while he was 

undergoing treatment and in such facts and circumstances, court drew 

inference that the injuries were sufficient in the ordinary course of nature to 

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cause the death. In Dhupa Chamar's case (supra), Dhupa Chamar gave a bhala 

blow on the left side of neck of Ram Patia Devi and she fell down and died 

instantaneously. Accused No.2-Tokha Ram assaulted Dharam Chamar in the 

abdomen with bhala and he was rushed to the hospital whereupon he was 

declared brought dead. On the basis of nature of injuries inflicted which 

resulted in the instant death of the deceased persons and other circumstances, 

court held that the intended injury was sufficient in the ordinary course of 

nature to cause death and convicted the accused for the offences under 

Section 302 IPC. 

13. However, in the instant case, it is apparent that the death 

occurred sixty two days after the occurrence due to septicaemia and it was 

indirectly due to the injuries sustained by the deceased. The proximate cause of 

death on 13.10.1998 was septicaemia which of course was due to the injuries 

caused in the incident on 11.08.1998. As noted earlier, as per the evidence of 

Dr. Laxman Das (PW-9), Roop Singh was discharged from the hospital in good 

condition and he survived for sixty two days. In such facts and circumstances, 

prosecution should have elicited from Dr. Laxman Das (PW-9) that the head 

injury sustained by the deceased was sufficient in the ordinary course of nature 

to cause death. No such opinion was elicited either from Dr. Laxman Das (PW-9) 

or from Dr. Gulecha (PW-3). Having regard to the fact that Roop Singh survived 

for sixty two days and that his condition was stable when he was discharged 

from the hospital, the court cannot draw an inference that the intended injury 

caused was sufficient in the ordinary course of nature to cause death so as to 

attract clause (3) of Section 300 IPC. 

14. In Ganga Dass alias Godha v. State of Haryana, 1994 Supp (1) 

SCC 534, the accused gave iron pipe single blow on the head of the deceased 

and the deceased died eighteen days after the occurrence due to septicaemia 

and other complications, the conviction of the appellant under Section 302 IPC 

was altered by this Court to Section 304 Part II IPC. This Court observed as 

under:- 

981 


982 



"6. We find considerable force in this submission. As stated above the 

occurrence took place on November 18, 1988 and the deceased died 18 

days later on December 5, 1988 due to septicaemia and other 

complications. The Doctor found only one injury on the head and that 

was due to single blow inflicted with an iron pipe not with any sharpedged 

weapon. Having regard to the circumstances of the case, it is 

difficult to hold that the appellant intended to cause death nor it can be 

said that he intended to cause that particular injury. In any event the 

medical evidence shows that the injured deceased was operated but 

unfortunately some complications set in and ultimately he died because 

of cardiac failure etc. Under these circumstances, we set aside the 

conviction of the appellant under Section 302 IPC and the sentence of 

imprisonment for life awarded thereunder. Instead we convict him 

under Section 304 Part II IPC and sentence him to undergo six years' RI. 

The sentence of fine of Rs.2000 along with default clause is confirmed. 

Accordingly the appeal is partly allowed." 

15. In the instant case, the appellants used firearms countrymade 

pistol and fired at Roop Singh at his head and the accused had the intention of 

causing such bodily injury as is likely to cause death. As the bullet injury was on 

the head, vital organ, second appellant intended of causing such bodily injury 

and therefore conviction of the appellant is altered from Section 302 IPC to 

Section 304 Part I IPC. The learned counsel for the appellant- Sanjay submitted 

that it was only Narendra who fired at Roop Singh at his head, appellant-Sanjay 

fired on Sheela (PW-2) on her neck, stomach and leg. Learned counsel for the 

appellant-Sanjay contended that as Sanjay fired only at Sheela, he could not 

have been convicted for causing death of Roop Singh under Section 302 IPC 

read with Section 34 IPC. There is no force in the above contention. The 

common intention of the appellants is to be gathered from the manner in which 

the crime has been committed. Both the appellants came together armed with 

firearms in the wee hours of 11.08.1998. Both the appellants indiscriminately 

fired from their countrymade pistols at Roop Singh-deceased and Sheela (PW-2) 

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respectively. The conduct of the appellants and the manner in which the crime 

has been committed is sufficient to attract Section 34 IPC as both the appellants 

acted in furtherance of common intention. The conviction of the appellant- 

Sanjay under Section 302 IPC read with Section 34 IPC is modified to conviction 

under Section 304 Part I IPC. 

16. Conviction of the appellants-Narendra and Sanjay under Section 

302 IPC and Section 302 IPC read with Section 34 IPC respectively is modified to 

Section 304 Part I IPC and Section 304 Part I IPC read with Section 34 IPC 

respectively and each of them are sentenced to undergo rigorous imprisonment 

for ten years and the same shall run concurrently alongwith sentence of 

imprisonment imposed on the appellants. Conviction of the appellants for other 

offences and the respective sentence of imprisonment imposed on the 

appellants and fine is affirmed. The appeals are partly allowed to the above 

extent. 

----SS---- 

983 





Present: Justice Dipak Misra and Justice Prafulla C. Pant. 

USMANGANI ADAMBHAI VAHORA – Appellant, 

Versus 

STATE OF GUJARAT & Anr. – respondents. 

Criminal Appeal Nos. 1592-1593 of 2015 (@ S.L.P. (Criminal) Nos. 9374-9375 of 

2015) 

(i) Code of Criminal Procedure, 1973 - Section 408 (1) - Exercise of 

power by the Sessions Judge to transfer a case from one Additional 

Sessions Judge to any other Additional Sessions Judge in his Sessions 

Division after commencement of the trial - Transfer petition preferred 

under Section 408 CrPC before the learned Principal Sessions Judge is 

maintainable - The view expressed by the High Court on this score 

appears to be correct and hence, affirm the same. [Para 2] 

984 


(ii) Code of Criminal Procedure, 1973 - Section 408 (1) - Transfer of case 

- Seeking transfer at the drop of a hat is inconceivable - An order of 

transfer is not to be passed as a matter of routine or merely because an 

interested party has expressed some apprehension about proper 

conduct of the trial - The power has to be exercised cautiously and in 

exceptional situations, where it becomes necessary to do so to provide 

credibility to the trial - There has to be a real apprehension that there 

would be miscarriage of justice. 

(iii) Code of Criminal Procedure, 1973 - Section 408 (1) - Transfer of 

case - Solely because an accused has filed an application for transfer, 

trial judge is not required to express his disinclination - He is required 

under law to do his duty - He has to perform his duty and not to 

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succumb to the pressure put by the accused by making callous 

allegations - He is not expected to show unnecessary sensitivity to such 

allegations and recuse himself from the case - If this can be the 

foundation to transfer a case, it will bring anarchy in the adjudicatory 

process - The unscrupulous litigants will indulge themselves in court 

haunting - If they are allowed such room, they do not have to face the 

trial before a court in which they do not feel comfortable. [Para 12] 

(iv) Code of Criminal Procedure, 1973 - Transfer of case - The high court 

has taken an exception to the remarks given by the learned trial judge 

and also opined about non- examination of any witness by him - 

Sessions Judge, while hearing the application for transfer of the case, 

called for remarks of the trial judge, and in such a situation, he is 

required to give a reply and that he has done - He is not expected to 

accept the allegations made as regards his conduct and more so while 

nothing has been brought on record to substantiate the same - High 

Court could not have deduced that he should have declined to conduct 

the trial - This kind of observation is absolute impermissible in law, for 

there is no acceptable reason on the part of the learned trial judge to 

show his disinclination – So far as the non-examination of the 

witnesses is concerned, as the factual score would uncurtain, the 

matter had travelled to the High Court in revision assailing the order 

passed under Section 319 CrPC. Be that as it may, the High Court has 

not adverted to the issue who was seeking adjournment and what was 

the role of the learned trial judge - Grant of adjournment could have 

been dealt with by the High Court in a different manner - It has to be 

borne in mind that a judge who discharges his duty is bound to commit 

errors- The same have to be rectified - The accused has never moved 

985 



the superior court seeking its intervention for speedy trial - The High 

Court has innovated a new kind of approach to transfer the case. 

[Para 12] 

JUDGMENT 


Dipak Misra, J.- (8 th January, 2016) - The seminal issue that has emerged 

for consideration in these appeals is whether the High Court in exercise of 

jurisdiction under Article 227 of the Constitution of India is justified in quashing 

the order dated 14.08.2015 passed by the Principal Sessions Judge, Kheda at 

986 


Nadiad in Criminal Miscellaneous Application No. 545 of 2015 arising from the 

Sessions Case No. 291 of 2003 instituted for the offences punishable under 

Sections 147, 148, 149, 364A, 120B, 447, 342 and 506(2) of the Indian Penal 

Code (IPC) and further directing the learned Principal Sessions Judge to transfer 

the Sessions Case to any other court of the learned Additional Sessions Judge in 

the same Sessions Division from the court of the 3 rd Additional Sessions Judge, 

Kheda. 

2. Be it stated at the beginning, the High Court has posed two questions 

- one of which pertains to exercise of power under sub-section (1) of Section 

408 of the Code of Criminal Procedure, 1973 (CrPC) by the Sessions Judge to 

transfer a case from one Additional Sessions Judge to any other Additional 

Sessions Judge in his Sessions Division after commencement of the trial, and the 

other, whether the case deserves to be transferred. Answering the first issue, 

the High Court has opined that the transfer petition preferred under Section 

408 CrPC before the learned Principal Sessions Judge is maintainable. The view 

expressed by the High Court on this score appears to be correct and hence, we 

affirm the same. The principal issue warranting delineation is the justification 

for allowing application for transfer from the court where the trial was pending 

to the court of another learned Additional Sessions Judge. 

3. The facts which are essential to be stated are that the 2 nd respondent 

faced trial for the offences mentioned hereinbefore in Sessions Case No. 291 of 

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2003. After examination of 18 prosecution witnesses, the informant preferred 

an application under Section 319 CrPC for arraigning one Natubhai Maganbhai 

Edanwala as an accused in the sessions case. The said application was rejected 

by the learned trial judge vide order dated 18.05.2006. Aggrieved by the 

aforesaid rejection, the informant preferred Special Criminal Application No. 

1444 of 2006 before the High Court which vide order dated 02.12.2011 rejected 

the same. The said order was assailed before this Court in Special Leave Petition 

(Criminal) No. 17262 of 2012 which was dismissed on 11.01.2013 with the 

observation that it would be open to the informant to file an appropriate 

application under Section 319 CrPC, if at the end of the examination of all the 

witnesses, some material is found to connect the person sought to be arraigned 

as an accused in the alleged crime. As the factual matrix would exposit, the 

informant filed another application under Section 319 CrPC after the 

examination of the prosecution witnesses Nos. 19 to 23 and the application was 

allowed. The newly arraigned accused preferred Special Criminal Application 

No. 1731 of 2013 before the High Court challenging the said order, and the High 

Court had stayed the same. 

4. As the factual score would undrape on 31.07.2015 when the sessions 

trial was fixed before the learned 3 rd Additional Sessions Judge, Kheda at 

Nadiad, as alleged, the second respondent was standing in the parking area 

meant for the four wheelers and at that time he could overhear certain 

conversation between the informant and his son that the trial would be surely 

taken up for hearing from the next date onwards and all the accused persons 

would definitely be convicted. As further alleged, the Presiding Officer said 

something regarding the trial which the accused correlated with the 

conversation he had overheard between the informant and his son. Under such 

circumstances, he filed Criminal Miscellaneous Application No. 545 of 2015 

under Section 408 CrPC before the Principal Sessions Judge, Kheda for transfer 

of the sessions case to any other court in the same Sessions Division. The 

learned Principal Sessions Judges called for the remarks of the concerned 

Presiding Officer and, after taking into consideration the remarks and adverting 

987 


988 



to the position of law, rejected the application. The learned Principal Sessions 

Judge while rejecting the application had observed that once the trial 

commenced, he had no jurisdiction to transfer the case in exercise of the power 

under Section 408 CrPC. As has been stated earlier, the High Court had 

unsettled the said view and we have no hesitation to say correctly so. 

5. The High Court, as has been indicated earlier, has referred to the 

conversation between the parties and the impression of the accused. After 

narrating the same, the High Court has observed that the accused-petitioner 

definitely is in dilemma and whether to term his apprehension as reasonable or 

not, the result of the reaction of a hypersensitive mind is the question. 

Thereafter, the High Court has proceeded to observe that the learned trial 

Judge had not examined any witness; that all witnesses examined so far were 

examined by his predecessor in office; that the Presiding Officer himself had 

also not indicated his disinclination to hear the matter, and that apart, he had 

offered quite a stiff resistance to the plea of transfer as the same is revealed 

from his remarks forwarded to the Principal Sessions Judge. After so stating, the 

learned single Judge has held thus:- 

"...I am sure that the present Additional Sessions Judge would 

have acted in a true sense of a Judicial Officer. But nevertheless, to 

ensure that justice is not only done, but also seems to be done and in 

the peculiar facts of the case, I feel that it will be appropriate if the 

Principal Sessions Judge transfers the case to any other Additional 

Sessions Judge in the same Sessions Division. I make it abundantly clear 

that the transfer shall not be construed as casting any aspersions on the 

learned Additional Sessions Judge." 

6. On a careful scrutiny of the order passed by the High Court, it is not 

clear whether the High Court has been convinced that the accused has any real 

apprehension or bias against the trial judge. However, the observations of the 

learned single Judge, as it seems to us, is fundamentally based on apprehension 

and to justify the same, he has referred to the remarks offered by the learned 

Additional Sessions Judge to the Sessions Judge when explanation was called 

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for. First, we shall refer to the issue of apprehension. The apprehension is based 

on some kind of conversation between the informant and another that the 

accused persons shall be convicted. There is also an assertion that the trial 

judge is a convicting Judge and that is why, the High Court has observed that he 

is in dilemma. 

7. So far as apprehension is concerned, it has to be one which would 

establish that justice will not be done. In this context, we may profitably refer to 

a passage from a three-Judge Bench decision in Gurcharan Dass Chadha v. 

State of Rajasthan, AIR 1966 SC 1418 wherein it has been held: 

"... The law with regard to transfer of cases is well-settled. A 

case is transferred if there is a reasonable apprehension on the part of a 

party to a case that justice will not be done. A petitioner is not required 

to demonstrate that justice will inevitably fail. He is entitled to a 

transfer if he shows circumstances from which it can be inferred that he 

entertains an apprehension and that it is reasonable in the 

circumstances alleged. It is one of the principles of the administration of 

justice that justice should not only be done but it should be seen to be 

done. However, a mere allegation that there is apprehension that 

justice will not be done in a given case does not suffice. The Court has 

further to see whether the apprehension is reasonable or not. To judge 

of the reasonableness of the apprehension the state of the mind of the 

person who entertains the apprehension is no doubt relevant but that is 

not all. The apprehension must not only be entertained but must 

appear to the Court to be a reasonable apprehension." 

8. This Court in Abdul Nazar Madani v. State of T.N. (2000) 6 SCC 204, has 

ruled that:- 

"...The apprehension of not getting a fair and impartial inquiry or 

trial is required to be reasonable and not imaginary, based upon 

conjectures and surmises. If it appears that the dispensation of criminal 

justice is not possible impartially and objectively and without any bias, 

before any court or even at any place, the appropriate court may 

989 


990 



transfer the case to another court where it feels that holding of fair and 

proper trial is conducive. No universal or hard-and-fast rules can be 

prescribed for deciding a transfer petition which has always to be 

decided on the basis of the facts of each case. Convenience of the 

parties including the witnesses to be produced at the trial is also a 

relevant consideration for deciding the transfer petition. The 

convenience of the parties does not necessarily mean the convenience 

of the petitioners alone who approached the court on misconceived 

notions of apprehension. Convenience for the purposes of transfer 

means the convenience of the prosecution, other accused, the witnesses 

and the larger interest of the society." 

9. In Captain Amarinder Singh v. Parkash Singh Badal and others, 

(2009) 6 SCC 260 while dealing with an application for transfer petition 

preferred under Section 406 CrPC, a three-Judge Bench has opined that for 

transfer of a criminal case, there must be a reasonable apprehension on the 

part of the party to a case that justice will not be done. It has also been 

observed therein that mere an allegation that there is an apprehension that 

justice will not be done in a given case alone does not suffice. It is also required 

on the part of the Court to see whether the apprehension alleged is reasonable 

or not, for the apprehension must not only be entertained but must appear to 

the Court to be a reasonable apprehension. In the said context, the Court has 

held thus:- 

"19. Assurance of a fair trial is the first imperative of the 

dispensation of justice. The purpose of the criminal trial is to dispense 

fair and impartial justice uninfluenced by extraneous considerations. 

When it is shown that the public confidence in the fairness of a trial 

would be seriously undermined, the aggrieved party can seek the 

transfer of a case within the State under Section 407 and anywhere in 

the country under Section 406 CrPC. 

20. However, the apprehension of not getting a fair and 

impartial inquiry or trial is required to be reasonable and not imaginary. 

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Free and fair trial is sine qua non of Article 21 of the Constitution. If the 

criminal trial is not free and fair and if it is biased, judicial fairness and 

the criminal justice system would be at stake, shaking the confidence of 

the public in the system. The apprehension must appear to the court to 

be a reasonable one." 

10. In Lalu Prasad alias Lalu Prasad Yadav v. State of Jharkhand, 

(2013)8 SCC 593 the Court, repelling the submission that because some of the 

distantly related members were in the midst of the Chief Minister, opined that 

from the said fact it cannot be presumed that the Presiding Judge would 

conclude against the appellant. From the said decision, we think it appropriate 

to reproduce the following passage:- 

"Independence of judiciary is the basic feature of the 

Constitution. It demands that a Judge who presides over the trial, the 

Public Prosecutor who presents the case on behalf of the State and the 

lawyer vis-a-vis amicus curiae who represents the accused must work 

together in harmony in the public interest of justice uninfluenced by the 

personality of the accused or those managing the affairs of the State. 

They must ensure that their working does not lead to creation of conflict 

between justice and jurisprudence. A person whether he is a judicial 

officer or a Public Prosecutor or a lawyer defending the accused should 

always uphold the dignity of their high office with a full sense of 

responsibility and see that its value in no circumstance gets devalued. 

The public interest demands that the trial should be conducted in a fair 

manner and the administration of justice would be fair and 

independent." 

11. The aforesaid passage, as we perceive, clearly lays emphasis on 

sustenance of majesty of law by all concerned. Seeking transfer at the drop of a 

hat is inconceivable. An order of transfer is not to be passed as a matter of 

routine or merely because an interested party has expressed some 

apprehension about proper conduct of the trial. The power has to be exercised 

cautiously and in exceptional situations, where it becomes necessary to do so 

991 


992 



to provide credibility to the trial. There has to be a real apprehension that there 

would be miscarriage of justice. [See : Nahar Singh Yadav and another v. Union 

of India and others, (2011) 1 SCC 307]. 

12. In the instant case, we are disposed to think that apprehension 

that has been stated is absolutely mercurial and cannot remotely be stated to 

be reasonable. The learned single Judge has taken an exception to the remarks 

given by the learned trial judge and also opined about non- examination of any 

witness by him. As far as the first aspect is concerned, no exception can be 

taken to it. The learned Sessions Judge, while hearing the application for 

transfer of the case, called for remarks of the learned trial judge, and in such a 

situation, he is required to give a reply and that he has done. He is not expected 

to accept the allegations made as regards his conduct and more so while 

nothing has been brought on record to substantiate the same. The High Court 

could not have deduced that he should have declined to conduct the trial. This 

kind of observation is absolute impermissible in law, for there is no acceptable 

reason on the part of the learned trial judge to show his disinclination. Solely 

because an accused has filed an application for transfer, he is not required to 

express his disinclination. He is required under law to do his duty. He has to 

perform his duty and not to succumb to the pressure put by the accused by 

making callous allegations. He is not expected to show unnecessary sensitivity 

to such allegations and recuse himself from the case. If this can be the 

foundation to transfer a case, it will bring anarchy in the adjudicatory process. 

The unscrupulous litigants will indulge themselves in court haunting. If they are 

allowed such room, they do not have to face the trial before a court in which 

they do not feel comfortable. The High Court has gravely erred in this regard. So 

far as the non-examination of the witnesses is concerned, as the factual score 

would uncurtain, the matter had travelled to the High Court in revision assailing 

the order passed under Section 319 CrPC. Be that as it may, the High Court has 

not adverted to the issue who was seeking adjournment and what was the role 

of the learned trial judge. Grant of adjournment could have been dealt with by 

the High Court in a different manner. It has to be borne in mind that a judge 

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who discharges his duty is bound to commit errors. The same have to be 

rectified. The accused has never moved the superior court seeking its 

intervention for speedy trial. The High Court has innovated a new kind of 

approach to transfer the case. The High Court should have kept in view the 

principles stated in K.P. Tiwari v. State of M.P. 1994 Supp. (1) SCC 540 which 

are to the following effect:- 

" It has also to be remembered that the lower judicial officers mostly 

work under a charged atmosphere and are constantly under a 

psychological pressure with all the contestants and their lawyers almost 

breathing down their necks—more correctly up to their nostrils. They 

do not have the benefit of a detached atmosphere of the higher courts 

to think coolly and decide patiently. Every error, however gross it may 

look, should not, therefore, be attributed to improper motive." 

13. Thus analysed, we are unable to sustain the order of transfer passed 

by the High Court. Consequently, the appeals are allowed in part. The finding 

recorded as regards the jurisdiction of the learned Sessions Judge is sustained, 

and as far as the direction to the Principal Sessions Judge to transfer the case 

from the 3 rd Additional Sessions Judge to some other court being vulnerable 

and wholly unsustainable is set aside. The learned trial judge shall proceed with 

the trial and dispose of the same within six months. 

SS ---- 

993 


--- End of e@book Reports ---


THE 


SUPREME COURT 

e-Journal 

994 



NOMINAL INDEX 

NOMINAL INDEX 

A 

Air Customs Officer, IGI New Delhi Versus Pramod Kumar Dhamija , ... (2016)3 


Anant Prakash Sinha @ Anant Sinha Versus State Of Haryana ... (2016)3 PLRSC 

455 

Anubhav Kumar Choudhary Versus Union Of India ... (2016)3 PLRSC 411 

Arti Spinning Mills Etc. Etc. Versus State Of Haryana ... (2016)3 PLRSC 448 

Sample Copy 




B 

Balwan Singh Versus Land Acquisition Collector ... (2016)3 PLRSC 472 

Bhandari Udyog Limited Versus Industrial Facilitation Council ... (2016)3 PLRSC 

603 

Bilaspur Raipur Kshetriya Gramin Bank Versus Madanlal Tandon . ... (2016)3 


Bobbili Ramakrishna Raju Yadav Versus State Of Andhra Pradesh. ... (2016)3 


C 

Central Bank Of India Versus C.L. Vimla ... (2016)3 PLRSC 542 

Chairman, Odisha Joint Entrance Examination Versus Jasobanta Nayak ... 


Chief Engineer (Naval Works) Versus A.P. Asha . ... (2016)3 PLRSC 197 

Commissioner Of Central Excise,Pune Versus Hindustan National Glass And 

Industries Limited , ... (2016)3 PLRSC 101 

D 

995 


Darshan Singh Versus State of Punjab. ... (2016)3 PLRSC 967 

Deepak Surana Versus State Of Madhya Pradesh ... (2016)3 PLRSC 368 

Delhi Development Authority v. P.R. Samanta. ... (2016)3 PLRSC 954 

E 

Electro Optics (P) Ltd. Versus State Of Tamil Nadu ... (2016)3 PLRSC 400 

Employees State Insurance Corporation Versus A.K. Abdul Samad ... (2016)3 


Gajanan Dashrath Kharate Versus State Of Maharashtra ... (2016)3 PLRSC 393 

G 

GMG Engineering Industries M/S Versus M/S Issa Green Power Solution . ...



Golbar Hussain Versus State Of Assam ... (2016)3 PLRSC 554 

Gyaneshwar Shyamal Versus State Of West Bengal ... (2016)3 PLRSC 815 

H 

Hardei V. State Of U.P. ... (2016)3 PLRSC 849 

Hari Narayan Bansal Versus Dada Dev Mandir Prabandhak Sabha (Barah Gaon) 

Palam , ... (2016)3 PLRSC 226 

Heera Lal Versus State Of Haryana. ... (2016)3 PLRSC 121 

Himalayan Cooperative Group Housing Society Versus Balwan Singh . ... (2016)3 


Hina Versus Union Of India ... (2016)3 PLRSC 381 

I 

Indian Instt. Of Planning & Mgmt. M/S Versus M/S Ak & I Advertising Pvt.Ltd. ... 

996 



Indian Machinery Company Versus M/S. Ansal Housing & Construction Ltd. ... 


Indian Performing Rights Society Ltd. V. Sanjay Dalia. ... (2016)3 PLRSC 915 

Indra Dalal Versus State Of Haryana . ... (2016)3 PLRSC 670 

J 

Jagtar Singh Versus State Of Haryana . ... (2016)3 PLRSC. 752 

Jaya Biswal Versus Branch Manager, Iffco Tokio General Insurance Company 

Ltd. ... (2016)3 PLRSC 243 

K 

K. Mallesh V. K. Narender ... (2016)3 PLRSC 286 

Kerala Public Service Commission Versus The State Information Commission, ... 


Sample Copy 




Khenyal Versus New India Assurance Co. ... (2016)3 PLRSC 609 

Kuldeep Singh Versus Panna Lal ... (2016)3 PLRSC 287 

M 

M. Venkatesh Versus Commissioner, Bangalore Development Authority ... 


Madras Petrochem Ltd. V. BIFR. ... (2016)3 PLRSC 123 

Mainuddin Abdul Sattar Shaikh Versus Vijay D. Salvi . ... (2016)3 PLRSC 794 

Manyata Devi Versus State Of U.P. . ... (2016)3 PLRSC 715 

Medical Council Of India Versus JSS Medical College. ... (2016)3 PLRSC 55 

Mukund Dewangan Versus Oriental Insurance Co. Ltd. Etc. ... (2016)3 PLRSC 298 

Munna Lal Jain Versus Vipin Kumar Sharma . ... (2016)3 PLRSC 686 

N 

Nankaunoo Versus State Of U.P. ... (2016)3 PLRSC 235 

Narayan V. Babasaheb. ... (2016)3 PLRSC 865 

Nashik Municipal Corporation Versus M/S. R.M. Bhandari ... (2016)3 PLRSC 373 

Noorahammad Versus State Of Karnataka , ... (2016)3 PLRSC 202 

997 


P 

Pratibha Ramesh Patel Versus Union Of India ... (2016)3 PLRSC 481 

Prem Ram Versus Managing Director, Uttarakhand Pey Jal & Nirman Nigam, 

Dehradun . ... (2016)3 PLRSC 709 

Prem Sagar Manocha Versus State (NCT Of Delhi), ... (2016)3 PLRSC 41 

Punjab & Sind Bank V. Punjab Breeders Ltd. ... (2016)3 PLRSC 879 

Raghavendra Swamy Mutt V. Uttaradi Mutt. ... (2016)3 PLRSC 853 

Rahul Yadav Versus M/S. Indian Oil Corporation Ltd. . ... (2016)3 PLRSC 779 

R


Ram Rati Versus Mange Ram (D) Thr Lrs. ... (2016)3 PLRSC 407 

Ramanlal Versus State Of Haryana . ... (2016)3 PLRSC 632 

Rashtriya Ispat Nigam Ltd, Versus M/S. Prathyusha Resources & Infra Private 

Limited, ... (2016)3 PLRSC 348 

Ratti Ram Versus Union Of India ... (2016)3 PLRSC 384 

Ravinder Singh v. State of Haryana. ... (2016)3 PLRSC 909 

S 

S.R. Sukumar V. S. Sunaad Raghuram. ... (2016)3 PLRSC 883 

Sanjay Versus State Of Uttar Pradesh . ... (2016)3 PLRSC 976 

Sanjeev Kumar Gupta Versus State Of U.P. (Now State Of Uttarakhand) ... 


Satish Kumar Versus Karan Singh ... (2016)3 PLRSC 279 

Savelife Foundation & anr. V. Union of India & anr. ... (2016)3 PLRSC 823 

Sciemed Overseas Inc. Versus BOC India Limited. ... (2016)3 PLRSC 28 

998 


Securities And Exchange Board Of India (SEBI) versus Sahara India Real Estate 

Corpn. Ltd. . ... (2016)3 PLRSC. 761 

Shabnam Versus Union Of India . ... (2016)3 PLRSC 692 

Shahid Khan Versus State Of Rajasthan ... (2016)3 PLRSC 414 

Shaji K. Joseph Versus V. Viswanath ... (2016)3 PLRSC 387 

Shakuntala Yadav Versus State Of Haryana ... (2016)3 PLRSC 487 

Siddharth Chaturvedi Versus Securities And Exchange Board Of India ... 


State Of Kerala Versus P.B. Sourabhan ... (2016)3 PLRSC 422 

State Of M.P. Versus Udaibhan ... (2016)3 PLRSC 444 

State Of Maharashtra v. Shiva @ Shivaji Ramaji Sonawane. ... (2016)3 PLRSC 

960 

State Of Maharashtra Versus Syed Umar Sayed Abbas, ... (2016)3 PLRSC 351 

State Of Punjab Versus M/S. Shreyans Indus Ltd. Etc. ... (2016)3 PLRSC 427 

State Of U.P. Versus Ravindra Kumar Sharma ... (2016)3 PLRSC 228 

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Susanta Das Versus State Of Orissa ... (2016)3 PLRSC 108 

T 

T. Vasanthakumar Versus Vijayakumari ... (2016)3 PLRSC 536 

Tanvi Sarwal Versus Central Board Of Secondary Education . ... (2016)3 PLRSC 

721 

Tekan Alias Tekram Versus State Of Madhya Pradesh (Now Chhattisgarh) ... 


The Management Of Narendra & Company Private Limited Versus The 

Workmen Of Narendra & Company, ... (2016)3 PLRSC 38 

Tmt. Kasthuri Radhakrishnan Versus M. Chinniyan, ... (2016)3 PLRSC 181 

Trained Nurses Association Of India Versus Union Of India, ... (2016)3 PLRSC 223 

Union Of India Versus M/S. Ambica Construction ... (2016)3 PLRSC 493 

U 

Union Of India Versus Shri Hanuman Industries . ... (2016)3 PLRSC 573 

Upendra Pradhan Versus State Of Orissa ... (2016)3 PLRSC 562 

Usmangani Adambhai Vahora Versus State Of Gujarat . ... (2016)3 PLRSC 984 

999 


V 

Vijay Mallya V. Enforcement Directorate, Min. Of Finance. ... (2016)3 PLRSC 898 

Vijay Prakash Jarath Versus Tej Prakash Jarath ... (2016)3 PLRSC 527 

Vipinchandra Vadilal Bavishi (D) By Lrs. Versus State Of Gujarat ... (2016)3 


Vishal N. Kalsaria versus Bank Of India. ... (2016)3 PLRSC 57 

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1000 


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THE 


SUPREME COURT 

e-Journal 


SUBJECT INDEX 

1001 


A 

Admissibility of documents - At interlocutory stage, during the pendency 

of the suit - Admissibility, reliability and registrability of the 

documents shall be considered independently only at the time of 

hearing of the trial and not prior thereto - High Court should not 

have interfered at the stage when the trial was still in progress - 

Set aside the impugned order passed by the High Court without 

going into the merits of the case. (2016)3 PLRSC 286


Admissions of fact - Advocate - Admissions of fact made by a counsel - Is 

binding upon their principals as long as they are unequivocal; 

where, however, doubt exists as to a purported admission, the 

Court should be wary to accept such admissions until and unless 

the counsel or the advocate is authorised by his principal to make 

such admissions. (2016)3 PLRSC 654 

Adverse possession - As on the date of the suit, the respondents had not 

completed 12 years in possession of the suit property so as to 

entitle them to claim adverse possession against BDA, the true 

owner - The argument that possession of the land was never 

taken also needs notice only to be rejected for it is settled that 

one of the modes of taking possession is by drawing a Panchnama 

which part has been done to perfection according to the evidence 

led by the defendant BDA. Tamil Nadu Housing Board v. A. 

1002 


Viswam (dead) by Lrs. AIR 1996 SC 3377 and Larsen & Toubro Ltd. 

v. State of Gujarat and Ors. AIR 1998 SC 1608, relied. (2016)3 


Advocate - Admissions of fact made by a counsel - Is binding upon their 

principals as long as they are unequivocal; where, however, doubt 

exists as to a purported admission, the Court should be wary to 

accept such admissions until and unless the counsel or the 

advocate is authorised by his principal to make such admissions - 

Admissions of fact. (2016)3 PLRSC 654 

Advocate - An advocate under the Code expressly includes a group of 

advocates and a law firm whose partner or associate acts for the 

client - Bar Council of India Rules, 1975. (2016)3 PLRSC 654 

Advocate – Concession - Made by counsel - Court ought not to have 

issued the impugned directions merely because a request was 

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made by the learned counsel appearing for the respondents - The 

same would hold true even if a concession was made by the 

counsel for the appellant - The Court, while, exercising its powers 

under Article 227 of the Constitution of India, ought to have 

confined itself to the subject matter and the issues raised by 

parties in the Writ Petition - The digression of or expansion of the 

supervisory jurisdiction under Article 227 of the Constitution of 

India, would open precarious floodgates of litigation should the 

limitation on the supervisory jurisdiction not be observed 

mindfully - If for any reason, the Writ Court perceived the oral 

request made by the respondents to have justified the ends of 

justice and desired to accept the concession so made by the 

counsel for appellant-Society, the said request not being the 

subject matter of the Writ Petition required the Court to query 

whether the counsel for the appellant-Society has been 


whether any such resolution has been passed by the appellant- 

Society giving concession in matters of this nature - Since the 

required caution was not exercised by the learned Judges of the 

Writ Court, the directions issued by the Writ Court suffer from 

infirmity and hence require to be set aside – Duty of court. 


1003 


Advocate – Duty of - It is the solemn duty of an advocate not to 

transgress the authority conferred him by the client - It is always 

better to seek appropriate instructions from the client or his 

authorized agent before making any concession which may, 

directly or remotely, affect the rightful legal right of the client - 

The advocate represents the client before the Court and conducts


proceedings on behalf of the client. He is the only link between 

the Court and the client - Therefore his responsibility is onerous - 

He is expected to follow the instructions of his client rather than 

substitute his judgment - Bar Council of India Rules, 1975. (2016)3 


Advocate and client - A client is not bound by a statement or admission 

which he or his lawyer was not authorised to make - Lawyer 

generally has no implied or apparent authority to make an 

admission or statement which would directly surrender or 

conclude the substantial legal rights of the client unless such an 

admission or statement is clearly a proper step in accomplishing 

the purpose for which the lawyer was employed - Neither the 

client nor the Court is bound by the lawyer’s statements or 

1004 


admissions as to matters of law or legal conclusions - Thus, 

according to generally accepted notions of professional 

responsibility, lawyers should follow the client’s instructions 

rather than substitute their judgment for that of the client - We 

may add that in some cases, lawyers can make decisions without 

consulting client - While in others, the decision is reserved for the 

client - It is often said that the lawyer can make decisions as to 

tactics without consulting the client, while the client has a right to 

make decisions that can affect his rights. (2016)3 PLRSC 654 

Advocate’s duty to the Client – Code of ethics - Rule 26 thereunder 

mandates that an “advocate shall not make any compromise or 

concession without the proper and specific instructions of his/her 

client” - ‘Code of Ethics’ – Advocate. (2016)3 PLRSC 654 

Advocates Act - ‘Code of Ethics’ - Prescribed by the Bar Council of India, 

in recognition of the evolution in professional and ethical 

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standards within the legal community, provides for certain rules 

which contain canons of conduct and etiquette which ought to 

serve as general guide to the practice and profession. (2016)3 


Affidavit - False affidavit – Costs - Unconditional and unqualified 

apology - After the Report was filed in the High Court, S also 

realized that it had in fact misled this Court - Nevertheless, S tried 

to justify the false or misleading affidavit filed in this Court - After 

giving the justification, S tendered an unconditional and 

unqualified apology through SP, proprietor of S - There was no 

need for the proprietor to have tendered an unconditional and 

unqualified apology unless there was an admission that the 

statement made before this Court was false or misleading - It 

would have been a different matter if Sciemed had tendered an 

unconditional and unqualified apology without tendering a 

justification – Costs upheld. (2016)3 PLRSC 28 

Affidavit – False Affidavit - A global search of cases pertaining to the 

filing of a false affidavit indicates that the number of such cases 

that are reported has shown an alarming increase in the last 

fifteen years as compared to the number of such cases prior to 

that - This is illustrative of the malaise that is slowly but surely 

creeping in - This 'trend' is certainly an unhealthy one that should 

be strongly discouraged, well before the filing of false affidavits 

gets to be treated as a routine and normal affair - High Court was 

correct in imposing costs of Rs. 10 lakhs on the petitioner for filing 

a false or misleading affidavit - In our opinion, the imposition of 

costs, although somewhat steep, was fully justified given that the 

High Court also held that the contract in favour of the petitioner 

1005 


1006 



was awarded improperly and was of a commercial nature. (2016)3 


Age proof - School Leaving Certificate - Age proof submitted was not of 

the Secondary School as per the norms, but of a Higher Secondary 

School - In case, the copy of the Secondary School Leaving 

Certificate meets the requirement of the Eligibility Criteria, we fail 

to understand as to how does it make a difference in case the 

School Leaving Certificate is of the Higher Secondary School - 

Secondary School Leaving Certificate is issued by the Board 

whereas the School Leaving Certificate of the Higher Secondary 

School is issued by the School - School Leaving Certificate, is 

issued by the School since the pupil leaves the school - In case, a 

copy of the Secondary School Leaving Certificate can be accepted 

as proof of age, it does not even strike to common sense as to 

why the copy of the Higher Secondary School Leaving Certificate, 

duly attested, cannot be accepted as proof of age. (2016)3 PLRSC 

381 

Alibi - The word alibi means "elsewhere" - Plea of alibi is not one of the 

General Exceptions contained in Chapter IV of IPC - It is a rule of 

evidence recognized under Section 11 of the Evidence Act - 

However, plea of alibi taken by the defence is required to be 

proved only after prosecution has proved its case against the 

accused – Indian Penal Code, Chapter IV - Evidence Act, Section 


Appeal - Intra-court appeal - In an intra-court appeal, on a finding of 

fact, unless the appellate Bench reaches a conclusion that the 

finding of the Single Bench is perverse, it shall not disturb the 

same - Merely because another view or a better view is possible, 

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there should be no interference with or disturbance of the order 

passed by the Single Judge, unless both sides agree for a fairer 

approach on relief - Once the learned Single Judge having seen 

the records and come to the conclusion that the industry was not 

functioning after January, 1995, there is no justification in 

entering a different finding without any further material before 

the Division Bench. (2016)3 PLRSC 38 

Appeal - Second Appeal - A substantial question of law is not required to 

be framed if the High Court decides to dismiss the second appeal 

at an admission stage - Only in a case where the second appeal is 

admitted or is decided finally by allowing the same, a substantial 

question of law is required to be framed by the High Court. 


Appeal and review – Death sentence - Supreme Court pronounced 

judgment on 15.05.2015 dismissing appeal under Article 136 

confirming the death penalty and within six days of the dismissal 

of the criminal appeals, learned Sessions Judge issued the death 

warrants on 21.05.2015 - This is clearly impermissible and 

unwarranted for various reasons - First and foremost reason is 

that the convicts have not exhausted their judicial and 

administrative remedies, which are still open to them even if 

their appeals in the highest Court have failed affirming the 

imposition of death penalty - Those appeals were filed via the 

route of Article 136 of the Constitution - However, law gives such 

persons another chance, namely, to seek review of the orders so 

passed, by means of filing of review petition - It is to provided 

under Article 137 of the Constitution - The limitation of 30 days is 

prescribed for filing such review petitions - We have to emphasize 

1007 



at this stage that in case of convicts facing death penalty, the 

remedy of review has been given high procedural sanctity - 

Review petition in a case of death sentence shall be heard in the 

open court by giving an opportunity to the review petitioner to 

make oral submissions, unlike other review petitions which are 

decided by the Court by circulation in Chambers - Not only this, 

such a review petition is to be heard by a Bench consisting of 

minimum three Judges - Constitution of India, Article 136, 137. 


Arbitration Act, 1940 - Power of the Arbitrator to award pendente lite 

interest when contract contains bar for grant of interest in a case 

covered by the Arbitration Act, 1940 - In our opinion, it would 

depend upon the nature of the ouster clause in each case - In 

case there is express stipulation which debars pendente lite 

1008 


interest, obviously, it cannot be granted by Arbitrator - The award 

of pendente lite interest inter alia must depend upon the overall 

intention of the agreement and what is expressly excluded - Thus, 

our answer to the reference is that if contract expressly bars 

award of interest pendente lite, the same cannot be awarded by 

the Arbitrator - Also make it clear that the bar to award interest 

on delayed payment by itself will not be readily inferred as 

express bar to award interest pendente lite by the Arbitral 

Tribunal, as ouster of power of Arbitrator has to be considered on 

various relevant aspects referred to in the decisions of this Court. 

Held, The decision in Madnani Construction Corporation (2010) 1 

SCC 549, has followed decision in Engineers-De-Space-Age, (1996) 

1 SCC 516. Same is also required to be diluted to the extent that 

express stipulation under contract may debar the Arbitrator from 

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awarding interest pendente lite. Grant of pendente lite interest 

may depend upon several factors such as phraseology used in the 

agreement, clauses conferring power relating to arbitration, 

nature of claim and dispute referred to Arbitrator and on what 

items power to award interest has been taken away and for which 

period. (2016)3 PLRSC 493 

Arbitration Act, 1996 - Limitation Act, 1963, Article 137 – Cause of action 

arises when the real dispute arises i.e. when one party asserts and 

the other party denies any right - Cause of action in the present 

case is the claim of the claimant to the determination of base year 

for the purposes of escalation and the calculation made thereon, 

and the refusal of the appellant to pay as per the calculations. 


Arbitration and Conciliation Act, 1996 - Section 11(5) - Only if the 

parties fail to agree to appoint an arbitrator within 30 days from 

the receipt of a request made by one party to the other, then and 

only then, Section 11 of the Act can be invoked seeking a direction 

at the hands of the High Court, to appoint an Arbitrator - Section 

2(1)(a) of the Act, leaves no room for any doubt, that the term 

“party” expressed in Section 11(5) of the Act is referable to a 

party to an arbitration agreement - No such request had been 

made by respondent for the appointment of an arbitrator, to the 

appellants, for the settlement of their contractual dispute – No 

document was brought to notice indicating that respondent had 

ever approached the appellants requiring the appellants to agree 

to the appointment of an arbitrator, for the settlement of their 

monetary disputes, emerging out of their contractual relationship 

- Respondent approached the Indian Newspaper Society for 

1009 


1010 



settling the dispute - Chairman of the INS advised the parties to 

have their dispute amicably settled through arbitration - Since 

parties could not agree to settle their dispute by way of 

arbitration, the respondent approached the High Court under 

Section 11 for appointment fo arbitrator - High Court appointed a 

sole arbitrator - Set aside. (2016)3 PLRSC 450 

Arbitration and Conciliation Act, 1996 (26 of 1996) - Section 34, 42 - 

Jurisdiction of a Court to entertain application under Section 34 of 

the Arbitration and Conciliation Act, 1996 - Respondent resides at 

Latur, delivery of cotton bales was taken at Latur and the place of 

business of respondent was at Latur - Cotton bales were 

dispatched by the appellant from Raichur supported by all 

bills/invoices specifically mentioning that “subject to Raichur 

jurisdiction” - The dispute arose and the matter was referred to 

Industrial Facilitation Council, Bangalore – Parties participated in 

the arbitration proceedings in Bangalore without raising objection 

with regard to the jurisdiction of the Karnataka High Court 

referring the matter to arbitration or the jurisdiction of Industrial 

Facilitation Council to decide the dispute - Arbitration proceeding 

was concluded within the jurisdiction of Raichur Court - The only 

forum available to respondent was to make an application under 

Section 34 of the Act before the Civil Court of original jurisdiction 

at Raichur - Award challenged by filing an application under 

Section 34 of 1996 Act before the District Court at Latur, 

Maharashtra – Dismissed - Exercise of jurisdiction by such court 

shall be against the provision of Section 42 of the Act. Held, 

Indisputably, the Arbitration proceeding has been conducted 

within the jurisdiction of Raichur court, which has jurisdiction as 

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per Section 20 of the Code of Civil Procedure and is subordinate 

to the High Court of Karnataka which entertained Section 11 

Application. Hence, the Award cannot be challenged before a 

Court subordinate to the High Court of Bombay. Exercise of 

jurisdiction by such court shall be against the provision of Section 

42 of the Act. (2016)3 PLRSC 603 

Arithmetical mistake and Clerical mistake - An arithmetical mistake is a 

mistake in calculation, while a clerical mistake is a mistake of 

writing or typing error occurring due to accidental slip or 

omissions or error due to careless mistake or omission - 

Substituting different lands in place of the lands which have been 

notified by a statutory Notification under Section 10(1), 10(3) and 

10(5) of the Urban Land (Ceiling and Regulation) Act, 1976 cannot 

and shall not be done by issuing a corrigendum unless the 

mandatory requirements contained in the aforementioned 

sections is complied with - A land holder cannot be divested from 

his land on the plea of clerical or arithmetical mistake liable to be 

corrected by issuing corrigendum - Urban Land (Ceiling and 

Regulation) Act, 1976, Section 10. (2016)3 PLRSC 265 

Auction purchaser – Sale not set aside – Held that since the auction 

purchaser has already paid the full amount of sale consideration 

and is in possession of the property in question for more than 

about 8 years - For equity and good conscience, do not intend to 

interfere with his possession. Held, that we cannot brush aside 

the fact that respondent Nos.4, 6 & 7 filed a claim petition before 

the Recovery Officer on 4th January, 2007 claiming their share of 

balance of sale proceedings after adjustment of the dues of the 

Central Bank which shows that the parties to the dispute have 

1011 


1012 



accepted the award passed by the Lok Adalat. It appears to us 

that the High Court did not consider the said facts and further it 

has escaped from the mind of the High Court that the auction 

purchaser has purchased the auctioned property for sale 

consideration of Rs.3.27 crores and 25% of the sale consideration 

was duly paid on 5th October, 2006 and furthermore on 19th 

October, 2006, the balance amount of sale consideration was duly 

paid by the auction purchaser. We have further noted that the 

sale was confirmed on 15th November, 2006. The sale certificate 

was also issued in favour of the auction purchaser after paying the 

requisite stamp duty and registration fees which, as pointed out 

to us on behalf of the auction purchaser, to the tune of 

Rs.30,73,800/-. It is also not in dispute that auction purchaser was 

put in possession of the property and is still in possession of the 

property since the sale certificate was issued and registration was 

made in his favour. It is submitted on behalf of the auction 

purchaser that he has purchased the property by availing private 

borrowing for the said property and he is paying nearly Rs.5 lakhs 

per month as interest. Therefore, in our opinion, the equity and 

good conscience also has to play a role in the matter in question 

on the given facts and after considering the conduct of the 

respondents in the matter. In these circumstances, we feel that it 

would not be proper for us at this stage to set aside the sale, as 

has been done by the High Court without taking into 

consideration all these facts. (2016)3 PLRSC 542 

B 

Bank guarantee - The bank guarantee format does not provide for a 

trigger point for its encashment - Furnishing the bank guarantee 

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without stipulating the situations in which the guarantee shall 

become encashable, will be meaningless. (2016)3 PLRSC 752 

Banking - Guarantor - Liability of - The legislature has succinctly stated 

that the liability of the guarantor is co-extensive with that of the 

principal debtor unless it is otherwise provided by the contract - 

The only exception to the nature of the liability of the guarantor is 

provided in the Section itself, which is only if it stated explicitly to 

be otherwise in the Contract - It is the prerogative of the Creditor 

alone whether he would move against the principal debtor first or 

the surety, to realize the loan amount - The guarantor cannot 

escape from her liability as a guarantor for the debt taken by the 

principal debtor - Loan agreement,- There is no clause which 

shows that the liability of the guarantor is not co-extensive with 

the principal debtor - Indian Contract Act, 1872, Section 128. 


Banking - One Time Settlement (OTS) Scheme - As per the OTS proposal 

restriction put on sale of the mortgaged property for a period of 

three years, and in case, the properties are sold within the said 

lock in period of three years, the same should be done with the 

permission of the bank and that the first respondent should share 

50% of the increase in fair market value of the property, fixed at 

the time of sanction of the settlement – First respondent 

managed to enter into an agreement with the second respondent 

for sale of half of the mortgaged property and pursuant to that 

agreement, the whole amount of OTS , as per the offer made by 

the bank, was paid in terms of the OTS - Bank declined to settle 

the accounts and release the mortgage on the ground that the 

third party interest having been created, the bank was entitled to 

1013 



50% of the fair market value - Possession of the mortgaged 

property has not been delivered to the first respondent and the 

three year lock in period has expired - The creation of third party 

interest or arrangement by way of agreement for sale within the 

three year period is different from sale - Admittedly, sale has not 

been made within the period of three years of settlement – Bank 

cannot rest any claim under law for the share of the increase in 

fair market value by way of recompense - There is nothing to be 

recompensed since the bank has not suffered or lost anything – 

Bank to release the property. (2016)3 PLRSC 879 

Bar Council of India Rules, 1975 - Advocate – Duty of - It is the solemn 

duty of an advocate not to transgress the authority conferred him 

by the client - It is always better to seek appropriate instructions 

from the client or his authorized agent before making any 

1014 


concession which may, directly or remotely, affect the rightful 

legal right of the client - The advocate represents the client before 

the Court and conducts proceedings on behalf of the client. He is 

the only link between the Court and the client - Therefore his 

responsibility is onerous - He is expected to follow the instructions 

of his client rather than substitute his judgment. (2016)3 PLRSC 

654 

Bar Council of India Rules, 1975 - Advocate - An advocate under the Code 

expressly includes a group of advocates and a law firm whose 

partner or associate acts for the client. (2016)3 PLRSC 654 

Bonds - Nurses - Execution of bonds by private hospitals and nursing 

homes - Indian Nursing Council has submitted that the said 

system has now been abolished. (2016)3 PLRSC 223 

C 

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Cause of action - Accrual of cause of action is a sine qua non for a suit to 

be filed. Cause of action is a bundle of facts which is required to 

be proved to grant relief to the plaintiff - Cause of action not only 

refers to the infringement but also the material facts on which 

right is founded. (2016)3 PLRSC 915 

Central Excise Act, 1944 - Section 11A(1) – Depressing of sale price - 

Show cause notice, that assessee had short paid the duty on its 

products, that is, printed glass bottles, by under-valuing the same 

at the time of clearance from its factory inasmuch as it did not 

add “additional consideration” received from C and P wherein 

assessee had received 90% advance from C and 100% advance 

from P for the goods and it was giving 3-4% discount to the said 

Companies - Ssale price agreed between two competing parties 

may get depressed, when substantial and huge advances are 

periodically extended and given with the objective and purpose 

that the sale price paid or charged would be lowered, to set off 

the consideration paid by grant of advances - There should be a 

connect and link between the two i.e. the money advanced it 

should be established was a consideration paid which could form 

the basis for depression of sale price - Evidence and material to 

establish the said factual matrix has to be uncovered and brought 

on record to connect and link the sale price paid on paper and the 

“other” consideration, not gratis, but by way of interest free 

advances – Matter remanded to decide what is the effect of the 

sales made to the two companies in percentile terms, whether 

this had the effect of depressing the sale price - Onus on the 

revenue. (2016)3 PLRSC 101 

1015 


Character/enlistment certificate – Petitioner applied for

1016 



Character/enlistment certificate in her favour, which it appears is 

one of the requirements prescribed for registration as a 

contractor - District Magistrate declined to issue the character 

certificate to the appellant on the solitary ground that her 

husband was involved in four criminal cases during the past- 

District Magistrate again rejected the prayer for the issuance of a 

character certificate on the ground that the appellant did not 

have any knowledge of contract works which works were being 

got executed by her through her son and other persons – There is 

no dispute that the appellant is not involved in any criminal case 

or activity of any objectionable kind - District Magistrate should 

have simply certified her character because that was the only 

question which the former was called upon to examine while 

dealing with the request made by the appellant - The District 

Magistrate, however, appears to have been swayed by 

considerations wholly extraneous to the question whether the 

appellant had a good moral character – Second time, the 

certificate was denied on the ground that she had no experience 

in getting the contract works executed - We have not been able 

to appreciate as to how the District Magistrate could have 

brought in the question of the appellant’s capability as a 

contractor or her experience in executing works to bear upon her 

good moral character - Even when the appellant may have had no 

experience in getting government works executed she could still 

claim that she bore a good moral character. (2016)3 PLRSC 715 

Civil Procedure Code, 1908 (V of 1908) - Section 20 - Copyright Act, 

Section 62 - Trade Marks Act, section 134 - In a case where cause 

of action has arisen at a place where the plaintiff is residing or 

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where there are more than one such persons, any of them 

actually or voluntarily resides or carries on business or personally 

works for gain would oust the jurisdiction of other place where 

the cause of action has not arisen though at such a place, by 

virtue of having subordinate office, the plaintiff instituting a suit 

or other proceedings might be carrying on business or personally 

works for gain – Head office of complainant at Mumbai, Offence 

at Mumbai, New Delhi where subordinate office is situated shall 

not have jurisdiction. (2016)3 PLRSC 915 

Civil Procedure Code, 1908 (V of 1908) - Section 100 - High Court has not 

yet admitted the matter - No substantial question of law has been 

formulated as it could not have been when the appeal has not 

been admitted - We say so, as appeal under Section 100 CPC is 

required to be admitted only on substantial question/questions of 

law - It cannot be formal admission like an appeal under Section 

96 CPC - That is the fundamental imperative - It is peremptory in 

character, and that makes the principle absolutely cardinal - Civil 

Procedure Code, 1908 (V of 1908) Section 96. (2016)3 PLRSC 853 

1017 


Civil Procedure Code, 1908 (V of 1908) - Section 100, Order XLI Rule 5(3) 

- Whether the High Court without admitting the second appeal 

could have entertained IA filed seeking interim relief - Solely 

because the Court has the jurisdiction to pass an ex parte order, 

under Order XLI Rule 5(3), it does not empower it not to 

formulate the substantial question of law for the purpose of 

admission, defer the date of admission and pass an order of stay 

or grant an interim relief. Held, Submission of the learned senior 

counsel for the appellant is that Order XLI Rule 5 confers 

jurisdiction on the High Court while dealing with an appeal under

1018 



Section 100 CPC to pass an ex parte order and such an order can 

be passed deferring formulation of question of law in grave 

situations. Be it stated, for passing an ex parte order the Court has 

to keep in mind the postulates provided under sub-rule (3) of Rule 

5 of Order XLI. It has to be made clear that the Court for the 

purpose of passing an ex parte order is obligated to keep in view 

the language employed under Section 100 CPC. It is because 

formulation of substantial question of law enables the High Court 

to entertain an appeal and thereafter proceed to pass an order 

and at that juncture, needless to say, the Court has the 

jurisdiction to pass an interim order subject to the language 

employed in Order XLI Rule 5(3). It is clear as day that the High 

Court cannot admit a second appeal without examining whether it 

raises any substantial question of law for admission and 

thereafter, it is obliged to formulate the substantial question of 

law. Solely because the Court has the jurisdiction to pass an ex 

parte order, it does not empower it not to formulate the 

substantial question of law for the purpose of admission, defer 

the date of admission and pass an order of stay or grant an 

interim relief. That is not the scheme of CPC after its amendment 

in 1976 and that is not the tenor of precedents of this Court. 


Civil Procedure Code, 1908 (V of 1908) - Section 148 - Whether or not 

the court has the discretion to enlarge the time for doing any act 

prescribed by the Code or allowed by the Code under section 148 

- High Court imposed the cost of Rs.25,000/- upon the appellant 

as a condition precedent for restoration of the execution petition 

- Not deposited in time as per the order of the High Court - High 

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Court did not allow extention of time - In terms of Section 148 

C.P.C. court has the discretion to extend the time - The words 

“not exceeding thirty days in total” have been inserted by the 

C.P.C. (Amendment) Act, 1999 - If the act could not be performed 

within thirty days for the reasons beyond the control of the 

parties, the time beyond maximum thirty days can be extended 

under Section 151 C.P.C. - What was important was whether the 

appellant has made out a case for extension based on which time 

can be extended. (2016)3 PLRSC 373 

Civil Procedure Code, 1908 (V of 1908) - Order 7 Rule 6A - Counterclaim 

filed almost two and a half years after the framing of the 

issues - Sub-clause (1) of Section 6A of Order VIII, provides that 

the cause of action in respect of which a counter claim can be 

filed, should accrue before the defendant has delivered his 

defence, namely, before the defendant has filed a written 

statement – Plaintiff's evidence was still being recorded by the 

trial court, when the counter-claim was filed - It has also not been 

shown, that any prejudice would be caused to the respondentplaintiff 

before the trial court, if the counter-claim was to be 

adjudicated upon, along with the main suit - No serious injustice 

or irreparable loss, would be suffered by the plaintiff. (2016)3 


1019 


Civil Procedure Code, 1908 (V of 1908) - Order 9 Rule 13 - While 

exercising the discretion for setting aside the ex-parte decrees or 

condoning the delay in filing the application to set aside the exparte 

decrees, the court is competent to direct the defendants to 

pay a portion of the decreetal amount or the cost - While the trial 

court has exercised the discretion to condone the delay in filing


the applications to set aside the ex-parte decrees, in our view, the 

trial court should not have imposed such an unreasonable and 

onerous condition of depositing the entire suit claim in the suits 

when the issues are yet to be decided on merits - While 

considering the revision, the High Court should have kept in view 

that the parties are yet to go for trial and the appellants ought to 

have been afforded the opportunity to contest the suits on 

merits. (2016)3 PLRSC 647 

Civil Procedure Code, 1908 (V of 1908) - Order 18 Rule 17– Application 

moved that after consolidation of suits, the plaintiff in one suit 

should get an opportunity to cross examine the PW already 

examined in the other suit in which the evidence was recorded 

prior to consolidation and was ordered be read as the main 

evidence – Contention Upheld. (2016)3 PLRSC 407 

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Code of Criminal Procedure, 1973 - Transfer of case - The high court has 

taken an exception to the remarks given by the learned trial judge 

and also opined about non- examination of any witness by him - 

Sessions Judge, while hearing the application for transfer of the 

case, called for remarks of the trial judge, and in such a situation, 

he is required to give a reply and that he has done - He is not 

expected to accept the allegations made as regards his conduct 

and more so while nothing has been brought on record to 

substantiate the same - High Court could not have deduced that 

he should have declined to conduct the trial - This kind of 

observation is absolute impermissible in law, for there is no 

acceptable reason on the part of the learned trial judge to show 

his disinclination – So far as the non-examination of the witnesses 

is concerned, as the factual score would uncurtain, the matter had 

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travelled to the High Court in revision assailing the order passed 

under Section 319 CrPC. Be that as it may, the High Court has not 

adverted to the issue who was seeking adjournment and what 

was the role of the learned trial judge - Grant of adjournment 

could have been dealt with by the High Court in a different 

manner - It has to be borne in mind that a judge who discharges 

his duty is bound to commit errors- The same have to be rectified 

- The accused has never moved the superior court seeking its 

intervention for speedy trial - The High Court has innovated a new 

kind of approach to transfer the case. (2016)3 PLRSC 984 

Code of Criminal Procedure, 1973 - Section 216 - Court can change or 

alter the charge if there is defect or something is left out - The 

principle that has to be kept in mind is that the charge so framed 

by the Magistrate is in accord with the materials produced before 

him or if subsequent evidence comes on record - It is not to be 

understood that unless evidence has been let in, charges already 

framed cannot be altered, for that is not the purport of Section 

216 CrPC. (2016)3 PLRSC 455 

Code of Criminal Procedure, 1973 - Section 216 - Court can change or 

alter the charge - It is obligatory on the part of the court to see 

that no prejudice is caused to the accused and he is allowed to 

have a fair trial - There are in-built safeguards in Section 216 CrPC 

- It is the duty of the trial court to bear in mind that no prejudice 

is caused to the accused as that has the potentiality to affect a fair 

trial. (2016)3 PLRSC 455 

Code of Criminal Procedure, 1973 - Section 216 - It is graphic that the 

court can change or alter the charge if there is defect or 

something is left out - The test is, it must be founded on the 

1021 


1022 



material available on record - It can be on the basis of the 

complaint or the FIR or accompanying documents or the material 

brought on record during the course of trial - It can also be done 

at any time before pronouncement of judgment - It is not 

necessary to advert to each and every circumstance - If the court 

has not framed a charge despite the material on record, it has the 

jurisdiction to add a charge - Similarly, it has the authority to alter 

the charge - An application was filed by the informant to add a 

charge under Section 406 IPC as there were allegations against 

the husband about the criminal breach of trust as far as her 

stridhan is concerned - It was, in a way, bringing to the notice of 

the learned Magistrate about the defect in framing of the charge - 

The court could have done it suo motu. (2016)3 PLRSC 455 

Code of Criminal Procedure, 1973 - Section 319 – Accused not named in 

FIR - It is well accepted in criminal jurisprudence that F.I.R. may 

not contain all the details of the occurrence or even the names of 

all the accused - It is not expected to be an encyclopedia even of 

facts already known - There are varieties of crimes and by their 

very nature, details of some crimes can be unfolded only by a 

detailed and expert investigation - This is more true in crimes 

involving conspiracy, economic offences or cases not founded on 

eye witness accounts - Case fixed for evidence and prosecution 

had already examined five witnesses - On the basis of evidence of 

prosecution witnesses recorded in the course of trial, it was urged 

involvement of MS and H had emerged and such materials were 

also available in the statement of concerned witnesses recorded 

under Section 161 of Criminal Procedure Code - The fact that 

Police chose not to send up a suspect to face trial does not affect 

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power of the trial court under Section 319 of the Cr.P.C. to 

summon such a person on account of evidence recorded during 

trial. (2016)3 PLRSC 849 

Code of Criminal Procedure, 1973 - Section 408 (1) - Transfer of case - 

Solely because an accused has filed an application for transfer, 

trial judge is not required to express his disinclination - He is 

required under law to do his duty - He has to perform his duty 

and not to succumb to the pressure put by the accused by making 

callous allegations - He is not expected to show unnecessary 

sensitivity to such allegations and recuse himself from the case - If 

this can be the foundation to transfer a case, it will bring anarchy 

in the adjudicatory process - The unscrupulous litigants will 

indulge themselves in court haunting - If they are allowed such 

room, they do not have to face the trial before a court in which 

they do not feel comfortable. (2016)3 PLRSC 984 

Code of Criminal Procedure, 1973 - Section 408 (1) - Exercise of power by 

the Sessions Judge to transfer a case from one Additional Sessions 

Judge to any other Additional Sessions Judge in his Sessions 

Division after commencement of the trial - Transfer petition 

preferred under Section 408 CrPC before the learned Principal 

Sessions Judge is maintainable - The view expressed by the High 

Court on this score appears to be correct and hence, affirm the 

same. (2016)3 PLRSC 984 

Code of Criminal Procedure, 1973 - Section 408 (1) - Transfer of case - 

Seeking transfer at the drop of a hat is inconceivable - An order of 

transfer is not to be passed as a matter of routine or merely 

because an interested party has expressed some apprehension 

about proper conduct of the trial - The power has to be exercised 

1023 



cautiously and in exceptional situations, where it becomes 

necessary to do so to provide credibility to the trial - There has to 

be a real apprehension that there would be miscarriage of justice. 


Code of Ethics - Prescribed by the Bar Council of India, in recognition of 

the evolution in professional and ethical standards within the 

legal community, provides for certain rules which contain canons 

of conduct and etiquette which ought to serve as general guide to 

the practice and profession- Advocates Act. (2016)3 PLRSC 654 

Compassionate employment - Respondent was not given appointment 

on compassionate ground as per the policy because, as per the 

policy, more deserving candidates were available for giving 

appointment on the compassionate ground - Though the case of 

the respondent was considered, she could not be appointed as 

1024 


there were claimants who were more needy than the respondent 

– Central Administrative Tribunal was not right in giving the 

direction to consider the case of the respondent again and again, 

especially when the case of the respondent had been duly 

considered and had been rejected, in view of the fact that more 

deserving claimants were available at the relevant time - 

Respondent has no right to be appointed on compassionate 

ground on the death of her husband if there is somebody more 

needy than the respondent. (2016)3 PLRSC 197 

Complaint - During pendency of the complaint, the Act (FERA) was 

repealed - The fact that the adjudicating officer chose to drop 

the proceedings against the appellant herein does not absolve the 

appellant of the criminal liability incurred by him by virtue of the 

operation of Section 40 read with Section 56 of the Act - The 

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offence under Section 56 read with Section 40 of the A renewal of 

ct is an independent offence - FERA. Held, If the factual allegations 

contained in the charge are to be proved eventually at the trial of 

the criminal case, the appellant is still liable for the punishment 

notwithstanding the fact that the presence of the appellant was 

required by the adjudicating officer in connection with an enquiry 

into certain alleged violations of the various provisions of the Act, 

but at a subsequent stage the adjudicating officer opined that 

there was either insufficient or no material to proceed against the 

appellant for the alleged violations of the Act, is immaterial. 


Complaint - Quashed on the ground that FERA Act repealed - Appeal 

pending – Appeal against the conclusion of the adjudicating 

officer that the proceedings against the appellant herein for the 

alleged violation of the various provisions of the FERA Act are 

required to be dropped has not even attained finality - 

Admittedly, such an order of the adjudicating officer confirmed by 

the statutory appellate authority is pending consideration in an 

appeal before the High Court - Though, in our opinion, the result 

of such an appeal is immaterial for determining the culpability of 

the appellant for the alleged violation of Section 40 read with 

Section 56 (of the FERA Act) , we must record that the submission 

made on behalf of the appellant in this regard itself is inherently 

untenable. (2016)3 PLRSC 898 

1025 


Confession – When a person is in police custody, the confession made by 

him even to a third person, that is other than a police officer, shall 

also become inadmissible - This provision applies even to those 

confessions which are made to a police officer who may not


otherwise be acting as such - If he is a police officer and 

confession was made in his presence, in whatever capacity, the 

same becomes inadmissible in evidence - Indian Evidence Act, 

1872, Section 25. Held, The philosophy behind the aforesaid 

provision is acceptance of a harsh reality that confessions are 

extorted by the police officers by practicing oppression and 

torture or even inducement and, therefore, they are unworthy of 

any credence. The provision absolutely excludes from evidence 

against the accused a confession made by him to a police officer. 

This provision applies even to those confessions which are made 

to a police officer who may not otherwise be acting as such. If he 

is a police officer and confession was made in his presence, in 

whatever capacity, the same becomes inadmissible in evidence. 


1026 


Constitution of India, Art. 14, 21, 32, 141, 142 - Guidelines and 

directions can be issued by the Supreme Court including a 

command for compliance of guidelines and standard operating 

procedure issued by Government of India, Ministry of Road 

Transport and Highways, till such time as the legislature steps in 

to substitute them by proper legislation - This Court can issue 

such directions under Article 32 read with Article 142 to 

implement and enforce the guidelines which are necessary for 

protection of rights under Article 21 read with Article 14 of the 

Constitution of India so as to provide immediate help to the 

victims of the accident and at the same time to provide protection 

to Good Samaritans. The guidelines will have the force of law 

under Article 141 - By virtue of Article 144, it is the duty of all 

authorities – judicial and civil – in the territory of India to act in 

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aid of this Court by implementing them - Constitution of India, 

Article 14, 21. (2016)3 PLRSC 823 

Constitution of India, Art. 20(2) - Sea Customs Act – Exoneration in 

related adjudication proceedings and the effect thereof on 

criminal proceedings - Plea that the finding of the Collector of 

Customs that the accused are not proved to be guilty operated as 

estoppel in the criminal case against the accused - Adjudicating 

proceedings were initiated pursuant to the show cause notice and 

Order was passed by the Additional Commissioner of Customs 

imposing penalty on the accused - Commissioner of Customs 

(Appeal) set aside the penalty - Petition under Section 482 of the 

Criminal Procedure Code filed seeking quashing - Exoneration of 

the respondent in the adjudication proceedings was the basis for 

petition under Section 482 Cr.P.C. – Accused was declared 

“proclaimed offender” - Accused was declared a proclaimed 

offender and had not participated in any of the proceedings 

personally - In the circumstances no weightage could be given to 

copies of the passport submitted in support of the assertion that 

he had not visited India - Statement of VS did allege the 

involvement of the respondent - In law, if such statement is 

otherwise admissible and reliable, conviction can lawfully rest on 

such material – Quashing order passed by High Court set aside. 


Constitution of India, Art. 21 - Right to life is enshrined under Article 21 

includes right to safety of persons while travelling on the road and 

the immediate medical assistance as a necessary corollary is 

required to be provided and also adequate legal protection and 

prevention from harassment to good Samaritans. (2016)3 PLRSC 

1027 



823 

Constitution of India, Art. 21 - 'human dignity' - Article 21 has its traces 

in the dignity of human being. It has been recognized as part of 

Article 21 -Once we recognize this aspect of dignity of human 

being, it does not end with the confirmation of death sentence, 

but goes beyond and remains valid till such a convict meets 

his/her destiny - Therefore, the process/procedure from 

confirmation of death sentence by the highest Court till the 

execution of the said sentence, the convict is to be treated with 

human dignity to the extent which is reasonable and permissible 

in law – Death Sentence. Held, This right to human dignity has 

many elements. First and foremost, human dignity is the dignity 

of each human being 'as a human being'. Another element, which 

needs to be highlighted, in the context of the present case, is that 

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human dignity is infringed if a person's life, physical or mental 

welfare is armed. It is in this sense torture, humiliation, forced 

labour, etc. all infringe on human dignity. It is in this context many 

rights of the accused derive from his dignity as a human being. 

These may include the presumption that every person is innocent 

until proven guilty; the right of the accused to a fair trial as well as 

speedy trial; right of legal aid, all part of human dignity. Even after 

conviction, when a person is spending prison life, allowing 

humane conditions in jail is part of human dignity. Prisons reforms 

or Jail reforms measures to make convicts a reformed person so 

that they are able to lead normal life and assimilate in the society, 

after serving the jail term, are motivated by human dignity 

jurisprudence. Further Held, In this country, however, since the 

death penalty has been held to be constitutionally valid (See 

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Bachan Singh v. State of Punjab 9 (1980) 2 SCC 684), we do not 

have to travel to that extent. At the same time, even if death 

sentence is to be awarded, it has to be in accord with due dignity. 

In fact, this element of human dignity is well recognized in 

choosing the mode of execution of death sentence with general 

consensus that method of execution of death sentence should be 

such which is certain, humane, quick and decent. (2016)3 PLRSC 

692 

Constitution of India, Art. 21 - Lays down that nobody shall be deprived 

of his life and liberty except according to the procedure 

established by law - It now stands settled that the procedure 

established by law has to be 'due procedure' - By judicial 

interpretation, this Court has read the principle of reasonableness 

into the said procedure contemplated by Article 21, holding that it 

must be 'right and just and fair' and not arbitrary, fanciful or 

oppressive - Even as per the statute book, this procedure does 

not culminate with the dismissal of appeals of the convicts by the 

final Court - No doubt, when an accused is tried of an offence by a 

competent court of law and is imposed such death penalty and 

the said death penalty is upheld by the highest Court, the 

procedure that is established by law has been followed up to this 

stage - However, in the statutory framework, further procedural 

safeguards in the form of judicial review as well as mercy petitions 

are yet to be traversed - This would also be covered by the 

expression 'procedure established by law' occurring in Article 21 - 

Therefore, till the time limitation period for filing the review 

petition and thereafter reasonable time for filing the mercy 

petition has not lapsed, issuing of death warrants would be 

1029 



violative of Article 21 - Death Sentence. (2016)3 PLRSC 692 

Constitution of India, Art. 21, 72, 136, 137, 161 Death Sentence - 

Supreme Court pronounced judgment on 15.05.2015 dismissing 

appeal under Article 136 confirming the death penalty and within 

six days of the dismissal of the criminal appeals, learned Sessions 

Judge issued the death warrants on 21.05.2015 - This is clearly 

impermissible and unwarranted for various reasons – (I) First and 

foremost reason is that the convicts have not exhausted their 

judicial and administrative remedies, which are still open to them 

even if their appeals in the highest Court have failed affirming the 

imposition of death penalty. Those appeals were filed via the 

route of Article 136 of the Constitution. However, law gives such 

persons another chance, namely, to seek review of the orders so 

passed, by means of filing of review petition. It is to provided 

1030 


under Article 137 of the Constitution. (II) That apart, right to file 

mercy petitions to the Governor of the State as well as to the 

President of India also remains intact. (III) Article 21 of the 

Constitution lays down that nobody shall be deprived of his life 

and liberty except according to the procedure established by law. 

After long judicial debate, it now stands settled that the 

procedure established by law has to be 'due procedure'. (IV) 

There is another facet of right to life enshrined in Article 21 of the 

Constitution which needs to be highlighted at this juncture, 

namely, 'human dignity'. Article 21 has its traces in the dignity of 

human being. It has been recognized as part of Article 21 of the 

Constitution. (2016)3 PLRSC 692 

Constitution of India, Art. 32, 226 - Having invoked a constitutional 

remedy before the High Court under Article 226 of the 

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Constitution of India, the petitioner cannot, under Law, file 

another petition under Article 32 of the Constitution of India on 

identical set of facts for identical reliefs -Writ petition is dismissed 

with costs of Rs.1,00,000/- . (2016)3 PLRSC 481 

Constitution of India, Art. 72, Article 161 - Right to file mercy petitions 

to the Governor of the State as well as to the President of India - 

These remedies are also of substance and not mere formalities - 

Power to pardon is a part of the constitutional scheme which has 

been reposed by the people through the Constitution in the Head 

of the State, and enjoys high status - In exercise of their powers, 

the President or the Governor, as the case may be, may examine 

the evidence afresh and this exercise of power is clearly 

independent of the judiciary - It is clarified that while exercising 

such a power, the Executive is not sitting as a Court of Appeal - 

Rather power to grant remission of sentence is an act of grace, 

humanity in appropriate cases, i.e. distinct, absolute and 

unfettered in nature - This is again a constitutional remedy 

provided to the convicts of death sentence and they have a right 

to avail this remedy which cannot be snatched by executing the 

death sentence before even giving such convicts a chance or 

opportunity to avail the same - For this purpose, State has to wait 

for reasonable period, even after such convicts fail in the review 

petition, if they so file. (2016)3 PLRSC 692 

1031 


Constitution of India, Art. 136, 137 – Appeal and review – Death 

sentence - Supreme Court pronounced judgment on 15.05.2015 

dismissing appeal under Article 136 confirming the death penalty 

and within six days of the dismissal of the criminal appeals, 

learned Sessions Judge issued the death warrants on 21.05.2015 -

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This is clearly impermissible and unwarranted for various reasons 

- First and foremost reason is that the convicts have not 

exhausted their judicial and administrative remedies, which are 

still open to them even if their appeals in the highest Court have 

failed affirming the imposition of death penalty - Those appeals 

were filed via the route of Article 136 of the Constitution - 

However, law gives such persons another chance, namely, to seek 

review of the orders so passed, by means of filing of review 

petition - It is to provided under Article 137 of the Constitution - 

The limitation of 30 days is prescribed for filing such review 

petitions - We have to emphasize at this stage that in case of 

convicts facing death penalty, the remedy of review has been 

given high procedural sanctity - Review petition in a case of death 

sentence shall be heard in the open court by giving an opportunity 

to the review petitioner to make oral submissions, unlike other 

review petitions which are decided by the Court by circulation in 

Chambers - Not only this, such a review petition is to be heard by 

a Bench consisting of minimum three Judges . (2016)3 PLRSC 692 

Constitution of India, Art. 226 and 227 - Writ of Certiorari under Article 

226 though directed against the orders of a inferior court would 

be distinct and separate from the challenge to an order of an 

inferior court under Article 227 of the Constitution - The 

supervisory jurisdiction comes into play in the latter case and it is 

only when the scope and ambit of the remedy sought for does not 

fall in purview of the scope of supervisory jurisdiction under 

Article 227, the jurisdiction of the Court under Article 226 could 

be invoked. Held, In the present case, what was challenged by the 

members of the Society was an order passed by the Registrar and 

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the Revisional Authority under the provisions of the Act and the 

Rules framed thereunder. The prayer was to set aside the orders 

passed by the authorities below. Even if the said petitions(s) were 

styled as a petition under Article 226, the content and the prayers 

thereunder being ones requiring exercise of supervisory 

jurisdiction only, could be treated as petitions filed under Article 

227 of the Constitution only. (2016)3 PLRSC 654 

Constitution of India, Art. 227 – Concession made by counsel - Court 

ought not to have issued the impugned directions merely because 

a request was made by the learned counsel appearing for the 

respondents - The same would hold true even if a concession was 

made by the counsel for the appellant - The Court, while, 

exercising its powers under Article 227 of the Constitution of 

India, ought to have confined itself to the subject matter and the 

issues raised by parties in the Writ Petition - The digression of or 

expansion of the supervisory jurisdiction under Article 227 of the 

Constitution of India, would open precarious floodgates of 

litigation should the limitation on the supervisory jurisdiction not 

be observed mindfully - If for any reason, the Writ Court 

perceived the oral request made by the respondents to have 

justified the ends of justice and desired to accept the concession 

so made by the counsel for appellant-Society, the said request not 

being the subject matter of the Writ Petition required the Court 

to query whether the counsel for the appellant-Society has been 





1033 




infirmity and hence require to be set aside – Advocate – 

Concession – Duty of court. (2016)3 PLRSC 654 

Constitution of India, Art. 246 (2) - Securitisation and Reconstruction of 

Financial Assets and Enforcement of Security Interest Act, 2002 S. 

35 – If we accept the legal submissions made on behalf of the 

Banks to hold that the provisions of SARFAESI Act override the 

provisions of the various Rent Control Acts to allow a Bank to evict 

a tenant from the tenanted premise, which has become a secured 

asset of the Bank after the default on loan by the landlord and 

dispense with the procedure laid down under the provisions of 

the various Rent Control Acts - Then the legislative powers of the 

state legislatures are denuded which would amount to subverting 

1034 


the law enacted by the State Legislature- It would not only 

tantamount to violation of rule of law, but would also render a 

valid Rent Control statute enacted by the State Legislature in 

exercise of its legislative power under Article 246 (2) of the 

Constitution of India useless and nugatory - Constitution of India 

envisages a federal feature, which has been held to be a basic 

feature of the Constitution. (2016)3 PLRSC 57 

Consumer Protection Act, 1986 - Second complaint to the District Forum 

is maintainable when the first complaint was dismissed for default 

or non-prosecution. (2016)3 PLRSC 200 

Contempt - We are conscious of the fact that three persons are under 

confinement for the last fifteen months - This court was virtually 

compelled to do so, going by the stubborn attitude of the 

contemnors in taking the orders for granted, as if those orders 

were only on papers and were not meant to be complied with - It 

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is only when the Court felt that unless some drastic action is taken 

there will be no desired effect, that this extreme step was taken - 

However, this step was taken in good faith to uphold the rule of 

law and to ensure that dignity of this Court is maintained and 

there is faithful compliance with its directions - Rule of law - 

Sahara Case. (2016)3 PLRSC 752 

Contractual rate of interest - The MRTP Commission has clearly erred in 

interfering with the contractual rate of interest in absence of any 

finding against the actions and orders of the appellant - Without 

returning a finding that there was any unfair trade practice or any 

restrictive/monopolistic trade practice pursuant to inquiry under 

the provisions of the Act, the Commission clearly erred in 

compensating the respondent with a higher rate of interest - 

Monopolies and Restrictive Trade Practices Act, 1969. (2016)3 


Contributory and Composite negligence - Difference between - In the 

case of contributory negligence, a person who has himself 

contributed to the extent cannot claim compensation for the 

injuries sustained by him in the accident to the extent of his own 

negligence; whereas in the case of composite negligence, a 

person who has suffered has not contributed to the accident but 

the outcome of combination of negligence of two or more other 

persons. (2016)3 PLRSC 609 

1035 


Copyright Act, Section 62 - Trade Marks Act, section 134 - It was also 

submitted that as the bulk of litigation of such a nature is filed at 

Delhi and lawyers available at Delhi are having expertise in the 

matter, as such it would be convenient to the parties to contest 

the suit at Delhi - Such aspects are irrelevant for deciding the


territorial jurisdiction - It is not the convenience of the lawyers or 

their expertise which makes out the territorial jurisdiction. 


Copyright Act, Section 62 - Trade Marks Act, section 134 - In a case 

where cause of action has arisen at a place where the plaintiff is 

residing or where there are more than one such persons, any of 

them actually or voluntarily resides or carries on business or 

personally works for gain would oust the jurisdiction of other 

place where the cause of action has not arisen though at such a 

place, by virtue of having subordinate office, the plaintiff 

instituting a suit or other proceedings might be carrying on 

business or personally works for gain – Head office of complainant 

at Mumbai, Offence at Mumbai, New Delhi where subordinate 

office is situated shall not have jurisdiction - CPC Section 20. Held, 

1036 


The intendment of the aforesaid provisions inserted in the 

Copyright Act and the Trade Marks Act is to provide a forum to 

the plaintiff where he is residing, carrying on business or 

personally works for gain. The object is to ensure that the plaintiff 

is not deterred from instituting infringement proceedings 

“because the court in which proceedings are to be instituted is at 

a considerable distance from the place of their ordinary 

residence”. The impediment created to the plaintiff by section 20 

C.P.C. of going to a place where it was not having ordinary 

residence or principal place of business was sought to be removed 

by virtue of the aforesaid provisions of the Copyright Act and the 

Trade Marks Act. Where the Corporation is having ordinary 

residence/principal place of business and cause of action has also 

arisen at that place, it has to institute a suit at the said place and 

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not at other places. The provisions of section 62 of the Copyright 

Act and section 134 of the Trade Marks Act never intended to 

operate in the field where the plaintiff is having its principal place 

of business at a particular place and the cause of action has also 

arisen at that place so as to enable it to file a suit at a distant 

place where its subordinate office is situated though at such place 

no cause of action has arisen. Such interpretation would cause 

great harm and would be juxtaposed to the very legislative 

intendment of the provisions so enacted. Held further, There is no 

doubt about it that the words used in section 62 of the Copyright 

Act and section 134 of the Trade Marks Act, ‘notwithstanding 

anything contained in CPC or any other law for the time being in 

force’, emphasise that the requirement of section 20 of the CPC 

would not have to be complied with by the plaintiff if he resides 

or carries on business in the local limits of the court where he has 

filed the suit but, in our view, at the same time, as the provision 

providing for an additional forum, cannot be interpreted in the 

manner that it has authorised the plaintiff to institute a suit at a 

different place other than the place where he is ordinarily residing 

or having principal office and incidentally where the cause of 

action wholly or in part has also arisen. The impugned judgments, 

in our considered view, do not take away the additional forum 

and fundamental basis of conferring the right and advantage to 

the authors of the Copyright Act and the Trade Marks Act 

provided under the aforesaid provisions. Held further, if they were 

residing or carrying on business or personally worked for gain 

already at such place, where cause of action has arisen, wholly or 

in part, the said provisions have not provided additional remedy 

1037 



to them to file a suit at a different place. The said provisions never 

intended to operate in that field. The operation of the provisions 

was limited and their objective was clearly to enable the plaintiff 

to file a suit at the place where he is ordinarily residing or carrying 

on business etc., as enumerated above, not to go away from such 

places. The Legislature has never intended that the plaintiff 

should not institute the suit where he ordinarily resides or at its 

Head Office or registered office or where he otherwise carries on 

business or personally works for gain where the cause of action 

too has arisen and should drag the defendant to a subordinate 

office or other place of business which is at a far distant place 

under the guise of the fact that the plaintiff/corporation is 

carrying on business through branch or otherwise at such other 

place also. (2016)3 PLRSC 915 

1038 


Criminal complaint - Amendment - Amendment in a criminal complaint 

on the premise that the amendment was made prior to taking 

cognizance of the offence – On date of allowing amendment 

application cognizance of case was not taken – Before 

examination of the complainant, the Court was yet to make up 

the mind whether to take cognizance of the offence or not - It is 

wrong to contend that the Magistrate has taken cognizance of the 

case even on 18.5.2007 when the Magistrate has recorded the 

statement of complainant–respondent in part and even when the 

Magistrate has not applied his judicial mind - Even though the 

order dated 18.05.2007 reads “cognizance taken under Section 

200 Cr.P.C.”; the same is not grounded in reality and actual 

cognizance was taken only later. (2016)3 PLRSC 883 

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Criminal complaint - Amendment - It is true that there is no specific 

provision in the Code to amend either a complaint or a petition 

filed under the provisions of the Code, but the Courts have held 

that the petitions seeking such amendment to correct curable 

infirmities can be allowed even in respect of complaints – Criminal 

Procedure Code. (2016)3 PLRSC 883 

Criminal complaint - Amendment - That easily curable legal infirmity 

could be cured by means of a formal application for amendment - 

If the amendment sought to be made relates to a simple infirmity 

which is curable by means of a formal amendment and by 

allowing such amendment, no prejudice could be caused to the 

other side, notwithstanding the fact that there is no enabling 

provision in the Code for entertaining such amendment, the Court 

may permit such an amendment to be made - On the contrary, if 

the amendment sought to be made in the complaint does not 

relate either to a curable infirmity or the same cannot be 

corrected by a formal amendment or if there is likelihood of 

prejudice to the other side, then the Court shall not allow such 

amendment in the complaint. Held, In the instant case, the 

amendment application was filed on 24.05.2007 to carry out the 

amendment by adding paras 11(a) and 11 (b). Though, the 

proposed amendment was not a formal amendment, but a 

substantial one, the Magistrate allowed the amendment 

application mainly on the ground that no cognizance was taken of 

the complaint before the disposal of amendment application. 

Firstly, Magistrate was yet to apply the judicial mind to the 

contents of the complaint and had not taken cognizance of the 

matter. Secondly, since summons was yet to be ordered to be 

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1040 



issued to the accused, no prejudice would be caused to the 

accused. Thirdly, the amendment did not change the original 

nature of the complaint being one for defamation. Fourthly, the 

publication of poem ‘Khalnayakaru’ being in the nature of 

subsequent event created a new cause of action in favour of the 

respondent which could have been prosecuted by the respondent 

by filing a separate complaint and therefore to avoid multiplicity 

of proceedings, the trial court allowed the amendment 

application. Considering these factors which weighed in the mind 

of the courts below, in our view, the High Court rightly declined to 

interfere with the order passed by the Magistrate allowing the 

amendment application and the impugned order does not suffer 

from any serious infirmity warranting interference in exercise of 

jurisdiction under Article 136 of the Constitution of India. (2016)3 


Criminal Procedure Code, 1973 - Criminal complaint - Amendment - It is 

true that there is no specific provision in the Code to amend 

either a complaint or a petition filed under the provisions of the 

Code, but the Courts have held that the petitions seeking such 

amendment to correct curable infirmities can be allowed even in 

respect of complaints. (2016)3 PLRSC 883 

Criminal Procedure Code, 1973 Section 36 - Power of State Police 

Chief/Director General of Police to appoint a superior police 

officer to investigate a crime case registered outside the territorial 

jurisdiction of such officer - Power of the State Police Chief 

would be amenable to the judicial process and it can always be 

subjected to challenge on grounds of malafide or as being without 

justification and reasonable cause. (2016)3 PLRSC 422 

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Criminal Procedure Code, 1973 Section 36 - Whether the State Police 

Chief/Director General of Police is empowered to appoint a 

superior police officer to investigate a crime case registered 

outside the territorial jurisdiction of such officer - Section 36 

Cr.P.C, does not in any way, debar the exercise of powers by the 

State Police Chief to appoint any superior officer who, in his 

opinion, would be competent and fit to investigate a particular 

case keeping in view the circumstances thereof - Section 36 

Cr.P.C does not fetter the jurisdiction of the State Police Chief to 

pass such an order based on his satisfaction - It is the satisfaction 

of the State Police Chief, in the light of the facts of a given case, 

that would be determinative of the appointment to be made in 

which situation the limits of jurisdiction will not act as fetter or 

come in the way of exercise of such jurisdiction by the superior 

officer so appointed - Such an appointment would not be hedged 

by the limitations imposed by Section 36 Cr.P.C. - Kerala Police 

Act, Section 18. (2016)3 PLRSC 422 

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Criminal Procedure Code, 1973 Section 200 - Contemplates a 

Magistrate taking cognizance of an offence on complaint to 

examine the complaint and examine upon oath the complainant 

and the witnesses present, if any - Then normally three courses 

are available to the Magistrate - The Magistrate can either issue 

summons to the accused or order an inquiry under Section 202 

Cr.P.C. or dismiss the complaint under Section 203 Cr.P.C. - Upon 

consideration of the statement of complainant and the material 

adduced at that stage if the Magistrate is satisfied that there are


sufficient grounds to proceed, he can proceed to issue process 

under Section 204 Cr.P.C. (2016)3 PLRSC 883 

Criminal Procedure Code, 1973 Section 200 - Cognizance - A Magistrate 

takes cognizance of an offence when he decides to proceed 

against the person accused of having committed that offence and 

not at the time when the Magistrate is just informed either by 

complainant by filing the complaint or by the police report about 

the commission of an offence. (2016)3 PLRSC 883 

Criminal Procedure Code, 1973 Section 200 - Cognizance - Magistrate is 

not bound to take cognizance of an offence merely because a 

complaint has been filed before him when in fact the complaint 

does not disclose a cause of action - Section 200 Cr.P.C. clearly 

suggests that for taking cognizance of an offence on complaint, 

the Court shall examine the complainant upon oath - The object 

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of examination of the complainant is to find out whether the 

complaint is justifiable or is vexatious - Merely because the 

complainant was examined that does not mean that the 

Magistrate has taken cognizance of the offence - Taking 

cognizance of an offence means the Magistrate must have 

judicially applied the mind to the contents of the complaint and 

indicates that Magistrate takes judicial notice of an offence - Mere 

presentation of the complaint and receipt of the same in the court 

does not mean that the Magistrate has taken cognizance of the 

offence. (2016)3 PLRSC 883 

Criminal Procedure Code, 1973 Section 202 - Contemplates 

‘postponement of issue of process’ - It provides that the 

Magistrate on receipt of a complaint of an offence of which he is 

authorised to take cognizance may, if he thinks fit, postpones the 

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issue of process for compelling the attendance of the person 

complained against, and either inquire into the case himself, or 

have an inquiry made by any Magistrate subordinate to him, or an 

investigation made by a police officer, or by some other person 

for the purpose of deciding whether or not there is sufficient 

ground for proceeding - If the Magistrate finds no sufficient 

ground for proceeding, he can dismiss the complaint by recording 

briefly the reasons for doing so as contemplated under Section 

203 Cr.P.C. - A Magistrate takes cognizance of an offence when 

he decides to proceed against the person accused of having 

committed that offence and not at the time when the Magistrate 

is just informed either by complainant by filing the complaint or 

by the police report about the commission of an offence. (2016)3 


Criminal Procedure Code, 1973 Section 304 Part II IPC read with Section 

149 IPC - Sentence – Quantum - Question of sentence is always a 

difficult task requiring balancing of various considerations. The 

question of awarding sentence is a matter of discretion to be 

exercised on consideration of circumstances aggravating and 

mitigating in the individual cases. Law courts have been consistent 

in the approach that a reasonable proportion has to be 

maintained between the seriousness of the crime and the 

punishment - While it is true that sentence disproportionately 

severe should not be passed that does not clothe the court with 

an option to award the sentence manifestly inadequate - Justice 

demands that courts should impose punishment befitting the 

crime so that the courts reflect public abhorrence of the crime - 

As far as the award of compensation is concerned, particularly in 

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the case of homicidal death, monetary benefits cannot be 

equated with the life of a person and the society’s cry for justice - 

Object is just to mitigate hardship that is caused to the deceased - 

Fine amount of Rs.25,000/- imposed on each of the accused is 

increased to Rs.1,25,000/- each. Held, Considering the facts of the 

present case as submitted by the learned counsel for the 

respondents two accused namely Raj and Narender were the 

students at the time of the incident while Manphool has crossed 

the age of 72 years. The occurrence was in the year 1993 and 

more than 22 years have elapsed from the date of the incident. 

For the conviction under Section 304 Part II IPC read with Section 

149 IPC reduction of sentence from seven years to the period 

already undergone, though, appears to be inadequate, at this 

distant point of time, we are not inclined to interfere with the 

exercise of discretion by the High Court in reducing the sentence 

of imprisonment from seven years to the period already 

undergone by each of the accused. As far as the award of 

compensation is concerned, particularly in the case of homicidal 

death, monetary benefits cannot be equated with the life of a 

person and the society’s cry for justice. Object is just to mitigate 

hardship that is caused to the deceased. Fine amount of 

Rs.25,000/- imposed on each of the accused is increased to 

Rs.1,25,000/- each. (2016)3 PLRSC 909 

Criminal Procedure Code, 1973 Section 313 – Accused in their replies 

made under Section 313 Cr.P.C. have not denied their presence in 

the occurrence - Appellants-accused belong to different villages - 

Their names are found mentioned with their residential village in 

the complaint which was lodged at the earliest point in time - 

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PWs have testified about the participation of both the above 

accused in the occurrence and have identified them also - 

Nothing is put in the cross-examination of the prosecution 

witnesses either denying their presence or absence of any role 

played by them in the assembly - Not even a suggestion is made 

in this regard - It is also relevant to point out that these accused in 

their replies made under Section 313 Cr.P.C. have not denied their 

presence in the occurrence - Presence in the occurrence place is 

established – Criminal Trial. (2016)3 PLRSC 815 

Criminal Procedure Code, 1973 Section 340 - Expert evidence and 

Witness of Fact - Expert evidence needs to be given a closer 

scrutiny and requires a different approach while initiating 

proceedings under Section 340 of CrPC- After all, it is an opinion 

given by an expert and a professional and that too especially 

when the expert himself has lodged a caveat regarding his 

inability to form a definite opinion without the required material - 

The duty of an expert is to furnish the court his opinion and the 

reasons for his opinion along with all the materials - It is for the 

court thereafter to see whether the basis of the opinion is correct 

and proper and then form its own conclusion - But, that is not the 

case in respect of a witness of facts - Facts are facts and they 

remain and have to remain as such forever - The witness of facts 

does not give his opinion on facts; but presents the facts as such - 

However, the expert gives an opinion on what he has tested or on 

what has been subjected to any process of scrutiny - The 

inference drawn thereafter is still an opinion based on his 

knowledge - In case, subsequently, he comes across some 

authentic material which may suggest a different opinion, he must 

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address the same, lest he should be branded as intellectually 

dishonest - Objective approach and openness to truth actually 

form the basis of any expert opinion. (2016)3 PLRSC 41 

Criminal Procedure Code, 1973 Section 340 - Section 340 prior to 

amendment in 1973, was Section 479-A in the 1898 Code and it 

was mandatory under the pre-amended provision to record a 

finding after the preliminary inquiry regarding the commission of 

offence - Whereas in the 1973 Code, the expression 'shall' has 

been substituted by 'may' meaning thereby that under 1973 

Code, it is not mandatory that the court should record a finding - 

What is now required is only recording the finding of the 

preliminary inquiry which is meant only to form an opinion of the 

court, and that too, opinion on an offence 'which appears to have 

been committed', as to whether the same should be duly inquired 

into - Impugned order is not liable to be quashed on the only 

ground that there is no finding recorded by the court on the 

commission of the offence. (2016)3 PLRSC 41 

Criminal Procedure Code, 1973 Section 340 – Expert - Merely because an 

expert has tendered an opinion while also furnishing the basis of 

the opinion and that too without being conclusive and definite, it 

cannot be said that he has committed perjury so as to help 

somebody - And, mere rejection of the expert evidence by itself 

may not also warrant initiation of proceedings under Section 340 

of CrPC. Held, Appellant has all through been consistent that as an 

expert, a definite opinion in the case could be given only if the 

suspected firearm is available for examination. It is nobody's case 

that scientifically an expert can give a definite opinion by only 

examining the cartridges as to whether they have been fired from 

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the same firearm. It was the trial court which insisted for an 

opinion without the presence of the firearm, and in that context 

only, the appellant gave the non-specific and indefinite opinion. 

An expert, in such a situation, could not probably have given a 

different opinion. We fail to understand how the stand taken by 

the appellant, as above, attracts the offence of perjury.Held 

further, It is significant to note that the appellant's opinion that 

the cartridges appeared to have been fired from different 

firearms was based on the court's insistence to give the opinion 

without examining the firearm. In other words, it was not even his 

voluntary, let alone deliberate deposition, before the court. 

Therefore, it is unjust, if not unfair, to attribute any motive to the 

appellant that there was a somersault from his original stand in 

the written opinion. As a matter of fact, even in the written 

opinion, appellant has clearly stated that a definite opinion in 

such a situation could be formed only with the examination of the 

suspected firearm, which we have already extracted in the 

beginning. Thus and therefore, there is no somersault or shift in 

the stand taken by the appellant in the oral examination before 

court. (2016)3 PLRSC 41 

Criminal Trial - Co-accused was acquitted of the charges – Plea hence 

the benefit of the same be also extended to the appellant - 

Negated - Eevidence on record in no uncertain terms proves that 

it was the appellant who was the aggressor and hit the deceased - 

When the evidence directly attributes the appellant for 

commission of the act then we fail to appreciate as to how and on 

what basis we can ignore this material evidence duly proved by 

the eyewitnesses - Such was not the case so far as co-accused is 

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concerned - The prosecution witnesses too did not speak against 

the co-accused and hence he was given the benefit of doubt. 


Criminal Trial - Cr.P.C., Section 313 – Accused in their replies made under 

Section 313 Cr.P.C. have not denied their presence in the 

occurrence - Appellants-accused belong to different villages - 

Their names are found mentioned with their residential village in 

the complaint which was lodged at the earliest point in time - 

PWs have testified about the participation of both the above 

accused in the occurrence and have identified them also - 

Nothing is put in the cross-examination of the prosecution 

witnesses either denying their presence or absence of any role 

played by them in the assembly - Not even a suggestion is made 

in this regard - It is also relevant to point out that these accused in 

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their replies made under Section 313 Cr.P.C. have not denied their 

presence in the occurrence - Presence in the occurrence place is 

established. (2016)3 PLRSC 815 

Criminal Trial - Lack of firearm by patrolling team - All forest officers 

were deployed on patrolling duty to keep a check on the then 

increasing forest offences - Incident, like in the instant case, could 

reasonably be anticipated - Under such circumstances, they 

should have been armed with weapons atleast for their own 

safety - As per record, when the incident occurred all the forest 

officers were found to be without weapons - Cannot be believed 

that the forest officers on patrolling duty were without any 

weapon - High Court has erred in observing that the Forest 

Department being poorly equipped failed to provide weapons to 

meet the situations, like in the instant case. (2016)3 PLRSC 202 

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Criminal Trial - Non-recovery - Non-recovery of the weapon used by the 

accused appellants and recovery of the blood stained shirt after 

six days of the date of the incident - However, merely on the 

basis of these circumstances the entire case of the prosecution 

cannot be brushed aside when it has been proved by medical 

evidence corroborated by testimonies of the prosecution 

witnesses that the deceased died a homicidal death - When there 

is ample unimpeachable ocular evidence and the same has 

received corroboration from medical evidence, non-recovery of 

blood stained clothes or even the murder weapon does not affect 

the prosecution case . Manjit Singh and Anr. v. State of Punjab 

and Anr. ***, (2013) 12 SCC 746, relied. (2016)3 PLRSC 588 

Criminal Trial - Suspicious circumstances - Instead of confronting with 

the forest officers, who were on patrolling duty in jeep, the 

accused would have tried to conceal their presence either by 

hiding themselves or by running away - The forest officers, 

including the driver of the jeep, were 10 in number and on the 

other hand, accused were 4 - Difficult to believe that the forest 

officers made no frantic efforts to nab the culprits when they 

allegedly assaulted them - The forest officers could have easily 

apprehended the culprits had they tried, as they outnumbered 

them – Same was not done and have ebenshown to have been 

nabbed form their homes after 8 days – Suspicious circumstances. 


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Criminal Trial - Acquittal - Concurrent finding of acquittal - The 

Additional Sessions Judge was right in granting him benefit of 

doubt - The view which favours the accused/appellant has to be 

considered and we discard the opposite view which indicates his


guilt - We are also of the view that the High Court should not have 

interfered with the decision taken by the Additional Session 

Judge, as the judgment passed was not manifestly illegal, 

perverse, and did not cause miscarriage of justice - In absence of 

any manifest illegality, perversity and miscarriage of justice, High 

Court would not be justified interfering with the concurrent 

finding of acquittal of the accused merely because on reappreciation 

of evidence it found the testimony of PWs to be 

reliable whereas the trial Court had taken an opposite view. 


Criminal Trial - Delay in recording of Statements of alleged eye witnesses 

- Were recorded after 3 days of the occurrence - No explanation is 

forthcoming as to why they are not examined for 3 days - It is also 

not known as to how the police came to know that these 

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witnesses saw the occurrence - The delay in recording the 

statements casts a serious doubt about their being eye-witnesses 

to the occurrence - Suggests that the investigating officer was 

deliberately marking time with a view to decide about the shape 

to be given to the case and the eye-witnesses to be introduced - 

PW in view of their unexplained silence and delayed statement to 

the police, does not appear to us to be wholly reliable witnesses - 

No corroboration of their evidence from any other independent 

source either - Find it rather unsafe to rely upon their evidence 

only to uphold the conviction and sentence of the appellants - 

Case against the appellants has not been proved beyond 

reasonable doubt. (2016)3 PLRSC 414 

Criminal trial – Delay of 8 days on the part of the investigating agency to 

make arrest - All the accused were arrested on 05.07.1995 from 

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their home - Prosecution has failed to explain the delay of 8 days 

on the part of the investigating agency to make arrest of all the 

accused-appellants, when the incident occurred on 27.06.1995 

and allegedly PW-8 in his statement under Section 161 of Cr.P.C. 

had already revealed the identity of all the culprits involved in the 

incident - Prosecution tried to explain the delay in making arrest 

by pressing upon the ground that the accused were absconding - 

If they were really absconding, then they should have remained 

absconding - Their arrest from their home casts a shadow of 

doubt on the prosecution story rendering the same to be 

concocted and dubious. (2016)3 PLRSC 202 

Criminal Trial - Eye witness - Inconsistency of statements - Inconsistency 

with the statement given by P.W. in the F.I.R and the statement 

given in the Court - Do not find this to be fatal to the prosecution 

case - Cannot rule out the possibility of post incident trauma and 

shock which might have been caused to the injured eye witness - 

In such a situation one cannot expect the witness to depose about 

every detail with accuracy - Testimony of an injured eye witness 

has to be given much credence - The testimonies of the 

prosecution witnesses have been fully corroborated by the 

medical reports of the doctors who examined the deceased and 

the injured witness - Therefore, we hold that the testimonies of 

the prosecution witnesses are fully reliable and there has been no 

improvement made. Held, that when other evidence, such as 

medical evidence, supports the prosecution’s case, the difference 

in what is stated in the F.I.R. and in Court as regards the weapon 

of offence is a very insignificant contradiction, Dharmendrasinh 

alias Mansing Ratansinh v. State of Gujarat, (2002) 4 SCC 679, 

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relied. (2016)3 PLRSC 588 

Criminal Trial - FIR – Delay in lodging - Occurrence had taken place at 

about 2.00 p.m. on 9.10.1983 and the complaint had been lodged 

at about 6.15 p.m. on the same day, on which the case came to be 

registered - As mentioned in the FIR, the police station was 

situated at a distance of 54 kms. from the occurrence place - In 

such circumstances there is no delay in lodging the complaint – 

Criminal Trial. (2016)3 PLRSC 815 

Criminal Trial – High court has observed that when the accusedappellants 

started assaulting the forest officers, none of the 

officers, who were unarmed, dared to go near the culprits with a 

view to catch them, thus, placing the accused in a dominating 

position - On the other hand, it has further observed that the 

accused-appellants had dropped the said wooden log to make 

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their bullock cart light in weight with a view to move swiftly - This 

Court finds the aforesaid reasons assigned by the High Court to be 

incorrect - Once the accused-appellants were in a dominating 

position, none of the forest officers could go near them for the 

purpose of nabbing them. Thus, there can be no justification for 

leaving behind the said wooden log - They could have easily 

carried it away with them, if they had the intention of doing so - 

The prosecution has failed to explain the reason behind the 

accused not taking away the said wooden log with them. (2016)3 


Criminal Trial – Interested witnesses -The ground pleaded before us by 

the counsel for the accused appellant, that the testimonies of 

P.W. should not have been considered, as they were interested 

witnesses - Holds no teeth - Testimonies of interested witnesses 

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are of great importance and weightage - No man would be willing 

to spare the real culprit and frame an innocent person. This view 

has been supplemented by the decision of this Court in Mohd. 

Ishaque v. State of West Bengal, 3 (2013) 14 SCC 581. (2016)3 


Criminal Trial - Maharashtra Control of Organised Crime Act, 1999, 

Section 3 - The High Court was, therefore, right in holding that 

Section 3 of the MCOCA could not be invoked only on the basis of 

the previous charge sheets for Section 3 would come into play 

only if the respondents were proved to have committed an 

offence for gain or any pecuniary benefit or undue economic or 

other advantage after the promulgation of MCOCA - Offences 

which the respondents are alleged to have committed after the 

promulgation of MCOCA were not proved against them - 

Commission of offences prior to the enactment of MCOCA does 

not by itself constitute an offence under MCOCA . Held, 

Registration of cases, filing of charge sheets and taking of 

cognizance by the competent court in relation to the offence 

alleged to have been committed by the respondents in the past is 

but one of the requirements for invocation of Section 3 of the 

MCOCA. Continuation of unlawful activities is the second and 

equally important requirement that ought to be satisfied. It is only 

if an organised crime is committed by the accused after the 

promulgation of MCOCA that he may, seen in the light of the 

previous charge sheets and the cognizance taken by the 

competent court, be said to have committed an offence under 

Section 3 of the Act. (2016)3 PLRSC 960 

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Criminal trial – PW the first informant stated that he witnessed the 

incident while he was standing in the first floor gallery of his 

building which was abutting the Pandal where the incident took 

place - He also deposed that he had identified A1 and A12 in the 

Test Identification Parades - But it is not clear whether he could 

have witnessed the incident from the first floor as the setting up 

of the Pandal was completed and the work of putting tarpaulin 

over the Pandal was done and only the decoration of the frill was 

going on - It is doubtful whether PW could have witnessed the 

incident in the state of commotion when everyone was running 

for shelter due to firing. (2016)3 PLRSC 351 

Criminal Trial - Quantum of sentence - It is the duty of the Court 

awarding sentence to ensure justice to both the parties and 

therefore undue leniency in awarding sentence needs to be 

avoided because it does not have the necessary effect of being a 

deterrent for the accused and does not re-assure the society that 

the offender has been properly dealt with - It is not a very healthy 

situation to leave the injured and complainant side thoroughly 

dissatisfied with a very lenient punishment to the accused – High 

court reduced the sentence for imprisonment which was R.I. for 

10 years for the offence punishable under Section 307 as well as 

Section 307 read with Section 34 of the IPC to a period already 

undergone by the respondents which was of one year and nine 

months only –The order of punishment imposed by the High 

Court suffers from the vice of being over-lenient even in absence 

of any mitigating circumstance - Apex court held the sentence of 

rigorous imprisonment for three years in place of period already 

undergone as awarded by the High court . (2016)3 PLRSC 444 

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Criminal trial - Related witnesses - Admissibility of a statement by related 

witnesses - There is no bar on the admissibility of a statement by 

related witnesses supporting the prosecution case, but it should 

stand the test of being credible, reliable, trustworthy, admissible 

in accordance with law and corroborated by other witnesses or 

documentary evidence of the prosecution - It is the quality of the 

witness that matters and not the quantity, when the related 

witness was examined and found credible - In such a case nonexamination 

of an independent witness would not be fatal to the 

prosecution case - Evidence . Held, that in the present case, 

however, the prosecution witnesses PW-4 and PW-5, contradict 

each other, and their statements are not corroborated by any 

independent witness in spite of the incident happening in the 

market place, with shops on both sides of the road. Therefore, in 

our view, as the testimonies of PW-4 and PW-5 are not 

completely reliable, this is a fit case where corroboration by an 

independent witness was required. The case of the prosecution 

also weakens on the ground that the only independent witness 

PW-8 turned hostile. (2016)3 PLRSC 554 

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Criminal Trial - Statements of alleged eye witnesses – Disbelieved - In the 

complaint, the names of the assailants are not mentioned and 

also the names of the persons who were present during the 

occurrence are not mentioned - PW slipping away unnoticed by 

the others particularly after the alleged attack is utterly 

unbelievable - It appears unreal - They are not strange to expect 

and they did not render any help for shifting the injured to the 

hospital nor had the courtesy to go inside the hospital to ascertain 

the condition and also did not inform the occurrence to the police


- The aspect of fear is without any foundation and is not 

supported by any evidence of act or conduct. (2016)3 PLRSC 414 

Criminal Trial – Suspicious circumstances - Informant party of forest 

officials , comprising of about 10 forest officials in a jeep, 

intercepted a bullock cart - It was alleged that the accused herein 

were present on the said cart and transporting stolen teak wood 

log clandestinely and illegally, without a pass or permit - It was 

further alleged that an altercation ensued - When the injuries 

sustained by the deceased were more serious in nature than the 

injuries sustained by other two forest officers, which were 

minor in nature, then the deceased should have been taken to 

hospital first or atleast along with other two injured forest 

officials, who were taken to hospital in the first instance – 

Suspicious circumstances. (2016)3 PLRSC 202 

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Criminal trial – Test identification parade – Incident of 12.8.1995 - When 

the incident of firing occurred in the circumstances wherein much 

time was not available for the eye-witnesses to clearly see the 

accused - In such a situation, it was of much more importance 

that the Test Identification Parades were to be conducted without 

any delay - The first Test Identification Parade was held after 

about 1½ months of the incident and the second Test 

Identification Parade was conducted after more than a year of the 

incident - Even if it is taken into account that A12 was arrested 

after a year and within one month thereafter the test 

Identification Parade was conducted, still it is highly doubtful 

whether the eye-witnesses could have remembered the faces of 

the accused after such a long period - Accused was arrested by 

the first week of September, 1996 and the Test Identification 

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Parade was conducted on 4.10.1996 - It is too large a gap for the 

witness to have remembered the face of the accused - Though the 

incident took place in broad daylight, the time for which the eyewitnesses 

could see the accused was not sufficient for them to 

observe the distinguishing features of the accused, especially 

because there was a commotion created after the firing and 

everyone was running to shelter themselves from the firing. 


Criminal trial – Test Identification Parade - No doubt, law with regard to 

the importance of TIP is well settled that identification in court is 

a substantive piece of evidence and TIP simply corroborates the 

same - Prosecution witness identified the accused-appellants in 

court for the first time, during trial, in the year 1997-98 and the 

incident occurred in the year 1995 - After considering some 

undisputed facts like occurrence of incident at night, at a place 

with improper lighting and all the accused-appellants were not 

known to the forest officers, except one present at the place of 

incident, there should have been TIP conducted at the instance of 

the investigating officer - Therefore, the identification of the 

accused-appellants by the prosecution witness for the first time 

after a gap of more than 2 years from the date of incident is not 

beyond reasonable doubt, the same should be seen with 

suspicion. (2016)3 PLRSC 202 

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Criminal Trial – Test identification parade – PW stated that in the Test 

Identification Parade he had identified four persons out of 10-12 

persons standing in the row - Special Executive Officer deposed 

that he conducted 2 Test Identification Parades on the same day - 

In the first Parade, he placed A1 and one more accused who died


later and in the second, he placed A3 and A4 for identification - At 

no point of time, 4 accused were put together for identification 

for PW to identify out of the whole group - Also, PW1 stated that 

he had seen the deceased receiving a bullet injury on his forehead 

but as per the postmortem report, there was no injury on the 

forehead of the deceased as he had been attacked from behind - 

Makes the testimony of PW even more vulnerable. (2016)3 PLRSC 

351 

Criminal Trial - That in case there are two views which can be culled out 

from the perusal of evidence and application of law, the view 

which favours the accused should be taken - It has been 

recognized as a human right by this Court. (2016)3 PLRSC 562 

D 

Death Sentence - 'human dignity' - Article 21 has its traces in the dignity 

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of human being. It has been recognized as part of Article 21 - 

Once we recognize this aspect of dignity of human being, it does 

not end with the confirmation of death sentence, but goes 

beyond and remains valid till such a convict meets his/her destiny 

- Therefore, the process/procedure from confirmation of death 

sentence by the highest Court till the execution of the said 

sentence, the convict is to be treated with human dignity to the 

extent which is reasonable and permissible in law - Constitution of 

India, Article 21. (2016)3 PLRSC 692 

Death Sentence - Constitution of India, Article 21 - Lays down that 

nobody shall be deprived of his life and liberty except according to 

the procedure established by law - It now stands settled that the 

procedure established by law has to be 'due procedure' - By 

judicial interpretation, this Court has read the principle of 

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reasonableness into the said procedure contemplated by Article 

21, holding that it must be 'right and just and fair' and not 

arbitrary, fanciful or oppressive - Even as per the statute book, 

this procedure does not culminate with the dismissal of appeals of 

the convicts by the final Court - No doubt, when an accused is 

tried of an offence by a competent court of law and is imposed 

such death penalty and the said death penalty is upheld by the 

highest Court, the procedure that is established by law has been 

followed up to this stage - However, in the statutory framework, 

further procedural safeguards in the form of judicial review as 

well as mercy petitions are yet to be traversed - This would also 

be covered by the expression 'procedure established by law' 

occurring in Article 21 - Therefore, till the time limitation period 

for filing the review petition and thereafter reasonable time for 

filing the mercy petition has not lapsed, issuing of death warrants 

would be violative of Article 21. (2016)3 PLRSC 692 

Death Sentence - Supreme Court pronounced judgment on 15.05.2015 

dismissing appeal under Article 136 confirming the death penalty 

and within six days of the dismissal of the criminal appeals, 

learned Sessions Judge issued the death warrants on 21.05.2015 - 

This is clearly impermissible and unwarranted for various reasons 

- Constitution of India, Article 21, 72, 136, 137, 161. (2016)3 


1059 


Delay - Review application - Review application filed before the High 

Court dismissed on the ground of delay of 706 days in filing - 

Delay of 1705 days before the Supreme Court – Relates to claim 

made for enhancement of compensation - Review application 

was filed before the High Court seeking land value at the rate of

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as was granted to the adjoining property - Appeals allowed - 

Appellants shall be entitled to land value fixed for adjoining land - 

However, the appellants shall not be entitled for any statutory 

benefits for a period of 2411 days covered by delay before the 

High Court as well as before this Court - Land Acquisition. 


Delay and laches - Grievance primarily on the basis of the adjudication 

made earlier by the High Court since affirmed by the Supreme 

court by Order dated 01.05.2009 - Present writ petitions filed on 

27.08.2009 dismissed on the ground of delay and laches, the 

decision in the earlier proceedings notwithstanding - High Court 

held passive conduct of the respondents herein tantamounted to 

sleeping over their rights for over two years to wake from their 

feigned slumber after the decision of the Supreme Court on 

01.05.2009, to agitate their perceived rights - That having regard 

as were, to the financial implications that would ensue in case the 

inordinately delayed claim of the respondents is/was by 

entertained, thus adversely impacting upon public exchequer, the 

learned Single Judge declined the relief sought for - Upheld by 

Supreme court - See no weighty or cogent reason for the 

respondents to wait till the earlier Special Leave Petition was 

dismissed on 01-05-2009 by this Court to embark upon their 

pursuit for redress in similar terms. - Upholding the view, held, 

that in our considered opinion therefore, the respondents were 

deliberately bidding time to seek judicial remedy in case their coapplicants 

under the scheme emerged successful in their 

adjudicative enterprise. Facts, It is not disputed that the writ 

petitioners in the earlier round of adjudication were applicants 

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under SPINE alike the respondents herein. They being appalled by 

the delay in the grant of their receivables thereunder and being 

faced with the letter dated 05-02-2007 whereby pending receipt 

and scrutiny of the reports as called for, further 

sanction/disbursement of Grants-in-Aid under the said scheme 

was stopped, did promptly approach the Guwahati High Court 

with a batch of writ petitions in the year 2007 itself and as 

narrated hereinabove were favoured with a direction to the 

implementing authorities for consideration of their application for 

the investment subsidy in accordance with law without being 

influenced by the said letter. Admittedly, the respondents herein 

elected not to join them and instead, soon thereafter this Court 

affirmed the above verdict on 01-05-2009, staked their claim on 

27-08-2009. There is evidently thus a time lag of more than two 

years by which the respondents’ challenge was delayed. (2016)3 


Dowry Prohibition Act 1961, Section 6 - If the dowry amount or articles 

of married woman was placed in the custody of his husband or inlaws, 

they would be deemed to be trustees of the same - The 

person receiving dowry articles or the person who is dominion 

over the same, as per Section 6 of the Dowry Prohibition Act, is 

bound to return the same within three months after the date of 

marriage to the woman in connection with whose marriage it is 

given - If he does not do so, he will be guilty of a dowry offence 

under this Section - Section further lays down that even after his 

conviction he must return the dowry to the woman within the 

time stipulated in the order - Giving of dowry and the traditional 

presents at or about the time of wedding does not in any way 

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raise a presumption that such a property was thereby entrusted 

and put under the dominion of the parents-in-law of the bride or 

other close relations so as to attract ingredients of Section 6 of 

the Dowry Prohibition Act - After marriage, SR and Husband were 

living in Bangalore at their matrimonial house - In respect of 

‘stridhana articles’ given to the bride, one has to take into 

consideration the common practice that these articles are sent 

along with the bride to her matrimonial house - It is a matter of 

common knowledge that these articles are kept by the woman in 

connection with whose marriage it was given and used by her in 

her matrimonial house when the appellants have been residing 

separately, it cannot be said that the dowry was given to them 

and that they were duty bound to return the same to SR. (2016)3 


Duty of court – Concession made by counsel - Court ought not to have 

issued the impugned directions merely because a request was 

made by the learned counsel appearing for the respondents - The 

same would hold true even if a concession was made by the 

counsel for the appellant - The Court, while, exercising its powers 

under Article 227 of the Constitution of India, ought to have 

confined itself to the subject matter and the issues raised by 

parties in the Writ Petition - The digression of or expansion of the 

supervisory jurisdiction under Article 227 of the Constitution of 

India, would open precarious floodgates of litigation should the 

limitation on the supervisory jurisdiction not be observed 

mindfully - If for any reason, the Writ Court perceived the oral 

request made by the respondents to have justified the ends of 

justice and desired to accept the concession so made by the 

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counsel for appellant-Society, the said request not being the 

subject matter of the Writ Petition required the Court to query 

whether the counsel for the appellant-Society has been 






infirmity and hence require to be set aside – Advocate – 

Concession. (2016)3 PLRSC 654 

E 

Education – Admission – Disability - Court cannot assess the percentage 

of disability - High Court was not justified in interfering with the 

selection process in exercise of writ jurisdiction and declaring the 

disability of the respondent at 40% and to consider his case in the 

category of physically handicapped persons – Prospectus provided 

that candidates should not submit along with application form, 

any medical certificate to the effect that they are physically 

challenged - Percentage of disability has to be determined by the 

Medical Board, which is specifically mentioned in the prospectus - 

Board has assessed the disability of vision at 20% and issued the 

certificate - Certificate granted by the District Head Quarters 

Hospital, submitted by the respondent was 40% - Court cannot 

assess the percentage of disability - Medical Board has been 

constituted as per the norms of prospectus and it has clearly 

recorded its opinion as regards the disability of vision of the 

respondent. (2016)3 PLRSC 97 

Education - Examination - As it is, the system of examination pursued 

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over the decades, has been accepted by all who are rationale, 

responsible and sensible, to be an accredited one, for 

comparative evaluation of the merit and worth of candidates 

vying for higher academic pursuits - It is thus necessary, for all the 

role players in the process, to secure and sustain the confidence 

of the public in general and the student fraternity in particular in 

the system by its unquestionable trustworthiness - Such a system 

is endorsed because of its credibility informed with guarantee of 

fairness, transparency authenticity and sanctity - There cannot be 

any compromise with these imperatives at any cost - All India 

Pre-Medical and Pre-Dental Test , 2015. Held, The disclosures in 

the investigation suggest that the benefit of answer key has been 

availed by several candidates taking the examination, by illegal 

means - Having regard to the modus operandi put in place, the 

numbers of cell phones and other devices used, it is not unlikely 

that many more candidates have availed such undue advantage, 

being a part of the overall design and in the process have been 

unduly benefited qua the other students who had made sincere 

and genuine endeavours to solve the answer paper on the basis of 

their devoted preparation and hard labour - In view of the 

widespread network, that has operated, as the status reports 

disclose and the admission of the persons arrested including some 

beneficiary candidates, we are of the opinion, in view of the 

strong possibilities of identification of other candidates as well 

involved in such mal practices, that the examination has become a 

suspect. (2016)3 PLRSC. 721 

Education - Examination - Segregation only of the already 44 identified 

candidates stated to be the beneficiaries of the unprincipled 

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manoeuvre by withholding their results for the time being, in our 

comprehension cannot be the solution to the problem that 

confronts all of us - Not only thereby, if the process is allowed to 

advance, it would be pushed to a vortex of litigation pertaining 

thereto in the foreseeable future, the prospects of the candidates 

would not only remain uncertain and tentative, they would also 

remain plagued with the prolonged anguish and anxiety if 

involved in the ordeal of court cases - Acting on this option, 

would in our estimate, amount to driving knowingly the students, 

who are not at fault, to an uncertain future with their academic 

career in jeopardy on many counts - Further, there would also be 

a lurking possibility of unidentified beneficiary candidates stealing 

a march over them, on the basis of the advantages availed by 

them through the underhand dealings as revealed - Having regard 

to the fact, that the course involved with time would yield the 

future generations of doctors of the country, who would be in 

charge of public health, their inherent merit to qualify for taking 

the course can by no means be compromised - All India Pre- 

Medical and Pre-Dental Test , 2015. (2016)3 PLRSC. 721 

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Education – Reexamination - Schedule of dates for examination - 

Conscious are we that, as a consequence, the All India Pre- 

Medical and Pre-Dental Test 2015 would have to be annulled, 

thereby disturbing the time schedule fixed by this court in Mridul 

Dhar and Priya Gupta - We perceive that in the extraordinary fact 

situation where the examination involved is vitiated to the core by 

use of deceitful means and measures to benefit some, the 

consideration of departure from the said time schedule per se 

would not be a wholesome justification to sustain the otherwise

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tainted exercise - The time frame fixed by this court in the above 

cases, in our opinion, was not intended to be inflexibly adhered to 

in the situation of the kind with which we are seised of - The 

schedule of dates was fixed, so as to streamline and discipline the 

process of admission by its uniform application - We are of the 

understanding that the annulment of the examination and the 

consequences to follow, in the singular facts and circumstances of 

the cases, would not in any way be repugnant to the renderings of 

this court in Mridul Dhar (supra) and Priya Gupta (supra) - The 

course we proposed to embark upon, is the demand of the 

situation based on contemporaneous official records and that 

facts corroborated thereby - The pleadings of the Board, that its 

answer key had been prepared whereafter the challenges from 

the candidates have been received and have been verified with 

the subject experts, in the teeth of the disclosures in the 

investigation lack in persuasion to save the examination. (2016)3 

PLRSC. 721 

Education – Reexamination - The abrogation of the examination, would 

result in some inconvenience to all concerned and that same extra 

time would be consumed for holding a fresh examination with 

renewed efforts therefor - This however, is the price, the 

stakeholders would have to suffer in order to maintain the 

impeccable and irrefutable sanctity and credibility of a process of 

examination, to assess the innate worth and capability of the 

participating candidates for being assigned inter se merit 

positions commensurate to their performance based on genuine 

and sincere endeavours - All India Pre-Medical and Pre-Dental 

Test , 2015. Held, 

It is a collective challenge that all the role- 

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players would have to meet, by rising to the occasion and fulfill 

the task ahead at the earliest, so as to thwart and abort the 

deplorable design of a mindless few seeking to highjack the 

process for selfish gain along with the unscrupulous beneficiaries 

thereof. Though the Board has taken a plea that having regard to 

the enormity of the exercise to be undertaken, the same cannot 

be redone before four months, we would emphasize that this is 

an occasion where it (the Board) ought to gear up in full all its 

resources in the right spirit, in coordination with all other 

institutions that may be involved so as to act in tandem and hold 

the examination afresh at the earliest. Held further, We are not 

unaware that in holding the present examination as well as in 

participating in the exercise, all genuinely concerned have put in 

tireless efforts. All these however have been rendered futile by a 

handful of elements seeking to reap undue financial gain by 

subjecting the process to their evil manoeuvres. We have thus no 

hesitation to order that the All India Pre-Medical and Pre-Dental 

Test stands cancelled. (2016)3 PLRSC. 721 

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Education – Reexamination - All India Pre-Medical and Pre-Dental Test , 

2015 - Having regard to the uncompromising essentiality of a 

blemishless process of examination involving public participation, 

we have no alternative but to hold that the examination involved, 

suffers from an infraction of its expected requirement of 

authenticity and credence - We are conscious of the fact that 

every examination being conducted by a human agency is likely to 

suffer from some shortcomings, but deliberate inroads into its 

framework of the magnitude and the nature, as exhibited, in the 

present case, demonstrate a deep seated and pervasive impact,

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which ought not to be disregarded or glossed over, lest it may 

amount to travesty of a proclaimed mechanism to impartially 

judge the comparative merit of the candidates partaking therein - 

If such an examination is saved, merit would be a casualty 

generating a sense of frustration in the genuine students, with 

aversion to the concept of examination - The possibility of leaning 

towards unfair means may also be the ultimate fall out - Even if, 

one undeserving candidate, a beneficiary of such illegal 

machination, though undetected is retained in the process it 

would be in denial of, the claim of more deserving candidates - At 

the present, the examination stands denuded of its sanctity as it is 

not possible to be cleansed of all the participating beneficiary 

candidates with certainty - We are thus, on an overall assessment 

of the materials on record, left unpersuaded to sustain the 

examination - We must observe that till this stage of the 

investigation, no conscious lapse or omission on the part of the 

Board, contributing to the otherwise appalling mischief has 

surfaced. (2016)3 PLRSC. 721 


the process of election had commenced - Whenever the process 

of election starts, normally courts should not interfere with the 

process of election for the simple reason that if the process of 

election is interfered with by the courts, possibly no election 

would be completed without court’s order - Very often, for 

frivolous reasons candidates or others approach the courts and by 

virtue of interim orders passed by courts, the election is delayed 

or cancelled and in such a case the basic purpose of having 

election and getting an elected body to run the administration is 

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frustrated - Dentists Act, 1948 Section 3 (a) - Dental Council 

(Election) Regulations, 1952. (2016)3 PLRSC 387 

Employee’s Compensation Act, 1923 - Interest @12% - Insurance 

company liable to pay. (2016)3 PLRSC 243 

Employee’s Compensation Act, 1923 – Wages - Neither of the parties 

produced any document on record to prove the exact amount of 

wages being earned by the deceased at the time of the accident - 

Deceased was a highly skilled workman and would often be 

required to undertake long journeys outside the state in the line 

of duty, especially considering the fact that the vehicle in question 

had a registered National Route Permit - Wages of the deceased 

were accepted as Rs.4,000/- per month + daily bhatta of 

Rs.6,000/- per month – Under the Payment of Wages Act, 1936, 

Section 13A, the onus is on the employer to maintain the register 

and records of wages - Since the employer has failed in his duty to 

maintain the proper records of wages of the deceased, the 

appellants cannot be made to suffer for it - Payment of Wages 

Act, 1936, Section 13A . (2016)3 PLRSC 243 

Employee’s Compensation Act, 1923 Section 3(1) – Negligence of 

workman - The E.C. Act is a welfare legislation enacted to secure 

compensation to the poor workmen who suffer from injuries at 

their place of work. - Liability of the employer, thus, arises, when 

the workman sustains injuries in an accident which arises out of 

and in the course of his employment - Section 3 of the Act does 

not create any exception of the kind, which permits the employer 

to avoid his liability if there was negligence on part of the 

workman - The Act does not envisage a situation where the 

compensation payable to an injured or deceased workman can be 

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1070 



reduced on account of contributory negligence - While no 

negligence on part of the deceased has been made out as he was 

merely trying his best to stop the truck from moving unmanned, 

even if there were negligence on his part, it would not disentitle 

his dependents from claiming compensation under the Act. 


Employees’ State Insurance Corporation Act, 1948, Section 85(a)(i)(b) - 

Whether the court has been given judicial discretion only to 

reduce the sentence of imprisonment for any term lesser than six 

months or whether it also has discretion to levy no fine or a fine 

of less than five thousand rupees – The object of creating offence 

and penalty under the Employees’ State Insurance Act, 1948 is 

clearly to create deterrence against violation of provisions of the 

Act which are beneficial for the employees - Non-payment of 

contributions is an economic offence and therefore the 

Legislature has not only fixed a minimum term of imprisonment 

but also a fixed amount of fine of five thousand rupees under 

Section 85(a)(i)(b) of the Act - There is no discretion of awarding 

less than the specified fee, under the main provision - It is only 

the proviso which is in the nature of an exception whereunder the 

court is vested with discretion limited to imposition of 

imprisonment for a lesser term - Conspicuously, no words are 

found in the proviso for imposing a lesser fine than that of five 

thousand rupees. (2016)3 PLRSC 520 

Evidence Act, 1872 Section 11 - Alibi - The word alibi means "elsewhere" 

- Plea of alibi is not one of the General Exceptions contained in 

Chapter IV of IPC - It is a rule of evidence recognized under 

Section 11 of the Evidence Act - However, plea of alibi taken by 

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the defence is required to be proved only after prosecution has 

proved its case against the accused – Indian Penal Code, Chapter 

IV. (2016)3 PLRSC 967 

Evidence Act, 1872, Section 25 - Confession – When a person is in police 

custody, the confession made by him even to a third person, that 

is other than a police officer, shall also become inadmissible - This 

provision applies even to those confessions which are made to a 

police officer who may not otherwise be acting as such - If he is a 

police officer and confession was made in his presence, in 

whatever capacity, the same becomes inadmissible in evidence . 

Held, The philosophy behind the aforesaid provision is 

acceptance of a harsh reality that confessions are extorted by the 

police officers by practicing oppression and torture or even 

inducement and, therefore, they are unworthy of any credence. 

The provision absolutely excludes from evidence against the 

accused a confession made by him to a police officer. This 

provision applies even to those confessions which are made to a 

police officer who may not otherwise be acting as such. If he is a 

police officer and confession was made in his presence, in 

whatever capacity, the same becomes inadmissible in evidence. 


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Evidence Act, 1872, Section 25, 26, 27 - Section 27 is in the form of 

proviso to Sections 25 and 26 of the Evidence Act - It makes it 

clear that so much of such information which is received from a 

person accused of any offence, in the custody of a police officer, 

which has led to discovery of any fact, may be used against the 

accused - Such information as given must relate distinctly to the 

fact discovered - In the present case, the information provided by


all the accused/ appellants in the form of confessional 

statements, has not led to any discovery - More starkly put, the 

recovery of scooter is not related to the confessional statements 

allegedly made by the appellants - This recovery was pursuant to 

the statement made by H - It was not on the basis of any 

disclosure statements made by these appellants - Confessional 

statement allegedly given by Appellant is again in another FIR - 

Therefore, the situation contemplated under Section 27 of the 

Evidence Act also does not get attracted - Even if the scooter was 

recovered pursuant to the disclosure statement, it would have 

made the fact of recovery of scooter only, as admissible under 

Section 27 of the Evidence Act, and it would not make the socalled 

confessional statements of the appellants admissible which 

cannot be held as proved against them. (2016)3 PLRSC 670 

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Expert - Merely because an expert has tendered an opinion while also 

furnishing the basis of the opinion and that too without being 

conclusive and definite, it cannot be said that he has committed 

perjury so as to help somebody - And, mere rejection of the 

expert evidence by itself may not also warrant initiation of 

proceedings under Section 340 of CrPC - CrPC Section 340. 


Expert evidence and Witness of Fact - Expert evidence needs to be given 

a closer scrutiny and requires a different approach while initiating 

proceedings under Section 340 of CrPC- After all, it is an opinion 

given by an expert and a professional and that too especially 

when the expert himself has lodged a caveat regarding his 

inability to form a definite opinion without the required material - 

The duty of an expert is to furnish the court his opinion and the 

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reasons for his opinion along with all the materials - It is for the 

court thereafter to see whether the basis of the opinion is correct 

and proper and then form its own conclusion - But, that is not the 

case in respect of a witness of facts - Facts are facts and they 

remain and have to remain as such forever - The witness of facts 

does not give his opinion on facts; but presents the facts as such - 

However, the expert gives an opinion on what he has tested or on 

what has been subjected to any process of scrutiny - The 

inference drawn thereafter is still an opinion based on his 

knowledge - In case, subsequently, he comes across some 

authentic material which may suggest a different opinion, he must 

address the same, lest he should be branded as intellectually 

dishonest - Objective approach and openness to truth actually 

form the basis of any expert opinion - CrPC Section 340 . (2016)3 


Eye Witness – Family member - Unable to appreciate the contention that 

the eye-witnesses are only the family members and their 

testimonies are interested ones - Occurrence having taken place 

inside the house it is only the family members who could witness 

it- PW4 is an independent witness and he was also injured during 

the occurrence - His testimony corroborates the testimonies of 

other eye-witnesses. (2016)3 PLRSC 815 

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F 

FERA - Complaint - During pendency of the complaint, the Act (FERA) 

was repealed - The fact that the adjudicating officer chose to 

drop the proceedings against the appellant herein does not 

absolve the appellant of the criminal liability incurred by him by


virtue of the operation of Section 40 read with Section 56 of the 

Act - The offence under Section 56 read with Section 40 of the A 

renewal of ct is an independent offence - FERA. Held, If the factual 

allegations contained in the charge are to be proved eventually at 

the trial of the criminal case, the appellant is still liable for the 

punishment notwithstanding the fact that the presence of the 

appellant was required by the adjudicating officer in connection 

with an enquiry into certain alleged violations of the various 

provisions of the Act, but at a subsequent stage the adjudicating 

officer opined that there was either insufficient or no material to 

proceed against the appellant for the alleged violations of the Act, 

is immaterial. (2016)3 PLRSC 898 

FERA – Repeal - Complaint Quashed - Appeal pending – Appeal against 

the conclusion of the adjudicating officer that the proceedings 

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against the appellant herein for the alleged violation of the 

various provisions of the FERA Act are required to be dropped has 

not even attained finality - Admittedly, such an order of the 

adjudicating officer confirmed by the statutory appellate 

authority is pending consideration in an appeal before the High 

Court - Though, in our opinion, the result of such an appeal is 

immaterial for determining the culpability of the appellant for the 

alleged violation of Section 40 read with Section 56 (of the FERA 

Act) , we must record that the submission made on behalf of the 

appellant in this regard itself is inherently untenable. (2016)3 


FIR – Delay in lodging - Occurrence had taken place at about 2.00 p.m. on 

9.10.1983 and the complaint had been lodged at about 6.15 p.m. 

on the same day, on which the case came to be registered - As 

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mentioned in the FIR, the police station was situated at a distance 

of 54 kms. from the occurrence place - In such circumstances 

there is no delay in lodging the complaint – Criminal Trial. (2016)3 


G 

Good Samaritan – Rights - Accident cases require fastest care and rescue 

which could be provided by those closest to the scene of the 

accident. Bystanders clear support is essential to enhance the 

chances of survival of victim in the ‘Golden Hour’ i.e. the first hour 

of the injury - Direct that the court should not normally insist on 

appearance of Good Samaritans as that causes delay, expenses 

and inconvenience - The concerned court should exercise the 

power to appoint the Commission for examination of Good 

Samaritans in accordance with the provisions contained in section 

284 of the Code of Criminal Procedure, 1973 suo motu or on an 

application moved for that purpose, unless for the reasons to be 

recorded personal presence of good Samaritan in court is 

considered necessary. (2016)3 PLRSC 823 

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Good Samaritan – Rights - Notification dated 12.5.2015, 21.1.2016 

issued by the Ministry of Road Transport and Highways containing 

guidelines for protection of good Samaritans. (2016)3 PLRSC 823 

Guarantors - No reason why the Joint Memo, which states compromise 

arrived at between the Bank and the principal debtors, would not 

bind the guarantor when under the Clause she has admitted that 

any judgment or award obtained by the Bank against the principal 

debtor would bind the parties – Bank Loan. (2016)3 PLRSC 542 

H 

Hindu Minority and Guardianship Act, 1956, Section 8(1), 8(2)(a) - A bare


reading of Section 8(1) of the Act indicates that it empowers the 

natural guardian to do all the acts which are necessary or 

reasonable or proper for the benefit of the minor - Section 8(2)(a) 

of the Act prescribes that either the purchaser or the seller should 

obtain the permission of the District Court to transfer the 

property by sale – Permission of court not taken at the time of 

alienation - Hence, the present transaction on the face of it is in 

contravention of the mandatory provisions laid down by the Act - 

When once a transaction takes place in the name of the minor 

which is in contravention of the 1956 Act and which is not done 

for legal necessity, such transaction is voidable and unless such a 

transaction is sought to be impeached or set aside, the question 

of recovery of possession of that property does not arise. 


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Hindu Minority and Guardianship Act, 1956, Section 8(1), 8(2)(a) - 

Limitation Act, Section 7, Article 60 - A reading of Section 7 makes 

it clear that when one of several persons who are jointly entitled 

to institute a Suit or make an application for the execution of the 

decree and a discharge can be given without the concurrence of 

such person, time will run against all of them but when no such 

discharge can be given, time will not run against all of them until 

one of them becomes capable of giving discharge - In the case on 

hand at the time of the filing of the suit, the 1 st plaintiff was 20 

years old, the 2 nd Plaintiff was still a minor and the plaintiffs 3, 4 

and 5, who are married daughters, were aged 29, 27 and 25 

respectively, on the date of institution of the Suit - As per 

Explanation 2 of Section 7, the manager of a Hindu undivided 

family governed by Mithakshara law shall be deemed to be 

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capable of giving a discharge without concurrence of other 

members of family only if he is in management of the joint family 

property - In this case, plaintiffs 3 to 5 though majors as on the 

date of institution of Suit will not fall under Explanation 2 of 

Section 7 of the Limitation Act as they are not the manager or 

Karta of the joint family - The first plaintiff was 20 years old as on 

the date of institution of the Suit - Suit is instituted well within 

three years of limitation from the date of attaining majority as 

envisaged under Article 60 of the Limitation Act - Limitation Act 

Section 7, Articles 60, 109, 110 and 113. (2016)3 PLRSC 865 

I 

Ignorance - The mere fact of ignorance cannot be a valid ground - 

Settlement was not within the knowledge of the guarantor as she 

had not signed the joint memo signed by her son - C stood a 

guarantor – Property mortgaged to bank – High Court Lok Adalat 

passed an award whereunder the borrower agreed to pay amount 

as final settlement of the claim of the Bank - Settlement was not 

within the knowledge of the guarantor C as she had not signed 

the joint memo - One of her sons N has signed it - Her advocate 

has also signed the Joint Memo - Only later she learnt that the 

property has been ordered to be sold by auction - Also learnt 

about the signing of Joint Memo by N (her son) and the Bank - 

The respondent, and her son, who signed the joint memo, were 

residing in the same house - No reason why the Respondent 

would not know of the joint memo, when she could have by 

reasonable means made herself aware of the proceedings. 


1077 



Indian Contract Act, 1872, Section 128 - Guarantor - Liability of - The 

legislature has succinctly stated that the liability of the guarantor 

is co-extensive with that of the principal debtor unless it is 

otherwise provided by the contract - The only exception to the 

nature of the liability of the guarantor is provided in the Section 

itself, which is only if it stated explicitly to be otherwise in the 

Contract - It is the prerogative of the Creditor alone whether he 

would move against the principal debtor first or the surety, to 

realize the loan amount - The guarantor cannot escape from her 

liability as a guarantor for the debt taken by the principal debtor - 

Loan agreement,- There is no clause which shows that the liability 

of the guarantor is not co-extensive with the principal debtor - 

Banking. (2016)3 PLRSC 542 

Indian Evidence Act, 1872, see Evidence Act, 1872. 

1078 


Indian Penal Code, (1860) Section 149 - Common Object – Common 

Intention to kill – Can arise at the spur of the moment – Even if it 

is assumed that there was no common object of killing, but only 

of stopping the deceased and others from contesting the elections 

- It cannot be ruled out that the common intention to kill might 

have arisen on the spur of the moment - The actions of the 

appellants and the injuries inflicted on the body of the deceased 

also go to substantiate the same . Held, Indian Penal Code, 

Section 149 has essentially two ingredients viz. (i) offence 

committed by any member of an unlawful assembly consisting of 

five or more members, and (ii) such offence must be committed in 

prosecution of the common object under Section 141 IPC) of the 

assembly or members of that assembly knew to be likely to be 

committed in prosecution of the common object - For ‘common 

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object’, it is not necessary that there should be prior concert in 

the sense of a meeting of the members of the unlawful assembly, 

the common object may form on the spur of the moment; it is 

enough if it is adopted by all the members and is shared by all of 

them - Ramachandran and Ors. v. State of Kerala, (2011) 9 SCC 

257, relied. (2016)3 PLRSC 588 

Indian Penal Code, 1860 (XLV of 1860) – Alibi - Ocular testimony of eye 

witness - 3 injured eye witnesses have deposed in the present 

case - It is a case of day light incident - Injuries on the person of 

said eye witnesses have been corroborated by other witnesses - 

Ocular testimony of eye witnesses cannot be discarded lightly - 

Once the prosecution has discharged its burden, the burden to 

prove that accused was not present with other accused at the 

place of incident and had gone elsewhere, lies on him - Injured 

eye witnesses have assigned specific role as to how he assaulted S 

who suffered ante mortem injuries which gets corroborated from 

the autopsy report - Defence plea of accused - There is no cavil 

over the fact that accused was posted as Lab Assistant with the 

Senior Secondary School - It is proved on the record that in the 

proceedings under Section 107/151 of Cr.PC before Executive 

Magistrate, he was to be present in said case on 17.02.1995 - His 

presence and role is narrated in detail by the injured eye 

witnesses - In view of his role in the incident narrated by the eye 

witnesses, it is hard to believe that after moving application on 

16.02.1995 for casual leave for 17.02.1995, accused attended the 

school next day in the first half and sought half day leave 

thereafter - The attendance register was not seized immediately 

1079 



after the incident - His plea of alibi is vacillating - Accused has 

taken false plea of alibi. (2016)3 PLRSC 967 

Indian Penal Code, 1860 (XLV of 1860) - Alleged delay in forwarding the 

F.I.R to the Magistrate - There was no material on record to show 

or suggest that the F.I.R was tampered or it was fabricated at a 

later date by antedating it or the delay in sending the F.I.R or the 

delay in placing it before SDJM by the Sub Inspector of Police or 

the delay in signing the F.I.R by SDJM was so very vital to doubt 

the case of the prosecution. (2016)3 PLRSC 108 

Indian Penal Code, 1860 (XLV of 1860) - “shall also be liable to fine” - 

Clause “shall also be liable to fine”, in the context of Indian Penal 

Code may be capable of being treated as directory and thus 

conferring on the court a discretion to impose sentence of fine 

also in addition to imprisonment although such discretion stands 

1080 


somewhat impaired as per the view taken by this Court in the 

case of Zunjarrao Bhikaji Nagarkar v. Union of India (1999) 7 SCC 

409 - But clearly no minimum fine is prescribed for the offences 

under the IPC nor that Act was enacted with the special purpose 

of preventing economic offences as was the case in Chern Taong 

Shang v. S.D. Baijal (1988) 1 SCC 507 - Employees’ State Insurance 

Corporation Act, 1948, Section 85(a)(i)(b), is an economic offence 

and therefore the Legislature has not only fixed a minimum term 

of imprisonment but also a fixed amount of fine of five thousand 

rupees under Section 85(a)(i)(b) of the Act. (2016)3 PLRSC 520 

Indian Penal Code, 1860 (XLV of 1860) Chapter IV - Alibi - The word 

alibi means "elsewhere" - Plea of alibi is not one of the General 

Exceptions contained in Chapter IV of IPC - It is a rule of evidence 

recognized under Section 11 of the Evidence Act - However, plea 

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of alibi taken by the defence is required to be proved only after 

prosecution has proved its case against the accused –Evidence 

Act, Section 11. (2016)3 PLRSC 967 

Indian Penal Code, 1860 (XLV of 1860) Section 149 - Provisions of 

Section 149 of the IPC are no longer available to the prosecution 

for convicting the appellants whose number is reduced to 4 

consequent upon the acquittal of the remaining accused persons - 

It is a case which, in our opinion, falls more appropriately in 

situation three where the prosecution had named all those 

constituting the unlawful assembly, but, only four of those named 

were eventually convicted, thereby reducing the number to less 

than five - There is no evidence to suggest that any one, apart 

from the persons named in the charge-sheet were members of 

the unlawful assembly, but, were either not available or remained 

unidentified - Such being the position, the conviction of the 

appellants with the help of Section 149 of the IPC does not appear 

to be legally sustainable. (2016)3 PLRSC 632 

1081 


Indian Penal Code, 1860 (XLV of 1860) Section 149 - Unlawul assembly 

- Section 149, at the very outset it refers to participation of each 

member of an unlawful assembly, it has to be necessarily shown 

that there was an assembly of five or more persons, which is 

designated as unlawful assembly under Section 149 I.P.C. - When 

once, such a participation of five or more persons is shown, who 

indulge in an offence as a member of such an unlawful assembly, 

for the purpose of invoking Section 149, it is not necessary that 

there must be specific overt act played by each of the member of 

such an unlawful assembly in the commission of an offence - 

What is required to be shown is the participation as a member in


pursuance of a common object of the assembly or being a 

member of that assembly, such person knew as to what is likely to 

be committed in prosecution of any such common object - In the 

event of the proof of showing of either of the above conduct of a 

member of an unlawful assembly, the offence, as stipulated in 

Section 149, will stand proved . (2016)3 PLRSC 108 

Indian Penal Code, 1860 (XLV of 1860) Section 149 - Unlawul assembly - 

Convinced that the implication of all the five accused was 

perfectly justified and was supported by legal evidence as was 

spoken to by the relevant witnesses which was duly corroborated 

by the medical evidence - Therefore, mere non mentioning of two 

of the names in the F.I.R cannot be fatal to the case of the 

prosecution. (2016)3 PLRSC 108 

Indian Penal Code, 1860 (XLV of 1860) Section 149 - Unlawful assembly - 

1082 


It is not disputed that the accused persons were present at the 

site of the incident and were armed with deadly weapons - They 

had shared the common intention of stopping the deceased from 

contesting for the elections - These circumstances are indicative 

of the fact that all the accused persons, at that time, were the 

members of unlawful assembly because their common object was 

to threaten and prevent the deceased and other persons from 

contesting the College elections. (2016)3 PLRSC 588 

Indian Penal Code, 1860 (XLV of 1860) Section 300 clause (3), 302 IPC 

304 Part I - Condition of deceased at time of admission in hospital 

was serious and injuries received in the head was dangerous to his 

life – Doctor opined that condition of the deceased at the time of 

discharge from hospital was not critical and his condition was 

stable - Apparent that the death occurred sixty two days after the 

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occurrence due to septicaemia and it was indirectly due to the 

injuries sustained by the deceased caused in the incident - 

Prosecution failed to elicit from the Doctor that the head injury 

sustained by the deceased was sufficient in the ordinary course of 

nature to cause death - Having regard to the fact that deceased 

survived for sixty two days and that his condition was stable when 

he was discharged from the hospital, the court cannot draw an 

inference that the intended injury caused was sufficient in the 

ordinary course of nature to cause death so as to attract clause (3) 

of Section 300 IPC - Conviction under Section 302 IPC modified to 

Section 304 Part I IPC. (2016)3 PLRSC 976 

Indian Penal Code, 1860 (XLV of 1860) Section 300 Exception 4 - In 

terms of explanation to Exception 4, it is immaterial in such cases 

which party offers the provocation or commits the first assault. 


Indian Penal Code, 1860 (XLV of 1860) Section 300 Exception 4 - Keeping 

in view the nature of the injury, the vital part of the body on 

which the same was inflicted and the weapon used by the 

accused, and the medical evidence, that the said injury was 

sufficient in the ordinary course to cause death, culpable 

homicide would tantamount to murder but for the application of 

Exception 4 to Section 300 - The circumstances of the case leave 

no manner of doubt that the incident was without any premeditation 

and a sudden fight upon a sudden quarrel - The 

injuries upon the deceased were inflicted in the heat of passion 

and without the appellant taking any undue advantage or acting 

in a cruel or unusual manner - The fact situation of the case, 

therefore, attracts Exception 4 especially when in terms of 

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explanation to Exception 4, it is immaterial in such cases which 

party offers the provocation or commits the first assault - Offence 

committed by the author of the injury is not murder but culpable 

homicide not amounting to murder punishable under Section 304 

of the IPC. (2016)3 PLRSC 632 

Indian Penal Code, 1860 (XLV of 1860) Section 300, 302 IPC, 304 Part 1 

- Intention is different from motive - It is the intention with 

which the act is done that makes a difference in arriving at a 

conclusion whether the offence is culpable homicide or murder - 

Emphasis in Section 300 (3) IPC is on the sufficiency of the injury 

in the ordinary course of nature to cause death - Sufficiency is the 

high probability of death in the ordinary course of nature - When 

the sufficiency exists and death follows, causing of such injury is 

intended and causing of such offence is murder - For ascertaining 

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the sufficiency of the injury, sometimes the nature of the weapon 

used, sometimes the part of the body on which the injury is 

caused and sometimes both are relevant - Depending on the 

nature of weapon used and situs of the injury, in some cases, the 

sufficiency of injury to cause death in the ordinary course of 

nature must be proved and cannot be inferred from the fact that 

death has, in fact, taken place - Appellant emerged carrying pistol 

in his hand and fired at the deceased - The weapon used and the 

manner in which attack was made and the injury was inflicted due 

to premeditation clearly establish that the appellant intended to 

cause the injury - Once it is established that the accused 

intentionally inflicted the injury, then the offence would be 

murder, if it is sufficient in the ordinary course of nature to cause 

the death- Injury was on the inner part of left thigh, which is the 

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non-vital organ - Sufficiency of injury to cause death must be 

proved and cannot be inferred from the fact that death has taken 

place - Prosecution has not elicited from the doctors that the 

gunshot injury on the inner part of left thigh caused rupture of 

any important blood vessel and that it was sufficient in the 

ordinary course of nature to cause the death - Conviction 

converted form Section 302 IPC to Section 304 Part 1 IPC. (2016)3 


Indian Penal Code, 1860 (XLV of 1860) Section 302 read with Section 

149 - Legal principles regarding powers of the appellate Court 

while dealing with an appeal against an order of acquittal 

reiterated. Held, that five general principles in Chandrappa and 

Ors. v. State of Karnataka, (2007) 4 SCC 415, as follows: An 

appellate court has full power to review, reappreciate and 

reconsider the evidence upon which the order of acquittal is 

founded. The Code of Criminal Procedure, 1973 puts no 

limitation, restriction or condition on exercise of such power and 

an appellate court on the evidence before it may reach its own 

conclusion, both on questions of fact and of law. Various 

expressions, such as, ‘substantial and compelling reasons’, ‘good 

and sufficient grounds’, ‘very strong circumstances’, ‘distorted 

conclusions’, ‘glaring mistakes’, etc. are not intended to curtail 

extensive powers of an appellate court in an appeal against 

acquittal. Such phraseologies are more in the nature of ‘flourishes 

of language’ to emphasise the reluctance of an appellate court to 

interfere with acquittal than to curtail the power of the court to 

review the evidence and to come to its own conclusion. An 

appellate court, however, must bear in mind that in case of 

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acquittal, there is double presumption in favour of the accused. 


fundamental principle of criminal jurisprudence that every person 

shall be presumed to be innocent unless he is proved guilty by a 

competent court of law. Secondly, the accused having secured his 

acquittal, the presumption of his innocence is further reinforced, 

reaffirmed and strengthened by the trial court. If two reasonable c 

onclusions are possible on the basis of the evidence on record, 

the appellate court should not disturb the finding of acquittal 

recorded by the trial court.” (2016)3 PLRSC 554 

Indian Penal Code, 1860 (XLV of 1860) Section 302 - Evidence Act, 

Section 106 - When an offence like murder is committed in 

secrecy inside a house, the initial burden to establish the case 

would undoubtedly be upon the prosecution - In view of Section 

1086 


106 of the Evidence Act, there will be a corresponding burden on 

the inmates of the house to give cogent explanation as to how the 

crime was committed - The inmates of the house cannot get 

away by simply keeping quiet and offering no explanation on the 

supposed premise that the burden to establish its case lies 

entirely upon the prosecution and there is no duty at all on the 

accused to offer - On the date of occurrence, when accused and 

his father were in the house and when the father of the accused 

was found dead, it was for the accused to offer an explanation as 

to how his father sustained injuries - When the accused could not 

offer any explanation as to the homicidal death of his father, it is a 

strong circumstance against the accused that he is responsible for 

the commission of the crime. (2016)3 PLRSC 393 

Indian Penal Code, 1860 (XLV of 1860) Section 304 Part I - Act 

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committed was with intention to cause death or of causing such 

bodily injury as was likely to cause death - That even when the act 

may not have been committed with the intention of causing 

death, the same was intended to cause such bodily injury as was 

likely to cause death, within the meaning of Section 304 Part I. 


Indian Penal Code, 1860 (XLV of 1860) Section 304 part II - We find that 

punishment of five years appears to be just and proper - It could 

have been even more because eventually the incident resulted in 

death of a person though the appellant did not intend to cause 

death of deceased - In the absence of any cross appeal by the 

State on the issue of quantum of sentence, we do not therefore 

consider it to be proper to go into the question of adequacy of 

sentence in this appeal filed by the accused. (2016)3 PLRSC 752 

Injunction - Injunction could not be claimed when plaintiffs stand 

dispossessed from the suit property prior to the filing of the suit - 

The question of establishing settled possession did not, therefore, 

arise in relation to the properties that already stood cleared of 

any structures by demolition of whatever stood on the same – 

Property was vacant as on the date of the filing of the suit there 

was no question of the plaintiffs claiming settled possession of the 

said property. (2016)3 PLRSC 801 

1087 


Interest on refund of registration amount - Rate of interest payable on 

refund of registration amount - Delhi Development Authority - 

Refunded the registration amount along with only 7% interest in 

terms of the offer document – Upheld - No material for coming to 

the finding by the MRTP that payment of interest on the 

registration amount should not be less than one charged from the

1088 



applicants when they commit a default - A default clause is 

introduced to deter any delay or default and hence such penalty is 

by its very nature a deterrent one - That by itself offers a 

reasonable justification for the appellant to charge a higher rate 

of interest in the case of delay/default - So far as interest on the 

registration amount is concerned it stands on a different footing - 

The relevant provision in the Brochure of the 1985 scheme by 

itself does not appear to be unreasonable in allowing interest @ 

7% p.a. - Nothing has been brought to our notice which may show 

that the registration amount is to remain locked for any fixed 

term or that the appellant can refuse an application for 

cancellation of registration at an early stage or even before draw 

of lots for allotment/allocation of flats - In such a situation it is not 

possible to infer that the registration deposits must reasonably be 

kept in long term fixed deposits with a view to earn higher 

interests. (2016)3 PLRSC 954 

Interpretation - Principle of - It is well settled principle of interpretation 

that inconvenience and hardship to a person will not be the 

decisive factors while interpreting the provision - When bare 

reading of the provision makes it very clear and unequivocally 

gives a meaning it was to be interpreted in the same sense as the 

Latin maxim says "dulo lex sed lex", which means the law is hard 

but it is law and there cannot be any departure from the words of 

the law. Held, The High Court as well as the Trial Court erred in 

applying Article 109 of the Limitation Act, where Article 109 of the 

Act clearly speaks about alienation made by father governed by 

Mitakshara law and further Courts below proceeded in discussing 

about the long rope given under Article 109 of the Limitation Act 

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of 12 years and comparatively lesser time of 3 years specified 

under Article 60 of the Act. (2016)3 PLRSC 865 

Interpretation of statutes - The law is well settled that when the 

wordings of the Stature are clear, no interpretation is required 

unless there is a requirement of saving the provisions from vice of 

unconstitutionality or absurdity. (2016)3 PLRSC 520 

J 

Judgement – Ratio decidendi - Random sentences have been picked up 

from the judgment and used, without any attempt to understand 

the true purport of the judgment in its entirety - It is a well settled 

position of law that a word or sentence cannot be picked up from 

a judgment to construe that it is the ratio decidendi on the 

relevant aspect of the case - It is also a well settled position of 

law that a judgment cannot be read as a statute and interpreted 

and applied to fact situations. (2016)3 PLRSC 57 

Juvenile Justice (Care and Protection of children) Act, 2000, Section 2(k), 

7(a) - The appellant falls within the definition of “juvenile” under 

Section 2(k) of the Juvenile Justice (Care and Protection of 

children) Act, 2000 - He can raise the plea of juvenility at any time 

and before any court as per the mandate of Section 7(a) and has 

rightly done so. (2016)3 PLRSC 562 

1089 


L 

Land Acquisition Act, 1894 - Delay - Review application - Review 

application filed before the High Court dismissed on the ground 

of delay of 706 days in filing - Delay of 1705 days before the 

Supreme Court – Relates to claim made for enhancement of 

compensation - Review application was filed before the High


Court seeking land value at the rate of as was granted to the 

adjoining property - Appeals allowed - Appellants shall be entitled 

to land value fixed for adjoining land - However, the appellants 

shall not be entitled for any statutory benefits for a period of 

2411 days covered by delay before the High Court as well as 

before this Court. (2016)3 PLRSC 448 

Land Acquisition Act, 1894 - In view of the efflux of time - Do not think it 

would be proper to consider the matter on merits - Appeal 

disposed of directing the respondent State to allot and hand over 

a plot as per Rehabilitation and Resettlement Policy of the 

Government within a period of twelve weeks from today - In case 

the same is not done within twelve weeks, the appellant will be 

entitled to additional compensation of Rs.1,000/- per day till it is 

handed over. (2016)3 PLRSC 121 

1090 



under Lal Dora in terms of letter of the Finance Minister of 

Haryana - High Powered Committee turned down the request on 

the ground that possession of the property had already been 

taken, pursuant to Award and that the same had already been 

handed over to Haryana Urban Development Authority - There 

being no Rojnama to show that the physical possession had 

already been taken, nor any pleadings in that regard - Find it 

difficult to appreciate the submission made by the State that the 

possession had already been taken and handed over to HUDA - 

Unless the property is taken possession of, in accordance with 

law, there arises no question of handing over the property to 

HUDA - Symbolic possession, as has been held in Raghbir Singh 

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Sehrawat v. State of Haryana and others,***, (2012) 1 SCC 792 

will not serve the purpose . (2016)3 PLRSC 487 

Land Acquisition Act, 1894 – Panchnama - It is settled that one of the 

modes of taking possession is by drawing a Panchnama. Tamil 

Nadu Housing Board v. A. Viswam (dead) by Lrs. AIR 1996 SC 3377 

and Larsen & Toubro Ltd. v. State of Gujarat and Ors. AIR 1998 SC 

1608, relied. (2016)3 PLRSC 801 


statutory benefits - Appellants could not be denied the statutory 

benefits available under the Act, in respect of the value of this 

land fixed, merely because there was a period of stay operating, 

may be in a proceeding at the instance of the appellants - Those 

are not relevant considerations or factors at all for the purpose of 

grant of statutory benefits available to a person, whose land has 

been acquired in terms of Section 28 of the Act - There is no 

exclusion of any period contemplated on whatever account under 

Section 28 of the Act - The only reference is to the date of 

dispossession - Liability to pay interest starts to run from that 

date. (2016)3 PLRSC 384 

Land Acquisition Act, 1894 Section 4 - Sale after notification under S. 4 - 

Plaintiff said to have purchased the suit property in terms of a sale 

deed long after the issue of the preliminary notification published 

in July 1984 - Legal position about the validity of any such sale, 

post issue of a preliminary notification is fairly well settled - The 

sale in such cases is void and non-est in the eyes of law giving to 

the Vendee the limited right to claim compensation and no more - 

Land Acquisition Act, 1894. U.P. Jal Nigam v. Kalra Properties Pvt. 

Ltd. AIR 1996 SC 1170, referred. (2016)3 PLRSC 801 

1091 



Limitation Act, 1963 - Neither confers a right nor an obligation to file a 

Suit, if no such right exists under the substantive law - It only 

provides a period of limitation for filing the Suit. (2016)3 PLRSC 

865 

Limitation Act, 1963 Section 4(1) - Whether the appellants are entitled to 

interest for the period from the date of dispossession to the date 

of Notification under Section 4(1) - Award additional interest by 

way of damages, at the rate of 15% per annum for the period 

between 1.7.1984, the date when the appellants were dispossessed 

till 2.9.1993, the date of Notification under Section 4(1) 

of the Act. (2016)3 PLRSC 472 

Limitation Act, 1963 Section 5 - It is well settled that the expression 

‘sufficient cause’ is to receive liberal construction so as to advance 

substantial justice. When there is no negligence, inaction or want 

1092 


of bonafide is imputable to the appellants, the delay has to be 

condoned - The discretion is to be exercised like any other judicial 

discretion with vigilance and circumspection - The discretion is not 

to be exercised in any arbitrary, vague or fanciful manner - The 

true test is to see whether the applicant has acted with due 

diligence. (2016)3 PLRSC 647 

Limitation Act, 1963 Section 7, Article 60 - A reading of Section 7 makes 

it clear that when one of several persons who are jointly entitled 

to institute a Suit or make an application for the execution of the 

decree and a discharge can be given without the concurrence of 

such person, time will run against all of them but when no such 

discharge can be given, time will not run against all of them until 

one of them becomes capable of giving discharge - In the case on 

hand at the time of the filing of the suit, the 1 st plaintiff was 20 

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years old, the 2 nd Plaintiff was still a minor and the plaintiffs 3, 4 

and 5, who are married daughters, were aged 29, 27 and 25 

respectively, on the date of institution of the Suit - As per 

Explanation 2 of Section 7, the manager of a Hindu undivided 

family governed by Mithakshara law shall be deemed to be 

capable of giving a discharge without concurrence of other 

members of family only if he is in management of the joint family 

property - In this case, plaintiffs 3 to 5 though majors as on the 

date of institution of Suit will not fall under Explanation 2 of 

Section 7 of the Limitation Act as they are not the manager or 

Karta of the joint family - The first plaintiff was 20 years old as on 

the date of institution of the Suit - Suit is instituted well within 

three years of limitation from the date of attaining majority as 

envisaged under Article 60 of the Limitation Act - Limitation Act 

Section 7, Articles 60, 109, 110 and 113 - Hindu Minority and 

Guardianship Act, 1956, Section 8(1), 8(2)(a). (2016)3 PLRSC 865 

Limitation Act, 1963 Article 60 - Would indicate that it applies to Suits 

by a minor who has attained majority and further by his legal 

representatives when he dies after attaining majority or from the 

death of the minor - The broad spectrum of the nature of the Suit 

is for setting aside the transfer of immovable property made by 

the guardian and consequently, a Suit for possession by avoiding 

the transfer by the guardian in violation of Section 8(2) of the 

1956 Act - In essence, it is nothing more than seeking to set aside 

the transfer and grant consequential relief of possession - There 

cannot be any doubt that a Suit by quondam minor to set aside 

the alienation of his property by his guardian is governed by 

Article 60 - To impeach the transfer of immovable property by the 

1093 



Guardian, the minor must file the Suit within the prescribed 

period of three years after attaining majority - We are of the 

considered opinion that a quondam minor plaintiff challenging 

the transfer of an immovable property made by his guardian in 

contravention of Section 8(1)(2) of the 1956 Act and who seeks 

possession of property can file the Suit only within the limitation 

prescribed under Article 60 of the Act and Articles 109, 110 or 113 

of the Act are not applicable to the facts of the case. (2016)3 


1094 


Limitation Act, 1963 Article 109 - Alienation made by mother of minors 

after death of father - After the death of the Father (2 nd 

defendant's husband) automatically the Mother (2 nd defendant) 

becomes a natural guardian to her children - Finding that as she 

was not the guardian appointed on the day to alienate the Suit 

schedule property therefore Article 109 of the Act applies which 

gives 12 years limitation from the day the alienee takes 

possession of the property and the alienation made by the father 

of ancestral property of the Hindus who are governed by 

Mitakshara law, and that the Suit is well within limitation, cannot 

be sustained. (2016)3 PLRSC 865 

Limitation Act, 1963 Article 137 – Cause of action arises when the real 

dispute arises i.e. when one party asserts and the other party 

denies any right - Cause of action in the present case is the claim 

of the claimant to the determination of base year for the 

purposes of escalation and the calculation made thereon, and the 

refusal of the appellant to pay as per the calculations - Arbitration 

Act, 1996. (2016)3 PLRSC 348 

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M 

Maharashtra Control of Organised Crime Act, 1999, Section 3 - Criminal 

Trial - The High Court was, therefore, right in holding that Section 

3 of the MCOCA could not be invoked only on the basis of the 

previous charge sheets for Section 3 would come into play only if 

the respondents were proved to have committed an offence for 

gain or any pecuniary benefit or undue economic or other 

advantage after the promulgation of MCOCA - Offences which the 

respondents are alleged to have committed after the 

promulgation of MCOCA were not proved against them - 

Commission of offences prior to the enactment of MCOCA does 

not by itself constitute an offence under MCOCA . Held, 

Registration of cases, filing of charge sheets and taking of 

cognizance by the competent court in relation to the offence 

alleged to have been committed by the respondents in the past is 

but one of the requirements for invocation of Section 3 of the 

MCOCA. Continuation of unlawful activities is the second and 

equally important requirement that ought to be satisfied. It is only 

if an organised crime is committed by the accused after the 

promulgation of MCOCA that he may, seen in the light of the 

previous charge sheets and the cognizance taken by the 

competent court, be said to have committed an offence under 

Section 3 of the Act. (2016)3 PLRSC 960 

1095 


Maharashtra Rent Control Act, 1999 - In terms of Section 55(2) of the 

special law in the instant case, which is the Rent Control Act, the 

onus to get such a deed registered is on the landlord. (2016)3 


Mens Rea - In taxing statutes - There is a rebuttable presumption that

1096 



mens rea is essential ingredient in every offence - For examining 

whether mens rea is essential for an offence created under a tax 

Statute, three factors require particular attention, (i) the object 

and scheme of the Statute; (ii) the language of the section; and 

(iii) the nature of penalty – Appellant, in the eyes of the 

Authorities has submitted incorrect return leading to imposition 

of penalty in accordance with the relevant clauses - Considering 

that the situation of dispute arose on account of amendments in 

the Schedule in 1993 and was confined only to immediate two 

assessment years and also considering that the appellant had a 

good arguable case even in this Court which had stayed the 

penalty orders, we find that the return submitted by the appellant 

was on account of bona fide belief in correctness of appellant’s 

stand that the goods in question were chargeable only at the rate 

of 3% - In the facts of the case it would not be proper to hold that 

the appellant had submitted a return which was incorrect to its 

knowledge or belief - Only after the outcome of the legal dispute 

by virtue of this judgment, the authorities can be justified in 

holding henceforth that the return was incorrect - In such a 

situation it would not be just and proper exercise of discretion to 

hold the appellant guilty of submitting incorrect return so as to 

attract penalty for the same - Set aside the balance dues of 

penalty - Tamil Nadu General Sales Tax Act, 1959, Entry 14, 50 - 

Sales Tax. (2016)3 PLRSC 400 

Mistake - Arithmetical mistake and Clerical mistake - An arithmetical 

mistake is a mistake in calculation, while a clerical mistake is a 

mistake of writing or typing error occurring due to accidental slip 

or omissions or error due to careless mistake or omission - 

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Substituting different lands in place of the lands which have been 

notified by a statutory Notification under Section 10(1), 10(3) and 

10(5) of the Urban Land (Ceiling and Regulation) Act, 1976 cannot 

and shall not be done by issuing a corrigendum unless the 

mandatory requirements contained in the aforementioned 

sections is complied with - A land holder cannot be divested from 

his land on the plea of clerical or arithmetical mistake liable to be 

corrected by issuing corrigendum - Urban Land (Ceiling and 

Regulation) Act, 1976, Section 10. (2016)3 PLRSC 265 

Monopolies and Restrictive Trade Practices Act, 1969 - Contractual rate 

of interest - The MRTP Commission has clearly erred in interfering 

with the contractual rate of interest in absence of any finding 

against the actions and orders of the appellant - Without 

returning a finding that there was any unfair trade practice or any 

restrictive/monopolistic trade practice pursuant to inquiry under 

the provisions of the Act, the Commission clearly erred in 

compensating the respondent with a higher rate of interest. 


1097 


Motor Vehicle Act, 1988 (59 of 1988) - Claimant has right to recover the 

compensation from both or any one of the joint Tort feasors. 


Motor Vehicle Act, 1988 (59 of 1988) – Liability – Joint tort feasors - 

Suffice it to clarify that even if all the joint tort feasors are 

impleaded and both the drivers have entered the witness box and 

the tribunal or the court is able to determine the extent of 

negligence of each of the driver that is for the purpose of inter se 

liability between the joint tort feasors but their liability would 

remain joint and several so as to satisfy the plaintiff/claimant.



Motor Vehicle Act, 1988 (59 of 1988) - Negligence - Contributory and 

Composite negligence - Difference between - In the case of 

contributory negligence, a person who has himself contributed to 

the extent cannot claim compensation for the injuries sustained 

by him in the accident to the extent of his own negligence; 

whereas in the case of composite negligence, a person who has 

suffered has not contributed to the accident but the outcome of 

combination of negligence of two or more other persons. 


Motor Vehicle Act, 1988 (59 of 1988) - Tort Feasors - Joint Tort Feasors 

- Remedies available to one of the joint tort feasors from whom 

compensation has been recovered - When the other joint tort 

feasor has not been impleaded, obviously question of negligence 

1098 


of non-impleaded driver could not be decided, apportionment of 

composite negligence cannot be made in the absence of 

impleadment of joint tort feasor - It would be open to the 

impleaded joint tort feasors after making payment of 

compensation, so as to sue the other joint tort feasor and to 

recover from him the contribution to the extent of his negligence 

- In case when both the tort feasors are before the court/tribunal, 

if evidence is sufficient, it may determine the extent of their 

negligence so that one joint tort feasor can recover the amount so 

determined from the other joint tort feasor in the execution 

proceedings, whereas the claimant has right to recover the 

compensation from both or any one of them.Held, that what 

emerges from the aforesaid discussion is as follows : (i) In the case 

of composite negligence, plaintiff/claimant is entitled to sue both 

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or any one of the joint tort feasors and to recover the entire 

compensation as liability of joint tort feasors is joint and several. 


compensation between two tort feasors vis a vis the 

plaintiff/claimant is not permissible. He can recover at his option 

whole damages from any of them. (iii) In case all the joint tort 

feasors have been impleaded and evidence is sufficient, it is open 

to the court/tribunal to determine inter se extent of composite 

negligence of the drivers. However, determination of the extent 

of negligence between the joint tort feasors is only for the 

purpose of their inter se liability so that one may recover the sum 

from the other after making whole of payment to the 

plaintiff/claimant to the extent it has satisfied the liability of the 

other. In case both of them have been impleaded and the 

apportionment/ extent of their negligence has been determined 

by the court/tribunal, in main case one joint tort feasor can 

recover the amount from the other in the execution proceedings. 


determine the extent of composite negligence of the drivers of 

two vehicles in the absence of impleadment of other joint tort 

feasors. In such a case, impleaded joint tort feasor should be left, 

in case he so desires, to sue the other joint tort feasor in 

independent proceedings after passing of the decree or award. 


1099 


Motor Vehicle Act, 1988 (59 of 1988) - Whether for the drivers having 

licence to drive light motor vehicles there is a necessity of 

obtaining endorsement to drive the transport vehicle when the 

transport vehicle is of class of light motor vehicle - Following

1100 



questions are required to be referred to larger Bench: 1. What is 

the meaning to be given to the definition of “light motor vehicle” 

as defined in section 2(21) of the MV Act ? Whether transport 

vehicles are excluded from it ? 2. Whether ‘transport vehicle’ and 

‘omnibus’ the “gross vehicle weight” of either of which does not 

exceed 7500 kgs. would be a “light motor vehicle” and also motorcar 

or tractor or a road roller, “unladen weight” of which does not 

exceed 7500 kgs. and holder of licence to drive class of “light 

motor vehicle” as provided in section 10(2)(d) would be 

competent to drive a transport vehicle or omnibus, the “gross 

vehicle weight” of which does not exceed 7500 kgs. or a motorcar 

or tractor or road roller, the “unladen weight” of which does 

not exceed 7500 kgs. ? 3. What is the effect of the amendment 

made by virtue of Act No.54 of 1994 w.e.f. 14.11.1994 while 

substituting clauses (e) to (h) of section 10(2) which contained 

“medium goods vehicle”, “medium passenger motor vehicle”, 

“heavy goods vehicle” and “heavy passenger motor vehicle” by 

“transport vehicle”? Whether insertion of expression ‘transport 

vehicle’ under section 10(2)(e) is related to said substituted 

classes only or it also excluded transport vehicle of light motor 

vehicle class from purview of Sections 10(2)(d) and 2(41) of the 

Act? 4. What is the effect of amendment of the Form 4 as to 

operation of the provisions contained in section 10 as amended in 

the year 1994 and whether procedure to obtain driving licence for 

transport vehicle of class of “Light Motor Vehicle” has been 

changed ? (2016)3 PLRSC 298 

Motor Vehicles Act, 1998 (59 of 1988) - Compensation - In the absence 

of any statutory and a straight jacket formula, there are bound to 

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be grey areas despite several attempts made by this Court to lay 

down the guidelines - Compensation would basically depend on 

the evidence available in a case and the formulas shown by the 

courts are only guidelines for the computation of the 

compensation - That precisely is the reason the courts lodge a 

caveat stating “ordinarily”, “normally”, “exceptional 

circumstances”, etc., while suggesting the formula. (2016)3 


Motor Vehicles Act, 1998 (59 of 1988) - Deceased - Aged 30 years – 

Bachelor - Deduction of 50% towards the personal and living 

expenses – Future prospects 50% - Multiplier, in the case of the 

age of the deceased between 26 to 30 years is 17 - Bachelor. 


N 


disputed taking any loan from the complainant – Pleaded she 

never visited the place of complainant and never borrowed any 

money and claimed there were differences with the complainant 

in the year 2006 – That the cheque was given in the year 1999 as 

security - Cheque leaf itself mentioned the date in printed ink as 

“__/__/199__” - Transaction was in 2006 - Cheque has not been 

disputed nor the signature of the defendant on it - Accused has 

come up with a story that the cheque was given to the 

complainant long back in 1999 as a security to a loan, the loan 

was repaid but the complainant did not return the security 

cheque - It may be noted that the cheque was dishonoured 

because the payment was stopped and not for any other reason - 

Implies that the accused had knowledge of the cheque being 

1101 



presented to the bank, or else how would the accused have 

instructed her banker to stop the payment – Conviction upheld. 


Negotiable Instruments Act, 1881 (26 of 1881) Section 138 – Security 

Cheque - Cheque leaf itself mentioned the date in printed ink as 

“__/__/199__” - Transaction was in 2006 - However, we are of 

the view that by itself, in absence of any other evidence, cannot 

be conclusive of the fact that the cheque was issued in 1999 - The 

date of the cheque was as such 20/05/2006. (2016)3 PLRSC 536 

Negotiable Instruments Act, 1881 (26 of 1881) Section 138 – We see 

that from the bare text of the Section it has been stated clearly 

that the person, who draws a cheque on an account maintained 

by him, for paying the payee, alone attracts liability. (2016)3 


1102 


Negotiable Instruments Act, 1881 (26 of 1881) Section 138 – Complaint 

had dealing with SI - Cheque was drawn by the accused in his 

individual capacity and not in the capacity as a Director of SI - 

Accused can be made liable under Section 138 of the NI Act, even 

though the Company had not been named in the notice or the 

complaint - There was no necessity for the appellant to prove that 

the said respondent was incharge of the affairs of the company, 

by virtue of the position he held - Thus, we hold that the 

respondent is liable for the offence under Section 138 of the NI 

Act. Held, The Respondent has adduced the argument that in the 

complaint the appellant has not taken the averment that the 

accused was the person incharge of and responsible for the affairs 

of the Company. However, as the respondent was the Managing 

Director of SI and sole proprietor of SB, there is no need of 

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specific averment on the point. Thus, in the light of the position 

which the respondent in the present case held, we are of the view 

that the respondent be made liable under Section 138 of the NI 

Act, even though the Company had not been named in the notice 

or the complaint. There was no necessity for the appellant to 

prove that the said respondent was incharge of the affairs of the 

company, by virtue of the position he held. Thus, we hold that the 

respondent is liable for the offence under Section 138 of the NI 

Act. (2016)3 PLRSC 794 

Negotiable Instruments Act, 1881 (26 of 1881) Section 138 - In the 

complaint no averment that the accused was the person incharge 

of and responsible for the affairs of the Company - However, as 

the respondent was the Managing Director there is no need of 

specific averment on the point. (2016)3 PLRSC 794 

Negotiable Instruments Act, 1881 (26 of 1881) Section 139 – Burden of 

Proof - Since the cheque as well as the signature has been 

accepted by the accused respondent, the presumption under 

Section 139 would operate - Thus, the burden was on the accused 

to disprove the cheque or the existence of any legally recoverable 

debt or liability – Burden of proof had shifted on the accused 

which the accused failed to discharge. (2016)3 PLRSC 536 

1103 


Notice issued by lawful authority – Non appearance - Commits an 

independent offence - Dy. Chief Controller of Import and Export 

v. Roshan Lal Agarwal - The said case cannot be read as laying 

down a general statement of law that the prosecution of the 

accused, who is alleged to be guilty of an offence of not 

responding to the summons issued by a lawful authority for the 

purpose of either an inquiry or investigation into another

1104 



substantive offence, would not be justified - Exonerating such an 

accused, who successfully evades the process of law and thereby 

commits an independent offence on the ground that he is found 

to be not guilty of the substantive offence would be destructive of 

law and order, apart from being against public interest - Such an 

exposition of law would only encourage unscrupulous elements in 

the society to defy the authority conferred upon the public 

servants to enforce the law with impunity. It is also possible, in 

certain cases that the time gained by such evasive tactics adopted 

by a person summoned itself would result in the destruction of 

the material which might otherwise constitute valuable evidence 

for establishing the commission of a substantive offence by such a 

recalcitrant accused. Dy. Chief Controller of Import and Export v. 

Roshan Lal Agarwal, (2003) 4 SCC 139, Not good law. (2016)3 


Nurses - Nurses who are working in private hospitals and nursing homes 

are not being treated fairly in the matter of their service 

conditions and pay - Central government will a Committee within 

four months from today - Committee will make its 

recommendations, so as to do the needful for improvement of 

working conditions and pay of the nurses working in private 

hospitals and nursing homes within six months from its 

constitution, which can ultimately be given a form of legislation by 

the respondent-States or by the Central Government itself. 


P 

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Payment of Wages Act, 1936, Section 13A - Employee’s Compensation 

Act, 1923 – Wages - Neither of the parties produced any 

document on record to prove the exact amount of wages being 

earned by the deceased at the time of the accident - Deceased 

was a highly skilled workman and would often be required to 

undertake long journeys outside the state in the line of duty, 

especially considering the fact that the vehicle in question had a 

registered National Route Permit - Wages of the deceased were 

accepted as Rs.4,000/- per month + daily bhatta of Rs.6,000/- per 

month – Under the Payment of Wages Act, 1936, Section 13A, 

the onus is on the employer to maintain the register and records 

of wages - Since the employer has failed in his duty to maintain 

the proper records of wages of the deceased, the appellants 

cannot be made to suffer for it. (2016)3 PLRSC 243 

Penalty - Tax – Even if minimum penalty is prescribed, the authority may 

be justified in refusing to impose any penalty in some peculiar 

situations, such as, where the breach flows from a bona fide belief 

that the offender is not liable to act in the manner prescribed by 

the Statute. M/s Hindustan Steel Ltd. v. State of Orissa, (1969) 2 

SCC 627 relied. Commissioner of Sales Tax, Uttar Pradesh v. Sanjiv 

Fabrics, (2010) 9 SCC 630 relied. (2016)3 PLRSC 400 

Personal liberty versus Public good - Sahara Case - This Court feels 

concerned with the fact that three persons are deprived of their 

liberty for the last fifteen months and this situation is quite 

onerous to them - On the other hand, public interest as well as 

public good demands that the two Sahara Companies, which had 

collected whopping amount of more than Rs. 22,000 crores from 

the public in an illegal and unauthorised manner, are made 

1105 


1106 



accountable for the same - By any yardstick, this is a huge liability, 

which the contemnors are bound to discharge by depositing the 

same with SEBI - It is, thus, an unprecedented situation of 

personal liberty of the three applicants on the one hand vis a vis 

majesty of law and ensuring larger public good, on the other hand 

- It is this sense of justice, in an unprecedented kind of situation, 

that has compelled the Court to take such an extreme step - It is 

this legal realism which has compelled the Court to adopt an 

approach which sounds more pragmatic - It is “doing what comes 

naturally” approach to the problem at hand, which required such 

a drastic step, going by the experience of this case, giving rise to 

'Reflection' that provided 'Understanding'. Held, This case is a 

burning example where the true dictate of justice is difficult to 

discern, and the law needed to come down on the side of 

practical convenience. We may borrow the jurisprudential theory 

propounded by Ronald Dworkin, albeit in somewhat different 

context, viz. the “conventional jurisprudential wisdom” which 

holds that in certain cases of a particularly complex or novel 

character the law does not provide a definite answer. In denying 

that judges in hard cases have a discretion to determine what the 

law is, Dworkin has instead argued for the judicial use of public 

standards or principles in a way that is capable of providing the 

right legal answer. The process of reaching a right answer in hard 

cases obviously differs from the process of reaching the legal 

answer in easy cases. After all, the avowed objective of rule of law 

is also to ensure that the orders of this Court are respected and 

obeyed. Therefore, its a classic case where the approach adopted 

is influenced by the necessity of “making the law work”. 

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Therefore, the orders passed may not be strictly construed as 

arising out of contempt jurisdiction, but in exercise of inherent 

jurisdiction vested in this Court to do complete justice in the 

matter and to ensure that the applicants render full compliance of 

its orders. It's the unprecedented situation which has led to 

passing of unprecedented, but justifiable, orders. (2016)3 PLRSC 

752 


Full Participation) Rules, 1996 , Section 73 Sub-sections (1) and 

(2) - Disability certificate is required to be issued by Medical 

Board - Illegal usurpation of the quota reserved for specially abled 

by large number of persons who were not in fact specially abled 

and have procured certificates fraudulently - 21% of selected 

candidates of handicapped category were found to be fraudulent 

- Fraud vitiates and in such a case when large number of 

candidates have illegally usurped the reserved seats of the 

persons suffering from disability the action of State Government 

did not call for interference - High Court has issued a direction in 

the impugned order for physical verification of the candidate by 

the authorities and in case he does not suffer from disability so 

certified candidate can be subjected to fresh medical test - High 

Court has overlooked that on mere physical verification it may not 

be possible to know various kinds of disabilities such as that of 

eyes, ear impairment etc. - That can only be done by the medical 

examination. (2016)3 PLRSC 228 

Petrol Pump - Grant of dealership in favour of the appellant was 

cancelled by the Committee and that received the stamp of 

approval of Apex Court – Question that once the dealership is 

1107 


1108 



cancelled, the land owner who had parted with the land by way of 

a long-term lease for a period of thirty years, can be allowed to 

retain possession over the land; and only the super structure 

which had been affixed on the land by the Corporation, can only 

be removed - On a plain reading of the aforesaid agreement, it is 

clear as noon day that it has no connection whatsoever with the 

lease agreement - Both the agreements are independent of each 

other - The appellant was a dealer under the lessee, that is, the 

Corporation - The dealership is liable to be cancelled on many a 

ground - In case there is a termination, dealership is bound to be 

cancelled and at that juncture, if the lease deed is treated to have 

been terminated along with the dealership, it will lead to a 

situation which does not flow from the interpretation of the 

instruments - The inevitable consequence of that is the appellant 

has to vacate the premises and the Corporation has the liberty to 

operate either independently or through another dealer - The 

appellant cannot be allowed to cause obstruction or create an 

impediment. (2016)3 PLRSC 752 

Power of Attorney Act, 1982 - Power of attorney - Is governed by the 

provisions of the Power of Attorney Act, 1982 - An agent acting 

under a power of attorney always acts, as a general rule, in the 

name of his principal - Any document executed or thing done by 

an agent on the strength of power of attorney is as effective as if 

executed or done in the name of principal, i.e., by the principal 

himself - An agent, therefore, always acts on behalf of the 

principal and exercises only those powers, which are given to him 

in the power of attorney by the principal - Any act or thing done 

by the agent on the strength of power of attorney is, therefore, 

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never construed or/and treated to have been done by the agent 

in his personal capacity so as to create any right in his favour but 

is always construed as having done by the principal himself - An 

agent, therefore, never gets any personal benefit of any nature - 

When D, who was acting as an agent of A on the strength of 

power of attorney, executed the tenancy agreement with 

respondent No. 1 in relation to the suit premises then he did such 

execution for and behalf of his principal - A, which resulted in 

creating a relationship of landlord and tenant between A. and 

respondent No. 1 in relation to the suit premises - In this 

execution, D being an agent did not get any right, title and 

interest of any nature either in the suit premises or in tenancy in 

himself - The effect of execution of tenancy agreement by an 

agent was as if A. himself had executed with respondent No.1 – 

No tenancy created with D. (2016)3 PLRSC 181 


Section 15 read with Section 120B of the IPC – Release of land 

from acquisition – Subsequently agreements for sale of certain 

parcels were said to have been executed - Though the intending 

purchasers in said four agreements were stated to be the 

appellants herein, the agreements in question were not signed by 

the appellants - The agreements were signed only by the 

prospective vendors namely, the owners of the land – FIR lodged 

by the Lokayukta that land was released conferring undue 

advantage upon the owners of the land under under provisions of 

the Prevention of Corruption Act, 1988 read with Section 120B of 

the IPC – Agreements relied upon by the prosecution do not bear 

the signatures of the appellants - True that in Aloka Bose v. 

1109 


1110 



Parmatma Devi , it has been observed that an agreement of sale 

signed by the vendor alone is enforceable by the purchaser 

named in the agreement - Question here is whether the 

appellants could be said to be involved in the conspiracy - The 

agreements in question were not even recovered from the 

custody of the appellants and were recovered from the vendors 

themselves - Agreements being unilateral and not bearing the 

signatures of the appellants, mere execution of such agreements 

cannot be considered as a relevant circumstance against the 

appellants - Nothing on record to indicate that the consideration 

mentioned in the agreement could be traced to the appellants, 

nor is there any statement by any of the witnesses suggesting 

even proximity or meeting of minds between the appellants and 

any of the other accused - High Court was not justified in setting 

aside the order passed by the Special Judge. (2016)3 PLRSC 368 

Principle of interpretation - It is well settled principle of interpretation 

that inconvenience and hardship to a person will not be the 

decisive factors while interpreting the provision - When bare 

reading of the provision makes it very clear and unequivocally 

gives a meaning it was to be interpreted in the same sense as the 

Latin maxim says "dulo lex sed lex", which means the law is hard 


the law. Held, The High Court as well as the Trial Court erred in 

applying Article 109 of the Limitation Act, where Article 109 of the 

Act clearly speaks about alienation made by father governed by 

Mitakshara law and further Courts below proceeded in discussing 

about the long rope given under Article 109 of the Limitation Act 

of 12 years and comparatively lesser time of 3 years specified 

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under Article 60 of the Act. (2016)3 PLRSC 865 

Promissory Estoppel - An equitable doctrine that would yield when 

equity so required - That the same had been evolved to avoid 

injustice where it is demonstrated that a party acting on the 

words or conduct of another, amounting to clear and unequivocal 

promise and intended to create legal relations or effect legal 

relationships to arise in the future had altered his position, then 

the promise would be binding on the promisor and he would not 

be permitted to renege therefrom unless it would be inequitable 

to compel him to do so - While extending this doctrine to the 

Government as well, it was enunciated that if it can be shown that 

having regard to the facts as had subsequently transpired, it 

would be inequitable to hold the Government to the promise 

made by it, the Court would not raise the equity in favour of the 

promisee and enforce the promise against the Government - The 

doctrine of the promissory estoppel would be displaced in such a 

case, because on the facts, equity would not require that the 

Government should be held bound by the promise made by it - 

That aside overriding public interest against enforcement of the 

doctrine qua the Government, it would be still competent for it to 

depart from the promise on giving reasonable notice which need 

not be a formal one, affording the promisee a reasonable 

opportunity of resuming his position was underlined. (2016)3 


1111 


Public Premises (Eviction of Unauthorised Occupants) Act, 1971, S. 17 – 

Indian Oil Corporation - That the 1971 Act would not be applicable 

has really no force - Admittedly, the respondent is a public sector 

undertaking - The appellant whose dealership has been cancelled,


cannot claim possession to retain possession on the basis of 

ownership of the land as the lease is in continuance - Therefore, 

he is a trespasser. Thus, the provisions of the 1971 Act apply on all 

fours and accordingly we repel the said submission. (2016)3 


Punjab General Sales Tax Act, 1948, Section 11(10) - Section 11(3) of the 

Act, time-limit for completing the assessment provided therein is 

three years from the end of the year - Assessing Officer, however, 

sent notices to the respondent-assessee for the respective 

Assessment Years, after the expiry of three years - Extension of 

time for assessment has the effect of enlarging the period of 

limitation and, therefore, once the period of limitation expires, 

the immunity against being subject to assessment sets in and the 

right to make assessment gets extinguished - Therefore, there 

1112 


would be no question of extending the time for assessment when 

the assessment has already become time barred - A valuable right 

has also accrued in favour of the assessee when the period of 

limitation expires - If the Commissioner is permitted to grant the 

extension even after the expiry of original period of limitation 

prescribed under the Act, it will give him right to exercise such a 

power at any time even much after the last date of assessment - 

Section 10(11) has to be interpreted in the manner which is 

equitable to both the parties - Therefore, the only way to 

interpret the same is that by holding that power to extend the 

time is to be exercised before the normal period of assessment 

expires. Held, In the instant appeals itself, when the last dates of 

assessment were 30th April, 2004, 30th April, 2005, 30th April, 

2006 and 30th April, 2007, order extending the time under 

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Section 11(10) of the Act were passed on August 17, 2007, August 

17, 2007, August 17, 2007 and May 25, 2007 respectively. Thus, 

for the Assessment Year 2000-2001, order of extension is passed 

more than three years after the last date and for the Assessment 

Year 2001-2002, it is more than two years after the last date. Such 

a situation cannot be countenanced as rightly held by the High 

Court. When the last date of assessment in respect of these 

Assessment Years expired, it vested a valuable right in the 

assessee which cannot be lightly taken away. (2016)3 PLRSC 427 

R 

Ratio decidendi - Random sentences have been picked up from the 

judgment and used, without any attempt to understand the true 

purport of the judgment in its entirety - It is a well settled position 

of law that a word or sentence cannot be picked up from a 

judgment to construe that it is the ratio decidendi on the relevant 

aspect of the case - It is also a well settled position of law that a 

judgment cannot be read as a statute and interpreted and applied 

to fact situations. (2016)3 PLRSC 57 


Sick Industrial Companies (Special Provisions) Act, 1985 Section 

22 - Recovery Of Debts Due To Banks And Financial Institutions 

Act, 1993 - SICA will continue to apply in the case of unsecured 

creditors seeking to recover their debts from a sick industrial 

company - Sick Industrial Companies (Special Provisions) Act, 

1985 overrides the provisions of the Recovery Of Debts Due To 

Banks And Financial Institutions Act, 1993. (2016)3 PLRSC 123 

1113 


Rent – Eviction petition - It is not necessary to implead all the co-owners


in the eviction petition - Dhannalal v. Kalawatibai and 

Others, (2002) 6 SCC 16 followed . (2016)3 PLRSC 181 

Rent act - Maharashtra Rent Control Act, 1999 - In terms of Section 55(2) 

of the special law in the instant case, which is the Rent Control 

Act, the onus to get such a deed registered is on the landlord. 


Right of legal remedy - A right to prosecute the legal remedy in the court 

of law to challenge any decision of the State or/and its agency is a 

valuable legal right of the citizen and the High Court could not 

take away such right from the appellant without assigning any 

1114 


reason - High Court while disposing of the appellant’s writ 

petition granted liberty to file representation to the NTPC but at 

the same time ordered that appellants will have no liberty to 

move the High Court again for the same cause of action raised 

therein - High Court having rightly granted indulgence to the 

appellant to file the representation to the NTPC for ventilating his 

grievance, should have also granted liberty to the appellant to 

take recourse to all legal remedies to challenge the decision once 

taken on his representation, if occasion so arises - No justifiable 

reason to deny the appellant from taking recourse to the legal 

remedies to prosecute his grievance in a Court of law in relation 

to the dispute, which is the subject matter of the representation 

in case if occasion arises in future. (2016)3 PLRSC 411 


examiners who have evaluated the answer-sheet - Public Service 

Commission (PSC) has taken upon itself in appointing the 

examiners to evaluate the answer papers and as such, the PSC 

and examiners stand in a principal-agent relationship - PSC is in 

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the shoes of a Principal has entrusted the task of evaluating the 

answer papers to the Examiners - Examiners in the position of 

agents are bound to evaluate the answer papers as per the 

instructions given by the PSC - As a result, a fiduciary relationship 

is established between the PSC and the Examiners - Therefore, 

any information shared between them is not liable to be 

disclosed. (2016)3 PLRSC 259 


examiners who have evaluated the answer-sheet - Don’t see any 

logical reason as to how this will benefit him or the public at large 

- Disclosure of the identity of Examiners is in the least interest of 

the general public and also any attempt to reveal the examiner’s 

identity will give rise to dire consequences - Commission has 

reposed trust on the examiners that they will check the exam 

papers with utmost care, honesty and impartially and, similarly, 

the Examiners have faith that they will not be facing any 

unfortunate consequences for doing their job properly - If we 

allow disclosing name of the examiners in every exam, the 

unsuccessful candidates may try to take revenge from the 

examiners for doing their job properly - May, further, create a 

situation where the potential candidates in the next similar exam, 

especially in the same state or in the same level will try to contact 

the disclosed examiners for any potential gain by illegal means in 

the potential exam. (2016)3 PLRSC 259 

Right to information Act, 2005 (22 of 2005) – Candidates application for 

information of answer sheets and details of the interview marks 

can be and should be provided - It is not something which a public 

authority keeps it under a fiduciary capacity - Disclosing the marks 

1115 



and the answer sheets to the candidates will ensure that the 

candidates have been given marks according to their performance 

in the exam - Will ensure a fair play in this competitive 

environment, where candidate puts his time in preparing for the 

competitive exams. (2016)3 PLRSC 259 

S 

Sale - Creation of third party interest or arrangement by way of 

agreement for sale is different from sale – F entered into an 

agreement with S for sale of the mortgaged property mortgaged 

to Bank - Possession of the mortgaged property has not been 

delivered to F by the bank – Sale not complete – OTS. (2016)3 


1116 


Sales Tax – Mens Rea in taxing statutes - There is a rebuttable 

presumption that mens rea is essential ingredient in every offence 

- For examining whether mens rea is essential for an offence 

created under a tax Statute, three factors require particular 

attention, (i) the object and scheme of the Statute; (ii) the 

language of the section; and (iii) the nature of penalty – 

Appellant, in the eyes of the Authorities has submitted incorrect 

return leading to imposition of penalty in accordance with the 

relevant clauses - Considering that the situation of dispute arose 

on account of amendments in the Schedule in 1993 and was 

confined only to immediate two assessment years and also 

considering that the appellant had a good arguable case even in 

this Court which had stayed the penalty orders, we find that the 

return submitted by the appellant was on account of bona fide 

belief in correctness of appellant’s stand that the goods in 

question were chargeable only at the rate of 3% - In the facts of 

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the case it would not be proper to hold that the appellant had 

submitted a return which was incorrect to its knowledge or belief 

- Only after the outcome of the legal dispute by virtue of this 

judgment, the authorities can be justified in holding henceforth 

that the return was incorrect - In such a situation it would not be 

just and proper exercise of discretion to hold the appellant guilty 

of submitting incorrect return so as to attract penalty for the 

same - Set aside the balance dues of penalty - Tamil Nadu General 

Sales Tax Act, 1959, Entry 14, 50. (2016)3 PLRSC 400 

Sea Customs Act – Exoneration in related adjudication proceedings and 

the effect thereof on criminal proceedings - Plea that the finding 

of the Collector of Customs that the accused are not proved to be 

guilty operated as estoppel in the criminal case against the 

accused - Adjudicating proceedings were initiated pursuant to the 

show cause notice and Order was passed by the Additional 

Commissioner of Customs imposing penalty on the accused - 

Commissioner of Customs (Appeal) set aside the penalty - Petition 

under Section 482 of the Criminal Procedure Code filed seeking 

quashing - Exoneration of the respondent in the adjudication 

proceedings was the basis for petition under Section 482 Cr.P.C. – 

Accused was declared “proclaimed offender” - Accused was 

declared a proclaimed offender and had not participated in any of 

the proceedings personally - In the circumstances no weightage 

could be given to copies of the passport submitted in support of 

the assertion that he had not visited India - Statement of VS did 

allege the involvement of the respondent - In law, if such 

statement is otherwise admissible and reliable, conviction can 

lawfully rest on such material – Quashing order passed by High 

1117 


1118 



Court set aside - Constitution of India, Article 20(2). (2016)3 PLRSC 

359 

SEBI Act Section 15A, 15J - Whether the expression “namely” fixes the 

discretion which can be exercised only in the circumstances 

mentioned in the three clauses set out in Section 15J, or whether 

it would also take into account other relevant circumstances, 

having particular regard to the fact that it is a penalty provision 

that the Court is construing - Find it a little difficult to accept 

what is stated in paragraph 5 of SEBI Through its Chairman versus 

Roofit Industries Limited, 2015 (12) SCALE 642- Refer it to a larger 

Bench for such authoritative pronouncement. (2016)3 PLRSC 474 


of Security Interest Act, 2002 – Rent Act - SARFAESI Act enacted 

under List I of the Constitution of India thus, seeks to regulate 

asset recovery by the Banks - From a perusal of the Statements of 

Objects and Reasons of the Rent Control Act and the SARFAESI Act 

that the two Acts are meant to operate in completely different 

spheres - So far as residential tenancy rights are concerned, they 

are governed by the provisions of the Rent Control Act which 

occupies the field on the subject - Maharashtra Rent Control Act, 



of Security Interest Act, 2002 – Lease rights - Rent Act - 

Leasehold rights being created after the property has been 

mortgaged to the bank - Consent of the creditor needs to be 

taken - We have not stated anything to the effect that the tenancy 

created after mortgaging the property must necessarily be 

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registered under the provisions of the Registration Act and the 

Stamp Act. (2016)3 PLRSC 57 


of Security Interest Act, 2002 – Rent Act - There is an interest of 

the bank in recovering the Non Performing Asset on the one hand, 

and protecting the right of the blameless tenant on the other - 

Rent Control Act being a social welfare legislation, must be 

construed as such - A landlord cannot be permitted to do 

indirectly what he has been barred from doing under the Rent 

Control Act, more so when the two legislations, that is the 

SARFAESI Act and the Rent Control Act operate in completely 

different fields - While SARFAESI Act is concerned with Non 

Performing Assets of the Banks, the Rent Control Act governs the 

relationship between a tenant and the landlord and specifies the 

rights and liabilities of each as well as the rules of ejectment with 

respect to such tenants. The provisions of the SARFAESI Act 

cannot be used to override the provisions of the Rent Control Act 

- Decision rendered in the case of Harshad Govardhan Sondagar 

(supra) cannot be understood to have held that the provisions of 

the SARFAESI Act override the provisions of the Rent Control Act, 

and that the Banks are at liberty to evict the tenants residing in 

the tenanted premises which have been offered as collateral 

securities for loans on which default has been done by the 

debtor/landlord. Held,If the contentions of the learned counsel 

for the respondent Banks are to be accepted, it would render the 

entire scheme of all Rent Control Acts operating in the country as 

useless and nugatory. Tenants would be left wholly to the mercy 

of their landlords and in the fear that the landlord may use the 

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1120 



tenanted premises as a security interest while taking a loan from a 

bank and subsequently default on it. Conversely, a landlord would 

simply have to give up the tenanted premises as a security 

interest to the creditor banks while he is still getting rent for the 

same. In case of default of the loan, the maximum brunt will be 

borne by the unsuspecting tenant, who would be evicted from the 

possession of the tenanted property by the Bank under the 

provisions of the SARFAESI Act. Under no circumstances can this 

be permitted, more so in view of the statutory protections to the 

tenants under the Rent Control Act and also in respect of 

contractual tenants along with the possession of their properties 

which shall be obtained with due process of law. (2016)3 PLRSC 

57 


of Security Interest Act, 2002 – Rent Act - Maharashtra Rent 

Control Act, 1999, Section 14 - Transfer of Property Act, 1882, 

Section 106 - Effect of non-registration, or the creation of tenancy 

by way of an oral agreement - If no written lease deed exists, 

then such tenants are required to prove that they have been in 

occupation of the premises as tenants by producing such evidence 

in the proceedings under Section 14 of the SARFAESI Act before 

the learned Magistrate - In terms of Section 55(2) of the 

Maharashtra Rent Control Act, 1999 in the instant case, , the onus 

to get such a deed registered is on the landlord - Neither the 

landlord nor the banks can be permitted to exploit the fact of non 

registration of the tenancy deed against the tenant. (2016)3 


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of Security Interest Act, 2002 S. 35 – If we accept the legal 

submissions made on behalf of the Banks to hold that the 

provisions of SARFAESI Act override the provisions of the various 

Rent Control Acts to allow a Bank to evict a tenant from the 

tenanted premise, which has become a secured asset of the Bank 

after the default on loan by the landlord and dispense with the 

procedure laid down under the provisions of the various Rent 

Control Acts - Then the legislative powers of the state legislatures 

are denuded which would amount to subverting the law enacted 

by the State Legislature- It would not only tantamount to 

violation of rule of law, but would also render a valid Rent Control 

statute enacted by the State Legislature in exercise of its 

legislative power under Article 246 (2) of the Constitution of India 

useless and nugatory - Constitution of India envisages a federal 

feature, which has been held to be a basic feature of the 

Constitution - Constitution of India, Article 246 (2). (2016)3 PLRSC 

57 


of Security Interest Act, 2002, Section 35 - A non obstante clause 

(Section 35 of the SARFAESI Act) cannot be used to bulldoze the 

statutory rights vested on the tenants under the Rent Control Act 

- The expression 'any other law for the time being in force' as 

appearing in Section 35 of the SARFAESI Act cannot mean to 

extend to each and every law enacted by the Central and State 

legislatures - It can only extend to the laws operating in the same 

field - Once tenancy is created, a tenant can be evicted only after 

following the due process of law, as prescribed under the 

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1122 



provisions of the Rent Control Act - A tenant cannot be arbitrarily 

evicted by using the provisions of the SARFAESI Act as that would 

amount to stultifying the statutory rights of protection given to 

the tenant. (2016)3 PLRSC 57 


of Security Interest Act, 2002 – Section 35, 37 - Section 35 of the 

SARFAESI is not made subject to Section 37 of the said Act - This 

statutory scheme is at complete variance with the statutory 

scheme contained in Section 34 of the Recovery of Debts Due to 

Banks and Financial Institutions Act, 1993 in which sub-section (1) 

of Section 34 containing the non obstante clause is expressly 

made subject to sub-section (2) (containing the Sick Industrial 

Companies (Special Provisions) Act, 1985) by the expression “save 

as provided under sub-section (2)” - the two apparently 

conflicting Sections can best be harmonized by giving meaning to 

both - This can only be done by limiting the scope of the 

expression “or any other law for the time being in force” 

contained in Section 37 - This expression will therefore have to be 

held to mean other laws having relation to the securities market 

only, as the Recovery of Debts Due to Banks and Financial 

Institutions Act, 1993 is the only other special law, apart from the 


Enforcement of Security Interest Act, 2002, dealing with recovery 

of debts due to banks and financial institutions. On this 

interpretation also, the Sick Industrial Companies (Special 

Provisions) Act, 1985 will not be included for the obvious reason 

that its primary objective is to rehabilitate sick industrial 

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companies and not to deal with the securities market. (2016)3 



of Security Interest Act, 2002 – Sick Industrial Companies (Special 

Provisions) Act, 1985 - Where secured creditors representing not 

less than 75 per cent in value of the amount outstanding against 

financial assistance decide to enforce their security under the 

SARFAESI Act, 2002, any reference pending under the Sick 

Industrial Companies (Special Provisions) Act, 1985 cannot be 

proceeded with further – the proceedings under the Sick 

Industrial Companies (Special Provisions) Act, 1985 will abate. 



of Security Interest Act, 2002 - Sick Industrial Companies 

(Special Provisions) Act, 1985 - Where a secured creditor of a sick 

industrial company seeks to recover its debt in the manner 

provided by Section 13(2) of SARFAESI Act, 2002, such secured 

creditor may realise such secured debt under Section 13(4) of the 

SARFAESI Act, 2002, notwithstanding the provisions of Section 22 

of the Sick Industrial Companies (Special Provisions) Act, 1985. 



of Security Interest Act, 2002 - Sick Industrial Companies (Special 

Provisions) Act, 1985 - In a situation where there are more than 

one secured creditor of a sick industrial company or it has been 

jointly financed by secured creditors, and at least 60 per cent of 

such secured creditors in value of the amount outstanding as on a 

record date do not agree upon exercise of the right to realise their 

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1124 



security under the Securitisation and Reconstruction of Financial 

Assets and Enforcement of Security Interest Act, 2002, Section 22 

of the Sick Industrial Companies (Special Provisions) Act, 1985 will 

continue to have full play. Held, Where, under Section 13(9) of the 


Enforcement of Security Interest Act, 2002, in the case of a sick 

industrial company having more than one secured creditor or 

being jointly financed by secured creditors representing 60 per 

cent or more in value of the amount outstanding as on a record 

date wish to exercise their rights to enforce their security under 

the Securitisation and Reconstruction of Financial Assets and 

Enforcement of Security Interest Act, 2002, Section 22 of the Sick 

Industrial Companies (Special Provisions) Act, 1985, being 

inconsistent with the exercise of such rights, will have no play. 


Service Matter - Departmental inquiry – Documents not provided - No 

documents were supplied to the respondent along with the 

charge-sheet on the basis of which charges were framed - Some 

of the documents were given during departmental inquiry, but 

relevant documents on the basis of which findings were recorded 

were not made available to the respondent - It further appears 

that the list of documents and witnesses were also not supplied 

and some of the documents were produced during the course of 

inquiry - Show cause notice was served along with 17 charges, 

but all the documents were not supplied to the respondent - 

Order of punishment cannot be sustained in law - Respondent 

was out of employment since 1991, a lump sum payment of 

Rs.5,00,000/- towards the salary would meet the ends of justice . 

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Sick Industrial Companies (Special Provisions) Act, 1985 - Securitisation 

andReconstruction of Financial Assets and Enforcement of 

Security Interest Act, 2002 - In a situation where there are more 

than one secured creditor of a sick industrial company or it has 

been jointly financed by secured creditors, and at least 60 per 

cent of such secured creditors in value of the amount outstanding 

as on a record date do not agree upon exercise of the right to 

realise their security under the Securitisation and Reconstruction 

of Financial Assets and Enforcement of Security Interest Act, 2002, 

Section 22 of the Sick Industrial Companies (Special Provisions) 

Act, 1985 will continue to have full play. Held, Where, under 

Section 13(9) of the Securitisation and Reconstruction of Financial 

Assets and Enforcement of Security Interest Act, 2002, in the case 

of a sick industrial company having more than one secured 

creditor or being jointly financed by secured creditors 

representing 60 per cent or more in value of the amount 

outstanding as on a record date wish to exercise their rights to 

enforce their security under the Securitisation and Reconstruction 

of Financial Assets and Enforcement of Security Interest Act, 2002, 

Section 22 of the Sick Industrial Companies (Special Provisions) 

Act, 1985, being inconsistent with the exercise of such rights, will 

have no play. (2016)3 PLRSC 123 

1125 


Sick Industrial Companies (Special Provisions) Act, 1985 – Non obstante 

clause – SICA prevails in all situations where there are earlier 

enactments with non obstante clauses similar to the Sick 

Industrial Companies (Special Provisions) Act, 1985 - Where there 

are later enactments with similar non obstante clauses, the Sick

1126 



Industrial Companies (Special Provisions) Act, 1985 has been held 

to prevail only in a situation where the reach of the non 

obstante clause in the later Act is limited – such as in the case of 

the Arbitration and Conciliation Act, 1996 – or in the case of the 

later Act expressly yielding to the Sick Industrial Companies 

(Special Provisions) Act, 1985, as in the case of the Recovery Of 

Debts Due To Banks And Financial Institutions Act, 1993 - Where 

such is not the case, as in the case of Special Courts Act, 1992, it is 

the Special Courts Act, 1992 which was held to prevail over the 

Sick Industrial Companies (Special Provisions) Act, 1985. Held, 

Section 37 of the Securitisation and Reconstruction of Financial 

Assets and Enforcement of Security Interest Act, 2002 does not 

include the Sick Industrial Companies (Special Provisions) Act, 

1985 unlike Section 34(2) of the Recovery of Debts Due To Banks 

and Financial Institutions Act, 1993 - Section 37 of SARFAESI states 

that the said Act shall be in addition to and not in derogation of 

four Acts, namely, the Companies Act, the Securities Contracts 

(Regulation) Act, 1956, the Securities and Exchange Board of India 

Act, 1992 and the Recovery Of Debts Due To Banks And Financial 

Institutions Act, 1993. It is clear that the first three Acts deal with 

securities generally and the Recovery Of Debts Due To Banks And 

Financial Institutions Act, 1993 deals with recovery of debts due 

to banks and financial institutions. Interestingly, Section 41 of the 


Enforcement of Security Interest Act, 2002 makes amendments in 

three Acts – the Companies Act, the Securities Contracts 

(Regulation) Act, 1956, and the Sick Industrial Companies (Special 

Provisions) Act, 1985. It is of great significance that only the first 

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two Acts are included in Section 37 and not the third i.e. the Sick 

Industrial Companies (Special Provisions) Act, 1985. This is for the 

obvious reason that the framers of the Securitisation and 

Reconstruction of Financial Assets and Enforcement of Security 

Interest Act, 2002 intended that the Sick Industrial Companies 

(Special Provisions) Act, 1985 be covered by the non 

obstante clause contained in Section 35,and not by the exception 

thereto carved out by Section 37. Further, whereas the Recovery 

of Debts Due to Banks and Financial Institutions Act, 1993 is 

expressly mentioned in Section 37, the Sick Industrial Companies 

(Special Provisions) Act, 1985 is not, making the above position 

further clear. And this is in stark contrast, as has been stated 

above, to Section 34(2) of the Recovery of Debts Due to Banks and 

Financial Institutions Act, 1993, which expressly included the Sick 

Industrial Companies (Special Provisions) Act, 1985. The new 

legislative scheme qua recovery of debts contained in the 


Enforcement of Security Interest Act, 2002 has therefore to be 

given precedence over the Sick Industrial Companies (Special 

Provisions) Act, 1985, unlike the old scheme for recovery of debts 

contained in the Recovery of Debts Due to Banks and Financial 

Institutions Act, 1993. (2016)3 PLRSC 123 

1127 


Sick Industrial Companies (Special Provisions) Act, 1985, Section 15(1) 

proviso 3, S. 16 - Expression “where a reference is pending” 

would necessarily include the inquiry stage before the Board 

under Section 16 of the Act - Reference can be said to be pending 

not only when an inquiry is instituted, but also after preparation 

and sanction of a scheme right till the stage the scheme has


worked out successfully or till the BIFR gives its opinion to wind 

up the company. (2016)3 PLRSC 123 


proviso 3, Section 20 - The expression “reference” used in 

Section 15(1) proviso 3 is used in contra distinction to the 

expression “proceedings” in Section 22 - “Proceedings” under 

Section 22 are actions taken against the sick company, whereas 

“references” are actions initiated by a sick company. (2016)3 



proviso 3 - Meaning of the expression “such reference shall 

abate” - One obvious way that a reference abates is where the 

Board, after inquiry, rejects the reference for the reason that the 

Board is satisfied that the Company is not a sick industrial 

1128 


company as defined under the Act - Another way in which a 

reference can abate is where a scheme is implemented 

successfully, and the sick industrial company is taken out of the 

woods successfully - A third manner in which a reference can 

abate is when a scheme or schemes have failed in respect of the 

sick industrial company, and in the opinion of the BIFR, the said 

Company ought to be wound up - A fourth instance of abatement 

is provided by the third proviso to Section 15(1) of the Sick 

Industrial Companies (Special Provisions) Act, 1985 - And that is 

that a reference which is pending shall abate if the secured 

creditors of not less than 3/4th in value of the amount 

outstanding against the financial assistance disbursed to the 

borrower, have taken measures to recover secured debts under 


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Assets and Enforcement of Security Interest Act, 2002 – The 

legislature has inserted this provision so that, if 3/4th or more of 

the secured creditors get together to take measures under 


Assets and Enforcement of Security Interest Act, 2002, they will 

not be thwarted by the provisions of Section 22 of Sick Industrial 

Companies (Special Provisions) Act, 1985, and it will not be 

necessary for them to obtain BIFR permission before taking any 

such measures. (2016)3 PLRSC 123 


Recovery Of Debts Due To Banks And Financial Institutions Act, 

1993 - SICA will continue to apply in the case of unsecured 

creditors seeking to recover their debts from a sick industrial 

company - Sick Industrial Companies (Special Provisions) Act, 

1985 overrides the provisions of the Recovery Of Debts Due To 

Banks And Financial Institutions Act, 1993. (2016)3 PLRSC 123 


Where an eviction petition is filed under a State Rent Act for 

eviction on the ground of non-payment of rent - Such eviction 

petitions have been held not to be suits for recovery of money - 

Consequently, Section 22 of the Sick Industrial Companies (Special 

Provisions) Act, 1985 shall not apply - Gujarat Steel Tube Co. 

Ltd. v. Virchandbhai B. Shah, (1999) 8 SCC P.11 referred to. 


1129 


Sick Industrial Companies (Special Provisions) Act, 1985, Section 22 - 


Enforcement of Security Interest Act, 2002 - Sick Industrial 

Companies (Special Provisions) Act, 1985 - Where a secured

1130 



creditor of a sick industrial company seeks to recover its debt in 

the manner provided by Section 13(2) of SARFAESI Act, 2002, such 

secured creditor may realise such secured debt under Section 

13(4) of the SARFAESI Act, 2002, notwithstanding the provisions 

of Section 22 of the Sick Industrial Companies (Special Provisions) 

Act, 1985. (2016)3 PLRSC 123 

Specific Relief Act - Jurisdiction to order specific performance of contract 

is based on the existence of a valid and enforceable contract - 

Where a valid and enforceable contract has not been made, the 

Court will not make a contract for them - Specific performance 

will not be ordered if the contract itself suffers from some defect 

which makes the contract invalid or unenforceable - The 

discretion of the Court will not be there even though the contract 

is otherwise valid and enforceable. (2016)3 PLRSC 279 

Specific Relief Act - Suit for specific performance - Suit filed on the basis 

of a “receipt + agreement” - Decision taken by the Development 

Authority for allotment of a plot in favour of the defendant - In 

the year 1995 the defendant had desired to sell his right in the 

said recommendation letter which was to be allotted by the DDA 

- Defendant agreed to sell his right in the aforesaid 

recommendation letter and the plot to be allotted at a price of 

Rs.4,60,000/- - During the pendency of the lis DDA allotted the 

plot in question in favour of the defendant by executing a lease 

deed putting a condition that the plot in question will remain nontransferable 

for a period of ten years – Decree for specific 

performance of “receipt + agreement” cannot be passed. (2016)3 


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T 

Tamil Nadu General Sales Tax Act, 1959, Entry 14, 50 - Sales Tax – Mens 

Rea in taxing statutes - There is a rebuttable presumption that 

mens rea is essential ingredient in every offence - For examining 

whether mens rea is essential for an offence created under a tax 

Statute, three factors require particular attention, (i) the object 

and scheme of the Statute; (ii) the language of the section; and 

(iii) the nature of penalty – Appellant, in the eyes of the 

Authorities has submitted incorrect return leading to imposition 

of penalty in accordance with the relevant clauses - Considering 

that the situation of dispute arose on account of amendments in 

the Schedule in 1993 and was confined only to immediate two 

assessment years and also considering that the appellant had a 

good arguable case even in this Court which had stayed the 

penalty orders, we find that the return submitted by the appellant 

was on account of bona fide belief in correctness of appellant’s 

stand that the goods in question were chargeable only at the rate 

of 3% - In the facts of the case it would not be proper to hold that 

the appellant had submitted a return which was incorrect to its 

knowledge or belief - Only after the outcome of the legal dispute 

by virtue of this judgment, the authorities can be justified in 

holding henceforth that the return was incorrect - In such a 

situation it would not be just and proper exercise of discretion to 

hold the appellant guilty of submitting incorrect return so as to 

attract penalty for the same - Set aside the balance dues of 

penalty. (2016)3 PLRSC 400 

1131 


Title – Adverse possession - Claim of title to the property and adverse 

possession are in terms contradictory. Mohan Lal v. Mirza Abdul


Gaffar (1996) 1 SCC 639 relied. (2016)3 PLRSC 801 

Tort Feasors - Joint Tort Feasors - Remedies available to one of the 

joint tort feasors from whom compensation has been recovered - 

When the other joint tort feasor has not been impleaded, 

obviously question of negligence of non-impleaded driver could 

not be decided, apportionment of composite negligence cannot 

be made in the absence of impleadment of joint tort feasor - It 

would be open to the impleaded joint tort feasors after making 

payment of compensation, so as to sue the other joint tort feasor 

and to recover from him the contribution to the extent of his 

negligence - In case when both the tort feasors are before the 

court/tribunal, if evidence is sufficient, it may determine the 

extent of their negligence so that one joint tort feasor can recover 

the amount so determined from the other joint tort feasor in the 

1132 


execution proceedings, whereas the claimant has right to recover 

the compensation from both or any one of them – Motor Vehicle 

Act .Held, that what emerges from the aforesaid discussion is as 

follows : (i) In the case of composite negligence, plaintiff/claimant 

is entitled to sue both or any one of the joint tort feasors and to 

recover the entire compensation as liability of joint tort feasors is 

joint and several. (ii) In the case of composite negligence, 

apportionment of compensation between two tort feasors vis a 

vis the plaintiff/claimant is not permissible. He can recover at his 

option whole damages from any of them. (iii) In case all the joint 

tort feasors have been impleaded and evidence is sufficient, it is 

open to the court/tribunal to determine inter se extent of 

composite negligence of the drivers. However, determination of 

the extent of negligence between the joint tort feasors is only for 

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the purpose of their inter se liability so that one may recover the 

sum from the other after making whole of payment to the 

plaintiff/claimant to the extent it has satisfied the liability of the 

other. In case both of them have been impleaded and the 

apportionment/ extent of their negligence has been determined 

by the court/tribunal, in main case one joint tort feasor can 

recover the amount from the other in the execution proceedings. 


determine the extent of composite negligence of the drivers of 

two vehicles in the absence of impleadment of other joint tort 

feasors. In such a case, impleaded joint tort feasor should be left, 

in case he so desires, to sue the other joint tort feasor in 

independent proceedings after passing of the decree or award. 


Trade Marks Act, section 134 - It was also submitted that as the bulk of 

litigation of such a nature is filed at Delhi and lawyers available at 

Delhi are having expertise in the matter, as such it would be 

convenient to the parties to contest the suit at Delhi - Such 

aspects are irrelevant for deciding the territorial jurisdiction - It is 

not the convenience of the lawyers or their expertise which 

makes out the territorial jurisdiction - Copyright Act, Section 62 . 


1133 


Trade Marks Act, section 134 - In a case where cause of action has arisen 

at a place where the plaintiff is residing or where there are more 

than one such persons, any of them actually or voluntarily resides 

or carries on business or personally works for gain would oust the 

jurisdiction of other place where the cause of action has not 

arisen though at such a place, by virtue of having subordinate


office, the plaintiff instituting a suit or other proceedings might be 

carrying on business or personally works for gain – Head office of 

complainant at Mumbai, Offence at Mumbai, New Delhi where 

subordinate office is situated shall not have jurisdiction - CPC 

Section 20 - Copyright Act, Section 62 . (2016)3 PLRSC 915 

Transfer of Property Act, 1882, Section 106 - Effect of non-registration, 

or the creation of tenancy by way of an oral agreement - Section 

106 of the Transfer of Property Act, 1882 does provide for 

registration of leases which are created on a year to year basis - 

According to Section 106 a monthly tenancy shall be deemed to 

be a tenancy from month to month and must be registered if it is 

reduced into writing - Act however, remains silent on the position 

of law in cases where the agreement is not reduced into writing - 

If the two parties are executing their rights and liabilities in the 

1134 


nature of a landlord-tenant relationship and if regular rent is 

being paid and accepted, then the mere factum of nonregistration 

of deed will not make the lease itself nugatory. 


U 

Urban Land (Ceiling and Regulation) Act, 1976 Sections 8, 9 and 10 - the 

provisions contained in Sections 8, 9 and 10 have to be 

mandatorily complied with before the land is declared in excess of 

the ceiling limit. (2016)3 PLRSC 265 

Urban Land (Ceiling and Regulation) Act, 1976, Section 10 - Arithmetical 

mistake and Clerical mistake - An arithmetical mistake is a mistake 

in calculation, while a clerical mistake is a mistake of writing or 

typing error occurring due to accidental slip or omissions or error 

due to careless mistake or omission - Substituting different lands 

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in place of the lands which have been notified by a statutory 

Notification under Section 10(1), 10(3) and 10(5) of the Urban 

Land (Ceiling and Regulation) Act, 1976 cannot and shall not be 

done by issuing a corrigendum unless the mandatory 

requirements contained in the aforementioned sections is 

complied with - A land holder cannot be divested from his land on 

the plea of clerical or arithmetical mistake liable to be corrected 

by issuing corrigendum. (2016)3 PLRSC 265 

V 

Vacant Property – Possession of - Suit property was a vacant piece of 

land from which structures stood demolished and removed 

before the institution of the suits- The decision in John B. James 

and Ors. v. Bangalore Development Authority (2001) 1 KarLJ 364 

did not permit anyone to claim that he is in settled possession of 

vacant land - No infirmity in the reasoning - Once the High Court 

recorded a finding that the property was vacant as on the date of 

the filing of the suit there was no question of the plaintiffs 

claiming settled possession of the said property. (2016)3 PLRSC 

801 

1135 


Victim Compensation Scheme - Cr.P.C. Section 357-A - All the States and 

Union Territories shall make all endeavour to formulate a uniform 

scheme for providing victim compensation in respect of 

rape/sexual exploitation with the physically handicapped women 

as required under the law taking into consideration the scheme 

framed by the State of Goa for rape victim compensation which 

provides that in case of injury causing, severe mental agony to 

women and child (eg. Rape cases etc.) Rs. 10,00,000/- (Ten Lakh) 

will be granted. (2016)3 PLRSC 289

1136 



Victim Compensation Scheme - Cr.P.C. Section 357-A - Whether the 

prosecutrix is entitled to victim compensation and, if so, to what 

extent? - Prosecutrix, blind and illiterate girl, was subjected to 

sexual intercourse on the promise of marriage - Victim being 

physically disadvantaged, she was already in a socially 

disadvantaged position which was exploited maliciously by the 

accused for his own ill intentions to commit fraud upon her and 

rape her in the garb of promised marriage which has put the 

victim in a doubly disadvantaged situation and after the waiting of 

many years it has worsened - Victim, who has already suffered a 

lot since the day of the crime till now, needs a special 

rehabilitation scheme and being in a vulnerable position and who 

is not being taken care of by anyone and having no family to 

support her either emotionally or economically, we are not 

ordering the respondent-State to give her any lump sum amount 

as compensation for rehabilitation as she is not in a position to 

keep and manage the lump sum amount - State to pay Rs.8,000/- 

per month till her life time, treating the same to be an interest 

fetched on a fixed deposit of Rs.10,00,000/- . (2016)3 PLRSC 289 


Held, Since the College has also not complied with the orders 

passed by this Court in the above cited case and has permitted 

the students to continue their studies, to send a message to the 

College and other medical colleges, we are of the view that it 

would be appropriate if the JSS Medical College is directed to 

deposit an amount of Rs.5,00,00,000/-(Rupees five crores only) in 

the Registry of this Court within four weeks from today. (2016)3 


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W 

Word - Actus reus - Usage - Insofar as the appellants are concerned, 

admittedly they have not taken active part in the commission of 

crime, namely, there is no actus reus. (2016)3 PLRSC 670 

Words - Actus reus (/ˈæktəs ˈreɪɪəs/), sometimes called the external 

element or the objective element of a crime, is the Latin term for 

the "guilty act" which, when proved beyond a reasonable doubt in 

combination with the mens rea, "guilty mind", produces criminal 

liability. (2016)3 PLRSC 670 

Words - Actus Reus [Latin, Guilty act.] - As an element of criminal 

responsibility, the wrongful act or omission that comprises the 

physical components of a crime. Criminal statutes generally 

require proof of both actus reus and mens rea on the part of a 

defendant in order to establish criminal liability. (West's 

Encyclopedia of American Law, edition 2. Copyright 2008 The Gale 

Group, Inc.). (2016)3 PLRSC 670 

1137 


Words and Meanings - “Cognizance” - Has a reference to the application 

of judicial mind by the Magistrate in connection with the 

commission of an offence and not merely to a Magistrate learning 

that some offence had been committed. (2016)3 PLRSC 883 

Words and meanings - Confession – Meaning - The word 'confession' has 

no where been defined - Courts have resorted to the dictionary 

meaning and explained that incriminating statements by the 

accused to the police suggesting the inference of the commission 

of the crime would amount to confession and, therefore, 

inadmissible under this provision - It is also defined to mean a 

direct acknowledgment of guilt and not the admission of any


incriminating fact, however grave or conclusive - Section 26 of 

the Evidence Act makes all those confessions inadmissible when 

they are made by any person, whilst he is in the custody of a 

police officer, unless such a confession is made in the immediate 

presence of a Magistrate - Therefore, when a person is in police 

custody, the confession made by him even to a third person, that 

is other than a police officer, shall also become inadmissible - 

Indian Evidence Act, 1872, Section 25. (2016)3 PLRSC 670 

Words and meanings - "dulo lex sed lex", which means the law is hard 


the law - Latin maxim. (2016)3 PLRSC 865 

Words and phrases - “An advocate, in the discharge of his duty knows 

but one person in the world and that person is his client”. (2016)3 


1138 


Words and Phrases - “Right to approach the court/pursuing the legal 

remedy cannot be made a farce or oppressive as that would not 

be conducive for the effective administration of justice.” (2016)3 


Words and Phrases - “shall have due regard to” - Is a very known 

legislative device used from the time of Julius v Bishop of Oxford 

(1880) LR 5 AC 214 (HL), and followed in many judgments both 

English as well as of our Courts as words vesting a discretion in an 

Adjudicating Officer . (2016)3 PLRSC 474 

Words and Phrases - 'State should not punish with vengeance' - Emperor 

Ashoka. (2016)3 PLRSC 692 

Workman – Daily wager and work charged employee - If engagement in a 

work-charged establishment rest on a criterion, no better than 

the absolute discretion of the authority engaging them or the 

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fortuitous circumstances of a vacancy or need in a work-charged 

establishment, then, there is indeed no difference between a 

daily-wager on the one hand and work-charged employees on the 

other - No distinction can resultantly be made between these two 

categories of employees for in essence, the nature of their 

engagement remains the same except that in the case of workcharged 

employees, the wages/emoluments appear to be borne 

from out of the allocation for the project in which they are 

employed while in the other case there is no such specific 

allocation of funds - The classification of workcharged and other 

employees to say the least remains wholly unsatisfactory at least 

for the purposes of the case in hand leaving no option for us but 

to treat the case of the daily-wagers and work-charge employees 

on the same footing when it comes to granting regularization to 

them - Daily wager and work charged employee. (2016)3 PLRSC 

692 

Workmen's Compensation Act Section 29 - Employer had agreed to pay a 

sum of Rs.1,50,000/- by way of compensation - But the said 

settlement had not been registered, as required under the 

provisions of Section 29 of the Workmen's Compensation Act - As 

the settlement had not been registered, the said settlement could 

not have been looked into - Order of the Commissioner whereby 

the employer was directed to pay a sum of Rs.1,31,971 plus 

interest, upheld. (2016)3 PLRSC 287 

1139 



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